Amendment To The Credit Agreement

Contract



EXECUTION VERSION

AMENDMENT No. 1, dated as of July 12, 2016 (this “Amendment”), to the Credit Agreement, dated as of June 18, 2015, by and among Jazz Pharmaceuticals Public Limited Company, a public limited company organized under the laws of Ireland (“Parent”), Jazz Securities Limited, a Section 110 company incorporated under the laws of Ireland (the “Lead Borrower”), Jazz Pharmaceuticals, Inc., a Delaware corporation (the “U.S. Borrower”), Jazz Financing I Limited, a company incorporated under the laws of Ireland (“Jazz Financing I”), Jazz Pharmaceuticals Ireland Limited, a company incorporated under the laws of Ireland (together with the Lead Borrower and Jazz Financing I, the “Irish Borrowers” and, together with the U.S. Borrower, the “Borrowers” and each, a “Borrower”), the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent (the “Administrative Agent”), Collateral Agent, Swing Line Lender and L/C Issuer (as amended, restated, modified and supplemented prior to the date hereof, the “Original Credit Agreement”); capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement (as defined below).
WHEREAS, Parent intends to directly or indirectly acquire (the “Celator Acquisition”) all of the common stock of Celator Pharmaceuticals, Inc., a Delaware corporation (“Celator”), in a cash tender offer followed by a merger pursuant to the Agreement and Plan of Merger, dated as of May 27, 2016, among Parent, Celator and Plex Merger Sub, Inc., an indirect wholly-owned subsidiary of Parent (“Plex Merger Sub”) (including the schedules and exhibits thereto, the “Celator Merger Agreement”);
WHEREAS, Parent desires to establish an Incremental Revolving Increase with Incremental Revolving Commitments in an aggregate principal amount of $500,000,000 (the “New Revolving Commitments”);
WHEREAS, this Amendment shall be considered an Increase Joinder pursuant to Section 2.15(c) of the Original Credit Agreement;
WHEREAS, Section 2.15(c) of the Original Credit Agreement provides that an Increase Joinder may, without the consent of any other Lenders, effect such amendments to the Original Credit Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of Section 2.15 of the Original Credit Agreement;
WHEREAS, in addition to the foregoing, the Parent desires to amend the Original Credit Agreement to effect the amendments set forth herein;
WHEREAS, the Lender identified on Schedule I hereto (which shall have executed and delivered a signature page as set forth in Annex I hereto) (the “Incremental Revolving Lender”) has agreed to provide New Revolving Commitments in the amount set forth opposite such Lender’s name on Schedule I hereto under the column “New Revolving Commitments” and consents to the amendments reflected in this Amendment; and
WHEREAS, each other Lender that has executed this Amendment (as set forth in Annex II hereto) consents to the other amendments reflected in this Amendment.




-2-

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1.    Amendments/Waivers.
(a)The Original Credit Agreement is, effective as of the Amendment No. 1 Effective Date, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Original Credit Agreement attached as Exhibit A hereto (the Original Credit Agreement, as so amended, being referred to as the “Amended Credit Agreement”).
(b)Effective as of the Amendment No. 1 Effective Date, a new Schedule 5.10(a) is added in the form of Schedule IV hereto.
(c)Each of Schedule 2.01 and Schedule 5.06 to the Original Credit Agreement is, effective as of the Amendment No. 1 Effective Date, hereby amended and replaced in its entirety by Schedule II and Schedule III hereto.
Section 2.    Incremental Revolving Commitments.
(a)The Incremental Revolving Lender hereby agrees to provide New Revolving Commitments in the amount set forth opposite such Lender’s name on Schedule I hereto under the column “New Revolving Commitments”.
(b)The Incremental Revolving Lender (i) confirms that it has received a copy of each of the Loan Documents and the exhibits thereto, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and provide the New Revolving Commitments; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents; (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent or the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as an Incremental Revolving Lender.
Section 3.    Rebalancing. Notwithstanding the provisions of the last sentence of Section 2.15(d) of the Original Credit Agreement or any other provisions of the Loan Documents, the Lead Borrower shall not be required to prepay any Loans on the Amendment No. 1 Effective Date as a result of this Amendment and, on the Amendment No. 1 Effective Date, each




-3-

of the Lenders agrees to assign certain of its Term Loans or Revolving Commitments and Revolving Loans, as applicable, to other Lenders in order to effectuate the allocations set forth on Schedule II hereto (the “Rebalancing”), and the Borrowers hereby consent to any such assignments in connection with the Rebalancing. The Administrative Agent is hereby authorized to take all actions as may be reasonably necessary to effectuate the Rebalancing and the Administrative Agent is hereby authorized to mark the Register accordingly. Notwithstanding anything in the Loan Documents to the contrary, no Loan Party shall have any liability for any additional amounts required pursuant to Section 3.05 in connection with any Rebalancing to the extent such additional amounts are owed to a Lender that delivers an executed signature page hereto.
Section 4.    Representations and Warranties, No Default. In order to induce the Lenders to enter into this Amendment, to commit to the New Revolving Commitments and to amend the Original Credit Agreement in the manner provided herein, the Loan Parties represent and warrant to each Lender that:
(a)After giving effect to this Amendment, the representations and warranties of the Loan Parties contained in Article V of the Amended Credit Agreement and in any other Loan Document, or which are contained in any Compliance Certificate furnished at any time under or in connection therewith, are (i) in the case of representations and warranties qualified by “materiality,” “Material Adverse Effect” or similar language, true and correct in all respects and (ii) in the case of all other representations and warranties, true and correct in all material respects, in each case on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct on the basis set forth above as of such earlier date; the representations and warranties contained in subsection (b) of Section 5.05 of the Amended Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Original Credit Agreement; and
(b)At the time of and immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
Section 5.    Effectiveness. Section 1 of this Amendment shall become effective on the date (such date, if any, the “Amendment No. 1 Effective Date”) that the following conditions have been satisfied:
(a)Consents. The Administrative Agent shall have received executed signature pages hereto from (i) Lenders constituting the Required Lenders under the Original Credit Agreement, (ii) each Lender (after giving effect to any assignments from Non-Consenting Lenders), (iii) the Incremental Revolving Lender and (iv) each of the Loan Parties.
(b)Notice of Borrowing. The Administrative Agent shall have received a duly completed Notice of Borrowing for any Revolving Loans to be borrowed on the Amendment No. 1 Effective Date.




-4-

(c)Celator Acquisition. The Celator Acquisition shall have been consummated or shall be consummated not later than substantially concurrently with the Amendment No. 1 Effective Date in accordance with the terms of the Celator Merger Agreement, but without giving effect to any amendment, modification or waiver of any term of the Celator Merger Agreement or any condition to Parent’s or Plex Merger Sub’s obligation to consummate the Celator Acquisition thereunder (other than any such amendment, modification or waiver that is not materially adverse to any interest of the Lenders) except with the prior written consent of the Amendment No. 1 Arrangers (it being understood that any reduction in the price that is less than or equal to 10% of the total consideration set forth in the Celator Merger Agreement as of May 27, 2016 will not be deemed to be materially adverse to the interests of the Lenders and will not require the prior written consent of the Amendment No. 1 Arrangers).
(d)No Material Adverse Effect. Since December 31, 2015, there shall not have been any Company Material Adverse Effect (as defined in the Celator Merger Agreement as of May 27, 2016). Since December 31, 2015, there shall not have occurred any change, event, circumstance or occurrence that, individually or in the aggregate, has or would reasonably be expected to have a material adverse effect on the business, property, results of operations, or financial condition of Parent and its subsidiaries, taken as a whole (after taking into account any applicable insurance and any applicable indemnification (to the extent the provider of such insurance or indemnification has the financial ability to support its obligations with respect thereto and is not disputing or refusing to acknowledge the same)).
(e)Fees and Expenses. Parent shall have paid (or caused to be paid) to the Amendment No. 1 Arrangers and the Administrative Agent all fees and expense reimbursements required to be paid to it on the Amendment No. 1 Effective Date as Parent shall have separately agreed in writing. In addition, Parent shall have paid (or caused to be paid) to the Administrative Agent, for the account of each Lender that has returned an executed counterpart hereof to the Administrative Agent, a non-refundable upfront fee in such amount as agreed with such Lender (if any).
(f)Legal Opinions. The Administrative Agent shall have received favorable written opinion of (i) Cooley LLP, U.S. counsel to the Loan Parties, (ii) A&L Goodbody, Irish counsel to the Loan Parties, (iii) Arthur Cox, Irish counsel to the Administrative Agent, (iv) Conyers Dill & Pearman Limited, Bermuda counsel to the Loan Parties, (v) Ellul & Co., Gibraltar counsel to the Loan Parties and (vi) Arendt & Medernach, Luxembourg counsel to the Loan Parties, in each case addressed to the Administrative Agent, Collateral Agent, each Lender and each L/C Issuer, dated the Amendment No. 1 Effective Date, in form reasonably satisfactory to the Administrative Agent; provided that to the extent any of the above referenced opinions are to be delivered in conjunction with foreign security documents required to be delivered under clause (i)(7) below and any such foreign security document is delivered post-closing under the terms of the last paragraph of this Section 5 then the applicable opinion may also be delivered post-closing.
(g)Officer’s Certificate. The Administrative Agent shall have received a certificate, dated the Amendment No. 1 Effective Date and signed by a Responsible Officer of Parent on behalf of each Loan Party, confirming compliance with the conditions precedent set




-5-

forth in clauses (c), (d), (l) and (n) of this Section 5 and demonstrating compliance with the conditions set forth in Section 2.15 of the Original Credit Agreement (and setting forth the pro forma calculations of the Secured Leverage Ratio and Interest Coverage Ratio).
(h)Organization Documents. After giving effect to the transactions contemplated hereby (including the Celator Acquisition), the Administrative Agent shall have received: (i) a copy of the Organization Documents, including all amendments thereto, of each Loan Party (including Celator and each of its Subsidiaries that are not Excluded Subsidiaries (collectively, the “Celator Guarantors”)), certified as of a recent date by the Secretary of State or other applicable Governmental Authority of its respective jurisdiction of organization to the extent applicable; (ii) a certificate as to the good standing (or comparable status) of each Loan Party (including each Celator Guarantor) from such Secretary of State or other applicable Governmental Authority of its respective jurisdiction of organization, as of a recent date; provided that to the extent a certificate of good standing (or comparable status) is not applicable in the jurisdiction of any Loan Party that is a Foreign Subsidiary, such Loan Party shall provide an Officer’s Certificate in form and substance reasonably satisfactory to the Administrative Agent; (iii) a certificate of the Secretary or Assistant Secretary or other applicable Responsible Officer of each Loan Party (including each Celator Guarantor) dated the Amendment No. 1 Effective Date and certifying (A) that the Organization Documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing or comparable status from its jurisdiction of organization furnished pursuant to clause (ii) above (to the extent applicable in the relevant Loan Party’s jurisdiction) and remains in full force and effect; (B) that attached thereto is a true and complete copy of the Organization Documents as in effect on the Amendment No. 1 Effective Date and at all times since the date of the resolutions described in clause (C) below or certifying that such Organization Documents have not been amended since such date, (C) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment, joinders to any Loan Documents, and any other documents required to be executed by such Loan Party pursuant to this Section 5 (the “Amendment Documents”) and, in the case of the Borrowers, the borrowings under the Amended Credit Agreement, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and are the only resolutions authorizing the execution, delivery and performance of the Amendment Documents; and (D) as to the incumbency and specimen signature of each Responsible Officer executing any Amendment Document; and (iv) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or other applicable Responsible Officer executing the certificate pursuant to clause (iii) above.
(i)Perfection of Personal Property Security Interests and Pledges; Search Reports. On or prior to the Amendment No. 1 Effective Date, the Collateral Agent shall have received:
(1)a Perfection Certificate executed by each Celator Guarantor;
(2)subject to the final paragraph of this Section 5, appropriate financing statements (Form UCC-1 or such other




-6-

financing statements or similar notices as shall be required by local Law), authorized for filing under the UCC or other applicable local law of each jurisdiction in which the filing of a financing statement or giving of notice may be required, or reasonably requested by the Collateral Agent, to perfect the security interests intended to be created by the Collateral Documents with respect to the Celator Guarantors;
(3)certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, Tax and judgment lien searches or equivalent reports or searches within the United States, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party (including any Celator Guarantor) as debtor and that are filed in those state and county jurisdictions in which the U.S. Borrower or any Domestic Guarantor (including any Celator Guarantor that is a Domestic Guarantor) is organized or maintains its principal place of business and such other searches within the United States that are required by the Perfection Certificate or that the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens);
(4)subject to the final paragraph of this Section 5, all of the Pledged Collateral in or held by any Celator Guarantor, which Pledged Collateral shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance reasonably satisfactory to the Collateral Agent;
(5)satisfactory up to date searches on the Loan Parties incorporated in Ireland and evidence that all acts appearing thereon which the Lenders require to be discharged have been fully discharged to the satisfaction of the Collateral Agent together with satisfactory priority searches in the Property Registration Authority of Ireland in respect of Mortgaged Property located in Ireland (if any);
(6)all other filings and recordings of or with respect to the Collateral Documents and of all other actions in each case to the extent required by such Collateral Documents; and
(7)duly executed counterparts from each party thereto of each of the documents set forth on Schedule V hereto.    
(j)Accession Agreement and Joinder to Collateral Agreements. The Administrative Agent shall have received (i) executed signature pages to an Accession Agreement (as defined in the Guaranty Agreement) from the Celator Guarantors and (ii) executed signature pages to a joinder agreement to the U.S. Security Agreement from the Celator Guarantors that are Domestic Guarantors substantially in the form of Exhibit V to the U.S. Security Agreement.




-7-

(k)Solvency Certificate. On or prior to the Amendment No. 1 Effective Date, Parent shall have delivered or caused to be delivered to the Administrative Agent a solvency certificate from a Responsible Officer or chief accounting officer of Parent, substantially in the form of Exhibit K to the Original Credit Agreement, setting forth the conclusions that, after giving effect to the consummation of the transactions contemplated herein, Parent and its Subsidiaries (on a consolidated basis) are Solvent.
(l)Representations and Warranties. On the Amendment No. 1 Effective Date, the representations and warranties set forth in Section 4(a) above shall be true and correct on the basis set forth therein.
(m)PATRIOT Act. The Administrative Agent and the Amendment No. 1 Arrangers shall have received at least three business days prior to the Amendment No. 1 Effective Date, all documentation and other information about the Borrowers and the Guarantors (including the Celator Guarantors) as required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent reasonably requested by any Lender to the Administrative Agent or any Amendment No. 1 Arranger and conveyed by the Administrative Agent or any Amendment No. 1 Arranger, as applicable, to the Lead Borrower in writing at least 10 days prior to the Amendment No. 1 Effective Date.
(n)No Default. No Default or Event of Default shall exist or would result from the proposed Credit Extensions on the Amendment No. 1 Effective Date or from the application of the proceeds thereof.
(o)Compliance with Financial Covenants. After giving effect to the transactions contemplated hereby, Parent shall be in compliance with the covenants set forth in Section 7.10 of the Original Credit Agreement on a pro forma basis in accordance with Sections 1.03(c) of the Original Credit Agreement.
Without limiting the generality of the provisions of Section 9.04 of the Original Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 5, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, or waived each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Amendment No. 1 Effective Date specifying its objection thereto.
Notwithstanding anything in this Amendment to the contrary it is understood that, (x) to the extent any Celator Guarantor does not become a Guarantor on or prior to the Amendment No. 1 Effective Date, the provision of any agreements, documents, certificates or opinions relating to such Celator Guarantor (other than delivery of the Pledged Collateral relating to the Equity Interests in Celator) provided for in this Section 5 will not constitute a condition precedent to the effectiveness of the Amendment and the availability of the Facilities under the Amended Credit Agreement on the Amendment No. 1 Effective Date (it being understood that (1) the Borrowers and Parent agree to provide such agreements, documents, certificates or opin-




-8-

ions within the time periods provided therefor in Section 6.09 of the Amended Credit Agreement to the extent required thereby and (2) Celator shall be required to become a Guarantor within the time period provided therefor in Section 6.09 of the Amended Credit Agreement, regardless of whether or not it constitutes a Material Subsidiary) and (y) to the extent any documents set forth on Schedule V hereto, are not provided on the Amendment No. 1 Effective Date after Parent’s and the Borrowers’ use of commercially reasonable efforts to do so, the provision of such documents will not constitute a condition precedent to the Amendment and the availability of the Facilities under the Amended Credit Agreement on the Amendment No. 1 Effective Date, but the Borrowers and Parent agree to provide such documents no later than 90 days after the Amendment No. 1 Effective Date (subject to extension by the Administrative Agent in its reasonable discretion).
Section 6.    Post-Closing Collateral Matters. The Loan Parties shall execute and deliver the documents and complete the tasks set forth on Schedule VI hereto, in each case within the time limits specified on such schedule subject to the extension by the Administrative Agent in its sole discretion.
Section 7.    Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 8.    Applicable Law. THIS AMENDMENT AND THE OTHER AMENDMENT DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER AMENDMENT DOCUMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL (EXCEPT, AS TO ANY OTHER AMENDMENT DOCUMENT, AS EXPRESSLY SET FORTH THEREIN), BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT EACH OF (A) THE INTERPRETATION OF THE DEFINITION OF COMPANY MATERIAL ADVERSE EFFECT AND WHETHER THERE SHALL HAVE OCCURRED A COMPANY MATERIAL ADVERSE EFFECT AND (B) WHETHER THE CELATOR ACQUISITION SHALL HAVE BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE CELATOR MERGER AGREEMENT, IN EACH CASE, SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE TO THE EXTENT THAT THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.




-9-

Section 9.    Headings. Section and Subsection headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose or be given any substantive effect.
Section 10.    Effect of Amendment. Except as expressly set forth herein, (i) this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or any other Agent, in each case under the Original Credit Agreement or any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Original Credit Agreement or any other provision of either such agreement or any other Loan Document. Each and every term, condition, obligation, covenant and agreement contained in the Amended Credit Agreement or any other Loan Document is hereby ratified and re-affirmed in all respects and shall continue in full force and effect. Each Loan Party reaffirms its obligations under the Loan Documents to which it is party and the validity of the guarantees and Liens granted by it pursuant to the Collateral Documents. This Amendment shall constitute a Loan Document for purposes of the Amended Credit Agreement and, from and after the Amendment No. 1 Effective Date, (x) all references to the Original Credit Agreement or Amended Credit Agreement in any Loan Document and all references in the Original Credit Agreement or Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Original Credit Agreement, shall, unless expressly provided otherwise, refer to the Amended Credit Agreement and (y) all references to any other Loan Document amended hereby in any Loan Document and all references in such Loan Document to “this Agreement”, “hereunder”, “hereof” or words of like import referring to such Loan Document, shall, unless expressly provided otherwise, refer to such Loan Document as amended by this Amendment. Each of the Loan Parties hereby (i) consents to this Amendment, (ii) confirms that all obligations of such Loan Party under the Loan Documents to which such Loan Party is a party shall continue to apply to the Amended Credit Agreement and (iii) agrees that all security interests granted by it pursuant to any Loan Document shall secure the Senior Credit Obligations under the Amended Credit Agreement and the other Loan Documents.
Section 11.    Submission to Jurisdiction; Waivers. Each of the parties hereto hereby irrevocably and unconditionally:
(a)(i) submits for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York sitting in New York County, and any appellate court from any thereof , in any action or proceeding arising out of or relating to this Amendment or any other Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable Law, in such Federal court; and (ii) agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.




-10-

(b)waives, to the fullest extent permitted by applicable Laws, (i) any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Amendment or any other Loan Document in any court referred to in Section 11(a), and (ii) the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court;
(c)consents to service of process in any action or proceeding arising out of or relating to any Loan Document, in the manner provided for notices (other than telecopier) in Section 10.02 of the Amended Credit Agreement; and
(d)agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction.
[The remainder of this page is intentionally left blank]





IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
 
 
 
 
 
 
Borrower
 
 
 
 
 
 
 
 
By:
/s/ Matthew P. Young
 
 
 
 
Name: Matthew P. Young
 
 
 
 
Title: Chief Financial Officer
 
 
 
 
 
SIGNED for and on behalf of
 
 
/s/ Shawn Mindus
JAZZ PHARMACEUTICALS PUBLIC
 
 
Shawn Mindus
LIMITED COMPANY
 
 
Company Secretary
in the presence of:
 
 
 
 
 
 
 
 
/s/ Adrienne Lonergan
 
 
 
 
(Witness’ Signature)
 
 
 
 
 
 
 
 
 
/s/ Adrienne Lonergan
 
 
 
 
(Witness’ Name)
 
 
 
 
 
 
 
 
 
/s/ Connaught House
 
 
 
 
(Witness’ Address)
 
 
 
 
 
 
 
 
 
/s/ Chartered Secretary
 
 
 
 
(Witness’ Occupation)
 
 
 
 
 
 
 
 
 
SIGNED for and on behalf of
 
 
/s/ Bridget O’ Brien
JAZZ SECURITIES LIMITED
 
 
Bridget O’Brien
 
 
 
 
Director
in the presence of:
 
 
 
 
 
 
 
 
 
/s/ Adrienne Lonergan
 
 
 
 
(Witness’ Signature)
 
 
 
 
 
 
 
 
 
/s/ Adrienne Lonergan
 
 
 
 
(Witness’ Name)
 
 
 
 
 
 
 
 
 
/s/ Connaught House
 
 
 
 
(Witness’ Address)
 
 
 
 
 
 
 
 
 
/s/ Chartered Secretary
 
 
 
 
(Witness’ Occupation)
 
 
 
 

[Signature Page to Amendment]


 
 
 
 
 
SIGNED for and on behalf of
 
 
/s/ Bridget O'Brien
JAZZ PHARMACEUTICALS
 
 
Bridget O'Brien
IRELAND LIMITED
 
 
Director
 
 
 
 
in the presence of:
 
 
 
 
 
 
 
 
/s/ Adrienne Lonergan
 
 
 
 
(Witness’ Signature)
 
 
 
 
 
 
 
 
 
/s/ Adrienne Lonergan
 
 
 
 
(Witness’ Name)
 
 
 
 
 
 
 
 
 
/s/ Connaught House
 
 
 
 
(Witness’ Address)
 
 
 
 
 
 
 
 
 
/s/ Chartered Secretary
 
 
 
 
(Witness’ Occupation)
 
 
 
 
 
 
 
 
 
SIGNED for and on behalf of
 
 
/s/ Hugh Kiely
JAZZ FINANCING I LIMITED
 
 
Hugh Kiely
 
 
 
 
Director
in the presence of:
 
 
 
 
 
 
 
 
 
/s/ Adrienne Lonergan
 
 
 
 
(Witness’ Signature)
 
 
 
 
 
 
 
 
 
/s/ Adrienne Lonergan
 
 
 
 
(Witness’ Name)
 
 
 
 
 
 
 
 
 
/s/ Connaught House
 
 
 
 
(Witness’ Address)
 
 
 
 
 
 
 
 
 
/s/ Chartered Secretary
 
 
 
 
(Witness’ Occupation)
 
 
 
 

[Signature Page to Amendment]


 
 
 
 
 
GIVEN under the Common Seal of
 
 
{Common Seal}
JAZZ CAPITAL LIMITED
 
 
 
and DELIVERED AS A DEED
 
 
 
in the presence of:
 
 
 
 
 
 
 
 
/s/ Adrienne Lonergan
 
 
 
/s/ Bridget O’Brien
Witness Name
 
 
 
Name: Bridget O’Brien
 
 
 
 
Title: Director
/s/ Adrienne Lonergan
 
 
 
 
Witness Signature
 
 
 
 
 
 
 
 
/s/ Hugh Kiely
/s/ Connaught House
 
 
 
Name: Hugh Kiely
Witness Address
 
 
 
Title: Director
 
 
 
 
 
/s/ Chartered Secretary
 
 
 
 
Witness Occupation
 
 
 
 
 
 
 
 
 
GIVEN under the Common Seal of
 
 
 
JAZZ FINANCING II LIMITED
 
 
 
and DELIVERED AS A DEED
 
 
 
in the presence of:
 
 
 
 
 
 
 
 
 
/s/ Adrienne Lonergan
 
 
 
/s/ Bridget O’Brien
Witness Name
 
 
 
Name: Bridget O’Brien
 
 
 
 
Title: Director
/s/ Adrienne Lonergan
 
 
 
 
Witness Signature
 
 
 
 
 
 
 
 
/s/ Hugh Kiely
/s/ Connaught House
 
 
 
Name: Hugh Kiely
Witness Address
 
 
 
Title: Director
 
 
 
 
 
/s/ Chartered Secretary
 
 
 
 
Witness Occupation
 
 
 
 

[Signature Page to Amendment]


JAZZ INVESTMENTS I LIMITED
 
 
By:
/s/ Hugh Kiely
 
Name: Hugh Kiely
 
Title: Director
 
 
JAZZ INVESTMENTS II LIMITED
 
 
By:
/s/ Hugh Kiely
 
Name: Hugh Kiely
 
Title: Director
 
 
JAZZ PHARMACEUTICALS INTERNATIONAL LIMITED
 
 
By:
/s/ Hugh Kiely
 
Name: Hugh Kiely
 
Title: Director
 
 
JAZZ PHARMACEUTICALS INTERNATIONAL
II LIMITED
 
 
By:
/s/ Hugh Kiely
 
Name: Hugh Kiely
 
Title: Director
 
 
JAZZ PHARMACEUTICALS INTERNATIONAL
III LIMITED
 
 
By:
/s/ Hugh Kiely
 
Name: Hugh Kiely
 
Title: Director

[Signature Page to Amendment]


JAZZ PHARMACEUTICALS EUROPE
HOLDINGS LIMITED
 
 
By:
/s/ Hugh Kiely
 
Name: Hugh Kiely
 
Title: Director
 
 
By:
/s/ Bridget O'Brien
 
Name: Bridget O'Brien
 
Title: Director
 
 
JAZZ PHARMACEUTICALS LUX S.á.R.L.
 
 
By:
/s/ Patricia Carr
 
Name: Patricia Carr
 
Title: Manager
 
 
5, rue Guillaume Kroll
L – 1882 Luxembourg
Company No: B130062
Tax ID: 2007 2434 499
Share capital: EUR 59,713,225
 
 
 
 
JAZZ FINANCING LUX S.á.R.L.
 
 
By:
/s/ Patricia Carr
 
Name: Patricia Carr
 
Title: Manager
 
 
5, rue Guillaume Kroll
L – 1882 Luxembourg
Company No: B178623
Tax ID: 2013 2428 906
Share capital: USD 25,000

[Signature Page to Amendment]


JAZZ PHARMACEUTICALS HOLDINGS INC.
 
 
By:
/s/ Matthew P. Young
 
Name: Matthew P. Young
 
Title: Treasurer


[Signature Page to Amendment]


BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent
 
 
 
 
By:
/s/ Angela Larkin
 
Name: Angela Larkin
 
Title: Assistant Vice President

[Signature Page to Amendment No. 1]


BANK OF AMERICA, N.A.,
as L/C Issuer and Swing Line Lender
 
 
 
 
By:
/s/ Linda Alto
 
Name: Linda Alto
 
Title: SVP

[Signature Page to Amendment No. 1]


The undersigned evidences its consent to the amendments reflected in this Amendment and agrees to provide the New Revolving Commitments set forth opposite such Lender's name on Schedule I to this Amendment.
BANK OF AMERICA, N.A.,
 
 
By:
/s/ Linda Alto
 
Name: Linda Alto
 
Title: SVP

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
Citibank, N.A.,
 
 
By:
/s/ Blake Gronich
 
Name: Blake Gronich
 
Title: Vice President

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
DNB (UK) Limited
 
 
By:
/s/ Debbie Dyson
 
Name: Debbie Dyson
 
Title: SVP
 
 
By:
/s/ David Hopwood
 
Name: David Hopwood
 
Title: Authorised Signatory

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
JPMORGAN CHASE BANK, N.A.,
 
 
By:
/s/ Alex Rogin
 
Name: Alex Rogin
 
Title: Executive Director

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
 
 
By:
/s/ Scott O'Connell
 
Name: Scott O'Connell
 
Title: Director

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
ROYAL BANK OF CANADA,
 
 
By:
/s/ Scott MacVicar
 
Name: Scott MacVicar
 
Title: Authorized Signatory

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
Sumitomo Mitsui Banking Corporation,
 
 
By:
/s/ David W. Kee
 
Name: David W. Kee
 
Title: Managing Director

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
BARCLAYS BANK PLC,
 
 
By:
/s/ Ronnie Glenn
 
Name: Ronnie Glenn
 
Title: Vice President

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
 
 
By:
/s/ Christopher Day
 
Name: Christopher Day
 
Title: Authorized Signatory
 
 
By:
/s/ Max Wallins
 
Name: Max Wallins
 
Title: Authorized Signatory

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
HSBC Bank plc, (Dublin Branch)
 
 
By:
/s/ Michael Lalor
 
Name: Michael Lalor
 
Title: Head of Corporates
 
 
By:
/s/ Gerry Bradley
 
Name: Gerry Bradley
 
Title: Senior Manager

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
HSBC Bank USA, N.A.
 
 
By:
/s/ Ilene Hernandez
 
Name: Ilene Hernandez
 
Title: Assistant Vice President

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
MORGAN STANLEY BANK, N.A.
 
 
By:
/s/ Michael King
 
Name: Michael King
 
Title: Authorized Signatory

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
SunTrust Bank,
 
 
By:
/s/ Katherine Bass
 
Name: Katherine Bass
 
Title: Director

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
CITIZENS BANK, N.A.
 
 
By:
/s/ R. Scott Haskell
 
Name: R. Scott Haskell
 
Title: Managing Director

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
Associated Bank, NA
 
 
By:
/s/ Karen L. Anillo
 
Name: Karen L. Anillo
 
Title: Senior Vice President and Team Leader

[Signature Page to Amendment No. 1]


The undersigned Lender hereby evidences its consent to the amendments reflected in this Amendment.
Taiwan Cooperative Bank, Ltd., Seattle Branch,
 
 
By:
/s/ Cheng-Pin Chou
 
Name: Cheng-Pin Chou
 
Title: VP & General Manager



[Signature Page to Amendment No. 1]


SCHEDULE I
Incremental Revolving Lender and New Revolving Commitment



Incremental Revolving Lender
New Revolving Commitment

Bank of America, N.A.
$500,000,000.00
Total
$500,000,000.00



SCHEDULE II
Schedule 2.01
Lenders and Commitments
Lender
Term Commitment

Bank of America, N.A.
$
114,016,708.33

Citibank, N.A.
$
58,296,529.97

DNB (UK) Limited
$
58,296,529.97

JPMorgan Chase Bank, N.A.
$
58,296,529.97

Royal Bank of Canada
$
58,296,529.97

Sumitomo Mitsui Banking Corporation
$
58,296,529.97

The Bank of Tokyo-Mitsubishi UFJ, Ltd.
$
58,296,529.97

Barclays Bank PLC
$
41,900,630.91

Credit Suisse AG, Cayman Islands Branch
$
41,900,630.91

HSBC Bank PLC (Dublin Branch)
$
36,093,750.00

HSBC Bank USA, N.A.
$
5,806,880.91

Morgan Stanley Bank, N.A.
$
41,900,630.91

SunTrust Bank
$
41,900,630.91

Taiwan Cooperative Bank, Ltd., Seattle Branch
$
19,427,692.31

Citizens Bank, N.A.
$
18,217,665.62

Associated Bank, National Association
$
10,930,599.37

Total
$
721,875,000.00


Lender
Revolving Commitment

Bank of America, N.A.
$
231,072,555.20

Citibank, N.A.
$
100,946,372.24

DNB (UK) Limited
$
100,946,372.24

JPMorgan Chase Bank, N.A.
$
100,946,372.24

Royal Bank of Canada
$
100,946,372.24

Sumitomo Mitsui Banking Corporation
$
100,946,372.24

The Bank of Tokyo-Mitsubishi UFJ, Ltd.
$
100,946,372.24

Barclays Bank PLC
$
72,555,205.05

Credit Suisse AG, Cayman Islands Branch
$
72,555,205.05

HSBC Bank PLC (Dublin Branch)
$
38,437,500.00

HSBC Bank USA, N.A.
$
34,117,705.05

Morgan Stanley Bank, N.A.
$
72,555,205.05

SunTrust Bank
$
72,555,205.05

Citizens Bank, N.A.
$
31,545,741.32

Associated Bank, National Association
$
18,927,444.79

Total
$
1,250,000,000.00




SCHEDULE III

Schedule 5.06

Litigation

Xyrem ANDA Matters. On October 18, 2010, the U.S. Borrower received a notice of Paragraph IV Patent Certification (“Paragraph IV Certification”), from Roxane Laboratories, Inc. (“Roxane”), that it had submitted an abbreviated new drug application (“ANDA”) to the U.S. Food and Drug Administration (“FDA”), requesting approval to market a generic version of Xyrem. Roxane’s initial notice alleged that all five patents then listed for Xyrem in the FDA’s publication “Approved Drug Products with Therapeutic Equivalence Evaluations” (“Orange Book”) on the date of the notice are invalid, unenforceable or not infringed by Roxane’s proposed generic product. On November 22, 2010, the U.S. Borrower filed a lawsuit against Roxane in response to Roxane’s initial notice in the U.S. District Court for the District of New Jersey (“District Court”) seeking a permanent injunction to prevent Roxane from introducing a generic version of Xyrem that would infringe the U.S. Borrower’s patents. In accordance with the Drug Price Competition and Patent Term Restoration Act of 1984 (“Hatch-Waxman Act”) as a result of the U.S. Borrower’s having filed a timely lawsuit against Roxane, FDA approval of Roxane’s ANDA was stayed for 30 months, or until April 2013. That stay has expired. Additional patents covering Xyrem have been issued since December 2010, and after receiving Paragraph IV Certification notices from Roxane with respect to those patents, the U.S. Borrower filed additional lawsuits against Roxane to include these additional patents in the litigation. All of the lawsuits filed against Roxane between 2010 and 2012 have been consolidated by the District Court into a single case (the “First Roxane Consolidated Case”). In the First Roxane Consolidated Case, the U.S. Borrower alleges that 10 of the U.S. Borrower’s patents covering Xyrem are or will be infringed by Roxane’s ANDA and seeks a permanent injunction to prevent Roxane from launching a generic version of Xyrem that would infringe these patents.
After receiving additional Paragraph IV Certification notices from Roxane, the U.S. Borrower filed three actions against Roxane in the District Court on February 20, 2015, June 1, 2015 and January 27, 2016 that have since been consolidated (the “Second Roxane Consolidated Case”). In the Second Roxane Consolidated Case, the U.S. Borrower alleges that five of the U.S. Borrower’s patents covering Xyrem are or will be infringed by Roxane’s ANDA and seeks a permanent injunction to prevent Roxane from introducing a generic version of Xyrem that would infringe those patents.
In December 2013, the District Court permitted Roxane to amend its answer in the First Roxane Consolidated Case to allege certain equitable defenses, and the parties were given additional time for discovery on those new defenses. In addition, in March 2014, the District Court granted the U.S. Borrower’s motion to bifurcate and stay the portion of the First Roxane Consolidated Case regarding patents related to the distribution system for Xyrem.
In April 2015, Roxane moved in the Second Roxane Consolidated Case to dismiss claims involving the U.S. Borrower’s patent covering a part of the Xyrem label that instructs prescribers on adjusting the dose of Xyrem when it is being co-administered with divalproex sodium (also known as valproate or



valproic acid) on the grounds that this patent does not cover patentable subject matter. In October 2015, the District Court administratively terminated this motion to dismiss (without prejudice) pending the outcome of inter partes review (“IPR”) proceedings before the Patent Trial or Appeal Board (“PTAB”) relating to the patent that was the subject of Roxane’s motion. Such IPR proceedings were filed by Par, Ranbaxy and Amneal and are discussed below.
In June 2016, the District Court determined that it would try the patents at issue in the First Roxane Consolidated Case and Second Roxane Consolidated Case together. Although no trial date has been scheduled, the U.S. Borrower anticipates that trial on the patents in the First Roxane Consolidated Case and Second Roxane Consolidated Case could occur as early as the second quarter of 2017.
The actual timing of events in the U.S. Borrower’s litigation with Roxane may be significantly earlier or later than the U.S. Borrower currently anticipate. The U.S. Borrower cannot predict the specific timing or outcome of events in these matters or the impact of these matters on other ongoing proceedings with any ANDA filer.
On December 10, 2012, the U.S. Borrower received notice of Paragraph IV Certification from Amneal Pharmaceuticals, LLC (“Amneal”) that it had submitted an ANDA to the FDA requesting approval to market a generic version of Xyrem. On January 18, 2013, the U.S. Borrower filed a lawsuit against Amneal in the District Court alleging that the U.S. Borrower’s patents covering Xyrem are infringed or will be infringed by Amneal’s ANDA and seeking a permanent injunction to prevent Amneal from introducing a generic version of Xyrem that would infringe these patents. On November 21, 2013, the U.S. Borrower received notice of Paragraph IV Certification from Par Pharmaceutical, Inc. (“Par”) that it had submitted an ANDA to the FDA requesting approval to market a generic version of Xyrem. On December 27, 2013, the U.S. Borrower filed a lawsuit against Par in the District Court alleging that the U.S. Borrower’s patents covering Xyrem are infringed or will be infringed by Par’s ANDA and seeking a permanent injunction to prevent Par from introducing a generic version of Xyrem that would infringe these patents.
In April 2014, Amneal asked the District Court to consolidate its case with the Par case, stating that both cases would proceed on the schedule for the Par case. The District Court granted this request in May 2014. The order consolidating the cases provides that Amneal’s 30-month stay period will be extended to coincide with the date of Par’s 30-month stay period. That stay expired May 20, 2016.
Additional patents covering Xyrem have issued since April 2014 and have been listed in the Orange Book for Xyrem. Amneal and Par have given us additional notices of Paragraph IV Certifications regarding such patents, and the U.S. Borrower has filed additional lawsuits against Amneal and Par in the District Court alleging that the U.S. Borrower’s patents covering Xyrem are infringed or will be infringed by Amneal’s and Par’s ANDAs and seeking a permanent injunction to prevent Amneal and Par from introducing a generic version of Xyrem that will infringe these patents. In March 2016, Par moved to dismiss claims involving the U.S. Borrower’s patents covering a part of the Xyrem label that instructs prescribers on adjusting the dose of Xyrem when it is being co-administered with divalproex sodium (also known as valproate or valproic acid).
On June 4, 2014, the U.S. Borrower received a notice of Paragraph IV Certification from Ranbaxy Laboratories Limited (“Ranbaxy”) that it had submitted an ANDA to the FDA requesting approval to



market a generic version of Xyrem. On July 15, 2014, the U.S. Borrower filed a lawsuit against Ranbaxy in the District Court alleging that the U.S. Borrower’s patents covering Xyrem are infringed or will be infringed by Ranbaxy’s ANDA and seeking a permanent injunction to prevent Ranbaxy from introducing a generic version of Xyrem that will infringe these patents. Since June 2014, the U.S. Borrower has received additional notices of Paragraph IV Certification from Ranbaxy regarding newly issued patents for Xyrem listed in the Orange Book, and the U.S. Borrower has filed additional lawsuits against Ranbaxy in the District Court alleging that the U.S. Borrower’s patents covering Xyrem are infringed or will be infringed by Ranbaxy’s ANDA and seeking a permanent injunction to prevent Ranbaxy from introducing a generic version of Xyrem that will infringe these patents. In May 2016, the Ranbaxy litigation was settled as described below.
On October 30, 2014, the U.S. Borrower received a notice of Paragraph IV Certification from Watson Laboratories, Inc. (“Watson”) that it had submitted an ANDA to the FDA requesting approval to market a generic version of Xyrem. On December 11, 2014, the U.S. Borrower filed a lawsuit against Watson in the District Court alleging that the U.S. Borrower’s patents covering Xyrem are or will be infringed by Watson’s ANDA and seeking a permanent injunction to prevent Watson from introducing a generic version of Xyrem that would infringe these patents. In March 2015, Watson moved to dismiss the portion of the case based on the U.S. Borrower’s Orange Book-listed patents covering the distribution system for Xyrem on the grounds that these patents do not cover patentable subject matter. In November 2015, the District Court administratively terminated this motion to dismiss (without prejudice) pending the outcome of IPR proceedings before the PTAB relating to the patents that were the subject of Watson’s motion. Since March 2015, the U.S. Borrower has received an additional notice of Paragraph IV Certification from Watson regarding newly issued patents for Xyrem listed in the Orange Book, and the U.S. Borrower has filed an additional lawsuit against Watson in the District Court alleging that the U.S. Borrower’s patents covering Xyrem are or will be infringed by Watson’s ANDA and seeking a permanent injunction to prevent Watson from introducing a generic version of Xyrem that would infringe these patents.
In April 2015, the District Court issued an order that consolidated all then-pending lawsuits against Amneal, Par, Ranbaxy and Watson into one case.
On June 8, 2015, the U.S. Borrower received a Paragraph IV Certification from Wockhardt Bio AG (“Wockhardt”) that it had submitted an ANDA to the FDA requesting approval to market a generic version of Xyrem. On July 17, 2015, the U.S. Borrower filed a lawsuit in the District Court alleging that the U.S. Borrower’s patents covering Xyrem were or would be infringed by Wockhardt’s ANDA and seeking a permanent injunction to prevent Wockhardt from introducing a generic version of Xyrem that would infringe the U.S. Borrower’s patents. On November 26, 2015, the U.S. Borrower received an additional notice of Paragraph IV Certification from Wockhardt regarding newly issued patents listed in the Orange Book, and the U.S. Borrower filed an additional lawsuit against Wockhardt in the District Court alleging that the U.S. Borrower’s patents covering Xyrem were or would be infringed by Wockhardt’s ANDA and seeking a permanent injunction to prevent Wockhardt from introducing a generic version of Xyrem that would infringe these patents. In April 2016, the Wockhardt litigation was settled as set forth below.
On July 23, 2015, the U.S. Borrower received a Paragraph IV Certification from Lupin Inc. (“Lupin”) that it had submitted an ANDA to the FDA requesting approval to market a generic version of



Xyrem. On September 2, 2015, the U.S. Borrower filed a lawsuit in the District Court alleging that the U.S. Borrower’s patents covering Xyrem are or will be infringed by Lupin’s ANDA and seeking a permanent injunction to prevent Lupin from introducing a generic version of Xyrem that would infringe the U.S. Borrower’s patents.
In January 2016, the District Court issued an order consolidating all of the cases then pending against Amneal, Par, Ranbaxy, Watson, Wockhardt and Lupin into a single case for all purposes. In April 2016, the District Court issued orders consolidating two cases against Amneal and Ranbaxy relating to later-issued patents with the previously consolidated case against Amneal, Par, Ranbaxy, Watson and Lupin. In June 2016, the District Court issued an order consolidating a case against Watson relating to a later-issued patent with the previously consolidated case against Amneal, Par, Watson, and Lupin.
The U.S. Borrower entered into settlement agreements with Wockhardt and Ranbaxy on April 18, 2016 and May 9, 2016, respectively, that resolved the U.S. Borrower’s patent litigation against Wockhardt and Ranbaxy. Under the settlement agreements, the U.S. Borrower granted each of Wockhardt and Ranbaxy a license to manufacture, market, and sell its generic version of Xyrem on or after December 31, 2025, or earlier depending on the occurrence of certain events. The specific terms of the settlement agreements are confidential.
The settlements with Wockhardt and Ranbaxy do not resolve the litigation against Amneal, Par, Watson and Lupin, which is ongoing. The U.S. Borrower cannot predict the specific timing or outcome of events in this matter with respect to the remaining defendants or the impact of developments involving any specific parties or patents on other ongoing proceedings with any ANDA filer.
Xyrem Post-Grant Patent Review Matters. In January 2015, certain of the ANDA filers filed petitions for IPR with respect to the validity of six patents covering the distribution system for Xyrem. In July 2015, the PTAB issued decisions instituting IPR trials with respect to these petitions, and the U.S. Borrower expect the PTAB to issue final decisions on the validity of the patents in July 2016. In September 2015, certain of the ANDA filers filed a petition for IPR with respect to the validity of an additional patent covering the distribution system for Xyrem. In March 2016, the PTAB issued a decision instituting an IPR trial with respect to three claims of the patent subject to this petition, and the U.S. Borrower expect the PTAB to issue final decisions on the validity of these claims in March 2017. The PTAB denied the petition with respect to the other 25 claims of the patent.
In October 2015, Ranbaxy and Par filed petitions for IPR with respect to the validity of one of the U.S. Borrower’s patents covering a method for prescribing Xyrem when it is being co-administered with divalproex sodium, and Amneal filed an IPR petition on the same patent in February 2016. In April 2016, the PTAB denied Par’s petition in its entirety and issued a decision on Ranbaxy’s petition, instituting an IPR trial with respect to 16 of the claims under the patent subject to this petition and denying the petition with respect to the other 18 claims. The U.S. Borrower expects a decision on the Amneal petition in August 2016. In March 2016, Ranbaxy filed a petition for IPR with respect to the validity of the second of the U.S. Borrower’s patents covering a method for prescribing Xyrem when it is being co-administered with divalproex sodium. In connection with settlement of the U.S. Borrower’s litigation with Ranbaxy in May 2016, the U.S. Borrower filed a joint motion with Ranbaxy to terminate both of the IPR petitions filed by Ranbaxy which the PTAB subsequently granted.



In December 2015, Wockhardt filed a petition for IPR with respect to the validity of one of the U.S. Borrower’s patents covering the formulation of Xyrem. In April 2016, following settlement of the U.S. Borrower’s patent litigation against Wockhardt, the U.S. Borrower and Wockhardt filed a joint motion to terminate the IPR petitions filed or joined by Wockhardt which the PTAB subsequently granted.
The U.S. Borrower cannot predict whether additional post-grant patent review challenges will be filed by any of the ANDA filers or any other entity, the outcome of any IPR or other proceeding, whether the PTAB will institute any petitioned IPR proceeding that has not yet been instituted, or the impact any IPR or other proceeding might have on ongoing ANDA litigation proceedings or other aspects of the U.S. Borrower’s Xyrem business.
From time to time Parent and its Subsidiaries are involved in legal proceedings arising in the ordinary course of business. Parent and its Subsidiaries believe there is no other litigation pending that could have, individually or in the aggregate, a material adverse effect on Parent’s and its Subsidiaries’ consolidated results of operations or financial condition.
Other Matters. In May 2016, the U.S. Borrower received a subpoena from the U.S. Attorney’s Office for the District of Massachusetts requesting documents related to the U.S. Borrower’s support of 501(c)(3) organizations that provide financial assistance to Medicare patients, and, for Xyrem, documents concerning the U.S. Borrower’s provision of financial assistance to Medicare patients. Other companies have disclosed similar inquiries. The U.S. Borrower is cooperating with this subpoena. The U.S. Borrower is unable to predict how long this investigation will continue or its outcome, but the U.S. Borrower expect that the U.S. Borrower will incur significant costs in connection with the investigation, regardless of the outcome.



SCHEDULE IV
Schedule 5.10(a)

Taxes

Certain of Parent’s Subsidiaries are currently under examination by the French tax authorities for fiscal years 2012 and 2013. These examinations may lead to ordinary course adjustments or proposed adjustments to Parent’s taxes. In December 2015, Jazz Pharmaceuticals France SAS received proposed tax assessment notices from the French tax authorities for 2012 and 2013 relating to certain transfer pricing adjustments. The notices propose additional French tax of approximately $43.3 million, including interest and penalties through the date of the assessment, translated at the foreign exchange rate at March 31, 2016. Parent disagrees with the proposed assessment and intends to contest it vigorously.




SCHEDULE V

Ireland Collateral Documents

Deed of Confirmation in respect of the Irish Debenture, as supplemented by Supplemental Deeds dated 25 November 2015 and 17 February 2016 (the “Debenture”), dated 12 July 2016, between the Irish Borrowers, Parent, Jazz Capital Limited, Jazz Financing II Limited and the Collateral Agent
Supplemental Deed (with respect to the shares of Jazz Capital Limited in Jazz Pharmaceuticals Ireland Limited), dated 12 July 2016, between the Irish Borrowers, Parent, Jazz Capital Limited, Jazz Financing II Limited and the Collateral Agent, to the Debenture
Supplemental Deed and Deed of Confirmation (with respect to the shares of Jazz Investments II Limited in Jazz Capital Limited), dated 12 July 2016, between Jazz Investments II Limited and the Collateral Agent, to a Deed of Charge over Shares, dated 18 June 2015, between Jazz Investments II Limited (with respect to shares of Jazz Investments II Limited in Jazz Capital Limited and Jazz Financing I Limited)
Deed of Confirmation in respect of the Deed of Charge over Shares, dated 18 June 2015, between Jazz Financing Lux S.à r.l. and the Collateral Agent (with respect to the shares of Jazz Financing Lux S.à r.l. in Jazz Financing II Limited)



SCHEDULE VI

Post-Closing Collateral Matters


Item
Requirement
Time Limit (or, in each case, such later time as agreed to by the Administrative Agent in its sole discretion)
1.
    
The Administrative Agent shall have received a second ranking financial securities account pledge agreement executed between, inter alios, Jazz Pharmaceuticals Lux S.à r.l. as pledgor and the Collateral Agent
90 days after the Amendment No. 1 Effective Date
2.
    
The Administrative Agent shall have received a statement of pledge relating to the second ranking financial securities account pledge agreement executed between Jazz Pharmaceuticals Lux S.à r.l. as pledgor and the Collateral Agent
90 days after the Amendment No. 1 Effective Date
3.
    
The Administrative Agent shall have received a certificate of pledge over financial securities account relating to the second ranking financial securities account pledge agreement executed by Jazz Pharmaceuticals France Holdings
90 days after the Amendment No. 1 Effective Date
4.
    
The Administrative Agent shall have received a certificate of pledge over special bank account relating to the second ranking financial securities account pledge agreement executed by the special bank account holder
90 days after the Amendment No. 1 Effective Date
5.
    
The Administrative Agent shall have received a favorable written opinion of Hogan Lovells (Paris) LLP, French counsel to the Loan Parties, with respect to the documents listed in items 1 through 4 above.
90 days after the Amendment No. 1 Effective Date
6.
    
The Administrative Agent shall have received the following documents in respect of Jazz Pharmaceuticals France Holdings:
-    a certified copy of its by-laws (statuts);
-    an original k-bis extract and an original solvency certificate (certificat de non faillite) issued by the relevant trade and companies registry (registre du commerce et des sociétés), each dated not more that 30 days before the date of the second ranking financial securities account pledge agreement; and
-    a certified copy of its updated share transfer register (registre des mouvements de titres) and shareholder accounts (comptes d’actionnaires).
90 days after the Amendment No. 1 Effective Date



EXHIBIT A

[Attached]


EXHIBIT A TO AMENDMENT NO. 1

MARKED VERSION REFLECTING CHANGES
PURSUANT TO AMENDMENT NO. 1
ADDED TEXT SHOWN
UNDERSCORED
DELETED TEXT SHOWN STRIKETHROUGH


 
$1,500,000,0001,971,875,000

CREDIT AGREEMENT


dated as of June 18, 2015,

as amended by Amendment No. 1 dated as of July 12, 2016,

among


JAZZ PHARMACEUTICALS PUBLIC LIMITED COMPANY,
as Parent,
JAZZ SECURITIES LIMITED,
as Lead Borrower,
JAZZ PHARMACEUTICALS, INC.,
as U.S. Borrower,
JAZZ PHARMACEUTICALS IRELAND LIMITED,
as an Irish Borrower,
JAZZ FINANCING I LIMITED,
as an Irish Borrower,



THE LENDERS FROM TIME TO TIME PARTY HERETO,


BANK OF AMERICA, N.A.,
as Administrative Agent, Collateral Agent, L/C Issuer and Swing Line Lender,


BARCLAYS BANK PLC,
CITIBANK, N.A.,
DNB (UK) LIMITED,
JPMORGAN CHASE BANK, N.A.,
and ROYAL BANK OF CANADA,
as Co-Syndication Agents,


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
,
HSBC BANK PLC,
MORGAN STANLEY SENIOR FUNDING, INC.,
MUFG UNION BANK, N.A.,
SUMITOMO MITSUI BANKING CORPORATION, NEW YORK BRANCH,
and SUNTRUST BANK,
as Co-Documentation Agents,


and




EXHIBIT A TO AMENDMENT NO. 1

MARKED VERSION REFLECTING CHANGES
PURSUANT TO AMENDMENT NO. 1
ADDED TEXT SHOWN
UNDERSCORED
DELETED TEXT SHOWN STRIKETHROUGH








MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
BARCLAYS BANK PLC,
CITIGROUP GLOBAL MARKETS, INC.,
DNB (UK) LIMITED,
J.P. MORGAN SECURITIES LLC
and RBC CAPITAL MARKETS,
as Joint Lead Arrangers and Joint Bookrunners

CITIBANK, N.A.,
DNB (UK) LIMITED,
JPMORGAN CHASE BANK, N.A.,
ROYAL BANK OF CANADA,
SUMITOMO MITSUI BANKING CORPORATION, NEW YORK BRANCH
and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
as Co-Syndication Agents for Amendment No. 1,


BARCLAYS BANK PLC
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
HSBC BANK PLC,
HSBC BANK USA, N.A.,
MORGAN STANLEY SENIOR FUNDING, INC.
and SUNTRUST BANK,
as Co-Documentation Agents for Amendment No. 1,

and

BANK OF AMERICA, N.A.,
CITIGROUP GLOBAL MARKETS, INC.,
DNB (UK) LIMITED,
J.P. MORGAN SECURITIES LLC,
and RBC CAPITAL MARKETS,
SUMITOMO MITSUI BANKING CORPORATION, NEW YORK BRANCH
and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
as Joint Lead Arrangers and Joint Bookrunners
for Amendment No. 1







Table of Contents
Page

ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS
Section 1.01
Defined Terms
1

Section 1.02
Other Interpretative Provisions
57

59

Section 1.03
Accounting Terms and Determinations
58

60

Section 1.04
Rounding
60

61

Section 1.05
Times of Day; Rates
60

62

Section 1.06
Letter of Credit Amounts
60

62

Section 1.07
Classes and Types of Borrowings
60

62

Section 1.08
Currency Translation
60

62

Section 1.09
Baskets
61

62

Section 1.10
Concerning Liability of Borrowers
61

63


ARTICLE II.

THE CREDIT FACILITIES
Section 2.01
Commitments To Lend
61

63

Section 2.02
Notice of Borrowings
64

66

Section 2.03
Notice to Lenders; Funding of Loans
65

67

Section 2.04
Evidence of Loans
67

69

Section 2.05
Letters of Credit
68

70

Section 2.06
Interest
79

80

Section 2.07
Extension and Conversion
79

81

Section 2.08
Repayment of Loans; Maturity of Loans
81

83

Section 2.09
Prepayments
82

83

Section 2.10
Adjustment of Commitments
84

86

Section 2.11
Fees
85

87

Section 2.12
Pro rata Treatment
86

88

Section 2.13
Sharing of Payments by Lenders
87

88

Section 2.14
Payments Generally; Administrative Agent’s Clawback
87

89

Section 2.15
Increase in Commitments
89

90

Section 2.16
Cash Collateral
91

93

Section 2.17
Defaulting Lenders
92

94

Section 2.18
Refinancing Amendments
94

96

Section 2.19
Discounted Prepayments
95

97


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01
Taxes
101

103

Section 3.02
Illegality
105

107

Section 3.03
Inability To Determine Rates
106

108

Section 3.04
Increased Costs and Reduced Return; Capital Adequacy
107

109



- i -



Page

Section 3.05
Compensation for Losses
108

110

Section 3.06
Base Rate Loans Substituted for Affected Eurodollar Loans
108

110

Section 3.07
Mitigation Obligations; Replacement of Lenders
109

111

Section 3.08
Survival
110

112


ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01
Conditions to Initial Credit Extension
111

113

Section 4.02
Conditions to All Credit Extensions
114

116

ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.01
Existence, Qualification and Power
115

117

Section 5.02
Authorization; No Contravention
115

117

Section 5.03
Governmental Authorization; Other Consents
115

117

Section 5.04
Binding Effect
115

117

Section 5.05
Financial Condition; No Material Adverse Effect
116

118

Section 5.06
Litigation
116

118

Section 5.07
Ownership of Property, Liens
116

118

Section 5.08
Environmental Matters
117

119

Section 5.09
Insurance
117

119

Section 5.10
Taxes
118

120

Section 5.11
ERISA; Foreign Pension Plans; Employee Benefit Arrangements
118

120

Section 5.12
Subsidiaries; Equity Interests
119

121

Section 5.13
Margin Regulations; Investment Company Act
119

121

Section 5.14
Disclosure
120

122

Section 5.15
Compliance with Law
120

122

Section 5.16
Intellectual Property
120

122

Section 5.17
Use of Proceeds
120

122

Section 5.18
Solvency
121

123

Section 5.19
Collateral Documents
121

123

Section 5.20
Senior Indebtedness
123

125

Section 5.21
Anti-Money Laundering and Economic Sanctions Laws
123

125

Section 5.22
Anti-Corruption Laws
124

126

Section 5.23
No Default
125

127

Section 5.24
Labor Relations
125

127

Section 5.25
EEA Financial Institutions
127

ARTICLE VI.
AFFIRMATIVE COVENANTS
Section 6.01
Financial Statements and Other Information
125

127

Section 6.02
Notices of Material Events
126

129

Section 6.03
Existence; Conduct of Business
127

129

Section 6.04
Payment of Obligations
127

129

Section 6.05
Maintenance of Properties; Insurance
127

129



- ii -



Page

Section 6.06
Books and Records; Inspection Rights
127

130

Section 6.07
Compliance with Laws
128

130

Section 6.08
Use of Proceeds
128

130

Section 6.09
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances
128

130

Section 6.10
Designation of Subsidiaries
130

132

Section 6.11
[Reserved]
131

133

Section 6.12
Compliance with Environmental Laws
131

133

Section 6.13
Post-Closing Collateral Matters
131

133


ARTICLE VII.

NEGATIVE COVENANTS
Section 7.01
Indebtedness
131

133

Section 7.02
Liens
133

136

Section 7.03
Fundamental Changes and Asset Sales
136

138

Section 7.04
Investments, Loans, Advances, Guarantees and Acquisitions
138

140

Section 7.05
Transactions with Affiliates
141

143

Section 7.06
Restricted Payments
141

144

Section 7.07
Restrictive Agreements
143

145

Section 7.08
Amendments to Subordinated Indebtedness Documents or Organization Documents; Prepayments of Indebtedness
144

146

Section 7.09
Sale/Leaseback Transactions
144

147

Section 7.10
Financial Covenants
144

147


ARTICLE VIII.

EVENTS OF DEFAULT
Section 8.01
Events of Default
145

147

Section 8.02
Acceleration; Remedies
147

149

Section 8.03
Allocation of Payments After Event of Default
148

150

ARTICLE IX.
AGENCY PROVISIONS
Section 9.01
Appointment and Authority
150

152

Section 9.02
Rights as a Lender
151

153

Section 9.03
Exculpatory Provisions
151

153

Section 9.04
Reliance by Agents
152

155

Section 9.05
Delegation of Duties
153

155

Section 9.06
Indemnification of Agents
153

155

Section 9.07
Resignation of Agents
153

156

Section 9.08
Non-Reliance on Agents and Other Lenders
155

157

Section 9.09
No Other Duties, etc
155

157

Section 9.10
Administrative Agent May File Proofs of Claim; Credit Bidding
155

157

Section 9.11
Collateral and Guaranty Matters
156

159

Section 9.12
Related Obligations
157

160

Section 9.13
Withholding Tax
158

160



- iii -



Page

Section 9.14
Role of the Administrative Agent and Collateral Agent in connection with the
 
 
 
Italian Collateral Documents.  :
158

161


ARTICLE X.

MISCELLANEOUS
Section 10.01
Amendments, etc
159

161

Section 10.02
Notices; Effectiveness; Electronic Communications
162

164

Section 10.03
No Waiver; Cumulative Remedies; Enforcement
165

167

Section 10.04
Expenses; Indemnity; Damage Waiver
166

168

Section 10.05
Payments Set Aside
168

170

Section 10.06
Successors and Assigns
168

171

Section 10.07
Treatment of Certain Information; Confidentiality
173

176

Section 10.08
Right of Setoff
174

177

Section 10.09
Interest Rate Limitation
175

177

Section 10.10
Counterparts; Integration; Effectiveness
175

177

Section 10.11
Survival of Agreement
175

178

Section 10.12
Severability
176

178

Section 10.13
Governing Law; Jurisdiction; Consent to Service of Process
176

178

Section 10.14
PATRIOT Act Notice; Lender’s Compliance Certification
177

179

Section 10.15
No Advisory or Fiduciary Responsibility
177

180

Section 10.16
Judgment Currency
178

181

Section 10.17
Acknowledgment and Consents to Bail-In of EEA Financial Institutions
181



- iv -


Schedules:
Schedule 1.01(A)
 
-
 
Agreed Security Principles
Schedule 1.01(B)
 
-
 
Foreign Collateral Documents
Schedule 1.01(C)
 
-
 
Disqualified Institutions
Schedule 2.01
 
-
 
Lenders and Commitments
Schedule 5.03
 
-
 
Required Consents, Authorizations, Notices and Filings
Schedule 5.05(a)
 
-
 
Financial Statements
Schedule 5.06
 
-
 
Litigation
Schedule 5.09
 
-
 
Insurance
Schedule 5.10(a)
 
-
 
Taxes
Schedule 5.12
 
-
 
Subsidiaries
Schedule 5.15
 
-
 
Compliance with Law
Schedule 5.16
 
-
 
Intellectual Property
Schedule 6.13
 
-
 
Post Closing Obligations
Schedule 7.01
 
-
 
Indebtedness
Schedule 7.02
 
-
 
Existing Liens
Schedule 7.04
 
-
 
Investments
Schedule 7.05
 
-
 
Affiliate Transactions
Schedule 7.07
 
-
 
Existing Restrictions
Schedule 10.02
 
-
 
Administrative Agent’s Office, Certain Addresses for Notices
Exhibits:
Exhibit A-1
 
-
 
Form of Notice of Borrowing
Exhibit A-2
 
-
 
Form of Notice of Extension/Conversion
Exhibit A-3
 
-
 
Form of Letter of Credit Request
Exhibit A-4
 
-
 
Form of Swing Line Loan Request
Exhibit B-1
 
-
 
Form of Revolving Note
Exhibit B-2
 
-
 
Form of Term Note
Exhibit B-3
 
-
 
Form of Swing Line Note
Exhibit C
 
-
 
Form of Assignment and Assumption
Exhibit D
 
-
 
Form of Compliance Certificate
Exhibit E
 
-
 
Form of Guaranty Agreement
Exhibit F-1
 
-
 
Form of United States Tax Compliance Certificate
Exhibit F-2
 
-
 
Form of Irish Lender Tax Certificate
Exhibit G
 
-
 
Form of U.S. Security Agreement
Exhibit H
 
-
 
Form of Intercompany Note
Exhibit I
 
-
 
Form of Intercompany Note Subordination Provisions
Exhibit J
 
-
 
Form of Perfection Certificate
Exhibit K
 
-
 
Form of Solvency Certificate
Exhibit L
 
-
 
Form of Specified Discount Prepayment Notice
Exhibit M
 
-
 
Form of Specified Discount Prepayment Response
Exhibit N
 
-
 
Form of Discount Range Prepayment Notice
Exhibit O
 
-
 
Form of Discount Range Prepayment Offer
Exhibit P
 
-
 
Form of Solicited Discounted Prepayment Notice
Exhibit Q
 
-
 
Form of Solicited Discounted Prepayment Offer
Exhibit R
 
-
 
Form of Acceptance and Prepayment Notice
Exhibit S
 
-
 
Form of Prepayment Notice


- v -


CREDIT AGREEMENT
This Credit Agreement, dated June 18, 2015 (as amended by Amendment No. 1, dated July 12, 2016, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), by and among Jazz Pharmaceuticals Public Limited Company, a public limited company organized under the laws of Ireland (“Parent”), Jazz Securities Limited, a Section 110 company incorporated under the laws of Ireland (the “Lead Borrower”), Jazz Pharmaceuticals, Inc., a Delaware corporation (the “U.S. Borrower”), Jazz Financing I Limited , a company incorporated under the laws of Ireland (“Jazz Financing I”), Jazz Pharmaceuticals Ireland Limited, a company incorporated under the laws of Ireland (“Jazz Ireland”), the Lenders (as hereinafter defined) and Bank of America, N.A., as Administrative Agent, Collateral Agent, Swing Line Lender and L/C Issuer.
PRELIMINARY STATEMENTS:
TheOn the Closing Date, the Lenders provided the Lead Borrower has requested that the Lenders provide a term loan A facility in the aggregate principal amount of $750,000,000 and a revolving credit facility in the aggregate principal amount of $750,000,000,750,000,000.
The Lead Borrower has requested that the Lenders provide Incremental Revolving Commitments in the aggregate principal amount of $500,000,000, and the Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to issue letters of credit, in each caseprovide such Incremental Revolving Commitments, on the terms and subject to the 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 have the meanings set forth below:
Acceptable Discount” has the meaning specified in Section 2.19(d)(ii).
Acceptable Prepayment Amount” has the meaning specified in Section 2.19(d)(iii).
Acceptance and Prepayment Notice” means an irrevocable written notice from Parent or any of its Subsidiaries accepting a Solicited Discounted Prepayment Offer to make a Discounted Term Loan Prepayment at the Acceptable Discount specified therein pursuant to Section 2.19(d) substantially the form of Exhibit R hereto.
Acceptance Date” has the meaning specified in Section 2.19(d)(ii).
Acquisition Consideration” means the sum of the cash purchase price for any Permitted Acquisition payable at or prior to the closing date of such Permitted Acquisition (and which, for the avoidance of doubt, shall not include any purchase price adjustment, royalty, earnout, contingent payment or any other deferred payment of a similar nature) plus the aggregate principal amount of Indebtedness assumed on such date in connection with such Permitted Acquisition.



Additional Agents” has the meaning specified in Section 9.03, each an “Additional Agent” and any two or more “Additional Agents”.
Adjusted Eurodollar Rate” means, for the Interest Period for each Eurodollar Loan comprising part of the same Group, the quotient obtained (expressed as a decimal, carried out to five decimal places) by dividing (i) the applicable Eurodollar Rate for such Interest Period by (ii) 1.00 minus the Eurodollar Reserve Percentage.
Administrative Agent” means Bank of America (through itself or one of its designated Affiliates or branch offices), 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 Lead 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.
Agent” means the Administrative Agent, the Collateral Agent and any successors and assigns in such capacity, and “Agents” means any two or more of them.
Agent Related Persons” means each Agent, together with its Related Parties.
Aggregate Commitments” means at any date the Commitments of all the Lenders.
Agreed Security Principles” means the agreed security principles set forth on Schedule 1.01(A).
Agreement” has the meaning specified in the preamble.
Amendment No. 1” means Amendment No. 1 to this Agreement, dated as of July 12, 2016, by and among Parent, the Borrowers, the Guarantors, the Administrative Agent and the Lenders party thereto.
“Amendment No. 1 Arrangers” means Bank of America, N.A., Citigroup Global Markets, Inc., DNB (UK) Limited, J.P. Morgan Securities LLC, RBC Capital Markets, Sumitomo Mitsui Banking Corporation, New York Branch and The Bank of Tokyo-Mitsubishi UFJ, Ltd., in their respective capacities as joint arranger and joint bookrunner for Amendment No. 1 or any successor thereto.
“Amendment No. 1 Co-Documentation Agent” means each of Barclays Bank PLC, Credit Suisse AG, Cayman Islands Branch, HSBC Bank plc, HSBC Bank USA, N.A., Morgan Stanley Senior Funding, Inc. and SunTrust Bank, in their respective capacities as co-documentation agent for Amendment No. 1.


- 2 -


“Amendment No. 1 Co-Syndication Agent” means each of Citibank, N.A., DNB (UK) Limited, JPMorgan Chase Bank, N.A., Royal Bank of Canada, Sumitomo Mitsui Banking Corporation, New York Branch and The Bank of Tokyo-Mitsubishi UFJ, Ltd., in their respective capacities as co-syndication agent for Amendment No. 1.
“Amendment No. 1 Effective Date” has the meaning specified in Amendment No. 1.
Anti-Money Laundering Laws” means any and all laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules applicable to a Loan Party, its Subsidiaries or Affiliates related to terrorism financing or money laundering, including any applicable provision of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001 (Title III of Pub. L. 107-56) and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
Applicable Commitment Fee Percentage” means a percentage per annum set forth below corresponding to the Secured Leverage Ratio as of the most recent Calculation Date:
Pricing Level
Secured Leverage Ratio
Applicable Commitment Fee Percentage
I
≥ 1.50:1.00
0.35%
II
< 1.50:1.00 and ≥ 0.50:1.00
0.30%
III
< 0.50:1.00
0.25%

Each Applicable Commitment Fee Percentage shall be determined and adjusted quarterly on the date (each, a “Calculation Date”) three Business Days after the earlier of the actual delivery date by which Parent provides, or the required delivery date by which Parent is required to provide, the consolidated financial information required by Section 6.01(a) or (b), as applicable, and the Compliance Certificate required by Section 6.01(c) for the fiscal quarter or year of Parent most recently ended prior to the Calculation Date; provided, however, that the Applicable Commitment Fee Percentage shall be deemed to be (i) (x) in Pricing Level III from the ClosingAmendment No. 1 Effective Date until the first Calculation Date occurring after the first full fiscal quarter of Parent subsequent to the Closing DateSeptember 30, 2016 and (y) in Pricing Level I at any time during the existence of an Event of Default under Sections 8.01(a), (h) or (i) and (ii) if Parent fails to provide the consolidated financial information required by Section 6.01(a) or (b), as applicable, or the Compliance Certificate required by Section 6.01(c) for the most recently ended fiscal quarter or year of Parent preceding any applicable Calculation Date, each Applicable Commitment Fee Percentage from such Calculation Date shall be based on Pricing Level I until such time as such consolidated financial information and an appropriate Officer’s Certificate is provided.


- 3 -


Applicable Margin” means a percentage per annum equal to, for purposes of calculating (A) the applicable interest rate for any day for any Term Loan, Revolving Loan or Swing Line Loan or (B) the applicable rate of the Letter of Credit Fee for any day for purposes of Section 2.11(b)(i), the applicable percentage per annum set forth below corresponding to the Secured Leverage Ratio as of the most recent Calculation Date:
Pricing Level
Secured Leverage Ratio
Letter of Credit Fee and Applicable Margin for Revolving Loans and Term Loans that are Eurodollar Loans
Applicable Margin for Swing Line Loans, Revolving Loans and Term Loans that are Base Rate Loans
I
≥ 2.50:1.00
2.25%
1.25%
II
< 2.50:1.00 and ≥ 1.50.1.00
2.00%
1.00%
III
< 1.50:1.00 and ≥ 0.50:1.00
1.75%
0.75%
IV
< 0.50:1.00
1.50%
0.50%

Each Applicable Margin shall be determined and adjusted quarterly on the date (each a “Calculation Date”) three Business Days after the earlier of the actual delivery date by which Parent provides, or the required delivery date by which Parent is required to provide, the consolidated financial information required by Section 6.01(a) or (b), as applicable, and the Compliance Certificate required by Section 6.01(c) for the fiscal quarter or year of Parent most recently ended prior to the Calculation Date; provided, however, that with respect to (A) any Term Loan, Revolving Loan or Swing Line Loan or (B) the Letter of Credit Fee, the Applicable Margin shall be deemed to be (i) (x) in Pricing Level IIIII from the ClosingAmendment No. 1 Effective Date until the first Calculation Date occurring after the first full fiscal quarter of Parent subsequent to the Closing DateSeptember 30, 2016 and (y) in Pricing Level I at any time during the existence of an Event of Default under Sections 8.01(a), (h) or (i) and (ii) if Parent fails to provide the consolidated financial information required by Section 6.01(a) or (b), as applicable, or the Compliance Certificate required by Section 6.01(c) for the most recently ended fiscal quarter or year of Parent preceding any applicable Calculation Date, each Applicable Margin from such Calculation Date shall be based on Pricing Level I until such time as such consolidated financial information and an appropriate Officer’s Certificate is provided.
In the event that the Administrative Agent and Parent determine in good faith that any financial statement or Compliance Certificate delivered pursuant to Section 6.01 is inaccurate (regardless of whether this Agreement or the Revolving Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected would have led to a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) Parent shall immediately deliver to the Administrative Agent a correct Compliance Certificate for such Applicable Period, (ii) the Applicable Margin shall be determined by reference to the corrected Compliance Certificate (but in no event shall the Lenders owe any amounts to the Borrowers), and (iii) the applicable Borrower shall within three Business Days of demand therefor by the Administrative Agent pay to the Administrative Agent the additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with the terms hereof. This paragraph shall not limit the rights of the Administrative Agent and the Lenders hereunder.


- 4 -


Applicable Percentage” means, with respect to any Lender at any time, the percentage of the Aggregate Commitments represented by the aggregate of such Lender’s Revolving Commitment Percentage and its Term Commitment Percentage at such time, in each case subject to adjustment as provided in Section 2.15 or 2.17; provided that if the Commitments of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, 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 of each Class and for all Classes is set forth opposite the name of such Lender on Schedule 2.01 under the caption “Commitments” of the applicable Class or under the caption “Aggregate Commitment Percentage,” as applicable, or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
Applicable Prepayment” has the meaning specified in Section 2.09(f).
Approved Affiliate” means any Person that is, at the time of determination, exempt from any U.S. federal withholding tax imposed under Section 871, 881, 1441 or 1442 of the Code on U.S. source interest payments, including (A) any United States Person, (B) any Person or foreign branch of such Person, in each case entitled to claim benefits under a tax treaty that eliminates U.S. federal withholding Tax on U.S. source interest payments, (C) a Person entitled to claim exemption from U.S. federal withholding Taxes for income that is effectively connected with a U.S. trade or business, (D) a Person entitled to claim the exemption from U.S. federal withholding tax on U.S. source interest payments pursuant to the portfolio interest exemption under Section 881(c) of the Code, or (E) a Person entitled to claim an exemption from U.S. federal withholding tax on U.S. source interest payments due to its owners satisfying clause (A), (B), (C), or (D) above.
Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arrivo” means Arrivo Bioventures LLC.
“Arrivo Agreement” means that certain Subscription Agreement, dated May 10, 2016, by and among Jazz Financing Lux S.à r.l. and Arrivo, relating to a venture to develop a portfolio of early stage assets similar to JZP-110.
Asset Disposition” means any Disposition (or series of related Dispositions) of any assets (other than Unrestricted Margin Stock) by Parent or any of its Restricted Subsidiaries in respect of which either the fair market value of such property or the Disposition Consideration payable to the Parent or any of its Restricted Subsidiaries exceeds $1,000,000, excluding any Disposition by way of Casualty or Condemnation.
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 or by Affiliated investment advisors.
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/or the definition of “Eligible Assignee”), and accepted by the Administrative Agent, substantially in the form of Exhibit C or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent and the Lead Borrower.


- 5 -


Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by Parent or any of its Subsidiaries (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with a Discounted Term Loan Prepayment pursuant to Section 2.19; provided that neither Parent nor any of its Subsidiaries shall designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent).
Auto-Extension Letter of Credit” has the meaning specified in Section 2.05(c)(iii).
Available Amount” means, at any date, an amount equal to:
(a)the sum of (without duplication):
(i)$385,000,000;
(ii)the Net Cash Proceeds received after the Closing Date and on or prior to such date from any issuance of Qualified Capital Stock by Parent;
(iii)the Net Cash Proceeds received after the Closing Date and on or prior to such date by Parent or any Restricted Subsidiary from the issuance of convertible or exchangeable debt securities that have been converted into or exchanged for Qualified Capital Stock of Parent; and
(iv)Cumulative Excess Cash Flow as of such date; minus
(b)the amount of any usage of such Available Amount pursuant to Section 7.04(w), Section 7.06(i) and Section 7.08(b), in each case prior to such date.
Available Amount Conditions” means, prior to and after giving effect to any usage of the Available Amount, (a) no Default or Event of Default shall have occurred and be continuing and (b) Parent shall be in compliance with the covenants set forth in Section 7.10 on a pro forma basis in accordance with Section 1.03(c) (and, if applicable, Section 1.03(e)) and (c) solely with respect to Restricted Payments made pursuant to Section 7.06(i), the Secured Leverage Ratio, as of the end of the most recently completed Test Period, shall be less than or equal to 2.50 to 1.0 on a pro forma basis in accordance with Section 1.03(c).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Bank of America” means Bank of America, N.A. and its successors.
Bankruptcy Code” means Title 11 of the United States Code, as now and hereafter in effect, or any successor statute.


- 6 -


Bankruptcy Law” means the Bankruptcy Code and all other liquidation, receivership, moratorium, conservatorship, assignment for the benefit of creditors, insolvency, examinership or similar federal, state or foreign law for the relief of debtors.
Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1% (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”, and (c) the Eurodollar Rate plus 1.00%; and if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. 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 Loan that bears interest based on the Base Rate.
Bermuda Share Charges” means charges granted by the Parent and Jazz Ireland of their equity interests in the relevant Foreign Subsidiaries in favor of the Collateral Agent for the benefit of the Finance Parties, which charges shall be in form and substance reasonably satisfactory to the Administrative Agent.
Board of Directors” means, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person (or any committee or subcommittee thereof), (ii) in the case of any limited liability company, the board of managers (or any committee or subcommittee thereof) or managing member of such Person, (iii) in the case of any partnership, the board of directors of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.
Borrower Materials” has the meaning specified in Section 10.02(d).
Borrowers” means the Lead Borrower, the U.S. Borrower and the Irish Borrowers collectively (unless the context otherwise requires that such term shall apply only to the Lead Borrower).
Borrowing” has the meaning specified in Section 1.07.
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, (x) the state where the Administrative Agent’s Office is located and (y) if such day relates to the payment of any obligation or the performance of any covenant, duty or obligation of any Irish Borrower, Ireland, except that (i) when used in Section 2.05 with respect to any action taken by or with respect to any L/C Issuer, the term “Business Day” shall not include any day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the jurisdiction where such L/C Issuer’s Lending Office is located and (ii) when used in connection with a Eurodollar Loan, the term “Business Day” means any such day that is also a day on which dealings in Dollar deposits are conducted by and between banks in the London interbank market.
Capital Lease” of any Person means any lease of (or other arrangement conveying the right to use) property (whether real, personal or mixed) by such Person as lessee which would, in accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of such Person; provided that any lease or other arrangement that, under GAAP as in effect on the Closing Date, would not be required to be accounted for as a capital lease shall not constitute a “Capital Lease” hereunder.


- 7 -


Capital Lease Obligations” means, with respect to any Person, all obligations of such Person as lessee under Capital Leases, which, as of any time of determination, shall be equal to the amount of liability under such Capital Leases required at such time to be capitalized and reflected as a liability on a balance sheet of such Person (excluding the footnotes thereto) prepared in accordance with GAAP.
Cash Collateralize” means to pledge and deposit with or deliver to the Collateral Agent, for the benefit of the Administrative Agent, any L/C Issuer or any Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Senior Credit Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash, deposit account balances or, if the applicable L/C Issuer or Swing Line Lender, as applicable, benefiting from such collateral shall agree in its sole discretion, other credit support (including a backup letter of credit), in each case pursuant to documentation (including as to stated amount in the case of a backup letter of credit which shall not be more than 103%) in form and substance reasonably satisfactory to (a) the Administrative Agent, (b) the Collateral Agent and (c) the applicable L/C Issuer or Swing Line Lender (as applicable) (which documents are hereby consented to by the Lenders). “Cash Collateral” and “Cash Collateralization” shall have meanings correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, purchasing cards, electronic funds transfer and other cash management arrangements.
Cash Management Bank” means any Person that is a Lender, an Agent or an Affiliate of a Lender or an Agent (i) at the time it entered into a Cash Management Agreement with a Loan Party or (ii) that is designated as a “Cash Management Bank” (so long as, upon such designation, a Cash Management Agreement exists between such Person and a Loan Party), in each case, even if such Person for any reason ceases for any reason after the execution of such agreement or such designation to be a Lender, an Agent or an Affiliate of a Lender or an Agent.
Cash Management Obligations” means all obligations under any Secured Cash Management Agreements.
Casualty” means any casualty, damage, destruction or other similar loss with respect to real or personal property or improvements.
Casualty Event” means any involuntary loss of title, any involuntary loss of, damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of Parent or any of its Subsidiaries. “Casualty Event” shall include but not be limited to any taking of all or any part of any real property of any person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any requirement of Law, or by reason of the temporary requisition of the use or occupancy of all or any part of any real property of any person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof.
CBI Banking Authorisation” means an authorisation issued by the Central Bank of Ireland under section 9A of the Central Bank Act 1971 of Ireland.
CEA Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.


- 8 -


“Celator” means Celator Pharmaceuticals, Inc., a Delaware corporation.
“Celator Acquisition” means the acquisition of Celator pursuant to that certain Agreement and Plan of Merger dated May 27, 2016 among Parent, Plex Merger Sub, Inc., a Delaware corporation, and Celator, including the subsequent acquisition of any Equity Interests remaining after the tender offer contemplated thereby.
CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.
Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any applicable law, rule, regulation or treaty, (b) any change in any applicable law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
Change of Control” means (a) the acquisition of beneficial ownership (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the date hereofClosing Date) by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder) of Equity Interests representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Parent; (b) Parent ceases to own, directly or indirectly, 100% of the Equity Interests of any Borrower; or (c) the occurrence of a change of control, or other similar provision, as defined in any agreement or instrument evidencing any Material Indebtedness (triggering a default or mandatory prepayment, which default or mandatory prepayment has not been waived in writing) other than Indebtedness permitted under Section 7.01(p).
Class” has the meaning specified in Section 1.07.
Closing Date” means June 18, 2015.
Closing Date Refinancing” means (i) the repayment or other satisfaction in full and the termination of any commitment to make extensions of credit under the Existing Credit Agreement and (ii) receipt by the Administrative Agent of reasonably satisfactory evidence of the discharge (or the making of arrangements for discharge) of all Liens with respect thereto.
Code” means the Internal Revenue Code of 1986, as amended from time to time.
Co-Documentation Agent” means each of Credit Suisse AG, Cayman Islands Branch, HSBC Bank plc, Morgan Stanley Senior Funding, Inc., MUFG Union Bank, N.A., Sumitomo Mitsui Banking Corporation, New York Branch and SunTrust Bank, in their respective capacities as co-documentation agent.
Collateral” means all of the property, which includes Mortgaged Property and all other property of whatever kind and nature, which is subject or is purported to be subject to the Liens granted by any of the Collateral Documents.


- 9 -


Collateral Agent” means Bank of America, in its capacity as collateral agent for the Finance Parties under the Collateral Documents, and its successor or successors in such capacity.
Collateral Documents” means, collectively, the U.S. Security Agreement, the Mortgages, the Foreign Collateral Documents, any additional pledges, security agreements, patent, trademark or copyright filings or mortgages or deeds of trust required to be delivered pursuant to the Loan Documents and any instruments of assignment or other similar instruments or agreements executed pursuant to the foregoing.
Commitment” means (i) with respect to each Lender, its Revolving Commitment, Term Commitment, Incremental Revolving Commitment, Incremental Term Loan Commitment, Other Revolving Commitment or Other Term Commitment, as and to the extent applicable, (ii) with respect to each L/C Issuer, its L/C Commitment and (iii) with respect to the Swing Line Lender, the Swing Line Commitment, in each case as set forth on Schedule 2.01 or in the applicable Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as its Commitment of the applicable Class, as any such amount may be adjusted from time to time in accordance with this Agreement.
Commitment Fee” has the meaning specified in Section 2.11(a).
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. §1 et. seq.), as amended from time to time, and any successor statute.
Communications” has the meaning specified in Section 10.02(d).
Competitor” means any Person designated in writing by the Lead Borrower to the Administrative Agent that competes with Parent and its Subsidiaries in a principal line of business of Parent and its Subsidiaries, considered as a whole.
Compliance Certificate” means a certificate, duly executed by a Responsible Officer, appropriately completed and substantially in the form of Exhibit D.
Condemnation” means any taking or expropriation by a Governmental Authority of property or assets, or any part thereof or interest therein, for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation or in any other manner.
Condemnation Award” means all proceeds of any Condemnation or transfer in lieu thereof.
Consolidated Capital Expenditures” means, without duplication, any expenditures for any purchase or other acquisition of any asset that would be classified as a fixed or capital asset on a consolidated balance sheet of Parent and its Restricted Subsidiaries prepared in accordance with GAAP but excluding (i) expenditures made in connection with any replacement, substitution or restoration of property as a result of any involuntary loss of title, any involuntary loss of, damage to or destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of Parent or any of its Restricted Subsidiaries, (ii) expenditures constituting consideration for any Permitted Acquisitions, (iii) expenditures constituting interest capitalized during such period, (iv) expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third party and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other Person and (v) the purchase price of equipment that is purchased substantially contemporaneously with the trade in of existing equipment to


- 10 -


the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time.
Consolidated Cash Interest Expense” means, with reference to any period, (a) the Consolidated Interest Expense of Parent and its Restricted Subsidiaries paid or payable in cash and calculated on a consolidated basis for such period but shall exclude, to the extent otherwise included in the calculation of Consolidated Interest Expense for the applicable period, without duplication, (i) debt issuance costs, debt discount or premium and other financing fees and expenses, (ii) any cash costs associated with breakage in respect of Swap Agreements, (iii) annual agency or trustee fees, unused line fees and letter of credit fees and expenses, (iv) all non-recurring cash interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations under any agreement governing Indebtedness, and (v) interest, rental and other expenses associated with the Stanford Lease, minus (b) interest income received or receivable in cash (to the extent not netted against interest expense in the calculation of Consolidated Interest Expense).
Consolidated Current Assets” means at any date, the consolidated current assets of the Parent and its Restricted Subsidiaries as of such date, determined on a consolidated basis in accordance with GAAP, but excluding cash, deferred income Taxes and Permitted Investments.
Consolidated Current Liabilities” means at any date, the consolidated current liabilities of Parent and its Restricted Subsidiaries as of such date, determined on a consolidated basis in accordance with GAAP, but excluding the current portion of Consolidated Funded Indebtedness, outstanding Revolving Loans and Swing Line Loans, the current portion of interest expense (other than interest expense that is due and unpaid), accrued Taxes and accrued dividends.
Consolidated EBITDA” means, with reference to any period, Consolidated Net Income for such period plus, to the extent deducted in determining Consolidated Net Income for such period, (i) Consolidated Interest Expense, (ii) expense for Taxes paid or accrued, (iii) depreciation, (iv) amortization, (v) extraordinary, unusual or non-recurring non-cash expenses or losses incurred other than in the ordinary course of business, (vi) non-cash expenses related to stock based compensation, (vii) fees and expenses directly incurred or paid in connection with (wv) the Gentium Acquisition, (xw) the Transactions, (x) the Celator Acquisition, (y) any other Permitted Acquisition and, to the extent permitted hereunder, Investments (other than Permitted Acquisitions) and Dispositions, to the extent the aggregate amount of all such fees and expenses added pursuant to clause (y) does not exceed $30,000,000 during any fiscal year and (z) to the extent permitted hereunder, issuances or incurrence of Indebtedness, issuances of Equity Interests or refinancing transactions and modifications of instruments of Indebtedness, (viii) any non-recurring charges, costs, fees and expenses directly incurred or paid directly as a result of discontinued operations (other than such charges, costs, fees and expenses to the extent constituting losses arising from such discontinued operations), (ix) any unrealized losses in respect of Swap Agreements, (x) any other extraordinary, unusual or non-recurring cash charges or expenses incurred outside of the ordinary course of business, (xi) Milestone Payments and Upfront Payments, (xii) the amount of cost savings and synergies projected by Parent in good faith to be realized as a result of the Gentium Acquisition or any Permitted Acquisition or other Investment, in each case within the four consecutive fiscal quarters following the consummation of such acquisition or Investment (or following the consummation of the squeeze-out merger in the case of an acquisition structured as a two-step transaction), calculated as though such cost savings and synergies had been realized on the first day of such period and net of the amount of actual benefits received during such period from such acquisition; provided that (A) a duly completed certificate signed by a Responsible Officer of Parent shall be delivered to the Administrative Agent certifying that such cost savings and synergies are reasonably expected and factually supportable in the good faith judgment of Parent, (B) no cost savings or synergies shall be added pursuant to this clause (xii) to the extent duplicative of any expenses or charges otherwise


- 11 -


added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period and (C) the aggregate amount of cost savings and synergies added back pursuant to this clause (xii) shall not exceed 15% of Consolidated EBITDA for any applicable Test Period (prior to giving effect to the addback of such items pursuant to this clause (xii)), (xiii) restructuring charges or reserves, including write-downs and write-offs, including any one-time costs incurred in connection with the Gentium Acquisition, Permitted Acquisitions and other Investments and costs related to the closure, consolidation and integration of facilities, information technology infrastructure and legal entities, and severance and retention bonuses, (xiv) adjustments relating to purchase price allocation accounting, and (xv) the aggregate amount of all other non-cash charges, expenses or losses reducing Consolidated Net Income during such period, minus, to the extent included in Consolidated Net Income for such period, (l) interest income (to the extent not netted against interest expense in the calculation of Consolidated Interest Expense), (2) income tax credits and refunds (to the extent not netted from Tax expense), (3) any cash payments made during such period in respect of items described in clauses (v) or (xv) above subsequent to the applicable Test Period in which the relevant non-cash expenses or losses were incurred, (4) any non-recurring income or gains directly as a result of discontinued operations, (5) any unrealized income or gains in respect of Swap Agreements (to the extent not included in clause (1) above or netted against interest expense in the calculation of Consolidated Interest Expense) and (6) extraordinary, unusual or non-recurring income or gains realized other than in the ordinary course of business, all as determined for Parent and its Restricted Subsidiaries in accordance with GAAP on a consolidated basis. For the avoidance of doubt, the foregoing additions to, and subtractions from, Consolidated EBITDA shall not give effect to any items attributable to the Unrestricted Subsidiaries. For the purposes of calculating Consolidated EBITDA for any Test Period, (i) if at any time during such Test Period, Parent or any Restricted Subsidiary shall have made any Material Disposition or converted any Restricted Subsidiary into an Unrestricted Subsidiary, the Consolidated EBITDA for such Test Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition or to such conversion for such Test Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Test Period, and (ii) if during such Test Period Parent or any Restricted Subsidiary shall have made a Material Acquisition or converted any Unrestricted Subsidiary into a Restricted Subsidiary, Consolidated EBITDA for such Test Period shall be calculated after giving pro forma effect thereto in accordance with Section 1.03(c) (and, if applicable, Section 1.03(e)) as if such Material Acquisition or such conversion occurred on the first day of such Test Period.
Consolidated Funded Indebtedness” means at any date, the Funded Indebtedness of the Parent and its Restricted Subsidiaries as of such date, determined on a consolidated basis in accordance with GAAP.
Consolidated Interest Expense” means, with reference to any period, the interest expense (including without limitation interest expense under Capital Lease Obligations that is treated as interest in accordance with GAAP) of Parent and its Restricted Subsidiaries calculated on a consolidated basis for such period with respect to all outstanding Indebtedness of Parent and its Restricted Subsidiaries allocable to such period in accordance with GAAP (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and net costs and benefits under interest rate Swap Agreements to the extent such net costs and benefits are allocable to such period in accordance with GAAP). In the event that Parent or any Restricted Subsidiary shall have completed a Material Acquisition or a Material Disposition since the beginning of the relevant period, Consolidated Interest Expense shall be determined for such period on a pro forma basis as if such acquisition or disposition, and any related incurrence or repayment of Indebtedness, had occurred at the beginning of such period.


- 12 -


Consolidated Net Income” means, with reference to any period, the net income (or loss) of Parent and its Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis (without duplication) for such period, provided that there shall be excluded the income of any Restricted Subsidiary (other than a Loan Party) to the extent that the declaration or payment of dividends or other distributions by such Restricted Subsidiary of that income is not at the time permitted by any of its Organization Documents, a requirement of Law or any agreement or instrument applicable to such Restricted Subsidiary, except that the amount of cash dividends or other cash distributions actually paid to any Loan Party by any such Restricted Subsidiary during such period shall be included; provided, further, that there shall be excluded any income (or loss) of any Person other than Parent or a Restricted Subsidiary, but any such income so excluded may be included in such period or any later period to the extent of any cash dividends or distributions actually paid in the relevant period to Parent or any Restricted Subsidiary that is a Wholly Owned Subsidiary of Parent.
Consolidated Secured Debt” means, as of any date of determination, Consolidated Senior Debt outstanding on such date that is secured by a Lien on any assets of Parent or any of its Restricted Subsidiaries.
Consolidated Senior Debt” means, as of any date of determination, the aggregate principal amount of Consolidated Total Indebtedness outstanding on such date, but excluding any Specified Subordinated Indebtedness.
Consolidated Subsidiary” means with respect to any Person at any date any Subsidiary of such Person or other entity the accounts of which would be consolidated with those of such Person in its consolidated financial statements if such statements were prepared as of such date in accordance with GAAP.
Consolidated Total Assets” means, as of the date of any determination thereof, total assets of Parent and its Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis as of the end of the most recently completed Test Period.
Consolidated Total Indebtedness” means, as of the date of any determination thereof, the sum, without duplication, of (x) the aggregate Indebtedness of Parent and its Restricted Subsidiaries that is of a type that would be reflected on a consolidated balance sheet of Parent prepared as of such time in accordance with GAAP and (y) Indebtedness of the type referred to in clause (x) hereof of another Person guaranteed by Parent or any of its Restricted Subsidiaries or secured by the assets of Parent or any of its Restricted Subsidiaries; provided that Consolidated Total Indebtedness shall not include Indebtedness in respect of any letter of credit or bank guaranty, except to the extent of unreimbursed obligations in respect of any drawn letter of credit or bank guaranty.
Consolidated Working Capital” means, as at any date, the excess of Consolidated Current Assets over Consolidated Current Liabilities.
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.


- 13 -


Co-Syndication Agent” means each of Barclays Bank PLC, Citibank, N.A., DNB (UK) Limited, JPMorgan Chase Bank, N.A., and Royal Bank of Canada, in their respective capacities as co-syndication agent.
Covered Jurisdictions” means the jurisdiction of any Borrower or any jurisdiction of any Guarantor that is a Material Restricted Subsidiary; it being understood that notwithstanding the thresholds set forth in the definition of “Material Restricted Subsidiary”, for purposes of determining the “Covered Jurisdictions”, “Material Restricted Subsidiary” shall exclude Restricted Subsidiaries organized in a jurisdiction with respect to which no Collateral Documents had previously been delivered which, as of the end of, and for, the most recently completed Test Period, (i) contributed less than 10.0 % of Consolidated EBITDA in the aggregate for such jurisdiction for such Test Period or (ii) contributed less than 10.0% of Consolidated Total Assets in the aggregate for such jurisdiction as of the end of such Test Period, so long as the aggregate amount of Consolidated EBITDA and Consolidated Total Assets attributable to the Borrowers and Guarantors that are Material Restricted Subsidiaries was equal to or exceeds 75.0% of Consolidated EBITDA for any such Test Period and 75.0 % of Consolidated Total Assets as of the end of any such Test Period.
Credit Agreement Refinancing Indebtedness” means (a) Indebtedness or (b) Other Revolving Commitments, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) to Refinance, in whole or part, existing Term Loans, existing Incremental Term Loans, outstanding Revolving Loans (and Revolving Commitments), outstanding Incremental Revolving Loans (and Incremental Revolving Commitments) or any outstanding Credit Agreement Refinancing Indebtedness (“Refinanced Debt”); provided that (i) such Indebtedness (including, if such Indebtedness includes any Other Revolving Commitments, the unused portion of such Other Revolving Commitments) is in an original aggregate principal amount (or accreted value, if applicable) not greater than the aggregate principal amount (or accreted value, if applicable) of the Refinanced Debt (and, in the case of Refinanced Debt consisting, in whole or in part, of unused Revolving Commitments, Incremental Revolving Commitments or Other Revolving Commitments, the amount thereof) (except by an amount equal to accrued and unpaid interest and premium thereon, including tender premium, and underwriting and original issue discounts, fees, commissions, and expenses associated in connection with such extending, renewing, replacement or refinancing), (ii) such Indebtedness has a maturity equal to or later than, and a Weighted Average Life to Maturity equal to or greater than, the Refinanced Debt, (iii) the Refinanced Debt shall be repaid, defeased or satisfied and discharged (and to the extent that the Refinanced Debt consists, in whole or in part, of Revolving Commitments, Incremental Revolving Commitments, Other Revolving Commitments (or Revolving Loans, Incremental Revolving Loans, Other Revolving Loans, or Swing Line Loans incurred pursuant to any Revolving Commitments, Incremental Revolving Commitments or Other Revolving Commitments), such Revolving Commitments, Incremental Revolving Commitments or Other Revolving Commitments, as applicable, shall be terminated), and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, substantially concurrently with the issuance, incurrence or obtaining of such Credit Agreement Refinancing Indebtedness, (iv) in the case of Credit Agreement Refinancing Indebtedness in the form of notes, such Credit Agreement Refinancing Indebtedness does not contain any mandatory prepayment provisions (other than related to customary asset sale and change of control offers or cash or net share conversion settlement provisions in the case of convertible or exchangeable debt securities) that could result in prepayments of such notes prior to the Refinanced Debt, (v) such Indebtedness shall not be guaranteed by any Persons other than the Loan Parties, (vi) such Indebtedness (if secured and not obtained pursuant to a Refinancing Amendment) shall be subject to a First Lien Intercreditor Agreement or Second Lien Intercreditor Agreement, as applicable, and (vii) the other terms and conditions of such Credit Agreement Refinancing Indebtedness (excluding pricing, fees, rate floors and optional prepayment or redemption terms) are substantially identical to, or less favorable to the


- 14 -


investors providing such Credit Agreement Refinancing Indebtedness than, those applicable to the Refinanced Debt (except for covenants or other provisions applicable only to periods after the Latest Maturity Date).
Credit Exposure” means, as applied to each Lender and with respect to each Class of its Commitments and/or Loans:
(i)at any time prior to the termination of the Commitments of the Lenders in respect of such Class, the sum, as applicable, of (A) the Revolving Commitment Percentage of such Lender multiplied by the Revolving Committed Amount plus (B) the Incremental Revolving Commitment Percentage of the relevant Class of such Lender multiplied by the total Incremental Revolving Commitments of such Class plus (C) the Other Revolving Commitment Percentage of the relevant Class of such Lender multiplied by the total Other Revolving Commitments of such Class plus (D) the Term Commitment Percentage of such Lender multiplied by the Term Committed Amount of such Class plus (E) the Other Term Commitment Percentage of the relevant Class of such Lender multiplied by the total Other Term Commitments of such Class plus (F) the Incremental Term Loan Commitment Percentage of the relevant Class of such Lender multiplied by the total Incremental Term Loan Commitments of such Class; and
(ii)at any time after the termination of the Commitments of the Lenders in respect of such Class, the sum, as applicable, of (A) the principal balance of the outstanding Loans of such Lender of such Class plus (B) in the case of the termination of the Revolving Commitments, any Class of Incremental Revolving Commitments or any Class of Other Revolving Commitments, in each case, such Lender’s Participation Interests in all L/C Obligations and Swing Line Loans issued under the relevant terminated Class.
Credit Extension” means a Borrowing or an L/C Credit Extension.
Cumulative Excess Cash Flow” means an amount (not to be less than zero) equal to the sum of Excess Cash Flow for the fiscal quarter ending June 30, 2015 and each fiscal quarter thereafter.
Debt Issuance” means the incurrence, issuance or assumption by Parent or any of its Restricted Subsidiaries of any Indebtedness.
Default” means any condition or event that constitutes an Event of Default or that, with the giving of notice, the passage of applicable grace periods, or both, would be an Event of Default.
Default Rate” means (i) overdue principal amounts (to the extent legally permitted) shall bear interest at a rate per annum that is equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto plus 2% or (y) in the case of Reimbursement Obligations, the rate applicable to Revolving Loan that is a Base Rate Loan plus 2%, and (ii) any overdue interest payable on any Loan or Reimbursement Obligation or any Commitment Fee or other amount payable hereunder shall bear interest at a rate per annum equal to the rate then applicable to Base Rate Loans under the relevant Class of Loans plus 2% (or, in the case of any such other amounts that do not relate to a particular Class of Loans, the rate then applicable to Revolving Loan that is a Base Rate Loan plus 2%), in each case, with respect to clauses (i) and (ii) above, from the date such amount was due until such overdue amount is paid in full (after as well as before judgment).
Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans or participations in respect of an L/C Obligation within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies


- 15 -


the Administrative Agent and the Lead Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, any Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Lead Borrower, the Administrative Agent or any L/C Issuer or Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders’ obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Lead Borrower, to confirm in writing to the Administrative Agent and the Lead Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Lead Borrower), or (d) has, or has a direct or indirect parent company that has, after the date of this Agreement, (i) become the subject of a proceeding under any Bankruptcy Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.
Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction. is subject to a comprehensive embargo by the United States Government or other applicable governmental authority.
Designated Lender” has the meaning specified in Section 9.02.
Discharge of Senior Credit Obligations” means (i) payment in full in cash of the principal of and interest (including interest accruing on or after the commencement of any Insolvency or Liquidation Proceeding, whether or not a claim for such interest is, or would be, allowed in such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness outstanding under the Loan Documents and termination of all commitments to lend or otherwise extend credit under the Loan Documents, (ii) payment in full in cash of all other Finance Obligations under the Loan Documents that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid (including legal fees and other expenses, costs or charges accruing on or after the commencement of any Insolvency or Liquidation Proceeding, whether or not a claim for such fees, expenses, costs or charges is, or would be, allowed in such Insolvency or Liquidation Proceeding), other than Cash Management Obligations and Swap Obligations not yet due and payable, and (iii) termination,


- 16 -


cancellation or Cash Collateralization of all Letters of Credit issued or deemed issued under the Loan Documents.
Discount Prepayment Accepting Lender” has the meaning specified in Section 2.19(b)(ii).
Discount Range” has the meaning specified in Section 2.19(c)(i).
Discount Range Prepayment Amount” has the meaning specified in Section 2.19(c)(i).
Discount Range Prepayment Notice” means a written notice of a Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.19(c)(i) substantially in the form of Exhibit N hereto.
Discount Range Prepayment Offer” means the irrevocable written offer by a Term Lender, substantially in the form of Exhibit O hereto, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.
Discount Range Prepayment Response Date” has the meaning specified in Section 2.19(c)(i).
Discount Range Proration” has the meaning specified in Section 2.19(c)(iii).
Discounted Prepayment Determination Date” has the meaning specified Section 2.19(d)(iii).
Discounted Prepayment Effective Date” means in the case of an Offer of Specified Discount Prepayment, Solicitation of Discount Range Prepayment Offer or Solicitation of Discounted Prepayment Offer, five (5) Business Days following the receipt by each relevant Term Lender of notice from the Auction Agent in accordance with Section 2.19(b), Section 2.19(c) or Section 2.19(d), as applicable unless a shorter period is agreed between Parent or any of its Subsidiaries and Auction Agent.
Discounted Term Loan Prepayment” has the meaning specified in Section 2.19(a).
Disposition” means, with respect to any Person, a sale, transfer, lease, disposition or Exclusive License of any asset of such Person (including any such transaction effected by way of merger or consolidation and including any issuance of any of Equity Interests in a Subsidiary of such Person). “Dispose” and “Disposed,” as to any asset subject to the Disposition, shall have a corollary meaning.
Disposition Consideration” means (a) for any Disposition (other than an Exclusive License), the aggregate fair market value of any assets sold, transferred, leased or otherwise disposed of and (b) for any Exclusive License, the aggregate cash payment paid to Parent or any Restricted Subsidiary on or prior to the consummation of the Exclusive License (and which, for the avoidance of doubt, shall not include any royalty, earnout, contingent payment or any other deferred payment that may be payable thereafter).
Disqualified Capital Stock” means any Equity Interest of any Person that is not Qualified Capital Stock.
Disqualified Institution” means, on any date, (a) any Person designated by the Lead Borrower as a “Competitor” by written notice delivered to the Administrative Agent on or prior to the


- 17 -


date hereofClosing Date, (b) any other Person that is a Competitor (or an Affiliate of a Competitor (other than a bona fide debt fund)), which Person has been designated by the Lead Borrower as a “Disqualified Institution” by written notice to the Administrative Agent and the Lenders (including by posting such notice to the Platform) not less than 3 Business Days prior to such date; provided, that Disqualified Institutions shall exclude any Person that the Lead Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time. The list of Disqualified Institutions shall be set forth on Schedule 1.01(C) and shall be made available to all Lenders at all times.
Dollars” and “$” mean lawful money of the United States of America.
Domestic Guarantor” means each Guarantor that is a Domestic Subsidiary.
Domestic Subsidiary” means, with respect to any Person, each Subsidiary of such Person that is not a Foreign Subsidiary, and “Domestic Subsidiaries” means any two or more of them.
Drug Acquisition” means any acquisition (including any license or any acquisition of any license) solely or primarily of all or any portion of the rights in respect of one or more drugs or pharmaceutical products, whether in development or on market, and related property or assets, but not of Equity Interests in any Person or any operating business unit.
ECB Banking Authorisation” means: (i) in the case of a licence issued under section 9 of the Central Bank Act 1971 of Ireland prior to 4 November 2014, such a licence which is deemed in accordance with the SSM Regulation to be an authorisation granted by the European Central Bank under the SSM Regulation; or (ii) in any other case, an authorisation granted under the SSM Regulation on the application therefor under section 9 of the Central Bank Act 1971 of Ireland.
Economic Sanctions Laws” refers to applicable U.S. Laws regarding economic sanctions or embargoes including the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et. seq., the Trading with the Enemy Act, 50 U.S.C. §§ 1 et. seq., and any regulations promulgated thereunder imposing economic sanctions or embargoes.
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee” means (i) a Lender, (ii) in the case of a Loan to an Irish Borrower, (A) an Affiliate of a Lender that is an Approved Affiliate or (B) an Approved Fund that is an Approved Affiliate, (iii) in the case of a Loan to any Borrower other than an Irish Borrower, (A) an Affiliate of a Lender or (B) an Approved Fund, and (iv) any other Person (other than a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural


- 18 -


person)) approved by, solely in the case of this clause (iv), the Administrative Agent (and, in the case of any assignment of a Revolving Commitment, the L/C Issuer and the Swing Line Lender) and unless an Event of Default has occurred and is continuing, the applicable Borrower (each such approval not to be unreasonably withheld or delayed and; provided that, with respect to any Borrower consent that is required, the applicable Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after the applicable Borrower has received notice thereof); provided that notwithstanding the foregoing (but, for the avoidance of doubt, subject to the provisions of Section 2.19), “Eligible Assignee” shall not include Parent or any of Parent’s Subsidiaries. For the avoidance of doubt, any Disqualified Institution is subject to Section 10.06(h).

Embargoed Person” has the meaning specified Section 5.21(b).
Employee Benefit Arrangements” means in any jurisdiction the benefit schemes or arrangements in respect of any employees or past employees operated, maintained or contributed to by Parent or any of its Restricted Subsidiaries or in which Parent or any of its Restricted Subsidiaries participates and which provide benefits on retirement, ill-health, injury, death or voluntary withdrawal from or termination of employment, including termination indemnity payments and life assurance and post-retirement medical benefits, other than Plans.
Environment” means ambient air, indoor air, surface water, groundwater, land and subsurface strata and natural resources such as wetlands, flora and fauna.
Environmental Laws” means all Laws, Environmental Permits or governmental restrictions relating to pollution or the protection of the Environment, including those relating to the generation, use, transportation, distribution, storage, treatment, disposal, presence, Release or threat of Release of any Hazardous Materials.
Environmental Liability” means any liability, contingent or otherwise, of Parent or any of its Restricted Subsidiaries resulting from or based on (i) violation of any Environmental Law, (ii) the generation, use, handling, transportation, storage or treatment of any Hazardous Material, (iii) exposure to any Hazardous Material, (iv) the presence, Release or threatened Release of any Hazardous Material into the Environment or (v) any contract or agreement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Environmental Permit” means any permit, license, approval, registration, notification, exemption, consent or other authorization required by or from a Governmental Authority under Environmental Law.
Equity Equivalents” means with respect to any Person any rights, warrants, options, convertible securities, exchangeable securities, indebtedness or other rights, in each case exercisable for or convertible into or exchangeable for, directly or indirectly, Equity Interests of such Person or securities exercisable for or convertible into or exchangeable for Equity Interests of such Person, whether at the time of issuance or upon the passage of time or the occurrence of some future event, but excluding any Indebtedness convertible into or exchangeable for Equity Interests.
Equity Interests” means all shares of capital stock, partnership interests (whether general or limited), limited liability company membership interests, beneficial interests in a trust and any other interest or participation that confers on a Person the right to receive a share of profits or losses, or distributions of assets, of an issuing Person, but excluding any Indebtedness convertible into or exchangeable for such Equity Interests.


- 19 -


ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulation promulgated thereunder.
ERISA Affiliate” means each entity that is a member of a “controlled group of corporations,” under “common control” or an “affiliated service group” with Parent or any of its Restricted Subsidiaries within the meaning of Section 414(b), (c) or (m) of the Code, or required to be aggregated with Parent or any of its Restricted Subsidiaries under Section 414(o) of the Code or is under “common control” with Parent or any of its Restricted Subsidiaries, within the meaning of Section 4001(a)(14) of ERISA.
ERISA Event” means:
(i)a reportable event as defined in Section 4043 of ERISA and the regulations issued under such Section with respect to a Plan, excluding, however, such events as to which the PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event;
(ii)the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of any Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days;
(iii)the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Plan (whether or not waived in accordance with Section 412 of the Code), the application for a minimum funding waiver under Section 303 of ERISA with respect to any Plan (or, after the effective date of the Pension Protection Act of 2006, Section 302(c) of ERISA), the failure to make by its due date a required installment under Section 412(m) of the Code (or Section 430(j) of the Code, as amended by the Pension Protection Act of 2006) with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan, the determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code);
(iv)(A) the incurrence of any liability by Parent or any of its Restricted Subsidiaries pursuant to Title I of ERISA or to the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in Section 3 of ERISA), or the occurrence or existence of any event, transaction or condition that could reasonably be expected to result in the incurrence of any such liability by Parent or any of its Restricted Subsidiaries pursuant to Title I of ERISA or to such penalty or excise tax provisions of the Code; or (B) the incurrence of any liability by Parent or any of its Restricted Subsidiaries or an ERISA Affiliate pursuant to Title IV of ERISA or the occurrence or existence of any event, transaction or condition that could reasonably be expected to result in the incurrence of any such liability or imposition of any lien on any of the rights, properties or assets of Parent or any of its Restricted Subsidiaries or any ERISA Affiliate pursuant to Title IV of ERISA or to Section 412 of the Code;
(v)the provision by the administrator of any Plan of a notice pursuant to Section 4041(a)(2) of ERISA (or the reasonable expectation of such provision of notice) of intent to terminate such Plan in a distress termination described in Section 4041(c) of ERISA, the institution by the PBGC of proceedings to terminate any Plan or the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of a Plan by the PBGC, or the appointment of a trustee by the PBGC to administer any Plan;


- 20 -


(vi)the withdrawal of Parent or any of its Restricted Subsidiaries or ERISA Affiliate in a complete or partial withdrawal (within the meaning of Section 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by Parent or any of its Restricted Subsidiaries or ERISA Affiliate of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or is in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(vii)the imposition of liability (or the reasonable expectation thereof) on Parent or any of its Restricted Subsidiaries or ERISA Affiliate pursuant to Section 4062, 4063, 4064 or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA;
(viii)the assertion of a claim (other than routine claims for benefits) against any Plan (other than a Multiemployer Plan) or the assets thereof, or against Parent or any of its Restricted Subsidiaries or, with respect to a Plan subject to Title IV of ERISA, an ERISA Affiliate, in connection with any Plan;
(ix)the receipt by Parent or any of its Restricted Subsidiaries from the United States Internal Revenue Service of notice of (x) the failure of any Plan (or any Employee Benefit Arrangement intended to be qualified under Section 401(a) of the Code) to qualify under Section 401 (a) of the Code, or (y) the failure of any trust forming part of any Plan or Employee Benefit Arrangement to qualify for exemption from taxation under Section 501(a) of the Code; and
(x)the establishment or amendment by Parent or any of its Restricted Subsidiaries of any Welfare Plan that provides post-employment welfare benefits other than as may be required under applicable law.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Eurodollar Loan” means at any date a Loan which bears interest at a rate based on the Adjusted Eurodollar Rate.
Eurodollar Rate” means:
(a)for any Interest Period with respect to a Eurodollar Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be 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 Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement; and;
(b)for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 A.M., London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;
provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice;


- 21 -


provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
Eurodollar 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 Board of Governors of the Federal Reserve System (or any other entity succeeding to the functions currently performed thereby) for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to eurodollar funding. The Adjusted Eurodollar Rate for each outstanding Eurodollar Loan shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage.
EUSA Pharma (Luxembourg) Account Pledge Agreement” means the Luxembourg law governed account pledge agreement entered into between EUSA Pharma (Luxembourg) S.à r.l. and the Collateral Agent.
EUSA Pharma (Luxembourg) Share Pledge Agreement” means the Luxembourg law governed share pledge agreement entered into between the EUSA Pharma International Limited, the Collateral Agent and EUSA Pharma (Luxembourg) S.à r.l.
Event of Default” has the meaning specified in Section 8.01.
Excess Cash Flow” means, for any period, without duplication:
(a)the sum of:
(i)Consolidated Net Income (or loss) for such period, plus
(ii)the aggregate amount of all non-cash charges deducted (less the amount of all non-cash credits included) in arriving at such Consolidated Net Income (or loss), plus
(iii)the difference, if positive, of the amount of Consolidated Working Capital at the end of the prior Excess Cash Flow Period (or the beginning of the Excess Cash Flow Period in the case of the first Excess Cash Flow Period) over the amount of Consolidated Working Capital at the end of such Excess Cash Flow Period, plus
(iv)the amount of any loss (less any gain) incurred in connection with the receipt of Net Cash Proceeds (other than sales of inventory and other Dispositions in the ordinary course of business) of the type described in clause (i) of the definition thereof to the extent included in Consolidated Net Income (or loss), plus
(v)the aggregate amount of cash dividends and other cash distributions received during such period by Parent or any Restricted Subsidiary in respect of minority Equity Interests in any Person, less
(b)the sum of:
(i)the aggregate amount of Consolidated Capital Expenditures (A) made or paid by the Parent and its Subsidiaries in cash during such period solely to the extent


- 22 -


permitted by this Agreement and (B) excluding any amount funded with proceeds from the issuance of Funded Indebtedness (other than revolving Indebtedness) or Equity Interests, plus
(ii)the aggregate amount of Investments, Restricted Payments and acquisitions of intellectual property (A) made or paid by Parent and its Subsidiaries in cash during such period solely to the extent permitted by this Agreement and (B) excluding any amount funded (I) with the proceeds from the issuance of Funded Indebtedness (other than revolving Indebtedness) or Equity Interests or (II) out of the Available Amount, plus
(iii)the aggregate amount of all regularly scheduled and other mandatory principal payments of Consolidated Funded Indebtedness made during such period, excluding any amount funded with proceeds from the issuance of Funded Indebtedness (other than revolving Indebtedness) or Equity Interests, plus
(iv)the aggregate principal amount of all optional prepayments or repurchases (if such repurchases are made at a discount, the amount paid for such repurchases) of Consolidated Funded Indebtedness (other than Consolidated Funded Indebtedness that is revolving in nature) made during such period, excluding any amount funded through (I) proceeds from the issuance of Funded Indebtedness (other than revolving Indebtedness) or Equity Interests, (II) proceeds from any Asset Disposition or (III) proceeds of any Casualty or Condemnation, plus
(v)the absolute value of the difference, if negative, of the amount of Consolidated Working Capital at the end of the prior Excess Cash Flow Period (or the beginning of the Excess Cash Flow Period in the case of the first Excess Cash Flow Period) over the amount of Consolidated Working Capital at the end of such Excess Cash Flow Period, plus
(vi)any premium, make-whole or penalty payments paid in cash during such period in connection with the prepayment, redemption, purchase, defeasance or other satisfaction prior to scheduled maturity of Indebtedness permitted to be prepaid, redeemed, purchased, defeased or satisfied hereunder to the extent such premium, make-whole or penalty payments are not expensed during such period or otherwise deducted in calculating Consolidated Net Income, excluding any amount funded (I) with proceeds from the issuance of Funded Indebtedness (other than revolving Indebtedness) or Equity Interests, (II) with proceeds from any Asset Disposition, or (III) with the proceeds of any Casualty or Condemnation, plus
(vii)the aggregate amount of net income in respect of minority Equity Interests in any Person for such period included in arriving at such Consolidated Net Income (or loss).
Excess Cash Flow Period” means (a) the period commencing on April 1, 2015 and ending on June 30, 2015 and (b) each fiscal quarter of Parent thereafter.
Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


- 23 -


Excluded Assets” means:
(a)real property owned by Parent or any Subsidiary with a fair market value less than $10,000,000 and any leasehold interest in real property;
(b)motor vehicles and other assets subject to certificates of title;
(c)any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in any such license, franchise, charter or authorization is prohibited or restricted thereby (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable Law);
(d)(i) Equity Interests in joint ventures, Persons that are not Subsidiaries or any non-Wholly Owned Subsidiaries to the extent not permitted by the terms of such entity’s Organization Documents or joint venture documents and (ii) Margin Stock;
(e)any lease, license or agreement or property subject to a purchase money security interest or similar arrangement permitted by the Credit Agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money arrangement or create a right of termination in favor of any other party thereto (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable Law), other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC or other applicable Law notwithstanding such prohibition;
(f)any assets (including intangibles) not located in the United States to the extent the grant of a security interest therein is restricted or prohibited by applicable Law or contract (after giving effect to applicable anti-assignment provisions of the UCC or other applicable Law);
(g)any intent-to-use application trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal Law;
(h)voting Equity Interests in a Foreign Subsidiary of the U.S. Borrower, which Foreign Subsidiary is not a Loan Party, in excess of 65% of the total voting Equity Interests in such Subsidiary; and voting Equity Interests in a Domestic Subsidiary of the U.S. Borrower which Domestic Subsidiary holds no material assets other than Equity Interests in one or more Subsidiaries that are CFCs in excess of 65% of the total voting Equity Interests in such Domestic Subsidiary;
(i)all commercial tort claims (as defined in the UCC) below $1,000,000; and
(j)any other assets where the cost of obtaining or perfecting a security interest in such assets exceeds the practical benefit to the Lenders afforded thereby as reasonably determined by the Administrative Agent in writing (in consultation with the Lead Borrower).
Excluded Subsidiary” means (a) any Subsidiary that is prohibited by any Law or by any contractual obligation existing on the Closing Date (or, if later, the date of acquisition of such Subsidiary) from guaranteeing the Senior Credit Obligations or any Subsidiary that would require


- 24 -


consent, approval, license or authorization of any Governmental Authority in order to guarantee the Senior Credit Obligations unless such consent, approval, license or authorization has been received, (b) any Foreign Subsidiary of the U.S. Borrower that is a CFC, (c) any Domestic Subsidiary of the U.S. Borrower that holds no material assets other than Equity Interests in one or more Subsidiaries that are CFCs, (d) any Foreign Subsidiary for which the providing of the guarantee under the Guaranty Agreement could reasonably be expected to result in any violation or breach of, or conflict with, fiduciary duties of such Subsidiary’s officers, directors or managers, (e) any Subsidiary that is not a Wholly Owned Subsidiary of Parent, (f) any Immaterial Subsidiary and (g) those Foreign Subsidiaries as to which the Lead Borrower and the Administrative Agent shall reasonably determine in writing that the costs of providing the guarantee under the Guaranty Agreement are excessive in relation to the value to be afforded thereby.
Excluded Swap Obligation” means, with respect to any Guarantor at any time, any CEA Swap Obligation, if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such CEA Swap Obligation (or any Guarantee thereof) is illegal at such time under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Subsidiary Guarantor or the grant of such security interest becomes effective with respect to such CEA Swap Obligation. If a CEA Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such CEA Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
Excluded Taxes” means, with respect to the Administrative Agent, any Lender Party or any other recipient of any payment made by or on account of any obligation of any Loan Party under any Loan Document,
(a)Taxes imposed on (or measured by) overall net income, and franchise Taxes imposed (in lieu of net income Taxes), by the jurisdiction under the laws of which such recipient is organized or in which its office is located or, in the case of any Lender, in which its Lending Office is located, or as a result of a present or former connection between such recipient and the jurisdiction (or any political subdivision thereof) of the Governmental Authority imposing such Tax (other than a connection arising solely from such recipient having executed, delivered, performed its obligations or received a payment under, received or perfected a security interest under, having been a party to, having enforced, or having engaged in any other transaction pursuant to this Agreement or any other Loan Document);
(b)any branch profits Taxes under Section 884(a) of the Code, or any similar Taxes, imposed by a jurisdiction described in clause (a) of this definition;
(c)solely in the case of any Term Loan made on the Closing Date and any Revolving Loan, any U.S. federal withholding Taxes imposed on or with respect to amounts payable to a Non-U.S. Lender by a law in effect on the date on which such Non-U.S. Lender becomes a party hereto (or designates a new Lending Office), except (i) to the extent that such Non-U.S. Lender (or its assignor) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the applicable Loan Party with respect to such withholding Tax pursuant to Section 3.01, or (ii) if such Non-U.S. Lender is an assignee pursuant to a request by the applicable Borrower under Section 3.07;


- 25 -


(d)solely in the case of any Term Loan made on the Closing Date and any Revolving Loan, any U.S. federal withholding Taxes attributable to such recipient’s failure to timely comply with Section 3.01(f); or
(e)any U.S. federal Taxes imposed under FATCA.
Exclusive License” means, with respect to any drug or pharmaceutical product, any license to develop, commercialize, sell, market and promote such drug or pharmaceutical product with a term greater than five (5) years (unless terminable prior to such time without material penalty or premium by the applicable Loan Party) and which provides for exclusive rights to develop, commercialize, sell, market and promote such drug or product within the United States; provided that an “Exclusive License” shall not include (a) any license to distribute any such drug or product on an exclusive basis within any particular geographic region or territory, (b) any licenses, which may be exclusive, to manufacture any such drug or product, and (c) any license to manufacture, use, offer for sale or sell any authorized generic version of such drug or product. “Exclusively License” shall have the correlative meaning.
Existing Credit Agreement” means the Credit Agreement dated June 12, 2012, as amended, by and among Parent, Jazz Pharmaceuticals, Inc., Jazz Pharmaceuticals Ireland Limited, Jazz Financing I Limited, each of the lenders party thereto and Barclays Bank PLC, as administrative agent.
Existing Letter of Credit” means that certain Irrevocable Standby Letter of Credit, dated January 26, 2015, issued by JPMorgan Chase Bank, N.A. to The Board of Trustees of the Leland Stanford Junior University Office of Land, Buildings and Real Estate at the request of Jazz Pharmaceuticals, Inc...
Facility Office” means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.
Failed Loan” has the meaning specified in Section 2.03(d).
FATCA” means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, and any agreement entered into pursuant to Section 1471(b)(1) of the Code as of the date of this Agreement (or any amended or successor version described above).
FCPA” has the meaning set forth in Section 5.22.
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 (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average 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 Fee Letter dated May 24, 2015 between Parent and Bank of America.


- 26 -


Finance Document” means (i) each Loan Document, (ii) each Swap Agreement between one or more Loan Parties and a Swap Creditor evidencing Swap Obligations and (iii) each Secured Cash Management Agreement, and “Finance Documents” means all of them, collectively.
Finance Obligations” means, at any date, (i) all Senior Credit Obligations, (ii) all Swap Obligations of a Loan Party permitted hereunder owed or owing to any Swap Creditor and (iii) all Cash Management Obligations.
Finance Party” means each Lender, the Swing Line Lender, each L/C Issuer, each Swap Creditor, each Cash Management Bank, each Agent and each Indemnitee and their respective successors and assigns, and “Finance Parties” means any two or more of them, collectively.
Financial Officer” means the chief financial officer, principal accounting officer, senior vice president of finance, treasurer or controller of Parent.
First Lien Intercreditor Agreement” means a First Lien Intercreditor Agreement among the Administrative Agent, the Collateral Agent and one or more Senior Representatives for holders of Indebtedness secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Senior Credit Obligations, in form and substance reasonably satisfactory to the Administrative Agent.
Flood Laws” shall mean the National Flood Insurance Reform Act of 1994 and related legislation.
Foreign Collateral Documents” means the Irish Security Documents, the Bermuda Share Charges, the Luxembourg Account Pledge Agreements, the Luxembourg Share Pledge Agreements, the Gibraltar Share Charge, the French Share Pledge Agreement, the Italian Collateral Documents and each of the other documents set forth on Schedule 1.01(B).
Foreign Pension Plan” means any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States by Parent or any Restricted Subsidiary primarily for the benefit of employees of Parent or any Restricted Subsidiary residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
Foreign Guarantor” means Parent and each Guarantor that is a Foreign Subsidiary.
Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia.
French Share Pledge Agreement” means that certain French law governed share pledge agreement entered into between EUSA Pharma (Luxembourg) S.à r.l. and the Collateral Agent.
Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to any Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been


- 27 -


reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms of Section 2.17(a)(iv).
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 activities.
Funded Indebtedness” means, with respect to any Person, all Indebtedness of such Person that by its terms matures more than one year after the date of determination or incurrence or matures within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year after such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year after such date, including, without limitation, all amounts of Funded Indebtedness of such Person required to be paid or prepaid within one year after the date of its creation.
GAAP” means, subject to Section 1.03(b), United States generally accepted accounting principles as in effect as of the date of determination thereof.
Gentium” means Gentium S.p.A, a società per azioni incorporated in Italy.
Gentium Acquisition” means the acquisition of Gentium pursuant to that certain Tender Offer Agreement dated December 19, 2013 among Parent, Jazz Pharmaceuticals Italy S.r.L., an Italian società a responsabilità limitata, and Gentium, including the subsequent acquisition of any Equity Interests remaining after the tender offer contemplated thereby.
Gibraltar Share Charge” means a charge granted by the Parent and Jazz Pharmaceuticals Holdings Inc. of their equity interests in Jazz Pharmaceuticals Europe Holdings Limited (formerly EUSA Pharma International Limited) in favor of the Collateral Agent for the benefit of the Finance Parties, which charge shall be in form and substance reasonably satisfactory to the Collateral Agent.
Government Acts” has the meaning specified in Section 2.05(l).
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).
Group” means at any time a group of Loans consisting of (i) all Loans which are Base Rate Loans at such time or (ii) all Loans which are Eurodollar Loans having the same Interest Period at such time; provided that, if a Loan of any particular Lender is converted to or made as a Base Rate Loan pursuant to Article III, such Loan shall be included in the same Group or Group of Loans from time to time as it would have been had it not been so converted or made.
Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such


- 28 -


Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the lesser of (a) the stated or determinable amount of the primary payment obligation in respect of which such Guarantee is made and (b) the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary payment obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of the Guarantee shall be such guaranteeing Person’s maximum reasonably possible liability in respect thereof as reasonably determined by Parent in good faith.
Guaranteed Obligations” shall have the meaning as set forth in the Guaranty Agreement.
Guarantor” means collectively, (A) Parent, (B) each Restricted Subsidiary of Parent (except (i) the Lead Borrower with respect to Guaranteed Obligations of the Lead Borrower, (ii) the U.S. Borrower with respect to Guaranteed Obligations of the U.S. Borrower, (iii) Jazz Financing I with respect to Guaranteed Obligations of Jazz Financing I, (iv) Jazz Ireland with respect to Guaranteed Obligations of Jazz Ireland and (v) and any Excluded Subsidiary) and (C) each Subsidiary of Parent that becomes a party to the Guaranty Agreement or other guaranty agreement after the Closing Date required pursuant to Section 6.09, and “Guarantors” means any two or more of them.
Guaranty Agreement” means the Guaranty, substantially in the form of Exhibit E hereto, by Parent and the Subsidiary Guarantors in favor of the Administrative Agent, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof and of this Agreement.
Hazardous Materials” means all materials, chemicals, substances, wastes, pollutants, contaminants, compounds, mixtures and constituents in any form, including petroleum or petroleum products, asbestos or asbestos-containing materials, polychlorinated biphenyls or radon gas, regulated pursuant to, or which can give rise to liability under, any Environmental Law.
HMT” has the meaning set forth in the definition of “Sanction(s).”
Honor Date” has the meaning specified in Section 2.05(e)(i).
Identified Participating Lenders” has the meaning specified in Section 2.19(c)(iii).
Identified Qualifying Lenders” has the meaning specified in Section 2.19(c)(iii).
Immaterial Asset Sale” means any Disposition or series of related Dispositions of property in respect of which the fair market value of such property and the Disposition Consideration payable to the Parent or any of its Restricted Subsidiaries is equal to or less than $20,000,000.
Immaterial Subsidiary” means, as of any date of determination, any direct or indirect Subsidiary of Parent that has been designated by Parent to the Administrative Agent in writing (and not


- 29 -


redesignated as a Material Subsidiary as provided below) as an “Immaterial Subsidiary”; provided that (i) for purposes of this Agreement, at no time shall (a) (I) the total assets of any Immaterial Subsidiary equal or exceed 5% of Consolidated Total Assets as of the end of the most recently completed Test Period or (II) the revenues for any Immaterial Subsidiary equal or exceed 5% of the consolidated revenues of Parent and its Restricted Subsidiaries for such Test Period or (b) (I) the total assets of all Immaterial Subsidiaries equal or exceed, in the aggregate, 10% of Consolidated Total Assets as of the end of the most recently completed Test Period or (II) the revenues for all Immaterial Subsidiaries equal or exceed, in the aggregate, 10% of the consolidated revenues of Parent and its Restricted Subsidiaries for such Test Period, (ii) the Parent shall not designate any new Immaterial Subsidiary if such designation would not comply with the provisions set forth in clause (i) above, (iii) if the total assets or revenues of all Subsidiaries so designated by Parent as “Immaterial Subsidiaries” (and not redesignated as “Material Subsidiaries”) shall at any time exceed the limits set forth in clause (i)(b) above, then Parent (or in the event Parent has failed to do so concurrently with the delivery of financial statements required for such Test Period by Section 6.01(a) or (b), the Administrative Agent) shall redesignate one or more Immaterial Subsidiaries as Material Subsidiaries such that, as a result thereof, the total assets and revenues of all Subsidiaries still designated as “Immaterial Subsidiaries” do not exceed such limits, and (iv) no Borrower nor any direct or indirect parent company of any Borrower may be designated as an “Immaterial Subsidiary”; and provided, further, that Parent may designate and re-designate a Subsidiary as an Immaterial Subsidiary at any time, subject to the terms set forth in this definition. Notwithstanding the foregoing, for any determination made as of or prior to the date any Person becomes an indirect or direct Subsidiary of Parent, such determination and designation shall be made based on financial statements provided by or on behalf of such Person in connection with the acquisition by Parent of such Person or such Person’s assets.
Impacted Loans” has the meaning assigned to such term in Section 3.3.
Increase Effective Date” has the meaning set forth in Section 2.15(a).
Increase Joinder” has the meaning set forth in Section 2.15(c).
Incremental Facilities” has the meaning set forth in Section 2.15(a).
Incremental Loans” means, collectively, the Incremental Term Loans and Incremental Revolving Loans.
Incremental Revolving Commitment Percentage” means, for each Lender, the percentage of the aggregate Incremental Revolving Commitments represented by such Lender’s Incremental Revolving Commitment at such time and identified as its Incremental Revolving Commitment Percentage in any Increase Joinder, as such percentage may be modified in connection with any Assignment and Assumption made in accordance with the provisions of Section 10.06(b).
Incremental Revolving Commitments” has the meaning set forth in Section 2.15(a).
Incremental Revolving Increase” has the meaning set forth in Section 2.15(a).
Incremental Revolving Loans” has the meaning set forth in Section 2.15(a).
Incremental Term Facility” has the meaning set forth in Section 2.15(a).
Incremental Term Loan Commitment Percentage” means, for each Lender, the percentage of the aggregate Incremental Term Loan Commitments represented by such Lender’s


- 30 -


Incremental Term Loan Commitment at such time and identified as its Incremental Term Loan Commitment Percentage in any Increase Joinder, as such percentage may be modified in connection with any Assignment and Assumption made in accordance with the provisions of Section 10.06(b).
Incremental Term Loan Commitments” has the meaning set forth in Section 2.15(a).
Incremental Term Loans” has the meaning set forth in Section 2.15(a).
Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person (excluding trade accounts payable and accrued expenses arising in the ordinary course of business and licenses in the ordinary course of business), (d) all obligations of such Person in respect of the deferred purchase price of property or services (but excluding (i) trade accounts and accrued expense payable incurred in the ordinary course of business, (ii) payroll liabilities and deferred compensation and (iii) any purchase price adjustment, royalty, earnout, Milestone Payment, contingent payment or deferred payment of a similar nature incurred in connection with an acquisition), (e) all Capital Lease Obligations and Synthetic Lease Obligations of such Person, (f) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and surety bonds, (g) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (h) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed; provided that, if such Person has not assumed or otherwise become liable in respect of such Indebtedness, such obligations shall be deemed to be in an amount equal to the lesser of (i) the unpaid amount of such Indebtedness and (ii) fair market value of such property at the time of determination (in Parent’s good faith estimate), (i) all Guarantees by such Person of Indebtedness of others and (j) all Disqualified Capital Stock. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
Indemnified Liabilities” has the meaning specified in Section 10.04(b).
Indemnified Taxes” means any Taxes other than Excluded Taxes.
Indemnitee” has the meaning specified in Section 10.04(b).
Information” has the meaning specified in Section 10.07.
Insolvency or Liquidation Proceeding” means (i) any voluntary or involuntary case or proceeding under the Bankruptcy Code or any other Bankruptcy Law with respect to any Loan Party, (ii) any other voluntary or involuntary insolvency, examinership, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Loan Party or with respect to a material portion of their respective assets, (iii) any liquidation, dissolution, examinership, reorganization or winding up of any Loan Party whether voluntary or involuntary and whether or not involving insolvency or bankruptcy or (iv) any assignment for the benefit of creditors or any other marshaling of assets and liabilities of any Loan Party.
Insurance Proceeds” means all insurance proceeds (other than business interruption insurance proceeds), damages, awards, claims and rights of action with respect to any Casualty.


- 31 -


Intercompany Note” means a promissory note contemplated by Section 7.04(d), substantially in the form of Exhibit H hereto or such other form as is reasonably acceptable to the Administrative Agent, and “Intercompany Notes” means any two or more of them.
Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the most recently ended Test Period to (b) Consolidated Cash Interest Expense for such Test Period.
Interest Payment Date” means (i) as to Base Rate Loans, the last Business Day of each March, June, September and December (commencing September 30, 2015) and the Maturity Date for Loans of the applicable Class and (ii) as to Eurodollar Loans, the last day of each applicable Interest Period and the Maturity Date for Loans of the applicable Class, and in addition where the applicable Interest Period for a Eurodollar Loan is greater than three months, then also the respective dates that fall every three months after the beginning of such Interest Period.
Interest Period” means with respect to each Eurodollar Loan, the period commencing on the date such Eurodollar Loan is disbursed or converted to or continued as a Eurodollar Loan and ending on the date one, two, three or six months thereafter (in each case, subject to availability), as selected by the applicable Borrower in its Notice of Borrowing, or such other period that is twelve months or less requested by the applicable Borrower and consented to by all relevant Lenders; provided that:
(i)any Interest Period that would otherwise end on a day that is not a Business Day shall, subject to clause (iii) below, 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 for Loans of the applicable Class.
Investment” has the meaning specified in Section 7.04.
Irish Borrowers” means, collectively, the Lead Borrower, Jazz Financing I and Jazz Ireland and “Irish Borrower” means the Lead Borrower, Jazz Financing I or Jazz Ireland, as the context requires.
Irish Debenture” means the debenture dated 18 June 2015 made among Parent, the Lead Borrower, Jazz Ireland, Jazz Financing I and Jazz Financing II and the Collateral Agent pursuant to which the Parent, the Lead Borrower, Jazz Ireland and Jazz Financing I and Jazz Financing II created fixed and floating charges over their respective assets located in Ireland.  
Irish Lender Tax Certificate” means a certificate substantially in the form of Exhibit F-2, appropriately completed.
Irish Qualifying Lender” means a Lender Party which is beneficially entitled to interest payable to that Lender Party in respect of an advance under a Loan Document and:



- 32 -


(a)which is the holder of an ECB Banking Authorisation or CBI Banking Authorisation and whose Facility Office is located in Ireland; or
(b)which is a building society (as defined for the purposes of Section 256(1) of the TCA) and which is carrying on a bona fide banking business in Ireland (for the purposes of Section 246(3) of the TCA) and whose Facility Office is located in Ireland; or
(c)which is an authorised credit institution under the terms of Directive 2013/36/EU and has duly established a branch in Ireland having made all necessary notifications to its home state competent authorities required thereunder (and, where applicable in accordance with the SSM Regulation) in relation to its intention to carry on banking business in Ireland and such credit institution is carrying on a bona fide banking business in Ireland (for the purposes of Section 246(3) of the TCA) and whose Facility Office is located in Ireland; or
(d)which is a body corporate:
(i)which, by virtue of the law of a Relevant Territory is resident in the Relevant Territory for the purposes of tax and that Relevant Territory imposes a tax that generally applies to interest receivable in that Relevant Territory by bodies corporate from sources outside that Relevant Territory; or
(ii)which is in receipt of interest under a Loan Document which:
(x)
is exempted from the charge to Irish income tax pursuant to the terms of a double taxation treaty entered into between Ireland and another jurisdiction that is in force on the date the relevant interest is paid; or
(y)
would be exempted from the charge to Irish income tax pursuant to the terms of a double taxation treaty entered into between Ireland and another jurisdiction signed on or before the date on which the relevant interest is paid but not in force on that date, assuming that treaty had the force of law on that date;

provided that, in the case of both (i) and (ii) above, such body corporate does not provide its commitment in connection with a trade or business which is carried on in Ireland through a branch or agency; or
(e)in the case only where an Irish Borrower is a qualifying company within the meaning of Section 110 of the TCA, which is a person which by virtue of the law of a Relevant Territory is resident in a Relevant Territory for the purposes of tax provided that such person does not provide its commitment in connection with a trade or business which is carried on in Ireland through a branch or agency in Ireland; or
(f)which is a U.S. corporation that is incorporated under the laws of the United States, any State thereof or the District of Columbia and is subject to tax in the United States on its worldwide income, provided that such U.S. corporation does not provide its commitment in connection with a trade or business which is carried on in Ireland through a branch or agency; or
(g)which is a U.S. LLC, where the ultimate recipients of the interest payable to that LLC satisfy the requirements set out in (d), (e) or (f) above and the business conducted through the LLC


- 33 -


is so structured for market reasons and not for tax avoidance purposes, provided that such LLC does not provide its commitment in connection with a trade or business which is carried on by it in Ireland through a branch or agency; or
(h)which is a body corporate:
(i)which advances money in the ordinary course of a trade which includes the lending of money;
(ii)in whose hands any interest payable in respect of money so advanced is taken into account in computing the trading income of that body corporate;
(iii)which has complied with the notification requirements set out in Section 246(5)(a) of the TCA; and
(iv)whose Facility Office is located in Ireland; or
(i)which is a qualifying company (within the meaning of section 110 of the TCA) and whose Facility Office is located in Ireland; or
(j)which is an investment undertaking (within the meaning of Section 739B of the TCA) and whose Facility Office is located in Ireland; or
(k)which is an exempted approved scheme within the meaning of section 774 of the TCA whose Facility Office is located in Ireland; or
(l)which is a Treaty Lender.
Irish Security Documents” means (a) the Irish Debenture and (b) any Irish law governed share security, which security documents shall be in form and substance reasonably satisfactory to the Collateral Agent.
ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
Italian Civil Code” means the Italian civil code, enacted by Royal Decree No. 262 of 16 March 1942, as amended, supplemented and implemented from time to time.
Italian Collateral Documents” means any collateral document that is expressed to be governed by Italian law.
Jazz Financial Statements” means the audited consolidated financial statements of Parent and its Subsidiaries for the fiscal years ended December 31, 2012, 2013 and 2014.
Jazz Financing I” has the meaning specified in the preamble.
Jazz Financing II” means Jazz Financing II Limited, a company incorporated under the laws of Ireland.


- 34 -


“Jazz Financing Lux Account Pledge Agreement” means the Luxembourg law governed account pledge agreement entered into between Jazz Financing Lux S.à r.l. and the Collateral Agent.
“Jazz Financing Lux Share Pledge Agreement” means the Luxembourg law governed share pledge agreement entered into between Jazz Pharmaceuticals Public Limited Company, the Collateral Agent and Jazz Financing Lux S.à r.l.
Jazz Ireland” has the meaning specified in the preamble.
Joint Bookrunners” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Bank PLC, Citibank, N.A., DNB (UK) Limited, J.P. Morgan Securities LLC, and RBC Capital Markets, in their respective capacities as joint bookrunners.
Judgment Currency” has the meaning specified in Section 10.16(a).
Judgment Currency Conversion Date” has the meaning specified in Section 10.16(a).
Junior Debt Payments” has the meaning specified in Section 7.08(b).
JV Subsidiary” means any Subsidiary that is not a Wholly Owned Subsidiary and that is a joint venture with a third party unaffiliated with Parent or any other Subsidiary of Parent.
Latest Maturity Date” means, at any date of determination, the latest maturity or termination date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Other Term Loan, any Other Term Commitment, any Other Revolving Loan or any Other Revolving Commitment (but excluding, for the avoidance of doubt, any Permitted External Credit Agreement Refinancing Indebtedness) in each case as extended in accordance with this Agreement from time to time.
Laws” means, collectively, all applicable 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, directives, licenses, authorizations and permits of any Governmental Authority.
LCA Election” has the meaning specified in Section 1.03(e).
LCA Test Date” has the meaning specified in Section 1.03(e).
L/C Borrowing” means a Revolving Borrowing made pursuant to Section 2.05(e)(iv) and (v) to refinance Unreimbursed Amounts in respect of drawn Letters of Credit.
L/C Commitment” means the commitment of one or more L/C Issuers to issue Letters of Credit in an aggregate face amount at any one time outstanding (together with the amounts of any unreimbursed drawings thereon) of up to the L/C Sublimit.
L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Disbursement” means a payment or disbursement made by an L/C Issuer pursuant to a Letter of Credit.


- 35 -


L/C Documents” means, with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any Letter of Credit Request, any Letter of Credit Application and any agreements, instruments, Guarantee or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (i) the rights and obligations of the parties concerned or at risk or (ii) any collateral security for such obligations.
L/C Issuer” means (i) Bank of America and JPMorgan Chase Bank, N.A., in their respective capacities as issuers of Letters of Credit ((x) in the case of Bank of America, with respect to all Letters of Credit other than the Existing Letter of Credit and (y) in the case of JPMorgan Chase Bank, N.A., only with respect to the Existing Letter of Credit) under Section 2.05(a), and their respective successor or successors in such capacity and (ii) any other Revolving Lender (or, if reasonably satisfactory to the Administrative Agent, an Affiliate of any Revolving Lender) which the Lead Borrower shall have designated as an “L/C Issuer” by notice to the Administrative Agent with the consent of such other Revolving Lender or Affiliate of a Revolving Lender, as applicable, in each case, through itself or one of its designated Affiliates or branch offices. At any time there is more than one L/C Issuer, any singular references to the L/C Issuer shall mean any L/C Issuer, either L/C Issuer, each L/C Issuer, the L/C Issuer that has issued the applicable Letter of Credit, or both (or all) L/C Issuers, as the context may require. Notwithstanding anything herein to the contrary, neither Bank of America nor any of its branches or Affiliates shall be required to issue any commercial letters of credit hereunder.
L/C Issuer Fees” has the meaning specified in Section 2.11(b)(iii).
L/C Obligations” means at any time, the sum of (i) the maximum amount which is, or at any time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Letters of Credit plus (ii) the aggregate amount of all Unreimbursed Amounts not then paid by the applicable Borrower as provided in Section 2.05(e)(ii), (iii), (iv) or (v) to the applicable L/C Issuer in respect of drawings under Letters of Credit, including any portion of any such obligation to which a Lender has become subrogated pursuant to Section 2.05(e)(vi). For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement and all other Loan Documents, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
L/C Sublimit” means an amount equal to $25,000,000. The L/C Sublimit is a part of, and not in addition to, the Revolving Committed Amount.
Lead Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Bank PLC, Citibank, N.A., DNB (UK) Limited, J.P. Morgan Securities LLC, and RBC Capital Markets in their respective capacities as joint arrangers or any successor lead arranger.
Lead Borrower” has the meaning specified in the preamble.
Leases” means any and all leases, subleases, tenancies, options, concession agreements, rental agreements, occupancy agreements, franchise agreements, access agreements and any other agreements (including all amendments, extensions, replacements, renewals, modifications and/or guarantees thereof), whether or not of record and whether now in existence or hereafter entered into, affecting the use or occupancy of all or any portion of any real property.


- 36 -


Lender” means a Revolving Lender, Term Lender and each Eligible Assignee that becomes a Lender pursuant to Section 10.06(b) and their respective permitted successors and shall include, as the context may require, the Swing Line Lender in such capacity and each L/C Issuer in such capacity; it being understood that any Lender may make any Credit Extension to any Borrower by causing any domestic or foreign branch or Affiliate of such Lender that is an Eligible Assignee to make such Credit Extension.
Lender Party” means any Lender, L/C Issuer or Swing Line Lender.
Lending Office” means (i) with respect to any Lender and for each Type of Loan made to any Borrower, the “Lending Office” of such Lender (or of an Affiliate of such Lender) designated for such Type of Loan in such Lender’s Administrative Questionnaire or in any applicable Assignment and Assumption pursuant to which such Lender became a Lender hereunder or such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and any Borrower as the office by which its Loans of such Type to such Borrower are to be made and maintained, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate that is an Eligible Assignee, and (ii) with respect to any L/C Issuer and for each Letter of Credit made to any Borrower, the “Lending Office” of such L/C Issuer (or of an Affiliate of such L/C Issuer) designated on the signature pages hereto or such other office of such L/C Issuer (or of an Affiliate of such L/C Issuer) as such L/C Issuer may from time to time specify to the Administrative Agent and such Borrower as the office by which its Letters of Credit are to be issued and maintained with respect to such Borrower, which office may include any Affiliate of such L/C Issuer or any domestic or foreign branch of such L/C Issuer or such Affiliate. Unless the context otherwise requires, each reference to a Lender or L/C Issuer shall include its applicable Lending Office.
Letter of Credit” means any commercial or standby letter of credit issued hereunder by an L/C Issuer on or after the Closing Date, which provides for the payment of cash upon the honoring of a presentation thereunder and shall include the Existing Letter of Credit.
Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.
Letter of Credit Expiration Date” means the fifth Business Day prior to the Revolving Termination Date then in effect.
Letter of Credit Fee” has the meaning specified in Section 2.11(b)(i).
Letter of Credit Request” has the meaning specified in Section 2.05(c).
Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, easement, right-of-way or other encumbrance on title, lien (statutory or otherwise), 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, and any financing lease having substantially the same economic effect as any of the foregoing); provided that any operating lease or license (other than an Exclusive License), and any filing of a UCC financing statement that is a protective lease filing in respect of an operating lease and any filings with the Governmental Authority in respect of any license (other than an Exclusive License) do not constitute Liens.
Limited Condition Acquisition” means any Permitted Acquisition or other permitted Investment by one or more of Parent and its Restricted Subsidiaries whose consummation is not


- 37 -


expressly subject to a condition precedent that requires the availability of, or obtaining, debt or equity financing from a third party.
Loan” means a Revolving Loan, a Term Loan, an Incremental Term Loan, an Other Term Loan, an Incremental Revolving Loan, an Other Revolving Loan or a Swing Line Loan (or a portion of any Revolving Loans, Term Loans, Incremental Term Loans, Other Term Loans, Incremental Revolving Loans, Other Revolving Loans or Swing Line Loans), individually or collectively as appropriate; provided that, if any such loan or loans (or portions thereof) are combined or subdivided pursuant to a Notice of Extension/Conversion, the term “Loan” shall refer to the combined principal amount resulting from such combination or to each of the separate principal amounts resulting from such subdivision, as the case may be.
Loan Documents” means this Agreement, the Notes, the Guaranty Agreement, the Collateral Documents, each L/C Document and any agreement creating or perfecting rights in cash collateral pursuant to the provisions of Section 2.16 of this Agreement, collectively, in each case as the same may be amended, modified or supplemented from time to time, and all other related agreements and documents executed by a Loan Party in favor of, and delivered to, any Senior Credit Party in connection with or pursuant to any of the foregoing, but for the avoidance of doubt, excluding any Swap Agreements and any Cash Management Agreements.
Loan Parties” means each Borrower and the Guarantors, and “Loan Party” means any of the foregoing.
Luxembourg Account Pledge Agreements” means collectively the Jazz Financing Lux Account Pledge Agreement and the EUSA Pharma (Luxembourg) Account Pledge Agreement.
Luxembourg Share Pledge Agreements” means collectively the Jazz Financing Lux Share Pledge Agreement and the EUSA Pharma (Luxembourg) Share Pledge Agreement.
Margin Stock” means “margin stock” as such term is defined in Regulation U.
Material Acquisition” means any Permitted Acquisition that involves the payment of aggregate Acquisition Consideration by Parent and its Restricted Subsidiaries in excess of $50,000,000.
Material Adverse Effect” means (a) a material adverse effect on the business, property, results of operations, or financial condition of Parent and its Subsidiaries, taken as a whole (after taking into account any applicable insurance and any applicable indemnification (to the extent the provider of such insurance or indemnification has the financial ability to support its obligations with respect thereto and is not disputing or refusing to acknowledge the same)); or (b) material adverse effect on the rights of or benefits or remedies available to the Lenders or the Collateral Agent under any Loan Document.
Material Disposition” means any Disposition of property or series of related Dispositions of property that involves payment of aggregate Disposition Consideration to Parent and its Restricted Subsidiaries in excess of $50,000,000.
Material Indebtedness” means Indebtedness (other than (i) the Loans and Letters of Credit and (ii) Indebtedness solely among Parent and its Restricted Subsidiaries), or obligations in respect of one or more Swap Agreements, of any one or more of Parent and its Restricted Subsidiaries in an aggregate principal amount exceeding $20,000,000.50,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of Parent or any Restricted Subsidiary in respect of any Swap Agreement at any time shall be the termination value (giving effect to any netting


- 38 -


agreements) that Parent or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
Material Restricted Subsidiary” means each Restricted Subsidiary (i) that, for the most recent Test Period then ended, contributed greater than 10% of Consolidated EBITDA for such period or (ii) that contributed greater than 10% of Consolidated Total Assets as of the end of such Test Period; provided that, if at any time the aggregate amount of Consolidated EBITDA or Consolidated Total Assets attributable to all Restricted Subsidiaries (other than Excluded Subsidiaries) that are not Material Restricted Subsidiaries exceeds 15% of Consolidated EBITDA for any such period or 15% of Consolidated Total Assets as of the end of any such Test Period, Parent (or, in the event Parent has failed to do so concurrently with the delivery of financial statements for such period or quarter required pursuant to Section 6.01(a) or (b), the Administrative Agent) shall designate sufficient Restricted Subsidiaries (other than Excluded Subsidiaries) as “Material Restricted Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Restricted Subsidiaries.
Material Subsidiary” means, at any date of determination, each Subsidiary of the Parent that is not an Immaterial Subsidiary (but including, in any case, any Subsidiary that has been designated as a Material Subsidiary as provided in, or has been designated as an Immaterial Subsidiary in a manner that does not comply with, the definition of “Immaterial Subsidiary”).
Maturity Date” means (i) as to the Revolving Loans and Swing Line Loans, the Revolving Termination Date and (ii) as to Term Loans, the Term Loan Maturity Date.
Maximum Rate” has the meaning specified in Section 10.09.
Milestone Payments” means payments made under Contractual Obligations existing during the period of twelve months ending on the Closing Date or Contractual Obligations arising thereafter, in each case in connection with any Permitted Acquisition or other acquisition (including any license or the acquisition of any license) of any rights in respect of any drug or other pharmaceutical product (and any related property or assets) to sellers (or licensors) of the assets or Equity Interests acquired (or licensed) therein based on the achievement of specified revenue, profit or other performance targets (financial or otherwise).
Minimum Collateral Amount” means, at any time, (a) as to Cash Collateral consisting of cash or deposit account balances, an amount equal to 103 % of the Fronting Exposure of all L/C Issuers with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount determined by the Administrative Agent and the L/C Issuers in their sole discretion.
MNPI” has the meaning set forth in Section 2.19(a).
Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation, and its successors or, absent any such successor, such nationally recognized statistical rating organization as the Lead Borrower and the Administrative Agent may select.
Mortgage” means each mortgage, deed of trust or other agreement that conveys or evidences a Lien in favor of the Collateral Agent, for the benefit of the Collateral Agent and the Finance Parties, on the Mortgaged Property in form and substance reasonably acceptable to the Collateral Agent, including any amendment, restatement, modification or supplement thereto.


- 39 -


Mortgage Instruments” means such title reports, certificates of title, title insurance, “Life-of-Loan” flood certifications and flood insurance, opinions of counsel, surveys, appraisals, environmental reports, acknowledged borrower notices of flood insurance requirements and other similar information and related certifications as are customary for the jurisdiction of the applicable Mortgaged Property and in form and substance reasonably acceptable to the Administrative Agent; provided that in the case of real property located in the United States, Mortgage Instruments may include a “Life-of-Loan” Federal Emergency Standard Flood Hazard Determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the U.S. Borrower and each other Loan Party relating thereto), and if such Mortgaged Property is located in a special flood hazard area, evidence of flood insurance confirming that such insurance has been obtained to the extent required by this Agreement.
Mortgaged Property” means each fee interest in any real property (other than Excluded Assets), if any, owned or acquired after the Closing Date by any Loan Party.
Multiemployer Plan” means a “multiemployer plan” as defined in Section 3(37) or 4001(a)(3) of ERISA.
Net Cash Proceeds” means:
(i)with respect to any Asset Disposition (other than the issuance of Equity Interests), Casualty or Condemnation, (A) the gross amount of all cash proceeds (including cash Insurance Proceeds and cash Condemnation Awards) in the case of any Casualty or Condemnation actually paid to or actually received by Parent or any of its Restricted Subsidiaries in respect of such Asset Disposition, Casualty or Condemnation (including any cash proceeds received as income or other proceeds of any noncash proceeds of any Asset Disposition, Casualty or Condemnation as and when received), less (B) the sum of (1) the amount, if any, of all customary fees, legal fees, brokerage fees, commissions, costs and other expenses that are incurred in connection with such Asset Disposition, Casualty or Condemnation and are payable by Parent or any of its Restricted Subsidiaries, but only to the extent not already deducted in arriving at the amount referred to in clause (i)(A) above, (2) Taxes paid or reasonably estimated to be payable in connection therewith (including Taxes imposed on the distribution or repatriation of any such Net Cash Proceeds), (3) in the case of any Disposition by, or Condemnation or Casualty affecting, a non-Wholly Owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (3)) attributable to minority interests and not available for distribution to or for the account of Parent or a Wholly Owned Restricted Subsidiary as a result thereof, (4) appropriate amounts that must be set aside as a reserve in accordance with GAAP against any indemnities, liabilities (contingent or otherwise) associated with such Asset Disposition, Casualty or Condemnation, (5) if applicable, the principal amount of any Indebtedness secured by a Permitted Lien that has been repaid or refinanced in accordance with its terms with the proceeds of such Asset Disposition, Casualty or Condemnation and (6) any payments to be made by Parent or any of its Restricted Subsidiaries as agreed between Parent or such Restricted Subsidiary and the purchaser of any assets subject to an Asset Disposition, Casualty or Condemnation in connection therewith; and
(ii)with respect to any Debt Issuance or issuance of Equity Interests, the gross amount of cash proceeds paid to or received by Parent or any of its Restricted Subsidiaries in respect of such Debt Issuance or issuance of Equity Interests (including cash proceeds subsequently as and when received at any time in respect of such Debt Issuance or issuance of Equity Interests from non-cash consideration initially received or otherwise), less the sum of underwriting discounts and commissions or placement fees, investment banking fees, legal fees,


- 40 -


consulting fees, accounting fees and other customary fees and expenses incurred by Parent or any of its Restricted Subsidiaries in connection therewith.
Nominal Shares” means (i) for any Foreign Subsidiary, nominal issuances of Equity Interests in an aggregate amount not to exceed 5.0% of the Equity Interests or Equity Equivalents of such Subsidiary on a fully-diluted basis and (ii) in any case, director’s qualifying shares, in each case to the extent such issuances are required by applicable Laws.
Non-Consenting Lender” means any Lender that does not approve any amendment, waiver or consent that (a) requires the approval of all Lenders, all affected Lenders, or all the Lenders with respect to a certain Class of Loans, in accordance with the terms of Section 10.01 and (b) has been approved by the Required Lenders.
Non-Extension Notice Date” has the meaning specified in Section 2.05(c)(iii).
Non-U.S. Lender” means any Lender Party that is not a United States Person.
Note” means a Revolving Note, a Term Note or a Swing Line Note, and “Notes” means any combination of the foregoing.
Notice of Borrowing” means a request by the applicable Borrower for a Borrowing, substantially in the form of Exhibit A-1 hereto or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the applicable Borrower.
Notice of Extension/Conversion” has the meaning specified in Section 2.07(a).
OFAC” means the U.S. Treasury Department Office of Foreign Assets Control of the United States Department of the Treasury.
Obligation Currency” has the meaning specified in Section 10.16(a).
Offer of Specified Discount Prepayment” means the offer by Parent or any of its Subsidiaries to make a voluntary prepayment of Term Loans at a discount to par pursuant to Section 2.19(b).
Offered Amount” has the meaning specified in Section 2.19(d)(i).
Offered Discount” has the meaning specified in Section 2.19(d)(i).
Officer’s Certificate” means a certificate executed by the chief executive officer, the president, any vice president, secretary or one of the Financial Officers, each in his or her official (and not individual) capacity.
OML” means Orphan Medical, LLC, a Delaware limited liability company.
OML Settlement Agreements” means, collectively, the Civil Settlement Agreement among the United States of America, the U.S. Borrower and OML dated July 13, 2007, (ii) the Non-prosecution Agreement between the United States Attorney’s Office for the Eastern District of New York and the U.S. Borrower dated July 13, 2007, (iii) the Plea Agreement between the United States


- 41 -


Attorney’s Office for the Eastern District of New York and OML dated July 13, 2007 and (iv) the Corporate Integrity Agreement between the Office of Inspector General of the Department of Health and Human Services and the U.S. Borrower dated July 13, 2007.
Organization Documents” means (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction); (ii) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction); and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction) and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
Other Revolving Commitment Percentage” means, for each Lender, for each Class of Other Revolving Commitments, the percentage of the aggregate Other Revolving Commitments of such Class represented by such Lender’s Other Revolving Commitment of such Class at such time and identified as its Other Revolving Commitment Percentage of such Class in the relevant Refinancing Amendment, as such percentage may be modified in connection with any Assignment and Assumption made in accordance with the provisions of Section 10.06(b).
Other Revolving Commitments” means one or more Classes of revolving credit commitments hereunder that result from a Refinancing Amendment.
Other Revolving Loans” means the Revolving Loans made pursuant to any Other Revolving Commitment.
Other Taxes” means all present or future stamp, court, documentary, intangible, recording, or filing Taxes, or any other excise, property or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document.
Other Term Commitment Percentage” means, for each Lender, for each Class of Other Term Commitments, the percentage of the aggregate Other Term Commitments of such Class represented by such Lender’s Other Term Commitment of such Class at such time and identified as its Other Term Commitment Percentage of such Class in the relevant Refinancing Amendment, as such percentage may be modified in connection with any Assignment and Assumption made in accordance with the provisions of Section 10.06(b).
Other Term Commitments” means one or more Classes of term loan commitments hereunder that result from a Refinancing Amendment.
Other Term Loans” means one or more Classes of Term Loans that result from a Refinancing Amendment.
Outstanding Amount” means, with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date, including any L/C Borrowings outstanding on such date, but after giving effect to any reimbursements of outstanding unpaid drawings under any Letters of Credit (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Borrowings as


- 42 -


a Revolving Borrowing) or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on or before such date.
Parent” has the meaning specified in the preamble.
Participant” has the meaning specified in Section 10.06(d).
Participant Register” has the meaning specified in Section 10.06(d).
Participating Lender” has the meaning specified in Section 2.19(c)(ii).
Participation Interest” means a Credit Extension by a Lender by way of a purchase of a participation interest in Letters of Credit or L/C Obligations as provided in Section 2.05(e), in Swing Line Loans as provided in Section 2.01(c)(vi) or in any Loans as provided in Section 2.13.
Patriot Act” has the meaning set forth in Section 10.14.
PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any entity succeeding to any or all of its functions under ERISA.
Perfection Certificate” means with respect to any Loan Party a certificate, substantially in the form of Exhibit J to this Agreement, completed and supplemented with the schedules and attachments contemplated thereby and duly executed on behalf of such Loan Party by a Responsible Officer of such Loan Party.
Permitted Acquisition” means the purchase or other acquisition (including by merger or consolidation) by Parent or any Restricted Subsidiary of Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line (including rights in respect of any drug or other pharmaceutical product) or line of business of) any Person, or any Exclusive License of rights to a drug or other product line, in a single transaction or a series of related transactions if: (a) (i) in the case of any purchase or other acquisition of Equity Interests in a Person, such Person (including each Subsidiary of such Person), upon the consummation of such purchase or acquisition, will be a Restricted Subsidiary (including as a result of a merger or consolidation between Parent or any Restricted Subsidiary and such Person, with, in the case of a merger or consolidation involving Parent, Parent being the surviving entity) or (ii) in the case of any purchase, license or other acquisition of other assets, such assets will be owned and/or licensed by Parent or a Wholly Owned Restricted Subsidiary; (b) the business of such Person, or the business conducted with such assets, as the case may be, constitutes a business permitted by Section 7.03(b); (c) at the time of and immediately after giving effect (including pro forma effect) to any such purchase, license or other acquisition, (i) no Default shall have occurred and be continuing and (ii) if the Acquisition Consideration with respect thereto exceeds $100,000,000, Parent shall have delivered to the Administrative Agent a certificate of a Financial Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all the requirements set forth in this definition have been satisfied with respect to such purchase or other acquisition, together with reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clause (d) below; (d) after giving effect (on a pro forma basis in accordance with Section 1.03(c) and, if applicable, Section 1.03(e)) to any such purchase, license or other acquisition, the Secured Leverage Ratio shall not exceed the maximum permitted Secured Leverage Ratio set forth for the current period in Section 7.10(a) (as such level may be adjusted pursuant to any Secured Leverage Holiday in the event of a Relevant Acquisition) and (e) such purchase or acquisition was not consummated pursuant to a hostile tender offer.


- 43 -


Permitted Encumbrances” means:
(a)Liens imposed by law for Taxes that are not yet due or are being contested in compliance with Section 6.04 and Liens for unpaid utility charges;
(b)carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by Law, arising in the ordinary course of business and securing obligations that are not overdue by more than sixty (60) days or are being contested in compliance with Section 6.04;
(c)pledges and deposits made (i) in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations or employment laws or to secure other public, statutory or regulatory obligations and (ii) in respect of letters of credit, bank guarantees or similar instruments issued for the account of Parent or any Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (c)(i) above;
(d)pledges and deposits (i) to secure the performance of bids, trade and commercial contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and (ii) in respect of letters of credit, bank guarantees or similar instruments issued for the account of Parent or any Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (d)(i) above;
(e)judgment Liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VIII or securing appeal or surety bonds related to such judgments;
(f)easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of Parent or any Restricted Subsidiary; and
(g)banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with depository institutions and payment processors; provided that such deposit accounts or funds are not established or deposited for the purpose of providing collateral for any Indebtedness.
Permitted Exchange” means an exchange of real property of Parent or any Restricted Subsidiary that qualifies as a like-kind exchange pursuant to and in compliance with Section 1031 of the Code.
Permitted External Credit Agreement Refinancing Indebtedness” means Credit Agreement Refinancing Indebtedness incurred by the applicable Borrower in the form of one or more series of senior lien secured, junior lien secured or unsecured notes or loans (other than pursuant to a Refinancing Amendment); provided that (i) such Indebtedness is not secured by any property or assets of Parent, the applicable Borrower or any Subsidiary other than the Collateral and (ii) the security agreements, if any, relating to such Indebtedness are substantially the same as the Collateral Documents (as determined in good faith by the Lead Borrower) (with such differences as are reasonably satisfactory to the Administrative Agent).


- 44 -


Permitted Foreign Loan” means a loan made by any Loan Party to any Wholly Owned Restricted Subsidiary that is not a Loan Party after the date hereofClosing Date that satisfies the following requirements: (a) the proceeds of such loan are used, directly or indirectly, to finance an acquisition or other Investment permitted under clause (b), (q), (u) or (w) of Section 7.04; (b) to the extent such loan is in an aggregate principal amount exceeding $10,000,000, such loan is evidenced by a promissory note of such Foreign Subsidiary; and (c) if such loan is evidenced by a promissory note, such promissory note is delivered and pledged to the Administrative Agent pursuant to the applicable Collateral Documents.
Permitted Indebtedness” means unsecured Indebtedness (including Subordinated Indebtedness) of any Loan Party and any Permitted Refinancing Indebtedness in respect of any such Indebtedness; provided that (i) both immediately prior to and after giving effect thereto, no Default or Event of Default shall exist or result therefrom, (ii) such Indebtedness matures on or after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the date that is 91 days after the Latest Maturity Date (it being understood that any provision requiring an offer to purchase such Indebtedness as a result of a change of control or asset sale and any cash settled or net share settled conversion obligations shall not violate the foregoing restriction), (iii) such Indebtedness is not guaranteed by any Restricted Subsidiary of Parent other than the Subsidiary Guarantors (which guarantees, if such Indebtedness is subordinated, shall be expressly subordinated to the Finance Obligations on terms not less favorable to the Lenders than the subordination terms of such Subordinated Indebtedness) and (iv) both immediately prior to and after giving effect to the increase of such Indebtedness (on a pro forma basis in accordance with Section 1.03(c) and, if applicable, Section 1.03(e)), the Total Leverage Ratio as the end of the most recently completed Test Period shall not exceed 4.75 to 1.00.
Permitted Investments” means:
(a)direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(b)investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;
(c)certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, demand deposits, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000 in the case of U.S. banks and $250,000,000 (or the Dollar equivalent as of the date of determination) in the case of non-U.S. banks;
(d)fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clauses (a) and (c) above and entered into with a financial institution satisfying the criteria described in clause (c) above;
(e)marketable short-term money market and similar liquid funds having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency);


- 45 -


(f)Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency);
(g)investment funds investing substantially all of their assets in securities of the types described in clauses (a) through (f) above;
(h)in the case of any Parent or Foreign Subsidiary, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Parent or Foreign Subsidiary for cash management purposes; and
(i)investments permitted pursuant to Parent’s investment policy as approved by the Board of Directors (or committee thereof) of the Parent from time to time.
Permitted Liens” has the meaning assigned to such term in Section 7.02.
Permitted Refinancing Indebtedness” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”) other Indebtedness; provided that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so refinanced (plus unpaid accrued interest and premium (including tender premium) thereon, any committed or undrawn amounts and underwriting and original issue discounts, fees, commissions and expenses, associated with such Permitted Refinancing Indebtedness), (b) the final maturity date of such Permitted Refinancing Indebtedness is no earlier than the maturity date of the Indebtedness being Refinanced (it being understood that, in each case, any provision requiring an offer to purchase such Indebtedness as a result of a change of control or asset sale shall not violate the foregoing restriction), (c) if the Indebtedness (including any Guarantee thereof) being Refinanced is by its terms subordinated in right of payment to the Finance Obligations, such Permitted Refinancing Indebtedness (including any Guarantee thereof) shall be subordinated in right of payment to the Finance Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced, taken as a whole (as determined in good faith by the Board of Directors of Parent), (d) no Permitted Refinancing Indebtedness shall have obligors or contingent obligors that were not obligors or contingent obligors (or that would not have been required to become obligors or contingent obligors) in respect of the Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced is secured, such Permitted Refinancing Indebtedness may be secured on terms no less favorable, taken as a whole, to the Loan Parties than those contained in the documentation (including any intercreditor agreement) governing the Indebtedness being Refinanced (reasonably determined in good faith by the Board of Directors of Parent).
Permitted Reorganization” means the consummation of one or more transactions undertaken in good faith for the purpose of improving the consolidated Tax efficiency of Parent and the Restricted Subsidiaries, pursuant to which (i) certain Foreign Subsidiaries of the U.S. Borrower shall become Subsidiaries of Parent and not the U.S. Borrower, (ii) intellectual property assets held by one or more Foreign Subsidiaries of Parent shall be Disposed to one or more other Subsidiaries of Parent; provided that with respect to clause (i), no Loan Party shall become an Excluded Subsidiary as a result of such transaction and, with respect to clause (ii), any such Subsidiary of Parent to which such intellectual property assets (in each case other than Excluded Assets) are Disposed, shall be a Guarantor or shall become a Guarantor within the time periods specified under Section 6.09.


- 46 -


Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code maintained by or contributed to by Parent or any of its Restricted Subsidiaries or any ERISA Affiliate, including a Multiemployer Plan.
Platform” has the meaning specified in Section 10.02(e).
Pledged Collateral” means collectively the “Pledged Collateral” as defined in the U.S. Security Agreement and the Foreign Collateral Documents.
Pre-Commitment Information” means, taken as an entirety, any written information in respect of Parent and its Subsidiaries provided to any Agent or Lender by or on behalf of any Borrower prior to the Closing Date.
Principal Amortization Payment” means a scheduled principal payment on the Term Loans pursuant to Section 2.08(b) (including the remaining payment due on the Term Loan Maturity Date).
Principal Amortization Payment Date” means (i) the last Business Day of each calendar quarter, commencing with December 31, 2015 and (ii) the Term Loan Maturity Date.
Pro rata Share” has the meaning assigned to such term in Section 8.03(b).
Process Agent” has the meaning set forth in Section 10.13(d).
Public Lender” has the meaning specified in Section 10.02(e).
Qualified Capital Stock” means Equity Interests of Parent that do not include a cash dividend (other than dividends that are solely payable as and when declared by the Board of Directors of Parent) and are not mandatorily redeemable by Parent or any of its Restricted Subsidiaries or redeemable at the option of the holder of such Equity Interests, in each case prior to the 91st day following the Term Loan Maturity Date (other than redemptions solely for Qualified Capital Stock in such Person and cash in lieu of fractional shares of such Equity Interests and redemptions upon the occurrence of an “asset sale” or a “change in control” (or similar event, however denominated) so long as any such redemption requirement becomes operative only after repayment in full (or waiver thereof) of all the Senior Credit Obligations (other than contingent indemnification obligations); provided, however, that an Equity Interest in any Person that is issued to any employee or to any plan for the benefit of employees or by any such plan to such employees shall constitute Qualified Capital Stock notwithstanding any obligation of Parent or any Subsidiary to repurchase such Equity Interest in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability).
Qualifying Lender” has the meaning specified in Section 2.19(d)(iii).
Refinance” has the meaning set forth in the definition of Permitted Refinancing Indebtedness. “Refinanced” and “Refinancing” shall have the corresponding meanings
Refinanced Debt” has the meaning set forth in the definition of “Credit Agreement Refinancing Indebtedness.”


- 47 -


Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent, the Lead Borrower and Parent executed by each of (a) each applicable Borrower, (b) Parent, (c) the Administrative Agent and (d) each Eligible Assignee and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.18.
Refunded Swing Line Loans” has the meaning specified in Section 2.01(c)(iii).
Register” has the meaning specified in Section 10.06(c).
Regulation T, U or X” means Regulation T, U or X, respectively, of the Board of Governors of the Federal Reserve System as amended, or any successor regulation.
Reimbursement Obligations” means each Borrower’s obligation under Section 2.05(e) to reimburse L/C Disbursements.
Reinvestment Funds” means, with respect to any Net Cash Proceeds of Insurance Proceeds, any Condemnation Award or any Asset Disposition in respect of the single event or series of related events giving rise thereto, that portion of such funds as, according to a certificate of a Responsible Officer of the Lead Borrower delivered to the Administrative Agent within five Business Days after the occurrence of the Casualty, Condemnation or Asset Disposition giving rise thereto (or such later date as the Administrative Agent may agree in its reasonable discretion), are expected to be reinvested (or to which the Parent or any Restricted Subsidiary expects to enter into a binding commitment for any such reinvestment) within twelve months after the occurrence of the Casualty, Condemnation or Asset Disposition giving rise thereto (or if some or all of such Net Cash Proceeds are scheduled to be received at a later date than the date of such occurrence, within 12 months following the receipt of such Net Cash Proceeds) in long-term assets useful in the business of Parent and its Restricted Subsidiaries; provided that, if any such Net Cash Proceeds are not actually so reinvested within 18 months of such Casualty, Condemnation or Asset Disposition (or twelve months of such Casualty, Condemnation or Asset Disposition if not so committed on or prior to the last day of such twelve-month period), such unreinvested portion shall no longer constitute Reinvestment Funds and shall be applied on the last day of such period as a mandatory prepayment as provided in Section 2.09(c)(iii); provided, further, that such certificate may only be delivered (and any related Net Cash Proceeds may only be deemed Reinvestment Funds) if (x) no Event of Default shall have occurred and be continuing on the date of such certificate or (y) if Parent or one or more of its Restricted Subsidiaries shall have then entered into one or more continuing agreements with a Person not an Affiliate of any of them for the reinvestment in long-term assets useful in the business of Parent and its Restricted Subsidiaries, none of the Administrative Agent or the Collateral Agent shall have commenced any action or proceeding to exercise or seek to exercise any right or remedy with respect to any Collateral (including any action of foreclosure, enforcement, collection or execution or by and proceeding under any Insolvency or Liquidation Proceeding).
Rejected Amount” has the meaning specified in Section 2.09(f).
Rejection Deadline” has the meaning set forth in the Section 2.09(f).
Rejection Notice” has the meaning specified in Section 2.09(f).
Related Obligations” has the meaning specified in Section 9.12.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees and agents of such Person and of such Person’s Affiliates; provided that


- 48 -


agents of such Person and of such Person’s Affiliates shall only be included in this definition of “Related Parties” to the extent they act on behalf of, or at the express instructions of, such Person or such Person’s Affiliates; provided further that each reference to a Person, such Person’s Affiliate, director, officer or employee in this definition pertains to a Person, such Person’s Affiliate, director, officer or employee involved in the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights and responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein.
Release” means any spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the Environment or within, upon, or from or into any building, structure, facility or fixture.
Relevant Acquisition” has the meaning set forth in Section 7.10(a).
Relevant Territory” means (i) a member state of the European Communities (other than Ireland); or (ii) to the extent not a member state of the European Communities, a jurisdiction with which Ireland has entered into a double taxation treaty that either has the force of law by virtue of section 826(1) of the TCA or which will have the force of law on completion of the procedures set out in section 826(1) of the TCA.
Representative” has the meaning specified in Section 10.07.
Required Lenders” means, at any date of determination, Lenders whose aggregate Credit Exposure constitutes more than 50% of the Credit Exposure of all Lenders at such time; provided, however, that (i) if any Lender shall be a Defaulting Lender at such time then there shall be excluded from the determination of Required Lenders such Lender and its Credit Exposure at such time and (ii) the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that a Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.
Required Revolving Lenders” means Lenders whose aggregate Revolving Credit Exposure constitutes more than 50% of the Revolving Credit Exposure of all Lenders at such time; provided, however, that (i) if any Lender shall be a Defaulting Lender at such time then there shall be excluded from the determination of Required Revolving Lenders such Lender and the aggregate principal amount of Revolving Credit Exposure of such Lender at such time and (ii) the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that a Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.
Required Term Lenders” means, at any date of determination, Lenders whose aggregate Term Credit Exposure constitutes more than 50% of the Term Credit Exposure of all Lenders at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time then there shall be excluded from the determination of Required Term Lenders such Lender and its Term Credit Exposure at such time.
Responsible Officer” means the chief executive officer, president, senior vice president, vice president, chief financial officer, treasurer or controller of a Loan Party or, in the case of a Foreign Guarantor, any duly appointed authorized signatory or any director or managing member of such Person that has been designated in writing by Parent as being so authorized, and solely for purposes of notices


- 49 -


given pursuant to Article II, any other officer or employees of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Par