exv10w1






Exhibit 10.1



Execution Copy




DIEBOLD, INCORPORATED,




THE SUBSIDIARY BORROWERS,

 






CREDIT AGREEMENT




dated as of October 19, 2009




 






JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




and




THE LENDERS PARTY HERETO




 






J.P. MORGAN SECURITIES INC.,

PNC CAPITAL MARKETS LLC

and

U.S. BANK NATIONAL ASSOCIATION,

as Joint Lead Arrangers and Bookrunners




PNC BANK, NATIONAL ASSOCIATION

and

U.S. BANK NATIONAL ASSOCIATION,

as Syndication Agents




BANK OF AMERICA, N.A.,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Documentation Agents





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I — DEFINITIONS	 	 	1	 
	1.1.
	 	Defined Terms	 	 	1	 
	1.2.
	 	Rules of Construction	 	 	21	 
	1.3.
	 	Accounting Terms; GAAP	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE II — THE CREDITS	 	 	22	 
	2.1.
	 	The Commitments	 	 	22	 
	2.2.
	 	Repayment of Loans; Evidence of Debt	 	 	22	 
	2.3.
	 	Procedures for Borrowing	 	 	23	 
	2.4.
	 	Termination or Reduction of Increases of Revolving Credit Commitments	 	 	24	 
	2.5.
	 	Facility and Administrative Agent Fees	 	 	26	 
	2.6.
	 	Optional and Mandatory Principal Payments on All Loans	 	 	26	 
	2.7.
	 	Conversion and Continuation of Outstanding Advances	 	 	27	 
	2.8.
	 	Interest Rates, Interest Payment Dates; Interest and Fee Basis	 	 	28	 
	2.9.
	 	Rates Applicable After Default	 	 	28	 
	2.10.
	 	Pro Rata Payment, Method of Payment	 	 	29	 
	2.11.
	 	Telephonic Notices	 	 	30	 
	2.12.
	 	Notification of Advances, Interest Rates, Prepayments and Commitment Reductions	 	 	30	 
	2.13.
	 	Lending Installations	 	 	30	 
	2.14.
	 	Non-Receipt of Funds by the Administrative Agent	 	 	30	 
	2.15.
	 	Facility Letters of Credit	 	 	31	 
	2.16.
	 	Swing Loans	 	 	36	 
	2.17.
	 	Defaulting Lenders	 	 	37	 
	2.18.
	 	Guaranties	 	 	39	 
	 
	 	 	 	 	 	 
	ARTICLE III — CHANGE IN CIRCUMSTANCES, TAXES	 	 	40	 
	3.1.
	 	Yield Protection	 	 	40	 
	3.2.
	 	Changes in Capital Adequacy Regulations	 	 	40	 
	3.3.
	 	Availability of Types of Advances	 	 	41	 
	3.4.
	 	Funding Indemnification	 	 	41	 
	3.5.
	 	Lender Statements; Survival of Indemnity	 	 	41	 
	3.6.
	 	Taxes	 	 	42	 
	3.7.
	 	Substitution of Lender	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE IV — CONDITIONS PRECEDENT	 	 	45	 
	4.1.
	 	Closing Conditions	 	 	45	 
	4.2.
	 	Each Advance	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE V — REPRESENTATIONS AND WARRANTIES	 	 	46	 
	5.1.
	 	Corporate Existence and Standing	 	 	46	 
	5.2.
	 	Authorization and Validity	 	 	46	 
	5.3.
	 	No Conflict; Government Consent	 	 	47	 
	5.4.
	 	Financial Statements	 	 	47	 
	5.5.
	 	Material Adverse Change	 	 	47	 






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	5.6.
	 	Taxes	 	 	47	 
	5.7.
	 	Litigation and Guarantee Obligations	 	 	47	 
	5.8.
	 	Subsidiaries	 	 	48	 
	5.9.
	 	ERISA	 	 	48	 
	5.10.
	 	Accuracy of Information	 	 	48	 
	5.11.
	 	Regulations T, U and X	 	 	48	 
	5.12.
	 	Material Agreements	 	 	49	 
	5.13.
	 	Compliance With Laws; Properties	 	 	49	 
	5.14.
	 	Plan Assets; Prohibited Transactions	 	 	49	 
	5.15.
	 	Environmental Matters	 	 	49	 
	5.16.
	 	Investment Company Act	 	 	49	 
	5.17.
	 	Subsidiary Borrowers	 	 	49	 
	5.18.
	 	Insurance	 	 	50	 
	5.19.
	 	Ownership of Properties	 	 	50	 
	5.20.
	 	Labor Controversies	 	 	50	 
	5.21.
	 	Burdensome Obligations	 	 	50	 
	 
	 	 	 	 	 	 
	ARTICLE VI — COVENANTS	 	 	50	 
	6.1.
	 	Financial Reporting	 	 	50	 
	6.2.
	 	Use of Proceeds	 	 	51	 
	6.3.
	 	Notice of Default	 	 	51	 
	6.4.
	 	Conduct of Business	 	 	52	 
	6.5.
	 	Taxes	 	 	52	 
	6.6.
	 	Insurance	 	 	52	 
	6.7.
	 	Compliance with Laws	 	 	52	 
	6.8.
	 	Properties; Inspection	 	 	52	 
	6.9.
	 	Merger	 	 	52	 
	6.10.
	 	Sale of Assets	 	 	53	 
	6.11.
	 	Investments and Acquisitions	 	 	53	 
	6.12.
	 	Liens	 	 	54	 
	6.13.
	 	Affiliates	 	 	54	 
	6.14.
	 	Indebtedness of Certain Subsidiaries	 	 	55	 
	6.15.
	 	Limitation on Restrictions on Subsidiary Distributions	 	 	55	 
	6.16.
	 	Financial Contracts	 	 	56	 
	6.17.
	 	Total Net Debt to Capitalization Ratio	 	 	56	 
	6.18.
	 	Interest Coverage Ratio	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE VII — DEFAULTS	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE VIII — ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES	 	 	58	 
	8.1.
	 	Acceleration	 	 	58	 
	8.2.
	 	Amendments	 	 	59	 
	8.3.
	 	Preservation of Rights	 	 	61	 
	 
	 	 	 	 	 	 
	ARTICLE IX — GUARANTEE	 	 	61	 
	9.1.
	 	Guarantee	 	 	61	 
	9.2.
	 	No Subrogation	 	 	62	 
	9.3.
	 	Amendments, etc. with respect to the Obligations; Waiver of Rights	 	 	62	 
	9.4.
	 	Guarantee Absolute and Unconditional	 	 	63	 






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	9.5.
	 	Reinstatement	 	 	63	 
	9.6.
	 	Payments	 	 	64	 
	 
	 	 	 	 	 	 
	ARTICLE X — GENERAL PROVISIONS	 	 	64	 
	10.1.
	 	Survival of Representations	 	 	64	 
	10.2.
	 	Governmental Regulation	 	 	64	 
	10.3.
	 	Taxes	 	 	64	 
	10.4.
	 	Headings	 	 	64	 
	10.5.
	 	Entire Agreement	 	 	64	 
	10.6.
	 	Several Obligations; Benefits of this Agreement	 	 	64	 
	10.7.
	 	Expenses; Indemnification	 	 	64	 
	10.8.
	 	Accounting	 	 	65	 
	10.9.
	 	Severability of Provisions	 	 	65	 
	10.10.
	 	Nonliability of Lenders	 	 	65	 
	10.11.
	 	Confidentiality	 	 	66	 
	10.12.
	 	Nonreliance	 	 	67	 
	10.13.
	 	USA PATRIOT Act	 	 	67	 
	10.14.
	 	Interest Rate Limitation	 	 	67	 
	 
	 	 	 	 	 	 
	ARTICLE XI — THE ADMINISTRATIVE AGENT	 	 	67	 
	 
	 	 	 	 	 	 
	ARTICLE XII — SETOFF; ADJUSTMENTS AMONG LENDERS	 	 	69	 
	12.1.
	 	Setoff	 	 	69	 
	12.2.
	 	Ratable Payments	 	 	69	 
	 
	 	 	 	 	 	 
	ARTICLE XIII — BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS	 	 	70	 
	13.1.
	 	Successors and Assigns	 	 	70	 
	13.2.
	 	Dissemination of Information	 	 	72	 
	13.3.
	 	Tax Treatment	 	 	72	 
	 
	 	 	 	 	 	 
	ARTICLE XIV — NOTICES	 	 	73	 
	14.1.
	 	Notices	 	 	73	 
	14.2.
	 	Change of Address	 	 	73	 
	 
	 	 	 	 	 	 
	ARTICLE XV — COUNTERPARTS	 	 	73	 
	 
	 	 	 	 	 	 
	ARTICLE XVI — CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER
OF JURY TRIAL, JUDGMENT CURRENCY
	 	 	74	 
	16.1.
	 	Choice of Law	 	 	74	 
	16.2.
	 	Waiver of Jury Trial	 	 	74	 
	16.3.
	 	Submission to Jurisdiction; Waivers	 	 	74	 
	16.4.
	 	Acknowledgments	 	 	75	 
	16.5.
	 	Power of Attorney	 	 	75	 
	16.6.
	 	Judgment	 	 	75	 






iii









 






EXHIBITS

EXHIBIT A — PRICING SCHEDULE

EXHIBIT B — ASSIGNMENT AND ASSUMPTION AGREEMENT

EXHIBIT C — DOMESTIC SUBSIDIARY BORROWER OPINION OF COUNSEL

EXHIBIT D — FOREIGN SUBSIDIARY BORROWER OPINION OF COUNSEL

EXHIBIT E — GUARANTY

EXHIBIT F — JOINDER AGREEMENT

EXHIBIT G — MANDATORY COSTS

EXHIBIT H — REVOLVING CREDIT NOTE

EXHIBIT I — OPINION OF COUNSEL

EXHIBIT J — WRITTEN TRANSFER INSTRUCTIONS

EXHIBIT K — COMPLIANCE CERTIFICATE




SCHEDULES




SCHEDULE 1.1(a) — COMMITMENTS

SCHEDULE 1.1(b) — SUBSIDIARY BORROWERS

SCHEDULE 5.7 — LITIGATION

SCHEDULE 5.8 — SUBSIDIARIES

SCHEDULE 6.12 — LIENS





iv











 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT (this “Agreement”), dated as of October 19, 2009, is among DIEBOLD,
INCORPORATED, an Ohio corporation (the “Company”), the SUBSIDIARY BORROWERS (as hereinafter
defined) from time to time parties hereto (together with the Company, the “Borrowers”), the
lenders from time to time parties hereto (the “Lenders”), and JPMORGAN CHASE BANK, N.A., a
national banking association, as Administrative Agent.



          The parties hereto agree as follows:




ARTICLE I




DEFINITIONS




     1.1 Defined Terms. As used in this Agreement, the following terms shall have the
following meanings:



     “Acquisition” means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Company or any of its Subsidiaries
(i) acquires any going business or all or substantially all of the assets of any Person or division
thereof, whether through purchase of assets, merger or otherwise or (ii) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of transactions) at
least a majority (in number of votes) of the Voting Stock of any Person.



     “Advance” means a borrowing hereunder (or conversion or continuation thereof)
consisting of the aggregate amount of the several Loans or Facility Letters of Credit of the same
Type and, in the case of Multicurrency Loans, in the same Agreed Currency and for the same Interest
Period, and further, in the case of Fixed Rate Loans, for the same Interest Period, made by the
Lenders on the same Borrowing Date (or converted or continued by the Lenders on the same date of
conversion or continuation).



     “Affiliate” of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of Voting Stock of the
controlled Person or possesses, directly or indirectly, the power to direct or cause the direction
of the management or policies of the controlled Person, whether through ownership of Capital Stock,
by contract or otherwise.



     “Administrative Agent” means JPMorgan Chase in its capacity as contractual
representative of the Lenders pursuant to Article XI, and not in its individual capacity as a
Lender, and any successor Administrative Agent appointed pursuant to Article XI.



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



     “Aggregate Commitments” means the aggregate amount, calculated using the Dollar
Equivalent Amount thereof, of the Commitments of all Lenders.



     “Aggregate Euro Revolving Credit Commitments” means the aggregate amount, stated in
Euro, of the Euro Revolving Credit Commitments of all of the Euro Lenders.



1









 





     “Aggregate Euro Revolving Credit Outstandings” means as at any date of determination
with respect to any Euro Lender, the sum of the aggregate unpaid principal amount of such Lender’s
Euro Revolving Credit Loans on such date and the amount of such Lender’s Pro Rata Share of the Euro
Facility Letter of Credit Obligations and Euro Swing Loans on such date, both stated in Euro based
on the Euro Equivalent Amount.



     “Aggregate Revolving Credit Outstandings” means as at any date of determination with
respect to any Revolving Credit Lender, the sum of the Dollar Equivalent Amount on such date of the
aggregate unpaid principal amount of such Lender’s Revolving Credit Loans on such date and the
Dollar Equivalent Amount on such date of the amount of such Lender’s Pro Rata Share of the Facility
Letter of Credit Obligations and Swing Loans on such date.



     “Aggregate U.S. Revolving Credit Commitments” means the aggregate amount, stated in
U.S. Dollars, of the U.S. Revolving Credit Commitments of all of the U.S. Lenders.



     “Aggregate U.S. Revolving Credit Outstandings” means as at any date of determination
with respect to any U.S. Lender, the sum of the aggregate unpaid principal amount of such Lender’s
U.S. Revolving Credit Loans on such date and the amount of such Lender’s Pro Rata Share of the U.S.
Facility Letter of Credit Obligations and U.S. Swing Loans on such date, both stated in U.S.
Dollars.



     “Agreed Currencies” means (i) Dollars, (ii) the Euro, and (iii) any other Eligible
Currency which a Borrower requests the Administrative Agent to include as an Agreed Currency
hereunder and which is a currency all of the Euro Lenders and the Administrative Agent agree to
make Euro Loans in (and, for the avoidance of doubt, the making of a Euro Loan or issuance of any
Euro Facility Letter of Credit denominated in any currency shall be deemed to evidence such
agreement with respect to such currency).



     “Agreement” means this credit agreement, as it may be amended or modified and in
effect from time to time.



     “Agreement Currency” is defined in Section 16.6.



     “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Eurodollar Adjusted Base Rate for a one month Interest Period on such
day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%,
provided that, for the avoidance of doubt, the Eurodollar Adjusted Base Rate for any day shall be
based on the rate appearing on the Reuters Screen LIBOR01 Page (or on any successor or substitute
page) at approximately 11:00 a.m. London time on such day (without any rounding). Any change in
the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Eurodollar Adjusted Base Rate shall be effective from and including the effective date of such
change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Adjusted Base Rate,
respectively.



     “Applicable Margin” means the amounts set forth in the Pricing Schedule on Exhibit A
hereto.



     “Article” means an article of this Agreement unless another document is specifically
referenced.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 13.1),
and accepted by the
Administrative Agent, substantially in the form of Exhibit B or any other form approved by the
Administrative Agent.



2









 





     “Authorized Officer” means, with respect to any Borrower, any of the president, the
chief executive officer, any Designated Financial Officer or the secretary of the Company or any
other Person designated by any of the foregoing in writing to the Administrative Agent from time to
time to act on behalf of any Borrower (or, if so designated, a specific Borrower) which designation
has not been rescinded in writing, in each case acting singly, provided that two Authorized
Officers shall be required to modify the wiring instructions for any Advance.



     “Available Foreign Currencies” means the Agreed Currencies other than Dollars.



     “Board of Directors” means: (1) with respect to a corporation, the board of directors
of the corporation or such directors or committee serving a similar function; (2) with respect to a
limited liability company, the board of managers of the company or such managers or committee
serving a similar function; (3) with respect to a partnership, the Board of Directors of the
general partner of the partnership; and (4) with respect to any other Person, the managers,
directors, trustees, board or committee of such Person or its owners serving a similar function.



     “Borrowers” is defined in the preamble hereto.



     “Borrowing Date” means any Business Day specified in a notice pursuant to Section 2.3,
2.15 or 2.16 as a date on which a Borrower requests the Lenders to make Loans hereunder or, with
respect to the issuance of any Facility Letter of Credit, the date the applicable Issuer issues
such Facility Letter of Credit.



     “Business Day” means (i) with respect to any borrowing, payment or rate selection of
Multicurrency Advances, a day (other than a Saturday or Sunday) on which banks generally are open
in Chicago, London and New York for the conduct of substantially all of their commercial lending
activities and on which dealings in Dollars, Euros and, if another Agreed Currency is relevant,
such other Agreed Currency or Currencies are carried on in the London interbank market, (ii) if
the Advances which are the subject of such borrowing, payment or rate selection are denominated in
Euro, a day which is also a day on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System, or any successor thereto, is open, and (iii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are open in Chicago,
London and New York for the conduct of substantially all of their commercial lending activities.



     “Capital Stock” means (i) in the case of any corporation, all capital stock and any
securities exchangeable for or convertible into capital stock and any warrants, rights or other
options to purchase or otherwise acquire capital stock or such securities or any other form of
equity securities, (ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of corporate stock,
(iii) in the case of a partnership or limited liability company, partnership or membership
interests (whether general or limited) and (iv) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.



     “Capitalized Lease” of a Person means any lease of Property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in accordance with GAAP.



     “Capitalized Lease Obligations” of a Person means the amount of the obligations of
such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such
Person prepared in accordance with GAAP.



3









 





     “Cash Equivalents” means (i) securities issued directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in support thereof), (ii) Dollar
denominated time deposits, certificates of deposit and bankers’ acceptances of (x) any Lender or
(y) any bank whose short-term commercial paper rating from S&P is at least investment grade or the
equivalent thereof (any such bank, an “Approved Lender”), (iii) commercial paper issued by
any Lender or Approved Lender or by the parent company of any Lender or Approved Lender and
commercial paper issued by, or guaranteed by, any industrial or financial company with a short-term
commercial paper rating of at least investment grade or the equivalent thereof, (iv) investment
grade bonds and preferred stock of investment grade companies, including but not limited to
municipal bonds, corporate bonds, treasury bonds, etc., (v) foreign Investments that are of similar
type of, and that have a rating comparable to, any of the Investments referred to in the preceding
clauses (i) through (iv) above, (vi) investments in money market funds substantially all the assets
of which are comprised of securities of the types described in clauses (i) through (v) above and
(vii) other securities and financial instruments which offer a security comparable to those listed
above.



     “Change of Control” means (i) a majority of the members of the Board of Directors of
the Company shall not be Continuing Directors; or (ii) any Person, including a “group” (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) which
includes such Person, shall purchase or otherwise acquire, directly or indirectly, beneficial
ownership of Voting Stock of the Company and, as a result of such purchase or acquisition, any such
Person (together with its Affiliates), shall directly or indirectly beneficially own in the
aggregate Voting Stock representing more than 30% of the combined voting power of Company’s Voting
Stock.



     “Charges” is defined in Section 10.14.



     “Class”, when used in reference to any Loan or Commitment, refers to whether such Loan
is a U.S. Loan or Euro Loan or such Commitment is a U.S. Revolving Credit Commitment or Euro
Revolving Credit Commitment.



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



     “Commitment” means, for each Lender, such Lender’s U.S. Revolving Credit Commitment
and Euro Revolving Credit Commitment, and “Commitments” means the aggregate of all of the Lenders’
Commitments.



     “Company” is defined in the preamble hereto.



     “Compliance Certificate” is defined in Section 6.1(iii).



     “Condemnation” is defined in Section 7.8.



     “Continuing Directors” means individuals who at the beginning of any period of two
consecutive calendar years constituted the board of directors of the Company, together with any new
directors whose election by such board of directors or whose nomination for election was approved
by a vote of at least
two-thirds of the members of such board of directors then still in office who either were
members of such board of directors at the beginning of such period or whose election or nomination
for election was previously so approved.



4









 





     “Controlled Group” means all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control which, together with the
Company or any of its Subsidiaries, are treated as a single employer under Sections 414(b) or (c)
of the Code.



     “Conversion/Continuation Notice” is defined in Section 2.7.1.



     “Default” means an event described in Article VII.



     “Defaulting Lender” means any Lender, as determined by the Administrative Agent, that
has (a) failed to fund any portion of its Loans or participations in Facility Letters of Credit or
Swing Loans within three Business Days of the date required to be funded by it hereunder, (b)
notified any Borrower, the Administrative Agent, the Issuer, the Swing Lender or any Lender in
writing that it does not intend to comply with any of its funding obligations under this Agreement
or has made a public statement to the effect that it does not intend to comply with its funding
obligations under this Agreement or generally under other agreements in which it commits to extend
credit, (c) failed, within three Business Days after receipt of a written request from the
Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to
its obligations to fund prospective Loans and participations in then outstanding Facility Letters
of Credit and Swing Loans, provided that any such Lender shall cease to be a Defaulting Lender
under this clause (c) upon receipt of such confirmation by the Administrative Agent, (d) otherwise
failed to pay over to the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within three Business Days of the date when due, unless the subject of a good
faith dispute, or (e) (i) become or is insolvent or has a parent company that has become or is
insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or
appointment or has a parent company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken
any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment; provided that (i) if a Lender would be a “Defaulting Lender” solely by
reason of events relating to a parent company of such Lender or solely because a Governmental
Authority has been appointed as receiver, conservator, trustee or custodian for such Lender, in
each case as described in clause (e) above, the Administrative Agent may, in its discretion,
determine that such Lender is not a “Defaulting Lender” if and for so long as the Administrative
Agent is satisfied that such Lender will continue to perform its funding obligations hereunder,
(ii) the Administrative Agent may, by notice to the Borrower and the Lenders, declare that a
Defaulting Lender is no longer a “Defaulting Lender” if the Administrative Agent determines, in its
discretion, that the circumstances that resulted in such Lender becoming a “Defaulting Lender” no
longer apply and (iii) a Lender shall not be a Defaulting Lender solely by virtue of the ownership
or acquisition of Voting Stock or any other equity interest in such Lender or a parent company
thereof by a Governmental Authority or an instrumentality thereof or the exercise by any such
Governmental Authority or instrumentality thereof of its rights under any such Voting Stock or
other equity interest.



     “Designated Financial Officer” means, with respect to any Borrower, its chief
financial officer, director of treasury services, treasurer, assistant treasurer, or similar
position.



     “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or upon the happening
of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in part.



5









 





     “Dollars”, “U.S. Dollars” and “$” means dollars in lawful currency of
the United States of America.



     “Dollar Equivalent Amount” of any currency at any date shall mean (i) the amount of
such currency if such currency is in Dollars or (ii) the Equivalent Amount of Dollars if such
currency is any currency other than Dollars.



     “Domestic Subsidiary” means each present and future Subsidiary of the Company which is
not a Foreign Subsidiary.



     “Domestic Subsidiary Borrower” means each Domestic Subsidiary listed as a Domestic
Subsidiary Borrower in Schedule 1.1(b) as amended from time to time in accordance with Section
8.2.2.



     “Domestic Subsidiary Opinion” means with respect to any Domestic Subsidiary Borrower,
a legal opinion of counsel to such Domestic Subsidiary Borrower (or the Company) addressed to the
Administrative Agent and the Lenders concluding that such Domestic Subsidiary Borrower and the Loan
Documents to which it is a party substantially comply with the matters listed on Exhibit C, with
such assumptions, qualifications and deviations therefrom as are reasonably acceptable to the
Administrative Agent.



     “EBIT” means, for any period, the sum of (a) the consolidated net income (or loss) of
the Company and its Subsidiaries for such period determined in conformity with GAAP, plus
(b) to the extent deducted in determining such net income, income taxes, and Interest Expense, and
any extraordinary and non-recurring losses and non-cash charges and related tax effects in
accordance with GAAP, minus (c) to the extent included in determining such net income, each
of the following, without duplication: (i) the income of any Person (other than a Subsidiary of
the Company) in which any Person other than the Company or any of its Subsidiaries has a joint
interest or a partnership interest or other ownership interest, except to the extent of the amount
of dividends or other distributions actually paid to the Company or any of its Subsidiaries by such
Person during such period, (ii) the income of any Person accrued prior to the date it becomes a
Subsidiary of the Company or is merged into or consolidated with the Company or any of its
Subsidiaries or that Person’s assets are acquired by the Company or any of its Subsidiaries, (iii)
gains from the sale, exchange, transfer or other disposition of property or assets not in the
ordinary course of business of the Company and its Subsidiaries, and related tax effects in
accordance with GAAP, (iv) any other extraordinary or non-recurring gains or other income not from
the continuing operations of the Company or its Subsidiaries, and related tax effects in accordance
with GAAP and (v) the income of any Subsidiary of the Company (other than Subsidiaries which are
not material in the aggregate as agreed upon between the Company and the Administrative Agent) to
the extent that the declaration or payment of dividends or similar distributions by that Subsidiary
of that income is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable
to that Subsidiary.



     “Effective Date” means the date on which the conditions precedent set forth in
Sections 4.1 and 4.2 are satisfied.



     “Eligible Currency” means any currency other than Dollars (i) that is readily
available, (ii) that is freely traded, (iii) in which deposits are customarily offered to banks in
the London interbank market, (iv) that is convertible into Dollars in the international interbank
market and (v) as to which a Dollar Equivalent Amount may be readily calculated. If, after the
designation by the Lenders of any currency as an Agreed Currency, (x) currency control or other
exchange regulations are imposed in the country in which such currency is issued with the result
that different types of such currency are introduced, (y) such



6









 




currency is, in the reasonable
determination of the Administrative Agent, no longer readily available or freely traded or (z) in
the reasonable determination of the Administrative Agent, a Dollar Equivalent Amount of such
currency is not readily calculable, the Administrative Agent shall promptly notify the Lenders and
the Company, and such currency shall no longer be an Agreed Currency until such time as all of the
Lenders agree to reinstate such currency as an Agreed Currency and promptly, but in any event
within five Business Days of receipt of such notice from the Administrative Agent, the Borrower
shall repay all Loans in such affected currency or convert such Loans into Loans in Dollars or
another Agreed Currency, subject to the other terms set forth in Article II.




     “Environmental Laws” means, with respect to the Company or any of its Subsidiaries,
any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to (a) the protection
of the environment, (b) the effect of the environment on human health, (c) emissions, discharges or
releases of Hazardous Substances into surface water, ground water or land, or (d) the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Substances or the clean-up or other remediation thereof, in each case, applicable to the Company’s
or any of its Subsidiary’s operations or Property.



     “Equivalent Amount” of any currency with respect to any amount of any other currency
at any date means the equivalent in such currency of such amount of such other currency, calculated
on the basis of the arithmetical mean of the buy and sell spot rates of exchange of the
Administrative Agent for such currency at 11:00 a.m., London time, on the date on or as of which
such amount is to be determined, or if such rates are not then available, as otherwise reasonably
determined by the Administrative Agent.



     “ERISA” means the Employee Retirement Income Security Act of l974, as amended from
time to time, and any rule or regulation issued thereunder.



     “Euro” and/or “€” means the euro referred to in Council Regulation (EC) No.
1103/97 dated June 17, 1997 passed by the Council of the European Union, or, if different, the then
lawful currency of the member states of the European Union that participate in the third stage of
Economic and Monetary Union.



     “Euro Equivalent Amount” of any currency at any date shall mean (i) the amount of such
currency if such currency is in Euros or (ii) the Equivalent Amount of Euros if such currency is
any currency other than Euros.



     “Euro Facility Letter of Credit” means any Letter of Credit issued under the Aggregate
Euro Revolving Credit Commitments.



     “Euro Facility Letter of Credit Obligations” means Facility Letter of Credit
Obligations with respect to Euro Facility Letters of Credit.



     “Euro Lender” means any Lender which has a Euro Revolving Credit Commitment.



     “Euro Loan” means any Euro Revolving Credit Loan.



     “Euro Revolving Credit Commitment” means, as to any Lender at any time, its obligation
to make Revolving Credit Loans to the Borrowers under Section 2.1.2 in an aggregate Euro Equivalent
Amount not to exceed at any time outstanding the Euro amount set forth opposite such Lender’s name
in Schedule 1.1(a) under the heading “Euro Revolving Credit Commitment” or as otherwise established
pursuant to



7









 




Section 13.1, as such amount may be reduced or increased from time to time pursuant to
Section 2.4, 13.1 and the other applicable provisions hereof.




     “Euro Revolving Credit Loans” means Revolving Credit Loans made to the Borrowers under
Section 2.1.2.



     “Euro Swing Loan” is defined in Section 2.16.



     “Eurocurrency Advance” means a Multicurrency Advance which bears interest at the
Eurocurrency Rate.



     “Eurocurrency Loan” means a Multicurrency Loan which bears interest at the
Eurocurrency Rate.



     “Eurocurrency Rate” means, with respect to a Eurocurrency Loan for the relevant
Interest Period, the sum of (a) the Eurocurrency Reference Rate applicable to such Interest Period,
plus (b) the amount of all reserves, costs (including without limitation all Mandatory Costs to the
extent applicable as required by Euro Lenders domiciled in the European Union) or similar
requirements relating to the funding of the relevant Available Foreign Currency, as reasonably
determined by the Administrative Agent, plus (c) the Applicable Margin.



     “Eurocurrency Reference Rate” means, with respect to each Interest Period for a
Eurocurrency Loan:




	 	(a)	 	the rate per annum quoted at or about 11:00 a.m. (London time) on the Quotation
Date on the appropriate page of such third-party service, as reasonably determined by
the Administrative Agent, which displays British Bankers Association Interest
Settlement Rates for deposits in the relevant Available Foreign Currency for such
period.
	 
	 	(b)	 	If no such rate is displayed for the relevant currency and the relevant period
and there is no Available Foreign Currency alternative service on which two or more
such quotations for the Available Foreign Currency are displayed, “Eurocurrency
Reference Rate” will be the rate at which deposits in the Available Foreign Currency of
that amount are offered by the Administrative Agent for that period to prime banks in
the London inter-bank market at or about 11:00 a.m. (London time) on the Quotation Date
for such period.





     “Eurodollar Adjusted Base Rate” means, with respect to a Eurodollar Loan for the
relevant Interest Period, the quotient of (i) the Eurodollar Base Rate applicable to such Interest
Period, divided by (ii) one minus the Reserve Requirement (expressed as a decimal) applicable to
such Interest Period.



     “Eurodollar Advance” means an Advance which bears interest at a Eurodollar Rate.



     “Eurodollar Base Rate” means, with respect to a Eurodollar Loan for the relevant
Interest Period, the rate appearing on Reuters Page LIBOR01 (or on any successor or substitute page
of such service, or
any successor to or substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as reasonably determined by the Administrative
Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar
deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. If such rate is not available at such time for any
reason, then the “Eurodollar Base Rate” with respect to such Eurodollar Loan for such Interest
Period shall be the rate at which Dollar deposits of



8









 




$5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period.




     “Eurodollar Loan” means a Loan which bears interest at a Eurodollar Rate.



     “Eurodollar Rate” means, with respect to a Eurodollar Loan for the relevant Interest
Period, the sum of (i) the Eurodollar Adjusted Base Rate applicable to such Interest Period, plus
(ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the next higher multiple of
1/16 of 1% if the rate is not such a multiple.



     “Existing Loan Agreement” means the Loan Agreement dated as of April 30, 2003, as
amended, among the Borrowers, the lenders party thereto and JPMorgan Chase Bank, N.A., as agent for
such lenders.



     “Facility Letter of Credit” means a Letter of Credit issued by an Issuer pursuant to
Section 2.15.



     “Facility Letter of Credit Obligations” means, as at the time of determination
thereof, all liabilities, whether actual or contingent, of a Borrower under Facility Letters of
Credit, including the sum of (a) Reimbursement Obligations and, without duplication, (b) the
aggregate undrawn face amount of the outstanding Facility Letters of Credit.



     “Facility Termination Date” means the earlier to occur of (a) the date three years
after the date of this Agreement or (b) the date on which the Revolving Credit Commitments are
terminated pursuant to Article VIII.



     “Federal Funds Effective Rate” means, for any day, an interest 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 for such day
(or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations at approximately 10:00 a.m. (Chicago time) on such day on such
transactions received by the Administrative Agent from three Federal funds brokers of recognized
standing reasonably selected by the Administrative Agent or, when used in connection with any
Advance denominated in any Eligible Currency, “Federal Funds Effective Rate” means the correlative
rate of interest with respect to such Eligible Currency as reasonably determined by the
Administrative Agent for such day.



     “Financial Contract” of a Person means (a) any exchange-traded or over-the-counter
futures, forward, swap or option contract or other financial instrument with similar
characteristics or (b) any Rate Hedging Agreement.



     “Fixed Rate” means the Eurodollar Rate or the Eurocurrency Rate.



     “Fixed Rate Advance” means an Advance which bears interest at a Fixed Rate.



     “Fixed Rate Loan” means a Loan which bears interest at a Fixed Rate.



9









 





     “Floating Rate” means, for any day, a rate per annum (based on a year of 365 or 366
days as appropriate) equal to the sum of (a) the Applicable Margin plus (b) the Alternate Base Rate
for such day, in each case changing when and as the Alternate Base Rate changes.



     “Floating Rate Advance” means an Advance which bears interest at the Floating Rate.



     “Floating Rate Loan” means a Loan which bears interest at the Floating Rate.



     “Foreign Subsidiary” means each Subsidiary organized under the laws of a jurisdiction
outside of the United States.



     “Foreign Subsidiary Borrower” means each Foreign Subsidiary listed as a Foreign
Subsidiary Borrower in Schedule 1.1(b) as amended from time to time in accordance with Section
8.2.2.



     “Foreign Subsidiary Opinion” means with respect to any Foreign Subsidiary Borrower, a
legal opinion of counsel to such Foreign Subsidiary Borrower (or the Company) addressed to the
Administrative Agent and the Lenders concluding that such Foreign Subsidiary Borrower and the Loan
Documents to which it is a party substantially comply with the matters listed on Exhibit D, with
such assumptions, qualifications and deviations therefrom as are reasonably acceptable to the
Administrative Agent.



     “GAAP” means generally accepted accounting principles in the United States of America
as in effect from time to time.



     “Governmental Authority” means any nation or government, any state, or other political
subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.



     “Guarantee Obligation” means as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing
Person that guarantees or in effect guarantees, or which is given to induce the creation of a
separate obligation by another Person (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the
“primary obligations”) of any other third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability
in respect thereof as determined by the Borrowers in good faith.



10









 





     “Guarantor” means (a) with respect to the Obligations of the Subsidiary Borrowers, the
Company and each present and future Domestic Subsidiary of the Company required to execute a
Guaranty pursuant to Section 2.18 and any other Person executing a Guaranty with respect thereto at
any time, and (b) with respect to the Obligations of the Company, each present and future Domestic
Subsidiary of the Company required to execute a Guaranty pursuant to Section 2.18 and any other
Person executing a Guaranty with respect thereto at any time.



     “Guaranty” means, with respect to the Company, the guarantee contained in Article IX
and, with respect to any other Guarantor, each guaranty agreement in substantially the form of
Exhibit E hereto or, in the case of Foreign Subsidiaries that are Guarantors, such other form
agreed to by the Administrative Agent and the Company duly executed and delivered by each such
Guarantor to the Administrative Agent, including any amendment, modification, renewal or
replacement of such guaranty agreement; provided, however, that no Foreign
Subsidiary shall be a Guarantor of any Obligations of the Company or a Domestic Subsidiary
Borrower.



     “Hazardous Substances” means any material or substance: (1) which is or becomes
defined as a hazardous substance, pollutant, or contaminant, pursuant to the Comprehensive
Environmental Response Compensation and Liability Act (“CERCLA”) (42 USC §9601 et.
seq.) as amended and regulations promulgated under it; (2) containing gasoline, oil, diesel
fuel or other petroleum products; (3) which is or becomes defined as hazardous waste pursuant to
the Resource Conservation and Recovery Act (“RCRA”) (42 USC §6901 et. seq.) as
amended and regulations promulgated under it; (4) containing polychlorinated biphenyls (PCBs); (5)
containing asbestos; (6) which is radioactive; (7) the presence of which requires investigation or
remediation under any Environmental Law; (8) which is or becomes defined or identified as a
hazardous waste, hazardous substance, hazardous or toxic chemical, pollutant, contaminant, or
biologically Hazardous Substance under any Environmental Law.



     “Hostile Acquisition” means the Acquisition of the Capital Stock of a Person (the
“Target”) through a tender offer or similar solicitation of the owners of such Capital
Stock which has not been approved prior to such acquisition by resolutions of the Board of
Directors of the Target or by similar action if the Target is not a corporation (and which approval
has not been withdrawn).



     “Indebtedness” of a Person means, without duplication, such Person’s (a) obligations
for borrowed money or similar obligations, (b) obligations representing the deferred purchase price
of Property or services (other than accounts payable and/or accrued expenses and commercial Letters
of Credit with respect to the foregoing, in each case arising in the ordinary course of such
Person’s business payable in accordance with customary practices), (c) obligations which are
evidenced by notes, acceptances, or other instruments (other than Financial Contracts), to the
extent of the amounts actually borrowed, due, payable or drawn, as the case may be, (d) Capitalized
Lease Obligations, (e) all obligations in respect of Letters of Credit (other than commercial
Letters of Credit referenced in clause (b) above), whether drawn or undrawn, contingent or
otherwise, (f) any other obligation for borrowed money or other financial accommodation which in
accordance with GAAP would be shown as a liability on the consolidated balance sheet of such
Person, (g) Off-Balance Sheet Liabilities, (h) Guarantee Obligations with respect to any of the
foregoing
and (i) all obligations of the kind referred to in the foregoing clauses secured by (or for
which the holder of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including accounts and contract rights) owned by such Person, whether or
not such Person has assumed or become liable for the payment of such obligation, provided
that, if such Person has not assumed such obligations, then the amount of Indebtedness of
such Person for purposes of this clause (i) shall be equal to the lesser of the amount of
the obligations of the holder of such obligations and the fair market value of the assets of such
Person which secure such obligations.



11









 





     “Interest Coverage Ratio” means, as of the end of any fiscal quarter, the ratio of (a)
EBIT to (b) Interest Expense, in each case calculated for the four consecutive fiscal quarters then
ending, on a consolidated basis for the Company and its Subsidiaries in accordance with GAAP.



     “Interest Expense” means, with respect to any period, the aggregate of all interest
expense reported by the Company and its Subsidiaries in accordance with GAAP during such period,
net of any cash interest income received by the Company and its Subsidiaries during such period
from Investments. As used in this definition, the term “interest” shall include, without
limitation, all interest, fees and costs payable with respect to the obligations under this
Agreement (other than fees and costs which may be capitalized as transaction costs in accordance
with GAAP), any discount in respect of sales of accounts receivable and/or related contract rights
and the interest portion of Capitalized Lease payments during such period, all as determined in
accordance with GAAP.



     “Interest Period” means with respect to any Fixed Rate Loan:




     (a) initially, the period commencing on the borrowing or conversion date, as the case
may be, with respect to such Fixed Rate Loan and ending one, two, three, or six months
thereafter, or such other period as agreed upon by the Lenders making such Fixed Rate Loan,
as selected by the relevant Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and




     (b) thereafter, each period commencing on the last day of the next preceding Interest
Period applicable to such Fixed Rate Loan and ending one, two, three or six months
thereafter, or such other period as agreed upon by the Lenders, as selected by the relevant
Borrower by irrevocable notice to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with respect thereto;




provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:




     (i) if any Interest Period pertaining to a Fixed Rate Loan would otherwise end
on a day that is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;




     (ii) any Interest Period applicable to a Fixed Rate Loan that would otherwise
extend beyond the Facility Termination Date, may be elected but shall end on the
Facility Termination Date (and such Loan shall be due and payable on the Facility
Termination Date and any amounts due under Section 3.4 shall be payable) unless the
Facility
Termination Date is extended on or before the last day of such Interest Period
to a date beyond the end of such Interest Period; and




     (iii) any Interest Period pertaining to a Fixed Rate Loan 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 a calendar month.



12









 





     “Investment” of a Person means any loan, advance (other than commission, travel and
similar advances to officers and employees made in the ordinary course of business), extension of
credit (other than accounts receivable and/or accrued expenses arising in the ordinary course of
business payable in accordance with customary practices and loans to employees in the ordinary
course of business) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such Person; and structured
notes, derivative financial instruments and other similar instruments or contracts owned by such
Person (other than Financial Contracts).



     “Issuers” or “Issuer” means (i) JPMorgan Chase, and (ii) any Lending
Installation of JPMorgan Chase as JPMorgan Chase may determine to be the issuer for any Facility
Letter of Credit.



     “Joinder Agreement” means the Joinder Agreement to be entered into by each Subsidiary
Borrower subsequent to the date hereof pursuant to Section 8.2.2, substantially in the form of
Exhibit F hereto.



     “JPMorgan Chase” means JPMorgan Chase Bank, N.A., a national banking association, and
any successor-in-interest thereto.



     “Judgment Currency” is defined in Section 16.6.



     “Lender Addition and Acknowledgement Agreement” means a Lender Addition and
Acknowledgement Agreement, in form and substance reasonably satisfactory to the Administrative
Agent, executed pursuant to Section 2.4(b).



     “Lenders” means the lending institutions listed on the signature pages of this
Agreement or otherwise party hereto as a Lender from time to time, and their respective successors
and, to the extent permitted by Section 13.1, assigns.



     “Lending Installation” means, with respect to a Lender or the Administrative Agent,
any office, branch, subsidiary or Affiliate of such Lender or the Administrative Agent, as the case
may be.



     “Letter of Credit” of a Person means a letter of credit or similar instrument which is
issued upon the application of such Person or upon which such Person is an account party or for
which such Person is in any way liable.



     “Letter of Credit Collateral Account” is defined in Section 2.15.7.



     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such
securities.



     “Loan” means, with respect to a Lender, such Lender’s Revolving Credit Loans and, with
respect to the Swing Lender, Swing Loans.



     “Loan Documents” means this Agreement, the Notes, any Rate Hedging Agreements with any
Lenders or their Affiliates and the other agreements, certificates and other documents contemplated
hereby



13









 




or executed or delivered pursuant hereto by any Borrower or any Guarantor at any time with
or in favor of the Administrative Agent or any Lender.




     “London Banking Day” means any day on which banks in London are open for substantially
all of their banking business, including dealings in foreign currency and exchange.



     “Mandatory Costs” is defined on Exhibit G.



     “Margin Stock” means “margin stock” as defined in Regulations U or X or “marginable
OTC stock” or “foreign margin stock” within the meaning of Regulation T.



     “Material Adverse Effect” means a material adverse effect on (i) the business,
Property, operations or condition (financial or otherwise) of the Company and its Subsidiaries
taken as a whole, (ii) the ability of the Borrowers and Guarantors, taken as a whole, to pay the
Obligations under the Loan Documents, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders thereunder.



     “Maximum Rate” is defined in Section 10.14.



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



     “Multicurrency Advance” means a borrowing hereunder (or continuation or a conversion
thereof) consisting of the several Multicurrency Loans made on the same Borrowing Date (or date of
conversion or continuation) by the Lenders to a Borrower of the same Type, in the same Available
Foreign Currency and for the same Interest Period.



     “Multicurrency Loans” means Euro Loans and any Swing Loans denominated in currencies
other than U.S. Dollars.



     “Multiemployer Plan” means a plan defined in Section 4001(a)(3) of ERISA to which the
Company or any member of the Controlled Group has an obligation to contribute.



     “Net Worth” means, as of any date, the amount of any capital stock, paid in capital
and similar equity accounts plus (or minus in the case of a deficit) the capital surplus and
retained earnings of the Company and its Subsidiaries on a consolidated basis, all as determined in
accordance with GAAP.



     “Non-Excluded Taxes” is defined in Section 3.6.1.



     “Notes” means the collective reference to the Revolving Credit Notes.



     “Obligations” means collectively, the unpaid principal of and interest on the Loans,
all obligations and liabilities pursuant to the Facility Letters of Credit, all Rate Hedging
Obligations of each Borrower and
each Guarantor to the Administrative Agent, each Lender and their respective Affiliates, and
all other obligations and liabilities of each Borrower and each Guarantor to the Administrative
Agent or the Lenders under this Agreement and the other Loan Documents (including, without
limitation, interest accruing at the then applicable rate provided in this Agreement or any other
applicable Loan Document after the maturity of the Loans and interest accruing at the then
applicable rate provided in this Agreement or any other applicable Loan Document after the filing
of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Borrower or any Guarantor, as the case may be, whether or not a claim
for post-filing or post-petition interest is allowed in



14









 




such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, the other Loan Documents or
any other document made, delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all reasonable fees and disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be paid by any Borrower or any
Guarantor pursuant to the terms of this Agreement or any other Loan Document).




     “Off-Balance Sheet Liability of a Person means (i) any obligation under a Sale and
Leaseback Transaction which is not a Capital Lease Obligation, (ii) any so-called “synthetic lease”
or “tax ownership operating lease” transaction entered into by such Person, (iii) the amount of
obligations outstanding under the legal documents entered into as part of any asset securitization
or similar transaction on any date of determination that would be characterized as principal if
such asset securitization or similar transaction were structured as a secured lending transaction
rather than as a purchase or (iv) any other transaction (excluding operating leases for purposes of
this clause (iv)) which is the functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the balance sheet of such Person; in all of the foregoing cases,
notwithstanding anything herein to the contrary, the outstanding amount of any Off-Balance Sheet
Liability shall be calculated based on the aggregate outstanding amount of obligations outstanding
under the legal documents entered into as part of any such transaction on any date of determination
that would be characterized as principal if such transaction were structured as a secured lending
transaction, whether or not shown as a liability on a consolidated balance sheet of such Person, in
a manner reasonably satisfactory to the Administrative Agent.



     “Participant” is defined in Section 13.1.



     “Payment Date” means the last Business Day of each March, June, September and December
occurring after the Effective Date, commencing December 31, 2009.



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



     “Permitted Encumbrances” means:




     (a) Liens imposed by law for taxes that are not yet due or are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves have been set
aside in accordance with GAAP;




     (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 60 days or are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been set aside in
accordance with GAAP;




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




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




     (e) judgment liens in respect of judgments that do not constitute an Event of Default
under Section 7.9;



15









 






     (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 the Borrower or any Subsidiary; and




     (g) precautionary financing statement filings in connection with operating leases.


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




     “Permitted Securitization Transaction” is defined in Section 6.10(iii).



     “Person” means any natural person, corporation, firm, joint venture, limited liability
company, partnership, association, enterprise, company or other entity or organization, or any
government or political subdivision or any agency, department or instrumentality thereof.



     “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 as to which the Company or
any member of the Controlled Group has any obligation to contribute to on or after the Effective
Date.



     “Prime Rate” means the per annum rate announced or established by the Administrative
Agent from time to time as its “prime rate” (it being acknowledged that such announced rate may not
necessarily be the lowest rate charged by the Administrative Agent to any of its customers) or the
corporate base rate of interest announced or established by the Administrative Agent or, when used
in connection with any Advance denominated in any Eligible Currency, “Prime Rate” means the
correlative floating rate of interest customarily applicable to similar extensions of credit to
corporate borrowers denominated in such currency in the country of issue, as reasonably determined
by the Administrative Agent, which Prime Rate shall change simultaneously with any change in such
announced or established rates.



     “Pro Rata Share” means, for each Lender, the ratio of such Lender’s Commitment
(calculated using the Dollar Equivalent Amount thereof) to the Aggregate Commitment,
provided that (a) with respect to U.S. Revolving Credit Loans, U.S. Facility Letters of
Credit, U.S. Swing Loans and facility fees with respect to the U.S. Revolving Credit Commitment,
Pro Rata Share means, for each Lender, the ratio such Lender’s U.S. Revolving Credit Commitment
bears to the Aggregate U.S. Revolving Credit Commitments, and (b) with respect to Euro Revolving
Credit Loans, Euro Facility Letters of Credit, Euro Swing Loans and facility fees with respect to
the Euro Revolving Credit Commitment, Pro Rata Share means, for each Lender, the ratio such
Lender’s Euro Revolving Credit Commitment bears to the Aggregate Euro Revolving Credit Commitments.
If at any time the Commitments have been terminated, the amount of any
Commitment for the purposes of this definition of “Pro Rata Share” only shall be deemed equal
to the amount of such Commitment immediately prior to its termination.



     “Property” of a Person means any and all property, whether real, personal, movable,
immovable, tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.



     “Quotation Date” in relation to any period for which a Eurocurrency Reference Rate is
to be determined hereunder, means the date on which quotations would ordinarily be given by prime
lenders in the London inter-bank market for deposits in the Available Foreign Currency in relation
to which such rate is to be determined for delivery on the first day of that period, provided that,
if, for such period, quotations would ordinarily be given on more than one date, the Quotation Date
for that period shall be the last of those dates.



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     “Rate Hedging Agreement” means an agreement, device or arrangement providing for
payments which are related to fluctuations of interest rates, exchange rates or forward rates,
including, but not limited to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts and warrants.



     “Rate Hedging Obligations” of a Person means any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(a) any and all Rate Hedging Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.



     “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.



     “Regulation T” means Regulation T of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors.



     “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors.



     “Regulation X” means Regulation X of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors.



     “Reimbursement Obligations” means, at any time, the aggregate of the obligations of
the Borrowers to the Lenders and the Issuers in respect of all unreimbursed payments or
disbursements made by the Issuers and the Lenders under or in respect of the Facility Letters of
Credit.



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



     “Release” means any release, spill, leak, discharge or leaching of any Hazardous
Substances into the environment in violation of any Environmental Law.



     “Remedial Action” means an action to address a Release or other violation of
Environmental Laws required by any Environmental Law.



     “Reportable Event” means a reportable event as defined in Section 4043 of ERISA and
the regulations issued under such section with respect to a Plan subject to Title IV of ERISA,
excluding, however, such events as to which the PBGC by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event,
provided, however, that a failure to meet the minimum funding standard of Section 412 of
the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any
such waiver of the notice requirement in accordance with Section 4043(a) of ERISA or of the minimum
funding standard under Section 412(c) of the Code.



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     “Required Euro Lenders” means (a) at any time prior to the termination of the Euro
Revolving Credit Commitments, Euro Lenders holding greater than 50% of the aggregate Euro Revolving
Credit Commitments of all Euro Lenders and (b) at any time after the termination of the Euro
Revolving Credit Commitments, Euro Lenders whose aggregate Euro Revolving Credit Loans and Pro Rata
Shares of Euro Facility Letters of Credit aggregate greater than 50% of the Aggregate Euro
Revolving Credit Loans of all Euro Lenders and all Euro Facility Letters of Credit.



     “Required Lenders” means (a) at any time prior to the termination of the Commitments,
Lenders holding greater than 50% of the Aggregate Commitments of all Lenders; and (b) at any time
after the termination of the Commitments, Lenders whose Aggregate Revolving Credit Outstandings
aggregate greater than 50% of the Aggregate Revolving Credit Outstandings of all Lenders.



     “Required U.S. Lenders” means (a) at any time prior to the termination of the U.S.
Revolving Credit Commitments, U.S. Lenders holding greater than 50% of the aggregate U.S. Revolving
Credit Commitments of all U.S. Lenders and (b) at any time after the termination of the U.S.
Revolving Credit Commitments, U.S. Lenders whose aggregate U.S. Revolving Credit Loans and Pro Rata
Shares of U.S. Facility Letters of Credit aggregate greater than 50% of the Aggregate U.S.
Revolving Credit Loans of all U.S. Lenders and all U.S. Facility Letters of Credit.



     “Requirement of Law” means as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.



     “Reserve Requirement” means, with respect to an Interest Period for Eurodollar Loans
or Eurocurrency Loans, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves), assessments or similar requirements under any
regulations of the Board of Governors of the Federal Reserve System or other Governmental Authority
having jurisdiction with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D).



     “Revolving Credit Commitments” means the Euro Revolving Credit Commitments and the
U.S. Revolving Credit Commitments.



     “Revolving Credit Lenders” means those Lenders which have a Revolving Credit
Commitment or, if such Commitments shall have been terminated, have outstanding Revolving Credit
Loans or Facility Letter of Credit Obligations.



     “Revolving Credit Loans” means, with respect to a Lender, such Lender’s revolving
credit loans made pursuant to Section 2.1.



     “Revolving Credit Note” is defined in Section 2.2.3.



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



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



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     “SEC” means the Securities and Exchange Commission or any governmental authority
succeeding to any or all of the functions of the Securities and Exchange Commission.



     “Section” means a numbered section of this Agreement, unless another document is
specifically referenced.



     “Securitization Entity” means a wholly-owned Subsidiary of the Company that engages in
no activities other than Permitted Securitization Transactions and any necessary related activities
and owns no assets other than as required pursuant to Permitted Securitization Transactions and (i)
no portion of the Indebtedness (contingent or otherwise) of which is guaranteed by the Company or
any Subsidiary of the Company or is recourse to or obligates the Company or any Subsidiary of the
Company in any way, other than pursuant to customary representations, warranties, covenants,
indemnities and other obligations entered into in connection with a Permitted Securitization
Transaction, and (ii) to which neither the Company nor any Subsidiary of the Company has any
material obligation to maintain or preserve such entity’s financial condition or cause such entity
to achieve certain levels of operating results.



     “Significant Subsidiary” means each present or future subsidiary of the Company which
would constitute a “significant subsidiary” within the meaning of Rule 1-02 of Regulation S-X as
currently in effect promulgated by the SEC.



     “Single Employer Plan” means a Plan which is maintained by the Company or any member
of the Controlled Group for employees of the Company or any member of the Controlled Group.



     “Subsidiary” of a Person means (a) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or controlled, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (b) any partnership, limited liability company, association, joint
venture or similar business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a “Subsidiary” means a Subsidiary of the Company.



     “Subsidiary Borrowers” means Foreign Subsidiary Borrowers and Domestic Subsidiary
Borrowers.



     “Substantial Portion” means, with respect to the Property of the Company and its
Subsidiaries, Property which (a) represents more than 15% of the consolidated assets of the Company
and its Subsidiaries as would be shown in the consolidated financial statements of the Company and
its Subsidiaries as at the beginning of the twelve-month period ending with the most recent month
prior to such determination is made for which consolidated Company financial statements are
available, (b) is responsible for more than 15% of the consolidated net sales of the Company and
its Subsidiaries as reflected in the financial statements referred to in clause (a) above, (c)
represents more than 25% of the consolidated assets of the Company and its Subsidiaries as would be
shown in the consolidated financial statements of the Company and its Subsidiaries as of the
Effective Date or (d) is responsible for more than 25% of the consolidated net sales of the Company
and its Subsidiaries as reflected in the financial statements referred to in clause (c) above.



     “Swing Lender” means JPMorgan Chase, together with its Lending
Installations.



     “Swing Loans” means U.S. Swing Loans and Euro Swing Loans.



     “Syndication Agents” means PNC Bank, National Association and U.S. Bank National
Association, in their capacities as syndication agents for the credit facility evidenced by this
Agreement.



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     “Tangible Net Worth” means, as of any date, the difference of (i) Net Worth, minus
(ii) to the extent included in determining the amount under the foregoing clause (i), the net book
value of goodwill, cost in excess of fair value of net assets acquired, patents, trademarks,
tradenames and copyrights, treasury stock and all other assets which are deemed intangible assets
under GAAP.



     “Total Assets” means the total assets of the Company and its Subsidiaries, determined
in accordance with GAAP.



     “Total Debt” as of any date, means all of the following for the Company and its
Subsidiaries on a consolidated basis and without duplication: (i) all debt for borrowed money and
similar monetary obligations evidenced by bonds, notes, debentures, Capitalized Lease Obligations
or otherwise, including without limitation obligations in respect of the deferred purchase price of
properties or assets, in each case whether direct or indirect (other than accounts payable and/or
accrued expenses and commercial Letters of Credit with respect to the foregoing, in each case
arising in the ordinary course of such Person’s business payable in accordance with customary
practices); (ii) all reimbursement obligations under outstanding Letters of Credit (other than
commercial Letters of Credit referenced in clause (i) above) in respect of drafts which (A) may be
presented or (B) have been presented and have not yet been paid and are not included in clause (i)
above; (iii) all Off-Balance Sheet Liabilities; (iv) all Guarantee Obligations of indebtedness or
liabilities of the type described in the foregoing clauses (i), (ii) or (iii) and (v) all
obligations of the kind referred to in the foregoing clauses (i), (ii) or (iii) secured by (or for
which the holder of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including accounts and contract rights) owned by such Person, whether or
not such Person has assumed or become liable for the payment of such obligation, provided
that, if such Person has not assumed such obligations, then the amount of debt of such
Person for purposes of this clause (v) shall be equal to the lesser of the amount of the
obligations of the holder of such obligations and the fair market value of the assets of such
Person which secure such obligations. Notwithstanding the foregoing, money borrowed by the Company
against the cash value of life insurance policies owned by the Company shall not be considered part
of Total Debt and Indebtedness consisting of avals by any of the Company’s Subsidiaries for the
benefit of, and with respect to obligations which are not classified as Indebtedness of,
any of the Company’s other Subsidiaries which are entered into in the ordinary course of
business and consistent with standard business practices, shall not be considered part of Total
Debt.



     “Total Net Debt” means, at any time, Total Debt minus all cash and Cash Equivalents
with maturities of less than one year of the Company and its Subsidiaries calculated on a
consolidated basis, as calculated in accordance with GAAP.



     “Total Net Debt to Capitalization Ratio” means the ratio of Total Net Debt to the sum
of (a) Total Net Debt plus (b) Net Worth, as calculated in accordance with GAAP.



     “Transferee” is defined in Section 13.2.



     “Type” means, with respect to any Advance, its nature as a Floating Rate Advance,
Eurocurrency Advance or Eurodollar Advance.



     “Unfunded Liabilities” means the amount (if any) by which the actuarial present value
of all benefit liabilities under a Single Employer Plan exceeds the fair market value of all such
Plan assets allocable to such benefit liabilities, all determined as of the then most recent
valuation date for such Plan in accordance with Section 4001(a)(18) of ERISA.




20












 





     “Unmatured Default” means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.



     “U.S. Facility Letter of Credit” means any Letter of Credit issued under the Aggregate
U.S. Revolving Credit Commitments.



     “U.S. Facility Letter of Credit Obligations” means Facility Letter of Credit
Obligations with respect to U.S. Facility Letters of Credit.



     “U.S. Lender” means any Lender which has a U.S. Revolving Credit Commitment.



     “U.S. Loan” means any U.S. Revolving Credit Loan.



     “U.S. Revolving Credit Commitment” means, as to any Lender at any time, its obligation
to make Revolving Credit Loans to the Borrowers under Section 2.1.1 in Dollars in an aggregate
amount not to exceed at any time outstanding the U.S. Dollar amount set forth opposite such
Lender’s name in Schedule 1.1(a) under the heading “U.S. Revolving Credit Commitment” or as
otherwise established pursuant to Section 13.1, as such amount may be reduced or increased from
time to time pursuant to Sections 2.4, 13.1 and the other applicable provisions hereof.



     “U.S. Revolving Credit Loans” means Revolving Credit Loans made to the Borrowers
pursuant to Section 2.1.1.



     “U.S. Swing Loan” is defined in Section 2.16.



     “Voting Stock” of a Person means all classes of Capital Stock of such Person then
outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers, trustees or similar persons thereof.



     “Wholly Owned Subsidiary” of a Person means any other Person of which 100% of the
outstanding Voting Stock of which shall at the time be owned or controlled, directly or indirectly,
by such Person or one or more Wholly Owned Subsidiaries of such Person, or by such Person and one
or more Wholly Owned Subsidiaries of such Person.



     1.2 Rules of Construction. All terms defined in Section 1.1 shall include both the
singular and the plural forms thereof and shall be construed accordingly. Use of the terms
“herein”, “hereof”, and “hereunder” shall be deemed references to this
Agreement in its entirety and not to the Section or clause in which such term appears. References
to “Sections” and “subsections” shall be to Sections and subsections, respectively,
of this Agreement unless otherwise specifically provided. Notwithstanding anything herein, in any
financial statements of the Company or in GAAP to the contrary, for purposes of calculating the
Applicable Margin and of calculating and determining compliance with the financial covenants in
Sections 6.17 and 6.18, including defined terms used therein, any Acquisitions made by the Company
or any of its Subsidiaries, including through mergers or consolidations and including the
incurrence of all Indebtedness related thereto and any other related financial transactions, during
the period for which such financial covenants were calculated shall be deemed to have occurred on
the first day of the relevant period for which such financial covenants and the Applicable Margin
were calculated on a pro forma basis reasonably acceptable to the Administrative Agent.



     1.3 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided that, if the Company notifies the Administrative Agent that the Company
requests an



21









 







amendment to any provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Company that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith.



ARTICLE II




THE CREDITS




     2.1 Commitments.



     2.1.1 From and including the Effective Date and prior to the Facility Termination Date, each
U.S. Lender severally agrees, on the terms and conditions set forth in this Agreement, to make U.S.
Revolving Credit Loans in Dollars to the Company and the Domestic Subsidiary Borrowers and the
Foreign Subsidiary Borrowers from time to time so long as after giving effect thereto and to any
concurrent repayment of Loans the Aggregate U.S. Revolving Credit Outstandings of each U.S. Lender
are equal to or less than its U.S. Revolving Credit Commitment. Subject to the terms of this
Agreement, the Company and the Domestic Subsidiary Borrowers and the Foreign Subsidiary Borrowers
may borrow, repay and reborrow U.S. Revolving Credit Loans at any time prior to the Facility
Termination Date. The U.S. Revolving Credit Loans may be Floating Rate Loans or Eurodollar Loans,
or a combination thereof selected in accordance with Sections 2.3 and 2.7. The U.S. Revolving
Credit Commitments to lend hereunder shall expire on the Facility Termination Date.



     2.1.2 From and including the Effective Date and prior to the Facility Termination Date, each
Euro Lender severally agrees, on the terms and conditions set forth in this Agreement, to make Euro
Revolving Credit Loans in Available Foreign Currencies to the Company and the Foreign Subsidiary
Borrowers from time to time so long as after giving effect thereto and to any concurrent repayment
of Loans the Aggregate Euro Revolving Credit Outstandings of each Euro Lender are equal to or less
than its Euro Revolving Credit Commitment. Subject to the terms of this Agreement, the Company and
the Foreign Subsidiary Borrowers may borrow, repay and reborrow Euro Revolving Credit Loans at any
time prior to the Facility Termination Date. The Euro Revolving Credit Loans will be Multicurrency
Loans as selected in accordance with Sections 2.3, 2.7 and 2.8(a). The Euro Revolving Credit
Commitments to lend hereunder shall expire on the Facility Termination Date.



     2.2 Repayment of Loans; Evidence of Debt.



     2.2.1 (a) The Company and each Domestic Subsidiary Borrower and Foreign Subsidiary Borrower
hereby unconditionally promise to pay to the Administrative Agent for the account of each U.S.
Lender in U.S. Dollars the then unpaid principal amount of each U.S. Revolving Credit Loan of such
Lender made to such Borrower on the Facility Termination Date and on such other dates and in such
other amounts as may be required from time to time under the terms of this Agreement. The Company
and each Domestic Subsidiary Borrower and Foreign Subsidiary Borrower hereby further agree to pay
to the Administrative Agent for the account of each U.S. Lender interest in U.S. Dollars on the
unpaid principal amount of the U.S. Revolving Credit Loans from time to time outstanding until
payment thereof in full at the rates per annum, and on the dates, set forth in Section 2.8.



22









 





          (b) The Company and each Foreign Subsidiary Borrower hereby each unconditionally promise to
pay to the Administrative Agent for the account of each Euro Lender in the relevant Available
Foreign Currency the then unpaid principal amount of each Euro Revolving Credit Loan of such Lender
made to such Borrower (on a several, not joint and several, basis, but subject, for the avoidance
of doubt, to the Guarantee contained in Article IX) on the Facility Termination Date and on such
other dates and in such other amounts as may be required from time to time under the terms of this
Agreement. The Company and each Foreign Subsidiary Borrower hereby further agree to pay to the
Administrative Agent for the account of each Euro Lender interest in the relevant Available Foreign
Currency on the unpaid principal amount of the Euro Revolving Credit Loans made to such Borrower
(on a several, not joint and several, basis, but subject, for the avoidance of doubt, to the
Guarantee contained in Article IX) from time to time outstanding until payment thereof in full at
the rates per annum, and on the dates, set forth in Section 2.8.




     2.2.2 The books and records of the Administrative Agent and of each Lender shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrowers therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain any such books and records
or any error therein, shall not in any manner affect the obligation of the Borrowers to repay (with
applicable interest) the Loans made to such Borrowers by such Lender in accordance with the terms
of this Agreement.



     2.2.3 The Borrowers agree that, upon the request to the Administrative Agent by any Lender
from time to time and the subsequent request to the Company by the Administrative Agent, the
relevant Borrowers will execute and deliver to such Lender promissory notes evidencing the
Revolving Credit Loans of any such requesting Revolving Credit Lender, substantially in the form of
Exhibit H with appropriate insertions as to date, currency and principal amount (each, a
“Revolving Credit Note”); provided, that the delivery of such Notes shall not be a
condition precedent to the Effective Date or any Advance.



     2.3 Procedures for Borrowing. (a) Each Borrower may borrow under the U.S. Revolving
Credit Commitments and the Company and each Foreign Subsidiary Borrower may borrow under the Euro
Revolving Credit Commitments, in each case from time to time prior to the Facility Termination Date
on any Business Day.



          (b) In the case of a borrowing under the U.S. Revolving Credit Commitments, the Company or
other applicable Borrower shall give the Administrative Agent irrevocable notice (which notice must
be received by the Administrative Agent prior to 11:00 a.m., Chicago time) (i) three Business Days
prior to the requested Borrowing Date, if all or any part of the requested Revolving Credit Loans
are to be Eurodollar Loans, or (ii) one Business Day prior to the requested Borrowing Date
otherwise, specifying in each case (v) the applicable Borrower, (w) the amount to be borrowed, (x)
the requested Borrowing Date, (y) whether the borrowing is to be of Eurodollar Loans, Floating Rate
Loans or a combination thereof and (z) if the borrowing is to be entirely or partly of Eurodollar
Loans, the amount of such Type of Loan and the length of the initial Interest Periods therefor.
Each borrowing under the U.S. Revolving Credit Commitments after the Effective Date shall be in an
amount equal to (A) in the case of Floating Rate Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the then aggregate available U.S. Revolving Credit Commitments
are less than $5,000,000, such lesser amount) and (B) in the case of Eurodollar Loans, $5,000,000
or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from the
Company or other Borrower, as the case may be, the Administrative Agent shall promptly notify the
U.S. Lenders thereof. Not later than noon, Chicago time on each requested Borrowing Date each U.S.
Lender shall make an amount equal to its Pro Rata Share of the principal amount of the U.S. Revolving
Credit Loans requested to be made on such Borrowing Date




23









 







available to the Administrative Agent at its Chicago office specified in Section 14.1 in U.S.
Dollars and in immediately available funds. The Administrative Agent shall on such date credit the
account of the relevant Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the U.S. Lenders and in like funds as received by the
Administrative Agent.




          (c) In the case of a borrowing under the Euro Revolving Credit Commitments, the Company or a
Foreign Subsidiary Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 11:00 a.m., London time three Business Days
prior to the requested Borrowing Date) specifying in each case (i) the amount to be borrowed, (ii)
the requested Borrowing Date, (iii) the Available Foreign Currency thereof, (iv) the length of the
initial Interest Period therefor and (v) the applicable Borrower. Each borrowing by the Company or
a Foreign Subsidiary Borrower under Section 2.1.2 shall be in an Available Foreign Currency. Each
such borrowing by the Company or any Foreign Subsidiary Borrower shall be in an amount equal to an
amount in the relevant Available Foreign Currency which is 5,000,000 units or a whole multiple of
1,000,000 units in excess thereof or such other amounts as may be agreed upon between the
applicable Borrower and the Administrative Agent. Upon receipt of any such notice from any such
Borrower, the Administrative Agent shall promptly notify the Euro Lenders with respect to such
Borrowing. Not later than 1:00 p.m., local time of the Administrative Agent’s funding office for
such Borrower, on the requested Borrowing Date, each Euro Lender shall make an amount equal to its
Pro Rata Share of the principal amount of such Euro Revolving Credit Loans requested to be made on
such Borrowing Date available to the Administrative Agent at the Administrative Agent’s funding
office for such Borrower specified by the Administrative Agent from time to time by notice to such
Euro Lenders and in immediately available or other same day funds customarily used for settlement
in the relevant Available Foreign Currency. The amounts made available by each Euro Lender will
then be made available to the relevant Borrower at the funding office for such Borrower and in like
funds as received by the Administrative Agent.




     2.4 Termination or Reduction/Increases of Revolving Credit Commitments. (a) The
Company or any Foreign Subsidiary Borrower may permanently reduce the Euro Revolving Credit
Commitments, in whole or in part, ratably among the Euro Lenders in integral multiples of
€5,000,000 and the Borrowers may permanently reduce the U.S. Revolving Credit Commitments, in whole
or in part, ratably among the U.S. Lenders in integral multiples of $10,000,000, in each case upon
at least three Business Days’ irrevocable written notice to the Administrative Agent, and which
notice shall specify the amount of any such reduction, provided, however, that (i) the
Aggregate Euro Revolving Credit Commitments may not be reduced below the Aggregate Euro Revolving
Credit Outstandings of all Lenders and the Aggregate U.S. Revolving Credit Commitments may not be
reduced below the Aggregate U.S. Revolving Credit Outstandings of all Lenders and (ii) a notice of
termination of Commitments may state that such notice is conditioned upon the effectiveness of
other credit facilities, incurrence of other Indebtedness, or consummation of another transaction
(such as a Change of Control), in which case such notice may be revoked (by notice to the
Administrative Agent on or prior to the specified effective date if such date is not more than five
Business Days after the date such notice is given) if such condition is not satisfied. In
addition, all accrued facility fees shall be payable on the effective date of any termination of
the Revolving Credit Commitments. Simultaneously with the closing of any Permitted Securitization
Transaction facility, the Aggregate U.S. Revolving Credit Commitments shall be automatically
reduced, ratably among the U.S. Revolving Credit Commitments, by the amount of any such Permitted
Securitization Transaction facility which, when aggregated with all other then existing Permitted
Securitization Transaction facilities, exceeds $200,000,000.



          (b) Subject to the conditions set forth below, the Company may, upon at least ten (10) days
(or such other shorter period of time as may be agreed to between the Administrative Agent and




24









 







the Company) prior written notice to the Administrative Agent and the Lenders, increase the Aggregate
Commitments (by increasing the Aggregate U.S. Revolving Credit Commitments, the Aggregate Euro
Revolving Credit Commitments or a combination thereof) from time to time, either by designating one
or more lender(s) not theretofore Lender(s) to become Lender(s) (such designation to be effective
only with the prior written consent (such consent not to be unreasonably withheld or delayed) of
the Administrative Agent) and/or by agreeing with one or more existing Lender(s) that such Lender’s
or Lenders’ U.S. Revolving Credit Commitment, Euro Revolving Credit Commitment or a combination
thereof shall be increased (thus increasing the Aggregate Commitments); provided that:





     (i) no Default or Unmatured Default shall have occurred and be continuing hereunder as
of the effective date of such increase;




     (ii) the representations and warranties contained in Article V are true and correct as
on and as of the effective date with the same effect as if made on and as of such date
except to the extent any such representation or warranty relates solely to an earlier date,
in which case such representation or warranty shall be true and correct on and as of such
earlier date;




     (iii) the amount of each such increase in the Aggregate U.S. Revolving Credit
Commitments shall not be less than $10,000,000, and the aggregate amount of all such
increases in the Aggregate U.S. Revolving Credit Commitments shall not exceed $200,000,000
(determined as of the date each such increase is effective);




     (iv) the amount of each such increase in the Aggregate Euro Revolving Credit
Commitments shall not be less than €2,500,000, and the aggregate amount of all such
increases in the Aggregate Euro Revolving Credit Commitments shall not exceed €37,500,000
(determined as of the date each such increase is effective);




     (v) each such lender not theretofore a Lender becoming a Lender and each existing
Lender that has agreed to increase its U.S. Revolving Credit Commitment, Euro Revolving
Credit Commitment or a combination thereof shall execute and deliver to the Administrative
Agent a Lender Addition and Acknowledgement Agreement acknowledged and agreed to by the
Administrative Agent (such acknowledgement and agreement not to be unreasonably withheld or
delayed) and each Borrower;




     (vi) no existing Lender shall be obligated in any way to increase any of its
Commitments;




     (vii) the Administrative Agent shall consent (such consent not to be unreasonably
withheld or delayed) to such increase; and




     (viii) the Company and the other Borrowers shall have complied with such other
conditions in connection with such increase as may reasonably be required by the
Administrative Agent, including without limitation delivering such resolutions, opinions and
other documents reasonably required by the Administrative Agent.


Upon the execution and delivery of a Lender Addition and Acknowledgement Agreement, from and after
the effective date specified in such Lender Addition and Acknowledgement Agreement, such existing
Lender shall have Commitments as therein set forth or such other Lender shall become a Lender with
Commitments as therein set forth and all the rights and obligations of a Lender with such
Commitments hereunder. Upon its receipt of a Lender Addition and Acknowledgement Agreement together
with any


25









 






Note or Notes, if requested, the Administrative Agent shall, if such Lender Addition and
Acknowledgement Agreement has been completed and the other conditions described in this Section
2.4(b) have been satisfied: (A) accept such Lender Addition and Acknowledgement Agreement; (B)
record the information contained therein in its records; and (C) give prompt notice thereof to the
Lenders and the Borrowers and deliver to the Lenders and the Borrowers a new Schedule 1.1(a)
reflecting the new Commitments, whereupon such revised Schedule 1.1(a) shall replace the old
Schedule 1.1(a) and become part of this Agreement. On the Business Day following any such increase
of the Aggregate Commitments under this Section 2.4, all outstanding Floating Rate Advances shall
be reallocated among the Lenders (including any newly added Lenders) in accordance with the
Lenders’ respective revised Commitments and Pro Rata Shares, as applicable, and Fixed Rate Advances
shall be so reallocated among the Lenders on the expiration of the applicable Interest Period in
effect at the time of any such increase.




     2.5 Facility and Administrative Agent Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each U.S. Lender a facility fee (payable in Dollars) at the
rate per annum set forth in the Pricing Schedule on Exhibit A attached hereto, on the average daily
amount of the U.S. Revolving Credit Commitment of such Lender, whether used or unused, from and
including the Effective Date to but excluding the Facility Termination Date, and thereafter on the
average daily amount of the U.S. Loans and Pro Rata Share of the U.S. Swing Loans and U.S. Facility
Letters of Credit of such Lender, payable on each Payment Date hereafter and on the Facility
Termination Date.



          (b) The Foreign Subsidiary Borrowers agree to pay to the Administrative Agent for the account
of each Euro Lender a facility fee (payable in Euros) at the rate per annum set forth in the
Pricing Schedule on Exhibit A attached hereto, on the average daily amount of the Euro Revolving
Credit Commitment of such Lender, whether used or unused, from and including the Effective Date to
but excluding the Facility Termination Date, and thereafter on the average daily amount of the Euro
Loans and Pro Rata Share of the Euro Swing Loans and Euro Facility Letters of Credit of such
Lender, payable on each Payment Date hereafter and on the Facility Termination Date.




          (c) The Company agrees to pay to the Administrative Agent for its own account such other fees
as agreed to in writing between the Company and the Administrative Agent.




     2.6 Optional and Mandatory Principal Payments on All Loans.



     2.6.1 Each Borrower may at any time and from time to time prepay Floating Rate Loans, in whole
or in part, without penalty or premium, upon at least one Business Day’s irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment. If any such notice is given,
the amount specified in such notice shall be due and payable on the date specified therein.
Partial prepayment of Floating Rate Loans shall be in a minimum aggregate amount of $1,000,000 or
any integral multiple of $1,000,000 in excess thereof.



     2.6.2 Each Borrower may at any time and from time to time prepay, without premium or penalty
(but together with payment of any amount payable pursuant to Section 3.4), its Eurodollar Loans and
its Multicurrency Loans in whole or in part, upon at least three Business Days’ irrevocable notice
to the Administrative Agent specifying the date and amount of prepayment. Partial payments of
Eurodollar Loans shall be in a minimum aggregate amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof. Partial prepayments of Multicurrency Loans shall be in an aggregate
principal amount in the relevant Available Foreign Currency of 5,000,000 units or any integral
multiple of 1,000,000 units in
excess thereof, or such lesser principal amount as may equal the outstanding Multicurrency
Loans or such lesser amount as may be agreed to by the Administrative Agent.



26









 





     2.6.3 (i) If the Aggregate Euro Revolving Credit Outstandings exceed the Aggregate Euro
Revolving Credit Commitments at any time the applicable Borrowers shall promptly prepay their
respective Aggregate Euro Revolving Credit Outstandings or cash collateralize Euro Facility Letters
of Credit in the amount of such excess and (ii) if the Aggregate U.S. Revolving Credit Outstandings
exceed the Aggregate U.S. Revolving Credit Commitments at any time the applicable Borrowers shall
promptly prepay the Aggregate U.S. Revolving Credit Outstandings or cash collateralize U.S.
Facility Letters of Credit in the amount of such excess.



     2.6.4 Each prepayment pursuant to this Section 2.6 and each conversion (other than a
conversion of a Floating Rate Loan to a Fixed Rate Loan) pursuant to Section 2.7 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the date of prepayment and any
amounts payable under Section 3.4 in connection with such payment.



     2.6.5 Prepayments pursuant to this Section 2.6 shall be applied as follows: (a) in the case of
prepayments of U.S. Loans, first to prepay Floating Rate Loans and second to prepay Eurodollar
Loans then outstanding in such order as the Company or such Borrower may direct and (b) in the case
of prepayments of Multicurrency Loans, to prepay Multicurrency Loans made to such Borrower in such
order as the Company or such Borrower may direct, provided that all prepayments on any Loans to a
Borrower shall be applied pro rata to the Loans owing by such Borrower.



     2.6.6 All amounts prepaid may be reborrowed and successively repaid and reborrowed, subject to
the other terms and conditions in this Agreement.



     2.7. Conversion and Continuation of Outstanding Advances.



     2.7.1 Advances. Floating Rate Advances shall continue as Floating Rate Advances
unless and until such Floating Rate Advances are converted into Eurodollar Advances. Each
Eurodollar Advance shall continue as a Eurodollar Advance until the end of the then applicable
Interest Period therefor, at which time such Eurodollar Advance shall be automatically converted
into a Floating Rate Advance unless the Company shall have given the Administrative Agent a
Conversion/Continuation Notice requesting that, at the end of such Interest Period, such Eurodollar
Advance continue as a Eurodollar Advance for the same or another Interest Period. Subject to the
terms hereof, any Borrower may elect from time to time to convert all or any part of an Advance of
any Type into any other Type or Types of Advance (subject to, in the case of conversion of any
Eurodollar Advance other than on the last day of the Interest Period applicable thereto, payment of
any amounts payable under Section 3.4 in connection therewith). The Company shall give the
Administrative Agent irrevocable notice (a “Conversion/Continuation Notice”) of each
conversion of an Advance or continuation of a Eurodollar Advance not later than 11:00 a.m. (Chicago
time) at least one Business Day, in the case of a conversion into a Floating Rate Advance, or three
Business Days, in the case of a conversion into or continuation of a Eurodollar Advance, prior to
the date of the requested conversion or continuation, specifying:



     (a) the requested date, which shall be a Business Day, of such conversion or continuation,



     (b) the aggregate amount and Type of the Advance which is to be converted or continued, and



     (c) the amounts and Type(s) of Advance(s) into which such Advance is to be converted or
continued and, in the case of a conversion into or continuation of a Eurodollar Advance, the
duration of the Interest Period applicable thereto.



27









 





     2.7.2 Multicurrency Advances. Any Multicurrency Advances may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the relevant Borrower
giving the Administrative Agent irrevocable notice not later than 11:00 a.m. (London time) at least
three Business Days prior to the date of the requested continuation, specifying the duration of the
Interest Period applicable thereto, provided, that if the relevant Borrower shall fail to
give such notice, such Multicurrency Advance shall be automatically continued for an Interest
Period of one month.



     2.8 Interest Rates, Interest Payment Dates; Interest and Fee Basis. (a) Each Floating
Rate Loan shall bear interest on the outstanding principal amount thereof, for each day from and
including the date such Loan is made or is converted from a Fixed Rate Loan into a Floating Rate
Loan pursuant to Section 2.7 to but excluding the date it becomes due or is converted into a Fixed
Rate Loan pursuant to Section 2.7 hereof, at a rate per annum equal to the Floating Rate for such
day. Each Eurodollar Loan shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the Eurodollar Rate determined for such Interest
Period. Each Multicurrency Loan (other than a Swing Loan) shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the applicable Eurocurrency
Rate determined for such Interest Period or at such other interest rate as agreed to by the
applicable Borrower and all Euro Lenders with a Commitment to such Borrower.



     (b) Interest accrued on each Floating Rate Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the Effective Date and at maturity. Interest
accrued on each Fixed Rate Advance shall be payable on the last day of its applicable Interest
Period, on any date on which the Fixed Rate Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Fixed Rate Advance having an Interest Period
longer than three months shall also be payable on the last day of each three-month interval during
such Interest Period.



     (c) Interest shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to 1:00 p.m. (local time) at the place of
payment. If any payment of principal of or interest on an Advance shall become due on a day which
is not a Business Day, except as otherwise provided in the definition of Interest Period, such
payment shall be made on the next succeeding Business Day and, in the case of a principal payment,
such extension of time shall be included in computing interest in connection with such payment.



     (d) All interest and fees shall be computed on the basis of the actual number of days
(including the first day but excluding the last day) occurring during the period such interest or
fee is payable over a year comprised of 360 days or, in the case of Floating Rate Loans based on
the Prime Rate, 365/366 days, unless the Administrative Agent reasonably determines that it is
market practice to calculate such interest or fees on Multicurrency Advances on a different basis.



     (e) Changes in the rate of interest on that portion of any Advance maintained as a Floating
Rate Advance will take effect simultaneously with each change in the Alternate Base Rate. Each
Fixed Rate Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined as applicable to such Fixed Rate
Advance.



     2.9 Rates Applicable After Default. Notwithstanding anything to the contrary
contained in this Agreement, during the continuance of a Default the Required Lenders may, at their
option, by notice to the Borrowers (which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent of the Lenders to
changes in interest rates), declare that no Advance may be made as, converted into or continued
(after the expiration of the then current Interest Period) as a Fixed Rate Advance, provided that,
notwithstanding the foregoing, any



28









 







outstanding Multicurrency Advance may be continued for an
Interest Period not to exceed one month after such notice to the Borrowers by the Required Lenders.
Upon and during the continuance of any Default under Section 7.2, the Required Lenders may, at
their option, by notice to the Company (which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent of the Lenders as
to changes and interest rates) declare that (i) each Fixed Rate Advance shall bear interest for the
remainder of the applicable Interest Period at the rate otherwise applicable to such Interest
Period plus 2% per annum, and (ii) each Floating Rate Advance and any other amount due under this
Agreement shall bear interest at a rate per annum equal to the Floating Rate otherwise applicable
to Floating Rate Loans plus 2% per annum, provided that, upon and during the continuance of any
acceleration for any reason of any of the Obligations, the interest rate set forth in clauses (i)
and (ii) shall be applicable to all Advances without any election or action on the part of the
Administrative Agent or any Lender.



     2.10 Pro Rata Payment, Method of Payment.



     2.10.1 Each borrowing of Loans from the U.S. Lenders shall be made pro rata according to the
Pro Rata Shares of such Lenders in effect on the date of such borrowing. Each payment on account
of any facility fee under Section 2.5(a) shall be allocated by the Administrative Agent among the
U.S. Lenders in accordance with their respective Pro Rata Shares. Any reduction of the U.S.
Commitments of the U.S. Lenders shall be allocated by the Administrative Agent among the U.S.
Lenders pro rata according to the Pro Rata Shares of the U.S. Lenders with respect thereto. Except
as otherwise provided in this Agreement, each payment (including each prepayment) by a Borrower on
account of principal or interest on its U.S. Loans shall be allocated by the Administrative Agent
pro rata to the U.S. Lenders according to the respective outstanding principal amounts thereof. All
payments (including prepayments) to be made by a Borrower hereunder in respect of amounts
denominated in Dollars, whether on account of principal, interest, fees or otherwise, shall be
made, without setoff, deduction, or counterclaim, in immediately available funds to the
Administrative Agent for the account of the U.S. Lenders at the Administrative Agent’s address
specified pursuant to Article XIV, or at any other Lending Installation of the Administrative Agent
specified in writing by the Administrative Agent to the Borrowers by 1:00 P.M. (Chicago time) on
the date when due. Each payment delivered to the Administrative Agent for the account of any
Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of
funds that the Administrative Agent received at its address specified pursuant to Article XIV or at
any Lending Installation specified in a notice received by the Administrative Agent from such
Lender.



     2.10.2 Each borrowing of Euro Loans in any Available Foreign Currency from the Euro Lenders
shall be made pro rata according to the Pro Rata Shares of the Euro Lenders in effect on the date
of such Loan. Each payment on account of any facility fee under Section 2.5(b) shall be allocated
by the Administrative Agent among the Euro Lenders in accordance with their respective Pro Rata
Shares. Any reduction of the Euro Commitments shall be allocated by the Administrative Agent among
the Euro Lenders pro rata according to the Pro Rata Shares of the Euro Lenders with respect
thereto. Except as otherwise provided in this Agreement, each payment (including each prepayment)
by a Borrower on account of principal of and interest on Euro Loans shall be allocated by the
Administrative Agent pro rata to the Euro Lenders. All payments (including prepayments) to be made
by a Borrower on account of
Euro Loans, whether on account of principal, interest, fees or otherwise, shall be made without
setoff, deduction, or counterclaim in the currency of such Euro Loans (in same day or other funds
customarily used in the settlement of obligations in such currency) to the Administrative Agent for
the account of the Euro Lenders at the payment office for such Euro Loans specified from time to
time by the Administrative Agent by notice to the Borrowers prior to 1:00 p.m. local time at such
payment office on the due date thereof. The Administrative Agent shall distribute such payment to
the Euro Lenders entitled



29









 







to receive the same promptly upon receipt in like funds as received. In
the case of any payment of facility fees by Foreign Subsidiary Borrowers under Section 2.5(b) and
any prepayments required of Foreign Subsidiary Borrowers under Section 2.6.3, the Company shall
designate which Foreign Subsidiary Borrowers shall pay such amounts and, absent such determination
or if any Default has occurred and is continuing, the Administrative Agent shall determine which
Foreign Subsidiary Borrower or Foreign Subsidiary Borrowers shall make such payments, provided that
it is acknowledged that each Foreign Subsidiary Borrower is liable, without duplication, for the
full amount of facility fees payable under Section 2.5(b) and is obligated to make any required
prepayments under Section 2.6.3 only to the extent such Foreign Subsidiary Borrower has any
Aggregate Euro Revolving Credit Outstandings.



     2.11 Telephonic Notices. Each Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any Person or Persons the
Administrative Agent or any Lender reasonably and in good faith believes to be an Authorized
Officer, provided that the Borrowers shall be required to make all requests for Eurocurrency Loans
in writing. Each Borrower agrees to deliver promptly to the Administrative Agent a written
confirmation, if such confirmation is requested by the Administrative Agent or any Lender, of each
telephonic notice signed by an Authorized Officer. If the written confirmation differs in any
material respect from the action taken by the Administrative Agent and the Lenders, the records of
the Administrative Agent and the Lenders shall govern absent manifest error.



     2.12 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions.
Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of
each Revolving Credit Commitment reduction notice, Borrowing notice, Conversion/Continuation
Notice, and repayment notice received by it hereunder. The Administrative Agent will notify each
Lender of the interest rate applicable to each Fixed Rate Advance promptly upon determination of
such interest rate and will give each Lender prompt notice of each change in the Alternate Base
Rate.



     2.13 Lending Installations. Each Lender may, subject to Sections 3.5 and 3.6, make
and book its Loans at any Lending Installation(s) selected by such Lender and may change its
Lending Installation(s) from time to time. All terms of this Agreement shall apply to any such
Lending Installation(s) and the Notes, if any, shall be deemed held by each Lender for the benefit
of such Lending Installation(s). Each Lender may, by written or telex notice to the Administrative
Agent and the applicable Borrower, designate one or more Lending Installations which are to make
and book Loans and for whose account Loan payments are to be made.



     2.14 Non-Receipt of Funds by the Administrative Agent. Unless a Borrower or a Lender,
as the case may be, notifies the Administrative Agent prior to the date on which it is scheduled to
make payment to the Administrative Agent of (a) in the case of a Lender, the proceeds of a Loan or
(b) in the case of a Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment, the Administrative
Agent may assume that such payment has been made. The Administrative Agent may, but shall not be
obligated to, make the amount of such payment available to the intended recipient in reliance upon
such assumption. If such Lender or Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent,
the recipient of such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such amount at a rate per
annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective Rate for the
first five days and the interest rate



30









 







applicable to the relevant Loan for each day thereafter or
(ii) in the case of payment by a Borrower, the interest rate applicable to the relevant Loan.



     2.15 Facility Letters of Credit.



     2.15.1 Obligation to Issue. Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of the Borrowers herein set forth, the Issuers
hereby agree to issue for the account of a Borrower through such of the Issuer’s Lending
Installations or Affiliates as the Issuer may determine, one or more Facility Letters of Credit in
accordance with this Section 2.15, from time to time during the period, commencing on the Effective
Date and ending five Business Days prior to the Facility Termination Date.



     2.15.2 Conditions for Issuance. In addition to being subject to the satisfaction of
the conditions contained in Sections 4.1 and 4.2, the obligation of an Issuer to issue any Facility
Letter of Credit is subject to the satisfaction in full of the following conditions:



     (a) the aggregate maximum amount then available for drawing under Facility Letters of Credit
issued by the Issuers, after giving effect to the Facility Letter of Credit requested hereunder,
shall not exceed any limit imposed by law or regulation upon the Issuer;



     (b) the requested Facility Letter of Credit shall not have an expiration date later than the
earlier of (i) one year after the date of issuance of such Facility Letter of Credit and (ii) five
Business Days prior to the Facility Termination Date, provided that any Facility Letter of
Credit with a one-year tenor may provide for the renewal thereof for additional one-year periods
(which shall in no event extend beyond the date referred to in clause (ii) above);



     (c) immediately after giving effect to the Facility Letter of Credit requested hereunder, the
aggregate maximum amount then available for drawing under Facility Letters of Credit issued by the
Issuers shall not exceed (i) $50,000,000 in the aggregate in the case of Facility Letters of Credit
denominated in Dollars and (ii) €30,000,000 in the aggregate in the case of Facility Letters of
Credit denominated in an Agreed Currency other than Dollars, and no prepayment would as a result of
such issuance then be required under this Agreement;



     (d) the applicable Borrower shall have delivered to the applicable Issuer at such times and in
such manner as such Issuer may reasonably prescribe such documents and materials as may be required
pursuant to the terms of the proposed Letter of Credit and the proposed Letter of Credit shall be
reasonably satisfactory to such Issuer as to form and content; and



     (e) as of the date of issuance, no order, judgment or decree of any Court, arbitrator or
governmental authority shall purport by its terms to enjoin or restrain such Issuer from issuing
the Facility Letter of Credit and no law, rule or regulation applicable to such Issuer and no
request or directive (whether or not having the force of law) from any governmental authority with
jurisdiction over such Issuer shall prohibit or request that such Issuer refrain from the issuance
of Letters of Credit generally or the issuance of that Facility Letter of Credit.



     2.15.3 Procedure for Issuance of Facility Letters of Credit. (a) The applicable
Borrower shall give one of the Issuers and the Administrative Agent three Business Days’ prior
written notice of any requested issuance of a Facility Letter of Credit under this Agreement
(except that, in lieu of such written notice, a Borrower may give an Issuer (i) notice of such
request by tested telex or other tested arrangement satisfactory to such Issuer or (ii) telephonic
notice of such request if confirmed in writing by



31









 







delivery to such Issuer (A) immediately (x) of a
telecopy of the written notice required hereunder which has been signed by an Authorized Officer of
such Borrower or (y) of a telex containing all information required to be contained in such written
notice and (B) promptly (but in no event later than the requested time of issuance) of a copy of
the written notice required hereunder containing the original signature of an Authorized Officer of
such Borrower); such notice shall be irrevocable and shall specify whether the Facility Letter of
Credit is a Euro Facility Letter of Credit (which, if denominated in any currency other than U.S.
Dollars, it must be) or a U.S. Facility Letter of Credit, the stated amount and Agreed Currency of
the Facility Letter of Credit requested (which requested currency shall be limited to an Agreed
Currency in which such Borrower may obtain Loans under this Agreement), the effective date (which
day shall be a Business Day) of issuance of such requested Facility Letter of Credit, the date on
which such requested Facility Letter of Credit is to expire (which date shall be a Business Day and
shall in no event be later than the fifth day prior to the Facility Termination Date), the Person
for whose benefit the requested Facility Letter of Credit is to be issued and such other
information as may be reasonably requested by the Issuer. The Administrative Agent shall give
notice to each applicable Revolving Credit Lender of the issuance of each Facility Letter of Credit
reasonably promptly after such Facility Letter of Credit is issued. At the time such request is
made, the requesting Borrower shall also provide the applicable Issuer with all information
necessary for the issuance of the Facility Letter of Credit it is requesting. Such notice, to be
effective, must be received by such Issuer not later than 2:00 p.m. (local time) or the time
otherwise agreed upon by such Issuer and such Borrower on the last Business Day on which notice can
be given under this Section 2.15.3.



     (b) Subject to the terms and conditions of this Section 2.15.3 and provided that the
applicable conditions set forth in Sections 4.1 and 4.2 hereof have been satisfied, the Issuer
shall, on the requested date, issue a Facility Letter of Credit on behalf of the applicable
Borrower in accordance with such Issuer’s usual and customary business practices.



     (c) The Issuers shall not extend or amend any Facility Letter of Credit unless the
requirements of this Section 2.15 are met as though a new Facility Letter of Credit was being
requested and issued.



     2.15.4 Reimbursement Obligations. (a) Each Borrower agrees to pay to the Issuer the
amount of all Reimbursement Obligations, interest and other amounts payable to the Issuer under or
in connection with any Facility Letter of Credit issued on behalf of such Borrower immediately when
due, irrespective of any claim, set-off, defense or other right that the Borrower, the Company or
any Subsidiary may have at any time against the Issuer or any other Person, under all
circumstances, including without limitation, any of the following circumstances:



     (i) any lack of validity or enforceability of this Agreement or any of the other Loan
Documents;



     (ii) the existence of any claim, setoff, defense or other right that any Borrower or any
Subsidiary may have at any time against a beneficiary named in a Facility Letter of Credit or any
transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be
acting), any Issuer, any Lender, or any other Person, whether in connection with this Agreement,
any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transactions between any Borrower or any Subsidiary and the beneficiary named in
any Facility Letter of Credit);



32









 





     (iii) any draft, certificate or any other document presented under the Facility Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;



     (iv) the surrender or impairment of any security for the performance or observance of any of
the terms of any of the Loan Documents; or



     (v) the occurrence of any Default or Unmatured Default.



     (b) The Issuer shall promptly notify the applicable Borrower of any draw under a Facility
Letter of Credit. Such Borrower shall reimburse the applicable Issuer for drawings under a
Facility Letter of Credit issued by it on behalf of such Borrower promptly after the payment by the
Issuer. Any Reimbursement Obligation with respect to any Facility Letter of Credit shall bear
interest from the date of the relevant drawings under the pertinent Facility Letter of Credit at
(i) in the case of such Obligations denominated in U.S. Dollars, the interest rate for Floating
Rate Loans or (ii) in the case of such Obligations denominated in an Available Foreign Currency, at
the correlative floating rate of interest customarily applicable to similar extensions of credit to
corporate borrowers denominated in such currency in the country of issue of such currency, as
reasonably determined by the Administrative Agent. In addition to its other rights, the Issuers
shall also have all rights for indemnification and reimbursement as each Lender is entitled under
this Agreement.



     2.15.5 Participation. (a) Immediately upon issuance by an Issuer of any Facility
Letter of Credit in accordance with the procedures set forth in Section 2.15.3, (i) with respect to
each U.S. Facility Letter of Credit, each U.S. Lender shall be deemed to have irrevocably and
unconditionally purchased and received from such Issuer, without recourse or warranty, an undivided
interest and participation equal to its Pro Rata Share of such U.S. Facility Letter of Credit
(including, without limitation, all obligations of the applicable Borrower with respect thereto)
and any security therefor or guaranty pertaining thereto and (ii) with respect to each Euro
Facility Letter of Credit, each Euro Lender shall be deemed to have irrevocably and unconditionally
purchased and received from such Issuer, without recourse or warranty, an undivided interest and
participation equal to its Pro Rata Share in such Euro Facility Letter of Credit (including,
without limitation, all obligations of the applicable Borrower with respect thereto) and any
security therefor or guaranty pertaining thereto; provided, that a Letter of Credit issued
by an Issuer shall not be deemed to be a Facility Letter of Credit for purposes of this Section
2.15.5 if such Issuer shall have received written notice from any Revolving Credit Lender on or
before one Business Day prior to the date of its issuance of such Letter of Credit that one or more
of the conditions contained in Sections 4.1 or 4.2 are not then satisfied, and, in the event an
Issuer receives such a notice, it shall have no further obligation to issue any Letter of Credit
until such notice is withdrawn by that Revolving Credit Lender or such condition has been
effectively waived in accordance with the provisions of this Agreement.



     (b) In the event that an Issuer makes any payment under any Facility Letter of Credit and the
applicable Borrower shall not have repaid such amount to the Issuer pursuant to Section 2.15.4, the
Issuer shall promptly notify the Administrative Agent and each Revolving Credit Lender
participating in such Letter of Credit of such failure, and each Revolving Credit Lender
participating in such Letter of Credit shall promptly and unconditionally pay to the Administrative
Agent for the account of such Issuer the amount of such Lender’s Pro Rata Share of the unreimbursed
amount of any such payment in such currency. If any Revolving Credit Lender participating in such
Facility Letter of Credit fails to make available to such Issuer any amounts due to such Issuer
pursuant to this Section 2.15.5(b), such Issuer
shall be entitled to recover such amount, together with interest thereon (i) in the case of
amounts denominated in U.S. Dollars, at the Federal Funds Effective Rate, for the first three
Business Days after such Lender receives such notice and thereafter, at the Floating Rate, or (ii)
in the case of amounts



33









 







denominated in an Available Foreign Currency, at a local cost of funds rate
for obligations in such currency as determined by the Administrative Agent for the first three
Business Days after such Lender receives such notice, and thereafter at the floating rate of
interest correlative to the Floating Rate customarily applicable to similar extensions of credit to
corporate borrowers denominated in such currency in the country of issue of such currency, as
determined by the Administrative Agent, in either case payable (i) on demand, (ii) by setoff
against any payments made to such Issuer for the account of such Lender or (iii) by payment to such
Issuer by the Administrative Agent of amounts otherwise payable to such Lender under this
Agreement. The failure of any Revolving Credit Lender to make available to the Administrative
Agent its Pro Rata Share of the unreimbursed amount of any such payment shall not relieve any other
Revolving Credit Lender of its obligation hereunder to make available to the Administrative Agent
its Pro Rata Share of the unreimbursed amount of any payment on the date such payment is to be
made, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving
Credit Lender to make available to the Administrative Agent its Pro Rata Share of the unreimbursed
amount of any payment on the date such payment is to be made.



     (c) Whenever the Issuer receives a payment on account of a Reimbursement Obligation, including
any interest thereon, it shall promptly pay to each Revolving Credit Lender that has funded its
participating interest therein, in like funds as received an amount equal to such Lender’s Pro Rata
Share thereof.



     (d) The obligations of a Revolving Credit Lender to make payments to the Administrative Agent
with respect to a Facility Letter of Credit shall be absolute, unconditional and irrevocable, not
subject to any counterclaim, set-off, qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all circumstances.



     (e) In the event any payment by a Borrower received by the Administrative Agent with respect
to a Facility Letter of Credit and distributed by the Administrative Agent to the Lenders on
account of their participations is thereafter set aside, avoided or recovered from the
Administrative Agent in connection with any receivership, liquidation, reorganization or bankruptcy
proceeding, each Revolving Credit Lender that received such distribution shall, upon demand by the
Administrative Agent, contribute such Lender’s Pro Rata Share of the amount set aside, avoided or
recovered together with interest at the rate required to be paid by the Administrative Agent upon
the amount required to be repaid by it.



     2.15.6 Compensation for Facility Letters of Credit. The Issuer of a Facility Letter
of Credit shall have the right to receive from the Borrower that requested issuance of such
Facility Letter of Credit, solely for the account of such Issuer, a fronting fee in an amount equal
to 0.10% per annum as well as the Issuer’s reasonable and customary costs of issuing and servicing
the Facility Letters of Credit. In addition, such Borrower shall pay to the Administrative Agent
for the account of each Revolving Credit Lender participating in such Facility Letter of Credit a
non-refundable fee at a per annum rate in the amount shown on the Pricing Schedule on Exhibit A
applied to the face amount of the Facility Letter of Credit, payable quarterly in arrears for the
account of all Revolving Credit Lenders participating in such Facility Letter of Credit ratably
from the date such Facility Letter of Credit is issued until its stated expiry date or, if earlier,
the date of its termination or drawdown (provided that if such drawdown is a partial drawdown, such
fee shall continue to accrue with respect to the face amount of such Facility Letter of Credit
remaining available to be drawn).



     2.15.7 Letter of Credit Collateral Account. Each Borrower hereby agrees that it will,
until the final expiry of any Facility Letter of Credit issued on its account and thereafter as
long as any amount is payable to the Lenders in respect of any such Facility Letter of Credit, upon
the request of the



34









 







Administrative Agent, maintain a special collateral account (the “Letter of
Credit Collateral Account”) at the Administrative Agent’s office at the address specified
pursuant to Article XIV, in the name of such Borrower but under the sole dominion and control of
the Administrative Agent, for the benefit of the Lenders and in which such Borrower shall have no
interest other than as set forth in Section 8.1. The Administrative Agent will invest any funds on
deposit from time to time in the Letter of Credit Collateral Account in certificates of deposit of
the Administrative Agent having a maturity not exceeding 30 days. Nothing in this Section 2.15.7
shall either obligate the Administrative Agent to require any Borrower to deposit any funds in the
Letter of Credit Collateral Account or limit the right of the Administrative Agent to release any
funds held in the Letter of Credit Collateral Account other than as required by Section 8.1, and
the Borrowers’ obligations to deposit funds in the Letter of Credit Collateral Account are limited
to the circumstances required by Section 8.1.



     2.15.8 Nature of Obligations. (a) As among the Borrowers, the Issuers and the
Revolving Credit Lenders, each Borrower assumes all risks of the acts and omissions of, or misuse
of the Facility Letters of Credit by, the respective beneficiaries of the Facility Letters of
Credit requested by it. In furtherance and not in limitation of the foregoing, the Issuers and the
Revolving Credit Lenders shall not be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in connection with the
application for and issuance of any Facility Letter of Credit, even if it should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or purporting to transfer or
assign a Facility Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of a Facility Letter of Credit to comply fully with conditions required in order to
draw upon such Facility Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise; (v) errors
in interpretation of technical terms; (vi) misapplication by the beneficiary of a Facility Letter
of Credit of the proceeds of any drawing under such Facility Letter of Credit; or (vii) any
consequences arising from causes beyond the control of the Issuers or the Revolving Credit Lenders.
In addition to amounts payable as elsewhere provided in this Section 2.15, such Borrower hereby
agrees to protect, indemnify, pay and save the Administrative Agent, each Issuer and each Lender
harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges
and expenses (including reasonable attorneys’ fees) arising from the claims of third parties
against the Administrative Agent or such Issuer in respect of any Facility Letter of Credit
requested by such Borrower.



     (b) In furtherance and extension and not in limitation of the specific provisions hereinabove
set forth, any action taken or omitted by the Issuers or any Revolving Credit Lender under or in
connection with the Facility Letters of Credit or any related certificates, if taken or omitted in
good faith, shall not put such Issuer or such Lender under any resulting liability to any Borrower
or relieve any Borrower of any of its obligations hereunder to the Issuers, the Administrative
Agent or any Revolving Credit Lender.



     (c) Notwithstanding anything to the contrary contained in this Section 2.15.8, a Borrower
shall not have any obligation to indemnify the Administrative Agent, any Issuer or any Lender under
this Section 2.15 in respect of any liability incurred by each arising primarily out of the gross
negligence or wilful misconduct of such Administrative Agent, Issuer or Lender, as determined by a
court of competent jurisdiction, or out of the wrongful dishonor by such Issuer of a proper demand
for payment made under the Facility Letters of Credit issued by such Issuer as determined by a
court of competent jurisdiction,
unless such dishonor was made at the request of such Borrower in writing, or out of the wrongful
honor by such Issuer of a demand for payment made under the Facility Letters of Credit issued by
such Issuer which demand for payment does not comply with the conditions required in order to draw
upon such



35









 







Facility Letter of Credit as determined by a court of competent jurisdiction, unless such
dishonor was made at the request of such Borrower in writing.



     Section 2.16. Swing Loans.



     (a) Making of Swing Loans. The Swing Lender may elect in its sole discretion to make
Swing Loans to any Borrower solely for the Swing Lender’s own account, from time to time prior to
the Facility Termination Date up to an aggregate principal amount at any one time outstanding not
to exceed (i) in the case of Swing Loans to any Borrower under the U.S. Revolving Credit
Commitment, the lesser of (A) $30,000,000 and (B) the unused amount of the Aggregate U.S. Revolving
Credit Commitments (“U.S. Swing Loans”), and (ii) in the case of Swing Loans to any
Borrower under the Euro Revolving Credit Commitment, the lesser of (A) €15,000,000 or the Euro
Equivalent Amount thereof and (B) the unused amount of the Aggregate Euro Revolving Credit
Commitments (“Euro Swing Loans”). The Swing Lender may make Swing Loans (subject to the
conditions precedent set forth in Article IV), provided that the Swing Lender has received
a request in writing or, in the case of U.S. Swing Loans only, via telephone from an Authorized
Officer of such Borrower for funding of a Swing Loan no later than such time required by the Swing
Lender, on the Business Day on which such Swing Loan is requested to be made. The Swing Lender
shall not make any Swing Loan in the period commencing one Business Day after the Swing Lender
receives written notice from the Company or a Lender that one or more of the conditions precedent
contained in Section 4.2 are not satisfied and ending upon the satisfaction or waiver of such
condition(s). Swing Loans may be made by the Swing Lender in any freely traded currency requested
by such Borrower and agreed to by the Swing Lender. The Swing Lender agrees with the Borrowers that
all Swing Loans denominated in Australian Dollars will be funded out of the Swing Lender’s Lending
Installation in Australia unless the Swing Lender provides prior notice to the Borrowers, in which
case the Borrower requesting such Loan may withdraw its request for such Swing Loan. Each
outstanding Swing Loan shall be payable on the Business Day following demand therefor, with
interest at such rate to which the Swing Lender and such Borrower shall agree from time to time,
and shall be subject to all the terms and conditions applicable to Loans, except that all interest
thereon shall be payable to the Swing Lender solely for its own account. Notwithstanding provisions
to the contrary in this Agreement, each Lender acknowledges and agrees that U.S. Swing Loans may be
made under the U.S. Revolving Credit Commitment, and Euro Swing Loans may be made under the Euro
Revolving Credit Commitment, to any Borrower and each Borrower acknowledges and agrees that the
availability under Section 2.1.1 and 2.1.2 may also be blocked by the Administrative Agent in an
amount equal to the approximate anticipated Swing Loan usage reasonably determined by the
Administrative Agent with the consent of the Company.



     (b) Swing Loan Borrowing Requests. Each Borrower of a U.S. Swing Loan made pursuant
to telephonic notice agrees to deliver promptly to the Swing Lender a written confirmation thereof
signed by an Authorized Officer. If the written confirmation differs in any material respect from
the action taken by the Swing Lender, the records of the Swing Lender shall govern, absent manifest
error.



     (c) Repayment of Swing Loans. At any time after making a Swing Loan, the Swing Lender
may request the recipient Borrower to, and upon request by the Swing Lender the recipient Borrower
shall, promptly request an Advance from all U.S. Lenders, with respect to any U.S. Swing Loan, and
all Euro Lenders, with respect to any Euro Swing Loan, and apply the proceeds of such Advance to
the repayment of such Swing Loan not later than the Business Day following the Swing Lender’s
request. Notwithstanding the foregoing, upon the earlier to occur of (a) three Business Days after
demand is made by the Swing Lender and (b) the Facility Termination Date, the Borrower agrees that
each U.S. Swing Loan outstanding
in any currency other than Dollars shall be immediately and automatically converted to and
redenominated in Dollars equal to the Dollar Equivalent Amount of each such U.S. Swing Loan
determined as of the date of such conversion and each Euro Swing Loan outstanding in any currency
other than Euros shall be



36









 







immediately and automatically converted to and redenominated in Euros
equal to the Euro Equivalent Amount of each such Euro Swing Loan determined as of the date of such
conversion, and each U.S. Lender, in the case of any U.S. Swing Loan, and each Euro Lender, in the
case of any Euro Swing Loan (other than, in each case, the Swing Lender), shall irrevocably and
unconditionally purchase from the Swing Lender, without recourse or warranty, an undivided interest
and participation in such Swing Loan in an amount equal to such Lender’s Pro Rata Share of the
Swing Loan and promptly pay such amount to such Swing Lender in immediately available funds (or, in
the case of participations in Swing Loans denominated in an Available Foreign Currency other than
Euros, same day funds). Such payment shall be made by the other Lenders whether or not a Default
is then continuing or any other condition precedent set forth in Section 4.2 is then met and
whether or not such Borrower has then requested an Advance in such amount. If any Lender fails to
make available to such requesting Swing Lender any amounts due to the Swing Lender from such Lender
pursuant to this Section, the Swing Lender shall be entitled to recover such amount, together with
interest thereon at the Federal Funds Effective Rate or such other local cost of funds rate
determined by the Swing Lender with respect to any Swing Loan denominated in any Available Foreign
Currency for the first three Business Days after such Lender receives notice of such required
purchase and thereafter, at the rate applicable to such Loan, payable (i) on demand, (ii) by setoff
against any payments made to the Swing Lender for the account of such Lender or (iii) by payment to
the Swing Lender by the Administrative Agent of amounts otherwise payable to such Lender under this
Agreement. The failure of any Lender to make available to such Swing Lender its Pro Rata Share of
any unpaid Swing Loan shall not relieve any other Lender of its obligation hereunder to make
available to the Swing Lender its Pro Rata Share of any unpaid Swing Loan on the date such payment
is to be made, but no Lender shall be responsible for the failure of any other Lender to make
available to the Swing Lender its Pro Rata Share of any unpaid Swing Loan.



     2.17 Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Lender is a Defaulting Lender:



     (a) fees shall cease to accrue pursuant to Section 2.5 on the Commitment of such Defaulting
Lender solely in respect of its unused Commitments;



     (b) the Commitments and Aggregate Revolving Credit Outstandings of such Defaulting Lender
shall not be included in determining whether all Lenders, Required Euro Lenders, Required U.S.
Lenders or Required Lenders have taken or may take any action hereunder (including any consent to
any amendment or waiver pursuant to Section 8.2), provided that any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender which affects such
Defaulting Lender differently than other affected Lenders (other than as a result of such
Defaulting Lender having a greater or lesser Aggregate Revolving Credit Outstandings or Commitment)
or which increases the amount of any Commitment of such Defaulting Lender, forgives any principal
amount of any Loans owing to such Defaulting Lender or any interest or fees owing to such
Defaulting Lender previously accrued at the time of such forgiveness or extends the Facility
Termination Date or extends the final maturity beyond the Facility Termination Date of any Loan,
Note or Reimbursement Obligation with respect to such Defaulting Lender shall require the consent
of such Defaulting Lender;



     (c) if any Swing Loans or Facility Letter of Credit Obligations exist at the time a Lender
becomes a Defaulting Lender then:




(i) all or any part of such Defaulting Lender’s Pro Rata Share of such Swing Loans and
Facility Letter of Credit Obligations shall be reallocated among the non-Defaulting Lenders
in accordance with their respective Pro Rata Shares but only to the extent the sum of all
non-Defaulting Lenders’ Aggregate Revolving Credit Outstandings plus such Defaulting
Lender’s Pro



37









 







Rata Share of Swing Loans and Facility Letter of Credit Obligations does not
exceed the total of all non-Defaulting Lenders’ Commitments; and




(ii) to the extent, if any, the reallocation described in clause (i) above cannot, or can
only partially, be effected, the Borrowers shall within three Business Days following notice
by the Administrative Agent (x) first, prepay such Swing Loans and (y) second, cash
collateralize such Defaulting Lender’s Pro Rata Share of such Facility Letter of Credit
Obligations (in each case after giving effect to any partial reallocation pursuant to clause
(i) above) in accordance with the procedures set forth in Section 8.1 for so long as such
Facility Letter of Credit Obligations are outstanding and such Defaulting Lender remains a
Defaulting Lender, provided that no Foreign Subsidiary Borrower shall be obligated to make
any such payment in excess of, respectively, the principal amount of any outstanding Swing
Loans made to it or the amount of any Facility Letter of Credit Obligations in respect of
Facility Letters of Credit issued for its account;




(iii) if the Borrowers cash collateralize any portion of such Defaulting Lender’s Pro Rata
Share of Facility Letter of Credit Obligations pursuant to Section 8.1, no Borrower shall be
required to pay any fees to such Defaulting Lender (or to the Administrative Agent or Issuer
for the benefit thereof) pursuant to Section 2.15.6 with respect to such Defaulting Lender’s
Pro Rata Share of Facility Letter of Credit Obligations during the period such Defaulting
Lender’s Pro Rata Share of Facility Letter of Credit Obligations is cash collateralized;




(iv) if the Pro Rata Share of Facility Letter of Credit Obligations of the non-Defaulting
Lenders is reallocated pursuant to this Section 2.17(c), then the fees payable to the
Lenders pursuant to Section 2.5 and Section 2.15.6 shall be adjusted in accordance with such
non-Defaulting Lenders’ Pro Rata Shares; or




(v) if any Defaulting Lender’s Pro Rata Share of Facility Letter of Credit Obligations is
neither cash collateralized nor reallocated pursuant to this Section 2.17(c), then, without
prejudice to any rights or remedies of the Issuer or any Lender hereunder, all facility fees
that otherwise would have been payable to such Defaulting Lender (solely with respect to the
portion of such Defaulting Lender’s Commitment that was utilized by such Pro Rata Share of
Facility Letter of Credit Obligations) and letter of credit fees payable under Section
2.15.6 with respect to such Defaulting Lender’s Pro Rata Share of Facility Letter of Credit
Obligations shall be payable to the Issuer until such Pro Rata Share of Facility Letter of
Credit Obligations is cash collateralized and/or reallocated;



     (d) so long as any Lender is a Defaulting Lender, the Swing Lender shall not be required to
fund any Swing Loan and the Issuer shall not be required to issue, amend or increase any Facility
Letter of Credit, unless it is reasonably satisfied that the related exposure will be 100% covered
by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the
Borrowers in accordance with this Section 2.17 and Section 8.1, and participating interests in any
such newly issued or increased Facility Letter of Credit or newly made Swing Loan shall be
allocated among non-Defaulting Lenders in a manner consistent with Section 2.17(c)(i) (and
Defaulting Lenders shall not participate therein); and



     (e) any amount payable to such Defaulting Lender hereunder (whether on account of principal,
interest, fees or otherwise and including any amount that would otherwise be payable to such
Defaulting Lender pursuant to Section 2.17 but excluding Section 3.7) shall, in lieu of being
distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated
account and, subject to any applicable requirements of law, be applied at such time or times as may
be determined by the



38









 







Administrative Agent (i) first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of
any amounts owing by such Defaulting Lender to the Issuer or Swing Lender hereunder, (iii) third,
to the funding of any Loan or the funding or cash collateralization of any participating interest
in any Swing Loan or Facility Letter of Credit in respect of which such Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent, (iv) fourth, if so determined by the Administrative Agent and the Borrowers,
held in such account as cash collateral for future funding obligations of the Defaulting Lender
under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrowers or
the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the
Borrowers or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a
prepayment of the principal amount of any Loans or reimbursement obligations in respect of
Reimbursement Obligations for which a Defaulting Lender has funded its participation obligations
and (y) made at a time when the conditions set forth in Section 4.2 are satisfied, such payment
shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all
non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or
reimbursement obligations owed to, any Defaulting Lender.



     In the event that the Administrative Agent, the Borrowers, the Issuer and the Swing Lender
each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to
be a Defaulting Lender, then the Pro Rata Shares of Swing Loans and Facility Letter of Credit
Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment
and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other
than Swing Loans) as the Administrative Agent shall determine may be necessary in order for such
Lender to hold such Loans in accordance with its Pro Rata Share.



     2.18 Guaranties. The Company shall execute and deliver, or cause to be executed and
delivered, to the Lenders and the Administrative Agent from time to time Guaranties of certain
present and future Domestic Subsidiaries such that, at all times, all Domestic Subsidiaries which
are not Guarantors do not, if considered in the aggregate as a single Subsidiary, constitute a
Significant Subsidiary. For purposes of making the determination required under the preceding
sentence, it is acknowledged that, as provided in Rule 1-02 of Regulation S-X as currently in
effect promulgated by the SEC, the investment in and advances to, and share of total assets and
income of, any Domestic Subsidiary shall be determined based on the investment in and advances to,
and share of total assets and income of, such Domestic Subsidiary and its Subsidiaries on a
consolidated basis. In connection with the delivery of any such Guaranties, Company shall provide
such other documentation to the Administrative Agent, including, without limitation, one or more
opinions of counsel reasonably satisfactory to the Administrative Agent, corporate documents and
resolutions, which in the reasonable opinion of the Administrative Agent is necessary or advisable
in connection therewith. Notwithstanding anything herein to the contrary, Securitization
Entities shall not be required to be Guarantors.




39











 





ARTICLE III




CHANGE IN CIRCUMSTANCES, TAXES




     3.1 Yield Protection. If after the date hereof any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any change or modification thereof, or any interpretation thereof, or the
compliance of any Lender therewith,




	 	(a)	 	subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due from any Borrower
or changes the basis of taxation of payments to any Lender in respect of its
Loans or other amounts due it hereunder (excluding income taxes and franchise
taxes (imposed in lieu of income taxes) imposed on the Administrative Agent or
any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein, other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document or any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which any Lending
Installation of such Lender or the Administrative Agent, as the case may be, is
located), or
	 
	 	(b)	 	imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest rate applicable to
Fixed Rate Advances), or
	 
	 	(c)	 	imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining loans or reduces any amount receivable by any Lender or
any applicable Lending Installation in connection with loans, or requires any
Lender or any applicable Lending Installation to make any payment calculated by
reference to the amount of loans held or interest received by it, by an amount
deemed material by such Lender,




then, within 15 days of demand by such Lender in accordance with and subject to Section 3.5, the
affected Borrower shall pay such Lender that portion of such increased expense incurred or
reduction in an amount received that such Lender reasonably determines is attributable to making,
funding and maintaining its Loans or its Commitments.




     3.2 Changes in Capital Adequacy Regulations. If a Lender reasonably determines that
the amount of capital required or expected to be maintained by such Lender, any Lending
Installation of such Lender or any corporation controlling such Lender is increased as a result of
a Change, then, within 15 days of demand by such Lender in accordance with and subject to Section
3.5, the Company shall pay such Lender the amount necessary to compensate for any shortfall in the
rate of return on the portion of such increased capital that such Lender reasonably determines is
attributable to this Agreement, its Loans



40









 




or its
obligation to make Loans hereunder (after taking into account such Lender’s policies as to
capital adequacy). “Change” means (a) any change after the date of this Agreement in the
Risk-Based Capital Guidelines or (b) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or directive (whether or
not having the force of law) after the date of this Agreement that affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. “Risk-Based Capital Guidelines” means (i) the risk-based capital
guidelines in effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled “International Convergence of Capital Measurements and Capital
Standards,” including transition rules, and any amendments to such regulations adopted prior to the
date of this Agreement.




     3.3 Availability of Types of Advances. If any Lender reasonably determines that
maintenance of its Eurodollar Loans or Multicurrency Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not having the force of law,
or if the Required U.S. Lenders with respect to Eurodollar Loans or the Required Euro Lenders with
respect to any Multicurrency Loan determine that (i) deposits of a currency, type and maturity
appropriate to match fund Eurodollar or Multicurrency Loans are not available or (ii) the interest
rate applicable to a Multicurrency Loan or Eurodollar Loan does not accurately reflect the cost of
making or maintaining such Loans, then the Administrative Agent shall suspend the availability of
the affected Type of Loans and require any Loans of the affected Type to be repaid at the end of
the Interest Period for the affected Loan. Notwithstanding the satisfaction of all conditions
referred to in Article II and Article IV with respect to any Advance in any Agreed Currency other
than Dollars to the Company and with respect to any Advance to any Foreign Subsidiary Borrower, if
there shall occur on or prior to the date of such Advance any change in national or international
financial, political or economic conditions or currency exchange rates or exchange controls which
would in the reasonable opinion of the Administrative Agent or the Required Lenders make it
impracticable for the Multicurrency Loans comprising such Advance to be denominated in the Agreed
Currency specified by a Borrower, then the Administrative Agent shall forthwith give notice thereof
to such Borrower and the Lenders, and such Loans shall not be made.



     3.4 Funding Indemnification. If (a) any payment of a Fixed Rate Advance occurs on a
date that is not the last day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, (b) a Fixed Rate Advance is not made on the date specified by a Borrower
for any reason other than default by the Lenders, or (c) a Fixed Rate Loan is assigned other than
on the last day of an applicable Interest Period as a result of a request by the Company pursuant
to Section 3.7, such Borrower will indemnify each Lender for any reasonable loss or reasonable cost
incurred by it resulting therefrom, including, without limitation, any reasonable loss or
reasonable cost in liquidating or employing deposits acquired to fund or maintain the Fixed Rate
Advance, but excluding the loss of the Applicable Margin.



     3.5 Lender Statements; Survival of Indemnity. To the extent reasonably possible, each
Lender shall designate an alternate Lending Installation with respect to its Eurodollar Loans and
Multicurrency Loans to reduce any liability of a Borrower to such Lender under Sections 3.1 and 3.2
or to avoid the unavailability of a Type of Advance under Section 3.3, so long as such designation
is not disadvantageous to such Lender in any material respect. Each Lender shall deliver a written
statement of such Lender to the applicable Borrower (with a copy to the Administrative Agent) as to
the amount due, if any, under Section 3.1, 3.2 or 3.4. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount and shall state
that amounts determined in accordance with such procedures are being charged by such Lender to
other borrowers with credit facilities similar to this
Agreement and credit characteristics comparable to the Company as reasonably



41









 




determined by
such Lender and shall be final, conclusive and binding on the Borrowers in the absence of manifest
error. Determination of amounts payable under such sections in connection with Eurodollar Loans
and Multicurrency Loans shall be calculated as though each Lender funded such Loans through the
purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in
determining the interest rate applicable to such Loan, whether in fact that is the case or not.
Unless otherwise provided herein, the amount specified in the written statement of any Lender shall
be payable on demand after receipt by the applicable Borrower of such written statement. The
obligations of the Borrowers under Sections 3.1, 3.2, 3.4 and 3.6 shall survive payment of the
Obligations and termination of this Agreement. The Borrowers shall have no obligation to compensate
any Lender with respect to amounts provided in Sections 3.1, 3.2, 3.4 or 3.6 with respect to any
period prior to the date which is 120 days prior to the date such Lender delivers its written
statement hereunder requesting compensation, provided further that, if the event
giving rise to such request is due to the retroactive effect of any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority or compliance with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority, then the 120-day period referred to above shall be extended to include the period of
retroactive effect thereof.




     3.6 Taxes.



     3.6.1 All payments of principal and interest made by the Borrowers under this Agreement and
any Note, if any, and all Reimbursement Obligations with respect to Facility Letters of Credit
shall be made free and clear of, and without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding income taxes and franchise taxes (imposed in lieu of income
taxes) imposed on the Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document) or any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which any Lending Installation of such Lender
or the Administrative Agent, as the case may be, is located. If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)
are required to be withheld from any amounts payable to the Administrative Agent, any Issuer or any
Lender hereunder or under any Note or Facility Letter of Credit, the amounts so payable to the
Administrative Agent, such Issuer or such Lender shall be increased to the extent necessary to
yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest
or any such other amounts payable hereunder at the rates and in the amounts specified in this
Agreement provided, however, that (i) with respect to any Loan to, or Facility
Letter of Credit for the benefit of, the Company or a Domestic Subsidiary Borrower, such Borrower
shall not be required to increase any such amounts payable to any Lender that is not organized
under the laws of the United States of America or a state thereof if such Lender fails to comply
with the requirements of Section 3.6.2, (ii) with respect to any Loan to, or Facility Letter of
Credit for the benefit of, a Foreign Subsidiary Borrower, such Borrower shall not be required to
increase any such amounts payable to any Lender if such Lender fails to comply with the
requirements of Section 3.6.3, and (iii) with respect to any Multicurrency Loan or any Euro
Facility Letter of Credit, a Borrower shall not be required to increase any such amounts payable to
any Lender or the Administrative Agent to the extent such Lender could avoid the payment of such
amount by changing its Lending Installation, provided that any such change in any Lending
Installation shall not be required if such Lender cannot change its Lending Installation for any
reason or such Lender has determined that it is disadvantageous to it to do so.
Whenever any Non-Excluded Taxes are payable by a Borrower, as



42









 




promptly as possible thereafter
such Borrower shall send to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt received by such
Borrower showing payment thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, such Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by
the Administrative Agent or any Lender as a result of any such failure. The agreements in this
Section shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.




     3.6.2 Each Lender that is not incorporated under the laws of the United States of America or a
state thereof shall:




     (a) at least five Business Days before the date of the initial payment to be made by
the Company under this Agreement to such Lender, deliver to the Company and the
Administrative Agent (A) two duly completed copies of United States Internal Revenue Service
Form W-8BEN, W-8IMY or W-8ECI, or successor applicable form, as the case may be, certifying
that it is exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or in the case of a Lender that is relying on the
portfolio interest exemption, certifying that such Lender is a foreign corporation,
partnership, estate or trust;




     (b) deliver to the Company and the Administrative Agent two further copies of any such
form or certification at least five Business Days before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Administrative Agent and
the Company;




     (c) obtain such extensions of time for filing and complete such forms or certifications
as may reasonably be requested by the Company or the Administrative Agent; and




     (d) file amendments to such forms as and when required; and each Lender (or Transferee)
that is incorporated or organized under the laws of the United States of America or a State
thereof shall provide two properly completed and duly executed copies of Form W-9, or
successor applicable form, at the times specified for delivery of forms under this Section
3.6.2 unless an event (including, without limitation, any change in treaty, law or
regulation) has occurred after the date such Person becomes a Lender hereunder which renders
all such forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the Company and the
Administrative Agent; provided, however, that the Company may rely upon such forms
provided to the Company for all periods prior to the occurrence of such event. Each Person
that shall become a Lender or a Participant pursuant to Section 2.4(b), 3.7 or 13.1 shall,
upon the effectiveness of the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this Section, provided that in
the case of such Participant, the obligations of such Participant pursuant to this Section
3.6.2 shall be determined as if such Participant were a Lender.



     3.6.3 Each Lender to a Foreign Subsidiary Borrower that is not incorporated or organized under
the laws of the jurisdiction (a) under the laws of which such Borrower is incorporated or
organized, or (b) in which such Borrower is located shall, upon request by such Borrower, within a
reasonable period of time after such request, deliver to such Borrower or the applicable
governmental or taxing authority, as the case may be, any form or certificate required in order
that any payment by such Borrower under this



43









 




Agreement
or any Notes to such Lender may be made free and clear of, and without deduction or
withholding for or on account of any Non-Excluded Tax (or to allow any such deduction or
withholding to be at a reduced rate) imposed on such payment under the laws of the jurisdiction
under which such Borrower is incorporated or organized, provided that such Lender is
legally entitled to complete, execute and deliver such form or certificate and such completion,
execution or submission would not prejudice the legal position of such Lender. Each Person that
shall become a Lender to a Foreign Subsidiary Borrower or a Participant in Loans to a Foreign
Subsidiary Borrower pursuant to Section 2.4(b), 3.7 or 13.1 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and statements to the
extent required pursuant to this Section, provided that in the case of such Participant,
the obligations of such Participant pursuant to this Section 3.6.3 shall be determined as if such
Participant were a Lender.




     3.6.4 Each Lender agrees to use reasonable efforts to avoid or to minimize any amounts that
might otherwise be payable pursuant to this Section 3.6, provided that such effort shall
not impose on any such Lender any additional costs or legal or regulatory burdens deemed by such
Lender in its reasonable judgment to be material. In the event that any Lender determines that any
event or circumstance that will lead to a claim by it under this Section 3.6 has occurred or will
occur, such Lender will use its best efforts to so notify the Company in writing, provided
that any failure to provide such notice shall in no way impair the rights of any Lender to demand
and receive compensation under this Section 3.6.



     3.7 Substitution of Lender. If (a) the obligation of any Lender to make or maintain
Loans has been suspended pursuant to Section 3.3 when not all Lenders’ obligations to do so have
been suspended, (b) any Lender has demanded compensation under Sections 3.1, 3.2 or 3.6 when all
Lenders have not done so, (c) any Lender is a Defaulting Lender, or (d) any Lender has failed to
consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of
Section 8.2 or any other provision of any Loan Document which requires the consent of all affected
Lenders and with respect to which the Required Lenders shall have granted their consent, the
Company shall have the right, if no Default then exists, to replace such Lender (a “Replaced
Lender”) with one or more other lenders (collectively, the “Replacement Lender”)
acceptable to the Administrative Agent, provided that (i) at the time of any replacement
pursuant to this Section 3.7, the Replacement Lender shall enter into one or more Assignments
pursuant to which the Replacement Lender shall acquire the Commitments and outstanding Loans and
other obligations of the Replaced Lender and, in connection therewith, shall pay to the Replaced
Lender in respect thereof an amount equal to the sum of (A) the amount of principal of, and all
accrued interest on, all outstanding Loans of the Replaced Lender, (B) the amount of all accrued,
but theretofore unpaid, fees owing to the Replaced Lender hereunder (subject, for the avoidance of
doubt, to Section 2.17(a)) and (C) the amount which would be payable by the Borrowers to the
Replaced Lender pursuant to Section 3.4, if any, if the Borrowers prepaid at the time of such
replacement all of the Loans of such Replaced Lender outstanding at such time; provided, that, no
Defaulting Lender shall be entitled to compensation under clause (C) or under Section 3.4 upon any
such payment, and (ii) all obligations of the Borrowers then owing to the Replaced Lender (other
than those specifically described in clause (i) above in respect of which the assignment purchase
price has been, or is concurrently being, paid) shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective Assignments, the payment
of amounts referred to in clauses (i) and (ii) above and, if so requested by the Replacement
Lender, delivery to the Replacement Lender of the appropriate Note or Notes executed by the
appropriate Borrowers, the Replacement Lender shall become a Lender hereunder and the Replaced
Lender shall cease to constitute a Lender hereunder. The provisions of this Agreement (including
without limitation Sections 3.4, 10.7 and 10.11) shall continue to govern the rights and
obligations of a Replaced Lender with respect to any Loans made or any other actions taken or
information received by such lender while it was a Lender. Nothing herein shall release any
Defaulting Lender from any obligation it may have to any Borrower, the Administrative Agent or any
other Lender.



44









 





ARTICLE IV




CONDITIONS PRECEDENT




     4.1 Closing Conditions. On the date hereof, the Borrowers shall furnish, or shall
cause to be furnished, to the Administrative Agent, each of the following:




	 	(a)	 	Copies of the articles of incorporation or similar
organizational documents of each Borrower and Guarantor, together with all
amendments thereto, and a certificate of good standing or similar governmental
evidence of corporate existence (to the extent applicable in the case of
Foreign Subsidiaries), certified by the Secretary or an Assistant Secretary or
other duly authorized representative of such Borrower or Guarantor, as the case
may be, or of the Company.
	 
	 	(b)	 	Copies of the by-laws and Board of Directors’ resolutions (and
resolutions of other bodies, if any are reasonably deemed necessary by counsel
for the Administrative Agent) of each Borrower and Guarantor authorizing the
execution of the Loan Documents, certified by the Secretary or an Assistant
Secretary or other duly authorized representative of such Borrower or
Guarantor, as the case may be, or of the Company.
	 
	 	(c)	 	An incumbency certificate of each Borrower and Guarantor, which
shall identify by name and title and bear the signature of the officers of such
Borrower or such Guarantor authorized to sign the applicable Loan Documents and
to make borrowings hereunder, upon which certificate the Administrative Agent
and the Lenders shall be entitled to rely until informed of any change in
writing by such Borrower, such Guarantor or the Company.
	 
	 	(d)	 	A written opinion of the Borrowers’ and Guarantors’ counsel,
addressed to the Administrative Agent and Lenders, in substantially the form of
Exhibit I hereto.
	 
	 	(e)	 	Written money transfer instructions, as described on Exhibit J
hereto, addressed to the Administrative Agent and signed by two Authorized
Officers, together with such other related money transfer authorizations as the
Administrative Agent may have reasonably requested.
	 
	 	(f)	 	The Guaranty executed by all of the Guarantors.
	 
	 	(g)	 	Payment of all fees owing to the Administrative Agent or any
Lender under any Loan Document by the Borrowers and the Guarantors as of the
Effective Date.
	 
	 	(h)	 	Evidence reasonably satisfactory to the Administrative Agent
that, since December 31, 2008, there has been no change in the business,
property, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
	 
	 	(i)	 	All obligations under the Existing Loan Agreement shall be paid
in full and all commitments of each of the lenders thereunder shall be
terminated.




45









 












	 	(j)	 	Such other agreements and documents, and the satisfaction of
such other conditions, as may be reasonably required by the Administrative
Agent, including without limitation the delivery of all Loan Documents
contemplated to be executed and delivered on the Effective Date executed by all
applicable parties and such funding instructions as may be required by the
Administrative Agent.





     4.2 Each Advance. The Lenders shall not be required to make any Loans nor shall any
Issuer be required to issue any Letter of Credit, unless on the applicable Borrowing Date, both
before and after giving effect on a pro forma basis to such Loan or Letter of Credit:



          (a) There exists no Default or Unmatured Default.




          (b) The representations and warranties contained in Article V are true and correct as of such
Borrowing Date except to the extent any such representation or warranty relates solely to an
earlier date, in which case such representation or warranty shall be true and correct on and as of
such earlier date.




          (c) If such Loan is an initial Loan to a Subsidiary Borrower, the Administrative Agent shall
have received a Foreign Subsidiary Opinion or Domestic Subsidiary Opinion, as the case may be, in
respect of such Subsidiary Borrower and such other documents reasonably requested by the
Administrative Agent.




     Each Borrowing notice with respect to each borrowing by a Borrower hereunder or each request
for an issuance of a Facility Letter of Credit shall constitute a representation and warranty by
the Company and such Borrower that the conditions contained in Sections 4.2(a), (b) and (c) have
been satisfied.



ARTICLE V




REPRESENTATIONS AND WARRANTIES




     Each of the Company and the Subsidiary Borrowers (insofar as the representations and
warranties set forth below relate to such Subsidiary Borrower) represents and warrants to the
Lenders that:



     5.1 Corporate Existence and Standing. Each Borrower and Guarantor is a corporation,
partnership, limited liability company or other organization, duly organized and validly existing
under the laws of its jurisdiction of organization and has all requisite corporate, partnership,
company or similar authority to conduct its business as presently conducted (in each case, in the
case of Foreign Subsidiaries, to the extent such legal concepts are applicable thereto).



     5.2 Authorization and Validity. Each Borrower has the corporate or other power and
authority and legal right to execute and deliver the Loan Documents and to perform its obligations
thereunder. The execution and delivery by each of the Borrowers of the Loan Documents and the
performance of their obligations thereunder have been duly authorized by proper corporate or other
applicable company proceedings, and the Loan Documents to which they are a party constitute legal,
valid and binding obligations of the Borrowers enforceable against the Borrowers in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally and by general principles of equity.



46









 





     5.3 No Conflict; Government Consent. Neither the execution and delivery by the
Borrowers of the Loan Documents, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Company or any of its Subsidiaries or the
Company’s or any Subsidiary’s constitutive documents or the provisions of any indenture, instrument
or agreement to which the Company or any of its Subsidiaries is a party or is subject, or by which
it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in
the creation or imposition of any Lien (other than any Lien permitted by Section 6.12) in, of or on
the Property of the Company or a Subsidiary pursuant to the terms of any such indenture, instrument
or agreement. Other than those that have been obtained, no order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with the execution, delivery and
performance of, or the legality, validity, binding effect or enforceability of, any of the Loan
Documents.



     5.4 Financial Statements. The Company has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of
and for the fiscal year ended December 31, 2008, reported on by KPMG, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended
June 30, 2009, certified by its chief financial officer. Such financial statements present fairly,
in all material respects, the financial position and results of operations and cash flows of the
Company and its consolidated Subsidiaries as of such dates and for such periods in accordance with
GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above. All financial statements of the Company and its
Subsidiaries delivered to the Lenders on and after the Effective Date were prepared in accordance
with generally accepted accounting principles in effect on the date such statements were prepared
and fairly present in all material respects the consolidated financial condition and operations of
the Company and its Subsidiaries (other than in the case of annual financial statements, subject to
the absence of footnotes and year-end audit adjustments).



     5.5 Material Adverse Change. Since December 31, 2008 or, after the first financial
statements are delivered under Sections 6.1(i) or (ii), since the date of the financial statements
most recently delivered under Section 6.1(i) or (ii), there has been no change in the business,
Property, operations or condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole, which could reasonably be expected to have a Material Adverse Effect.



     5.6 Taxes. The Company and its Subsidiaries have filed all United States federal tax
returns and all other material tax returns that are required to be filed with any Governmental
Authority and have paid all taxes shown as due pursuant to said returns or pursuant to any
assessment received by the Company or any of its Subsidiaries by any Governmental Authority, except
such taxes, if any, as are being contested in good faith and as to which adequate reserves have
been provided in accordance with GAAP and as to which no Lien (other than as permitted by Section
6.12) exists. No tax liens have been filed and no claims are being asserted with respect to any
such taxes, other than as permitted by Section 6.12. The charges, accruals and reserves on the
books of the Company and its Subsidiaries in respect of any taxes or other governmental charges are
adequate.



     5.7 Litigation and Guarantee Obligations. Except as set forth on Schedule 5.7 hereto,
there is no litigation, arbitration or proceeding pending or, to the knowledge of any of the
Company’s executive officers, any governmental investigation or inquiry pending or any litigation,
arbitration, governmental investigation, proceeding or inquiry threatened against or affecting the
Company or any of its



47









 




Subsidiaries that could reasonably be expected to have a Material Adverse
Effect or which seeks to prevent, enjoin or
delay the making of the Loans or Advances. Other than any liability incident to such
litigation, arbitration or proceedings listed on Schedule 5.7, the Company and its Subsidiaries
have no material Guarantee Obligations not provided for or disclosed in the financial statements
referred to in Section 5.4 that could reasonably be expected to have a Material Adverse Effect.




     5.8 Subsidiaries. Schedule 5.8 hereto contains an accurate list of all Subsidiaries
of the Company as of the Effective Date, setting forth their respective jurisdictions of
incorporation or organization and the percentage of their respective Capital Stock owned by the
Company or other Subsidiaries. All of the issued and outstanding shares of Capital Stock of such
Subsidiaries held by the Company have been duly authorized and issued and are fully paid and
non-assessable (to the extent such concepts are applicable).



     5.9 ERISA. Except where noncompliance could not reasonably be expected to have a
Material Adverse Effect, each member of the Controlled Group has fulfilled its obligations under
the minimum funding standards of ERISA and the Code with respect to each Single Employer Plan.
Each member of the Controlled Group is in material compliance with the applicable provisions of
ERISA and the Code with respect to each Plan except where such non compliance would not have a
Material Adverse Effect. Except as could not reasonably be expected to have a Material Adverse
Effect, each Single Employer Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event which has or may result in any liability
has occurred with respect to any Single Employer Plan, and no steps have been taken to terminate
any Single Employer Plan. No member of the Controlled Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Single Employer Plan or Multiemployer Plan, or made any amendment to
any Plan, which has resulted or could result in the imposition of a Lien or the posting of a bond
or other security under ERISA or the Code or (iii) incurred any actual liability under Title IV of
ERISA that could reasonably be expected to have a Material Adverse Effect, other than a liability
to the PBGC for premiums under Section 4007 of ERISA or a liability that has been satisfied.



     5.10 Accuracy of Information. No information, exhibit or report furnished by the
Company or any of its Subsidiaries in writing to the Administrative Agent or to any Lender in
connection with the negotiation of the Loan Documents contained any material misstatement of fact
or omitted to state a material fact or any fact necessary to make the statements contained therein
not misleading in light of the circumstances in which made, as of the date thereof;
provided, however, that with respect to projected financial information and
information of a general economic or industry specific nature, the Company represents only that
such information has been prepared in good faith based on assumptions believed by the Company to be
reasonable.



     5.11 Regulations T, U and X. Neither the Company nor any of its Subsidiaries extends
or maintains, in the ordinary course of business, credit for the purpose, whether immediate,
incidental, or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of any
Advance will be used for the purpose, whether immediate, incidental, or ultimate, of buying or
carrying any such Margin Stock or maintaining or extending credit to others for such purpose in any
way that would violate Regulation T, U or X. After applying the proceeds of each Advance, Margin
Stock will not constitute more than 25% of the value of the assets (either of the Company alone or
of the Company and its Subsidiaries on a consolidated basis) that are subject to any provisions of
any Loan Document that may cause the Advances to be deemed secured, directly or indirectly, by
Margin Stock. The Company and its Subsidiaries are in compliance with Section 6.2.



48









 





     5.12 Material Agreements. Neither the Company nor any Subsidiary is a party to any
agreement or instrument or subject to any charter or other corporate restriction which could
reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary
is in default in the performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party (including any agreement or instrument
evidencing or governing Indebtedness), which default could reasonably be expected to have a
Material Adverse Effect.



     5.13 Compliance With Laws; Properties. The Company and its Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of any domestic or
foreign government or any instrumentality or agency thereof, having jurisdiction over the conduct
of their respective businesses or the ownership of their respective Property, failure to comply
with which could reasonably be expected to have a Material Adverse Effect.



     5.14 Plan Assets; Prohibited Transactions. The Company and its Subsidiaries have not
engaged in any non-exempt prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code which could reasonably be expected to have a Material Adverse Effect; and
neither the execution of this Agreement nor the making of Loans (assuming the accuracy of the
following representations and warranties which the Lenders hereby make for the benefit of the
Borrowers: (i) that no part of the funds to be used by the Lenders for funding any of the Loans
shall constitute assets of an “employee benefit plan” within the meaning of ERISA or the assets of
a “plan” as defined in Section 4975(e)(1) of the Code and (ii) that no Lender will transfer its
interest herein unless the prospective transferee makes the representations and warranties set
forth in this parenthetical phrase as if had originally been a party to this agreement) hereunder
will constitute a non-exempt prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code.



     5.15 Environmental Matters. In the ordinary course of its business, the officers of
the Company consider the effect of Environmental Laws on the business of the Company and its
Subsidiaries, in the course of which they identify and evaluate potential risks and liabilities
accruing to the Company and its Subsidiaries due to Environmental Laws. On the basis of this
consideration, the Company has reasonably concluded that the Company and its Subsidiaries are not
in violation of any Environmental Laws in such a fashion that could reasonably be expected to have
a Material Adverse Effect. Neither the Company nor any Subsidiary has received any written notice
to the effect that its operations are not in material compliance with any of the requirements of
applicable Environmental Laws or, to the knowledge of any Borrower, are the subject of any federal
or state investigation evaluating whether any Remedial Action is required to be performed by the
Company or any of its Subsidiaries, which non-compliance or Remedial Action could reasonably be
expected to have a Material Adverse Effect.



     5.16 Investment Company Act. No Borrower is an “investment company” or a company
“controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940,
as amended.



     5.17 Subsidiary Borrowers. (a) Except as described on Schedule 5.8, each Subsidiary
Borrower is a direct or indirect Wholly Owned Subsidiary of the Company (excluding director
qualifying shares); and



     (b) Each Subsidiary Borrower will have, upon becoming a party hereto, all right and authority
to enter into this Agreement and each other Loan Document to which it is a party, and to perform
all of its obligations under this and each other Loan Document to which it is a party; all of the
foregoing actions will have been taken prior to any request for Loans by such Borrower, duly
authorized



49









 




by all necessary action
on the part of such Borrower, and when such Subsidiary Borrower becomes a party hereto, this
Agreement and each other Loan Document to which it is a party will constitute valid and binding
obligations of such Borrower enforceable in accordance with their respective terms except as such
terms may be limited by the application of bankruptcy, moratorium, insolvency and similar laws
affecting the rights of creditors generally and by general principles of equity.




     5.18 Insurance. The Company and its Subsidiaries maintain insurance with financially
sound and reputable insurance companies (or self-insurance programs) on their Property in such
amounts (with such customary deductibles, exclusions and self-insurance) and covering such risks as
management of the Company reasonably considers consistent with sound business practice.



     5.19 Ownership of Properties. On the Effective Date, the Company and its Subsidiaries
will have good title, free of all Liens (other than as permitted by Section 6.12), to all Property
and assets reflected in their financial statements for such date as owned by them.



     5.20 Labor Controversies. There are no labor controversies pending or, to the best of
the Company’s knowledge, threatened against the Company or any Subsidiary, that could reasonably be
expected to have a Material Adverse Effect.



     5.21 Burdensome Obligations. The Company does not presently anticipate that future
expenditures needed to meet the provisions of federal or state statutes, orders, rules or
regulations will be so burdensome as to cause a Material Adverse Effect.



ARTICLE VI




COVENANTS




     During the term of this Agreement, unless the Required Lenders shall otherwise consent in
writing:



     6.1 Financial Reporting. The Company will maintain, for itself and each Subsidiary, a
system of accounting established and administered in accordance with GAAP, and furnish to the
Administrative Agent, for the benefit of the Lenders:



          (i) Within 90 days (or such earlier date as the Company may be required to file its applicable
annual report on Form 10-K by the rules and regulations of the SEC) after the close of each of its
fiscal years, an unqualified (except for qualifications relating to changes in accounting
principles or practices reflecting changes in GAAP and required or approved by the Company’s
independent certified public accountants) audit report certified by independent certified public
accountants reasonably acceptable to the Administrative Agent, prepared in accordance with GAAP on
a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of
such period, related profit and loss statements, and a statement of cash flows, accompanied by a
certificate of said accountants that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge of any Default or Unmatured
Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof.




          (ii) Within 45 days (or such earlier date as the Company may be required to file its
applicable quarterly report on Form 10-Q by the rules and regulations of the SEC) after the close
of each of the first three quarterly periods of each fiscal year, for itself and its Subsidiaries,
consolidated unaudited
balance sheets as at the close of each such period and consolidated unaudited profit and loss




50









 







statements and a consolidated unaudited statement of cash flows for the period from the beginning
of such fiscal year to the end of such quarter, all certified by its Designated Financial Officer.




          (iii) Together with the financial statements required under Sections 6.1(i) and (ii), a
compliance certificate in substantially the form of Exhibit K (a “Compliance Certificate”)
signed by its Designated Financial Officer and stating that no Default or Unmatured Default exists,
or if any Default or Unmatured Default exists, stating the nature and status thereof.




          (iv) As soon as possible and in any event within 30 Business Days after the Company knows that
any Reportable Event has occurred with respect to any Plan, a statement, signed by the Designated
Financial Officer of the Company, describing said Reportable Event and the action which the Company
proposes to take with respect thereto.




          (v) As soon as possible and in any event within 15 Business Days after receipt by the Company,
a copy of (a) any written notice or claim to the effect that the Company or any of its Subsidiaries
is or may be liable to any Person as a result of the Release by the Company, any of its
Subsidiaries, or any other Person of any Hazardous Substances into the environment, and (b) any
written notice alleging any violation of any Environmental Law by the Company or any of its
Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse
Effect.




          (vi) Promptly after the sending or filing thereof, copies of all reports, proxy statements and
financial statements that the Company or any of its Subsidiaries sends to or files with any of
their respective securities holders (other than the Company or another Subsidiary) or any
securities exchange or the SEC pertaining to the Company or any of its Subsidiaries as the issuer
of securities.




          (vii) Such other information (including non-financial information) as the Administrative Agent
or any Lender (through the Administrative Agent) may from time to time reasonably request.



Notwithstanding the foregoing clauses (i) and (ii) above, as to any information contained in
materials furnished pursuant to clause (vi) above, the Company shall not be separately required to
furnish such information under the clauses (i) or (ii) above, provided the foregoing shall not be
in derogation of the obligation of the Company to furnish the information and materials described
in the above clauses (i) and (ii) above at the times specified therein. Materials required to be
delivered pursuant to any of clauses (i) through (vi), inclusive, above (to the extent any such
documents are included in materials otherwise filed with the SEC) may be delivered electronically
and shall be deemed to have been delivered on the date (i) on which the Company posts such
documents, or provides a link thereto on the Company’s website on the Internet, and gives written
notice thereof to the Administrative Agent; or (ii) on which such documents are posted on the
Company’s behalf on an Internet or intranet website, if any, to which the Administrative Agent has
access (whether a commercial, third-party website or whether sponsored by the Administrative
Agent), and the Administrative Agent shall have received written notice of such posting.




     6.2 Use of Proceeds. The Company will, and will cause each Subsidiary to, use the
proceeds of the Advances for general corporate purposes, including Acquisitions and commercial
paper back up. The Company will not, nor will it permit any Subsidiary to, use any of the proceeds
of the Advances to purchase or carry any Margin Stock in any way in violation of Regulation T, U or
X.



     6.3 Notice of Default. The Company will, and will cause each Borrower and Subsidiary
to, give prompt notice in writing to the Administrative Agent of the occurrence of any Default or
Unmatured
Default and of any other development, financial or otherwise, which could reasonably be expected to
have a Material Adverse Effect.



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     6.4 Conduct of Business. The Company will, and will cause each Subsidiary to, carry
on and conduct its business in substantially the same fields of enterprise as it is presently
conducted or fields related thereto or extensions thereof (taking the Company and its Subsidiaries
on a consolidated basis) and do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good standing as a
domestic corporation, partnership or limited liability company in its jurisdiction of incorporation
or organization, as the case may be (unless, with respect to Subsidiaries other than Subsidiary
Borrowers, the failure to do so could not reasonably be expected to have a Material Adverse
Effect), and maintain all requisite authority to conduct its business in each jurisdiction in which
its business is conducted, unless the failure to do so could not reasonably be expected to have a
Material Adverse Effect.



     6.5 Taxes. The Company will, and will cause each Subsidiary to, timely file complete
and correct United States federal and applicable foreign, state and local tax returns required by
law and pay when due all taxes, assessments and governmental charges and levies upon it or its
income, profits or Property, except those that are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in accordance with
GAAP, except where the failure to do so could not reasonably be expected to have a Material Adverse
Effect.



     6.6 Insurance. The Company will, and will cause each Subsidiary to, maintain with
financially sound and reputable insurance companies insurance on all their Property in such amounts
(with such customary deductibles, exclusions and self-insurance) and covering such risks as is
consistent with sound business practice.



     6.7 Compliance with Laws. The Company will, and will cause each Subsidiary to, comply
with all Requirements of Law, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.



     6.8 Properties; Inspection. The Company will, and will cause each Subsidiary to, do
all things necessary to maintain, preserve, protect and keep its Property in good repair, working
order and condition, and make all necessary and proper repairs, renewals and replacements to the
extent the Company reasonably deems consistent with sound business practice. The Company will, and
will cause each Subsidiary to, permit the Administrative Agent and the Lenders, by their respective
representatives and agents, to reasonably inspect any of the Property of the Company and each
Subsidiary, the financial or accounting records of the Company and each Subsidiary and other
documents of the Company and each Subsidiary, in each case only to the extent any of the foregoing
is reasonably related to the credit evaluation by the Administrative Agent and the Lenders under
this Agreement, to examine and make copies of such records and documents of the Company and each
Subsidiary, and to discuss the affairs, finances and accounts of the Company and each Subsidiary
with, and to be advised as to the same by, their respective officers upon reasonable prior notice
at such reasonable times and intervals as the Administrative Agent may designate.



     6.9 Merger. The Company will not, nor will it permit any Subsidiary to, merge or
consolidate with or into any other Person, except that, provided that no Default or Unmatured
Default shall have occurred and be continuing or would result therefrom on a pro forma basis
reasonably acceptable to the Administrative Agent, the Company may merge or consolidate with any
other U.S. corporation and each Subsidiary may merge or consolidate with any other Person,
provided, further, that (i) in the case of any
such merger or consolidation involving the Company, the Company is the surviving corporation and
(ii) in the case of any such merger or consolidation involving a Subsidiary which is a Subsidiary
Borrower,



52









 




the surviving corporation assumes all of such Borrower’s obligations under this Agreement
and remains or becomes a Subsidiary Borrower.




     6.10 Sale of Assets. The Company will not, nor will it permit any Subsidiary to,
lease, sell or otherwise dispose of its Property, to any other Person (other than to the Company or
a Guarantor or between Foreign Subsidiaries), except:



     (i) Sales of inventory in the ordinary course of business.



     (ii) Sales or other dispositions in the ordinary course of business of fixed assets for the
purpose of replacing such fixed assets, provided that such fixed assets are replaced within 180
days of such sale or other disposition with other fixed assets that have a fair market value not
materially less than the fixed assets sold or otherwise disposed of.



     (iii) Any sale or other transfer of an interest in leases or lease receivables or accounts or
notes receivables on a limited recourse basis, reasonably acceptable to the Administrative Agent,
provided that (a) such sale or transfer qualifies as a sale under GAAP, and (b) the aggregate
outstanding amount of such financings in connection therewith shall not exceed $200,000,000 (any
such sale or other transfer, a “Permitted Securitization Transaction”).



     (iv) Other leases, sales (including sale-leasebacks) or other dispositions of its Property
that, together with all other Property of the Company and its Subsidiaries previously leased, sold
or disposed of in reliance upon this clause (iv) during the twelve-month period ending with the
most recent month prior to the month in which any such lease, sale or other disposition occurs for
which financial statements of the Company have been delivered pursuant to Section 6.1(i) or (ii),
did not constitute a Substantial Portion of the Property of the Company and its Subsidiaries as of
the end of such most recent prior month.


Notwithstanding anything in this Section 6.10 to the contrary, (a) no such leases, sales or other
dispositions of property may be made (other than pursuant to clause (i) above) if any Default or
Unmatured Default has occurred and is continuing, and (b) all leases, sales and other dispositions
of Property at any time shall be for not materially less than the fair market value of such
Property as determined in good faith by the Company.




     6.11 Investments and Acquisitions. The Company will not, nor will it permit any
Subsidiary to, make or suffer to exist any Investments, or commitments therefor, or to make any
Acquisition of any Person, except, so long as no Default or Unmatured Default exists or would be
caused thereby:



     (i) Investments in Cash Equivalents.



     (ii) Investments in Guarantors.



     (iii) (a) Investments in existence on December 31, 2008 and (b) Investments in a
Securitization Entity in connection with Permitted Securitization Transactions and in an aggregate
outstanding amount not to exceed 10% of the aggregate amount of all Permitted Securitization
Transactions plus the leases and lease receivables and accounts and notes receivables permitted to
be transferred to a Securitization Entity in connection with Permitted Securitization Transactions.



     (iv) Investments by Foreign Subsidiaries that are not Foreign Subsidiary Borrowers in other
Foreign Subsidiaries.



53









 





     (v) Other Investments provided that the aggregate amount of such Investments made (net of any
return in cash (including via book entry) of the principal amount thereof) in any consecutive four
fiscal quarter period does not exceed 10% of Total Assets as of the beginning of such period, as
set forth on the consolidated balance sheet of the Company included in the financial statements of
the Company delivered pursuant to Section 6.1(i) or (ii) for the most recently ended fiscal quarter
(or fiscal year if such fiscal quarter is the fourth fiscal quarter of the Company’s fiscal year)
prior to such period.



     (vi) Any Acquisition so long as the aggregate amount of consideration (including without
limitation any payments in cash, Capital Stock or other consideration, any direct or deferred
payments (to the extent such deferred payments should be shown as a liability on a balance sheet of
the Company and its Subsidiaries in accordance with GAAP) and the amount of any Indebtedness (other
than Letters of Credit incurred in the ordinary course of business) assumed or otherwise incurred
in connection with such Acquisition) paid or payable by the Company or any Subsidiary in connection
with any such Acquisition does not exceed 15% of Total Assets (as set forth on the consolidated
balance sheet of the Company included in the most recent financial statements of the Company
delivered pursuant to Section 6.1(i) or (ii), prior to giving effect to such Acquisition) and such
Acquisition is not a Hostile Acquisition.



     6.12 Liens. The Company will not, nor will it permit any Subsidiary to, create,
incur, or suffer to exist any Lien in, of or on the Property of the Company or any of its
Subsidiaries, except:



     (i) Permitted Encumbrances.



     (ii) Liens existing on the date hereof and described on Schedule 6.12, but not including any
subsequent increase in the principal amount secured thereby.



     (iii) Any extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any Lien referred to in the foregoing clauses, provided,
however, that the principal amount of Indebtedness secured thereby shall not exceed the principal
amount of Indebtedness so secured prior to such extension, renewal or replacement and that such
extension, renewal or replacement Lien shall be limited to all or a part of the assets that secured
the Lien so extended, renewed or replaced (plus improvements and construction on such real
property).



     (iv) Liens incurred in connection with any transfer of an interest in leases or lease
receivables or accounts or notes receivables which is permitted pursuant to Section 6.10(iii) and
which Liens are required to consummate such Permitted Securitization Transaction.



     (v) Liens in favor of financial institutions against cash pooling arrangements or bank account
deposits in foreign bank accounts at such financial institution granted in the ordinary course of
business and consistent with standard business practices in such foreign jurisdiction, provided
that any such deposit account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Company or its Subsidiaries.



     (vi) Liens not otherwise permitted by the foregoing provisions of this Section 6.12, provided
that the aggregate outstanding amount secured by all such Liens shall not at any time exceed 10% of
Tangible Net Worth as shown on or determined in accordance with the most recent financial
statements of the Company delivered pursuant to Section 6.1(i) or (ii).



     6.13 Affiliates. The Company will not, and will not permit any Subsidiary to, enter
into any transaction (including, without limitation, the purchase or sale of any Property or
service) with, or make any payment or transfer to, any Affiliate unless such transaction is (a)
otherwise permitted under this Agreement, (b) in the ordinary course of business of the Company
and/or such Subsidiary, (c) solely



54









 




among the Company and the other Guarantors, or (d) upon fair and
reasonable terms (taken as a whole) not materially less favorable to the Company or such Subsidiary
than the Company or such Subsidiary would obtain in a comparable arms-length transaction.




     6.14 Indebtedness of certain Subsidiaries. The Company will not permit any Subsidiary
which is not a Guarantor to create, incur or suffer to exist any Indebtedness, except:



     (i) The Loans, the Facility Letters of Credit and the other Obligations.



     (ii) Indebtedness outstanding on the date of this Agreement, but no increase in the principal
amount thereof, and Indebtedness consisting of avals by any of the Company’s Subsidiaries for the
benefit of, and with respect to obligations which are not classified as Indebtedness of, any of the
Company’s other Subsidiaries which are entered into in the ordinary course of business and
consistent with standard business practices.



     (iii) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided
that such Indebtedness existed at the time such Person becomes a Subsidiary and was not created in
contemplation of or in connection with such Person becoming a Subsidiary.



     (iv) Any refunding or refinancing of any Indebtedness referred to in clauses (ii) and (iii)
above, provided that any such refunding or refinancing does not increase the principal amount
thereof.



     (v) Indebtedness arising from (a) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business, or (b) the honoring by a
bank or other financial institution of a check, draft or similar instrument inadvertently (except
in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of
business.



     (vi) Indebtedness of a Securitization Entity required in connection with Permitted
Securitization Transactions and not to exceed $200,000,000 in aggregate amount outstanding at any
time.



     (vii) Other Indebtedness; provided that, at the time of the creation, incurrence or assumption
of such other Indebtedness and after giving effect thereto, the aggregate amount of all such other
Indebtedness of such Subsidiaries does not exceed an amount equal to 10% of Tangible Net Worth as
shown on or determined in accordance with the most recent financial statements of the Company
delivered pursuant to Section 6.1(i) or (ii).



     (viii) Indebtedness resulting from an Investment permitted under Section 6.11.



     (ix) Guarantee Obligations in respect of Indebtedness permitted under any of the foregoing
clauses in this Section 6.14.



     6.15 Limitation on Restrictions on Subsidiary Distributions. The Company will not, and
will not permit any Subsidiary to, enter into or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary of the Company to (i) pay dividends or
make any other
distributions in respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Company or any other Subsidiary of the Company, (ii) make loans or advances to the
Company or any other Subsidiary of the Company or (iii) transfer any of its assets to the Company
or any other Subsidiary of the Company, except for such encumbrances or restrictions existing under
or by reason of (a) any restrictions existing under the Loan Documents, (b) any restrictions with
respect to a Subsidiary imposed pursuant to an agreement which has been entered into in connection
with the disposition of all or substantially all of the Capital Stock or assets of such Subsidiary,
(c) any restrictions



55









 




with respect to assets encumbered by a Lien permitted by Section 6.12 so long
as such restriction applies only to the assets encumbered by such permitted Lien, (d) to the extent
required by the minority shareholders thereof, any restriction with respect to a Foreign Subsidiary
of which less than 90% of the Voting Stock is owned by the Company or any of its Subsidiaries and
(e) such restrictions with respect to a Securitization Entity required in connection with Permitted
Securitization Transactions.




     6.16 Financial Contracts. The Company will not, and will not permit any Subsidiary
to, enter into or remain a party to any Financial Contract for purposes of financial speculation.



     6.17 Total Net Debt to Capitalization Ratio. The Company shall not permit its Total
Net Debt to Capitalization Ratio to exceed 50% at any time.



     6.18 Interest Coverage Ratio. The Company shall not permit its Interest Coverage
Ratio to be less than 5.0 to 1.0 as of the last day of any fiscal quarter, commencing with the
fiscal quarter ending September 30, 2009.



ARTICLE VII




DEFAULTS




     The occurrence of any one or more of the following events shall constitute a Default:



     7.1 Any representation or warranty made, including without limitation those deemed made
pursuant to Section 4.2, by or on behalf of the Company or its Subsidiaries to the Lenders or the
Administrative Agent in any Loan Document, in connection with any Loan or Facility Letter of
Credit, or in any certificate or information delivered in writing in connection with any Loan
Document or in any certificate or information delivered in writing in connection with any Loan
Document shall be false in any material respect on the date as of which made.



     7.2 Nonpayment of principal of any Loan when due, or nonpayment of interest on any Loan or of
any facility fee within five Business Days after written notice from the Administrative Agent that
the same has become due, or nonpayment of any other obligations under any of the Loan Documents
within five Business Days after written notice from the Administrative Agent that the same has
become due.



     7.3 The breach by any Borrower of any of the terms or provisions in Sections 6.2, 6.3, 6.9,
6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17 or 6.18.



     7.4 The breach by any Borrower or Guarantor of, or other default by any Borrower or Guarantor
under, any of the terms or provisions of this Agreement or any other Loan Document (other than a
breach or default which constitutes a Default under Section 7.1, 7.2 or 7.3) which is not remedied
within 30 days after written notice from the Administrative Agent.



     7.5 Failure of the Company or any of its Subsidiaries to pay when due any Indebtedness or Rate
Hedging Obligations aggregating in excess of $25,000,000 (“Material Indebtedness”); or the
default by the Company or any of its Subsidiaries in the performance of any term, provision or
condition contained in any agreement under which any such Material Indebtedness was created or is
governed, or any other event shall occur or condition exist, the effect of which is to cause, or to
permit the holder or holders of such Material Indebtedness to cause, such Material Indebtedness to
become due prior to its



56









 




stated maturity; or any Material Indebtedness of the Company or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased
(other than by a regularly scheduled payment) prior to the stated maturity thereof; or the Company
or any of its Subsidiaries shall not pay, or admit in writing its inability to pay, its debts
generally as they become due.




     7.6 The Company or any of its Subsidiaries, shall (i) voluntarily have an order for relief
entered with respect to it under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief
under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to adjudicate it a bankrupt or insolvent,
or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts or seeking similar relief under any law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency or reorganization or relief of debtors or
similar proceeding or fail to file an answer or other pleading denying the material allegations of
any such proceeding filed against it, (v) take any corporate, company or other action to authorize
or effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail to contest in
good faith any appointment or proceeding described in Section 7.7.



     7.7 Without its application, approval or consent, a receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Company or any of its Subsidiaries or any Substantial
Portion of their respective Property, or a proceeding described in Section 7.6(iv) shall be
instituted against the Company or any of its Subsidiaries and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive
days.



     7.8 Any court, government or governmental agency shall without appropriate compensation
condemn, seize or otherwise appropriate, or take custody or control of (each a
“Condemnation”), all or any portion of the Property of the Company or any of its
Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries
so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion and
is reasonably likely to have a Material Adverse Effect.



     7.9 One or more judgments for the payment of money in an aggregate amount in excess of
$25,000,000 (other than judgments covered by insurance issued by an insurer that has accepted
coverage and has the ability to pay such judgments) shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain undischarged for a period of 90
consecutive days during which execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment which is not effectively stayed for a period of 30
consecutive days;



     7.10 Any member of the Controlled Group shall fail to pay when due an amount or amounts
aggregating in excess of $25,000,000 which it shall have become liable to pay under Title IV of
ERISA; or notice of intent to terminate a Single Employer Plan with Unfunded Liabilities in excess
of $25,000,000 (a “Material Plan”) shall be filed under Section 4041(c) of ERISA by any
member of the Controlled Group, any plan administrator or any combination of the foregoing; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other
than for premiums under Section 4007 of ERISA) in excess of $25,000,000 in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a condition shall exist that could
reasonably be expected to result in PBGC obtaining a decree adjudicating that any Material Plan
must be terminated.



57









 





     7.11 The Company or any of its Subsidiaries shall be the subject of any proceeding or
investigation pertaining to the Release by the Company or any of its Subsidiaries or any other
Person of any Hazardous Substance, or any violation of any applicable Environmental Law, which, in
either case, could reasonably be expected to have a Material Adverse Effect.



     7.12 The occurrence of any Change of Control.



     7.13. Any Guaranty shall fail to remain in full force or effect or any action shall be taken
to discontinue or assert the invalidity or unenforceability of any Guaranty by any Guarantor, or
any Guarantor shall fail to comply with any of the terms or provisions of any Guaranty to which it
is a party, or any Guarantor denies that it has any further liability under any Guaranty to which
it is a party, or gives notice to such effect.



ARTICLE VIII




ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES




     8.1 Acceleration. (a) If any Default described in Section 7.6 or 7.7 occurs, (i) the
obligations of the Lenders to make Loans hereunder and the obligations of the Issuers to issue
Facility Letters of Credit shall automatically terminate and the Obligations shall immediately
become due and payable without presentment, demand, protest or notice of any kind, all of which the
Borrowers hereby expressly waive and without any election or action on the part of the
Administrative Agent or any Lender and (ii) each Borrower will be and become thereby
unconditionally obligated, without the need for demand or the necessity of any act or evidence, to
deliver to the Administrative Agent, at its address specified pursuant to Article XIV, for deposit
into the Letter of Credit Collateral Account, an amount (the “Collateral Shortfall Amount”)
equal to the excess, if any, of



     (A) 100% of the sum of the aggregate maximum amount remaining available to be drawn under the
Facility Letters of Credit requested by such Borrower (assuming compliance with all conditions for
drawing thereunder) issued by an Issuer and outstanding as of such time, over



     (B) the amount on deposit for such Borrower in the Letter of Credit Collateral Account at such
time that is free and clear of all rights and claims of third parties (other than the
Administrative Agent and the Lenders) and that has not been applied by the Lenders against the
Obligations of such Borrower.



     (b) If any Default occurs and is continuing (other than a Default described in Section 7.6 or
7.7), (i) the Required Lenders may terminate or suspend the obligations of the Lenders to make
Loans and
the obligation of the Issuers to issue Facility Letters of Credit hereunder, or declare the
Obligations to be due and payable, or both, whereupon (if so declared) the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of any kind, all of
which the Borrowers hereby expressly waive and (ii) the Required Lenders may, upon notice delivered
to the Borrowers with outstanding Facility Letters of Credit and in addition to the continuing
right to demand payment of all amounts payable under this Agreement, make demand on each such
Borrower to deliver (and each such Borrower will, forthwith upon demand by the Required Lenders and
without necessity of further act or evidence, be and become thereby unconditionally obligated to
deliver), to the Administrative Agent, at its



58









 




address specified pursuant to Article XIV, for
deposit into the Letter of Credit Collateral Account an amount equal to the Collateral Shortfall
Amount payable by such Borrower.




     (c) If at any time while any Default is continuing, the Administrative Agent determines that
the Collateral Shortfall Amount at such time is greater than zero, the Administrative Agent may
make demand on the Borrowers with outstanding Facility Letters of Credit to deliver (and each such
Borrower will, forthwith upon demand by the Administrative Agent and without necessity of further
act or evidence, be and become thereby unconditionally obligated to deliver), to the Administrative
Agent as additional funds to be deposited and held in the Letter of Credit Collateral Account an
amount equal to such Collateral Shortfall Amount payable by such Borrower at such time.



     (d) The Administrative Agent may at any time or from time to time after funds are deposited in
the Letter of Credit Collateral Account, apply such funds to the payment of the Obligations of the
relevant Borrowers and any other amounts as shall from time to time have become due and payable by
the relevant Borrowers to the Lenders under the Loan Documents.



     (e) Neither the Borrowers nor any Person claiming on behalf of or through the Borrowers shall
have any right to withdraw any of the funds held in the Letter of Credit Collateral Account. After
all of the Obligations have been indefeasibly paid in full or upon the request of the Company if no
Default has occurred and is continuing, any funds remaining in the Letter of Credit Collateral
Account shall be returned by the Administrative Agent to the applicable Borrower(s) or paid to
whoever may be legally entitled thereto at such time.



     (f) The Administrative Agent shall exercise reasonable care in the custody and preservation of
any funds held in the Letter of Credit Collateral Account and shall be deemed to have exercised
such care if such funds are accorded treatment substantially equivalent to that which the
Administrative Agent accords its own property, it being understood that the Administrative Agent
shall not have any responsibility for taking any necessary steps to preserve rights against any
Persons with respect to any such funds.



     8.2 Amendments.



     8.2.1 Subject to the provisions of this Article VIII, the Required Lenders (or the
Administrative Agent with the consent in writing of the Required Lenders) and the Borrowers may
enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to
the Loan Documents or changing in any manner the rights of the Lenders or the Borrowers hereunder
or waiving any Default hereunder; provided, however, no such supplemental agreement
shall, (i) without the consent of the Required U.S. Lenders, allow any Borrower to obtain a U.S.
Revolving Credit Loan or U.S. Facility Letter of Credit if it would otherwise be unable to do so
absent such supplemental agreement, (ii) without the consent of the Required Euro Lenders, allow
the Company or any Foreign Subsidiary Borrower to obtain a Euro Revolving Credit Loan or Euro
Facility Letter of Credit if it would otherwise be unable to do so absent such supplemental
agreement, (iii) without the consent of the Administrative Agent, modify any
rights or obligations of any kind of the Administrative Agent, (iv) without the consent of the
Swing Lender, modify any rights or obligations of any kind of the Swing Lender, and (v) without the
consent of the Issuer, modify any rights or obligations of any kind of the Issuer, and
provided further, that no such supplemental agreement shall, without the consent of
each Lender in the case of clauses (b), (d), (e) and (f) below, or without the consent of each
Lender directly affected thereby in the case of clauses (a) and (c) below:




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     (a) Extend the final maturity of any Loan, Note or Reimbursement Obligation or postpone any
regularly scheduled payment of principal of any Loan or forgive all or any portion of the principal
amount thereof, or reduce the rate or extend the time of payment of interest or fees thereon (other
than, with respect to Swing Loans only, any reduction of the rate or extension of the time of
payment of principal, interest or fees thereon (if such extension is not beyond the Facility
Termination Date) or forgiveness of all or any portion of the principal amount thereof, which shall
require the consent of the Swing Lender only).



     (b) Reduce the percentage specified in the definition of Required Lenders, Required Euro
Lenders or Required U.S. Lenders.



     (c) Extend the Facility Termination Date, or reduce the amount or extend the payment date for,
the mandatory payments required under Section 2.6, or increase the amount of any Commitment of any
Lender hereunder other than as allowed hereunder, or permit any Borrower to assign its rights under
this Agreement.



     (d) Amend this Section 8.2.1 or any provision hereof in a manner that would alter the pro rata
sharing of payments required under Section 2.10 (subject to Section 2.17) or the pro rata reduction
of the Revolving Credit Commitments under Section 2.4.



     (e) Release any Guarantor which is the Company or a Significant Subsidiary, provided that all
parties hereto agree that the Administrative Agent shall be entitled to release any Guarantor
(other than the Company) if 100% of the Capital Stock of such Guarantor is, directly or indirectly,
sold or otherwise transferred in a transaction permitted hereunder.



     (f) Increase the amount of the Aggregate Commitments other than as allowed hereunder.



     8.2.2 In addition to amendments effected pursuant to the foregoing, Schedule 1.1(b) may be
amended as follows:




     (i) Schedule 1.1(b) will be automatically amended to add Subsidiaries of the Company as
additional Subsidiary Borrowers upon the satisfaction of each of the following conditions:
(a) the execution and delivery by the Company, any such Subsidiary Borrower and the
Administrative Agent, of a Joinder Agreement providing for any such Subsidiary to become a
Subsidiary Borrower, (b) the delivery to the Administrative Agent of (A) a Domestic
Subsidiary Opinion or Foreign Subsidiary Opinion, as the case may be, in respect of such
additional Subsidiary Borrower and (B) such other documents and information with respect
thereto as the Administrative Agent shall reasonably request (including without limitation
organizational documents, resolutions (if applicable), incumbency certificates and any other
documents and information required by the Act (as defined in Section 10.13)), (c) the making
of Loans by the applicable Lenders to, and the issuance of Facility Letters of Credit by the
applicable Issuer for the benefit of, such additional Subsidiary Borrower would not violate
any applicable law, rule, regulation, or directive, whether or not having the force of law,
as reasonably determined by the Administrative Agent in consultation with the applicable
Lenders, and (d) the written approval of the Administrative Agent in its sole discretion.




     (ii) Schedule 1.1(b) will be automatically amended to remove any Subsidiary as a
Subsidiary Borrower upon (A) written notice by the Company to the Administrative Agent to
such effect and (B) repayment in full of all outstanding Loans, and all other obligations
(other



60









 







than contingent indemnification obligations in respect of which no claim has been made)
pursuant to any Loan Document, of such Subsidiary Borrower.




     (iii) It is acknowledged and agreed that there may be more than one Foreign Subsidiary
Borrower, provided that there may not be a number thereof more than reasonably allowed by
the Administrative Agent.



     8.2.3 No modification or waiver of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of the Administrative Agent.
No modification or waiver of any provision of this Agreement relating to the Swing Lender shall be
effective without the written consent of the Swing Lender. No modification or waiver of any
provision of this Agreement relating to any Issuer shall be effective without the written consent
of such Issuer. The Administrative Agent may waive payment of the fee required under Section 13.1
without obtaining the consent of any other party to this Agreement.



     8.3 Preservation of Rights. No delay or omission of the Lenders or the Administrative
Agent to exercise any right under the Loan Documents shall impair such right or be construed to be
a waiver of any Default or an acquiescence therein, and the making of a Loan notwithstanding the
existence of a Default or the inability of the Borrowers to satisfy the conditions precedent to
such Loan shall not constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant to
Section 8.2, and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent and the Lenders until the Obligations have been paid in full.



ARTICLE IX




GUARANTEE




     9.1 Guarantee. (a) The Company hereby unconditionally and irrevocably guarantees to
the Administrative Agent and the Lenders and their respective successors, endorsees, transferees
and assigns, the prompt and complete payment and performance by the Subsidiary Borrowers when due
(whether at the stated maturity, by acceleration or otherwise) of the Obligations owing by such
Subsidiary Borrowers.



     (b) The Company further agrees to pay any and all reasonable expenses (including, without
limitation, all reasonable fees and disbursements of counsel) which are paid or incurred by the
Administrative Agent, or any Lender in enforcing any rights with respect to, or collecting, any or
all of the Obligations and/or enforcing any rights with respect to, or collecting against, the
Company under this Section or, in the case of the Administrative Agent, obtaining advice of counsel
in respect thereof. This Section shall remain in full force and effect until the Obligations are
paid in full and the Commitments are terminated, notwithstanding that from time to time prior
thereto the Borrowers may be free from any Obligations.



     (c) No payment or payments made by any Borrower or any other Person or received or collected
by the Administrative Agent or any Lender from any Borrower or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application, at any time or from time to
time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise



61









 




affect the liability of the Company hereunder, which shall, notwithstanding any such
payment or payments, remain liable hereunder for the Obligations until the Obligations are paid in
full and the Commitments are terminated.




     (d) The Company agrees that whenever, at any time, or from time to time, it shall make any
payment to the Administrative Agent or any Lender on account of its liability under this Section,
it will notify the Administrative Agent and such Lender in writing that such payment is made under
this Section for such purpose.



     9.2 No Subrogation. Notwithstanding any payment or payments made by the Company
hereunder, or any set-off or application of funds of the Company by the Administrative Agent or any
Lender, the Company shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against the Borrowers or against any guarantee or right of
offset held by the Administrative Agent or any Lender for the payment of the Obligations, nor shall
the Company seek or be entitled to seek any contribution or reimbursement from the Borrowers in
respect of payments made by the Company hereunder, until all amounts owing to the Administrative
Agent and the Lenders by the Borrowers on account of the Obligations (other than contingent
indemnification obligations in respect of which no claim has been made) are paid in full and the
Commitments are terminated. If any amount shall be paid to the Company on account of such
subrogation rights at any time when all of the Obligations (other than contingent indemnification
obligations in respect of which no claim has been made) shall not have been paid in full, such
amount shall be held by the Company in trust for the Administrative Agent and the Lenders,
segregated from other funds of the Company, and shall, forthwith upon receipt by the Company, be
turned over to the Administrative Agent in the exact form received by the Company (duly endorsed by
the Company to the Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as Administrative Agent may determine. The provisions
of this paragraph shall survive the termination of this Agreement and the payment in full of the
Obligations and the termination of the Commitments.



     9.3 Amendments, etc. with respect to the Obligations; Waiver of Rights. The Company
shall remain obligated hereunder notwithstanding that, without any reservation of rights against
the Company, and without notice to or further assent by the Company, any demand for payment of any
of the Obligations made by the Administrative Agent or the Required Lenders may be rescinded by the
Administrative Agent or the Required Lenders, and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof, or any guarantee
therefor or right of offset with respect thereto, may, from time to time, in whole or in part be
renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by
the Administrative Agent or the Required Lenders, and any Loan Documents and any other documents
executed and delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, in accordance with the provisions thereof as the Administrative
Agent (or the Required Lenders, as the case may be) may deem advisable from time to time, and any
guarantee or right of offset at any time held by the Administrative Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or released. None of the
Administrative Agent or any Lender shall have any obligation to protect, secure, perfect or insure
any Lien at any time held by it as security for the Obligations or for this Agreement or any
property subject thereto. When making any demand hereunder against the Company, the Administrative
Agent or any Lender may, but shall be under no obligation to, make a similar demand on any other
Borrower or any other guarantor, and any failure by the Administrative Agent or any Lender to make
any such demand or to collect any payments from any other Borrower or any such other guarantor or
any release of the Borrowers or such other guarantor shall not relieve the Company of its
obligations or liabilities hereunder, and shall
not impair or affect the rights and remedies, express or implied, or as a matter of law, of
the Administrative Agent or any Lender against the



62









 







Company. For the purposes hereof “demand” shall
include the commencement and continuance of any legal proceedings.



     9.4 Guarantee Absolute and Unconditional. The Company waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and notice of or proof of
reliance by the Administrative Agent or any Lender upon this Agreement or acceptance of this
Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement;
and all dealings among the Borrowers, on the one hand, and the Administrative Agent and the
Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Agreement. The Company waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Subsidiary Borrowers and the Company
with respect to the Obligations. This Article IX shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity, regularity or enforceability
of this Agreement, any other Loan Document, any of the Obligations or any guarantee or right of
offset with respect thereto at any time or from time to time held by the Administrative Agent or
any Lender, (b) any defense, set-off or counterclaim (other than a defense of payment or
performance by any Borrower) which may at any time be available to or be asserted by any Borrower
against the Administrative Agent or any Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of any Borrower) that constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrowers for the Obligations, or of the Company
under this Section 9.4, in bankruptcy or in any other instance (other than a defense of payment or
performance by the Borrowers). When pursuing its rights and remedies hereunder against the
Company, the Administrative Agent and any Lender may, but shall be under no obligation to, pursue
such rights and remedies as it may have against any Borrower or any other Person or against any
guarantee for the Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or remedies or to collect any
payments from the Borrowers or any such other Person or to realize upon any such guarantee or to
exercise any such right of offset, or any release of the Borrowers or any such other Person or of
any such guarantee or right of offset, shall not relieve the Company of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent or any Lender against the Company. This Article IX
shall remain in full force and effect and be binding in accordance with and to the extent of its
terms upon the Company and its successors and assigns, and shall inure to the benefit of the
Administrative Agent and the Lenders, and their respective successors, indorsees, transferees and
assigns, until all the Obligations have been satisfied by payment in full and the Commitments shall
be terminated, notwithstanding that from time to time during the term of this Agreement the
Borrowers may be free from any Obligations. The obligations of the Company under this Article IX
shall be joint and several with all obligations of all other Guarantors under any Guaranty at any
time (provided that, for the avoidance of doubt, any Guarantor that is a Foreign Subsidiary shall
not be liable under any Guaranty for the Obligations of the Company or any Domestic Subsidiary
Borrower), and the Administrative Agent shall have the right, in its sole discretion to pursue its
remedies against any Guarantor without the need to pursue its remedies against any other Guarantor,
whether now or hereafter in existence, or against any one or more Guarantors separately or against
any two or more jointly, or against some separately and some jointly.



     9.5 Reinstatement. This Article IX shall continue to be effective, or be reinstated,
as the case may be, if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent or any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Borrower or upon or
as a result of the
appointment of a receiver, intervenor or conservator of, or Trustee or similar officer for,
any Borrower or any substantial part of its property, or otherwise, all as though such payments had
not been made.



63









 





     9.6 Payments. The Company hereby agrees that all payments required to be made by it
hereunder will be made to the Administrative Agent without set-off or counterclaim in accordance
with the terms of the Obligations, including, without limitation, in the currency in which payment
is due.



ARTICLE X




GENERAL PROVISIONS




     10.1 Survival of Representations. All representations and warranties of the Borrowers
contained in this Agreement shall survive delivery of the Loan Documents and the making of the
Loans herein contemplated.



     10.2 Governmental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, no Lender shall be obligated to extend credit to a Borrower in violation of any
limitation or prohibition provided by any applicable statute or regulation.



     10.3 Taxes. Any taxes (excluding income taxes and franchise taxes (imposed in lieu of
income taxes), imposed on the Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document) or any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which any Lending Installation of such Lender
or the Administrative Agent, as the case may be, is located) or other similar assessments or
charges made by any governmental or revenue authority in respect of the Loan Documents shall be
paid by the Company, together with interest and penalties, if any.



     10.4 Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions of the Loan
Documents.



     10.5 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrowers, the Administrative Agent and the Lenders and supersede all prior
agreements and understandings among the Borrowers, the Administrative Agent and the Lenders
relating to the subject matter thereof other than any fee letters among any Borrowers and either of
the Administrative Agent and any other agreements of any of the Borrowers with the Administrative
Agent which survive the execution of the Loan Documents.



     10.6 Several Obligations; Benefits of this Agreement. The respective obligations of
the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any
other (except to the extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns.



     10.7 Expenses; Indemnification. (i) The Borrowers shall reimburse the Administrative
Agent for any reasonable costs and out-of-pocket expenses (including reasonable external attorneys’
fees) paid or incurred by the Administrative Agent in connection with the preparation, negotiation,
execution,



64









 




delivery, syndication, review, amendment, modification, and administration (including,
without limitation, preparation of the reports described below) of the Loan Documents. The
Borrowers also agree to reimburse the Administrative Agent and the Lenders for any reasonable costs
and out-of-pocket expenses (including reasonable external attorneys’ fees) paid or incurred by the
Administrative Agent or any Lender in connection with the collection and enforcement of the Loan
Documents. The Borrowers acknowledge and agree that from time to time the Administrative Agent may
prepare and may distribute to the Lenders (but shall have no obligation or duty to prepare or to
distribute to the Lenders) certain audit reports (the “Reports”) pertaining to any
Borrower’s and Guarantors’ assets for internal use by the Administrative Agent from information
furnished to it by or on behalf of the Borrowers, after the Administrative Agent has exercised its
rights of inspection pursuant to this Agreement; provided that, if any Lender requests copies of
any future similar Reports which the Administrative Agent has prepared, then the Administrative
Agent will provide such reports to such Lender provided that such Lender has executed an indemnity
agreement acceptable to the Administrative Agent. For the avoidance of doubt, such reports are
subject to the confidentiality requirements of Section 10.11. The Borrowers further acknowledge
and agree that the Administrative Agent or any of its agents or representatives may conduct
reasonable comprehensive field audits of the Property of the Company and each Subsidiary, financial
or accounting records of the Company and each Subsidiary and other documents of the Company and
each Subsidiary, in each case only to the extent any of the foregoing is reasonably related to the
credit evaluation by the Administrative Agent and the Lenders under this Agreement, provided that
(x) other than after the occurrence and during continuance of a Default, no more than one such
comprehensive field audit shall be conducted in any fiscal year and (y) only after the occurrence
and during continuance of a Default shall such field audits be at the Company’s expense.




          (ii) The Borrowers hereby further agree to indemnify the Administrative Agent and each Lender,
and their respective directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and reasonable expenses (including, without limitation, all
reasonable expenses of litigation or preparation therefor whether or not the Administrative Agent
or any Lender is a party thereto) which any of them may pay or incur at any time arising out of or
relating to this Agreement, the other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds of any Loan or Facility
Letters of Credit hereunder except to the extent that they are determined in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross negligence or wilful
misconduct of the party seeking indemnification or a claim by any Borrower for breach in bad faith
of such indemnified party’s contractual obligations. The obligations of the Borrowers under this
Section 10.7 shall survive the termination of this Agreement.




     10.8 Accounting. Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be made in accordance
with GAAP. For purposes of Article VI (including any baskets or limitations expressed in U.S.
Dollars therein) of this Agreement, any Indebtedness, Investment or other amount made or incurred
in any currency other than U.S. Dollars shall be deemed to be the Dollar Equivalent Amount thereof.



     10.9 Severability of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.



     10.10 Nonliability of Lenders. The relationship between the Borrowers and the Lenders
and the Administrative Agent shall be solely that of borrower and lender. Neither the
Administrative



65









 




Agent nor any Lender shall have any fiduciary responsibilities to any Borrower.
Neither the Administrative Agent nor any Lender undertakes any responsibility to any Borrower to
review or inform any Borrower of any matter in connection with any phase of such Borrower’s
business or operations. Each Borrower agrees that neither the Administrative Agent nor any Lender
shall have liability to any Borrower (whether sounding in tort, contract or otherwise) for losses
suffered by any Borrower in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless it is determined by a court of
competent jurisdiction in a final and non-appealable order that such losses resulted from the gross
negligence or wilful misconduct of, or violation of applicable laws or any of the Loan Documents
by, the party from which recovery is sought. Neither the Administrative Agent nor any Lender shall
have any liability with respect to, and each Borrower hereby waives, releases and agrees not to sue
for, any special, indirect or consequential damages suffered by the Borrowers in connection with,
arising out of, or in any way related to the Loan Documents or the transactions contemplated
thereby.




     10.11 Confidentiality. (a) Each of the Administrative Agent, the Issuers and the
Lenders agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and be instructed and agree to keep such Information confidential), (ii) to the extent
requested by any regulatory authority or by applicable laws or regulations, (iii) to the extent
required by any subpoena or similar legal process, provided, however, to the extent
permitted by applicable law and if practical to do so under the circumstances, that the Person
relying on this clause (iii) shall provide the Company with prompt notice of any such required
disclosure so that the Company may seek a protective order or other appropriate remedy, and in the
event that such protective order or other remedy is not obtained, such Person will furnish only
that portion of the Information which is legally required, (iv) to any other party to this
Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an
agreement containing provisions substantially the same as those of this Section, to any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrowers and their obligations, (vii) as permitted by Section 13.2 hereof, (viii) with the
consent of the Company or (ix) to the extent such Information (1) becomes publicly available other
than as a result of a breach of this Section or any agreement contemplated by this Section or (2)
becomes available to the Administrative Agent, the Issuers or any Lender on a nonconfidential basis
from a source other than the Company (and not in breach of this Section or any agreement
contemplated by this Section). For the purposes of this Section, “Information” means all
information received from the Company or any Subsidiary relating to the Company or any Subsidiary
or their business, other than any such information that is available to the Administrative Agent,
any Issuer or any Lender on a nonconfidential basis prior to disclosure by the Company or any
Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



          (b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 10.11(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT
HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT
IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.





66









 








          (c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE COMPANY
OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY
AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE
COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A
CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.




     10.12 Nonreliance. Each Lender hereby represents that it is not relying on or looking
to any Margin Stock for the repayment of the Loans provided for herein.



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



     10.14 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal
Funds Effective Rate to the date of repayment, shall have been received by such Lender.



ARTICLE XI




THE ADMINISTRATIVE AGENT




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



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



67









 





     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default or
Unmatured Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is required to
exercise in writing as directed by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as required hereunder), and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to the Company or any of its
Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 8.2.1) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default or Unmatured Default
unless and until written notice thereof is given to the Administrative Agent by a Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.



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



     The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.
Without limiting the foregoing, J.P. Morgan Europe Limited, an Affiliate of the Administrative
Agent, or any successor-in-interest-thereto, may perform the Administrative Agent’s functions with
respect to Multicurrency Loans, including Euro Swing Loans.



     Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuers and the
Company. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Company, to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may,
on behalf of the Lenders and



68









 




the Issuers, appoint a successor Administrative Agent which shall be a
bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance
of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrowers to a successor Administrative Agent shall
be the same as those payable to its predecessor unless otherwise agreed between the Company and
such successor. After the Administrative Agent’s resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while it was acting as Administrative Agent.




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



     Neither any of the Lenders identified in this Agreement as a Syndication Agent, Documentation
Agent, Managing Agent nor co-agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all Lenders as a Lender.
Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender.



ARTICLE XII




SETOFF; ADJUSTMENTS AMONG LENDERS




     12.1 Setoff. In addition to, and without limitation of, any rights of the Lenders
under applicable law, if any Default occurs and is continuing, any and all deposits (including all
account balances, whether provisional or final and whether or not collected or available) and any
other Indebtedness at any time held or owing by any Lender to or for the credit or account of any
Borrower may be offset and applied toward the payment of the Obligations owing to such Lender by
such Borrower.



     12.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has payment
made to it upon its Obligations owing from a Borrower (other than payments received pursuant to
Section 3.1, 3.2, 3.4, 3.6 or 10.7) in a greater proportion than that received by any other Lender
on its Obligations owing from such Borrower, such Lender agrees, promptly upon demand, to purchase
a portion of the Advances to such Borrower held by the other Lenders so that after such purchase
each Lender will hold its ratable proportion of Advances to such Borrower. If any Lender, whether
in connection with setoff or amounts which might be subject to setoff or otherwise, receives any
protection for its Obligations or such amounts which may be subject to setoff from or with respect
to any Borrower, such Lender agrees, promptly upon demand, to take such action necessary such that
all Lenders share in the benefits of such protection ratably
in proportion to their Obligations owing by such Borrower. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.



69









 





ARTICLE XIII




BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS




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



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





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




          (B) the Administrative Agent and the Issuers, provided that no consent of the
Administrative Agent shall be required for an assignment of any Commitment to an assignee
that is a Lender with a Commitment of same Class immediately prior to giving effect to such
assignment.



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




          (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of
any Class, the amount of such Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000
in the case of a U.S. Revolving Credit Commitment and/or U.S. Loan or, in the case of a Euro
Revolving Credit Commitment and/or Euro Loan, €5,000,000, unless each of the Borrowers and
the Administrative Agent otherwise consent, provided that no such consent of the
Borrowers shall be required if a Default has occurred and is continuing or if the assignment
is to another Lender or an Affiliate of a Lender;




          (B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to any
Class of Commitments or Loans; 




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



70









 






          (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire in which the assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material non-public
information about the Borrowers and their related parties or their respective securities)
will be made available and who may receive such information in accordance with the
assignee’s compliance procedures and applicable laws, including Federal and state securities
laws.



          For the purposes of this Section 13.1, the term “Approved Fund” has the following
meaning:




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




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, subject to
paragraph (d) of this Section, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 3.1, 3.2, 3.4, 3.6 and 10.7 and the obligations
of Section 10.11 with respect to Information (as defined in such Section) received by it while a
Lender). Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 13.1 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with paragraph (c) of
this Section.




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




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the assigning Lender
or the assignee is a Defaulting Lender, the Administrative Agent shall have no obligation to accept
such Assignment and Assumption and record the information therein in the Register unless and until
such payment shall have





71









 







been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.




          (c) Any Lender may, without the consent of the Borrowers, the Administrative Agent, the
Issuer or the Swing Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrowers, the Administrative Agent, the Issuer and the other Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
second proviso to Section 8.2.1 that affects such Participant. Subject to paragraph (d) of this
Section, the Borrowers agree that each Participant shall be entitled to the benefits of Sections
3.1, 3.2, 3.4 and 3.6 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 12.1 as though it were a Lender,
provided such Participant agrees to be subject to Section 12.2 as though it were a Lender. Each
Lender shall maintain at one of its offices a record for the recordation of the names and addresses
of its Participants and the amount and terms of the participations of its Participants (the
“Participant Register”).




          (d) No assignee or Participant shall be entitled to receive any greater payment under Section
3.1, 3.2 or 3.6 than the applicable Lender would have been entitled to receive with respect to the
assignment to such assignee or participation sold to such Participant, unless the assignment to
such assignee or the sale of the participation to such Participant is made with the Borrowers’
prior written consent, and shall not be entitled to any amount it would not be entitled to if it
were a Lender hereunder and complied with all provisions required of it hereunder.




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




     13.2 Dissemination of Information. Each Borrower authorizes each Lender to disclose to
any Participant or potential assignee or any other Person acquiring an interest in the Loan
Documents by operation of law (each a “Transferee”) and any prospective Transferee any and
all information in such Lender’s possession concerning the creditworthiness of the Company and its
Subsidiaries, provided that each Transferee and prospective Transferee agrees to be bound
by Section 10.11.



     13.3 Tax Treatment. If any interest in any Loan Document is transferred to any
Transferee that is organized under the laws of any jurisdiction other than (i) the United States or
any State thereof (in the case of a Transferee that is a Lender to the Company or a Domestic
Subsidiary Borrower) or (ii) the jurisdiction in which a Foreign Subsidiary Borrower is located (in
the case of a Transferee which is a Lender to such Foreign Subsidiary Borrower), the transferor
Lender shall cause such Transferee,



72









 




concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 3.6 and to be subject to Section 13.1(d).




ARTICLE XIV




NOTICES




     14.1 Notices. Except as otherwise permitted by Section 2.11 with respect to borrowing
notices, all notices, requests and other communications to any party hereunder shall be in writing
(including electronic transmission, facsimile transmission or similar writing) and shall be given
to such party: (x) in the case of a Borrower or the Administrative Agent, at its address, facsimile
number or e-mail address set forth on the signature pages hereof, (y) in the case of any Lender, at
its address, facsimile number or e-mail address set forth in its Administrative Questionnaire or,
if set forth below its signature hereto, as so set forth, or as otherwise established pursuant to
an Assignment (and the related Administrative Questionnaire) or (z) in the case of any party, at
such other address, facsimile number or e-mail address as such party may hereafter specify for the
purpose by notice to the Administrative Agent and the Borrowers in accordance with the provisions
of this Section 14.1. Each such notice, request or other communication shall be effective (i) if
given by facsimile transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after such communication
is deposited in the mails with first class postage prepaid, addressed as aforesaid, (iii) if given
by electronic transmission, when transmitted and received (with an appropriate confirmation of
receipt of delivery), all pursuant to procedures approved by the Administrative Agent, provided
that the approval of such procedures may be modified or revoked by the Administrative Agent from
time to time with reasonable prior notice to the Company and may be limited to particular notices
or other communications, or (iv) if given by any other means, when delivered at the address
specified in this Section; provided that notices to the Administrative Agent under Article II shall
not be effective until received.



     14.2 Change of Address. Any Borrower, the Administrative Agent and any Lender may
each change the address for service of notice upon it by a notice in writing to the other parties
hereto.



ARTICLE XV




COUNTERPARTS




     This Agreement may be executed in any number of counterparts, all of which taken together
shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart. Except as provided in Section 4.1, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an executed counterpart of
a signature page of this Agreement by telecopy or electronic mail message shall be effective as
delivery of a manually executed counterpart of this Agreement.



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ARTICLE XVI




CHOICE OF LAW, CONSENT TO JURISDICTION, 

WAIVER OF JURY TRIAL, JUDGMENT CURRENCY




     16.1 Choice of Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York.



     16.2 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.



     16.3 Submission To Jurisdiction; Waivers. (a) Each party hereto hereby irrevocably and
unconditionally:




     (i) submits, for itself and its property, to the nonexclusive jurisdiction of
the Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court;




     (ii) waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (i) of this Section;




     (iii) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to its address specified in
Section 14.1, or (in the case of the Borrowers) at such other address of which the
Administrative Agent shall have been notified pursuant thereto;




     (iv) 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 in which the defendant is domiciled; and




     (v) waives, to the maximum extent not prohibited by law, any right it may have
to claim or recover in any legal action or proceeding referred to in this subsection
any special, exemplary, punitive or consequential damages.



     (b) Each of the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other



74









 




manner provided by law. Nothing in this Agreement shall affect any right that any party
hereto may otherwise have to bring any action or proceeding relating to this Agreement against any
other party or the property thereof in the courts of any jurisdiction where such party is
domiciled. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.




     (c) Each Subsidiary Borrower hereby irrevocably appoints the Company as its agent for service
of process in any proceeding referred to in Section 16.3(i) and agrees that service of process in
any such proceeding may be made by mailing or delivering a copy thereof to it care of Company at
its address for notices set forth in Section 14.1.



     16.4 Acknowledgments. Each Borrower hereby acknowledges that:




     (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




     (b) none of the Administrative Agent or any Lender has any fiduciary relationship with
or duty to such Borrower arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between the Administrative Agent and the Lenders,
on the one hand, and the Borrowers, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and




     (c) no joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or among the
Borrowers and the Lenders.



     16.5 Power of Attorney. Each Subsidiary Borrower hereby grants to the Company an
irrevocable power of attorney to act as its attorney-in-fact with regard to matters relating to
this Agreement and each other Loan Document, including, without limitation, execution and delivery
of any amendments, supplements, waivers or other modifications hereto or thereto, receipt of any
notices hereunder or thereunder and receipt of service of process in connection herewith or
therewith. Each Subsidiary Borrower hereby explicitly acknowledges that the Administrative Agent
and each Lender have executed and delivered this Agreement and each other Loan Document to which it
is a party, and has performed its obligations under this Agreement and each other Loan Document to
which it is a party, in reliance upon the irrevocable grant of such power of attorney pursuant to
this subsection. The power of attorney granted by each Subsidiary Borrower hereunder is coupled
with an interest.



     16.6 Judgment. (a) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, under applicable law that the rate of
exchange used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency in the city in
which it normally conducts its foreign exchange operation for the first currency on the Business
Day preceding the day on which final judgment is given.



     (b) The obligation of each Borrower in respect of any sum due from it to any Lender hereunder
shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that
in which such sum is denominated in accordance with the applicable provisions of this Agreement
(the “Agreement Currency”), be discharged only to the extent that on the Business Day
following receipt by such Lender of any sum adjudged to be so due in the Judgment Currency such
Lender may in accordance with normal banking procedures purchase the Agreement Currency with the
Judgment Currency; if the



75









 




amount of Agreement Currency so purchased is less than the sum originally
due to such Lender in the Agreement Currency, such Borrower agrees notwithstanding any such
judgment to indemnify such Lender against such loss, and if the amount of the Agreement Currency so
purchased exceeds the sum originally due to any Lender, such Lender agrees to remit to such
Borrower such excess.




[Signatures on the following pages]





76












 





     IN WITNESS WHEREOF, the Borrowers, the Lenders and the Administrative Agent have executed
this Agreement as of the date first above written.



	 	 	 	 	 
	 	DIEBOLD, INCORPORATED

 	 
	 	By:  	/s/ Timothy J. McDonald	 
	 	 	Print Name:  	Timothy J. McDonald	 
	 	 	Title:  	VP & Treasurer	 
	 
	 	DIEBOLD SELF-SERVICE SOLUTIONS S.ar.l., as a

Subsidiary Borrower

 	 
	 	By:  	/s/ Warren W. Dettinger	 
	 	 	Print Name:  	Warren W. Dettinger	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	Address for notices for each Borrower:



5995 Mayfair Road

North Canton, Ohio 44720-1507

Attention: Director, Global Treasury

Fax: 330-490-6823

E-mail: steve.wolgamott@diebold.com

 	 
	 	 	 



77









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as Administrative

Agent and as a Lender

 	 
	 	By:  	/s/ Robert S. Sheppard	 
	 	 	Print Name:  	Robert S. Sheppard 	 
	 	 	Title:  	Vice President 	 
	 
	 	For matters other than Multicurrency Loans or

Euro Swing Loans:



JPMorgan Chase Bank, N.A.

Loan and Agency Services Group

10 S. Dearborn St., Floor 7

Chicago, Illinois, 60603-2003

Attention: Marlene Dill

Telecopy No: 312-385-7096

Telephone: 312-385-7071

e-mail: marlene.z.dill@jpmchase.com



For matters relating to Multicurrency Loans or

Euro Swing Loans:



J.P. Morgan Europe Limited

Loans Agency

125 London Wall, London EC2Y 5AJ

Attention: Lesley Pluck

Telecopy No. +44 20 7777 2360

Telephone: +44 20 7777 2940

e-mail: lesley.x.pluck@jpmorgan.com

 	 
	 	 	 



78









 






	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a

Syndication Agent and as a Lender

 	 
	 	By:  	/s/ Joseph G. Moran	 
	 	 	Print Name:  	Joseph G. Moran	 
	 	 	Title:  	Senior Vice President	 
	 
	 	Attention:	Joseph G. Moran	 
	 	Fax:	216-222-9396	 
	 	E-mail:	joseph.moran@pncbank.com	 
	 
	 	NATIONAL CITY BANK	 
	 
	 	By:  	/s/ Timothy J. Holmes	 
	 	 	Print Name:  	Timothy J. Holmes	 
	 	 	Title:  	Senior Vice President	 
	 
	 	Attention:	Timothy J. Holmes	 
	 	Fax:	216-222-9396	 
	 	E-mail:	timothy.holmes@pncbank.com	 



79









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a

Syndication Agent and as a Lender

 	 
	 	By:  	/s/ Patrick H. McGraw	 
	 	 	Print Name:  	Patrick H. McGraw	 
	 	 	Title:  	Vice President	 
	 
	 	U.S. Bank National Association 

425 Walnut Street, 8th Floor 

Cincinnati, Ohio 45202	 
	 	Attention:	Patrick H. McGraw	 
	 	Fax:	(513) 632-2068	 
	 	E-mail:	patrick.mcgraw@usbank.com	 



80









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Documentation

Agent and as a Lender

 	 
	 	By:  	/s/ Irene Bertozzi Bartenstein	 
	 	 	Print Name:  	Irene Bertozzi Bartenstein	 
	 	 	Title:  	Senior Vice President	 
	 
	 	Attention:	Irene Bertozzi Bartenstein	 
	 	Fax:	312-453-3142	 
	 	E-mail:	irene.bertozzi.bartenstein@bankofamerica.com	 



81









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a

Documentation Agent and as a Lender

 	 
	 	By:  	/s/ Victor Pierzchalski	 
	 	 	Print Name:  	Victor Pierzchalski	 
	 	 	Title:  	Authorized Signatory	 
	 
	 	1251 Avenue of the Americas	 
	 	New York, New York 10020-1104	 
	 	Attention:	US Corporate Banking 

Mr. John Dilegge	 
	 	Fax:	(212) 782-6440 with a copy to 312-696-4535	 
	 	E-mail:	jdilegge@us.mufg.jp	 



82









 






	 	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Documentation Agent and as a Lender

 	 
	 	By:  	/s/ Thiplada A. Siddiqui	 
	 	 	Print Name:  	Thiplada A. Siddiqui	 
	 	 	Title:  	Vice President/Portfolio Manager	 
	 
	 	Wells Fargo Bank, N.A. 

90 S. 7th St., Minneapolis, MN 55402	 
	 	Attention:	Paula Struckman	 
	 	Fax:	612-667-4145	 
	 	E-mail:	paula.m.struckman@wellsfargo.com	 



83









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as a Managing Agent and as a Lender

 	 
	 	By:  	/s/ Aidan Brosnan	 
	 	 	Print Name:  	Aidan Brosnan	 
	 	 	Title:  	Relationship Manager	 
	 
	 	 	 
	 	 	 
	 	Attention:
	 
	 	Fax:	+ 353 1604 4025	 
	 	E-mail:	aidan.brosnan@boimail.com	 



84









 






	 	 	 	 	 



	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION, as a

Managing Agent and as a Lender

 	 
	 	By:  	/s/ Robert J. McArdle	 
	 	 	Print Name:  	Robert J. McArdle	 
	 	 	Title:  	First Vice President	 
	 
	 	 	 
	 	 	 
	 	Attention:
	 
	 	Fax:
	 
	 	E-mail:
	 



85









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON

 	 
	 	By:  	/s/ Jane Angelini	 
	 	 	Print Name:  	Jane Angelini	 
	 	 	Title:  	First Vice President	 
	 
	 	BNY Mellon Center 

500 Grant Street	 
	 	Pittsburgh, Pa 15258	 
	 	Attention:	Jane Angelini	 
	 	Fax:	412-209-2089	 
	 	E-mail:	jane.angelini@bnymellon.com	 



86









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC

 	 
	 	By:  	/s/ L. Peter Yetman	 
	 	 	Print Name:  	L. Peter Yetman	 
	 	 	Title:  	SVP	 
	 
	 	 	 
	 	 	 
	 	Attention:
	 
	 	Fax:
	 
	 	E-mail:
	 




87











 






Schedule 1.1(a)




Commitments




	 	 	 	 	 	 	 	 	 	 	 
	 	 	Title	 	U.S. Dollars	 	 	Euros	 
	JPMorgan Chase Bank, N.A.
	 	Administrative Agent	 	$	57,500,000	 	 	€	10,800,000	 
	PNC Bank, National Association
	 	Syndication Agent	 	$	28,750,000	 	 	€	5,400,000	 
	National City Bank
	 	 	 	$	28,750,000	 	 	€	5,400,000	 
	U.S. Bank National Association
	 	Syndication Agent	 	$	57,500,000	 	 	€	10,800,000	 
	Bank of America, N.A.
	 	Documentation Agent	 	$	39,200,000	 	 	€	7,400,000	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	Documentation Agent	 	$	39,200,000	 	 	€	7,400,000	 
	Wells Fargo Bank, National Association
	 	Documentation Agent	 	$	39,200,000	 	 	€	7,400,000	 
	The Governor and Company of the Bank
of Ireland
	 	Managing Agent	 	$	31,400,000	 	 	€	5,800,000	 
	HSBC Bank USA, National Association
	 	Managing Agent	 	$	31,400,000	 	 	€	5,800,000	 
	The Bank of New York Mellon
	 	 	 	$	27,500,000	 	 	€	5,100,000	 
	The Royal Bank of Scotland plc
	 	 	 	$	19,600,000	 	 	€	3,700,000	 
	Total
	 	 	 	$	400,000,000	 	 	 	75,000,000	 
	 
	 	 	 	 	 	 	 	 






87









 







Schedule 1.1(b) – Subsidiary Borrowers




Domestic Subsidiary Borrowers: None




Foreign Subsidiary Borrowers:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Tax identification
	 	 	 	 	Jurisdiction	 	 	 	number and other
	 	 	Type of	 	of	 	 	 	identification
	Correct Name	 	Organization	 	Organization	 	Address	 	numbers
	Diebold Self-Service 

Solutions S.ar.l.

	 	limited liability 

company
	 	Switzerland
	 	Route de Pré-Bois 29 

Meyrin, Geneva 1217 Switzerland
	 	CH-217-1000583-3







88











 





Schedule 5.7 — Litigation



As disclosed in Part II, Item 1 of the Company’s quarterly report on Form 10-Q for the fiscal
quarter ended June 30, 2009 and filed on August 7, 2009 with the SEC







89









 








Schedule 5.8 — Subsidiaries




See attached




90









 





Diebold, Incorporated

& Subsidiaries




DOMESTIC OPERATIONS




Revised September 30, 2009

Page 1








	Diebold,
Incorporated (Ohio) Diebold of Nevada, Inc. 100% 100% DBD Investment 100% Diebold China Security
100% Diebold Fire Management Company Holding Company, Inc. Services, Inc. (Nevada) (Delaware)
(Delaware) (Delaware) B Diebold Election Systems 100% 100% Guardian Burglar Proof 100% Diebold
Mexico Holding 100% FirstLine, Inc. Holding Company, Inc. Equipment Company Company, Inc.
(Delaware) (Ohio) (Delaware) (California) C Record Files, 100% 100% Central Security 100% VDM
Holding Company, Inc. 100% BrixLogic, Inc. Incorporated Systems, Inc. (Ohio) (Hawaii) (Delaware)
(Delaware) N Diebold, Incorporated York Safe and Lock 100% 100% Diebold Enterprise 100% Diebold
Latin America Branch Office Company, Inc. Security Systems, Inc. Holding Company, LLC (Puerto Rico
and Guam) (New York) (New York) (Delaware) Diebold Texas, 100% 100% Diebold Global 100% Griffin
Technology, Incorporated Finance Corporation Incorporated (Texas) (Delaware) (New York) 100% ATM
Finance, Inc. 100% 100% Diebold Midwest R. D. Products, Inc. Manufacturing, Inc. (Ohio) (Delaware)
(New York) 100% Diebold EMEA 100% Diebold Southeast 100% Diebold Australia Holding Management, Inc.
Manufacturing, Inc. Company, Inc. (Ohio) (Delaware) (Delaware) York Safe and Lock 100% 100% Diebold
Safe and Lock 100% Diebold Software Company Corporation Solutions, Inc. (Pennsylvania) (Ohio)
(Delaware) Mayfair Software 100% 100% Diebold Eras, 100% Pioneer Systems, Inc. Distribution, Inc.
Incorporated (Delaware) (Ohio) (Pennsylvania) Data Information 100% 100% Diebold Fire 100% Diebold
Transaction Management Systems, Inc. Services Virginia, Inc. Services, Inc (California) (Virginia)
(Delaware) Herring-Hall-Marvin 100% Diebold SST Holding 100% 100% Diebold Holding Safe Corp.
Company, Inc. Company, Inc. (New York) (Delaware) (Delaware) 30% 70% Diebold Information and 100%
100% Verdi & Associates, Inc. Security Systems, LLC (Delaware)-Disregarded Entity (New York)
Diebold Self Service Systems Diebold Investment 100% 100% Maintenance Acquisition (New York)
Company Company No. 1, LLC (Delaware) (Delaware) 100% InterBold Technologies, 100% Diebold Actcom
Inc. Security Systems, Inc. (Delaware) (Delaware) 100% 100% Diebold Finance Company Diebold Foreign
Sales Inc. Corporation (Delaware) (U.S. Virgin Islands)





 









 








Diebold, Incorporated

& Subsidiaries




INTERNATIONAL OPERATIONS




Revised September 30, 2009

Page 2








	Diebold Vietnam Company 100% Diebold Singapore 100% 100% The Diebold Company Limited Pte. Ltd. of
Canada, Ltd. (Vietnam) (Singapore) (Canada) Diebold EMEA Processing 100% 100% Diebold — Corp Centre
Limited Systems Sdn. Bhd. (United Kingdom) (Malaysia) Cable Print B.V.B.A. 100% Diebold Systems
Private 100% 50% Diebold OLTP Limited Systems A.V.V. (Belgium) (India) (Aruba, D W I) Diebold
Romania 100% Diebold (Thailand) 100% 50% Starbuck Computer SRL Company Limited Empire A.V.V.
(Romania) — Dormant entity (Thailand) (Aruba, D W I) 100% Diebold Hungary 100% Diebold 100% Diebold
Cassis Self-Service Solutions, Ltd. Philippines, Inc. Manufacturing S.A. (Hungary) (Philippines)
(France) “Diebold, Incorporated Branch Office (United Arab Emirates)” 100% 100% Diebold Pacific,
Limited 11.11% (Hong Kong) 88.89% P.T. Diebold Indonesia (Indonesia) 100% 100% Diebold Pacific
Limited Diebold Pacific Limited Representative Offices Branch Office 4.55% Beijing, Shanghai,
Guangzhou (Taiwan) 95.45% Diebold India (China) Private Limited (India) Diebold Canada Holding 100%
Company Inc. (Canada) 100% Diebold Brazil Servicios do Tecnologia e Participacoes Ltda (Brazil)
100% Procomp Industria Eletronica LTDA (Brazil)






 









 








Diebold, Incorporated

& Subsidiaries




INTERNATIONAL OPERATIONS




Revised September 30, 2009

Page 3








	Shanghai Diebold King 50% 50% Shanghai Diebold Security 100% Diebold Mexico Safe Company, Limited
Equipment Company, Ltd. S.A. de C.V. (China) (China) (Mexico) Shanghai Diebold Security 50% 100%
Impexa LLC Products Company, Limited (China) (Texas) 99.99% 0.01% Central de Alarmas Adler, S.A. de
C.V. (Mexico) 100% Diebold Peru, S.r.l. 1% 100% Diebold Uruguay, S.A. 100% 99% Diebold Paraguay
S.A. Diebold Brasil (Peru) LTDA (Uruguay) (Paraguay) (Brazil) 100% Diebold OLTP 50% 100% Diebold
Argentina Procomp Amazonia 50% Caribbean Self Service Systems C.A. S.A. Industria Eletronica S.A.
and Security Ltd. (Venezuela) (Argentina) (Brazil) (Barbados) Diebold Panama, Inc. 100% 100% DCHC,
S.A. 1% (Panama) — Dormant entity (Panama) — Dormant entity 99% Bitelco Diebold Chile Limitada
(Chile) 40% 60% Diebold Bolivia S.R.L. J.J.F. Panama, Inc. 100% 100% C.R. Panama, Inc. 51% D&G
Centroamérica, S. de R.L. (Bolivia) (Panama) (Panama) (Panama) 100% Diebold Australia 13.50% Pty.
Ltd. 31.50% (Australia) 16.78% 21.44% 16.78% Diebold Colombia, S.A. Sound Security Pty Ltd 100%
100% Diebold Physical Security (Colombia) Pty. Ltd. (Australia) (Australia) 99.99% Cardinal Bros.
Consulting 100% 100% 0.01% Diebold Ecuador, S.A. Pty. Ltd. (Australia) — Dormant entity (Ecuador)
Diebold Australia Pty. Ltd. Representative Office (New Zealand






 









 








Diebold, Incorporated

& Subsidiaries




INTERNATIONAL OPERATIONS




Revised September 30, 2009

Page 4








	95% 5% 95% 5% Diebold Switzerland Holding Diebold Self-Service Solutions Diebold, Incorporated
Company, LLC Limited Liability Company Moscow Representative (Switzerland) (Switzerland) Office
(Russia) 85% China Diebold Financial 100% Diebold Selbstbedienyngs- Equipment Company, Ltd. systeme
(Schweiz) GmbH (Peoples Republic of China) (Switzerland) 10% Diebold Portugal — Solucões 100% 90%
Diebold Belgium de Automatizacão, Limitada B.V.B.A. (Portugal) (Belgium) Diebold Poland S.p. 100%
100% Diebold Osterreich Selbst- z.o.o. bedienungssysteme GmbH (Poland) (Austria) Diebold France
SARL 100% 100% Diebold Germany GmbH (France) (Germany) Diebold Hungary 100% 100% Diebold
Netherlands B.V. Trading & Servicing LLC (Hungary) (Netherlands) 50% Diebold Czech 100% 50% Diebold
ATM Cihazlari Republic s.r.o. Sanayi Ve Ticaret A.S. (Czech Republic) (Turkey) — Dormant entity
Diebold International 100% 100% Diebold Self-Service Limited Ltd. (United Kingdom) (Russia) 100%
Diebold Italia S.p.A. “Diebold Self-Service Ltd. Branch Offices — St. Petersburg, Rostov-on-Don,
Samara, Novosibirsk (Russia)” (Italy) 0.01% Diebold Software 99.99% Services Private Limited
Diebold Self Service Solutions (India) Limited Liability Company Branch Office (Greece) 100%
Diebold Slovakia s.r.o. (Slovakia) 100% Diebold Africa Investment 75% Diebold South Africa Holdings
(Proprietary) Limited (Proprietary) Limited (South Africa) (South Africa) 100% Diebold Africa
(Proprietary) Limited (South Africa) 100% Diebold Self Service Solutions Namibia (Pty) Ltd
(Namibia)





 









 








Diebold, Incorporated

& Subsidiaries




INTERNATIONAL OPERATIONS




Revised September 30, 2009

Page 5








	100% Diebold Security Systems Limited (UK) 100% Diebold Enterprise Security Systems Holdings UK
Limited (UK) Diebold Enterprise Security 100% 100% Diebold Enterprise Security Systems UK Limited
Systems Japan Limited (UK) (Japan) 100% 100% 100% TASC Security Inc Diebold Enterprise Security
Diebold Enterprise Security (Inactive) Systems, Ireland Ltd Systems, Benelux B.V. (USA) (Ireland)
(Netherlands) 100% 100% 100% I-Denti-Proof Ltd. Deibold Software SIAB (HK) Ltd. Solutions (UK) Ltd.
(Canada) — Dormant entity (United Kingdom) (Hong Kong) — Inactive 100% 100% 3071146 Nova Scotia
Company (Nova Scotia, Canada)






 









 








Diebold, Incorporated

& Subsidiaries




INTERNATIONAL OPERATIONS




Revised September 30, 2009

Page 6








	D&G de Honduras 99% 99% D&G Centroamérica y GBM S. de R.L. de Nicaragua y Compañia Ltda.
(Honduras) (Nicaragua) D&G ATMs y Seguridad 99.99% 99.99% D&G Panamá de Costa Rica Ltda. S. de R.L.
(Costa Rica) (Panama) D&G Dominicana S.A. 99.85% 99% DB & GB ATMs Seguridad de Guatemala, Limitada
(Dominican Republic) (Guatemala) DB & GB de El 99% Salvador Limitada (El Salvador)






 












 




Schedule 6.12 — Liens



Liens in respect of Industrial Revenue Bonds issued by:




	 	 	 
	Danville, Virginia

	 	Principal amount of secured indebtedness not to
exceed $5,800,000; Lien limited to project
assets
	 
	 	 
	Lexington, North Carolina

	 	Principal amount of secured indebtedness not to
exceed $7,500,000; Lien limited to project
assets





91











 





EXHIBIT A




PRICING SCHEDULE




     The Applicable Margin for Floating Rate Loans, Eurodollar Loans and Multicurrency Loans, the
Facility Fee payable pursuant to Section 2.5 and the Letter of Credit Fee payable pursuant to
Section 2.15.6 shall, subject to the last sentence of this Exhibit A, be determined in accordance
with the Pricing Matrix set forth below based on the Company’s Total Net Debt to Capitalization
Ratio in effect from time to time.



Pricing Matrix (in basis points)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Applicable Eurodollar/
	 	 	 	 	 	 	Floating Rate	 	Eurocurrency Margin
	 	 	Total Net Debt to	 	 	 	Margin for	 	for Revolving Credit
	 	 	Capitalization	 	 	 	Revolving	 	Loans and Letter of
	Level	 	Ratio	 	Facility Fee	 	Credit Loans	 	Credit Fees
	I
	 	< 15%
	 	30.0 b.p.
	 	120.0 b.p.
	 	220.0 b.p.
	II
	 	≥ 15% but < 25%
	 	35.0 b.p.
	 	140.0 b.p.
	 	240.0 b.p
	III
	 	≥ 25% but < 35%
	 	40.0 b.p.
	 	160.0 b.p.
	 	260.0 b.p.
	IV
	 	≥ 35% but < 45%
	 	45.0 b.p.
	 	180.0 b.p.
	 	280.0 b.p.
	V
	 	≥ 45%
	 	50.0 b.p.
	 	200.0 b.p.
	 	300.0 b.p.






     Such Applicable Margin shall be determined in accordance with the foregoing Pricing Matrix
based on the Company’s level as reflected in the most recent financial statements of the Company
delivered pursuant to Section 6.1(i) and (ii) of the Credit Agreement. Adjustments, if any, to the
Applicable Margin shall be effective 50 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company and 95 days after the end of each fiscal year of the
Company, commencing with the first such day after the Effective Date. If the Company fails to
deliver the financial statements required pursuant to Section 6.1(i) or (ii) at the time required
or any other Default has occurred and is continuing, then the Applicable Margin shall be the
highest Applicable Margin set forth in the foregoing Pricing Matrix until such Default is cured or
waived under the Agreement. Notwithstanding the foregoing, the Applicable Margin for the period
from the Effective Date until it shall be adjusted for the first time shall be the Level II
Applicable Margin described above.



1









 





EXHIBIT B




ASSIGNMENT AND ASSUMPTION




          This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein
by reference and made a part of this Assignment and Assumption as if set forth herein in full.




          For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below, (i) all of the
Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.




	 	 	 	 	 
	1.

	 	Assignor:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	2.

	 	Assignee:	 	 
	 

	 	 	 	 
	 

	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 	 	 
	3.

	 	Borrowers:
	 	Diebold, Incorporated, an Ohio corporation (the “Company”), and the Subsidiary Borrowers from
time to time parties to the Credit Agreement described below (together with the Company, the
“Borrowers”)
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement








 




			
	1	 	Select as applicable.




1









 










	 	 	 	 	 
	5.

	 	Credit Agreement:
	 	The Credit Agreement dated as of October ___, 2009, among Diebold, Incorporated, an Ohio
corporation (the “Company”), the Subsidiary Borrowers from time to time parties thereto
(together with the Company, the “Borrowers”), the lenders from time to time parties thereto (the
“Lenders”), and JPMorgan Chase Bank, N.A., a national banking association, as Administrative
Agent.






2









 






	 	 	 	 	 
	6.

	 	Assigned Interest:
	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	 
	 	 	Commitment/Loans for	 	Commitment/Loans	 	Percentage Assigned of
	Facility Assigned2	 	all Lenders	 	Assigned	 	Commitment/Loans3
	 
	 	$	 	 	 	$	 	 	 	 	%	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 





Effective Date:                      ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The Assignee agrees to deliver (or has delivered) to the Administrative Agent a completed
Administrative Questionnaire in which the Assignee designates one or more credit contacts to whom
all syndicate-level information (which may contain material non-public information about the
Borrowers and their Related Parties or their respective securities) will be made available and who
may receive such information in accordance with the Assignee’s compliance procedures and applicable
laws, including Federal and state securities laws. The Assignee agrees to hold such information
confidential to the extent required by Sections 10.11 and 13.2 of the Credit Agreement.



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	2	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g., “Euro Revolving Credit Commitment” or “U.S. Revolving Credit
Commitment”)
	 
	3	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.




3









 










	 	 	 	 	 
	[Consented to and]4 Accepted:



JPMORGAN CHASE BANK, N.A., as

Administrative Agent, Swing Lender and Issuer

 	 	 
	By  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 
	[Consented to:]5



DIEBOLD, INCORPORATED

 	 	 
	By  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 





 




			
	4	 	To be added only if the consent of the Administrative
Agent, Swing Lender or Issuer is required by the terms of the Credit Agreement.
	 
	5	 	To be added only if the consent of the Company is
required by the terms of the Credit Agreement.




4









 










ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrowers, any of the Company’s Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance by any Borrower,
any of the Company’s Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 6.1 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) attached to the
Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms
of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it
will, independently and without reliance on the Administrative Agent, the Assignor or any other
Lender, 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,
and (ii) 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 a Lender.




          2. Payments. From and after the Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.




          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and




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Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with,
the law of the State of New York.




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EXHIBIT C




OPINIONS FOR

DOMESTIC SUBSIDIARY BORROWERS





     1. The Domestic Subsidiary Borrower is duly organized, validly existing and in good standing
under the laws of                      [specify the jurisdiction of its organization] (the
“Jurisdiction”).



     2. The Domestic Subsidiary Borrower has the power and authority, and the legal right, to make,
deliver and perform its obligations under the Credit Agreement and the other Loan Documents to
which it is a party (collectively, the “Domestic Subsidiary Loan Documents”) and to borrow under
the Credit Agreement. The Domestic Subsidiary Borrower has taken all necessary corporate and other
action to authorize the performance of its obligations under the Domestic Subsidiary Loan Documents
and to authorize the execution, delivery and performance of the Domestic Subsidiary Loan Documents.



     3. Except for consents, authorizations, approvals, notices and filings described on the
attached Schedule 1, if any, all of which have been obtained, made or waived and are in full force
and effect, no consent or authorization of, approval by, notice to, filing with or other act by or
in respect of, any Governmental Authority is required in connection with the borrowings by the
Domestic Subsidiary Borrower under the Domestic Subsidiary Loan Documents or with the execution,
delivery, performance, validity or enforceability of any of the Domestic Subsidiary Loan Documents.



     4. The Domestic Subsidiary Loan Documents have been duly executed and delivered on behalf of
the Domestic Subsidiary Borrower.



     5. The execution and delivery of the Domestic Subsidiary Loan Documents by the Domestic
Subsidiary Borrower, the performance of its obligations thereunder, the consummation of the
transactions contemplated thereby, the compliance by the Domestic Subsidiary Borrower with any of
the provisions thereof, the borrowings under the Credit Agreement and the use of proceeds thereof,
all as provided therein, (a) will not violate, or constitute a default under, any Requirement of
Law applicable to the Domestic Subsidiary Borrower and (b) will not result in, or require, the
creation or imposition of any Lien on any of its properties or revenues pursuant to any such
Requirement of Law.



     6. In any action or proceeding arising out of or relating to the Domestic Subsidiary Loan
Documents in any court in the Jurisdiction, such court would recognize and give effect to the
choice of law provisions in the Domestic Subsidiary Loan Documents wherein the parties thereto
agree that the Domestic Subsidiary Loan Documents shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.



     7. The submission by the Domestic Subsidiary Borrower to the non-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, and any appellate court from any thereof is valid and
binding under the laws of the Jurisdiction.




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EXHIBIT D




OPINIONS FOR

FOREIGN SUBSIDIARY BORROWERS




     1. The Foreign Subsidiary Borrower is duly organized, validly existing and in good standing
under the laws of                      [specify the jurisdiction of its organization] (the
“Jurisdiction”).



     2. The Foreign Subsidiary Borrower has the power and authority, and the legal right, to make,
deliver and perform its obligations under the Credit Agreement and the other Loan Documents to
which it is a party (collectively, the “Foreign Subsidiary Loan Documents”) and to borrow under the
Credit Agreement. The Foreign Subsidiary Borrower has taken all necessary corporate and other
action to authorize the performance of its obligations under the Foreign Subsidiary Loan Documents
and to authorize the execution, delivery and performance of the Foreign Subsidiary Loan Documents.



     3. Except for consents, authorizations, approvals, notices and filings described on the
attached Schedule 1, all of which have been obtained, made or waived and are in full force and
effect, no consent or authorization of, approval by, notice to, filing with or other act by or in
respect of, any Governmental Authority is required in connection with the borrowings by the Foreign
Subsidiary Borrower under the Foreign Subsidiary Loan Documents or with the execution, delivery,
performance, validity or enforceability of any of the Foreign Subsidiary Loan Documents.



     4. The Foreign Subsidiary Loan Documents have been duly executed and delivered on behalf of
the Foreign Subsidiary Borrower.



     5. The execution and delivery of the Foreign Subsidiary Loan Documents by the Foreign
Subsidiary Borrower, the performance of its obligations thereunder, the consummation of the
transactions contemplated thereby, the compliance by the Foreign Subsidiary Borrower with any of
the provisions thereof, the borrowings under the Credit Agreement and the use of proceeds thereof,
all as provided therein, (a) will not violate, or constitute a default under, any Requirement of
Law applicable to the Foreign Subsidiary Borrower and (b) will not result in, or require, the
creation or imposition of any Lien on any of its properties or revenues pursuant to any such
Requirement of Law.



     6. There are no taxes imposed by the Jurisdiction (a) on or by virtue of the execution,
delivery, enforcement or performance of the Foreign Subsidiary Loan Documents and or (b) on any
payment to be made by the Foreign Subsidiary Borrower pursuant to the Foreign Subsidiary Loan
Documents other than any Non-Excluded Taxes payable by the Foreign Subsidiary Borrower as provided
in the Credit Agreement.



     7. To ensure the legality, validity, enforceability or admissibility in evidence of the
Foreign Subsidiary Loan Documents it is not necessary that any Foreign Subsidiary Loan Documents or
any other document be filed, registered or recorded with, or executed or notarized before, any
court of other authority of the Jurisdiction or that any registration charge or stamp or similar
tax be paid on or in respect of the Foreign Subsidiary Loan Documents, except for those described
on Schedule 1 hereto, all of which have been duly made.



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     8. The Foreign Subsidiary Loan Documents are in proper legal form under the laws of the
Jurisdiction for the enforcement thereof against the Foreign Subsidiary Borrower under the laws of
the Jurisdiction.



     9. In any action or proceeding arising out of or relating to the Foreign Subsidiary Loan
Documents in any court in the Jurisdiction, such court would recognize and give effect to the
choice of law provisions in the Foreign Subsidiary Loan Documents wherein the parties thereto agree
that the Foreign Subsidiary Loan Documents shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.



     10. It is not necessary under the laws of the Jurisdiction (a) in order to enable the
Administrative Agent and the Lenders or any of them to enforce their respective rights of the
Foreign Subsidiary Loan Documents or (b) by reason of the execution of the Foreign Subsidiary Loan
Documents or the performance of the Foreign Subsidiary Loan Documents that any of them should be
licensed, qualified or entitled to carry on business in the Jurisdiction.



     11. Neither the Administrative Agent nor any of the Lenders will be deemed to be resident,
domiciled, carrying on business or subject to taxation in the Jurisdiction merely by reason of the
execution of the Foreign Subsidiary Loan Documents or the performance or enforcement of any
thereof. The performance by the Administrative Agent and the Lenders or any of them of any action
required or permitted under the Foreign Subsidiary Loan Documents will not violate any law or
regulation, or be contrary to the public policy, of the Jurisdiction.



     12. If any judgment of a competent court outside the Jurisdiction were rendered against the
Foreign Subsidiary Borrower in connection with any action arising out of or relating to the Foreign
Subsidiary Loan Documents, such judgment would be recognized and could be sued upon in the courts
of the Jurisdiction, and such courts could grant a judgment which would be enforceable against the
Foreign Subsidiary Borrower in the Jurisdiction without any retrial unless it is shown that (a) the
foreign court did not have jurisdiction in accordance with its jurisdictional rules, (b) the party
against whom the judgment of such foreign court was obtained had no notice of the proceedings or
(c) the judgment of such foreign court was obtained through collusion or fraud or was based upon
clear mistake of fact or law.



     13. The submission by the Domestic Subsidiary Borrower to the non-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, and any appellate court from any thereof is
valid and binding under the laws of the Jurisdiction.




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EXHIBIT E




GUARANTY AGREEMENT




PARTIES




     THIS GUARANTY AGREEMENT, dated as of October ___, 2009 (this “Guaranty”), is made by each of
the undersigned (collectively, the “Guarantors”) in favor of each of the Lenders as defined below.



RECITALS




     A. Diebold, Incorporated, an Ohio corporation (the “Company”), the Subsidiary Borrowers from
time to time parties thereto (the “Subsidiary Borrowers”, and together with the Company, the
“Borrowers”), the lenders from time to time parties thereto (the “Lenders”), and JP Morgan Chase
Bank, N.A., a national banking association, as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”) have executed a Credit Agreement dated as of the date hereof
(as amended or modified from time to time, and together with any agreement executed in replacement
therefor or otherwise refinancing such credit agreement, the “Credit Agreement”; and the Credit
Agreement, any Rate Hedging Agreements (as defined in the Credit Agreement) among any Borrowers and
any Lenders or their Affiliates, and all other Loan Documents (as defined in the Credit Agreement),
and any supplements or modifications thereof and any agreements or instruments issued in exchange
or replacement therefor, collectively referred to as the “Agreements”).



     B. Pursuant to the terms of the Agreements the Lenders have agreed to make certain extensions
of credit to the Borrowers.



     C. Each Guarantor is an affiliate of the Borrowers, the Borrowers and the Guarantors are
engaged in related businesses, and the Guarantors have derived or will derive substantial direct
and indirect benefit from the making of the extensions of credit by the Lenders.



     D. The obligation of the Lenders to make or continue to make certain extensions of credit
under the Credit Agreement are conditioned upon, among other things, the execution and delivery by
the Guarantors of this Guaranty, and the extensions of credit under the Credit Agreement were made
in reliance upon the issuance of this Guaranty.



AGREEMENT




     In consideration of the premises and to induce the Lenders to make loans, extend credit or
make other financial accommodations, and to continue to keep such credit and other financial
accommodations available to the Borrowers, each Guarantor hereby agrees with and for the benefit of
the Lenders as follows:



     1. Defined Terms. As used in this Guaranty, terms defined in the first paragraph of
this Guaranty and in the recital paragraphs are used herein as defined therein, and the following
terms shall have the following meanings:



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          “Cumulative Guarantors” shall mean the Guarantors and all other future guarantors of the
Guaranteed Obligations.




          “Guaranteed Obligations” shall mean all indebtedness, obligations and liabilities of any kind
of each of the Borrowers to any of the Lenders or the Administrative Agent in connection with or
pursuant to the Agreements, including without limitation, all principal, interest (including but
without limitation interest which, but for the filing of a bankruptcy petition, would have accrued
on the principal amount of the Guaranteed Obligations), reimbursement obligations, indemnity
obligations, charges, fees and costs and expenses, including without limitation reasonable fees and
expenses of counsel, in each case whether now existing or hereafter arising, direct or indirect,
absolute or contingent, joint and/or several, secured or unsecured, arising by operation of law or
otherwise.



All other capitalized terms used but not defined herein shall have the meanings ascribed thereto in
the Credit Agreement.




     2. Guarantee. (a) Each Guarantor hereby guarantees to the Lenders and the
Administrative Agent, irrevocably, absolutely and unconditionally, as primary obligor and not as
surety only, the prompt and complete payment of the Guaranteed Obligations. Notwithstanding the
foregoing or anything else herein to the contrary, any Guarantor that is a Foreign Subsidiary shall
guarantee only the Guaranteed Obligations consisting of Obligations of Foreign Subsidiary Borrowers
organized in the jurisdiction in which such Guarantor is organized.



          (b) All payments to be made under this Guaranty (except pursuant to paragraph (c) below) shall
be made to the Administrative Agent, for the benefit of itself and the Lenders, and applied first
to all costs and expenses of and other Guaranteed Obligations owing to, the Administrative Agent,
the Swing Lender and the Issuer and then to each Lender pro rata in accordance with the unpaid
amount of Guaranteed Obligations held by each Lender at the time of such payment, provided that any
amount owing to any Defaulting Lender shall be subject to the provisions of Section 2.17(e) of the
Credit Agreement as if such amount were payable under the Credit Agreement.




          (c) The Guarantors agree to make prompt payment, on demand, of any and all reasonable costs
and expenses incurred by the Administrative Agent or any Lender in connection with enforcing the
obligations of any of the Guarantors hereunder, including without limitation the reasonable fees
and disbursements of counsel.




     3. Consents to Renewals, Modifications and other Actions and Events. This Guaranty
and all of the obligations of the Guarantors hereunder shall remain in full force and effect
without regard to and shall not be released, affected or impaired by: (a) any amendment,
assignment, transfer, modification of or addition or supplement to the Guaranteed Obligations or
any Agreement; (b) any extension, indulgence, increase in the Guaranteed Obligations or other
action or inaction in respect of any of the Agreements or otherwise with respect to the Guaranteed
Obligations, or any acceptance of security for, or other guaranties of, any of the Guaranteed
Obligations or Agreements, or any surrender, release, exchange, impairment or alteration of any
such security or guaranties including without limitation the failing to perfect a security interest
in any such security or abstaining from taking advantage of or realizing upon any other guaranties
or upon any security interest in any such security; (c) any default by any Borrower under, or any
lack of due execution, invalidity or unenforceability of, or any irregularity or other defect in,
any of the Agreements; (d) any waiver by any Lender or the Administrative Agent or any other person
of any required performance or otherwise of any condition precedent or waiver of any requirement
imposed by any of the Agreements, any other guaranties or otherwise with respect to the Guaranteed
Obligations; (e) any exercise or non-exercise of
any right, remedy, power or privilege in respect of this Guaranty, any other guaranty or any of the
Agreements; (f) any sale,



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lease, transfer or other disposition of the assets of any Borrower or any consolidation or merger
of any Borrower with or into any other person, corporation, or entity, or any transfer or other
disposition of any shares of Capital Stock of any Borrower; (g) any bankruptcy, insolvency,
reorganization or similar proceedings involving or affecting any Borrower or any other guarantor of
the Guaranteed Obligations; (h) the release or discharge of any Borrower or Guarantor from the
performance or observance of any agreement, covenant, term or condition under any of the Guaranteed
Obligations or contained in any of the Agreements, of any Cumulative Guarantor or of this Guaranty,
by operation of law or otherwise (other than an express written release executed by the
Administrative Agent of any Guarantor from this Guaranty); or (i) any other cause whether similar
or dissimilar to the foregoing which, in the absence of this provision, would release (other than
an express written release executed by the Administrative Agent of any Guarantor from this
Guaranty), affect or impair the obligations, covenants, agreements and duties of any Guarantor
hereunder, including without limitation any act or omission by any Lender or the Administrative
Agent or any other any person which increases the scope of any Guarantor’s risk; and in each case
described in this paragraph whether or not any Guarantor shall have notice or knowledge of any of
the foregoing, each of which is specifically waived by each Guarantor. Each Guarantor warrants to
the Lenders and the Administrative Agent that it has adequate means to obtain from each Borrower on
a continuing basis information concerning the financial condition and other matters with respect to
each Borrower and that it is not relying on any Lender or the Administrative Agent to provide such
information either now or in the future.



     4. Waivers, Etc. Each Guarantor unconditionally waives: (a) notice of any of the
matters referred to in Paragraph 3 above; (b) all notices which may be required by statute, rule of
law or otherwise to preserve any rights of any Lender or the Administrative Agent, including,
without limitation, notice to the Guarantors of default, presentment to and demand of payment or
performance from any Borrower and protest for non-payment or dishonor; (c) any right to the
exercise by any Lender or the Administrative Agent of any right, remedy, power or privilege in
connection with any of the Agreements; (d) any requirement of diligence or marshaling on the part
of any Lender or the Administrative Agent; (e) any requirement that any Lender or the
Administrative Agent, in the event of any default by any Borrower, first make demand upon or seek
to enforce remedies against, any Borrower or any other Cumulative Guarantor before demanding
payment under or seeking to enforce this Guaranty; (f) any right to notice of the disposition of
any security which any Lender or the Administrative Agent may hold from any Borrower or otherwise
and any right to object to the commercial reasonableness of the disposition of any such security;
and (g) all errors and omissions in connection with any Lender’s or the Administrative Agent’s
administration of any of the Guaranteed Obligations, any of the Agreements or any other Cumulative
Guarantor, or any other act or omission of any Lender or the Administrative Agent which changes the
scope of such Guarantor’s risk. The obligations of each Guarantor hereunder shall be complete and
binding forthwith upon the execution of this Guaranty by it and subject to no condition whatsoever,
precedent or otherwise, and notice of acceptance hereof or action in reliance hereon shall not be
required.



     5. Nature of Guaranty; Payments. This Guaranty is an absolute, unconditional,
irrevocable and continuing guaranty of payment and not a guaranty of collection, and is wholly
independent of and in addition to other rights and remedies of any Lender or the Administrative
Agent with respect to any Borrower, any collateral, any Cumulative Guarantor or otherwise, and it
is not contingent upon the pursuit by any Lender or the Administrative Agent of any such rights and
remedies, such pursuit being hereby waived by each Guarantor. The obligations of each Guarantor
hereunder shall be continuing and shall continue (regardless of any statute of limitations
otherwise applicable) and cover and include all the Guaranteed Obligations of each Borrower
accruing or in the process of accruing to the Lenders or the Administrative Agent before the
Administrative Agent delivers to the Guarantors a release of this Guaranty, which is in writing,
refers specifically to this Guaranty (or is a general release given in connection with termination
of the Credit Agreement and payment in full thereof), and is signed by a President, a Senior
Vice President, or a Vice President of the Administrative Agent. Nothing shall discharge or
satisfy the liability of any Guarantor



3









 







hereunder except such a release or the full and irrevocable payment and performance of all of the
Guaranteed Obligations and the expiration or termination of all the Agreements. All payments to be
made by the Guarantors hereunder shall be made without set-offs or counterclaim, and each Guarantor
hereby waives the assertion of any such set-offs or counterclaims in any proceeding to enforce its
obligations hereunder. All payments to be made by each Guarantor hereunder shall be governed by
the provisions of Section 3.6 of the Credit Agreement as if payments by a Borrower thereunder. Each
Guarantor agrees that, if at any time all or any part of any payment previously applied by any
Lender or the Administrative Agent to any of the Guaranteed Obligations must be returned by such
Lender or the Administrative Agent for any reason, whether by court order, administrative order, or
settlement and whether as a “voidable preference”, “fraudulent conveyance” or otherwise, each
Guarantor remains liable for the full amount returned as if such amount had never been received by
such Lender or the Administrative Agent, notwithstanding any termination of this Guaranty or any
cancellation of any of the Agreements and the Guaranteed Obligations and all obligations of each
Guarantor hereunder shall be reinstated in such case.



     6. Evidence of Guaranteed Obligations. Each Lender’s and the Administrative Agent’s
books and records showing the Guaranteed Obligations shall be admissible in any action or
proceeding, shall be binding upon each Guarantor for the purpose of establishing the Guaranteed
Obligations due from the Borrowers and shall constitute prima facie proof, absent manifest error,
of the Guaranteed Obligations of the Borrowers to such Lender or the Administrative Agent, as well
as the obligations of each Guarantor to such Lender or the Administrative Agent.



     7. Subordination, Subrogation, Contribution, Etc. Each Guarantor agrees that all
present and future indebtedness, obligations and liabilities of the Borrowers to such Guarantor
shall be fully subordinate and junior in right and priority of payment to any indebtedness of the
Borrowers to the Lenders, and no Guarantor shall have any right of subrogation, contribution
(including but without limitation the contribution and subrogation rights granted below),
reimbursement or indemnity whatsoever nor any right of recourse to security for the debts and
obligations of the Borrowers unless and until all Guaranteed Obligations shall have been paid in
full, such payment is not subject to any possibility of revocation or rescission and all Agreements
have expired or been terminated. Subject to the preceding sentence, if any Guarantor makes a
payment in respect of the Guaranteed Obligations it shall be subrogated to the rights of the payee
against the Borrowers with respect to such payment and shall have the rights of contribution set
forth below against all other Cumulative Guarantors and each Guarantor agrees that all other
Cumulative Guarantors shall have the rights of contribution against it set forth below. If any
Guarantor makes a payment in respect of the Guaranteed Obligations that is smaller in proportion to
its Payment Share (as hereinafter defined) than such payments made by the other Cumulative
Guarantors are in proportion to the amounts of their respective Payment Shares, such Guarantor
shall, when permitted by the first sentence of this Section 7, pay to the other Guarantors an
amount such that the net payments made by the Cumulative Guarantors in respect of the Guaranteed
Obligations shall be shared among the Cumulative Guarantors pro rata in proportion to their
respective Payment Shares. If any Guarantor receives any payment by way of subrogation that is
greater in proportion to the amount of its Payment Share than the payments received by the other
Cumulative Guarantors are in proportion to the amounts of their respective Payment Shares, such
Guarantor shall, when permitted by the first sentence of this Section 7, pay to the other
Cumulative Guarantors an amount such that the subrogation payments received by the Guarantors shall
be shared among the Cumulative Guarantors pro rata in proportion to their respective Payment
Shares.



     For purposes of this Guaranty, the “Payment Share” of any Cumulative Guarantor shall be the
sum of (a) the aggregate proceeds of the Guaranteed Obligations received by such Guarantor (and, if
received subject to a repayment obligation, remaining unpaid on the Determination Date, as
hereinafter defined), plus (b) the product of (i) the aggregate Guaranteed Obligations remaining
unpaid on the date such Guaranteed Obligations become due and payable in full, whether by stated
maturity, acceleration or otherwise (the



4









 





“Determination Date”) reduced by the amount of such Guaranteed Obligations attributed to all of
the Cumulative Guarantors pursuant to clause (a) above, times (ii) a fraction, the numerator of
which is such Guarantor’s net worth on the effective date of this Guaranty (determined as of the
end of the immediately preceding fiscal reporting period of the Guarantor), and the denominator of
which is the aggregate net worth of all of the Cumulative Guarantors, determined for each
Cumulative Guarantor on the respective effective date of the guaranty signed by such Cumulative
Guarantor.




     8. Assignment. Each Lender’s and the Administrative Agent’s successors and assigns
(if pursuant to an assignment complying with Section 13.1 of the Credit Agreement) shall have the
right to rely upon and enforce this Guaranty.



     9. Joint and Several Obligations. The obligations of the Guarantors hereunder and all
other Cumulative Guarantors shall be joint and several and each Guarantor shall be liable for all
of the Guaranteed Obligations to the extent provided herein regardless of any other Cumulative
Guarantors, and each Lender and the Administrative Agent shall have the right, in its sole
discretion to pursue its remedies against any Guarantor without the need to pursue its remedies
against any other Cumulative Guarantor, whether now or hereafter in existence, or against any one
or more Cumulative Guarantors separately or against any two or more jointly, or against some
separately and some jointly.



     10. Representations and Warranties. Each Guarantor hereby represents and warrants to
the Lenders and the Administrative Agent that:



          (a) the execution, delivery and performance by the Guarantor of this Guaranty are within its
corporate powers, have been duly authorized by all necessary corporate action, require no action by
or in respect of, or filing with, any governmental body, agency or official, and do not contravene
or constitute a default under, any provision of applicable law or regulation or of the articles of
incorporation or other charter documents or bylaws of such Guarantor, or of any agreement,
judgment, injunction, order, decree or other instrument binding upon such Guarantor, or result in
the creation or imposition of any lien, security interest or other charge or encumbrance on any
asset of such Guarantor;




          (b) this Guaranty constitutes a legal, valid and binding agreement of each Guarantor,
enforceable against the Guarantor in accordance with its terms;




          (c) as of the date hereof, each of the following is true and correct for each Guarantor, after
giving effect to Section 7: (i) the fair saleable value and the fair valuation of such Guarantor’s
property is greater than the total amount of its liabilities (including contingent liabilities) and
greater than the amount that would be required to pay its probable aggregate liability on its
existing debts as they become absolute and matured, (ii) each Guarantor’s capital is not
unreasonably small in relation to its current and/or contemplated business or other undertaken
transactions, and (iii) each Guarantor does not intend to incur, or believe that it will incur,
debt beyond its ability to pay such debts as they become due; and




          (d) the Borrowers, the Guarantors and the other affiliates of the Borrowers are engaged as an
integrated group in related businesses; that the integrated operation requires financing on such a
basis that credit supplied to the Borrowers can be made available from time to time to various
subsidiaries of the Borrowers, as required for the continued successful operation of the integrated
group as a whole; and that each Guarantor has requested the Lenders to continue to lend and to make
credit available to the Borrowers for the purpose of financing the integrated operations of the
Borrowers and its subsidiaries, including each Guarantor, with each Guarantor expecting to derive
benefit, direct or indirectly, from the loans and other credit extended by the Lenders to the
Borrowers, both in such Guarantor’s separate capacity and as a
member of the integrated group, inasmuch as the successful operation and condition of each
Guarantor is dependent upon the continued




5









 







successful performance of the functions of the integrated group as a whole. Each of the Guarantors
hereby determines and agrees that the execution, delivery and performance of this Guaranty are
necessary and convenient to the conduct, promotion or attainment of the business of such Guarantor
and in furtherance of the corporate purposes of such Guarantor.




     11. Binding on Successors and Assigns. This Guaranty shall be the valid, binding and
enforceable obligation of the Guarantors and their successors and assigns.



     12. Indemnity. As a separate, additional and continuing obligation, each Guarantor
unconditionally and irrevocably undertakes and agrees with each Lender and the Administrative Agent
that, should the Guaranteed Obligations not be recoverable from any Guarantor as guarantor under
this Guaranty for any reason whatsoever (including, without limitation, by reason of any provision
of any of the Guaranteed Obligations or the Agreements being or becoming void, unenforceable, or
otherwise invalid under any applicable law) then, notwithstanding any knowledge thereof by any
Lender or the Administrative Agent at any time, each Guarantor as original and independent obligor,
upon demand by the Administrative Agent, will make payment to the Lenders and the Administrative
Agent of the Guaranteed Obligations by way of a full indemnity.



     13. Cumulative Rights and Remedies, Etc. The obligations of each Guarantor under this
Guaranty are continuing obligations and a new cause of action shall arise in respect of each
default hereunder. No course of dealing on the part of any Lender or the Administrative Agent, nor
any delay or failure on the part of any Lender or the Administrative Agent in exercising any right,
power or privilege hereunder, shall operate as a waiver of such right, power, or privilege or
otherwise prejudice the Lenders’ or the Administrative Agent’s rights and remedies hereunder; nor
shall any single or partial exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege. No right or remedy conferred upon or reserved to any
Lender or the Administrative Agent under this Guaranty is intended to be exclusive of any other
right or remedy, and every right and remedy shall be cumulative and in addition to every other
right or remedy given hereunder or now or hereafter existing under any applicable law. Every right
and remedy given by this Guaranty or by applicable law to the Lenders and the Administrative Agent
may be exercised from time to time and as often as may be deemed expedient by any Lender or the
Administrative Agent.



     14. Severability. If any one or more provisions of this Guaranty should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected, impaired, prejudiced or disturbed
thereby, and any provision hereunder found partially unenforceable shall be interpreted to be
enforceable to the fullest extent possible. If at any time all or any portion of the obligation of
any Guarantor under this Guaranty would otherwise be determined by a court of competent
jurisdiction to be invalid, unenforceable or avoidable under Section 548 of the federal Bankruptcy
Code or under any fraudulent conveyance or transfer laws or similar applicable law of any
jurisdiction, then notwithstanding any other provisions of this Guaranty to the contrary such
obligation or portion thereof of such Guarantor under this Guaranty shall be limited to the
greatest of (i) the value of any quantified economic benefits accruing to such Guarantor as a
result of this Guaranty, (ii) an amount equal to 95% of the excess on the date the relevant
Guaranteed Obligations were incurred of the present fair saleable value of the assets of such
Guarantor over the amount of all liabilities of such Guarantor, contingent or otherwise, and (iii)
the maximum amount of which this Guaranty is determined to be enforceable.



     15. Merger; Amendments; Headings. This Guaranty is intended as a final expression of
the subject matter hereof and is also intended as a complete and exclusive statement of the terms
hereof. Each Guarantor’s liability hereunder is independent of and in addition to its liability
under any other guaranty
previously of subsequently executed. No course of dealing, course of performance or trade usage,
and no parole evidence of any nature, shall be used to supplement or modify any terms hereof, nor
are there any



6









 







conditions to the full effectiveness of this Guaranty. None of the terms and provisions of this
Guaranty may be waived, altered, modified or amended in any way except by an instrument in writing
executed by duly authorized officers of the Administrative Agent and the Guarantors. The headings
of the various paragraphs hereof are for the convenience of reference only and shall in no way
modify any of the terms hereof.



     16. CHOICE OF LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK.



     17. WAIVER OF JURY TRIAL. EACH GUARANTOR, AND THE ADMINISTRATIVE AGENT AND EACH
LENDER IN ACCEPTING THIS GUARANTY, HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTY OR THE RELATIONSHIP ESTABLISHED
HEREUNDER.



     18. Submission To Jurisdiction; Waivers. (a) Each Guarantor hereby irrevocably and
unconditionally:




     (i) submits for itself and its property in any legal action or proceeding
relating to this Guaranty, or for recognition and enforcement of any judgment in
respect hereof, to the non-exclusive general jurisdiction of any United States
federal or New York state court sitting in New York, New York and appellate courts
from any thereof;




     (ii) consents that any such action or proceeding may be brought in such courts
and waives any objection that it may now or hereafter have to the venue of any such
action or proceeding in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the same;




     (iii) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Guarantor at the
address specified in Section 19, or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;




     (iv) 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 where such Guarantor is domiciled; and




     (v) waives, to the maximum extent not prohibited by law, any right it may have
to claim or recover in any legal action or proceeding referred to in this subsection
any special, exemplary, punitive or consequential damages.



     19. Notices. Any notice, demand, consent or request given or made to each Guarantor
by any Lender or the Administrative Agent shall be deemed to have been duly given or made if sent
in accordance with the provisions set forth in Section 14.1 of the Credit Agreement, to such
Guarantor to the address, facsimile number or email address set forth below the name of such
Guarantor on the signature page hereof, or at such other address, facsimile number or email address
as such Guarantor may hereafter specify to the Administrative Agent in writing.



[Signature to Follow]



7









 








     EXECUTED and effective as of the day and year first above written.



	 	 	 	 	 
	 	DIEBOLD SST HOLDING COMPANY, INC.

DIEBOLD HOLDING COMPANY, INC.

DIEBOLD GLOBAL FINANCE CORPORATION

DIEBOLD LATIN AMERICA HOLDING COMPANY, LLC

DIEBOLD SOUTHEAST MANUFACTURING, INC.

DIEBOLD MIDWEST MANUFACTURING, INC.

 	 
	 	By:  	 	 
	 	 	Print Name:  	 	 
	 	 	Their: 	 	 
	 



c/o Diebold, Incorporated

5995 Mayfair Road

North Canton, Ohio 44720-1507





8











 





EXHIBIT F




JOINDER AGREEMENT




          THIS JOINDER AGREEMENT, dated as of                     , ___, is entered into by                                         
(the “New Subsidiary Borrower”) pursuant to the Credit Agreement dated as of October ___, 2009 (as
amended or modified from time to time, the “Credit Agreement”), among Diebold, Incorporated (the
“Company”), the Subsidiary Borrowers party thereto, the Lenders party thereto and JPMorgan Chase
Bank, N.A., as Administrative Agent.




WITNESSETH:




          WHEREAS, the parties to this Joinder Agreement wish to designate the New Subsidiary Borrower
as a Subsidiary Borrower under the Credit Agreement in the manner hereinafter set forth; and




          WHEREAS, this Joinder Agreement is entered into pursuant to the Credit Agreement;




          NOW, THEREFORE, in consideration of the premises, the parties hereto hereby agree as follows:




          1. The New Subsidiary Borrower hereby acknowledges that it has received and reviewed a copy
of the Credit Agreement and the other Loan Documents and unconditionally agrees to: (a) join the
Credit Agreement and the other Loan Documents as a Subsidiary Borrower, (b) be bound by, and
hereby ratifies and confirms, all covenants, agreements, consents, submissions, appointments,
acknowledgments and other terms and provisions attributable to a Subsidiary Borrower in the Credit
Agreement and the other Loan Documents; and (c) perform all obligations required of it as a
Subsidiary Borrower by the Credit Agreement and the other Loan Documents.




          2. The New Subsidiary Borrower hereby represents and warrants that the representations and
warranties with respect to it contained in, or made or deemed made by it in, the Credit Agreement
and any other Loan Document are true and correct on the date hereof except to the extent any such
representation or warranty relates solely to an earlier date, in which case such representation or
warranty shall have been true and correct on and as of such earlier date.




          3. The address and jurisdiction of formation of the New Subsidiary Borrower is set forth in
Schedule A to this Joinder Agreement.




          4. The Company agrees that its guarantee contained in Article IX of the Credit Agreement shall
remain in full force and effect after giving effect to this Joinder Agreement, including without
limitation after including the New Subsidiary Borrower as a Subsidiary Borrower under the Credit
Agreement.




          5. This Joinder Agreement shall be construed in accordance with the internal laws of the State
of New York, but giving effect to federal laws applicable to national banks.




          6. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in
the Credit Agreement.




1









 








          7. This Joinder Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one agreement.




          IN WITNESS WHEREOF, each of the undersigned has caused this Joinder Agreement to be duly
executed and delivered as of the day and year set forth above.




	 	 	 	 	 
	 	 
 	, 
	 

	
as a Subsidiary Borrower
	 
	 	 	 	 	 
	 	 	 
	 	By:  	 
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DIEBOLD, INCORPORATED

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Accepted and Acknowledged:



JPMORGAN CHASE, N.A.,

as Administrative Agent

 	 	 
	By:  	 
 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 




2









 






	 	 	 	 	 



Schedule A




New Subsidiary Borrower address:




New Subsidiary Borrower jurisdiction of formation:





3









 








EXHIBIT G




MANDATORY COSTS





	1.	 	The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.
	 
	2.	 	On the first day of each Interest Period (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost
Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost
will be calculated by the Administrative Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per annum.
	 
	3.	 	The Additional Cost Rate for any Lender lending from a Facility Office in a Participating
Member State will be the percentage notified by that Lender to the Administrative Agent. This
percentage will be certified by that Lender in its notice to the Administrative Agent to be
its reasonable determination of the cost (expressed as a percentage of that Lender’s
participation in all Loans made from that Facility Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of loans made from that Facility
Office.
	 
	4.	 	The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Administrative Agent as follows:






	 	(a)	 	in relation to a sterling Loan:
	 
	 	 	 	
 
per cent. per annum
	 
	 	(b)	 	in relation to a Loan in any currency other than sterling:
	 
	 	 	 	 
 
per cent. per annum.





        Where:




	 	A 	 	is the percentage of Eligible Liabilities (assuming these to be in excess
of any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.
	 
	 	B 	 	is the percentage rate of interest (excluding the Applicable Margin and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in Section 2.9 of the Credit Agreement) payable for the relevant Interest
Period on the Loan.
	 
	 	C 	 	is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England.




1









 












	 	D 	 	is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.
	 
	 	E 	 	is designed to compensate Lenders for amounts payable under the Fees Rules
and is calculated by the Administrative Agent as being the average of the most recent
rates of charge supplied by the Reference Banks to the Administrative Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000.






	5.	 	For the purposes of this Exhibit G:






(a) “Eligible Liabilities” and “Special Deposits” have the meanings given to
them from time to time under or pursuant to the Bank of England Act 1998 or (as may
be appropriate) by the Bank of England.




(b) “Facility Office” means the office or offices notified by a Lender to the
Administrative 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.




(c) “Fees Rules” means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force from time to
time in respect of the payment of fees for the acceptance of deposits.




(d) “Fee Tariffs” means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate).




(e) “Participating Member State” means any member state of the European Union that
adopts or has adopted the euro as its lawful currency in accordance with legislation
of the European Union relating to economic and monetary union.




(f) “Reference Banks” means, in relation to Mandatory Cost, the principal London
offices of JPMorgan Chase Bank, N.A.




(g) “Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.




(h) “Unpaid Sum” means any sum due and payable but unpaid by any Borrower
under the Loan Documents.




	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places.
	 
	7.	 	If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative Agent, the
rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to
the Fees Rules in respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that
Reference Bank as being the average of the Fee Tariffs
applicable to that




2









 






	 	 	Reference Bank for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of that Reference Bank.






	8.	 	Each Lender shall supply any information required by the Administrative Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without limitation, each Lender
shall supply the following information on or prior to the date on which it becomes a Lender:






	 	(a)	 	the jurisdiction of its Facility Office; and
	 
	 	(b)	 	any other information that the Administrative Agent may reasonably require
for such purpose.






	 	 	Each Lender shall promptly notify the Administrative Agent of any change to the information
provided by it pursuant to this paragraph.






	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Administrative Agent
based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Administrative Agent to the contrary, each
Lender’s obligations in relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a Facility Office in the
same jurisdiction as its Facility Office.
	 
	10.	 	The Administrative Agent shall have no liability to any person if such determination results
in an Additional Cost Rate which over or under compensates any Lender and shall be entitled to
assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3,
7 and 8 above is true and correct in all respects.
	 
	11.	 	The Administrative Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based
on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7
and 8 above.
	 
	12.	 	Any determination by the Administrative Agent pursuant to this Exhibit G in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall,
in the absence of manifest error, be conclusive and binding on all Parties.
	 
	13.	 	The Administrative Agent may from time to time, after consultation with the Company and the
Lenders, determine and notify to all Parties any amendments which are required to be made to
this Exhibit G in order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or any of its functions)
and any such determination shall, in the absence of manifest error, be conclusive and binding
on all Parties.






3









 








EXHIBIT H

REVOLVING CREDIT NOTE




			
	                                        
	 	                    , 2009 






                                              (“Borrower”), unconditionally promises to pay to the order of
                                         (“Lender”) on or before the Facility Termination Date (as defined in the
Credit Agreement hereinafter referred to) for the account of its applicable Lending Installation
the principal sum of                                          (                    ) or the aggregate unpaid principal
amount of all Revolving Credit Loans made by the Lender to the Borrower pursuant to the Credit
Agreement, whichever is less, in immediately available funds at the Lending Installation of the
Administrative Agent designated by the Administrative Agent for the Borrower, together with
interest on the unpaid principal amount thereof at the rates and on the dates set forth in the
Credit Agreement.



     The Lender shall, and is hereby authorized to, record in accordance with its usual practice,
the date and amount of each Revolving Credit Loan, the date and amount of each principal payment
and the date to which payment of this Note has been extended, provided, however, that failure to do
so shall not affect the Borrower’s obligation to pay amounts due hereunder.



     The Borrower expressly waives any presentments, demand, protest or notice in connection with
this Revolving Credit Note now, or hereafter, required by applicable law.



     This Revolving Credit Note is one of the Revolving Credit Notes issued pursuant to the
provisions of the Credit Agreement dated as of October ___, 2009 among Diebold, Incorporated, the
Subsidiary Borrowers party thereto, the Lenders party thereto, and JPMorgan Chase Bank, N.A., as
Administrative Agent, as it may be amended, restated or otherwise modified from time to time (the
“Credit Agreement”), to which reference is hereby made for a statement of the terms and conditions
under which this Revolving Credit Note may be prepaid or its maturity date extended or accelerated.



     THIS REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.



..

 



By:






Title:








1









 








EXHIBIT I




(Provided
separately)




 









 





EXHIBIT J




Money Transfer Instructions




As supplied by the Company to the Administrative Agent prior to closing




Wiring Instructions can be changed only with the written consent of two Authorized Officers





1









 








EXHIBIT K




COMPLIANCE CERTIFICATE





	To: 	 	The Administrative Agent and Lenders parties to the
Credit Agreement Described Below





     This Compliance Certificate is furnished pursuant to that certain Credit Agreement dated as of
October ___, 2009 (as amended, modified, renewed or extended from time to time, the “Agreement”)
among DIEBOLD, INCORPORATED (the “Company”), certain Subsidiary Borrowers, the lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Unless otherwise defined herein,
capitalized terms used in this Certificate have the meanings ascribed thereto in the Agreement.



     THE UNDERSIGNED HEREBY CERTIFIES THAT:



     1. I am the duly elected                     , 1of the Company;



     2. I have reviewed the terms of the Agreement and I have made, or have caused to be made
under my supervision, a detailed review of the transactions and conditions of the Company and its
Subsidiaries during the accounting period covered by the attached financial statements;



     3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of,
the existence of any condition or event which constitutes a Default or Unmatured Default during or
at the end of the accounting period covered by the attached financial statements (the “Covered
Period”) or as of the date of this Certificate, except as set forth below; and



     4. Schedule I attached hereto sets forth financial data and computations evidencing the
Company’s compliance with Sections 6.17 and 6.18 of the Agreement and calculations of the
Applicable Margin, in each case as of the end of the Covered Period, all of which data and
computations are true, complete and correct.



     Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature
of the condition or event, the period during which it has existed and the action which the Company
has taken, is taking, or proposes to take with respect to each such condition or event:




 


 


 


 



     The foregoing certifications, together with the computations set forth in Schedule I hereto
and the financial statements delivered with this Certificate in support hereof, are made and
delivered this ___ day of                     , ___.





                                                          






 




			
	1	 	Must be a Designated Financial Officer.





1















 








SCHEDULE I TO COMPLIANCE CERTIFICATE




Compliance Calculations for Credit Agreement1




CALCULATION AS OF _____________________, ______






	 	 	 	 	 	 	 	 	 	 	 
	A.	 	 	Leverage Ratio (Section 6.17)	 	 	 	 
	 
	 

	 	 	1.	 	 	Total Net Debt of the Company and its
Subsidiaries
	 	$                                        	 	 
	 
	 

	 	 	2.	 	 	Net Worth
	 	$                                        	 	 
	 
	 

	 	 	3.	 	 	Total Net Debt to Capitalization Ratio

(Ratio of Line A1 to Line A1+ Line A2)
	 	_______________:1.00
	 	(must be no greater 

than 0.50 to 1.00)
	 
	B.	 	 	Interest Coverage Ratio (Section 6.18)	 	 	 	 
	 
	 

	 	 	1.	 	 	Consolidated net income of the Company and
its Subsidiaries for past four fiscal quarters
determined in conformity with GAAP
	 	$                                        	 	 
	 
	 

	 	 	2.	 	 	Income taxes for past four fiscal
quarters subtracted in calculating Line B1
	 	$                                        	 	 
	 
	 

	 	 	3.	 	 	Interest Expense
for past four fiscal quarters

subtracted in calculating Line B1
	 	$                                        	 	 
	 
	 

	 	 	4.	 	 	Any extraordinary and non-recurring losses
and non-cash charges and related tax effects in
accordance with GAAP subtracted in calculating
Line B1
	 	$                                        	 	 
	 
	 

	 	 	5.	 	 	To the extent included in determining Line
B1, the income of any Person (other than a
Subsidiary of the Company) in which any Person
other than the Company or any of its
Subsidiaries has a joint interest or a
partnership interest or other ownership
interest, except to the extent of the amount of
dividends or other distributions actually paid
to the Company or any of its Subsidiaries by
such Person during the past four fiscal
quarters
	 	$                                        	 	 







 




			
	1	 	All capitalized terms used herein have the meanings
given such terms in the Credit Agreement.





1









 











	 	 	 	 	 	 	 	 	 	 	 
	 
	 

	 	 	6.	 	 	To the extent included in determining Line
B1, the income of any Person accrued prior to
the date it becomes a Subsidiary of the Company
or is merged into or consolidated with the
Company or any of its Subsidiaries or that
Person’s assets are acquired by the Company or
any of its Subsidiaries
	 	$                                        	 	 
	 
	 

	 	 	7.	 	 	To the extent included in determining Line
B1, gains from the sale, exchange, transfer or
other disposition of property or assets not in
the ordinary course of business of the Company
and its Subsidiaries, and related tax effects
in accordance with GAAP
	 	$                                        	 	 
	 
	 

	 	 	8.	 	 	To the extent included in determining Line
B1, any other extraordinary or non-recurring
gains or other income not from the continuing
operations of the Company or its Subsidiaries,
and related tax effects in accordance with GAAP
	 	$                                        	 	 
	 
	 

	 	 	9.	 	 	To the extent included in determining Line
B1, the income of any Subsidiary of the Company
(other than Subsidiaries which are not material
in the aggregate as agreed upon between the
Company and the Administrative Agent) to the
extent that the declaration or payment of
dividends or similar distributions by that
Subsidiary of that income is not at the time
permitted by operation of the terms of its
charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental
regulation applicable to that Subsidiary.
	 	$                                        	 	 
	 
	 

	 	 	10.	 	 	EBIT (sum of lines B1, B2, B3 and B4 minus
B5, B6, B7, B8 and B9)
	 	$                                        	 	 
	 
	 

	 	 	11.	 	 	Interest Expense of the Company and its
Subsidiaries
	 	$                                        	 	 
	 
	 

	 	 	12.	 	 	Ratio of Line B10 to Line B11
	 	                                        :1.00
	 	(ratio of Line B10
to B11 must not be
less than 5.00 to 1.00)
	 







2