exv10w1






EXHIBIT 10.1




CREDIT AND GUARANTY AGREEMENT



dated as of June 29, 2011



among



VALEANT PHARMACEUTICALS INTERNATIONAL,

as Borrower,



VALEANT PHARMACEUTICALS INTERNATIONAL, INC.,

as Parent and a Guarantor,



CERTAIN SUBSIDIARIES OF VALEANT PHARMACEUTICALS INTERNATIONAL

and VALEANT PHARMACEUTICALS INTERNATIONAL, INC.,

as Guarantors,



VARIOUS LENDERS FROM TIME TO TIME PARTY HERETO,



GOLDMAN SACHS LENDING PARTNERS LLC,

as Sole Lead Arranger, Sole Bookrunner and Syndication Agent,



and



GOLDMAN SACHS LENDING PARTNERS LLC,

as Administrative Agent and Collateral Agent,



 





$200,000,000 Revolving Credit Facility




 








 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINITIONS AND INTERPRETATION
	 	 	1	 
	1.1. Definitions
	 	 	1	 
	1.2. Accounting Terms
	 	 	31	 
	1.3. Interpretation, etc.
	 	 	32	 
	1.4. Currency Matters
	 	 	33	 
	1.5. Pro Forma Transactions
	 	 	33	 
	 
	 	 	 	 
	SECTION 2. LOANS AND LETTERS OF CREDIT
	 	 	33	 
	2.1. Revolving Loans
	 	 	33	 
	2.2. Swing Line Loans
	 	 	34	 
	2.3. Issuance of Letters of Credit and Purchase of Participations Therein
	 	 	36	 
	2.4. Pro Rata Shares; Availability of Funds
	 	 	40	 
	2.5. Use of Proceeds
	 	 	40	 
	2.6. Evidence of Debt; Register; Lenders’ Books and Records; Notes
	 	 	40	 
	2.7. Interest on Loans
	 	 	41	 
	2.8. Conversion/Continuation
	 	 	43	 
	2.9. Default Interest
	 	 	43	 
	2.10. Fees
	 	 	43	 
	2.11. Voluntary Prepayments/Commitment Reductions
	 	 	44	 
	2.12. Mandatory Prepayments
	 	 	45	 
	2.13. Application of Prepayments
	 	 	46	 
	2.14. General Provisions Regarding Payments
	 	 	47	 
	2.15. Ratable Sharing
	 	 	48	 
	2.16. Making or Maintaining Eurodollar Rate Loans
	 	 	49	 
	2.17. Increased Costs; Capital Adequacy
	 	 	50	 
	2.18. Taxes; Withholding, etc.
	 	 	51	 
	2.19. Obligation to Mitigate
	 	 	54	 
	2.20. Defaulting Lenders
	 	 	55	 
	2.21. Removal or Replacement of a Lender
	 	 	55	 
	2.22. Interest Act (Canada)
	 	 	56	 
	 
	 	 	 	 
	SECTION 3. CONDITIONS PRECEDENT
	 	 	57	 
	3.1. Closing Date
	 	 	57	 
	3.2. Conditions to Each Credit Extension
	 	 	61	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	61	 
	4.1. Organization; Requisite Power and Authority; Qualification
	 	 	62	 
	4.2. Equity Interests and Ownership
	 	 	62	 
	4.3. Due Authorization
	 	 	62	 
	4.4. No Conflict
	 	 	62	 
	4.5. Governmental Consents
	 	 	62	 
	4.6. Binding Obligation
	 	 	63	 
	4.7. Historical Financial Statements
	 	 	63	 
	4.8. Projections
	 	 	63	 
	4.9. No Material Adverse Change
	 	 	63	 
	4.10. Adverse Proceedings, etc.
	 	 	63	 






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	 	 	Page	 
	4.11. Payment of Taxes
	 	 	63	 
	4.12. Properties
	 	 	64	 
	4.13. Environmental Matters
	 	 	64	 
	4.14. No Defaults
	 	 	65	 
	4.15. Governmental Regulation
	 	 	65	 
	4.16. Employee Matters
	 	 	65	 
	4.17. Employee Benefit Plans
	 	 	66	 
	4.18. Canadian Employee Benefit Plans
	 	 	66	 
	4.19. Solvency
	 	 	67	 
	4.20. Compliance with Statutes, etc.
	 	 	67	 
	4.21. Disclosure
	 	 	67	 
	4.22. PATRIOT Act and PCTFA
	 	 	67	 
	4.23. Creation, Perfection, etc.
	 	 	68	 
	4.24. Senior Indebtedness
	 	 	68	 
	4.25. OFAC Matters
	 	 	68	 
	 
	 	 	 	 
	SECTION 5. AFFIRMATIVE COVENANTS
	 	 	68	 
	5.1. Financial Statements and Other Reports
	 	 	68	 
	5.2. Existence
	 	 	72	 
	5.3. Payment of Taxes and Claims
	 	 	72	 
	5.4. Maintenance of Properties
	 	 	73	 
	5.5. Insurance
	 	 	73	 
	5.6. Books and Records; Inspections
	 	 	73	 
	5.7. [Reserved]
	 	 	74	 
	5.8. Compliance with Laws
	 	 	74	 
	5.9. Environmental
	 	 	74	 
	5.10. Subsidiaries
	 	 	75	 
	5.11. Additional Material Real Estate Assets
	 	 	76	 
	5.12. [Reserved
	 	 	77	 
	5.13. Further Assurances
	 	 	77	 
	5.14. Maintenance of Ratings
	 	 	77	 
	5.15. Post-Closing Matters
	 	 	77	 
	5.16. Canadian Employee Benefit Plans
	 	 	77	 
	 
	 	 	 	 
	SECTION 6. NEGATIVE COVENANTS
	 	 	77	 
	6.1. Indebtedness
	 	 	77	 
	6.2. Liens
	 	 	80	 
	6.3. No Further Negative Pledges
	 	 	83	 
	6.4. Restricted Junior Payments
	 	 	83	 
	6.5. Restrictions on Subsidiary Distributions
	 	 	85	 
	6.6. Investments
	 	 	85	 
	6.7. Leverage Ratio
	 	 	86	 
	6.8. Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	87	 
	6.9. Disposal of Subsidiary Interests
	 	 	88	 
	6.10. Sales and Leasebacks
	 	 	89	 
	6.11. Transactions with Shareholders and Affiliates
	 	 	89	 
	6.12. Conduct of Business
	 	 	89	 
	6.13. Amendments or Waivers with Respect to Subordinated Indebtedness
	 	 	89	 
	6.14. Amendments or Waivers of Organizational Documents
	 	 	89	 
	6.15. Fiscal Year
	 	 	90	 






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	 	 	Page	 
	6.16. Specified Subsidiary Dispositions
	 	 	90	 
	6.17. Biovail Insurance
	 	 	90	 
	6.18. Establishment of Defined Benefit Plan
	 	 	90	 
	6.19. After Acquired Liens/Additional Guarantors
	 	 	90	 
	 
	 	 	 	 
	SECTION 7. GUARANTY
	 	 	90	 
	7.1. Guaranty of the Obligations
	 	 	90	 
	7.2. Contribution by Guarantors
	 	 	91	 
	7.3. Payment by Guarantors
	 	 	91	 
	7.4. Liability of Guarantors Absolute
	 	 	91	 
	7.5. Waivers by Guarantors
	 	 	93	 
	7.6. Guarantors’ Rights of Subrogation, Contribution, etc.
	 	 	93	 
	7.7. Subordination of Other Obligations
	 	 	94	 
	7.8. Continuing Guaranty
	 	 	94	 
	7.9. Authority of Guarantors or Borrower
	 	 	94	 
	7.10. Financial Condition of Borrower
	 	 	94	 
	7.11. Bankruptcy, etc.
	 	 	95	 
	7.12. Discharge of Guaranty upon Sale of Guarantor
	 	 	95	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	95	 
	8.1. Events of Default
	 	 	95	 
	 
	 	 	 	 
	SECTION 9. AGENTS
	 	 	98	 
	9.1. Appointment of Agents
	 	 	98	 
	9.2. Powers and Duties
	 	 	98	 
	9.3. General Immunity
	 	 	99	 
	9.4. Agents Entitled to Act as Lender
	 	 	100	 
	9.5. Lenders’ Representations, Warranties and Acknowledgment
	 	 	100	 
	9.6. Right to Indemnity
	 	 	100	 
	9.7. Successor Administrative Agent, Collateral Agent and Swing Line Lender
	 	 	101	 
	9.8. Collateral Documents and Guaranty
	 	 	103	 
	9.9. Withholding Taxes
	 	 	104	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	105	 
	10.1. Notices
	 	 	105	 
	10.2. Expenses
	 	 	106	 
	10.3. Indemnity
	 	 	107	 
	10.4. Set-Off
	 	 	108	 
	10.5. Amendments and Waivers
	 	 	108	 
	10.6. Successors and Assigns; Participations
	 	 	110	 
	10.7. Independence of Covenants
	 	 	113	 
	10.8. Survival of Representations, Warranties and Agreements
	 	 	113	 
	10.9. No Waiver; Remedies Cumulative
	 	 	113	 
	10.10. Marshalling; Payments Set Aside
	 	 	114	 
	10.11. Severability
	 	 	114	 
	10.12. Obligations Several; Independent Nature of Lenders’ Rights
	 	 	114	 
	10.13. Headings
	 	 	114	 
	10.14. APPLICABLE LAW
	 	 	114	 
	10.15. CONSENT TO JURISDICTION
	 	 	114	 
	10.16. WAIVER OF JURY TRIAL
	 	 	115	 






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	 	 	Page	 
	10.17. Confidentiality
	 	 	116	 
	10.18. Usury Savings Clause
	 	 	116	 
	10.19. Counterparts
	 	 	117	 
	10.20. Effectiveness; Entire Agreement
	 	 	117	 
	10.21. PATRIOT Act; PCTFA
	 	 	117	 
	10.22. Electronic Execution of Assignments
	 	 	117	 
	10.23. No Fiduciary Duty
	 	 	117	 
	10.24. Judgment Currency
	 	 	118	 
	10.25. Joint and Several Liability
	 	 	118	 
	10.26. Advice of Counsel; No Strict Construction
	 	 	118	 
	10.27. Day Not a Business Day
	 	 	119	 
	10.28. Limitations Act, 2002
	 	 	119	 






-iv-









 






	 	 	 	 	 

	APPENDICES:

	 	 A
	 	Revolving Commitments
	 

	 	 B
	 	Notice Addresses
	 
	 	 	 	 
	SCHEDULES:

	 	 1.1(b)
	 	Closing Date Guarantors
	 

	 	 3.1(e)(i)
	 	Mortgaged Properties
	 

	 	 4.1
	 	Jurisdictions of Organization and Qualification
	 

	 	 4.2
	 	Equity Interests and Ownership
	 

	 	 4.12
	 	Real Estate Assets
	 

	 	 4.18
	 	Certain Defined Benefit Plans
	 

	 	 5.10
	 	Barbados Collateral Documents
	 

	 	 5.15
	 	Post-Closing Matters
	 

	 	 6.1
	 	Certain Indebtedness
	 

	 	 6.2
	 	Certain Liens
	 

	 	 6.3
	 	Certain Negative Pledges
	 

	 	 6.5
	 	Certain Restrictions on Subsidiary Distributions
	 

	 	 6.6
	 	Certain Investments
	 

	 	 6.11
	 	Certain Affiliate Transactions
	 
	 	 	 	 
	EXHIBITS:

	 	 A-1
	 	Funding Notice
	 

	 	 A-2
	 	Conversion/Continuation Notice
	 

	 	 B-1
	 	Revolving Loan Note
	 

	 	 B-2
	 	Swing Line Note
	 

	 	 C
	 	Compliance Certificate
	 

	 	 D
	 	Assignment Agreement
	 

	 	 E
	 	Certificate re Non-Bank Status
	 

	 	 F-1
	 	Closing Date Certificate
	 

	 	 F-2
	 	Solvency Certificate
	 

	 	 G
	 	Counterpart Agreement
	 

	 	 H-1
	 	Form of Canadian Guarantee
	 

	 	 H-2
	 	Form of Barbados Guarantee
	 

	 	 I-1
	 	Form of Pledge and Security Agreement
	 

	 	 I-2
	 	Form of Canadian Pledge and Security Agreement
	 

	 	 J-1
	 	Intercompany Note
	 

	 	 J-2
	 	Subordination Agreement
	 

	 	 K
	 	[Reserved]
	 

	 	 L
	 	Contribution Agreement
	 

	 	 M
	 	Collateral Questionnaire







-v-











 





CREDIT AND GUARANTY AGREEMENT




     This CREDIT AND GUARANTY AGREEMENT, dated as of June 29, 2011, is entered into by and among
VALEANT PHARMACEUTICALS INTERNATIONAL, a Delaware corporation (the “Borrower”), VALEANT
PHARMACEUTICALS INTERNATIONAL, INC., a corporation continued under the federal laws of Canada
(“Parent”), CERTAIN SUBSIDIARIES OF PARENT, as Guarantors, the Lenders party hereto from time to
time, GOLDMAN SACHS LENDING PARTNERS LLC (“GSLP”), as Sole Lead Arranger, Sole Bookrunner and
Syndication Agent (in such capacity, the “Syndication Agent”), and GSLP, as Administrative Agent
(together with its permitted successors in such capacity, “Administrative Agent”) and as Collateral
Agent (together with its permitted successors in such capacity, “Collateral Agent”).



RECITALS:




     WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;



     WHEREAS, Lenders have agreed to extend a revolving credit facility to Borrower, in an
aggregate principal amount not to exceed $200,000,000. Revolving Loans will be used after the
Closing Date for permitted capital expenditures and permitted acquisitions, to provide for the
ongoing working capital requirements of Parent and its Subsidiaries and for general corporate
purposes;



     WHEREAS, Borrower has agreed to secure all of its Obligations by granting to Collateral Agent,
for the benefit of Secured Parties, a First Priority Lien on substantially all of its assets,
including a pledge of all of the Equity Interests of certain of its Domestic Subsidiaries and 65%
of all the Equity Interests of each of its First-Tier Foreign Subsidiaries, subject to exceptions
set forth herein and in the Collateral Documents; and



     WHEREAS, Guarantors have agreed to guarantee the obligations of Borrower hereunder and to
secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured
Parties, a First Priority Lien on substantially all of their respective assets, including (i) in
the case of Parent and each of its Subsidiaries that is not also a Subsidiary of Borrower, a pledge
of all of the Equity Interests of each of its Subsidiaries and (ii) in the case of each Subsidiary
of the Borrower, a pledge of all of the Equity Interests of each of their respective Domestic
Subsidiaries and 65% of all the Equity Interests of each of their respective First-Tier Foreign
Subsidiaries, in each case subject to exceptions set forth herein and in the Collateral Documents.



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



SECTION 1. DEFINITIONS AND INTERPRETATION




     1.1. Definitions. The following terms used herein, including in the preamble, recitals,
exhibits, appendices and schedules hereto, shall have the following meanings:



     “2010 Merger” means the merger of Borrower with and into Beach Merger Corp. pursuant to the
2010 Merger Agreement.



     “2010 Merger Agreement” means the Agreement and Plan of Merger, dated as of June 20, 2010,
among Borrower, Parent, Biovail Americas Corp. and Beach Merger Corp., together with all exhibits,



 









 




schedules, documents, agreements, and instruments executed and delivered in connection
therewith, as the same has been amended, or modified in accordance with the terms and provisions
thereof.




     “2010 Transactions” means, collectively, (i) the redemption of the Borrower’s 8.375% Senior
Notes due 2016, issued under that certain indenture dated as of June 9, 2009, among the Borrower,
the guarantors party thereto and The Bank of New York Mellon Trust Company, Inc., as trustee, and
the Borrower’s 7.625% Senior Notes due 2020, issued under that certain indenture dated as of April
9, 2010, among the Borrower, the guarantors party thereto and The Bank of New York Mellon Trust
Company, Inc., as trustee, (ii) the repayment in full and termination of that certain credit and
guaranty agreement, dated as of May 26, 2010, among Borrower, the guarantors party thereto, Goldman
Sachs Lending Partners L.P., as sole lead arranger, and Goldman Sachs Bank USA, as administrative
agent and collateral agent, (iii) the repayment in full and termination of that certain credit
agreement, dated as of June 9, 2009, among Parent, the lenders party thereto and JPMorgan Chase
Bank, N.A., Toronto Branch, as Administrative Agent, (iv) the payment of the Pre-Merger Special
Dividend (as such term is defined in the 2010 Merger Agreement) made on September 27, 2010,
immediately prior to the consummation of the 2010 Merger, pro rata to Borrower’s shareholders on
the record date of such for such dividend, (v) the consummation of the 2010 Merger, (vi) the
issuance of the Senior Notes and (vii) the payment of all fees and expenses related thereto.



     “Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an
Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (and rounding
upward to the next whole multiple of 1/100 of 1%) (i) (a) the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be the offered rate
which appears on the page of the Reuters Screen which displays an average British Bankers
Association Interest Settlement Rate (such page currently being LIBOR01 page) for deposits (for
delivery on the first day of such period) with a term equivalent to such period in Dollars,
determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the preceding clause (a) does not
appear on such page or service or if such page or service shall cease to be available, the rate per
annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to
be the offered rate on any such other page or other service which displays an average British
Bankers Association Interest Settlement Rate for deposits (for delivery on the first day of such
period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, or (c) in the event the rates
referenced in the preceding clauses (a) and (b) are not available, the rate per annum (rounded to
the nearest 1/100 of 1%) equal to the offered quotation rate to a major bank in the London
interbank market by JPMorgan Chase Bank, N.A. for deposits (for delivery on the first day of the
relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the
applicable Loan, for which the Adjusted Eurodollar Rate is then being determined with maturities
comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest
Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable
Reserve Requirement.



     “Administrative Agent” as defined in the preamble hereto.



     “Adverse Proceeding” means any action, suit, claim, proceeding, hearing (in each case, whether
administrative, judicial or otherwise), governmental investigation or arbitration (whether or not
purportedly on behalf of Parent or any of its Subsidiaries) pursuant to any statute, regulation,
ordinance, common law, equity or any other legal principle or process, or before or by any
Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending
or, to the knowledge of Parent or any of its Subsidiaries, threatened against or affecting Parent
or any of its Subsidiaries or any property of Parent or any of its Subsidiaries.



-2-









 





     “Affected Lender” as defined in Section 2.16(b).



     “Affected Loans” as defined in Section 2.16(b).



     “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) solely for purposes of Section 6.11, to vote 10% or more of the
Securities having ordinary voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.



     “Agent” means each of (a) Administrative Agent, (b) the Syndication Agent, (c) Collateral
Agent and (d) any other Person appointed under the Credit Documents to serve in an agent or similar
capacity.



     “Agent Affiliates” as defined in Section 10.1(b).



     “Aggregate Amounts Due” as defined in Section 2.15.



     “Agreement” means this Credit and Guaranty Agreement, dated as of June [29], 2011 as it may be
amended, restated, supplemented or otherwise modified from time to time.



     “Applicable Law” means any and all current and future applicable laws (including common law
and equity), statutes, by-laws, rules, regulations, orders, ordinances, protocols, codes, treaties,
policies, directions, directives, decrees, restrictions, judgments, decisions, in each case, of,
from or required by any Governmental Authority and, in each case, whether having the force of law
or not.



     “Applicable Margin” shall mean, with respect to Revolving Loans that are Eurodollar Rate
Loans, 3.00% per annum and, with respect to Revolving Loans and Swing Line Loans that are Base Rate
Loans, 2.00% per annum.



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



     “Approved Electronic Communications” means any notice, demand, communication, information,
document or other material that any Credit Party provides to an Agent pursuant to any Credit
Document or the transactions contemplated therein which is distributed to the Agents or to the
Lenders by means of electronic communications pursuant to Section 10.1(b).



-3-









 





     “Arranger” means GSLP, in its capacity as a sole lead arranger.



     “Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, exclusive license (as licensor or sublicensor), transfer or other
disposition to, or any exchange of property with, any Person (other than Parent, Borrower or any
Guarantor Subsidiary), in one transaction or a series of transactions, of all or any part of
Parent’s or any of its Subsidiaries’ businesses, assets or properties of any kind, whether real,
personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired,
leased or licensed, including, the Equity Interests of any of Parent’s Subsidiaries, other than:




     (1) inventory (or other assets, including, for greater certainty, Intellectual
Property) sold, leased or licensed out in the ordinary course of business (excluding any
such sales, leases or licenses out by operations or divisions discontinued or to be
discontinued);




     (2) an issuance of Equity Interests by a Subsidiary of Parent to Parent or to another
Subsidiary (so long as such issuance would otherwise be permitted under Section 6.6) or the
issuance of directors’ qualifying shares or of other nominal amounts of other Equity
Interests that are required to be held by specified Persons under Applicable Law;




     (3) the sale or other disposition of cash or Cash Equivalents;




     (4) a Restricted Junior Payment that is permitted by Section 6.4 or Investment that is
permitted by Section 6.6 hereof;




     (5) the license of Intellectual Property to third persons in the ordinary course of
business;




     (6) the sale, exchange or other disposition of accounts receivable in connection with
the compromise, settlement or collection thereof consistent with past practice;




     (7) leases or subleases entered into in the ordinary course of business, to the extent
that they do not materially interfere with the business of Parent, Borrower or any of their
Subsidiaries;




     (8) the sale or other disposition of Investments under clause (c)(i) and (k) of Section
6.6;




     (9) sales, leases, licenses or other dispositions of other assets for aggregate
consideration not to exceed $25,000,000 for all such sales, leases or licenses in any Fiscal
Year;




     (10) sales, leases, licenses or other dispositions of assets to Parent, Borrower or any
of their respective Subsidiaries; provided that, if any such disposition involves a
Credit Party and a Subsidiary that is not a Credit Party, then such disposition shall be
made in compliance with Section 6.11; and




     (11) the disposition of assets resulting in Cash proceeds satisfying the definition of
“Net Insurance/Condemnation Proceeds” and applied in accordance with Section 2.12(b) hereof.



     For purposes of clarity, “Asset Sale” shall not include the issuance of any Equity Interests
of Parent (including the issuance by any other Person of any warrant, right or option to purchase
or other arrangements or rights to acquire any Equity Interests of Parent).



-4-









 





     “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit D, with such amendments or modifications as may be approved by Administrative Agent.



     “Assignment Effective Date” as defined in Section 10.6(b).



     “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president, vice president (or the
equivalent thereof), chief financial officer (or the equivalent thereof) or treasurer of such
Person; provided that the secretary or assistant secretary of such Person shall have
delivered an incumbency certificate to the Administrative Agent as to the authority of such
Authorized Officer.



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



     “Barbados Credit Party” means each of Biovail Holdings International SRL, Valeant
International (Barbados) SRL, Biovail Laboratories International (Barbados) SRL, Hythe Property
Incorporated and each other Credit Party that is organized under the laws of Barbados.



     “Barbados Guarantee” means the Barbados Guarantee Agreement to be executed by each Barbados
Credit Party substantially in the form of Exhibit H-2, as it may be amended, restated, supplemented
or otherwise modified from time to time.



     “Barbados Security Documents” means each of the documents set forth on Schedule 5.10, as each
of such documents may be amended, restated, supplemented or otherwise modified from time to time
and additional analogous agreements as may be entered into from time to time in accordance with
Section 5.10 hereof and as required by the Collateral Documents.



     “Base Rate” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in
effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively. On any day that Base Rate Loans are outstanding, in no event shall
the Base Rate be less than the sum of (i) the Adjusted Eurodollar Rate that would be payable on
such day for a Eurodollar Rate Loan with a one-month interest period plus (ii) the difference
between the Applicable Margin for Eurodollar Rate Loans and the Applicable Margin for Base Rate
Loans.



     “Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base
Rate.



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



     “BIA” means the Bankruptcy and Insolvency Act (Canada).



     “Biovail Insurance” means Biovail Insurance Incorporated, a company organized under the laws
of Barbados.



     “Biovail Insurance Trust Indenture” means the trust indenture dated as of June 25, 2003,
entered into among Biovail Insurance, Zurich Insurance Company and the other parties thereto.



     “Board of Governors” means the Board of Governors of the United States Federal Reserve System,
or any successor thereto.



-5-









 





     “Borrower” as defined in the preamble hereto.



     “Borrower Convertible Notes” means the Borrower’s 4.0% Convertible Subordinated Notes due
2013, issued under that certain indenture dated as of November 19, 2003, among the Borrower,
Ribapharm Inc. and The Bank of New York Mellon, as trustee.



     “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close and (ii) with
respect to all notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” means any day which is a
Business Day described in clause (i) and which is also a day for trading by and between banks in
Dollar deposits in the London interbank market.



     “Canadian Credit Party” means Parent and each other Credit Party that (i) is organized under
the laws of Canada or any province or territory thereof, (ii) carries on business in Canada, or
(iii) has any title or interest in or to material property in Canada.



     “Canadian Dollars” and the sign “CDN$” mean the lawful money of Canada.



     “Canadian Employee Benefit Plans” means all plans, arrangements, agreements, programs,
policies, practices or undertakings, whether oral or written, formal or informal, funded or
unfunded, insured or uninsured, registered or unregistered to which a Canadian Credit Party is a
party or bound or in which their employees participate or under which a Canadian Credit Party has,
or will have, any liability or contingent liability, or pursuant to which payments are made, or
benefits are provided to, or an entitlement to payment or benefits may arise with respect to any of
their employees or former employees, directors or officers, individuals working on contract with a
Canadian Credit Party or other individuals providing services to a Canadian Credit Party of a kind
normally provided by employees (or any spouses, dependants, survivors or beneficiaries of any such
person), but does not include the Canada Pension Plan that is maintained by the Government of
Canada or any Employee Benefit Plan.



     “Canadian Guarantee” means the Canadian Guarantee to be executed by each Canadian Credit Party
satisfying clause (i) of the definition thereof substantially in the form of Exhibit H-1, as it may
be amended, restated, supplemented or otherwise modified from time to time.



     “Canadian Pension Plan” means all Canadian Employee Benefit Plans that are required to be
registered under Canadian provincial or federal pension benefits standards legislation.



     “Canadian Pension Plan Termination Event” means an event which would entitle a Person (without
the consent of a Canadian Credit Party) to wind up or terminate a Canadian Pension Plan in full or
in part, or the institution of any steps by any Person to withdraw from, terminate participation
in, wind up or order the termination or wind-up of, in full or in part, any Canadian Pension Plan,
or the receipt by a Canadian Credit Party of correspondence from a Governmental Authority relating
to a potential or actual, partial or full, termination or wind-up of any Canadian Pension Plan, or
an event respecting any Canadian Pension Plan which would result in the revocation of the
registration of such Canadian Pension Plan or which could otherwise reasonably be expected to
adversely affect the tax status of any such Canadian Pension Plan.



     “Canadian Pledge and Security Agreement” means the Canadian Pledge and Security Agreement to
be executed by each Canadian Credit Party (satisfying clause (i) of the definition thereof) sub-



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stantially in the form of Exhibit I-2, as it may be amended, restated, supplemented or
otherwise modified from time to time.




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



     “Cash” means money, currency or a credit balance in any demand or Deposit Account.



     “Cash Equivalents” means, as at any date of determination, any of the following: (i)
marketable securities (a) issued or directly and unconditionally guaranteed as to interest and
principal by the United States Government or the Government of Canada, or (b) issued by any agency
of the United States Government or the Government of Canada, the obligations of which are backed by
the full faith and credit of such government, in each case maturing within one year after such
date; (ii) marketable direct obligations issued by any state of the United States of America or any
province of Canada or any political subdivision of any such state or province or any public
instrumentality thereof, in each case maturing within one year after such date and having, at the
time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s;
(iii) commercial paper maturing no more than 270 days from the date of creation thereof and having,
at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody’s; (iv) certificates of deposit or bankers’ acceptances maturing within 180 days after such
date and issued or accepted by any Lender or by (a) any commercial bank organized under the laws of
the United States of America or any state thereof or the District of Columbia that (x) is at least
“adequately capitalized” (as defined in the regulations of its primary Federal banking regulator)
and (y) has Tier 1 capital (as defined in such regulations) of not less than $500,000,000, or (b)
any bank listed on Schedule I of the Bank Act (Canada) that has Tier 1 capital (as defined in OSFI
Guideline A-1 on Capital Adequacy Requirements) of not less than CDN$500,000,000; (v) shares of any
money market mutual fund that (a) has substantially all of its assets invested continuously in the
types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than
$5,000,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s; (vi) fully
collateralized repurchase agreements with a term of not more than 30 days for securities described
in clause (i) above and entered into with a financial institution satisfying the criteria described
in clause (iv) above; and (vii) other short-term investments utilized by Foreign Subsidiaries in
accordance with normal investment practices for cash management in investments of the type
analogous to the foregoing.



     “Cash Management Agreement” shall mean any agreement or arrangement to provide treasury,
depository, overdraft, credit or debit card, purchase card, electronic funds transfer (including
automated clearing house fund transfer services) and other cash management services.



     “CBCA” means the Canada Business Corporations Act.



     “CCAA” means the Companies’ Creditors Arrangement Act (Canada).



     “Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit E.



     “Change of Control” means, at any time, (i) any Person or “group” (within the meaning of Rules
13d-3 and 13d-5 under the Exchange Act or Part XX of the Securities Act (Ontario)) (a) shall have
acquired beneficial ownership of 35% or more on a fully diluted basis of the voting and/or economic
interest in the Equity Interests of Parent or (b) shall have obtained the power (whether or not
exercised) to elect a majority of the members of the board of directors (or similar governing body)
of Parent; (ii) Parent shall cease, directly or indirectly, to beneficially own and control 100% on
a fully diluted basis of the economic and voting interest in the Equity Interests of Borrower; or
(iii) the majority of the seats (other



-7-









 




than vacant seats) on the board of directors (or similar governing body) of Parent shall cease
to be occupied by Persons who either (a) were members of the board of directors (or similar
governing body) of Parent immediately following the closing of the 2010 Merger or (b) were
nominated for election by the board of directors (or similar governing body) of Parent, a majority
of whom were members of the board of directors (or similar governing body) of Parent immediately
following the closing of the 2010 Merger or whose election or nomination for election was
previously approved by a majority of such members.




     “Closing Date” means the date on which the Revolving Loans are made.



     “Closing Date Certificate” means a Closing Date Certificate substantially in the form of
Exhibit F-1.



     “CNI Growth Amount” shall mean, on any date of determination, (a) 50% of Cumulative
Consolidated Net Income minus (b) (1) the aggregate amount at the time of determination of
Restricted Junior Payments made since the Closing Date using the CNI Growth Amount pursuant to
Section 6.4(i) and (2) Investments made since the Closing Date using the CNI Growth Amount pursuant
to Section 6.6(i).



     “Collateral” means, collectively, all of the real, personal and mixed property (including
Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents
as security for the Obligations.



     “Collateral Agent” as defined in the preamble hereto.



     “Collateral Documents” means the Pledge and Security Agreement, the Canadian Pledge and
Security Agreement, the Barbados Security Documents, the U.S. Mortgages, the Canadian Mortgages,
the Intellectual Property Security Agreements and all other instruments, documents and agreements
delivered by or on behalf or at the request of any Credit Party pursuant to this Agreement or any
of the other Credit Documents in order to grant to, or perfect, preserve or protect in favor of,
Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed
property of that Credit Party as security for the Obligations or to protect or preserve the
interest of the Collateral Agent or the Secured Parties therein.



     “Collateral Questionnaire” means a certificate substantially in the form of Exhibit M.



     “Commitment” means any Revolving Commitment.



     “Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit
C.



     “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Parent and its
Subsidiaries on a consolidated basis equal to Consolidated Net Income for such period,
plus, (i) to the extent deducted in determining Consolidated Net Income for such period,
the sum, without duplication of amounts for:




     (a) Consolidated Interest Expense;




     (b) provisions for taxes based on income;




     (c) total depreciation expense;




     (d) total amortization expense;



-8-









 






     (e) fees and expenses incurred in connection with the Transactions or the 2010
Transactions;




     (f) non-recurring expenses or charges;




     (g) (i) restructuring charges (which, for the avoidance of doubt, shall include
retention, severance, systems establishment costs, excess pension charges, contract
termination costs and costs to consolidate facilities and relocate employees) not to exceed
$75,000,000 in any twelve-month period and (ii) restructuring charges (which, for the
avoidance of doubt, shall include retention, severance, systems establishment costs, excess
pension charges, contract termination costs and costs to consolidate facilities and relocate
employees and charges in connection with the termination or settlement of employee stock
options, restricted stock units and performance stock units, in each case in existence as of
the Closing Date) in connection with the Transactions or the 2010 Transactions;




     (h) any extraordinary gain or loss and any expense or charge attributable to the
disposition of discontinued operations;




     (i) fees and expenses in connection with any proposed or actual issuance of any
Indebtedness or Equity Interests, or any proposed or actual acquisitions, investments, asset
sales or divestitures permitted hereunder, in an aggregate amount not to exceed $75,000,000
during the term of this Agreement;




     (j) other non-Cash charges (including impairment charges and other write offs of
intangible assets and goodwill but excluding any such non-Cash charge to the extent that it
represents an accrual or reserve for potential Cash items in any future period or
amortization of a prepaid Cash charge that was paid in a prior period); and




     (k) the amount of costs savings and synergies projected by the Parent in good faith to
be realized on or prior to March 31, 2012 as a result of the 2010 Transactions, net of the
amount of actual cost savings and synergies realized during such period as a result of the
2010 Transactions; provided that (i) such cost savings and synergies are (A)
reasonably identifiable, (B) factually supportable and (C) certified by the chief financial
officer (or the equivalent thereof) of Parent or Borrower and (ii) the aggregate amount of
such cost savings and synergies increasing Consolidated Adjusted EBITDA pursuant to this
clause (k) shall not exceed $350,000,000; minus


(ii) non-Cash gains increasing Consolidated Net Income for such period (excluding any such non-Cash
gain to the extent it represents the reversal of an accrual or reserve for potential Cash items in
any prior period and any such non-Cash gain relating to Cash received in a prior period (or to be
received in a future period)).




     For purposes of this Agreement, Consolidated Adjusted EBITDA for the Fiscal Quarters ended
September 30, 2010, December 31, 2010 and March 31, 2011, shall be as disclosed to the
Administrative Agent in writing on or prior to the Closing Date.



     “Consolidated Interest Expense” means, for any period, (a) total interest expense (including
imputed interest expense in respect of obligations under Capital Leases as determined in accordance
with GAAP as well as interest required to be capitalized in accordance with GAAP) of Parent and its
Subsidiaries on a consolidated basis for such period with respect to all outstanding Indebtedness
of Parent and its Subsidiaries, including all commissions, discounts and other fees and charges
owed with respect to letters of credit and the net effect of Interest Rate Agreements, but
excluding, however, any amount not payable



-9-









 




in Cash during such period and any amounts referred to in Section 2.10(d) payable on or before
the Closing Date, minus (b) total interest income of Parent and its Subsidiaries on a consolidated
basis for such period.




     “Consolidated Net Income” means, for any period, the net income (or loss) of Parent and its
Subsidiaries on a consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP, provided that there will be excluded (a) the income (or loss) of
any Person (other than a Subsidiary of Parent) in which any other Person (other than Parent or any
of its Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to Parent or any of its Subsidiaries by such Person during such period,
(b) except as otherwise expressly provided herein, the income (or loss) of any Person accrued prior
to the date it becomes a Subsidiary of Parent or is merged into or consolidated with Parent or any
of its Subsidiaries or the income (or loss) in respect of the assets of any Person accrued prior to
the date such assets are acquired by Parent or any of its Subsidiaries, (c) the income of any
Subsidiary of Parent (other than any such Subsidiary that is a Credit Party) during such period to
the extent that the declaration or payment of dividends or similar distributions by that Subsidiary
of that income is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable
to that Subsidiary, (d) any after tax gains or losses attributable to Asset Sales and casualty or
condemnation events (of the type described in the definition of “Net Insurance/Condemnation
Proceeds”) or returned surplus assets of any Pension Plan, in each case accrued during such period,
(e) (to the extent not included in clauses (a) through (d) above) any net extraordinary gains or
net extraordinary losses accrued during such period, (f) the cumulative effect of a change in
accounting principles and (g) solely for purposes of calculating the CNI Growth Amount for such
period, amortization or depreciation expense incurred during such period with respect to assets
that are used or useful in the business or lines of business in which Parent and/or its
Subsidiaries are engaged as of the Closing Date or similar or related or ancillary businesses;
provided further that, without duplication of amounts included in clause (a) of the
preceding proviso, the net income of a Specified Joint Venture for such period shall be included in
the calculation of Consolidated Net Income in proportion to Parent and its Subsidiaries’ Equity
Interests in such Specified Joint Venture (provided that the net income of all Specified
Joint Ventures included pursuant to this proviso for any period shall not exceed 10% of the
aggregate Consolidated Net Income for Parent and its Subsidiaries for such period).



     “Consolidated Secured Indebtedness” means, as of any date of determination, Consolidated Total
Debt that is secured by a Lien on any assets of Parent and its Subsidiaries.



     “Consolidated Total Assets” means, as of any date of determination, the total assets of Parent
and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.



     “Consolidated Total Debt” means, as at any date of determination, the aggregate principal
amount of all Indebtedness of Parent and its Subsidiaries determined on a consolidated basis in
accordance with GAAP (net of unrestricted and unencumbered Cash and Cash Equivalents of Parent and
its Subsidiaries as of such date in an amount not to exceed $100,000,000), provided that
the term “Indebtedness” (for purposes of this definition) shall not include (i) any letter of
credit, except to the extent of unreimbursed amounts thereunder, provided that Consolidated
Total Debt shall not include (x) any unreimbursed amount under commercial letters of credit until
one (1) day after such amount is drawn and (y) the Net Mark-to-Market Exposure of any Hedge
Agreement, provided further that, for purposes of the definition of “Consolidated
Total Debt” the Indebtedness in respect of convertible debt securities shall be deemed to be the
aggregate principal amount thereof outstanding as of such date of determination.



-10-









 





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



     “Contribution Agreement” means a contribution agreement substantially in the form of Exhibit L
among the Credit Parties and Administrative Agent.



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



     “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.



     “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit G
delivered by a Credit Party pursuant to Section 5.10 or a similar agreement, in form and substance
reasonably acceptable to the Administrative Agent, pursuant to which any Credit Party becomes a
Guarantor hereunder. Such Counterpart Agreement may, if reasonably requested by Borrower, include
limitations on guarantees applicable to such Subsidiary and required under Applicable Law.



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



     “Credit Document” means any of this Agreement, the Notes, if any, the Canadian Guarantee, the
Barbados Guarantee, the Counterpart Agreements, if any, the Collateral Documents, any documents or
certificates executed by Borrower in favor of Issuing Bank relating to Letters of Credit, all other
documents, instruments or agreements executed and delivered by or on behalf of or at the request of
a Credit Party (or any officer of a Credit Party pursuant to the terms hereof) for the benefit of
any Agent, Issuing Bank or any Lender in connection herewith on or after the date hereof and all
annexes, appendices, schedules and exhibits to any of the foregoing.



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



     “Credit Party” means Parent, Borrower and each Guarantor.



     “Cumulative Consolidated Net Income” means, as of any date of determination, Consolidated Net
Income of the Parent and its Subsidiaries for the period (taken as one accounting period)
commencing on the first day of the Fiscal Quarter of Parent in which the Closing Date occurs and
ending on the last day of the most recently ended Fiscal Quarter or Fiscal Year, as applicable, for
which financial statements required to be delivered pursuant to Section 5.1(a) or Section 5.1(b),
and the related Compliance Certificate required to be delivered pursuant to Section 5.1(c), have
been received by Administrative Agent.



     “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose of hedging the foreign currency risk associated with Parent’s and its
Subsidiaries’ operations and not for speculative purposes.



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



     “Defined Benefit Plan” means any Canadian Employee Benefit Plan which contains a “defined
benefit provision,” as defined in subsection 147.1(1) of the Income Tax Act (Canada).



-11-









 





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



     “Default Period” means, (x) with respect to any Funds Defaulting Lender, the period commencing
on the date that such Lender became a Funds Defaulting Lender and ending on the earliest of: (i)
the date on which all Commitments are cancelled or terminated and/or the Obligations are declared
or become immediately due and payable, (ii) the date on which (a) the Default Excess with respect
to such Defaulting Lender shall have been reduced to zero (whether by the funding by such
Defaulting Lender of any Defaulted Loans of such Defaulting Lender or by the non pro rata
application of any voluntary or mandatory prepayments of the Loans in accordance with the terms of
Section 2.11 or Section 2.12 or by a combination thereof) or such Defaulting Lender shall have paid
all amounts due under Section 9.6, as the case may be, and (b) such Defaulting Lender shall have
delivered to Borrower and Administrative Agent a written reaffirmation of its intention to honor
its obligations hereunder with respect to its Commitments, and (iii) the date on which Borrower,
Administrative Agent and Requisite Lenders waive all failures of such Defaulting Lender to fund or
make payments required hereunder in writing; and (y) with respect to any Insolvency Defaulting
Lender, the period commencing on the date such Lender became an Insolvency Defaulting Lender and
ending on the earliest of the following dates: (i) the date on which all Commitments are cancelled
or terminated and/or the Obligations are declared or become immediately due and payable and (ii)
the date that such Defaulting Lender ceases to hold any portion of the Loans or Commitments.



     “Defaulted Loan” means any Revolving Loan or portion of any unreimbursed payment under Section
2.2(b)(v) or 2.3(e) not made by any Lender when required hereunder.



     “Defaulting Lender” means any Funds Defaulting Lender or Insolvency Defaulting Lender.



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



     “Designated Noncash Consideration” means non-Cash consideration received by Parent or any of
its Subsidiaries in connection with an Asset Sale that is designated by Parent as Designated
Noncash Consideration, less the amount of Cash received in connection with a subsequent sale of
such Designated Noncash Consideration, which Cash shall be considered Net Asset Sale Proceeds
received as of such date and shall be applied pursuant to Section 2.12(a).



     “Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms
of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily
redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity
Interests), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of
the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified
Equity Interests), in whole or in part, (iii) provides for scheduled payments or dividends in cash,
or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that
is 91 days after the latest Revolving Commitment Termination Date, except, in the case of clauses
(i) and (ii), if as a result of a change of control or asset sale, so long as any rights of the
holders thereof upon the occurrence of such a change of control or asset sale event are subject to
the prior



-12-









 




payment in full of all Obligations (other than contingent amounts not yet due), the
cancellation or expiration of all Letters of Credit and the termination of the Commitments).




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



     “Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of
America, any State thereof or the District of Columbia.



     “Eligible Assignee” means any Person other than a natural Person that is (i) a Lender, an
Affiliate of any Lender or a Related Fund (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof) or (ii) a commercial bank, insurance company, investment
or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under
the Securities Act or as defined under the Canadian Securities Administrators National Instrument
45-106, as amended, supplemented, replaced or otherwise modified from time to time) and which
extends credit or buys loans in the ordinary course of business; provided, neither any
Credit Party nor any Affiliate thereof shall be an Eligible Assignee.



     “Employee Benefit Plan” means, in respect of any Credit Party, any “employee benefit plan” as
defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or
required to be contributed by, Parent, Borrower, any of their respective Subsidiaries or any of
their respective ERISA Affiliates in each case other than any Canadian Employee Benefit Plan.



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



     “Environmental Laws” means the common law, any and all foreign or domestic, federal, state or
provincial (or any subdivision of either of them) statutes, ordinances, by-laws, orders, rules,
codes, guidelines, regulations, judgments, Governmental Authorizations, or any other requirements
of Governmental Authorities relating to (i) the generation, use, storage, treatment, presence,
handling, abatement, remediation, transportation or Release or threat of Release of Hazardous
Materials; (ii) as it relates to exposure to Hazardous Materials, occupational safety and health
and industrial hygiene; or (iii) land use or the protection of the environment, natural resources,
or human, plant or animal safety, health or welfare, in each of cases (i) through (iii), in any
manner applicable to Parent or any of its Subsidiaries or any Facility.



     “Equity Interests” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or rights to acquire
any of the foregoing (excluding convertible securities to the extent constituting “Indebtedness”
for purposes of this Agreement).



     “Equivalent Amount” means, at any time, (a) with respect to Dollars or an amount denominated
in Dollars, such amount and (b) with respect to an amount denominated in a currency other than
Dollars, the equivalent amount thereof in Dollars at such time on the basis of the Spot Rate as of
such time for the purchase of Dollars with such currency.



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



-13-









 





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



     “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30 day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 430(j) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by Parent, Borrower, any of their
Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more
contributing sponsors or the termination of any such Pension Plan resulting in liability to Parent,
Borrower, any of their Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension
Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the
imposition of liability on Parent, Borrower, any of their Subsidiaries or any of their respective
ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of Parent, Borrower, any of their Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of
Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability
therefore, or the receipt by Parent, Borrower, any of their Subsidiaries or any of their respective
ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under
Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which could give rise
to the imposition on Parent, Borrower, any of their Subsidiaries or any of their respective ERISA
Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue
Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any
Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof,
or against Parent, Borrower, any of their Subsidiaries or any of their respective ERISA Affiliates
in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of
notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the
Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition
of a Lien on the assets of Parent, Borrower, any of their Subsidiaries or any of their respective
ERISA Affiliates pursuant to Section 430(k) of the Internal Revenue Code or ERISA or a violation of
Section 436 of the Internal Revenue Code by Parent, Borrower, any of their Subsidiaries or any of
their respective ERISA Affiliates.



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     “Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the
Adjusted Eurodollar Rate.



     “Event of Default” means each of the conditions or events set forth in Section 8.1.



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



     “Excluded Subsidiary” means (a) any Subsidiary that is not a wholly-owned Subsidiary, to the
extent such Subsidiary is prohibited by contractual requirements, including the Organizational
Documents of such Subsidiary (other than contractual requirements entered into by such Subsidiary
to avoid guaranteeing the Obligations) from guaranteeing the Obligations and (b) any Immaterial
Subsidiary.



     “Excluded Taxes” means, with respect to any Agent, any Lender (including each Swing Line
Lender and Issuing Bank) or any other recipient of any payment to be made by or on account of any
obligation of any Credit Party hereunder or under any other Credit Document, (a) any Taxes imposed
on (or measured by) its net income (or any franchise or similar Taxes in lieu thereof) by a
jurisdiction in which the recipient is organized, resident or, in the case of any Lender, in which
its lending office is located, (b) any branch profits tax within the meaning of section 884(a) of
the Internal Revenue Code or similar Tax imposed by any jurisdiction described in clause (a), (c)
in the case of a Non-U.S. Lender, any U.S. federal withholding tax that is imposed pursuant to any
law in effect at the time such Lender becomes a party to this Agreement (or designates a new
lending office), except to the extent that such Lender (or its assignor, if any) was entitled, at
the time of designation of a new applicable lending office (or assignment), to receive additional
amounts with respect to such United States federal withholding Tax pursuant to Section 2.18(b), (d)
any U.S. federal withholding tax under current Sections 1471 through 1474 of the Internal Revenue
Code or any amended version or successor provision that is substantively comparable to and, in each
case, any regulations promulgated thereunder and any interpretation and other guidance issued in
connection therewith and (e) any withholding tax (including U.S. federal backup withholding tax)
that is attributable to a Lender’s failure to comply with Section 2.18(d).



     “Extending Lender” as defined in Section 10.5(d).



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



     “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code.



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



     “Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of the chief financial officer (or the equivalent
thereof) of Parent



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that such financial statements fairly present, in all material respects, the financial
condition of Parent and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to changes resulting from audit
and normal year end adjustments.




     “Financial Plan” as defined in Section 5.1(i).



     “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than any Permitted Lien.



     “First-Tier Foreign Subsidiary” means a Foreign Subsidiary that is a direct Subsidiary of (x)
Borrower or (y) any Guarantor that is a Domestic Subsidiary of Borrower.



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



     “Fiscal Year” means the fiscal year of Parent and its Subsidiaries ending on December 31 of
each calendar year.



     “Flood Hazard Property” means any Real Estate Asset subject to a Mortgage in favor of
Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards.



     “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



     “Funding Notice” means a notice substantially in the form of Exhibit A-1.



     “Funds Defaulting Lender” means any Lender who (i) other than at the direction or request of
any regulatory agency or authority, defaults in its obligation to fund any Revolving Loan or its
portion of any unreimbursed payment under Section 2.2(b)(v) or 2.3(e) or its Pro Rata Share of any
payment under Section 9.6, (ii) has notified Borrower or Administrative Agent in writing, or has
made a public statement, that it does not intend to comply with its obligation to fund any
Revolving Loan or its portion of any unreimbursed payment under Section 2.2(b)(v) or 2.3(e) or its
Pro Rata Share of any payment under Section 9.6, (iii) has failed to confirm that it will comply
with its obligation to fund any Revolving Loan or its portion of any unreimbursed payment under
Section 2.2(b)(v) or 2.3(e) or its Pro Rata Share of any payment under Section 9.6 within five
Business Days after written request for such confirmation from Administrative Agent (which request
may only be made after all conditions to funding have been satisfied); provided that such
Lender shall cease to be a Funds Defaulting Lender upon receipt of such confirmation by
Administrative Agent, or (iv) has failed to pay to Administrative Agent or any other Lender any
amount (other than its portion of any Revolving Loan or amounts required to be paid under Section
2.2(b)(v), 2.3(e) or 9.6 or any other amount that is de minimis) due under any Credit Document
within five Business Days of the date due, unless such amount is the subject of a good faith
dispute.



     “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.



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



     “Governmental Authority” means any federal, state, provincial, territorial, municipal,
national or other government, governmental department, commission, board, bureau, court, agency,
organization, central bank, tribunal or instrumentality or political subdivision thereof or any
other entity, officer or



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examiner exercising executive, legislative, judicial, regulatory, governmental
(quasi-governmental) or administrative functions of or pertaining to any government or any court or
central bank, in each case whether associated with a state of the United States, the United States,
a province or territory of Canada, Canada, Barbados, or a foreign entity or government.




     “Governmental Authorization” means any permit, license, approval, authorization, plan,
directive, direction, certificate, accreditation, registration, notice, agreement, consent order or
consent decree or other like instrument of, from or required by any Governmental Authority.



     “Grantor” means Parent, Borrower and each of their Subsidiaries, in each case granting a Lien
to Collateral Agent to secure any Obligations.



     “GSLP” as defined in the preamble hereto.



     “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase of) any security
for the payment thereof, (b) to purchase or lease property, securities or services for the purpose
of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation, provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of business. The term
“Guarantee” as a verb has a corresponding meaning.



     “Guaranteed Obligations” as defined in Section 7.1.



     “Guarantor” means, (i) on the Closing Date, Parent and each of its Subsidiaries listed on
Schedule 1.1(b) and (ii) thereafter, any Person that executes a Counterpart Agreement, a Canadian
Guarantee or a Barbados Guarantee pursuant to Section 5.10.



     “Guarantor Subsidiary” means each Guarantor other than Parent.



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



     “Hazardous Materials” means any chemical, material or substance: (i) that is prohibited,
limited, restricted or otherwise regulated under Environmental Laws, (ii) that may or could
reasonably be expected to pose a hazard to the health and safety of the owners, occupants or any
Persons in the vicinity of any Facility or to the indoor or outdoor environment, or (iii) that are
included in the definition of “hazardous substances,” “waste,” “hazardous waste,” “hazardous
materials,” “toxic substances,” “pollutants,” “polluting substance,” “contaminants,”
“contamination,” “dangerous goods,” “deleterious substances” or words of similar import under any
Environmental Law.



     “Hedge Agreement” means any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference to, one or more
rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or any similar
transaction or combination of these transactions; provided that (x) no phantom stock or
similar plan providing for payments only on



-17-









 




account of services provided by current or former directors, officers, employees or
consultants of Parent, Borrower or any of their respective Subsidiaries shall be a Hedge Agreement,
(y) such agreement has not been entered into for speculative purposes and (z) such agreements are
with a Lender Counterparty.




     “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such Applicable Law which may
hereafter be in effect and which allow a higher maximum nonusurious interest rate than Applicable
Law now allows.



     “Historical Financial Statements” means as of the Closing Date, (A) (i) the audited
consolidated financial statements of Borrower and its Subsidiaries, for the immediately preceding
three Fiscal Years ended more than 90 days prior to the Closing Date, consisting of consolidated
balance sheets and the related consolidated statements of income, stockholders’ equity and cash
flows for such Fiscal Years, and (ii) the unaudited consolidated financial statements of Borrower
and its Subsidiaries as of the most recent ended Fiscal Quarter after the date of the most recent
audited consolidated financial statements and ended at least 45 days prior to the Closing Date,
consisting of a consolidated balance sheet and the related consolidated statements of income and
cash flows for the three-, six- or nine-month period, as applicable, ending on such date, and (B)
(i) the audited consolidated financial statements of Parent and its Subsidiaries (other than
Borrower and its Subsidiaries), for the immediately preceding three Fiscal Years ended more than 90
days prior to the Closing Date, consisting of consolidated balance sheets and the related
consolidated statements of income, stockholders’ equity and cash flows for such Fiscal Years, and
(ii) the unaudited consolidated financial statements of Parent and its Subsidiaries (other than
Borrower and its Subsidiaries) as of the most recent ended Fiscal Quarter ended after the date of
the most recent audited consolidated financial statements and ended at least 45 days prior to the
Closing Date, consisting of a consolidated balance sheet and the related consolidated statements of
income and cash flows for the three-, six- or nine-month period, as applicable, ending on such
date, and, in each case, certified by the chief financial officer of Borrower that they fairly
present, in all material respects, the financial condition of Borrower and its Subsidiaries and
Parent and its Subsidiaries, respectively, as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to changes resulting from audit
and normal year end adjustments and the absence of footnotes in the case of the unaudited
consolidated financial statements.



     “Immaterial Subsidiary” means any Subsidiary of Parent, designated in writing to
Administrative Agent by Parent (or Borrower) as an “Immaterial Subsidiary,” that, individually and
collectively with all other Immaterial Subsidiaries as of the relevant date of determination, has
(i) total assets as of such date of less than 7.5% of Consolidated Total Assets as of such date and
(ii) total revenues for the ended four-fiscal-quarter period most recently ended prior to such date
of less than 7.5% of the consolidated total revenues of Parent and its Subsidiaries for such
period. It is understood and agreed that Parent (or Borrower) may, from time to time, redesignate
any Immaterial Subsidiary as a non-Immaterial Subsidiary to the extent that the requirements set
forth in Section 5.10 are satisfied with respect to such Subsidiary at or prior to the date of such
redesignation.



     “Increased Cost Lender” as defined in Section 2.21.



     “Indebtedness” means, as applied to any Person, without duplication, (i) all indebtedness of
such Person for borrowed money (including for the avoidance of doubt, convertible debt securities);
(ii) that portion of obligations of such Person with respect to Capital Leases that is properly
classified as a liability on a balance sheet of such Person in conformity with GAAP; (iii) notes
payable and drafts accepted representing extensions of credit to such Person whether or not
representing obligations for borrowed



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money; (iv) any obligation of such Person owed for all or any part of the deferred purchase
price of property or services including any earn out obligations to the extent required to be
reflected on a consolidated balance sheet of Parent prepared in accordance with GAAP (excluding any
such obligations incurred under ERISA), which purchase price is (a) due more than twelve months
from the date of incurrence of the obligation in respect thereof or (b) evidenced by a note or
similar written instrument; (v) all indebtedness of such Person secured by any Lien on any property
or asset owned or held by such Person regardless of whether the indebtedness secured thereby shall
have been assumed by such Person or is nonrecourse to the credit of such Person; (vi) the face
amount of any letter of credit issued for the account of such Person or as to which that Person is
otherwise liable for reimbursement of drawings; (vii) Disqualified Equity Interests issued by such
Person; (viii) the direct or indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co making, discounting with recourse or sale with
recourse by such Person of the obligation of another Person to the extent such obligation would
constitute Indebtedness pursuant to any of clauses (i) through (vii) or clause (xi) hereof; (ix)
any obligation of such Person the primary purpose or intent of which is to provide assurance to an
obligee that the obligation constituting Indebtedness pursuant to clauses (i) through (vii) or (xi)
hereof of the obligor thereof will be paid or discharged, or any agreement relating thereto will be
complied with, or the holders thereof will be protected (in whole or in part) against loss in
respect thereof; (x) any liability of such Person for an obligation constituting Indebtedness
pursuant to clauses (i) through (vii) or (xi) hereof of another through any agreement (contingent
or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation (whether in the form
of loans, advances, stock purchases, capital contributions or otherwise) or (b) to maintain the
solvency or any balance sheet item, level of income or financial condition of another if, in the
case of any agreement described under subclauses (a) or (b) of this clause (x), the primary purpose
or intent thereof is as described in clause (ix) above; and (xi) the Net Mark-to-Market Exposure of
any Hedge Agreement. The amount of Indebtedness of any Person for purposes of clause (v) above
shall (unless such Indebtedness has been assumed by such Person) be deemed to be equal to the
lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of
the property encumbered thereby as determined by such Person in good faith.




     “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (expectation, reliance or otherwise, and including natural resource damages), penalties,
claims (including Environmental Claims), fines, orders, actions, judgments, suits, costs (including
the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation
or other response action necessary to remove, remediate, clean up or abate any Release or threat of
Release of Hazardous Materials) and expenses (including the reasonable fees and disbursements of
counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding
or hearing commenced or threatened by any Person, whether or not any such Indemnitee shall be
designated as a party or a potential party thereto, and any fees or expenses incurred by
Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether
based on any Applicable Law or on contract or otherwise, that may be issued to, imposed on,
incurred or suffered by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Credit Documents or the transactions contemplated
hereby or thereby (including the Lenders’ agreement to make Credit Extensions, the syndication of
the credit facilities provided for herein or the use or intended use of the proceeds thereof, or
any enforcement of any of the Credit Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Guaranty)) or (ii) any
Environmental Claim or any Release or threat of Release of Hazardous Materials related to Parent,
Borrower or any of their respective Subsidiaries, including such claims or activities relating to
or arising from, directly or indirectly, any past or present activity, operation, land ownership,
occupation or use, or practice by or of Parent, Borrower or any of their respective Subsidiaries.




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     “Indemnified Taxes” means any Taxes other than Excluded Taxes and Other Taxes.



     “Indemnitee” as defined in Section 10.3(a).



     “Indemnitee Agent Party” as defined in Section 9.6.



     “Insolvency Defaulting Lender” means any Lender with a Revolving Commitment who (i) has been
adjudicated as, or determined by any Governmental Authority having regulatory authority over such
Person or its assets to be, insolvent, (ii) becomes the subject of an insolvency, bankruptcy,
dissolution, liquidation or reorganization proceeding, or (iii) becomes the subject of an
appointment of a receiver, intervenor or conservator under any Insolvency Laws now or hereafter in
effect; provided that a Lender shall not be an Insolvency Defaulting Lender solely by
virtue of the ownership or acquisition by a Governmental Authority or an instrumentality thereof of
any Equity Interest in such Lender or a parent company thereof.



     “Insolvency Laws” means any of the Bankruptcy Code, the BIA, the CCAA, the WURA and the CBCA,
and any other applicable insolvency, corporate arrangement or restructuring or other similar law of
any jurisdiction including any law of any jurisdiction permitting a debtor to obtain a stay or a
compromise of the claims of its creditors against it.



     “Intellectual Property” as defined in the Pledge and Security Agreement, the Canadian Pledge
and Security Agreement and the Barbados Security Documents, as applicable.



     “Intellectual Property Asset” means, at the time of determination, any interest (fee, license
or otherwise) then owned by any Credit Party in any Intellectual Property.



     “Intellectual Property Security Agreements” has the meaning assigned to that term in the
Pledge and Security Agreement or the Canadian Pledge and Security Agreement, as applicable.



     “Intercompany Note” means a promissory note substantially in the form of Exhibit J-1
evidencing Indebtedness owed among Credit Parties and their Subsidiaries.



     “Interest Payment Date” means with respect to (i) any Loan that is a Base Rate Loan, each
March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to
occur after the Closing Date, and the final maturity date of such Loan; and (ii) any Loan that is a
Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan;
provided that, in the case of each Interest Period of longer than three months “Interest
Payment Date” shall also include each date that is three months, or an integral multiple thereof,
after the commencement of such Interest Period.



     “Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of one,
two, three or six months (or interest periods of nine or twelve months if mutually agreed upon by
Borrower and the applicable Lenders), as selected by Borrower in the applicable Funding Notice or
Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or
Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the
day on which the immediately preceding Interest Period expires; provided that, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day unless no further Business Day occurs in such
month, in which case such Interest Period shall expire on the immediately preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (c) of this definition, end on the last Business Day of a



-20-









 




calendar month; and (c) no Interest Period with respect to any portion of the Revolving Loans
shall extend beyond the Revolving Commitment Termination Date.




     “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the interest rate exposure associated with
Parent’s and its Subsidiaries’ operations and not for speculative purposes.



     “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.



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



     “Investment” means (i) any direct or indirect purchase or other acquisition by Parent or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than Borrower or a Guarantor Subsidiary); (ii) any direct or indirect purchase or other
acquisition for value, by any Subsidiary of Parent from any Person (other than Parent or any other
Credit Party), of any Equity Interests of such Person; (iii) any direct or indirect loan, advance
(other than advances to employees for moving, entertainment and travel expenses, drawing accounts
and similar expenditures in the ordinary course of business) or capital contributions by Parent or
any of its Subsidiaries to any other Person (other than Parent or any other Credit Party),
including all indebtedness and accounts receivable from that other Person that are not current
assets or did not arise from sales to that other Person in the ordinary course of business and (iv)
all investments consisting of any exchange traded or over the counter derivative transaction,
including any Interest Rate Agreement and Currency Agreement, whether entered into for hedging or
speculative purposes. The amount of any Investment shall be the original cost of such Investment
plus the cost of all additions thereto, without any adjustments for increases or decreases in
value, or write ups, write downs or write offs with respect to such Investment, less an amount
equal to any returns of capital or sale proceeds actually received in cash in respect of any such
Investment (which amount shall not exceed the amount of such Investment valued at cost at the time
such Investment was made).



     “Issuance Notice” means an Issuance Notice in form and substance reasonably satisfactory to
Issuing Bank.



     “Issuing Bank” means a Lender reasonably acceptable to the Administrative Agent (such consent
not to be unreasonably withheld or delayed) that has entered into an L/C Issuer Agreement, in each
case, in its capacity, as Issuing Bank hereunder, together with its permitted successors and
assigns in such capacity.



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



     “Judgment Conversion Date” as defined in Section 10.24(a).



     “Judgment Currency” as defined in Section 10.24(a).



     “L/C Issuer Agreement” means an agreement between Borrower and the Issuing Bank in a form
reasonably satisfactory to Administrative Agent.



-21-









 





     “Leasehold Property” means any leasehold interest of any Credit Party as lessee under any
lease of real property, other than any such leasehold interest designated from time to time by
Collateral Agent in its sole discretion as not being required to be included in the Collateral.



     “Lender” means each financial institution listed on the signature pages hereto as a Lender,
and any other Person that becomes a party hereto pursuant to an Assignment Agreement.



     “Lender Counterparty” means, at any time, each Person that is a counterparty to a Hedge
Agreement or Cash Management Agreement, provided that such Person is a Lender, an Agent, or
an Affiliate of a Lender or Agent at such time or was a Lender, an Agent or an Affiliate of a
Lender or Agent, at the time such Hedge Agreement or Cash Management Agreement was entered into or,
in the case of any such Hedge Agreement or Cash Management Agreement in effect as of the Closing
Date, is a Lender, an Agent or an Affiliate of a Lender or an Agent as of the Closing Date.



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



     “Letter of Credit Sublimit” means, as of any date of determination, the lesser of (i)
$10,000,000 and (ii) the aggregate unused amount of the Revolving Commitments then in effect.



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



     “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated
Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four Fiscal Quarter period
ending on such date.



     “Lien” means (i) any lien, mortgage, hypothecation, deed of trust, pledge, assignment,
security interest, charge, deposit arrangement or encumbrance of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention agreement, and any
lease or license in the nature thereof) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing and (ii) in the case of Securities, any
purchase option, call or similar right of a third party with respect to such Securities.



     “Loan” means any of a Revolving Loan and a Swing Line Loan.



     “Material Adverse Effect” means a material adverse effect on (i) the business, operations,
properties, assets or condition (financial or otherwise) of Parent and its Subsidiaries taken as a
whole; (ii) the ability of any Credit Party to fully and timely pay its Obligations when due or
(iii) the rights, remedies and benefits available to, or conferred upon, any Agent and any Lender
or any Secured Party under any Credit Document.



     “Material Real Estate Asset” means any fee owned Real Estate Asset having a fair market value
in excess of $20,000,000; provided that in no event shall Material Real Estate Assets
include the Real Estate Assets of Parent and its Subsidiaries owned as of the Closing Date and
located in (a) Carolina, Puerto Rico and (b) Christ Church, Barbados.



     “Moody’s” means Moody’s Investors Service, Inc.



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     “Mortgage” means a mortgage, deed of trust, debenture or similar document creating a Lien on
real property, in form and substance reasonably satisfactory to the Collateral Agent, as it may be
amended, restated, supplemented or otherwise modified from time to time.



     “Mortgaged Property” as defined in Section 3.1(e)(i).



     “Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as
defined in Section 3(37) of ERISA.



     “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of Parent and its Subsidiaries
that complies with the applicable requirements under the Exchange Act for a “Management Discussion
and Analysis” for the applicable Fiscal Quarter or Fiscal Year and for the period from the
beginning of the then current Fiscal Year to the end of such period to which such financial
statements relate.



     “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise (including by way of milestone payment), but only as and when so
received) received by Parent or any of its Subsidiaries from such Asset Sale, minus (ii)
any reasonable fees and out-of-pocket expenses and bona fide direct costs incurred in connection
with such Asset Sale, including (a) income or gains taxes payable by the seller as a result of any
gain recognized in connection with such Asset Sale, (b) payment of the outstanding principal amount
of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is
secured by a Lien on the stock or assets in question and that is required to be repaid under the
terms thereof as a result of such Asset Sale, (c) a reasonable reserve for any indemnification
payments (fixed or contingent) attributable to seller’s indemnities, contributions, cost sharings
and representations and warranties to purchaser or any advisor in respect of such Asset Sale
undertaken by Parent or any of its Subsidiaries in connection with such Asset Sale and (d) fees
paid for legal and financial advisory services in connection with such Asset Sale; provided
that proceeds from Asset Sales permitted under clauses (e) or (g) of Section 6.8, shall not be
included in the calculation of proceeds for purposes of this definition except as expressly set
forth in such clauses.



     “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by Parent or any of its Subsidiaries (a) under any property damage or casualty
insurance policies in respect of any covered loss thereunder or (b) as a result of the taking of
any assets of Parent or any of its Subsidiaries by any Person pursuant to the power of eminent
domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with
such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs
incurred by Parent or any of its Subsidiaries in connection with the adjustment or settlement of
any claims of Parent or such Subsidiary in respect thereof, and (b) any reasonable fees and
out-of-pocket expenses and bona fide direct costs incurred in connection with any sale of such
assets as referred to in clause (i)(b) of this definition, including income taxes payable as a
result of any gain recognized in connection therewith.



     “Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the excess
(if any) of all unrealized losses over all unrealized profits of such Person arising from Hedge
Agreements. As used in this definition, “unrealized losses” means the fair market value of the
cost to such Person of replacing such Hedge Agreement as of the date of determination (assuming the
Hedge Agreement were to be terminated as of that date), and “unrealized profits” means the fair
market value of the gain to such Person of replacing such Hedge Agreement as of the date of
determination (assuming such Hedge Agreement were to be terminated as of that date).



     “Non-Consenting Lender” as defined in Section 2.21.



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     “Non-Public Information” means information which has not been disseminated in a manner making
it available to investors generally, within the meaning of Regulation FD.



     “Non-U.S. Lender” as defined in Section 2.18(d).



     “Note” means a Revolving Loan Note or a Swing Line Note.



     “Notice” means a Funding Notice, an Issuance Notice, or a Conversion/Continuation Notice.



     “Obligation Currency” as defined in Section 10.24(a).



     “Obligations” means all obligations of every nature of each Credit Party owing to any Secured
Party (including former Agents) (but limited, in the case of obligations in respect of Hedge
Agreement and Cash Management Agreements, to those obligations owing to Lender Counterparties)
under any Credit Document, Hedge Agreement or Cash Management Agreement whether for principal,
interest (including interest which, but for the filing of a petition in bankruptcy with respect to
such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against
such Credit Party for such interest in the related bankruptcy proceeding), reimbursement of amounts
drawn under Letters of Credit, payments for early termination of Hedge Agreements or Cash
Management Agreements, fees, expenses, indemnification or otherwise.



     “Obligee Guarantor” as defined in Section 7.7.



     “Organizational Documents” means (i) with respect to any corporation or company or society
with restricted liability, its certificate, memorandum or articles of incorporation, organization,
association or amalgamation or other constituting documents, in each case, as amended, and its by
laws, as amended, (ii) with respect to any limited partnership, its certificate or declaration of
limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to
any general partnership, its partnership agreement, as amended, and (iv) with respect to any
limited liability company, its articles of organization, as amended, and its operating agreement,
as amended. In the event any term or condition of this Agreement or any other Credit Document
requires any Organizational Document to be certified by a Governmental Authority, the reference to
any such “Organizational Document” shall only be to a document of a type customarily certified by
such Governmental Authority.



     “Other Taxes” as defined in Section 2.18(e).



     “Parent” as defined in the preamble hereto.



     “Parent Convertible Notes” means the Parent’s 5.375% Senior Convertible Notes due 2014, issued
under that certain indenture dated as of June 10, 2009, among the Parent, The Bank of New York
Mellon, as trustee, and BNY Trust Company of Canada, as co-trustee.



     “Participant Register” as defined in Section 10.06(g)(2).



     “PATRIOT Act” as defined in Section 3.1(m).



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



     “PCTFA” as defined in Section 4.22.



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     “Pension Plan” means, in respect of any Credit Party, any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of
ERISA.



     “Permitted Acquisition” means any acquisition by Parent or any of its wholly owned
Subsidiaries, whether by purchase, merger, amalgamation or otherwise, of all or substantially all
of the assets of, all of the Equity Interests of, or a business line or unit or a division of, or a
product or a product candidate of, any Person; provided that:




     (i) immediately prior to, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom;




     (ii) all transactions in connection therewith shall be consummated, in all material
respects, in accordance with all Applicable Law and in conformity with all applicable
Governmental Authorizations;




     (iii) in the case of the acquisition of Equity Interests, all of the Equity Interests
(except for any such Securities in the nature of directors’ qualifying shares required
pursuant to Applicable Law) acquired or otherwise issued by such Person or any newly formed
Subsidiary of Parent in connection with such acquisition shall be owned 100% by Parent,
Borrower or a Guarantor Subsidiary;




     (iv) Parent and its Subsidiaries shall be in compliance with the financial covenant set
forth in Section 6.7 on a Pro Forma Basis (whether or not such covenant is applicable at
such time in accordance with its terms) after giving effect to such acquisition as of the
last day of the Fiscal Quarter most recently ended for which financial statements are
required to have been delivered pursuant to Section 5.1(a) or 5.1(b), as applicable (as
determined in accordance with Section 1.5);




     (v) in the case of an acquisition involving aggregate consideration in excess of
$50,000,000, Borrower shall have delivered to Administrative Agent at least two (2) Business
Days prior to such proposed acquisition, (i) a Compliance Certificate evidencing compliance
with Section 6.7 as required under clause (iv) above and (ii), all other relevant material
financial information with respect to such acquired assets, including the aggregate
consideration for such acquisition and any other information required to demonstrate
compliance with Section 6.7; and




     (vi) any Person or assets or division as acquired in accordance herewith shall be in
same business or lines of business in which Parent and/or its Subsidiaries are engaged as of
the Closing Date or similar or related or ancillary businesses.



     “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.



     “Permitted Secured Notes” means debt securities of any Credit Party that are secured by a Lien
ranking pari passu with or junior to the Liens securing the Obligations; provided that (a)
the terms of such debt securities do not provide for any scheduled repayment, mandatory redemption
or sinking fund obligations prior to the latest Revolving Commitment Termination Date (other than
customary offers to repurchase upon a change of control, asset sale or event of loss and customary
acceleration rights after an event of default), (b) the covenants, events of default, guarantees,
collateral and other terms of which (other than interest rate and redemption premiums), taken as a
whole, are not more restrictive to Parent, Borrower and their respective Subsidiaries than those in
this Agreement, (c) the Borrower will cause the collateral agent or representatives for the holders
of Permitted Secured Notes to enter into an intercreditor



-25-









 




agreement with Collateral Agent in form and substance usual and customary for transactions of
this type and otherwise satisfactory to Collateral Agent in its sole discretion, (d) at the time
that any such Permitted Secured Notes are issued (and after giving effect thereto) no Default or
Event of Default shall exist, be continuing or result therefrom, (e) on a Pro Forma Basis after
giving effect to the incurrence of such Permitted Secured Notes (and the use of proceeds thereof),
Parent shall be in compliance with the covenant set forth in Section 6.7 as of the last day of the
most recently ended Fiscal Quarter for which financial statements were required to have been
delivered pursuant to Section 5.1(a) or (b), as applicable, in each case, as if such Permitted
Secured Notes had been outstanding on the last day of such Fiscal Quarter (assuming the covenant
set forth in Section 6.7 applies regardless of whether Revolving Loans are outstanding at the time
of such determination) and (f) no Subsidiary of Borrower (other than a Guarantor) shall be an
obligor and no Permitted Secured Notes shall be secured by any collateral other than the
Collateral.




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



     “Platform” as defined in Section 5.1(n).



     “Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by
Borrower and each Guarantor substantially in the form of Exhibit I-1, as it may be amended,
restated, supplemented or otherwise modified from time to time.



     “PPSA” means the Personal Property Security Act (Ontario), provided, however,
if the validity, attachment, perfection (or opposability), effect of perfection or of
non-perfection or priority of Collateral Agent’s security interest in any Collateral are governed
by the personal property security laws or laws relating to personal or movable property of any
jurisdiction other than Ontario, PPSA shall also include those personal property security laws or
laws relating to movable property in such other jurisdiction for the purpose of the provisions
hereof relating to such validity, attachment, perfection (or opposability), effect of perfection or
of non-perfection or priority and for the definitions related to such provisions.



     “Prescription Drug Business” means the business or businesses comprising the Parent’s and/or
its Subsidiaries’ businesses in Europe and Latin America as of the Closing Date.



     “Prime Rate” means the rate of interest quoted in the print edition of The Wall Street
Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate
loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from time to
time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. Any Agent or any other Lender may otherwise make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.



     “Principal Office” means, for each of Administrative Agent, Swing Line Lender and Issuing
Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office
of a third party or sub-agent, as appropriate, as such Person may from time to time designate in
writing to Borrower, Administrative Agent and each Lender.



     “Projections” as defined in Section 4.8.



     “Pro Forma Basis” means, with respect to the calculation of the financial covenant contained
in Section 6.7 or for purposes of determining the Leverage Ratio or Secured Leverage Ratio as of
any date,
that such calculation shall give pro forma effect to all Permitted Acquisitions and all sales,
transfers or



-26-









 




other dispositions of any material assets outside the ordinary course of business that
have occurred during (or, if such calculation is being made for the purpose of determining whether
any proposed acquisition will constitute (or will be permitted as) a Permitted Acquisition or any
Indebtedness or Liens may be incurred, since the beginning of) the four consecutive Fiscal Quarter
period most-recently ended on or prior to such date as if they occurred on the first day of such
four consecutive fiscal quarter period (including expected cost savings (without duplication of
actual cost savings) to the extent (a) such cost savings would be permitted to be reflected in pro
forma financial information complying with the requirements of GAAP and Article 11 of Regulation
S-X under the Securities Act as interpreted by the Staff of the Securities and Exchange Commission,
and as certified by a financial officer of Parent or Borrower or (b) Parent or Borrower in good
faith believes that such cost savings will be realized within one year after the applicable
Permitted Acquisition or sale, transfer or other disposition of material assets outside the
ordinary course of business and all steps necessary for the realization of such cost savings have
been taken as certified by a financial officer of Parent or Borrower). Notwithstanding the
foregoing, for all purposes under this Agreement, other than as permitted by clause (k) of the
definition of “Consolidated Adjusted EBITDA,” no cost savings or synergies relating to the
Transactions or the 2010 Transactions shall be included for purposes of calculating the financial
covenant contained in Section 6.7 or for purposes of determining the Leverage Ratio or Secured
Leverage Ratio until actually realized.




     “Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the Revolving Commitment or Revolving Loans of any Lender or any Letters of Credit
issued or participations purchased therein by any Lender or any participations in any Swing Line
Loans purchased by any Lender, the percentage obtained by dividing (a) the Revolving Exposure of
that Lender by (b) the aggregate Revolving Exposure of all Lenders (exclusive of the Revolving
Exposure of the Swing Line Lender and the Issuing Bank in their capacities as such). For all other
purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing
(A) an amount equal to the sum of the Revolving Exposure of that Lender, by (B) an amount equal to
the sum of the aggregate Revolving Exposure of all Lenders (exclusive of the Revolving Exposure of
the Swing Line Lender and the Issuing Bank in their capacities as such).



     “Public Lenders” means Lenders that do not wish to receive material non-public information
with respect to Parent, its Subsidiaries or their respective Securities.



     “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.



     “Refinancing Indebtedness” as defined in Section 6.1(r).



     “Refunded Swing Line Loans” as defined in Section 2.2(b)(iv).



     “Register” as defined in Section 2.6(b).



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



     “Regulation FD” means Regulation FD as promulgated by the U.S. Securities and Exchange
Commission under the Securities Act and Exchange Act as in effect from time to time.



     “Reimbursement Date” as defined in Section 2.3(d).



     “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.



-27-









 





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



     “Replacement Lender” as defined in Section 2.21.



     “Requisite Lenders” means one or more Lenders having or holding Revolving Exposure and
representing more than 50% of the aggregate Revolving Exposure of all Lenders.



     “Responsible Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president, vice president (or the
equivalent thereof), chief financial officer (or the equivalent thereof) or treasurer of such
Person.



     “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of Parent, Borrower or any of their respective
Subsidiaries (or any direct or indirect parent of Borrower or Parent) now or hereafter outstanding,
except a dividend payable solely in shares of that class of stock (or, in the case of preferred
stock, in shares of that class of stock or in common stock) to the holders of that class; (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value,
direct or indirect, of any shares of any class of stock of Parent or Borrower or any of their
respective Subsidiaries (or any direct or indirect parent thereof) now or hereafter outstanding;
(iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of stock of Parent, Borrower or any of their
respective Subsidiaries (or any direct or indirect parent of Borrower or Parent) now or hereafter
outstanding; and (iv) any payment or prepayment of principal of, premium, if any, or interest on,
or redemption, purchase, retirement, defeasance (including in substance or legal defeasance),
sinking fund or similar payment with respect to, any Subordinated Indebtedness owed to a Person
that is not Borrower or a Guarantor (other than (x) regularly scheduled payments of interest and
principal in respect of any Subordinated Indebtedness and (y) the conversion of convertible
securities to common stock of Parent, in each case in accordance with the terms of, and only to the
extent required by, and subject to the subordination provisions contained in, the indenture or
other agreement pursuant to which such Subordinated Indebtedness was issued) ; provided,
that in no event shall any payment or other distribution (including, without limitation, upon
conversion to common stock of Parent) in respect of the Parent Convertible Notes or the Borrower
Convertible Notes be deemed a Restricted Junior Payment.



     “Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder
and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of
each Lender’s Revolving Commitment, if any, is set forth on Appendix A or in the applicable
Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions
hereof. The aggregate amount of the Revolving Commitments as of the Closing Date is $200,000,000.



     “Revolving Commitment Period” means the period from and including the Closing Date to but
excluding the Revolving Commitment Termination Date.



     “Revolving Commitment Termination Date” means the earliest to occur of (i) the date that is
one year and six months after the Closing Date, (ii) the date the Revolving Commitments are
permanently reduced to zero pursuant to Section 2.11(b) or 2.12 and (iii) the date of the
termination of the Revolving Commitments pursuant to Section 8.1.



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



     “Revolving Loan” means a Loan made by a Lender to Borrower pursuant to Section 2.1(a).



     “Revolving Loan Note” means a promissory note in the form of Exhibit B-1, as it may be
amended, restated, supplemented or otherwise modified from time to time.



     “S&P” means Standard & Poor’s, a Division of The McGraw Hill Companies, Inc.



     “SEC” means the U.S. Securities and Exchange Commission.



     “Secured Leverage Ratio” means, as of any date of determination, the ratio, on a Pro Forma
Basis, of (a) Consolidated Secured Indebtedness as of such date to (b) Consolidated Adjusted EBITDA
for the four Fiscal Quarter period ending on such date.



     “Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement,
the Canadian Pledge and Security Agreement and the Barbados Security Documents, as applicable.



     “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.



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



     “Senior Notes” means, collectively, the 6.500% Senior Notes due 2016 of the Borrower, the
6.750% Senior Notes due 2017 of the Borrower, the 6.750% Senior Notes due 2021 of the Borrower, the
6.875% Senior Notes due 2018 of the Borrower, the 7.000% Senior Notes due 2020 of the Borrower and
the 7.250% Senior Notes due 2022 of the Borrower.



     “Solvency Certificate” means a Solvency Certificate of the chief financial officer (or the
equivalent thereof) of Parent substantially in the form of Exhibit F-2.



     “Solvent” means, with respect to any Credit Party, that as of the date of determination (after
giving effect to all rights of reimbursement, contribution and subrogation under Applicable Law and
the Credit Documents), if subject to the Insolvency Laws of (a) any jurisdiction other than Canada
or any political subdivision thereof, (i) the sum of such Credit Party’s debt (including contingent
liabilities) does not exceed the present fair saleable value of such Credit Party’s present assets;
(ii) such Credit Party’s capital is not unreasonably small in relation to its business as
contemplated on the Closing Date and reflected in



-29-









 




the Projections or with respect to any
transaction contemplated to be undertaken after the Closing Date; and (iii) such Credit Party has
not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it
will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or
otherwise); and (b) Canada or any political subdivision thereof, (i) the property of such Credit
Party is sufficient, if disposed of at a fairly conducted sale under legal process, to enable
payment of all its obligations, due and accruing due, (ii) the property of such Credit Party is, at
a fair valuation, greater than the total amount of liabilities, including contingent liabilities,
of such Credit Party; and (iii) such Credit Party has not ceased paying its current obligations in
the ordinary course of business as they generally become due. For purposes of this definition, the
amount of any contingent liability at any time shall be computed as the amount that, in light of
all of the facts and circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability (irrespective of whether such contingent
liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5 or
any other analogous criteria in any jurisdiction).




     “Specified Asset Disposition” means the sale, transfer or other disposition of Retigabine (and
for the avoidance of doubt, Intellectual Property related thereto) in accordance with Section 6.8.



     “Specified Joint Venture” with respect to any Person, means a Joint Venture (a) in which such
Person, directly or indirectly (i) owns more than 50% of the Equity Interests (or owns at least 50%
of the Equity Interests if such Joint Venture is consolidated in the financial statements of such
Person) and (ii) with respect to any Joint Venture in which such Person owns more than 50% of the
Equity Interests, exercises control (as defined in the definition of “Affiliate”) and (b) that is
designated in writing by the Board of Directors (or equivalent governing body) of such Person as a
“Specified Joint Venture” for purposes of this Agreement.



     “Spot Rate” means, on any day, for purposes of determining the Equivalent Amount of any
currency, the rate at which such currency may be exchanged into Dollars at the time of
determination on such day appearing on the Reuters Currencies page for such currency. In the event
that such rate does not appear on the Reuters Currencies page, the Spot Rate shall be determined by
reference to such other publicly available service for displaying exchange rates as may be agreed
upon by Administrative Agent and Borrower or, in the absence of such an agreement, the Spot Rate
shall instead be the arithmetic average of the spot rates of exchange of Administrative Agent in
the market where its foreign currency exchange operations in respect of such currency are then
being conducted, at or about such time as Administrative Agent shall elect after determining that
such rates shall be the basis for determining the Spot Rate on such date for the purchase of
Dollars for delivery two Business Days later; provided that if at the time of any such
determination, for any reason, no such spot rate is being quoted, Administrative Agent may use any
reasonable method it deems appropriate to determine such rate, and such determination shall be
conclusive absent manifest error.



     “Subordinated Indebtedness” means Indebtedness that, by its terms, is subordinated in right
and time of payment to the Obligations on terms reasonably satisfactory to Administrative Agent and
containing such terms and conditions that are market terms and conditions on the date of issuance.



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



-30-









 




the other Subsidiaries of
such Person or a combination thereof; provided, in no event shall any Specified Joint
Venture with respect to which such Person is party be considered to be a Subsidiary.




     “Swing Line Lender” means GSLP in its capacity as the lender of Swing Line Loans hereunder,
together with its permitted successors and assigns in such capacity.



     “Swing Line Loan” means a Loan made by Swing Line Lender to Borrower pursuant to Section 2.2.



     “Swing Line Note” means a promissory note in the form of Exhibit B-2, as it may be amended,
restated, supplemented or otherwise modified from time to time.



     “Swing Line Sublimit” means, as of any date of determination, the lesser of (i) $25,000,000,
and (ii) the aggregate unused amount of Revolving Commitments then in effect.



     “Syndication Agent” as defined in the preamble hereto.



     “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called, including any interest, additions to tax or
penalties thereto, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed.



     “Terminated Lender” as defined in Section 2.21.



     “Title Policy” as defined in Section 3.1(e)(iii).



     “Total Utilization of Revolving Commitments” means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Bank
for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate
principal amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit Usage.



     “Transactions” means the entry into this Agreement and the Credit Documents and the making of
the Loans hereunder on the Closing Date, and the payment of all fees and expenses related thereto.



     “Type of Loan” means (i) with respect to Revolving Loans, a Base Rate Loan or a Eurodollar
Rate Loan, and (ii) with respect to Swing Line Loans, a Base Rate Loan.



     “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.



     “U.S. Lender” as defined in Section 2.18(d).



     “WURA” means the Winding-Up and Restructuring Act (Canada).



     1.2. Accounting Terms. Except as otherwise expressly provided herein, all accounting terms
not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP;
provided that, if Parent or Borrower notifies the Administrative Agent that Parent or
Borrower requests an amendment to any provision (including any definition) hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies Parent or Borrower that the
Requisite Lenders request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such



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change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. Financial statements and other information required to
be delivered by Parent to Lenders pursuant to Sections 5.1(a) and 5.1(b) shall be prepared in
accordance with GAAP as in effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in Section 5.1(d), if applicable).




     1.3. Interpretation, etc. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the
word “include” or “including,” when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not non limiting
language (such as “without limitation” or “but not limited to” or words of similar import) is used
with reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter. The terms lease and
license shall include sub lease and sub license, as applicable. A reference to a statute includes
all regulations made pursuant to such statute and, unless otherwise specified, the provisions of
any statute or regulation which amends, revises, restates, supplements or supersedes any such
statute or any such regulation. In this Agreement, where the terms “continuing,” “continuance” or
words to similar effect are used in relation to a Default or an Event of Default, the terms shall
mean only, in the case of a Default, that the applicable event or circumstance has not been waived
or, if capable of being cured, cured, prior to the event becoming or resulting in an Event of
Default, and in the case of an Event of Default, that such event or circumstance has not been
waived.



     For purposes of any assets, liabilities or entities located in the Province of Québec or
charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to
which the interpretation or construction of this Agreement may be subject to the laws of the
Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (a)
“personal property” shall include “movable property,” (b) “real property” or “real estate” shall
include “immovable property,” (c) “tangible property” shall include “corporeal property,” (d)
“intangible property” shall include “incorporeal property,” (e) “security interest,” “mortgage” and
“lien” shall include a “hypothec,” “right of retention,” “prior claim” and a “resolutory clause,”
(f) all references to filing, perfection, priority, remedies, registering or recording under the
UCC or PPSA shall include publication under the Civil Code of Québec, (g) all references to
“perfection” of or “perfected” liens or security interest shall include a reference to a hypothec
which is “opposable” or can be “set up” as against third parties, (h) any “right of offset,” “right
of setoff” or similar expression shall include a “right of compensation,” (i) “common law” shall
include “civil law,” (j) “tort” shall include “extracontractual liability,” (k) “bailor” shall
include “depositor” and “bailee” shall include “depositary,” (l) “goods” shall include “corporeal
movable property” other than chattel paper, documents of title, instruments, money and securities,
(m) an “agent” shall include a “mandatary,” (n) “construction liens” shall include “legal hypothecs
in favour of persons having taken part in the construction or renovation of an immovable,” (o)
“joint and several” shall include “solidary,” (p) “gross negligence or willful misconduct” shall be
deemed to be “intentional or gross fault,” (q) “beneficial owner
ship” shall include “ownership” and “legal title” shall include holding title on behalf of an
owner as mandatary or prete-nom”; (r) “easement” shall include “servitude,” (s) “priority” shall
include “prior claim” or “rank,” as applicable; (t) “survey” shall include “certificate of location
and plan,” (u) “state” shall include “province,” (v) “fee simple title” shall include “ownership,”
(w) “accounts” shall include “claims,” (x) “conditional sale” shall include “instalment sale,” (y)
“purchase money financing” or “purchase money lien” shall include “instalment sales, reservations
of ownership, contracts of lease, leasing contracts and vendor’s hypothecs.” The parties hereto
confirm that it is their wish that this Agreement and any other



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document executed in connection
with the transactions contemplated herein be drawn up in the English language only and that all
other documents contemplated thereunder or relating thereto, including notices, may also be drawn
up in the English language only. Les parties aux présentes confirment que c’est leur volonté que
cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et
que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents
peuvent être rédigés en langue anglaise seulement.




     1.4. Currency Matters. All Obligations of each Credit Party under the Credit Documents shall
be payable in Dollars, and all calculations, comparisons, measurements or determinations under the
Credit Documents shall be made in Dollars. For the purpose of such calculations, comparisons,
measurements or determinations, amounts denominated in other currencies shall be converted into the
Equivalent Amount of Dollars on the date of calculation, comparison, measurement or determination.



     1.5. Pro Forma Transactions. With respect to any period during which any Permitted
Acquisition or any sale, transfer or other disposition of any material assets outside the ordinary
course of business occurs, for purposes of determining compliance with the covenant contained in
Section 6.7, or for purposes of determining the Leverage Ratio as of any date, calculations with
respect to such period shall be made on a Pro Forma Basis.



SECTION 2. LOANS AND LETTERS OF CREDIT




     2.1. Revolving Loans.



     (a) Revolving Commitments. During the Revolving Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make Revolving Loans to Borrower in an
aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided, that
after giving effect to the making of any Revolving Loans in no event shall the Total Utilization of
Revolving Commitments exceed the Revolving Commitments then in effect. Amounts borrowed pursuant
to this Section 2.1(a) may be repaid and reborrowed during the Revolving Commitment Period. Each
Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all
Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Commitments shall be paid in full no later than such date.



     (b) Borrowing Mechanics for Revolving Loans.



     (i) Except pursuant to Section 2.3(d), Revolving Loans that are Base Rate Loans shall be made
in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that
amount, and Revolving Loans that are Eurodollar Rate Loans shall be in an aggregate minimum amount
of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.



     (ii) Subject to Section 3.2(b), whenever Borrower desires that Lenders make Revolving Loans,
Borrower shall deliver to Administrative Agent a fully executed and delivered Funding Notice no
later than 1:00 p.m. (New York City time) at least three Business Days in advance of the proposed
Credit
Date in the case of a Eurodollar Rate Loan, and at least one Business Day in advance of the
proposed Credit Date in the case of a Revolving Loan that is a Base Rate Loan.



     (iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together with
the amount of each Lender’s Pro Rata Share thereof, if any, together with the applicable interest
rate, shall be provided by Administrative Agent to each applicable Lender by telefacsimile with
reasonable promptness, but (provided Administrative Agent shall have received such notice
by 1:00 p.m. (New York City



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time)) not later than 2:00 p.m. (New York City time) on the same day as
Administrative Agent’s receipt of such Notice from Borrower.




     (iv) Each Lender shall make the amount of its Revolving Loan available to Administrative Agent
not later than 12:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of
same day funds in Dollars, at the Principal Office designated by Administrative Agent. Except as
provided herein, upon satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of such Revolving Loans available to Borrower on the
applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of
all such Revolving Loans received by Administrative Agent from Lenders to be credited to the
account of Borrower at the Principal Office designated by Administrative Agent or such other
account as may be designated in writing to Administrative Agent by Borrower.



     2.2. Swing Line Loans.



     (a) Swing Line Loans Commitments. During the Revolving Commitment Period, subject to
the terms and conditions hereof, Swing Line Lender shall make Swing Line Loans to Borrower in the
aggregate amount up to but not exceeding the Swing Line Sublimit; provided, that after
giving effect to the making of any Swing Line Loan, in no event shall the Total Utilization of
Revolving Commitments exceed the Revolving Commitments then in effect. Amounts borrowed pursuant
to this Section 2.2 may be repaid and reborrowed during the Revolving Commitment Period. Swing
Line Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and
all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans and
the Revolving Commitments shall be paid in full no later than such date.



     (b) Borrowing Mechanics for Swing Line Loans.



     (i) Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and integral
multiples of $100,000 in excess of that amount.



     (ii) Subject to Section 3.2(b), whenever Borrower desires that Swing Line Lender make a Swing
Line Loan, Borrower shall deliver to Administrative Agent a Funding Notice no later than 12:00 p.m.
(New York City time) on the proposed Credit Date.



     (iii) Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 p.m.(New York City time) on the applicable Credit Date by
wire transfer of same day funds in Dollars, at the Principal Office designated by Administrative
Agent. Except as provided herein, upon satisfaction or waiver of the conditions precedent
specified herein, Administrative Agent shall make the proceeds of such Swing Line Loans available
to Borrower on the applicable Credit Date by causing an amount of same day funds in Dollars equal
to the proceeds of all such Swing Line Loans received by Administrative Agent from Swing Line
Lender to be credited to the account of Borrower at the Principal Office designated by
Administrative Agent, or to such other account as may be designated in writing to Administrative
Agent by Borrower.



     (iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower
pursuant to Section 2.11, Swing Line Lender may at any time in its sole and absolute discretion,
deliver to Administrative Agent (with a copy to Borrower), no later than 1:00 p.m. (New York City
time) at least one Business Day in advance of the proposed Credit Date, a notice (which shall be
deemed to be a Funding Notice given by Borrower) requesting that each Lender holding a Revolving
Commitment make Revolving Loans that are Base Rate Loans to Borrower on such Credit Date in an
amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding
on the date such



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notice is given which Swing Line Lender requests Lenders to prepay. Anything
contained in this Agreement to the contrary notwithstanding, (1) the proceeds of such Revolving
Loans made by the Lenders other than Swing Line Lender shall be immediately delivered by
Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (2) on the day such Revolving Loans are
made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans (determined by reference
to Swing Line Lender’s Revolving Commitment, if any) shall be deemed to be paid with the proceeds
of a Revolving Loan made by Swing Line Lender to Borrower, and such portion of the Swing Line Loans
deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due
under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line
Lender’s outstanding Revolving Loans to Borrower and shall be due under the Revolving Loan Note
issued by Borrower to Swing Line Lender. The Borrower hereby authorizes Administrative Agent and
Swing Line Lender to charge Borrower’s accounts with Administrative Agent and Swing Line Lender (up
to the amount available in each such account) in order to immediately pay Swing Line Lender the
amount of the Refunded Swing Line Loans to the extent of the proceeds of such Revolving Loans made
by Lenders, including the Revolving Loans deemed to be made by Swing Line Lender, are not
sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such amount paid
(or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of Borrower from
Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss
of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by
Section 2.15.




     (v) If for any reason Revolving Loans are not made pursuant to Section 2.2(b)(iv) in an amount
sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line
Loans on or before the third Business Day after demand for payment thereof by Swing Line Lender,
each Lender holding a Revolving Commitment shall be deemed to, and hereby agrees to, have purchased
a participation in such outstanding Swing Line Loans, and in an amount equal to its Pro Rata Share
of the applicable unpaid amount together with accrued interest thereon. Upon one Business Day’s
notice from Swing Line Lender, each Lender holding a Revolving Commitment shall deliver to Swing
Line Lender an amount equal to its respective participation in the applicable unpaid amount in same
day funds at the Principal Office of Swing Line Lender. In order to evidence such participation
each Lender holding a Revolving Commitment agrees to enter into a participation agreement at the
request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender.
In the event any Lender holding a Revolving Commitment fails to make available to Swing Line Lender
the amount of such Lender’s participation as provided in this paragraph, Swing Line Lender shall be
entitled to recover such amount on demand from such Lender together with interest thereon for three
Business Days at the rate customarily used by Swing Line Lender for the correction of errors among
banks and thereafter at the Base Rate, as applicable.



     (vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s obligation
to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the
second preceding paragraph and each Lender’s obligation to purchase a participation in any unpaid
Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense
or other right which such Lender may have against Swing Line Lender, any Credit Party or any
other Person for any reason whatsoever; (B) the occurrence or continuation of a Default or Event of
Default; (C) any adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of any Credit Party; (D) any breach of this Agreement or any
other Credit Document by any party thereto; or (E) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided that such obligations
of each Lender are subject to the condition that Swing Line Lender had not received prior notice
from Borrower or the Requisite Lenders that any of the conditions



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under Section 3.2 to the making
of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, were not satisfied at
the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made; and (2) Swing Line
Lender shall not be obligated to make any Swing Line Loans (A) if it has elected not to do so after
the occurrence and during the continuation of a Default or Event of Default, (B) it does not in
good faith believe that all conditions under Section 3.2 to the making of such Swing Line Loan have
been satisfied or waived by the Requisite Lenders or (C) at a time when any Lender is a Defaulting
Lender unless Swing Line Lender has entered into arrangements reasonably satisfactory to it and
Borrower to eliminate Swing Line Lender’s risk with respect to the Defaulting Lender’s
participation in such Swing Ling Loan, including by cash collateralizing such Defaulting Lender’s
Pro Rata Share of the outstanding Swing Line Loans.




     (c) Resignation and Removal of Swing Line Lender. Swing Line Lender may resign as
Swing Line Lender upon 30 days prior written notice to Administrative Agent, Lenders and Borrower.
Swing Line Lender may be replaced at any time by written agreement among Borrower, Administrative
Agent, the replaced Swing Line Lender (provided that no consent will be required if the
replaced Swing Line Lender has no Swing Line Loans outstanding) and the successor Swing Line
Lender. Administrative Agent shall notify the Lenders of any such replacement of Swing Line
Lender. At the time any such replacement or resignation shall become effective, (i) Borrower shall
prepay any outstanding Swing Line Loans made by the resigning or removed Swing Line Lender, (ii)
upon such prepayment, the resigning or removed Swing Line Lender shall surrender any Swing Line
Note held by it to Borrower for cancellation, and (iii) Borrower shall issue, if so requested by
the successor Swing Line Lender, a new Swing Line Note to the successor Swing Line Lender, in the
principal amount of the Swing Line Sublimit then in effect and with other appropriate insertions.
From and after the effective date of any such replacement or resignation, (x) any successor Swing
Line Lender shall have all the rights and obligations of a Swing Line Lender under this Agreement
with respect to Swing Line Loans made thereafter and (y) references herein to the term “Swing Line
Lender” shall be deemed to refer to such successor or to any previous Swing Line Lender, or to such
successor and all previous Swing Line Lenders, as the context shall require.



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



     (a) Letters of Credit. During the Revolving Commitment Period, subject to the terms
and conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of Borrower;
provided, (i) each Letter of Credit shall be denominated in Dollars; (ii) the stated amount
of each Letter of Credit shall not be less than $250,000 or such lesser amount as is acceptable to
Issuing Bank; (iii) after giving effect to such issuance, in no event shall the Total Utilization
of Revolving Commitments exceed the Revolving Commitments then in effect; (iv) after giving effect
to such issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit
then in effect; (v) in no event shall any standby Letter of Credit have an expiration date later
than the earlier of (1) the Revolving Commitment Termination Date and (2) the date which is one
year from the date of issuance of such standby Letter of Credit; (vi) in no event shall any
commercial Letter of Credit have an expiration date later than the earlier of (1) the Revolving
Commitment Termination Date and (2) the date which is one year from the date of issuance of such
commercial Letter of Credit; and (vii) Issuing Bank shall be under no obligation to issue any
Letter of Credit if the issuance of such Letter of Credit would violate one or more policies of
Issuing Bank ap
plicable to letters of credit generally and not solely to letters of credit issuable to
Borrower. Subject to the foregoing, Issuing Bank may agree that a standby Letter of Credit will
automatically be extended for one or more successive periods not to exceed one year each, unless
Issuing Bank elects not to extend for any such additional period, and so notifies the beneficiary
thereof 30 days in advance that such standby Letter of Credit will not be so extended;
provided that Issuing Bank shall not extend any such Letter of Credit if it has received
written notice that an Event of Default has occurred and is continuing at the time Issuing Bank
must elect to allow such extension; provided, further, that if any Lender is a
Defaulting Lender, Issuing



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Bank shall not be required to issue any Letter of Credit unless Issuing
Bank has entered into arrangements reasonably satisfactory to it and Borrower to eliminate Issuing
Bank’s risk with respect to the participation in Letters of Credit of the Defaulting Lender,
including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit
Usage.




     (b) Notice of Issuance. Subject to Section 3.2(b), whenever Borrower desires the
issuance of a Letter of Credit, it shall deliver to Administrative Agent an Issuance Notice no
later than 12:00 p.m. (New York City time) at least three Business Days (in the case of standby
letters of credit) or five Business Days (in the case of commercial letters of credit), or in each
case such shorter period as may be agreed to by Issuing Bank in any particular instance, in advance
of the proposed date of issuance. Upon satisfaction or waiver of the conditions set forth in
Section 3.2, Issuing Bank shall issue the requested Letter of Credit only in accordance with
Issuing Bank’s standard operating procedures. Upon the issuance of any Letter of Credit or
amendment or modification to a Letter of Credit, Issuing Bank shall promptly notify each Lender
with a Revolving Commitment of such issuance, which notice shall be accompanied by a copy of such
Letter of Credit or amendment or modification to a Letter of Credit and the amount of such Lender’s
respective participation in such Letter of Credit pursuant to Section 2.3(e).



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



     (d) Reimbursement by Borrower of Amounts Drawn or Paid Under Letters of Credit. In
the event Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall
immediately notify Borrower and Administrative Agent, and Borrower shall reimburse Issuing Bank on
or before the Business Day immediately following the date on which the Borrower was notified by
Issuing Bank that such drawing was honored (the “Reimbursement Date”) in an amount in Dollars and
in same day funds



-37-









 




equal to the amount of such honored drawing; provided that anything
contained herein to the contrary notwithstanding, (i) unless Borrower shall have notified
Administrative Agent and Issuing Bank prior to 10:00 a.m. (New York City time) on the date such
drawing is honored that Borrower intends to reimburse Issuing Bank for the amount of such honored
drawing with funds other than the proceeds of Revolving Loans, Borrower shall be deemed to have
given a timely Funding Notice to Administrative Agent requesting Lenders with Revolving Commitments
to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars
equal to the amount of such honored drawing, and (ii) subject to satisfaction or waiver of the
conditions specified in Section 3.2, Lenders with Revolving Commitments shall, on the Reimbursement
Date, make Revolving Loans that are Base Rate Loans in the amount of such honored drawing, the
proceeds of which shall be applied directly by Administrative Agent to reimburse Issuing Bank for
the amount of such honored drawing; and provided, further, that if for any reason
proceeds of Revolving Loans are not received by Issuing Bank on the Reimbursement Date in an amount
equal to the amount of such honored drawing, Borrower shall reimburse Issuing Bank, on demand, in
an amount in same day funds equal to the excess of the amount of such honored drawing over the
aggregate amount of proceeds of such Revolving Loans, if any, which are so received. Nothing in
this Section 2.3(d) shall be deemed to relieve any Lender with a Revolving Commitment from its
obligation to make Revolving Loans on the terms and conditions set forth herein, and Borrower shall
retain any and all rights it may have against any such Lender resulting from the failure of such
Lender to make such Revolving Loans under this Section 2.3(d).




     (e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the
issuance of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to
have purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a participation in
such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro
Rata Share (with respect to the Revolving Commitments) of the maximum amount which is or at any
time may become available to be drawn thereunder. In the event that Borrower shall fail for any
reason to reimburse Issuing Bank as provided in Section 2.3(d), Issuing Bank shall promptly notify
each Lender with a Revolving Commitment of the unreimbursed amount of such honored drawing and of
such Lender’s respective participation therein based on such Lender’s Pro Rata Share of the
Revolving Commitments. Each Lender with a Revolving Commitment shall make available to Issuing
Bank an amount equal to its respective participation, in Dollars and in same day funds, at the
office of Issuing Bank specified in such notice, not later than 12:00 p.m. (New York City time) on
the first business day (under the laws of the jurisdiction in which such office of Issuing Bank is
located) after the date notified by Issuing Bank. In the event that any Lender with a Revolving
Commitment fails to make available to Issuing Bank on such business day the amount of such Lender’s
participation in such Letter of Credit as provided in this Section 2.3(e), Issuing Bank shall be
entitled to recover such amount on demand from such Lender together with interest thereon for three
Business Days at the rate customarily used by Issuing Bank for the correction of errors among banks
and thereafter at the Base Rate. Nothing in this Section 2.3(e) shall be deemed to prejudice the
right of any Lender with a Revolving Commitment to recover from Issuing Bank any amounts made
available by such Lender to Issuing Bank pursuant to this Section in the event that the payment
with respect to a Letter of Credit in respect of which payment was made by such Lender constituted
gross negligence or willful misconduct on the part of Issuing Bank. In the event Issuing Bank
shall have been reimbursed by other Lenders pursuant to this Section 2.3(e) for all or any portion of any drawing
honored by Issuing Bank under a Letter of Credit, such Issuing Bank shall distribute to each Lender
which has paid all amounts payable by it under this Section 2.3(e) with respect to such honored
drawing such Lender’s Pro Rata Share of all payments subsequently received by Issuing Bank from
Borrower in reimbursement of such honored drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth below its name on Appendix
B or at such other address as such Lender may request.




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     (f) Obligations Absolute. The obligation of Borrower to reimburse Issuing Bank
for drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made
by Lenders pursuant to Section 2.3(d) and the obligations of Lenders under Section 2.3(e) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other
right which Borrower or any Lender may have at any time against a beneficiary or any transferee of
any Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank,
Lender or any other Person or, in the case of a Lender, against Borrower, whether in connection
herewith, the transactions contemplated herein or any unrelated transaction (including any
underlying transaction between Borrower or one of its Subsidiaries and the beneficiary for which
any Letter of Credit was procured); (iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (iv) payment by Issuing Bank under any Letter of
Credit against presentation of a draft or other document which does not substantially comply with
the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Parent or any of its Subsidiaries; (vi)
any breach hereof or any other Credit Document by any party thereto; (vii) any other circumstance
or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the fact that an
Event of Default or a Default shall have occurred and be continuing; provided, in each
case, that payment by Issuing Bank under the applicable Letter of Credit shall not have constituted
gross negligence or willful misconduct of Issuing Bank under the circumstances in question.



     (g) Indemnification. Without duplication of any obligation of Borrower under Section
10.2 or 10.3, in addition to amounts payable as provided herein, Borrower hereby agrees to protect,
indemnify, pay and save harmless Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and
disbursements of counsel and allocated costs of internal counsel) which Issuing Bank may incur or
be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit by
Issuing Bank, other than as a result of (1) the gross negligence or willful misconduct of Issuing
Bank or (2) the wrongful dishonor by Issuing Bank of a proper demand for payment made under any
Letter of Credit issued by it, or (ii) the failure of Issuing Bank to honor a drawing under any
such Letter of Credit as a result of any Governmental Act, other than any Governmental Act
resulting from the gross negligence or willful misconduct of Issuing Bank.



     (h) Resignation and Removal of Issuing Bank. An Issuing Bank may resign as Issuing
Bank upon 60 days prior written notice to Administrative Agent, Lenders and Borrower. An Issuing
Bank may be replaced at any time by written agreement among Borrower, Administrative Agent, the
replaced Issuing Bank (provided that no consent will be required if the replaced Issuing
Bank has no Letters of Credit or reimbursement Obligations with respect thereto outstanding) and
the successor Issuing Bank. Administrative Agent shall notify the Lenders of any such replacement
of such Issuing Bank. At the time any such replacement or resignation shall become effective,
Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank. From and
after the effective date of any such replacement or resignation, (i) any successor Issuing Bank
shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank”
shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the replacement or resignation
of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto to the extent
that Letters of Credit issued by it remain outstanding and shall continue to have all the rights
and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by
it prior to such replacement or resignation, but shall not be required to issue additional Letters
of Credit.



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     2.4. Pro Rata Shares; Availability of Funds.



     (a) Pro Rata Shares. All Loans shall be made, and all participations shall be
purchased, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it
being understood that no Lender shall be responsible for any default by any other Lender in such
other Lender’s obligation to make a Loan requested hereunder or purchase a participation required
hereby nor shall any Revolving Commitment of any Lender be increased or decreased as a result of a
default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or
purchase a participation required hereby.



     (b) Availability of Funds. Unless Administrative Agent shall have been notified by
any Lender prior to the applicable Credit Date that such Lender does not intend to make available
to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date,
Administrative Agent may assume that such Lender has made such amount available to Administrative
Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to Borrower a corresponding amount on such Credit Date. If such
corresponding amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Credit Date until the date such
amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the Base Rate. If such
Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand
therefor, Administrative Agent shall promptly notify Borrower and Borrower shall immediately pay
such corresponding amount to Administrative Agent together with interest thereon, for each day from
such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable
hereunder for Base Rate Loans. Nothing in this Section 2.4(b) shall be deemed to relieve any
Lender from its obligation to fulfill its Revolving Commitments hereunder or to prejudice any
rights that Borrower may have against any Lender as a result of any default by such Lender
hereunder.



     2.5. Use of Proceeds.



     (a) The proceeds of the Revolving Loans, Swing Line Loans and Letters of Credit made after the
Closing Date shall be applied by Borrower for working capital and general corporate purposes of
Parent and its Subsidiaries, including Permitted Acquisitions.



     (b) No portion of the proceeds of any Credit Extension shall be used in any manner that causes
or might cause such Credit Extension or the application of such proceeds to violate Regulation T,
Regulation U or Regulation X of the Board of Governors or any other regulation thereof.



     2.6. Evidence of Debt; Register; Lenders’ Books and Records; Notes.



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



     (b) Register. Administrative Agent (or its agent or sub-agent appointed by it) shall
maintain at the Principal Office designated by Administrative Agent a register for the recordation
of the names and



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addresses of Lenders and the Revolving Commitments and Loans of each Lender from
time to time (the “Register”). The Register shall be available for inspection by Borrower or any
Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from
time to time upon reasonable prior notice. Administrative Agent shall record, or shall cause to be
recorded, in the Register the Revolving Commitments and the Loans in accordance with the provisions
of Section 10.6, and each repayment or prepayment in respect of the principal amount of the Loans,
and any such recordation shall be conclusive and binding on Borrower and each Lender, absent
manifest error; provided that failure to make any such recordation, or any error in such
recordation, shall not affect any Lender’s Revolving Commitments or Borrower’s Obligations in
respect of any Loan. The Borrower hereby designates Administrative Agent to serve as Borrower’s
agent solely for purposes of maintaining the Register as provided in this Section 2.6, and Borrower
hereby agrees that, to the extent Administrative Agent serves in such capacity, Administrative
Agent and its officers, directors, employees, agents, sub-agents and affiliates shall constitute
“Indemnitees.”




     (c) Notes. If so requested by any Lender by written notice to Borrower (with a copy
to Administrative Agent) at least two Business Days prior to the Closing Date, or at any time
thereafter, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so
specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6)
on the Closing Date (or, if such notice is delivered after the Closing Date, as promptly as
practicable after Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s
Revolving Loan or Swing Line Loan, as the case may be.



     2.7. Interest on Loans.



     (a) Except as otherwise set forth herein, the Loans shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:




	 	(i)	 	in the case of Revolving Loans:






	 	•	 	if a Base Rate Loan, at the Base Rate plus the
Applicable Margin; or






	 	•	 	if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate
plus the Applicable Margin; and






	 	(ii)	 	in the case of Swing Line Loans, at the Base Rate plus the Applicable
Margin.





     (b) The basis for determining the rate of interest with respect to any Loan (except a Swing
Line Loan which can be made and maintained as a Base Rate Loan only), and the Interest Period with
respect to any Eurodollar Rate Loan, shall be selected by Borrower and notified to Administrative
Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as
the case may be. If on any day a Loan is outstanding with respect to which a Funding Notice or
Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with
the terms hereof specifying the applicable basis for determining the rate of interest, then for
that day such Loan shall be a Base Rate Loan.



     (c) In connection with Eurodollar Rate Loans there shall be no more than seven (7) Interest
Periods outstanding at any time. In the event Borrower fails to specify between a Base Rate Loan
or a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such
Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate
Loan on the last day of then current Interest Period for such Loan (or if outstanding as a Base
Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the
event Borrower fails to specify an



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Interest Period for any Eurodollar Rate Loan in the applicable
Funding Notice or Conversion/Continuation Notice, Borrower shall be deemed to have selected an
Interest Period of one month. As soon as practicable after 10:00 a.m. (New York City time) on each
Interest Rate Determination Date, Administrative Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for
the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Borrower and each Lender.




     (d) Interest payable pursuant to Section 2.7(a) shall be computed (i) in the case of Base Rate
Loans on the basis of a 365 day or 366 day year, as the case may be, and (ii) in the case of
Eurodollar Rate Loans, on the basis of a 360 day year, in each case for the actual number of days
elapsed in the period during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect
to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such
Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with
respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of
such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
provided that, if a Loan is repaid on the same day on which it is made, one day’s interest
shall be paid on that Loan.



     (e) Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily
basis and shall be payable in arrears on each Interest Payment Date with respect to interest
accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable
in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued
on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in
arrears at maturity of the Loans, including final maturity of the Loans; provided,
however, with respect to any voluntary prepayment of a Revolving Loan that is a Base Rate
Loan, accrued interest shall instead be payable on the applicable Interest Payment Date.



     (f) The Borrower agrees to pay to Issuing Bank, with respect to drawings honored under any
Letter of Credit, interest on the amount paid by Issuing Bank in respect of each such honored
drawing from the date such drawing is honored to but excluding the date such amount is reimbursed
by or on behalf of Borrower at a rate equal to (i) for the period from the date such drawing is
honored to but excluding the applicable Reimbursement Date, the rate of interest otherwise payable
hereunder with respect to Revolving Loans that are Base Rate Loans, and (ii) thereafter, the rate
of interest required pursuant to Section 2.9.



     (g) Interest payable pursuant to Section 2.7(f) shall be computed on the basis of a 365/366
day year for the actual number of days elapsed in the period during which it accrues, and shall be
payable on demand or, if no demand is made, on the date on which the related drawing under a Letter
of Credit is reimbursed in full. Promptly upon receipt by Issuing Bank of any payment of interest
pursuant to Section 2.7(f), Issuing Bank shall distribute to each Lender, out of the interest
received by Issuing Bank in respect of the period from the date such drawing is honored to but
excluding the date on which Issuing Bank is reimbursed for the amount of such drawing (including
any such reimbursement out of the proceeds of any Revolving Loans), the amount that such Lender
would have been entitled to receive in respect of the letter of credit fee that would have been
payable in respect of such Letter of Credit for such period if no drawing had been honored under
such Letter of Credit. In the event Issuing Bank shall have been reimbursed by Lenders for all or
any portion of such honored drawing, Issuing Bank shall distribute to each Lender which has paid
all amounts payable by it under Section 2.3(e) with respect to such honored drawing such Lender’s
Pro Rata Share of any interest received by Issuing Bank in respect of that portion of such honored



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drawing so reimbursed by Lenders for the period from the date on which Issuing Bank was so
reimbursed by Lenders to but excluding the date on which such portion of such honored drawing is
reimbursed by Borrower.




     2.8. Conversion/Continuation.



     (a) Subject to Section 2.16 and so long as no Default or Event of Default shall have occurred
and then be continuing, Borrower shall have the option:




     (i) to convert at any time all or any part of any Revolving Loan equal to $5,000,000
and integral multiples of $1,000,000 in excess of that amount from one Type of Loan to
another Type of Loan; provided that a Eurodollar Rate Loan may only be converted on
the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless
Borrower shall pay all amounts due under Section 2.16 in connection with any such
conversion; or




     (ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan,
to continue all or any portion of such Loan equal to $5,000,000 and integral multiples of
$1,000,000 in excess of that amount as a Eurodollar Rate Loan.



     (b) Subject to Section 3.2(b), Borrower shall deliver a Conversion/Continuation Notice to
Administrative Agent no later than 10:00 a.m. (New York City time) at least one Business Day in
advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at
least three Business Days in advance of the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan).



     2.9. Default Interest. Upon the occurrence and during the continuance of an Event of Default under
Section 8.1(a), the overdue amount shall thereafter bear interest (including post petition interest
in any proceeding under Insolvency Laws) payable on demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable hereunder for Base Rate Loans (or, in the case of any
such fees and other amounts, at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans that are Revolving Loans). Payment or acceptance
of the increased rates of interest provided for in this Section 2.9 is not a permitted alternative
to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice
or limit any rights or remedies of Administrative Agent or any Lender.



     2.10. Fees.



     (a) The Borrower agrees to pay to Lenders having Revolving Exposure (for purposes of clarity,
excluding the Swing Line Lender and the Issuing Bank, in their capacities as such):




     (i) commitment fees accruing at 0.75% per annum on the average of the daily difference
between (a) the Revolving Commitments, and (b) the aggregate principal amount of (x) all
outstanding Revolving Loans (for the avoidance of doubt, excluding Swing Line Loans)
plus (y) the Letter of Credit Usage; and




     (ii) letter of credit fees accruing at the Applicable Margin for Revolving Loans that
are Eurodollar Rate Loans on the average aggregate daily maximum amount available to be
drawn under all such Letters of Credit (regardless of whether any conditions for drawing
could then be met and determined as of the close of business on any date of determination).



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Notwithstanding the foregoing, any commitment fee which accrued with respect to the Revolving
Commitment of a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by Borrower so long as such Lender
shall be a Defaulting Lender except to the extent that such commitment fee shall otherwise have
been due and payable by Borrower prior to such time; and provided, further, that no
such commitment fee shall accrue on the Revolving Commitment of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender. All fees referred to in this Section 2.10(a) shall be paid to
Administrative Agent at its Principal Office and upon receipt, Administrative Agent shall promptly
distribute to each Lender its Pro Rata Share thereof.




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




     (i) a fronting fee accruing at 0.25% per annum on the average aggregate daily maximum
amount available to be drawn under all Letters of Credit (determined as of the close of
business on any date of determination); and




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



     (c) All fees referred to in Section 2.10(a) and 2.10(b)(i) shall be calculated on the basis of
a 360-day year and the actual number of days elapsed and shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year during the Revolving Commitment
Period, commencing on September 30, 2011, and on the Revolving Commitment Termination Date.



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



     2.11. Voluntary Prepayments/Commitment Reductions.



     (a) Voluntary Prepayments.




	 	(i)	 	Any time and from time to time:






	 	•	 	with respect to Base Rate Loans, Borrower may prepay any such Loans on any
Business Day in whole or in part (in the case of a partial prepayment, in an
aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of that amount);






	 	•	 	with respect to Eurodollar Rate Loans, Borrower may prepay any such Loans on
any Business Day in whole or in part (in the case of a partial prepayment, in
an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000
in excess of that amount); and






	 	•	 	with respect to Swing Line Loans, Borrower may prepay any such Loans on any
Business Day in whole or in part (in the case of a partial prepayment, in an
aggregate minimum amount of $500,000, and in integral multiples of $100,000 in
excess of that amount).




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	 	(ii)	 	All such prepayments shall be made:






	 	•	 	upon not less than one Business Day’s prior written or telephonic notice in
the case of Base Rate Loans;






	 	•	 	upon not less than three Business Days’ prior written or telephonic notice
in the case of Eurodollar Rate Loans; and






	 	•	 	upon written or telephonic notice on the date of prepayment, in the case of
Swing Line Loans;




in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly confirmed by
delivery of written notice thereof to Administrative Agent (and Administrative Agent will promptly
transmit such original notice for Revolving Loans by telefacsimile or telephone to each Lender) or
Swing Line Lender, as the case may be. Upon the giving of any such notice, the principal amount of
the Loans specified in such notice shall become due and payable on the prepayment date specified
therein; provided that a notice of voluntary prepayment may state that such notice is
conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from
the issuance of other Indebtedness or upon the closing of an acquisition transaction, in which case
such notice of prepayment may be revoked by Borrower (by notice to the Administrative Agent on or
prior to the specified date) if such condition is not satisfied. Any such voluntary prepayment
shall be applied as specified in Section 2.13(a).




     (b) Voluntary Commitment Reductions.



     (i) The Borrower may, upon not less than three Business Days’ prior written or telephonic
notice promptly confirmed by delivery of written notice thereof to Administrative Agent (which
original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile
or telephone to each applicable Lender), at any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the Revolving Commitments in an amount up
to the amount by which the Revolving Commitments exceed the Total Utilization of Revolving
Commitments at the time of such proposed termination or reduction; provided that any such
partial reduction of the Revolving Commitments shall be in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount.



     (ii) The Borrower’s notice to Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any partial reduction, and such
termination or reduction of the Revolving Commitments shall be effective on the date specified in
Borrower’s notice and shall reduce the Revolving Commitment of each Lender proportionately to its
Pro Rata Share thereof; provided that a notice of termination or partial reduction may
state that such notice is conditional upon the effectiveness of other credit facilities or the
receipt of the proceeds from the issuance of other Indebtedness or upon the closing of an
acquisition transaction, in which case such notice of termination or partial reduction may be
revoked by Borrower (by notice to the Administrative Agent on or prior to the specified date) if
such condition is not satisfied.



     2.12. Mandatory Prepayments.



     (a) Asset Sales. No later than three Business Days following the date of receipt by
Parent or any of its Subsidiaries of any Net Asset Sale Proceeds, Borrower shall prepay the Loans
as set forth in Section 2.13(b) in an aggregate amount equal to such Net Asset Sale Proceeds;
provided that, so long as



-45-









 




no Default or Event of Default shall have occurred and be
continuing, Parent or any of its Subsidiaries may invest an amount equal to all or any portion of
such Net Asset Sale Proceeds within 365 days of receipt thereof in real estate, equipment and other
tangible assets useful in the business of Parent and its Subsidiaries (or any similar or related or
ancillary business), in which case the amount of Net Asset Sale Proceeds so invested shall not be
required to be applied to prepay the Loans pursuant to this Section 2.12(a).




     (b) Insurance/Condemnation Proceeds. No later than three Business Days following the
date of receipt by Parent or any of its Subsidiaries, or Administrative Agent as loss payee, of any
Net Insurance/Condemnation Proceeds in excess of $25,000,000 in the aggregate in any Fiscal Year,
Borrower shall prepay the Loans as set forth in Section 2.13(b) in an aggregate amount equal to
such Net Insurance/Condemnation Proceeds; provided that, so long as no Default or Event of
Default shall have occurred and be continuing, Parent or any of its Subsidiaries may invest an
amount equal to all or any portion of such Net Insurance/Condemnation Proceeds within 365 days of
receipt thereof in real estate, equipment and other tangible assets useful in the business of
Parent and its Subsidiaries (or any similar or related or ancillary business), which investment may
include the repair, restoration or replacement of the applicable assets thereof, in which case the
amount of Net Insurance/Condemnation Proceeds so invested shall not be required to be applied to
prepay the Loans pursuant to this Section 2.12(b).



     (c) [Reserved].



     (d) Issuance of Debt. No later than two Business Days following the date of receipt
by Parent or any of its Subsidiaries of any Cash proceeds from the incurrence of any Indebtedness
of Parent or any of its Subsidiaries (other than with respect to any Indebtedness permitted to be
incurred pursuant to Section 6.1), Borrower shall prepay the Loans as set forth in Section 2.13(b)
in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and
commissions and other reasonable costs and expenses associated therewith, including reasonable
legal fees and expenses.



     (e) [Reserved].



     (f) Revolving Loans and Swing Line Loans. The Borrower shall from time to time prepay
first, the Swing Line Loans, and second, the Revolving Loans to the extent necessary so that the
Total Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments
then in effect.



     (g) Prepayment Certificate. Concurrently with any prepayment of the Loans pursuant to
Sections 2.12(a) through 2.12(d), Borrower shall deliver to Administrative Agent a certificate of
an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds.
In the event that Borrower shall subsequently determine that the actual amount received exceeded
the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of
the Loans in an amount equal to such excess, and Borrower shall concurrently therewith deliver to
Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such
excess.



     2.13. Application of Prepayments.



     (a) Application of Voluntary Prepayments of Loans. Any prepayment of any Loan
pursuant to Section 2.11(a) shall be applied as specified by Borrower in the applicable notice of
prepayment; provided that, in the event Borrower fails to specify the Loans to which any
such prepayment shall be applied, such prepayment shall be applied as follows:




     first, to repay outstanding Swing Line Loans to the full extent thereof; and



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     second, to repay outstanding Revolving Loans to the full extent thereof.



     (b) Application of Mandatory Prepayments of Loans. Any amount required to be paid
pursuant to Sections 2.12(a) through 2.12(d) shall be applied as follows:




     first, to prepay the Swing Line Loans to the full extent thereof;




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




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




     fourth, to cash collateralize Letters of Credit; and




     fifth, to Borrower.



     (c) Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans.
Any prepayment thereof shall be applied, as between the Base Rate Loans and the Eurodollar Rate
Loans, as directed by Borrower.



     2.14. General Provisions Regarding Payments.



     (a) All payments by Borrower of principal, interest, fees and other Obligations shall be made
in Dollars in same day funds, without defense, recoupment, set-off or counterclaim, free of any
restriction or condition, and delivered to Administrative Agent not later than 12:00 p.m. (New York
City time) on the date due at the Principal Office designated by Administrative Agent for the
account of Lenders; for purposes of computing interest and fees, funds received by Administrative
Agent after that time on such due date shall be deemed to have been paid by Borrower on the next
succeeding Business Day.



     (b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans that are Base Rate Loans) shall be accompanied by payment of accrued
interest on the principal amount being repaid or prepaid, and all such payments (and, in any event,
any payments in respect of any Loan on a date when interest is due and payable with respect to such
Loan) shall be applied to the payment of interest then due and payable before application to
principal.



     (c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute
to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable
Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together
with all other amounts due thereto, including, all fees payable with respect thereto, to the extent
received by Administrative Agent.



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



     (e) Subject to the provisos set forth in the definition of “Interest Period” as they may apply
to Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be
stated to be due on a day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and, with respect to Revolving Loans only, such extension of time shall be
included in the computation of the payment of interest hereunder or of the Revolving Commitment
fees hereunder.



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     (f) [Reserved].



     (g) Administrative Agent shall deem any payment by or on behalf of Borrower hereunder that is
not made in same day funds prior to 12:00 p.m. (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by Administrative Agent until the later
of (i) the time such funds become available funds, and (ii) the next succeeding Business Day.
Administrative Agent shall give prompt telephonic notice to Borrower and each applicable Lender
(confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute
or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest
shall continue to accrue on any principal as to which a non-conforming payment is made until such
funds become available funds (but in no event less than the period from the date of such payment to
the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.9 from
the date such amount was due and payable until the date such amount is paid in full.



     (h) If an Event of Default shall have occurred and not otherwise been waived, and the maturity
of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds
received by Agents hereunder in respect of any of the Obligations, shall be applied in accordance
with the application arrangements described in Section 9.2 of the Pledge and Security Agreement and
the analogous sections of any other Collateral Documents.



     2.15. Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise provided in
the Collateral Documents with respect to amounts realized from the exercise of rights with respect
to Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a
voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the
exercise of any right of set-off, consolidation or banker’s lien, by counterclaim or cross action
or by the enforcement of any right under the Credit Documents or otherwise, or as adequate
protection of a deposit treated as cash collateral under any Insolvency Laws, receive payment or
reduction of a proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to such Lender hereunder or
under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which
is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due
to such other Lender, then the Lender receiving such proportionately greater payment shall (a)
notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a
portion of such payment to purchase participations (which it shall be deemed to have purchased from
each seller of a participation simultaneously upon the receipt by such seller of its portion of
such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of
Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
them; provided that, if all or part of such proportionately greater payment received by
such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices
paid for such participations shall be returned to such purchasing Lender ratably to the extent of
such recovery, but without interest. Borrower expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all rights of banker’s
lien, consolidation, set-off or counterclaim with respect to any and all monies owing by Borrower
to that holder with respect thereto as fully as if that holder were owed the amount of the
participation held by that holder. The provisions of this Section 2.15 shall not be construed to
apply to (a) any payment made by Borrower pursuant to and in accordance with the express terms of
this Agreement or (b) any payment obtained by any Lender as consideration for the assignment or
sale of a participation in any of its Loans or other Obligations owed to it.



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     2.16. Making or Maintaining Eurodollar Rate Loans.



     (a) Inability to Determine Applicable Interest Rate. In the event that Administrative
Agent shall have determined (which determination shall be final and conclusive and binding upon all
parties hereto absent manifest error), on any Interest Rate Determination Date with respect to any
Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market
adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on
the basis provided for in the definition of Adjusted Eurodollar Rate or the Eurodollar rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loans does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, Administrative Agent shall on such
date give notice (by email or by telephone confirmed in writing) to Borrower and each Lender of
such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans
until such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving
rise to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice
given by Borrower with respect to the Loans in respect of which such determination was made shall
be deemed to be rescinded by Borrower.



     (b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any
date any Lender shall have determined (which determination shall be final and conclusive and
binding upon all parties hereto absent manifest error) that the making, maintaining or continuation
of its Eurodollar Rate Loans (i) has become unlawful as a result of compliance by such Lender in
good faith with any law, treaty, governmental rule, regulation, guideline or order (or would
conflict with any such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful), or (ii) has become
impracticable, as a result of contingencies occurring after the date hereof which materially and
adversely affect the London interbank market or the position of such Lender in that market, then,
and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give
notice (by email or by telephone confirmed in writing) to Borrower and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each other Lender). If
the Administrative Agent receives a notice from (x) any Lender pursuant to clause (i) of the
preceding sentence or (y) a notice from Lenders constituting Requisite Lenders pursuant to clause
(ii) of the preceding sentence, then (1) the obligation of the Lenders (or, in the case of any
notice pursuant to clause (i) of the preceding sentence, such Lender) to make Loans as, or to
convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by
each Affected Lender, (2) to the extent such determination by the Affected Lender relates to a
Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice or a
Conversion/Continuation Notice, Lenders (or in the case of any notice pursuant to clause (i) of the
preceding sentence, such Lender) shall make such Loan as (or continue such Loan as or convert such
Loan to, as the case may be) a Base Rate Loan, (3) the Lenders’ (or in the case of any notice
pursuant to clause (i) of the preceding sentence, such Lender’s) obligations to maintain their
respective outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the
earlier to occur of the expiration of the Interest Period then in effect with respect to the
Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding anything herein to the contrary,
to the extent a determination by an Affected Lender as described above relates to a Eurodollar Rate
Loan then being requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation
Notice, Borrower shall have the option, subject to the provisions of Section 2.16(c), to rescind
such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving written or
telephonic notice (promptly confirmed by delivery of written notice thereof) to Administrative
Agent of such rescission on the date on which the Affected Lender gives notice of its determination
as described above (which notice of rescission Administrative Agent shall promptly transmit to each
other Lender).



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     (c) Compensation for Breakage or Non-Commencement of Interest Periods. The Borrower
shall compensate each Lender, as promptly as practicable after written request by such Lender
(which request shall set forth the basis for requesting such amounts and shall be conclusive absent
manifest error), for all reasonable losses, expenses and liabilities (including any interest paid
or calculated to be due and payable by such Lender to lenders of funds borrowed by it to make or
carry its Eurodollar Rate Loans and any loss, expense or liability sustained by such Lender in
connection with the liquidation or deployment of such funds but excluding loss of anticipated
profits) which such Lender may sustain: (i) if for any reason (other than a default by such
Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in a
Funding Notice or a telephonic request for borrowing, or a conversion to or continuation of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Conversion/Continuation
Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other
principal payment of, or any conversion of, any of its Eurodollar Rate Loans occurs on a date prior
to the last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of any of
its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by
Borrower.



     (d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an
Affiliate of such Lender.



     (e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all
amounts payable to a Lender under this Section 2.16 and under Section 2.17 shall be made as though
such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of
a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and
having a maturity comparable to the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in
the United States of America; provided, however, each Lender may fund each of its
Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized
only for the purposes of calculating amounts payable under this Section 2.16 and under Section
2.17.



     2.17. Increased Costs; Capital Adequacy.



     (a) Compensation for Increased Costs and Taxes. In the event that any Lender (which
term shall include Issuing Bank for purposes of this Section 2.17(a)) shall reasonably determine
(which determination shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) that any Applicable Law, or any change therein or in the interpretation,
administration or application thereof (including the introduction of any new Applicable Law), or
any determination of any Governmental Authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or directive issued or made after
the date hereof by any Governmental Authority (whether or not having the force of law): (i)
subjects such Lender (or its applicable lending office) to any additional Tax (other than any
Excluded Taxes (including any change in the rate of Excluded Taxes), Indemnified Taxes or Other
Taxes covered under Section 2.18) with respect to this Agreement or any of the other Credit
Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its
applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii)
imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement
against assets held by, or deposits or other liabilities in or for the account of, or advances or
loans by, or other credit extended by, or any other acquisition of funds by, any office of such
Lender (other than any such reserve or other requirements with respect to Eurodollar Rate Loans
that are reflected in the definition of Adjusted Eurodollar Rate); or (iii) imposes any other
condition (other than with respect to a Tax matter)



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on or affecting such Lender (or its applicable
lending office) or its obligations hereunder or the London interbank market; and the result of any
of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining
Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable
lending office) with respect thereto; provided that, notwithstanding anything herein to the
contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests,
rules, guidelines or directives promulgated by the Bank for International settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States
regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed a change
of law, regardless of the date enacted, adopted or issued; then, in any such case, Borrower shall
pay to such Lender, as promptly as practicable after receipt of the statement referred to in the
next sentence, such additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as may be necessary to compensate such Lender for any such increased cost or reduction
in amounts received or receivable hereunder. Such Lender shall deliver to Borrower (with a copy to
Administrative Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Lender under this Section 2.17(a), which statement
shall be conclusive and binding upon all parties hereto absent manifest error.




     (b) Capital Adequacy Adjustment. In the event that any Lender (which term shall
include Issuing Bank for purposes of this Section 2.17(b)) shall have reasonably determined that
the adoption, effectiveness, phase in or applicability after the Closing Date of any Applicable Law
regarding capital adequacy, reserve requirements or similar requirements, or any change therein or
in the interpretation, application or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its applicable lending office) with any Applicable Law regarding capital
adequacy, reserve requirements or similar requirements (whether or not having the force of law) of
any such Governmental Authority, has or would have the effect of reducing the rate of return on the
capital of such Lender or any corporation controlling such Lender as a consequence of, or with
reference to, such Lender’s Loans or Revolving Commitments or Letters of Credit, or participations
therein or other obligations hereunder with respect to the Loans or the Letters of Credit to a
level below that which such Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase in, applicability, change or compliance (taking into consideration
the policies of such Lender or such controlling corporation with regard to capital adequacy);
provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives
promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States regulatory authorities, in each case
pursuant to Basel III, shall in each case be deemed a change of law, regardless of the date
enacted, adopted or issued, then from time to time, within five Business Days after receipt by
Borrower from such Lender of the statement referred to in the next sentence, Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender or such controlling
corporation on an after tax basis for such reduction. Such Lender shall deliver to Borrower (with a
copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to Lender under this Section 2.17(b), which statement shall
be conclusive and binding upon all parties hereto absent manifest error.



     2.18. Taxes; Withholding, etc.



     (a) Payments to Be Free and Clear. All sums payable by or on behalf of any Credit
Party hereunder and under the other Credit Documents shall (except to the extent required by law)
be paid free and clear of, and without any deduction or withholding on account of, any Tax.



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     (b) Withholding of Taxes. If any Credit Party or any other applicable withholding
agent is required by law to make any deduction or withholding on account of any Indemnified Taxes
or Other Taxes from any sum paid or payable by any Credit Party to any Agent or any Lender (which
term shall include each Swing Line Lender and Issuing Bank for purposes of this Section 2.18) under
any of the Credit Documents: (i) Borrower shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Borrower becomes aware of it; (ii) the
applicable withholding agent shall make such deduction or withholding and pay such Indemnified
Taxes or Other Taxes before the date on which penalties attach thereto, such payment to be made (if
the liability to pay is imposed on any Credit Party) for its own account or (if that liability is
imposed on Administrative Agent or such Lender, as the case may be) on behalf of and in the name of
Administrative Agent or such Lender; (iii) the sum payable by the Credit Party in respect of which
the relevant deduction, withholding or payment is required shall be increased to the extent
necessary to ensure that, after the making of that deduction, withholding or payment (including any
deduction, withholding or payment applicable to additional amounts payable under this Section
2.18), Administrative Agent or such Lender, as the case may be, receives on the due date a net sum
equal to what it would have received had no such deduction, withholding or payment been required or
made; and (iv) within thirty days after paying any sum from which it is required by law to make any
deduction or withholding, and within thirty days after the due date of payment of any Indemnified
Taxes or Other Taxes which it is required by clause (ii) above to pay, Borrower (if Borrower is the
withholding agent) shall deliver to Administrative Agent evidence satisfactory to the other
affected parties of such deduction, withholding or payment and of the remittance thereof to the
relevant taxing or other authority.



     (c) Borrower agrees to indemnify each Agent and each Lender for (i) the full amount of
Indemnified Taxes and Other Taxes (including any Indemnified Taxes or Other Taxes attributable to
any amounts payable under this Section 2.18) payable by such Agent or such Lender (whether or not
such Taxes are correctly or legally imposed) and (ii) any expenses arising therefrom or with
respect thereto. A certificate from the relevant Lender or Agent, setting forth in reasonable
detail the basis and calculation of such Taxes shall be conclusive, absent manifest error.



     (d) Evidence of Exemption from Withholding Tax. Each Lender shall, at such times as
are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the
Administrative Agent with any documentation prescribed by law or reasonably requested by Borrower
or Administrative Agent certifying as to any entitlement of such Lender to an exemption from, or
reduction in, withholding tax with respect to any payments to be made to such Lender under the
Credit Documents. Each Lender shall, whenever a lapse in time or change in such Lender’s
circumstances renders such documentation obsolete, expired or inaccurate in any material respect,
deliver promptly to the Borrower and the Administrative Agent updated or other appropriate
documentation (including any new documentation reasonably requested by the applicable withholding
agent) or promptly notify the Borrower and the Administrative Agent of its inability to do so.



     Without limiting the foregoing:




     (A) Each Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non-U.S.
Lender”) shall, to the extent it is legally eligible to do so, deliver to Administrative
Agent for transmission to Borrower, on or prior to the Closing Date (in the case of each
Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date
of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the determination of Borrower or
Administrative Agent (each in the reasonable exercise of its discretion), (i) two original
copies of Internal Revenue Service Form



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W-8BEN or W-8ECI (or, in each case, any successor
forms), properly completed and duly executed by such Lender, and such other documentation
required under the Internal Revenue Code and reasonably requested by Borrower to establish
that such Lender is not subject to deduction or withholding of United States federal income
tax with respect to any payments to such Lender of principal, interest, fees or other
amounts payable under any of the Credit Documents, (ii) if such Lender is not a “bank” or
other Person described in Section 881(c)(3) of the Internal Revenue Code, a Certificate re
Non Bank Status substantially in the form of Exhibit E, together with two original copies of
Internal Revenue Service Form W-8BEN (or any successor form), properly completed and duly
executed by such Lender or (iii) to the extent a Lender is not the beneficial owner (for
example, where the Lender is a partnership, or is a Participant holding a participation
granted by a participating Lender), Internal Revenue Service Form W-8IMY (or any successor
forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN, a Certificate re Non Bank Status
substantially in the form of Exhibit E, Form W-9, Form W-8IMY or any other required
information from each beneficial owner, as applicable (provided that, if one or more
beneficial owners are claiming the portfolio interest exemption, the Certificate re Non Bank
Status substantially in the form of Exhibit E may be provided by such Lender on behalf of
such beneficial owner) and such other documentation required under the Internal Revenue Code
and reasonably requested by Borrower to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to any payments to
such Lender of interest payable under any of the Credit Documents.




     (B) Each Lender that is a United States person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes (a
“U.S. Lender”) and is not an exempt recipient within the meaning of Treasury Regulation
Section 1.6049-4(c) shall deliver to Administrative Agent and Borrower on or prior to the
Closing Date (or, if later, on or prior to the date on which such Lender becomes a party to
this Agreement) two original copies of Internal Revenue Service Form W-9 (or any successor
form), properly completed and duly executed by such Lender, certifying that such U.S. Lender
is entitled to an exemption from United States backup withholding tax, or otherwise prove
that it is entitled to such an exemption.




     (C) If a payment made to a Lender under any of the Credit Documents would be subject to
United States federal withholding tax imposed by FATCA if such Lender were to fail to comply
with the applicable reporting requirements of FATCA (including those contained in Section
1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver
to Administrative Agent and Borrower, at the time or times prescribed by law and at such
time or times reasonably requested by Administrative Agent or Borrower, such documentation
prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the
Internal Revenue Code) and such additional documentation reasonably requested by
Administrative Agent or Borrower as may be necessary for Administrative Agent or Borrower to
comply with its obligations under FATCA, to determine that such Lender has complied with
such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from
such payment. For purposes of this clause, FATCA shall include any regulations or official
interpretations thereof.




     (D) Each Lender required to deliver any forms, certificates or other evidence with
respect to United States federal income tax withholding matters pursuant to this Section
2.18(d) hereby agrees, from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or change in such Lender’s
circumstances renders such forms, certificates or other evidence expired, obsolete or
inaccurate in any material respect, that such Lender shall promptly deliver to
Administrative Agent for transmission to Borrower



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two new original copies of Internal
Revenue Service Form W-8BEN, W-8ECI and/or W-8IMY (or, in each case, any successor form), or
a Certificate re Non Bank Status and two original copies of Internal Revenue Service Form
W-8BEN (or any successor form), as the case may be, properly completed and duly executed by
such Lender, and such other documentation required under the Internal Revenue Code and
reasonably requested by Borrower to confirm or establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to payments to
such Lender under the Credit Documents, or notify Administrative Agent and Borrower of its
inability to deliver any such forms, certificates or other evidence.



     Notwithstanding anything to the contrary, a Lender shall be required to provide any
documentation under this Section 2.18(d) only to the extent it is legally eligible to do so.



     (e) Payment of Taxes. In addition, Borrower agrees to pay any present or future
stamp, court or documentary Taxes and any other excise, property, intangible or mortgage recording
Taxes imposed by any Governmental Authority, which arise from any payment made under any Credit
Document or from the execution, delivery, performance, enforcement or registration of, or otherwise
with respect to, any Credit Document (“Other Taxes”).



     (f) Treatment of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 2.18 (including additional amounts paid pursuant to this
Section 2.18), it shall pay to the indemnifying party an amount equal to such refund (but only to
the extent of indemnity payments made under this Section with respect to the Taxes giving rise to
such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified party and
without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay
to such indemnified party the amount paid to such indemnified party pursuant to the previous
sentence (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event such indemnified party is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this Section 2.18(f), in no
event will any indemnified party be required to pay any amount to any indemnifying party pursuant
to this Section 2.18(f) if such payment would place such indemnified party in a less favorable
position (on a net after-Tax basis) than such indemnified party would have been in if the
indemnification payments or additional amounts giving rise to such refund had never been paid.
This Section 2.18(f) shall not be construed to require any indemnified party to make available its
Tax returns (or any other information relating to its Taxes which it deems confidential) to the
indemnifying party or any other Person.



     2.19. Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for purposes of
this Section 2.19) agrees that, as promptly as practicable after the officer of such Lender
responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of
the occurrence of an event or the existence of a condition that would cause such Lender to become
an Affected Lender or that would entitle such Lender to receive payments under Section 2.16, 2.17
or 2.18, it will, to the extent not inconsistent with the internal policies of such Lender and any
applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Credit Extensions, including any Affected Loans, through another office of such
Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof
the circumstances which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.16, 2.17 or 2.18 would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments, Loans
or Letters of Credit through such other office or in accordance with such other measures, as the
case may be, would not otherwise adversely affect such Revolving Commitments, Loans



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or Letters of
Credit or the interests of such Lender; provided, such Lender will not be obligated to
utilize such other office or take such other measures pursuant to this Section 2.19 unless Borrower
agrees to pay all reasonable incremental expenses incurred by such Lender as a result of utilizing
such other office or take such other measures as described above. A certificate as to the amount
of any such expenses payable by Borrower pursuant to this Section 2.19 (setting forth in reasonable
detail the basis for requesting such amount) submitted by such Lender to Borrower (with a copy to
Administrative Agent) shall be conclusive absent manifest error.




     2.20. Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event
that any Lender becomes a Defaulting Lender, then during any Default Period with respect to such
Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender” for purposes of any
amendment, waiver or consent with respect to any provision of the Credit Documents that requires
the approval of Requisite Lenders, and Borrower shall pay to Administrative Agent such additional
amounts of cash as reasonably requested by the Issuing Bank or the Swing Line Lender to be held as
security for Borrower’s reimbursement Obligations in respect of Letters of Credit and Swing Line
Loans then outstanding (such amount not to exceed such Defaulting Lender’s obligations under
Sections 2.2 and 2.3). During any Default Period with respect to a Funds Defaulting Lender that is
not also an Insolvency Defaulting Lender, (a) any amounts that would otherwise be payable to such
Funds Defaulting Lender with respect to its Revolving Loans and Revolving Commitments under the
Credit Documents (including, without limitation, voluntary and mandatory prepayments and fees)
shall, in lieu of being distributed to such Funds Defaulting Lender, be retained by Administrative
Agent and applied in the following order of priority: first, to the payment of any amounts owing
by such Funds Defaulting Lender to Administrative Agent, second, to the payment of any amounts
owing by such Funds Defaulting Lender to the Swing Line Lender, third, to the payment of any
amounts owing by such Funds Defaulting Lender to the Issuing Bank, and fourth, to the payment of
the Revolving Loans of other Lenders (but not to the Revolving Loans of such Funds Defaulting
Lender) as if such Funds Defaulting Lender had funded all Defaulted Loans of such Funds Defaulting
Lender; and (b) the Total Utilization of Revolving Commitments as at any date of determination
shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting
Lender. During any Default Period with respect to an Insolvency Defaulting Lender, any amounts
that would otherwise be payable to such Insolvency Defaulting Lender under the Credit Documents
(including, without limitation, voluntary and mandatory prepayments and fees including fees payable
under Section 2.10(d)) may, in lieu of being distributed to such Insolvency Defaulting Lender, be
retained by Administrative Agent to collateralize indemnification and reimbursement obligations of
such Insolvency Defaulting Lender in an amount reasonably determined by Administrative Agent. No
Revolving Commitment of any Lender shall be increased or otherwise affected, and, except as
otherwise expressly provided in this Section 2.20, performance by Borrower of its obligations
hereunder and the other Credit Documents shall not be excused or otherwise modified as a result of
any Lender becoming a Defaulting Lender or the operation of this Section 2.20. The rights and
remedies against a Defaulting Lender under this Section 2.20 are in addition to other rights and
remedies which Borrower may have against such Defaulting Lender as a result of it becoming a
Defaulting Lender and which Administrative Agent or any Lender may have against such Defaulting
Lender with respect thereto.



     2.21. Removal or Replacement of a Lender. Anything contained herein to the contrary
notwithstanding, in the event that: (a) (i) any Lender (an “Increased Cost Lender”) shall give
notice to Borrower that such Lender is an Affected Lender or that such Lender is entitled to
receive payments under Section 2.16, 2.17 or 2.18, (ii) the circumstances which have caused such
Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain
in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after
Borrower’s request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender,
(ii) the Default Period for such Defaulting Lender shall remain in effect, and (iii) such
Defaulting Lender shall fail to cure the default as a result of



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which it has become a Defaulting
Lender within five Business Days after Borrower’s request that it cure such default; or (c) in
connection with any proposed amendment, modification, termination, waiver or consent with respect
to any of the provisions hereof as contemplated by Section 10.5(b), the consent of Requisite
Lenders shall have been obtained but the consent of one or more of such other Lenders (each a
“Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect
to each such Increased Cost Lender, Defaulting Lender or Non-Consenting Lender (the “Terminated
Lender”), Borrower may, by giving written notice to Administrative Agent and any Terminated Lender
of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby
irrevocably agrees) to assign its outstanding Loans and its Revolving Commitments, if any, in full
to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions
of Section 10.6 and Borrower shall pay the fees, if any, payable thereunder in connection with any
such assignment from an Increased Cost Lender, a Non-Consenting Lender or Insolvency Defaulting
Lender, and the Funds Defaulting Lender (if not also an Insolvency Defaulting Lender) shall pay the
fees, if any, payable thereunder in connection with any such assignment from such Defaulting
Lender; provided, (1) on the date of such assignment, the Replacement Lender shall pay to
Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of the Terminated Lender, (B) an amount equal to all
unreimbursed drawings that have been funded by such Terminated Lender, together with all then
unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but
theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.10; (2) on the date
of such assignment, Borrower shall pay any amounts payable to such Terminated Lender pursuant to
Section 2.16(c), 2.17 or 2.18; or otherwise as if it were a prepayment; (3) in the case of any
assignment resulting from a claim for compensation under Section 2.17 or payments required to be
made under Section 2.18, such assignment will result in a reduction in such compensation or payment
and (4) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender
shall consent, at the time of such assignment, to each matter in respect of which such Terminated
Lender was a Non-Consenting Lender; provided that Borrower may not make such election with
respect to any Terminated Lender that is also an Issuing Bank unless, prior to the effectiveness of
such election, Borrower shall have caused each outstanding Letter of Credit issued thereby to be
cancelled. Upon the prepayment of all amounts owing to any Terminated Lender and the termination
of such Terminated Lender’s Revolving Commitments, if any, such Terminated Lender shall no longer
constitute a “Lender” for purposes hereof; provided that any rights of such Terminated
Lender to indemnification hereunder shall survive as to such Terminated Lender. Each Lender agrees
that if Borrower exercises its option hereunder to cause an assignment by such Lender as a
Terminated Lender, such Lender shall, promptly after receipt of written notice of such election,
execute and deliver all documentation necessary to effectuate such assignment in accordance with
Section 10.6. In the event that a Terminated Lender does not comply with the requirements of the
immediately preceding sentence within one Business Day after receipt of such notice, each Lender
hereby authorizes and directs the Administrative Agent to execute and deliver such documentation as
may be required to give effect to an assignment in accordance with Section 10.6 on behalf of such
Terminated Lender and any such documentation so executed by the Administrative Agent shall be
effective for purposes of documenting an assignment pursuant to Section 10.6.




     2.22. Interest Act (Canada). For purposes of disclosure pursuant to the Interest Act (Canada), the
annual rates of interest or fees to which the rates of interest or fees provided for in this
Agreement and the other Credit Documents (and stated herein or therein, as applicable, to be
computed on the basis of a 360 day year or any other period of time less than a calendar year) are
equivalent are the rates so provided for multiplied by the actual number of days in the applicable
calendar year and divided by 360 or the actual number of days in such other period of time,
respectively.



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SECTION 3. CONDITIONS PRECEDENT




     3.1. Closing Date. The obligation of each Lender to make a Revolving Loan or to issue a Letter of
Credit, in each case on the Closing Date is subject to the satisfaction, or waiver in accordance
with Section 10.5, of the following conditions on or before the Closing Date:




     (a) Credit Documents. Administrative Agent and Arranger shall have received
sufficient copies of this Agreement and the Pledge and Security Agreement originally
executed and delivered by each applicable Credit Party for each Agent.




     (b) Organizational Documents; Incumbency. Administrative Agent and Arranger
shall have received (i) a copy of each Organizational Document executed and delivered by
each Credit Party, as applicable, and, to the extent applicable, certified as of a recent
date by the appropriate governmental official, each dated the Closing Date or a recent date
prior thereto; (ii) signature and incumbency certificates of the officers of such Person
executing the Credit Documents to which it is a party; (iii) resolutions of the board of
directors or similar governing body of each Credit Party approving and authorizing the
execution, delivery and performance of this Agreement and the other Credit Documents to
which it is a party or by which it or its assets may be bound as of the Closing Date,
certified as of the Closing Date by its secretary or an assistant secretary as being in full
force and effect without modification or amendment; (iv) a certificate of status,
certificate of compliance or other certificate of good standing from the applicable
Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization,
amalgamation or formation and in each jurisdiction in which it is qualified as a foreign
corporation or other entity to do business, each dated a recent date prior to the Closing
Date; and (v) such other documents, including, without limitation, current international SRL
licenses for the applicable Barbados Credit Parties, as Administrative Agent and Arranger
may reasonably request.




     (c) No Material Adverse Effect. Since January 1, 2011, there shall not have
occurred any fact, circumstance, effect, change, event or development that, individually or
in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect
on Parent and its Subsidiaries.




     (d) Governmental Authorizations and Consents. Each Credit Party shall have
obtained all Governmental Authorizations and all consents of other Persons, in each case
that are necessary or advisable in connection with the Transactions and each of the
foregoing shall be in full force and effect and in form and substance reasonably
satisfactory to Administrative Agent and Arranger. All applicable waiting periods shall
have expired without any action being taken or threatened by any competent authority which
would restrain, prevent or otherwise impose adverse conditions on the Transactions and no
action, request for stay, petition for review or rehearing, reconsideration, or appeal with
respect to any of the foregoing shall be pending, and the time for any applicable agency to
take action to set aside its consent on its own motion shall have expired.




     (e) Real Estate Assets. In order to create in favor of Collateral Agent, for
the benefit of Secured Parties, a valid and, subject to Liens permitted to exist pursuant to
the Mortgages related thereto and any filing and/or recording referred to herein, perfected
First Priority security interest in certain Real Estate Assets, Collateral Agent shall have
received from Borrower and each applicable Guarantor:




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     (i) fully executed and notarized Mortgages, in proper form for
registering or recording in all appropriate places in all applicable jurisdictions,
encumbering each Material Real Estate Asset listed in Schedule 3.1(e)(i) (each, a
“Mortgaged Property”);




     (ii) an opinion of counsel (which counsel shall be reasonably satisfactory
to Collateral Agent) in each state, province or other jurisdiction in which a
Mortgaged Property is located with respect to the enforceability of the form(s) of
Mortgages to be registered or recorded in such state, province or other jurisdiction
and such customary other matters as Collateral Agent may reasonably request, in each
case in form and substance reasonably satisfactory to Collateral Agent;




     (iii) (A) ALTA mortgagee title insurance policies (or title insurance
policies in such form as is customary in the relevant jurisdiction) or unconditional
commitments therefor issued by one or more title companies reasonably satisfactory
to Collateral Agent with respect to each Mortgaged Property (each, a “Title
Policy”), in amounts not less than the fair market value of each Mortgaged Property,
together with a title report issued by a title company with respect thereto, dated
not more than thirty days prior to the Closing Date and copies of all recorded
documents listed as exceptions to title or otherwise referred to therein, each in
form and substance reasonably satisfactory to Collateral Agent and (B) evidence
satisfactory to Collateral Agent that such Credit Party has paid to the title
company or to the appropriate Governmental Authorities all expenses and premiums of
the title company and all other sums required in connection with the issuance of
each Title Policy and all recording and stamp taxes (including mortgage recording
and intangible taxes) payable in connection with recording the Mortgages for each
Mortgaged Property in the appropriate real estate records;




     (iv) standard flood hazard determination certifications with respect to all
Mortgaged Properties located in the United States and evidence of flood insurance
with respect to each Flood Hazard Property that is located in a community that
participates in the National Flood Insurance Program, in each case in compliance
with any applicable regulations of the Board of Governors, in form and substance
reasonably satisfactory to Collateral Agent; and




     (v) ALTA surveys (or surveys in such form as is customary in the relevant
jurisdiction) of all Mortgaged Properties, certified to Collateral Agent and dated
not more than thirty days prior to the Closing Date or copies of existing surveys
currently in the possession of Parent, Borrower or any of their respective
Subsidiaries if such existing surveys are, together with any affidavits of no change
or other related affidavits that may be required by the title companies, sufficient
for the title companies to issue survey related endorsements to the mortgagee title
insurance policies referred to above.




     (f) Personal Property Collateral. In order to create in favor of
Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority
security interest in the personal property Collateral, each Credit Party shall have
delivered to Collateral Agent:




     (i) evidence satisfactory to Collateral Agent of the compliance by each
Credit Party with its obligations under the Pledge and Security Agreement, the
Canadian Pledge and Security Agreement, the Barbados Security Documents and the
other Collateral Documents (including their obligations to execute and deliver, file
or register UCC and PPSA financing statements (or equivalent filings), as
applicable, to deliver originals



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of securities, instruments and chattel paper and any agreements governing
deposit and/or securities accounts as provided therein), as applicable;




     (ii) a completed Collateral Questionnaire dated the Closing Date and
executed by an Authorized Officer of each Credit Party, together with all
attachments contemplated thereby, including (A) the results of a recent lien search,
by a Person reasonably satisfactory to the Collateral Agent, of all effective UCC
and PPSA financing statements (or equivalent filings) made with respect to any
personal property of such Credit Party in each jurisdiction where the Collateral
Agent, acting reasonably, considers it to be necessary or desirable that such
searches be conducted, together with copies of all such filings disclosed by such
search, and (B) UCC and PPSA financing change statements (or similar documents) duly
executed or authorized by all applicable Persons for filing in all applicable
jurisdictions as may be necessary to terminate any effective UCC or PPSA financing
statements (or equivalent filings) disclosed in such search (other than any such
financing statements in respect of Permitted Liens);




     (iii) fully executed Intellectual Property Security Agreements, in proper
form for filing or recording in all appropriate places in all applicable
jurisdictions in the United States and Canada, memorializing and recording the
encumbrance of the Intellectual Property Assets listed in Schedule 5.2 to the Pledge
and Security Agreement and the analogous sections of any other Collateral Documents;




     (iv) opinions of counsel in each jurisdiction which governs the validity,
attachment, perfection, effect of perfection or of non-perfection, or priority of
any personal property Collateral in which any Credit Party has an interest (which
counsel shall be reasonably satisfactory to Collateral Agent) with respect to the
creation and perfection of the security interests in favor of Collateral Agent in
such Collateral and such other matters governed by the laws of each jurisdiction in
which any Credit Party or any personal property Collateral is located as Collateral
Agent may reasonably request, in each case in form and substance reasonably
satisfactory to Collateral Agent; and




     (v) evidence satisfactory to Collateral Agent that Borrower has retained,
at its sole cost and expense, a service provider acceptable to Collateral Agent for
the tracking of all of UCC financing statements of Borrower and the Guarantors and
that will provide notification to Collateral Agent of, among other things, the
upcoming lapse or expiration thereof.




     (g) [Reserved].




     (h) Evidence of Insurance. Collateral Agent shall have received a
certificate from Borrower’s insurance broker or other evidence satisfactory to it that all
insurance required to be maintained pursuant to Section 5.5 is in full force and effect,
together with endorsements naming the Collateral Agent, for the benefit of Secured Parties,
as additional insured and loss payee thereunder to the extent required under Section 5.5.




     (i) Opinions of Counsel to Credit Parties. Lenders and their respective
counsel shall have received originally executed copies of the favorable written opinions of:




     (i) Skadden, Arps, Slate, Meagher & Flom LLP, U.S. counsel to Parent and
Borrower,



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     (ii) Chancery Chambers, special Barbados counsel to Parent and Borrower;
and




     (iii) Norton Rose OR LLP, special Canadian counsel to Parent and Borrower




in each case as to such matters as Administrative Agent may reasonably request, dated as of
the Closing Date and otherwise in form and substance reasonably satisfactory to
Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such
opinions to Agents and Lenders).




     (j) Fees. Borrower shall have paid to GSLP the fees payable on the Closing
Date referred to in Section 2.10.




     (k) Solvency Certificate. On the Closing Date, Administrative Agent and
Arranger shall have received a Solvency Certificate dated the Closing Date and addressed to
Administrative Agent and Lenders, and in form, scope and substance satisfactory to
Administrative Agent, certifying that Parent and its Subsidiaries that are Credit Parties
are and will be Solvent on a consolidated basis.




     (l) Closing Date Certificate. Borrower shall have delivered to
Administrative Agent and Arranger an originally executed Closing Date Certificate.


Each Lender, by delivering its signature page to this Agreement and funding a Loan on the Closing
Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit
Document and each other document required to be approved by any Agent, Requisite Lenders or
Lenders, as applicable on the Closing Date. Notwithstanding the foregoing, if, after the
commercially reasonable efforts of Borrower and Parent to do so, any Lien on the Collateral
required to be created and perfected pursuant to paragraphs (e) and (f) of this Section 3.1 (other
than (i) the pledge and perfection of Collateral with respect to which a Lien may be perfected
solely by the filing of financing statements under the UCC or PPSA statements under PPSA, (ii)
filings of Intellectual Property Security Agreements with the U.S. Patent and Trademark Office and
the U.S. Copyright Office with respect to Collateral consisting of Intellectual Property Assets and
(iii) to the extent applicable, the delivery of certificated securities representing intercompany
debt or Equity Interests required to constitute Collateral and related security powers) is not or
cannot be provided or perfected on the Closing Date, the creation and/or perfection of such Lien
shall be deemed not to be a condition precedent to the Closing Date but shall be required to be
satisfied in accordance with Section 5.15.




     Notwithstanding anything to the contrary contained in this Agreement or the other Credit
Documents, the parties hereto acknowledge and agree that (i) the delivery of any document or
instrument, and the taking of any action, set forth on Schedule 5.15 hereto shall not be a
condition precedent to the Closing Date but shall be required to be satisfied after the Closing
Date in accordance with Schedule 5.15 hereto, and (ii) all conditions precedent and
representations, warranties, covenants, Events of Default and other provisions contained in this
Agreement and the other Credit Documents shall be deemed modified as set forth on Schedule 5.15
hereto (and to permit the taking of the actions described therein within the time periods required
therein, rather than as elsewhere provided in the Credit Documents); provided that (x) to
the extent any representation and warranty would not be true because the actions set forth therein
were not taken on the Closing Date, the respective representation and warranty shall be required to
be true and correct in all material respects at the time the respective action is taken (or was
required to be taken) in accordance with the provisions of Schedule 5.15 and (y) all
representations and warranties relating to the Collateral Documents set forth in Schedule 5.15
shall be required to be true immediately after the actions required to be taken by Schedule 5.15
have been taken (or were required to be taken).



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     3.2. Conditions to Each Credit Extension.



     (a) Conditions Precedent. The obligation of each Lender to make any Loan, or
Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Closing Date, are
subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions
precedent:




     (i) Administrative Agent shall have received a fully executed and delivered Funding
Notice or Issuance Notice, as the case may be;




     (ii) after making the Credit Extensions requested on such Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in
effect;




     (iii) as of such Credit Date, the representations and warranties contained herein
and in the other Credit Documents, in each case, shall be true and correct in all material
respects on and as of that Credit Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date; provided that, in
each case, such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof;




     (iv) no event shall have occurred and be continuing or would result from the
consummation of the applicable Credit Extension that would constitute an Event of Default or
a Default; and




     (v) on or before the date of issuance of any Letter of Credit, Administrative Agent
shall have received all other information required by the applicable Letter of Credit
Application, and such other documents or information as Issuing Bank may reasonably require
in connection with the issuance of such Letter of Credit.



     (b) Notices. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, Parent or Borrower, as
applicable, may give Administrative Agent telephonic notice by the required time of any proposed
borrowing, conversion/continuation or issuance of a Letter of Credit, as the case may be;
provided that each such telephonic notice shall be promptly confirmed in writing by
delivery of the applicable Notice to Administrative Agent on or before the close of business on the
date that the telephonic notice is given. In the event of a discrepancy between the telephonic
notice and the written Notice, the written Notice shall govern. In the case of any Notice that is
irrevocable once given, if Parent or Borrower, as applicable, provides telephonic notice in lieu
thereof, such telephone notice shall also be irrevocable once given. Neither Administrative Agent
nor any Lender shall incur any liability to Parent or Borrower, as applicable, in acting upon any
telephonic notice referred to above that Administrative Agent believes in good faith to have been
given by a duly authorized officer or other person authorized on behalf of Parent or Borrower, as
applicable or for otherwise acting in good faith.



SECTION 4. REPRESENTATIONS AND WARRANTIES




     In order to induce Agent, Lenders and Issuing Bank to enter into this Agreement and to make
each Credit Extension to be made thereby, each Credit Party represents and warrants to each Agent,
each Lender and Issuing Bank, on the Closing Date and on each Credit Date, that the following
statements are true and correct.



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     4.1. Organization; Requisite Power and Authority; Qualification. Except as otherwise set forth on
Schedule 4.1, each of Parent, Borrower and their respective Subsidiaries (a) is duly organized,
validly existing and, to the extent such concept is applicable in the relevant jurisdiction, in
good standing under the laws of its jurisdiction of organization as identified in Schedule 4.1, (b)
has all requisite power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is
a party and to carry out the transactions contemplated thereby, and (c) to the extent such concept
is applicable in the relevant jurisdiction, is qualified to do business and in good standing in
every jurisdiction where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or in good standing
has not had, and could not be reasonably expected to have, a Material Adverse Effect.



     4.2. Equity Interests and Ownership. The Equity Interests of each of Parent, Borrower and their
respective Subsidiaries have been duly authorized and validly issued and are fully paid and
non-assessable. Except as set forth on Schedule 4.2, as of the date hereof, there is no existing
option, warrant, call, right, commitment or other agreement to which Parent, Borrower or any of
their respective Subsidiaries is a party requiring, and there is no membership interest or other
Equity Interests of Parent, Borrower or any of their respective Subsidiaries outstanding which upon
conversion or exchange would require, the issuance by Parent, Borrower or any of their respective
Subsidiaries of any additional membership interests or other Equity Interests of Parent, Borrower
or any of their respective Subsidiaries or other Securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase a membership interest or other Equity Interests
of Parent, Borrower or any of their respective Subsidiaries. Schedule 4.2 correctly sets forth the
ownership interest of Parent, Borrower and each of their respective Subsidiaries as of the Closing
Date.



     4.3. Due Authorization. The execution, delivery and performance of the Credit Documents have been
duly authorized by all necessary action on the part of each Credit Party that is a party thereto.



     4.4. No Conflict. The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions contemplated by the
Credit Documents do not and will not (a) violate (i) any provision of any Applicable Law, (ii) any
of the Organizational Documents of Parent, Borrower or any of their respective Subsidiaries, or
(iii) any order, judgment or decree of any court or other agency of government binding on Parent,
Borrower or any of their respective Subsidiaries, except with respect to clauses (i) and (iii) to
the extent that such violation could not reasonably be expected to have a Material Adverse Effect;
(b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of Parent, Borrower or any of their respective
Subsidiaries, except to the extent that such conflict, breach or default could not reasonably be
expected to have a Material Adverse Effect; (c) result in or require the creation or imposition of
any Lien upon any of the properties or assets of Parent, Borrower or any of their respective
Subsidiaries (other than any Liens created under any of the Credit Documents in favor of Collateral
Agent, on behalf of Secured Parties); or (d) require any approval of stockholders, members or
partners or any approval or consent of any Person under any Contractual Obligation of Parent,
Borrower or any of their respective Subsidiaries, except for such approvals or consents which will
be obtained on or before the Closing Date and disclosed in writing to Lenders and except for any
such approval or consent the failure of which to obtain could not reasonably be expected to have a
Material Adverse Effect.



     4.5. Governmental Consents. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the Transactions do not and will
not require any registration with, consent or approval of, or notice to, or other action to, with
or by, any



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Governmental Authority, and except for filings and recordings with respect to the Collateral
to be made, or otherwise delivered to Collateral Agent for filing and/or recordation.




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



     4.7. Historical Financial Statements. The Historical Financial Statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the Persons described in such financial statements as at the respective
dates thereof and the results of operations and cash flows, on a consolidated basis, of the Persons
described therein for each of the periods then ended, subject, in the case of any such unaudited
financial statements, to changes resulting from audit and normal year end adjustments and the
absence of footnotes. As of the Closing Date, none of Parent, Borrower or any of their respective
Subsidiaries has any contingent liability or liability for taxes, long term lease or unusual
forward or long term commitment that is not reflected in the Historical Financial Statements or the
notes thereto and which in any such case is material in relation to the business, operations,
properties, assets or condition (financial or otherwise) of Parent, Borrower and their respective
Subsidiaries taken as a whole.



     4.8. Projections. On and as of the Closing Date, the Projections of Parent, Borrower and their
respective Subsidiaries for the period of Fiscal Year 2011 through and including Fiscal Year 2014
provided to Lenders or prospective Lenders in writing on or prior to the Closing Date (the
“Projections”) are based on good faith estimates and assumptions made by the management of Parent
and Borrower; provided that the Projections are not to be viewed as facts and that actual
results during the period or periods covered by the Projections may differ from such Projections
and that the differences may be material.



     4.9. No Material Adverse Change. Since January 1, 2011, no event, circumstance or change has
occurred that has caused or evidences, or could reasonably be expected to have, either in any case
or in the aggregate, a Material Adverse Effect.



     4.10. Adverse Proceedings, etc.There are no Adverse Proceedings, individually or in the aggregate,
that could reasonably be expected to have a Material Adverse Effect. None of Parent, Borrower or
any of their respective Subsidiaries (a) is in violation of any Applicable Laws (including
Environmental Laws) that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (b) is subject to or in default with respect to any Governmental
Authority or any final judgments, writs, injunctions, decrees, rules or regulations of any
Governmental Authority, that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.



     4.11. Payment of Taxes. Except for any failure that would not be reasonably expected to,
individually or in the aggregate, result in a Material Adverse Effect:




     (a) all Tax returns and reports of Parent, Borrower and each of their respective
Subsidiaries required to be filed by any of them have been timely filed, and all Taxes
(whether or not shown on such Tax returns) of Parent, Borrower and each of their respective
Subsidiaries and upon their respective properties, assets, income, businesses and franchises
(including in the capacity of a withholding agent) which are due and payable have been
timely paid (except for Taxes that are being contested in accordance with the terms of
Section 5.3) and adequate accruals and



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reserves have been made in accordance with GAAP for Taxes of Parent, Borrower and each
of their respective Subsidiaries in that are not due and payable and




     (b) there is no current, or, to the knowledge of Parent, Borrower or their
respective Subsidiaries, proposed or pending audit, examination, Tax assessment, claims or
proceedings against Parent, Borrower or any of their respective Subsidiaries which is not
being actively contested by Parent, Borrower or such Subsidiary in good faith and by
appropriate proceedings and for which adequate reserves have been made in accordance with
GAAP by Parent, Borrower or any of their respective Subsidiary, as applicable.



     4.12. Properties.



     (a) Title. Each of Parent, Borrower and their respective Subsidiaries has (i)
good, sufficient and legal and beneficial title to (in the case of fee interests in real property),
(ii) valid leasehold interests in (in the case of leasehold interests in real or personal
property), (iii) valid licensed rights in (in the case of licensed interests in intellectual
property) and (iv) good title to (in the case of all other personal property), all of their
respective properties and assets material to its business, except for minor defects in title that
do not interfere with its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes. Except as permitted by this Agreement, all such properties
and assets are free and clear of Liens.



     (b) Real Estate. As of the Closing Date, Schedule 4.12 contains a true, accurate
and complete list of (i) all Real Estate Assets, and (ii) all leases, subleases, licenses or
assignments of leases, subleases, licenses or other agreements (together with all amendments,
modifications, supplements, renewals or extensions of any thereof) affecting each Real Estate Asset
of any Credit Party, regardless of whether such Credit Party is the landlord (licensor) or tenant
(licensee) (whether directly or as an assignee or successor in interest) under such lease,
sublease, license, assignment or other agreement. Each agreement listed in clause (ii) of the
immediately preceding sentence is in full force and effect and neither Parent nor Borrower has
knowledge of any default that has occurred and is continuing thereunder, except to the extent that
the failure to be in full force and effect or the occurrence and continuance of a default,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, and each such agreement constitutes the legally valid and binding obligation of each
applicable Credit Party, enforceable against such Credit Party in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors’ rights generally or by equitable principles. To the knowledge
of the Credit Parties, none of the buildings or other structures located on any Real Estate Asset
encroaches upon any land not owned or leased by a Credit Party (except in a manner that constitutes
a Permitted Lien), and there are no restrictive covenants or statutes, regulations, orders or other
laws which restrict or prohibit the use in any material respect of any Real Estate Asset or such
buildings or structures for the purposes for which they are currently used. To the knowledge of
the Credit Parties, there are no expropriation or similar proceedings, actual or threatened,
against any Real Estate Asset or any part thereof.



     (c) Intellectual Property. Each Credit Party possesses or has, by valid and
enforceable license, ownership or the right to use all Intellectual Property used in the conduct of
its business and, to each Credit Party’s knowledge, has the right to use such Intellectual Property
without violation or infringement of any rights of others with respect thereto.



     4.13. Environmental Matters. None of Parent, Borrower or any of their respective Subsidiaries or
any of their respective Facilities or operations are subject to any actual or, to Parent or
Borrower’s knowledge, as applicable, threatened, order, consent decree or settlement agreement with
any Person pursuant to any Environmental Law or relating to any Environmental Claim or any Release
or threat of



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Release of Hazardous Materials, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. None of Parent, Borrower or any of their
respective Subsidiaries has received any written notice of non-compliance with any Environmental
Law, letter or request for information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law, except
as, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. Each Facility is free from the presence of Hazardous Materials, except for such
materials the presence of which, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect. There are and, to each of Parent’s, Borrower’s and their
respective Subsidiaries’ knowledge, have been no conditions, occurrences, or Release or threat of
Release of Hazardous Materials that could reasonably be expected to form the basis of a
Environmental Claim against Parent, Borrower or any of their respective Subsidiaries that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect. None of Parent, Borrower or any of their respective Subsidiaries or, to any Credit Party’s
knowledge, any predecessor of Parent, Borrower or any of their respective Subsidiaries has filed
any notice under any Environmental Law indicating past or present treatment of Hazardous Materials
at any Facility, except as, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, and none of Parent’s, Borrower’s or any of their respective
Subsidiaries’ operations involves the generation, transportation, treatment, storage or disposal of
hazardous waste, as defined under 40 C.F.R. Parts 260 or 270 or any state or other equivalent, in
each case, except as, individually or in the aggregate could not reasonably be expected to result
in a Material Adverse Effect. Parent, Borrower and each of their respective Subsidiaries,
Facilities and operations are in compliance with applicable Environmental Laws, in each case,
except as, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.




     4.14. No Defaults. None of Parent, Borrower or any of their respective Subsidiaries is in default
in the performance, observance or fulfillment of any of the obligations, covenants or conditions
contained in any of its Contractual Obligations, and no condition exists which, with the giving of
notice or the lapse of time or both, could constitute such a default, except where the
consequences, direct or indirect, of such default or defaults, if any, could not reasonably be
expected to have a Material Adverse Effect.



     4.15. Governmental Regulation. Neither Borrower and its Subsidiaries nor (after giving effect to
the Merger) Parent and its Subsidiaries (other than Borrower and its Subsidiaries) is subject to
regulation under the Investment Company Act of 1940 or any other Applicable Law or Governmental
Authorization that restricts or limits its ability to incur Indebtedness or to perform or satisfy
its Obligations.



     4.16. Employee Matters. None of Parent, Borrower or any of their respective Subsidiaries is engaged
in any unfair labor practice or other labor proceeding (including certification) or complaint that
could reasonably be expected to have a Material Adverse Effect. Except as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is (a) no
unfair labor practice complaint pending against Parent, Borrower or any of their respective
Subsidiaries or, to the knowledge of Parent and Borrower, threatened against any of them before the
National Labor Relations Board or a labor board of any other jurisdiction, and no grievance or
arbitration proceeding arising out of or under any collective bargaining agreement pending against
Parent, Borrower or any of their respective Subsidiaries or, to the knowledge of Parent and
Borrower, threatened against any of them, and none of Parent, Borrower or any of their respective
Subsidiaries is in violation of any collective bargaining agreement, (b) no strike or work stoppage
in existence or, to the knowledge of Parent and Borrower, threatened involving Parent, Borrower or
any of their respective Subsidiaries and (c) to the knowledge of Parent and Borrower, no union
representation question existing with respect to the employees of Parent, Borrower or any of
their respective Subsidiaries and, to the knowledge of Parent and Borrower, no union
organization activity



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is taking place with respect to the employees of Parent, Borrower or any of
their respective Subsidiaries. Except as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, all payments due from any Canadian Credit Party for
employee health and welfare insurance have been paid or accrued as a liability on the books of such
Canadian Credit Party and such Canadian Credit Party has withheld and remitted all employee
withholdings to be withheld or remitted by it and has made all employer contributions to be made by
it, in each case, pursuant to applicable law on account of the Canada Pension Plan maintained by
the Government of Canada, employment insurance, employee income taxes, and any other required
payroll deduction.




     4.17. Employee Benefit Plans. Except as could not reasonably be expected to have a Material Adverse
Effect, (a) Parent, Borrower, each of their respective Subsidiaries and each of their respective
ERISA Affiliates are in compliance with all applicable provisions and requirements of ERISA and the
Internal Revenue Code and the regulations and published interpretations thereunder with respect to
each Employee Benefit Plan, and have performed all their obligations under each Employee Benefit
Plan, (b) each Employee Benefit Plan which is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the Internal Revenue
Service indicating that such Employee Benefit Plan is so qualified and, to the knowledge of Parent
and Borrower, nothing has occurred subsequent to the issuance of such determination letter which
would cause such Employee Benefit Plan to lose its qualified status, (c) no liability to the PBGC
(other than required premium payments), the Internal Revenue Service, any Employee Benefit Plan or
any trust established under Title IV of ERISA has been or is expected to be incurred by Parent,
Borrower, any of their respective Subsidiaries or any of their ERISA Affiliates, (d) no ERISA Event
has occurred or is reasonably expected to occur and (e) except to the extent required under Section
4980B of the Internal Revenue Code or similar state laws, no Employee Benefit Plan provides health
or welfare benefits (through the purchase of insurance or otherwise) for any retired or former
employee of Parent, Borrower, any of their respective Subsidiaries or any of their respective ERISA
Affiliates. The present value of the aggregate benefit liabilities under each Pension Plan
sponsored, maintained or contributed to by Parent, Borrower, any of their respective Subsidiaries
or any of their ERISA Affiliates (determined as of the end of the most recent plan year on the
basis of the actuarial assumptions specified for funding purposes in the most recent actuarial
valuation for such Pension Plan), did not exceed the then-current aggregate value of the assets of
such Pension Plan by more than $70,000,000. As of the most recent valuation date for each
Multiemployer Plan for which the actuarial report is available, the potential liability of Parent,
Borrower, their respective Subsidiaries and their respective ERISA Affiliates for a complete
withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans,
based on information available pursuant to Section 4221(e) of ERISA, is not more than $70,000,000.
Except as could not reasonably be expected to have a Material Adverse Effect, Parent, Borrower,
each of their respective Subsidiaries and each of their ERISA Affiliates have complied with the
requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in
“default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer
Plan.



     4.18. Canadian Employee Benefit Plans.



     (a) Except as could not reasonably be expected to have a Material Adverse Effect, the
Canadian Employee Benefit Plans are, and have been, established, registered, amended, funded,
invested and administered in compliance with the terms of such Canadian Employee Benefit Plans
(including the terms of any documents in respect of such Canadian Employee Benefit Plans), all
Applicable Laws and any applicable collective agreements. There is no investigation by a
Governmental Authority or claim (other than routine claims for payment of benefits) pending or, to
the knowledge of a Canadian Credit Party,
threatened involving any Canadian Employee Benefit Plan or its assets, and no facts exist
which could



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reasonably be expected to give rise to any such investigation or claim (other than
routine claims for payment of benefits) which if determined adversely, could reasonably be expected
to have a Material Adverse Effect.




     (b) All employer and employee payments, contributions and premiums required to be
remitted, paid to or in respect of each Canadian Pension Plan have been paid or remitted in
accordance with its terms and all applicable laws.



     (c) No Canadian Pension Plan Termination Events have occurred that individually or in the
aggregate, would result in a Canadian Credit Party owing an amount that could reasonably be
expected to have a Material Adverse Effect.



     (d) Except as set forth on Schedule 4.18, no Credit Party has any liability (contingent,
matured or otherwise) in respect of a Defined Benefit Plan.



     (e) None of the Canadian Employee Benefit Plans, other than the Canadian Pension Plans,
provide benefits beyond retirement or other termination of service to employees or former employees
of a Canadian Credit Party, or to the beneficiaries or dependants of such employees.



     4.19. Solvency. The Credit Parties are and, upon the incurrence of any Obligation by any Credit
Party on any date on which this representation and warranty is made, will be, Solvent, on a
consolidated basis.



     4.20. Compliance with Statutes, etc. Each of Parent, Borrower and their respective Subsidiaries is in
compliance with all Applicable Laws imposed by all Governmental Authorities, in respect of the
conduct of its business and the ownership of its property (including compliance with all applicable
Environmental Laws with respect to any Real Estate Asset or governing its business and the
requirements of any permits issued under such Environmental Laws with respect to any such Real
Estate Asset or the operations of Parent or any of its Subsidiaries as currently operated or
conducted), except such non-compliance that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.



     4.21. Disclosure. None of the reports, certificates or written statements furnished to Lenders by
or on behalf of Parent, Borrower or any of their respective Subsidiaries for use in connection with
the Transaction, other than projections and information of a general economic or general industry
nature, contains any untrue statement of a material fact or omits to state a material fact (known
to Parent or Borrower, in the case of any document not furnished by either of them) necessary in
order to make the statements contained herein or therein not misleading as of the date made, in
light of the circumstances in which the same were made. Any projections and pro forma financial
information contained in such materials are based upon good faith estimates and assumptions
believed by Parent or Borrower to be reasonable at the time made, it being recognized by Lenders
that such projections as to future events are not to be viewed as facts and that actual results
during the period or periods covered by any such projections may differ from the projected results
and such differences may be material. There are no facts known (or which should upon the
reasonable exercise of diligence be known) to Parent or Borrower (other than matters of a general
economic nature) that, individually or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect and that have not been disclosed herein or other documents, certificates
and statements furnished to Lenders for use in connection with the Transactions.



     4.22. PATRIOT Act and PCTFA. To the extent applicable, each Credit Party is in compliance, in all
material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter



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V, as amended) and any other enabling legislation or executive order relating thereto, (ii)
the PATRIOT Act, (iii) Part II.1 of the Criminal Code (Canada), (iv) the Proceeds of Crime (money
laundering) and Terrorist Financing Act (Canada) (the “PCTFA”), (v) the Regulations Implementing
the United Nations Resolutions on the Suppression of Terrorism (Canada) and (vi) United Nations
Al-Qaida and Taliban Regulations (Canada). No part of the proceeds of the Loans will be used,
directly or indirectly, for any payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended.




     4.23. Creation, Perfection, etc. Except as otherwise contemplated hereby or under any other Credit
Document, including without limitation in Section 3 hereof, all filings and other actions necessary
to perfect the Liens on the Collateral created under, and in the manner contemplated by, the
Collateral Documents have been duly made or taken or otherwise provided for (to the extent required
hereby or by the applicable Collateral Documents), and, when executed and delivered, the Collateral
Documents will create in favor of Collateral Agent for the benefit of the Secured Parties, or in
favor of the Secured Parties, a valid and, together with such filings and other actions (to the
extent required hereby or by the applicable Collateral Documents), perfected First Priority Lien on
the Collateral, securing the payment of the Obligations.



     4.24. Senior Indebtedness. The Obligations constitute “Senior Indebtedness” of the Borrower under
and as defined in the indenture governing the Borrower Convertible Notes.



     4.25. OFAC Matters. None of Borrower, Parent, any of their respective Subsidiaries or, to the
knowledge of Borrower and Parent, respectively, any director, officer, agent, employee or affiliate
of Borrower, Parent or any of their respective Subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the
Treasury (“OFAC”); and Borrower, Parent and their respective Subsidiaries will not, directly or
indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such
proceeds to any Subsidiary, joint venture partner or other Person or entity, for the purpose of
financing the activities of any Person currently subject to any U.S. sanctions administered by
OFAC.



SECTION 5. AFFIRMATIVE COVENANTS




     Each Credit Party covenants and agrees that so long as any Commitment is in effect and until
payment in full of all principal of and interest on each Loan and all fees, expenses and other
amounts (other than contingent amounts not yet due) payable under any Credit Document and
cancellation or expiration of all Letters of Credit, each Credit Party shall perform, and shall
cause each of its Subsidiaries to perform, all covenants in this Section 5.



     5.1. Financial Statements and Other Reports. Parent will deliver to Administrative Agent on behalf
of each Lender:




     (a) Quarterly Financial Statements. Within 45 days after the end of each
Fiscal Quarter of each Fiscal Year, commencing with the Fiscal Quarter in which the Closing
Date occurs, the consolidated balance sheets of Parent and its Subsidiaries as at the end of
such Fiscal Quarter and the related consolidated statements of income and cash flows of
Parent and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of
the then current Fiscal
Year to the end of such Fiscal Quarter, setting forth in each case in comparative form
the corresponding figures for the corresponding periods of the previous Fiscal Year,
commencing with the
first Fiscal Quarter for which such corresponding figures are available,
all in reasonable detail, together with a Financial Officer Certification and a Narrative
Report with respect thereto;



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     (b) Annual Financial Statements. Within 90 days after the end of each
Fiscal Year, commencing with the first Fiscal Year in which the Closing Date occurs, (i) the
consolidated balance sheets of Parent and its Subsidiaries as at the end of such Fiscal Year
and the related consolidated statements of income, stockholders’ equity and cash flows of
Parent and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative
form the corresponding figures for the previous Fiscal Year commencing with the first Fiscal
Year for which such corresponding figures are available, all in reasonable detail, together
with a Financial Officer Certification and a Narrative Report with respect thereto; and (ii)
with respect to such consolidated financial statements a report thereon by an independent
certified public accountant (or accountants) of recognized national standing selected by
Parent, and reasonably satisfactory to Administrative Agent (which report and/or the
accompanying financial statements shall be unqualified as to going concern and scope of
audit, and shall state that such consolidated financial statements fairly present, in all
material respects, the consolidated financial position of Parent and its Subsidiaries as at
the dates indicated and the results of their operations and their cash flows for the periods
indicated in conformity with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards) together with a written statement by
such independent certified public accountants stating (1) that their audit examination has
included a review of the terms of Section 6.7 of this Agreement and the related definitions,
(2) whether, in connection therewith, any condition or event that constitutes a Default or
an Event of Default under Section 6.7 has come to their attention and, if such a condition
or event has come to their attention, specifying the nature and period of existence thereof,
and (3) that nothing has come to their attention that causes them to believe that the
information contained in any Compliance Certificate is not correct or that the matters set
forth in such Compliance Certificate are not stated in accordance with the terms hereof
(which statement may be limited to the extent required by accounting rules or guidelines);




     (c) Compliance Certificate. Together with each delivery of financial
statements of Parent and its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly
executed and completed Compliance Certificate;




     (d) Statements of Reconciliation after Change in Accounting Principles.
If, as a result of any change in accounting principles and policies from those used in the
preparation of the Historical Financial Statements, the consolidated financial statements of
Parent and its Subsidiaries delivered pursuant to Section 5.1(a) or 5.1(b) will differ in
any material respect from the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change in accounting principles and
policies been made, then, together with the first delivery of such financial statements
after such change, one or more statements of reconciliation for all such prior financial
statements in form and substance reasonably satisfactory to Administrative Agent;




     (e) Notice of Default. Promptly upon any Responsible Officer of Parent or
Borrower obtaining knowledge (i) of any condition or event that constitutes a Default or an
Event of Default or that notice has been given to Parent or Borrower with respect thereto;
(ii) that any Person has given any notice to Parent or any of its Subsidiaries or taken any
other action with respect
to any event or condition set forth in Section 8.1(b); or (iii) of the occurrence of
any event or change that has caused or evidences or could reasonably be expected to result
in, either individually or in



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the aggregate, a Material Adverse Effect, a certificate of an
Authorized Officer specifying the nature and period of existence of such condition, event or
change, or specifying the notice given and action taken by any such Person and the nature of
such claimed Event of Default, Default, default, event or condition, and what action
Borrower has taken, is taking and proposes to take with respect thereto;




     (f) Notice of Litigation. Promptly upon any Responsible Officer of Parent
or Borrower obtaining knowledge of any actual or threatened (i) Adverse Proceeding not
previously disclosed in writing by Borrower to Lenders, or (ii) development in any Adverse
Proceeding that, in the case of either clause (i) or (ii), if adversely determined could be
reasonably expected to result in a Material Adverse Effect, or seeks to enjoin or otherwise
prevent the consummation of, or to recover any damages or obtain relief as a result of, the
Transactions, written notice thereof together with such other information as may be
reasonably available to Parent or Borrower to enable Lenders and their counsel to evaluate
such matters;




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




     (h) Canadian Employee Benefit Plans. Promptly upon any Responsible Officer
of Parent or Borrower obtaining knowledge of: (1) a Canadian Pension Plan Termination
Event; (2) the failure to make a required contribution to or payment under any Canadian
Pension Plan when due; (3) the occurrence of any event which is reasonably likely to result
in a Canadian Credit Party incurring any liability, fine or penalty with respect to any
Canadian Employee Benefit Plan that could reasonably be expected to result in a Material
Adverse Effect; (4) the establishment of any material new Canadian Employee Benefit Plans or
(5) any change to an existing Canadian Employee Benefit Plan that could reasonably be
expected to result in a Material Adverse Effect; in the notice to the Administrative Agent
of the foregoing, copies of all documentation relating thereto as Administrative Agent shall
reasonably request shall be provided;




     (i) Financial Plan. As soon as practicable and in any event no later than
60 days subsequent to the beginning of each Fiscal Year (beginning with the Fiscal Year
ending December 31, 2012), a consolidated plan and financial forecast for such Fiscal Year
and each Fiscal Year (or portion thereof) through the final maturity date of the Loans (a
“Financial Plan”), including forecasted consolidated statements of income of Parent for each
Fiscal Quarter of such Fiscal Year (it being understood that the forecasted financial
information is not to be viewed as facts and that actual results during the period or
periods covered by the Financial Plan may differ from such forecasted financial information
and that such differences may be material);



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     (j) Insurance Report. As soon as practicable and in any event within 60
days after the last day of each Fiscal Year, a certificate from Borrower’s insurance broker
in form and substance satisfactory to Administrative Agent outlining all material insurance
coverage maintained as of the date of such certificate by Parent and its Subsidiaries;




     (k) Information Regarding Collateral. The Borrower will furnish to
Collateral Agent prompt (and in any event within 30 days of such change) written notice of
any change (i) in any Credit Party’s legal name, (ii) in any Credit Party’s identity or
corporate structure, (iii) in any Credit Party’s jurisdiction of organization or of the
jurisdiction in which its chief executive office is located or (iv) in any Credit Party’s
Federal Taxpayer Identification Number or state organizational identification number.
Borrower agrees not to effect or permit any change referred to in the preceding sentence
unless all filings have been made under the Uniform Commercial Code, the PPSA or otherwise
that are required in order for Collateral Agent to continue at all times following such
change to have a valid, legal and perfected security interest in all the Collateral as
contemplated in the Collateral Documents. Borrower also agrees promptly to notify
Collateral Agent if any material portion of the Collateral is damaged or destroyed;




     (l) Annual Collateral Verification. Each year, at the time of delivery of
annual financial statements with respect to the preceding Fiscal Year pursuant to Section
5.1(b), Borrower shall deliver to Collateral Agent a certificate of an Authorized Officer
(i) either confirming that there has been no change in the information required by the
Collateral Questionnaire since the date of the Collateral Questionnaire delivered on the
Closing Date or the date of the most recent certificate delivered pursuant to this Section
and/or identifying such changes and (ii) certifying that all Uniform Commercial Code and
PPSA financing statements (including fixtures filings, as applicable) and all supplemental
Intellectual Property Security Agreements or other appropriate filings, recordings or
registrations, have been filed or recorded in each governmental, municipal or other
appropriate office in each jurisdiction identified in the Collateral Questionnaire or
pursuant to clause (i) above to the extent necessary to effect, protect and perfect the
security interests under the Collateral Documents for a period of not less than 18 months
after the date of such certificate (except as noted therein with respect to any continuation
statements to be filed within such period);




     (m) Other Information. (A) Promptly upon their becoming publicly
available, copies (or e-mail notice) of (i) all financial statements, reports, notices and
proxy statements sent or made available generally by Parent to its security holders acting
in such capacity or by any Subsidiary of Parent to its security holders other than Parent or
another Subsidiary of Parent, (ii) all regular and periodic reports and all registration
statements and prospectuses, if any, filed by Parent or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission, the Ontario Securities
Commission or any other Governmental Authority and (iii) all press releases and other
statements made available generally by Parent or any of its Subsidiaries to the public
concerning material developments in the business of Parent or any of its Subsidiaries, and
(B) such other information and data with respect to the operations, business affairs and
financial condition of Parent or any of its Subsidiaries as from time to time may be
reasonably requested by Administrative Agent or any Lender;




     (n) Certification of Public Information. Parent, Borrower and each Lender
acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices
required to be delivered pursuant to this Section 5.1 or otherwise are being distributed
through IntraLinks/IntraAgency, SyndTrak or another relevant website or other information
platform (the “Platform”), any document or notice that Parent or Borrower has indicated
contains Non-Public



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Information shall not be posted on that portion of the Platform designated for such
Public Lenders. Each of Parent and Borrower agrees to clearly designate all information
provided to Administrative Agent by or on behalf of Parent or Borrower which is suitable to
make available to Public Lenders. If Parent or Borrower has not indicated whether a
document or notice delivered pursuant to this Section 5.1 contains Non-Public Information,
Administrative Agent reserves the right to post such document or notice solely on that
portion of the Platform designated for Lenders who wish to receive material non-public
information with respect to Parent, its Subsidiaries and their respective Securities; and




     (o) Environmental Reports and Audits. As soon as practicable following
receipt thereof, copies of all environmental audits and written reports with respect to
environmental matters at any Facility or that relate to any environmental liabilities of any
Credit Party, in each case that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.




     (p) General. Any financial statement, report, notice, proxy statement,
registration statement, prospectus or other document required to be delivered pursuant to
this Section 5.1 shall be delivered in accordance with Section 10.1 and shall be deemed to
have been delivered on the date on which such financial statement, report, notice, proxy
statement, registration statement, prospectus or other document is posted on the SEC’s
website on the Internet at www.sec.gov and, in each case, such financial statement, report,
notice, proxy statement, registration statement, prospectus or other document is readily
accessible to the Administrative Agent on such date; provided that Parent or
Borrower shall give notice of any such posting to Administrative Agent (who shall then give
notice of any such posting to the Lenders). Furthermore, if any financial statement,
certificate or other information required to be delivered pursuant to this Section 5.1 shall
be required to be delivered on any date that is not a Business Day, such financial
statement, certificate or other information may be delivered to Administrative Agent on the
next succeeding Business Day after such date.



     5.2. Existence. Except as otherwise permitted under Section 6.8, each Credit Party will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its
existence and all rights and franchises, licenses and permits material to its business;
provided that no Credit Party (other than Borrower with respect to existence) or any of its
Subsidiaries shall be required to preserve any such existence, right or franchise, licenses and
permits if such Person’s board of directors (or similar governing body) shall determine that the
preservation thereof is no longer desirable in the conduct of the business of such Person, and that
the loss thereof is not disadvantageous in any material respect to such Person or to Lenders.



     5.3. Payment of Taxes and Claims. Except for failures that, individually and in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect, each Credit Party will,
and will cause each of its Subsidiaries to, pay all Taxes imposed upon it or any of its properties
or assets or in respect of any of its income, businesses or franchises before any penalty or fine
accrues thereon, and all claims (including claims for labor, services, materials and supplies) for
sums that have become due and payable and that by law have or may become a Lien upon any of its
properties or assets, prior to the time when any penalty or fine shall be incurred with respect
thereto; provided, no such Tax or claim need be paid if it is being contested in good faith
by appropriate proceedings promptly instituted and diligently conducted, so long as (a) adequate
reserve or other appropriate provision, as shall be required in conformity with GAAP shall have
been made therefor, and (b) in the case of a Tax or claim which has or may become a Lien against
any of the Collateral, such contest proceedings conclusively operate to stay the sale of any
portion of the Collateral to satisfy such Tax or claim. No Credit Party will, nor will it permit



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any of its Subsidiaries to, file or consent to the filing of any consolidated income tax
return with any Person (other than Parent, Borrower or any of their respective Subsidiaries).




     5.4. Maintenance of Properties. Each Credit Party will, and will cause each of its Subsidiaries
to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear
and tear excepted, all material properties used or useful in the business of Parent and its
Subsidiaries.



     5.5. Insurance. Parent, Borrower and their respective Subsidiaries will maintain or cause to be
maintained, with financially sound and reputable insurers, such public liability insurance,
property damage insurance and business interruption insurance with respect to liabilities, losses
or damage in respect of the assets, properties and businesses of Parent, Borrower and their
respective Subsidiaries as is customarily carried or maintained under similar circumstances by
Persons of established reputation engaged in similar businesses in the same or similar locations,
in each case in such amounts (giving effect to self-insurance), with such deductibles, covering
such risks and otherwise on such terms and conditions as shall be customary for such Persons.
Without limiting the generality of the foregoing, Parent will maintain or cause to be maintained
(a) flood insurance with respect to each Flood Hazard Property that is located in a community that
participates in the National Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve System, and (b) replacement
value property damage insurance on the Collateral under such policies of insurance, with such
insurance companies, in such amounts, with such deductibles, and covering such risks as are carried
or maintained under similar circumstances by Persons of established reputation engaged in similar
businesses in the same or similar locations. Each such policy of insurance shall (i) name
Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder as its
interests may appear and (ii) in the case of each property damage insurance policy, contain a loss
payable clause or endorsement, reasonably satisfactory in form and substance to Collateral Agent,
that names Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder and
provides for at least thirty days’ prior written notice to Collateral Agent of any modification or
cancellation of such policy; provided that the provisions of the foregoing sentence shall
not apply to any policy of insurance maintained solely for the purpose of compliance with
Applicable Law to the extent that the assets, properties and businesses that are the subject of
such policy are separately the subject of an insurance policy with respect to which the Parent
shall have satisfied the provision of the foregoing sentence.



     5.6. Books and Records; Inspections. Each Credit Party will, and will cause each of its
Subsidiaries to, keep proper books of record and accounts in which full, true and correct entries
in conformity in all material respects with GAAP shall be made of all dealings and transactions in
relation to its business and activities. Each Credit Party will, and will cause each of its
Subsidiaries to, permit any authorized representatives designated by any Lender to visit and
inspect any of the properties of any Credit Party and any of its respective Subsidiaries, to
inspect, copy and take extracts from its and their financial and accounting records, and to discuss
its and their affairs, finances and accounts with its and their officers and independent public
accountants, all upon reasonable notice and at such reasonable times during normal business hours
and as often as may reasonably be requested; provided that, excluding any such visits and
inspections during the continuation of an Event of Default, only the Administrative Agent on behalf
of the Lenders may exercise rights under this Section 5.6 and the Administrative Agent shall not
exercise such rights more often than once during any calendar year absent the existence of an Event
of Default. Notwithstanding anything to the contrary in this Section 5.6 or any other Credit
Document, none of Parent or any of its Subsidiaries shall be required to disclose, permit the
inspection, examination or making of copies or taking of extracts of, or discussion of, any
document, information or other matter (a) that constitutes non-financial trade secrets or
non-financial proprietary information, (b) in respect of which disclosure to Administrative Agent
or any Lender (or any of their respective representatives) is



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prohibited by any Applicable Law or any binding contractual agreement or (c) is subject to
attorney-client or similar privilege or constitutes attorney work product.




     5.7. [Reserved].



     5.8. Compliance with Laws. Each Credit Party will comply, and shall cause each of its Subsidiaries
to comply, with the requirements of all Applicable Law, rules, regulations and orders of any
Governmental Authority (including all Environmental Laws), non-compliance with which could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.



     5.9. Environmental.



     (a) Environmental Disclosure. Parent will deliver to Administrative Agent and
Lenders:




     (i) as soon as practicable following receipt thereof, copies of all written reports
of environmental audits, investigations or analyses of any kind or character, whether
prepared by personnel of Parent, Borrower or any of their respective Subsidiaries or, to the
extent in Parent’s, Borrower’s or any of their respective Subsidiaries’ possession or
control, by independent consultants, Governmental Authorities or any other Persons, with
respect to significant environmental matters at any Facility or with respect to any
Environmental Claims that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;




     (ii) promptly upon the occurrence thereof, written notice describing in reasonable
detail (1) any Release required to be reported to any Governmental Authority under any
applicable Environmental Laws that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, (2) any response or remedial action taken
by Parent or any other Person as a result of (A) any Hazardous Materials at a Facility the
existence of which could reasonably be expected to result in one or more Environmental
Claims having, individually or in the aggregate, a Material Adverse Effect, or (B) any
Environmental Claims that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect, (3) Parent’s or Borrower’s discovery of any occurrences
or conditions at any Facility that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, and (4) Parent’s or Borrower’s discovery of
any occurrence or condition on any real property adjoining or in the vicinity of any
Facility that could cause such Facility or any part thereof to be subject to any material
restrictions on the ownership, occupancy, transferability or use thereof under any
Environmental Laws that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;




     (iii) as soon as practicable following the sending or receipt thereof by Parent,
Borrower or any of their respective Subsidiaries, a copy of any and all written
communications to or from any Governmental Authority or third party claimant or their
representatives with respect to any Environmental Claims that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;




     (iv) prompt written notice describing in reasonable detail (1) any proposed
acquisition of stock, assets, or property by Parent, Borrower or any of their respective
Subsidiaries that could reasonably be expected to (A) expose Parent, Borrower or any of
their respective Subsidiaries to, or result in, Environmental Claims that could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect or (B)
adversely affect the ability of Parent, Borrower or any of their respective Subsidiaries to
maintain in full force and effect Governmental Authorizations required under any
Environmental Laws for their respective operations, the



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absence of which could reasonably be expected to result in a Material Adverse Effect and
(2) any proposed action to be taken by Parent, Borrower or any of their respective
Subsidiaries to modify current operations in a manner that could reasonably be expected to
subject Parent, Borrower or any of their respective Subsidiaries to any additional
obligations or requirements under any Environmental Laws, to the extent any such obligation
or requirement could reasonably be expected to result in a Material Adverse Effect; and




     (v) with reasonable promptness, such other documents and information as from time
to time may be reasonably requested by Administrative Agent in relation to any matters
disclosed pursuant to this Section 5.9(a).



     (b) Environmental Matters. Each Credit Party shall promptly take, and shall cause
each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure any violation
of applicable Environmental Laws by such Credit Party or its Subsidiaries that could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect, and (ii) make an
appropriate response to any Environmental Claim against such Credit Party or any of its
Subsidiaries and discharge any obligations it may have to any Person thereunder where failure to do
so could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect, except in each case to the extent such Credit Party or Subsidiary is contesting such
violation, Environmental Claim or obligation in good faith and by proper proceedings and
appropriate reserves are being maintained in accordance with GAAP.



     5.10. Subsidiaries.



     (1) In the event that any Person becomes a Domestic Subsidiary of Parent, Parent and
Borrower may in their discretion, but shall not be required to, (a) cause such Domestic Subsidiary
to become a Guarantor hereunder and a Grantor under the Pledge and Security Agreement by executing
and delivering to Administrative Agent and Collateral Agent a Counterpart Agreement and a Pledge
Supplement (as defined in the Pledge and Security Agreement), and (b) take all such actions and
execute and deliver, or cause to be executed and delivered, all such documents, instruments,
agreements, and certificates as are similar to those described in Sections 3.1(b), 3.1(f), 3.1(h)
and 3.1(i).



     (2) In the event that any Person becomes a Foreign Subsidiary of Borrower after the
Closing Date, and the ownership interests of such Foreign Subsidiary are directly owned by Borrower
or by any Guarantor that is a Domestic Subsidiary thereof, Borrower may in its discretion, but
shall not be required to, cause such Domestic Subsidiary to, deliver all such documents,
instruments, agreements, and certificates as are similar to those described in Section 3.1(b), and
Borrower may in its discretion, but shall not be required to, cause such Domestic Subsidiary to
take, all of the actions referred to in Section 3.1(f)(i) necessary to grant and to perfect a First
Priority Lien in favor of Collateral Agent, for the benefit of Secured Parties, under the Pledge
and Security Agreement (subject to the limitations set forth therein) in 65% of such ownership
interests that is voting stock and 100% of such ownership interest that is not voting stock.



     (3) In the event that any Person becomes a Foreign Subsidiary of Parent (but not a
Subsidiary of Borrower) after the Closing Date, Parent may in its discretion, but shall not be
required to, (a) cause such Subsidiary to become a Guarantor (and to deliver (x) a Canadian
Guarantee in respect of any such Foreign Subsidiary that is a Canadian Credit Party satisfying
clause (i) of the definition thereof, (y) a Barbados Guarantee in respect of any such Foreign
Subsidiary that is a Barbados Credit Party and (z) a Counterpart Agreement in form and substance
sufficient to create a binding Guarantee of the Obligations by each such Foreign Subsidiary not
meeting the requirements of clauses (x) and (y) above) and a Grantor under the Collateral Documents
(and to deliver (x) the Canadian Pledge and Security Agreement in respect of any such Foreign
Subsidiary that is a Canadian Credit Party satisfying clause (i) of the definition



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thereof, (y) the Barbados Security Documents in respect of any such Foreign Subsidiary that is
a Barbados Credit Party and (z) such agreement or agreements under the laws of the jurisdiction of
organization of such Foreign Subsidiary as are analogous to the Collateral Documents described
under clauses (x) and (y) above), and (b) take all such actions and execute and deliver, or cause
to be executed and delivered, all such documents, instruments, agreements, and certificates as are
similar to those described in Sections 3.1(b), 3.1(f), 3.1(h) and 3.1(i).




     (4) With respect to each such Subsidiary described in paragraph (1) through (3) of this
Section 5.10, Borrower shall promptly send to Administrative Agent written notice setting forth
with respect to such Person (i) the date on which such Person became a Subsidiary of Borrower, and
(ii) all of the data required to be set forth in Schedules 4.1 and 4.2 with respect to all
Subsidiaries of Borrower, and such written notice shall be deemed to supplement Schedules 4.1 and
4.2 for all purposes hereof.



     (5) Notwithstanding anything in this Section 5.10 to the contrary, in no event shall (i)
any Subsidiary that is otherwise prohibited by Applicable Law from guaranteeing the Obligations or
pledging its assets in support of the Obligations be required to execute a Counterpart Agreement or
any Collateral Document or take any other action set forth in paragraph (1), (2) or (3) of this
Section 5.10 (including, without limitation, Biovail Insurance) and (ii) Borrower or any Guarantor
be required to pledge the Equity Interests of any Subsidiary in support of the Obligations if such
pledge is otherwise prohibited by Applicable Law.



     (6) Notwithstanding anything in this Agreement or any other Credit Document to the
contrary (including this Section 5.10 and Sections 5.11 and 5.13), no Credit Document shall require
the creation or perfection of pledges of or security interests in, or the obtaining of title
insurance, legal opinions or other deliverables with respect to, particular assets of the Credit
Parties, if, and for so long as, Administrative Agent, in consultation with Borrower, determines in
writing that the cost of creating or perfecting such pledges or security interests in such assets,
or obtaining such title insurance, legal opinions or other deliverables in respect of such assets
(taking into account any adverse tax consequences to Parent, Borrower and their respective
Subsidiaries (including the imposition of withholding or other material taxes)), shall be excessive
in view of the benefits to be obtained by the Secured Parties therefrom. Administrative Agent may
grant extensions of time for the creation and perfection of security interests in or the obtaining
of title insurance, legal opinions or other deliverables with respect to particular assets or the
provision of the Guarantee (or any other guarantee in support of the Obligations) by any Subsidiary
where it determines that such action cannot be accomplished without undue effort or expense by the
time or times at which it would otherwise be required to be accomplished by this Agreement or the
other Credit Documents.



     5.11. Additional Material Real Estate Assets. In the event that any Credit Party acquires a
Material Real Estate Asset or a Real Estate Asset owned or leased on the Closing Date becomes a
Material Real Estate Asset and such interest has not otherwise been made subject to the Lien of the
Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, then such
Credit Party shall promptly take all such actions and execute and deliver, or cause to be executed
and delivered, all such mortgages, documents, instruments, agreements, opinions and certificates
similar to those described on in Sections 3.1(h) and 3.1(i) with respect to each such Material
Real Estate Asset that Collateral Agent shall reasonably request to create in favor of Collateral
Agent, for the benefit of Secured Parties, a valid and, subject to any filing and/or recording
referred to herein, perfected First Priority security interest in such Material Real Estate Asset.
In addition to the foregoing, Parent or Borrower shall, at the request of Collateral Agent,
deliver, from time to time, to Collateral Agent such appraisals as are required by Applicable Law
of Material Real Estate Assets with respect to which Collateral Agent has been granted a Lien.



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     5.12. [Reserved].



     5.13. Further Assurances. At any time or from time to time, each Credit Party will, at its expense,
promptly execute, acknowledge and deliver such further documents and do such other acts and things
as Administrative Agent or Collateral Agent may reasonably request in order to effect fully the
purposes of the Credit Documents. In furtherance and not in limitation of the foregoing, each
Credit Party shall take such actions as Administrative Agent or Collateral Agent may reasonably
request from time to time to ensure that the Obligations are guarantied by the Guarantors and are
secured by substantially all of the assets of Parent, the Borrower and the other Guarantors
(subject to the limitations contained herein and in the other Credit Documents).



     5.14. Maintenance of Ratings. At all times, Borrower shall use commercially reasonable efforts to
maintain (x) a corporate family rating issued by Moody’s and a corporate credit rating issued by
S&P and (y) public ratings issued by Moody’s and S&P with respect to its senior secured debt.



     5.15. Post-Closing Matters. Parent, Borrower and their respective Subsidiaries, as applicable,
agree to execute and deliver the documents and take the actions set forth on Schedule 5.15, in each
case within the time limits specified on such schedule (unless Administrative Agent, in its sole
and absolute discretion, shall have agreed to any particular longer period).



     5.16. Canadian Employee Benefit Plans. Each Canadian Credit Party shall:




     (a) with respect to each Canadian Pension Plan, pay all contributions, premiums and
payments when due in accordance with its terms and applicable law; and




     (b) promptly deliver to the Administrative Agent copies of: (A) annual information
returns, actuarial valuations and any other reports which have been filed with a
Governmental Authority with respect to each Canadian Pension Plan; and (B) any direction,
order, notice, ruling or opinion that a Canadian Credit Party may receive from a
Governmental Authority with respect to any Canadian Employee Benefit Plan.



SECTION 6. NEGATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all principal of and interest on each Loan and all fees, expenses and other
amounts (other than contingent amounts not yet due) payable under any Credit Document and
cancellation or expiration of all Letters of Credit, such Credit Party shall perform, and shall
cause each of its Subsidiaries to perform, all covenants in this Section 6.



     6.1. Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly
or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness, except:




     (a) the Obligations;




     (b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;




     (c) Indebtedness of any Subsidiary of Parent to Parent or any other such Subsidiary
or of Parent to any of its Subsidiaries; provided that (i) all such Indebtedness, if
owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory
note and shall be subject to a First Priority Lien pursuant to the applicable Collateral
Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be
unsecured and subordinated in right of payment to the payment in full of the Obligations
pursuant to the terms of a subordination agreement with respect to such Indebtedness
substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries
party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary
that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an
Investment under the proviso to Section 6.6(d);



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     (d) Indebtedness incurred by Parent, Borrower or any of their respective
Subsidiaries arising from agreements providing for indemnification, adjustment of purchase
price or similar obligations (including Indebtedness consisting of the deferred purchase
price of property acquired in a Permitted Acquisition) or from guaranties or letters of
credit, surety bonds, performance bonds or similar obligations securing the performance of
Parent, Borrower or any such Subsidiary pursuant to such agreements, in connection with
Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of
Parent, Borrower or any of their respective Subsidiaries;




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




     (f) Indebtedness in respect of netting services, overdraft protections and
otherwise in connection with deposit accounts;




     (g) guaranties in the ordinary course of business of the obligations of suppliers,
customers, franchisees of and licensees to and of Parent, Borrower and their respective
Subsidiaries;




     (h) guaranties by Parent of Indebtedness of a Subsidiary of Parent or guaranties by
a Subsidiary of Parent of Indebtedness of Parent or any other such Subsidiary, in each case
with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section
6.1; provided that (i) if the Indebtedness that is being guarantied is unsecured
and/or subordinated to the Obligations, the guaranty thereof shall be unsecured and/or
subordinated to the Obligations to the same extent and (ii) in respect of any guaranty by a
Credit Party of Indebtedness of a Subsidiary that is not a Credit Party, such guaranty is
permitted as an Investment under Section 6.6(d);




     (i) Indebtedness described in Schedule 6.1 (other than Indebtedness described in
clauses (a) or (b) of this Section 6.1);




     (j) Indebtedness of Parent or its Subsidiaries with respect to Capital Leases or
purchase money Indebtedness in an aggregate principal amount at any time outstanding not to
exceed the greater of (x) $50,000,000 and (y) 0.50% of Consolidated Total Assets;
provided, any such Indebtedness shall be secured only by the asset acquired in
connection with the incurrence of such Indebtedness;




     (k) Indebtedness of a Person or Indebtedness attaching to assets of a Person that,
in either case, becomes a Subsidiary of Parent or Indebtedness attaching to assets that are
acquired by Parent or any of its Subsidiaries, in each case after the Closing Date;
provided that (x) on a Pro Forma Basis (including, for the avoidance of doubt,
Subordinated Indebtedness) after giving effect to the incurrence of such Indebtedness
(including the use of proceeds thereof), the Leverage Ratio of Parent shall be less than or
equal to 4.50 to 1.00, as of the last day of the most recently ended Fiscal Quarter for
which financial statements were required to have been delivered pursuant to Section 5.1(a)
or (b), (y) such Indebtedness existed at the time such Person became a Subsidiary or at the
time such assets were acquired and, in each case, was not created in anticipation



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thereof and (z) such Indebtedness is not guaranteed in any respect by Parent or any
Subsidiary (other than by any such Person that so becomes a Subsidiary);




     (l) Indebtedness representing the deferred purchase price of property (including
Intellectual Property) or services, including earn-out obligations, purchase price
adjustments, escrow arrangements or other arrangements representing deferred payments
incurred in connection with the acquisition of equity or assets permitted or consented to
hereunder;




     (m) (i) Indebtedness under any Hedge Agreement (and any guarantees thereof), (ii)
Indebtedness under any Cash Management Agreement (and any guarantees thereof) and (iii)
Indebtedness arising under any Currency Agreement or Interest Rate Agreement (and, in each
case, any guarantees thereof), including any extensions thereof and such increases, if any,
as shall result when the underlying obligations of such agreements are marked to market or
increased to address accrued interest on the obligation relating to such agreement;




     (n) Indebtedness in respect of performance and surety bonds and completion
guarantees provided by Parent or any of its Subsidiaries;




     (o) Indebtedness of Parent or any Subsidiary as an account party in respect of
trade letters of credit;




     (p) [Reserved];




     (q) other Indebtedness (including, for the avoidance of doubt, Subordinated
Indebtedness) of Parent, Borrower and their respective Subsidiaries; provided that
on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (including
the use of proceeds thereof including, without limitation, after the date of incurrence or
issuance of any such Indebtedness pursuant to any escrow arrangement, delayed draw, delayed
closing or similar or analogous arrangement), (x) no Default or Event of Default has
occurred and is continuing or would result therefrom and (y) the Leverage Ratio of Parent
shall be less than or equal to 4.50 to 1.00, as of the last day of the most recently ended
Fiscal Quarter for which financial statements were required to have been delivered pursuant
to Section 5.1(a) or (b);




     (r) provided that no Default or Event of Default has occurred and is
continuing or would result therefrom, the incurrence or issuance by Parent or any Subsidiary
of Parent of Indebtedness which serves to extend, replace, refund, renew, defease or
refinance any Indebtedness incurred as permitted under clause (b), (i), (j), (k), (l), (r),
(s), (t) or (v) of this Section 6.1 or any Indebtedness issued to so extend, replace,
refund, renew, defease or refinance such Indebtedness, or any Indebtedness, including
additional Indebtedness, incurred to pay premiums (including tender premiums), defeasance
costs and fees and expenses in connection therewith (the “Refinancing Indebtedness”);
provided, however, that such Refinancing Indebtedness:




     (1) has a final maturity date later than the date that is 91 days after the
latest Revolving Commitment Termination Date, and has a weighted average life to the
date of the latest Revolving Commitment Termination Date that is not less than the
weighted average life to the date of the latest Revolving Commitment Termination
Date of the Indebtedness being extended, replaced, renewed, defeased, refunded or
refinanced,




     (2) to the extent such Refinancing Indebtedness extends, replaces, refunds,
renews, defeases or refinances (x) Indebtedness subordinated or pari passu to the
Obligations, such Refinancing Indebtedness is subordinated or pari passu to the
Obligations at



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least to the same extent (as determined in good faith by the board of directors
of Parent or Borrower) as the Indebtedness being extended, replaced, renewed,
defeased, refinanced or refunded or (y) Disqualified Equity Interests such
Refinancing Indebtedness must be Disqualified Equity Interests,




     (3) shall have direct and contingent obligors that are the same as (or, in
the case of contingent obligors, no more expansive than) the direct and contingent
obligors, respectively, of the refinanced Indebtedness, or




     (4) shall not be secured by any assets that were not required to be used to
secure the Indebtedness being extended, replaced, renewed, defeased, refunded or
refinanced;




     (s) Permitted Secured Notes;




     (t) Indebtedness owed to any Person (including obligations in respect of letters of
credit for the benefit of such Person) providing workers’ compensation, health, death,
disability or other employee benefits or property, casualty or liability insurance or
self-insurance, or other Indebtedness regarding workers’ compensation claims pursuant to
reimbursement or indemnification obligations to such Person, in each case incurred in the
ordinary course of business;




     (u) Indebtedness of Parent or any of its Subsidiaries consisting of (x) the
financing of insurance premiums or (y) take-or-pay obligations contained in supply
arrangements, in each case, incurred in the ordinary course of business; and




     (v) Indebtedness of Subsidiaries of Parent (other than Biovail Insurance and any
other such Subsidiary that is not permitted by Applicable Law to guaranty the Obligations)
that are not Credit Parties and that are organized under the laws of any jurisdiction other
than the United States of America consisting of working capital credit facilities in an
aggregate principal amount at any time outstanding under this clause (v) not to exceed the
greatest of (i) 2.5% of the total revenues for the four Fiscal Quarter period most recently
ended, (ii) 2.5% of the consolidated total assets, as determined in accordance with GAAP, as
of the applicable date of determination, in each case of subclause (i) and (ii), of all
Subsidiaries of Parent (other than Biovail Insurance and any other such Subsidiary that is
not permitted by Applicable Law to guaranty the Obligations) that are not Credit Parties,
and (iii) $40,000,000.



     6.2. Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or accounts receivable)
of Parent, Borrower or any of their respective Subsidiaries, whether now owned or hereafter
acquired, or any income, profits or royalties therefrom, or file or permit the filing of any
financing statement or other similar notice of any Lien with respect to any such property, asset,
income, profits or royalties under the UCC of any State, the PPSA of any province or territory or
under any similar recording or notice statute or under any applicable intellectual property laws,
rules or procedures, except:




     (a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted
pursuant to any Credit Document;




     (b) Liens for Taxes not yet due and payable or that are being contested in
accordance with Section 5.3;




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     (c) statutory Liens of landlords, banks (and rights of set-off), of carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law
(other than any such Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or
ERISA or a violation of Section 436 of the Internal Revenue Code or, in respect of a
Canadian Credit Party, a Lien imposed pursuant to pension benefits standards legislation;
provided that, in each case, such Liens shall be governed by Sections 5.1(g),
5.1(h), 8.1(j) and 8.1(k) and not this Section 6.2), in each case incurred in the ordinary
course of business (i) for amounts not yet overdue or (ii) for amounts that are overdue and
that (in the case of any such amounts overdue for a period in excess of five days) are being
contested in good faith by appropriate proceedings, so long as such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have been made for any
such contested amounts;




     (d) Liens incurred in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return of money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed money or other
Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced
with respect to any portion of the Collateral on account thereof;




     (e) easements, rights of way, restrictions, encroachments, encumbrances and other minor
defects or irregularities in title, in each case which do not and will not interfere in any
material respect with the ordinary conduct of the business of Parent, Borrower or any of
their respective Subsidiaries;




     (f) any interest or title of a lessor, lessee, sublessor or sublessee under any lease
or sublease permitted hereunder and any interest or title of a licensor, licensee,
sublicensor or sublicensee under any license or sublicense permitted hereunder;




     (g) Liens solely on any cash earnest money deposits, escrow arrangements or similar
arrangements made by Parent, Borrower or any of their respective Subsidiaries in connection
with any letter of intent or purchase agreement permitted hereunder;




     (h) purported Liens evidenced by the filing of precautionary UCC or PPSA financing
statements (or any similar precautionary filings) relating solely to operating leases of
personal property entered into in the ordinary course of business;




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




     (j) any zoning or similar law or right reserved to or vested in any Governmental
Authority to control or regulate the use of any real property;




     (k) outbound licenses of patents, copyrights, trademarks and other Intellectual
Property rights granted by Parent, Borrower or any of their respective Subsidiaries in the
ordinary course of business and not interfering in any material respect with the ordinary
conduct of, or materially detracting from the aggregate value of, the business of Parent,
Borrower or such Subsidiary (taking into account the value of the license as well);




     (l) Liens described in Schedule 6.2 or on a title report delivered pursuant to Section
3.1(e)(iii) and any modifications, renewals and extensions thereof and any Lien granted as a



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replacement or substitute therefor; provided that (x) such Lien shall not apply
to any other property or asset of Parent or any Subsidiary other than improvements thereon
or proceeds from the disposition of such asset and (y) such Lien shall secure only those
obligations which it secures on the date hereof and any refinancing, extensions, renewals or
replacements thereof that do not increase the outstanding principal amount thereof (except
by an amount not greater than accrued and unpaid interest with respect to such original
obligations and any premium, fees, costs and expenses incurred in connection with such
extension, renewal or refinancing) and, in the case of any such obligations constituting
Indebtedness, that are permitted under Section 6.1(r) as Refinancing Indebtedness in respect
thereof;




     (m) Liens securing Indebtedness permitted pursuant to Section 6.1(j) (and any
Refinancing Indebtedness in respect thereof permitted under Section 6.1(r));
provided, any such Lien shall encumber only the asset acquired with the proceeds of
such Indebtedness;




     (n) Liens securing Indebtedness permitted by Sections 6.1(k) (and any Refinancing
Indebtedness in respect thereof permitted under Section 6.1(r)), provided any such
Lien shall encumber only those assets which secured such Indebtedness at the time such
assets were acquired by Parent or its Subsidiaries;




     (o) other Liens on assets other than the Collateral securing obligations in an
aggregate principal amount not to exceed $50,000,000;




     (p) Liens securing Indebtedness permitted by Section 6.1(m);




     (q) Liens arising out of judgments, decrees, orders or awards that do not constitute an
Event of Default under Section 8.1(h);




     (r) Liens securing Indebtedness permitted by Sections 6.1(q) and (s); provided
that either (x) on a pro forma basis after giving effect to the incurrence of such
Indebtedness (and the use of proceeds thereof) the Secured Leverage Ratio of Parent shall be
less than or equal to 1.00 to 1.0, as of the last day of the most recently ended Fiscal
Quarter for which financial statements were required to have been delivered pursuant to
Section 5.1(a) or (b), as applicable, in each case, as if such Indebtedness had been
outstanding on the last day of such Fiscal Quarter or (y) if Revolving Loans are outstanding
under this Agreement, the Cash proceeds of Indebtedness secured by such Liens are applied to
prepay Revolving Loans in accordance with Section 2.13;




     (s) Liens on assets of any Subsidiary of Parent (other than Biovail Insurance and any
other such Subsidiary that is not permitted by Applicable Law to guaranty the Obligations)
that is not a Credit Party and that is organized in a jurisdiction other than the United
States of America to the extent such Liens secure Indebtedness of such Subsidiary permitted
under Section 6.1(v);




     (t) Liens granted by any Canadian Credit Party to a landlord to secure the payment of
rent and other obligations under a lease with such landlord for premises situated in the
Province of Québec; provided that such Lien (i) is limited to the tangible assets
located at or about such leased premises and (ii) is incurred in the ordinary course of
business (a) for amounts not yet overdue or (b) for amounts that are overdue and that (in
the case of any such amounts overdue for a period in excess of five days) are being
contested in good faith by appropriate proceedings, so long as such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have been made for any
such contested amounts;



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     (u) Liens arising by reason of deposits necessary to obtain standby letters of credit
in the ordinary course of business;




     (v) Liens in connection with repurchase obligations referred to in clause (vi) of the
definition of the term “Cash Equivalents”;




     (w) in connection with the sale or transfer of any Equity Interests or other assets in
a transaction permitted by Section 6.8, customary rights and restrictions contained in
agreements relating to such sale or transfer pending the completion thereof;




     (x) in the case of any Joint Venture, any put and call arrangements related to its
Equity Interests set forth in its Organizational Documents or any related joint venture or
similar agreement;




     (y) Liens in the nature of the right of setoff in favor of counterparties to
contractual agreements with Parent or any of its Subsidiaries in the ordinary course of
business; and




     (z) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the ordinary
course of business.



provided, however, that no reference herein to Liens permitted hereunder (including
Permitted Liens), including any statement or provision as to the acceptability of any Liens
(including Permitted Liens), shall in any way constitute or be construed as to provide for a
subordination of any rights of the Agents, Lenders or other Secured Parties hereunder or arising
under any of the other Credit Documents in favor of such Liens.




     6.3. No Further Negative Pledges. Except with respect to (a) specific property encumbered to
secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with
respect to a permitted Asset Sale or other sale or disposition permitted by Section 6.8, (b)
restrictions by reason of customary provisions restricting assignments, subletting or other
transfers contained in leases, licenses and similar agreements entered into in the ordinary course
of business (provided that such restrictions are limited to the property or assets secured
by such Liens or the property or assets subject to such leases, licenses or similar agreements, as
the case may be), (c) restrictions and conditions imposed by law, and (d) restrictions identified
on Schedule 6.3, no Credit Party nor any of its Subsidiaries shall enter into any agreement
prohibiting the creation or assumption of any Lien upon any of its properties or assets, whether
now owned or hereafter acquired, to secure the Obligations.



     6.4. Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its
Subsidiaries through any manner or means or through any other Person to, directly or indirectly,
declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum
for any Restricted Junior Payment except for:




     (a) the declaration and payment of dividends or the making of other distributions by
any Subsidiary of Parent ratably to its direct equity holders;




     (b) the redemption, repurchase, retirement, defeasance or other acquisition of any
Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated
Indebtedness of Parent or any Equity Interests of any direct or indirect parent company of
Parent, in exchange for, or out of the proceeds of, the substantially concurrent sale (other
than to a Subsidiary) of, Equity Interests of Parent or any direct or indirect parent
company of Parent to the extent



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contributed to Parent (in each case, other than any Disqualified Equity Interests) or
Subordinated Indebtedness incurred under Section 6.1; provided that any such
Subordinated Indebtedness shall be Refinancing Indebtedness;




     (c) refinancings of Indebtedness permitted by Section 6.1;




     (d) any Restricted Junior Payment to pay for the repurchase, retirement or other
acquisition or retirement for value of Equity Interests (other than Disqualified Equity
Interests) of Parent held by any future, present or former employee, director, officer or
consultant of Parent or any of its Subsidiaries or any direct or indirect parent companies
pursuant to any management equity plan or stock option plan or any other management or
employee benefit plan or agreement (including, for the avoidance of doubt, any principal and
interest payable on any notes issued by Parent or any direct or indirect parent company of
Parent in connection with any such repurchase, retirement or other acquisition), or any
stock subscription or shareholder agreement, including any Equity Interest rolled over by
management of Parent or any direct or indirect parent company of Parent in connection with
the 2010 Transactions; provided, that the aggregate amount of Restricted Junior
Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with
unused amounts for any year being carried over to the next succeeding year, but not to any
subsequent year, and the permitted amount for each year shall be used prior to any amount
carried over from the previous year); provided further that such amount in
any calendar year may be increased by an amount not to exceed:




     (i) the cash proceeds of key man life insurance policies received by Parent or
its Subsidiaries after the Closing Date; less




     (ii) the amount of any Restricted Junior Payments previously made with the cash
proceeds described in subclause (i) of this clause (d);




     (e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock
options or warrants if such Equity Interests represent a portion of the exercise price of
such options or warrants;




     (f) cash payments in lieu of issuing fractional shares in connection with the exercise
of warrants, options or other securities convertible into or exchangeable for Equity
Interests of Parent or any direct or indirect parent company of Parent;




     (g) so long as no Default or Event of Default has occurred and is continuing, (i)
Parent may repurchase shares of Parent’s common stock within six months before or after any
conversion date for the Parent Convertible Notes, which repurchases may be in an aggregate
amount not to exceed the number of shares of Parent’s common stock delivered upon conversion
of the Parent Convertible Notes on such conversion date and (ii) Parent may repurchase
shares of Parent’s common stock within six months before or after the settlement of any
written call option agreements entered into in connection with the issuance of the Borrower
Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number
of shares of Parent’s common stock delivered upon settlement of such written call options;
and




     (h) other Restricted Junior Payments in an aggregate amount taken together with all
other Restricted Junior Payments made pursuant to this clause (i) not to exceed $400,000,000
(reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of
Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at
any time;



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provided that such amount shall be increased (but not decreased) by the CNI Growth
Amount as in effect immediately prior to the time of making of such Restricted Junior
Payment.



     6.5. Restrictions on Subsidiary Distributions. Except as provided herein, no Credit Party shall,
nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of Parent to (a) pay dividends or make any other distributions on any of such
Subsidiary’s Equity Interests owned by Parent or any other Subsidiary of Parent, (b) repay or
prepay any Indebtedness owed by such Subsidiary to Parent or any other Subsidiary of Parent, (c)
make loans or advances to Parent or any other Subsidiary of Parent, or (d) transfer, lease or
license any of its property or assets to Parent or any other Subsidiary of Parent other than
restrictions (i) imposed by law or by any Credit Document, (ii) in agreements evidencing
Indebtedness permitted by Section 6.1(k) that impose restrictions on the property so acquired, and
any amendments, modifications, extensions or renewals thereof (including any such extension or
renewal arising as a result of an extension, renewal or refinancing of any Indebtedness containing
such restriction or condition) that do not materially expand the scope of any such restriction or
condition taken as a whole, (iii) by reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses, Joint Venture agreements and similar
agreements entered into in the ordinary course of business, (iv) that are or were created by virtue
of any transfer of, agreement to transfer or option or right with respect to any property, assets
or Equity Interests not otherwise prohibited under this Agreement, (v) in the case of any
Subsidiary that is not directly or indirectly wholly owned by Parent, restrictions and conditions
imposed by its Organizational Documents or any related joint venture, shareholders’ or similar
agreement; provided that such restrictions and conditions apply only to such Subsidiary and
to any Equity Interests in such Subsidiary, or (vi) identified on Schedule 6.5, and any amendments,
modifications, extensions or renewals thereof (including any such extension or renewal arising as a
result of an extension, renewal or refinancing of any Indebtedness containing such restriction or
condition) that do not materially expand the scope of any such restriction or condition taken as a
whole.



     6.6. Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly
or indirectly, make or own any Investment in any Person, including any Joint Venture, except:




     (a) Investments in Cash and Cash Equivalents;




     (b) equity Investments owned as of the Closing Date in any Subsidiary and Investments
made after the Closing Date in Borrower and any Guarantor;




     (c) Investments (i) received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business and (ii) consisting of deposits, prepayments and other
credits to suppliers made in the ordinary course of business consistent with the past
practices of Parent, Borrower or any of their respective Subsidiaries, as applicable;




     (d) intercompany loans and advances to the extent permitted under Section 6.1(c) and
other Investments in (including Guarantees by Credit Parties of Indebtedness of)
Subsidiaries of Parent which are not Guarantors; provided that such Investments in
Subsidiaries other than Credit Parties, to the extent made by any Credit Party, shall not
exceed at any time an aggregate amount of $100,000,000;




     (e) [reserved];



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     (f) loans and advances to employees of Parent, Borrower and their respective
Subsidiaries made in the ordinary course of business in an aggregate principal amount not to
exceed $25,000,000;




     (g) Permitted Acquisitions permitted pursuant to Section 6.8;




     (h) Investments described in Schedule 6.6 and any modification, replacement, renewal or
extension thereof to the extent not involving an additional Investment;




     (i) other Investments in an aggregate amount not to exceed $400,000,000 (reduced on a
dollar for dollar basis by Restricted Junior Payments pursuant to clause (h) of Section 6.4,
other than Restricted Junior Payments under such clause made using the CNI Growth Amount) at
any time outstanding; provided that such amount shall be increased (but not
decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of
such Investments;




     (j) Investments represented by (i) any Hedge Agreement (and any guarantees thereof),
(ii) any Cash Management Agreement (and any guarantees thereof) and (iii) any Interest Rate
Agreement or Currency Agreement (and any guarantees thereof);




     (k) Investments received in connection with the disposition of any asset permitted by
Section 6.8;




     (l) Investments (which may take the form of asset contributions) in (x) Joint Ventures
consisting primarily of a Prescription Drug Business, (y) Joint Ventures involving the
Parent’s and/or its Subsidiaries’ dermatology business in an aggregate amount not to exceed
$250,000,000, and/or (z) other Joint Ventures in an aggregate amount not to exceed
$200,000,000;




     (m) Investments of any Person existing at the time such Person becomes a Subsidiary of
Parent or consolidates or merges with Parent or any of its Subsidiaries (including in
connection with a Permitted Acquisition) and any modification, replacement, renewal or
extension thereof to the extent not involving an additional Investment so long as such
Investments were not made in contemplation of such Person becoming a Subsidiary of Parent or
of such consolidation or merger; and




     (n) extensions of trade credit in the ordinary course of business.



Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which results
in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under the
terms of Section 6.4.




     6.7. Leverage Ratio. Parent shall not permit the Leverage Ratio as of the last day of any Fiscal
Quarter, beginning with the Fiscal Quarter ending June 30, 2011, to exceed 4.75 to 1.0.
Notwithstanding the foregoing, this Section 6.7 shall be in effect (and shall only be in effect)
(x) when any Swing Line Loans, Letters of Credit and/or Revolving Loans are outstanding and (y) if
no Swing Line Loans, Letters of Credit and/or Revolving Loans are then outstanding, when
determining whether a Default or Event of Default exists for purposes of Section 3.2 in connection
with the incurrence or issuance of a Swing Line Loan, Letter of Credit and/or Revolving Loan (it
being understood that in all cases calculation of compliance with this Section 6.7 shall be
determined as of the last day of each applicable Fiscal Quarter).



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     6.8. Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, enter into any transaction of merger, amalgamation, arrangement,
reorganization or consolidation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or license, exchange, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or any part of its business, assets
or property of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or
otherwise (other than purchases or other acquisitions of inventory, materials and equipment and
capital expenditures in the ordinary course of business) the business or fixed assets of, or stock
or other evidence of beneficial ownership of, any Person or any division or line of business or
other business unit of any Person, except:




     (a) any Subsidiary of Parent may be (i) merged or amalgamated with or merged into
Parent, Borrower or any other Subsidiary of Parent; provided that (A) in the case of
such a merger or amalgamation involving Parent or Borrower, Parent or Borrower, as the case
may be, shall be the continuing or surviving Person and (B) in the case of such a merger or
amalgamation involving any other Guarantor (and not involving Parent or Borrower), the
surviving Person shall be a Guarantor, or (ii) other than with respect to Borrower,
liquidated, wound up or dissolved if Parent determines in good faith that such liquidation,
winding up or dissolution is in the best interest of Parent and is not materially
disadvantageous to the Lenders;




     (b) sales or other dispositions of assets or property that do not constitute Asset
Sales (which sales or other dispositions may take the form of a merger, amalgamation or
similar transaction);




     (c) Asset Sales (which Asset Sale may take the form of a merger, amalgamation or
similar transaction), the proceeds of which (valued at the principal amount thereof in the
case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair
market value in the case of other non-Cash proceeds) when aggregated with the proceeds of
all other Asset Sales made within the same Fiscal Year, are less than $200,000,000 (with the
amount for any Fiscal Year increased by an amount equal to the excess, if any, of such
amount for the immediately preceding Fiscal Year over the amount of proceeds from Asset
Sales made pursuant to this clause (c) in such immediately preceding Fiscal Year);
provided that (1) the consideration received for such assets shall be in an amount
at least equal to the fair market value thereof (determined in good faith by the board of
directors of Parent (or similar governing body) of Parent or the applicable Subsidiary or
Credit Party for Asset Sales with a fair market value in excess of $75,000,000), (2) no less
than 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be
applied as required by Section 2.12(a);




     (d) Asset Sales consisting of obsolete, worn out or surplus assets or property,
including, for greater certainty, Intellectual Property;




     (e) Asset Sales consisting of sale and leaseback transactions permitted by Section
6.10; provided that the Net Asset Sale Proceeds in excess of $50,000,000 from any
such Asset Sale shall be applied as required by Section 2.12(a);




     (f) Specified Asset Disposition; provided that the Net Asset Sale Proceeds
thereof shall be applied as required by Section 2.12(a);




     (g) Asset Sales of property to the extent that (i) such property is concurrently
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Asset Sales are promptly applied to the purchase price of such replacement
property;



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     (h) Permitted Acquisitions (which acquisition may take the form of a merger,
amalgamation or similar transaction so long as such merger, amalgamation or similar
transaction would be permitted by clause (a) of this Section 6.8 if the acquired Person was,
initially, a Subsidiary of Parent); provided (x) in respect of acquisitions of
Equity Interests of acquisition targets or assets that are not subject to the Collateral
Documents, the consideration for such Equity Interests or assets (other than Equity
Interests of Parent issued in payment of a portion of such consideration and the net
proceeds of the issuance of Equity Interests to the extent used to pay any portion of such
compensation) shall not exceed, collectively with any Investment permitted under Section
6.6(d) in Subsidiaries other than Credit Parties, $100,000,000 per Fiscal Year and (y)
immediately prior to such Permitted Acquisition and on a Pro Forma Basis after giving effect
thereto, the Leverage Ratio of Parent shall be less than or equal to 4.50 to 1.00, as of the
last day of the most recently ended Fiscal Quarter for which financial statements were
required to have been delivered pursuant to Section 5.1(a) or (b);




     (i) Investments made in accordance with Section 6.6, other than pursuant to clause (g)
thereof (which Investment may take the form of a merger, amalgamation or similar transaction
so long as such merger, amalgamation or similar transaction would be permitted by clause (a)
of this Section 6.8 if the acquired Person was, initially, a Subsidiary of Parent);




     (j) Liens incurred in compliance with Section 6.2;




     (k) dispositions of investments in Joint Ventures, to the extent required by, or made
pursuant to buy/sell arrangements between the joint venture parties set forth in joint
venture arrangements and similar binding arrangements; provided that the
consideration received shall be in an amount at least equal to the fair market value thereof
(determined in good faith by the board of directors of Parent or Borrower); and




     (l) the disposition by Dow Pharmaceutical Sciences, Inc. of its Equity Interests in
bioskin GmbH, a company with limited liability organized under the laws of Germany.




     For purposes of clause (c) of this Section 6.8, each of the following will be deemed Cash:




     (i) any liabilities, as shown on Parent’s most recent consolidated balance sheet, of
Parent or any of its Subsidiaries (other than contingent liabilities and liabilities that
are by their terms subordinated to the Loans) that are assumed by the transferee of any such
assets pursuant to an agreement that releases Parent or such Subsidiary from further
liability;




     (ii) any securities, notes or other obligations received by Parent or any such
Subsidiary from such transferee that are converted by Parent or such Subsidiary into Cash
within 180 days after the consummation of the applicable Asset Sale, to the extent of the
Cash received in that conversion; and




     (iii) any Designated Noncash Consideration having an aggregate fair market value that,
when taken together with all other Designated Noncash Consideration previously received and
then outstanding, does not exceed at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated Noncash Consideration
being measured at the time received and without giving effect to subsequent changes in
value) the greater of $100,000,000 or 1.00% of Consolidated Total Assets.




     6.9. Disposal of Subsidiary Interests. Except for any sale of all of its interests in the Equity
Interests of any of its Subsidiaries in compliance with the provisions of Section 6.8, no Credit
Party shall,



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nor shall it permit any of its Subsidiaries to directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any Equity Interests of any of its Subsidiaries, except to another
Credit Party (subject to the restrictions on such disposition otherwise imposed hereunder), or to
qualify directors if required by Applicable Law.




     6.10. Sales and Leasebacks. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with
respect to any lease of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, which such Credit Party (a) has sold or transferred or is to sell or to
transfer to any other Person (other than Parent, Borrower or any of their respective Subsidiaries),
or (b) intends to use for substantially the same purpose as any other property which has been or is
to be sold or transferred by such Credit Party to any Person (other than Parent, Borrower or any of
their respective Subsidiaries) in connection with such lease, except for any such sale and
subsequent lease of any fixed or capital assets by a Credit Party or any of its Subsidiaries that
is made for Cash consideration in an amount not less than the fair value of such fixed or capital
asset and is consummated within 90 days after such Credit Party or such Subsidiary acquires or
completes the construction of such fixed or capital asset, provided that, if such sale and
leaseback results in Indebtedness with respect to Capital Leases, such Indebtedness is permitted by
Section 6.1(j) and any Lien made the subject of such Indebtedness is permitted by Section 6.2(m).



     6.11. Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall it permit any
of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the rendering of any service)
with any Affiliate of Parent or Borrower on terms that are less favorable to Parent, Borrower or
that Subsidiary, as the case may be, than those that might be obtained at the time from a Person
who is not such an Affiliate; provided that the foregoing restriction shall not apply to
(a) any transaction between or among Borrower and the Guarantors; (b) reasonable and customary fees
paid to members of the board of directors (or similar governing body) of Parent, Borrower and their
respective Subsidiaries; (c) compensation arrangements (including severance arrangements to the
extent approved by a majority of the disinterested members of Parent’s, Borrower’s or the
applicable Subsidiary’s board of directors (or similar governing body) or the applicable committee
thereof) for present or former officers and other employees of Parent, Borrower and their
respective Subsidiaries entered into in the ordinary course of business; (d) transactions described
in Schedule 6.11; (e) any Restricted Junior Payment permitted pursuant to Section 6.4; (f)
indemnities provided for the benefit of, directors, officers or employees of Parent, Borrower and
their respective Subsidiaries in the ordinary course of business; and (g) loans and advances to
employees of Parent, Borrower and their respective Subsidiaries permitted by Section 6.6(f) (as
well as advances to employees contemplated by clause (iii) of the defined term “Investment”).



     6.12. Conduct of Business. From and after the Closing Date, no Credit Party shall, nor shall it
permit any of its Subsidiaries to, engage in any business other than (i) the businesses engaged in
by such Credit Party or Subsidiary on the Closing Date and similar or related or ancillary
businesses and (ii) such other lines of business as may be consented to by Requisite Lenders.



     6.13. Amendments or Waivers with Respect to Subordinated Indebtedness. No Credit Party shall, nor
shall it permit any of its Subsidiaries to, amend or otherwise change the terms of any Subordinated
Indebtedness or the Senior Notes, if such amendment or change would be materially adverse to any
Credit Party or Lenders.



     6.14. Amendments or Waivers of Organizational Documents. No Credit Party shall, nor shall it permit
any of its Subsidiaries to, agree to any amendment, restatement, supplement or other



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modification to, or waiver of, any of its Organizational Documents after the Closing Date that is
materially adverse to such Credit Party or such Subsidiary, as applicable, and to the Lenders.




     6.15. Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to, change
its Fiscal Year end from December 31.



     6.16. Specified Subsidiary Dispositions. Parent will not, and will not permit any Subsidiary to,
sell, transfer, lease or otherwise dispose of the Equity Interests it holds in Biovail Insurance.



     6.17. Biovail Insurance. Parent will not permit Biovail Insurance to (i) carry on any business
other than the business of an Exempt Insurance Company as defined under the Exempt Insurance Act of
Barbados for the purpose of insuring Parent and/or some or all of its Subsidiaries or (ii) cancel,
terminate or otherwise amend or modify the Biovail Insurance Trust Indenture.



     6.18. Establishment of Defined Benefit Plan. No Credit Party shall (a) sponsor, administer,
maintain, contribute to, participate in or assume or incur any liability in respect of, any Defined
Benefit Plan, or (b) acquire an interest in any Person if such Person sponsors, administers,
maintains, contributes to, participates in or has any liability in respect of, any Defined Benefit
Plan, other than, with respect to clauses (a) and (b), Defined Benefit Plans that do not, in the
aggregate, have a solvency deficit in excess of $5,000,000 at any time.



     6.19. After Acquired Liens/Additional Guarantors. (a) Additional Liens. No Credit Party shall,
nor shall it permit any of its Subsidiaries (other than Excluded Subsidiaries) to, directly or
indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or accounts receivable)
of Parent, Borrower or any of their respective Subsidiaries, whether now owned or hereafter
acquired, or any income, profits or royalties therefrom, or file or permit the filing of any
financing statement or other similar notice of any Lien with respect to any such property, asset,
income, profits or royalties under the UCC of any State, the PPSA of any province or territory or
under any similar recording or notice statute or under any applicable intellectual property laws,
rules or procedures, unless (x) such Lien is permitted under Section 6.2 and (y) with respect to
any such Lien securing Indebtedness for borrowed money (other than any such Lien securing
Indebtedness permitted under Section 6.1(j) or Section 6.1(k) or Refinancing Indebtedness with
respect thereto permitted under Section 6.1(r)) on or with respect to any property or asset of any
Credit Party or any Subsidiary (other than an Excluded Subsidiary), such Credit Party shall grant a
Lien securing the Obligations in accordance with Sections 5.10 (1), (2) or (3), as applicable, and
take the other actions required thereby promptly and in any event within 45 days.



     (b) Future Guarantees. No Subsidiary (other than an Excluded Subsidiary) shall provide a
Guarantee in connection with any Indebtedness of Parent or any Subsidiary of Parent, unless such
Subsidiary shall, become a Guarantor hereunder and take the other actions required by Section 5.10
promptly and in any event within 45 days.



SECTION 7. GUARANTY




     7.1. Guaranty of the Obligations. Subject to the provisions of the Contribution Agreement,
Guarantors jointly and severally hereby irrevocably and unconditionally guaranty to Administrative
Agent for the ratable benefit of the Beneficiaries the due and punctual payment in full of all
Obligations when the same shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a) or
other Insolvency Laws) (collectively, the “Guaranteed Obligations”).




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     7.2. Contribution by Guarantors. Each of the Guarantors shall be party to, and subject to the
terms of, the Contribution Agreement.



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



     7.4. Liability of Guarantors Absolute. To the extent permitted under Applicable Law, each
Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which constitutes a legal or equitable
discharge of a guarantor or surety other than satisfaction in full of the Guaranteed Obligations.
In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees
as follows:




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




     (b) to the extent permitted under Applicable Law, Administrative Agent may enforce this
Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any
dispute between Borrower and any Beneficiary with respect to the existence of such Event of
Default;





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




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




     (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand
and without affecting the validity or enforceability hereof or giving rise to any reduction,



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




     (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and
enforceable and shall not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the Guaranteed Obligations),
including the occurrence of any of the following, whether or not any Guarantor shall have
had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or
any right, power or remedy (whether arising under the Credit Documents or any Hedge
Agreements or any Cash Management Agreements, at law, in equity or otherwise) with respect
to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the
payment or performance of the Guaranteed Obligations; (ii) any rescission, waiver, amendment
or modification of, or any consent to departure from, any of the terms or provisions
(including provisions relating to events of default) hereof, any of the other Credit
Documents, any of the Hedge Agreements, any of the Cash Management Agreements or any
agreement or instrument executed pursuant thereto, or of any other guaranty or security for
the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof
or such Credit Document, such Hedge Agreement, such Cash Management Agreement or any
agreement relating to such other guaranty or security; (iii) to the extent permitted by
Applicable Law, the Guaranteed Obligations, or any agreement relating thereto, at any time
being found to be illegal, invalid or unenforceable in any respect; (iv) the application of
payments received from any source (other than payments received pursuant to the other Credit
Documents, any of the Hedge Agreements, any of the Cash Management Agreements or from the
proceeds of any security for the Guaranteed Obligations, except to the extent such security
also serves as collateral for indebtedness other than the Guaranteed Obligations) to the
payment of indebtedness other than the Guaranteed Obligations, even though any Beneficiary
might have elected to apply such payment to any part or all of the Guaranteed Obligations;
(v) any Beneficiary’s consent to the change, reorganization or termination of the corporate
structure or existence of Parent or any of its Subsidiaries and to any corresponding
restructuring of the



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Guaranteed Obligations; (vi) any failure to perfect or continue
perfection of a security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) to the extent permitted by Applicable Law, any defenses, set-offs or
counterclaims which Borrower may allege or assert against any Beneficiary in respect of the
Guaranteed Obligations, including failure of consideration, breach of warranty, payment,
statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any
other act or thing or omission, or delay to do any other act or thing, which may or might in
any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the
Guaranteed Obligations.



     7.5. Waivers by Guarantors. To the extent permitted by Applicable Law, each Guarantor hereby
waives, for the benefit of Beneficiaries: (a) any right to require any Beneficiary, as a condition
of payment or performance by such Guarantor, to (i) proceed against Borrower, any other guarantor
(including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed
against or exhaust any security held from Borrower, any such other guarantor or any other Person,
(iii) proceed against or have resort to any balance of any Deposit Account or credit on the books
of any Beneficiary in favor of Borrower or any other Person, or (iv) pursue any other remedy in the
power of any Beneficiary whatsoever; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Borrower or any other Guarantor including any
defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed
Obligations or any agreement or instrument relating thereto or by reason of the cessation of the
liability of Borrower or any other Guarantor from any cause other than satisfaction in full of the
Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (d) any defense based upon any Beneficiary’s errors or omissions in the
administration of the Guaranteed Obligations, except behavior which amounts to gross negligence,
willful misconduct or bad faith; (e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms hereof and any legal or equitable
discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations
affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to
set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that
any Beneficiary protect, secure, perfect or insure any security interest or lien or any property
subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of
dishonor and notices of any action or inaction, including acceptance hereof, notices of default
hereunder, the Hedge Agreements, the Cash Management Agreements or any agreement or instrument related thereto, notices of any renewal, extension or modification of the
Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to
Borrower and notices of any of the matters referred to in Section 7.4 and any right to consent to
any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which
limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms
hereof.



     7.6. Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations shall
have been indefeasibly paid in full and the Revolving Commitments shall have terminated and all
Letters of Credit shall have expired or been cancelled, each Guarantor hereby waives, to the extent
permitted by Applicable Law, any claim, right or remedy, direct or indirect, that such Guarantor
now has or may hereafter have against Borrower or any other Guarantor or any of its assets in
connection with this Guaranty or the performance by such Guarantor of its obligations hereunder, in
each case whether such claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise and including (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against Borrower with respect to
the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim, right or
remedy that any Beneficiary now has or may hereafter have against Borrower, and (c) any benefit of,
and any right to participate in, any collateral or security now or hereafter held by any
Beneficiary. In addition, until the Guaranteed Obligations shall have been indefeasibly paid



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in
full and the Revolving Commitments shall have terminated and all Letters of Credit shall have
expired or been cancelled, each Guarantor shall withhold exercise of any right of contribution such
Guarantor may have against any other guarantor (including any other Guarantor) of the Guaranteed
Obligations, including any such right of contribution as contemplated by the Contribution
Agreement. Each Guarantor further agrees that, to the extent the waiver or agreement to withhold
the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set
forth herein is found by a court of competent jurisdiction to be void or voidable for any reason,
any rights of subrogation, reimbursement or indemnification such Guarantor may have against
Borrower or against any collateral or security, and any rights of contribution such Guarantor may
have against any such other guarantor, shall be junior and subordinate to any rights any
Beneficiary may have against Borrower, to all right, title and interest any Beneficiary may have in
any such collateral or security, and to any right any Beneficiary may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any such subrogation,
reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations
shall not have been finally and indefeasibly paid in full, such amount shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative
Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms hereof.




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



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



     7.9. Authority of Guarantors or Borrower. It is not necessary for any Beneficiary to inquire into
the capacity or powers of any Guarantor or Borrower or the officers, directors or any agents acting
or purporting to act on behalf of any of them.



     7.10. Financial Condition of Borrower. Any Credit Extension may be made to Borrower or continued
from time to time, and any Hedge Agreements or Cash Management Agreements may be entered into from
time to time, in each case without notice to or authorization from any Guarantor regardless of the
financial or other condition of Borrower at the time of any such grant or continuation or at the
time such Hedge Agreement or Cash Management Agreement is entered into, as the case may be. No
Beneficiary shall have any obligation to disclose or discuss with any Guarantor its assessment, or
any Guarantor’s assessment, of the financial condition of Borrower. Each Guarantor has adequate
means to obtain information from Borrower on a continuing basis concerning the financial condition
of Borrower and its ability to perform its obligations under the Credit Documents and the Hedge
Agreements and the Cash Management Agreements, and each Guarantor assumes the responsibility for
being and keeping informed of the financial condition of Borrower and of all circumstances bearing
upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor hereby waives and
relinquishes any duty on the part of any



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Beneficiary to disclose any matter, fact or thing relating
to the business, operations or conditions of Borrower now known or hereafter known by any
Beneficiary.




     7.11. Bankruptcy, etc.



     (a) So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting pursuant to the instructions of Requisite
Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or
insolvency case, application or proceeding of or against Borrower or any other Guarantor. The
obligations of Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred,
suspended or terminated by any case, application or proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Borrower or
any other Guarantor or by any defense which Borrower or any other Guarantor may have by reason of
the order, decree or decision of any court or administrative body resulting from any such
proceeding.



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



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



     7.12. Discharge of Guaranty upon Sale of Guarantor. If all of the Equity Interests of any Guarantor
or any of its successors in interest hereunder shall be sold or otherwise disposed of (including by
merger, amalgamation or consolidation) in accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any Beneficiary or any other
Person effective as of the time of such Asset Sale.



SECTION 8. EVENTS OF DEFAULT




     8.1. Events of Default. If any one or more of the following conditions or events shall occur:




     (a) Failure to Make Payments When Due. Failure by Borrower to pay (i) when due
any installment of principal of any Loan, whether at stated maturity, by acceleration, by
notice of voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any
amount payable to Issuing Bank in reimbursement of any drawing under a Letter of Credit; or
(iii) any interest on any Loan or any fee or any other amount due hereunder within three
days after the date due; or



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     (b) Default in Other Agreements. (i) Failure of any Credit Party or any of
their respective Subsidiaries to pay when due any principal of or interest on or any other
amount, including any payment in settlement, payable in respect of one or more items of
Indebtedness (other than Indebtedness referred to in Section 8.1(a)) in an individual
principal amount (or Net Mark-to-Market Exposure) of $70,000,000 or with an aggregate
principal amount (or Net Mark-to-Market Exposure) of $70,000,000 or more, in each case
beyond the grace period, if any, provided therefor; or (ii) breach or default by any Credit
Party with respect to any other material term of (1) one or more items of Indebtedness in
the individual or aggregate principal amounts (or Net Mark-to-Market Exposure) referred to
in clause (i) above or (2) any loan agreement, mortgage, indenture or other agreement
relating to such item(s) of Indebtedness, in each case beyond the grace period, if any,
provided therefor, if the effect of such breach or default is to cause, or to permit the
holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders),
to cause, that Indebtedness to become or be declared due and payable (or redeemable) prior
to its stated maturity or the stated maturity of any underlying obligation, as the case may
be; or




     (c) Breach of Certain Covenants. Failure of any Credit Party to perform or
comply with any term or condition contained in Section 2.5, Section 5.1(e), Section 5.2 or
Section 6; or




     (d) Breach of Representations, Etc. Any representation, warranty,
certification or other statement made or deemed made by any Credit Party in any Credit
Document or in any statement or certificate at any time given by any Credit Party or any of
its Subsidiaries in writing pursuant hereto or thereto or in connection herewith or
therewith shall be false in any material respect as of the date made or deemed made; or




     (e) Other Defaults Under Credit Documents. Any Credit Party shall default in
the performance of or compliance with any term contained herein or any of the other Credit
Documents, other than any such term referred to in any other Section of this Section 8.1,
and such default shall not have been remedied or waived within thirty days after the earlier
of (i) an officer of such Credit Party becoming aware of such default or (ii) receipt by
Borrower of notice from Administrative Agent or any Lender of such default; or




     (f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of
competent jurisdiction shall enter a decree or order for relief in respect of Parent,
Borrower or any of their respective Subsidiaries (other than any Immaterial Subsidiaries) in
an involuntary case under any
Insolvency Law, which decree or order is not stayed; or any other similar relief shall
be granted under any Applicable Law; or (ii) an involuntary case or proceeding (including
the filing of any notice of intention in respect thereof) shall be commenced against Parent,
Borrower or any of their respective Subsidiaries (other than any Immaterial Subsidiaries)
under any Insolvency Law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, receiver-manager,
administrative receiver, administrator, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Parent, Borrower or any of their respective
Subsidiaries (other than any Immaterial Subsidiaries), or over all or a substantial part of
its property, shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee, custodian or similar officer of Parent,
Borrower or any of their respective Subsidiaries (other than any Immaterial Subsidiaries)
for all or a substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the property of
Parent, Borrower or any of their respective Subsidiaries (other than any Immaterial
Subsidiaries), and any such event described in this clause (ii) shall continue for sixty
days without having been dismissed, bonded or discharged; or



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     (g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Parent, Borrower
or any of their respective Subsidiaries (other than any Immaterial Subsidiaries) shall have
an order for relief entered with respect to it or shall file a petition or application
seeking any relief or shall otherwise commence a voluntary case or proceeding under any
Insolvency Law, or shall consent to, or fail to contest in a timely manner the commencement
of, or the entry of an order for relief in an involuntary case or proceeding, or to the
conversion of an involuntary case to a voluntary case or proceeding, under any such law, or
shall consent to, or fail to contest in a timely manner, the commencement of, or the
appointment of or taking possession by a receiver, receiver-manager, trustee, custodian or
other similar officer for all or a substantial part of its property; or Parent, Borrower or
any of their respective Subsidiaries (other than any Immaterial Subsidiaries) shall make any
assignment for the benefit of creditors; or (ii) Parent, Borrower or any of their respective
Subsidiaries (other than any Immaterial Subsidiaries) shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as such debts become
due or is otherwise insolvent; or the board of directors (or similar governing body) of
Parent, Borrower or any of their respective Subsidiaries (other than any Immaterial
Subsidiaries) (or any committee thereof) shall adopt any resolution or otherwise authorize
any action to approve any of the actions referred to herein or in Section 8.1(f); or




     (h) Judgments and Attachments. Any money judgment, writ or warrant of
attachment or similar process involving an amount in excess of $70,000,000 individually or
in the aggregate at any time (in either case to the extent not adequately covered by
insurance as to which a solvent and unaffiliated insurance company has acknowledged
coverage) shall be entered or filed against Parent, Borrower or any of their respective
Subsidiaries or any of their respective assets and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty days (or in any event later than five days prior
to the date of any proposed sale thereunder); or




     (i) Dissolution. Any order, judgment or decree shall be entered against any
Credit Party decreeing the dissolution, winding-up or split-up of such Credit Party and such
order shall remain undischarged or unstayed for a period in excess of thirty days; or




     (j) Employee Benefit Plans. There shall occur one or more ERISA Events that
have had or could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; or





     (k) Canadian Employee Benefit Plans. (x) There shall occur one or more
Canadian Pension Plan Termination Events that have had or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect or (y) a Canadian Credit
Party fails to make a required contribution to or payment under any Canadian Pension Plan
when due and such failure has had or could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect; or




     (l) Change of Control. A Change of Control shall occur; or




     (m) Guaranties, Collateral Documents and Other Credit Documents. At any time
after the execution and delivery thereof, (i) the Guaranty for any reason, other than the
satisfaction in full of all Obligations, shall cease to be in full force and effect (other
than in accordance with its terms) or shall be declared to be null and void or any Guarantor
shall repudiate its obligations thereunder, (ii) this Agreement or any Collateral Document
ceases to be in full force and effect (other than by reason of a release of Collateral in
accordance with the terms hereof or thereof or the satisfaction in full of the Obligations
(other than Obligations in respect of any Hedge Agreement or Cash Management Agreement) in
accordance with the terms hereof) or shall be declared



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null and void, or Collateral Agent
shall not have or shall cease to have a valid and perfected Lien in any Collateral purported
to be covered by the Collateral Documents with the priority required by the relevant
Collateral Document, in each case for any reason other than the failure of Collateral Agent
or any Secured Party to take any action within its control, or (iii) any Credit Party shall
contest the validity or enforceability of any Credit Document in writing or deny in writing
that it has any further liability, including with respect to future advances by Lenders,
under any Credit Document to which it is a party or shall contest the validity or perfection
of any Lien in any portion of the Collateral purported to be covered by the Collateral
Documents,


THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g) with
respect to Parent or Borrower, automatically, and (2) upon the occurrence and during the
continuance of any other Event of Default, at the request of (or with the consent of) Requisite
Lenders, upon notice to Borrower by Administrative Agent, (A) the Revolving Commitments, if any, of
each Lender having such Revolving Commitments and the obligation of Issuing Bank to issue any
Letter of Credit shall immediately terminate; (B) each of the following shall immediately become
due and payable, in each case without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by each Credit Party: (I) the unpaid principal
amount of and accrued interest on the Loans, (II) an amount equal to the maximum amount that may at
any time be drawn under all Letters of Credit then outstanding (regardless of whether any
beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time
to present, the drafts or other documents or certificates required to draw under such Letters of
Credit), to be held as security for Borrower’s reimbursement Obligations in respect of Letters of
Credit then outstanding and (III) all other Obligations; provided, the foregoing shall not
affect in any way the obligations of Lenders under Section 2.2(b)(v) or Section 2.3(e); and (C)
Administrative Agent may cause Collateral Agent to enforce any and all Liens and security interests
created pursuant to Collateral Documents.




SECTION 9. AGENTS




     9.1. Appointment of Agents. GSLP is hereby appointed Syndication Agent hereunder, and each Lender
hereby authorizes GSLP to act as Syndication Agent in accordance with the terms hereof and the
other Credit Documents. GSLP is hereby appointed Administrative Agent and Collateral Agent
hereunder and under the other Credit Documents and each Lender hereby authorizes GSLP to act as
Administrative Agent and Collateral Agent in accordance with the terms hereof and of the other
Credit Documents. Each Agent hereby agrees to act in its capacity as such upon the express conditions
contained herein and the other Credit Documents, as applicable. The provisions of this Section 9
are solely for the benefit of Agents and Lenders and no Credit Party shall have any rights as a
third party beneficiary of any of the provisions thereof. In performing its functions and duties
hereunder, each Agent shall act solely as an agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust with or for
Parent, Borrower or any of their respective Subsidiaries. The Syndication Agent, without consent
of or notice to any party hereto, may assign any and all of its rights or obligations hereunder (in
its capacity as a Syndication Agent) to any of its Affiliates. As of the Closing Date, GSLP, in
its capacity as Syndication Agent, shall not have any obligations but shall be entitled to all
benefits of this Section 9. The Syndication Agent and any Agent described in clause (d) of the
definition thereof may resign from such role at any time, with immediate effect, by giving prior
written notice thereof to Administrative Agent and Borrower.



     9.2. Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on such
Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall



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have only those duties and responsibilities that are expressly specified herein and the
other Credit Documents. Each Agent may exercise such powers, rights and remedies and perform such
duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the
other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or
any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as
to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents
except as expressly set forth herein or therein.




     9.3. General Immunity.



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



     (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under
or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of
competent jurisdiction. Each Agent shall be entitled to refrain from any act or the taking of any
action (including the failure to take an action) in connection herewith or with any of the other
Credit Documents or from the exercise of any power, discretion or authority vested in it hereunder
or thereunder unless and until such Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to give such instructions under Section
10.5) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where
so instructed) refrain from acting, or to exercise such power, discretion or authority, in
accordance with such instructions. Without prejudice to the generality of the foregoing, (i) each
Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication,
instrument or document believed by it to be genuine and correct and to have been signed or sent by
the proper Person or Persons and shall be entitled to rely and shall be protected in relying on
opinions and judgments of attorneys (who may be attorneys for Parent, Borrower and their respective
Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no
Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting
or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in
accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to
give such instructions under Section 10.5).



     (c) Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates. The exculpatory, indemnification and other provisions of this
Section 9.3 and of Section



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9.6 shall apply to any of the Affiliates of Administrative Agent and
shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent. All of the rights,
benefits, and privileges (including the exculpatory and indemnification provisions) of this Section
9.3 and of Section 9.6 shall apply to any such sub-agent and to the Affiliates of any such
sub-agent, and shall apply to their respective activities as sub-agent as if such sub-agent and
Affiliates were named herein. Notwithstanding anything herein to the contrary, with respect to
each sub-agent appointed by the Administrative Agent, (i) such sub-agent shall be a third party
beneficiary under this Agreement with respect to all such rights, benefits and privileges
(including exculpatory rights and rights to indemnification) and shall have all of the rights and
benefits of a third party beneficiary, including an independent right of action to enforce such
rights, benefits and privileges (including exculpatory rights and rights to indemnification)
directly, without the consent or joinder of any other Person, against any or all of Credit Parties
and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights and rights
to indemnification) shall not be modified or amended without the consent of such sub-agent, and
(iii) such sub-agent shall only have obligations to Administrative Agent and not to any Credit
Party, Lender or any other Person and no Credit Party, Lender or any other Person shall have any
rights, directly or indirectly, as a third party beneficiary or otherwise, against such sub-agent;
provided that the Administrative Agent shall be responsible for the gross negligence,
willful misconduct or bad faith of such sub-agent.




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



     9.5. Lenders’ Representations, Warranties and Acknowledgment.



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



     (b) Each Lender, by delivering its signature page to this Agreement or an Assignment Agreement
and by funding Revolving Loans on the Closing Date shall be deemed to have acknowledged receipt of,
and consented to and approved, each Credit Document and each other document required to be approved
by any Agent, Requisite Lenders or Lenders, as applicable on the Closing Date.



     9.6. Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, their Affiliates and their respective officers, partners, directors,
trustees,



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employees and agents of each Agent (each, an “Indemnitee Agent Party”), to the extent
that such Indemnitee Agent Party shall not have been reimbursed by any Credit Party, for and
against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against such Indemnitee Agent
Party in exercising its powers, rights and remedies or performing its duties hereunder or under the
other Credit Documents or otherwise in its capacity as such Agent in any way relating to or arising
out of this Agreement or the other Credit Documents, in all cases, whether or not caused by or
arising, in whole or in part, out of the negligence of such Indemnitee Agent Party;
provided that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Indemnitee Agent Party’s gross negligence or willful misconduct as determined by a final,
non-appealable judgment of a court of competent jurisdiction. If any indemnity furnished to any
Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be
insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional indemnity is
furnished; provided that in no event shall this sentence require any Lender to indemnify
any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof;
and provided further that this sentence shall not be deemed to require any Lender
to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty,
action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately
preceding sentence.




     9.7. Successor Administrative Agent, Collateral Agent and Swing Line Lender.



     (a) Administrative Agent shall have the right to resign at any time by giving prior written
notice thereof to Lenders and Borrower and Administrative Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered to Borrower and
Administrative Agent and signed by Requisite Lenders. Administrative Agent shall have the right to
appoint a financial institution to act as Administrative Agent and/or Collateral Agent hereunder,
subject to the reasonable satisfaction of Borrower and the Requisite Lenders, and Administrative
Agent’s resignation shall become effective on the earliest of (i) 30 days after delivery of the
notice of resignation, (ii) the acceptance of such successor Administrative Agent by Borrower and the Requisite Lenders or (iii)
such other date, if any, agreed to by the Requisite Lenders. Upon any such notice of resignation
or any such removal, if a successor Administrative Agent has not already been appointed by the
retiring Administrative Agent, Requisite Lenders shall have the right, upon five Business Days’
notice to Borrower, to appoint a successor Administrative Agent. If neither Requisite Lenders nor
Administrative Agent have appointed a successor Administrative Agent, Requisite Lenders shall be
deemed to have succeeded to and become vested with all the rights, powers, privileges and duties of
the retiring Administrative Agent; provided that, until a successor Administrative Agent is
so appointed by Requisite Lenders or Administrative Agent, any collateral security held by
Administrative Agent in its role as Collateral Agent on behalf of the Lenders or the Issuing Bank
under any of the Credit Documents shall continue to be held by the retiring Collateral Agent as
nominee until such time as a successor Collateral Agent is appointed. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Administrative Agent and the retiring or removed
Administrative Agent shall promptly (i) transfer to such successor Administrative Agent all sums,
Securities and other items of Collateral held under the Collateral Documents, together with all
records and other documents necessary or appropriate in connection with the performance of the
duties of the successor Administrative Agent under the Credit Documents, and (ii) execute and
deliver to such successor Administrative Agent such amendments to financing statements, and take
such other actions, as may be necessary



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or appropriate in connection with the assignment to such
successor Administrative Agent of the security interests created under the Collateral Documents,
whereupon such retiring or removed Administrative Agent shall be discharged from its duties and
obligations hereunder. Except as provided above, any resignation or removal of GSLP or its
successor as Administrative Agent pursuant to this Section shall also constitute the resignation or
removal of GSLP or its successor as Collateral Agent. After any retiring or removed Administrative
Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent hereunder. Any successor Administrative Agent appointed pursuant to this
Section shall, upon its acceptance of such appointment, become the successor Collateral Agent for
all purposes hereunder.




     (b) In addition to the foregoing, Collateral Agent may resign at any time by giving prior
written notice thereof to Lenders and the Grantors, and Collateral Agent may be removed at any time
with or without cause by an instrument or concurrent instruments in writing delivered to the
Grantors and Collateral Agent signed by Requisite Lenders. Administrative Agent shall have the
right to appoint a financial institution as Collateral Agent hereunder, subject to the reasonable
satisfaction of Borrower and the Requisite Lenders and Collateral Agent’s resignation shall become
effective on the earliest of (i) 30 days after delivery of the notice of resignation, (ii) the
acceptance of such successor Collateral Agent by Borrower and the Requisite Lenders or (iii) such
other date, if any, agreed to by the Requisite Lenders. Upon any such notice of resignation or any
such removal, Requisite Lenders shall have the right, upon five Business Days’ notice to
Administrative Agent, to appoint a successor Collateral Agent. Until a successor Collateral Agent
is so appointed by Requisite Lenders or Administrative Agent, any collateral security held by
Collateral Agent on behalf of the Lenders or the Issuing Bank under any of the Credit Documents
shall continue to be held by the retiring Collateral Agent as nominee until such time as a
successor Collateral Agent is appointed. Upon the acceptance of any appointment as Collateral
Agent hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties of the retiring or
removed Collateral Agent under this Agreement and the Collateral Documents, and the retiring or
removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor
Collateral Agent all sums, Securities and other items of Collateral held hereunder or under the
Collateral Documents, together with all records and other documents necessary or appropriate in
connection with the performance of the duties of the successor Collateral
Agent under this Agreement and the Collateral Documents, and (ii) execute and deliver to such
successor Collateral Agent or otherwise authorize the filing of such amendments to financing
statements, and take such other actions, as may be necessary or appropriate in connection with the
assignment to such successor Collateral Agent of the security interests created under the
Collateral Documents, whereupon such retiring or removed Collateral Agent shall be discharged from
its duties and obligations under this Agreement and the Collateral Documents. After any retiring
or removed Collateral Agent’s resignation or removal hereunder as the Collateral Agent, the
provisions of this Agreement and the Collateral Documents shall inure to its benefit as to any
actions taken or omitted to be taken by it under this Agreement or the Collateral Documents while
it was the Collateral Agent hereunder.



     (c) Any resignation or removal of GSLP or its successor as Administrative Agent pursuant to
this Section shall also constitute the resignation or removal of GSLP or its successor as Swing
Line Lender, and any successor Administrative Agent appointed pursuant to this Section shall, upon
its acceptance of such appointment, become the successor Swing Line Lender for all purposes
hereunder. In such event (i) Borrower shall prepay any outstanding Swing Line Loans made by the
retiring or removed Administrative Agent in its capacity as Swing Line Lender, (ii) upon such
prepayment, the retiring or removed Administrative Agent and Swing Line Lender shall surrender any
Swing Line Note held by it to Borrower for cancellation, and (iii) Borrower shall issue, if so
requested by successor Administrative Agent and Swing Line Loan Lender, a new Swing Line Note to
the successor Administrative Agent and Swing Line



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Lender, in the principal amount of the Swing Line
Sublimit then in effect and with other appropriate insertions.




     9.8. Collateral Documents and Guaranty.



     (a) Agents Under Collateral Documents and Guaranty. Each Secured Party hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect
to the Guaranty, the Collateral and the Collateral Documents; provided that neither
Administrative Agent nor Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of
care, duty of disclosure or any other obligation whatsoever to any holder of Obligations with
respect to any Hedge Agreement. Subject to Section 10.5, without further written consent or
authorization from any Secured Party, Administrative Agent or Collateral Agent, as applicable may
execute any documents or instruments necessary to (i) in connection with a sale or disposition of
assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the
subject of such sale or other disposition of assets or to which Requisite Lenders (or such other
Lenders as may be required to give such consent under Section 10.5) have otherwise consented or
(ii) release any Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which
Requisite Lenders (or such other Lenders as may be required to give such consent under Section
10.5) have otherwise consented.



     (b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of
the Credit Documents to the contrary notwithstanding, Borrower, Administrative Agent, Collateral
Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right
individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood
and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative
Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights
and remedies under the Collateral Documents may be exercised solely by Collateral Agent, and (ii)
in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or
private sale or other disposition, Collateral Agent or any Lender may be the purchaser or licensor
of any or all of such Collateral at any such sale or other disposition and Collateral Agent, as
agent for and representative of Secured Parties (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price for any collateral
payable by Collateral Agent at such sale or other disposition.



     (c) Rights Under Hedge Agreements and Cash Management Agreements. No Hedge Agreement
or Cash Management Agreement will create (or be deemed to create) in favor of any Lender
Counterparty that is a party thereto any rights in connection with the management or release of any
Collateral or of the obligations of any Guarantor under the Credit Documents except as expressly
provided in Section 10.5(c)(iv) of this Agreement, Section 9.2 of the Pledge and Security Agreement
and the analogous sections of any other Collateral Documents. By accepting the benefits of the
Collateral, such Lender Counterparty shall be deemed to have appointed Collateral Agent as its
agent and agreed to be bound by the Credit Documents as a Secured Party, subject to the limitations
set forth in this clause (c).



     (d) Release of Collateral and Guarantees, Termination of Credit Documents.
Notwithstanding anything to the contrary contained herein or any other Credit Document, when all
Obligations (other than obligations in respect of any Hedge Agreement or Cash Management Agreement)
have been paid in full, all Commitments have terminated or expired and no Letter of Credit shall be
outstanding (unless the outstanding amounts under all such Letters of Credit have been cash
collateralized in a manner reasonably



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satisfactory to Issuing Bank or, if satisfactory to Issuing
Bank in its sole discretion, a backstop Letter of Credit is in place), upon request of Borrower,
(i) Collateral Agent shall (without notice to, or vote or consent of, any Lender, or any Affiliate
of any Lender or any Lender Counterparty that is a party to any Hedge Agreement or Cash Management
Agreement) take such actions as shall be required to release its security interest in all
Collateral, and (ii) Administrative Agent shall (without notice to, or vote or consent of, any
Lender, or any Affiliate of any Lender or any Lender Counterparty that is a party to any Hedge
Agreement or Cash Management Agreement) take such actions as shall be required to release all
guarantee obligations provided for in any Credit Document, whether or not on the date of such
release there may be outstanding Obligations in respect of Hedge Agreements or Cash Management
Agreements (and, subject to the next succeeding sentence, the provisions of Section 7 shall cease
to apply). Any such release of guarantee obligations shall be deemed subject to the provision that
such guarantee obligations shall be reinstated if after such release any portion of any payment in
respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or
returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or
any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, Borrower or any Guarantor or any substantial part of its
property, or otherwise, all as though such payment had not been made. In addition, upon (a) any
disposition of property permitted by this Agreement to a Person that is not a Credit Party, the
Liens granted thereon shall be deemed to be automatically released and such property shall
automatically revert to the applicable Grantor with no further action on the part of any Person and
(b) the consummation of any transaction permitted by the Credit Agreement as a result of which a
Guarantor ceases to be a Subsidiary of Parent or the Borrower, such Guarantor shall automatically
be released from its obligations hereunder and under the Collateral Documents and the guaranty and
security interest in the Collateral of such Guarantor shall automatically be released.




     9.9. Withholding Taxes. To the extent required by any Applicable Law, Administrative Agent may
withhold from any payment to any Lender (which term shall include Swing Line Lender and Issuing
Bank for purposes of this Section 9.9) an amount equivalent to any applicable withholding tax. If
the Internal Revenue Service or any other Governmental Authority asserts a claim that
Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any
Lender because the appropriate form was not delivered or was not properly executed or because such
Lender failed to notify Administrative Agent of a change in circumstance which rendered the
exemption from, or reduction of,
withholding tax ineffective or for any other reason, such Lender shall indemnify fully and
hold harmless Administrative Agent (to the extent that the Administrative Agent has not already
been reimbursed by the Borrower pursuant to Section 2.18 and without limiting or expanding the
obligation of the Borrower to do so) for all amounts paid, directly or indirectly, by the
Administrative Agent as Taxes or otherwise, together with all expenses incurred, including legal
expenses and any other out-of-pocket expenses, whether or not such Tax was correctly or legally
imposed or asserted by the relevant governmental authority. A certificate as to the amount of such
payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent
manifest error. The agreements in this Section 9.9 shall survive the resignation and/or
replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a
Lender, the termination of the Agreement and the repayment, satisfaction or discharge of all other
Obligations.



     9.10 Quebec Security. To the extent that any Canadian Credit Party now or in the future is
required to grant security pursuant to the laws of the Province of Quebec, each Agent (other than
the Collateral Agent) and Lender acting for itself and on behalf of all present and future
Affiliates of such Agent or Lender that are or become a Lender Counterparty, hereby irrevocably
authorizes and appoints the Collateral Agent to act as the holder of an irrevocable power of
attorney (fondé de pouvoir) (within the meaning of Article 2692 of the Civil Code of Quebec) in
order to hold any hypothec granted under the laws of the Province of Quebec as security for any
debenture, bond or other title of indebtedness that may be



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issued by any Canadian Credit Party and
to exercise such rights and duties as are conferred upon a fondé de pouvoir under the relevant deed
of hypothec and applicable laws (with the power to delegate any such rights or duties). Moreover,
in respect of any pledge by any such Canadian Credit Party of any such debenture, bond or other
title of indebtedness as security in respect of any Obligations, the Collateral Agent shall also be
authorized to hold such debenture, bond or other title of indebtedness as agent, mandatary,
custodian and pledgee for the benefit of the Agents, the Lenders and the Lender Counterparties, the
whole notwithstanding the provisions of Section 32 of the An Act respecting the Special Powers of
Legal Persons (Quebec). The execution prior to the date hereof by the Collateral Agent of any deed
of hypothec or other security documents made pursuant to the laws of the Province of Quebec, is
hereby ratified and confirmed. Any person who becomes a Lender, an Agent or a Lender Counterparty
shall be deemed to have consented to and ratified the foregoing appointment of each of the
Collateral Agent as fondé de pouvoir, agent, mandatary and custodian on behalf of all Agents,
Lenders and the Lender Counterparties, including such person. For greater certainty, the
Collateral Agent, when acting as the holder of an irrevocable power of attorney (fondé de pouvoir),
shall have the same rights, powers, immunities, indemnities and exclusions from liability as are
prescribed in favour of the Collateral Agent in this Agreement, which shall apply mutatis mutandis.
In the event of the resignation and appointment of a successor Collateral Agent, such successor of
the Collateral Agent shall also act as the holder of an irrevocable power of attorney (fondé de
pouvoir), and as agent, mandatary and custodian for the purposes set forth above.




SECTION 10. MISCELLANEOUS




     10.1. Notices.



     (a) Notices Generally. Any notice or other communication herein required or permitted
to be given to a Credit Party, Syndication Agent, Collateral Agent, Administrative Agent, Swing
Line Lender, Issuing Bank or Documentation Agent shall be sent to such Person’s address as set
forth on Appendix B or in the other relevant Credit Document, and in the case of any Lender, the
address as indicated on Appendix B or otherwise indicated to Administrative Agent in writing.
Except as otherwise set forth in Section 3.2(b) or paragraph (b) below, each notice hereunder shall
be in writing and may be personally served or sent by telefacsimile (except for any notices sent to
Administrative Agent) or United States mail or Canada Post or courier service and shall be deemed
to have been given when delivered in person or by
courier service and signed for against receipt thereof, upon receipt of telefacsimile, or
three Business Days after depositing it in the United States mail or Canada Post with postage
prepaid and properly addressed; provided that no notice to any Agent shall be effective
until received by such Agent; provided further that any such notice or other
communication shall at the request of the Administrative Agent be provided to any sub-agent
appointed pursuant to Section 9.3(c) hereto as designated by the Administrative Agent from time to
time.



     (b) Electronic Communications. (1) Notices and other communications to Lenders and
the Issuing Bank hereunder may be delivered or furnished by electronic communication (including e
mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by
Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
or the Issuing Bank pursuant to Section 2 if such Lender or Issuing Bank, as applicable, has
notified Administrative Agent that it is incapable of receiving notices under such Section by
electronic communication. Administrative Agent or Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications. Unless Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgement),
provided that if such



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notice or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next Business Day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website address therefor.




     (2) Each Credit Party understands that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other risks associated with
such distribution and agrees and assumes the risks associated with such electronic distribution,
except to the extent caused by the willful misconduct or gross negligence of Administrative Agent,
as determined by a final, non-appealable judgment of a court of competent jurisdiction.



     (3) The Platform and any Approved Electronic Communications are provided “as is” and “as
available.” None of the Agents nor any of their respective officers, directors, employees, agents,
advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy, or
completeness of the Approved Electronic Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Platform and the Approved Electronic Communications. No
warranty of any kind, express, implied or statutory, including any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or
other code defects is made by the Agent Affiliates in connection with the Platform or the Approved
Electronic Communications.



     (4) Each Credit Party, each Lender, each Issuing Bank and each Agent agrees that
Administrative Agent may, but shall not be obligated to, store any Approved Electronic
Communications on the Platform in accordance with Administrative Agent’s customary document
retention procedures and policies.



     (5) Any notice of Default or Event of Default may be provided by telephone if confirmed
promptly thereafter by delivery of written notice thereof.



     (c) Private Side Information Contacts. Each Public Lender agrees to cause at least
one individual at or on behalf of such Public Lender to at all times have selected the “Private
Side Information” or
similar designation on the content declaration screen of the Platform in order to enable such
Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and
Applicable Law, including United States federal and state securities laws, to make reference to
information that is not made available through the “Public Side Information” portion of the
Platform and that may contain Non-Public Information with respect to Parent, its Subsidiaries or
their securities for purposes of Applicable Law, including United States federal or state
securities laws.



     10.2. Expenses. Whether or not the transactions contemplated hereby shall be consummated, Borrower
agrees to pay promptly (a) all the actual and reasonable out-of-pocket costs and expenses incurred
in connection with the negotiation, preparation and execution of the Credit Documents and any
consents, amendments, waivers or other modifications thereto; (b) all the reasonable out-of-pocket
costs of furnishing all opinions by counsel for Borrower and the other Credit Parties; (c) the
reasonable and documented out-of-pocket fees, expenses and disbursements of counsel to Agents in
connection with the negotiation, preparation, execution and administration of the Credit Documents
and any consents, amendments, waivers or other modifications thereto and any other documents or
matters requested by Borrower; (d) all the actual costs and reasonable out-of-pocket expenses of
creating, perfecting, recording, maintaining and preserving Liens in favor of Collateral Agent, for
the benefit of Secured Parties, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and
disbursements of counsel to each Agent and of



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counsel providing any opinions that any Agent or
Requisite Lenders may request in respect of the Collateral or the Liens created pursuant to the
Collateral Documents; (e) all the actual costs and reasonable out-of-pocket fees, expenses and
disbursements of any auditors, accountants, consultants or appraisers; (f) all the actual costs and
reasonable out-of-pocket expenses (including the reasonable fees, expenses and disbursements of any
appraisers, consultants, advisors and agents employed or retained by Collateral Agent and its
counsel) in connection with the custody or preservation of any of the Collateral; (g) all other
actual and reasonable out-of-pocket costs and expenses incurred by each Agent in connection with
the syndication of the Loans and Commitments and the transactions contemplated by the Credit
Documents and any consents, amendments, waivers or other modifications thereto; and (h) after the
occurrence of a Default or an Event of Default, all out-of-pocket costs and expenses, including
reasonable attorneys’ fees and costs of settlement, incurred by any Agent and Lenders in enforcing
any Obligations of or in collecting any payments due from any Credit Party hereunder or under the
other Credit Documents by reason of such Default or Event of Default (including in connection with
the sale, lease or license of, collection from, or other realization upon any of the Collateral or
the enforcement of the Guaranty) or in connection with any refinancing or restructuring of the
credit arrangements provided hereunder in the nature of a “work-out” or pursuant to any insolvency
or bankruptcy cases or proceedings.



     10.3. Indemnity.



     (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend
indemnify, pay and hold harmless each Agent and Lender and the officers, partners, members,
directors, trustees, advisors, employees, agents, sub-agents and Affiliates of each Agent and each
Lender (each, an “Indemnitee”), from and against any and all Indemnified Liabilities, in all cases,
whether or not caused by or arising, in whole or in part, out of the negligence of such Indemnitee;
provided that no Credit Party shall have any obligation to any Indemnitee hereunder with
respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the
gross negligence or willful misconduct of that Indemnitee, in each case as determined by a final,
non-appealable judgment of a court of competent jurisdiction, or if such Indemnified Liabilities
result from any action, suit or proceeding in contract brought by a Credit Party for direct damages
(as opposed to special, indirect, consequential or punitive damages) against such Indemnitee for a
material breach by such Indemnitee of its obligations under any Credit Document that is
determined in favor of such Credit Party by a final, non-appealable judgment of a court of
competent jurisdiction. To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this Section 10.3 apply but are unenforceable in whole or in part because
they are violative of any law or public policy, the applicable Credit Party shall contribute the
maximum portion that it is permitted to pay and satisfy under Applicable Law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them.



     (b) To the extent permitted by Applicable Law, no Credit Party shall assert, and each Credit
Party hereby waives, any claim against each Lender, each Agent, Arranger and their respective
Affiliates, directors, employees, attorneys, agents or sub-agents, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
(whether or not the claim therefor is based on contract, tort or duty imposed by any applicable
legal requirement) arising out of, in connection with, as a result of, or in any way related to,
this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby
or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the
use of the proceeds thereof or any act or omission or event occurring in connection therewith, and
each Credit Party hereby waives, releases and agrees not to sue upon any such claim or any such
damages, whether or not accrued and whether or not known or suspected to exist in its favor.




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     10.4. Set-Off. In addition to any rights now or hereafter granted under Applicable Law and not
by way of limitation of any such rights, upon the occurrence of any Event of Default each Lender is
hereby authorized by each Credit Party at any time or from time to time subject to the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed), to set-off and to
appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced
by certificates of deposit, whether matured or unmatured, but not including trust accounts (in
whatever currency)) and any other Indebtedness at any time held or owing by such Lender to or for
the credit or the account of any Credit Party (in whatever currency) against and on account of the
obligations and liabilities of any Credit Party to such Lender hereunder, the Letters of Credit and
participations therein and under the other Credit Documents, including all claims of any nature or
description arising out of or connected hereto, the Letters of Credit and participations therein or
with any other Credit Document, irrespective of whether or not (a) such Lender shall have made any
demand hereunder or (b) the principal of or the interest on the Loans or any amounts in respect of
the Letters of Credit or any other amounts due hereunder shall have become due and payable pursuant
to Section 2 and although such obligations and liabilities, or any of them, may be contingent or
unmatured. The applicable Lender shall notify Borrower and Administrative Agent of such set-off
and application, provided that any failure or any delay in giving such notice shall not
affect the validity of any such set-off and application under this Section 10.4.



     10.5. Amendments and Waivers.



     (a) Requisite Lenders’ Consent. Subject to the additional requirements of Sections
10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any provision of the
Credit Documents, or consent to any departure by any Credit Party therefrom, shall in any event be
effective without the written concurrence of the Requisite Lenders; provided that
Administrative Agent may, with the consent of Borrower only, amend, modify or supplement this
Agreement to cure any ambiguity, omission, defect or inconsistency, so long as such amendment,
modification or supplement does not adversely affect the rights of any Lender or Issuing Bank.



     (b) Affected Lenders’ Consent. Without the written consent of each Lender that would
be directly affected thereby, no amendment, modification, termination, or consent shall be
effective if the effect thereof would:




     (i) extend the scheduled final maturity of any Loan or Note;




     (ii) waive, reduce or postpone any scheduled repayment (but not prepayment);




     (iii) extend the stated expiration date of any Letter of Credit beyond the Revolving
Commitment Termination Date;




     (iv) reduce the rate of interest on any Loan (other than any waiver of any increase in
the interest rate applicable to any Loan pursuant to Section 2.9) or any fee or any premium
payable hereunder;




     (v) extend the time for payment of any such interest or fees;




     (vi) reduce the principal amount of any Loan or any reimbursement obligation in respect
of any Letter of Credit;




     (vii) amend, modify, terminate or waive any provision of Section 2.11(b)(ii), this
Section 10.5(b), Section 10.5(c) or any other provision of this Agreement that expressly
provides that the consent of all Lenders is required;



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     (viii) amend the definition of “Requisite Lenders” or “Pro Rata Share”;
provided, with the consent of Requisite Lenders, additional extensions of credit
pursuant hereto may be included in the determination of “Requisite Lenders” or “Pro Rata
Share” on substantially the same basis as the Revolving Commitments and the Revolving Loans
are included on the Closing Date;




     (ix) release all or substantially all of the Collateral or all or substantially all of
the Guarantors from the Guaranty except as expressly provided in the Credit Documents; or




     (x) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under any Credit Document;


provided that for the avoidance of doubt, all Lenders shall be deemed directly affected
thereby with respect to any amendment described in clauses (vii), (viii), (ix) and (x).




     (c) Other Consents. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall:




     (i) increase any Revolving Commitment of any Lender over the amount thereof then in
effect without the consent of such Lender; provided that no amendment, modification
or waiver of any condition precedent, covenant, Default or Event of Default shall constitute
an increase in any Revolving Commitment of any Lender;




     (ii) amend, modify, terminate or waive any provision hereof relating to the Swing Line
Sublimit or the Swing Line Loans without the consent of Swing Line Lender;




     (iii) amend, modify, terminate or waive any obligation of Lenders relating to the
purchase of participations in Letters of Credit as provided in Section 2.3(e) without the
written consent of Administrative Agent and of Issuing Bank;




     (iv) amend, modify or waive this Agreement, the Pledge and Security Agreement, the
Canadian Pledge and Security Agreement or the Barbados Security Documents so as to alter the
ratable treatment of Obligations arising under the Credit Documents and Obligations arising
under Hedge Agreements or Cash Management Agreements or the definition of “Lender
Counterparty,” “Hedge Agreement,” “Cash Management Agreement,” “Obligations,” or “Secured
Obligations” (as defined in any applicable Collateral Document) in each case in a manner
adverse to any Lender Counterparty with Obligations then outstanding without the written
consent of any such Lender Counterparty; or




     (v) amend, modify, terminate or waive any provision of Section 9 as the same applies to
any Agent, or any other provision hereof as the same applies to the rights or obligations of
any Agent, in each case without the consent of such Agent.



     (d) Notwithstanding Section 10.5(a), any such agreement that shall extend the Revolving
Commitment Termination Date of one or more Lenders (the “Extending Lender”) and does not amend any
other provision of this Agreement or the Credit Documents other than to change the Applicable
Margin of Extending Lenders shall only require the consent of Borrower, the Administrative Agent
and the Extending Lenders.



     Notwithstanding anything to the contrary, without the consent of any other Person, the
applicable Credit Party or Credit Parties and the Administrative Agent may (in its or their
respective sole discretion,
or shall, to the extent required by any Credit Document) enter into any amendment or waiver of
any



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Credit Document, or enter into any new agreement or instrument, to effect the granting,
perfection, protection, expansion or enhancement of any security interest in Collateral or
additional property to become Collateral for the benefit of the Secured Parties, or as required by
local law to give effect to, or protect any security interest for the benefit of the Secured
Parties, in any property or so that the security interests therein comply with applicable law.




     (e) Execution of Amendments, etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.5 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.



     10.6. Successors and Assigns; Participations.



     (a) Generally. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the prior written consent
of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon
any Person (other than the parties hereto, Indemnitee Agent Parties under Section 9.6 and
Indemnitees under Section 10.3, their respective successors and assigns permitted hereby and, to
the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.



     (b) Register. Borrower, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any
such Commitment or Loan shall be effective, in each case, unless and until recorded in the Register
following receipt of a fully executed Assignment Agreement effecting the assignment or transfer
thereof, together with the required forms and certificates regarding tax matters and any fees
payable in connection with such assignment, in each case, as provided in Section 10.6(d). Each
assignment shall be recorded in the Register promptly following receipt by the Administrative Agent
of the fully executed Assignment Agreement and all other necessary documents and approvals, prompt
notice thereof shall be provided to Borrower and a copy of such Assignment Agreement shall be
maintained, as applicable. The date of such recordation of a transfer shall be referred to herein
as the “Assignment Effective Date.” Any request, authority or consent of any Person who, at the
time of making such request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans, absent manifest error.



     (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement, including all or a
portion of its Commitment or Loans owing to it or other Obligations (provided,
however, that pro rata assignments shall not be required and each assignment, other than
pursuant to Section 10.6(h), shall be of a uniform, and not varying, percentage of all rights and
obligations under and in respect of any Loan and any related Commitments):




     (i) to any Person meeting the criteria of clause (i) of the definition of the term
“Eligible Assignee” upon the giving of notice to Borrower and Administrative Agent; and



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     (ii) to any Person meeting the criteria of clause (ii) of the definition of the term
“Eligible Assignee” upon giving of notice to Borrower and Administrative Agent and (except
in the case of assignments made by or to GSLP or Goldman Sachs Bank USA), consented to by
each of Borrower and Administrative Agent (such consent not to be (x) unreasonably withheld
or delayed or (y) in the case of Borrower, required at any time an Event of Default shall
have occurred and then be continuing); provided, further that each such
assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less
than $2,500,000 (or such lesser amount as may be agreed to by Borrower and Administrative
Agent or as shall constitute the aggregate amount of the Revolving Commitments and Revolving
Loans of the assigning Lender) with respect to the assignment of the Revolving Commitments
and Revolving Loans.



     (d) Mechanics. Assignments and assumptions of Loans and Commitments by Lenders shall
be effected by manual execution and delivery to Administrative Agent of an Assignment Agreement.
Assignments made pursuant to the foregoing provision shall be effective as of the Assignment
Effective Date. In connection with all assignments there shall be delivered to Administrative
Agent such forms, certificates or other evidence, if any, with respect to United States federal
income tax withholding matters as the assignee under such Assignment Agreement may be required to
deliver pursuant to Section 2.18(d), together with payment to Administrative Agent of a
registration and processing fee of $3,500 (except that no such registration and processing fee
shall be payable (x) in connection with an assignment by or to GSLP or any Affiliate thereof or (y)
in the case of an Assignee which is already a Lender or is an Affiliate or Related Fund of a Lender
or a Person under common management with a Lender).



     (e) Representations and Warranties of Assignee. Each Lender, upon execution and
delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be,
represents and warrants as of the Closing Date or as of the Assignment Effective Date that (i) it
is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in
commitments or loans such as the applicable Commitments or Loans, as the case may be; and (iii) it
will make or invest in, as the case may be, its Commitments or Loans for its own account in the
ordinary course and without a view to distribution of such Commitments or Loans within the meaning
of the Securities Act or the Exchange Act or other federal securities laws (it being understood
that, subject to the provisions of this Section 10.6, the disposition of such Revolving Commitments
or Loans or any interests therein shall at all times remain within its exclusive control).



     (f) Effect of Assignment. Subject to the terms and conditions of this Section 10.6,
as of the “Assignment Effective Date” (i) the assignee thereunder shall have the rights and
obligations of a “Lender” hereunder to the extent of its interest in the Loans and Commitments so
assigned as reflected in the Register and shall thereafter be a party hereto and a “Lender” for all
purposes hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned to the assignee, relinquish its rights (other than any
rights which survive the termination hereof under Section 10.8) and be released from its
obligations hereunder (and, in the case of an assignment covering all or the remaining portion of
an assigning Lender’s rights and obligations hereunder, such Lender shall cease to be a party
hereto on the Assignment Effective Date); provided that anything contained in any of the
Credit Documents to the contrary notwithstanding, (y) Issuing Bank shall continue to have all
rights and obligations thereof with respect to such Letters of Credit until the cancellation or
expiration of such Letters of Credit and the reimbursement of any amounts drawn thereunder and (z)
such assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as
specified herein with respect to matters arising out of the prior involvement of such assigning
Lender as a Lender hereunder; (iii) the
Commitments shall be modified to reflect any Commitment of such assignee and any Revolving
Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs after the
issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter



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as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon Borrower shall issue and deliver new Notes, if
so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning
Lender, with appropriate insertions, to reflect the new Commitments and/or outstanding Loans of the
assignee and/or the assigning Lender.




     (g) Participations.



     (1) Each Lender shall have the right at any time to sell one or more participations to any
Person (other than Parent, Borrower, any of their Subsidiaries or any of their Affiliates) in all
or any part of its Commitments or Loans or in any other Obligation.



     (2) The holder of any such participation, other than an Affiliate of the Lender granting such
participation, shall not be entitled to require such Lender to take or omit to take any action
hereunder except that the participation agreement may provide that the Lender must first obtain the
participant’s consent with respect to any amendment, modification or waiver that would (A) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Commitment Termination Date) in which such participant is
participating, or reduce the rate or extend the time of payment of interest or fees thereon (except
in connection with a waiver of applicability of any post default increase in interest rates) or
reduce the principal amount thereof, or increase the amount of the participant’s participation over
the amount thereof then in effect (it being understood that a waiver of any Default or Event of
Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of
such participation, and that an increase in any Commitment or Loan shall be permitted without the
consent of any participant if the participant’s participation is not increased as a result
thereof), (B) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under this Agreement or (C) release all or substantially all of the Collateral under
the Collateral Documents (except as expressly provided in the Credit Documents) supporting the
Loans hereunder in which such participant is participating. Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register
on which it enters the name and address of each Participant and the principal amounts (and stated
interest) of each participant’s interest in the Loans or other obligations under this Agreement
(the “Participant Register”). The entries in the Participant Register shall be conclusive and such
Lender shall treat each person whose name is recorded in the Participant Register as the owner of
such participation for all purposes of this Agreement notwithstanding any notice to the contrary.



     (3) Borrower agrees that each participant shall be entitled to the benefits of Sections
2.16(c), 2.17 and 2.18 to the same extent as if it were a Lender (subject to the requirements and
limitations thereof, including the requirement to provide forms under Section 2.18(d)) and had
acquired its interest by assignment pursuant to paragraph (c) of this Section; provided
that a participant shall not be entitled to receive any greater payment under Section 2.17 or 2.18
than the applicable Lender would have been entitled to receive with respect to the participation
sold to such participant, except to the extent that entitlement to a greater payment results from a
change in law that occurs after such Participant acquires the applicable participation. To the
extent permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as
though it were a Lender, provided such participant agrees to be subject to Section 2.15 as
though it were a Lender.



     (h) SPC. Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing
from time to
time by the Granting Lender to Administrative Agent and Parent (an “SPC”) the option to
provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make
pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment
by any SPC to fund any Loan,



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and (ii) if an SPC elects not to exercise such option or otherwise
fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof. Each party hereto hereby agrees that (i) an SPC shall be
entitled to the benefits of Sections 2.16(c), 2.17 and 2.18 to the same extent as if it were a
Lender (subject to the requirements and limitations thereof, including the requirement to provide
forms under Section 2.18(d)) and had acquired its interest by assignment pursuant to paragraph (c)
of this Section; provided that an SPC shall not be entitled to receive any greater payment
under Section 2.17 or 2.18 than the applicable Lender would have been entitled to receive with
respect to the Loans subject to such option, except to the extent that entitlement to a greater
payment results from a change in law that occurs after such SPC acquires such option, (ii) no SPC
shall be liable for any indemnity or similar payment obligation under this Agreement for which a
Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the
approval of any amendment, waiver or other modification of any provision of any Credit Document,
remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Notwithstanding anything to the contrary contained herein, any SPC may (i) with
notice to, but without prior consent of Parent Borrower and Administrative Agent and with the
payment of a processing fee of $3,500, assign all or any portion of its right to receive payment
with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any
non-public information relating to its funding of Loans to any rating agency, commercial paper
dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.




     (i) Certain Other Assignments and Participations. In addition to any other assignment
or participation permitted pursuant to this Section 10.6, any Lender may assign and/or pledge all
or any portion of its Loans, the other Obligations owed by or to such Lender, and its Notes, if
any, to secure obligations of such Lender including any Federal Reserve Bank or any central bank
having jurisdiction over such Lender as collateral security pursuant to Regulation A of the Board
of Governors and any operating circular issued by such Federal Reserve Bank or such other central
bank having jurisdiction over such Lender; provided that no Lender, as between Borrower and
such Lender, shall be relieved of any of its obligations hereunder as a result of any such
assignment and pledge, and provided further that in no event shall the applicable
Federal Reserve Bank, pledgee or trustee be considered to be a “Lender” or be entitled to require
the assigning Lender to take or omit to take any action hereunder.



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



     10.8. Survival of Representations, Warranties and Agreements. All representations, warranties and
agreements made herein shall survive the execution and delivery hereof and the making of any Credit
Extension. Notwithstanding anything herein or implied by law to the contrary, the agreements of
each Credit Party set forth in Sections 2.16(c), 2.17, 2.18, 10.2, 10.3 and 10.4 and the agreements
of Lenders set forth in Sections 2.15, 9.3(b) and 9.6 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination hereof.



     10.9. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender in
the exercise of any power, right or privilege hereunder or under any other Credit Document shall
impair such power, right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other power, right or privilege. The rights,
powers and remedies given to each Agent and each Lender hereby are cumulative and shall be in
addition to and independent of all



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rights, powers and remedies existing by virtue of any statute or
rule of law or in any of the other Credit Documents or any of the Hedge Agreements or Cash
Management Agreements. Any forbearance or failure to exercise, and any delay in exercising, any
right, power or remedy hereunder shall not impair any such right, power or remedy or be construed
to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or
remedy.




     10.10. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Credit Party or any other Person or against or in
payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or
any Agent or Lenders enforce any security interests or exercise their rights of set-off, and such
payment or payments or the proceeds of such enforcement or set-off or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state,
provincial, territorial or federal law, common law or any equitable cause, then, to the extent of
such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor or related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such enforcement or set-off had not
occurred.



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



     10.12. Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or Commitment of any
other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for
any other Lender to be joined as an additional party in any proceeding for such purpose.



     10.13. Headings. Section headings herein are included herein for convenience of reference only and
shall not constitute a part hereof for any other purpose or be given any substantive effect.



     10.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.



     10.15. CONSENT TO JURISDICTION.



     (a) SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENTS, OR ANY OF THE
OBLIGATIONS, SHALL BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
BOROUGH OF MANHATTAN IN THE STATE, COUNTY AND CITY OF NEW
YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE
JURISDICTION AND



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VENUE OF SUCH COURTS (OTHER THAN WITH RESPECT TO ACTIONS BY ANY AGENT IN RESPECT
OF RIGHTS UNDER ANY COLLATERAL DOCUMENT GOVERNED BY LAWS OTHER THAN THE LAWS OF THE STATE OF NEW
YORK OR WITH RESPECT TO ANY COLLATERAL SUBJECT THERETO); (B) WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT
ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE
(C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY
SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (E) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER
JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY SECURITY DOCUMENT OR THE
ENFORCEMENT OF ANY JUDGMENT.




     (b) EACH CREDIT PARTY THAT IS ORGANIZED UNDER THE LAWS OF A JURISDICTION OUTSIDE THE UNITED
STATES HEREBY APPOINTS BORROWER AS ITS AGENT FOR SERVICE OF PROCESS IN ANY MATTER RELATED TO THIS
AGREEMENT OR THE OTHER CREDIT DOCUMENTS AND BORROWER HEREBY ACCEPTS SUCH APPOINTMENT.



     10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE
OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE
TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RE
LATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



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     10.17. Confidentiality. Each Agent and each Lender (which term shall for the purposes of this
Section 10.17 include the Issuing Bank) shall hold all Non-Public Information regarding Parent and
its Subsidiaries and their businesses identified as such by Parent or such Subsidiary (or which is
reasonably apparent to be of a confidential nature, even if not so identified) and obtained by such
Agent and such Lender pursuant to the requirements hereof in accordance with such Agent’s and such
Lender’s customary procedures for handling confidential information of such nature, it being
understood and agreed by Parent and Borrower that, in any event, the Administrative Agent may
disclose such information to the Lenders and each Agent and each Lender may make (i) disclosures of
such information to Affiliates of such Lender and to their respective agents and advisors (and to
other Persons authorized by a Lender or Agent to organize, present or disseminate such information
in connection with disclosures otherwise made in accordance with this Section 10.17), (ii)
disclosures of such information reasonably required by any bona fide or potential assignee,
transferee or participant in connection with the contemplated assignment, transfer or participation
of any Loans or any participations therein or by any direct or indirect contractual counterparties
(or the professional advisors thereto) to any swap or derivative transaction relating to Borrower
and its obligations (provided that such assignees, transferees, participants,
counterparties and advisors are advised of and agree to be bound by either the provisions of this
Section 10.17 or other provisions at least as restrictive as this Section 10.17), (iii) disclosure
to any rating agency when required by it, provided that, prior to any disclosure, such
rating agency shall undertake in writing to preserve the confidentiality of any confidential
information relating to Credit Parties received by it from any Agent or any Lender, (iv)
disclosures necessary in connection with the exercise of any remedies hereunder or under any other
Credit Document and (v) disclosures required or requested by any Governmental Authority or pursuant
to legal or judicial process; provided that, unless specifically prohibited by Applicable
Law or court order, each Lender and each Agent shall make reasonable efforts to notify Borrower of
any request by any Governmental Authority or representative thereof (other than any such request in
connection with any examination of the financial condition or other routine examination of such
Lender by such Governmental Authority) for disclosure of any such Non-Public Information reasonably
in advance of disclosure of such information (and each Agent and Lender shall cooperate with Parent
and its Subsidiaries (at the sole cost and expense of Parent and its Subsidiaries) to limit any
such disclosure). In addition, each Agent and each Lender may disclose the existence of this
Agreement and the information about this Agreement to service providers to Agents and Lenders in
connection with the administration and management of this Agreement and the other Credit Documents.



     10.18. Usury Savings Clause. If any provision of this Agreement or of any of the other Credit
Documents would obligate any Credit Party to make any payment of interest or other amount payable
to any Agent or any Lender in an amount or calculated at a rate which would be prohibited by law or
would result in a receipt by such Agent or Lender of interest at a criminal rate (as such terms are
construed under the Criminal Code (Canada)) or in excess of the Highest Lawful Rate, then
notwithstanding such provisions, such amount or rate shall be deemed to have been adjusted with
retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be
so prohibited by law or so result in a receipt by such Agent or such Lender of interest at a
criminal rate, such adjustment to be effected, to the extent necessary, as follows: (1) firstly,
by reducing the amount or rate of interest required to be paid to such Agent or such Lender under
Section 2.7, and (2) thereafter, by reducing any fees, commissions, premiums and other amounts
required to be paid to such Agent or such Lender which would constitute “interest” for purposes of
Section 347 of the Criminal Code (Canada) or for the purposes of determining the Highest Lawful
Rate. Notwithstanding the foregoing, it is the intention of Lenders and Borrower to conform
strictly to any applicable usury laws, and after giving effect to all adjustments contemplated in
the preceding sentence, if an Agent or Lender shall have received an amount in excess of the
maximum permitted by that section of the Criminal Code (Canada) or by application of the Highest Lawful
Rate, such Credit Party shall be entitled, by notice in writing to such Agent or such Lender, to
obtain reimbursement from such Agent or such Lender in an amount equal to such excess and, pending
such



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reimbursement, such amount shall be deemed to be an amount payable by such Agent or such
Lender to such Credit Party. Any amount or rate of interest referred to in this Section 10.18
shall be determined in accordance with GAAP as an effective annual rate of interest over the term
that the applicable Loan remains outstanding on the assumption that any charges, fees or expenses
that fall within the meaning of “interest” (as defined in the Criminal Code (Canada) or for the
purposes of determining the Highest Lawful Rate) shall, if they relate to a specific period of
time, be pro-rated over that period of time and otherwise be pro-rated over the period from the
Closing Date to the Revolving Commitment Termination Date and, in the event of a dispute, a
certificate of an actuary appointed by Administrative Agent shall be conclusive for the purposes of
such determination absent manifest error.




     10.19. Counterparts. This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Delivery of an executed counterpart to this
Agreement by facsimile transmission or other electronic transmission shall be effective as delivery
of a manually signed counterpart of this Agreement.



     10.20. Effectiveness; Entire Agreement. This Agreement shall become effective upon the execution of
a counterpart hereof by each of the parties hereto and receipt by Borrower and Administrative Agent
of written notification of such execution and authorization of delivery thereof.



     10.21. PATRIOT Act; PCTFA. Each Lender to whom the PATRIOT Act applies and Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies each Credit Party that pursuant to the
requirements of the PATRIOT Act and the PCTFA, it is required to obtain, verify and record
information that identifies each Credit Party, which information includes the name and address of
each Credit Party and other information that will allow such Lender or Administrative Agent, as
applicable, to identify such Credit Party in accordance with those Acts.



     10.22. Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words
of like import in any Assignment Agreement shall be deemed to include electronic signatures or the
keeping of records in electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any Applicable Law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act,
the Commerce Act (Ontario) or any similar provincial, territorial or federal laws.



     10.23. No Fiduciary Duty. Each Agent, each Lender and their Affiliates (collectively, solely for
purposes of this paragraph, the “Lenders”) may have economic interests that conflict with those of
Borrower, its stockholders and/or its affiliates. Borrower agrees that nothing in the Credit
Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or
fiduciary or other implied duty between any Lender, on the one hand, and Borrower, its stockholders
or its affiliates, on the other. The Credit Parties acknowledge and agree that (i) the
transactions contemplated by the Credit Documents (including the exercise of rights and remedies
hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one
hand, and Borrower, on the other, and (ii) in connection therewith and with the process leading
thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of Borrower,
its stockholders or its affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will
advise Borrower, its stockholders or its Affiliates on other matters) or any other obligation to
Borrower except the obligations expressly set forth in the Credit Documents and (y) each Lender is
acting solely as principal and not



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as the agent or fiduciary of Borrower, its management,
stockholders, creditors or any other Person. Borrower acknowledges and agrees that Borrower has
consulted its own legal and financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such transactions and the
process leading thereto. Borrower agrees that it will not claim that any Lender has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to Borrower, in
connection with such transaction or the process leading thereto.




     10.24. Judgment Currency.



     (a) If, for the purpose of obtaining or enforcing judgment against any Credit Party in any
court in any jurisdiction, it becomes necessary to convert into any other currency (such other
currency being hereinafter in this Section 10.24 referred to as the “Judgment Currency”) an amount
due under any Credit Document in any currency (the “Obligation Currency”) other than the Judgment
Currency, the conversion shall be made at the rate of exchange prevailing on the Business Day
immediately preceding the date of actual payment of the amount due, in the case of any proceeding
in the courts of any jurisdiction that will give effect to such conversion being made on such date,
or the date on which the judgment is given, in the case of any proceeding in the courts of any
other jurisdiction (the applicable date as of which such conversion is made pursuant to this
Section 10.24 being hereinafter in this Section 10.24 referred to as the “Judgment Conversion
Date”).



     (b) If, in the case of any proceeding in the court of any jurisdiction referred to in Section
10.24(a), there is a change in the rate of exchange prevailing between the Judgment Conversion Date
and the date of actual receipt for value of the amount due, then the applicable Credit Party or
Credit Parties shall pay such additional amount (if any, but in any event not a lesser amount) as
may be necessary to ensure that the amount actually received in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will provide the amount of the
Obligation Currency which could have been purchased with the amount of the Judgment Currency
stipulated in the judgment or judicial order at the rate of exchange prevailing on the Judgment
Conversion Date. Any amount due from any Credit Party under this Section 10.24(b) shall be due as
a separate debt and shall not be affected by judgment being obtained for any other amounts due
under or in respect of any of the Credit Documents.



     (c) The term “rate of exchange” in this Section 10.24 means the rate of exchange at which
Administrative Agent, on the relevant date at or about 12:00 noon (New York time), would be
prepared to sell, in accordance with Administrative Agent’s normal course foreign currency exchange
practices, the Obligation Currency against the Judgment Currency.



     10.25. Joint and Several Liability. Notwithstanding any other provision contained herein or in any
other Credit Documents, if a “secured creditor” (as that term is defined under the BIA) is
determined by a court of competent jurisdiction not to include a Person to whom obligations are
owed on a joint or joint and several basis, then any Canadian Credit Party’s Obligations (and the
Obligations of each other Credit Party with respect thereto), to the extent such Obligations are
secured, only shall be several obligations and not joint or joint and several obligations.



     10.26. Advice of Counsel; No Strict Construction. Each of the parties represents to each other party
hereto that it has discussed this Agreement and the other Credit Documents with its counsel. The
parties hereto have participated jointly in the negotiation and drafting of this Agreement and the
other Credit Documents. In the event an ambiguity or question of intent or interpretation arises,
this Agreement and each of the other Credit Documents shall be construed as if drafted jointly by
the parties hereto and
no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Agreement or any other Credit Document.



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     10.27. Day Not a Business Day. In the event that any day on or before which any action, calculation,
determination or allocation is required to be taken hereunder is not a Business Day, then such
action, calculation, determination or allocation shall be required to be taken at the requisite
time on or before the first succeeding day that is a Business Day thereafter, unless such day is in
the next calendar month, in which case such action, calculation, determination or allocation shall
be required to be taken at the requisite time on the first preceding day that is a Business Day.



     10.28. Limitations Act, 2002. Each of the parties hereto agrees that any and all limitation periods
provided for in the Limitations Act, 2002 (Ontario) or any other Applicable Law that provides for
or relates to limitation periods, shall be excluded from application to the Obligations and any
undertaking, covenant, indemnity or other agreement of any Credit Party provided for in any Credit
Document to which it is a party in respect thereof, in each case to fullest extent permitted by
such Act or other Applicable Law.



[Remainder of page intentionally left blank]





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



	 	 	 	 	 
	 	VALEANT PHARMACEUTICALS INTERNATIONAL

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	VALEANT PHARMACEUTICALS INTERNATIONAL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ATON PHARMA, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CORIA LABORATORIES, LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DOW PHARMACEUTICAL SCIENCES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








-6-









 











	 	 	 	 	 
	 	VALEANT PHARMACEUTICALS NORTH AMERICA LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DR. LEWINN’S PRIVATE FORMULA INTERNATIONAL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	OCEANSIDE PHARMACEUTICALS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PRINCETON PHARMA HOLDINGS, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PRIVATE FORMULA CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	RENAUD SKIN CARE LABORATORIES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








-7-









 











	 	 	 	 	 
	 	VALEANT BIOMEDICALS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BIOVAIL AMERICAS CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PRESTWICK PHARMACEUTICALS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	BIOVAIL HOLDINGS INTERNATIONAL SRL

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	VALEANT INTERNATIONAL (BARBADOS) SRL

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BIOVAIL LABORATORIES INTERNATIONAL (BARBADOS) SRL

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








-7-









 











	 	 	 	 	 
	 	HYTHE PROPERTY INCORPORATED

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	VALEANT CANADA GP LIMITED

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	VALEANT CANADA LP by its sole general partner,

VALEANT CANADA GP LIMITED

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	V-BAC HOLDING CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








-7-









 











	 	 	 	 	 	 	 

	 	 	GOLDMAN SACHS LENDING PARTNERS LLC, 
as Administrative
Agent, Collateral Agent and Swing Line Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

Authorized Signatory
	 	 






-7-









 





	 	 	 	 	 	 	 

	 	 	GOLDMAN SACHS BANK USA, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

Authorized Signatory
	 	 







-7-











 





APPENDIX A

TO CREDIT AND GUARANTY AGREEMENT




Revolving Commitments




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Pro	 
	Lender	 	Revolving Commitment	 	 	Rata Share	 
	Goldman Sachs Bank USA
	 	$	200,000,000	 	 	 	100.00	%
	 
	 	 	 	 	 	 	 	 
	Total
	 	$	200,000,000	 	 	 	100.00	%






APPENDIX A-1



 









 





APPENDIX B

TO CREDIT AND GUARANTY AGREEMENT




Notice Addresses




VALEANT PHARMACEUTICALS INTERNATIONAL



7545 Irvine Center Drive, Suite 100

Irvine, California 92618

Attention: General Counsel

Facsimile: (949) 461-6661



VALEANT PHARMACEUTICALS INTERNATIONAL, INC.




7150 Mississauga Rd.,

Mississauga, ON L5N 8M5

Attention: Chief Financial Officer

Telecopier: (905) 286-3029



with a copy to:



7150 Mississauga Rd.,

Mississauga, ON L5N 8M5

Attention: Legal Department

Telecopier: (905) 286-3385



APPENDIX B-1



 









 





GOLDMAN SACHS LENDING PARTNERS LLC,

as Lead Arranger and Syndication Agent



Goldman Sachs Lending Partners LLC

200 West Street

New York, New York 10282

Attention: Lauren Day

Telecopier: (646) 769-7700



GOLDMAN SACHS BANK USA,

as a Lender




Goldman Sachs Bank USA

200 West Street

New York, New York 10282

Attention: Lauren Day

Telecopier: (917) 977-3966



APPENDIX B-2



 









 





GOLDMAN SACHS LENDING PARTNERS LLC,

as Administrative Agent, Collateral Agent and

Swing Line Lender




Administrative Agent’s Principal Office:




Goldman Sachs Lending Partners LLC

200 West Street

New York, New York 10282

Attention: Lauren Day

Telecopier: (646) 769-7700



with a copy to:



Goldman Sachs Lending Partners LLC

200 West Street

New York, New York 10282

Attention: Gabe Jacobson



Swing Line Lender’s Principal Office:



Goldman Sachs Lending Partners LLC

200 West Street

New York, New York 10282

Attention: Lauren Day

Telecopier: (646) 769-7700



APPENDIX B-3