CREDIT AGREEMENT

Exhibit 10.1

 

 

Published CUSIP Number: [___]

CREDIT AGREEMENT

Dated as of June 19, 2008

among

BARR LABORATORIES, INC.,
as Borrower,

and

BARR PHARMACEUTICALS, INC.,

and

CERTAIN SUBSIDIARIES
FROM TIME TO TIME PARTY HERETO ,
as Guarantors

BANK OF AMERICA, N.A.,
as Administrative Agent,

and
The Other Lenders Party Hereto

BANC OF AMERICA SECURITIES LLC,
as
Lead Arranger and Book Manager

 

 

TABLE OF CONTENTS

Section		Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS			1
Section 1.01 Defined Terms			1
Section 1.02 Other Interpretive Provisions			19
Section 1.03 Accounting Terms			19
Section 1.04 Rounding			21
Section 1.05 Times of Day			21
ARTICLE II TERM LOAN CREDIT FACILITY			21
Section 2.01 Term Loan			21
Section 2.02 Term Loan Borrowings, Conversions and Continuations of Term Loans			21
Section 2.03 Prepayments			23
Section 2.04 Repayment of Term Loans			25
Section 2.05 Interest			25
Section 2.06 Fees			26
Section 2.07 Computation of Interest and Fees; Adjustments of Applicable Rate			26
Section 2.08 Evidence of Debt			27
Section 2.09 Payments Generally; Administrative Agent’s Clawback			27
Section 2.10 Sharing of Payments by Lenders			29
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY			30
Section 3.01 Taxes			30
Section 3.02 Illegality			33
Section 3.03 Inability to Determine Rates			33
Section 3.04 Increased Costs; Reserves on Eurocurrency Rate Loans			33
Section 3.05 Compensation for Losses			35
Section 3.06 Mitigation Obligations; Replacement of Lenders			36
Section 3.07 Survival			36
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS			36
Section 4.01 Closing Conditions			36
ARTICLE V REPRESENTATIONS AND WARRANTIES			38
Section 5.01 Existence, Qualification and Power; Compliance with Laws			38
Section 5.02 Authorization; No Contravention			38
Section 5.03 Governmental Authorization; Other Consents			39
Section 5.04 Binding Effect			39
Section 5.05 Financial Statements; No Material Adverse Effect			39
Section 5.06 Litigation			39
Section 5.07 No Default			40
Section 5.08 Ownership of Property; Liens			40
Section 5.09 Environmental Compliance			40
Section 5.10 Taxes			40
Section 5.11 ERISA Compliance			41

Section		Page
Section 5.12 Subsidiaries			41
Section 5.13 Margin Regulations; Investment Company Act			42
Section 5.14 Disclosure			42
Section 5.15 Compliance with Laws			42
Section 5.16 Intellectual Property; Licenses, Etc.			42
ARTICLE VI AFFIRMATIVE COVENANTS			43
Section 6.01 Financial Statements			43
Section 6.02 Certificates; Other Information			44
Section 6.03 Notices			45
Section 6.04 Payment of Obligations			46
Section 6.05 Preservation of Existence, Etc.			46
Section 6.06 Maintenance of Properties			46
Section 6.07 Maintenance of Insurance			46
Section 6.08 Compliance with Laws and Contractual Obligations			47
Section 6.09 Books and Records			47
Section 6.10 Use of Proceeds			47
Section 6.11 Additional Guarantors			47
ARTICLE VII NEGATIVE COVENANTS			48
Section 7.01 Liens			48
Section 7.02 Investments			50
Section 7.03 Non-Loan Party Indebtedness			51
Section 7.04 Fundamental Changes			52
Section 7.05 Restricted Payments			53
Section 7.06 Change in Nature of Business			53
Section 7.07 Transactions with Affiliates			53
Section 7.08 Restrictive Agreements			54
Section 7.09 Use of Proceeds			55
Section 7.10 Financial Covenants			55
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES			56
Section 8.01 Events of Default			56
Section 8.02 Remedies Upon Event of Default			58
Section 8.03 Application of Funds			59
ARTICLE IX ADMINISTRATIVE AGENT			60
Section 9.01 Appointment and Authority			60
Section 9.02 Rights as a Lender			60
Section 9.03 Exculpatory Provisions			60
Section 9.04 Reliance by Administrative Agent			61
Section 9.05 Delegation of Duties			61
Section 9.06 Resignation of Administrative Agent			62
Section 9.07 Non-Reliance on Administrative Agent and Other Lenders			62
Section 9.08 No Other Duties, Etc.			63
Section 9.09 Administrative Agent May File Proofs of Claim			63
Section 9.10 Guaranty Matters			64
ARTICLE X MISCELLANEOUS			64
Section 10.01 Amendments, Etc.			64
Section 10.02 Notices; Effectiveness; Electronic Communication			65

Section		Page
Section 10.03 No Waiver; Cumulative Remedies			67
Section 10.04 Expenses; Indemnity; Damage Waiver			67
Section 10.05 Payments Set Aside			68
Section 10.06 Successors and Assigns			69
Section 10.07 Treatment of Certain Information; Confidentiality			73
Section 10.08 Right of Setoff			74
Section 10.09 Interest Rate Limitation			74
Section 10.10 Counterparts; Integration; Effectiveness			74
Section 10.11 Survival of Representations and Warranties			75
Section 10.12 Severability			75
Section 10.13 Replacement of Lenders			75
Section 10.14 Governing Law; Jurisdiction; Etc.			76
Section 10.15 Waiver of Jury Trial			77
Section 10.16 No Advisory or Fiduciary Responsibility			77
Section 10.17 USA PATRIOT Act Notice			78
ARTICLE XI GUARANTY			79
Section 11.01 The Guaranty			79
Section 11.02 Obligations Unconditional			79
Section 11.03 Reinstatement			80
Section 11.04 Certain Waivers			81
Section 11.05 Remedies			81
Section 11.06 Rights of Contribution			82
Section 11.07 Guaranty of Payment; Continuing Guarantee			82
Section 11.08 Release of Guarantee			82

SCHEDULES

1.01		Permitted Transfers
2.01		Term Loan Commitments and Applicable Percentages
5.12		Subsidiaries
7.01		Existing Liens
7.02		Existing Investments
7.03		Existing Indebtedness
7.07		Existing Affiliate Transactions
7.08		Restrictive Agreements
10.02		Administrative Agent’s Office; Certain Addresses for Notices

EXHIBITS

		Form of
1.01		Investment Guidelines
2.02		Form of Term Loan Notice
2.11(a)		Form of Note
6.02		Form of Compliance Certificate
6.11		Form of Guarantor Joinder Agreement
10.06		Form of Assignment and Assumption

CREDIT AGREEMENT

     This CREDIT AGREEMENT (“ Agreement ”) is entered into as of June 19, 2008, among Barr Laboratories, Inc., a Delaware corporation (the “ Borrower ”), Barr Pharmaceuticals, Inc., a Delaware corporation (the “ Parent ”) as a guarantor along with certain Subsidiaries of the Parent (individually a “ Guarantor ” and collectively the “ Guarantors ”), each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), and Bank of America, N.A., as Administrative Agent.

     The Borrower has requested that the Lenders provide a term loan credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.

     In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

      Section 1.01 Defined Terms .

     As used in this Agreement, the following terms shall have the meanings set forth below:

     “ Acquisition ” means the acquisition by any Person of (i) all or substantially all of the Equity Interests in, or the Property of, another Person, or (ii) any product line or segment of business or division (including, without limitation, the acquisition of rights, production or distribution of a product or product line) of another Person, whether or not involving a merger or consolidation with such Person.

     “ Administrative Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

     “ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

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

     “ Affiliate ” means, with respect to any 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.

     “ Agreement ” means this Credit Agreement, as amended, supplemented or otherwise modified from time to time.

     “ Applicable Percentage ” means with respect to any Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Term Loan funded by such Lender at such time and the denominator of which is the Outstanding Amount; provided that if the commitment of each Lender to make Term Loans has been terminated pursuant to Section 8.02 , then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

     “ Applicable Rate ” means, with respect to that portion of the Term Loan comprised of “Eurocurrency Rate Loans”, 1.50% per annum, and with respect to that portion of the Term Loan comprised of Base Rate Loans, 0.00% per annum; provided , that, to the extent the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Parent is less than 2.5 to 1.0, the Applicable Rate shall be permanently reduced to 1.25% per annum with respect to that portion of the Term Loan comprised of “Eurocurrency Rate Loans” and 0.00% per annum with respect to that portion of the Term Loan comprised of Base Rate Loans. Any decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b) .

     “ Approved Fund ” means any Fund 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.

     “ Arranger ” means Banc of America Securities LLC, in its capacity as lead arranger and book manager.

     “ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

     “ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b) , and accepted by the Administrative Agent, in substantially the form of Exhibit 10.06 or any other form approved by the Administrative Agent.

     “ Attributable Indebtedness ” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

     “ Audited Financial Statements ” means the audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended December 31, 2007, and the related

consolidated statements of income or retained earnings and cash flows for such fiscal year of the Parent and its Subsidiaries, including the notes thereto.

     “ Bank of America ” means Bank of America, N.A. and its successors.

     “ BAS ” means Banc of America Securities LLC and its successors.

     “ Base Rate ” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

     “ Base Rate Loan ” means a Term Loan that bears interest based on the Base Rate.

     “ Borrower ” has the meaning specified in the introductory paragraph hereto.

     “ Borrower Materials ” has the meaning specified in Section 6.02 .

     “ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located, and, if such day relates to any Eurocurrency Rate Loan, any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.

     “ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

     “ Change of Control ” means an event or series of events by which:

     (a) the Parent shall cease to own directly or indirectly 100% on a fully diluted basis of the voting interest in the Borrower’s capital stock; or

     (b) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “ option

right ”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the equity securities of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);

     (c) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent cease to be individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.

     “ Closing Date ” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 .

     “ Code ” means the Internal Revenue Code of 1986.

     “ Compliance Certificate ” means a certificate in the form of Exhibit 6.02 .

     “ Consolidated Assets ” means, at any date, the consolidated assets of the Parent and its Subsidiaries at such date, as determined in accordance with GAAP.

     “ Consolidated EBITDA ” means, for any period, for the Parent and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes (including franchise taxes imposed in lieu thereof) payable by the Parent and its Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) write-offs (including, without limitation, write-offs and write-downs of acquired in-process research and development in connection with Acquisitions and any write-off of deferred financing costs in connection with the prepayment or repurchase of Indebtedness prior to the maturity thereof), (v) other non-cash charges and expenses of the Parent and its Subsidiaries reducing such Consolidated Net Income (including, without limitation, non-cash restructuring charges and expenses and compensation expenses realized for grants of performance shares, stock options, stock purchase rights or other rights to officers, directors and employees of the Parent or any Subsidiary), (vi) extraordinary, unusual or non-recurring expense items (including extraordinary litigation or claim settlement charges or expenses) for such period and the tax consequences thereof, and (vii) one-time cash expenses incurred in connection with the making of any Investment (including any Acquisition), the incurrence of Indebtedness or the offering of Equity Interests, in each case not prohibited by this Agreement, whether or not the applicable transaction is consummated and minus (b) the following to the extent included in calculating

such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of the Parent and its Subsidiaries for such period, (ii) all non-cash items increasing Consolidated Net Income for such period, (iii) extraordinary items of income (other than the proceeds of business interruption insurance and the proceeds from patent challenge settlements) for such period and the tax consequences thereof and (iv) any cash payments with respect to the charges and expenses excluded pursuant to clause (a)(v).

     “ Consolidated Funded Indebtedness ” means, as of any date of determination, for the Parent and its Subsidiaries on a consolidated basis, the sum, without duplication, of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) the outstanding principal amount of all purchase money Indebtedness, (c) any obligations consisting of unreimbursed obligations arising under letters of credit to the extent the time period for the repayment of such obligations has elapsed, bankers’ acceptances, bank guaranties, surety bonds and similar instruments and (d) Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations.

     “ Consolidated Funded Indebtedness to Total Capitalization Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness on such date to (b) Consolidated Total Capitalization on such date.

     “ Consolidated Interest Charges ” means, for any period, for the Parent and its Subsidiaries on a consolidated basis, the sum of (a) all cash interest expense of the Parent and its Subsidiaries in connection with borrowed money (including capitalized interest) to the extent treated as interest in accordance with GAAP minus (b) interest income.

     “ Consolidated Interest Coverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such date to (b) Consolidated Interest Charges for such period.

     “ Consolidated Leverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.

      “Consolidated Net Income ” means, for any period, for the Parent and its Subsidiaries on a consolidated basis, the net income of the Parent and its Subsidiaries for that period; provided , that net income of any Person that is not a “Loan Party” (as defined in the Existing Credit Agreement) shall be excluded if and to the extent that, the declaration of dividends or distributions by that Person of such net income is not, at the time, permitted by the terms of its charter, or any agreement, instrument, judgment, decree, order, statute, rule or government regulation applicable to that Person.

     “ Consolidated Net Tangible Assets ” means the Consolidated Assets less goodwill and other intangibles (other than patents, trademarks, licenses, copyrights and other intellectual property and prepaid assets).

     “ Consolidated Net Worth ” means, as of any date with respect to the Parent and its Subsidiaries on a consolidated basis, shareholders’ equity or net worth, as determined in accordance with GAAP.

     “ Consolidated Total Capitalization ” means, as of any date of determination, the sum of (a) Consolidated Funded Indebtedness on such date and (b) Consolidated Net Worth on such date.

     “ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

     “ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

     “ Corporate Rating ” means, as of any date of determination, the rating as determined by the Ratings Agencies as the Parent’s corporate credit (family) rating (collectively, the “Corporate Ratings”).

     “ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

     “ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

     “ Default Rate ” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided , however , that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Term Loan plus 2% per annum.

     “ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the Term Loan required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

     “ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts

receivable or any rights and claims associated therewith; provided that “Disposition” and “Dispose” shall not be deemed to include any issuance of any Equity Interest to another Person.

     “ Dollar ” and “ $ ” mean lawful money of the United States.

     “ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

     “ Eligible Assets ” means property that is used or useful in the business of the Parent and its Subsidiaries.

     “ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Parent any of the Parent’s Affiliates or Subsidiaries.

     “ Environmental Laws ” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

     “ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries 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 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, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

     “ ERISA ” means the Employee Retirement Income Security Act of 1974.

     “ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Parent within the meaning of Section 414(b) or (c) of the Code (and Section 414(m) of the Code for purposes of provisions relating to Section 412 of the Code).

     “ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Parent or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Parent or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any material liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Parent or any ERISA Affiliate.

     “ Eurocurrency Rate Loan ” means a Term Loan that bears interest at a rate based on the Eurocurrency Rate.

     “ Eurocurrency Base Rate ” has the meaning specified in the definition of Eurocurrency Rate.

     “ Eurocurrency Rate ” means for any Interest Period with respect to a Eurocurrency Rate Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:

		Eurocurrency Rate		=				Eurocurrency Base Rate
						1.00 -		Eurocurrency Reserve Percentage

     Where,

     “ Eurocurrency Base Rate ” means, for such Interest Period, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “Eurocurrency Base Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in immediately available funds in the approximate amount of the Eurocurrency Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London

interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

     “ Eurocurrency Reserve Percentage ” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurocurrency Rate for each outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.

     “ Event of Default ” has the meaning specified in Section 8.01 .

     “ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), as a result of a present or former connection between the Administrative Agent, the Lender or any other recipient of payment and the jurisdiction (or any political subdivision thereof) imposing such tax other than a connection arising solely by reason of this Agreement or any other Loan Documents 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 or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 10.13 ), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(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 Borrower with respect to such withholding tax pursuant to Section 3.01(a) .

     “ Existing Credit Agreement ” means that certain Credit Agreement dated as of July 21, 2006 among the Borrower, certain foreign subsidiaries identified as Borrower therein, the Parent, the other Guarantors identified therein, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer and the other Lenders party thereto, as amended, supplemented or otherwise modified from time to time.

     “ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole

multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

     “ Fee Letter ” means the letter agreement, dated April 4, 2008, among the Borrower, the Administrative Agent and BAS.

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

     “ Foreign Subsidiary ” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.

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

     “ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

     “ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

     “ Governmental Authority ” means the government of the United States or any other nation, or of 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 (including any supra-national bodies such as the European Union or the European Central Bank).

     “ Granting Lender ” has the meaning specified in Section 10.06(g) .

     “ Guarantee ” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or

cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that an endorsement of any instrument shall not constitute a Guarantee. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

     “ Guarantors ” means (a) the Parent, (b) the parties identified on the signature pages hereto as “Guarantors” and (c) each Person who after the Closing Date becomes a Guarantor pursuant to a Guarantor Joinder Agreement or other documentation in form and substance reasonably acceptable to the Administrative Agent, in each case together with their respective successors and permitted assigns.

     “ Guarantor Joinder Agreement ” means with respect to any Guarantor, a joinder agreement substantially in the form of Exhibit 6.11 executed and delivered in accordance with the provisions of Section 6.11 .

     “ 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.

     “ Immaterial Subsidiary ” means any Subsidiary of any Loan Party that at any time, together with its Subsidiaries, owns assets (book value) which constitute less than five percent (5.00%) of the Consolidated Assets and is designated by the Borrower in writing as an “Immaterial Subsidiary”; provided , that the aggregate amount of assets (book value) owned by all Subsidiaries designated as Immaterial Subsidiaries shall not, at any time, exceed fifteen percent (15.0%) of the Consolidated Assets.

     “ Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

     (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

     (b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial, but excluding commercial letters of credit

supporting the purchase of goods in the ordinary course of business and expiring no more than six months from the date of issuance), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

     (c) for purposes of Section 8.01(c) only, net obligations of such Person under any Swap Contract (other than obligations under any Swap Contract entered into by the Parent in order to manage existing or anticipated risk associated with the repurchase by the Parent of shares of its common Equity Interests);

     (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);

     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

     (f) capital leases and Synthetic Lease Obligations; and

     (g) all Guarantees of such Person in respect of any of the foregoing.

     The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.

     “ Indemnified Taxes ” means Taxes other than Excluded Taxes.

     “ Indemnitees ” has the meaning specified in Section 10.04(b) .

     “ Information ” has the meaning specified in Section 10.07 .

     “ Interest Payment Date ” means, (a) as to any Term Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Term Loan and the Maturity Date; provided , however , that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.

     “ Interest Period ” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Term Loan Notice or such other period that is twelve months or less requested by the Borrower and consented to by all the Lenders; provided that with respect to

the initial Interest Period, the Borrower may elect an Interest Period for any time period not to exceed one month ; provided , further that:

     (i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

     (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

     (iii) no Interest Period shall extend beyond the Maturity Date.

     “ Investment ” means, as to any Person, any direct or indirect investment by such Person, by means of (a) an Acquisition or (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

     “ Investment Guidelines ” means the guidelines set forth in the Parent’s “investment policy” approved by the Parent’s board of directors on January 17, 2008 (as set forth in Exhibit 1.01 hereto), as amended by any amendments to such investment policy that do not modify such investment policy in a manner materially adverse to the Lenders.

     “ Involuntary Disposition ” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Parent or any of its Subsidiaries.

     “ IP Rights ” has the meaning specified in Section 5.17 .

     “ IRS ” means the United States Internal Revenue Service.

     “ Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

     “ Lender ” has the meaning specified in the introductory paragraph hereto.

     “ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

     “ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property).

     “ Loan Documents ” means this Agreement, each Note and each Guarantor Joinder Agreement.

     “ Loan Parties ” means, collectively, the Borrower, the Parent and each other Guarantor.

     “ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the business, property, operations or financial condition of the Parent and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Loan Parties, taken as a whole, to perform their obligations under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Loan Parties of any Loan Document.

     “ Maturity Date ” means [___], 2013; provided , that if such day is not a Business Day, the Maturity Date shall be the next preceding Business Day.

     “ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

     “ Multiemployer Plan ” means any employee pension benefit plan of the type described in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which the Parent or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

     “ Net Cash Proceeds ” means the aggregate cash or cash equivalents proceeds received by the Parent or any Subsidiary in respect of any Disposition, net of (a) costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees, and sales commissions and other fees and expenses incurred in connection therewith), (b) taxes paid or payable as a result thereof, (c) the amount necessary to retire any Indebtedness secured by a Permitted Lien on the related property and (d) amounts required to be prepaid under the Existing Credit Agreement in respect thereof; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or cash equivalents received upon the sale or other disposition of any non-cash consideration received by the Parent or any Subsidiary in any Disposition; provided that no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Cash Proceeds unless such Net Cash Proceeds exceed $1,000,000.

     “ Note ” means a promissory note made by the Borrower in favor of a Lender evidencing Term Loans made by such Lender to the Borrower, substantially in the form of Exhibit 2.11(a) .

     “ Obligations ” means the unpaid principal of and interest on (including interest and fees accruing after the Maturity Date and interest accruing after the filing of any proceeding under any Debtor Relief Laws naming such Person as a debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding) on any Term Loan or any other monetary obligations and liabilities of any Loan Party to the Administrative Agent or to any Lender (or in the case of Swap Contracts, any affiliate of any Lender), whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise under, out of, or in connection with this Agreement, any other Loan Document or any Swap Contract or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise.

     “ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

     “ Other Taxes ” means 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 under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

     “ Outstanding Amount ” means, as of any date of determination, the aggregate outstanding principal amount of the Term Loan after giving effect to any prepayments or repayments of the Term Loan occurring on such date.

     “ Parent ” means Barr Pharmaceuticals, Inc., a Delaware corporation.

     “ Participant ” has the meaning specified in Section 10.06(d) .

     “ PBGC ” means the Pension Benefit Guaranty Corporation.

     “ Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Parent or any ERISA Affiliate or to which the Parent or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

     “ Permitted Liens ” means, at any time, Liens in respect of property of the Parent or any of its Subsidiaries permitted to exist at such time pursuant to the terms of Section 7.01 .

     “ Permitted Market Investments ” means any investment that satisfies the Investment Guidelines.

     “ Permitted Transfers ” means (a) Dispositions of inventory and immaterial assets in the ordinary course of business; (b) Dispositions of obsolete or worn-out property and abandoned or obsolete intellectual property in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of business of the Parent and its Subsidiaries that are Disposed of in the ordinary course of business; (c) Dispositions of property to the Parent or any Subsidiary; provided , that if the transferor of such property is a Loan Party the transferee thereof must be a Loan Party; (d) Dispositions of accounts receivable in connection with the collection or compromise thereof; (e) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Parent and its Subsidiaries; (f) the sale or disposition of cash equivalents for fair market value; (g) Dispositions of property pursuant to sale-leaseback transactions; (h) Involuntary Dispositions; (i) Dispositions permitted under Sections 7.04 and 7.05 and Liens permitted under Section 7.01 ; (j) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property; (k) Dispositions made in order to comply with directives or requirements of any regulatory authority; (l) Dispositions contemplated as of the Closing Date and listed on Schedule 1.01 ; and (m) other Dispositions in an aggregate amount not to exceed $10,000,000.

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

     “ Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Parent or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

     “ Platform ” has the meaning specified in Section 6.02 .

     “ Pro Forma Basis ” has the meaning specified in Section 1.03(c) .

     “ Property ” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

     “ Ratings Agencies ” means S&P and Moody’s and “ Ratings Agency ” means any one of them.

     “ Register ” has the meaning specified in Section 10.06(c) .

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

     “ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

     “ Required Lenders ” means, at any time, Lenders holding in the aggregate more than 50% of the Term Loan. The outstanding Term Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

     “ Responsible Officer ” means the chief executive officer, president, chief financial officer, controller, treasurer, assistant treasurer, secretary or assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

     “ Restricted Payment ” means, with respect to any Person, any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest issued by such Person, 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 capital stock or other Equity Interest issued by such Person, or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person thereof).

     “ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

     “ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

     “ SPC ” has the meaning specified in Section 10.06(g) .

     “ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent.

     “ Swap Contract ” means any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the

foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement.

     “ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

     “ Synthetic Lease Obligation ” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

     “ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

     “ Term Loan ” has the meaning provided in Section 2.01 .

     “ Term Loan Borrowing ” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period as made by each of the Lenders pursuant to Section 2.01 .

     “ Term Loan Commitment ” means, for each Lender, the commitment of such Lender to make a portion of the Term Loan hereunder; provided that, at any time after funding of the Term Loan, determinations of “Required Lenders” shall be based on the Outstanding Amount.

     “ Term Loan Notice ” means a notice of a Term Loan Borrowing, a conversion of Term Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, in each case pursuant to Section 2.02(a) , which, if in writing, shall be substantially in the form of Exhibit 2.02 .

     “ Type ” means, with respect to a Term Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.

     “ Unfunded Pension Liability ” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

     “ United States ” and “ U.S. ” mean the United States of America.

      Section 1.02 Other Interpretive Provisions .

     With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

     (a) 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, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “ herein ,” “ hereof ” and “ hereunder ,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) 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.

     (b) In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”

     (c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

      Section 1.03 Accounting Terms .

     (a) Generally . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as

in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

     (b) Changes in GAAP . If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that , until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

     (c) Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made under Section 7.02(d) , Section 7.02(p) and Section 7.05 (in each case, a “ Pro Forma Transaction ”) and the financial covenants set forth in Section 7.10 .

     (i) if (A) during the applicable four fiscal quarter period used in making such calculations under Section 7.10 (the “ Measuring Period ”) or (B) in the case of any Pro Forma Transaction calculation, to occur after such applicable Measuring Period (such pro forma calculation to be made as of the last day of the most recent fiscal quarter for which annual or quarterly financial statements shall have been delivered), the Parent or any of its Subsidiaries consummates any Disposition of a Subsidiary, product, product line, business segment or division (x) income statement items (whether positive or negative) attributable to the Subsidiary or Property disposed of shall be excluded as if such Disposition had occurred on the first date of the Measuring Period and (y) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the Measuring Period; and

     (ii) if (A) during the Measuring Period or (B) in the case of any Pro Forma Transaction calculation to occur after such applicable Measuring Period (such pro forma calculation to be made as of the last day of the most recent fiscal quarter for which annual or quarterly financial statements shall have been delivered), the Parent or any of its Subsidiaries consummates any Acquisition (A) income statement items (whether positive or negative) attributable to the Person or Property acquired shall be included as if such Acquisition had occurred as of the first date of the Measuring Period and (B) to the extent not retired in connection with such Acquisition, Indebtedness of the Person or Property acquired shall be deemed to have been incurred as of the first day of the Measuring Period.

     For purposes of determining the Consolidated Leverage Ratio pursuant to any Pro Forma Transaction, “Pro Forma Basis” shall mean that such ratio is calculated (i) by determining the denominator in accordance with this Section 1.03(c) and (ii) by taking into account in the numerator all Indebtedness incurred on the date of the relevant transaction.

      Section 1.04 Rounding .

     Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

      Section 1.05 Times of Day .

     Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

ARTICLE II

TERM LOAN CREDIT FACILITY

      Section 2.01 Term Loan .

     On the Closing Date, each of the Lenders severally agrees to make its portion of a term loan (in the amount of its respective Term Loan Commitment) to the Borrower in a single advance, in an aggregate principal amount of THREE HUNDRED MILLION DOLLARS ($300,000,000) (the “ Term Loan ”). The Term Loan may consist of Base Rate Loans, Eurocurrency Rate Loans or a combination thereof, as the Borrower may request; provided that with respect to a Eurocurrency Rate Loan borrowed on the Closing Date, the Administrative Agent must receive a funding indemnity letter at least three Business Days prior to the requested date of any Term Loan Borrowing in form and substance reasonably acceptable to the Administrative Agent. Amounts repaid or prepaid on the Term Loan may not be reborrowed. The Term Loan Commitments shall terminate upon the initial funding of the Term Loan.

      Section 2.02 Term Loan Borrowings, Conversions and Continuations of Term Loans .

     (a) Each Term Loan Borrowing, conversion of Term Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Term Loan Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in

Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans and (ii) on the requested date of any Term Loan Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Term Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Term Loan Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c) each Term Loan Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Term Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Term Loan Borrowing, a conversion of Term Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Term Loan Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Term Loans to be borrowed, converted or continued, (iv) the Type of Term Loans to be borrowed or to which existing Term Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Term Loan in a Term Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans shall be made as, or converted to Base Rate Loans. Any automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Term Loan Borrowing, a conversion to or continuation of Eurocurrency Rate Loans in any such Term Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

     (b) Following receipt of a Term Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Term Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of a Term Loan Borrowing, each Lender shall make the amount of its Term Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Term Loan Notice.

     Upon satisfaction or waiver of the applicable conditions set forth in Section 4.01 , the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the Administrative Agent (and reasonably acceptable to) the Administrative Agent by the Borrower.

     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan unless the Borrower pays the amount due, if any, under Section 3.05 in

connection therewith. During the existence of a Default, no Term Loans may be requested as, converted to or continued as Eurocurrency Rate Loans without the consent of the Required Lenders.

     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

     (e) After giving effect to all Borrowings, all conversions of Term Loans from one Type to the other, and all continuations of Term Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect with respect to Term Loans.

      Section 2.03 Prepayments.

     (a) Voluntary Prepayments of Term Loans .

     The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay the Term Loan in whole or in part without premium or penalty; provided that (a) such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans, and (ii) on the date of prepayment of Base Rate Loans; (b) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (c) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. To the extent that the Borrower elects to prepay the Term Loan, amounts prepaid under this section shall be applied to the remaining principal installments thereof as the Borrower may elect (or, if the Borrower does not make an election, such prepayments shall be applied ratably to the remaining principal amortization payments). Each such notice shall specify the date and amount of such prepayment and the Type(s) of Term Loans to be prepaid and, if Eurocurrency Loans are to be prepaid, the Interest Period(s) of such Term Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 . Each such prepayment shall be applied to the Term Loans of the Lenders in accordance with their respective Applicable Percentages.

     (b) Mandatory Prepayments of Term Loans .

     (i) Dispositions . After any prepayments required under the Existing Credit Agreement, the Borrower shall prepay the Term Loans as hereafter provided in an aggregate amount equal to 100% of the Net Cash Proceeds of all Dispositions (other than Permitted Transfers) to the extent such Net Cash Proceeds are not reinvested in Eligible Assets within 360 days of the date of such Disposition (or the Borrower has not entered into a binding agreement to reinvest such Net Cash Proceeds with 360 days of the date of such Disposition, so long as such transaction is consummated with 180 days after the date of such binding agreement). Any prepayment pursuant to this clause (i) shall be applied as set forth in clause (ii) below.

     (ii) Application of Mandatory Prepayments . All amounts required to be paid pursuant to this Section 2.03(b) shall be applied to the remaining principal amortization payments as the Borrower may elect (or, if the Borrower does not make an election, such prepayments shall be applied ratably to the remaining principal amortization payments), first to Base Rate Loans and then to Eurocurrency Rate Loans in direct order of Interest Period maturities. All prepayments under this Section 2.03(b) shall be subject to Section 3.05 , but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.

     (iii) Eurocurrency Prepayment Account . If the Borrower is required to make a mandatory prepayment of Eurocurrency Rate Loans under this Section 2.03(b) , so long as no Event of Default exists, the Borrower shall have the right, in lieu of making such prepayment in full, to deposit an amount equal to such mandatory prepayment with the Administrative Agent in a cash collateral account maintained (pursuant to documentation reasonably satisfactory to the Administrative Agent) by and in the sole dominion and control of the Administrative Agent. Any amounts so deposited shall be held by the Administrative Agent as collateral for the prepayment of such Eurocurrency Rate Loans and shall be applied to the prepayment of the applicable Eurocurrency Rate Loans at the end of the current Interest Periods applicable thereto or, sooner, at the election of the Administrative Agent, upon the occurrence of an Event of Default. At the request of the Borrower, amounts so deposited shall be invested by the Administrative Agent in cash equivalents maturing on or prior to the date or dates on which it is anticipated that such amounts will be applied to prepay such Eurocurrency Rate Loans; any interest earned on such cash equivalents will be for the account of the Borrower and the Borrower will deposit with the Administrative Agent the amount of any loss on any such cash equivalents to the extent necessary in order that the amount of the prepayment to be made with the deposited amounts may not be reduced.

      Section 2.04 Repayment of Term Loans .

     The Borrower shall repay the outstanding principal amount of the Term Loan in nineteen (19) consecutive quarterly installments on the dates and in the amounts set forth in the table below (provided, however, if such payment date is not a Business Day, such payment shall be due on the next preceding Business Day) and one (1) installment on the Maturity Date in an amount equal to the aggregate of all Term Loans outstanding on such date; (as such installments may hereafter be adjusted as a result of prepayments made pursuant to Section 2.03 ), unless accelerated sooner pursuant to Section 8.02 :

Payment Dates		Principal Amortization Payment
September 30, 2008		$	7,500,000
December 31, 2008		$	7,500,000
March 31, 2009		$	7,500,000
June 30, 2009		$	7,500,000
September 30, 2009		$	7,500,000
December 31, 2009		$	7,500,000
March 31, 2010		$	7,500,000
June 30, 2010		$	7,500,000
September 30, 2010		$	7,500,000
December 31, 2010		$	7,500,000
March 31, 2011		$	7,500,000
June 30, 2011		$	7,500,000
September 30, 2011		$	7,500,000
December 31, 2011		$	7,500,000
March 31, 2012		$	7,500,000
June 30, 2012		$	7,500,000
September 30, 2012		$	7,500,000
December 31, 2012		$	7,500,000
March 31, 2013		$	7,500,000
Maturity Date		$157,500,000 or the remaining outstanding principal amount of the Term Loan

      Section 2.05 Interest .

     (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

     (i) If any amount of principal of any Term Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest until paid at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

     (ii) If any amount (other than principal of any Term Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest until paid at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

     (iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

     (b) Interest on each Term Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

      Section 2.06 Fees .

     The Borrower shall pay to the Administrative Agent for its own account the fee referred to in Section 4 of the Fee Letter in the amount and at the times specified therein. Such fee shall be fully earned when paid and shall not be refundable for any reason whatsoever.

      Section 2.07 Computation of Interest and Fees; Adjustments of Applicable Rate .

     (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Term Loan for the day on which the Term Loan is made, and shall not accrue on a Term Loan, or any portion thereof, for the day on which the Term Loan or such portion is paid, provided that any Term Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a) , bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

     (b) If, as a result of any restatement of or other adjustment to the financial statements of the Parent or for any other reason, the Borrower or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated by the Parent as of any applicable date was incorrect and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher

pricing for such period, the Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders, within five Business Days following demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent or any Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period; provided , that the failure to have paid such amount at the time it would have been due had the calculation been correct shall not constitute a Default or Event of Default under Section 8.01(a) to the extent that such amount is paid by the Borrower within five Business Days following demand by the Administrative Agent. This paragraph shall not limit the rights of the Administrative Agent or any Lender, as the case may be, under Section 2.05 or under Article VIII . The Borrower’s obligations under this paragraph shall survive the termination of the Term Loan Commitments and the repayment of all other Obligations hereunder.

      Section 2.08 Evidence of Debt .

     The Term Loan Borrowings made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Term Loan Borrowings made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Term Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Term Loans and payments with respect thereto.

      Section 2.09 Payments Generally; Administrative Agent’s Clawback .

     (a) General . All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received

by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

     (b) (i) Funding by Lenders; Presumption by Administrative Agent . Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Term Loan Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Term Loan Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the Term Loan Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Term Loan Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Term Loan included in such Term Loan Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

     (ii) Payments by Borrower; Presumptions by Administrative Agent . Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Federal Funds Rate.

     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

     (c) Failure to Satisfy Conditions Precedent . If any Lender makes available to the Administrative Agent funds for any Term Loan to be made by such Lender as provided in the foregoing provisions of this Article II , and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Term Loan Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

     (d) Obligations of Lenders Several . The obligations of the Lenders hereunder to make Term Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Term Loan or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Term Loan, to purchase its participation or to make its payment under Section 10.04(c) .

     (e) Funding Source . Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Term Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Term Loan in any particular place or manner.

      Section 2.10 Sharing of Payments by Lenders .

     If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Term Loans made by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Term Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Term Loans of the other Lenders, or make such other adjustments as shall be equitable, 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 Term Loans and other amounts owing them, provided that:

     (i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

     (ii) the provisions of this Section shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).

     Each Loan Party 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 Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

      Section 3.01 Taxes .

     (a) Payments Free of Taxes . Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if the Borrower shall be required by applicable law to deduct any Indemnified Taxes (including any 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 or Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

     (b) Payment of Other Taxes by the Borrower . Without limiting the provisions of subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

     (c) Indemnification by the Borrower . The Borrower shall indemnify the Administrative Agent and each Lender within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent or such Lender, as the case may be, in connection with a Loan Document 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 Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

     (d) Evidence of Payments . As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the 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) Status of Lenders . Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or pursuant to any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.

     Without limiting the generality of the foregoing, any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

     (i) duly completed copies of Internal Revenue Service Form W-8BEN (or any subsequent versions thereof or successors thereto) claiming eligibility for benefits of an income tax treaty to which the United States is a party,

     (ii) duly completed copies of Internal Revenue Service Form W-8ECI (or any subsequent versions thereof or successors thereto),

     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3) (A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN (or any subsequent versions thereof or successors thereto), or

     (iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made.

     Without limiting the obligations of the Lenders set forth above regarding delivery of certain forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each Lender agrees promptly to deliver to the Administrative Agent or the Borrower, as the Administrative Agent or the Borrower shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such other documents and forms required by any relevant taxing authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender, as are required under such Laws to confirm such Lender’s entitlement to any available exemption from, or reduction of, applicable withholding taxes in respect of all payments to be made to s