Exhibit
10.47


 


EXECUTION
COPY


 




 





 


$700,000,000


 


AMENDED AND RESTATED CREDIT
AGREEMENT


 


among


 


IMS HEALTH INCORPORATED,


as a Borrower and the
Guarantor,


 


IMS AG,


as a Borrower,


 


IMS JAPAN K.K.,


as a Borrower,


 


THE LENDERS PARTIES HERETO,


 


WACHOVIA BANK, NATIONAL
ASSOCIATION,


as
Administrative Agent,


 


BARCLAYS BANK PLC AND ABN AMRO
BANK N.V.,


as
Co-Syndication Agents,


 


and


 


SUNTRUST BANK AND FORTIS
CAPITAL CORP,


as
Co-Documentation Agents


 


 


Dated as of March 9, 2005


 


 


WACHOVIA CAPITAL MARKETS, LLC,


as Lead Arranger
and Sole Book Runner


 




 





 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE I
  DEFINITIONS AND OTHER PROVISIONS

  	
   

  
	
   

  	
  Section 1.1

  	
  Defined Terms

  	
   

  
	
   

  	
  Section 1.2

  	
  Other Definitional Provisions

  	
   

  
	
   

  	
  Section 1.3

  	
  Accounting Terms

  	
   

  
	
   

  	
  Section 1.4

  	
  Exchange Rates; Currency Equivalents

  	
   

  
	
   

  	
  Section 1.5

  	
  Redenomination of Certain Foreign
  Currencies and Computation of Dollar Amounts

  	
   

  
	
   

  	
  Section 1.6

  	
  Additional Foreign Currencies

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II
  THE LOANS; AMOUNT AND TERMS

  	
   

  
	
   

  	
  Section 2.1

  	
  Revolving Loans

  	
   

  
	
   

  	
  Section 2.2

  	
  Letter of Credit Subfacility

  	
   

  
	
   

  	
  Section 2.3

  	
  Swingline Loan Subfacility

  	
   

  
	
   

  	
  Section 2.4

  	
  Japanese/Multicurrency Revolving Loans

  	
   

  
	
   

  	
  Section 2.5

  	
  Swiss/Multicurrency Revolving Loans

  	
   

  
	
   

  	
  Section 2.6

  	
  Fees

  	
   

  
	
   

  	
  Section 2.7

  	
  Commitment Reductions

  	
   

  
	
   

  	
  Section 2.8

  	
  Prepayments

  	
   

  
	
   

  	
  Section 2.9

  	
  Minimum Principal Amount of Tranches

  	
   

  
	
   

  	
  Section 2.10

  	
  Default Rate

  	
   

  
	
   

  	
  Section 2.11

  	
  Conversion Options

  	
   

  
	
   

  	
  Section 2.12

  	
  Computation of Interest and Fees

  	
   

  
	
   

  	
  Section 2.13

  	
  Computations, Pro Rata Treatment and
  Payments

  	
   

  
	
   

  	
  Section 2.14

  	
  Non-Receipt of Funds by the Administrative
  Agent

  	
   

  
	
   

  	
  Section 2.15

  	
  Inability to Determine Interest Rate

  	
   

  
	
   

  	
  Section 2.16

  	
  Illegality

  	
   

  
	
   

  	
  Section 2.17

  	
  Deposits Unavailable; Impractibility

  	
   

  
	
   

  	
  Section 2.18

  	
  Increased Cost

  	
   

  
	
   

  	
  Section 2.19

  	
  Increased Capital Costs

  	
   

  
	
   

  	
  Section 2.20

  	
  Funding Losses

  	
   

  
	
   

  	
  Section 2.21

  	
  Taxes

  	
   

  
	
   

  	
  Section 2.22

  	
  Indemnification; Nature of Issuing Lender’s
  Duties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
  Section 3.1

  	
  Existence

  	
   

  
	
   

  	
  Section 3.2

  	
  Power and Authorization; Enforceable
  Obligations

  	
   

  
	
   

  	
  Section 3.3

  	
  No Legal Bar to Loans

  	
   

  
	
   

  	
  Section 3.4

  	
  Financial Information; Disclosure, etc.

  	
   

  
	
   

  	
  Section 3.5

  	
  Licenses, Permits, etc.

  	
   

  
	
   

  	
  Section 3.6

  	
  Tax Returns and Payments

  	
   

  
	
   

  	
  Section 3.7

  	
  Title to Properties; Liens

  	
   

  
	
   

  	
  Section 3.8

  	
  Litigation, etc.

  	
   

  
	
   

  	
  Section 3.9

  	
  No Default

  	
   

  
	
   

  	
  Section 3.10

  	
  Governmental and Other Consents

  	
   

  



 


i





















 


	
   

  	
  Section 3.11

  	
  Regulation U, etc.

  	
   

  
	
   

  	
  Section 3.12

  	
  Investment Company Act; Other Regulations

  	
   

  
	
   

  	
  Section 3.13

  	
  Compliance with ERISA

  	
   

  
	
   

  	
  Section 3.14

  	
  Environmental Matters

  	
   

  
	
   

  	
  Section 3.15

  	
  Material Subsidiaries

  	
   

  
	
   

  	
  Section 3.16

  	
  Compliance with Trading with the Enemy
  Act, OFAC Rules and Regulations and Patriot Act

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
  Section 4.1

  	
  Conditions to Closing Date and Initial
  Revolving Loans

  	
   

  
	
   

  	
  Section 4.2

  	
  Conditions to All Extensions of Credit

  	
   

  
	
   

  	
  Section 4.3

  	
  Conditions to Extensions of Credit to any
  Foreign Borrower

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
  Section 5.1

  	
  Financial Information

  	
   

  
	
   

  	
  Section 5.2

  	
  Use of Proceeds

  	
   

  
	
   

  	
  Section 5.3

  	
  Payment of Obligations

  	
   

  
	
   

  	
  Section 5.4

  	
  Conduct of Business and Maintenance of
  Existence

  	
   

  
	
   

  	
  Section 5.5

  	
  Insurance

  	
   

  
	
   

  	
  Section 5.6

  	
  Books and Records

  	
   

  
	
   

  	
  Section 5.7

  	
  Notices

  	
   

  
	
   

  	
  Section 5.8

  	
  Payment of Taxes

  	
   

  
	
   

  	
  Section 5.9

  	
  Further Assurances

  	
   

  
	
   

  	
  Section 5.10

  	
  No Dividend Restrictions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI NEGATIVE
  COVENANTS

  	
   

  
	
   

  	
  Section 6.1

  	
  Limitation on Liens

  	
   

  
	
   

  	
  Section 6.2

  	
  Dissolutions and Mergers

  	
   

  
	
   

  	
  Section 6.3

  	
  Disposition of Assets

  	
   

  
	
   

  	
  Section 6.4

  	
  Conduct of Business

  	
   

  
	
   

  	
  Section 6.5

  	
  Compliance with Federal Reserve Regulations

  	
   

  
	
   

  	
  Section 6.6

  	
  Financial Covenants

  	
   

  
	
   

  	
  Section 6.7

  	
  Subsidiary Indebtedness

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII EVENTS
  OF DEFAULT

  	
   

  
	
   

  	
  Section 7.1

  	
  Events of Default

  	
   

  
	
   

  	
  Section 7.2

  	
  Acceleration; Remedies

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  THE ADMINISTRATIVE AGENT

  	
   

  
	
   

  	
  Section 8.1

  	
  Appointment

  	
   

  
	
   

  	
  Section 8.2

  	
  Delegation of Duties

  	
   

  
	
   

  	
  Section 8.3

  	
  Exculpatory Provisions

  	
   

  
	
   

  	
  Section 8.4

  	
  Reliance by the Administrative Agent

  	
   

  
	
   

  	
  Section 8.5

  	
  Notice of Default

  	
   

  
	
   

  	
  Section 8.6

  	
  Non-Reliance on the Administrative Agent
  and Other Lenders

  	
   

  
	
   

  	
  Section 8.7

  	
  Indemnification

  	
   

  
	
   

  	
  Section 8.8

  	
  Administrative Agent in its Individual
  Capacity

  	
   

  
	
   

  	
  Section 8.9

  	
  Successor Administrative Agent

  	
   

  
	
   

  	
  Section 8.10

  	
  Nature of Duties

  	
   

  



 


ii





















 


	
  ARTICLE IX MISCELLANEOUS

  	
   

  
	
   

  	
  Section 9.1

  	
  Amendments and Waivers

  	
   

  
	
   

  	
  Section 9.2

  	
  Notices

  	
   

  
	
   

  	
  Section 9.3

  	
  No Waiver; Cumulative Remedies

  	
   

  
	
   

  	
  Section 9.4

  	
  Payment of Expenses and Taxes

  	
   

  
	
   

  	
  Section 9.5

  	
  Successors and Assigns; Participations;
  Purchasing Lenders

  	
   

  
	
   

  	
  Section 9.6

  	
  Adjustments; Set-off

  	
   

  
	
   

  	
  Section 9.7

  	
  Table of Contents and Section Headings

  	
   

  
	
   

  	
  Section 9.8

  	
  Counterparts

  	
   

  
	
   

  	
  Section 9.9

  	
  Effectiveness

  	
   

  
	
   

  	
  Section 9.10

  	
  Severability

  	
   

  
	
   

  	
  Section 9.11

  	
  Integration

  	
   

  
	
   

  	
  Section 9.12

  	
  Governing Law

  	
   

  
	
   

  	
  Section 9.13

  	
  Consent to Jurisdiction and Service of
  Process

  	
   

  
	
   

  	
  Section 9.14

  	
  Confidentiality

  	
   

  
	
   

  	
  Section 9.15

  	
  Acknowledgments

  	
   

  
	
   

  	
  Section 9.16

  	
  Waivers of Jury Trial

  	
   

  
	
   

  	
  Section 9.17

  	
  Judgment Currency

  	
   

  
	
   

  	
  Section 9.18

  	
  USA Patriot Act Notice

  	
   

  
	
   

  	
  Section 9.19

  	
  Guaranty by the Company of the Borrower
  Obligations of the Foreign Borrowers

  	
   

  
	
   

  	
  Section 9.20

  	
  Binding Effect; Further Assurances;
  Amendment and Restatement of Existing Credit Agreements

  	
   

  
	
   

  	
  Section 9.21

  	
  Interest Rate Limitations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X
  SPECIAL PROVISIONS APPLICABLE TO LENDERS UPON THE OCCURRENCE OF A SHARING
  EVENT

  	
   

  
	
   

  	
  Section 10.1

  	
  Participations

  	
   

  
	
   

  	
  Section 10.2

  	
  Administrative Agent’s Determination
  Binding

  	
   

  
	
   

  	
  Section 10.3

  	
  Participation Payments in Dollars

  	
   

  
	
   

  	
  Section 10.4

  	
  Delinquent Participation Payments

  	
   

  
	
   

  	
  Section 10.5

  	
  Settlement of Participation Payments

  	
   

  
	
   

  	
  Section 10.6

  	
  Participation Obligations Absolute

  	
   

  
	
   

  	
  Section 10.7

  	
  Increased Cost; Indemnities

  	
   

  
	
   

  	
  Section 10.8

  	
  Provisions Solely to Effect Intercreditor
  Agreement

  	
   

  



 


iii





















 


	
  Schedules

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.1

  	
   

  	
  Account Designation Letter

  	
   

  
	
  Schedule 2.1(a)

  	
   

  	
  Schedule of Lenders and Commitments

  	
   

  
	
  Schedule 2.1(b)(i)

  	
   

  	
  Form of Notice of Borrowing

  	
   

  
	
  Schedule 2.1(e)

  	
   

  	
  Form of U.S. Revolving Note

  	
   

  
	
  Schedule 2.3(d)

  	
   

  	
  Form of Swingline Note

  	
   

  
	
  Schedule 2.4(e)

  	
   

  	
  Form of Japanese/Multicurrency Revolving
  Note

  	
   

  
	
  Schedule 2.5(e)

  	
   

  	
  Form of Swiss/Multicurrency Revolving Note

  	
   

  
	
  Schedule 2.11

  	
   

  	
  Form of Notice of Conversion/Extension

  	
   

  
	
  Schedule 3.15

  	
   

  	
  Material Subsidiaries

  	
   

  
	
  Schedule 4.1(b)

  	
   

  	
  Form of Secretary’s Certificate

  	
   

  
	
  Schedule 4.1(f)

  	
   

  	
  Form of Solvency Certificate

  	
   

  
	
  Schedule 9.2

  	
   

  	
  Schedule of Lenders’ Lending Offices

  	
   

  
	
  Schedule 9.5(c)

  	
   

  	
  Form of Commitment Transfer Supplement

  	
   

  



 


iv





















 


This AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of March 9, 2005, is by and among IMS HEALTH INCORPORATED, a Delaware
corporation (the “Company”), IMS AG, a Swiss
corporation and a subsidiary of the Company (the “Swiss Borrower”), IMS JAPAN K.K., a Japanese corporation and a wholly-owned
subsidiary of the Company (the “Japanese Borrower”; and together with the
Company and the Swiss Borrower, each a “Borrower” and collectively, the “Borrowers”),
the several banks and other financial institutions as may from time to time
become parties to this Credit Agreement (collectively, the “Lenders”;
and individually, a “Lender”), and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as administrative agent
for the Lenders hereunder (in such capacity, the “Administrative Agent”).


 


W I
T  N  E  S  S  E  T  H:


 


WHEREAS, the
Company, the Swiss Borrower, the Japanese Borrower, the Lenders party thereto
and the Administrative Agent entered into a Three-Year Credit Agreement, dated
as of April 5, 2004 (as amended or modified through the date hereof, the “Existing
Three-Year Credit Agreement”);


 


WHEREAS, the
Company, the Lenders party thereto and the Administrative Agent entered into a
364-Day Credit Agreement dated as of April 5, 2004 (as amended or modified
through the date hereof, the “Existing 364-Day Credit Agreement” and
together with the Existing Three-Year Credit Agreement collectively, the “Existing
Credit Agreements”, and individually an “Existing Credit Agreement”);


 


WHEREAS, the Company
has requested and the Lenders and other parties hereto have agreed to amend and
restate the Existing Credit Agreements on the terms and conditions hereinafter
set forth;


 


WHEREAS,
concurrently with the effectiveness of such amendment and restatement of the
Existing Credit Agreements, the Existing Credit Agreements will be amended and
restated in their entirety, the lenders party thereto will have no further
obligations thereunder and will cease to be parties to such agreements and the
Borrowers (as defined in the Existing Credit Agreements) will have no further
obligations thereunder, except for those obligations that by their terms
survive termination of the Existing Credit Agreements;


 


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


 





















 


ARTICLE I


 


DEFINITIONS AND OTHER PROVISIONS


 


Section 1.1                                   Defined Terms.


 


As used in this Credit Agreement, terms
defined in the preamble to this Credit Agreement have the meanings therein
indicated, and the following terms have the following meanings:


 


“Account Designation Letter” shall
mean the Notice of Account Designation Letter dated the Closing Date, from the
Borrowers to the Administrative Agent substantially in the form attached hereto
as Schedule 1.1.


 


“Administrative Agent” shall have the
meaning set forth in the preamble of this Credit Agreement and any successors
in such capacity.


 


“Administrative Agent’s Office” shall
mean, with respect to any currency, the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 9.2 with respect to
such currency, or such other address or account with respect to such currency
as the Administrative Agent may from time to time provide notice to the
Borrowers and the Lenders.


 


“Affected Lender” shall have the
meaning set forth in Section 2.16(a).


 


“Affected Loan” shall have the meaning
set forth in Section 2.16(a).


 


“Affiliate” shall mean as to any
Person, any other Person which, directly or indirectly, controls, is controlled
by, or is under common control with, such Person (excluding any trustee under,
or any committee with responsibility for administering, any Plan).  For purposes of this definition, a Person
shall be deemed to be “controlled by” another Person if such Person possesses,
directly or indirectly, power either (a) to vote 20% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners of such Person or
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.


 


“Aggregate U.S. Revolving Committed Amount”
shall have the meaning set forth in Section 2.1(a).


 


“Aggregate Japanese/Multicurrency
Revolving Committed Amount” shall have the meaning set forth in Section 2.4(a).


 


“Aggregate Swiss/Multicurrency Revolving
Committed Amount” shall have the meaning set forth in Section 2.5(a).


 


“Alternate Base Rate” shall mean, for
any day, a rate per annum equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on 


 


2





















 


such day plus 1/2 of 1%.  For
purposes hereof: “Prime Rate” shall mean, at any time, the rate of
interest per annum publicly announced from time to time by Wachovia at its
principal office in Charlotte, North Carolina as its prime rate.  Each change in the Prime Rate shall be
effective as of the opening of business on the day such change in the Prime
Rate occurs.  The parties hereto
acknowledge that the rate announced publicly by Wachovia as its Prime Rate is
an index or base rate and shall not necessarily be its lowest or best rate
charged to its customers or other banks; and “Federal Funds Effective Rate”
shall mean, for any day, the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published on
the next succeeding Business Day, the average of the quotations for the day of
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. 
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive in the absence of manifest error) that it is
unable to ascertain the Federal Funds Effective Rate, including the inability
or failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms above, the Alternate Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist.  Any change in the Alternate Base Rate due to
a change in the Prime Rate or the Federal Funds Effective Rate shall be effective
on the opening of business on the date of such change.


 


“Alternate Base Rate Loans” shall mean
Loans that bear interest at an interest rate based on the Alternate Base Rate.


 


“Applicable Percentage” shall mean,
for any day, the rate per annum set forth below opposite the applicable level
then in effect, it being understood that the Applicable Percentage for
(a) Revolving Loans which are Alternate Base Rate Loans shall be the
percentage set forth under the column “Alternate Base Rate Margin for Revolving
Loans”, (b) Revolving Loans that are LIBOR Rate Loans shall be the
percentage set forth under the column “LIBOR Rate Margin for Revolving Loans
and Letter of Credit Fee”, (c) the Letter of Credit Fee shall be the
percentage set forth under the column “LIBOR Rate Margin for Revolving Loans
and Letter of Credit Fee”, and (d) the Commitment Fees shall be the
percentage set forth under the column “Commitment Fees”:


 


3





















 


 


	
  Level

  	
   

  	
  Leverage

  Ratio

  	
   

  	
  Alternate

  Base Rate

  Margin

  for

  Revolving

  Loans

  	
   

  	
  LIBOR

  Rate

  Margin for

  Revolving

  Loans

  and Letter

  of

  Credit Fee

  	
   

  	
  Commitment

  Fees

  	
   

  
	
  I

  	
   

  	
  >
  2.00 to 1.0

  	
   

  	
  0.000

  	
  %

  	
  0.625

  	
  %

  	
  0.125

  	
  %

  
	
  II

  	
   

  	
  >
  1.25 to 1.0 but

  < 2.00 to 1.0

  	
   

  	
  0.000

  	
  %

  	
  0.500

  	
  %

  	
  0.100

  	
  %

  
	
  III

  	
   

  	
  < 1.25 to
  1.0

  	
   

  	
  0.000

  	
  %

  	
  0.400

  	
  %

  	
  0.090

  	
  %

  



 


The Applicable Percentage shall, in each
case, be determined and adjusted quarterly on the date five (5) Business
Days after the date on which the Administrative Agent has received from the
Company the quarterly financial information (in the case of the first three
Fiscal Quarters of the Company) or annual financial information (in the case of
the fourth Fiscal Quarter of the Company), and certifications required to be
delivered to the Administrative Agent and the Lenders in accordance with the
provisions of Sections 5.1(a), (b) and (c) pursuant to which the
Company shall notify the Administrative Agent of a change in the applicable
pricing level based on the financial information contained therein (each an “Interest
Determination Date”).  Subject to the
last sentence of this definition, such Applicable Percentage shall be effective
from such Interest Determination Date until the next such Interest
Determination Date.  Notwithstanding the
foregoing, the initial Applicable Percentages shall be set at Level III
until the first Interest Determination Date to occur after the Closing
Date.  If the Company shall fail to
provide the quarterly and annual financial information and certifications in
accordance with the provisions of Sections 5.1(a), (b) and (c), the
Applicable Percentage shall, on the date five (5) Business Days after the
date by which the Company was so required to provide such financial information
and certifications to the Administrative Agent and the Lenders, be based on
Level I until such time as such information and certifications are
provided, whereupon the Level shall be determined by the then current Leverage
Ratio.


 


“Applicable Time” shall mean, with
respect to any borrowings and payments in Foreign Currencies, the local times
in the place of settlement for such Foreign Currencies as may be determined by
the Administrative Agent to be necessary for timely settlement on the relevant
date in accordance with normal banking procedures in the place of payment.


 


“Arranger” shall mean Wachovia Capital
Markets, LLC, together with its successors and assigns.


 


“Bank” shall mean any Lender or
Participant who carries out genuine banking activities and qualifies as a bank
in the jurisdiction of the office where its Loans, Notes or Commitments or any
participating interests therein are booked, as set forth in the respective
regulations of the 


 


4





















 


Swiss Federal Tax Administration (Notes S-02.123 (9.86), S-02.122.1
(4.99) and S-02.128 (1.2000), as amended from time to time).


 


 “Bankruptcy
Code” shall mean the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time
to time.


 


“Borrower” or “Borrowers” shall
have the meaning set forth in the first paragraph of this Credit Agreement.


 


“Borrower Obligations” shall mean,
without duplication, all of the obligations, indebtedness and liabilities of
the Borrowers to the Lenders (including the Issuing Lender) and the
Administrative Agent, whenever arising, under this Credit Agreement, the Notes
or any of the other Credit Documents including principal, interest, fees,
reimbursements and indemnification obligations and other amounts (including,
but not limited to, any interest accruing after the occurrence of a filing of a
petition of bankruptcy under the Bankruptcy Code with respect to any Borrower,
regardless of whether such interest is an allowed claim under the Bankruptcy
Code).


 


“Borrowing Date” shall mean, in
respect of any Loan, the date such Loan is made.


 


“Business Day” shall mean a day other
than a Saturday, Sunday or other day on which commercial banks in Charlotte,
North Carolina or New York, New York are authorized or required
by law to close; provided, however, that when used in connection
with a rate determination, borrowing or payment in respect of a LIBOR Rate
Loan, (a) the term “Business Day” shall also exclude any day on which
banks in London, England are not open for dealings in deposits of Dollars or
Foreign Currencies, as applicable, in the London interbank market and
(b) the term “Business Day” shall also exclude any day on which banks are
not open for foreign exchange dealings between banks in the exchange of the
home country of such Foreign Currency.


 


“Capital Stock” shall mean (a) in
the case of a corporation, capital stock, (b) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, (c) in
the case of a partnership, partnership interests (whether general or limited),
(d) in the case of a limited liability company, membership interests and
(e) 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.


 


“Change of Control” shall mean the
occurrence of one or more of the following events: (a) any sale, lease,
exchange or other transfer (in a single transaction or a series of related
transactions) of all or substantially all of the assets of the Company to any
Person or “group” (within the meaning of the Exchange Act and the rules of the
SEC thereunder as in effect on the date hereof), (b) the acquisition or
ownership, directly or indirectly, beneficially or of record, by any Person or “group”
(within the meaning of the Exchange Act and the rules of the SEC thereunder as
in effect on the date hereof) of 35% or more of the outstanding shares of
Voting Stock of the Company, (c) the occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Company by Persons
who were neither (i) nominated by the current 


 


5





















 


board of directors or (ii) appointed by directors so nominated or (d)
the failure by the Company to own, directly or indirectly, 100% of the
outstanding shares of Capital Stock of (x) the Japanese Borrower or
(y) the Swiss Borrower (excluding nominal qualifying shares held by
directors and other affiliated third parties pursuant to Requirements of Law).


 


“Closing Date” shall mean the date of
this Credit Agreement.


 


“Code” shall mean the Internal Revenue
Code of 1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.  Section references
to the Code are to the Code as in effect at the date of this Agreement and any
subsequent provisions of the Code amendatory thereof, supplemental thereto or
substituted therefore.


 


“Commitment” shall mean the U.S.
Revolving Commitment, the Japanese/Multicurrency Revolving Commitment, the
Swiss/Multicurrency Revolving Commitment, the LOC Commitment and the Swingline
Commitment, individually or collectively, as appropriate.


 


“Commitment Fees” shall mean
collectively, the U.S. Commitment Fee, the Japanese/Multicurrency Commitment
Fee and the Swiss/Multicurrency Commitment Fee.


 


“Commitment Percentage” shall mean the
U.S. Revolving Commitment Percentage, the Japanese/Multicurrency Revolving
Commitment Percentage, the Swiss/Multicurrency Revolving Commitment Percentage
and/or the LOC Commitment Percentage, as appropriate.


 


“Commitment Period” shall mean the
period from and including the Closing Date to but not including the Maturity
Date.


 


“Commitment Transfer Supplement” shall
mean a Commitment Transfer Supplement, substantially in the form of Schedule 9.5(c).


 


“Company” shall have the meaning set
forth in the first paragraph of this Credit Agreement.


 


“Consolidated Capital Expenditures”
shall mean, for any period of four consecutive Fiscal Quarters, all capital
expenditures of the Company and its Subsidiaries (including without limitation
additions to computer software) on a consolidated basis for such period, all as
determined in accordance with GAAP.


 


“Consolidated EBITDA” shall mean, for
any period of four consecutive Fiscal Quarters, the Company and its
Subsidiaries’ income before income taxes plus, (i) Consolidated Interest
Expense, (ii) depreciation and amortization expense, (iii) income (or
minus loss) from discontinued operations, (iv) charges for the in-process,
research and development related to an acquisition and (v) the non-cash charges
of any share based compensation awards, to the extent such non-cash charges
were expensed during such period in accordance with Financial Accounting
Standards Board Statement of Financial Accounting Standards No. 123 (revised
2004), all as the same are or would be set forth in a statement of the income
of the Company for such period.


 


6





















 


“Consolidated Interest Expense” shall
mean, for any period of four consecutive Fiscal Quarters, the total interest
expense of the Company and its Subsidiaries, as the same would be set forth in
a statement of income of the Company and its Subsidiaries for such period.


 


“Consolidated Total Debt” shall mean,
as of any particular time and after eliminating inter-company items, all
Indebtedness of the Company and its Subsidiaries, all as consolidated and
determined in accordance with GAAP, but shall not include Hedging Agreements.


 


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


 


“Credit Agreement” shall mean this
Credit Agreement, as amended, modified or supplemented from time to time in
accordance with its terms.


 


“Credit Documents” shall mean this
Credit Agreement, each of the Notes, the Letters of Credit, any Commitment
Transfer Supplement and the LOC Documents and all other agreements, documents,
certificates and instruments delivered to the Administrative Agent or any
Lender by any Borrower in connection therewith (other than any agreement,
document, certificate or instrument related to a Hedging Agreement).


 


“Default” shall mean any event which
with notice, the lapse of time or both would constitute an Event of Default.


 


“Defaulting Lender” shall mean, at any
time, any Lender that, at such time (a) has failed to make a Loan required
pursuant to the term of this Credit Agreement, including the funding of a
Participation Interest in accordance with the terms hereof absent a good faith
dispute relating to the Credit Agreement or the Extensions of Credit hereunder,
(b) has failed to pay to the Administrative Agent or any Lender an amount
owed by such Lender pursuant to the terms of this Credit Agreement absent a
good faith dispute relating to the Credit Agreement or the Extensions of Credit
hereunder, or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or similar
official.


 


“Dollar Amount” shall mean, at any
time, (a) with respect to Dollars or an amount denominated in Dollars,
such amount and (b) with respect to an amount of any Foreign Currency or
an amount denominated in such Foreign Currency, the equivalent amount thereof
in Dollars as determined by the Administrative Agent at such time on the basis
of the Spot Rate (determined in respect of the most recent Revaluation Date)
for the purchase of Dollars with such Foreign Currency.


 


“Dollars” and “$” shall mean
dollars in lawful currency of the United States of America.


 


“Domestic Lending Office” shall mean,
initially, the office of each Lender designated as such Lender’s Domestic
Lending Office shown on Schedule 9.2; and thereafter, such other
office of such Lender as such Lender may from time to time specify to the
Administrative Agent and 


 


7





















 


the Borrowers as the office of such Lender at which Alternate Base Rate
Loans of such Lender are to be made.


 


“Eligible Investor” shall mean a
Japanese corporate entity, a Japanese branch of a foreign corporate entity
which possesses a withholding tax exemption certificate from the Japanese tax
authority or a U.S. bank or similar financial institution eligible for tax exemption
from withholding tax by virtue of the provisions of Article 11(3)(c) of
the U.S.- Japan double tax treaty.


 


“EMU” shall mean Economic and Monetary
Union as contemplated in the Treaty on European Union.


 


“EMU Legislation” shall mean
legislative measures of the European Council (including without limitation
European Council regulations) for the introduction of, changeover to or
operation of a single or unified European currency (whether known as the Euro
or otherwise), being in part the implementation of the third stage of EMU.


 


“Environmental Laws” shall mean any
and all applicable federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements of any Governmental
Authority regulating, relating to or imposing liability or standards of conduct
concerning environmental protection measures, including without limitation,
Hazardous Materials, as now or may at any time be in effect during the term of
this Credit Agreement.


 


“ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended from time to time, and the
regulations promulgated and the rulings issued thereunder.  Section references to ERISA are to ERISA
as in effect at the date of this Credit Agreement and any subsequent provisions
of ERISA amendatory thereof, supplemental thereto or substituted therefor.


 


“ERISA Affiliate” shall mean each
person (as defined in Section 3(9) of ERISA) which together with the
Company or any other Borrower would be deemed a “single employer” (i) within
the meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as a
result of the Company or any other Borrower being or having been a general
partner of such person.


 


“Euro” shall mean the single currency
of Participating Member States of the European Union.


 


“Euro Unit” shall mean the currency
unit of the Euro.


 


“Eurodollar Reserve Percentage” shall
mean for any day, the percentage (expressed as a decimal and rounded upwards,
if necessary, to the next higher 1/100th of 1%) which is in effect for such day
as prescribed by the Federal Reserve Board (or any successor) for determining
the maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) in respect of Eurocurrency liabilities, as
defined in Regulation D of such Board as in effect from time to time, or
any similar category of liabilities for a member bank of the Federal Reserve
System in New York City.


 


8





















 


“Event of Default” shall mean any of
the events specified in Section 7.1; provided, however, that
any requirement for the giving of notice or the lapse of time, or both, or any
other condition, has been satisfied.


 


“Exchange Act” shall mean the U.S.
Securities Exchange Act of 1934, as amended.


 


“Exchange Percentage” shall mean, as
to each Lender, a fraction, expressed as a decimal, in each case determined on
the date of occurrence of a Sharing Event (but before giving effect to any
actions to occur on such date pursuant to Article X) of which (a) the
numerator shall be the sum of the U.S. Revolving Commitment of such Lender, the
Japanese/Multicurrency Revolving Commitment of such Lender and the
Swiss/Multicurrency Commitment of such Lender and (b) the denominator of which
shall be the sum of the Aggregate U.S. Revolving Committed Amount, the
Aggregate Japanese/Multicurrency Revolving Committed Amount and the Aggregate
Swiss Multicurrency Committed Amount.


 


“Existing 364-Day Credit Agreement”
shall have the meaning set forth in the recitals hereto.


 


“Existing Credit Agreements” shall
have the meaning set forth in the recitals hereto.


 


“Existing Three-Year Credit Agreement”
shall have the meaning set forth in the recitals hereto.


 


“Extension of Credit” shall mean, as to
any Lender, the making of a Loan by such Lender or the issuance of, renewal,
extension, amendment or participation in, a Letter of Credit or Loan by such
Lender.


 


“Federal Funds Effective Rate” shall
have the meaning set forth in the definition of “Alternate Base Rate”.


 


“Fee Letter” shall mean the letter
agreement dated February 1, 2005 addressed to the Company from the
Administrative Agent and the Arranger, as amended, modified or otherwise
supplemented.


 


“Fiscal Quarter” shall mean any
quarter of a Fiscal Year.


 


“Fiscal Year” shall mean any period of
twelve consecutive calendar months ending on December 31; references to a
Fiscal Year with a number corresponding to any calendar year (e.g., the 2004
Fiscal Year) refer to the Fiscal Year ending on the December 31 occurring
during such calendar year.


 


“Fixed Charge Coverage Ratio” shall
mean, for any Fiscal Quarter, the ratio of (a) Consolidated EBITDA to (b)
Fixed Charges as of the last day of such Fiscal Quarter.


 


9





















 


“Fixed Charges” shall mean, with
respect to the Company and its Subsidiaries on a consolidated basis, for the
four Fiscal Quarters most recently concluded, the sum of (i) Consolidated
Interest Expense plus (ii) Scheduled Funded Debt Payments plus
(iii) Consolidated Capital Expenditures plus (v) additions to computer
software.


 


“Foreign Borrower” shall mean either
of the Swiss Borrower or the Japanese Borrower and “Foreign Borrowers”
shall mean both of them.


 


“Foreign Currency” shall mean
(a) Euros, (b) Swiss Francs, (c) Japanese Yen, (d) Pounds
Sterling and (e) any other freely available currency which is freely
transferable and freely convertible into Dollars and in which dealings in
deposits are carried on in the London interbank market, which shall be
requested by the Company and approved by each Lender.


 


“Foreign Currency Equivalent” shall
mean, with respect to any amount denominated in Dollars, the equivalent amount
thereof in the applicable Foreign Currency as determined by the Administrative Agent
at such time on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date) for the purchase of such Foreign Currency with
Dollars.


 


“Foreign Currency Fronting Bank” shall
mean the Administrative Agent.


 


“Foreign Currency Participant” shall
mean any Lender who is unable to fund a Foreign Currency Loan in a particular
Foreign Currency to the extent such Lender has notified the Foreign Currency
Fronting Bank in writing as of (i) the Closing Date, (ii) the date such Lender
becomes a Lender pursuant to a Commitment Transfer Supplement delivered
pursuant to Section 9.5 or (iii) the date an additional Foreign Currency
is approved in accordance with Section 1.6 hereof, that such Lender is
unable to fund Foreign Currency Loans in such Foreign Currency.


 


“Foreign Currency Loan” shall mean any
Loan denominated in a Foreign Currency.


 


“Fronted Foreign Currency Loans” shall
have the meaning set forth in Section 2.4(b)(iii) or Section 2.5(b)(iii),
as applicable.


 


“GAAP” shall mean generally accepted
accounting principles, applied on a basis consistent with the principles used
in the preparation of the Company’s annual balance sheet and income statement
as of and for the year ending December 31, 2003, copies of which have
previously been delivered to the Administrative Agent, with such changes as may
be approved by the Company’s independent auditors.


 


“Government Acts” shall have the
meaning set forth in Section 2.22(a).


 


“Governmental Authority” shall mean
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.


 


“Guaranty” shall mean the guaranty of
the Company set forth in Section 9.19.


 


10





















 


“Hazardous Materials” shall mean any
hazardous materials, hazardous wastes, hazardous constituents, hazardous or
toxic substances, petroleum products (including crude oil or any fraction
thereof), defined or regulated as such in or under any Environmental Law.


 


“Hedging Agreements” shall mean, with
respect to any Person, any interest rate swap, cap or collar agreement or
similar arrangement between such Person and one or more counterparties, any
foreign currency exchange agreement, currency protection agreements, commodity
purchase or option agreements or other interest or exchange rate or commodity
price hedging agreements.


 


“Indebtedness” shall mean, as to any
Person, at a particular time without duplication, (a) all indebtedness of such
Person for borrowed money or on account of advances made to such person or for
the deferred purchase price of property (excluding accounts payable to trade
creditors for goods and services which are incurred in the ordinary course of
business and on customary trade terms), in respect of which such Person is
liable or evidenced by any bond, debenture, note or other instrument, (b)
indebtedness arising under acceptance facilities and the face amount of all
letters of credit issued for the account of such person and, without
duplication, all drafts drawn thereunder, (c) all liabilities secured by any
lien on any property owned by such Person even though it has not assumed or
otherwise become liable for the payment thereof, (d) obligations under
financial leases; (e) all indebtedness of others with respect to which such
person has provided a guarantee or otherwise has agreed to become directly or
indirectly liable; and (f) all obligations under Hedging Agreements.


 


“Interest Determination Date” shall
have the meaning assigned thereto in the definition of “Applicable Percentage”.


 


“Interest Payment Date” shall mean
(a) as to any Alternate Base Rate Loan or Swingline Loan, the last
Business Day of each March, June, September and December and on the
applicable Maturity Date, (b) as to any LIBOR Rate Loan having an Interest
Period of three months or less, the last day of such Interest Period,
(c) as to any LIBOR Rate Loan having an Interest Period longer than three
months, each day which is three months after the first day of such Interest
Period and the last day of such Interest Period and (d) as to any Loan which is
the subject of a mandatory prepayment required pursuant to Section 2.8(b),
the date on which such mandatory prepayment is due.


 


“Interest Period” shall mean, with
respect to any LIBOR Rate Loan,


 


(a)                                        initially,
the period commencing on the Borrowing Date or conversion date, as the case may
be, with respect to such LIBOR Rate Loan and ending fourteen days, one, two,
three, six or twelve months thereafter (in the case of twelve months, only with
the prior consent of the Administrative Agent and each of the Lenders (in its
sole discretion)), subject to availability, as selected by the applicable
Borrower in the Notice of Borrowing or Notice of Conversion given with respect
thereto; and


 


11





















 


(b)                                       thereafter,
each period commencing on the last day of the immediately preceding Interest
Period applicable to such LIBOR Rate Loan and ending fourteen days, one, two,
three, six or twelve months thereafter (in the case of twelve months, only with
the prior consent of the Administrative Agent and each of the Lenders (in its
sole discretion)), as selected by the applicable Borrower by irrevocable notice
to the Administrative Agent not less than (x) with respect to LIBOR Rate Loans
denominated in Dollars, three Business Days prior to the last day of the then
current Interest Period with respect thereto and (y) with respect to LIBOR Rate
Loans denominated in Foreign Currency, four Business Days prior to the last day
of the then current Interest Period with respect thereto;


 


provided that the
foregoing provisions are subject to the following:


 


(i)                                     if
any Interest Period pertaining to a LIBOR 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 pertaining to a LIBOR 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 the relevant calendar month;


 


(iii)                               if
the applicable Borrower shall fail to give notice as provided above, such
Borrower shall be deemed to have selected an Alternate Base Rate Loan to
replace the affected LIBOR Rate Loan; and


 


(iv)                              no
Interest Period in respect of any Loan shall extend beyond the applicable
Maturity Date.


 


“Issuing Lender” shall mean Wachovia.


 


“Issuing Lender Fees” shall have the
meaning set forth in Section 2.6(c).


 


“Japanese Borrower” shall have the
meaning set forth in the first paragraph of this Credit Agreement.


 


“Japanese Yen” or “JPY” shall
mean Japanese yen, the lawful currency of Japan.


 


“Japanese/Multicurrency Commitment Fee”
shall have the meaning set forth in Section 2.6(a)(ii).


 


“Japanese/Multicurrency Revolving
Commitment” shall mean, with respect to each Japanese/Multicurrency
Revolving Lender, the commitment of such Japanese/Multicurrency Revolving
Lender to make Japanese/Multicurrency Revolving Loans in an aggregate principal



 


12





















 


Dollar Amount at any time outstanding up to such Japanese/Multicurrency
Revolving Lender’s Japanese/Multicurrency Revolving Committed Amount.


 


“Japanese/Multicurrency Revolving
Commitment Percentage” shall mean, for each Japanese/Multicurrency
Revolving Lender, the percentage identified as its Japanese/Multicurrency
Revolving Commitment Percentage on Schedule 2.1(a), as such
percentage may be modified in connection with any assignment made in accordance
with the provisions of Section 9.5(c).


 


“Japanese/Multicurrency Revolving
Committed Amount” shall mean the amount of each Japanese/Multicurrency
Revolving Lender’s Revolving Commitment as specified on Schedule 2.1(a),
as such amount may be reduced from time to time in accordance with the
provisions hereof.


 


“Japanese/Multicurrency Revolving Lender”
shall mean any Lender with a Japanese/Multicurrency Revolving Commitment.


 


“Japanese/Multicurrency Revolving Loans”
shall have the meaning set forth in Section 2.4.


 


“Japanese/Multicurrency Revolving Note”
or “Japanese/Multicurrency Revolving Notes” shall mean the promissory
notes of the Company and the Japanese Borrower in favor of each of the
Japanese/Multicurrency Revolving Lenders evidencing the Japanese/Multicurrency
Revolving Loans provided pursuant to Section 2.4(e), individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to time.


 


“Lender” shall have the meaning set
forth in the first paragraph of this Credit Agreement.


 


“Letter of Credit” shall mean any
letter of credit issued by the Issuing Lender pursuant to the terms hereof, as
such Letter of Credit may be amended, modified, extended, renewed or replaced
from time to time.


 


“Letter of Credit Facing Fee” shall
have the meaning set forth in Section 2.6(b).


 


“Letter of Credit Fee” shall have the
meaning set forth in Section 2.6(b).


 


“Leverage Ratio” shall mean, for any
Fiscal Quarter, the ratio of (a) Consolidated Total Debt to
(b) Consolidated EBITDA as of the last day of such Fiscal Quarter.


 


“LIBOR” shall mean, for any LIBOR Rate
Loan for any Interest Period therefor, either (a) the rate of interest per
annum determined by the Administrative Agent (rounded upward to the nearest
1/100 of 1%) appearing on, in the case of Dollars, the Telerate Page 3750 (or
any successor page) and, in the case of a Foreign Currency, the appropriate
page of the Telerate screen which displays British Bankers Association Interest
Settlement Rates for deposits in such Foreign Currency (or, in each case, (i)
such other page or service as may replace such page on 


 


13





















 


such system or service for the purpose of displaying such rates and
(ii) if more than one rate appears on such screen, the arithmetic mean for all
such rates rounded upward to the nearest 1/100 of 1%) as the London interbank
offered rate for deposits in the applicable currency at approximately 11:00
A.M. (London time), on the second full Business Day preceding the first day of
such Interest Period, and in an amount approximately equal to the amount of the
LIBOR Rate Loan and for a period approximately equal to such Interest Period or
(b) if such rate is for any reason not available, the rate per annum equal to
the rate at which the Administrative Agent or its designee is offered deposits
in such currency at or about 11:00 A.M. (London time), two Business Days prior
to the beginning of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations in respect of
its LIBOR Rate Loans are then being conducted for settlement in immediately
available funds, for delivery on the first day of such Interest Period for the
number of days comprised therein, and in an amount comparable to the amount of
the LIBOR Rate Loan to be outstanding during such Interest Period.


 


“LIBOR Lending Office” shall mean,
initially, the office(s) of each Lender designated as such Lender’s LIBOR
Lending Office shown on Schedule 9.2; and thereafter, such other
office of such Lender as such Lender may from time to time specify to the
Administrative Agent and the Borrowers as the office of such Lender at which
the LIBOR Rate Loans of such Lender are to be made.


 


“LIBOR Rate” shall mean a rate per
annum (rounded upwards, if necessary, to the next higher 1/100th of 1%)
determined by the Administrative Agent pursuant to the following formula:


 


	
  LIBOR Rate =

  	
  LIBOR

  
	
   

  	
  1.00 - Eurodollar Reserve Percentage

  



 


“LIBOR Rate Loan” shall mean Loans the
rate of interest applicable to which is based on the LIBOR Rate.


 


“Lien” shall mean any mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
financial lease having substantially the same economic effect as any of the
foregoing).


 


“Loan” shall mean a Revolving Loan
and/or a Swingline Loan, as appropriate.


 


“LOC Commitment” shall mean the
commitment of the Issuing Lender to issue Letters of Credit and with respect to
each U.S. Revolving Lender, the commitment of such U.S. Revolving Lender to
purchase participation interests in the Letters of Credit up to such Lender’s
LOC Committed Amount as specified in Schedule 2.1(a), as such
amount may be reduced from time to time in accordance with the provisions
hereof.


 


14





















 


“LOC Commitment Percentage” shall
mean, for each U.S. Revolving Lender, the percentage identified as its LOC Commitment
Percentage on Schedule 2.1(a), as such percentage may be modified
in connection with any assignment made in accordance with the provisions of Section 9.5(c).


 


“LOC Committed Amount” shall mean,
collectively, the aggregate amount of all of the LOC Commitments of the U.S.
Revolving Lenders to issue and participate in Letters of Credit as referenced
in Section 2.2 and, individually, the amount of each U.S. Revolving Lender’s
LOC Commitment as specified in Schedule 2.1(a).


 


“LOC Documents” shall mean, with
respect to any Letter of Credit, such Letter of Credit, any amendments thereto,
any documents delivered in connection therewith, any application therefor, and
any agreements, instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or providing
for (a) the rights and obligations of the parties concerned or
(b) any collateral security for such obligations.


 


“LOC Obligations” shall mean, at any
time, the sum of (a) the maximum Dollar Amount which is, or at any time
thereafter may become, available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for drawings referred to
in such Letters of Credit plus (b) the aggregate Dollar Amount of
all drawings under Letters of Credit honored by the Issuing Lender but not theretofore
reimbursed.


 


“LOC Mandatory Borrowing” shall have
the meaning set forth in Section 2.2.


 


 “Material
Adverse Change” shall mean a material adverse change in the financial
condition, operations, assets, business, properties or prospects of the Company,
individually or the Company and its Subsidiaries taken as a whole.


 


“Material Subsidiary” shall mean, as
of any date of determination, any Subsidiary that (a) accounted for at least
five percent (5%) of consolidated revenues of the Company and its Subsidiaries,
for the last Fiscal Quarter immediately preceding the date as of which any such
determination is made; or (b) has assets which represent at least five percent
(5%) of the consolidated assets of the Company and its Subsidiaries as of the
last day of the last Fiscal Quarter immediately preceding the date as of which
any such determination is made; all of which, with respect to clauses (a) and
(b) shall be as reflected on the financial statements of the Company for the
period, or as of the date in question. 
Notwithstanding the foregoing, each of the Foreign Borrowers shall be
deemed to be Material Subsidiaries.


 


“Maturity Date” shall mean the fifth
anniversary of the Closing Date.


 


“National Currency Unit” shall mean a
fraction or multiple of one Euro Unit expressed in units of the former national
currency of a Participating Member State.


 


“Non-Bank” or “Non-Banks” shall
mean any Person who does not qualify as a Bank.


 


15





















 


“Note” or “Notes” shall mean
the U.S. Revolving Notes, the Japanese/Multicurrency Revolving Notes, the
Swiss/Multicurrency Revolving Notes and/or the Swingline Note, collectively,
separately or individually, as appropriate.


 


“Notice of Borrowing” shall mean the
written notice of borrowing as referenced and defined in Section 2.1(b)(i),
2.3(b)(i), 2.4(b)(i) or 2.5(b)(i), as appropriate.


 


“Notice of Conversion/Extension” shall
mean the written notice of conversion or extension as referenced and defined in
Section 2.11.


 


“Participant” shall have the meaning
set forth in Section 9.5(b).


 


“Participating Member State” shall
mean each country so described in any EMU Legislation.


 


“Participation Interest” shall mean
the purchase by a U.S. Revolving Lender of a
participation interest in Letters of Credit as provided in Section 2.2 and
in Swingline Loans as provided in Section 2.3.


 


“PBGC” shall mean the Pension Benefit
Guaranty Corporation established pursuant to Subtitle A of Title IV of
ERISA.


 


“Periodical SEC Report” shall mean any
report on Form 10-K or 10-Q of the Company filed with the SEC pursuant to
Sections 13(a) and 15(d) of the Exchange Act for the most recently concluded
Fiscal Year or Fiscal Quarter, as applicable.


 


“Person” shall mean an individual,
partnership, corporation, limited liability company, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.


 


“Plan” shall mean any multi-employer
or single-employer plan as defined in Section 4001 of ERISA, which is
maintained or contributed to by (or to which there is an obligation to
contribute of) the Company or a Subsidiary of the Company or an ERISA Affiliate
and each plan for the five-year period immediately following the latest date,
on which the Company or a Subsidiary of the Company or an ERISA Affiliate
maintained, contributed to or has an obligation to contribute to such plan.


 


“Pounds Sterling” or “BPS”
shall mean British pounds sterling, the lawful currency of the United Kingdom.


 


“Prime Rate” shall have the meaning
set forth in the definition of Alternate Base Rate.


 


“Private Placement Notes” shall mean
those certain 4.60% Senior Notes due 2008 issued by the Company pursuant to the
Private Placement Note Purchase Agreement.


 


16





















 


“Private Placement Note Purchase Agreement”
shall mean that certain Note Purchase Agreement dated as of January 15,
2003 by and among the Company and the noteholders party thereto, as such
agreement may be amended, restated, supplemented or otherwise modified from
time to time in accordance with the provisions hereof.


 


“Purchasing Lenders” shall have the
meaning set forth in Section 9.5(c).


 


“Register” shall have the meaning set
forth in Section 9.5(d).


 


“Related Fund” shall mean, with
respect to any Lender or other Person who invests in commercial bank loans in
the ordinary course of business, any other fund or trust or entity that invests
in commercial bank loans in the ordinary course of business and is advised or managed
by such Lender, by an Affiliate of such Lender or other Persons or the same
investment advisor as such Lender or by an Affiliate of such Lender or
investment advisor.


 


“Reportable Event” shall mean any of
the events set forth in Section 4043(c) of ERISA with respect to a Plan,
other than those events as to which the thirty-day notice period is waived
under the regulations promulgated thereunder.


 


“Required Lenders” shall mean, at any
time, Lenders holding in the aggregate a majority of (a) the Commitments
(and Participation Interests therein) or (b) if the Commitments have been
terminated, the aggregate principal Dollar Amount (determined as of the most
recent Revaluation Date) of the outstanding Loans and Participation Interests
(including Fronted Foreign Currency Loans of the Foreign Currency Participants
and the Participation Interests of the Issuing Lender in any Letters of Credit
and of the Swingline Lender in Swingline Loans) provided, however,
that if any Lender shall be a Defaulting Lender at such time, then there shall
be excluded from the determination of Required Lenders, the Borrower
Obligations (including Participation Interests) owing to such Defaulting Lender
and such Defaulting Lender’s Commitments, or after termination of the
Commitments, the principal balance of the Borrower Obligations owing to such
Defaulting Lender.


 


“Requirement of Law” shall mean, as to
any Person, the certificate of incorporation and bylaws or other organizational
or governing documents of such Person, and each 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.


 


“Responsible Officer” shall mean, as
to any Borrower, the Chief Executive Officer, the President, the Chief
Financial Officer, the Treasurer or any other officer acting in a substantially
similar capacity.


 


“Revaluation Date” shall mean, with
respect to any Extension of Credit, each of the following: (a)               in connection with
the origination of any new Extension of Credit, the Business Day which is the
earliest of the date such credit is extended, the date the rate is set or the
date the bid is accepted, as applicable; (b) in connection with any extension
or conversion or continuation of an existing Loan, the Business Day that is the
earlier of the date such advance is extended, 


 


17





















 


converted or continued, or the date the rate is set, as applicable, in
connection with any extension, conversion or continuation; (c) each date a
Letter of Credit is issued or renewed pursuant to Section 2.2 or amended
in such a way as to modify the LOC Obligations; (d) the date of any reduction
of any of the U.S. Revolving Committed Amount, the Japanese/Multicurrency
Revolving Commitment Amount, the Swiss/Multicurrency Revolving Committed Amount
or the LOC Committed Amount pursuant to the terms of Section 2.7, as the
case may be; and (e) such additional dates as the Administrative Agent or
the Required Lenders shall deem necessary. For purposes of determining
availability hereunder, the rate of exchange for any Foreign Currency shall be
the Spot Rate.


 


“Revolving Loans” shall mean
collectively the U.S. Revolving Loans, the Japanese/Multicurrency Revolving
Loans and the Swiss/Multicurrency Revolving Loans and “Revolving Loan”
shall mean any of the foregoing.


 


“Sale” means any sale, transfer,
assignment, lease, conveyance, exchange, swap or other disposition.


 


“Sanctioned Country” shall mean a
country subject to a sanctions program identified on the list maintained by
OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise
published from time to time.


 


“Sanctioned Person” shall mean (i) a
person named on the list of Specially Designated Nationals or Blocked Persons
maintained by OFAC available at
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise
published from time to time, or (ii) (A) an agency of the government of a
Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or
(C) a person resident in a Sanctioned Country.


 


“Scheduled Funded Debt Payments” shall
mean, as of any date of determination, the sum of all scheduled payments of
principal by the Company and its Subsidiaries made on Indebtedness classified
as “long-term” under GAAP for the four consecutive Fiscal Quarters prior to
such date of determination.


 


“SEC” shall mean the U.S. Securities
and Exchange Commission.


 


“Sharing
Event” shall mean (a) the occurrence of any Event of Default under Section 7.1(e),
(b) the declaration of the termination of any Commitment, or the acceleration
of the maturity of any Loans, in each case in accordance with Section 7.2
or (iii) the failure of any Borrower to pay any principal of, or interest on,
any Loans or any LOC Obligations on the Maturity Date.


 


“Spot Rate” shall mean, with respect
to any Foreign Currency, the rate quoted by Wachovia as the spot rate for the
purchase by Wachovia of such Foreign Currency with Dollars through its
principal foreign exchange trading office at approximately 11:00 a.m. on
the date two Business Days prior to the date as of which the foreign exchange
computation is made.


 


18





















 


“Subsidiary” shall mean any
corporation or other entity of which the Company owns, directly or indirectly,
such number of outstanding shares or other voting interests as have more than
fifty percent (50%) of the ordinary voting power for the election of
directors.  Unless otherwise qualified,
all references to a “Subsidiary” or to “Subsidiaries” in this Credit Agreement
shall refer to a Subsidiary or Subsidiaries of the Company.


 


“Swingline Commitment” shall mean the
commitment of the Swingline Lender to make Swingline Loans in an aggregate
principal amount at any time outstanding up to the Swingline Committed Amount,
and the commitment of the U.S. Revolving Lenders to purchase participation
interests in the Swingline Loans as provided in Section 2.3(b)(ii), as
such amounts may be reduced from time to time in accordance with the provisions
hereof.


 


“Swingline Committed Amount” shall
mean the amount of the Swingline Lender’s Swingline Commitment as specified in Section 2.3(a).


 


“Swingline Lender” shall mean the
Administrative Agent.


 


“Swingline Loan” or “Swingline
Loans” shall have the meaning set forth in Section 2.3(a).


 


“Swingline Mandatory Borrowing” shall
have the meaning set forth in Section 2.3(b)(ii).


 


“Swingline Note” shall mean the
promissory note of the Company in favor of the Swingline Lender evidencing the
Swingline Loans provided pursuant to Section 2.3(d), as such promissory
note may be amended, modified, supplemented, extended, renewed or replaced from
time to time.


 


“Swiss Borrower” shall have the
meaning set forth in the first paragraph of this Credit Agreement.


 


“Swiss Francs” or “CHF” shall
mean Swiss francs, the lawful currency of Switzerland.


 


“Swiss/Multicurrency Commitment Fee”
shall have the meaning set forth in Section 2.6(a)(iii).


 


“Swiss/Multicurrency Revolving Commitment”
shall mean, with respect to each Swiss/Multicurrency Revolving Lender, the
commitment of such Swiss/Multicurrency Revolving Lender to make
Swiss/Multicurrency Revolving Loans in an aggregate principal Dollar Amount at
any time outstanding up to such Swiss/Multicurrency Revolving Lender’s
Swiss/Multicurrency Revolving Committed Amount.


 


“Swiss/Multicurrency Revolving Commitment
Percentage” shall mean, for each Swiss/Multicurrency Revolving Lender, the
percentage identified as its Swiss/Multicurrency Revolving Commitment
Percentage on Schedule 2.1(a), as such percentage may be modified
in connection with any assignment made in accordance with the provisions of Section 9.5(c).


 


19





















 


“Swiss/Multicurrency Revolving Committed
Amount” shall mean the amount of each Swiss/Multicurrency Revolving Lender’s
Swiss/Multicurrency Revolving Commitment as specified on Schedule 2.1(a),
as such amount may be reduced from time to time in accordance with the
provisions hereof.


 


“Swiss/Multicurrency Revolving Lenders”
shall mean each Lender with a Swiss/Multicurrency Revolving Commitment.


 


“Swiss/Multicurrency Revolving Loans”
shall have the meaning set forth in Section 2.5.


 


“Swiss/Multicurrency Revolving Note”
or “Swiss/Multicurrency Revolving Notes” shall mean the promissory notes
of the Company and the Swiss Borrower in favor of each of the
Swiss/Multicurrency Revolving Lenders evidencing the Swiss/Multicurrency Revolving
Loans provided pursuant to Section 2.5(e), individually or collectively,
as appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.


 


“Taxes” shall have the meaning set
forth in Section 2.21.


 


“Tranche” shall mean the collective
reference to LIBOR Rate Loans whose Interest Periods begin and end on the same
day.  A Tranche may sometimes be referred
to as a “LIBOR Tranche”.


 


“Transfer Effective Date” shall have
the meaning set forth in each Commitment Transfer Supplement.


 


“Treaty on European Union” shall mean
the Treaty of Rome of March 25, 1957, as amended by the Single European
Act 1986 and the Maastricht Treaty (which was signed at Maastricht on February 1,
1992 and came into force on November 1, 1993), as amended from time to
time.


 


“Type” shall mean, as to any Loan, its
nature as an Alternate Base Rate Loan or LIBOR Rate Loan, as the case may be.


 


“U.S. Commitment Fee” shall have the
meaning set forth in Section 2.6(a)(i).


 


“U.S. Revolving Commitment” shall
mean, with respect to each U.S. Revolving Lender, the commitment of such U.S.
Revolving Lender to make U.S. Revolving Loans in an aggregate principal Dollar
Amount at any time outstanding up to such U.S. Revolving Lender’s U.S.
Revolving Committed Amount.


 


“U.S. Revolving Commitment Percentage”
shall mean, for each U.S. Revolving Lender, the percentage identified as its
U.S. Revolving Commitment Percentage on Schedule 2.1(a), as such
percentage may be modified in connection with any assignment made in accordance
with the provisions of Section 9.5(c).


 


20





















 


“U.S. Revolving Committed Amount”
shall mean the amount of each U.S. Revolving Lender’s Revolving Commitment as
specified on Schedule 2.1(a), as such amount may be reduced from
time to time in accordance with the provisions hereof.


 


“U.S. Revolving Lender” shall mean
each Lender with a U.S. Revolving Commitment.


 


“U.S. Revolving Loans” shall have the
meaning set forth in Section 2.1.


 


“U.S. Revolving Note” or “U.S.
Revolving Notes” shall mean the promissory notes of the Company in favor of
each of the U.S. Revolving Lenders evidencing the U.S. Revolving Loans provided
pursuant to Section 2.1(e), individually or collectively, as appropriate,
as such promissory notes may be amended, modified, supplemented, extended,
renewed or replaced from time to time.


 


“Voting Stock” shall mean, with
respect to any Person, Capital Stock issued by such Person the holders of which
are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of such a
contingency.


 


“Wachovia” shall mean Wachovia Bank,
National Association, together with its successors and/or assigns.


 


Section 1.2                                   Other
Definitional Provisions.


 


(a)                                  Unless otherwise
specified therein, all terms defined in this Credit Agreement shall have the
defined meanings when used in the Notes or other Credit Documents or any
certificate or other document made or delivered pursuant hereto.


 


(b)                                 The words “hereof”, “herein”
and “hereunder” and words of similar import when used in this Credit Agreement
shall refer to this Credit Agreement as a whole and not to any particular
provision of this Credit Agreement, and Section, subsection, Schedule and
Exhibit references are to this Credit Agreement unless otherwise specified.


 


(c)                                  The meanings given to
terms defined herein shall be equally applicable to both the singular and
plural forms of such terms.


 


Section 1.3                                   Accounting Terms.


 


Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared in accordance with GAAP applied on
a basis consistent with the most recent audited consolidated financial
statements of the Company delivered to the Lenders; provided that, if
the Company shall notify the Administrative Agent that it wishes to amend any
covenant in Section 6.6 to eliminate the effect of any change in GAAP on
the operation of such covenant (or if the Administrative Agent notifies the
Company that the Required Lenders wish to amend Section 6.6 for such
purpose), then the Company’s compliance 


 


21





















 


with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory
to the Company and the Required Lenders.


 


Notwithstanding the above, the parties hereto
acknowledge and agree that, for purposes of all calculations made in
determining compliance for any applicable period with the financial covenants
set forth in Section 6.6, (i) beginning after consummation of any
acquisition, (A) income statement items and other balance sheet items
(whether positive or negative) attributable to the target acquired in such
transaction shall be included in such calculations to the extent relating to
such applicable period, subject to adjustments mutually acceptable to the
Company and the Administrative Agent, and (B) Indebtedness of a target
which is retired in connection with a acquisition shall be excluded from such
calculations and deemed to have been retired as of the first day of such
applicable period and (ii) beginning after consummation of any “Sale”
permitted by Section 6.3(b), (A) income statement items and other
balance sheet items (whether positive or negative) attributable to the assets
disposed of shall be excluded in such calculations to the extent relating to
such applicable period, subject to adjustments mutually acceptable to the
Company and the Administrative Agent and (B) Indebtedness of the target of
an acquisition which is retired in connection with a Sale permitted by Section 6.3(b)
shall be excluded from such calculations and deemed to have been retired as of
the first day of such applicable period.


 


Section 1.4                                   Exchange Rates;
Currency Equivalents.


 


(a)                                  The Administrative
Agent shall determine the Spot Rates as of each Revaluation Date to be used for
calculating the Dollar Amounts of Extensions of Credit and amounts outstanding
hereunder denominated in Foreign Currencies. 
Such Spot Rates shall become effective as of such Revaluation Date and
shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur.  Except for purposes of financial statements
delivered by the Company hereunder or calculating financial covenants hereunder
or except as otherwise provided herein, the applicable amount of any currency
for purposes of the Credit Documents shall be such Dollar Amount as so
determined by the Administrative Agent.


 


(b)                                 Wherever in this
Credit Agreement in connection with an Extension of Credit, conversion,
continuation or prepayment of a Loan, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Extension of Credit or Loan
is denominated in a Foreign Currency, such amount shall be the relevant Foreign
Currency Equivalent of such Dollar Amount (rounded to the nearest
1,000 units of such Foreign Currency), as determined by the Administrative
Agent.


 


Section 1.5                                   Redenomination of
Certain Foreign Currencies and Computation of Dollar Amounts.


 


(a)                                  Each obligation of
the Borrowers to make a payment denominated in the National Currency Unit of
any member state of the European Union that adopts the Euro as its lawful
currency after the date hereof shall be redenominated into Euro at the time of
such adoption (in 


 


22





















 


accordance with the EMU Legislation). 
If, in relation to the currency of any such member state, the basis of
accrual of interest expressed in this Credit Agreement in respect of that
currency shall be inconsistent with any convention or practice in the London
interbank market for the basis of accrual of interest in respect of the Euro,
such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Extension of Credit in the currency of
such member state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Extension of Credit, at the
end of the then current Interest Period.


 


(b)                                 Each provision of this
Credit Agreement shall be subject to such reasonable changes of construction as
the Administrative Agent may from time to time specify to be appropriate to
reflect the adoption of the Euro by any member state of the European Union and
any relevant market conventions or practices relating to the Euro.


 


(c)                                  References herein to
minimum Dollar Amounts and integral multiples stated in Dollars, where they
shall also be applicable to Foreign Currency, shall be deemed to refer to
approximate Foreign Currency Equivalents.


 


Section 1.6                                   Additional
Foreign Currencies.


 


The Company may from time to time request
that Japanese/Multicurrency Revolving Loans or Swiss/Multicurrency Revolving
Loans that are LIBOR Rate Loans be made in a currency other than those
specifically listed in the definition of “Foreign Currency”; provided
that such requested currency otherwise meets the requirements set forth in such
definition.  Any such request shall be
made to the Administrative Agent (which shall promptly notify each Lender
thereof) not later than 11:00 a.m., ten (10) Business Days prior to
the date of the desired borrowing in such currency.  Each Lender shall notify the Administrative
Agent, not later than 11:00 a.m., seven (7) Business Days after
receipt of such request whether it consents, in its sole discretion, to making LIBOR
Rate Loans in such requested currency. 
Any failure by a Lender to respond to such request within the time
period specified in the preceding sentence shall be deemed to be a refusal by
such Lender to make LIBOR Rate Loans in such requested currency.  If all the Lenders consent to making LIBOR
Rate Loans in such requested currency, the Administrative Agent shall so notify
the Company and such currency shall thereupon be deemed for all purposes to be
a Foreign Currency hereunder.  If all of
the Lenders who refuse to make LIBOR Rate Loans in such requested currency
notify the Foreign Currency Fronting Bank of their request for Wachovia to
front such Foreign Currency Loans for them in accordance with the definition of
“Foreign Currency Participant” and all other Lenders otherwise consent to such
currency in the manner set forth above, then such currency shall thereupon be
deemed for all purposes to be a Foreign Currency hereunder.


 


Notwithstanding the foregoing, the Company
may from time to time request that Letters of Credit be issued in a currency
other than those specifically listed in the definition of “Foreign Currency”;
provided that such request otherwise meets the requirements set forth in such
definition.  In the case of such a
request, the Company shall notify the Administrative Agent and the Issuing
Lender.  The Issuing Lender shall have
seven (7) Business Days after receipt of such request to consent, in its sole
discretion, to issue Letters of Credit in such requested currency.


 


23





















 


ARTICLE II


 


THE LOANS; AMOUNT AND TERMS


 


Section 2.1                                   Revolving Loans.


 


(a)                                  Revolving
Commitment.  During the Commitment
Period, subject to the terms and conditions hereof, each U.S. Revolving Lender
severally agrees to make revolving credit loans in Dollars to the Company in an
aggregate principal Dollar Amount of up to TWO HUNDRED MILLION
DOLLARS ($200,000,000) (as such aggregate maximum amount may be
reduced from time to time as provided in Section 2.7, the “Aggregate
U.S. Revolving Committed Amount”) for the purposes hereinafter set forth; provided,
however, that (i) with regard to each U.S. Revolving Lender
individually, the aggregate principal Dollar Amount (determined as of the most
recent Revaluation Date) of such U.S. Revolving Lender’s U.S. Revolving
Commitment Percentage of outstanding U.S. Revolving Loans plus such U.S.
Revolving Lender’s U.S. Revolving Commitment Percentage of outstanding
Swingline Loans plus such U.S. Revolving Lender’s LOC Commitment
Percentage of LOC Obligations shall not exceed such U.S. Revolving Lender’s
Revolving Committed Amount, and (ii) with regard to the U.S. Revolving
Lenders collectively, the aggregate principal Dollar Amount (determined as of
the most recent Revaluation Date) of the outstanding U.S. Revolving Loans plus
outstanding Swingline Loans plus LOC Obligations shall not exceed the
Aggregate U.S. Revolving Committed Amount. 
U.S. Revolving Loans may consist of Alternate Base Rate Loans or LIBOR
Rate Loans, or a combination thereof, as the applicable Borrower may request,
and may be repaid and reborrowed in accordance with the provisions hereof; provided,
however, U.S. Revolving Loans made on the Closing Date or on any of the
three Business Days following the Closing Date may only consist of Alternate
Base Rate Loans unless the applicable Borrower executes a funding indemnity
letter in form and substance satisfactory to the Administrative Agent.  LIBOR Rate Loans shall be made by each Lender
at its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic
Lending Office.


 


(b)                                 Revolving Loan
Borrowings.


 


(i)                                     Notice
of Borrowing.  The Company may
request a U.S. Revolving Loan borrowing by written notice (or telephone notice
promptly confirmed in writing which confirmation may be by fax) to the Administrative
Agent not later than 12:00 Noon (Charlotte, North Carolina time) on
the Business Day prior to the date of the requested borrowing in the case of
Alternate Base Rate Loans denominated in Dollars, and on the third Business Day
prior to the date of the requested borrowing in the case of LIBOR Rate Loans
denominated in Dollars.  Each such
request for borrowing shall be irrevocable and shall specify (A) that a
U.S. Revolving Loan is requested, (B) the date of the requested borrowing
(which shall be a Business Day), (C) the aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised of Alternate
Base Rate Loans, LIBOR Rate Loans or a combination thereof, and if LIBOR Rate
Loans are requested, the Interest Period(s) and currency therefor.  A form of Notice of


 


24





















 


Borrowing (a “Notice
of Borrowing”) is attached as Schedule 2.1(b)(i).  If the Company shall fail to specify in any
such Notice of Borrowing (I) an applicable Interest Period in the case of
a LIBOR Rate Loan, then such notice shall be deemed to be a request for an
Interest Period of one month or (II) the type of U.S. Revolving Loan
requested, then such notice shall be deemed to be a request for an Alternate Base
Rate Loan hereunder.  The Administrative
Agent shall give notice to each U.S. Revolving Lender promptly upon receipt of
each Notice of Borrowing, the contents thereof and each such U.S. Revolving
Lender’s share thereof.


 


(ii)                                  Minimum Amounts.  Each U.S. Revolving Loan which is
an Alternate Base Rate Loan shall be in a minimum aggregate Dollar Amount of
$1,000,000 and in integral multiples of $500,000 in excess thereof (or the
remaining amount of the Aggregate U.S. Revolving Committed Amount, if less).  Each U.S. Revolving Loan which is a LIBOR
Rate Loan shall be in a minimum aggregate Dollar Amount of $1,000,000 and in
integral multiples of $500,000 in excess thereof (or the remaining amount of
the Aggregate U.S. Revolving Committed Amount, if less).


 


(iii)                               Advances.  Each U.S. Revolving Lender will make its U.S.
Revolving Commitment Percentage of each U.S. Revolving Loan borrowing available
to the Administrative Agent, for the account of the Company, in Dollars and in
funds immediately available to the Administrative Agent, at the Administrative
Agent’s Office by 12:00 Noon on the date specified in the applicable
Notice of Borrowing.  Such borrowing will
then be made available promptly, but no later than 3:00 p.m. on the date
specified in the applicable Notice of Borrowing to the Company by the
Administrative Agent by crediting the account of the Company on the books of
the Administrative Agent’s Office with the aggregate of the amounts made
available to the Administrative Agent by the U.S. Revolving Lenders and in like
funds as received by the Administrative Agent.


 


(c)                                  Repayment.  The principal amount of all U.S. Revolving
Loans shall be due and payable in full on the Maturity Date, unless accelerated
sooner pursuant to Section 7.2.


 


(d)                                 Interest.  Subject to the provisions of Section 2.10,
U.S. Revolving Loans shall bear interest as follows:


 


(i)                                     Alternate Base Rate Loans.  During such
periods as U.S. Revolving Loans shall be comprised of Alternate Base Rate
Loans, each such Alternate Base Rate Loan shall bear interest at a per annum
rate equal to the sum of the Alternate Base Rate plus the Applicable
Percentage; and


 


(ii)                                  LIBOR Rate Loans.  During such periods as U.S.
Revolving Loans shall be comprised of LIBOR Rate Loans, each such LIBOR Rate
Loan shall bear interest at a per annum rate equal to the sum of the LIBOR Rate
plus the Applicable Percentage.


 


Interest on U.S.
Revolving Loans shall be payable in arrears on each Interest Payment Date.


 


25





















 


(e)                                  U.S. Revolving Notes.  Each U.S. Revolving Lender’s U.S.
Revolving Committed Amount shall be evidenced by a duly executed promissory
note of the Company to such U.S. Revolving Lender in substantially the form of Schedule 2.1(e).


 


Section 2.2                                   Letter of Credit
Subfacility.


 


(a)                                  Issuance.  Subject to the terms and conditions hereof
and of the LOC Documents, if any, and any other terms and conditions that the
Issuing Lender may reasonably require, during the Commitment Period the Issuing
Lender shall issue, and the U.S. Revolving Lenders shall participate in,
Letters of Credit for the account of the Company and its Subsidiaries from time to time upon request in a form reasonably
acceptable to the Issuing Lender; provided, however, that
(i) the aggregate Dollar Amount of LOC Obligations shall not at any time
exceed TEN MILLION DOLLARS ($10,000,000) (the “LOC Committed Amount”),
(ii) with regard to the U.S. Revolving Lenders collectively, the aggregate
principal Dollar Amount (determined as of the most recent Revaluation Date) of
the outstanding U.S. Revolving Loans plus outstanding Swingline Loans plus
LOC Obligations shall not exceed the Aggregate U.S. Revolving Committed Amount,
(iii) all Letters of Credit shall be denominated in U.S. Dollars or in
Foreign Currencies and (iv) Letters of Credit shall be issued for lawful
corporate purposes and may be issued as standby letters of credit, including in
connection with workers’ compensation and other insurance programs, and trade
letters of credit.  Except as otherwise
expressly agreed upon by all of the Lenders, no Letter of Credit shall have an
original expiry date more than twelve (12) months from the date of
issuance; provided, however, so long as no Default or Event of
Default has occurred and is continuing and subject to the other terms and
conditions to the issuance of Letters of Credit hereunder, the expiry dates of
Letters of Credit may be extended annually or periodically from time to time at
the request of the Company or by operation of the terms of the applicable Letter
of Credit to a date not more than twelve (12) months from the date of
extension; provided, further, that unless agreed upon by all of
the Lenders, no Letter of Credit, as originally issued or as extended, shall
have an expiry date extending beyond the date that is thirty (30) days prior to
the Maturity Date.  Each Letter of Credit
shall comply with the related LOC Documents. 
The issuance and expiry date of each Letter of Credit shall be a
Business Day.  Any Letters of Credit
issued hereunder shall be in a minimum original face amount of $100,000 or such
lesser amount as may be agreed upon between the Company and the Issuing
Lender.  Wachovia shall be the Issuing
Lender on all Letters of Credit issued on or after the Closing Date.


 


(b)                                 Notice and Reports.  The request for the issuance of a
Letter of Credit shall be submitted to the Issuing Lender at least
five (5) Business Days prior to the requested date of issuance.  The Issuing Lender will promptly upon request
provide to the Administrative Agent for dissemination to the U.S. Revolving
Lenders a detailed report specifying the Letters of Credit that are then issued
and outstanding and any activity with respect thereto that may have occurred
since the date of any prior report, and including therein, among other things,
the account party, the beneficiary, the face amount, expiry date as well as any
payments or expirations that may have occurred. 
The Issuing Lender will further provide to the Administrative Agent
promptly upon request copies of the Letters of Credit.  The Issuing Lender will provide to the
Administrative Agent promptly upon request a summary report of the nature and
extent of LOC Obligations then outstanding.


 


26





















 


(c)                                  Participations.  Each U.S. Revolving Lender, upon
issuance of a Letter of Credit, shall be deemed to have purchased without
recourse a risk participation from the Issuing Lender in such Letter of Credit
and the obligations arising thereunder and any collateral relating
thereto, in each case in an amount equal to its LOC Commitment Percentage of
the obligations under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and be obligated to pay to the Issuing Lender therefor and discharge when due,
its LOC Commitment Percentage of the obligations arising under such Letter of
Credit.  Without limiting the scope and
nature of each U.S. Revolving Lender’s participation in any Letter of Credit,
to the extent that the Issuing Lender has not been reimbursed as required
hereunder or under any LOC Document, each such U.S. Revolving Lender shall pay
to the Issuing Lender an amount equal to its LOC Commitment Percentage of the
Dollar Amount of such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing pursuant to and
in accordance with the provisions of subsection (d) hereof.  The obligation of each U.S. Revolving Lender
to so reimburse the Issuing Lender shall be absolute and unconditional and
shall not be affected by the occurrence of a Default, an Event of Default or
any other occurrence or event.  Any such
reimbursement shall not relieve or otherwise impair the obligation of the Company
to reimburse the Issuing Lender under any Letter of Credit, together with
interest as hereinafter provided.


 


(d)                                 Reimbursement.  In the event of any drawing under any Letter
of Credit, the Issuing Lender will promptly notify the Company and the
Administrative Agent.  The Company shall
reimburse the Issuing Lender on the day of drawing under any Letter of Credit
in (x) the applicable Foreign Currency of the relevant Letter of Credit with
respect to which the drawing was made to the extent directly reimbursed by the
Company or (y) in Dollars to the extent funded with the proceeds of a U.S.
Revolving Loan obtained hereunder and, in each case, in same day funds as
provided herein or in the LOC Documents. 
If the Company shall fail to reimburse the Issuing Lender as provided
herein, the unreimbursed amount of such drawing shall bear interest at a per
annum rate equal to the Alternate Base Rate plus the Applicable Percentage for
Revolving Loans that are Alternate Base Rate Loans plus two percent (2%)
for so long as such amount shall be unreimbursed.  Unless the Company shall immediately notify
the Issuing Lender and the Administrative Agent of its intent to otherwise
reimburse the Issuing Lender, the Company shall be deemed to have requested a
U.S. Revolving Loan (a “LOC Mandatory Borrowing”) in the Dollar Amount
of the drawing as provided in subsection (e) hereof, the proceeds of which
will be used to satisfy the reimbursement obligations.  The Company’s reimbursement obligations
hereunder shall be absolute and unconditional under all circumstances irrespective
of any rights of set-off, counterclaim or defense to payment the Company may
claim or have against the Issuing Lender, the Administrative Agent, the
Lenders, the beneficiary of the Letter of Credit drawn upon or any other
Person, including without limitation any defense based on any failure of the
Company to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. 
The Issuing Lender will promptly notify the other U.S. Revolving Lenders
of the Dollar Amount of any unreimbursed drawing and each U.S. Revolving Lender
shall promptly pay to the Administrative Agent for the account of the Issuing
Lender in Dollars and in immediately available funds, the Dollar Amount of such
U.S. Revolving Lender’s LOC Commitment Percentage of such unreimbursed
drawing.  Such payment shall be made on
the day such notice is received by such U.S. Revolving Lender from the Issuing
Lender if such 


 


27





















 


notice is received at or before
2:00 p.m. (Charlotte, North Carolina time), otherwise such payment
shall be made at or before 12:00 Noon (Charlotte, North Carolina
time) on the Business Day next succeeding the day such notice is received.  If such U.S. Revolving Lender does not pay
such amount to the Issuing Lender in full upon such request, such U.S.
Revolving Lender shall, on demand, pay to the Administrative Agent for the
account of the Issuing Lender interest on the unpaid amount during the period
from the date of such drawing until such U.S. Revolving Lender pays such amount
to the Issuing Lender in full at a rate per annum equal to, if paid within
two (2) Business Days of the date of drawing, the Federal Funds Effective
Rate and thereafter at a rate equal to the Alternate Base Rate.  Each U.S. Revolving Lender’s obligation to
make such payment to the Issuing Lender, and the right of the Issuing Lender to
receive the same, shall be absolute and unconditional, shall not be affected by
any circumstance whatsoever and without regard to the termination of this
Credit Agreement or the Commitments hereunder, the existence of a Default or
Event of Default or the acceleration of the Borrower Obligations hereunder and
shall be made without any offset, abatement, withholding or reduction whatsoever.


 


(e)                                  Repayment with Revolving Loans.  On any day on
which the Company shall have requested, or been deemed to have requested, a
U.S. Revolving Loan to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the U.S. Revolving Lenders that a
U.S. Revolving Loan has been requested or deemed requested in connection with a
drawing under a Letter of Credit, in which case a U.S. Revolving Loan borrowing
comprised entirely of Alternate Base Rate Loans (each such borrowing, a “LOC
Mandatory Borrowing”) shall be immediately made (without giving effect to
any termination of the Commitments pursuant to Section 7.2) pro  rata
based on each U.S. Revolving Lender’s respective U.S. Revolving Commitment
Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 7.2). 
The proceeds of such LOC Mandatory Borrowing shall be paid directly to
the Issuing Lender for application to the respective LOC Obligations.  Each U.S. Revolving Lender hereby irrevocably
agrees to make such U.S. Revolving Loans immediately upon any such request or
deemed request on account of each LOC Mandatory Borrowing in the amount and in
the manner specified in the preceding sentence and on the same such date notwithstanding
(i) the amount of LOC Mandatory Borrowing may not comply with the minimum
amount for borrowings of U.S. Revolving Loans otherwise required hereunder,
(ii) whether any conditions specified in Section 4.2 are then
satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) failure for any such request or deemed request for U.S. Revolving
Loan to be made by the time otherwise required in Section 2.1(b), (v) the date
of such LOC Mandatory Borrowing, or (vi) any reduction in the Aggregate U.S.
Revolving Committed Amount after any such Letter of Credit may have been drawn
upon; provided, however, that in the event any such LOC Mandatory
Borrowing should be less than the minimum amount for borrowings of U.S.
Revolving Loans otherwise provided in Section 2.1(b)(ii), the Company
shall pay to the Administrative Agent for its own account an administrative fee
of $500.  In the event that any LOC
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code), then each such U.S. Revolving Lender
hereby agrees that it shall forthwith fund (as of the date the LOC Mandatory
Borrowing would otherwise have occurred, but adjusted for any payments received
from the Company on or after such date and prior to such purchase) the Dollar
Amount of its Participation Interests in the outstanding LOC Obligations; provided,
further, that in the event any U.S. Revolving Lender shall fail to fund
its Participation


 


28





















 


Interest on the day the LOC Mandatory
Borrowing would otherwise have occurred, then the amount of such U.S. Revolving
Lender’s unfunded Participation Interest therein shall bear interest payable by
such U.S. Revolving Lender to the Issuing Lender upon demand, at the rate equal
to, if paid within two (2) Business Days of such date, the Federal Funds
Effective Rate, and thereafter at a rate equal to the Alternate Base Rate.


 


(f)                                    Modification, Extension.  The issuance
of any supplement, modification, amendment, renewal or extension to any Letter
of Credit shall, for purposes hereof, be treated in all respects the same as
the issuance of a new Letter of Credit hereunder.


 


(g)                                 Uniform Customs and Practices.  The Issuing
Lender shall have the Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (the “UCP”), in which case the UCP may
be incorporated therein and deemed in all respects to be a part thereof.


 


(h)                                 Reimbursement Payments.  All payments
made to the Issuing Lender to reimburse the Issuing Lender for any drawing
under a Letter of Credit from (x) the Company, shall be made in the applicable
Foreign Currency of the relevant Letter of Credit with respect to which the
drawing was made or (y) the U.S. Revolving Lenders, shall be made in Dollars
(based upon the Dollar Amount of the applicable payment); provided that
in each case the Company shall be liable for any currency exchange loss related
to such payments and shall promptly pay the Issuing Lender upon receipt of
notice thereof the amount of any such loss.


 


(i)                                     Conflict with LOC Documents.  In the event
of any conflict between the terms hereof and any LOC Documents, the terms
hereof shall control.


 


Section 2.3                                   Swingline Loan
Subfacility.


 


(a)                                  Swingline Commitment.  During the Commitment Period,
subject to the terms and conditions hereof, the Swingline Lender, in its
individual capacity, agrees to make certain revolving credit loans in Dollars
to the Company (each a “Swingline Loan” and, collectively, the “Swingline
Loans”) for the purposes hereinafter set forth; provided, however,
(i) the aggregate amount of Swingline Loans outstanding at any time shall
not exceed TWENTY-FIVE MILLION
DOLLARS ($25,000,000) (the “Swingline Committed Amount”)
and (ii) with regard to the U.S. Revolving Lenders collectively, the
aggregate principal Dollar Amount (determined as of the most recent Revaluation
Date) of the outstanding U.S. Revolving Loans plus outstanding Swingline
Loans plus LOC Obligations shall not exceed the Aggregate U.S. Revolving
Committed Amount.  Swingline Loans
hereunder may be repaid and reborrowed in accordance with the provisions
hereof.


 


(b)                                 Swingline Loan Borrowings.


 


(i)                                     Notice of Borrowing and Disbursement.  The Swingline
Lender will make Swingline Loans available to the Company on any Business Day
upon request made by the Company not later than 12:00 Noon (Charlotte, North Carolina
time) on such Business Day.  A notice of
request for Swingline Loan borrowing shall be made in the 


 


29





















 


form of Schedule 2.1(b)(i)
with appropriate modifications. 
Swingline Loan borrowings hereunder shall be made in minimum amounts of
$100,000 and in integral amounts of $100,000 in excess thereof.


 


(ii)                                  Repayment of Swingline Loans.  Each Swingline
Loan borrowing shall be due and payable on the Maturity Date.  The Swingline Lender may, at any time, in its
sole discretion, by written notice to the Company and the Administrative Agent,
demand repayment of its Swingline Loans by way of a U.S. Revolving Loan
borrowing, in which case the Company shall be deemed to have requested a U.S.
Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans in the
amount of such Swingline Loans; provided, however, that, in the
following circumstances, any such demand shall also be deemed to have been
given one Business Day prior to each of (i) the Maturity Date,
(ii) the occurrence of any Event of Default described in Section 7.1(e),
(iii) upon acceleration of the Borrower Obligations hereunder, whether on
account of an Event of Default described in Section 7.1(e) or any other
Event of Default, and (iv) the exercise of remedies in accordance with the
provisions of Section 7.2 hereof (each such U.S. Revolving Loan borrowing
made on account of any such deemed request therefor as provided herein being
hereinafter referred to as a “Swingline Mandatory Borrowing”).  Each U.S. Revolving Lender hereby irrevocably
agrees to make such Revolving Loans promptly upon any such request or deemed
request on account of each Swingline Mandatory Borrowing in the amount and in
the manner specified in the preceding sentence and on the same such date notwithstanding
(I) the amount of Swingline Mandatory Borrowing may not comply with the
minimum amount for borrowings of U.S. Revolving Loans otherwise required
hereunder, (II) whether any conditions specified in Section 4.2 are
then satisfied, (III) whether a Default or an Event of Default then
exists, (IV) failure of any such request or deemed request for U.S.
Revolving Loans to be made by the time otherwise required in Section 2.1(b)(i),
(V) the date of such Swingline Mandatory Borrowing, or (VI) any
reduction in the U.S. Revolving Committed Amount or termination of the U.S.
Revolving Commitments immediately prior to such Swingline Mandatory Borrowing
or contemporaneously therewith.  In the
event that any Swingline Mandatory Borrowing cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under the Bankruptcy Code), then each U.S.
Revolving Lender hereby agrees that it shall forthwith purchase (as of the date
the Swingline Mandatory Borrowing would otherwise have occurred, but adjusted
for any payments received from the Company on or after such date and prior to
such purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause each such U.S. Revolving Lender
to share in such Swingline Loans ratably based upon its respective U.S.
Revolving Commitment Percentage (determined before giving effect to any
termination of the Commitments pursuant to Section 7.2) provided
that (A) all interest payable on the Swingline Loans shall be for the
account of the Swingline Lender until the date as of which the respective
participation is purchased and shall thereafter be for the account of the applicable
U.S. Revolving Lender, and (B) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing U.S. Revolving
Lender shall be required to pay to the Swingline Lender interest on the
principal amount of such participation purchased for each day from and
including the day upon which the 


 


30





















 


Swingline Mandatory
Borrowing would otherwise have occurred to but excluding the date of payment
for such participation, at the rate equal to, if paid within two (2)
Business Days of the date of the Swingline Mandatory Borrowing, the Federal
Funds Effective Rate, and thereafter at a rate equal to the Alternate Base
Rate.


 


(c)                                  Interest on Swingline Loans.  Subject to the
provisions of Section 2.10, Swingline Loans shall bear interest at a per
annum rate equal to the Alternate Base Rate plus the Applicable
Percentage for Revolving Loans that are Alternate Base Rate Loans.  Interest on Swingline Loans shall be payable
in arrears on each Interest Payment Date.


 


(d)                                 Swingline Note.  The Swingline Loans shall be
evidenced by a duly executed promissory note of the Company to the Swingline
Lender in the original amount of the Swingline Committed Amount and
substantially in the form of Schedule 2.3(d).


 


Section 2.4                                   Japanese/Multicurrency
Revolving Loans.


 


(a)                                  Japanese/Multicurrency Revolving Commitment.  During the
Commitment Period, subject to the terms and conditions hereof, each
Japanese/Multicurrency Revolving Lender severally agrees to make revolving
credit loans (i) in Dollars and in Foreign Currencies to the Company and
(ii) in Japanese Yen and in Dollars to the Japanese Borrower from time to
time in an aggregate principal Dollar Amount of up to FOUR HUNDRED
MILLION DOLLARS ($400,000,000) (as such aggregate maximum
amount may be reduced from time to time as provided in Section 2.7, the “Aggregate
Japanese/Multicurrency Revolving Committed Amount”) for the purposes
hereinafter set forth; provided, however, that (i) with
regard to each Japanese/Multicurrency Revolving Lender individually, the
aggregate principal Dollar Amount (determined as of the most recent Revaluation
Date) of such Japanese/Multicurrency Revolving Lender’s Japanese/Multicurrency
Revolving Commitment Percentage of outstanding Japanese/Multicurrency Revolving
Loans (including, without limitation, Fronted Foreign Currency Loans) shall not
exceed such Japanese/Multicurrency Revolving Lender’s Japanese/Multicurrency
Revolving Committed Amount and (ii) with regard to the Japanese/Multicurrency
Revolving Lenders collectively, the aggregate principal Dollar Amount
(determined as of the most recent Revaluation Date) of the outstanding
Japanese/Multicurrency Revolving Loans shall not exceed the Aggregate
Japanese/Multicurrency Revolving Committed Amount.  Japanese/Multicurrency Revolving Loans may
consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a combination
thereof, as the applicable Borrower may request, and may be repaid and reborrowed
in accordance with the provisions hereof; provided, however,
(A) Japanese/Multicurrency Revolving Loans denominated in Foreign
Currencies shall consist solely of LIBOR Rate Loans and
(B) Japanese/Multicurrency Revolving Loans made on the Closing Date or on
any of the three Business Days following the Closing Date may only consist of
Alternate Base Rate Loans unless the applicable Borrower executes a funding
indemnity letter in form and substance satisfactory to the Administrative
Agent.  LIBOR Rate Loans shall be made by
each Lender at its LIBOR Lending Office and Alternate Base Rate Loans at its
Domestic Lending Office.


 


31





















 


(b)                                 Japanese/Multicurrency Revolving Loan Borrowings.


 


(i)                                     Notice of Borrowing.  The Company or the Japanese
Borrower may request a Japanese/Multicurrency Revolving Loan borrowing by
written notice (or telephone notice promptly confirmed in writing, which
confirmation may be by fax) to the Administrative Agent not later than
12:00 Noon (Charlotte, North Carolina time) on the Business Day prior
to the date of requested borrowing in the case of Alternate Base Rate Loans
denominated in Dollars, on the third Business Day prior to the date of the
requested borrowing in the case of LIBOR Rate Loans denominated in Dollars, and
on the fourth Business Day prior to the date of the requested borrowing in the
case of all LIBOR Rate Loans denominated in Foreign Currencies.  Each such request for borrowing shall be
irrevocable and shall specify (A) the applicable Borrower, (B) that a
Japanese/Multicurrency Revolving Loan is requested, (C) the date of the
requested borrowing (which shall be a Business Day), (D) the currency and
the aggregate principal amount to be borrowed and (E) whether the
borrowing shall be comprised of Alternate Base Rate Loans, LIBOR Rate Loans or
a combination thereof, and if LIBOR Rate Loans are requested, the Interest
Period(s) and currency therefor.  A form
of Notice of Borrowing (a “Notice of Borrowing”) is attached as Schedule 2.1(b)(i).  If the applicable Borrower shall fail to
specify in any such Notice of Borrowing (I) an applicable Interest Period
in the case of a LIBOR Rate Loan, then such notice shall be deemed to be a
request for an Interest Period of one month, (II) the type of
Japanese/Multicurrency Revolving Loan requested, then such notice shall be
deemed to be a request for an Alternate Base Rate Loan hereunder (unless such
notice indicates that the requested borrowing is to be made in a Foreign
Currency, in which case, such notice shall be deemed to be a request for a
LIBOR Rate Loan hereunder), or (III) the currency of the
Japanese/Multicurrency Revolving Loan requested, (x) if such request is
made by the Company, then such notice shall be deemed to be a request for a
Japanese/Multicurrency Revolving Loan denominated in Dollars and (y) if
such request is made by the Japanese Borrower, then such notice shall be deemed
to be a request for a Japanese/Multicurrency Revolving Loan denominated in
Japanese Yen.  The Administrative Agent
shall give notice to each Japanese/Multicurrency Lender promptly upon receipt
of each Notice of Borrowing, the contents thereof and each such
Japanese/Multicurrency Lender’s share thereof.


 


(ii)                                  Minimum Amounts.  Each Japanese/Multicurrency
Revolving Loan which is an Alternate Base Rate Loan shall be in a minimum
aggregate Dollar Amount of $1,000,000 and in integral multiples of $500,000 in
excess thereof (or the remaining amount of the Aggregate Japanese/Multicurrency
Revolving Committed Amount, if less). 
Each Japanese/Multicurrency Revolving Loan which is a LIBOR Rate Loan
shall be in a minimum aggregate Dollar Amount of $1,000,000 and in integral
multiples of $500,000 in excess thereof (or the remaining amount of the
Aggregate Japanese/Multicurrency Revolving Committed Amount, if less).


 


(iii)                               Advances.  Each Japanese/Multicurrency Revolving Lender
(or in the case of any Foreign Currency Participant, the Foreign Currency
Fronting Bank, on such Foreign Currency Participant’s behalf as set forth
below) will make its 


 


32





















 


Japanese/Multicurrency
Revolving Commitment Percentage of each Japanese/Multicurrency Revolving Loan
borrowing available to the Administrative Agent, for the account of the
applicable Borrower, in Dollars or the applicable Foreign Currency and in funds
immediately available to the Administrative Agent, at the Administrative
Agent’s Office by (A) 12:00 Noon on the date specified in the applicable
Notice of Borrowing in the case of any Japanese/Multicurrency Revolving Loan
denominated in Dollars and (B) the Applicable Time specified by the
Administrative Agent in the case of any Japanese/Multicurrency Revolving Loan
denominated in a Foreign Currency.  With
respect to any Foreign Currency Participant, the Foreign Currency Fronting Bank
will make such Foreign Currency Participant’s Revolving Commitment Percentage
of each applicable Foreign Currency Loan on behalf of such Foreign Currency
Participant for the account of the applicable Borrower, in the applicable
Foreign Currency (each such Foreign Currency Loan a “Fronted Foreign
Currency Loan”).  Such borrowing will
then be made available promptly, but no later than 3:00 p.m. on the date
specified in the applicable Notice of Borrowing to the applicable Borrower by
the Administrative Agent by crediting the account of the applicable Borrower on
the books of the Administrative Agent’s Office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent.


 


(c)                                  Repayment.  The principal amount of all
Japanese/Multicurrency Revolving Loans shall be due and payable in full on the
Maturity Date, unless accelerated sooner pursuant to Section 7.2.


 


(d)                                 Interest.  Subject to the provisions of Section 2.10,
Japanese/Multicurrency Revolving Loans shall bear interest as follows:


 


(i)                                     Alternate Base Rate Loans.  During such
periods as Japanese/Multicurrency Revolving Loans shall be comprised of
Alternate Base Rate Loans, each such Alternate Base Rate Loan shall bear
interest at a per annum rate equal to the sum of the Alternate Base Rate plus
the Applicable Percentage; and


 


(ii)                                  LIBOR Rate Loans.  During such periods as
Japanese/Multicurrency Revolving Loans shall be comprised of LIBOR Rate Loans,
each such LIBOR Rate Loan shall bear interest at a per annum rate equal to the
sum of the LIBOR Rate plus the Applicable Percentage.


 


Interest on
Japanese/Multicurrency Revolving Loans shall be payable in arrears on each
Interest Payment Date.


 


(e)                                  Japanese/Multicurrency Revolving Notes.  Each
Japanese/Multicurrency Revolving Lender’s Japanese/Multicurrency Revolving
Committed Amount shall be evidenced by a duly executed promissory note of each
of the Company and the Japanese Borrower to such Japanese/Multicurrency Revolving
Lender in substantially the form of Schedule 2.4(e).


 


33





















 


(f)                                    Participations of Foreign Currency Loans.  At the time
that the Foreign Currency Fronting Bank makes a Fronted Foreign Currency Loan
under the Japanese/Multicurrency Revolving Commitment, each Foreign Currency
Participant thereof shall be deemed, without any further action by any Person,
to have purchased from the Foreign Currency Fronting Bank an unfunded
participation, without recourse to or warranty of the Foreign Currency Fronting
Bank, in such Fronted Foreign Currency Loan in an amount equal to such Foreign
Currency Participant’s Japanese/Multicurrency Revolving Commitment Percentage
of such Loan and shall be obligated to fund such participation at the time and
in the manner provided below.  In the
event that the applicable Borrower shall fail to timely repay any Foreign
Currency Loan under the Japanese/Multicurrency Revolving Commitment, and in any
event upon (i) the request of the Foreign Currency Fronting Bank and (ii) the
occurrence and during the continuance of a Default or an Event of Default, each
applicable Foreign Currency Participant shall fund its participation in such
Loan (regardless of whether the conditions precedent thereto set forth in Section 4.2
are then satisfied, whether or not the Company or a Foreign Borrower has then
submitted a Notice of Borrowing and whether or not the Commitments are then in
effect, any Event of Default exists or all the Loans have been accelerated) by
paying to the Foreign Currency Fronting Bank, at the address provided in Section 9.2
or at such other address as the Foreign Currency Fronting Bank may designate,
the Dollar Amount (as determined as of the date such participation is to be
funded) its participation of such Foreign Currency Loan.  Upon the funding of its
Japanese/Multicurrency Revolving Commitment Percentage of such Foreign Currency
Loan, a Foreign Currency Participant shall have a Japanese/Multicurrency
Revolving Loan denoted in Dollars equal to the Dollar Amount funded.  If such amount is not in fact made available
to the Foreign Currency Fronting Bank by any Foreign Currency Participant, the
Foreign Currency Fronting Bank shall be entitled to recover such amount on
demand from such Foreign Currency Participant, together with accrued interest
thereon for each day from the date of demand thereof, at the Federal Funds Rate
if paid within two Business Days of the date of demand thereof, and thereafter
at a rate equal to the Alternate Base Rate. 
If such Foreign Currency Participant does not pay such amount forthwith
upon the Foreign Currency Fronting Bank’s demand therefor, and until such time
as such Foreign Currency Participant makes the required payment, the Foreign
Currency Fronting Bank shall be deemed to continue to have outstanding Foreign
Currency Loans in the amount of such unpaid participation obligation for all
purposes of the Credit Documents other than those provisions requiring the
other applicable Foreign Currency Participants to purchase a participation
therein.  From the date on which the
Foreign Currency Fronting Bank makes any Fronted Foreign Currency Loan on
behalf of any Foreign Currency Participant until the date on which such Foreign
Currency Participant funds its Japanese/Multicurrency Revolving Commitment
Percentage of any such Foreign Currency Loans to the Foreign Currency Fronting
Bank in the manner set forth above, the interest payable on such Foreign
Currency Loan as set forth in Section 2.4(d) shall be allocated among the
Foreign Currency Fronting Bank and each applicable Foreign Currency Participant
such that each applicable Foreign Currency Participant shall receive in
Dollars, the Dollar Amount of the Applicable Percentage on such Foreign
Currency Loan and the Foreign Currency Fronting Bank shall receive the
remainder of the interest paid by the Company pursuant to Section 2.4(d).


 


34





















 


Section 2.5                                   Swiss/Multicurrency
Revolving Loans.


 


(a)                                  Swiss/Multicurrency Revolving Commitment.  During the
Commitment Period, subject to the terms and conditions hereof, each
Swiss/Multicurrency Revolving Lender severally agrees to make revolving credit
loans (i) in Dollars and in Foreign Currencies to the Company and
(ii) in Swiss Francs and in Dollars to the Swiss Borrower from time to
time in an aggregate principal Dollar Amount of up to ONE HUNDRED
MILLION DOLLARS ($100,000,000) (as such aggregate maximum
amount may be reduced from time to time as provided in Section 2.7, the “Aggregate
Swiss/Multicurrency Revolving Committed Amount”) for the purposes
hereinafter set forth; provided, however, that (i) the
aggregate Dollar Amount of revolving credit loans made to the Company and the
Swiss Borrower in all Foreign Currencies shall not at any time exceed
$100,000,000, (ii) with regard to each Swiss/Multicurrency Revolving
Lender individually, the aggregate principal Dollar Amount (determined as of
the most recent Revaluation Date) of such Swiss/Multicurrency Revolving
Lender’s Swiss/Multicurrency Revolving Commitment Percentage of outstanding
Swiss/Multicurrency Revolving Loans (including, without limitation, Fronted
Foreign Currency Loans) shall not exceed such Swiss/Multicurrency Revolving
Lender’s Swiss/Multicurrency Revolving Committed Amount and (iii) with
regard to the Swiss/Multicurrency Revolving Lenders collectively, the aggregate
principal Dollar Amount (determined as of the most recent Revaluation Date) of
the outstanding Swiss/Multicurrency Revolving Loans shall not exceed the
Aggregate Swiss/Multicurrency Revolving Committed Amount.  Swiss/Multicurrency Revolving Loans may
consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a combination
thereof, as the applicable Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof; provided, however,
(A) Swiss/Multicurrency Revolving Loans denominated in Foreign Currencies
shall consist solely of LIBOR Rate Loans and (B) Swiss/Multicurrency
Revolving Loans made on the Closing Date or on any of the three Business Days
following the Closing Date may only consist of Alternate Base Rate Loans unless
the applicable Borrower executes a funding indemnity letter in form and
substance satisfactory to the Administrative Agent.  LIBOR Rate Loans shall be made by each Lender
at its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic
Lending Office.


 


(b)                                 Swiss/Multicurrency Revolving Loan Borrowings.


 


(i)                                     Notice of Borrowing.  The Company or the Swiss Borrower
may request a Swiss/Multicurrency Revolving Loan borrowing by written notice
(or telephone notice promptly confirmed in writing which confirmation may be by
fax) to the Administrative Agent not later than 12:00 Noon (Charlotte,
North Carolina time) on the Business Day prior to the date of requested
borrowing in the case of Alternate Base Rate Loans denominated in Dollars, on
the third Business Day prior to the date of the requested borrowing in the case
of LIBOR Rate Loans denominated in Dollars, and on the fourth Business Day
prior to the date of the requested borrowing in the case of all LIBOR Rate
Loans denominated in Foreign Currencies. 
Each such request for borrowing shall be irrevocable and shall specify
(A) the applicable Borrower, (B) that a Swiss/Multicurrency Revolving
Loan is requested, (C) the date of the requested borrowing (which shall be
a Business Day), (D) the currency and the aggregate principal amount to be
borrowed and 


 


35





















 


(E) whether the
borrowing shall be comprised of Alternate Base Rate Loans, LIBOR Rate Loans or
a combination thereof, and if LIBOR Rate Loans are requested, the Interest
Period(s) and currency therefor.  A form
of Notice of Borrowing (a “Notice of Borrowing”) is attached as Schedule 2.1(b)(i).  If the applicable Borrower shall fail to
specify in any such Notice of Borrowing (I) an applicable Interest Period
in the case of a LIBOR Rate Loan, then such notice shall be deemed to be a
request for an Interest Period of one month, (II) the type of Swiss/Multicurrency
Revolving Loan requested, then such notice shall be deemed to be a request for
an Alternate Base Rate Loan hereunder (unless such notice indicates that the
requested borrowing is to be made in a Foreign Currency, in which case, such
notice shall be deemed to be a request for a LIBOR Rate Loan hereunder), or
(III) the currency of the Swiss/Multicurrency Revolving Loan requested,
(x) if such request is made by the Company, then such notice shall be
deemed to be a request for a Swiss/Multicurrency Revolving Loan denominated in
Dollars and (y) if such request is made by the Swiss Borrower, then such
notice shall be deemed to be a request for a Swiss/Multicurrency Revolving Loan
denominated in Swiss Francs.  The
Administrative Agent shall give notice to each Swiss/Multicurrency Revolving
Lender promptly upon receipt of each Notice of Borrowing, the contents thereof
and each such Swiss/Multicurrency Revolving Lender’s share thereof.


 


(ii)                                  Minimum Amounts.  Each Swiss/Multicurrency Revolving
Loan which is an Alternate Base Rate Loan shall be in a minimum aggregate
Dollar Amount of $1,000,000 and in integral multiples of $500,000 in excess
thereof (or the remaining amount of the Aggregate Swiss/Multicurrency Revolving
Committed Amount, if less).  Each Swiss/Multicurrency
Revolving Loan which is a LIBOR Rate Loan shall be in a minimum aggregate
Dollar Amount of $1,000,000 and in integral multiples of $500,000 in excess
thereof (or the remaining amount of the Aggregate Swiss/Multicurrency Revolving
Committed Amount, if less).


 


(iii)                               Advances.  Each Swiss/Multicurrency Revolving Lender (or
in the case of any Foreign Currency Participant, the Foreign Currency Fronting
Bank, on such Foreign Currency Participant’s behalf as set forth below) will
make its Swiss/Multicurrency Revolving Commitment Percentage of each
Swiss/Multicurrency Revolving Loan borrowing available to the Administrative
Agent, for the account of the applicable Borrower, in Dollars or the applicable
Foreign Currency and in funds immediately available to the Administrative
Agent, at the Administrative Agent’s Office by (A) 12:00 Noon on the date
specified in the applicable Notice of Borrowing in the case of any
Swiss/Multicurrency Revolving Loan denominated in Dollars and (B) the
Applicable Time specified by the Administrative Agent in the case of any
Swiss/Multicurrency Revolving Loan denominated in a Foreign Currency.  With respect to any Foreign Currency
Participant, the Foreign Currency Fronting Bank will make such Foreign Currency
Participant’s Revolving Commitment Percentage of each applicable Foreign
Currency Loan on behalf of such Foreign Currency Participant for the account of
the applicable Borrower, in the applicable Foreign Currency (each such Foreign
Currency Loan a “Fronted Foreign Currency Loan”).  Such borrowing will then be made available
promptly, but no later than 3:00 p.m. on the date specified in the applicable
Notice of Borrowing to the applicable Borrower by the Administrative Agent by
crediting the 


 


36





















 


account
of the applicable Borrower on the books of the Administrative Agent’s Office
with the aggregate of the amounts made available to the Administrative Agent by
the Swiss/Multicurrency Revolving Lenders and in like funds as received by the
Administrative Agent.


 


(c)                                  Repayment.  The principal amount of all
Swiss/Multicurrency Revolving Loans shall be due and payable in full on the
Maturity Date, unless accelerated sooner pursuant to Section 7.2.


 


(d)                                 Interest.  Subject to the provisions of Section 2.10,
Swiss/Multicurrency Revolving Loans shall bear interest as follows:


 


(i)                                     Alternate Base Rate Loans.  During such
periods as Swiss/Multicurrency Revolving Loans shall be comprised of Alternate
Base Rate Loans, each such Alternate Base Rate Loan shall bear interest at a
per annum rate equal to the sum of the Alternate Base Rate plus the
Applicable Percentage; and


 


(ii)                                  LIBOR Rate Loans.  During such periods as
Swiss/Multicurrency Revolving Loans shall be comprised of LIBOR Rate Loans, each
such LIBOR Rate Loan shall bear interest at a per annum rate equal to the sum
of the LIBOR Rate plus the Applicable Percentage.


 


Interest on
Swiss/Multicurrency Revolving Loans shall be payable in arrears on each
Interest Payment Date.


 


All payments under this Credit Agreement by
the Swiss Borrower, including, but not limited to, interest as determined in
accordance with this Section 2.5(d), are minimum payments net of any Swiss
withholding tax. The parties do not expect any Swiss withholding tax to arise
in connection with this Credit Agreement; however, if the Swiss Borrower is
required under Swiss law to pay Swiss withholding tax from any amount payable
or paid by the Swiss Borrower (including interest), then (without prejudice to
the obligations in Section 2.21 (a)) (a) the Swiss Borrower shall increase
such interest payment by paying such additional amounts as may be necessary to
ensure that the net amount received by the relevant Lender after deducting the
amount of such Swiss withholding tax is equal to the full amount which the
relevant Lender would have received had payments not been subject to such Swiss
withholding tax, (b) the withholding tax shall be calculated on the increased
interest rate, and (c) the Swiss Borrower shall provide the documents and
information required for the purposes of applying for any refund of Swiss
withholding tax.


 


(e)                                  Swiss/Multicurrency Revolving Notes.  Each
Swiss/Multicurrency Revolving Lender’s Swiss/Multicurrency Revolving Committed
Amount shall be evidenced by a duly executed promissory note of each of the
Company and the Swiss Borrower to such Swiss/Multicurrency Revolving Lender in
substantially the form of Schedule 2.5(e).


 


(f)                                    Participations of Foreign Currency Loans.  At the time
that the Foreign Currency Fronting Bank makes a Fronted Foreign Currency Loan
under the Swiss/Multicurrency Revolving 


 


37





















 


Commitment, each Foreign Currency Participant
thereof shall be deemed, without any further action by any Person, to have
purchased from the Foreign Currency Fronting Bank an unfunded participation,
without recourse to or warranty of the Foreign Currency Fronting Bank, in such
Fronted Foreign Currency Loan in an amount equal to such Foreign Currency
Participant’s Swiss/Multicurrency Revolving Commitment Percentage of such Loan
and shall be obligated to fund such participation at the time and in the manner
provided below.  In the event that the
applicable Borrower shall fail to timely repay any Foreign Currency Loan under
the Swiss/Multicurrency Revolving Commitment, and in any event upon (i) the
request of the Foreign Currency Fronting Bank and (ii) the occurrence and
during the continuance of a Default or an Event of Default, each applicable
Foreign Currency Participant shall fund its participation in such Loan
(regardless of whether the conditions precedent thereto set forth in Section 4.2
are then satisfied, whether or not the Company or a Foreign Borrower has then
submitted a Notice of Borrowing and whether or not the Commitments are then in
effect, any Event of Default exists or all the Loans have been accelerated) by
paying to the Foreign Currency Fronting Bank, at the address provided in Section 9.2
or at such other address as the Foreign Currency Fronting Bank may designate,
the Dollar Amount (as determined as of the date such participation is to be
funded) its participation of such Foreign Currency Loan.  Upon the funding of its Swiss/Multicurrency
Revolving Commitment Percentage of such Foreign Currency Loan, a Foreign
Currency Participant shall have a Swiss/Multicurrency Revolving Loan denoted in
Dollars equal to the U.S. Dollar amount funded. 
If such amount is not in fact made available to the Foreign Currency
Fronting Bank by any Foreign Currency Participant, the Foreign Currency
Fronting Bank shall be entitled to recover such amount on demand from such
Foreign Currency Participant, together with accrued interest thereon for each
day from the date of demand thereof, at the Federal Funds Rate if paid within
two Business Days of the date of demand thereof, and thereafter at a rate equal
to the Base Rate.  If such Foreign
Currency Participant does not pay such amount forthwith upon the Foreign
Currency Fronting Bank’s demand therefor, and until such time as such Foreign
Currency Participant makes the required payment, the Foreign Currency Fronting
Bank shall be deemed to continue to have outstanding Foreign Currency Loans in
the amount of such unpaid participation obligation for all purposes of the
Credit Documents other than those provisions requiring the other applicable
Foreign Currency Participants to purchase a participation therein.  From the date on which the Foreign Currency
Fronting Bank makes any Fronted Foreign Currency Loan on behalf of any Foreign
Currency Participant until the date on which such Foreign Currency Participant
funds its Swiss/Multicurrency Revolving Commitment Percentage of any such
Foreign Currency Loans to the Foreign Currency Fronting Bank in the manner set
forth above, the interest payable on such Foreign Currency Loan as set forth in
Section 2.5(d) shall be allocated among the Foreign Currency Fronting Bank
and each applicable Foreign Currency Participant such that each applicable
Foreign Currency Participant shall receive in Dollars, the Dollar Amount of the
Applicable Percentage on such Foreign Currency Loan and the Foreign Currency
Fronting Bank shall receive the remainder of the interest paid by the Company
pursuant to Section 2.5(d).


 


Section 2.6                                   Fees.


 


(a)                                  Commitment Fees.


 


(i)
In consideration of the U.S. Revolving Commitment, the Company agrees to pay to
the Administrative Agent for the ratable benefit of the U.S. Revolving Lenders
a 


 


38





















 


commitment fee (the “U.S.
Commitment Fee”) in an amount equal to the Applicable Percentage per annum
on the average daily unused amount of the Aggregate U.S. Revolving Committed
Amount.  For purposes of computation of
the U.S. Commitment Fee, LOC Obligations shall be considered usage of the
Aggregate U.S. Revolving Committed Amount but Swingline Loans shall not be
considered usage of the Aggregate U.S. Revolving Committed Amount;


 


(ii)                                  In consideration of the Japanese/Multicurrency
Revolving Commitment, the Company and the Japanese Borrower jointly and
severally agree to pay to the Administrative Agent for the ratable benefit of
the Japanese/Multicurrency Revolving Lenders a commitment fee (the “Japanese/Multicurrency
Commitment Fee”) in an amount equal to the Applicable Percentage per annum
on the average daily unused amount of the Aggregate Japanese/Multicurrency
Revolving Committed Amount; and


 


(iii)                               In consideration of the Swiss/Multicurrency Revolving
Commitment, the Company and the Swiss Borrower jointly and severally agree to
pay to the Administrative Agent for the ratable benefit of the
Swiss/Multicurrency Lenders a commitment fee (the “Swiss/Multicurrency
Commitment Fee”) in an amount equal to the Applicable Percentage per annum
on the average daily unused amount of the Aggregate Swiss /Multicurrency
Revolving Committed Amount.


 


Each of the U.S.
Commitment Fee, the Japanese/Multicurrency Commitment Fee and the
Swiss/Multicurrency Commitment Fee shall be payable quarterly in arrears on the
last Business Day of each calendar quarter.


 


(b)                                 Letter of Credit Fees.  In consideration of the LOC
Commitments, the Company agrees to pay to the Issuing Lender for account of the
U.S. Revolving Lenders a fee (the “Letter of Credit Fee”) equal to the
Applicable Percentage per annum on the average daily maximum amount available
to be drawn under each such Letter of Credit from the date of issuance to the
date of expiration.  In addition to such
Letter of Credit Fee, the Issuing Lender may charge, and retain for its own
account without sharing by the other Lenders, an additional facing fee (the “Letter
of Credit Facing Fee”) of one-eighth of one percent (.125%) per annum
on the average daily maximum amount available to be drawn under each such
Letter of Credit issued by it.  The
Issuing Lender shall promptly pay over to the Administrative Agent for the
ratable benefit of the U.S. Revolving Lenders (including the Issuing Lender)
the Letter of Credit Fee.  The Letter of
Credit Fee shall be payable quarterly in arrears on the last Business Day of
each calendar quarter.


 


(c)                                  Issuing Lender Fees.  In addition to the Letter of
Credit Fees payable pursuant to subsection (b) hereof, the Company shall
pay to the Issuing Lender for its own account without sharing by the other
Lenders the reasonable and customary charges from time to time of the Issuing
Lender with respect to the amendment, transfer, administration, cancellation
and conversion of, and drawings under, such Letters of Credit (collectively,
the “Issuing Lender Fees”).


 


(d)                                 Administrative Fee.  The Company agrees to pay to the
Administrative Agent the annual administrative fee as described in the Fee
Letter.


 


39





















 


Section 2.7                                   Commitment
Reductions.


 


(a)                                  Voluntary Reductions.  The Company shall have the right
to terminate or permanently reduce the unused portion of the Aggregate U.S.
Revolving Committed Amount, the Aggregate Japanese/Multicurrency Revolving
Committed Amount and/or the Aggregate Swiss/Multicurrency Revolving Committed
Amount at any time or from time to time upon not less than five Business Days’
prior notice to the Administrative Agent (which shall notify the Lenders
thereof as soon as practicable) of each such termination or reduction, which
notice shall specify the effective date thereof and the amount of any such
reduction, which shall be in a minimum Dollar Amount of $5,000,000 or a whole
multiple of $1,000,000 (or the remaining amount of the Commitment, if less) in
excess thereof and shall be irrevocable and effective upon receipt by the
Administrative Agent, provided that no such reduction or termination of
(i) the Aggregate U.S. Revolving Committed Amount shall be permitted if after
giving effect thereto, and to any prepayments of the Loans made on the
effective date thereof, the sum of the Dollar Amount of the outstanding U.S.
Revolving Loans plus outstanding Swingline Loans plus LOC
Obligations would exceed the Aggregate U.S. Revolving Committed Amount, (ii)
the Aggregate Japanese/Multicurrency Revolving Committed Amount shall be
permitted if after giving effect thereto, and to the prepayments of the Loans
made on the effective date thereof, the sum of the Dollar Amount of the
outstanding Japanese/Multicurrency Revolving Loans would exceed the Aggregate
Japanese/Multicurrency Revolving Committed Amount and (iii) the Aggregate
Swiss/Multicurrency Revolving Committed Amount shall be permitted if after
giving effect thereto, and to any prepayments of the Loans made on the
effective date thereof, the sum of the Dollar Amount of outstanding
Swiss/Multicurrency Revolving Loans would exceed the Aggregate
Swiss/Multicurrency Revolving Committed Amount.


 


(b)                                 Maturity Date.  The Commitments shall automatically terminate
on the Maturity Date.


 


Section 2.8                                   Prepayments.


 


(a)                                  Optional Prepayments.  The Borrowers shall have the right
to prepay Loans in whole or in part from time to time; provided, however,
that each partial prepayment of a Revolving Loan shall be in a minimum
aggregate principal Dollar Amount of $1,000,000 and
integral multiples of $250,000 in excess thereof,
and each partial prepayment of a Swingline Loan shall be in a minimum principal
amount of $100,000 and integral multiples of $100,000 in excess thereof.  The applicable Borrower shall give three
Business Days’ irrevocable notice in the case of LIBOR Rate Loans and same-day
irrevocable notice on any Business Day in the case of Alternate Base Rate
Loans, to the Administrative Agent (which shall notify the Lenders thereof as
soon as practicable).  Prepayments shall
be applied first to Alternate Base Rate Loans and then to LIBOR Rate Loans in
direct order of Interest Period maturities. 
All prepayments under this Section 2.8(a) shall be subject to Section 2.20,
but otherwise without premium or penalty. 
Interest on the principal amount prepaid shall be payable on the next
occurring Interest Payment Date that would have occurred had such loan not been
prepaid or, at the request of the Administrative Agent, interest on the
principal amount prepaid shall be payable on any date that a prepayment is made
hereunder through the date of prepayment. 
Amounts prepaid on the 


 


40





















 


Revolving Loans and the Swingline Loans may
be reborrowed in accordance with the terms hereof.


 


(b)                                 Mandatory Prepayments.  If at any time after the Closing
Date, the aggregate principal Dollar Amount (determined as of the most recent
Revaluation Date) of (i) the outstanding U.S. Revolving Loans plus
outstanding Swingline Loans plus LOC Obligations shall exceed the
Aggregate U.S. Revolving Committed Amount, (ii) the sum of the outstanding
Japanese/Multicurrency Revolving Loans shall exceed 105% of the Aggregate
Japanese/Multicurrency Revolving Committed Amount or (iii) the sum of the
outstanding Swiss/Multicurrency Revolving Loans shall exceed 105% of the
Aggregate Swiss/Multicurrency Revolving Committed Amount, the applicable
Borrowers immediately shall prepay the Loans and cash collateralize the LOC
Obligations, as applicable, in an amount sufficient to eliminate such excess.


 


Such prepayment shall
be applied, to the respective Revolving Loans and then (after all Revolving
Loans have been repaid) to a cash collateral account in respect of LOC
Obligations.  Within the parameters of
the applications set forth above, prepayments shall be applied first to
Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of
Interest Period maturities.  All
prepayments under this Section 2.8(b) shall be subject to Section 2.20
and be accompanied by interest on the principal amount prepaid through the date
of prepayment.


 


(c)                                  Hedging Obligations Unaffected.  Any repayment
or prepayment made pursuant to this Section 2.8 shall not affect the
Borrowers’ obligation to continue to make payments under any Hedging Agreement,
which shall remain in full force and effect notwithstanding such repayment or
prepayment, subject to the terms of such Hedging Agreement.


 


Section 2.9                                   Minimum Principal
Amount of Tranches.


 


All borrowings,
payments and prepayments in respect of Revolving Loans shall be in such amounts
and be made pursuant to such elections so that after giving effect thereto the
aggregate principal Dollar Amount (determined as of the most recent Revaluation
Date) of the Revolving Loans comprising any Tranche shall be (a) with
respect to Alternate Base Rate Loans, $1,000,000 or a whole multiple of
$500,000 in excess thereof, and (ii) with respect to LIBOR Rate Loans,
$1,000,000 or a whole multiple of $500,000 in excess thereof.


 


No more than fifteen
(15) LIBOR Rate Loans may be in effect at
any time.  For purposes hereof, LIBOR
Rate Loans with different Interest Periods shall be considered as separate
LIBOR Rate Loans, even if they shall begin on the same date and have the same
duration, although borrowings, extensions and conversions may, in accordance
with the provisions hereof, be combined at the end of existing Interest Periods
to constitute a new LIBOR Rate Loan with a single Interest Period.


 


Section 2.10                            Default Rate.


 


Upon the occurrence,
and during the continuance, of an Event of Default, at the discretion of the
Required Lenders, the principal of and, to the extent permitted by law,
interest on the Loans and 


 


41





















 


any other amounts owing hereunder or under
the other Credit Documents shall bear interest, payable on demand, at a per
annum rate 2% greater than the rate which would otherwise be applicable (or if
no rate is applicable, whether in respect of interest, fees or other amounts,
then the Alternate Base Rate plus the Applicable Percentage plus 2%).


 


Section 2.11                            Conversion Options.


 


(a)                                  The Borrowers may, in the case of Revolving Loans,
elect from time to time to convert Alternate Base Rate Loans to LIBOR Rate
Loans, by giving the Administrative Agent at least three Business Days’ prior
irrevocable written notice of such election. 
A form of Notice of Conversion/Extension is attached as Schedule 2.11.  If the date upon which an Alternate Base Rate
Loan is to be converted to a LIBOR Rate Loan is not a Business Day, then such
conversion shall be made on the next succeeding Business Day and during the
period from such last day of an Interest Period to such succeeding Business Day
such Loan shall bear interest as if it were an Alternate Base Rate Loan.  All or any part of outstanding Alternate Base
Rate Loans may be converted as provided herein, provided that
(i) no Loan may be converted into a LIBOR Rate Loan when any Default or
Event of Default has occurred and is continuing and (ii) partial
conversions shall be in an aggregate principal Dollar Amount of $1,000,000 or a
whole multiple of $500,000 in excess
thereof.


 


(b)                                 Any LIBOR Rate Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
applicable Borrower with the notice provisions contained in Section 2.11(a);
provided, that no LIBOR Rate Loan may be continued as such when any
Default or Event of Default has occurred and is continuing, in which case such
Loan shall be automatically converted to an Alternate Base Rate Loan at the end
of the applicable Interest Period with respect thereto.  If the applicable Borrower shall fail to give
timely notice of an election to continue a LIBOR Rate Loan, or the continuation
of LIBOR Rate Loans is not permitted hereunder, such LIBOR Rate Loans shall be
automatically converted to Alternate Base Rate Loans at the end of the
applicable Interest Period with respect thereto.


 


(c)                                  Unless otherwise agreed to by the Required Lenders,
upon the occurrence and during the continuance of any Default or Event of
Default, all Foreign Currency Loans then outstanding shall be redenominated
into Dollars (based on the Dollar Amount of such Foreign Currency Loans on the
date of redenomination) on the last day of the then current Interest Periods of
such Foreign Currency Loans; provided that in each case the Company
shall be liable for any currency exchange loss related to such payments and
shall promptly pay to each Lender upon receipt of notice thereof by the Company
from such Lender the amount of any such loss incurred by such Lender.


 


Section 2.12                            Computation of Interest
and Fees.


 


(a)                                  Interest payable hereunder with respect to Alternate
Base Rate Loans and Foreign Currency Loans denominated in Pounds Sterling shall
be calculated on the basis of a year of 365 days (or 366 days, as
applicable) for the actual days elapsed. 
All other fees, interest and all other amounts payable hereunder shall
be calculated on the basis of a 360 day year for the actual days elapsed.  The Administrative Agent shall as soon as
practicable notify the Borrowers and 


 


42





















 


the Lenders of each
determination of a LIBOR Rate on the Business Day of the determination
thereof.  Any change in the interest rate
on a Loan resulting from a change in the Alternate Base Rate shall become
effective as of the opening of business on the day on which such change in the
Alternate Base Rate shall become effective. 
The Administrative Agent shall as soon as practicable notify the
Borrowers and the Lenders of the effective date and the amount of each such
change.


 


(b)                                 Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Credit Agreement shall
be conclusive and binding on the Borrowers and the Lenders in the absence of
manifest error.  The Administrative Agent
shall, at the request of the Company or any Lender, deliver to the Company or
such Lender a statement showing the computations used by the Administrative
Agent in determining any interest rate.


 


Section 2.13                            Computations, Pro Rata
Treatment and Payments.


 


(a)                                  Each payment on account of an amount due from a
Borrower hereunder or under any other Credit Document shall be made by such
Borrower to the Administrative Agent for the pro rata
account of the Lenders entitled to receive such payment as provided herein in
the currency in which such amount is denominated and in such funds as are
customary at the place and time of payment for the settlement of international
payments in such currency.  Without
limiting the terms of the preceding sentence, accrued interest on any Loans
denominated in a Foreign Currency shall be payable in the same Foreign Currency
as such Loan.  Upon request, the
Administrative Agent will give the Borrowers a statement showing the
computation used in calculating such amount, which statement shall be
conclusive in the absence of manifest error. 
The obligation of the Borrowers to make each payment on account of such
amount in the currency in which such amount is denominated shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment, which is expressed in or converted into any other currency, except to
the extent such tender or recovery shall result in the actual receipt by the
Administrative Agent of the full amount in the appropriate currency payable
hereunder.  The Borrowers agree that
their obligation to make each payment on account of such amount in the currency
in which such amount is denominated shall be enforceable as an additional or
alternative claim for recovery in such currency of the amount (if any) by which
such actual receipt shall fall short of the full amount of such currency
payable hereunder, and shall not be affected by judgment being obtained for
such amount.


 


(b)                                 Each borrowing of Revolving Loans and any reduction of
the Commitments shall be made pro rata according to the
respective Commitment Percentages of the applicable Lenders.  Each payment under this Credit Agreement or
any Note shall be applied, first, to any fees then due and owing by the
Borrowers pursuant to Section 2.6, second, to interest then due and owing
in respect of the Notes of the Borrowers and, third, to principal then due and
owing hereunder and under the Notes of the Borrowers.  Each payment on account of any fees pursuant
to Section 2.6 shall be made pro rata in accordance
with the respective amounts due and owing (except as to the Letter of Credit
Facing Fee and the Issuing Lender Fees). 
Each optional prepayment of the Loans shall be applied in accordance
with Section 2.8(a) and each mandatory prepayment of the Loans shall be
applied in accordance with Section 2.8(b). 
Payments made pursuant to Section 2.16 shall be applied in
accordance with such section.  All
payments 


 


43





















 


(including prepayments) to be made by a
Borrower on account of principal, interest and fees shall be made without
defense, set-off or counterclaim (except as provided in Section 2.21(b)),
shall be made to the Administrative Agent for the account of the Lenders in
immediately available funds at the Administrative Agent’s Office and
(i) in the case of Loans or other amounts denominated in Dollars, shall be
made in Dollars not later than 12:00 Noon on the date when due and
(ii) in the case of Loans or other amounts denominated in a Foreign
Currency, unless otherwise specified herein, shall be made in such Foreign
Currency not later than the Applicable Time specified by the Administrative
Agent on the date when due.  Any payment
received after the foregoing deadlines shall be deemed received on the next
Business Day.  The Administrative Agent
shall distribute such payments to the Lenders entitled thereto promptly upon
receipt in like funds as received.  If any
payment hereunder (other than payments on the LIBOR Rate Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.  If any payment on a LIBOR
Rate Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.


 


(c)                                  Allocation of Payments After Exercise of Remedies. 
Notwithstanding any other provisions of this Credit Agreement to the
contrary, after the exercise of remedies by the Administrative Agent or the
Lenders pursuant to Section 7.2 (or after the Commitments shall
automatically terminate and the Loans (with accrued interest thereon) and all
other amounts under the Credit Documents (including without limitation the
maximum amount of all contingent liabilities under Letters of Credit) shall
automatically become due and payable in accordance with the terms of such
Section), all amounts collected or received by the Administrative Agent or any
Lender on account of the Borrower Obligations or any other amounts outstanding
under any of the Credit Documents shall be paid over or delivered as follows:


 


FIRST,
to the payment of all reasonable out-of-pocket costs and expenses (including
without limitation reasonable attorneys’ fees) of the Administrative Agent in
connection with enforcing the rights of the Lenders under the Credit Documents;


 


SECOND,
to the payment of any fees owed to the Administrative Agent;


 


THIRD,
to the payment of all reasonable out-of-pocket costs and expenses (including
without limitation, reasonable attorneys’ fees) of each of the Lenders in
connection with enforcing its rights under the Credit Documents or otherwise
with respect to the Borrower Obligations owing to such Lender;


 


FOURTH,
to the payment of all of the Borrower Obligations consisting of accrued fees
and interest;


 


FIFTH,
to the payment of the outstanding principal
amount of the Borrower Obligations and the payment or cash collateralization of
the outstanding LOC Obligations;


 


44





















 


SIXTH,
to all other Borrower Obligations and other obligations which shall have become
due and payable under the Credit Documents or otherwise and not repaid pursuant
to clauses ”FIRST” through “FIFTH” above; and


 


SEVENTH,
to the payment of the surplus, if any, to whoever may be lawfully entitled to
receive such surplus.


 


In carrying out the
foregoing, (i) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category;
(ii) each of the Lenders shall receive an amount equal to its pro rata
share (based on the proportion that the then outstanding Loans and LOC
Obligations held by such Lender bears to the aggregate then outstanding Loans
and LOC Obligations) of amounts available to be applied pursuant to
clauses ”THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to
the extent that any amounts available for distribution pursuant to
clause ”FIFTH” above are attributable to the issued but undrawn amount of
outstanding Letters of Credit, such amounts shall be held by the Administrative
Agent in a cash collateral account and applied (A) first, to reimburse the
Issuing Lender from time to time for any drawings under such Letters of Credit
and (B) then, following the expiration of all Letters of Credit, to all
other obligations of the types described in clauses ”FIFTH” and “SIXTH”
above in the manner provided in this Section 2.13(c).


 


Section 2.14                            Non-Receipt of Funds by
the Administrative Agent.


 


(a)                                  Unless the Administrative Agent shall have been
notified in writing by a Lender prior to the date a Loan is to be made by such
Lender (which notice shall be effective upon receipt) that such Lender does not
intend to make the proceeds of such Loan available to the Administrative Agent,
the Administrative Agent may assume that such Lender has made such proceeds
available to the Administrative Agent on such date, and the Administrative
Agent may in reliance upon such assumption (but shall not be required to) make
available to the applicable Borrower a corresponding amount.  If such corresponding amount is not in fact
made available to the Administrative Agent, the Administrative Agent shall be
able to recover such corresponding amount from such Lender.  If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor,
the Administrative Agent will promptly notify the applicable Borrower, and the
applicable Borrower shall immediately pay such corresponding amount to the
Administrative Agent.  The Administrative
Agent shall also be entitled to recover from the Lender or the applicable
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Administrative Agent to the applicable Borrower to the date such corresponding
amount is recovered by the Administrative Agent at a per annum rate equal to
(i) from the applicable Borrower at the applicable rate for the applicable
borrowing pursuant to the Notice of Borrowing and (ii) from a Lender at
the Federal Funds Effective Rate.


 


(b)                                 Unless the Administrative Agent shall have been
notified in writing by the applicable Borrower, prior to the date on which any
payment is due from any Borrower hereunder (which notice shall be effective
upon receipt) that such Borrower does not intend to make such payment, the
Administrative Agent may assume that such Borrower has made such 


 


45





















 


payment when due, and
the Administrative Agent may in reliance upon such assumption (but shall not be
required to) make available to each Lender on such payment date an amount equal
to the portion of such assumed payment to which such Lender is entitled
hereunder, and if such Borrower has not in fact made such payment to the
Administrative Agent, such Lender shall, on demand, repay to the Administrative
Agent the amount made available to such Lender. 
If such amount is repaid to the Administrative Agent on a date after the
date such amount was made available to such Lender, such Lender shall pay to
the Administrative Agent on demand interest on such amount in respect of each
day from the date such amount was made available by the Administrative Agent to
such Lender to the date such amount is recovered by the Administrative Agent at
a per annum rate equal to the Federal Funds Effective Rate.


 


(c)                                  A certificate of the Administrative Agent submitted to
any Borrower or any Lender with respect to any amount owing under this Section 2.14
shall be conclusive in the absence of manifest error.


 


Section 2.15                            Inability to Determine
Interest Rate.


 


Notwithstanding any
other provision of this Credit Agreement, if (i) the Administrative Agent
shall reasonably determine (which determination shall be conclusive and binding
absent manifest error) that, by reason of circumstances affecting the relevant
market, reasonable and adequate means do not exist for ascertaining LIBOR for
such Interest Period, or (ii) the Required Lenders shall reasonably determine
(which determination shall be conclusive and binding absent manifest error)
that the LIBOR Rate does not adequately and fairly reflect the cost to such
Lenders of funding LIBOR Rate Loans that a Borrower has requested be
outstanding as a LIBOR Tranche during such Interest Period, the Administrative
Agent shall forthwith give telephone notice of such determination, confirmed in
writing, to such Borrower, and the Lenders at least two Business Days prior to
the first day of such Interest Period. 
If such notice is given (a) any Foreign Currency Loans requested to
be made on the first day of such Interest Period shall be made, at the sole
option of the applicable Borrower, in Dollars as Alternate Base Rate Loans or
such request shall be cancelled, (b) any affected LIBOR Rate Loans
requested to be made on the first day of such Interest Period shall be made, at
the sole option of the applicable Borrower, in Dollars as Alternate Base Rate
Loans and (c) any affected Loans that on the first day of such Interest
Period were to have been converted to or continued as LIBOR Rate Loans shall be
converted to or continued, at the sole option of the applicable Borrower, in
Dollars as Alternate Base Rate Loans. 
Until any such notice has been withdrawn by the Administrative Agent, no
further Loans shall be made as, continued as, or converted into, LIBOR Rate
Loans for the Interest Periods so affected.


 


Section 2.16                            Illegality.


 


(a)                                  Notwithstanding any other provision herein, if
(i) the adoption of, or any change in, any Requirement of Law or in the
interpretation or application thereof by the relevant Governmental Authority
shall make it unlawful for any Lender or its LIBOR Lending Office to make or
maintain LIBOR Rate Loans denominated in Dollars or in any Foreign Currency as
contemplated by this Credit Agreement, or (ii) there shall have occurred
any change in national or international financial, political or economic
conditions (including the imposition of or any 


 


46





















 


change in exchange controls) or currency
exchange rates which would make it unlawful or impossible for any Lender to
make Loans denominated in any Foreign Currency to the applicable Borrower, as
contemplated by this Credit Agreement (any such affected LIBOR Rate Loans or
Foreign Currency Loans, the “Affected Loans”), then such Lender,
together with Lenders giving notice under Section 2.18, 2.19 and 2.21,
shall be an “Affected Lender” and by written notice to the Borrowers and
to the Administrative Agent:


 


(i)                                     may declare that Affected Loans will not thereafter
(for the duration of such unlawfulness or impossibility) be made by such Lender
hereunder, whereupon any request for an Affected Loan shall, as to such Lender
only (A) if such Affected Loan is not a Foreign Currency Loan, be deemed a
request for a Alternate Base Rate Loan (unless it should also be illegal for
the Affected Lender to provide a Base Rate Loan, in which case such Loan shall
bear interest at a commensurate rate to be agreed upon by the Administrative
Agent and the Affected Lender, and so long as no Event of Default shall have
occurred and be continuing, the Borrowers), unless such declaration shall be
subsequently withdrawn and (B) if such Affected Loan is a Foreign Currency
Loan, be deemed to have been withdrawn, unless such declaration shall be
subsequently withdrawn; and


 


(ii)                                  may require that all outstanding Affected Loans, as the
case may be, made by it be (A) if such Affected Loans are not Foreign
Currency Loans, converted to Alternate Base Rate Loans, in which event all such
Affected Loans shall be automatically converted to Alternate Base Rate Loans as
of the effective date of such notice as provided in paragraph (b) below or
(B) if such Affected Loans are Foreign Currency Loans, repaid immediately,
in which event all such Affected Loans shall be required to be repaid in full
by the Borrowers as of the effective date of such notice as provided in
paragraph (b) below.


 


In the event any Lender shall exercise its
rights under (i) or (ii) above with respect to any Affected Loans
which are not Foreign Currency Loans, all payments and prepayments of principal
which would otherwise have been applied to repay the Affected Loans that would
have been made by such Lender or the converted Affected Loans of such Lender
shall instead be applied to repay the Alternate Base Rate Loans made by such
Lender in lieu of, or resulting from the conversion, of such Affected Loans.


 


(b)                                 For purposes of this Section 2.16, a notice to the
Borrowers by any Lender shall be effective as to each such Affected Loan, if
lawful, on the last day of the Interest Period currently applicable to such
Affected Loan; in all other cases such notice shall be effective on the date of
receipt by the Borrowers.


 


Section 2.17                            Deposits Unavailable;
Impractibility.


 


If any of the
Borrowers has notified the Administrative Agent of its intention to borrow a
LIBOR Loan for an Interest Period and the Administrative Agent determines
(which determination shall be conclusive and binding on the applicable
Borrower) that:


 


47





















 


(a)                                  deposits of the necessary amount for such Interest
Period are not available to the Lenders in the London interbank market or, by
reason of circumstances affecting such market, adequate and reasonable means do
not exist for ascertaining LIBOR for such Interest Period; or


 


(b)                                 the making or funding of LIBOR Loans has become
impracticable as a result of any event occurring after the date of this Credit
Agreement which, in the opinion of the Lenders, materially and adversely
affects such Loans or the London interbank market;


 


then any notice of a LIBOR Loan previously
given by the Borrowers and not yet borrowed shall be deemed to be a notice to
make an Alternate Base Rate Loan.


 


Section 2.18                            Increased Cost.


 


Each of the Borrowers
agree to reimburse any Lender for any increase in the cost to such Lender of,
or any reduction in the amount of any sum receivable by such Lender from such
Borrower in respect of, making or maintaining any LIBOR Rate Loans relating to
the adoption of any law, rule or regulation or any change therein or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or administration
thereof.  The additional amount required
to compensate such Lender for such increased cost or reduced amount shall be
payable by the applicable Borrower to such Lender within five days of the
Borrower’s receipt of written notice from such Lender specifying such increased
cost or reduced amount and the amount required to compensate such Lender
therefor, which notice shall, in the absence of manifest error, be conclusive
and binding on the Borrowers.  In determining
such additional amount, the applicable Lender may use reasonable averaging,
attribution and allocation methods.  The
agreements in this Section 2.18 shall survive the termination of this
Credit Agreement and payment of the Borrower Obligations.


 


Section 2.19                            Increased Capital Costs.


 


If any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator or
other Governmental Authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any entity controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling entity’s capital as a
consequence of the Loans made by such Lender or the commitment hereunder is
reduced to a level below that which the Lender or such controlling entity could
have achieved but for the occurrence of any such circumstance, then, in any
such case, upon notice from time to time by any Lender to the Borrowers, each
of the Borrowers shall immediately pay directly to such Lender additional
amounts sufficient to compensate such Lender or such controlling entity for such
reduction in rate of return.  A statement
of such Lender as to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Borrowers.  In determining such amount, the applicable 


 


48





















 


Lender may use reasonable averaging,
attribution and allocation methods.  The
agreements in this Section 2.19 shall survive the termination of this
Credit Agreement and payment of the Borrower Obligations.


 


Section 2.20                            Funding Losses.


 


Each of the Borrowers
will indemnify any Lender upon demand against any loss or expense which such
Lender may sustain or incur (including, without limitation, any loss or expense
sustained or incurred in obtaining, liquidating or employing deposits or other
funds acquired to effect, fund or maintain any Loan) as a consequence of (i)
any failure of such Borrower to make any payment when due of any amount due
hereunder, (ii) any failure of such Borrower to borrow a Loan on a date
specified therefor in a notice thereof, or (iii) any payment (including any
payment upon such Lender’s acceleration of the Loans) or prepayment of any
LIBOR Loan on a date other than the last day of the Interest Period for such
Loan.


 


Notwithstanding
anything to the contrary contained in this Credit Agreement, if and to the
extent that the Swiss Borrower is liable pursuant to this Agreement
for indemnification obligations other than indemnification
obligations in relation to its own borrowings or costs, fees and
expenses related thereto, such indemnification obligations shall in the
aggregate be limited to the extent and maximum amount of the Swiss
Borrower’s profits and reserves available for distribution as a dividend at the
time or times payment is requested hereunder (i.e.,
balance sheet profits and any reserves made for this purpose, in each case in
accordance with the relevant provisions of the Swiss Code of Obligations), as
evidenced by an audited (interim) balance sheet less Swiss withholding tax (if
and to the extent required by applicable law in force at the relevant time, at
the rate of currently 35%, without an obligation to gross-up) unless the
payment of the Swiss withholding tax is not required to be paid by the Swiss
Borrower.


 


Section 2.21                            Taxes.


 


(a)                                  All payments made by the Borrowers hereunder or under
any Note shall be, except as provided in Section 2.21(b), made free and
clear of, and without deduction or withholding for, any and all present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any Governmental Authority or by
any political subdivision or taxing authority thereof or therein with respect
to such payments (but excluding any tax imposed on or measured by the net
income or profits or any franchise or other tax in lieu thereof (including
branch profits or similar taxes) of a Lender) and all interest, penalties or
similar liabilities with respect thereto (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as “Taxes”).  If any
Taxes are so levied or imposed, the Borrowers agree to pay the full amount of
such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Credit Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. 
The Borrowers will furnish to the Administrative Agent as soon as
practicable after the date the payment of any Taxes is due pursuant to
applicable law certified copies (to the extent reasonably available and
required by law) of tax receipts evidencing such payment by the applicable Borrower.  Each of the Borrowers agree to indemnify and
hold harmless each Lender, and reimburse such Lender 


 


49





















 


upon its written request, for the amount of
any Taxes so levied or imposed and paid by such Lender.


 


(b)                                 Each Lender that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) agrees to deliver
to the Borrowers and the Administrative Agent on or prior to the Closing Date,
or in the case of a Lender that is an assignee or transferee of an interest
under this Credit Agreement pursuant to Section 9.5(g) (unless the
respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Lender two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or any successor forms prescribed by the
Internal Revenue Service) certifying such Lender’s entitlement to a complete
exemption from United States withholding tax with respect to payments to
be made under this Credit Agreement and under any Note.  Each other Lender shall provide Borrowers
with two accurate and complete original signed copies of Internal Revenue Form W-9
or any successor form prescribed by the Internal Revenue Service.  In addition, each Lender agrees that it will
deliver upon any Borrower’s request updated versions of the foregoing, as
applicable, whenever the previous certification has become obsolete or
inaccurate in any material respect, together with such other forms as may be
required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax
with respect to payments under this Credit Agreement and any Note.  Notwithstanding anything to the contrary
contained in Section 2.21(a), but subject to the immediately succeeding
sentence, (A) the Borrowers shall be entitled, to the extent it is
required to do so by law, to deduct or withhold Taxes imposed by the United States
(or any political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any Lender
which is not a United States person (as such term is defined in Section 7701(a)(30)
of the Code) for U.S. Federal income tax purposes to the extent that such
Lender has not provided to the Borrowers U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or withholding and
(B) the Borrowers shall not be obligated pursuant to Section 2.21(a)
hereof to gross-up payments to be made to a Lender in respect of Taxes imposed
by the United States if such Lender has not provided to the Borrowers the
Internal Revenue Service Forms required to be provided to the Borrowers
pursuant to this Section 2.21(b). 
Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 2.21(b), each of the Borrowers agree
to pay additional amounts and to indemnify each Lender in the manner set forth
in Section 2.21(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any amounts deducted or
withheld by it as described in the immediately preceding sentence as a result
of any changes after the Closing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of Taxes.


 


Without limiting the
obligations of the Lenders set forth above regarding delivery of certain forms
and documents to establish each Lender’s status for U.S. withholding tax
purposes, prior to the occurrence of a Sharing Event, each Lender that has a
Swiss/Multicurrency Revolving Commitment or a Japanese/Multicurrency Revolving
Commitment agrees promptly to deliver to the Administrative Agent or the
Company, as the Administrative Agent or the Company shall reasonably request,
on or prior to the Closing Date, and in a timely fashion thereafter, to the
extent such Lender is legally permitted to so deliver, such other documents and



 


50





















 


forms required by any relevant taxing
authorities under the Requirements of Law of any other jurisdiction, duly
executed and completed by such Lender, as are required under such Requirements
of Law to confirm such Lender’s entitlement to any available exemption from, or
reduction of, applicable withholding taxes in respect of all payments to be
made to such Lender outside of the U.S. by the Borrowers pursuant to this
Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in such other jurisdiction. 
Each Lender shall promptly (i) notify the Administrative Agent of any
change in circumstances which would modify or render invalid any such claimed
exemption or reduction, and (ii) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including there-designation of its LIBOR Lending Office)
to avoid any requirement of applicable Requirements of Law of any such
jurisdiction that any Borrower make any deduction or withholding for taxes from
amounts payable to such Lender. 
Additionally, each of the Borrowers shall promptly deliver to the
Administrative Agent or any Lender, as the Administrative Agent or such Lender
shall reasonably request, on or prior to the Closing Date, and in a timely
fashion thereafter, such documents and forms required by any relevant taxing
authorities under the Requirements of Law of any jurisdiction, duly executed
and completed by such Borrower, as are required to be furnished by such Lender
or the Administrative Agent under such Requirements of Law in connection with
any payment by the Administrative Agent or any Lender of Taxes or Other Taxes,
or otherwise in connection with the Credit Documents, with respect to such
jurisdiction.


 


(c)                                  Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its Domestic Lending Office or LIBOR Lending
Office, as the case may be) to avoid or to minimize any amounts which might
otherwise be payable pursuant to this Section; provided, however,
that such efforts shall not cause the imposition on such Lender of any
additional costs or legal or regulatory burdens deemed by such Lender in its
sole discretion to be material.  For the
avoidance of doubt, each Lender lending to IMS Japan K.K. which is not entitled
to any available exemption from applicable withholding taxes shall use commercially
reasonable efforts to lend such funds through a lending office located in Japan
or the United States.


 


(d)                                 If any Borrower pays any additional amount pursuant to
this Section 2.21 with respect to a Lender, such Lender shall use
commercially reasonable efforts to obtain a refund of tax or credit against its
tax liabilities on account of such payment. 
In the event that such Lender receives such a refund or credit, such
Lender shall pay to the applicable Borrower an amount that such Lender reasonably
determines is equal to the net tax benefit obtained by such Lender as a result
of such payment by the applicable Borrower. 
In the event that no refund or credit is obtained with respect to a
Borrower’s payments to such Lender pursuant to this Section 2.21, then
such Lender shall upon request provide a certification that such Lender has not
received a refund or credit for such payments. 
Nothing contained in this Section 2.21 shall require a Lender to
disclose or detail the basis of its calculation of the amount of any tax
benefit or any other amount or the basis of its determination referred to in
the proviso to the first sentence of this Section 2.21 to the Borrowers or
any other party.


 


(e)                                  If any Lender entitled to additional compensation under
any of the foregoing provisions of this Section 2.21 shall fail to
designate a different Applicable Lending Office as provided in subsection (c)
of this Section 2.21 promptly after receiving notice from a Borrower, 


 


51





















 


then such Borrower may cause such Lender to
(and, if such Borrower so demands, such Lender shall) assign all of its rights
and obligations under this Credit Agreement or any Note to one or more other
persons identified by the Borrower and reasonably acceptable to the
Administrative Agent.


 


(f)                                    To the extent that no Default or Event of Default has
occurred or is continuing, no Lender who becomes a party to this Credit
Agreement by accepting an assignment of an interest herein from another Lender
shall be entitled to receive any additional amounts pursuant to this Section 2.21
in excess of the amounts that would have been payable to the assignor Lender
prior to such assignment.


 


(g)                                 The agreements in this Section 2.21 shall survive
the termination of this Credit Agreement and the payment of the Borrower
Obligations.  Notwithstanding the
foregoing, the terms in this Section 2.21 shall only apply to a Foreign
Borrower to the extent such Borrower has received an Extension of Credit
hereunder.


 


Section 2.22                            Indemnification; Nature
of Issuing Lender’s Duties.


 


(a)                                  In addition to its other obligations under Section 2.2,
the Company hereby agrees to protect, indemnify, pay and save the Issuing
Lender harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable attorneys’
fees) that the Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit or
(ii) the failure of the Issuing Lender to honor a drawing under a Letter
of Credit as a result of any act or omission, whether rightful or wrongful, of
any present or future de jure or de facto government or Governmental Authority
(all such acts or omissions, herein called “Government Acts”).


 


(b)                                 As between the Company and the Issuing Lender, the
Company shall assume all risks of the acts, omissions or misuse of any Letter
of Credit by the beneficiary thereof. 
The Issuing Lender shall not be responsible:  (i) for 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 Letter of Credit, even
if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective for any
reason; (iii) for failure of the beneficiary of a Letter of Credit to
comply fully with conditions required in order to draw upon a Letter of Credit;
(iv) for errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) for errors in interpretation of
technical terms; (vi) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a Letter of
Credit or of the proceeds thereof; and (vii) for any consequences arising
from causes beyond the control of the Issuing Lender, including, without
limitation, any Government Acts.  None of
the above shall affect, impair, or prevent the vesting of the Issuing Lender’s
rights or powers hereunder.


 


52





















 


(c)                                  In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or omitted by
the Issuing Lender, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put such
Issuing Lender under any resulting liability to the Company.  It is the intention of the parties that this
Credit Agreement shall be construed and applied to protect and indemnify the
Issuing Lender against any and all risks involved in the issuance of the
Letters of Credit, all of which risks are hereby assumed by the Company,
including, without limitation, any and all risks of the acts or omissions,
whether rightful or wrongful, of any Government Authority.  The Issuing Lender shall not, in any way, be
liable for any failure by the Issuing Lender or anyone else to pay any drawing
under any Letter of Credit as a result of any Government Acts or any other
cause beyond the control of the Issuing Lender.


 


(d)                                 Nothing in this Section 2.22 is intended to limit
the reimbursement obligation of the Company contained in Section 2.2(d)
hereof.  The obligations of the Company
under this Section 2.22 shall survive the termination of this Credit
Agreement.  No act or omissions of any
current or prior beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Issuing Lender to enforce any right, power or benefit
under this Credit Agreement.


 


(e)                                  Notwithstanding anything to the contrary contained in
this Section 2.22, the Company shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing Lender
arising out of the bad faith, gross negligence or willful misconduct of the
Issuing Lender (including action not taken by the Issuing Lender), as
determined by a court of competent jurisdiction.


 


ARTICLE III


 


REPRESENTATIONS AND WARRANTIES


 


To induce the Lenders
to enter into this Credit Agreement and to make the Extensions of Credit herein
provided for, the Borrowers hereby represent and warrant to the Administrative
Agent and to each Lender that:


 


Section 3.1                                   Existence.


 


Each of the Borrowers
is a corporation duly formed, validly existing and in good standing (to the
extent such concept exists) under the laws of its jurisdiction of
incorporation, has all requisite power and authority, and the legal right, to
own, operate and lease its properties and to carry on the business in which it
is engaged or presently proposes to engage, and is duly qualified or licensed
under the laws of each jurisdiction where it is required to be so qualified or
licensed except where the failure to be so qualified could not, individually or
in the aggregate, reasonably be expected to cause a Material Adverse Change,
and is in compliance with all Requirements of Law except to the extent that
failure to comply therewith could not, individually or in the aggregate,
reasonably be expected to cause a Material Adverse Change.


 


53





















 


Section 3.2                                   Power and
Authorization; Enforceable Obligations.


 


Each of the Borrowers
has all requisite power and authority to execute, deliver and perform this
Credit Agreement and the other Credit Documents to which it is a party and to
borrow the Loans hereunder.  Each of the
Borrowers has taken all necessary corporate and legal action to authorize the
borrowings hereunder on the terms and conditions of this Credit Agreement and
the other Credit Documents to which it is a party and to authorize the
execution, delivery and performance of this Credit Agreement and the other
Credit Documents to which it is a party. 
Each of the Credit Agreement and the other Credit Documents have been
executed and delivered by a duly authorized officer of each of the
Borrowers.  This Credit Agreement
constitutes, and upon execution thereof, each other Credit Document will
constitute, a legal, valid and binding obligation of each applicable Borrower
enforceable against such Borrower in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors’ rights generally and
except as enforceability may be limited by general principles of equity and an
implied covenant of good faith.


 


Section 3.3                                   No Legal Bar to
Loans.


 


The execution,
delivery and performance of this Credit Agreement and the other Credit
Documents by each of the Borrowers will not violate any provision of any
existing law, treaty or regulation or of any order, judgment, award or decree
of any court, arbitrator or Governmental Authority or of any Requirement of Law
or Contractual Obligation applicable to the Borrowers and will not result in
the creation or imposition of any Lien on any of the material properties or
assets of any of the Borrowers pursuant to the provisions of any such
Requirement of Law or Contractual Obligation except, to the extent such
violation or Lien could not, individually or in the aggregate, reasonably be
expected to cause a Material Adverse Change.


 


Section 3.4                                   Financial
Information; Disclosure, etc.


 


The Periodical SEC
Reports of the Company and the related statements of income, shareholders’
equity and cash flows for any applicable period, copies of which have
heretofore been furnished to the Administrative Agent and the Lenders, present
fairly in all material respects the financial condition of the Company as of
the end of such period.  All financial
statements included therein, including the related schedules and notes, if any,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved, except as set forth in the notes thereto (subject, in the
case of any interim financial statements, to normal year-end adjustments).  Since December 31, 2003, there has been
no Material Adverse Change.


 


Section 3.5                                   Licenses,
Permits, etc.


 


No material
authorizations, licenses and permits of any Governmental Authority are required
or necessary for the conduct of the business of the Company as now conducted or
proposed to be conducted by it except for such authorizations, licenses and
permits (i) as have been obtained and are in full force and effect, or (ii) the
failure to have obtained which could not 


 


54





















 


reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Change.


 


Section 3.6                                   Tax Returns and
Payments.


 


Each of the Borrowers
has filed all tax returns and information statements required by law to be
filed and has paid all taxes, assessments and other governmental charges levied
upon or in respect of any of its properties, assets, income, licenses or
franchises, other than those not yet delinquent, those not substantial in
aggregate amount, those being or about to be contested and those the failure of
which to pay could not reasonably be expected to cause a Material Adverse
Change.  The charges, accruals and
reserves on the books of each of the Borrowers in respect of its taxes are
adequate in the opinion of such Borrower, and none of the Borrowers knows of
any unpaid assessment for additional taxes material in amount or of any
reasonable basis therefor.  No tax liens
have been filed, and, to the knowledge of each of the Borrowers, no claims are
being asserted with respect to any such taxes, fees or other charges.


 


Section 3.7                                   Title to
Properties; Liens.


 


Each of the Borrowers
and the Subsidiaries have sufficient title to all of their material properties
and assets for the conduct of their respective business as presently conducted
and proposed to be conducted by them. 
Each of the Borrowers and the Subsidiaries enjoy quiet possession under
all material real property leases to which it is a party as lessee, and all of
its material leases are valid, subsisting and in full force and effect.


 


Section 3.8                                   Litigation, etc.


 


Except as disclosed in
the Periodical SEC Reports of the Company or in any report on Form 8-K filed by
the Company with the SEC, there is no action, proceeding or investigation
pending or, to the knowledge of any Borrower, threatened (or any basis therefor
known to any Borrower) which questions the validity of this Credit Agreement or
the other Credit Documents executed in connection herewith, or any action taken
or to be taken pursuant hereto or thereto, or which could reasonably be
expected to result, individually or in the aggregate, in a Material Adverse
Change.


 


Section 3.9                                   No Default.


 


No Default or Event of
Default has occurred and is continuing. 
No Borrower or any of the Subsidiaries is in violation of any
Requirement of Law or any term of any Contractual Obligation applicable to any
Borrower or such Subsidiary, the violation of which could reasonably be
expected to cause a Material Adverse Change. 
Without limiting the scope of the foregoing, each of the Borrowers and
their Subsidiaries are in compliance in all material respects with all
Environmental Laws, the violation of which could be reasonably expected to
cause a Material Adverse Change.


 


55





















 


Section 3.10                            Governmental and Other
Consents.


 


No Borrower is
required to obtain any order, consent, approval or authorization of or to make
any declaration or filing with, any Governmental Authority or any other Person
in connection with the execution and delivery, of and performance under, this
Credit Agreement and the other Credit Documents, unless the failure to do so
could not reasonably be expected to cause a Material Adverse Change.


 


Section 3.11                            Regulation U, etc.


 


Except for systematic
stock repurchase programs from time to time conducted by the Company, none of
the proceeds of the Loans will be used, directly or indirectly, by any Borrower
for the purpose of purchasing or carrying, or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry,
any margin stock or for any other purpose which might constitute the
transactions contemplated hereby a “purpose credit” within the meaning of said
Regulation U, or cause this Agreement to violate Regulation T, Regulation U,
Regulation X, or any other regulation of the Board of Governors of The Federal
Reserve System or the Exchange Act.


 


Section 3.12                            Investment Company Act;
Other Regulations.


 


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.  No Borrower is subject to regulation under
any federal, state or other statute or regulation which limits its ability to incur
Indebtedness.


 


Section 3.13                            Compliance with ERISA.


 


Each Plan is in
substantial compliance with ERISA and the Code; no Reportable Event has
occurred with respect to a Plan; no Plan is insolvent or in reorganization; no
Plan has an unfunded current liability within the meaning of Section 412(1)(8)
of the Code; no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for a waiver
of the minimum funding standard or an extension of any amortization period
within the meaning of Section 412 of the Code; all contributions required
to be made with respect to a Plan have been timely made, neither the Company
nor any ERISA Affiliate has incurred any material liability to or on account of
a Plan pursuant to Section 409, 502(i), 502(1), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or
4980 of the Code or reasonably expects to incur any material liability
(including any indirect, contingent or secondary liability) under any of the
foregoing Sections with respect to any Plan (other than liabilities of any
ERISA Affiliate which could not, by operation of law or otherwise, become a
liability of the Company); no proceedings have been instituted to terminate, or
to appoint a trustee to administer, any Plan; no condition exists which
presents a material risk to the Company or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; using actuarial assumptions and computation methods
consistent with Part I of Subtitle E of Title IV of ERISA, the aggregate
liabilities of the Company and its ERISA Affiliates to all Plans which are
multi-


 


56





















 


employer plans (as defined in Section 4001(a)(3)
of ERISA) in the event of a complete withdrawal therefrom, as of the close of
the most recent fiscal year of each such Plan ended prior to the Closing Date
would not result in a Material Adverse Change on the financial condition of the
Company; and no lien imposed under the Code or ERISA on the assets of the
Company or any ERISA Affiliate exists or is likely to arise on account of any
Plan.  Anything in this Section 3.13
to the contrary notwithstanding, the representations herein are qualified by
the uncertainty created by the 2003 decision of the District Court for the
Southern District of Illinois in Cooper v. IBM Personal Pension Plan
that cash balance pensions plans violate ERISA; however, there are no actions,
suits or claims pending or, to the best knowledge of the Borrowers, threatened
or anticipated (other than routine claims for benefits) against the Borrowers
or the cash balance pension plan maintained by the Company.


 


Section 3.14                            Environmental Matters.


 


To the best knowledge
of the Borrowers, except as disclosed in the Periodical SEC Reports of the
Company or in any report on Form 8-K filed by the Company with the SEC, each of
the representations and warranties set forth in paragraphs (a) through (e) of
this subsection is true and correct with respect to each parcel of real
property owned or operated (within the meaning of any Environmental Law) by the
Borrowers or any of the Company’s Subsidiaries (the “Properties”),
except to the extent that the facts and circumstances giving rise to any such
failure to be so true and correct could not, individually or in the aggregate,
reasonably be expected to cause a Material Adverse Change:


 


(a)                                  The Properties do not contain, and have not previously
contained, in, on, or under, including, without limitation, the soil and
groundwater thereunder, any Hazardous Materials in violation of any
Environmental Laws.


 


(b)                                 The Properties and all operations and facilities at the
Properties are in compliance with all Environmental Laws, and there is no
Hazardous Materials contamination or violation of any Environmental Law which
could interfere with the continued operation of any of the Properties or impair
the fair salable value of any thereof.


 


(c)                                  Neither the Company nor any Subsidiary has received any
complaint, notice of violation, alleged violation, investigation or advisory
action or of potential liability or of potential responsibility regarding
environmental protection matters or permit compliance with regard to the Properties,
nor is the Company aware that any Governmental Authority is contemplating
delivering to the Company any such notice.


 


(d)                                 Hazardous Materials have not been generated, treated,
stored, disposed of, at, on or under any of the Properties, nor have any
Hazardous Materials been transferred from the Properties to any other location
in violation of any Environmental Laws.


 


(e)                                  There are no governmental, administrative actions or
judicial proceedings pending or contemplated under any Environmental Laws to which
the Company is or will be named as a party with respect to the Properties, nor
are there any consent decrees or 


 


57





















 


other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
any of the Properties.


 


Section 3.15                            Material Subsidiaries.


 


Set forth on Schedule 3.15
is a complete and accurate list of all Material Subsidiaries of the Company as
of the Closing Date together with, for each such Material Subsidiary (i) the
jurisdiction of incorporation of each Subsidiary and (ii) as to any such
Subsidiary, the percentage ownership in such Subsidiary held directly or
indirectly by the Company and each of its other Subsidiaries.


 


Section 3.16                            Compliance with Trading
with the Enemy Act, OFAC Rules and Regulations and Patriot Act.


 


(a)                                  No Borrower nor any of its
Subsidiaries is an “enemy” or an “ally of the enemy” within the meaning of Section 2
of the Trading with the Enemy Act of the United States of America (50 U.S.C.
App. §§ 1 et seq.), as amended.  No Borrower nor any or its Subsidiaries is in
violation of (i) the Trading with the Enemy Act, as amended, (ii) any of the
foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto or (iii) the Patriot Act (as defined in Section 9.18).  No
Borrower (A) is a blocked person described in section 1 of the
Anti-Terrorism Order or (B) to the best of its knowledge, engages in any
dealings or transactions, or is otherwise associated, with any such blocked
person.


 


(b)                                 None of the Borrowers, any of their Subsidiaries or any
of their Affiliates (i) is a Sanctioned Person, (ii) has more than 15% of its
assets in Sanctioned Countries, or (iii) derives more than 15% of its operating
income from investments in, or transactions with Sanctioned Persons or
Sanctioned Countries.  The proceeds of
any Loan will not be used and have not been used to fund any operations in,
finance any investments or activities in or make any payments to, a Sanctioned
Person or a Sanctioned Country.


 


ARTICLE IV


 


CONDITIONS PRECEDENT


 


Section 4.1                                   Conditions to
Closing Date and Initial Revolving Loans.


 


The obligation of each
Lender to make the initial Revolving Loans on the Closing Date is subject to
the prior or concurrent satisfaction of the following conditions:


 


(a)                                  Execution of Agreement.  The
Administrative Agent shall have received (i) counterparts of this Credit
Agreement, (ii) for the account of each U.S. Revolving Lender, U.S.
Revolving Notes, (iii) for the account of the Swingline Lender, the
Swingline Note, (iv) for the account of each Japanese/Multicurrency Revolving
Lender, 


 


58





















 


Japanese/Multicurrency
Revolving Notes and (v) for the account of each Swiss/Multicurrency Revolving
Lender, Swiss/Multicurrency Revolving Notes, in each case conforming to the
requirements of this Credit Agreement and executed by a duly authorized officer
of each party thereto.


 


(b)                                 Authority Documents.  The Administrative Agent shall
have received the following:


 


(i)                                     Articles of Incorporation.  Copies of the
articles of incorporation or other charter documents, as applicable, of each
Borrower certified (A) by the secretary or an assistant secretary of such
Borrower (or a Responsible Officer thereof if there is no secretary or
assistant secretary of such Borrower) (pursuant to a secretary’s certificate in
substantially the form of Schedule 4.1(b) attached hereto) as of
the Closing Date to be true and correct and in force and effect as of such
date, and (B) to be true and complete as of a recent date by the appropriate
Governmental Authority of the state of its incorporation or organization, as
applicable.


 


(ii)                                  Resolutions.  Copies of resolutions of the board of
directors or comparable managing body of each Borrower approving and adopting
the Credit Documents, the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a secretary or assistant secretary
of such Borrower (or a Responsible Officer thereof if there is no secretary or
assistant secretary of such Borrower) (pursuant to a secretary’s certificate in
substantially the form of Schedule 4.1(b) attached hereto) as of
the Closing Date to be true and correct and in force and effect as of such
date.


 


(iii)                               Bylaws.  A copy of the bylaws or comparable operating
agreement (if such document exists in accordance with applicable Requirements
of Law) of each Borrower certified by a secretary or assistant secretary of
such Borrower (or a Responsible Officer thereof if there is no secretary or
assistant secretary of such Borrower) (pursuant to a secretary’s certificate in
substantially the form of Schedule 4.1(b) attached hereto) as of
the Closing Date to be true and correct and in force and effect as of such
date.


 


(iv)                              Good Standing.  Copies of (i) certificates of good
standing, existence or its equivalent (if such document exists in accordance
with applicable Requirements of Law) with respect to the each Borrower
certified as of a recent date by the appropriate Governmental Authorities of
the state of incorporation and each other state in which the failure to so qualify
and be in good standing could reasonably be expected to result in a Material
Adverse Change on the business or operations of the Borrowers and the
Subsidiaries in such state and (ii) a certificate (if such document exists
in accordance with applicable Requirements of Law) indicating payment of all
corporate franchise taxes certified as of a recent date by the appropriate
governmental taxing authorities.


 


59





















 


(v)                                 Incumbency.  An incumbency certificate of each Borrower
certified by a secretary or assistant secretary (or a Responsible Officer
thereof if there is no secretary or assistant secretary of such Borrower)
(pursuant to a secretary’s certificate in substantially the form of Schedule 4.1(b)
attached hereto) to be true and correct as of the Closing Date.


 


(c)                                  Legal Opinions of Counsel.  The
Administrative Agent shall have received opinions of counsel for the Borrowers
(including an opinion of Japanese counsel with respect to the Japanese Borrower
and Swiss counsel with respect to the Swiss Borrower), dated the Closing Date
and addressed to the Administrative Agent and the Lenders, which opinion shall
provide that the Borrowers are in compliance with (i) all corporate instruments
and (ii) in all respects, material Contractual Obligations, in each case, on
the Closing Date after giving effect to initial Extensions of Credit hereunder.


 


(d)                                 Officer’s Certificate.  The Administrative Agent shall
have received a certificate executed by a Responsible Officer of the Company as
of the Closing Date stating that immediately after giving effect to this Credit
Agreement, the other Credit Documents, and all the transactions contemplated
therein to occur on such date, (i) no Default or Event of Default exists, (ii) all
representations and warranties contained herein and in the other Credit
Documents are true and correct, and (iii) the Company is in compliance with
each of the financial covenants set forth in Section 6.6, as demonstrated
by covenant calculations on a schedule attached thereto.


 


(e)                                  Account Designation Letter.  The
Administrative Agent shall have received the executed Account Designation
Letter in the form of Schedule 1.1 hereto.


 


(f)                                    Solvency Certificate.  The Administrative Agent shall
have received an officer’s certificate for each Borrower prepared by a
Responsible Officer of the Company as to the financial condition, solvency and
related matters of such Borrower, in each case after giving effect to the
initial borrowings under the Credit Documents, in substantially the form of Schedule 4.1(f)
hereto.


 


(g)                                 Material Adverse Change.  No Material
Adverse Change shall have occurred since December 31, 2003.


 


(h)                                 Financial Statements.  The Administrative Agent shall
have received copies of the financial statements referred to in Section 3.4
hereof, each in form and substance satisfactory to it.


 


(i)                                     Fees.  The Administrative Agent and the Lenders
shall have received all fees, if any, owing pursuant to the Fee Letter and Section 2.6.


 


(j)                                     Termination of Existing Indebtedness.  All existing
Indebtedness for borrowed money of the Borrowers with respect to the credit
facilities under the Existing Credit Agreements shall have been (or
contemporaneously with funding will be) repaid in full and/or reallocated fully
under the facilities under this Credit Agreement, all 


 


60





















 


commitments
thereunder shall have been terminated and all Liens relating thereto, if any,
shall have been terminated.


 


Section 4.2                                   Conditions to All
Extensions of Credit.


 


The
obligation of each Lender to make any Extension of Credit hereunder is subject
to the satisfaction of the following conditions precedent on the date of making
such Extension of Credit:


 


(a)                                  Representations and Warranties.  The representations
and warranties made by the Borrowers herein, in the other Credit Documents or
which are contained in any certificate furnished at any time under or in
connection herewith shall be true and correct on and as of the date of such
Extension of Credit as if made on and as of such date, unless stated to relate
solely to an earlier date, in which case such representations and warranties
shall be true and correct as of such earlier date.


 


(b)                                 No Default or Event of Default.  No Default or
Event of Default shall have occurred and be continuing on such date or after
giving effect to the Extension of Credit to be made on such date unless such
Default or Event of Default shall have been waived in accordance with this
Credit Agreement or other applicable instrument or agreement.


 


(c)                                  Compliance with Commitments.  Immediately
after giving effect to the making of any such Extension of Credit (and the
application of the proceeds thereof), (i) the sum of outstanding U.S.
Revolving Loans plus outstanding Swingline Loans plus LOC
Obligations shall not exceed the Aggregate U.S. Revolving Committed Amount,
(ii) the LOC Obligations shall not exceed the LOC Committed Amount,
(iii) the Swingline Loans shall not exceed the Swingline Committed Amount,
(iv) the sum of the outstanding Japanese/Multicurrency Revolving Loans shall
not exceed the Aggregate Japanese/Multicurrency Revolving Committed Amount and
(v) the sum of the outstanding Swiss/Multicurrency Revolving Loans shall not
exceed the Aggregate Swiss/Multicurrency Revolving Committed Amount..


 


(d)                                 Additional Conditions to U.S. Revolving Loans.  If a U.S.
Revolving Loan is requested, all conditions set forth in Section 2.1 shall
have been satisfied.


 


(e)                                  Additional Conditions to Letters of Credit.  If the
issuance of a Letter of Credit is requested, all conditions set forth in Section 2.2
shall have been satisfied.


 


(f)                                    Additional Conditions to Swingline Loans.  If a Swingline
Loan is requested, all conditions set forth in Section 2.3 shall have been
satisfied.


 


(g)                                 Additional Conditions to Japanese/Multicurrency
Revolving Loans.  If a Japanese/Multicurrency Revolving Loan is
requested, all conditions set forth in Section 2.4 shall have been
satisfied.


 


61





















 


(h)                                 Additional Conditions to Swiss/Multicurrency Revolving
Loans. 
If a Swiss/Multicurrency Revolving Loan is requested, all conditions set
forth in Section 2.5 shall have been satisfied.


 


Each
request for an Extension of Credit and each acceptance by a Borrower of any such
Extension of Credit shall be deemed to constitute a representation by such
Borrower as to the matters set forth in paragraphs (a) through (h) of this Section 4.2.


 


Section 4.3                                   Conditions to
Extensions of Credit to any Foreign Borrower.


 


The
obligation of each Lender to make:


 


(a)                                  the initial Extension of Credit to either of the
Foreign Borrowers is subject to the receipt by the Administrative Agent of
documentation evidencing an amendment and/or consent from the noteholders party
to the Private Placement Note Purchase Agreement, permitting the incurrence by
the Swiss Borrower and the Japanese Borrower of up to $500,000,000 of
Indebtedness;


 


(b)                                 any Extension of Credit to any Foreign Borrower is
subject to the receipt by the Administrative Agent, prior to such Extension of
Credit, of a certificate executed by a Responsible Officer of the Company dated
as of the date of such Extension of Credit stating that, after giving effect to
such Extension of Credit, the Company and the Foreign Borrowers would be in compliance
with the requirements set forth in Section 6.7, which certificate shall
include a detailed listing of any Indebtedness incurred by the Foreign
Borrowers since the Closing Date (other than any Extensions of Credit
hereunder) including the aggregate amount outstanding with respect to such
Indebtedness as of such date; and


 


(c)                                  any Loan to the Japanese Borrower is subject to the
receipt by the Administrative Agent, prior to the making of such Loan, of
copies of resolutions of the board of directors of the Japanese Borrower
approving such Loan, certified by a Responsible Officer of the Japanese
Borrower as of the applicable Borrowing Date to be true and correct and in
force and effect; provided that, for the avoidance of doubt, the
foregoing requirement shall apply only to the initial borrowing of any such
Loan and not to any subsequent extension, conversion or continuation of such
Loan.


 


ARTICLE V


 


AFFIRMATIVE COVENANTS


 


The
Borrowers hereby covenant and agree that on the Closing Date, and thereafter
for so long as this Credit Agreement is in effect and until the Commitments
have terminated, no Note remains outstanding and unpaid and the Borrower
Obligations, together with interest, Commitment Fee, are paid in full, the
Borrowers will:


 


62





















 


Section 5.1                                   Financial
Information.


 


Furnish to the
Administrative Agent and each of the Lenders:


 


(a)                                  As soon as available and in any event within 45 days
after the end of each of the first three quarters of each fiscal year, the
Company’s Form 10-Q containing the consolidated balance sheets of the Company
and its Subsidiaries as at the end of such quarterly fiscal period and
statements of earnings and cash flow of the Company and its Subsidiaries on a
consolidated basis for such period, certified by a Responsible Officer of the
Company;


 


(b)                                 as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, the Company’s Form 10-K
containing a copy of the annual audit report for such fiscal year for the
Company and its Subsidiaries on a consolidated basis, including balance sheets
of the Company and its Subsidiaries on a consolidated basis as of the end of
such fiscal year and statements of earnings and cash flow on a consolidated
basis for such fiscal year, in each case certified in a manner acceptable to
the Administrative Agent by independent public accountants acceptable to the
Administrative Agent;


 


(c)                                  concurrently with the delivery of the financial
statements described in paragraphs (a) and (b), a certificate from a
Responsible Officer of the Company certifying whether there exists any Default
or Event of Default, and setting forth the Leverage Ratio and the Fixed Charge
Coverage Ratio as of the end of the period covered by such financial
statements;


 


(d)                                 promptly, copies of all financial statements and
reports that the Company sends to its shareholders, and copies of all financial
statements and regular, periodical or special reports (including Forms 10-K,
10-Q and 8-K) that the Company or any Subsidiary may make to, or file with, the
SEC; and


 


(e)                                  such other information with respect to the condition or
operations, financial or otherwise, of the Company and its Subsidiaries as the
Administrative Agent or any Lender may from time to time reasonably request.


 


Any of the above documents that are filed
electronically by the Company with the SEC shall be deemed to have been
provided to the Administrative Agent and the Lenders on the date the same are
available on EDGAR.


 


Section 5.2                                   Use of Proceeds.


 


Use the proceeds of
Loans for the general corporate purposes of the Borrowers, including, without
limitation, the repurchase of the Company’s shares.


 


63





















 


Section 5.3                                   Payment of
Obligations.


 


If and to the extent
the failure to do so could reasonably be expected to cause a Material Adverse
Change, pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, all its Indebtedness and other
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Company; and cause each of its Subsidiaries so to do.


 


Section 5.4                                   Conduct of
Business and Maintenance of Existence.


 


(a)                                  Continue to engage in business of the same general type
as now conducted by it and preserve, renew and keep in full force and effect
its corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business (except to the extent that failure to do so could not, individually or
in the aggregate, reasonably be expected to cause a Material Adverse Change).


 


(b)                                 Comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not individually or in the aggregate, reasonably be expected to cause a
Material Adverse Change.


 


Section 5.5                                   Insurance.


 


Maintain on a
consolidated basis, adequate insurance coverage on all its properties, with
financially sound and reputable insurance companies.


 


Section 5.6                                   Books and Records.


 


Keep proper books of
records and accounts in which full, true and correct entries in conformity with
GAAP and all Requirements of Law shall be made of all dealings and transactions
in relation to its business and activities.


 


Section 5.7                                   Notices.


 


Promptly, upon gaining
actual knowledge thereof, give notice to the Administrative Agent and each
Lender of


 


(a)                                  the occurrence of any Default or Event of Default, and


 


(b)                                 any Material Adverse Change; provided, however, that no
Borrower shall be required to give notice under this paragraph (b) unless such
change requires the Company to file a report on Form 8-K with the SEC.


 


64





















 


Each notice pursuant
to this subsection shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating
what action (if any) the Company proposes to take with respect thereto.


 


Section 5.8                                   Payment of Taxes.


 


If and to the extent
the failure to do any of the following could, individually or in the aggregate,
reasonably be expected to cause a Material Adverse Change, pay and discharge,
and cause each Subsidiary to pay and discharge, prior to their becoming
delinquent all taxes, assessments and other governmental charges or levies
imposed upon it or its income or upon any of its property or assets, or upon
any part thereof, as well as all lawful claims of any kind (including claims
for labor, materials and supplies) which, if unpaid, might by law become a Lien
upon its property; provided, that no Borrower nor any Subsidiary will be
required to pay any such tax, assessment, charge, levy or claim if the amount,
applicability or validity thereof shall be contested in good faith by
appropriate proceedings or other appropriate actions diligently conducted and
if such Borrower or any such Subsidiary shall have set aside on its books such
reserves, if any, with respect thereto as are required by GAAP and deemed
appropriate by the Company and its independent public accountants.


 


Section 5.9                                   Further
Assurances.


 


From time to time
hereafter, execute and deliver, or cause to be executed and delivered, such
additional instruments, certificates or documents, and will take all such
actions, as the Administrative Agent or any Lender may reasonably request, for
the purposes of implementing or effectuating the provisions of the Credit
Documents.  Upon the exercise by the
Administrative Agent or any Lender of any power, right, privileges or remedy
pursuant to the Credit Documents, which requires any consent, approval,
recording, qualification or authorization of any Governmental Authority, the
applicable Borrower will execute and deliver, or will cause the execution and
delivery of, all applications, certifications, instruments and other documents
and papers that the Administrative Agent or any Lender may be required to
obtain from such Borrower for such governmental consent, approval, recording,
qualification or authorization.


 


Section 5.10                            No Dividend Restrictions.


 


Neither the Company
nor any wholly-owned Material Subsidiary of the Company is a party to, nor will
any wholly-owned Material Subsidiary of the Company become a party to, any
agreement prohibiting or restricting the payment of dividends.


 


ARTICLE VI


 


NEGATIVE COVENANTS


 


The
Borrowers hereby covenant and agree that on the Closing Date, and thereafter
for so long as this Credit Agreement is in effect and until the Commitments
have terminated, no Note remains outstanding and unpaid and the Borrower
Obligations, together with interest, 


 


65





















 


Commitment Fee
and all other amounts owing to the Administrative Agent or any Lender
hereunder, are paid in full that:


 


Section 6.1                                   Limitation on
Liens.


 


No Borrower will, nor
will they permit any Subsidiary to, create, assume, incur or suffer to exist
any Lien on any asset now owned or hereafter acquired by it, except for the
following:


 


(a)                                  Liens existing on the date hereof, which are reflected
in the balance sheet referred to in Section 3.4 hereof or the footnotes
thereto, and renewals, extensions and continuations thereof, provided that such
renewals, extensions and continuations shall not (i) increase the Indebtedness
secured thereby or (ii) extend the coverage thereof beyond the original
coverage of such Lien;


 


(b)                                 Liens for taxes, assessments or other governmental
charges not yet delinquent or being contested in good faith and by appropriate
proceedings; Liens in connection with workers’ compensation, unemployment
insurance or other social security obligations; Liens securing the performance
of bids, tenders, contracts, surety and appeal bonds; Liens to secure progress
or partial payments and other Liens of like nature arising in the ordinary
course of business; mechanics’, workmen’s, materialmen’s or other like Liens
arising in the ordinary course of business in respect of obligations which are
not yet due or which are being contested in good faith; and other Liens arising
in the ordinary course of business and incidental to the conduct of the
business of the Company or such Subsidiary or to the ownership of its
properties or assets, which were not incurred in connection with the borrowing
of money and which do not materially detract from the value of the properties
or assets of the Company or materially affect the use thereof in the operation
of its business;


 


(c)                                  Liens in respect of judgments and awards to the extent
that such judgments or awards are being contested in good faith and adequate
insurance or appropriate reserves are maintained with respect thereto on the
books of the Company to the extent required by GAAP and so long as execution is
not levied thereunder;


 


(d)                                 Liens on any property acquired after the date hereof
which Liens existed when such property was acquired, and extensions and
renewals of such Liens; provided that no such extension or renewal shall
increase the aggregate amount of Indebtedness secured thereby, nor add to the
property subject to such Lien;


 


(e)                                  any Lien on any asset securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of acquiring or
improving such asset; provided that such Lien attaches to such asset
concurrently with or within 120 days after the acquisition or completion of the
improvement thereof;


 


(f)                                    other Liens incurred by the Company in the ordinary
course of its business, provided that the aggregate amount of Indebtedness
secured by all Liens permitted by this clause (f) shall not exceed $20,000,000
in the aggregate;


 


66





















 


(g)                                 zoning restrictions, easements, licenses, reservations,
provisions, covenants, conditions, waivers, restrictions on the use of property
or minor irregularities of title which do not in the aggregate materially
detract from the value of its property or assets or materially impair the use
thereof in the operations, business or prospects of the Company or its
Subsidiaries; and


 


(h)                                 Liens on the property or assets of any Subsidiary in
favor of the Company or any Subsidiary (other than any Liens on the property or
assets of any Foreign Borrower in favor of any Foreign Subsidiary (other than
another Foreign Borrower)).


 


It being agreed that
nothing in this Section shall be deemed to directly or indirectly limit
any lien that the Company or any of its Subsidiaries may grant to any other
Person on any margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System) owned thereby to the extent such
limitation could result in the view that the Borrower Obligations hereunder are
directly or indirectly secured by such margin stock.


 


Section 6.2                                   Dissolutions and
Mergers.


 


Neither the Company
nor any Foreign Borrower shall merge into or consolidate with or into any
corporation or entity, unless, after giving effect to such merger or
consolidation (a) the Company or such Foreign Borrower, as applicable, is the
surviving corporation, and (b) no Default or Event of Default has occurred and
is continuing or would result therefrom.


 


Section 6.3                                   Disposition of
Assets.


 


The Company shall not,
and shall not permit any of its Subsidiaries to, convey, sell, assign, lease,
transfer or dispose all or any portion of its assets (including accounts
receivable and Capital Stock of Subsidiaries) to any Person in a single
transaction or in a series of transactions, except for


 


(a)                                  any Sale in the ordinary course of business; and


 


(b)                                 so long as no Default or Event of Default has occurred
and is continuing or would result therefrom, Sales of assets with an aggregate
book value not exceeding 10% of the consolidated assets of the Company and its
Subsidiaries (as determined in accordance with GAAP and this Section 6.3)
as of the end of the most recently concluded Fiscal Year; provided that,
for purposes of this paragraph (b):


 


(i)                                     any shares of Capital Stock of a Subsidiary that are
subject to a Sale shall be valued at the aggregate net book value of the assets
of such Subsidiary multiplied by a fraction of which the numerator is the
aggregate number of shares of Capital Stock of such Subsidiary issued or
disposed of in such Sale and the denominator is the aggregate number of shares
of Capital Stock of such Subsidiary outstanding immediately prior to such Sale;
and


 


67





















 


(ii)                                  any Sale by any Subsidiary to the Company of a
wholly-owned Subsidiary.


 


It being agreed that
nothing in this Section shall be deemed to directly or indirectly limit
any sale by the Company or any of its Subsidiaries to any other Person of
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System) to the extent such limitation could result in the
view that the Borrower Obligations hereunder are directly or indirectly secured
by such margin stock.


 


Section 6.4                                   Conduct of
Business.


 


Neither the Company
nor any Foreign Borrower shall make or permit to be made any material change in
the character of its business as carried on at the Closing Date.


 


Section 6.5                                   Compliance with
Federal Reserve Regulations.


 


Except for systematic
stock repurchase programs from time to time conducted by the Company, neither
the Company nor any Foreign Borrower shall use any part of the proceeds of any
credit extended under this Credit Agreement or the other Credit Documents to
purchase or carry, or to reduce or retire any Indebtedness incurred to purchase
or carry, any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) or to extend credit to any Person for
the purpose of purchasing or carrying any margin stock.


 


Section 6.6                                   Financial
Covenants.


 


The Company will not
permit (a) the Leverage Ratio to exceed at any time 2.50 to 1.00 or (b) the
Fixed Charge Coverage Ratio to be less than at any time 2.00 to 1.00.


 


Section 6.7                                   Subsidiary
Indebtedness.


 


No Subsidiary, other
than the Foreign Borrowers, will create, incur, assume, or suffer to exist any
Indebtedness that, when totaled with all other Indebtedness of the
Subsidiaries, other than the Foreign Borrowers, is in excess of $50,000,000; provided,
that the Japanese Borrower and the Swiss Borrower, collectively, may not incur
Indebtedness in an aggregate amount in excess of $500,000,000 (including any
Extensions of Credit incurred by the Foreign Borrowers hereunder).


 


ARTICLE VII


 


EVENTS OF DEFAULT


 


Section 7.1                                   Events of Default.


 


An
Event of Default shall exist upon the occurrence of any of the following
specified events (each an “Event of Default”):


 


68





















 


(a)                                  Any Borrower shall fail to pay (i) any principal on any
Note when due in accordance with the terms thereof or hereof; or any Borrower shall
fail to reimburse the Issuing Lender for any LOC Obligations when due in
accordance with the terms hereof; or (ii) any interest on any Note or any fee
or other amount payable hereunder when due in accordance with the terms thereof
or hereof, and such failure shall continue unremedied for five (5) days (or the
Company shall fail to pay on the Guaranty in respect of the foregoing); or


 


(b)                                 Any representation or warranty made or deemed made
herein or in any of the other Credit Documents or which is contained in any
certificate, document or financial or other statement furnished at any time
under or in connection with this Credit Agreement shall prove to have been
incorrect, false or misleading in any material respect on or as of the date
made or deemed made; or


 


(c)                                  (i) Any Borrower shall fail to perform, comply
with or observe any term, covenant or agreement applicable to it contained in Section 5.1,
5.2, 5.4(a), Section 5.7 or Article VI hereof; or (ii) any
Borrower shall default on any other covenant, contained in this Credit
Agreement or the other Credit Documents or any other agreement, document or
instrument among any Borrower, the Administrative Agent and the Lenders or
executed by any Borrower in favor of the Administrative Agent or the Lenders (other
than as described in Sections 7.1(a) or 7.1(c)(i) above), and in the event such
breach or failure to comply continues for thirty (30) days of its occurrence
after the earlier of a Responsible Officer becoming aware of such default or
the receipt by the Company of written notice of such default from the
Administrative Agent; or


 


(d)                                 The Company or any of its Subsidiaries shall
(i) default in any payment of principal of or interest on any Indebtedness
of the Company or any of its Subsidiaries (other than the Notes) in a principal
amount outstanding of at least $10,000,000 in the aggregate beyond the period
of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness was created; or (ii) default in
the observance or performance of any other agreement or condition relating to
any Indebtedness of the Company or any of its Subsidiaries in a principal
amount outstanding of at least $10,000,000 in the aggregate or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, in each case, the effect of which default
or other event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity; or


 


(e)                                  The Company or any Material Subsidiary shall (i) become
insolvent or generally fail to pay, or admit in writing its ability or
unwillingness to pay, debts as they become due; (ii) apply for, consent to or
acquiesce in the appointment of a trustee, receiver, sequestrator or other custodian
for the Company or any Material Subsidiary or any substantial part of the
property thereof, or make a general assignment for the benefit 


 


69





















 


of creditors; (iii) in
the absence of such application, consent or acquiescence, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator or other custodian
for the Company or any Material Subsidiary or for a substantial part of the
property thereof, and such trustee, receiver, sequestrator or other custodian
shall not be discharged within 60 days; (iv) permit or suffer to exist the
commencement of any bankruptcy, reorganization, debt arrangement or other case
or proceeding under any bankruptcy or insolvency law, or any dissolution, winding
up or liquidation proceeding, in respect of the Company or any Material
Subsidiary and, if any such case or proceeding shall be consented to or
acquiesced in by the Company or any Material Subsidiary or shall result in the
entry of an order for relief or shall remain for sixty (60) days undismissed;
or (v) take any action authorizing, or in furtherance of, any of the foregoing;
or


 


(f)                                    Any judgment or order shall be entered against any
Borrower or any of the Material Subsidiaries involving a liability (to the
extent not covered by insurance) of $10,000,000 or more and such judgment or
order shall not be paid or otherwise satisfied, and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order, or (ii) there shall be any period of ten (10) consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or


 


(g)                                 Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under Section 412
of the Code, any Plan shall have had or is likely to have a trustee appointed
to administer such Plan, any Plan is, shall have been or is likely to be
terminated or the subject of termination proceedings under ERISA, any Plan
shall have an Unfunded Current Liability, a contribution required to be made to
a Plan or a foreign pension plan has not been timely made or the Company, any
Subsidiary or any ERISA Affiliate has incurred or is likely to incur a
liability to or on account of a Plan under Section 409, 502(i), 502(1),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401
(a)(29), 4971, 4975 or 4980 of the Code (ii) there shall result from any such
event or events the imposition of a Lien, the granting of a security interest,
or a liability or a material risk of incurring a liability, and (iii) which
Lien, security interest or liability, individually and/or in the aggregate, in
the opinion of the Administrative Agent or any Lender will cause a Material
Adverse Change; or


 


(h)                                 There shall occur a Change of Control; or


 


(i)                                     At any time after the execution and delivery thereof,
the Guaranty for any reason, other than the satisfaction in full of all
Borrower Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void, or Borrower shall contest the validity or enforceability
of the Guaranty or any Credit Document in writing or deny in writing that it
has any further liability, including with respect to future advances by the
Lenders, under any Credit Document to which it is a party.


 


70





















 


Section 7.2                                   Acceleration;
Remedies.


 


Upon
the occurrence of an Event of Default, then, and in any such event, (a) if
such event is an Event of Default specified in Section 7.1(e) above,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon), and all other amounts under the Credit Documents
(including without limitation the maximum amount of all contingent liabilities
under Letters of Credit) shall immediately become due and payable, and
(b) if such event is any other Event of Default, either or both of the
following actions may be taken: 
(i) with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrowers declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the written consent of the Required
Lenders, the Administrative Agent may, or upon the written request of the Required
Lenders, the Administrative Agent shall, by notice of default to the Borrowers,
declare the Loans (with accrued interest thereon) and all other amounts owing
under this Credit Agreement and the Notes to be due and payable forthwith and
direct the Borrowers to pay to the Administrative Agent cash collateral as
security for the LOC Obligations for subsequent drawings under then outstanding
Letters of Credit an amount equal to the maximum amount of which may be drawn
under Letters of Credit then outstanding, whereupon the same shall immediately
become due and payable.


 


ARTICLE VIII


 


THE ADMINISTRATIVE AGENT


 


Section 8.1                                   Appointment.


 


Each
Lender hereby irrevocably designates and appoints Wachovia as the
Administrative Agent of such Lender under this Credit Agreement, and each such
Lender irrevocably authorizes Wachovia, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of this Credit
Agreement and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Credit Agreement,
together with such other powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary
elsewhere in this Credit Agreement, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Credit
Agreement or otherwise exist against the Administrative Agent.


 


Section 8.2                                   Delegation of
Duties.


 


The
Administrative Agent may execute any of its duties under this Credit Agreement
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties.  The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.  


 


71





















 


Without
limiting the foregoing, the Administrative Agent may appoint one of its
affiliates as its agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to the Borrowers and distribution
of funds to the Lenders and to perform such other related functions of the
Administrative Agent hereunder as are reasonably incidental to such functions.


 


Section 8.3                                   Exculpatory
Provisions.


 


Neither
the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Credit Agreement (except for its or such Person’s own
gross negligence or willful misconduct) or (ii) responsible in any manner
to any of the Lenders for any recitals, statements, representations or
warranties made by the Borrowers or any officer thereof contained in this
Credit Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under
or in connection with, this Credit Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any of the Credit
Documents or for any failure of any of the Borrowers to perform its obligations
hereunder or thereunder.  The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance by the Borrowers of
any of the agreements contained in, or conditions of, this Credit Agreement, or
to inspect the properties, books or records of the Borrowers.


 


Section 8.4                                   Reliance by the
Administrative Agent.


 


The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any Credit Document, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it in good faith to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Borrowers), independent
accountants and other experts selected by the Administrative Agent.  The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes unless (a) a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent and (b) the Administrative Agent shall
have received the written agreement of such assignee to be bound hereby as
fully and to the same extent as if such assignee were an original Lender party
hereto, in each case in form satisfactory to the Administrative Agent.  The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Credit Agreement
unless it shall first receive such advice or concurrence of the Required Lenders
or all the Lenders as may be required under this Credit Agreement or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.  The
Administrative Agent shall, subject to Section 8.3, be fully protected in
acting, or in refraining from acting, under any of the Credit Documents in
accordance with a request of the Required Lenders or all of the Lenders, as may
be required under this Credit Agreement, and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Notes.


 


72





















 


Section 8.5                                   Notice of Default.


 


The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or a Borrower referring
to this Credit Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default”.  In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders.  The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders, or
all Lenders, as applicable; provided, however, that unless and
until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders except
to the extent that this Credit Agreement expressly requires that such action be
taken, or not taken, only with the consent or upon the authorization of the
Required Lenders, or all of the Lenders, as the case may be.


 


Section 8.6                                   Non-Reliance on
the Administrative Agent and Other Lenders.


 


Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representation or warranty to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Borrowers,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender.  Each
Lender represents to the Administrative Agent 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
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrowers and made
its own decision to make its Loans hereunder and enter into this Credit
Agreement.  Each Lender also represents
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
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Credit
Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrowers. 
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrowers which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.


 


Section 8.7                                   Indemnification.


 


The
Lenders agree to indemnify the Administrative Agent in its capacity as such
hereunder (to the extent not reimbursed by the applicable Borrower and without
limiting the obligation of the Borrowers to do so), ratably according to their
respective Commitment 


 


73





















 


Percentages in
effect on the date on which indemnification is sought under this Section, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of any
Credit Document or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent resulting from the Administrative Agent’s gross negligence or willful
misconduct, as determined by a court of competent jurisdiction.  The agreements in this Section 8.7 shall
survive the termination of this Credit Agreement and payment of the Notes and
all other amounts payable hereunder.


 


Section 8.8                                   Administrative
Agent in its Individual Capacity.


 


The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrowers as though the
Administrative Agent were not an Administrative Agent hereunder.  With respect to its Loans made or renewed by
it and any Note issued to it, the Administrative Agent shall have the same
rights and powers under this Credit Agreement as any Lender and may exercise
the same as though it were not the Administrative Agent, and the terms “Lender”
and “Lenders” shall include the Administrative Agent in its individual
capacity.


 


Section 8.9                                   Successor
Administrative Agent.


 


The
Administrative Agent may resign as Administrative Agent upon 30 days’
prior notice to the Borrowers and the Lenders. 
If the Administrative Agent shall resign as an Administrative Agent
under this Credit Agreement and the Notes, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Company with such approval not to be
unreasonably withheld (provided, however if an Event of Default shall exist at
such time, no approval of the Company shall be required hereunder), whereupon
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term “Administrative Agent”, shall mean such
successor Administrative Agent effective upon such appointment and approval,
and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Credit Agreement or any holders of the Notes.  After any retiring Administrative Agent’s
resignation as Administrative Agent, the provisions of this Section 8.9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Credit Agreement.


 


Section 8.10                            Nature of Duties.


 


Except as otherwise
expressly stated herein, any agent (other than the Administrative Agent) or
arranger listed from time to time on the cover page of this Credit Agreement
shall have 


 


74





















 


no obligations, responsibilities or duties
under this Credit Agreement or under any other Credit Document other than
obligations, responsibilities and duties applicable to all Lenders in their
capacity as Lenders; provided, however, that such agents and arrangers shall be
entitled to the same rights, protections, exculpations and indemnifications
granted to the Administrative Agent under this Article VIII in their
capacity as an agent or arranger.


 


Section 8.11                            Other Agents; Arrangers.


 


Except as otherwise
expressly stated herein, any agent (other than the Administrative Agent) or
arranger listed from time to time on the cover page of this Credit Agreement
shall have no obligations, responsibilities or duties under this Credit
Agreement or under any other Credit Document other than obligations,
responsibilities and duties applicable to all Lenders in their capacity as
Lenders; provided, however, that such agents and arrangers shall be entitled to
the same rights, protections, exculpations and indemnifications granted to the
Administrative Agent under this Article VIII in their capacity as an agent
or arranger.


 


ARTICLE IX


 


MISCELLANEOUS


 


Section 9.1                                   Amendments and
Waivers.


 


Neither
this Credit Agreement nor any of the other Credit Documents, nor any terms
hereof or thereof may be amended, supplemented, waived or modified except in
accordance with the provisions of this Section 9.1.  The Required Lenders may, or, with the
written consent of the Required Lenders, the Administrative Agent may, from
time to time, (a) enter into with the Borrowers written amendments, supplements
or modifications hereto and to the other Credit Documents for the purpose of
adding any provisions to this Credit Agreement or the other Credit Documents or
changing in any manner the rights of the Lenders or of the Borrowers hereunder
or thereunder or (b) waive, on such terms and conditions as the Required
Lenders may specify in such instrument, any of the requirements of this Credit
Agreement or the other Credit Documents or any Default or Event of Default and
its consequences; provided, however, that no such amendment,
waiver, supplement, modification or release shall:


 


(i)                                     reduce the amount or extend the scheduled date of
maturity of any Loan or Note or any installment thereon or the unreimbursed
amount of any drawing on any Letter of Credit, or reduce the stated rate of any
interest or fee payable hereunder (other than interest at the increased
post-default rate) or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender’s Commitment or
Commitment Percentage, in each case without the written consent of each Lender
directly affected thereby, or


 


75





















 


(ii)                                  amend, modify or waive any provision of this Section 9.1
or reduce the percentage specified in the definition of Required Lenders,
without the written consent of all the Lenders, or


 


(iii)                               amend, modify or waive any provision of Article VIII
without the written consent of the then Administrative Agent, or


 


(iv)                              amend, modify or waive any provision of the Credit
Documents requiring consent, approval or request of the Required Lenders or all
Lenders, without the written consent of such Required Lenders or Lenders as
appropriate; or


 


(v)                                 amend, modify or waive any provision of the Credit
Documents affecting the rights or duties of the Administrative Agent, the
Issuing Lender or the Swingline Lender under any Credit Document without the
written consent of the Administrative Agent, the Issuing Lender and/or the
Swingline Lender, as applicable, in addition to the Lenders required
hereinabove to take such action; or


 


(vi)                              amend or modify the definition of Borrower Obligations
to delete or exclude any obligation or liability described therein without the
written consent of each Lender directly affected thereby; or


 


(vii)                           amend, modify or waive any provision of Section 2.13
or Article X in a manner that would alter the pro rata share of payments
required thereby without the written consent of each Lender directly affected
thereby; or


 


(viii)                        release any of the Borrowers from all or substantially
all of their respective obligations hereunder (including the Company’s
obligations under the Guaranty), without the written consent of all of the
Lenders.


 


Any
such waiver, amendment, supplement or modification and any such release shall
apply equally to each of the Lenders and shall be binding upon the Borrowers,
the Lenders, the Administrative Agent and all future holders of the Notes.  In the case of any waiver, the Borrowers, the
Lenders and the Administrative Agent shall be restored to their former position
and rights hereunder and under the outstanding Loans and Notes and other Credit
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.


 


Notwithstanding
any of the foregoing to the contrary, the consent of the Borrowers shall not be
required for any amendment, modification or waiver of the provisions of Article VIII
(other than the provisions of Section 8.9).  In addition, the Borrowers and the Lenders
hereby authorize the Administrative Agent to modify this Credit Agreement by
unilaterally amending or supplementing Schedule 2.1(a) from time to
time in the manner requested by the Borrowers, the Administrative Agent or any
Lender in order to reflect any assignments or transfers of the Loans 


 


76





















 


as provided for
hereunder; provided, however, that the Administrative Agent shall
promptly deliver a copy of any such modification to the Borrowers and each
Lender.


 


Notwithstanding
the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as such
Lender sees fit on any bankruptcy reorganization plan (or, subject to clause
(y) below, any other matter in any bankruptcy case or proceeding) that affects
the Loans, and each Lender acknowledges that the provisions of Section 1126(c)
of the Bankruptcy Code supersedes the unanimous consent provisions set forth
herein and (y) the Required Lenders may consent to allow a Borrower to use cash
collateral in the context of a bankruptcy or insolvency proceeding.  Subject to any other provisions expressly set
forth herein to the contrary, each Lender retains its rights as a creditor to
enforce the Loans (and other Borrower Obligations) owing to such Lender against
the Borrowers following acceleration in accordance with Section 7.2 or
when such Loans (and other Borrower Obligations) are otherwise due and payable
on the Maturity Date; provided that payments made to such Lender as a
result thereof shall be subject to the pro-rata (and other) sharing provisions
set forth in this Credit Agreement.


 


Section 9.2                                   Notices.


 


Except
as otherwise provided in Article II, all notices, requests and demands to
or upon the respective parties hereto to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) when delivered by hand,
(b) when transmitted via telecopy (or other facsimile device) to the
number set out herein, (c) the Business Day immediately following the day
on which the same has been delivered prepaid to a reputable national overnight
air courier service, or (d) the third Business Day following the day on
which the same is sent by certified or registered mail, postage prepaid, in
each case, addressed as follows in the case of the Borrowers and the Administrative
Agent, and as set forth on Schedule 9.2 in the case of the Lenders,
or to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes:


 


	
   

  	
  The Company

  	
  IMS Health Incorporated

  	
   

  
	
   

  	
  and the other

  	
  1499 Post Road

  	
   

  
	
   

  	
  Borrowers:

  	
  Fairfield, Connecticut 06284

  	
   

  
	
   

  	
   

  	
  Attention: Jeff Ford, Treasurer

  	
   

  
	
   

  	
   

  	
  Telecopier: (203) 319-4533

  	
   

  
	
   

  	
   

  	
  Telephone: (203) 319-4527

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  The Administrative

  	
  Wachovia Bank, National
  Association, as Administrative Agent

  
	
   

  	
  Agent:

  	
  Charlotte Plaza

  	
   

  
	
   

  	
   

  	
  201 South College Street, CP-8

  	
   

  
	
   

  	
   

  	
  Charlotte, North Carolina
  28288-0680

  	
   

  
	
   

  	
   

  	
  Attention: Syndication Agency
  Services/Rufus Kearney

  	
   

  
	
   

  	
   

  	
  Telecopier: (704) 383-0288

  	
   

  
	
   

  	
   

  	
  Telephone: (704) 383-6591

  	
   

  



 


77





















 


	
   

  	
   

  	
  with a copy to:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia Bank, National
  Association

  	
   

  
	
   

  	
   

  	
  One Wachovia Center, DC-6

  	
   

  
	
   

  	
   

  	
  Charlotte, North Carolina
  28288-0737

  	
   

  
	
   

  	
   

  	
  Attention: Agency
  Management/Christian Bradeen

  
	
   

  	
   

  	
  Telecopier: (704) 383-7611

  	
   

  
	
   

  	
   

  	
  Telephone: (704) 715-7708

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with respect to Foreign Currency
  Loans and Letters of Credit denominated in Foreign Currencies:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia Bank, National
  Association

  	
   

  
	
   

  	
   

  	
  London Branch

  	
   

  
	
   

  	
   

  	
  3 Bishopsgate

  	
   

  
	
   

  	
   

  	
  London, England EC2N3AB

  
	
   

  	
   

  	
  Attention:

  	
  Maureen Hart

  
	
   

  	
   

  	
  Facsimile:

  	
  011 44 207 929 4645

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia Bank, National
  Association

  	
   

  
	
   

  	
   

  	
  Charlotte Plaza

  	
   

  
	
   

  	
   

  	
  201 South College Street, CP-8

  	
   

  
	
   

  	
   

  	
  Charlotte, North Carolina
  28288-0680

  	
   

  
	
   

  	
   

  	
  Attention: Syndication Agency
  Services/Rufus Kearney

  
	
   

  	
   

  	
  Telecopier: (704) 383-0288

  	
   

  
	
   

  	
   

  	
  Telephone: (704) 383-6591

  	
   

  
					



 


Section 9.3                                   No Waiver;
Cumulative Remedies.


 


No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege.  The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.


 


Section 9.4                                   Payment of
Expenses and Taxes.


 


The
Borrowers jointly and severally agree (a) to pay or reimburse the
Administrative Agent and the Arranger for all their reasonable and documented
out-of-pocket costs and expenses incurred in connection with the development,
preparation, negotiation, printing and execution of, and any amendment,
supplement or modification to, this Credit Agreement and the other Credit
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, 


 


78





















 


together with
the reasonable fees and disbursements of counsel to the Administrative Agent
and the Arranger, (b) to pay or reimburse each Lender and the Administrative
Agent for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Credit Agreement and the
other Credit Documents, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and to the Lenders, and
(c) on demand, to pay, indemnify, and hold each Lender and the Administrative
Agent harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, which may be payable or determined to
be payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
the Credit Documents and any such other documents, and (d) to pay, indemnify,
and hold each Lender and the Administrative Agent and their Affiliates harmless
from and against, any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of the Credit Documents and any such other
documents and the use, or proposed use, of proceeds of the Loans (all of the
foregoing, collectively, the “indemnified liabilities”); provided,
however, that the Borrowers shall not have any obligation hereunder to
any Agent or any Lender or any Affiliate thereof with respect to indemnified
liabilities to the extent (i) arising from the gross negligence or willful
misconduct of the Administrative Agent or any such Lender or any such
Affiliate, as determined by a court of competent jurisdiction or (ii) relating
to disputes among any Lender or Affiliate thereof and the Administrative Agent
or one or more other Lender or Affiliate thereof unless such dispute is related
to this Credit Agreement or the Extensions of Credit hereunder.  No Borrower shall be required to indemnify
any Indemnified Party for any amount paid or payable to any Indemnified Party
in the compromise or settlement of any action, proceeding or investigation
without the prior written consent of the Company, which consent shall not be
unreasonably withheld.  Promptly after receipt by an Indemnified Party of
notice of its involvement in any action, proceeding or investigation, such
Indemnified Party shall, if a claim for indemnification in respect thereof is
to be made against the Company under this Credit Agreement, promptly notify the
Company in writing of such involvement. 
Failure by the Indemnified Party to so notify the Company shall not
relieve the Company from the obligation to indemnify the Indemnified Party
under this Credit Agreement except to the extent that the Company suffers
actual prejudice as a result of such failure, and shall not relieve the Company
from its obligation to provide reimbursement and contribution to the
Indemnified Party.  It is acknowledged and agreed that
each Indemnified Party shall cooperate with the Company in good faith to
coordinate a mutual defense strategy and to enter into joint defense agreements
and will use commercially reasonable efforts to minimize the costs thereof
including, without limitation, (i) the delivery of periodic updates with
respect to legal and other expenses incurred, (ii)  limiting the engagement of legal counsel to
one law firm at any one time (excluding local counsel which may be engaged as
deemed necessary by the Indemnified Party) and (iii) the taking of such other
measures in connection therewith as may be reasonably requested by the Company.  The
agreements in this Section 9.4 shall survive repayment of the Loans and
the Borrower Obligations.


 


79





















 


Section 9.5                                   Successors and
Assigns; Participations; Purchasing Lenders.


 


(a)                                  This Credit Agreement shall be binding upon and inure
to the benefit of the Borrowers, the Lenders, the Administrative Agent, all
future holders of the Notes and their respective successors and assigns, except
that the Borrowers may not assign or transfer any of their rights or
obligations under this Credit Agreement or the other Credit Documents without
the prior written consent of each Lender; except to the extent any such
assignment results from the consummation of a merger or consolidation permitted
pursuant to Section 6.2 of this Credit Agreement.


 


(b)                                 Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time
sell to one or more banks or other entities (“Participants”)
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender, or any other interest of such Lender
hereunder; provided, however, that, so long as no Event of
Default has occurred and is continuing, participating interests in (i)
Swiss/Multicurrency Revolving Loans and Swiss/Multicurrency Revolving Notes or
any part of the Swiss/Multicurrency Commitment may only be sold to Participants
who are Banks (other than with the consent of the Borrowers (which consent
shall not be unreasonably withheld)) and (ii) Japanese/Multicurrency Revolving
Loans and Japanese/Multicurrency Revolving Notes or any part of the
Japanese/Multicurrency Commitment may only be sold to Participants who are
Eligible Investors (other than with the consent of the Borrowers (which consent
shall not be unreasonably withheld)); provided further that for so long
as an Event of Default has occurred and is continuing, participating interests
in Swiss/Multicurrency Revolving Loans and Swiss/Multicurrency Revolving Notes
or any part of the Swiss/Multicurrency Commitment shall not be sold to any
Participant who is a Non-Bank, if such sale would result in there being more
than ten (10) Non-Banks who are either Participants in and/or Lenders with a
Swiss/Multicurrency Revolving Commitment under the Credit Agreement, unless the
Borrowers otherwise consent.  In the
event of any such sale by a Lender of participating interests to a Participant,
such Lender’s obligations under this Credit Agreement to the other parties to
this Credit Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Note for all purposes under this Credit Agreement, and the Borrowers
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Credit Agreement.  No Lender shall
transfer or grant any participation under which the Participant shall have
rights to approve any amendment to or waiver of this Credit Agreement or any
other Credit Document except to the extent such amendment or waiver would
(i) extend the scheduled maturity of any Loan or Note or any installment
thereon in which such Participant is participating, or reduce the stated rate
or extend the time of payment of interest or fees thereon (except in connection
with a waiver of interest at the increased post-default rate) or reduce the
principal amount thereof, or increase the amount of the Participant’s
participation over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of Default shall not constitute a change in
the terms of such participation, and that an increase in any Commitment or Loan
shall be permitted without consent of any participant if the Participant’s
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by the Borrowers of any of their respective rights and
obligations under this Credit Agreement or (iii) release the Company from its
obligations under 


 


80





















 


the Guaranty. 
In the case of any such participation, the Participant shall not have
any rights under this Credit Agreement or any of the other Credit Documents
(the Participant’s rights against such Lender in respect of such participation
to be those set forth in the agreement executed by such Lender in favor of the
Participant relating thereto) and all amounts payable by the Borrowers
hereunder shall be determined as if such Lender had not sold such
participation; provided that each Participant shall be entitled to the
benefits of Sections 2.18, 2.19, 2.20, 2.21 and 9.6(b) with respect to its
participation in the Commitments and the Loans outstanding from time to time; provided
further, that no Participant shall be entitled to receive any greater
amount pursuant to such Sections than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred
by such transferor Lender to such Participant had no such transfer occurred.


 


(c)                                  Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time,
sell or assign to any Lender or any Affiliate or Related Fund thereof and with
the consent of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrowers (in each case, which consent shall
not be unreasonably withheld or delayed), to one or more additional banks or
financial institutions or entities (“Purchasing Lenders”), all or any
part of its rights and obligations under this Credit Agreement and the Notes in
minimum amounts of $5,000,000 with respect to its Commitment and its Loans (or,
if less, the entire amount of such Lender’s Commitment and Loans), pursuant to
a Commitment Transfer Supplement, executed by such Purchasing Lender and such
transferor Lender (and, in the case of a Purchasing Lender that is not then a
Lender or an affiliate or Related Fund thereof, the Administrative Agent and,
so long as no Event of Default has occurred and is continuing, the Company),
and delivered to the Administrative Agent for its acceptance and recording in
the Register; provided, however, that (i) any sale or assignment
to an existing Lender, or Affiliate or Related Fund thereof, shall not require
the consent of the Administrative Agent or the Borrowers nor shall any such
sale or assignment be subject to the minimum assignment amounts specified
herein, (ii) any sale or assignment relating to a Swiss/Multicurrency Revolving
Loan or a Swiss/Multicurrency Revolving Note and a Swiss/Multicurrency
Revolving Commitment shall at all times (other than after the occurrence and
continuance of an Event of Default) require the consent of the Borrowers (which
consent shall not be unreasonably withheld or delayed) and (iii) any sale or
assignment relating to a Japanese/Multicurrency Revolving Loan or a
Japanese/Multicurrency Revolving Note and a Japanese/Multicurrency Revolving
Commitment to a Purchasing Lender that is not an Eligible Investor shall at all
times (other than after the occurrence and continuance of an Event of Default)
require the consent of the Borrowers (which consent shall not be unreasonably
withheld or delayed); provided further that for so long as an Event of
Default has occurred and is continuing, participating interests in
Swiss/Multicurrency Revolving Loans and Swiss/Multicurrency Revolving Notes or
any part of the Swiss/Multicurrency Commitment shall not be sold to any
Purchasing Lender who is a Non-Bank, if such sale would result in there being
more than ten (10) Non-Banks who are either Participants in and/or Lenders with
a Swiss/Multicurrency Revolving Commitment under the Credit Agreement, unless
the Borrowers otherwise consent.  Upon
such execution, delivery, acceptance and recording, from and after the Transfer
Effective Date specified in such Commitment Transfer Supplement, (x) the Purchasing
Lender thereunder shall be a party hereto and, to the extent provided in such
Commitment Transfer Supplement, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the transferor Lender
thereunder shall, to the extent provided in such


 


81





















 


Commitment Transfer Supplement, be released
from its obligations under this Credit Agreement (and, in the case of a
Commitment Transfer Supplement covering all or the remaining portion of a
transferor Lender’s rights and obligations under this Credit Agreement, such
transferor Lender shall cease to be a party hereto).  With respect to any assignment of any rights
or obligations of a Lender in a Swiss/Multicurrency Revolving Loan or a
Swiss/Multicurrency Revolving Note and a Swiss/Multicurrency Revolving
Commitment, the Purchasing Lender shall identify in the Commitment Transfer
Supplement whether such Purchasing Lender is a Bank or a Non-Bank.  Such Commitment Transfer Supplement shall be
deemed to amend this Credit Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Lender and the resulting
adjustment of Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such
transferor Lender under this Credit Agreement and the Notes.  On or prior to the Transfer Effective Date
specified in such Commitment Transfer Supplement, the Borrowers, at their own
expense, shall execute and deliver to the Administrative Agent in exchange for
the Notes delivered to the Administrative Agent pursuant to such Commitment
Transfer Supplement new Notes to the order of such Purchasing Lender in an
amount equal to the Commitment assumed by it pursuant to such Commitment Transfer
Supplement and, unless the transferor Lender has not retained a Commitment
hereunder, new Notes to the order of the transferor Lender in an amount equal
to the Commitment retained by it hereunder. 
Such new Notes shall be dated the Closing Date and shall otherwise be in
the form of the Notes replaced thereby.


 


(d)                                 The Administrative Agent shall maintain at its address
referred to in Section 9.2 a copy of each Commitment Transfer Supplement
delivered to it and a register (the “Register”) for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Loans owing to, each Lender from time to time.  The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrowers, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this
Credit Agreement.  The Register shall be
available for inspection by the Borrowers or any Lender at any reasonable time
and from time to time upon reasonable prior notice.


 


(e)                                  Upon its receipt of a duly executed Commitment Transfer
Supplement, together with payment to the Administrative Agent by the transferor
Lender or the Purchasing Lender, as agreed between them, of a registration and
processing fee of $3,500 for each Purchasing Lender (other than an Affiliate of
such Lender or a Related Fund) listed in such Commitment Transfer Supplement
and the Notes subject to such Commitment Transfer Supplement, the
Administrative Agent shall (i) accept such Commitment Transfer Supplement,
(ii) record the information contained therein in the Register and (iii) give
prompt notice of such acceptance and recordation to the Lenders and the
Borrowers.


 


(f)                                    The Borrowers authorize each Lender to disclose to any
Participant or Purchasing Lender (each, a “Transferee”) and any
prospective Transferee any and all financial information in such Lender’s
possession concerning the Borrowers and its Affiliates which has been delivered
to such Lender by or on behalf of the Borrowers pursuant to this Credit
Agreement or which has been delivered to such Lender by or on behalf of the
Borrowers in connection with


 


82





















 


such Lender’s credit evaluation of the Borrowers and its Affiliates
prior to becoming a party to this Credit Agreement, in each case subject to Section 9.15.


 


(g)                                 At the time of each
assignment pursuant to this Section 9.5 to a Person which is not already a
Lender hereunder and which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall provide to the Borrowers and the
Administrative Agent the appropriate Internal Revenue Service Forms described
in Section 2.21.


 


(h)                                 Nothing herein shall
prohibit any Lender from pledging or assigning any of its rights under this
Credit Agreement (including, without limitation, any right to payment of
principal and interest under any Note) to any Federal Reserve Bank in
accordance with applicable laws.


 


Section 9.6                                   Adjustments;
Set-off.


 


(a)                                  Each Lender agrees
that if any Lender (a “benefited Lender”) shall at any time receive any
payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section 7.1(e),
or otherwise) in a greater proportion than any such payment to or collateral received
by any other Lender, if any, in respect of such other Lender’s Loans, or
interest thereon, such benefited Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other Lender’s
Loan, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefited Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.  The Borrowers agree
that each Lender so purchasing a portion of another Lender’s Loans may exercise
all rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.


 


(b)                                 The Borrowers hereby
grant to the Lenders, a lien, security interest, and right of setoff as
security for all liabilities and obligations to the Lenders, whether now
existing or hereafter arising upon and against all deposits, credits,
collateral, and property, now or hereafter in the possession, custody,
safekeeping or control of the Lenders or any entity under the control of the
parent company of any of the Lenders, and their successors and assigns or in
transit to any of them.  At any time
after an Event of Default, without demand or notice, the Lenders, to the extent
permitted by applicable law, may set off the same or any part thereof and apply
the same to any liability or obligation of the Borrowers and any guarantor even
though unmatured and regardless of the adequacy of any other collateral
securing the Loans.  ANY AND ALL RIGHTS
TO REQUIRE THE LENDERS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO ANY
OTHER COLLATERAL WHICH SECURES THE LOANS, PRIOR TO EXERCISING THEIR RIGHTS OF
SETOFF WITH RESPECT TO SUCH DEPOSITS,


 


83





















 


CREDITS, OR OTHER PROPERTY OF THE BORROWERS, ARE HEREBY KNOWINGLY,
VOLUNTARILY, AND IRREVOCABLY WAIVED.


 


Section 9.7                                   Table of Contents
and Section Headings.


 


The table of contents and the Section and
subsection headings herein are intended for convenience only and shall be
ignored in construing this Credit Agreement.


 


Section 9.8                                   Counterparts.


 


This Credit Agreement may be executed by one
or more of the parties to this Credit Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. 
A set of the copies of this Credit Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent.


 


Section 9.9                                   Effectiveness.


 


This Credit Agreement shall become effective
on the date on which all of the parties have signed a copy hereof (whether the
same or different copies) and shall have delivered the same to the
Administrative Agent pursuant to Section 9.2 or, in the case of the
Lenders, shall have given to the Administrative Agent written, telecopied or
telex notice (actually received) at such office that the same has been signed
and mailed to it.


 


Section 9.10                            Severability.


 


Any provision of this Credit Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.


 


Section 9.11                            Integration.


 


This Credit Agreement and the other Credit
Documents represent the agreement of the Borrowers, the Administrative Agent
and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent, the Borrowers or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or therein.


 


Section 9.12                            Governing Law.


 


This Credit Agreement and, unless otherwise
specified therein, each other Credit Document and the rights and obligations of
the parties under this Credit Agreement and such other Credit Documents shall
be governed by, and construed and interpreted in accordance with,


 


84





















 


the laws of the State of New York applicable to contracts made and
to be performed entirely within such State.


 


Section 9.13                            Consent to Jurisdiction
and Service of Process.


 


Each Borrower consents, for itself and in
connection with its properties to the non-exclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
State court sitting in New York City for purposes of all legal proceedings
arising out of the Credit Agreement, any Note or any of the other Credit
Documents.  The Borrowers irrevocably
agree that all service of process in any such proceedings in any such court may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, return receipt requested,
to it at its address set forth in Section 9.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto, such
service being hereby acknowledged by the Borrowers to be effective and binding
service to the fullest extent permitted by applicable law.  The Borrowers, the Administrative Agent and
the Lenders irrevocably waive, to the fullest extent permitted by applicable
law, any objection, including, without limitation, any objection to the laying
of venue or based on the grounds of forum non conveniens which it may now or
hereafter have to the bringing of any such action or proceeding in any such
jurisdiction.  Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of any Lender to bring proceedings against the Borrowers in the
court of any other jurisdiction.


 


Section 9.14                            Confidentiality.


 


The Administrative Agent and each of the
Lenders agrees that it will use its best efforts not to disclose without the
prior consent of the Borrowers (other than to its employees, affiliates,
auditors or counsel or to another Lender) any information (the “Information”)
with respect to the Borrowers and the Company’s Subsidiaries which is furnished
pursuant to this Credit Agreement, any other Credit Document or any documents
contemplated by or referred to herein or therein and which is designated by the
Borrowers to the Lenders in writing as confidential or as to which it is
otherwise reasonably clear such information is not public, except that any
Lender may disclose any such Information (a) as has become generally
available to the public other than by a breach of this Section 9.14,
(b) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or federal regulatory body having
or claiming to have jurisdiction over such Lender or to the Federal Reserve
Board or the Federal Deposit Insurance Corporation or the Office of the
Comptroller of the Currency or the National Association of Insurance
Commissioners or similar organizations (whether in the United States or
elsewhere) or their successors, (c) as may be required or appropriate in
response to any summons or subpoena or any law, order, regulation or ruling
applicable to such Lender, (d) to (i) any prospective Participant or
assignee in connection with any contemplated transfer pursuant to Section 9.5
or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Company, provided that such
prospective transferee shall have been made aware of this Section 9.14 and
shall have agreed to be bound by its provisions as if it were a party to this
Credit Agreement, (e) to Gold Sheets and other similar bank trade
publications; such information to consist of deal terms and other information
regarding the credit facilities evidenced by this Credit Agreement customarily
found in such publications and (f) in


 


85





















 


connection with any suit, action or proceeding for the purpose of defending
itself, reducing its liability, or protecting or exercising any of its claims,
rights, remedies or interests under or in connection with the Credit Documents
or any Hedging Agreement.


 


Section 9.15                            Acknowledgments.


 


The Borrowers each hereby acknowledges that:


 


(a)                                  it
has been advised by counsel in the negotiation, execution and delivery of each
Credit Document;


 


(b)                                 neither
the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Borrowers arising out of or in connection with this Credit
Agreement and the relationship between the Administrative Agent and Lenders, on
one hand, and the Borrowers, on the other hand, in connection herewith is
solely that of debtor and creditor; and


 


(c)                                  no
joint venture exists among the Lenders or among the Borrowers and the Lenders.


 


Section 9.16                            Waivers of Jury Trial.


 


THE BORROWERS, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.


 


Section 9.17                            Judgment Currency.


 


If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder or under any other
Credit Document in one currency into another currency, 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
on the Business Day preceding that on which final judgment is given.  The obligation of
the Borrowers in respect of any such sum due from it to the Administrative
Agent or any Lender hereunder or under the other Credit Documents 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 Credit Agreement (the “Agreement Currency”),
be discharged only to the extent that on the Business Day following receipt by
the Administrative Agent or such Lender of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent or such Lender may in accordance
with normal banking procedures purchase the Agreement Currency with the
Judgment Currency.  If the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent or such Lender in the Agreement Currency, the Borrowers
agree, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or such Lender or the Person to whom such
obligation was


 


86





















 


owing against such loss.  If the
amount of the Agreement Currency so purchased is greater than the sum originally
due to the Administrative Agent or such Lender in such currency, the
Administrative Agent or such Lender agrees to return the amount of any excess
to the Borrowers (or to any other Person who may be entitled thereto under
applicable law).


 


Section 9.18                            USA Patriot Act Notice.


 


Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrowers that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (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 or the Administrative Agent, as applicable,
to identify the Borrowers in accordance with Act.


 


Section 9.19                            Guaranty by the Company
of the Borrower Obligations of the Foreign Borrowers.


 


(a)                                  The Guaranty.  In order to induce the Lenders to enter into
this Credit Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by the Company from the Extensions of Credit
hereunder, the Company hereby agrees with the Administrative Agent and the
Lenders as follows:  the Company hereby
unconditionally and irrevocably guarantees as primary obligor and not merely as
surety the full and prompt payment when due, whether upon maturity, by
acceleration or otherwise, of any and all indebtedness of the Foreign Borrowers
to the Administrative Agent and the Lenders. 
If any or all of the indebtedness becomes due and payable hereunder, the
Company unconditionally promises to pay such indebtedness to the Administrative
Agent, the Lenders, or their respective order, on demand, together with any and
all reasonable expenses which may be incurred by the Administrative Agent or
the Lenders in collecting any of the Borrower Obligations of the Foreign
Borrowers.  The word “indebtedness” is
used in this Article X in its most comprehensive sense and includes any
and all advances, debts, obligations and liabilities of the Foreign Borrowers,
including specifically all Borrower Obligations of the Foreign Borrowers,
arising in connection with this Credit Agreement or the other Credit Documents,
in each case, heretofore, now, or hereafter made, incurred or created, whether
voluntarily or involuntarily, absolute or contingent, liquidated or
unliquidated, determined or undetermined, whether or not such indebtedness is
from time to time reduced, or extinguished and thereafter increased or incurred,
whether the applicable Foreign Borrower may be liable individually or jointly
with others, whether or not recovery upon such indebtedness may be or hereafter
become barred by any statute of limitations, and whether or not such
indebtedness may be or hereafter become otherwise unenforceable.


 


Notwithstanding any provision to the contrary
contained herein or in any other of the Credit Documents, to the extent the
obligations of the Company shall be adjudicated to be invalid or unenforceable
for any reason (including, without limitation, because of any applicable state,
federal or provincial law relating to fraudulent conveyances or transfers) then
the obligations of the Company hereunder shall be limited to the maximum amount
that is


 


87





















 


permissible under applicable law (whether federal, state or provincial
and including, without limitation, the Bankruptcy Code).


 


(b)                                 Bankruptcy.          Additionally,
the Company unconditionally and irrevocably guarantees the payment of any and
all Borrower Obligations of the Foreign Borrowers to the Lenders whether or not
due or payable by the applicable Foreign Borrowers upon the occurrence of any
of the events specified in Section 7.1(e), and unconditionally promises to
pay such Borrower Obligations to the Administrative Agent for the account of
the Lenders, or order, on demand, in lawful money of the United States.  The Company further agrees that to the extent
that the a Foreign Borrower or the Company shall make a payment or a transfer
of an interest in any property to the Administrative Agent or any Lender, which
payment or transfer or any part thereof is subsequently invalidated, declared
to be fraudulent or preferential, or otherwise is avoided, and/or required to
be repaid to such Foreign Borrower or the Company or the estate of the
applicable Foreign Borrower or the Company, a trustee, receiver or any other
party under any bankruptcy law, state, provincial or federal law, common law or
equitable cause, then to the extent of such avoidance or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment had not been made.


 


(c)                                  Nature of
Liability.  The liability of the
Company hereunder is exclusive and independent of any security for or other
guaranty of the Borrower Obligations of the Foreign Borrowers whether executed
by the Company, any other guarantor or by any other party, and the Company’s
liability hereunder shall not be affected or impaired by (a) any direction as
to application of payment by any Foreign Borrower or by any other party, or (b)
any other continuing or other guaranty, undertaking or maximum liability of a
guarantor or of any other party as to the Borrower Obligations of any Foreign
Borrower, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or
change in personnel by any Foreign Borrower, or (e) any payment made to the
Administrative Agent or the Lenders on the Borrower Obligations of any Foreign
Borrower with respect to which the Administrative Agent or such Lenders repay
the applicable Foreign Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
the Company waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.


 


(d)                                 Independent
Obligation.  The obligations of the
Company hereunder are independent of the obligations of each of the Foreign
Borrowers and a separate action or actions may be brought and prosecuted
against the Company whether or not action is brought against any of the Foreign
Borrowers and whether or not the Company or any of the Foreign Borrowers is
joined in any such action or actions.


 


(e)                                  Authorization.  The Company authorizes the Administrative
Agent and each Lender without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing
its liability hereunder, from time to time to (a) renew, compromise, extend,
increase, accelerate or otherwise change the time for payment of, or otherwise
change the terms of the Borrower Obligations or any part thereof in accordance
with this Credit Agreement, including any increase or decrease of the rate of
interest thereon, (b) take and hold security from the Company or any other
party for the payment of this Guaranty or the


 


88





















 


Borrower Obligations and exchange, enforce waive and release any such
security, (c) apply such security and direct the order or manner of sale
thereof as the Administrative Agent and the Lenders in their discretion may
determine and (d) release or substitute any one or more endorsers, the Company,
the Foreign Borrowers or other obligors.


 


(f)                                    Reliance.  It is not necessary for the Administrative
Agent or the Lenders to inquire into the capacity or powers of the Foreign
Borrowers or the officers, directors, members, partners or agents acting or
purporting to act on its behalf, and any Borrowers Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.


 


(g)                                 Waiver.


 


(i)                                     The
Company waives any right (except as shall be required by applicable statute and
cannot be waived) to require the Administrative Agent or any Lender to (i)
proceed against the Foreign Borrowers, any other guarantor or any other party,
(ii) proceed against or exhaust any security held from any Foreign Borrower,
any other guarantor or any other party, or (iii) pursue any other remedy in the
Administrative Agent’s or any Lender’s power whatsoever.  The Company waives any defense based on or
arising out of any defense of any Foreign Borrower, any other guarantor or any
other party other than payment in full of the Borrower Obligations of the
Foreign Borrowers (other than contingent indemnity obligations), including
without limitation any defense based on or arising out of the disability of any
Foreign Borrower, any other guarantor or any other party, or the
unenforceability of the Borrower Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of any Foreign Borrower
other than payment in full of the Borrower Obligations of the Foreign
Borrowers.  The Administrative Agent may,
at its election, foreclose on any security held by the Administrative Agent by
one or more judicial or nonjudicial sales (to the extent such sale is permitted
by applicable law), or exercise any other right or remedy the Administrative
Agent or any Lender may have against any Foreign Borrower or any other party,
or any security, without affecting or impairing in any way the liability of the
Company hereunder except to the extent the Borrower Obligations of the Foreign
Borrowers have been paid in full and the Commitments have been terminated.  The Company waives any defense arising out of
any such election by the Administrative Agent or any of the Lenders, even though
such election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of the Company against the Foreign
Borrowers or any other party or any security.


 


(ii)                                  The
Company waives all presentments, demands for performance, protests and notices,
including without limitation notices of nonperformance, notice of protest,
notices of dishonor, notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional Borrower
Obligations.  The Company assumes all
responsibility for being and keeping itself informed of the each Foreign
Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Borrower Obligations of the Foreign
Borrowers and the nature, scope and extent of the risks which the Company
assumes and incurs hereunder, and agrees that


 


89





















 


neither the Administrative Agent nor any
Lender shall have any duty to advise the Company of information known to it
regarding such circumstances or risks.


 


(iii)                               The
Company hereby agrees it will not exercise any rights of subrogation which it
may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the U.S. Bankruptcy Code, or otherwise)
to the claims of the Lenders against any Foreign Borrower or any other
guarantor of the Borrower Obligations of the Foreign Borrowers owing to the
Lenders (collectively, the “Other Parties”) and all contractual,
statutory or common law rights of reimbursement, contribution or indemnity from
any Other Party which it may at any time otherwise have as a result of this
Guaranty until such time as the Borrower Obligations of the Foreign Borrowers
shall have been paid in full and the Commitments have been terminated.  The Company hereby further agrees not to
exercise any right to enforce any other remedy which the Administrative Agent
or the Lenders now have or may hereafter have against any Other Party, any
endorser or any other guarantor of all or any part of the Borrower Obligations
of the Foreign Borrowers and any benefit of, and any right to participate in,
any security or collateral given to or for the benefit of the Lenders to secure
payment of the Borrower Obligations of the Foreign Borrowers until such time as
the Borrower Obligations of the Foreign Borrowers (other than contingent
indemnity obligations) shall have been paid in full and the Commitments have
been terminated.


 


(h)                                 Limitation on
Enforcement.  The Lenders agree that
this Guaranty may be enforced only by the action of the Administrative Agent
acting upon the instructions of the Required Lenders and that no Lender shall
have any right individually to seek to enforce or to enforce this Guaranty, it
being understood and agreed that such rights and remedies may be exercised by
the Administrative Agent for the benefit of the Lenders under the terms of this
Credit Agreement.  The Lenders further
agree that this Guaranty may not be enforced against any director, officer,
employee or stockholder of the Company.


 


(i)                                     Confirmation of
Payment.  The Administrative Agent
and the Lenders will, upon request after payment of the indebtedness and
obligations which are the subject of this Guaranty and termination of the
Commitments relating thereto, confirm to the Foreign Borrowers, the Company or
any other Person that such indebtedness and obligations have been paid and the
Commitments relating thereto terminated, subject to the provisions of clause
(b) hereof.


 


Section 9.20                            Binding Effect; Further
Assurances; Amendment and Restatement of Existing Credit Agreements.


 


This Agreement shall become effective at such
time, on or after the Closing Date, that the conditions precedent set forth in Section 4.1
have been satisfied and when it shall have been executed by each Borrower and
the Administrative Agent, and the Administrative Agent shall have received
copies hereof (telefaxed or otherwise) which, when taken together, bear the
signatures of each Lender (including the Issuing Lender), and thereafter this
Agreement shall be binding upon and inure to the benefit of each Borrower, each
Lender (including the Issuing Lender) and the Administrative Agent, together
with their respective successors and assigns. 
Each Borrower, the Administrative Agent and the Lenders hereby agree
that at such time as this Agreement shall


 


90





















 


have become effective pursuant to the terms of the first sentence of
this Section 9.20(a), (i) the Existing Credit Agreements automatically
shall be deemed amended and restated in their entirety by this Agreement and
(ii) all of the promissory notes executed in connection with the Existing
Credit Agreements automatically shall be substituted and replaced by the Notes
executed in connection with this Agreement and the Lenders under the Existing Credit Agreements agree to
promptly return such prior notes to the Company marked “cancelled”.


 


Section 9.21                            Interest Rate
Limitations.


 


Notwithstanding anything to the contrary contained in any Credit
Document, the interest paid or agreed to be paid under the Credit Documents
(including any payment that may be considered interest under applicable
Requirements of Law) shall not exceed the maximum rate of non-usurious interest
permitted by applicable Requirements of Law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans owing by such Borrower
or, if it exceeds such unpaid principal, refunded to the applicable
Borrower.  In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Borrower Obligations hereunder.


 


ARTICLE X


 


SPECIAL PROVISIONS APPLICABLE TO
LENDERS UPON THE OCCURRENCE OF A SHARING EVENT


 


Section 10.1                            Participations.


 


Upon the occurrence of a Sharing Event, the
Lenders shall automatically and without further action be deemed to have
exchanged interests in the outstanding Loans and outstanding Letters of Credit
such that, in lieu of the interests of each Lender in each Loan and each
outstanding Letter of Credit, such Lender shall hold an interest in all
Revolving Loans and Swingline Loans, made to the Borrowers and all outstanding
Letters of Credit issued for the account of such Persons or their Subsidiaries
at such time, whether or not such Lender shall previously have participated
therein, equal to such Lender’s Exchange Percentage thereof.  The foregoing exchanges shall be accomplished
automatically pursuant to this Section 10.1 through purchases and sales of
participations in the various Loans and outstanding Letters of Credit as
required hereby, although at the request of the Administrative Agent each
Lender hereby agrees to enter into customary participation agreements approved
by the Administrative Agent to evidence the same.  All purchases and sales of participating
interests pursuant to this Section 10.1 shall be made in Dollars.  At the request of the Administrative Agent,
each Lender which has sold participations in any of its Loans and outstanding
Letters of Credit as provided above (through the


 


91





















 


Administrative Agent) will deliver to each Lender (through the
Administrative Agent) which has so purchased a participating interest therein a
participation certificate in the appropriate amount as determined in
conjunction with the Administrative Agent. 
It is understood that the amount of funds delivered by each Lender shall
be calculated on a net basis, giving effect to both the sales and purchases of
participations by the various Lenders as required above.


 


Section 10.2                            Administrative Agent’s
Determination Binding.


 


All determinations by the Administrative
Agent pursuant to this Article X shall be made by it in accordance with
the provisions herein and with the intent being to equitably share the credit
risk for all Loans and Letters of Credit and other Extensions of Credit
hereunder in accordance with the provisions hereof.  Absent manifest error, all determinations by
the Administrative Agent hereunder shall be binding on the Borrowers and each
of the Lenders.  The Administrative Agent
shall have no liability to any Borrower or Lender hereunder for any
determinations made by it hereunder except to the extent resulting from the
Administrative Agent’s gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final and non-appealable decision).


 


Section 10.3                            Participation Payments
in Dollars.


 


Upon, and after, the occurrence of a Sharing
Event (a) no further Credit Extensions shall be made, (b) all Foreign
Currency Loans then outstanding shall be redenominated into Dollars (based on
the Dollar Amount of such Foreign Currency Loans on the date of such Sharing
Event); (c) all amounts from time to time accruing with respect to, and all
amounts from time to time payable on account of, all Loans (including, without
limitation, any interest and other amounts which were accrued but unpaid on the
date of such Sharing Event) shall be thereafter be paid in Dollars based on the
amounts then outstanding in Dollars and shall be distributed by the Administrative
Agent for the account of the Lenders which made such Loans or are participating
therein and (d) all Commitments shall be automatically terminated; provided
that in each case the each Borrower shall be liable for any currency exchange
loss related to such payments and shall promptly pay the Lenders upon receipt
of notice thereof the amount of any such loss. 
Notwithstanding anything to the contrary contained above, the failure of
any Lender to purchase its participating interests as required above in any
Extensions of Credit upon the occurrence of a Sharing Event shall not relieve
any other Lender of its obligation hereunder to purchase its participating
interests in a timely manner, but no Lender shall be responsible for the
failure of any other Lender to purchase the participating interest to be
purchased by such other Lender on any date.


 


Section 10.4                            Delinquent Participation
Payments.


 


If any amount required to be paid by any
Lender pursuant to this Article X is not paid to the Administrative Agent
on the date upon which the Sharing Event occurred, such Lender shall, in
addition to such aforementioned amount, also pay to the Administrative Agent on
demand an amount equal to the product of (a) the amount so required to be
paid by such Lender for the purchase of its participations, (b) the daily
average Federal Funds Rate, during the period from and including the date of
request for payment to the date on which such payment is immediately


 


92





















 


available to the Administrative Agent and (c) a fraction the
numerator of which is the number of days that elapsed during such period and
the denominator of which is 360.  A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts payable under this Article X shall be conclusive in the
absence of manifest error.  Amounts
payable by any Lender pursuant to this Article X shall be paid to the
Administrative Agent for the account of the relevant Lenders; provided
that, if the Administrative Agent (in its sole discretion) has elected to fund
on behalf of such other Lender the amounts owing to such other Lenders, then
the amounts shall be paid to the Administrative Agent for its own account.


 


Section 10.5                            Settlement of
Participation Payments.


 


Whenever, at any time after the relevant
Lenders have received from any other Lenders purchases of participations
pursuant to this Article X and the various Lenders receive any payment on
account thereof, such Lenders will distribute to the Administrative Agent, for
the account of the various Lenders participating therein, such Lenders’
participating interests in such amounts (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
participations were outstanding) in like funds as received; provided, however,
that in the event that such payment received by any Lenders is required to be
returned, the Lenders who received previous distributions in respect of their
participating interests therein will return to the respective Lenders any
portion thereof previously so distributed to them in like funds as such payment
is required to be returned by the respective Lenders.


 


Section 10.6                            Participation
Obligations Absolute.


 


Each Lender’s obligation to purchase participating
interests pursuant to this Article X shall be absolute and unconditional
and shall not be affected by any circumstance including, without limitation,
(a) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against any other Lender, any Borrower or any other Person
for any reason whatsoever, (b) the occurrence or continuance of a Default
or an Event of Default, (c) any adverse change in the condition (financial
or otherwise) of any Borrower or any other Person, (iv) any breach of this
Agreement by any Credit Party, any Lender or any other Person, or (v) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.


 


Section 10.7                            Increased Cost;
Indemnities.


 


Notwithstanding anything to the contrary
contained elsewhere in this Agreement, upon any purchase of participations as
required above, (a) each Lender which has purchased such participations
shall be entitled to receive from the Borrowers any increased costs and indemnities
(including, without limitation, pursuant to Section 2.16, 2.18, 2.19,
2.20, 2.21, 9.4 and 9.6(b)) directly from the Borrowers to the same extent as
if it were the direct Lender as opposed to a participant therein and
(b) each Lender which has sold such participations shall be entitled to
receive from the Borrowers indemnification from and against any and all Taxes
imposed as a result of the sale of the participations pursuant to this Article X.  Each Borrower acknowledges and agrees that,
upon the occurrence of a Sharing Event and after giving effect to the
requirements of this Article X, increased Taxes may be owing by it
pursuant to Section 2.21,


 


93





















 


which Taxes shall be paid (to the extent provided in Section 2.21)
by the respective Borrower or Borrowers, without any claim that the increased
Taxes are not payable because some resulted from the participations effected as
otherwise required by this Article X.


 


Section 10.8                            Provisions Solely to
Effect Intercreditor Agreement.


 


The provisions of this Article X are and
are intended solely for the purpose of effecting a sharing arrangement among
the Lenders and reflects an agreement among creditors.  Except as contemplated by Sections 10.3
and 10.7, none of the Borrowers shall have any rights or obligations under this
Article X.  Nothing contained in
this Article X is intended to or shall impair the obligations of the
Borrowers, which are absolute and unconditional, to pay the Borrower
Obligations as and when the same shall become due and payable in accordance
with their terms.


 


94





















 


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


 


 


	
  COMPANY:

  	
   

  	
  IMS HEALTH INCORPORATED,

  
	
   

  	
  a Delaware corporation,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey
  Ford

  	
   

  
	
   

  	
  Name:

  	
  Jeffrey Ford

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  H. Steinfeld

  	
   

  
	
   

  	
  Name:

  	
  Robert H. Steinfeld

  
	
   

  	
  Title:

  	
  Senior Vice President, General

  
	
   

  	
   

  	
  Counsel and Corporate Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SWISS

  	
  IMS AG,

  	
   

  
	
  BORROWER:

  	
  a Swiss corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter
  Echser

  	
   

  
	
   

  	
  Name:

  	
  Peter Echser

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Guido
  Lehmann

  	
   

  
	
   

  	
  Name:

  	
  Guido Lehmann

  
	
   

  	
  Title:

  	
  Center Leader

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  JAPANESE

  	
  IMS JAPAN K.K.

  
	
  BORROWER:

  	
  a Japanese corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard
  Bartolotta

  	
   

  
	
   

  	
  Name:

  	
  Richard Bartolotta

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
						



 





















 


ADMINISTRATIVE AGENT:


 


 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christian M. Bradeen

  	
   

  
	
   

  	
  Name:

  	
  Christian M. Bradeen

  
	
   

  	
  Title:

  	
  Vice President

  



 





















 


LENDERS:


 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christian M. Bradeen

  	
   

  
	
   

  	
  Name:

  	
  Christian M. Bradeen

  
	
   

  	
  Title:

  	
  Vice President

  



 





















 


	
   

  	
  BARCLAYS BANK PLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas A. Bell

  	
   

  
	
   

  	
  Name:

  	
  Nicholas A. Bell

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
  Loan Transaction Management

  



 





















 


	
   

  	
  ABN AMRO BANK N.V.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert H. Steelman

  	
   

  
	
   

  	
  Name:

  	
  Robert H. Steelman

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michele R. Costello

  	
   

  
	
   

  	
  Name:

  	
  Michele R. Costello

  
	
   

  	
  Title:

  	
  Assistant Vice President

  



 





















 


	
   

  	
  SUNTRUST BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark D. Mattson

  	
   

  
	
   

  	
  Name:

  	
  Mark D. Mattson

  
	
   

  	
  Title:

  	
  Managing Director

  



 





















 


	
   

  	
  FORTIS CAPITAL CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Henk Raison

  	
   

  
	
   

  	
  Name:

  	
  Henk Raison

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kathleen De Lathauwer

  	
   

  
	
   

  	
  Name:

  	
  Kathleen De Lathauwer

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 





















 


	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeff Kalinowski

  	
   

  
	
   

  	
  Name:

  	
  Jeff Kalinowski

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 





















 


	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Martin Ollinger

  	
   

  
	
   

  	
  Name:

  	
  Martin Ollinger

  
	
   

  	
  Title:

  	
  Vice President

  



 





















 


	
   

  	
  MIZUHO CORPORATE BANK LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Raymond Ventura

  	
   

  
	
   

  	
  Name:

  	
  Raymond Ventura

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 





















 


	
   

  	
  BNP PARIBAS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher Perras

  	
   

  
	
   

  	
  Name:

  	
  Christopher Perras

  
	
   

  	
  Title:

  	
  Associate

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duane Helkowski

  	
   

  
	
   

  	
  Name:

  	
  Duane Helkowski

  
	
   

  	
  Title:

  	
  Managing Director

  



 





















 


	
   

  	
  CITIZENS BANK OF MASSACHUSETTS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel G. Eastman

  	
   

  
	
   

  	
  Name:

  	
  Daniel G. Eastman

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 





















 


	
   

  	
  UBS LOAN FINANCE LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wilfred V. Saint

  	
   

  
	
   

  	
  Name:

  	
  Wilfred V. Saint

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
  Banking Products Services, US

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Salloz Sikka

  	
   

  
	
   

  	
  Name:

  	
  Salloz Sikka

  
	
   

  	
  Title:

  	
  Associate Director

  
	
   

  	
   

  	
  Banking Products Services, US

  



 





















 


	
   

  	
  THE NORTHERN TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ashish Bhagwat

  	
   

  
	
   

  	
  Name:

  	
  Ashish Bhagwat

  
	
   

  	
  Title:

  	
  Vice President