EX-10.27(B)



 





Exhibit 10.27(b)




EXECUTION COPY




 










CREDIT AND GUARANTEE AGREEMENT




dated as of




March 26, 2007




among




MYLAN LABORATORIES INC.




EURO MYLAN B.V.




The Lenders Party Hereto




THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH,




CITIBANK, N.A.,




PNC BANK, NATIONAL ASSOCIATION and




LASALLE BANK NATIONAL ASSOCIATION,

as Co-Documentation Agents




MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Syndication Agent




and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent




 






J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I Definitions
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	23	 
	SECTION 1.03. Terms Generally
	 	 	23	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	24	 
	SECTION 1.05. Payments on Business Days
	 	 	24	 
	 
	 	 	 	 
	ARTICLE II The Credits
	 	 	24	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	24	 
	SECTION 2.02. Loans and Borrowings
	 	 	25	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	25	 
	SECTION 2.04. Determination of Dollar Amounts
	 	 	26	 
	SECTION 2.05. Swingline Loans
	 	 	26	 
	SECTION 2.06. Letters of Credit
	 	 	28	 
	SECTION 2.07. Funding of Borrowings
	 	 	33	 
	SECTION 2.08. Interest Elections
	 	 	33	 
	SECTION 2.09. Termination and Reduction of Commitments
	 	 	35	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt
	 	 	36	 
	SECTION 2.11. Prepayment of Loans.
	 	 	36	 
	SECTION 2.12. Fees
	 	 	37	 
	SECTION 2.13. Interest
	 	 	38	 
	SECTION 2.14. Alternate Rate of Interest
	 	 	39	 
	SECTION 2.15. Increased Costs
	 	 	40	 
	SECTION 2.16. Break Funding Payments
	 	 	41	 
	SECTION 2.17. Taxes
	 	 	42	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	43	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	45	 
	SECTION 2.20. Expansion Option
	 	 	46	 
	SECTION 2.21. Market Disruption
	 	 	47	 
	SECTION 2.22. Judgment Currency
	 	 	48	 
	 
	 	 	 	 
	ARTICLE III Representations and Warranties
	 	 	48	 
	 
	 	 	 	 
	SECTION 3.01. Organization; Powers; Subsidiaries
	 	 	48	 
	SECTION 3.02. Authorization; Enforceability
	 	 	49	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	49	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	49	 
	SECTION 3.05. Properties
	 	 	49	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	50	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	50	 
	SECTION 3.08. Investment Company Status
	 	 	50	 






 









 






Table of Contents

(continued)





	 	 	 	 	 
	 	 	Page
	SECTION 3.09. Taxes
	 	 	50	 
	SECTION 3.10. ERISA
	 	 	50	 
	SECTION 3.11. Disclosure
	 	 	51	 
	SECTION 3.12. Federal Reserve Regulations
	 	 	51	 
	SECTION 3.13. No Default
	 	 	51	 
	SECTION 3.14. Dutch Financial Supervision Act
	 	 	51	 
	 
	 	 	 	 
	ARTICLE IV Conditions
	 	 	51	 
	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	51	 
	SECTION 4.02. Each Credit Event
	 	 	53	 
	 
	 	 	 	 
	ARTICLE V Affirmative Covenants
	 	 	53	 
	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	54	 
	SECTION 5.02. Notices of Material Events
	 	 	55	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	55	 
	SECTION 5.04. Payment of Obligations
	 	 	56	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	56	 
	SECTION 5.06. Books and Records; Inspection Rights
	 	 	56	 
	SECTION 5.07. Compliance with Laws; Compliance with Agreements
	 	 	56	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	56	 
	SECTION 5.09. Subsidiary Guaranty
	 	 	57	 
	 
	 	 	 	 
	ARTICLE VI Negative Covenants
	 	 	57	 
	 
	 	 	 	 
	SECTION 6.01. Subsidiary Indebtedness
	 	 	57	 
	SECTION 6.02. Liens
	 	 	59	 
	SECTION 6.03. Fundamental Changes
	 	 	60	 
	SECTION 6.04. Restricted Payments
	 	 	61	 
	SECTION 6.05. Transactions with Affiliates
	 	 	62	 
	SECTION 6.06. Changes in Fiscal Year
	 	 	62	 
	SECTION 6.07. Financial Covenants
	 	 	62	 
	SECTION 6.08. Restrictive Agreements
	 	 	62	 
	 
	 	 	 	 
	ARTICLE VII Events of Default
	 	 	63	 
	 
	 	 	 	 
	ARTICLE VIII The Administrative Agent
	 	 	66	 
	 
	 	 	 	 
	ARTICLE IX Miscellaneous
	 	 	68	 
	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	68	 
	SECTION 9.02. Waivers; Amendments
	 	 	70	 






ii









 






Table of Contents

(continued)





	 	 	 	 	 
	 	 	Page
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	71	 
	SECTION 9.04. Successors and Assigns
	 	 	72	 
	SECTION 9.05. Survival
	 	 	75	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	75	 
	SECTION 9.07. Severability
	 	 	76	 
	SECTION 9.08. Right of Setoff
	 	 	76	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	76	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	77	 
	SECTION 9.11. Headings
	 	 	78	 
	SECTION 9.12. Confidentiality
	 	 	78	 
	SECTION 9.13. USA PATRIOT Act
	 	 	78	 
	SECTION 9.14. Release of Guarantors
	 	 	78	 
	 
	 	 	 	 
	ARTICLE X
	 	 	79	 






iii









 






Table of Contents

(continued)




SCHEDULES:




Schedule 1.01A – Applicable Rate

Schedule 1.01B – Notice Requirements for Borrowings

Schedule 1.01C – Material Acquisition

Schedule 2.01 – Commitments

Schedule 2.02 – Mandatory Cost

Schedule 2.03 – Description of Specified Litigation

Schedule 3.01 – Subsidiaries

Schedule 3.06 – Disclosed Matters

Schedule 6.01 – Existing Indebtedness

Schedule 6.02 – Existing Liens

Schedule 6.05 – Affiliate Transactions




EXHIBITS:




Exhibit A – Form of Assignment and Assumption

Exhibit B-1 – Form of Opinion of Loan Parties’ Special U.S. Counsel

Exhibit B-2 – Form of Opinion of Loan Parties’ Corporate Counsel

Exhibit B-3 – Form of Opinion of Loan Parties’ Special Dutch Counsel

Exhibit C – Form of Increasing Lender Supplement

Exhibit D – Form of Augmenting Lender Supplement

Exhibit E – List of Closing Documents

Exhibit F – Form of Subsidiary Guaranty

Exhibit G-1 – Form of Revolving Borrowing Request

Exhibit G-2 – Form of Swingline Loan Borrowing Request

Exhibit G-3 – Form of Interest Election Request

Exhibit G-4 – Form of Letter of Credit Issuance Request

Exhibit H – Form of Compliance Certificate




 









 





          CREDIT AND GUARANTEE AGREEMENT (this “Agreement”) dated as of March 26, 2007 among
MYLAN LABORATORIES INC., EURO MYLAN B.V., the LENDERS party hereto, The Bank of Tokyo-Mitsubishi
UFJ, Ltd., New York Branch, Citibank, N.A., PNC Bank, National Association and LASALLE BANK
NATIONAL ASSOCIATION, as Co-Documentation Agents, MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, as Syndication Agent and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative
Agent.




          The parties hereto agree as follows:




ARTICLE I




Definitions




          SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:




          “ABR”, when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans
comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base
Rate.




          “Acquisition” means any acquisition (by merger or consolidation) by the Company or any
Subsidiary of (i) all or substantially all the assets of or (ii) all the Equity Interests in, a
Person or division or line of business of a Person.




          “Adjusted EURIBO Rate” means, with respect to any Eurocurrency Borrowing denominated
in euro for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the sum of (i) (a) the EURIBO Rate for such Interest Period multiplied by
(b) the Statutory Reserve Rate plus, without duplication, (ii) in the case of Loans by a
Lender from its office or branch in the United Kingdom, the Mandatory Cost.




          “Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in
an Agreed Currency (other than euro) for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the sum of (i) (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate plus, without duplication,
(ii) in the case of Loans by a Lender from its office or branch in the United Kingdom, the
Mandatory Cost.




          “Administrative Agent” means JPMorgan Chase Bank, National Association, in its
capacity as administrative agent for the Lenders hereunder.




          “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.




          “Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.




 









 








          “Agreed Currencies” means (a) Dollars, (b) euro and (c) such other currencies as are
acceptable to each Lender and the Administrative Agent.




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




          “Applicable Percentage” means, with respect to any Lender, (a) with respect to
Revolving Loans, LC Exposure or Swingline Loans, a percentage equal to a fraction the numerator of
which is such Lender’s Revolving Commitment and the denominator of which is the aggregate Revolving
Commitment of all Revolving Lenders (if the Revolving Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon such Lender’s share of the aggregate
Revolving Credit Exposures at that time) and (b) with respect to the Term Loans, a percentage equal
to a fraction the numerator of which is such Lender’s outstanding principal amount of the Term
Loans and the denominator of which is the aggregate outstanding amount of the Term Loans of all
Term Lenders.




          “Applicable Rate” shall be as set forth in Schedule 1.01A hereto.




          “Approved Fund” has the meaning assigned to such term in Section 9.04.




          “Approximate Equivalent Amount” of any currency with respect to any amount of Dollars
shall mean the Equivalent Amount of such currency with respect to such amount of Dollars on or as
of such date, rounded up to the nearest amount of such currency as determined by the Administrative
Agent from time to time.




          “Asset Sale” means any Disposition of Property or series of Dispositions of Property
which yields net cash proceeds to the Company or any of its Subsidiaries in excess of $25,000,000
in the aggregate in any fiscal year of the Company.




          “Assignment and Assumption” means an assignment and assumption agreement entered into
by a Lender and an assignee (with the consent of any party whose consent is required by Section
9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.




          “Attributable Debt” means, in respect of a Sale and Leaseback Transaction means, at
any date of determination, (a) if such Sale and Leaseback Transaction is a Capital Lease
Obligation, the amount of Indebtedness represented thereby according to the definition of “Capital
Lease Obligations,” and (b) in all other instances, the present value (discounted at the interest
rate implicit in such transaction, determined in accordance with GAAP) of the total obligations of
the lessee for rental payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been extended).




          “Attributable Receivables Indebtedness” at any time shall mean the principal amount of
Indebtedness which (i) if a Permitted Receivables Facility is structured as a secured




2









 







lending agreement, would constitute the principal amount of such Indebtedness or (ii) if a
Permitted Receivables Facility is structured as a purchase agreement, would be outstanding at such
time under the Permitted Receivables Facility if the same were structured as a secured lending
agreement rather than a purchase agreement.




          “Augmenting Lender” has the meaning assigned to such term in Section 2.20.




          “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Revolving Credit Maturity Date and the date of termination of the
Commitments.




          “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.




          “Borrower” means the Company and/or the Dutch Borrower, as the context may require.




          “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in
effect, (b) a Term Loan made on the same date and, in the case of Eurocurrency Loans, as to which a
single Interest Period is in effect or (c) a Swingline Loan.




          “Borrowing Request” means a request by any Borrower for a Revolving Borrowing in
accordance with Section 2.03.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed; provided
that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in Agreed Currencies in the London
interbank market or the principal financial center of the country in which payment or purchase of
such Agreed Currency can be made (and, if the Borrowings or LC Disbursements which are the subject
of a borrowing, drawing, payment, reimbursement or rate selection are denominated in euro, the term
“Business Day” shall also exclude any day on which the TARGET payment system is not open
for the settlement of payments in euro).




          “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




          “Captive Insurance Subsidiary” means American Triumvirate Insurance Company, a Vermont
corporation or any successor thereto, so long as such Subsidiary is maintained as a special purpose
self insurance subsidiary.




          “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities




3









 







Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof), of Equity Interests representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding Equity Interests of the Company;
(b) occupation of a majority of the seats (other than vacant seats) on the board of directors of
the Company by Persons who were neither (i) nominated by the board of directors of the Company nor
(ii) appointed by directors so nominated; or (c) a Specified Change in Control.




          “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Term Loans or Swingline Loans.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Co-Documentation Agent” means each of The Bank of Tokyo-Mitsubishi UFJ, Ltd., New
York Branch, Citibank, N.A., PNC Bank, National Association and LaSalle Bank National Association,
in its capacity as co-documentation agent for the credit facility evidenced by this Agreement.




          “Commitment” means, with respect to each Lender, the sum of such Lender’s Revolving
Commitment and Term Loan Commitment. The initial amount of each Lender’s Commitment is set forth
on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Commitment, as applicable. The initial aggregate amount of the Lenders’
Commitments is $750,000,000.




          “Company” means Mylan Laboratories Inc., a Pennsylvania corporation.




          “Company Guaranty” means the Guarantee of the Company provided in Article X.




          “Computation Date” is defined in Section 2.04.




          “Consolidated EBITDA” means Consolidated Net Income plus, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated Interest Expense
and charges, deferred financing fees and milestone payments in connection with any investment or
series of related investments, (ii) expense for taxes paid or accrued, (iii) depreciation, (iv)
amortization (including amortization of intangibles, including, but not limited to goodwill), (v)
non-cash charges recorded pursuant to Financial Accounting Standards Board Statements 141, 142 or
144 in respect of purchase accounting or impairment of goodwill or assets, (vi) any other non-cash
items except to the extent representing an accrual for future cash outlays, (vii) any unusual,
infrequent or extraordinary loss, (viii) up to $21,000,000 of cash




4









 







restructuring charges related to the closing of Mylan Bertek Pharmaceuticals Inc., (ix)
non-recurring cash charges in connection with the litigation described on Schedule 2.03 and
(x) without duplication, income of any non-wholly owned Subsidiaries minus, to the extent
included in Consolidated Net Income, the sum of (xi) any unusual, infrequent or extraordinary
income or gains and (xii) any other non-cash income, all calculated for the Company and its
relevant Subsidiaries in accordance with GAAP on a consolidated basis. Consolidated EBITDA shall
be calculated on a Pro Forma Basis to give effect to any investment or series of related
investments for aggregate consideration in excess of $10,000,000 and any Asset Sale consummated at
any time on or after the first day of the period for which Consolidated EBITDA is being calculated
as if each such investment had been effected on the first day of such period and as if each such
Asset Sale had been consummated on the day prior to the first day of such period.




          “Consolidated Interest Coverage Ratio” means, for any period, the ratio of (a)
Consolidated EBITDA of the Company and its Subsidiaries (other than the Captive Insurance
Subsidiary) for such period to (b) Consolidated Interest Expense of the Company and its
Subsidiaries (other than the Captive Insurance Subsidiary) for such period.




          “Consolidated Interest Expense” means, with reference to any period, the interest
expense whether or not paid in cash (including, without limitation, interest expense under Capital
Lease Obligations that is treated as interest in accordance with GAAP) of any Person and its
Subsidiaries calculated on a consolidated basis for such period with respect to (a) all outstanding
Indebtedness of the Company and its Subsidiaries allocable to such period in accordance with GAAP,
(b) Swap Agreements (including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers’ acceptance financing and net costs
under Swap Agreements in respect of interest rates to the extent such net costs are allocable to
such period in accordance with GAAP) and (c) the interest component of all Attributable Receivables
Indebtedness of such Person and its Subsidiaries, calculated on a consolidated basis for such
Person and its Subsidiaries for such period in accordance with GAAP; provided that (i)
deferred financing fees in connection with any acquisitions of any Person hereunder shall be
excluded from Consolidated Interest Expense and (ii) Consolidated Interest Expense shall be
calculated on a Pro Forma Basis to give effect to any Indebtedness incurred, assumed or permanently
repaid or extinguished during the relevant period in connection with any investment or series of
related investments for aggregate consideration in excess of $10,000,000, any Restricted Payment or
any Asset Sale as if such incurrence, assumption, repayment or extinguishing had been effected on
the first day of such period.




          “Consolidated Leverage Ratio” means, for any period, the ratio of (a) Consolidated
Total Indebtedness of the Company and its Subsidiaries (other than the Captive Insurance
Subsidiary) for such period to (b) Consolidated EBITDA of the Company and its Subsidiaries (other
than the Captive Insurance Subsidiary) for such period.




          “Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis (without duplication) for such period; provided, that in calculating Consolidated Net
Income of the Company and its Subsidiaries for any period, there shall be excluded (a) the income
(or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Company or is
merged into or consolidated with the Company or any of its




5









 







Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of the
Company) in which the Company or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by the Company or such Subsidiary in the form of
dividends or similar distributions, (c) the undistributed earnings of any Subsidiary of the Company
to the extent that the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted (other than under any Loan Document) and (d) the income (or
deficit) of the Captive Insurance Subsidiary.




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




          “Consolidated Total Indebtedness” means at any time the sum, without duplication, of
the aggregate Indebtedness of the Company and its Subsidiaries (other than the Captive Insurance
Subsidiary) calculated on a consolidated basis as of such time in accordance with GAAP.




          “Control” means, with respect to any Person, the power, directly or indirectly, to
direct or cause the direction of the management and policies of such Person, whether by contract or
otherwise.




          “Country Risk Event” means:




          (i) any law, action or failure to act by any Governmental Authority in any Borrower’s or
Letter of Credit beneficiary’s country which has the effect of:





     (a) changing the obligations under the relevant Letter of Credit, the Credit
Agreement or any of the other Loan Documents as originally agreed or otherwise
creating any additional material liability, cost or expense to the Issuing Bank, any
of the Lenders or the Administrative Agent,




     (b) changing the ownership or control by such Borrower or Letter of Credit
beneficiary of its business, or




     (c) preventing or restricting the conversion into or transfer of the applicable
Agreed Currency;



          (ii) force majeure; or




          (iii) any similar event



which, in relation to (i), (ii) and (iii), directly or indirectly, prevents or restricts the
payment or transfer of any amounts owing under the relevant Letter of Credit in the applicable
Agreed Currency into an account designated by the Administrative Agent or the Issuing Bank and
freely available to the Administrative Agent or the Issuing Bank.




          “Credit Event” means a Borrowing, an LC Disbursement or both.




6









 








          “Credit Exposure” means, as to any Lender at any time, the sum of (a) such Lender’s
Revolving Credit Exposure at such time, plus (b) an amount equal to the aggregate principal
amount of its Term Loans outstanding at such time.




          “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.




          “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.




          “Disposition” means, with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof; and the terms
“Dispose” and “Disposed of” shall have correlative meanings.




          “Dollar Amount” of any currency at any date shall mean (i) the amount of such currency
if such currency is Dollars or (ii) the equivalent in such currency of Dollars if such currency is
a Foreign Currency, determined by the Administrative Agent in accordance with the definition of
Exchange Rate, on or as of the most recent Computation Date provided for in Section 2.04.




          “Dollars” or “$” refers to lawful money of the United States of America.




          “Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction
located in the United States of America.




          “Dutch Borrower” means Euro Mylan B.V., a private limited liability company
incorporated under the laws of The Netherlands having its corporate seat (statutaire zetel) in
Amsterdam, The Netherlands.




          “Dutch Financial Supervision Act” means the Dutch Financial Supervision Act 2007 (Wet
op het Financieel Toezicht 2007), as amended from time to time.




          “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).




          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, imposing liability or standards of conduct concerning protection of
the environment, preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to protection of health and safety matters.




          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Company or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or




7









 







threatened release of any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.




          “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.




          “Equivalent Amount” of any currency with respect to any amount of Dollars at any date
shall mean the equivalent in such currency of such amount of Dollars, determined by the
Administrative Agent in accordance with the definition of Exchange Rate, on the date on or as of
which such amount is to be determined.




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




          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Company, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.




          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Company or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Company or
any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Company
or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Company or
any ERISA Affiliate of any notice, concerning the imposition upon the Company or any of its ERISA
Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.




          “EU” means the European Union.




          “EURIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in euro
for any Interest Period, the rate appearing on Page 248 of the Telerate screen (it being understood
that this rate is the euro interbank offered rate sponsored by the Banking Federation of the
European Union and the Financial Markets Association) (or on any successor or substitute page of
such service, or any successor to or substitute for such service




8









 







providing rate quotations comparable to those currently provided on such page of such service,
as determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in euro in the London interbank market) at approximately
11:00 a.m., Local Time, two (2) Business Days prior to the commencement of such Interest Period, as
the rate for deposits in euro with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the “EURIBO Rate” with respect to
such Eurocurrency Borrowing for such Interest Period shall be the rate at which deposits in euro in
an Equivalent Amount of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in immediately available funds
in the London interbank market at approximately 11:00 a.m., Local Time, two (2) Business Days prior
to the commencement of such Interest Period.




          “euro” and/or “EUR” means the single currency of the participating member
states of the EU.




          “Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate or the Adjusted EURIBO Rate, as applicable.




          “Eurocurrency Payment Office” of the Administrative Agent shall mean, for each of the
Agreed Currencies which is a Foreign Currency, the office, branch, affiliate or correspondent bank
of the Administrative Agent for such currency as specified from time to time by the Administrative
Agent to the Company and each Lender.




          “Event of Default” has the meaning assigned to such term in Article VII.




          “Exchange Rate” means, on any day, with respect to any Foreign Currency, the rate at
which such Foreign Currency may be exchanged into Dollars, as set forth at approximately 11:00
a.m., London time, on such date on the Reuters World Currency Page for such Foreign Currency. In
the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with
respect to such Foreign Currency shall be determined by reference to such other publicly available
service for displaying exchange rates as may be agreed upon by the Administrative Agent and the
Company or, in the absence of such agreement, such Exchange Rate shall instead be calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative
Agent for such Foreign Currency on the London market at 11:00 a.m., London time, on such date for
the purchase of Dollars with such Foreign Currency, 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, the Administrative Agent, after consultation with the Company, may use any
reasonable method it deems appropriate to determine such rate, and such determination shall be
conclusive absent manifest error.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Company hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of




9









 







which such recipient is organized or in which its principal office is located or, in the case
of any Lender, in which its applicable lending office is located, (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other jurisdiction in
which the Company is located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Company under Section 2.19(b)), any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure
to comply with Section 2.17(e), except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Company with respect to such withholding tax pursuant to Section
2.17(a).




          “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 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” means the chief financial officer, principal accounting officer,
treasurer or controller of the Company.




          “Financials” means the annual or quarterly financial statements, and accompanying
certificates and other documents, of the Company required to be delivered pursuant to Section
5.01(a) or 5.01(b).




          “Foreign Currencies” means each Agreed Currency other than Dollars.




          “Foreign Currency LC Exposure” means, at any time, the sum of (a) the Dollar Amount of
the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at
such time plus (b) the aggregate principal Dollar Amount of all LC Disbursements in respect
of Foreign Currency Letters of Credit that have not yet been reimbursed at such time.




          “Foreign Currency Letter of Credit” means a Letter of Credit denominated in a Foreign
Currency.




          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Company is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.




          “GAAP” means generally accepted accounting principles in the United States of America.




10









 








          “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “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 amount of any Guarantee of any guaranteeing person shall
be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee is made and (b) the maximum amount for which
such guaranteeing person may be liable pursuant to the terms of the instrument embodying such
Guarantee, unless such primary obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount of such Guarantee shall be
such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as
determined by the Company in good faith.




          “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.




          “Increasing Lender” has the meaning assigned to such term in Section 2.20.




          “Incremental Term Loan” has the meaning assigned to such term in Section 2.20.




          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (d) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business and milestone payments incurred in
connection with any investment or series of related investments), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such




11









 







Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees
by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances, (j) all obligations of such Person under any Swap Agreement or
under any similar type of agreement, (k) all Attributable Receivables Indebtedness, (l) all
Attributable Debt of such Person under Sale and Leaseback Transactions and (m) all obligations of
such Person under any synthetic lease transaction that may hereinafter be entered into by the
Company or any of its Subsidiaries. The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such Person is a general partner) to the
extent such Person is expressly liable therefor as a result of such Person’s ownership interest in
or other relationship with such entity and pursuant to contractual arrangements, except to the
extent the terms of such Indebtedness provide that such Person is not liable therefor.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Information Memorandum” means the Confidential Information Memorandum dated March
2007 relating to the Company and the Transactions.




          “Interest Election Request” means a request by the applicable Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.08.




          “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months’ duration after the first day of such Interest Period and (c) with
respect to any Swingline Loan, the day that such Loan is required to be repaid.




          “Interest Period” means with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months, or any other period as may be agreed to and
is available to all Lenders, thereafter, as the applicable Borrower (or the Company on behalf of
the applicable Borrower) may elect; provided, that (i) if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurocurrency Borrowing only, such next succeeding Business
Day would fall in the next calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency Borrowing that
commences on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of
a Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.




12









 








          “Issuing Bank” means JPMorgan Chase Bank, National Association, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section
2.06(i). The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.




          “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn Dollar Amount
of all outstanding Letters of Credit at such time plus (b) the aggregate Dollar Amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Company at such time. The
LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.




          “LC Exposure Sublimit” means $25,000,000.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment
and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline
Lender.




          “Letter of Credit” means any letter of credit issued pursuant to this Agreement.




          “Leverage Ratio” has the meaning assigned to such term in Section 6.12(b).




          “LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in an Agreed
Currency (other than euro) for any Interest Period, the rate appearing on, in the case of Dollars,
Page 3750 of the Dow Jones Market Service and, in the case of any Foreign Currency (other than
euro), the appropriate page of such service which displays British Bankers Association Interest
Settlement Rates for deposits in such Foreign Currency (or, in each case, on any successor or
substitute page of such service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of such service, as determined by
the Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to deposits in the relevant Agreed Currency in the London interbank market) at
approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such
Interest Period, as the rate for deposits in the relevant Agreed Currency with a maturity
comparable to such Interest Period. In the event that such rate is not available at such time for
any reason, then the “LIBO Rate” with respect to such Eurocurrency Borrowing for such Interest
Period shall be the rate at which deposits in the relevant Agreed Currency in an Equivalent Amount
of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of
such Interest Period.




          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, and (b)




13









 







the interest of a vendor or a lessor under any conditional sale agreement, capital lease or
title retention agreement (or any financing lease having substantially the same economic effect as
any of the foregoing) relating to such asset.




          “Loans” means the loans made by the Lenders to the Borrowers pursuant to this
Agreement.




          “Loan Documents” means this Agreement, the Subsidiary Guaranty, any promissory notes
executed and delivered pursuant to Section 2.10(e) and any amendments, waivers, supplements or
other modifications to any of the foregoing.




          “Loan Parties” means, collectively, the Borrowers and the Subsidiary Guarantors.




          “Local Time” means (i) New York City time in the case of a Loan, Borrowing or LC
Disbursement denominated in Dollars to, or for the account of, the Company and (ii) local time at
the place of the relevant Loan, Borrowing or LC Disbursement (or such earlier local time as is
necessary for the relevant funds to be received and transferred to the Administrative Agent for
same day value on the date the relevant reimbursement obligation is due) in the case of a Loan,
Borrowing or LC Disbursement which is denominated in a Foreign Currency or which is made to, or for
the account of, the Dutch Borrower.




          “Mandatory Cost” is described in Schedule 2.02.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
property or financial condition of the Company and the Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or any and all other Loan Documents or the rights or
remedies of the Administrative Agent and the Lenders thereunder.




          “Material Acquisition” means any acquisition or investment for which the aggregate
cash consideration paid or otherwise delivered in connection therewith (including the principal
amount of any Indebtedness issued as deferred purchase price) plus the aggregate amount of
transaction costs and expenses incurred in connection therewith plus the aggregate
principal amount of all Indebtedness or other liabilities otherwise repaid, retired or otherwise
satisfied, or incurred or assumed in connection with, or resulting from, such acquisition or
investment (including Indebtedness of any acquired Persons outstanding at the time of the
applicable acquisition or investment) exceeds $300,000,000, all of the foregoing being subject to
Schedule 1.01C.




          “Material Domestic Subsidiary” means each Domestic Subsidiary (i) which, as of the
most recent fiscal quarter of the Company, for the period of four consecutive fiscal quarters then
ended, for which financial statements have been delivered pursuant to Section 5.01, contributed
greater than five percent 5% of the Company’s Consolidated EBITDA for such period or (ii) which
contributed greater than five percent 5% of the Company’s Consolidated Total Assets as of such
date; provided that, if at any time the aggregate amount of the Company’s Consolidated
EBITDA or Consolidated Total Assets of all Domestic Subsidiaries that are not Material Domestic
Subsidiaries exceeds ten percent (10%) of the Company’s Consolidated EBITDA for any such period or
ten percent (10%) of the Company’s Consolidated Total Assets as of the end of any such fiscal
quarter, the Company (or, in the event the Company




14









 







has failed to do so within ten (10) days, the Administrative Agent) shall, to the extent there
is sufficient Consolidated EBITDA or Consolidated Total Assets available at Domestic Subsidiaries
to do so, designate sufficient Domestic Subsidiaries as “Material Domestic Subsidiaries” to
eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement
constitute Material Domestic Subsidiaries.




          “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Company and its Subsidiaries in an aggregate principal amount exceeding the greater of (x)
$40,000,000 and (y) 10% of Consolidated EBITDA for the four (4) most recently ended fiscal quarters
of the Company. For purposes of determining Material Indebtedness, the “principal amount” of the
obligations of the Company or any Subsidiary in respect of any Swap Agreement at any time shall be
the maximum aggregate amount (giving effect to any netting agreements) that the Company or such
Subsidiary would be required to pay if such Swap Agreement were terminated at such time.




          “Material Subsidiary” means any Subsidiary (or group of Subsidiaries as to which a
specified condition applies) that would be a “significant subsidiary” under Rule 1-02(w) of
Regulation S-X.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




          “New Money Credit Event” means with respect to the Issuing Bank, any increase
(directly or indirectly) in the Issuing Bank’s exposure (whether by way of additional credit or
banking facilities or otherwise, including as part of a restructuring) to any Borrower or any
Governmental Authority in any Borrower’s or any applicable Letter of Credit beneficiary’s country
occurring by reason of (i) any law, action or requirement of any Governmental Authority in such
Borrower’s or such Letter of Credit beneficiary’s country, or (ii) any request in respect of
external indebtedness of borrowers in such Borrower’s or such Letter of Credit beneficiary’s
country applicable to banks generally which conduct business with such borrowers, or (iii) any
agreement in relation to clause (i) or (ii), in each case to the extent calculated by reference to
the aggregate Revolving Credit Exposures outstanding prior to such increase.




          “Obligations” means all indebtedness (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), obligations and liabilities of any of the Company and its
Subsidiaries to any of the Lenders and the Administrative Agent, individually or collectively,
existing on the Effective Date or arising thereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured,
arising by contract, operation of law or otherwise, arising or incurred under this Agreement or any
of the other Loan Documents or any Swap Agreement or in respect of any of the Loans made or
reimbursement or other obligations incurred or any of the Letters of Credit or other instruments at
any time evidencing any thereof, in each case whether now existing or hereafter arising, whether
all such obligations arise or accrue before or after the commencement of any bankruptcy, insolvency
or receivership proceedings, including, without limitation, interest and fees accruing pre-petition
or post-petition and costs, expenses, and attorneys’ and paralegals’




15









 







fees, whenever incurred (and whether or not such claims, interest, costs, expenses or fees are
allowed or allowable in any such proceeding); provided, that (i) obligations of the Company
or any Subsidiary under any Swap Agreement shall be guaranteed pursuant to the Subsidiary Guaranty
only to the extent that, and for so long as, the other Obligations are so guaranteed and (ii) any
release of Subsidiary Guarantors effected in the manner permitted by this Agreement shall not
require the consent of holders of obligations under Swap Agreements.




          “Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.




          “Overnight Foreign Currency Rate” means, for any amount payable in a Foreign Currency,
the rate of interest per annum as determined by the Administrative Agent at which overnight or
weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three
(3) Business Days, then for such other period of time as the Administrative Agent may elect) for
delivery in immediately available and freely transferable funds would be offered by the
Administrative Agent to major banks in the interbank market upon request of such major banks for
the relevant currency as determined above and in an amount comparable to the unpaid principal
amount of the related Credit Event, plus any taxes, levies, imposts, duties, deductions, charges or
withholdings imposed upon, or charged to, the Administrative Agent by any relevant correspondent
bank in respect of such amount in such relevant currency.




          “Participant” has the meaning set forth in Section 9.04.




          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




          “Permitted Acquisition” means any Acquisition so long as, at the time of and
immediately after giving effect thereto, (a) no Event of Default has occurred and is continuing or
would arise after giving effect thereto, (b) such Person or division or line of business is engaged
in the same or a similar line of business as the Company or any Subsidiary or business reasonably
related, ancillary or complementary thereto and reasonable extensions thereof, (c) the Company and
the Subsidiaries are in compliance on a Pro Forma Basis after giving effect to such Acquisition
with the covenants contained in Section 6.07 (giving effect, if necessary, to the increase in the
permitted maximum Consolidated Leverage Ratio in connection with a Material Acquisition set forth
in Section 6.07(b) on the date of such Acquisition) and (d) the Company shall have delivered to the
Administrative Agent a certificate of a Financial Officer of the Company to such effect, together
with all relevant financial information reasonably requested by the Administrative Agent.




          “Permitted Encumbrances” means:





          (a) Liens imposed by law for taxes, assessments or other governmental charges that are not
yet due or are being contested in compliance with Section 5.04;




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing



16









 







obligations that are not overdue by more than sixty (60) days or are being contested in
compliance with Section 5.04;




          (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;




          (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature,
in each case in the ordinary course of business;




          (e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (k) of Article VII;




          (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property or
materially interfere with the ordinary conduct of business of the Company or any Subsidiary;




          (g) any interest or title of a lessor, sub-lessor, licensor or sub-licensor under any
lease, sub-lease, license or sub-license entered into by the Company or any other Subsidiary in
the ordinary course of its business and covering only the assets so leased; and




          (h) rights of setoff and similar arrangements and Liens in favor of depository and
securities intermediaries to secure customary fees and similar amounts related to bank accounts
or securities accounts;


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




          “Permitted Receivables Facility” shall mean the receivables facility or facilities
created under the Permitted Receivables Facility Documents, providing for the sale or pledge by the
Company and/or one or more other Receivables Sellers of Permitted Receivables Facility Assets
(thereby providing financing to the Company and the Receivables Sellers) to the Receivables Entity
(either directly or through another Receivables Seller), which in turn shall sell or pledge
interests in the respective Permitted Receivables Facility Assets to third-party investors pursuant
to the Permitted Receivables Facility Documents (with the Receivables Entity permitted to issue
investor certificates, purchased interest certificates or other similar documentation evidencing
interests in the Permitted Receivables Facility Assets) in return for the cash used by the
Receivables Entity to purchase the Permitted Receivables Facility Assets from the Company and/or
the respective Receivables Sellers, in each case as more fully set forth in the Permitted
Receivables Facility Documents.




          “Permitted Receivables Facility Assets” shall mean (i) Receivables (whether now
existing or arising in the future) of the Company and its Subsidiaries which are transferred or
pledged to the Receivables Entity pursuant to the Permitted Receivables Facility and any related
Permitted Receivables Related Assets which are also so transferred or pledged to the Receivables




17









 







Entity and all proceeds thereof and (ii) loans to the Company and its Subsidiaries secured by
Receivables (whether now existing or arising in the future) of the Company and its Subsidiaries
which are made pursuant to the Permitted Receivables Facility.




          “Permitted Receivables Facility Documents” shall mean each of the documents and
agreements entered into in connection with the Permitted Receivables Facility, including all
documents and agreements relating to the issuance, funding and/or purchase of certificates and
purchased interests, all of which documents and agreements shall be in form and substance
reasonably customary for transactions of this type, in each case as such documents and agreements
may be amended, modified, supplemented, refinanced or replaced from time to time so long as (i) any
such amendments, modifications, supplements, refinancings or replacements do not impose any
conditions or requirements on the Company or any of its Subsidiaries that are more restrictive in
any material respect than those in existence immediately prior to any such amendment, modification,
supplement, refinancing or replacement, and (ii) any such amendments, modifications, supplements,
refinancings or replacements are not adverse in any material respect to the interests of the
Lenders.




          “Permitted Receivables Related Assets” means any other assets that are customarily
transferred or in respect of which security interests are customarily granted in connection with
asset securitization transactions involving receivables similar to Receivables and any collections
or proceeds of any of the foregoing.




          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, National Association as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.




          “Pro Forma Basis” means on a basis in accordance with GAAP and Regulation S-X and
otherwise reasonably satisfactory to the Administrative Agent.




          “Property” means any right or interest in or to property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, including, without limitation,
Equity Interests.




          “Receivables” shall mean all accounts receivable (including, without limitation, all
rights to payment created by or arising from sales of goods, leases of goods or the rendition of
services rendered no matter how evidenced whether or not earned by performance).




18









 








          “Receivables Entity” shall mean a wholly-owned Subsidiary of the Company which engages
in no activities other than in connection with the financing of accounts receivable of the
Receivables Sellers and which is designated (as provided below) as the “Receivables Entity” (a) no
portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is
guaranteed by the Company or any other Subsidiary of the Company (excluding guarantees of
obligations (other than the principal of, and interest on, Indebtedness)) pursuant to Standard
Securitization Undertakings, (ii) is recourse to or obligates the Company or any other Subsidiary
of the Company in any way (other than pursuant to Standard Securitization Undertakings) or (iii)
subjects any property or asset of the Company or any other Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings, (b) with which neither the Company nor any of its Subsidiaries has any
contract, agreement, arrangement or understanding (other than pursuant to the Permitted Receivables
Facility Documents (including with respect to fees payable in the ordinary course of business in
connection with the servicing of accounts receivable and related assets)) on terms less favorable
to the Company or such Subsidiary than those that might be obtained at the time from persons that
are not Affiliates of the Company, and (c) to which neither the Company nor any other Subsidiary of
the Company has any obligation to maintain or preserve such entity’s financial condition or cause
such entity to achieve certain levels of operating results. Any such designation shall be
evidenced to the Administrative Agent by filing with the Administrative Agent an officer’s
certificate of the Company certifying that, to the best of such officer’s knowledge and belief
after consultation with counsel, such designation complied with the foregoing conditions.




          “Receivables Sellers” shall mean the Company and those Subsidiaries (other than
Receivables Entities) that are from time to time party to the Permitted Receivables Facility
Documents.




          “Register” has the meaning set forth in Section 9.04.




          “Regulation S-X” means Regulation S-X under the Securities Act of 1933, as amended.




          “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person.




          “Required Domestic Subsidiary” means each Domestic Subsidiary which has guaranteed the
payment or performance of (i) any Material Indebtedness or (ii) any Indebtedness under the Senior
Notes.




          “Required Lenders” means, at any time, Lenders having Credit Exposure and unused
Commitments representing more than 50% of the sum of the total Credit Exposure and unused
Commitments at such time.




          “Required Revolving Lenders” means, at any time, Lenders having Revolving Credit
Exposures and unused Revolving Commitments representing more than 50% of the sum of the total
Revolving Credit Exposures and unused Revolving Commitments at such time.




19









 








          “Restricted Payments” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Company or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests in the Company or any option, warrant or
other right to acquire any such Equity Interests in the Company.




          “Restricted Subsidiary” means any Person acquired by the Company on or after the
Effective Date which is subject to restrictions and conditions with respect to its ability to
guarantee Indebtedness of the Company, so long as such restrictions and conditions only relate to
such Person so acquired and are not created in contemplation of such acquisition.




          “Revolving Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate
amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section
2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender’s Revolving Commitment is set forth on
Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’
Revolving Commitments is $300,000,000.




          “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.




          “Revolving Credit Maturity Date” means July 24, 2011.




          “Revolving Lender” means, each Lender that has a Revolving Commitment or that holds
Revolving Loans.




          “Revolving Loan” means a Loan made pursuant to Section 2.01(a).




          “Sale and Leaseback Transaction” means any sale or other transfer of Property by any
Person with the intent to lease such Property as lessee.




          “SEC” means the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.




          “Senior Note Indenture” means any Indenture entered into by the Company and certain of
its Subsidiaries in connection with the issuance of any Senior Notes, together with all instruments
and other agreements entered into by the Company or such Subsidiaries in connection therewith, as
the same may be amended, supplemented or otherwise modified from time to time.




          “Senior Notes” means (i) the 5 3/4% senior unsecured notes due 2010 (the “2010
Notes”) and the 6 3/8% senior unsecured notes due 2015 of the Company issued on July 21,




20









 







2005 pursuant to a Senior Note Indenture or any supplement thereto, and any notes issued in
exchange therefor pursuant to the exchange offer contemplated by the offering memorandum, (ii) the
1.25% senior convertible notes of the Company due 2012 issued on March 7, 2007 pursuant to a Senior
Note Indenture or any supplement thereto and (iii) any other unsecured debt securities which do not
have a final maturity that is earlier than the final maturity of the 2010 Notes or a Weighted
Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the 2010
Notes.




          “Specified Change in Control” means a “Change of Control”, or like event, if any, as
defined in the Senior Note Indenture.




          “Standard Securitization Undertakings” shall mean representations, warranties,
covenants and indemnities entered into by the Company or any Subsidiary thereof in connection with
the Permitted Receivables Facility which are reasonably customary in an accounts receivable
financing transaction.




          “Statutory Reserve Rate” means, with respect to any currency, a fraction (expressed as
a decimal), the numerator of which is the number one and the denominator of which is the number one
minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including
any marginal, special, emergency or supplemental reserves or other requirements) established by any
central bank, monetary authority, the Board, the Financial Services Authority, the European Central
Bank or other Governmental Authority for any category of deposits or liabilities customarily used
to fund loans in such currency, expressed in the case of each such requirement as a decimal. Such
reserve percentages shall, in the case of Dollar denominated Loans, include those imposed pursuant
to Regulation D of the Board. Eurocurrency Loans shall be deemed to be subject to such reserve,
liquid asset or similar requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under any applicable law, rule or
regulation, including Regulation D. The Statutory Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in any reserve, liquid asset or similar requirement.




          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.




          “Subsidiary” means any subsidiary of the Company.




          “Subsidiary Guarantor” means each Material Domestic Subsidiary and each Required
Domestic Subsidiary (other than the Captive Insurance Subsidiary, any Receivables




21









 







Entity and any Restricted Subsidiary). The Subsidiary Guarantors on the Effective Date are
identified as such in Schedule 3.01 hereto.




          “Subsidiary Guaranty” means that certain Guaranty dated as of the Effective Date in
the form of Exhibit F (including any and all supplements thereto) and executed by each
Subsidiary Guarantor on the Effective Date, as amended, restated, supplemented or otherwise
modified from time to time.




          “Swap 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 any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Company or the Subsidiaries shall be a
Swap Agreement.




          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.




          “Swingline Lender” means JPMorgan Chase Bank, National Association, in its capacity as
lender of Swingline Loans hereunder.




          “Swingline Loan” means a Loan made pursuant to Section 2.05.




          “Swingline Loan Sublimit” means $10,000,000.




          “Syndication Agent” means Merrill Lynch, Pierce, Fenner & Smith Incorporated in its
capacity as syndication agent for the credit facility evidenced by this Agreement.




          “TARGET” means the Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other
payment system (if any) reasonably determined by the Administrative Agent to be a suitable
replacement) for the settlement of payments in euro.




          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




          “Term Lender” means, as of any date of determination each Lender having a Term Loan
Commitment or that holds Term Loans.




          “Term Loan Commitment” means (a) as to any Term Lender, the aggregate commitment of
such Term Lender to make Term Loans as set forth on Schedule 2.01 or in the most recent
Assignment Agreement executed by such Term Lender and (b) as to all Term Lenders, the aggregate
commitment of all Term Lenders to make Term Loans, which aggregate commitment shall be $450,000,000
on the date of this Agreement. After advancing the Term




22









 







Loan, each reference to a Term Lender’s Term Loan Commitment shall refer to that Term Lender’s
Applicable Percentage of the Term Loans.




          “Term Loan Maturity Date” means December 26, 2011.




          “Term Loans” means the Loan made pursuant to Section 2.01(b) and any incremental term
loans extended by one or more of the Term Lenders to the Company pursuant to Section 2.20 hereof.




          “Transactions” means the execution, delivery and performance by the Loan Parties of
this Agreement and the other Loan Documents, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.




          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.




          “Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at
any date, the number of years obtained by dividing (a) the original aggregate principal amount of
such Indebtedness into (b) the sum of the total of the products obtained by multiplying (i) the
amount of each scheduled installment, sinking fund, serial maturity or other required payment of
principal including payment at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and the making of such
payment.




          “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




          SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or
by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a
“Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type
(e.g., a “Eurocurrency Revolving Borrowing”).




          SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented, refinanced, restated, replaced or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to




23









 







this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.




          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Company notifies the Administrative Agent
that the Company requests an amendment to any provision 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 the Company that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such 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.




          SECTION 1.05. Payments on Business Days. When the payment of any Obligation or the
performance of any covenant, duty or obligation is stated to be due or performance required on a
day which is not a Business Day, the date of such payment or performance shall extend to the
immediately succeeding Business Day and such extension of time shall be reflected in computing
interest or fees, as the case may be; provided that, with respect to any payment of
interest on or principal of Eurocurrency Loans, if such extension would cause any such payment to
be made in the next succeeding calendar month, such payment shall be made on the immediately
preceding Business Day.




ARTICLE II




The Credits




          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, (a)
each Revolving Lender agrees to make Revolving Loans to the Borrowers in Agreed Currencies from
time to time during the Availability Period in an aggregate principal amount that will not result
in (i) the Dollar Amount of such Lender’s Revolving Credit Exposure exceeding such Lender’s
Revolving Commitment or (ii) subject to Section 2.04, the Dollar Amount of the total Revolving
Credit Exposures exceeding the sum of the total Revolving Commitments and (b) each Term Lender with
a Term Loan Commitment agrees to make a Term Loan to the Company in Dollars on the Effective Date,
in an amount equal to such Lender’s Term Loan Commitment by making immediately available funds
available to the Administrative Agent’s designated account, not later than the time specified by
the Administrative Agent. Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans. Amounts repaid in
respect of Term Loans may not be reborrowed.




24









 








          SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a Swingline Loan)
shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the applicable Class. The
failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender’s failure to make Loans as required. Any
Swingline Loan shall be made in accordance with the procedures set forth in Section 2.05.





          (b) Subject to Section 2.14, each Revolving Borrowing and Term Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the relevant Borrower may request in
accordance herewith; provided that all Borrowings made on the Effective Date must be made as ABR
Borrowings but may be converted into Eurocurrency Borrowings in accordance with Section 2.08.
Each ABR Loan shall only be made in Dollars. Each Swingline Loan shall be an ABR Loan. Each
Lender at its option may make any Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the relevant Borrower to repay such Loan in accordance with
the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 (or
the Approximate Equivalent Amount of such amount if such Borrowing is denominated in a Foreign
Currency) and not less than $5,000,000 (or the Approximate Equivalent Amount of such amount if
such Borrowing is denominated in a Foreign Currency). At the time that each ABR Revolving
Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple
of $1,000,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing may
be in an aggregate amount that is equal to the entire unused balance of the total Revolving
Commitments or that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e). Each Swingline Loan shall be in an amount that is an integral
multiple of $100,000 and not less than $500,000. Borrowings of more than one Type and Class may
be outstanding at the same time; provided that there shall not at any time be more than
a total of ten (10) Eurocurrency Borrowings outstanding.




          (d) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested
(i) with respect to a Revolving Borrowing would end after the Revolving Credit Maturity Date or
(ii) with respect to a Term Loan Borrowing would end after the Term Loan Maturity Date.



          SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing,
the applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the
Administrative Agent of such request in accordance with the procedures for Revolving Borrowings set
forth on Schedule 1.01B. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy or transmission by electronic
communication in accordance with Section 9.01(b) to the Administrative Agent of a written Borrowing
Request in a form attached hereto as Exhibit G-1 and signed by the applicable




25









 







Borrower, or the Company on behalf of the applicable Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance with Section 2.02:





     (i) the aggregate amount of the requested Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;




     (iv) in the case of a Eurocurrency Borrowing, the Agreed Currency and initial Interest
Period to be applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”; and




     (v) the location and number of the applicable Borrower’s account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.07.


If no election as to the Type of Revolving Borrowing is specified, then, in the case of a Borrowing
denominated in Dollars to any Borrower, the requested Revolving Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Revolving
Borrowing, then the relevant Borrower shall be deemed to have selected an Interest Period of one
month’s duration. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount
of such Lender’s Loan to be made as part of the requested Borrowing.




          SECTION 2.04. Determination of Dollar Amounts. The Administrative Agent will
determine the Dollar Amount of (a) each Eurocurrency Revolving Borrowing as of the date three (3)
Business Days prior to the date of such Borrowing or, if applicable, the date of
conversion/continuation of any Borrowing as a Eurocurrency Revolving Borrowing, (b) the LC Exposure
as of the date of each request for the issuance, amendment, renewal or extension of any Letter of
Credit and (c) each of (i) the total Revolving Credit Exposures and (ii) the sum of the total
outstanding Revolving Loans denominated in Foreign Currencies and the Foreign Currency LC Exposure,
on and as of the last Business Day of each calendar quarter and, during the continuation of an
Event of Default, on any other Business Day elected by the Administrative Agent in its discretion
or upon instruction by the Required Revolving Lenders. Each day upon or as of which the
Administrative Agent determines Dollar Amounts as described in the preceding clauses (a), (b) and
(c) is herein described as a “Computation Date” with respect to each Credit Event for which
a Dollar Amount is determined on or as of such day.




          SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans in Dollars to the Company from time to
time during the Availability Period, in an aggregate principal amount at any time outstanding that
will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding the
Swingline Loan Sublimit or (ii) the Dollar Amount of the total Revolving Credit Exposures exceeding
the total Revolving Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline




26









 







Loan. Within the foregoing limits and subject to the terms and conditions set forth herein,
the Company may borrow, prepay and reborrow Swingline Loans.





          (b) To request a Swingline Loan, the Company shall notify the Administrative Agent of such
request in accordance with the procedures for Swingline Loans set forth on Schedule
1.01B. The Administrative Agent will promptly advise the Swingline Lender of any notice of
a request for a Swingline Loan Borrowing received from the Company. The Swingline Lender shall
make each Swingline Loan available to the Company by means of a credit to the general deposit
account of the Company with the Swingline Lender (or, in the case of a Swingline Loan made to
finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to
the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline
Loan.




          (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Revolving Lenders to
acquire participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which
Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative
Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s
Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely
and unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable
Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that
its obligation to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in Section 2.07 with
respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders.
The Administrative Agent shall notify the Company of any participations in any Swingline Loan
acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received
by the Swingline Lender from the Company (or other party on behalf of the Company) in respect of
a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear; provided that any such payment so remitted
shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to
the extent such payment is required to be refunded to the Company for any reason. The purchase
of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Company
of any default in the payment thereof.



27









 





          SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Company may request the issuance of Letters of Credit denominated
in Agreed Currencies for its own account, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time during the Availability Period. In
the event of any inconsistency between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement submitted by the Company
to, or entered into by the Company with, the Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control; provided, however, if the
Issuing Bank is requested to issue Letters of Credit with respect to a jurisdiction the Issuing
Bank deems, in its reasonable judgment, may at any time subject it to a New Money Credit Event or a
Country Risk Event, the Company shall, at the request of the Issuing Bank, guaranty and indemnify
the Issuing Bank against any and all costs, liabilities and losses resulting from such New Money
Credit Event or Country Risk Event, other than any costs, liabilities or losses resulting from the
bad faith, gross negligence or willful misconduct of the Issuing Bank, in each case in a form and
substance reasonably satisfactory to the Issuing Bank.





          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Company shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing Bank)
to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice in the form attached hereto as Exhibit
G-4 requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit,
the Agreed Currency applicable thereto, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent of, and the
Administrative Agent shall in turn promptly furnish to the Lenders notice of, any such issuance.
If requested by the Issuing Bank, the Company also shall submit a letter of credit application
on the Issuing Bank’s standard form in connection with any request for a Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Company shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the Dollar Amount of the LC Exposure shall not exceed the LC Exposure Sublimit and
(ii) subject to Section 2.04, the Dollar Amount of the total Revolving Credit Exposures shall
not exceed the total Revolving Commitments.




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close
of business on the earlier of (i) the date one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof, one year after such
renewal or extension) and (ii) the date that is five (5) Business Days prior to the Revolving
Credit Maturity Date.



28









 






          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of
the Issuing Bank or the Revolving Lenders, the Issuing Bank hereby grants to each Revolving
Lender, and each Revolving Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate Dollar Amount
available to be drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Revolving Lender’s Applicable
Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed by the Company on
the date due as provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Company for any reason. Each Revolving Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the Commitments, and that
each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.




          (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect
of a Letter of Credit, the Company shall reimburse such LC Disbursement by paying to the
Administrative Agent in Dollars the Dollar Amount equal to such LC Disbursement, calculated as
of the date the Issuing Bank made such LC Disbursement (or if the Issuing Bank shall so elect in
its sole discretion by notice to the Company, in such other Agreed Currency which was paid by
the Issuing Bank pursuant to such LC Disbursement in an amount equal to such LC Disbursement)
not later than 2:00 p.m., Local Time, on the date that such LC Disbursement is made, if the
Company shall have received notice of such LC Disbursement prior to 1:00 p.m., Local Time, on
such date, or, if such notice has not been received by the Company prior to such time on such
date, then not later than 2:00 p.m., Local Time, on (i) the Business Day that the Company
receives such notice, if such notice is received prior to 10:00 a.m., Local Time, on the day of
receipt, or (ii) the Business Day immediately following the day that the Company receives such
notice, if such notice is not received prior to such time on the day of receipt;
provided that the Company may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.05 that such payment be financed with an ABR
Revolving Borrowing or Swingline Loan in an equivalent amount of such LC Disbursement and, to
the extent so financed, the Company’s obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing or Swingline Loan. If the Company fails to
make such payment when due, the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from the Company in respect thereof and such
Revolving Lender’s Applicable Percentage thereof. Promptly following receipt of such notice,
each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the Company, in the same manner as provided in Section 2.07 with respect
to Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the Administrative
Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Revolving
Lenders. Promptly following receipt by the Administrative Agent of any payment from the Company
pursuant to this paragraph, the Administrative Agent shall



29









 







distribute such payment to the Issuing Bank or, to the extent that Revolving Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and
the Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant
to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding
of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a Loan
and shall not relieve the Company of its obligation to reimburse such LC Disbursement. If the
Company’s reimbursement of, or obligation to reimburse, any amounts in any Foreign Currency
would subject the Administrative Agent, the Issuing Bank or any Lender to any stamp duty, ad
valorem charge or similar tax that would not be payable if such reimbursement were made or
required to be made in Dollars, the Company shall, at its option, either (x) pay the amount of
any such tax requested by the Administrative Agent, the Issuing Bank or the relevant Lender or
(y) reimburse each LC Disbursement made in such Foreign Currency in Dollars, in an amount equal
to the Equivalent Amount, calculated using the applicable exchange rates, on the date such LC
Disbursement is made, of such LC Disbursement.




          (f) Obligations Absolute. The Company’s obligation to reimburse LC Disbursements
as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that
does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions
of this Section, constitute a legal or equitable discharge of, or provide a right of setoff
against, the Company’s obligations hereunder. Neither the Administrative Agent, the Revolving
Lenders nor the Issuing Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from causes beyond the
control of the Issuing Bank; provided that the foregoing shall not be construed to
excuse the Issuing Bank from liability to the Company to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived by the Company to
the extent permitted by applicable law) suffered by the Company that are caused by the Issuing
Bank’s failure to exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree
that, in the absence of bad faith, gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance with the



30









 







terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the terms of such Letter
of Credit.




          (g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the
Company by telephone (confirmed by telecopy or transmission by electronic communication in
accordance with Section 9.01(b)) of such demand for payment and whether the Issuing Bank has
made or will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Company of its obligation to reimburse the
Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.




          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Company shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Company reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans (or in the case such
LC Disbursement is denominated in a Foreign Currency, at the Overnight Foreign Currency Rate for
such Agreed Currency plus the then effective Applicable Rate with respect to
Eurocurrency Revolving Loans); provided that, if the Company fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing
Bank, except that interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account
of such Lender to the extent of such payment.




          (i) Replacement of Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Company, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Revolving Lenders of any such
replacement of the Issuing Bank. At the time any such replacement shall become effective, the
Company shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant
to Section 2.12(b). From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of the 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 of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto 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, but shall
not be required to issue additional Letters of Credit.



31









 






          (j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Company receives notice from the Administrative Agent
or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving
Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Company shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for the benefit of
the Revolving Lenders, an amount in cash equal to the Dollar Amount of the LC Exposure as of
such date plus any accrued and unpaid interest thereon; provided that (i) the portions
of such amount attributable to undrawn Foreign Currency Letters of Credit or LC Disbursements in
a Foreign Currency that the Company is not late in reimbursing shall be deposited in the
applicable Foreign Currencies in the actual amounts of such undrawn Letters of Credit and LC
Disbursements and (ii) the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to the Company
described in clause (h) or (i) of Article VII. For the purposes of this paragraph, the Dollar
Amount of the Foreign Currency LC Exposure shall be calculated on the date notice demanding cash
collateralization is delivered to the Company. The Company also shall deposit cash collateral
pursuant to this paragraph as and to the extent required by Section 2.11(c). Such deposit shall
be held by the Administrative Agent as collateral for the payment and performance of the
obligations of the Company under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments shall be made at
the option and sole discretion of the Administrative Agent and at the Company’s risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Company for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy other
obligations of the Company under this Agreement. If the Company is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the Company within three
(3) Business Days after all Events of Default have been cured or waived.




          (k) Conversion. In the event that the Loans become immediately due and payable on
any date pursuant to Article VII, all amounts (i) that the Company is at the time or thereafter
becomes required to reimburse or otherwise pay to the Administrative Agent in respect of LC
Disbursements made under any Foreign Currency Letter of Credit (other than amounts in respect of
which the Company has deposited cash collateral pursuant to paragraph (j) above, if such cash
collateral was deposited in the applicable Foreign Currency to the extent so deposited or
applied), (ii) that the Lenders are at the time or thereafter become required to pay to the
Administrative Agent and the Administrative Agent is at the time or thereafter becomes required
to distribute to the Issuing Bank pursuant to paragraph (e) of this Section in respect of
unreimbursed LC Disbursements made under any Foreign



32









 







Currency Letter of Credit and (iii) of each Revolving Lender’s participation in any Foreign
Currency Letter of Credit under which an LC Disbursement has been made shall, automatically and
with no further action required, be converted into its Dollar Amount on such date (or in the
case of any LC Disbursement made after such date, on the date such LC Disbursement is made). On
and after such conversion, all amounts accruing and owed to the Administrative Agent, the
Issuing Bank or any Revolving Lender in respect of the obligations described in this paragraph
shall accrue and be payable in Dollars at the rates otherwise applicable hereunder.



          SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
(i) in the case of Loans denominated in Dollars by 2:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by notice to the Lenders
in an amount equal to such Lender’s Applicable Percentage; provided that, Term Loans shall
be made as provided in Section 2.01(b) and (ii) in the case of each Loan denominated in a Foreign
Currency, by 2:00 p.m., Local Time, in the city of the Administrative Agent’s Eurocurrency Payment
Office for such currency and at such Eurocurrency Payment Office for such currency;
provided that Swingline Loans shall be made as provided in Section 2.05. The
Administrative Agent will make such Loans available to the relevant Borrower by promptly crediting
the amounts so received, in like funds, to (x) an account designated by the relevant Borrower in
the applicable Borrowing Request, in the case of Loans denominated in Dollars and (y) an account of
such Borrower in the relevant jurisdiction and designated by the applicable Borrower in the
applicable Borrowing Request, in the case of Loans denominated in a Foreign Currency;
provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.





          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable Lender and such
Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the date such amount
is made available to such Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation (including without limitation the Overnight Foreign Currency Rate in the
case of Loans denominated in a Foreign Currency) or (ii) in the case of such Borrower, the
interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.



          SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a




33









 







Eurocurrency Revolving Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the relevant Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurocurrency Revolving
Borrowing, may elect Interest Periods therefor, all as provided in this Section. A Borrower may
elect different options with respect to different portions of the affected Borrowing, in which case
each such portion shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Swingline Borrowings, which may not be converted or continued.





          (b) To make an election pursuant to this Section, a Borrower, or the Company on its
behalf, shall notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if such Borrower were requesting a
Revolving Borrowing of the Type resulting from such election to be made on the effective date of
such election. Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy or transmission by electronic communication in
accordance with Section 9.01(b) to the Administrative Agent of a written Interest Election
Request in a form attached hereto as Exhibit G-3 or such other form approved by the
Administrative Agent and signed by the relevant Borrower, or the Company on its behalf.
Notwithstanding any contrary provision herein, this Section shall not be construed to permit any
Borrower to (i) change the currency of any Borrowing, (ii) elect an Interest Period for
Eurocurrency Loans that does not comply with Section 2.02(d) or (iii) convert any Borrowing to a
Borrowing of a Type not available under the Class of Commitments pursuant to which such
Borrowing was made.




          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:




     (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing; and




     (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period and
Agreed Currency to be applicable thereto after giving effect to such election, which
Interest Period shall be a period contemplated by the definition of the term “Interest
Period”.


If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an
Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period
of one month’s duration.




34









 









          (d) Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.




          (e) If the relevant Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto,
then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (i)
in the case of a Borrowing denominated in Dollars, such Borrowing shall be converted to an ABR
Borrowing and (ii) in the case of a Borrowing denominated in a Foreign Currency, such Borrowing
shall automatically continue as a Eurocurrency Borrowing in the same Agreed Currency with an
Interest Period of one month unless (x) such Eurocurrency Borrowing is or was repaid in
accordance with Section 2.11 or (y) such Borrower shall have given the Administrative Agent an
Interest Election Request requesting that, at the end of such Interest Period, such Eurocurrency
Borrowing continue as a Eurocurrency Borrowing for the same or another Interest Period.
Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the
Company, then, so long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing borrowed by the Company may be converted to or continued as a Eurocurrency Borrowing
and (ii) unless repaid, each Eurocurrency Revolving Borrowing borrowed by the Company shall be
converted to an ABR Borrowing at the end of the Interest Period applicable thereto.



          SECTION 2.09. Termination and Reduction of Commitments. (a) Unless previously
terminated, (i) the Term Loan Commitments shall terminate at 5:00 p.m., New York City time, on the
Effective Date and (ii) all other Commitments shall terminate on the Revolving Credit Maturity
Date.





          (b) The Company may at any time terminate, or from time to time reduce, the Revolving
Commitments; provided that (i) each reduction of the Revolving Commitments shall be in
an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the
Company shall not terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11, the Dollar Amount of the
total Revolving Credit Exposures would exceed the total Revolving Commitments.




          (c) The Company shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least three (3) Business Days
prior to the effective date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the Company pursuant
to this Section shall be irrevocable; provided that a notice of termination of the
Commitments delivered by the Company may state that such notice is conditioned upon the
effectiveness of other credit facilities or instruments of Indebtedness, in which case such
notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or reduction of
the Commitments shall be permanent. Each reduction of the



35









 







Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.



          SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan made to such Borrower on the Revolving Credit
Maturity Date in the currency of such Loan and (ii) in the case of the Company, to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving
Credit Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least two (2) Business Days after such
Swingline Loan is made; provided that on each date that a Revolving Loan is made, the
Company shall repay all Swingline Loans then outstanding. To the extent not previously repaid, all
unpaid Term Loans shall be paid in full in Dollars by the Company on the Term Loan Maturity Date.





          (b) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Loan
made by such Lender, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.




          (c) The Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class, Agreed Currency and Type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder for the account of the Lenders and each
Lender’s share thereof.




          (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein absent manifest error; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of any Borrower to repay the Loans in accordance with the terms
of this Agreement.




          (e) Any Lender may request that Loans made by it be evidenced by promissory notes. In
such event, the Borrowers shall prepare, execute and deliver to such Lender promissory notes
payable to the order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans
evidenced by such promissory notes and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if any such promissory note is a registered
note, to such payee and its registered assigns).



          SECTION 2.11. Prepayment of Loans.




36









 









          (a) Any Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with paragraph (b) of this
Section.




          (b) The applicable Borrower, or the Company on behalf of the applicable Borrower, shall
notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the
Swingline Lender) by telephone (confirmed by telecopy or transmission by electronic
communication in accordance with Section 9.01(b)) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m., New York City time, three (3)
Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing,
not later than 11:00 a.m., New York City time, one (1) Business Day before the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon,
New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or portion thereof to be
prepaid; provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section 2.09, then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.09. Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Borrowing shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the notice of prepayment. Prepayments shall be
accompanied by (i) accrued interest to the extent required by Section 2.13 and (ii) break
funding payments pursuant to Section 2.16.




          (c) If at any time, (i) other than as a result of fluctuations in currency exchange rates,
the sum of the aggregate principal Dollar Amount of all of the Revolving Credit Exposures
(calculated, with respect to those Credit Events denominated in Foreign Currencies, as of the
most recent Computation Date with respect to each such Credit Event) exceeds the total Revolving
Commitments or (ii) solely as a result of fluctuations in currency exchange rates, the sum of
the aggregate principal Dollar Amount of all of the outstanding Revolving Loans and LC Exposure,
in each case denominated in Foreign Currencies, as of the most recent Computation Date with
respect to each such Credit Event, exceeds 105% of the Revolving Commitment, the Borrowers shall
immediately repay Borrowings or cash collateralize LC Disbursements in an account with the
Administrative Agent pursuant to Section 2.06(j), as applicable, in an aggregate principal
amount sufficient to eliminate any such excess.



          SECTION 2.12. Fees. (a) The Company agrees to pay to the Administrative Agent for
the account of each Revolving Lender a facility fee, which shall accrue at the Applicable Rate on
the daily Dollar Amount of the Revolving Commitment of such Lender (whether used or unused) during
the period from and including the Effective Date to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Revolving Credit Exposure
after its Revolving Commitment terminates, then such facility fee shall continue to accrue on the
daily Dollar Amount of such Lender’s Revolving Credit Exposure from and including the date on which
its Revolving Commitment




37









 







terminates to but excluding the date on which such Lender ceases to have any Revolving Credit
Exposure. Accrued facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Revolving Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that any
facility fees accruing after the date on which the Revolving Commitments terminate shall be payable
on demand. All facility fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).





          (b) The Company agrees to pay (i) to the Administrative Agent for the account of each
Revolving Lender a participation fee with respect to its participations in Letters of Credit,
which shall accrue at the same Applicable Rate used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the average daily Dollar Amount of such Lender’s LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on which such
Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC
Exposure and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate of 0.125%
per annum on the average daily Dollar Amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) attributable to Letters of Credit issued by the
Issuing Bank during the period from and including the Effective Date to but excluding the later
of the date of termination of the Revolving Commitments and the date on which there ceases to be
any LC Exposure, as well as the Issuing Bank’s standard fees and commissions with respect to the
issuance, amendment, cancellation, negotiation, transfer, presentment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Unless otherwise specified above,
participation fees and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third (3rd) Business Day
following such last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the Revolving
Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within ten (10) days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day but excluding
the last day).




          (c) The Company agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the Company and the
Administrative Agent.




          (d) All fees payable hereunder shall be paid on the dates due, in Dollars and immediately
available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees
payable to it) for distribution, in the case of facility fees and participation fees, to the
Lenders. Fees paid shall not be refundable under any circumstances.



          SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including
each Swingline Loan) shall bear interest at the Alternate Base Rate.




38









 









          (b) (i) The Loans comprising each Eurocurrency Borrowing denominated in an Agreed Currency
other than euro shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate. (ii) The Loans comprising each Eurocurrency
Borrowing denominated in euro shall bear interest at the Adjusted EURIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate.




          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee
or other amount payable by any Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well
as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any
Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.




          (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment
Date for such Loan and, in the case of Revolving Loans, upon termination of the Revolving
Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this
Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Revolving
Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion.




          (e) All interest hereunder shall be computed on the basis of a year of 360 days, except
that interest (i) computed by reference to the Alternate Base Rate at times when the Alternate
Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and (ii) for Borrowings denominated in Pounds Sterling shall be
computed on the basis of a year of 365 days, and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate, LIBO Rate, Adjusted EURIBO Rate or EURIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent
manifest error.



          SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurocurrency Borrowing:





          (a) the Administrative Agent determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate, LIBO Rate, Adjusted EURIBO Rate or EURIBO Rate, as applicable, for such
Interest Period; or




          (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate, LIBO Rate, Adjusted EURIBO Rate or EURIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such



39









 







Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the applicable Borrower and the Lenders
by telephone or telecopy or transmission by electronic communication in accordance with Section
9.01(b) as promptly as practicable thereafter and, until the Administrative Agent notifies the
applicable Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurocurrency Revolving Borrowing, such Borrowing shall
be made as an ABR Borrowing.




          SECTION 2.15. Increased Costs. (a) If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate or the
Adjusted EURIBO Rate) or the Issuing Bank; or




     (ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter
of Credit or participation therein (excluding imposition of Taxes, which shall be governed
by Section 2.17);


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or of maintaining its obligation to make any such Loan
(including, without limitation, pursuant to any conversion of any Borrowing denominated in an
Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to increase the cost
to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit
(including, without limitation, pursuant to any conversion of any Borrowing denominated in an
Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to reduce the amount
of any sum received or receivable by such Lender or the Issuing Bank hereunder, whether of
principal, interest or otherwise (including, without limitation, pursuant to any conversion of any
Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed
Currency), then the applicable Borrower will pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as
the case may be, for such additional costs incurred or reduction suffered.





          (b) If any Lender or the Issuing Bank determines in good faith that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate of return on
such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing
Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or
the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the Issuing Bank’s



40









 







policies and the policies of such Lender’s or the Issuing Bank’s holding company with
respect to capital adequacy), then from time to time the applicable Borrower will pay to such
Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding
company for any such reduction suffered.




          (c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Company and
shall be conclusive absent manifest error. The Company shall pay, or cause the other Borrowers
to pay, such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such
certificate within ten (10) days after receipt thereof.




          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s
right to demand such compensation; provided that the Company shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender or the Issuing Bank,
as the case may be, notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.



          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to
Section 2.11), (b) the conversion of any Eurocurrency Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any
Eurocurrency Loan on the date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.11(b) and is revoked in accordance therewith) or
(d) the assignment of any Eurocurrency Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Company pursuant to Section 2.19, then, in any
such event, the Borrowers shall compensate each Lender for the loss, cost and expense (excluding
loss of anticipated profit) attributable to such event. Such loss, cost or expense to any Lender
may be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate or Adjusted EURIBO Rate (as applicable) that would have been
applicable to such Loan (and excluding any Applicable Rate), for the period from the date of such
event to the last day of the then current Interest Period therefor (or, in the case of a failure to
borrow, convert or continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the commencement of such
period, for deposits in the relevant currency of a comparable amount and period from other banks in
the eurocurrency market. A certificate of any Lender setting forth any amount or amounts that such
Lender is entitled to receive pursuant to this Section shall be delivered to the applicable
Borrower and shall be




41









 







conclusive absent manifest error. The applicable Borrower shall pay such Lender the amount
shown as due on any such certificate within ten (10) days after receipt thereof.




          SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation
of each Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if any Borrower shall be required to deduct
any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable law.





          (b) In addition, each Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.




          (c) The relevant Borrower shall indemnify the Administrative Agent, each Lender and the
Issuing Bank, within ten (10) days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, on or with respect to any payment by or on account of any obligation
of such Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Company
by a Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or on behalf
of a Lender or the Issuing Bank, shall be conclusive absent manifest error.




          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any
Borrower to a Governmental Authority, such Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which a Borrower is located, or any treaty to which
such jurisdiction is a party, with respect to payments under this Agreement shall deliver to
such Borrower (with a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by applicable law
or reasonably requested by such Borrower as will permit such payments to be made without
withholding or at a reduced rate.




          (f) If the Administrative Agent or a Lender determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been indemnified



42









 







by the Borrowers or with respect to which a Borrower has paid additional amounts pursuant
to this Section 2.17, it shall pay over such refund to such Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by such Borrower under this Section 2.17
with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund); provided,
that such Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay
the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require the Administrative Agent or any Lender
to make available its tax returns (or any other information relating to its taxes which it deems
confidential) to any Borrower or any other Person.



          SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.





          (a) Each Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Section 2.15, 2.16 or 2.17, or otherwise) prior to (i) in the case of payments by the Company
denominated in Dollars, 2:00 p.m., New York City time and (ii) in the case of payments by the
Dutch Borrower or payments denominated in a Foreign Currency, 2:00 p.m., Local Time, in the city
of the Administrative Agent’s Eurocurrency Payment Office for such currency, in each case on the
date when due, in immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made (i) in the same currency in which the
applicable Credit Event was made (or where such currency has been converted to euro, in euro)
and (ii) to the Administrative Agent at its offices at 270 Park Avenue, New York, New York 10017
or, in the case of a Credit Event denominated in a Foreign Currency, the Administrative Agent’s
Eurocurrency Payment Office for such currency, except payments to be made directly to the
Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments denominated in the same currency
received by it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding Business Day, and,
in the case of any payment accruing interest, interest thereon shall be payable for the period
of such extension. Notwithstanding the foregoing provisions of this Section, if, after the
making of any Credit Event in any Foreign Currency, currency control or exchange regulations are
imposed in the country which issues such currency with the result that the type of currency in
which the Credit Event was made (the “Original Currency”) no longer exists or any
Borrower is not able to make payment to the Administrative Agent for the account of the Lenders
in such Original Currency, then all payments to be made by such Borrower hereunder in such
currency shall instead be made when due in Dollars in an amount equal to the Dollar Amount (as
of the date of repayment) of such payment due, it



43









 







being the intention of the parties hereto that the Borrowers take all risks of the
imposition of any such currency control or exchange regulations.




          (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees
then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees
then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then due to such
parties.




          (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to apply to any
payment made by any Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or participations in LC Disbursements and Swingline Loans to
any assignee or participant, other than to the Company or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may exercise against
such Borrower rights of set-off and counterclaim with respect to such participation as fully as
if such Lender were a direct creditor of such Borrower in the amount of such participation.




          (d) Unless the Administrative Agent shall have received notice from the relevant Borrower
prior to the date on which any payment is due to the Administrative Agent for the account of the
Lenders or the Issuing Bank hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the
Issuing Bank, as the case may be, the amount due. In such event, if such Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is



44









 







distributed to it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation (including without limitation
the Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency).




          (e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are fully paid.



          SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, or if any Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or
2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Company hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.





          (b) If any Lender requests compensation under Section 2.15, or if any Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, or any Lender is unable to fund its portion of any Loan as a result of any applicable
law or regulation prohibiting, or any order, judgment or decree of any Governmental Authority
enjoining, prohibiting or restraining, any Lender from making any Loan requested by such
Borrower or the Issuing Bank or any Lender from issuing, renewing, extending or increasing the
face amount of or participating in the Letter of Credit requested to be issued, renewed,
extended or increased by such Borrower, or if any Lender fails to grant a consent in connection
with any proposed change, waiver, discharge or termination of the provisions of this Agreement
as contemplated by Section 9.02 but the consent of the Required Lenders is obtained, then the
Company may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its interests, rights and
obligations under the Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided that (i)
the Company shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the



45









 







Company (in the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.



          SECTION 2.20. Expansion Option. The Company may from time to time elect to increase
the Revolving Commitments or enter into one or more tranches of term loans (each, an
“Incremental Term Loan”), in each case in minimum increments of $25,000,000 so long as,
after giving effect thereto, the aggregate amount of the Commitments, Term Loans outstanding and
all such Incremental Term Loans does not exceed $850,000,000. The Company may arrange for any such
increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase
in its Revolving Commitment, or to participate in such Incremental Term Loan, an “Increasing
Lender”), or by one or more new banks, financial institutions or other entities (each such new
bank, financial institution or other entity, an “Augmenting Lender”), to increase their
existing Revolving Commitment, or to participate in such Incremental Term Loan, or extend Revolving
Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject
to the approval of the Company and the Administrative Agent and (ii) (x) in the case of an
Increasing Lender, the Company and such Increasing Lender execute an agreement substantially in the
form of Exhibit C hereto, and (y) in the case of an Augmenting Lender, the Company and such
Augmenting Lender execute an agreement substantially in the form of Exhibit D hereto.
Increases and new Revolving Commitments and Incremental Term Loans created pursuant to this Section
2.20 shall become effective on the date agreed by the Company, the Administrative Agent and the
relevant Increasing Lenders or Augmenting Lenders and the Administrative Agent shall notify each
Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the
Revolving Commitment of any Lender) or tranche of Incremental Term Loan shall become effective
under this paragraph unless, (i) on the proposed date of the effectiveness of such increase or
Incremental Term Loan, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be
satisfied or waived by the Required Lenders and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer of the Company, (ii)
the Administrative Agent shall have received documents consistent with those delivered on the
Effective Date as to the corporate power and authority of the Borrowers to borrow hereunder after
giving effect to such increase and (iii) the Company and its Subsidiaries shall be in compliance,
calculated on a Pro Forma Basis (giving effect, if necessary, to the increase in the permitted
maximum Consolidated Leverage Ratio in connection with a Material Acquisition set forth in Section
6.07(b) on the date of such Acquisition), with the covenants contained in Section 6.07. On the
effective date of any increase in the Revolving Commitments or any Incremental Term Loans being
made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the
Administrative Agent such amounts in immediately available funds as the Administrative Agent shall
determine, for the benefit of the other Lenders, as being required in order to cause, after giving
effect to such increase and the use of such amounts to make payments to such other Lenders, each
Lender’s portion of the outstanding Loans of all the Lenders to equal its Applicable Percentage of
such outstanding Loans, and (ii) except in the case of any Incremental Term Loans, the Borrowers
shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any
increase in the Revolving Commitments (with such reborrowing to consist of the




46









 







Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice
delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in
accordance with the requirements of Section 2.03). The deemed payments made pursuant to clause
(ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest
on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to
indemnification by the Borrowers pursuant to the provisions of Section 2.16 if the deemed payment
occurs other than on the last day of the related Interest Periods. The Incremental Term Loans (a)
shall rank pari passu in right of payment with the Revolving Loans and the initial Term Loans, (b)
shall not mature earlier than the Term Loan Maturity Date (but may have amortization prior to such
date) and (c) shall be treated substantially the same as (and in any event no more favorably than)
the Revolving Loans and the initial Term Loans, provided that (i) the terms and conditions
applicable to any tranche of Incremental Term Loans maturing after the Term Loan Maturity Date may
provide for material additional or different financial or other covenants or prepayment
requirements applicable only during periods after the Term Loan Maturity Date and (ii) the
Incremental Term Loans may be priced differently than the Revolving Loans and the initial Term
Loans.




          SECTION 2.21. Market Disruption. Notwithstanding the satisfaction of all conditions
referred to in Article II and Article IV with respect to any Borrowing to be effected in any
Foreign Currency, if (i) there shall occur on or prior to the date of such Borrowing any change in
national or international financial, political or economic conditions or currency exchange rates or
exchange controls which would in the reasonable opinion of the Administrative Agent, the Issuing
Bank (if such Credit Event is a Letter of Credit) or the Required Lenders make it impracticable for
the applicable Eurocurrency Borrowings or Letters of Credit comprising such Credit Event to be
denominated in the Agreed Currency specified by the applicable Borrower or (ii) an Equivalent
Amount of such currency is not readily calculable, then the Administrative Agent shall forthwith
give notice thereof to such Borrower, the Lenders and, if such Credit Event is a Letter of Credit,
the Issuing Bank, and such Credit Events shall not be denominated in such Agreed Currency but
shall, except as otherwise set forth in Section 2.07, be made on the date of such Credit Event in
Dollars, (a) if such Credit Event is a Borrowing, in an aggregate principal amount equal to the
Dollar Amount of the aggregate principal amount specified in the related Borrowing Request or
Interest Election Request, as the case may be, unless such Borrower notifies the Administrative
Agent at least one (1) Business Day before such date that (i) it elects not to borrow on such date
or (ii) it elects to borrow on such date in a different Agreed Currency, as the case may be, in
which the denomination of such Loans would, in the reasonable opinion of the Administrative Agent
and the Required Lenders, be practicable and in an aggregate principal amount equal to the Dollar
Amount of the aggregate principal amount specified in the related Borrowing Request or Interest
Election Request, as the case may be or (b) if such Credit Event is a Letter of Credit, in a face
amount equal to the Dollar Amount of the face amount specified in the related request or
application for such Letter of Credit, unless such Borrower notifies the Administrative Agent at
least one (1) Business Day before such date that (i) it elects not to request the issuance of such
Letter of Credit on such date or (ii) it elects to have such Letter of Credit issued on such date
in a different Agreed Currency, as the case may be, in which the denomination of such Letter of
Credit would in the reasonable opinion of the Issuing Bank, the Administrative Agent and the
Required Lenders be practicable and in face amount equal to the Dollar Amount of the face amount
specified in the related request or application for such Letter of Credit, as the case may be.




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          SECTION 2.22. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due from any Borrower hereunder in the currency expressed to
be payable herein (the “specified currency”) into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative Agent’s main New
York City office on the Business Day preceding that on which final, non appealable judgment is
given. The obligations of each Borrower in respect of any sum due to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day following receipt by
such Lender or the Administrative Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Administrative Agent (as the case may be) may in accordance
with normal, reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the sum originally due
to such Lender or the Administrative Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent, as the
case may be, against such loss, and if the amount of the specified currency so purchased exceeds
(a) the sum originally due to any Lender or the Administrative Agent, as the case may be, in the
specified currency and (b) any amounts shared with other Lenders as a result of allocations of such
excess as a disproportionate payment to such Lender under Section 2.18, such Lender or the
Administrative Agent, as the case may be, agrees to remit such excess to such Borrower.




ARTICLE III




Representations and Warranties




          Each Borrower represents and warrants to the Lenders as of the Effective Date and (except as
to representations and warranties made as of a date certain) as of the date such representations
and warranties are deemed to be made under Section 4.02 of this Agreement, that:




          SECTION 3.01. Organization; Powers; Subsidiaries. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing (to the extent such concept
is applicable in the relevant jurisdiction) under the laws of the jurisdiction of its organization,
has all requisite power and authority to carry on its business as now conducted and, except where
the failure to do so, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect, is qualified to do business in, and is in good standing (to the
extent such concept is applicable) in, every jurisdiction where such qualification is required.
Schedule 3.01 hereto (as supplemented from time to time) identifies each Subsidiary, if
such Subsidiary is a Material Domestic Subsidiary, the jurisdiction of its incorporation or
organization, as the case may be, the percentage of issued and outstanding shares of each class of
its capital stock or other equity interests owned by the Company and the other Subsidiaries and, if
such percentage is not 100% (excluding directors’ qualifying shares as required by law), a
description of each class issued and outstanding. All of the outstanding




48









 







shares of capital stock and other equity interests, to the extent owned by the Company or any
Subsidiary, of each Subsidiary are validly issued and outstanding and fully paid and nonassessable
and all such shares and other equity interests indicated on Schedule 3.01 as owned by the
Company or another Subsidiary are owned, beneficially and of record, by the Company or any
Subsidiary free and clear of all Liens, other than Liens permitted under Section 6.02. As of the
Effective Date, there are no outstanding commitments or other obligations of the Company or any
Subsidiary to issue, and no options, warrants or other rights of any Person to acquire, any shares
of any class of capital stock or other equity interests of the Company or any Subsidiary, except as
disclosed on Schedule 3.01.




          SECTION 3.02. Authorization; Enforceability. The Transactions are within each Loan
Party’s corporate powers and have been duly authorized by all necessary corporate and, if required,
stockholder action. The Loan Documents have been duly executed and delivered by the Loan Parties
and constitute a legal, valid and binding obligation of the Loan Parties party thereto, enforceable
in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.




          SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect,
(b) will not violate any material applicable law or material regulation or the charter, by-laws or
other organizational documents of any Loan Party or any order of any Governmental Authority, (c)
will not violate or result in a default under any indenture, material agreement or other material
instrument binding upon any Loan Party or its assets, or give rise to a right thereunder to require
any payment to be made by any Loan Party, and (d) will not result in the creation or imposition of
any Lien on any material asset of any Loan Party.




          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Company
has heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended March 31, 2006 reported
on by Deloitte & Touche LLP independent public accountants and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended December 31, 2006, certified by its chief
financial officer. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Company and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP.





          (b) Since March 31, 2006, there has been no material adverse change in the business,
assets, properties or financial condition of the Company and its Subsidiaries, taken as a whole.



          SECTION 3.05. Properties. (a) Each of the Company and its Subsidiaries has title
in fee simple to, or valid leasehold interests in, all its material real and personal property
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. There are no Liens on any of the material real or personal properties of the Company
or any Subsidiary except for Liens permitted by Section 6.02.




49









 









          (b) Each of the Company and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property necessary to its business, and,
to the knowledge of any Borrower, the use thereof by the Company and its Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.



          SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to
the knowledge of any Borrower, threatened against or affecting the Company or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this
Agreement or the Transactions. There are no labor controversies pending against or, to the
knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries
(i) which could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect, or (ii) that involve this Agreement or the Transactions.





          (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, neither the Company nor any of its Subsidiaries (i) has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit, license or other
approval required under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.



          SECTION 3.07. Compliance with Laws and Agreements. Each of the Company and its
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.08. Investment Company Status. Neither the Company nor any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.




          SECTION 3.09. Taxes. Each of the Company and its Subsidiaries has timely filed or
caused to be filed all material Tax returns and material reports required to have been filed and
has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are
being contested in good faith by appropriate proceedings and for which the Company or such
Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP or
(b) to the extent that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.




          SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability




50









 







is reasonably expected to occur, could reasonably be expected to result in a Material Adverse
Effect.




          SECTION 3.11. Disclosure. The Company has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other written information (excluding any
financial projections, pro forma financial information or projected industry data) furnished by or
on behalf of the Company to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished), when taken as a whole and when taken together with the Company’s SEC
filings, contains as of the date of such statement, information, document or certificate was so
furnished any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading. The projections and pro forma financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed by management of the
Company to be reasonable at the time made, it being recognized by the Lenders that such financial
information as it relates to future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial information may differ from the projected
results set forth therein by a material amount. The projected industry data concerning the Company
and the Subsidiaries or the transactions contemplated hereby was derived from sources believed by
Company to be reasonably reliable.




          SECTION 3.12. Federal Reserve Regulations. No part of the proceeds of any Loan have
been used or will be used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X.




          SECTION 3.13. No Default. No Default or Event of Default has occurred and is
continuing.




          SECTION 3.14. Dutch Financial Supervision Act. To the extent the Dutch Borrower
would qualify as a credit institution (kredietinstelling) under the Dutch Financial Supervision
Act, it is in compliance therewith.




ARTICLE IV




Conditions




          SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section 9.02):





          (a) The Administrative Agent (or its counsel) shall have received from (i) each party
hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B)
written evidence satisfactory to the Administrative Agent (which may include



51









 







telecopy or electronic mail transmission in accordance with Section 9.01(b) of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement
and (ii) each initial Subsidiary Guarantor either (A) a counterpart of the Subsidiary
Guaranty signed on behalf of such Subsidiary Guarantor or (B) written evidence satisfactory
to the Administrative Agent (which may include telecopy or electronic mail transmission in
accordance with Section 9.01(b) of a signed signature page of the Subsidiary Guaranty) that
such Subsidiary Guarantor has signed a counterpart of the Subsidiary Guaranty.




          (b) The Administrative Agent shall have received the executed legal opinions of
Skadden, Arps, Slate, Meagher & Flom LLP, special U.S. counsel to the Loan Parties
substantially in the form of Exhibit B-1, from Kristin Kolesar, Esq. or Roger
Foster, Esq., corporate counsels to the Company covering the matters set forth in
Exhibit B-2, from Allen & Overy LLP, special Dutch counsel to the Loan Parties
substantially in the form of Exhibit B-3, and covering such other matters relating
to the Loan Parties, the Loan Documents or the Transactions as the Required Lenders shall
reasonably request. The Company hereby requests such counsel to deliver such opinion.




          (c) The Lenders shall have received (i) audited consolidated financial statements of
the Company for the two most recent fiscal years ended prior to the Effective Date as to
which such financial statements are available, (ii) unaudited interim consolidated financial
statements of the Company for each quarterly period ended subsequent to the date of the
latest financial statements delivered pursuant to clause (i) of this paragraph as to which
such financial statements are available and (iii) financial statement projections
(reasonably satisfactory to the Administrative Agent) through and including the Company’s
2012 fiscal year (pro forma for recent acquisitions), together with such information as the
Administrative Agent and the Lenders shall reasonably request (including, without
limitation, a detailed description of the assumptions used in preparing such projections).




          (d) The Administrative Agent shall have received such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the initial Loan Parties, the authorization of the
Transactions and any other legal matters relating to such Loan Parties, the Loan Documents
or the Transactions, all in form and substance satisfactory to the Administrative Agent and
its counsel and as further described in the list of closing documents attached as
Exhibit E.




          (e) The Administrative Agent shall have received from the Dutch Borrower a
confirmation by an authorized signatory of the Dutch Borrower that there is no central works
council (centrale ondernemingsraad) or works council (ondernemingsraad) with jurisdiction
over the transactions as envisaged by this Agreement, or, if a (central) works council is
established, a confirmation that all consultation obligations in respect of such (central)
works council have been complied with and that positive unconditional advice has been
obtained, attaching a copy of such advice and a copy of the request for such advice.



52









 






          (f) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the Company,
confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section
4.02.




          (g) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement
or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the
Company hereunder.


The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02)
at or prior to 3:00 p.m., New York City time, on the Effective Date (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at such time).




          SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:





          (a) The representations and warranties of the Borrowers set forth in this Agreement
shall be true and correct in all material respects on and as of the date of such Borrowing
or the date of issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, except where any representation and warranty is expressly made as of a specific
earlier date, such representation and warranty shall be true in all material respects as of
any such earlier date.




          (b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.


Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V




Affirmative Covenants




          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, each Borrower
covenants and agrees with the Lenders that:




53









 








          SECTION 5.01. Financial Statements and Other Information. The Company will furnish
to the Administrative Agent (who shall promptly furnish a copy to each Lender):





          (a) as soon as available, but in any event within ninety (90) days after the end of
each fiscal year of the Company, its audited consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the previous fiscal
year, all reported on by Deloitte & Touche LLP or other independent public accountants of
recognized national standing (without a “going concern” or like qualification or exception
and without any qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Company and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;




          (b) as soon as available, but in any event within forty-five (45) days after the end
of each of the first three fiscal quarters of each fiscal year of the Company, its unaudited
consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of operations of the
Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes;




          (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate substantially in the form of Exhibit H executed by a Financial
Officer of the Company (i) certifying as to whether a Default has occurred and, if a Default
has occurred, specifying the details thereof and any action taken or proposed to be taken
with respect thereto and (ii) setting forth reasonably detailed calculations demonstrating
compliance with Sections 6.07;




          (d) concurrently with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such financial
statements of any failure to comply with Section 6.07 (which certificate may be limited to
the extent required by accounting rules or guidelines or by such accounting firm’s
professional standards and customs of the profession);




          (e) promptly upon receipt thereof, copies of all “management letters” submitted to the
Company by the independent public accountants referred to in clause (a) above in connection
with each audit made by such accountants;




          (f) promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by the Company or any



54









 







Subsidiary with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any national
securities exchange, or distributed by the Company to its shareholders generally, as the
case may be;




          (g) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Company or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent or any Lender
(through the Administrative Agent) may reasonably request; and




          (h) concurrently with the delivery thereof pursuant to the terms of the Senior Notes
and the Senior Note Indenture, copies of any compliance certificate delivered thereunder
evidencing compliance with the terms and conditions thereof.


Financial statements and other information required to be delivered pursuant to Sections 5.01(a),
5.01(b) and 5.01(f) shall be deemed to have been delivered if such statements and information shall
have been posted by the Company on its website or shall have been posted on Intralinks or similar
site to which all of the Lenders have been granted access.




          SECTION 5.02. Notices of Material Events. The Company will furnish to the
Administrative Agent and each Lender prompt written notice of the following:





          (a) the occurrence of any Default;




          (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Company or any Affiliate
thereof that could reasonably be expected to result in a Material Adverse Effect;




          (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse
Effect; and




          (d) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.


Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Company setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.




          SECTION 5.03. Existence; Conduct of Business. The Company will, and will cause each
of its Material Subsidiaries to, do or cause to be done all things necessary to preserve, renew and
keep in full force and effect (i) its legal existence and (ii) the rights, licenses, permits,
privileges and franchises material to the conduct of its business, except, in the case of the
preceding clause (ii), to the extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.




55









 








          SECTION 5.04. Payment of Obligations. The Company will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could
reasonably be expected to result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Company or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make
payment pending such contest could not reasonably be expected to result in a Material Adverse
Effect.




          SECTION 5.05. Maintenance of Properties; Insurance. The Company will, and will cause
each of its Material Subsidiaries to, (a) keep and maintain all Property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted, and (b)
maintain, with financially sound and reputable insurance companies or through self-insurance,
insurance in such amounts and against such risks as are customarily maintained by companies engaged
in the same or similar businesses operating in the same or similar locations.




          SECTION 5.06. Books and Records; Inspection Rights. The Company will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries in conformity with GAAP, if applicable, or (in the case of a Subsidiary that is not
a Domestic Subsidiary) other local accounting standards, if applicable, and requirements of
applicable law are made of all dealings and transactions in relation to its business and
activities. The Company will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with its officers and use commercially reasonable
efforts to make its independent accountants available to discuss the affairs, finances and
condition of the Borrowers, all at such reasonable times and as often as reasonably requested;
provided, that (i) the Lenders will conduct such requests for visits and inspections
through the Administrative Agent and (ii) unless an Event of Default has occurred and is
continuing, such visits and inspections can occur no more frequently than once per year.




          SECTION 5.07. Compliance with Laws; Compliance with Agreements. The Company will,
and will cause each of its Subsidiaries to, (i) comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property (including without limitation
Environmental Laws) and (ii) perform in all material respects its obligations under material
agreements to which it is a party, in each case except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used only to finance the working capital needs, and for general corporate purposes (including
refinancing of existing Indebtedness and investments), of the Company and its Subsidiaries. No
part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including Regulations T, U and X.




56









 








          SECTION 5.09. Subsidiary Guaranty. As promptly as possible but in any event within
thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) after any
Person becomes (or is designated as) a Material Domestic Subsidiary or a Required Domestic
Subsidiary (other than a Restricted Subsidiary or a Receivables Entity), the Company shall provide
the Administrative Agent with written notice thereof setting forth information in reasonable detail
describing the material assets of such Person and shall cause each such Subsidiary to deliver to
the Administrative Agent a Subsidiary Guaranty in the form of Exhibit F pursuant to which
such Subsidiary agrees to be bound by the terms and provisions thereof, and such Subsidiary
Guaranty to be accompanied by appropriate corporate resolutions, other corporate documentation and
legal opinions in form and substance reasonably satisfactory to the Administrative Agent and its
counsel.




ARTICLE VI




Negative Covenants




          Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, each Borrower covenants and
agrees with the Lenders that:




          SECTION 6.01. Subsidiary Indebtedness. The Company will not permit any Subsidiary to
create, incur, assume or permit to exist any Indebtedness, except:





          (a) Indebtedness created under the Loan Documents;




          (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01
and extensions, renewals, amendments, restatements, refinancings and replacements of any
such Indebtedness with Indebtedness that does not increase the outstanding principal amount
thereof;




          (c) Indebtedness of (i) any Loan Party to any other Loan Party, (ii) any Subsidiary to
any Loan Party and (iii) any Subsidiary that is not a Loan Party to any other Subsidiary
that is not a Loan Party;




          (d) Guarantees by any Subsidiary of Indebtedness of the Company or any other
Subsidiary, all to the extent permitted by this Section 6.01;




          (e) Indebtedness incurred to finance the acquisition, construction or improvement of
any fixed or capital assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, and extensions, renewals, amendments,
restatements, refinancings and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof; provided that (i) such Indebtedness (other
than a refinancing permitted above in this clause (e)) is incurred prior to or within one
hundred and eighty (180) days after such acquisition or the completion of such



57









 







construction or improvement and (ii) the aggregate principal amount of Indebtedness
permitted by this clause (e) shall not exceed $50,000,000 at any time outstanding;




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




          (g) Indebtedness incurred pursuant to Permitted Receivables Facilities;
provided that the Attributable Receivables Indebtedness thereunder shall not exceed
an aggregate amount of $250,000,000 at any time outstanding;




          (h) Guarantee obligations of any Subsidiary Guarantor in respect of the Senior Notes;




          (i) Indebtedness of Subsidiaries which are not Subsidiary Guarantors (including
Guarantee Obligations) in an aggregate amount not exceeding an amount equal to 10% of
Consolidated Total Assets (or the foreign equivalent thereof) at any time outstanding;




          (j) Indebtedness under Swap Agreements entered into in the ordinary course of business
and not for speculative purposes;




          (k) Indebtedness in respect of bid, performance, surety, appeal or replevin bonds
issued in the ordinary course of business, including guarantees or obligations of any
Subsidiary with respect to letters of credit supporting such obligation, in each case, not
in connection with Indebtedness for money borrowed;




          (l) Indebtedness in respect of judgments or awards not deemed to be a default under
Section 7(k);




          (m) Indebtedness consisting of customary purchase price adjustments, earn-outs,
indemnification obligations and similar items incurred in connection with acquisitions and
asset sales not restricted by Section 6.03;




          (n) (i) Indebtedness of a Person existing at the time such Person becomes a Subsidiary
and not created in contemplation thereof; provided, that after giving effect to the
acquisition of such Person, the Company would be in compliance on a Pro Forma Basis with
each of the covenants set forth in Section 6.07 (giving effect, if necessary, to the
increase in the permitted maximum Consolidated Leverage Ratio in connection with a Material
Acquisition set forth in Section 6.07(b) on the date of such Acquisition) and (ii) any
refinancings, refundings, renewals, replacements or extensions thereof (without any increase
in the principal amount thereof or any shortening of the maturity of any principal amount
thereof or the addition of any obligors thereunder other than the Person so acquired);




          (o) Indebtedness of any of the Company’s Subsidiaries in an aggregate amount not to
exceed the foreign currency equivalent of $10,000,000 in respect of letters of credit
denominated in currencies other than Dollars;



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          (p) Indebtedness in the form of loans and advances to employees, and the guarantees of
loans and advances to employees, in an aggregate amount not to exceed $5,000,000 at any one
time outstanding;




          (q) Indebtedness under the Credit Agreement, dated as of July 24, 2006, by and among
the Company, the lenders party thereto and JPMorgan Chase Bank, National Association as
administrative agent, as amended, restated, supplemented and otherwise modified from time to
time; and




          (r) additional Indebtedness of any of the Subsidiary Guarantors so long as no Event of
Default has occurred and is continuing or would arise after giving effect thereto and the
Company and the Subsidiaries are in compliance on a Pro Forma Basis (giving effect, if
necessary, to the increase in the permitted maximum Consolidated Leverage Ratio in
connection with a Material Acquisition set forth in Section 6.07(b) on the date of such
Acquisition) with the covenants contained in Section 6.07.



          SECTION 6.02. Liens. The Company will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any Property now owned or hereafter acquired
by it, or assign or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:





          (a) Permitted Encumbrances;




          (b) any Lien on any Property of the Company or any Subsidiary existing on the date
hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not
apply to any other Property of the Company or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount thereof;




          (c) any Lien existing on any Property prior to the acquisition thereof by the Company
or any Subsidiary or existing on any Property of any Person that becomes a Subsidiary after
the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such
Lien is not created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any
other Property of the Company or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date such Person becomes
a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;




          (d) Liens on fixed or capital assets acquired, constructed or improved by the Company
or any Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by clause (e) of Section 6.01, (ii) such security interests and the Indebtedness
secured thereby (other than refinancing Indebtedness permitted by clause (e) of Section
6.01) are incurred prior to or within one hundred eighty (180) days after such acquisition
or the completion of such construction or improvement, (iii) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving such fixed or



59









 







capital assets and (iv) such security interests shall not apply to any other Property
of the Company or any Subsidiary;




          (e) rights of setoff and similar arrangements and Liens in favor of depository and
securities intermediaries to secure customary fees and similar amounts related to bank
accounts or securities accounts;




          (f) Liens in connection with or to secure Indebtedness arising under Permitted
Receivables Facilities;




          (g) Liens on assets of a Subsidiary which is not a Subsidiary Guarantor securing
Indebtedness of such Subsidiary pursuant to Section 6.01(i);




          (h) Liens on “earnest money” or similar deposits in connection with acquisitions not
restricted by Section 6.03;




          (i) Liens on cash and cash equivalents securing Indebtedness permitted by Section
6.01(o);




          (j) Liens in connection with Indebtedness permitted by Section 6.01(n); and




          (k) Liens not otherwise permitted by this Section 6.02 so long as the aggregate
outstanding principal amount of the obligations secured thereby subject to such Liens does
not exceed 10% of Consolidated Total Assets at any time outstanding.



          SECTION 6.03. Fundamental Changes. (a) The Company will not, and will not permit
any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its assets, or all or
substantially all of the Equity Interests of any of its Subsidiaries (in each case, whether now
owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Event of Default shall have occurred and be continuing:





     (i) the Company may enter into and consummate Permitted Acquisitions;




     (ii) any Person may merge with or into or consolidate with a Loan Party (other than a
Borrower), or such Loan Party (other than a Borrower) may sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all of substantially all of
its Property to such Person, in a transaction in which (a) the surviving entity is such Loan
Party or (b) if the surviving entity will not be the Loan Party, simultaneously with such
transaction, the Person formed by such consolidation or into which such Loan Party is
merged, or the Person which acquires by sale, lease, transfer or other disposition all or
substantially all of such Loan Party’s Property shall, if such Subsidiary is a Required
Domestic Subsidiary or a Material Domestic Subsidiary, become a Subsidiary Guarantor and the
Company shall comply with Section 5.09 in connection therewith (it being understood and
agreed that a Loan Party shall not be merged with, and shall not dispose all or
substantially all of its Property to, a Person organized in a jurisdiction located outside
of the United States of America);



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     (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Company or to another Loan Party;




     (iv) the Company or any Subsidiary may sell Receivables under Permitted Receivables
Facilities (subject to the limitation that the Attributable Receivables Indebtedness
thereunder shall not exceed an aggregate amount of $250,000,000);




     (v) any Subsidiary may liquidate or dissolve, or the Company or any Subsidiary may
sell, transfer, lease or otherwise dispose of all or substantially all of the Equity
Interests of any of its Subsidiaries, if the Company or such Subsidiary, as applicable,
determines in good faith that such liquidation or dissolution is in the best interests of
the Company and its Subsidiaries, considered as a whole, and is not materially
disadvantageous to the Lenders; and




     (vi) any Subsidiary that is not a Subsidiary Guarantor may merge with or into or
consolidate with any other Subsidiary that is not a Subsidiary Guarantor or any other Person
that will become a Subsidiary following such transaction, and may sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) any or all of its
Property (upon voluntary liquidation or otherwise) to any other Subsidiary or any other
Person that will become a Subsidiary following such transaction.




          (b) The Company will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Company and
its Subsidiaries on the date of execution of this Agreement and businesses reasonably related,
ancillary or complementary thereto and reasonable extensions thereof.



          SECTION 6.04. Restricted Payments. The Company will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Company may declare and pay dividends with respect to its Equity
Interests payable solely in additional shares of its common stock or options to purchase common
stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity
Interests, (c) the Company may make Restricted Payments pursuant to and in accordance with stock
option plans or other benefit plans for present or former management or employees of the Company
and its Subsidiaries, (d) the Company may pay cash dividends on its common stock in an amount not
to exceed $0.06 per share in any fiscal quarter (as adjusted so that the aggregate amount payable
pursuant to this clause (d) is not increased or decreased solely as a result of any stock-split,
stock dividend or similar reclassification) plus the payment of pro rata dividends on shares
subject to issuance pursuant to outstanding options for each fiscal quarter thereafter; and (e) the
Company may make any other Restricted Payment; provided that the Company may only make the
Restricted Payments permitted under the foregoing clauses (c), (d) and (e) so long as (i) no Event
of Default has occurred and is continuing or would arise after giving effect thereto and the
Company and the Subsidiaries are in compliance on a Pro Forma Basis (giving effect, if necessary,
to the increase in the permitted maximum Consolidated Leverage Ratio in connection with a Material
Acquisition set forth in Section 6.07(b) on the date of such Acquisition), both before and
immediately after giving effect to such Restricted Payment with the covenants contained in Section
6.07 and the Company shall have delivered to the Administrative Agent a certificate of a Financial
Officer of the Company to such effect, together




61









 








with all relevant financial information reasonably requested by the Administrative Agent and
(ii) such Restricted Payment is then not restricted under the Senior Note Indenture.




          SECTION 6.05. Transactions with Affiliates. The Company will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any Property to, or purchase,
lease or otherwise acquire any Property from, or otherwise engage in any other transactions with,
any of its Affiliates, except (a) at prices and on terms and conditions not less favorable to the
Company or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties, (b) transactions between or among the Company and its Subsidiaries not involving any other
Affiliate, (c) pay reasonable and customary fees to and the provision of indemnity on behalf of,
directors, officers, employees or members of the Boards of Directors of the Company or such
Subsidiary, (d) make loans and advances to employees in the ordinary course of business, (e) make
Restricted Payments permitted under Section 6.04, (f) employment arrangements entered into in the
ordinary course of business with officers of the Company or its Subsidiaries, and (g) the
transactions set forth in Schedule 6.05.




          SECTION 6.06. Changes in Fiscal Year. The Company will not, nor will it permit any
of its Subsidiaries to, change its fiscal year from the basis in effect on the Effective Date.




          SECTION 6.07. Financial Covenants.





          (a) Minimum Consolidated Interest Coverage Ratio. The Company will not permit the
Consolidated Interest Coverage Ratio, determined as of the end of each of its fiscal quarters
for the period of four (4) consecutive fiscal quarters ending with the end of such fiscal
quarter, to be less than 3.0 to 1.0.




          (b) Maximum Consolidated Leverage Ratio. The Company will not permit the
Consolidated Leverage Ratio, determined as of the end of each of its fiscal quarters ending for
the period of four (4) consecutive fiscal quarters ending with the end of such fiscal quarter,
to be greater than 3.5 to 1.0; provided that if the Company has consummated a Material
Acquisition and at the end of the fiscal quarter in which such Material Acquisition was
consummated (such quarter, the “Trigger Quarter”) the Consolidated Leverage Ratio is
(or, if calculated on a Pro Forma Basis, would be) greater than 3.5 to 1.0, then the
Consolidated Leverage Ratio may be greater than 3.5 to 1.0 but less than or equal to 4.5 to 1.0
for the Trigger Quarter and for the seven (7) fiscal quarters immediately following the Trigger
Quarter (such eight-quarter period, the “Covenant Holiday”); provided,
further, that in the event the Company consummates another Material Acquisition during
the Covenant Holiday, such subsequent Material Acquisition will not give rise to another Trigger
Quarter and Covenant Holiday unless the Company’s Consolidated Leverage Ratio prior to such
subsequent Material Acquisition shall have been reduced back down to 3.5 to 1.0 or less for at
least one fiscal quarter. Notwithstanding anything contained in this Section to the contrary,
the Company will not permit the Consolidated Leverage Ratio to be greater than 4.0 to 1.0 for
the final two (2) fiscal quarters prior to the Term Loan Maturity Date.



          SECTION 6.08. Restrictive Agreements. The Company will not, and will not permit any
of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any




62









 







agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Company or any Subsidiary to create, incur or permit to exist any Lien upon any of
its property or assets, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to holders of its Equity Interests or to make or repay loans or advances
to the Company or any other Subsidiary or to Guarantee Indebtedness of the Company or any other
Subsidiary; provided that the foregoing shall not apply to (i) restrictions and conditions imposed
by law or by this Agreement, (ii) restrictions and conditions existing on the date hereof (but
shall apply to any extension or renewal of, or any amendment or modification, in each case, which
expands the scope of, any such restriction or condition), (iii) customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary or any of its assets
pending such sale, provided such restrictions and conditions apply only to the Subsidiary or assets
that is to be sold and such sale is not prohibited hereunder, (iv) customary restrictions and
conditions contained in agreements relating to a Permitted Receivables Facility or the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is not prohibited hereunder, (v) agreements binding on
a Subsidiary at the time such Subsidiary becomes a Subsidiary of the Company, (vi) restrictions set
forth in Indebtedness of a Subsidiary that is not a Subsidiary Guarantor which is permitted by this
Agreement, (vii) agreements that are customary provisions in joint venture agreements and other
similar agreements applicable to joint ventures, (vii) restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness, (viii) customary
provisions in leases, subleases, licenses, sublicenses or permits so long as such restrictions
relate only to the property subject thereto, (ix) customary provisions in leases restricting the
assignment or subletting thereof, (x) customary provisions restricting assignment or transfer of
any contract entered into in the ordinary course of business or otherwise permitted hereunder, (xi)
restrictions or conditions on Liens set forth in any Indebtedness permitted by this Agreement but
solely to the extent any such restrictions or conditions expressly permit Liens for the benefit of
the Lenders with respect to credit facilities established under this Agreement and the Obligations
under the Loan Documents, and other similar senior credit facilities and related obligations, in
each case on a senior basis and (xii) restrictions or conditions set forth in that certain Credit
Agreement dated as of July 24, 2006 among the Company, the lenders from time to time party thereto
and JPMorgan Chase Bank, National Association as administrative agent, as such agreement may be
amended, restated, or otherwise modified from time to time.




ARTICLE VII




Events of Default




          If any of the following events (“Events of Default”) shall occur and be continuing:





          (a) any Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;



63









 






          (b) any Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement,
when and as the same shall become due and payable, and such failure shall continue unremedied
for a period of five (5) days;




          (c) any representation or warranty made or deemed made by or on behalf of any Borrower or
any Subsidiary in or in connection with this Agreement or any other Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this Agreement or any
other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove
to have been incorrect in any material respect when made or deemed made;




          (d) (i) the Company shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to any Borrower’s existence), 5.08 or 5.09, in
Article VI or Article X or (ii) any Loan Document shall for any reason not be or shall cease to
be in full force and effect (other than by reason of the express release thereof pursuant to
Section 9.14) or is declared to be null and void, or the Company or any Subsidiary Guarantor
takes any action for the purpose of terminating, repudiating or rescinding any Loan Document or
any of its obligations thereunder;




          (e) any Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or
perform any covenant, condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) or any other Loan Document, and such
failure shall continue unremedied for a period of thirty (30) days after notice thereof from the
Administrative Agent to the Company (which notice will be given at the request of any Lender);




          (f) any Borrower or any Material Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness, when
and as the same shall become due and payable, or if a grace period shall be applicable to such
payment under the agreement or instrument under which such Indebtedness was created, beyond such
applicable grace period;




          (g) any event or condition occurs that results in any Material Indebtedness of any
Borrower or any Material Subsidiary becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or both, but, after giving
effect to any applicable grace period) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness;




          (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of any Borrower or any
Material Subsidiary or its debts, or of a substantial part of its assets, under any



64









 







Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Borrower or any Material Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall continue
undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing
shall be entered;




          (i) any Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official
for any Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;




          (j) any Borrower or any Material Subsidiary shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;




          (k) one or more final, non-appealable judgments for the payment of money in an aggregate
amount in excess of the greater of (x) $40,000,000 and (y) 10% of Consolidated EBITDA for the
four (4) most recently ended fiscal quarters of the Company, which is not fully covered by
insurance as to which the relevant insurance company has acknowledged coverage, shall be
rendered against any Borrower, any Material Subsidiary or any combination thereof and the same
shall remain unpaid or undischarged for a period of thirty (30) consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of any Borrower or any Subsidiary to enforce any such
judgment;




          (l) an ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse Effect
or in the imposition of a Lien or security interest on any assets of the Company or any
Subsidiary under Sections 401(a)(29) or 412(n) of the Code or under Section 4068 of ERISA; or




          (m) a Change in Control shall occur;


then, and in every such event (other than an event with respect to any Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Company, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued


65









 






hereunder and under the other Loan Documents, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrowers; and in case of any event with respect to any Borrower described in clause (h) or (i) of
this Article, the Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other Obligations accrued
hereunder and under the other Loan Documents, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrowers.




ARTICLE VIII




The Administrative Agent





          (a) Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative Agent by the
terms hereof, together with such actions and powers as are reasonably incidental thereto.




          (b) The bank serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and such bank and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.




          (c) The Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have
any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating
to the Company or any of its Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative
Agent shall not be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02) or in the absence of its own bad
faith, gross negligence or willful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Company or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this




66









 






Agreement, (ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.




          (d) The Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed or sent by the
proper Person. The Administrative Agent also may rely upon any statement made to it orally or
by telephone and believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal counsel (who may
be counsel for the Company), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts in the absence of gross negligence or willful misconduct.




          (e) The Administrative Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-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.




          (f) Subject to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Company. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Company and (unless an Event of Default shall
have occurred and be continuing) with the consent of the Company (which consent of the Company
shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such appointment within
thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a
successor Administrative Agent from among the Lenders which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder.
The fees payable by any Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between such Borrower and such successor.
After the Administrative Agent’s resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring



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Administrative Agent, its sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.




          (g) Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any related agreement or any document furnished
hereunder or thereunder.




          (h) The Lenders irrevocably authorize the Administrative Agent, at its option and in its
discretion, to release any Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder or ceases to be required to be a Subsidiary Guarantor pursuant to the terms hereof.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Subsidiary Guarantor from its
obligations under the Subsidiary Guaranty pursuant to this paragraph. In each case as specified
herein, the Administrative Agent will, at the Company’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request to release such
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty in accordance with the
terms of the Loan Documents and this paragraph.




          (i) None of the Lenders, if any, identified in this Agreement as a Syndication Agent or
Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship
with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant
Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as
applicable, as it makes with respect to the Administrative Agent in the preceding paragraph.



ARTICLE IX




Miscellaneous




          SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone or other electronic communications (and subject to
paragraph (b) below), all notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by certified or registered mail
or sent by telecopy or transmission by electronic communication, as follows:




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     (i) if to any Borrower, to it c/o Mylan Laboratories Inc. at 1500 Corporate Drive,
Canonsburg, Pennsylvania 15317, Attention of Chief Financial Officer (Telecopy No. (724)
514-1871; Telephone No. (724) 514 1800); with a copy to Treasurer and (in the case of a
notice of a Default) to Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New
York, New York 10036, Attention of James Douglas, Esq. (Telecopy No. (212) 735-2000));




     (ii) if to the Administrative Agent, to (A) in the case of Borrowings by the Company
denominated in Dollars, JPMorgan Chase Bank, National Association, Loan and Agency Services
Group, 10 South Dearborn, 19th Floor, Chicago, Illinois 60603, Attention of Mi Y Kim
(Telecopy No. (312) 385-7098) and (B) in the case of Borrowings by the Dutch Borrower or
denominated in Agreed Currencies other than Dollars, JPMorgan Europe Limited, 125 London
Wall, London EC2Y 5AJ, Attention of Belinda Lucas (Telecopy No. 011-44207-777-2360), and in
each case with a copy to JPMorgan Chase Bank, National Association, 277 Park Avenue, New
York, New York 10172, Attention of James P. Minton (Telecopy No. (646) 534-3081);




     (iii) if to the Issuing Bank, to it at JPMorgan Chase Bank, National Association, Loan
and Agency Services Group, 10 South Dearborn, 19th Floor, Chicago, Illinois 60603, Attention
of Mi Y Kim (Telecopy No. (312) 385-7098), with a copy to JPMorgan Chase Bank, National
Association, 277 Park Avenue, New York, New York 10172, Attention of James P. Minton
(Telecopy No. (646) 534-3081);




     (iv) if to the Swingline Lender, to it at JPMorgan Chase Bank, National Association,
Loan and Agency Services Group, 10 South Dearborn, 19th Floor, Chicago, Illinois 60603,
Attention of Mi Y Kim (Telecopy No. (312) 385-7098), with a copy to JPMorgan Chase Bank,
National Association, 277 Park Avenue, New York, New York 10172, Attention of James P.
Minton (Telecopy No. (646) 534-3081); and




     (v) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.




          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the
Company 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.




          (c) Any party hereto may change its address, electronic mail address or telecopy number for
notices and other communications hereunder by notice to the other parties hereto. All notices
and other communications given to any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of delivery, or three Business Days
after being deposited in the mail, postage prepaid.



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          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing
Bank may have had notice or knowledge of such Default at the time.





          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the Borrowers and the
Required Lenders or by the Borrowers and the Administrative Agent with the consent of the
Required Lenders; provided that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal amount of any
Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the written consent
of each Lender, (v) change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders required
to waive, amend or modify any rights hereunder or make any determination or grant any consent
hereunder without the written consent of each Lender, (vi) release all or substantially all of
the Subsidiary Guarantors from their obligations under the Subsidiary Guaranty, without the
written consent of each Lender or (vii) release the Company from the Company Guaranty, without
the written consent of each Lender; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the
Issuing Bank or the Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be.


Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, the Administrative Agent and the Borrowers (i) to add one
or more additional credit facilities to this Agreement and to permit the extensions of credit from
time to time outstanding thereunder and the accrued interest and fees in respect thereof to share
ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and
Revolving Credit Exposures and the accrued interest and fees in respect thereof




70









 







and (ii) to include appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders.




          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) Each Borrower shall pay (i)
all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable and documented fees, charges and disbursements of counsel for
the Administrative Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and
documented out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any
Lender, including the fees, charges and disbursements of one counsel for the Administrative Agent,
and one additional counsel (and appropriate local counsel) for the Issuing Bank and the Lenders,
collectively, in connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of Credit.





          (b) Each Borrower shall indemnify the Administrative Agent, the Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the Company or any of its
Subsidiaries, or any Environmental Liability related in any way to the Company or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the bad faith, gross negligence or willful
misconduct of such or any other Indemnitee.




          (c) To the extent that any Borrower fails to pay any amount required to be paid by it to
the Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank
or the Swingline Lender, as the case may be, such Lender’s



71









 







Applicable Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be,
was incurred by or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.




          (d) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower
hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of
Credit or the use of the proceeds thereof.




          (e) All amounts due under this Section shall be payable not later than fifteen (15) days
after written demand therefor.



          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and
the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.





     (b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at the time owing
to it) with the prior written consent (such consent not to be unreasonably withheld) of:




     (A) the Company, provided that no consent of the Company shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund
or, if an Event of Default has occurred and is continuing, any other assignee;




     (B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of all or any portion of a
Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and




     (C) the Issuing Bank; provided that no consent of any Issuing Bank
shall be required for an assignment of all or any portion of a Term Loan to a
Lender, an Affiliate of a Lender or an Approved Fund.



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     (ii) Assignments shall be subject to the following additional conditions:




     (A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of
the assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 or, in the case of a Term
Loan, $1,000,000 unless each of the Company and the Administrative Agent otherwise
consent, provided that (1) no such consent of the Company shall be required
if an Event of Default has occurred and is continuing and (2) no assignment
(including to a Lender or an Affiliate of a Lender or an Approved Fund) shall be in
an amount of less than €50,000 (or the Equivalent Amount thereof in Dollars);




     (B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement,
provided that this clause shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender’s rights and obligations in respect
of one Class of Commitments or Loans;




     (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500; and




     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:




          “Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section




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9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of this Section.




          (iv) The Administrative Agent, acting for this purpose as an agent of each Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent, the Issuing Bank and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Company, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the assigning Lender
or the assignee shall have failed to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.




          (c) (i) Any Lender may, without the consent of the Company, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that
(A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(C) the Borrowers, the Administrative Agent, the Issuing Bank and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of
this Section, each Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.18(c) as though it were a Lender.




74









 








          (ii) A Participant shall not be entitled to receive any greater payment under Section 2.15 or
2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Company’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.17 unless the Company is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Company, to comply with Section 2.17(e) as though it were a Lender.




          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.




          (e) Notwithstanding any other provision of this Agreement, no Lender will assign its rights
and obligations under this Agreement, or sell participations in its rights and/or obligations under
this Agreement, to any Person who is (i) listed on the Specially Designated Nationals and Blocked
Persons List maintained by the U.S. Department of Treasury Office of Foreign Assets Control
(“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing
statute, executive order or regulation or (ii) either (A) included within the term “designated
national” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (B) designated
under Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order No. 13224, 66 Fed. Reg. 49079 (published
September 25, 2001) or similarly designated under any related enabling legislation or any other
similar executive orders.




          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is extended hereunder,
and shall continue in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII
shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any other Loan
Document or any provision hereof or thereof.




          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single




75









 







contract. This Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.




          SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.




          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final and in whatever currency denominated) at any time
held and other obligations at any time owing by such Lender or Affiliate to or for the credit or
the account of any Borrower against any of and all the obligations of such Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.




          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.





          (b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or any other Loan Document shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this
Agreement against any Borrower or its properties in the courts of any jurisdiction.



76









 






          (c) Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such
court.




          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. The Dutch Borrower irrevocably designates and appoints
the Company, as its authorized agent, to accept and acknowledge on its behalf, service of any
and all process which may be served in any suit, action or proceeding of the nature referred to
in Section 9.09(b) in any federal or New York State court sitting in New York City. The Company
hereby represents, warrants and confirms that the Company has agreed to accept such appointment.
Said designation and appointment shall be irrevocable by the Dutch Borrower until all Loans,
all reimbursement obligations, interest thereon and all other amounts payable by the Dutch
Borrower hereunder and under the other Loan Documents shall have been paid in full in accordance
with the provisions hereof and thereof. The Dutch Borrower hereby consents to process being
served in any suit, action or proceeding of the nature referred to in Section 9.09(b) in any
federal or New York State court sitting in New York City by service of process upon the Company
as provided in this Section 9.09(d); provided that, to the extent lawful and possible,
notice of said service upon such agent shall be mailed by registered or certified air mail,
postage prepaid, return receipt requested, to the Company and (if applicable to) the Dutch
Borrower to the address of which the Dutch Borrower shall have given written notice to the
Administrative Agent (with a copy thereof to the Company). The Dutch Borrower irrevocably
waives, to the fullest extent permitted by law, all claim of error by reason of any such service
in such manner and agrees that such service shall be deemed in every respect effective service
of process upon the Dutch Borrower in any such suit, action or proceeding and shall, to the
fullest extent permitted by law, be taken and held to be valid and personal service upon and
personal delivery to the Dutch Borrower. To the extent the Dutch Borrower has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process (whether from
service or notice, attachment prior to judgment, attachment in aid of execution of a judgment,
execution or otherwise), the Dutch Borrower hereby irrevocably waives such immunity in respect
of its obligations under the Loan Documents. Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process in any other
manner permitted by law.



          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF





77









 







LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.




          SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors solely for the purpose of, or
otherwise directly in connection with this Agreement (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any Governmental
Authority, (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process (provided, however, that, to the extent permitted by law, the
Company has been notified prior to such disclosure so that the Company may seek, at the Company’s
sole expense, a protective order or other appropriate remedy), (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder (provided, however, to the extent permitted by law, the
Company is notified prior to such disclosure so that the Company may seek, at the Company’s sole
expense, a protective order or other appropriate remedy), (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to any Borrower and its obligations, (g) with the consent of the
Company or (h) to the extent such Information (i) becomes publicly available other than as a result
of a breach of this Section, or to the knowledge of such disclosing person, as a result of a breach
of a confidentiality agreement with any other Person or (ii) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Company. For the purposes of this Section, “Information” means all information
received from the Company relating to the Company or its business, other than any such information
that is available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Company.




          SECTION 9.13. USA PATRIOT Act. Each Lender that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies each Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies such Borrower, which information
includes the name and address of such Borrower and other information that will allow such Lender to
identify such Borrower in accordance with the Act.




          SECTION 9.14. Release of Guarantors. Notwithstanding anything to the contrary
contained herein or in any other Loan Document, upon request of the Company in





78









 







connection with any Disposition of Property not prohibited by the Loan Documents, the
Administrative Agent shall (without notice to, or vote or consent of, any Lender, or any affiliate
of any Lender that is a party to any Swap Agreement) take such actions as shall be required to
release any Subsidiary Guarantor from its obligations under any Loan Document, to the extent
necessary to permit consummation of such Disposition in accordance with the Loan Documents.
Notwithstanding anything to the contrary contained herein or any other Loan Document, when all
Obligations (other than obligations in respect of any Swap Agreement) have been paid in full, all
Commitments have terminated or expired and no Letter of Credit shall be outstanding, upon request
of the Company, the Administrative Agent shall (without notice to, or vote or consent of, any
Lender, or any affiliate of any Lender that is a party to any Swap Agreement) take such actions as
shall be required to release any Subsidiary Guarantor from its obligations under any Loan Document,
whether or not on the date of such release there may be outstanding Obligations in respect of Swap
Agreements.




ARTICLE X




Company Guarantee




          In order to induce the Lenders to extend credit to the Dutch Borrower hereunder, the Company
hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety,
the payment when and as due of the Obligations of the Dutch Borrower. The Company further agrees
that the due and punctual payment of such Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will remain bound upon its guarantee
hereunder notwithstanding any such extension or renewal of any such Obligation.




          The Company waives presentment to, demand of payment from and protest to any Borrower of any
of the Obligations, and also waives notice of acceptance of its obligations and notice of protest
for nonpayment. The obligations of the Company hereunder shall not be affected by (a) the failure
of the Administrative Agent, the Issuing Bank or any Lender to assert any claim or demand or to
enforce any right or remedy against any Borrower under the provisions of this Agreement, any other
Loan Document or otherwise; (b) any extension or renewal of any of the Obligations; (c) any
rescission, waiver, amendment or modification of, or release from, any of the terms or provisions
of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay,
willful or otherwise, in the performance of any of the Obligations; (e) the failure of the
Administrative Agent to take any steps to perfect and maintain any security interest in, or to
preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in
the corporate, partnership or other existence, structure or ownership of any Borrower or any other
guarantor of any of the Obligations; (g) the enforceability or validity of the Obligations or any
part thereof or the genuineness, enforceability or validity of any agreement relating thereto or
with respect to any collateral securing the Obligations or any part thereof, or any other
invalidity or unenforceability relating to or against any Borrower or any other guarantor of any of
the Obligations, for any reason related to this Agreement, any Swap Agreement, any other Loan
Document, or any provision of applicable law, decree, order or regulation of any jurisdiction
purporting to prohibit the payment by such Borrower or any other guarantor of the Obligations, of
any of the Obligations or otherwise affecting any term of any of




79









 







the Obligations; or (h) any other act, omission or delay to do any other act which may or
might in any manner or to any extent vary the risk of the Company or otherwise operate as a
discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right
of the Company to subrogation.




          The Company further agrees that its agreement hereunder constitutes a guarantee of payment
when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or
collection of any of the Obligations or operated as a discharge thereof) and not merely of
collection, and waives any right to require that any resort be had by the Administrative Agent, the
Issuing Bank or any Lender to any balance of any deposit account or credit on the books of the
Administrative Agent, the Issuing Bank or any Lender in favor of any Borrower or any other Person.




          The obligations of the Company hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, and shall not be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or
unenforceability of any of the Obligations, any impossibility in the performance of any of the
Obligations or otherwise.




          The Company further agrees that its obligations hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by the Administrative Agent, the Issuing Bank or any Lender
upon the bankruptcy or reorganization of any Borrower or otherwise.




          In furtherance of the foregoing and not in limitation of any other right which the
Administrative Agent, the Issuing Bank or any Lender may have at law or in equity against the
Company by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as
the same shall become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Company hereby promises to and will, upon receipt of written demand by the
Administrative Agent, the Issuing Bank or any Lender, forthwith pay, or cause to be paid, to the
Administrative Agent, the Issuing Bank or any Lender in cash an amount equal to the unpaid
principal amount of such Obligations then due, together with accrued and unpaid interest thereon.
The Company further agrees that if payment in respect of any Obligation shall be due in a currency
other than Dollars and/or at a place of payment other than New York, Chicago or any other
Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or
foreign exchange markets, war or civil disturbance or other event, payment of such Obligation in
such currency or at such place of payment shall be impossible or, in the reasonable judgment of the
Administrative Agent, the Issuing Bank or any Lender, disadvantageous to the Administrative Agent,
the Issuing Bank or any Lender in any material respect, then, at the election of the Administrative
Agent, the Company shall make payment of such Obligation in Dollars (based upon the applicable
Equivalent Amount in effect on the date of payment) and/or in New York, Chicago or such other
Eurocurrency Payment Office as is designated by the Administrative Agent and, as a separate and
independent obligation, shall indemnify the Administrative Agent, the Issuing Bank and any Lender
against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such
alternative payment.




          Upon payment by the Company of any sums as provided above, all rights of the Company against
any Borrower arising as a result thereof by way of right of subrogation or otherwise shall in all
respects be subordinated and junior in right of payment to the prior





80









 







indefeasible payment in full in cash of all the Obligations owed by such Borrower to the
Administrative Agent, the Issuing Bank and the Lenders.




          Nothing shall discharge or satisfy the liability of the Company hereunder except the full
performance and payment of the Obligations.




[Signature Pages Follow]





81









 








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




	 	 	 	 	 
	 	MYLAN LABORATORIES INC.

 	 
	 	By:  	/s/ Edward J. Borkowski
 	 
	 	 	Name:  	Edward J. Borkowski 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007





 









 










	 	 	 	 	 
	 	TRUST INTERNATIONAL MANAGEMENT (T.I.M.) B.V.,

as Corporate Managing Director of EURO MYLAN B.V.

 	 
	 	By:  	/s/ Stefan Boermans
 	 
	 	 	Name:  	Stefan Boermans 	 
	 	 	Title:  	Attorney in Fact A 	 
	 
	 	 	 
	 	By:  	/s/ Christiaan Mol
 	 
	 	Name:  Christiaan Mol 	 
	 	Title:  Attorney in Fact B 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 







	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL

ASSOCIATION, individually as a Lender, as the 

Swingline
Lender, as the Issuing Bank and as


Administrative Agent

 	 
	 	By:  	/s/ Helene Sprung
 	 
	 	 	Name:  	Helene Sprung 	 
	 	 	Title:  	Senior Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 







	 	 	 	 	 



	 	 	 	 	 
	 	MERRILL LYNCH, PIERCE, FENNER & SMITH

INCORPORATED, as Syndication Agent

 	 
	 	By:  	/s/ Michael E. O’Brien
 	 
	 	 	Name:  	Michael E. O’Brien 	 
	 	 	Title:  	Director 	 
	 
	 	MERRILL LYNCH CAPITAL CORPORATION,

individually as a Lender

 	 
	 	By:  	/s/ John Rowland
 	 
	 	 	Name:  	John Rowland 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITIBANK, N.A.,

individually as a Lender and as a

Co-Documentation Agent

 	 
	 	By:  	/s/ Mark Floyd
 	 
	 	 	Name:  	Mark Floyd 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 








	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., NEW YORK BRANCH, individually as a Lender and as a Co-Documentation Agent

 	 
	 	By:  	/s/ Scott Schaffer
 	 
	 	 	Name:  	Scott Schaffer 	 
	 	 	Title:  	Authorized Signatory 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,

individually as a Lender and as a Co-Documentation Agent

 	 
	 	By:  	/s/ Thomas A. Majeski
 	 
	 	 	Name:  	Thomas A. Majeski 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 








	 	 	 	 	 



	 	 	 	 	 
	 	LASALLE BANK NATIONAL ASSOCIATION, 

individually as a Lender and as a Co-Documentation Agent

 	 
	 	By:  	/s/ Philip R. Medsger
 	 
	 	 	Name:  	Philip R. Medsger 	 
	 	 	Title:  	First Vice President 	 


 Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK,

as a Lender

 	 
	 	By:  	/s/ John M. Lokay
 	 
	 	 	Name:  	John M. Lokay, JR. 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITIZENS BANK OF PENNSYLVANIA,

as a Lender

 	 
	 	By:  	/s/ Clifford A. Mull
 	 
	 	 	Name:  	Clifford A. Mull 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	NATIONAL CITY BANK,

as a Lender

 	 
	 	By:  	/s/ Susan J. Dimmick
 	 
	 	 	Name:  	Susan J. Dimmick 	 
	 	 	Title:  	Vice President 	 


 Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SUNTRUST BANK,

as a Lender

 	 
	 	By:  	/s/ Helen C. Hartz
 	 
	 	 	Name:  	Helen C. Hartz 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Thomas C. Lillis
 	 
	 	 	Name:  	Thomas C. Lillis 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA,

as a Lender

 	 
	 	By:  	/s/ Richard Hawthorne
 	 
	 	 	Name:  	Richard Hawthorne 	 
	 	 	Title:  	Director 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 









	 	 	 	 	 



	 	 	 	 	 
	 	COMMERZBANK AG, NEW YORK AND CAYMAN 

BRANCHES, as a Lender

 	 
	 	By:  	/s/ Robert S. Taylor
 	 
	 	 	Name:  	Robert S. Taylor 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	 	 
	 	By:  	/s/ Eric J. Rogowski
 	 
	 	 	Name:  	Eric J. Rogowski 	 
	 	 	Title:  	Assistant Treasurer 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	FORTIS CAPITAL CORP,

as a Lender

 	 
	 	By:  	/s/ Barbara Nash
 	 
	 	 	Name:  	Barbara Nash 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	/s/ Steven Silverstein
 	 
	 	 	Name:  	Steven Silverstein 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	FIFTH THIRD BANK,

as a Lender

 	 
	 	By:  	/s/ Jim Janowsky
 	 
	 	 	Name:  	Jim Janowsky 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	HUNTINGTON NATIONAL BANK,

as a Lender

 	 
	 	By:  	/s/ John M. Luehmann
 	 
	 	 	Name:  	John M. Luehmann 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD.,

as a Lender

 	 
	 	By:  	/s/ Raymond Ventura
 	 
	 	 	Name:  	Raymond Ventura 	 
	 	 	Title:  	Deputy General Manager 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Michael P. Dickman
 	 
	 	 	Name:  	Michael P. Dickman 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	WACHOVIA BANK,

NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Eric M. Del Viscio
 	 
	 	 	Name:  	Eric M. Del Viscio 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	KBC BANK N.V.,

as a Lender

 	 
	 	By:  	/s/ Thomas G. Jackson
 	 
	 	 	Name:  	Thomas G. Jackson 	 
	 	 	Title:  	First Vice President 	 
	 
	 	 	 
	 	By:  	/s/ Jean-Pierre Diels
 	 
	 	 	Name:  	Jean-Pierre Diels 	 
	 	 	Title:  	First Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, N.A.,

as a Lender

 	 
	 	By:  	/s/ Michael Tschida
 	 
	 	 	Name:  	Michael Tschida 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	MAYLAYAN BANKING BERHAD,

as a Lender

 	 
	 	By:  	/s/ Fauzi Zulkifli
 	 
	 	 	Name:  	Fauzi Zulkifli 	 
	 	 	Title:  	General Manager 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK LEUMI USA,

as a Lender

 	 
	 	By:  	/s/ Joung Hee Hong
 	 
	 	 	Name:  	Joung Hee Hong 	 
	 	 	Title:  	First Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	FIRST COMMERCIAL BANK NEW YORK AGENCY,

as a Lender

 	 
	 	By:  	/s/ Helen Tong
 	 
	 	 	Name:  	Helen Tong 	 
	 	 	Title:  	FVP & Manager 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 







	 	 	 	 	 



	 	 	 	 	 
	 	HUA NAN COMMERCIAL BANK, LTD. NEW YORK 
AGENCY,
as a Lender

 	 
	 	By:  	/s/ Te-Chin Wang
 	 
	 	 	Name:  	Te-Chin Wang 	 
	 	 	Title:  	Assistant Vice President 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE NORINCHUKEN BANK, NEW YORK BRANCH,

as a Lender

 	 
	 	By:  	/s/ Kaoru Yamada
 	 
	 	 	Name:  	Kaoru Yamada 	 
	 	 	Title:  	Joint General Manager 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH,

as a Lender

 	 
	 	By:  	/s/ Jim C. Y. Chen
 	 
	 	 	Name:  	Jim C. Y. Chen 	 
	 	 	Title:  	V.P. & General Manager 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	TAIPE FUBON COMMERCIAL BANK, NEW YORK AGENCY,

as a Lender

 	 
	 	By:  	/s/ Sophia Jing
 	 
	 	 	Name:  	Sophia Jing 	 
	 	 	Title:  	VP & General Manager 	 



Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COMERICA BANK,

as a Lender

 	 
	 	By:  	/s/ Erica M. Krzeminski
 	 
	 	 	Name:  	Erica M. Krzeminski 	 
	 	 	Title:  	Account Officer 	 


Signature Page to Credit and Guarantee Agreement

Mylan Laboratories Inc. and Euro Mylan B.V.

March 2007





 









 









	 	 	 	 	 



SCHEDULE 1.01A




APPLICABLE RATE





     The Applicable Rate means, for any day, with respect to any Eurocurrency Term Loan,
Eurocurrency Revolving Loan, or with respect to the facility fees payable hereunder, as the case
may be, the applicable rate per annum set forth below under the caption “Eurocurrency Spread (Term
Loans)”, “Eurocurrency Spread (Revolving Loans)” or “Facility Fee Rate”, as the case may be, based
upon the Leverage Ratio applicable on such date:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Eurocurrency	 	Eurocurrency	 	Facility
	 	 	Spread	 	Spread	 	Fee
	Leverage Ratio:	 	(Term Loans)	 	(Revolving Loans)	 	Rate
	Category 1: £ 1.00x
	 	 	0.50	%	 	 	0.40	%	 	 	0.100	%
	Category 2: >
1.00x but £ 2.00x
	 	 	0.625	%	 	 	0.50	%	 	 	0.125	%
	Category 3: >
2.00x but £ 3.00x
	 	 	0.750	%	 	 	0.60	%	 	 	0.150	%
	Category 4: >
3.00x but £ 3.50x
	 	 	0.875	%	 	 	0.70	%	 	 	0.175	%
	Category 5: >
3.50x but £ 4.00x
	 	 	1.00	%	 	 	0.80	%	 	 	0.200	%
	Category 6: > 4.00x
	 	 	1.25	%	 	 	1.00	%	 	 	0.250	%






     For purposes of the foregoing,




     (i) if at any time the Company fails to deliver the Financials on or before the date
the Financials are due, Category 6 shall be deemed applicable for the period commencing five
(5) Business Days after the required date of delivery and ending on the date which is five
(5) Business Days after the Financials are actually delivered, after which the Category
shall be determined in accordance with the table above as applicable;




     (ii) except as otherwise provided in clause (iii) below, adjustments, if any, to the
Category then in effect shall be effective five (5) Business Days after the Administrative
Agent has received the applicable Financials (it being understood and agreed that each
change in Category shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the next such
change); and




     (iii) notwithstanding the foregoing, Category 4 shall be deemed to be applicable until
the Administrative Agent’s receipt of the applicable Financials for the Company’s fiscal
quarter ending on or about March 31, 2007 (unless such Financials demonstrate that Category
5 or 6 should have been applicable during such period, in which case such other Category
shall be deemed to be applicable during such period), and adjustments to
the Category then in effect shall thereafter be effected in accordance with the preceding
paragraphs.