exv10w1



 







Exhibit 10.1




EXECUTION COPY




 

 






$1,350,000,000



AMENDED AND RESTATED




CREDIT AGREEMENT




among




ZIMMER HOLDINGS, INC.,




ZIMMER, INC.,




ZIMMER K.K.,




ZIMMER LTD.,




ZIMMER SWITZERLAND HOLDINGS LTD.,




ZIMMER INVESTMENT LUXEMBOURG S.C.A.,




ZIMMER GMBH,


 THE BORROWING SUBSIDIARIES,




THE SUBSIDIARY GUARANTORS,




THE LENDERS NAMED HEREIN,




JPMORGAN CHASE BANK, N.A., as General Administrative Agent,




JPMORGAN CHASE BANK, N.A., TOKYO BRANCH, as Japanese Administrative Agent,




and




J.P. MORGAN EUROPE LIMITED, as European Administrative Agent,




Dated as of March 31, 2005




 

 






Banc of America Securities LLC

and J.P. Morgan Securities Inc.,

as Joint Book Managers




Banc of America Securities LLC,




J.P. Morgan Securities Inc. and Credit Suisse First Boston,

as Joint Lead Arrangers




Bank of America, N.A. and Credit Suisse First Boston,

as Co-Syndication Agents




SunTrust Bank and BNP Paribas,

as Co-Documentation Agents





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	
ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	
Definitions	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1.01.
	 	Defined Terms	 	 	1	 
	SECTION 1.02.
	 	Classification of Loans and Borrowings	 	 	23	 
	SECTION 1.03.
	 	Terms Generally	 	 	24	 
	SECTION 1.04.
	 	Accounting Terms, GAAP	 	 	24	 
	 
	 	 	 	 	 	 
	
ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	
Amount and Terms of the Commitments	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 2.01.
	 	Commitments	 	 	24	 
	SECTION 2.02.
	 	Loans and Borrowings	 	 	25	 
	SECTION 2.03.
	 	Requests for Borrowings	 	 	26	 
	SECTION 2.04.
	 	Borrowing Subsidiaries	 	 	27	 
	 
	 	 	 	 	 	 
	
ARTICLE III	 	 	 	 
	
Competitive Bid Loans	 	 	 	 
	SECTION 3.01.
	 	Competitive Bid Procedure	 	 	28	 
	 
	 	 	 	 	 	 
	
ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	
Letters of Credit	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 4.01.
	 	Letters of Credit	 	 	30	 
	 
	 	 	 	 	 	 
	
ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	
Swingline Loans	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 5.01.
	 	Swingline Loans	 	 	34	 
	 
	 	 	 	 	 	 
	
ARTICLE VI	 	 	 	 
	 
	 	 	 	 	 	 
	
General Provisions Applicable to Loans	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 6.01.
	 	Funding of Borrowings	 	 	35	 






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	SECTION 6.02.
	 	Interest Elections	 	 	36	 
	SECTION 6.03.
	 	Termination and Reduction of Commitments	 	 	37	 
	SECTION 6.04.
	 	Repayment of Loans; Evidence of Debt	 	 	38	 
	SECTION 6.05.
	 	Increase in Commitments	 	 	39	 
	SECTION 6.06.
	 	Prepayment of Loans	 	 	40	 
	SECTION 6.07.
	 	Fees	 	 	41	 
	SECTION 6.08.
	 	Interest	 	 	42	 
	SECTION 6.09.
	 	Alternate Rate of Interest	 	 	44	 
	SECTION 6.10.
	 	Increased Costs	 	 	44	 
	SECTION 6.11.
	 	Break Funding Payments	 	 	45	 
	SECTION 6.12.
	 	Taxes	 	 	46	 
	SECTION 6.13.
	 	Payments Generally; Pro Rata Treatment; Sharing of Setoffs	 	 	49	 
	SECTION 6.14.
	 	Mitigation Obligations; Replacement of Lenders	 	 	51	 
	SECTION 6.15.
	 	Restatement Date Borrowings	 	 	51	 
	 
	 	 	 	 	 	 
	
ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	
Representations and Warranties	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 7.01.
	 	Organization; Powers	 	 	52	 
	SECTION 7.02.
	 	Authorization	 	 	52	 
	SECTION 7.03.
	 	Enforceability	 	 	52	 
	SECTION 7.04.
	 	Governmental Approvals	 	 	52	 
	SECTION 7.05.
	 	Financial Statements; No Material Adverse Effect	 	 	52	 
	SECTION 7.06.
	 	Litigation, Compliance with Laws	 	 	53	 
	SECTION 7.07.
	 	Federal Reserve Regulations	 	 	53	 
	SECTION 7.08.
	 	Taxes	 	 	53	 
	SECTION 7.09.
	 	Employee Benefit Plans	 	 	53	 
	SECTION 7.10.
	 	Environmental and Safety Matters	 	 	54	 
	SECTION 7.11.
	 	Properties	 	 	54	 
	SECTION 7.12.
	 	Investment and Holding Company Status	 	 	54	 
	 
	 	 	 	 	 	 
	
ARTICLE VIII	 	 	 	 
	 
	 	 	 	 	 	 
	
Conditions	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 8.01.
	 	Restatement Date	 	 	55	 
	SECTION 8.02.
	 	Conditions to All Other Extensions of Credit	 	 	56	 
	SECTION 8.03.
	 	Initial Borrowing by Each Borrowing Subsidiary	 	 	56	 
	 
	 	 	 	 	 	 
	
ARTICLE IX	 	 	 	 
	 
	 	 	 	 	 	 
	
Affirmative Covenants	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 9.01.
	 	Existence	 	 	57	 






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	SECTION 9.02.
	 	Business and Properties	 	 	57	 
	SECTION 9.03.
	 	Financial Statements, Reports, Etc	 	 	57	 
	SECTION 9.04.
	 	Insurance	 	 	58	 
	SECTION 9.05.
	 	Obligations and Taxes	 	 	58	 
	SECTION 9.06.
	 	Litigation and Other Notices	 	 	58	 
	SECTION 9.07.
	 	Books and Records	 	 	59	 
	SECTION 9.08.
	 	Subsidiary Guarantor	 	 	59	 
	SECTION 9.09.
	 	Use of Proceeds	 	 	59	 
	 
	 	 	 	 	 	 
	
ARTICLE X	 	 	 	 
	 
	 	 	 	 	 	 
	
Negative Covenants	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 10.01.
	 	Consolidations, Mergers, and Sales of Assets	 	 	60	 
	SECTION 10.02.
	 	Liens	 	 	60	 
	SECTION 10.03.
	 	Limitation on Sale and Leaseback Transactions	 	 	62	 
	SECTION 10.04.
	 	Financial Condition Covenants	 	 	62	 
	SECTION 10.05.
	 	Indebtedness	 	 	62	 
	SECTION 10.06.
	 	Transactions with Affiliates	 	 	62	 
	SECTION 10.07.
	 	Restricted Payments	 	 	63	 
	SECTION 10.08.
	 	Investments	 	 	63	 
	 
	 	 	 	 	 	 
	
ARTICLE XI	 	 	 	 
	 
	 	 	 	 	 	 
	
Events of Default	 	 	 	 
	 
	 	 	 	 	 	 
	
ARTICLE XII	 	 	 	 
	 
	 	 	 	 	 	 
	
The Administrative Agents	 	 	 	 
	 
	 	 	 	 	 	 
	
ARTICLE XIII	 	 	 	 
	 
	 	 	 	 	 	 
	
Miscellaneous	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 13.01.
	 	Notices	 	 	69	 
	SECTION 13.02.
	 	Survival of Agreement	 	 	71	 
	SECTION 13.03.
	 	Binding Effect	 	 	71	 
	SECTION 13.04.
	 	Successors and Assigns	 	 	71	 
	SECTION 13.05.
	 	Expenses, Indemnity	 	 	74	 
	SECTION 13.06.
	 	Applicable Law	 	 	75	 
	SECTION 13.07.
	 	Waivers, Amendment	 	 	75	 
	SECTION 13.08.
	 	Entire Agreement	 	 	76	 






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	SECTION 13.09.
	 	Severability	 	 	76	 
	SECTION 13.10.
	 	Counterparts	 	 	76	 
	SECTION 13.11.
	 	Headings	 	 	77	 
	SECTION 13.12.
	 	Right of Setoff	 	 	77	 
	SECTION 13.13.
	 	Jurisdiction: Consent to Service of Process	 	 	77	 
	SECTION 13.14.
	 	Waiver of Jury Trial	 	 	78	 
	SECTION 13.15.
	 	Conversion of Currencies	 	 	78	 
	SECTION 13.16.
	 	Guaranty	 	 	78	 
	SECTION 13.17.
	 	CAM Exchange	 	 	81	 
	SECTION 13.18.
	 	Letters of Credit	 	 	81	 
	SECTION 13.19.
	 	Confidentiality	 	 	82	 
	SECTION 13.20.
	 	Effect of Restatement	 	 	83	 
	SECTION 13.21.
	 	USA PATRIOT Act Notice	 	 	83	 
	 
	 	 	 	 	 	 
	SCHEDULES:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.01
	 	Commitments	 	 	 	 
	Schedule 4.01
	 	Existing Letters of Credit	 	 	 	 
	Schedule 10.02
	 	Existing Liens	 	 	 	 
	Schedule 10.06
	 	Transactions with Affiliates	 	 	 	 
	 
	 	 	 	 	 	 
	EXHIBITS:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit A-1
	 	Form of Competitive Bid Request	 	 	 	 
	Exhibit A-2
	 	Form of Notice of Competitive Bid Request	 	 	 	 
	Exhibit A-3
	 	Form of Competitive Bid	 	 	 	 
	Exhibit A-4
	 	Form of Competitive Bid Accept/Reject Letter	 	 	 	 
	Exhibit A-5
	 	Form of Borrowing Request	 	 	 	 
	Exhibit B
	 	Form of Assignment and Acceptance	 	 	 	 
	Exhibit C
	 	Form of Opinion of Baker & Daniels	 	 	 	 
	Exhibit D
	 	Form of Administrative Questionnaire	 	 	 	 
	Exhibit E
	 	Form of Borrowing Subsidiary Agreement	 	 	 	 
	Exhibit F
	 	Form of Borrowing Subsidiary Termination	 	 	 	 
	Exhibit G
	 	Additional Cost	 	 	 	 






iv









 







     AMENDED AND RESTATED CREDIT AGREEMENT (the “Agreement”) dated as of
March 31, 2005, among ZIMMER HOLDINGS, INC., a Delaware corporation (the
“Company”), ZIMMER, INC., a Delaware corporation (“Zimmer” and, together
with the Company, the “U.S. Borrowers”), ZIMMER K.K., a company organized
under the laws of Japan (the “Japanese Borrower”), ZIMMER LTD., a company
incorporated under the laws of England and Wales (the “English Borrower”),
ZIMMER
SWITZERLAND HOLDINGS LTD., a company organized under the laws of
Switzerland formerly named Centerpulse Ltd. (“Zimmer Switzerland”), ZIMMER
GMBH, a company organized under the laws of Switzerland (together with
Zimmer Switzerland, the “Swiss Borrowers”), ZIMMER INVESTMENT LUXEMBOURG
S.C.A., a company organized under the laws of Luxembourg (the “Luxembourg
Borrower” and, together with the English Borrower and the Swiss Borrowers,
the “European Borrowers”), the BORROWING SUBSIDIARIES (as defined herein),
the SUBSIDIARY GUARANTORS (as defined herein), the LENDERS (as defined
herein), JPMORGAN CHASE BANK, N.A., as administrative agent for the
Lenders (in such capacity, the “General Administrative Agent”), JPMORGAN
CHASE BANK, N.A., TOKYO BRANCH, as administrative agent for the Japanese
Lenders (in such capacity, the “Japanese Administrative Agent”), and J.P.
MORGAN EUROPE LIMITED, as administrative agent for the European Lenders
(in such capacity, the “European Administrative Agent”).



     The parties hereto agree as follows:



ARTICLE I




Definitions




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




          “364-Day Credit Agreement” shall mean the 364-Day Credit Agreement dated as of May 24, 2004,
among the Company, Zimmer, the borrowing subsidiaries party thereto, the lenders from time to time
party thereto and JPMCB, as Administrative Agent.




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




          “Acquisition” shall mean the acquisition by the Company of Centerpulse AG, a Swiss company,
and Incentive Capital AG, a Swiss registered investment company, and all related transactions.





1









 






          “Acquisition Date” shall mean October 2, 2003.




          “Additional Cost” shall mean, in relation to any Borrowing denominated in Sterling for
any Interest Period, the cost as calculated by the European Administrative Agent in accordance with
Exhibit G imputed to each Multicurrency Lender of compliance with the mandatory liquid assets
requirements of the Bank of England during that Interest Period, expressed as a percentage.




          “Adjusted Eurocurrency Rate” shall mean, with respect to any Eurocurrency Borrowing
for any Interest Period, an interest rate per annum equal to (a) if such Eurocurrency Borrowing is
denominated in a Currency other than Sterling, (i) the applicable Eurocurrency Rate for such
currency in effect for such Interest Period divided by (ii) one minus the Eurocurrency Reserve
Requirements, and (b) if such Eurocurrency Borrowing is denominated in Sterling, the applicable
Eurocurrency Rate in effect for such Interest Period plus Additional Cost.




          “Administrative Agents” shall mean the collective reference to the General
Administrative Agent, the Japanese Administrative Agent and the European Administrative Agent;
each, individually, an “Administrative Agent”.




          “Administrative Fees” shall have the meaning assigned to such term in Section 6.07(b).




          “Administrative Questionnaire” shall mean an administrative questionnaire delivered by
a Lender pursuant to Section 13.04 in the form of Exhibit D.




          “Advance Agent” shall mean JPMCB, as competitive advance facility agent.




          “Affiliate” shall mean, when used with respect to a specified Person, another Person
that directly, or indirectly, Controls or is Controlled by or is under common Control with the
Person specified.




          “Alternate Base Rate” shall mean for any day, a rate per annum equal to the greater of
(a) the rate of interest per annum publicly announced from time to time by JPMCB as its base rate
in effect at its principal office in New York City and (b) 1/2 of one percent above the Federal
Funds Effective Rate. If for any reason JPMCB shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate
specified in clause (b) of the first sentence of this definition, for any reason, including,
without limitation, the inability or failure of JPMCB to obtain sufficient quotations in accordance
with the terms hereof, 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 shall be effective on the effective date of
any change in such rate.




          “Alternate Currency” shall mean (i) each Committed Currency and (ii) Japanese Yen.




          “Applicable Administrative Agent” shall mean, (a) with respect to a Loan or
Borrowing denominated in Dollars, and with respect to any payment hereunder that
does not




2









 








relate to a particular Loan or Borrowing, the General Administrative Agent, (b) with respect to a
Borrowing denominated in Japanese Yen, the Japanese Administrative Agent, (c) with respect to a
Borrowing denominated in a Committed Currency, the European Administrative Agent and (d) with
respect to a Competitive Borrowing, the Advance Agent.




          “Applicable Margin” shall mean, for each Loan, the applicable rate per annum
determined pursuant to the Pricing Grid.




          “Applicable Percentage” shall mean, with respect to any Lender, the percentage of the
total Commitments represented by such Lender’s Commitments. If the Commitments have terminated or
expired, “Applicable Percentage” shall mean, with respect to any Lender, the percentage of
the aggregate outstanding principal amount of the Revolving Credit Exposures and Competitive Loans
represented by the aggregate outstanding principal amount of such Lender’s Revolving Credit
Exposures and Competitive Loans.




          “Arrangers” shall mean Banc of America Securities LLC, J.P. Morgan Securities Inc. and
CSFB.




          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee in the form of Exhibit B, or such other form as shall be approved by the
General Administrative Agent.




          “Bank of America” shall mean Bank of America, N.A.




          “Basis Point” shall mean 1/100th of 1%.




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




          “Board of Directors” shall mean either the board of directors of the Company or any
duly authorized committee thereof or any committee of officers of the Company acting pursuant to
authority granted by the board of directors of the Company or any committee of such board.




          “Borrowers” shall mean the U.S. Borrowers, the European Borrowers, the Japanese
Borrower and any Borrowing Subsidiary.




          “Borrower Obligations” shall mean the due and punctual payment of (i) the principal of
and interest on any Loans made by the Lenders to the Borrowers pursuant to this Agreement, when and
as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise and (ii) all other monetary obligations, including fees, reimbursements, costs, expenses
and indemnities (including the obligations described in Section 2.04) of the Borrowers to the
Lenders under this Agreement and the other Loan Documents.




          “Borrowing” shall mean (a) Loans of the same Class, Type and Currency, made, converted
or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest
Period is in effect, (b) a Competitive Loan or group of Competitive Loans of the




          

3









 








same Type made on the same date and as to which a single Interest Period is in effect or (c) a
Swingline Loan.




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




          “Borrowing Subsidiary” shall mean any Wholly Owned Subsidiary of the Company
designated as a Borrowing Subsidiary by the Company pursuant to Section 2.04.




          “Borrowing Subsidiary Agreement” shall mean a Borrowing Subsidiary Agreement
substantially in the form of Exhibit E.




          “Borrowing Subsidiary Termination” shall mean a Borrowing Subsidiary Termination
substantially in the form of Exhibit F.




          “Business Day” shall mean any day (other than a day which is a Saturday, Sunday or legal
holiday in the State of New York) on which banks are open for business in New York City;
provided, however, that, when used in connection with a Eurocurrency Loan, the term
“Business Day” shall also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market, or in the city which is the principal financial center of
the country of issuance of the applicable Alternate Currency.




         
 “CAM” shall mean the mechanism for the allocation and exchange of
interests in Loans
and other extensions of credit under the several Classes and collections thereunder established
under Section 13.17.




         
 “CAM Exchange” shall mean the exchange of the Lender’s
interests provided for
in Section 13.17.




          “CAM Exchange Date” shall mean any date on which either (a) an Event of Default under
paragraph (g) or (h) of Article XI has occurred with respect to a Borrower or (b) the Commitments
shall have been terminated prior to the Maturity Date and/or the Loans shall have been declared
immediately due and payable, in either case pursuant to Article XI.




          “CAM Percentage” shall mean, as to each Lender, a fraction, expressed as a decimal, of
which (a) the numerator shall be the aggregate Dollar Equivalent (determined on the basis of
Exchanges Rates prevailing on the CAM Exchange Date) of the Designated Obligations owed to such
Lender (whether or not at the time due and payable) immediately prior to the CAM Exchange Date and
(b) the denominator shall be the aggregate Dollar Equivalent (as so determined) of the Designated
Obligations owed to all the Lenders (whether or not at the time due and payable) immediately prior
to CAM Exchange Date.




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




          

4









 








          “Cash Equivalents” shall mean (a) marketable direct obligations issued by, or
unconditionally guaranteed or insured by, the United States Government or issued by any agency
thereof and backed by the full faith and credit of the United States, in each case maturing within
one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time
deposits, bankers’ acceptances or overnight bank deposits having maturities of six months or less
from the date of acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof whose short-term commercial paper rating at the time
of acquisition is at least B or the equivalent thereof by Fitch IBCA, A-3 or the equivalent thereof
by S&P, or P-3 or the equivalent thereof by Moody’s; (c) commercial paper of an issuer rated at
least A-2 or the equivalent thereof at the time of acquisition by S&P or at least P-2 or the
equivalent thereof at the time of acquisition by Moody’s, or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies cease publishing
ratings of commercial paper issuers generally, and maturing within six months from the date of
acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than 30 days, with respect
to securities issued or fully guaranteed or insured by the United States government; (e) securities
or marketable direct obligations with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth or territory or by any
foreign
government, the securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by
Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed
by standby letters of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition; or (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition; provided, however, that, in case of any investment by a Foreign
Subsidiary, “Cash Equivalents” shall also include: (i) certificates of deposit, time deposits,
Eurodollar time deposits, bankers’ acceptances or overnight bank deposits having maturities of six
months or less from the date of acquisition issued by any commercial bank located in the same
jurisdiction as such Foreign Subsidiary whose short-term commercial paper rating at the time of
acquisition would meet or exceed those ratings applicable to a Lender set forth in clause (b)
hereof, (ii) direct obligations of the sovereign nation (or any agency thereof) in which such
Foreign Subsidiary is organized or is conducting business or in obligations fully and
unconditionally guaranteed by such sovereign nation (or any agency thereof), in each case maturing
within one year from the date of acquisition, (iii) investments of the type and maturity described
in clauses (c) through (f) above of obligors located in the same jurisdiction as such Foreign
Subsidiary, which Investments or obligors (or the parent of any such obligor) have ratings
described in clauses (c) through (f) or equivalent ratings from comparable foreign rating agencies
and (iv) shares of money market mutual or similar funds which invest exclusively in assets
otherwise satisfying the requirements of this proviso.




          “Change in Control” shall be deemed to have occurred if (a) any Person or group of
Persons (other than (i) the Company, (ii) any Subsidiary or (iii) any employee or director benefit
plan or stock plan of the Company or a Subsidiary or any trustee or fiduciary with respect to any
such plan when acting in that capacity or any trust related to any such plan) shall have acquired
beneficial ownership of shares representing more than 20% of the combined voting power represented
by the outstanding Voting Shares of the Company (within the meaning of





5









 








Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and the applicable rules
and regulations thereunder) or (b) during any period of 12 consecutive months, commencing before
and ending after, or commencing after the Restatement Date, individuals who on the first day of
such period were directors of the Company (together with any replacement or additional directors
who were nominated or elected by a majority of directors then in office) cease to constitute a
majority of the Board of Directors of the Company.




          “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the
Restatement Date, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the Restatement Date or (c) compliance by
any Lender (or, for purposes of Section 6.10, by
any lending office of such Lender or by such Lender’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the Restatement Date.




          “Class” when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are U.S. Revolving Loans, Multicurrency Revolving Loans,
Japanese Revolving Loans, Swingline Loans, or Competitive Loans and when used in reference to any
Commitment, refers to whether such Commitment is a U.S. Commitment, a Multicurrency Commitment or a
Japanese Commitment.




          “Code” shall mean the Internal Revenue Code of 1986, as amended.




          “Commitments” shall mean the collective reference to the U.S. Commitments, the
Multicurrency Commitments and the Japanese Commitments. The initial aggregate amount of the
Commitments is $1,350,000,000.




          “Committed Currency” shall mean (a) Euro, Sterling and Swiss Francs and (b) any other
Eligible Currency that shall be designated by the Company in a notice delivered to the General
Administrative Agent and approved by the General Administrative Agent and all the Multicurrency
Lenders as a Committed Currency.




          “Company” shall have the meaning set forth in the preamble.




          “Company Stock” shall mean the common stock, $0.01 par value per share, of the
Company, and the associated preferred stock purchase rights.




          “Competitive Bid” shall mean an offer by a Lender to make a Competitive Loan pursuant
to Article III.




          “Competitive Bid Accept/Reject Letter” shall mean a notification made by the Company
pursuant to Section 3.01(d) in the form of Exhibit A-4.




          “Competitive Bid Rate” shall mean, as to any Competitive Bid, the Competitive Loan
Margin or the Fixed Rate, as applicable, offered by the Lender making such Competitive Bid.




6









 








          “Competitive Bid Request” shall mean a request made pursuant to Article III in the
form of Exhibit A-1.




          “Competitive Borrowing” shall mean a Borrowing consisting of a Competitive Loan or
concurrent Competitive Loans from the Lender or Lenders whose Competitive Bids for such Borrowing
have been accepted under the bidding procedure described in Article III.




          “Competitive Loan” shall mean a Loan made pursuant to Article III. Each Competitive
Loan shall be a Eurocurrency Competitive Loan or a Fixed Rate Loan.




          “Competitive Loan Exposure” shall mean, with respect to any Lender at any time, the
aggregate principal amount of the outstanding Competitive Loans of such Lender.




          “Competitive Loan Margin” shall mean, with respect to any Competitive Loan bearing
interest at a rate based on the Eurocurrency Rate, the marginal rate of interest, if any, to be
added to or subtracted from the Eurocurrency Rate in order to determine the interest rate
applicable to such Loan, as specified by the Lender making such Loan in its related Competitive
Bid.




          “Conduit Lender” means any special purpose entity organized and administered by any
Lender for the purpose of making Loans otherwise required to be made by such Lender and designated
by such Lender in a written instrument subject to the consent of the Company (such consent not to
be unreasonably withheld); provided, that the designation by any Lender of a Conduit Lender
shall not relieve the designating Lender of any of its obligations to fund a Loan under this
Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating
Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all
consents and waivers required or requested under this Agreement with respect to its Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be entitled to receive any
greater amount pursuant to Section 6.10, 6.11, 6.12, or 13.05 than the designating Lender would
have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or
(b) be deemed to have any Commitment.




          “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such
period plus, without duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense,
amortization or write-off of debt discount and debt issuance costs and commissions, discounts and
other fees and charges associated with Debt (including the Loans), (c) depreciation and
amortization expense (plus, to the extent GAAP then includes amounts as such expense, amounts of
such expenses (calculated under the current GAAP) for any prior portion of such period if not
otherwise so included), (d) amortization of intangibles (including goodwill) and organization
costs, (e) any extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such Consolidated Net
Income for such period, non-cash losses on sales of assets outside of the ordinary course of
business), (f) one-time integration costs in connection with the Acquisition incurred during the
first 12 months (or 18 months in the case of costs associated with the closure of manufacturing
facilities) after the Acquisition Date in an amount in the aggregate not to exceed $200,000,000,
and one-time transaction costs (other than integration costs) in connection




          

7









 








with the Acquisition incurred on or before the Acquisition Date or during the first three months
after the Acquisition Date, in each case as set forth in reasonable detail on a schedule prepared
by the Company and delivered to the Lenders with the financial statements for the relevant period,
(g) purchase accounting adjustments (including inventory step-ups and write-downs of in process
research and development) in connection with the Acquisition and made within the first 12 months of
the Acquisition Date, (h) any non-cash expenses relating to stock option exercises (if applicable
accounting rules so require) and (i) any other non-cash charges
and minus, to the extent included
in the statement of such Consolidated Net Income for such period, the sum of (a) interest income,
(b) any extraordinary, unusual or non-recurring income or gains (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business) and (c) any other
non-cash income, all as determined on a consolidated basis. For the purposes of calculating
Consolidated EBITDA for any period of four consecutive fiscal
quarters (each, a “Reference Period”)
pursuant to any determination of the Consolidated Leverage Ratio, (i) if at any time during such
Reference Period the Company or any Subsidiary shall have made any Material Disposition, the
Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the
Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material
Disposition for such Reference Period or increased by an amount equal to the Consolidated EBITDA
(if negative) attributable thereto for such Reference Period and (ii) if during such Reference
Period the Company or any Subsidiary shall have made a Material Acquisition, Consolidated EBITDA
for such Reference Period shall be calculated after giving pro forma effect thereto as if such
Material Acquisition occurred on the first day of such Reference Period. As used in this
definition, “Material Acquisition” means any acquisition of property or series of related
acquisitions of property that (a) constitutes assets comprising all or substantially all of an
operating unit of a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by the Company and its Subsidiaries in excess
of $25,000,000; and “Material Disposition” means any Disposition of property or series of related
Dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in
excess of $25,000,000.




          “Consolidated Interest Coverage Ratio” shall mean, for any period, the
ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for such period.




          “Consolidated Interest Expense” shall mean, for any period, total cash interest
expense (including that attributable to Capital Lease Obligations) of the Company and its
Subsidiaries for such period with respect to all outstanding Debt of the Company and its
Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers’ acceptance financing), minus interest income on cash equivalent
investments.




          “Consolidated Leverage Ratio” shall mean, as at the last day of any period, the ratio
of (a) the sum of (i) Consolidated Total Debt plus, to the extent not included in the definition of
Consolidated Total Debt, (ii) the aggregate amount of financing provided by third-parties
in connection with Permitted Receivables Securitizations on such day
to (b) Consolidated EBITDA for such period.




          

8









 








          “Consolidated Net Income” shall mean, for any period, the consolidated net income (or
loss) of the Company and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded, without duplication, (a) the income (or
deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Company or is
merged into or consolidated with the Company or any of its Subsidiaries, (b) the income (or
deficit) of any Person (other than a Subsidiary of the Company) in which the Company or any of its
Subsidiaries has an ownership interest, except to the extent that any such income is actually
received by the Company or such Subsidiary in the form of dividends or similar distributions and
(c) the undistributed earnings of any Subsidiary of the Company to the extent that the declaration
or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by
the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law
applicable to such Subsidiary.




          “Consolidated Net Tangible Assets” shall mean, with respect to the Company, the total
amount of its assets (less applicable reserves and other properly deductible items) after deducting
(i) all current liabilities (excluding the amount of those which are by their terms extendable or
renewable at the option of the obligor to a date more than 12 months after the date as of which the
amount is being determined) and (ii) all goodwill, tradenames, trademarks, patents, unamortized
debt discount and expense and other like intangible assets, all as set forth on the most recent
balance sheet of the Company and its consolidated subsidiaries and determined on a consolidated
basis in accordance with GAAP.




          “Consolidated Total Debt” shall mean, at any date, the aggregate stated balance sheet
amount of all Debt of the Company and its Subsidiaries at such date, determined on a consolidated
basis in accordance with GAAP, minus up to $50,000,000 of cash and cash equivalent investments held
in the United States by the U.S. Borrowers and the Subsidiary Guarantors; provided that
such cash and cash equivalent investments are free of any Liens.




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




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




          “Credit Party” shall mean any Borrower or any Subsidiary Guarantor.




          “CSFB” shall mean Credit Suisse First Boston, a bank organized under the laws of
Switzerland, acting through its Cayman Islands branch.




          “Currency” shall mean Dollars or any Alternate Currency.




       
   “Debt” of any Person, shall mean, without duplication, (i) all obligations of such
Person represented by notes, bonds, debentures or similar evidences of indebtedness; (ii) all
indebtedness of such Person for borrowed money or for the deferred purchase price of property or
services other than, in the case of any such deferred purchase price, on normal trade terms,






9









 








(iii) all rental obligations of such Person as lessee under leases which shall have been or should
be recorded as Capital Lease Obligations, (iv) all indebtedness of such Person created or arising
under any conditional sale or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (v) all obligations,
contingent or otherwise, of such Person as an account party or applicant under or in respect of
acceptances, letters of credit, surety bonds or similar arrangements, (vi) the liquidation value of
all preferred capital stock of such Person which is redeemable at the option of the holder thereof
or which may become (by scheduled or mandatory redemption) due within one year of the Maturity
Date, (vii) all Guarantees of such Person in respect of obligations of the kind referred to in
clauses (i) through (vi) above, (viii) all obligations of the kind referred to in clauses (i)
through (vii) above secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including accounts and contract
rights) owned by the applicable Person, whether or not such Person has assumed or become liable for
the payment of such obligation and (ix) for the purposes of paragraph (f) of Article XI only, all
obligations in respect of Hedge Agreements. The Debt of any Person shall include Debt of any other
entity (including any partnership in which such Person is a general partner) to the extent such
Person is liable therefore as a result of such Person’s ownership interest in or other relationship
with such entity, except to the extent the terms of such Debt expressly provide that such Person is
not liable therefor.




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




          “Designated Obligations” shall mean all obligations of the Credit Parties with respect
to (a) principal of and interest on the Loans of each Class (other than
Competitive Loans), (b) unreimbursed LC Disbursements and interest thereon and (c) all
facility fees and participation fees under Section 6.07 with respect thereto.




          “Dollar Equivalent” shall mean, with respect to an amount denominated in any Alternate
Currency, the equivalent in Dollars of such amount determined at the Exchange Rate determined by
the General Administrative Agent on the date of determination of such equivalent. In making any
determination of the Dollar Equivalent for purposes of calculating the amount of Loans to be
borrowed from the respective Lenders on any date, the Applicable Administrative Agent shall use the
relevant Exchange Rate in effect on the date on which the relevant Borrower delivers a borrowing
notice for such Loans pursuant to the provisions of this Agreement.




        
  “Dollars” or “$” shall mean lawful money of the United States of America.




          “Domestic Wholly Owned Subsidiary” shall mean a Wholly Owned Subsidiary that is
incorporated or organized under the laws of the United States or any state or political subdivision
thereof.




          “Eligible Currency” shall mean at any time any currency (other than Dollars, Euro,
Sterling, Swiss Francs or Japanese Yen) that is freely tradeable and exchangeable into Dollars in
the London market and for which an Exchange Rate can be determined.




          

10









 








          “English Borrower” shall have the meaning set forth in the Preamble.




          “Environmental and Safety Laws” shall mean any and all applicable current and future
treaties, laws (including without limitation common law), regulations, enforceable requirements,
binding determinations, orders, decrees, judgments, injunctions, permits, approvals,
authorizations, licenses, permissions, or binding agreements issued, promulgated or entered by any
Governmental Authority, relating to the environment, to employee health or safety as it pertains to
the use or handling of, or exposure to, any Hazardous Substance, to preservation or reclamation of
natural resources or to the management, release or threatened release of any Hazardous Substance,
including without limitation the Hazardous Materials Transportation Act, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of
1984, the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, the Clean
Air Act of 1970, as amended, the Toxic Substances Control Act of 1976, the Occupational Safety and
Health Act of 1970, as amended, the Emergency Planning acid Community Right-to-Know Act of 1986,
the Safe Drinking Water Act of 1974, as amended, any similar or implementing state law, all
amendments of any of them, and any regulations promulgated under any of them.




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




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




          “ERISA Termination Event” shall mean (i) a “Reportable Event” described in Section
4043 of ERISA and the regulations issued thereunder (other than a “Reportable Event” not subject to
the provision for 30-day notice to the PBGC under such regulations), or (ii) the withdrawal of the
Company or any of its ERISA Affiliates from a “single employer” Plan during a plan year in which it
was a “substantial employer”, both of such terms as defined in Section 4001 (a) of ERISA, or (iii)
the incurrence of liability under Title IV of ERISA with respect to the termination of a Plan, or
(iv) the institution of proceedings to terminate a Plan by the PBGC or (v) the receipt by the
Company or any ERISA Affiliate of any notice (whether or not written) from the PBGC of any event or
condition which the PBGC asserts is reasonably likely to constitute grounds under Section 4042 of
ERISA to terminate, or to appoint a trustee to administer, any Plan or (vi) the partial or complete
withdrawal of the Company or any ERISA Affiliate of the Company from, or the Insolvency or
Reorganization of, a Multiemployer Plan as defined in Section 4001(a)(3) of ERISA.




          “Euro”
and “€” shall mean the single currency of the participating member
states of the European Union as constituted by the Treaty of Rome of March 25, 1957 (as amended by
the Single European Act 1986, the Maastricht Treaty which was signed at Maastricht on February 7,
1992 and came into force on November 1, 1993), the Amsterdam Treaty (which was signed at Amsterdam
on October 2, 1997 and came into force on May 1, 1999) and the Nice





11









 








Treaty (which was signed on February 26, 2001), each as amended from time to time and as referred
to in legislative measures of the European Union for the introduction of, changeover to or
operating of the Euro in one or more member states.




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




          “Eurocurrency Rate” shall mean (a) with respect to any Eurocurrency Borrowing (other
than Borrowings denominated in Euro or Japanese Yen) for any Interest Period, the rate appearing on
Page 3740 or Page 3750, as the case may be, of Dow Jones Markets (or on any successor or substitute
page of such service, or any successor to or substitute for such service, providing rate quotations
comparable to those
currently provided on such page of such service, as determined by the General
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to deposits in Dollars or the applicable Alternate Currency in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for deposits in Dollars or the applicable Alternate Currency with
a maturity comparable to such Interest Period, (b) with respect to any Eurocurrency Borrowing
denominated in Euro for any Interest Period, the rate appearing on page 248 of Dow Jones Markets
(it being understood that this rate is the Euro interbank offered rate (known as the “EURIBOR
Rate”) sponsored by the Banking Federation of the European
Union (known as the “FBE”) and the
Financial Markets Association (known as the “ACI”)) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate for deposits in Euro
with a maturity comparable to such Interest Period, and (c) with respect to any Eurocurrency
Borrowing denominated in Japanese Yen for any Interest Period, the rate appearing on the TIBM Page
under the caption “Average 10 Banks” of Reuters (or on any successor or substitute page of such
service, or any successor to or substitute for such service, providing rate quotations comparable
to those currently provided on such page of such service, as determined by General
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to deposits in Japanese Yen in the Tokyo interbank market) at approximately 11:00 a.m.,
Tokyo time, two Business Days prior to the commencement of such Interest Period, as the rate for
deposits in Japanese Yen with a maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the “Eurocurrency Rate” with respect to
such Eurocurrency Borrowing for such Interest Period shall be the rate per annum (rounded upwards,
if necessary, to the next Basis Point) equal to the arithmetic average of the rates at which
deposits in Dollars or the applicable Alternate Currency approximately equal in principal amount to
such Borrowing and for a maturity comparable to such Interest Period are offered (x) with respect
to any Eurocurrency Borrowing (other than Borrowings denominated in Japanese Yen), to the principal
London offices of the Reference Lenders (or, if any Reference Lender does not at the time maintain
a London office, the principal London office of any Affiliate of such Reference Lender) in
immediately available funds in the London interbank market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period and (y) with respect to
any Eurocurrency Borrowing denominated in Japanese Yen, to the principal Tokyo offices of the
Reference Lenders (or, if any Reference Lender does not at the time maintain a Tokyo office, the
principal Tokyo office of any Affiliate of such Reference Lender) in immediately available funds in
the Tokyo interbank






12









 








market at approximately 11:00 a.m., Tokyo time, two Tokyo Business Days prior to the commencement
of such Interest Period; provided, however, that, if only two Reference Lenders
notify the General Administrative Agent of the rates offered to such Reference Lenders (or any
Affiliates of such Reference Lenders) as aforesaid, the Eurocurrency
Rate with respect to such Eurocurrency Borrowing shall be equal to the arithmetic average of the
rates so offered to such Reference Lenders (or any such Affiliates).




          “Eurocurrency Reserve Requirements” shall mean, with respect to the Eurocurrency Loans
of any Lender for any day, that percentage (expressed as a decimal) that is in effect on such day,
as prescribed by any Governmental Authority for determining the reserve, liquid asset or similar
requirement with respect to such Eurocurrency Loans for such Lender that is subject to the rules
and regulations of such Governmental Authority.




          “European Administrative Agent” shall mean J.P. Morgan Europe Limited, together with
its affiliates (it being understood that any notices required to be delivered to the European
Administrative Agent under this Agreement need not be delivered to such affiliates), as
administrative agent for the Multicurrency Lenders under this Agreement and the other Loan
Documents, and any successor thereto appointed pursuant to Article XII.




          “European Borrowers” shall have the meaning set forth in the preamble, and when used
to describe a Borrower who is permitted to borrow under the Multicurrency Commitment, shall mean
and include any Borrowing Subsidiary organized and existing under the laws of a jurisdiction whose
currency is a Committed Currency.




          “Event of Default” shall have the meaning assigned to such term in Article XI.




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




          “Exchange Rate” shall mean, with respect to any Alternate Currency on a particular date,
the rate at which such Alternate Currency may be exchanged into Dollars, as set forth on such date
on the applicable Reuters currency page with respect to such Alternate Currency; provided
that, the Company may make a one time election with the approval of the General Administrative
Agent (such approval not to be unreasonably withheld) to use Bloomberg currency pages to determine
the Exchange Rate instead of the Reuters currency pages. In the event that such rate does not
appear on the applicable Reuters currency page or Bloomberg currency page, as the case may be, the
Exchange Rate with respect to such Alternate Currency shall be determined by reference to such
other publicly available service for displaying exchange rates as may be agreed upon by the
General Administrative Agent and the Company or, in the absence of such agreement, such Exchange
Rate shall instead be JPMCB’s spot rate of exchange in the London interbank or other market where
its foreign currency exchange operations in respect of such Alternate Currency are then being
conducted, at or about 10:00 a.m., Local Time, at such date for the purchase of Dollars with such
Alternate Currency, for delivery two Business Days later; provided, however, that
if at the time of any such determination, for any reason, no such spot rate is being quoted, the
General Administrative Agent may use any reasonable method it deems appropriate to determine such
rate, and such determination shall be conclusive absent manifest error.




13









 








          “Existing Credit Agreement” shall mean the Amended and Restated Revolving Credit and
Term Loan Agreement dated as of May 24, 2004, among the Company, Zimmer, the Japanese Borrower, the
English Borrower, Zimmer Switzerland, the borrowing subsidiaries party thereto, the lenders from
time to time party thereto and the Administrative Agents.




          “Existing Letters of Credit” shall mean the outstanding letters of credit set forth on
Schedule 4.01.




          “Existing Term Loans” shall mean the term loans outstanding under the Existing Credit
Agreement immediately prior to the Restatement Date in the aggregate outstanding principal amount
of $550,000,000.




          “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 released on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so released for any day which is a Business Day, the
arithmetic average (rounded upwards, if necessary, to the next 1/100th of 1%), as determined by the
General Administrative Agent, of the quotations for the day of such transactions received by the
General Administrative Agent from three Federal funds brokers of recognized standing selected by
it.




          “Financial Officer” of any corporation shall mean the chief financial officer,
principal accounting officer, vice president of finance, controller or treasurer of such
corporation.




          “Fixed Rate” shall mean, with respect to any Competitive Loan (other than a
Eurocurrency Competitive Loan), the fixed rate of interest per annum specified by the Lender making
such Competitive Loan in its related Competitive Bid.




          “Fixed Rate Loan” shall mean a Competitive Loan bearing interest at a Fixed Rate.




          “Foreign Borrowing Subsidiary” shall mean any Borrowing Subsidiary that is a Foreign
Subsidiary.




          “Foreign Subsidiary” shall mean any Subsidiary that is not organized under the laws of
the United States or any state or political subdivision thereof.




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




          “General Administrative Agent” shall mean JPMCB, together with its affiliates (it
being understood that any notices required to be delivered under this
Agreement to the General Administrative Agent need not be delivered to such affiliates), as
general administrative agent for the Lenders under this Agreement and the other Loan Documents, and
any successor thereto appointed pursuant to Article XII.




          “Governmental Authority” shall mean the government of any nation, including, but not
limited to, the United States of America, or any political subdivision thereof, whether





14









 








state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government.




          “Guarantee” of or by any Person (the “guarantor”) shall mean any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Debt or other obligation of any other Person (the
“primary obligor”) in any
manner, whether directly or indirectly, and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation or to purchase (or to advance or supply funds for the purchase of) any
security for the payment thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Debt or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such Debt or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty issued to support such
Debt or obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.




          “Guarantor” shall mean the collective reference to the Company and the Subsidiary
Guarantors.




          “Hazardous Substances” shall mean any toxic, radioactive, mutagenic, carcinogenic,
noxious, caustic or otherwise hazardous substance, material or waste, including petroleum, its
derivatives, by-products and other hydrocarbons, including, without limitation, polychlorinated
biphenyls (“PCBs”), asbestos or asbestos-containing material, and any substance, waste or material
regulated or that could reasonably be expected to result in liability under Environmental and
Safety Laws.




          “Hedge Agreements” shall mean all interest rate swaps, caps or collar agreements or
similar arrangements dealing with interest rates or currency exchange rates or the exchange of
nominal interest obligations, either generally or under specific contingencies.




          “Inactive Subsidiary” shall mean, at any time, any Subsidiary that (a) has
consolidated assets of less than $50,000 at such time, (b) has not conducted any business
or other operations during the prior 12-month period and (c) has no outstanding Debt at such
time.




          “Incremental Facility Amount” shall mean, at any time the excess, if any, of (a)
$400,000,000 over (b) the aggregate increase in the Commitments established prior to such time
pursuant to Section 6.05.




          “Insolvency” shall mean with respect to any Multiemployer Plan, the condition that
such plan is insolvent within the meaning of Section 4245 of ERISA.




          “Interest Election Request” shall mean a request by a Borrower to convert or continue
a Borrowing in accordance with Section 6.02.




          “Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last day of
each March, June, September and December, (b) with respect to any Eurocurrency Loan,




          

15









 








the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and,
in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period and (c) with respect to any Fixed Rate
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Fixed Rate Borrowing with an Interest Period of more than 90 days’ duration
(unless otherwise specified in the applicable Competitive Bid Request), each day prior to the last
day of such Interest Period that occurs at intervals of 90 days’ duration after the first day of
such Interest Period, and any other dates that are specified in the applicable Competitive Bid
Request as Interest Payment Dates with respect to such Borrowing.




          “Interest Period” shall mean (a) as to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending either (x) on the day that is two weeks
thereafter or (y) on the numerically corresponding day in the calendar month that is 1, 2, 3 or 6
(or, with the consent of all Lenders making such Loan, 9 or 12) months thereafter, in each case as
the applicable Borrower may elect, and (b) as to any Fixed Rate Borrowing, the period (which shall
not be less than seven days or more than 360 days) commencing on the date of such Borrowing and
ending on the date specified in the applicable Competitive Bid Request; provided, that (i)
if any Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a Eurocurrency Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day and (ii) any Interest Period referred
to in clause (a) (y) above that commences on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.




          “Investment Grade Standing” shall exist at any time when the actual Ratings are at or
above BBB- from S&P and at or above Baa3 from Moody’s. If either of S&P or Moody’s shall change its
system of classifications after the Restatement Date, Investment Grade Standing shall exist at any
time when the actual Rating is at or above the new Rating which most closely corresponds to the
above-specified level under the previous rating system.




          “Issuing Lender” shall mean JPMCB in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Article IV. The Issuing
Lender may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Lender, in which case the term “Issuing Lender” shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate. The term “Issuing Lender” shall also
mean JPMCB in its capacity as issuer of the Existing Letters of Credit listed on Schedule 4.01.




          “Japanese Administrative Agent” shall mean JPMorgan Chase Bank, N.A., Tokyo Branch,
together with its affiliates (it being understood that any notices required to be delivered to the
Japanese Administrative Agent under this Agreement need not be delivered to such




          

16









 








affiliates), as administrative agent for the Japanese Lenders under this Agreement and the other
Loan Documents, and any successor thereto appointed pursuant to Article XII.




          “Japanese Borrower” shall have the meaning set forth in the preamble and, when used to
describe the Borrowers who are permitted to borrow under the Japanese Commitment, also shall mean
and include any Borrowing Subsidiary organized and existing under the laws of Japan.




          “Japanese Commitment” shall mean, as to any Japanese Lender at any time, its
obligation to make Japanese Revolving Loans to the Japanese Borrower and the U.S. Borrowers in an
aggregate Dollar Equivalent amount not to exceed at any one time outstanding the amount set forth
opposite such Japanese Lender’s name in Part B of Schedule 2.01 under the heading “Japanese
Commitment”, as such amount may be reduced from time to time pursuant to Section 6.03 and the other
applicable provisions hereof, or increased from time to time pursuant to Section 6.05. The initial
aggregate amount of the Japanese Commitments is $200,000,000.




          “Japanese Lender” shall mean any Lender that has a Japanese Commitment or an
outstanding Japanese Revolving Loan.




          “Japanese Revolving Credit Exposure” shall mean, as at any date of determination with
respect to any Japanese Lender, an amount equal to the Dollar Equivalent of the Japanese Revolving
Loans of such Lender on such date.




          “Japanese Revolving Loan” shall have the meaning given to such term in Section
2.01(b).




          “Japanese Yen” and “¥” shall mean lawful money of Japan.




          “JPMCB” shall mean JPMorgan Chase Bank, N.A.




          “LC Disbursement” shall mean a payment made by the Issuing Lender pursuant to a Letter
of Credit.




          “LC Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount of
all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The
LC Exposure of any U.S. Lender at any time shall be its U.S. Commitment Percentage of the total LC
Exposure at such time.




          “Lenders” shall mean (a) the financial institutions listed on Part A, Part B and Part
C of Schedule 2.01 (other than any such financial institution that has ceased to be a party hereto,
pursuant to an Assignment and Acceptance) and (b) any financial institution that has become a party
hereto pursuant to an Assignment and Acceptance; provided, that unless the context requires
otherwise, each reference herein to the Lenders shall be deemed to include any Conduit Lender.




          “Letter Agreement” shall mean the Letter Agreement dated March 9, 2005, between the
Company and the General Administrative Agent.




          

17









 








          “Letter of Credit” shall mean any Letter of Credit issued pursuant to Article IV.




          “Lien” shall mean any mortgage, lien, pledge, encumbrance, charge or security
interest.




          “Loan Documents” shall mean this Agreement, each Borrowing Subsidiary Agreement, each
Borrowing Subsidiary Termination and each promissory note held by a Lender pursuant to Section
6.04(g).




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




          “Local Time” shall mean (a) with respect to a Loan or Borrowing denominated in
Dollars, New York City time, (b) with respect to a Loan or Borrowing denominated in a Committed
Currency, London time and (c) with respect to a Loan or
Borrowing denominated in Japanese Yen, Tokyo time.




          “Luxembourg Borrower” shall have the meaning set forth in the Preamble.




          “Margin Regulations” shall mean Regulations T, U and X of the Board as from time to
time in effect, and all official rulings and interpretations thereunder or thereof.




          “Material Adverse Effect” shall mean a material adverse effect on the business,
operations, properties or financial condition of the Company and its consolidated Subsidiaries,
taken as a whole.




          “Maturity Date” shall mean March 31, 2010.




          “Moody’s” shall mean Moody’s Investors Service, Inc. or any successor thereto.




          “Multicurrency Commitment” shall mean, as to any Multicurrency Lender at any time, its
obligation to make Multicurrency Revolving Loans to the European Borrowers and the U.S. Borrowers
in an aggregate Dollar Equivalent amount not to exceed at any time outstanding the amount set forth
opposite such Multicurrency Lender’s name in Part C of Schedule 2.01 under the heading
“Multicurrency Commitment”, as such amount may be reduced from time to time pursuant to Section
6.03 and the other applicable provisions hereof, or increased from time to time pursuant to Section
6.05. The initial aggregate amount of the Multicurrency Commitments is $500,000,000.




       
   “Multicurrency Lender” shall mean any Lender that has a Multicurrency Commitment or an
outstanding Multicurrency Revolving Loan.




          “Multicurrency Revolving Credit Exposure” shall mean, as at any date of determination
with respect to any Multicurrency Lender, an amount equal to the Dollar Equivalent of the
Multicurrency Revolving Loans of such Lender on such date.




        
  “Multicurrency Revolving Loans” shall have the meaning given such term in Section 2.01(c).





18









 








          “Notice of Competitive Bid Request” shall mean a notification made pursuant to Article
III in the form of Exhibit A-2.




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




          “Permitted Debt” shall mean (i) Debt of any Subsidiary to any Credit Party, (ii)
Guarantees by any Subsidiary of Debt of any Credit Party (other than the Company) and Guarantees by
the Company of any Debt of any Subsidiary, (iii) any Debt
incurred pursuant to Sale and Leaseback Transactions permitted under Section 10.03, (iv) Debt
of any Subsidiary as an account party in respect of trade letters of credit, to the extent that
such letters of credit are not drawn upon, (v) Debt assumed in connection with any Investment
permitted under Section 10.08, (vi) Debt secured by any Lien permitted pursuant to Section 10.02
(b) or (q), (vii) Debt consisting of guarantees of loans made to officers, directors or employees
of any Subsidiary, (viii) unsecured trade accounts payable and other unsecured current Debt
incurred in the ordinary course of business and not more than 120 days past due (but excluding any

Debt for borrowed money), (ix) any Permitted Receivables Securitization, (x) any Permitted
Securities Issuance, (xi) Debt with respect to surety, appeal and performance bonds obtained by any
Subsidiary in the ordinary course of business, and (xii) any replacement, renewal, refinancing or
extension of any Debt referenced above that does not exceed the aggregate principal amount (plus
associated fees and expenses) of the Debt being replaced, renewed, refinanced or extended (except
that accrued and unpaid interest not delinquent in accordance with its terms may be part of any
refinancing pursuant to this clause) and that otherwise complies with this Agreement.




          “Permitted Receivables Securitization” shall mean the incurrence of Debt in respect of
any receivables securitization of the Company or any Subsidiary, provided that the
aggregate principal amount of all Permitted Receivables Securitizations outstanding at any time
shall not exceed $200,000,000.




          “Permitted Securities Issuance” shall mean the issuance or incurrence by the Company
of any Debt for borrowed money (which may be guaranteed by one or more Subsidiary Guarantors) in
respect of debt securities issued in a public offering or a private placement, provided
that the aggregate principal amount of all Permitted Securities Issuances outstanding at any time
shall not exceed $500,000,000, and provided further, that any debt securities (and related
guarantees, if any) issued or incurred pursuant to any Permitted Securities Issuance shall be
subordinated to, or pari passu with, the Loans or Guarantees thereof.




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




          “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan)
as defined in Section 4001(a)(3) of ERISA, subject to the provisions of Title IV of ERISA or
Section 412 of the Code that is maintained by the Company or any ERISA Affiliate for current or
former employees, or any beneficiary thereof, of the Company or any ERISA Affiliate.




          

19









 








          “Pricing Grid” shall mean the Facility Fee, Applicable Margin and Utilization Fee
Pricing Grid set forth below.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	S&P/Moody’s Rating	 	 	 	 	 	 	 	Applicable	 	 	 	 
	 	Equivalent of the	 	 	 	 	 	 	 	Margin for	 	 	 	 
	 	Company’s senior	 	 	 	 	 	 	 	Eurocurrency	 	 	 	 
	 	unsecured non-credit	 	 	Facility Fee	 	 	Revolving Loans	 	 	Utilization Fee	 
	 	enhanced long-term debt	 	 	(in Basis Points)	 	 	(in Basis Points)	 	 	(in Basis Points)	 
	 	A-/A3 or higher

	 	 	 	7.5	 	 	 	 	22.0	 	 	 	 	7.5	 	 
	 	BBB+/Baa1 or

BBB/Baa1 or

BBB+/Baa2

	 	 	 	10.0	 	 	 	 	30.0	 	 	 	 	10.0	 	 
	 	BBB/Baa2 or

BBB-/Baa2 or

BBB/Baa3

	 	 	 	12.5	 	 	 	 	37.5	 	 	 	 	12.5	 	 
	 	BBB-/Baa3

	 	 	 	15.0	 	 	 	 	47.5	 	 	 	 	12.5	 	 
	 	BB+/Ba1 or

lower or

unrated

	 	 	 	22.5	 	 	 	 	65.0	 	 	 	 	12.5	 	 
	 





          If the S&P and Moody’s Ratings are one level apart, the higher Rating will determine the
Facility Fee, Applicable Margin and the Utilization Fee (if any); if the S&P and Moody’s Ratings
are more than one level apart, the Rating one level above the lower Rating will be determinative.
In the event that the Company’s senior unsecured long-term debt is rated by only one of S&P and
Moody’s, then that single Rating shall be determinative. The Company hereby agrees that at all
times it shall maintain a Rating from either S&P or Moody’s. Each change in a Rating by a Rating
Agency shall be effective on the date such change is announced by such Rating Agency.




          The Applicable Margin for the Loans shall be increased by the applicable “Utilization Fee” set
forth above for each day that the sum of (a) the Revolving Credit Exposures and (b) the Competitive
Loan Exposures exceed 50% of the total Commitments.




          “Rating Agencies” shall mean Moody’s and S&P.




          “Ratings” shall mean the ratings from time to time established by the Rating Agencies
for senior, unsecured, non-credit-enhanced long-term debt of the Company.




          “Reference Lenders” shall mean Bank of America, JPMCB and CSFB.




          “Register” shall have the meaning set forth in Section 13.04(d).




          “Reorganization” shall mean with respect to any Multiemployer Plan, the condition that
such plan is in reorganization within the meaning of Section 4241 of ERISA.




20









 








          “Required Lenders” shall mean, at any time, Lenders having Revolving Credit Exposures
and unused Commitments representing at least 51% of the sum of the
Revolving Credit Exposures and unused Commitments at such time; provided that, for
purposes of declaring the Loans to be due and payable pursuant to Article XI, and for all purposes
after the loans become due and payable pursuant to Article XI or the Commitments shall have expired
or terminated, the Competitive Loan Exposures of the Lenders shall be included in their respective
Revolving Credit Exposures in determining the Required Lenders.




          “Restatement Date” shall mean March 31, 2005.




          “Revolving Availability Period” shall mean the period from and including the
Restatement Date to (but excluding) the earlier of the Maturity Date and the date of termination of
the Commitments in accordance with the terms hereof.




          “Revolving Credit Exposure” shall mean, as at any date of determination with respect
to any Lender, an amount in Dollars equal to the sum of (a) the U.S. Revolving Credit Exposure of
such Lender, (b) the Multicurrency Revolving Credit Exposure of such Lender and (c) the Japanese
Revolving Credit Exposure of such Lender.




         
 “Revolving Loans” shall mean the collective reference to the U.S. Revolving Loans, the
Multicurrency Revolving Loans and the Japanese Revolving Loans, each, individually, a “Revolving
Loan”.




          “Sale and Leaseback Transaction” shall mean any arrangement with any Person pursuant
to which the Company or any Subsidiary leases any property that has been or is to be sold or
transferred by the Company or the Subsidiary to such Person, other than (i) temporary leases for a
term, including renewals at the option of the lessee, of not more than three years, (ii) leases
between the Company and a Subsidiary or between Subsidiaries, (iii) leases of property executed by
the time of, or within 12 months after the latest of, the acquisition, the completion of
construction or improvement, or the commencement of commercial operation, of such property and (iv)
arrangements pursuant to any provision of law with an effect similar to that under former Section
168(f)(8) of the Internal Revenue Code of 1954.




          “S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. or any successor rating agency.




          “SEC” shall mean the Securities and Exchange Commission.




         
 “Sterling” or “£ ” means the lawful money of the United Kingdom.




          “subsidiary” shall mean, with respect to any Person (the “parent”) at any
date, (a) for purposes of Sections 10.03 and 10.06 only, any Person the majority of the
outstanding Voting Stock (or equivalent voting securities of any Person which is not a
corporation) of which is owned, directly or indirectly, by the parent or one or more subsidiaries
of the parent of such Person and (b) for all other purposes under this Agreement, any corporation,
limited liability company, partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the
parent’s consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other





21









 








corporation, limited liability company, partnership, association or other entity of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held.




          “Subsidiary” shall mean a subsidiary of the Company.




          “Subsidiary Guarantor” shall mean each Domestic Wholly Owned Subsidiary that has
executed a counterpart of this Agreement and has become a guarantor of the Borrower Obligations.




          “Swingline Lender” shall mean JPMCB in its capacity as lender of Swingline Loans
hereunder.




          “Swingline Loan” shall mean a Loan made pursuant to Article V.




          “Swiss Borrowers” shall have the meaning set forth in the Preamble.




          “Swiss Francs” or “CHF” shall mean the lawful money of Switzerland.




          “Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority and all liabilities with
respect thereto.




          “Transactions” shall mean the execution and delivery by the Credit Parties of this
Agreement (or, in the case of the Borrowing Subsidiaries, the Borrowing Subsidiary Agreements), the
performance by the Credit Parties of their obligations hereunder, the borrowings made or to be made
hereunder and the use of the proceeds thereof.




          “Type” when used in respect of any Loan or Borrowing, shall refer to the Rate by
reference to which interest on such Loan or on the Loans comprising such Borrowing is determined.
For purposes hereof, “Rate” shall include the Eurocurrency Rate, the Alternate Base Rate and the
Fixed Rate.




          “U.S. Borrowers” shall have the meaning set forth in the preamble and, when used to
describe the Borrowers who are permitted to borrow under any of the
Commitments, also shall mean and include any Borrowing Subsidiary that is a Domestic Wholly
Owned Subsidiary.




          “U.S. Commitment” shall mean, as to any U.S. Lender at any time, its obligation to
make U.S. Revolving Loans to, and/or participate in Swingline Loans made
to and Letters of Credit issued for the account of, any U.S. Borrower and the Borrowing
Subsidiaries in an aggregate amount not to exceed at any time outstanding the Dollar amount set
forth opposite such U.S. Lender’s name in Part A of Schedule 2.01 under the heading “U.S.
Commitment”, as such amount may be reduced from time to time pursuant to Section 6.03 and the other
applicable provisions hereof, or increased from time to time pursuant to Section 6.05. The initial
aggregate amount of the U.S. Commitments is $650,000,000.




          

22









 








          “U.S. Commitment Percentage” shall mean, as to any U.S. Lender at any time, the
percentage which such U.S. Lender’s U.S. Commitment then constitutes of the aggregate U.S.
Commitments of all U.S. Lenders.




          “U.S. Lender” shall mean a Lender with a U.S. Commitment or, if the U.S. Commitments
have terminated or expired, a Lender with U.S. Revolving Credit Exposure.




          “U.S. Revolving Credit Exposure” shall mean, as at any date of determination with
respect to any U.S. Lender, an amount in Dollars equal to the sum of (a) the aggregate unpaid
principal amount of such U.S. Lender’s U.S. Revolving Loans on such date, (b) such U.S. Lender’s
U.S. Commitment Percentage of the aggregate unpaid principal amount of all Swingline Loans and (c)
such U.S. Lender’s LC Exposure.




          “U.S. Revolving Loan” shall have the meaning set forth in Section 2.01(a).




          “Value” shall mean, with respect to a Sale and Leaseback Transaction, an amount equal
to the present value of the lease payments with respect to the term of the lease (reduced by the
amount of rental obligations of any sublessee of all or part of the same property) remaining on the
date as of which the amount is being determined, without regard to any renewal or extension options
contained in the lease, discounted at an interest rate determined by the Company at the time of the
consummation of such Sale and Leaseback Transaction as long as such interest rate is customary for
leases of such type.




          “Voting Stock” shall mean, as applied to the stock of any corporation, stock of any
class or classes (however designated) having by the terms thereof ordinary voting power to elect a
majority of the members of the board of directors (or other governing body) of such corporation
other than stock having such power only by reason of the happening of a contingency.




          “Wholly Owned Subsidiary” of any Person, a subsidiary of such Person of
which securities (except for directors’ qualifying shares) or other ownership interests
representing 100% of the equity are, at the time any determination is being made, owned by such
Person or one or more wholly owned subsidiaries of such Person or by such Person and one or more
wholly owned subsidiaries of such Person.




          “Yen Overnight Rate” shall mean for any day, the unsecured overnight call
volume-weighted average rate per annum on overnight funds announced at the close of business on
that day by the Tanshi Kyokai (Interbank Brokers’ Association) or, if not so announced on that day,
the average of the quotations of the overnight funds call rate for such day of three Tanshi brokers
selected by the Japanese Administrative Agent.




          “Zimmer Switzerland” shall have the meaning set forth in the Preamble.




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





23









 








by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency
Revolving Borrowing”) or by Class, Type and Commitment (e.g., a “U.S. Eurocurrency
Revolving Borrowing”).




          SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.




          SECTION 1.04. Accounting Terms, GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that if the Company notifies the General Administrative Agent that the Company
wishes to amend any covenant in Article X or any related definition or other financial term used
herein to eliminate the effect of any change in GAAP occurring after the Restatement
Date on the operation of such covenant (or if the General Administrative Agent notifies the
Company that the Required Lenders wish to amend Article X or any related definition or other
financial term used herein for such purpose), then the Company’s compliance 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.








ARTICLE II




Amount and Terms of the Commitments




          SECTION 2.01. Commitments. (a) Subject to the terms and conditions set forth herein,
each U.S. Lender agrees to make revolving loans (“U.S. Revolving Loans”) to the U.S.
Borrowers from time to time during the Revolving Availability Period in Dollars in an aggregate
principal amount that will not result in (i) such Lender’s U.S. Revolving Credit Exposure exceeding
such Lender’s U.S. Commitment, (ii) the sum of the total U.S. Revolving Credit Exposures exceeding
the total U.S. Commitments or (iii) the sum of the total Revolving Credit Exposures plus the total
Competitive Loan Exposures exceeding the total Commitments. Within





24









 








the foregoing limits and subject to the terms and conditions set forth herein, the U.S. Borrowers
may borrow, prepay and reborrow U.S. Revolving Loans.




          (b) Subject to the terms and conditions set forth herein, each Japanese Lender agrees to make
revolving loans (“Japanese Revolving Loans”) from time to time during the Revolving
Availability Period to the Japanese Borrower and the U.S. Borrowers in Japanese Yen or Dollars in
an aggregate principal amount that will not result in (i) such Lender’s Japanese Revolving Credit
Exposure exceeding such Lender’s Japanese Commitment, (ii) the sum of the total Japanese Revolving
Credit Exposures exceeding the total Japanese Commitments or (iii) the sum of the total Revolving
Credit Exposure plus the total Competitive Loan Exposures exceeding the total Commitments. Within
the foregoing limits and subject to the terms and conditions set forth herein, any Japanese
Borrower and the U.S. Borrowers may borrow, prepay and reborrow the Japanese Revolving Loans.




          (c) Subject to the terms and conditions set forth herein, each Multicurrency Lender agrees to
make revolving loans (“Multicurrency Revolving Loans”) from time to time during the
Revolving Availability Period to the European
Borrowers and the U.S. Borrowers in a Committed Currency or Dollars in an aggregate principal
amount that will not result in (i) such Lender’s Multicurrency Revolving Credit Exposure exceeding
such Lender’s Multicurrency Commitment, (ii) the sum of the total Multicurrency Revolving Credit
Exposures exceeding the total Multicurrency Commitments or (iii) the sum of the total Revolving
Credit Exposure plus the total
Competitive Loan Exposures exceeding the total Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the European Borrowers and the U.S. Borrowers
may borrow, prepay and reborrow the Multicurrency Revolving Loans.




          SECTION 2.02. Loans and Borrowings. (a) Each U.S. Revolving Loan shall be made as part
of a Borrowing consisting of U.S. Revolving Loans of the same Type made by the U.S. Lenders ratably
in accordance with their respective U.S. Commitments. Each Competitive Loan shall be made in
accordance with the procedures set forth in Section 3.01.




          (b) Each Japanese Revolving Loan shall be made as part of a Borrowing consisting of Japanese
Revolving Loans made by the Japanese Lenders to the Japanese Borrower or the U.S. Borrowers, as the
case may be, ratably in accordance with their respective Japanese Commitments.




          (c) Each Multicurrency Revolving Loan shall be made as part of a Borrowing consisting of
Multicurrency Revolving Loans made by the Multicurrency Lenders to the English Borrower, the
Luxembourg Borrower, the Swiss Borrowers or the U.S. Borrowers, as the case may be, ratably in
accordance with their respective Multicurrency Commitments.




          (d) The failure of any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments and Competitive
Bids of the Lenders are several and no Lender shall be responsible for any other Lender’s failure
to make such Loans as required.




          (e) Subject to Section 6.09, (i) each Revolving Borrowing denominated in
Dollars shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Company (on





25










 






its own behalf or on behalf of any other applicable Borrower) may request in accordance
herewith, (ii) each Competitive Borrowing shall be comprised entirely of Eurocurrency Loans or
Fixed Rate Loans as the Company (on its own behalf or on behalf of any other Borrower) may request
in accordance herewith and (iii) each Revolving Borrowing denominated in an Alternate Currency
shall be comprised entirely of Eurocurrency Loans. Each Lender at its option may make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the obligation of any
Borrower to repay such Loan in accordance with the terms of this Agreement.




          (f) At the commencement of each Interest Period for any Eurocurrency Borrowing, such Borrowing
shall be in an aggregate amount that is (i) in the case of a Eurocurrency Borrowing denominated in
Dollars, an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) in the case of a
Eurocurrency Borrowing denominated in an Alternate Currency a minimum principal amount the Dollar
Equivalent of which is $2,000,000. At the time that each ABR Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$1,000,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments of a particular Class. Each Competitive Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. Borrowings of more than one Commitment, Type and Class may be outstanding at the same
time; provided that there shall not at any time be more than a total of 30 Eurocurrency Revolving
Borrowings outstanding.



          (g) Notwithstanding any other provision of this Agreement, the Company (on its own behalf or
on behalf of any other Borrower) shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect thereto would end after the
Maturity Date.



          SECTION
2.03. Requests for Borrowings. To request a Revolving Borrowing, the applicable
Borrower or the Company (on its own behalf or on behalf of any other Borrower) shall notify the
Applicable Administrative Agent and the General Administrative Agent of such request by telephone
(a) in the case of a Eurocurrency Borrowing, not later than 1:30 p.m., Local Time, three Business
Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later
than 12:00 noon, New York City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy
to the applicable Administrative Agent and the General Administrative Agent of a written Borrowing
Request in the form of Exhibit A-5. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:




     (i) the aggregate amount of the requested Borrowing and the Currency of such
Borrowing;




     (ii) if such Borrowing is to be an Alternate Currency Borrowing,
whether such Borrowing is to be a Japanese Revolving Borrowing or a Multicurrency
Revolving Borrowing (and stating the Currency in which such Borrowing is to be made);




26









 









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




     (iv) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing (which, in the case of an Alternate Currency Borrowing shall be a Eurocurrency
Borrowing);




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




     (vi) the location and number of the account of the applicable Borrower or any
Borrowing Subsidiary to which funds are to be disbursed, which shall comply with the
requirements of Section 6.01; and




     (vii) the applicable Borrower.



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




               SECTION
2.04. Borrowing Subsidiaries. The Company may designate any Wholly Owned Subsidiary
of the Company as a Borrowing Subsidiary under any of the Commitments; provided that the
Administrative Agent shall be reasonably satisfied that the applicable Lenders may make loans and
other extensions of credit to such Person in the applicable Currency or Currencies in such Person’s
jurisdiction in compliance with applicable laws and regulations and without being subject to any
unreimbursed or unindemnified Tax or other expense. Upon the receipt by the General Administrative
Agent of a Borrowing Subsidiary Agreement executed by such a Wholly Owned Subsidiary and the
Company, such Wholly Owned Subsidiary shall be a Borrowing Subsidiary and a party to this
Agreement. A Subsidiary shall cease to be a Borrowing Subsidiary hereunder at such time as no
Loans, fees or any other amounts due in connection therewith pursuant to the terms hereof shall be
outstanding to such Subsidiary and such Subsidiary and the Company shall have executed and
delivered to the General
Administrative Agent a Borrowing Subsidiary Termination; provided that, notwithstanding
anything herein to the contrary, no Borrowing Subsidiary shall cease to be a Borrowing Subsidiary
solely because it no longer is a Wholly Owned Subsidiary of the Company so long as such Borrowing
Subsidiary and the Company shall not have executed and delivered to the General Administrative
Agent a Borrowing Subsidiary Termination and the Guarantors’ guarantee of the Borrower Obligations
of such Borrowing Subsidiary pursuant to Section 13.16 has not been released.




27









 








ARTICLE III




Competitive Bid Loans




          SECTION 3.01. Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Revolving Availability Period the Company
(on its own behalf or on behalf of any other Borrower) may request Competitive Bids and the Company
(on its own behalf or on behalf of any other Borrower) may (but shall not have any obligation to)
accept Competitive Bids and borrow Competitive Loans; provided that no Competitive Loan may be
requested that would result in the sum of the total Revolving Credit Exposures plus the total
Competitive Loan Exposures exceeding the total Commitments. To request Competitive Bids, the
Company (on its own behalf or on behalf of any other Borrower) shall hand deliver or telecopy to
the Advance Agent a duly completed Competitive Bid Request in the form of Exhibit A-1 hereto, to be
received by the Advance Agent, in the case of a Eurocurrency Borrowing, not later than 10:00 a.m.,
New York City time, four Business Days before the date of the proposed Borrowing and, in the case
of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, two Business Days before
the date of the proposed Borrowing. A Competitive Bid Request that does not conform substantially
to Exhibit A-1 may be rejected in the Advance Agent’s sole discretion, and the Advance Agent shall
promptly notify the Company of such rejection by telecopy. Each Competitive Bid Request shall
specify the following information in compliance with Section 2.02:




     (i) the aggregate amount of the requested Borrowing;




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




     (iii) whether such Borrowing is to be a Eurocurrency Borrowing or a Fixed
Rate Borrowing;




     (iv) the Interest Period to be applicable to such Borrowing, which shall be a period
contemplated by the definition of the term “Interest Period”;




     (v) the location and number of the account of the Borrower to which funds are to be
disbursed, which shall comply with the requirements of Section 6.01; and




     (vi) the applicable Borrower.



Promptly following receipt of a Competitive Bid Request in accordance with this Section, the
Advance Agent shall deliver to the Lenders a Notice of Competitive Bid Request, inviting the
Lenders to submit Competitive Bids.




          (b) Each Lender may (but shall not have any obligation to) make one or more Competitive Bids
to such Borrower in response to a Competitive Bid Request. Each Competitive Bid by a Lender must
be received by the Advance Agent by telecopy, in the form of Exhibit A-3 hereto, in the case of a
Eurocurrency Competitive Borrowing, not later than 9:30 a.m., New York City time, three Business
Days before the proposed date of such Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 11:30 a.m., New York City time, one Business Day before the proposed date
of such Competitive




28









 








Borrowing. Competitive Bids that do not conform substantially to the format of Exhibit A-3 may be
rejected by the Advance Agent, and the Advance Agent shall notify the applicable Lender as promptly
as practicable. Each Competitive Bid shall specify (i) the principal amount of the Competitive Loan
or Loans that the Lender is willing to make (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000, and which may equal the entire principal amount of the Competitive
Borrowing Request by such Borrower), (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) and (iii) the Interest Period applicable to each such
Loan and the last day thereof.




          (c) The Advance Agent shall promptly notify such Borrower by telecopy of the Competitive Bid
Rate and the principal amount specified in each Competitive Bid and the identity of the Lender that
shall have made such Competitive Bid.



          (d) Subject only to the provisions of this paragraph, such Borrower may accept or reject any
Competitive Bid. Such Borrower shall notify the Advance Agent by telephone, confirmed by telecopy
in the form of a Competitive Bid
Accept/Reject Letter, whether and to what extent it has decided to accept or reject each
Competitive Bid, in the case of a Eurocurrency Competitive Borrowing, not later than 2:00 p.m., New
York City time, three Business Days before the date of the proposed Competitive Borrowing, and in
the case of a Fixed Rate Borrowing, not later than 2:00 p.m., New York City time, on the proposed
date of the Competitive Borrowing; provided that (i) the failure of such Borrower to give such
notice shall be deemed to be a rejection of each Competitive Bid, (ii) such Borrower shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if the Company rejects a
Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive
Bids accepted by such Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent necessary to comply
with clause (iii) above, such Borrower may accept Competitive Bids at the same Competitive Bid Rate
in part, which acceptance, in the case of multiple Competitive Bids at such Competitive Bid Rate,
shall be made pro rata in accordance with the amount of each such Competitive Bid and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a Competitive Loan unless
such Competitive Loan is in a minimum principal amount of $5,000,000 and an integral multiple of
$1,000,000; provided further that if a Competitive Loan must be in an amount less than $5,000,000
because of the provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$5,000,000 or any integral multiple of $1,000,000 thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a particular Competitive Bid
Rate pursuant to clause (iv) the amounts shall be rounded to integral multiples of $1,000,000 in a
manner which shall be in the discretion of such Borrower. A notice given by such Borrower pursuant
to this paragraph (d) shall be irrevocable.



          (e) The Advance Agent shall promptly notify each bidding Lender by telecopy whether or
not its Competitive Bid has been accepted (and, if so, the amount and Competitive Bid Rate so
accepted), and each successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its Competitive Bid has been
accepted.




29









 








          (f) If the Advance Agent shall elect to submit a Competitive Bid in its capacity as a Lender,
it shall submit such Competitive Bid directly to the Company (on its own behalf or on behalf of any
other Borrower) at least one quarter of an hour earlier than the time by which the other Lenders
are required to submit their Competitive Bids to the Advance Agent pursuant to paragraph (b) of
this Section 3.01.



          (g) All notices required by this Section 3.01 shall be given in accordance with Section 13.01.



ARTICLE IV




Letters of Credit




          SECTION 4.01.  Letters of Credit. (a)  General. Subject to the terms and conditions set forth
herein, each U.S. Borrower and the Company (on behalf of any Borrowing Subsidiary) may request the
issuance under the U.S. Commitments of Letters of Credit for its own account (including for the
account of any Borrowing Subsidiary), in a form reasonably acceptable to the General Administrative
Agent and the Issuing Lender, at any time and from time to time during the Revolving Availability
Period. In the event of any inconsistency between the terms and conditions of this Agreement and
the terms and conditions of any form of letter of credit application or other agreement submitted
by a U.S. Borrower or the Company (on behalf of any Borrowing Subsidiary) to, or entered into by a
U.S. Borrower or the Company (on behalf of any Borrowing Subsidiary) with, the Issuing Lender
relating to any Letter of Credit, the terms and conditions of this Agreement shall control. At the
request of a U.S. Borrower or the Company (on behalf of any Borrowing Subsidiary), any Letter of
Credit may be issued for the joint and several account of such Borrower and another Borrower. The
Existing Letters of Credit are deemed to have been issued under this Agreement and will, for all
purposes of this Agreement, constitute Letters of Credit.



          (b)  Notice of Issuance; Amendment; Renewal; Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), a U.S. Borrower or the Company (on behalf of any Borrowing
Subsidiary) shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Lender) to the Issuing Lender and the
General Administrative Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, the date of issuance, amendment, renewal or
extension, the date on which such Letter of Credit is to expire (which shall comply with paragraph
(c) of this Section 4.01), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Lender, such U.S. Borrower or the Company
(on behalf of any Borrowing Subsidiary) also shall submit a letter of credit application on the
Issuing Lender’s standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal
or extension of each Letter of Credit, the Borrowers shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension (i) the LC Exposure
shall not exceed $50,000,000, (ii) the sum of the total




30









 








U.S. Revolving Credit Exposures shall not exceed the total U.S. Commitments and (iii)
the sum of the total Revolving Credit Exposures plus the total Competitive Loan Exposures shall not
exceed the total Commitments.




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



          (d)  Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the part of the Issuing
Lender or the U.S. Lenders, the Issuing Lender hereby grants to each U.S. Lender, and each U.S.
Lender hereby acquires from the Issuing Lender, a participation in such Letter of Credit equal to
such U.S. Lender’s U.S. Commitment Percentage of the aggregate amount available to be drawn under
such Letter of Credit. In consideration and in furtherance of the foregoing, each U.S. Lender
hereby absolutely and unconditionally agrees to pay to the General Administrative Agent, for the
account of the Issuing Lender, such U.S. Lender’s U.S. Commitment Percentage of each LC
Disbursement made by the Issuing Lender and not reimbursed on or before the date due as provided in
paragraph (e) of this Section 4.01, or of any reimbursement payment required to be refunded to the
Borrowers for any reason. Each U.S. Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the U.S. Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.



          (e) Reimbursement. If the Issuing Lender shall make any LC Disbursement in respect of a Letter
of Credit, the applicable Borrower shall reimburse such LC Disbursement by paying to the General
Administrative Agent an amount equal to such LC Disbursement not later than 2:00 p.m., New York
City time, on the date that such LC Disbursement is made, if such Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by such Borrower prior to such time on such date, then not later than
2:00 p.m., New York City time, on (i) the Business Day that such Borrower receives such notice, if
such notice is received prior to 10:00 a.m., New York City time, on the day of receipt or (ii) the
Business Day immediately following the day that such Borrower receives such notice, if such notice
is not received prior to such time on the day of receipt; provided that such U.S. Borrower or the
Company (on behalf of the applicable Borrowing Subsidiary) may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed
with a U.S. Revolving Loan or Swingline Loan in an equivalent amount and, to the extent so
financed, such Borrower’s obligation to make such payment shall be discharged and replaced by the
resulting U.S. Revolving Loan or Swingline Loan. If such Borrower fails to make such payment when
due, the General Administrative Agent shall notify each U.S. Lender of the applicable LC
Disbursement, the payment then due from such
Borrower in respect thereof and such U.S. Lender’s U.S. Commitment Percentage thereof.
Promptly following receipt of such notice, each U.S. Lender shall pay to the General Administrative
Agent its U.S. Commitment Percentage of




31









 








the payment then due from such Borrower, in the same manner as provided in Section 6.01 with
respect to U.S. Revolving Loans made by such U.S. Lender (and Section 6.01 shall apply, mutatis
mutandis, to the payment obligations of the U.S. Lenders), and the General Administrative Agent
shall promptly pay to the Issuing Lender the amounts so received by it from the U.S. Lenders.
Promptly following receipt by the General Administrative Agent of any payment from such Borrower
pursuant to this paragraph, the General Administrative Agent shall distribute such payment to the
Issuing Lender or, to the extent that U.S. Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Lender, then to such U.S. Lenders and the Issuing Lender as their interests
may appear. Any payment made by a U.S. Lender pursuant to this paragraph to reimburse the Issuing
Lender for any LC Disbursement (other than the funding of U.S. Revolving Loans as contemplated
above) shall not constitute a Loan and shall not relieve such Borrower of its obligation to
reimburse such LC Disbursement.




          (f)  Obligations Absolute. Each applicable Borrower’s obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section 4.01 shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and irrespective of:




     (i) any lack of validity or enforceability of any Letter of Credit or this Agreement,
or any term or provision therein;




     (ii) any amendment or waiver of or any consent to departure from all or any of the
provisions of any Letter of Credit or this Agreement;




     (iii) the existence of any claim, setoff, defense or other right that any Borrower,
any other party guaranteeing, or otherwise obligated with, any Borrower, any Subsidiary or
other Affiliate thereof or any other Person may at any time have against the beneficiary
under any Letter of Credit, the Issuing Lender, the General Administrative Agent or any
Lender or any other Person, whether in connection with this Agreement or any other related
or unrelated agreement or transaction;




     (iv) any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect;




     (v) payment by the Issuing Lender under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter of Credit; and




     (vi) any other act or omission to act or delay of any kind of the Issuing Lender, the
Lenders, the General Administrative Agent or any other Person or any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but
for the provisions of this Section 4.01, constitute a legal or equitable discharge of such
Borrower’s obligations hereunder.



Neither the General Administrative Agent, the Lenders nor the Issuing Lender nor any of their
Affiliates, directors, officers, employees and agents, shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment
or





32









 








failure to make any payment thereunder, including any of the circumstances specified in
clauses (i) through (vi) above, as well as any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the
Issuing Lender; provided that the foregoing shall not be construed to excuse the Issuing Lender
from liability to such Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by
applicable law) suffered by such Borrower that are caused by the Issuing Lender’s failure to
exercise the agreed standard of care (as set forth below) in determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that the Issuing Lender shall have exercised the agreed standard of care in the
absence of gross negligence or wilful misconduct on the part of the Issuing Lender. Without
limiting the generality of the foregoing, it is understood that the Issuing Lender may accept
documents that appear on their face to be in substantial compliance with the terms of a Letter of
Credit, without responsibility for further investigation, regardless of any notice or information
to the contrary, and may make payment upon presentation of documents that appear on their face to
be in substantial compliance with the terms of such Letter of Credit; provided that the Issuing
Lender shall have the right, in its sole discretion, to decline to accept such documents and to
make such payment if such documents are not in strict compliance with the terms of such Letter of
Credit.




          (g) Disbursement Procedures. The Issuing Lender shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a Letter of Credit. The
Issuing Lender shall promptly notify the General
Administrative Agent and such Borrower for whose account such Letter of Credit was issued by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Lender has
made or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve such Borrower of its obligation to reimburse the Issuing
Lender and the U.S. Lenders with respect to any such LC Disbursement.




          (h) Interim Interest. If the Issuing Lender shall make any LC Disbursement, unless the
Borrowers shall reimburse (including with the proceeds of Loans as provided in Section 4.01(e))
such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC Disbursement is made to but
excluding the date that the Borrowers reimburse such LC Disbursement at the rate per annum
specified in Section 6.08(a); provided that, if the Borrowers fail to reimburse (including with the
proceeds of Loans as provided in Section 4.01(e)) such LC, Disbursement when due pursuant to
paragraph (e) of this Section 4.01, then Section 6.08(d) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Lender, except that interest accrued on and
after the date of payment by any U.S. Lender pursuant to paragraph (e) of this Section 4.01 to
reimburse the Issuing Lender shall be for the account of such U.S. Lender to the extent of such
payment.




          (i) Resignation or Removal of the Issuing Lender. The Issuing Lender may resign at any time by
giving at least 30 days’ prior written notice to the
General Administrative Agent and the Company,
and may be removed at any time by the Company by notice to the




33









 








Issuing Lender and the General Administrative Agent. Upon the acceptance of any appointment as the
Issuing Lender hereunder by a Lender that shall agree to serve as successor Issuing Lender, such
successor shall succeed to and become vested with all the interests, rights and obligations of the
retiring Issuing Lender and the retiring Issuing Lender shall be discharged from its obligations to
issue additional Letters of Credit hereunder. At the time such removal or resignation shall become
effective, the Company shall pay all accrued and unpaid fees pursuant to Section 6.07(c)(ii). The
acceptance of any appointment as the Issuing Lender hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form satisfactory to the Company and
the General Administrative Agent, and, from and after the effective date of such agreement, (i)
such successor Lender shall have all the rights and obligations of the previous Issuing Lender
under this Agreement and the other Loan Documents and (ii) references herein and in the other Loan
Documents to the term “Issuing Lender” shall be deemed to refer to such successor or to any
previous Issuing Lender, or to such successor and all previous Issuing Lenders, as the context
shall require. After the resignation or removal of the Issuing Lender hereunder, the retiring
Issuing Lender shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Lender under this Agreement and the other Loan Documents with respect to
Letters of Credit issued by
it prior to such resignation or removal, but shall not be required to issue additional Letters of
Credit.




ARTICLE V




 Swingline Loans




          SECTION
5.01. Swingline Loans. (a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans under the U.S. Commitments to the U.S. Borrowers or
any Borrowing Subsidiary from time to time during the Revolving Availability Period in an aggregate
principal amount at any time outstanding that will not result in (i) the aggregate principal amount
of outstanding Swingline Loans exceeding $50,000,000, (ii) the sum of the total U.S. Revolving
Credit Exposures exceeding the total U.S. Commitments or (iii) the sum of the total Revolving
Credit Exposures plus the total Competitive Loan Exposures exceeding the total Commitments;
provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions
set forth herein, the U.S. Borrowers or any Borrowing Subsidiary may borrow, prepay and reborrow
Swingline Loans. Swingline Loans shall be in an aggregate amount that is not less than $100,000.
Swingline Loans shall be ABR Loans.



          (b) To request a Swingline Loan, a U.S. Borrower or the Company (on behalf of any Borrowing
Subsidiary) shall notify the General Administrative Agent of such request by telephone (confirmed
by telecopy), not later than 3:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a
Business Day) and amount of the requested Swingline Loan. The General Administrative Agent will
promptly advise the Swingline Lender of any such notice received from such U.S. Borrower or the
Company (on behalf of any Borrowing Subsidiary). The Swingline Lender shall make each Swingline
Loan available to such Borrower by means of a




34









 








credit to the general deposit account of such Borrower with the Swingline Lender (or, in the case
of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section
4.01, by remittance to the Issuing Lender) by 4:00 p.m., New York City time, on the requested date
of such Swingline Loan.




          (c) The Swingline Lender may by written notice given to the General Administrative Agent not
later than 10:00 a.m., New York City time, on any Business Day require the U.S. Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which U.S. Lenders will
participate. Promptly upon receipt of such notice, the General Administrative Agent will give
notice thereof to each U.S. Lender, specifying in such notice such U.S. Lender’s U.S. Commitment
Percentage of such Swingline Loan or Loans. Each U.S. Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the General Administrative Agent, for
the account of the Swingline Lender, such U.S. Lender’s U.S. Commitment Percentage of such
Swingline Loan or Loans. Each U.S. Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each U.S. Lender shall comply
with its obligation under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 6.01 with respect to U.S. Revolving Loans made by such U.S.
Lender (and Section 6.01 shall apply, mutatis mutandis, to the payment obligations of the U.S.
Lenders), and the General Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the U.S. Lenders. The General Administrative Agent shall notify the
Company of any participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the General Administrative
Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from a Borrower
(or other party on behalf of such Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to
the General Administrative Agent; any such amounts received by the General Administrative Agent
shall be promptly remitted by the General Administrative Agent to the U.S. Lenders that shall have
made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may
appear. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrowers of any default in the payment thereof.



ARTICLE VI




General Provisions Applicable to Loans




          SECTION
6.01. Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available funds in the
applicable Currency to the account of the Applicable Administrative Agent or an Affiliate thereof,
most recently designated by it for such purpose by notice to the Lenders, by 2:00 p.m., Local Time
or, in the case of any Japanese Revolving Loan by 12:00 noon, Local Time. The Applicable
Administrative Agent will make Loans available to the applicable




35









 








Borrower by promptly crediting the amounts so received, in like funds, to an account of such
Borrower maintained with the Applicable Administrative Agent in (i) New York City with respect to
Loans made in Dollars, (ii) London with respect to Loans made in a Committed Currency and (iii)
Tokyo with respect to Loans made in Japanese Yen, as the case may be. If a Borrowing shall not
occur on such date because any condition precedent herein specified shall not have been met, the
Applicable Administrative Agent shall return the amounts so received to the respective Lenders.




          (b) Unless the Applicable Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing that such Lender will not make available to the Applicable
Administrative Agent such Lender’s share of such Borrowing, the Applicable Administrative Agent may
assume that such Lender has made such share available on such date in accordance with paragraph (a)
of this Section 6.01 and may, in reliance upon such assumption, make available to such Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Applicable Administrative Agent, then the Applicable Lender and the
applicable Borrower severally agree to pay to the Applicable Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and including the date
such amount is made available to such Borrower to but excluding the date of payment to the
Applicable Administrative Agent, at (i) in the case of such Lender, (A) in the case of Borrowings
denominated in Dollars, the greater of the Federal Funds Effective Rate and a rate determined by
the Applicable Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of Borrowings denominated in any Alternate Currency, the interest
rate reasonably determined by the Applicable Administrative Agent to reflect its cost of funds for
the amount advanced by such Administrative Agent on behalf of such Lender, or (ii) in the case of
such Borrower, the interest rate on the applicable Borrowing; provided that no repayment by such
Borrower pursuant to this sentence shall be deemed to be a prepayment for purposes of Section 6.11.
If such Lender pays such amount to the Applicable Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.



          SECTION 6.02. Interest Elections. (a) Each Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the applicable Borrower
or the Company (on its own behalf or on behalf of any other Borrower) may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency
Borrowing, may elect Interest Periods therefor, all as provided in this Section. The applicable
Borrower or the Company (on its own behalf or on behalf of any other Borrower) may elect different
options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate Borrowing. This Section
shall not apply to Competitive Borrowings, which may not be converted or continued.



          (b) To make an election pursuant to this Section, the applicable Borrower or the Company (on
its own behalf or on behalf of any other Borrower) shall notify the Applicable Administrative Agent
of such election by telephone by the time that a Borrowing Request would be required under Section
2.03 if the applicable Borrower or the Company (on its own behalf or






36









 








on behalf of any other Borrower) were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election; provided that an Interest Election
Request delivered not later than 12:00 noon, Local Time, on the Restatement Date in respect of the
conversion of an ABR Borrowing to a Eurocurrency Borrowing shall be effective on the second
Business Day after the Restatement Date. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Applicable
Administrative Agent of a written Interest Election Request in a form approved by the Applicable
Administrative Agent and signed by the Company or the Applicable Borrower.




          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.03:




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




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




     (iii) in the case of Borrowings denominated in Dollars, whether the resulting
Borrowing is to be an ABR Borrowing or Eurocurrency Borrowing; and




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



If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an
Interest Period, then the applicable Borrower or the Company (on its own behalf or on behalf of any
other Borrower) shall be deemed to have selected an Interest Period of one month’s duration.




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



          (e) If the Company or the applicable Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be (i) converted to an ABR Borrowing if it is denominated in Dollars or
(ii) continued as such with an Interest Period of one month if it is denominated in an Alternate
Currency.



          SECTION 6.03. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.



          (b) The Company may at any time terminate, or from time to time reduce, the Commitments of a
Class; provided that (i) each reduction of the Commitments of a Class shall be




37









 








in an amount that is an integral multiple of $1,000,000 and not less than $3,000,000 and (ii) the
Company shall not terminate or reduce the Commitments of such Class if, after giving effect to any
concurrent prepayment of the Revolving Loans of such Class, (i) the outstanding Revolving Credit
Exposure of such Class would exceed the Commitment of such Class or (ii) the sum of the Revolving
Credit Exposures plus the Competitive Loan Exposures would exceed the total Commitments.




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



          SECTION 6.04.  Repayment of Loans; Evidence of Debt. (a) Each of the U.S. Borrowers and each
Borrowing Subsidiary hereby unconditionally promises to pay to the General Administrative Agent for
the account of each U.S. Lender (i) on the Maturity Date, the then unpaid principal amount of the
U.S. Revolving Loans of such Lender and (ii) the then unpaid principal amount of each Competitive
Loan made by such U.S. Lender to such Borrower on the last day of the Interest Period applicable to
such Loan.



          (b) Each of the Borrowers hereby unconditionally promises to pay to the Japanese
Administrative Agent for the account of each Japanese Lender (i) on the Maturity Date, the then
unpaid principal amount of its Japanese Revolving Loans and (ii)
the then unpaid principal amount of each Competitive Loan made by such Japanese Lender to such
Borrower on the last day of the Interest Period applicable to such Loan.



          (c) Each of the Borrowers hereby unconditionally promises to pay to the European
Administrative Agent for the account of each Multicurrency Lender (i) on the Maturity Date, the
then unpaid principal amount of its Multicurrency Revolving Loans and (ii) the then unpaid
principal amount of each Competitive Loan made by such Multicurrency Lender to such Borrower on the
last day of the Interest Period applicable to such Loan.



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



          (e) Each Administrative Agent shall maintain a Register pursuant to subsection 13.04(d) and an
account for each applicable Lender in which it shall record (i) the




38









 








amount of each Loan made hereunder and any promissory note evidencing such Loan, the Class and Type
thereof (and, in the case of an Alternate Currency Loan, the Currency) and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from each Borrower to each Lender hereunder and (iii) the amount of any sum received by
such Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.




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



          (g) Any Lender may request that Loans of any Class made by it be evidenced by a promissory
note. In such event, the applicable Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the General Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 13.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such promissory note is
a registered note, to such payee and its assigns).



          SECTION 6.05. Increase in Commitments. (a) The Company may, by
written notice to the General Administrative Agent from time to time (which notice the General
Administrative Agent shall promptly forward to the Lenders), request that the Commitment of any
Class be increased by an amount not to exceed the Incremental Facility Amount at such time. Such
notice shall set forth the amount of the requested increase (which shall be in minimum increments
of $1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Facility
Amount), the Class or Classes of the requested increase and the date on which such increase is
requested to become effective (which shall be not less than 10 Business Days nor more than 60 days
after the date of such notice and which, in any event, must be on or prior to the Maturity Date),
and shall offer each Lender of the affected Class the opportunity to increase its Commitment by its
Applicable Percentage of such Class of the proposed increased amount. Each Lender of the affected
Class shall, by notice to the Company and the General Administrative Agent given not more than 10
days after the date of the General Administrative Agent’s notice, either agree to increase its
Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing
Lender”) or decline to increase its Commitment (and any Lender that does not deliver such a notice
within such period of 10 days shall be deemed to have declined to increase its Commitment) (each
Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the
event that, on the 10th day after the General Administrative Agent’s notice, the Lenders shall have
agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less
than the increase requested by the Company, the Company may arrange for one or more banks or other
entities (any such bank or other entity being called an “Augmenting Lender”), which may include any
Lender, to extend Commitments or increase their existing Commitments of the affected Class in an
aggregate amount equal to the unsubscribed amount; provided that each




39









 








Augmenting Lender, if not already a Lender hereunder, shall be subject to the approval of the
Administrative Agents (which approval shall not be unreasonably withheld), and the Borrowers and
each Augmenting Lender shall execute all such documentation as the General Administrative Agent
shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder. Any
increase in the Commitments of any Class may be made in an amount which is less than the increase
requested by the Company if the Company is unable to arrange for, or chooses not to arrange for,
Augmenting Lenders.




          (b) Each of the parties hereto hereby agrees that the Administrative Agents may take any and
all actions as may be reasonably necessary to ensure that, after giving effect to any increase in
the Commitments of any Class pursuant to Section 6.05(a), the outstanding Revolving Loans (if any)
of such Class are held by the Lenders in accordance with their new Applicable Percentages of such
Class. This may be accomplished at the discretion of the General Administrative Agent (i) by
requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving
Borrowing of such Class, (ii) by causing Non-Increasing Lenders to assign (at par, with
accrued interest and fees) portions of their outstanding Revolving Loans of the affected Class to
Increasing Lenders and Augmenting Lenders, or (iii) by any combination of the foregoing. Any
prepayment or assignment described in this paragraph (b) shall be subject to Section 6.11, but
otherwise without premium or penalty.



          (c) Notwithstanding the foregoing, no increase in the total Commitment shall become effective
under this Section 6.05 unless, (i) on the date of such increase, the conditions set forth in
paragraphs (c) and (d) of Section 8.02 shall be satisfied and the General Administrative Agent
shall have received a certificate to that effect dated such date and executed by the President, a
Vice President or a Financial Officer of the Company, and (ii) the General Administrative Agent
shall have received (with sufficient copies for each of the Lenders) legal opinions, board
resolutions and certificates consistent with those delivered on the Restatement Date under
paragraphs (b) and (e) of Section 8.01.



          SECTION 6.06. Prepayment of Loans. (a) A Borrower shall have the right at any time and from
time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance
with paragraph (b) of this Section; provided that no Borrower shall have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.



          (b) A Borrower shall notify the General Administrative Agent and the Applicable Administrative
Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Borrowing, not later than 12:00 noon, Local Time, three Business Days
before the date of prepayment, and (ii) in the case of prepayment of an ABR Borrowing, not later
than 12:00 noon, New York City time, one Business Day before the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; provided that, if a notice of prepayment is
given in connection with a conditional notice of termination of any Commitments as contemplated by
Section 6.03, then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 6.03. Promptly following receipt of any such notice relating to
a Borrowing, the Applicable Administrative Agent shall advise the applicable Lenders of the
contents thereof.




40









 








Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case
of an advance of a Borrowing of the same Commitment and Type as provided in Section 2.02, except as
necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 6.08.




          (c) If on the last day of any fiscal quarter of the Company for any reason the sum of the
total Revolving Credit Exposures plus the total Competitive Loan Exposures exceeds the total
Commitments then in effect by more than 5%, the Borrowers shall, as soon as practicable but in no
event later than three Business Days after learning thereof, or, as soon as practicable but in no
event later than three Business Days after the request of the General Administrative Agent, prepay
Revolving Loans and cancel or reduce Letters of Credit, in an aggregate principal amount equal to
the amount of the excess over the total Commitments.



          (d) If on the last day of any fiscal quarter of the Company for any reason the sum of the
total Japanese Revolving Credit Exposures exceeds the total Japanese Commitments then in effect by
more than 5%, the Borrowers shall, as soon as practicable but in no event later than three Business
Days after learning thereof, or, as soon as practicable but in no event later than three Business
Days after the request of the General Administrative Agent, immediately prepay Japanese Revolving
Loans in an aggregate principal amount equal to the amount of the excess over the Japanese
Commitments.



          (e) If on the last day of any fiscal quarter of the Company for any reason the sum of the
total Multicurrency Revolving Credit Exposures exceeds the total Multicurrency Commitments then in
effect by more than 5%, the Borrowers shall, as soon as practicable but in no event later than
three Business Days after learning thereof, or as soon as practicable but in no event later than
three Business Days after the request of the General Administrative Agent, prepay Multicurrency
Revolving Loans in an aggregate principal amount equal to the amount of the excess over the
Multicurrency Commitments.



          (f) The Company and the other Borrowers will use reasonable efforts to implement and maintain
internal controls to monitor the Borrowings and repayments, with the object of preventing any
request for a Borrowing that would cause conditions specified in the first sentence of each of
Sections 2.01(a), (b) and (c) not to be satisfied.



          (g) The Administrative Agents shall not be obligated to calculate the Dollar Equivalent of any
Alternate Currency but may do so from time to time in their sole discretion.



          SECTION 6.07.  Fees. (a) The Company agrees to pay to the General
Administrative Agent for the account of each Lender a facility fee, which shall accrue at the
facility fee rate set forth in the Pricing Grid from time to time on the daily amount of
the Commitments of such Lender (whether used or unused) during the period from and including the
Restatement Date to but excluding the date on which such Commitments terminate; provided that, if
such Lender continues to have any Revolving Credit Exposure after its Commitments terminate, then
such facility fee shall continue to accrue on the daily amount of such Lender’s Revolving Credit
Exposure from and including the date on which its Commitments terminate to




41









 








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




     (b) The Company agrees to pay to the Administrative Agents, for their own account, the
administrative, auction and other fees separately agreed upon between the Company and the
Administrative Agents (collectively, the “Administrative Fees”).



     (c) The Company agrees to pay (i) to the General Administrative Agent for the account of each
U.S. Lender (including the Issuing Lender) a participation fee with respect to its participations
in Letters of Credit, which shall accrue at a rate per annum equal to the Applicable Margin
applicable to interest on Eurocurrency Revolving Loans on the average daily amount of such U.S.
Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Restatement Date to but excluding the date on which such
U.S. Lender ceases to have any LC Exposure and (ii) to the Issuing Lender a fronting fee, which
shall accrue at the rate of 0.125% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Restatement Date to but excluding the date on which there ceases to be any
LC Exposure, as well as the Issuing Lender’s standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation
fees and fronting fees shall be payable on the last day of March, June, September and December of
each year, commencing on the first such date to occur after the Restatement Date; provided that all
such fees shall be payable on the date on which the U.S. Commitments terminate and any such fees
accruing after the date on which the U.S. Commitments terminate shall be payable on demand. Any
other fees payable to the Issuing Lender pursuant to this paragraph shall be payable promptly after
demand. All participation fees and fronting fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).



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



     SECTION 6.08. Interest. (a) The Loans comprising each ABR Borrowing shall bear interest at the
Alternate Base Rate.



     (b) The Loans comprising each Eurocurrency Borrowing shall bear interest (i) in the case of a
Eurocurrency Revolving Loan, at the Adjusted Eurocurrency Rate for the Interest Period in effect
for such Borrowing plus the Applicable Margin or (ii) in the case of a Eurocurrency Competitive
Loan, at the Adjusted Eurocurrency Rate for the Interest Period in




42









 








effect for such Borrowing plus (or minus, as applicable) the Competitive Loan Margin applicable to
such Loan.




          (c) Each Fixed Rate Loan shall bear interest at the Fixed Rate applicable to such Loan.



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



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



          (f) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at time when the Alternate Base Rate is
based on clause (a) of the first sentence of the definition of Alternate Base Rate shall be
computed on the basis of a year of 365 days (or 366 days
in a leap year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate Base Rate or
Eurocurrency Rate shall be determined by the General Administrative Agent, and such determination
shall be conclusive absent manifest error.



          (g) Notwithstanding anything to the contrary contained herein, the Japanese Revolving Loans to
be made on the Restatement Date in Japanese Yen will bear interest at the Yen Overnight Rate
(computed on the basis of the actual number of days elapsed (including the first day and excluding
the last) in a 365 day year) until such Japanese Revolving Loans are converted into one or more
Eurocurrency Borrowings with Interest Periods commencing on the second Business Day after the
Restatement Date. Such Interest Periods shall be specified in an Interest Election Request
delivered not later than 12:00 p.m. noon, Local Time, on the Restatement Date. Interest accrued on
such Japanese Revolving Loans prior to the commencement of such Interest Period shall be payable on
the second Business Day after the Restatement Date. The Japanese Borrower shall notify the Japanese
Administrative Agent and the General Administrative Agent of its borrowing request (by telephone,
with such telephonic borrowing request confirmed promptly in writing substantially in the form of
Exhibit A-5) for such Japanese Revolving Loans not later than 12:00 noon, Local Time, on the
Restatement Date.




43









 








          SECTION 6.09. Alternate Rate of Interest. If prior to the commencement of any Interest Period
for a Eurocurrency Borrowing:



          (a) the General Administrative Agent shall have determined (which determination shall be made
in good faith and shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Eurocurrency Rate for the relevant Currency for such Interest
Period; or



          (b) the General Administrative Agent is advised by the Required Lenders (or, in the case of a
Eurocurrency Competitive Loan, the Lender that is required to make such Loan) that the Eurocurrency
Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;



then the General Administrative Agent shall give notice thereof to the Company (on its own behalf
or on behalf of the applicable Borrower) and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the General Administrative Agent notifies the Company (on its own
behalf or on behalf of the applicable Borrower) and the Lenders that the circumstances giving rise
to such notice no longer exist, (i) any Interest Election Request that requests the conversion of
any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurocurrency Borrowing, such Borrowing, if
denominated in Dollars, shall be made as an ABR Borrowing and, if denominated in any
Alternate Currency, shall be made as a Borrowing bearing interest at an interest rate reasonably
determined by the General Administrative Agent to compensate the applicable Lenders for such
Borrowing in such Currency for the applicable period and (iii) any request by the Company (on its
own behalf or on behalf of any other Borrower) or any other Borrower for a Eurocurrency Competitive
Borrowing shall be ineffective; provided that (x) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Company for Eurocurrency Competitive Borrowings
may be made to Lenders that are not affected thereby and (y) if the circumstances giving rise to
such notice affect only one Type of Borrowing, then the other Type of Borrowings shall be
permitted.



          SECTION 6.10. Increased Costs. (a) If any Change in Law shall:




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




     (ii) impose on any Lender, the London interbank market, the Tokyo interbank market or
any other interbank market relevant to the funding of Loans in Alternate Currencies any
other condition affecting this Agreement or Eurocurrency Loans or Fixed Rate Loans made by
such Lender;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or Fixed Rate Loan (or of maintaining its obligation to make any
such Loan) or issuing or participating in Letters of Credit by an amount deemed by such





44









 








Lender to be material or to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or otherwise) by an amount deemed by such Lender to be
material, then the applicable Borrower will pay to such Lender such additional amount or amounts as
will compensate such Lender for such additional costs actually incurred or reduction actually
suffered.




          (b) If any Lender determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s capital or on the capital of
such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such
Lender to a level below that which such Lender or such Lender’s holding company could have achieved
but for such Change in Law (taking into consideration such Lender’s policies and the policies of
such Lender’s holding company with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time the applicable Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender or such Lender’s holding company for
any such reduction suffered.



          (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such
Lender or its holding company as specified in paragraph (a) or (b) of this Section and setting
forth in reasonable detail the manner in which such amount or amounts shall have been determined,
shall be delivered to the applicable Borrower and shall be conclusive absent manifest error. The
applicable Borrower shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.



          (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the
Borrowers shall not be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 90 days prior to the date that such Lender notifies such
Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s intention to claim compensation therefor;  provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the 90-day period referred
to above shall be extended to include the period of retroactive effect thereof.



          (e) Notwithstanding the foregoing provisions of this Section, a Lender shall not be entitled
to compensation pursuant to this Section in respect of any Competitive Loan if the Change in Law
that would otherwise entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made. The obligations of the
Borrowers under this Section shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.



          SECTION 6.11. Break Funding Payments. In the event of (a) the payment or prepayment of any
principal of any Eurocurrency Loan or Fixed Rate Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any
Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked under Section 6.06(b)
and is revoked in accordance therewith), (d) the failure to borrow any




45









 








Competitive Loan after accepting the Competitive Bid to make such Loan or (e) the assignment of any
Eurocurrency Loan or Fixed Rate Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by any Borrower pursuant to Section 6.14, then, in any such event,
the applicable Borrower shall compensate each Lender for the out-of-pocket loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the present value of
the excess, if any, of (i) its cost of obtaining the funds for the Loan being paid, prepaid,
refinanced or
not borrowed (assumed to be the Eurocurrency Rate applicable thereto) for the period from the date
of such payment, prepayment, refinancing or failure to borrow or refinance to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow or refinance the Interest
Period for such Loan which would have commenced on the date of such failure) over (ii) the amount
of interest (as reasonably determined by such Lender) that would be realized by such Lender in
reemploying the funds so paid, prepaid or not borrowed or refinanced for such period or Interest
Period, as the case may be. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section and setting forth in reasonable detail
the manner in which such amount or amounts shall have been determined shall be delivered to the
applicable Borrower and shall be conclusive absent manifest error. Such Borrower shall pay such
Lender the amount shown as due on any such certificate within 10 days after receipt thereof. The
obligations of the Borrowers under this Section shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.




     
           
       SECTION 6.12. Taxes. (a) Any and all payments to the Lenders or the Administrative Agents
hereunder by a Borrower or on behalf of any Borrower shall be made free and clear of and without
deduction for any and all current or future Taxes or Other Taxes (as defined in Section (b) below),
excluding (i) Taxes imposed on any Administrative Agent or any Lender (or participant) as a result
of a present or former connection between such Administrative Agent or such Lender (or participant)
and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision
or taxing authority thereof or therein (other than as a result of entering into this Agreement,
performing any obligations hereunder, receiving any payments hereunder or enforcing any rights
hereunder) and (ii) any Taxes that are attributable solely to the failure of any Lender to comply
with Section 6.12 (g) or 6.12 (h) (all such nonexcluded Taxes or Other Taxes, collectively or
individually, “Non-Excluded Taxes”). If the relevant Borrower shall be required to deduct any
Non-Excluded Taxes from or in respect of any sum payable hereunder to any Lender or any
Administrative Agent, (i) the sum payable shall be increased by the amount (an “Additional Amount”)
necessary so that after making all required deductions (including deductions applicable to
Additional Amounts payable under this Section 6.12) such Lender or such Administrative Agent (as
the case may be) shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the relevant Borrower shall make such deductions and (iii) the relevant
Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.




     
           
       (b) In addition, the relevant Borrower (or the Guarantors, as applicable) shall pay to the
relevant Governmental Authority in accordance with applicable law any current or future stamp,
intangibles or documentary taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document that are






46









 








imposed by a Governmental Authority in a jurisdiction in which the relevant Borrower (or Guarantor,
as applicable) is incorporated, organized, managed and controlled or considered to have its seat or
otherwise has a connection (other than as a result of entering into this Agreement, performing any
obligations hereunder, making any payments hereunder or enforcing any rights hereunder (“Other
Taxes”).




          (c) The relevant Borrower (or Guarantor, as applicable) shall indemnify each Lender (or
participant) and each Administrative Agent for the full amount of Non-Excluded Taxes paid by such
Lender (or participant) or such Administrative Agent, as the case may be, and any liability
(including penalties, interest and expenses (including reasonable attorney’s fees and expenses))
arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes were correctly or
legally asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability prepared by a Lender, or an Administrative Agent on its behalf and setting
forth in reasonable detail the manner in which such amount shall have been determined, absent
manifest error, shall be final, conclusive and binding for all purposes. Such indemnification shall
be made within 30 days after the date the Lender or the Administrative Agent, as the case may be,
makes written demand therefor, which written demand shall be made within 60 days of the date such
Lender or Administrative Agent receives written demand for payment of such Non-Excluded Taxes from
the relevant Governmental Authority.



          (d) If a Lender (or participant) or an Administrative Agent receives a refund, which in its
reasonable judgment is in respect of any Non-Excluded Taxes as to which it has been indemnified by
the relevant Borrower or with respect to which the relevant Borrower has paid Additional Amounts
pursuant to this Section 6.12, it shall within 30 days from the date of such receipt pay over such
refund to the relevant Borrower (but only to the extent of indemnity payments made, or Additional
Amounts paid, by the relevant Borrower under this Section 6.12 with respect to the Non-Excluded
Taxes giving rise to such refund), net of all out-of-pocket expenses of such Lender (or
participant) or such Administrative Agent and without interest (other than interest paid by the
relevant Governmental Authority with respect to such refund); provided, however, that the relevant
Borrower, upon the request of such Lender (or participant) or such Administrative Agent, agrees to
repay the amount paid over to the relevant Borrower (plus penalties, interest or other charges) to
such Lender (or participant) or such Administrative Agent in the event such Lender (or participant)
or such Administrative Agent is required to repay such refund to such Governmental Authority.



          (e) As soon as practicable after the date of any payment of Non-Excluded Taxes by the relevant
Borrower to the relevant Governmental Authority, the relevant Borrower will deliver to the
applicable Administrative Agent at its address referred to in Section 13.01, the original or a
certified copy of a receipt issued by such Governmental Authority evidencing payment thereof.



          (f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 6.12 shall survive the
payment in full of the principal of and interest on all Loans made hereunder.




47









 








          (g) Each Lender (or participant) that is not a United States Person as defined in Section
7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Company and the applicable
Administrative Agent two copies of either (i) United States
Internal Revenue Service Form
 W-8BEN or W8ECI or any subsequent or substitute versions thereof or successors thereto or (ii) in the case of
a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871 (h) or 881
(c) of the Code with respect to payments of “portfolio interest,” a Form W-8BEN, or any subsequent
or substitute versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form
W-8BEN pursuant to this clause (ii), a certificate representing that such Non-U.S. Lender is not a
bank for purposes of Section 881(c)(3)(A) of the Code, is not a 10 percent shareholder (within the
meaning of Section 881(c)(3)(B) of the Code) of the Company and is not a controlled foreign
corporation related to the Company (within the meaning of Section 881(c)(3)(C) of the Code)), in
each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or reduced rate of, U.S. Federal withholding tax on payments by the Company under this
Agreement. Each Lender (or participant) that is a U.S. Person as defined in Section 7701(a)(30) of
the Code shall deliver to the Company and the applicable Administrative Agent two copies of
Internal Revenue Service Form W-9, or any subsequent or substitute versions thereof or successors
thereto, certifying that such Lender (or participant) is entitled to a complete exemption from U.S.
Federal backup withholding tax on payments made pursuant to this Agreement. Such forms shall be
delivered by each Lender on or before the date it becomes a party to this Agreement (or, in the
case of a participant, on or before the date such participant becomes a participant hereunder) and
on or before the date, if any, such Lender changes its applicable lending office by designating a
different lending office (a “New Lending Office”), unless each of the applicable lending office
prior to such designation and the New Lending Office are located within the United States. In
addition, each Lender shall deliver such forms promptly upon the obsolescence or invalidity of any
form previously delivered by such Lender. Notwithstanding any other provision of this Section
6.12(g), a Lender shall not be required to deliver any form pursuant to this Section 6.12(g) that
such Lender is not legally able to deliver.



          (h) A Lender (or participant) that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which a Borrower (other than the Company) is
located, or any treaty to which such jurisdiction is a party, with respect to payments under this
Agreement, shall deliver to such Borrower (with a copy to the applicable Administrative Agent), at
the time or times prescribed by applicable law or reasonably requested by such Borrower, such
properly completed and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such Lender (or
participant)
is legally entitled to complete, execute and deliver such documentation and in such Lender’s
reasonable judgment such completion, execution or submission would not materially prejudice the
legal position of such Lender (or participant).



          (i) The relevant Borrower shall not be required to indemnify any Lender, or to pay any
Additional Amounts to any Lender, in respect of any withholding tax pursuant to paragraph (a) or
(c) above to the extent that (i) the obligation to withhold amounts with respect to such
withholding tax was in effect and would apply to amounts payable to such Lender on the date such
Lender became a party to this Agreement (or, in the case of a participant, on the date such
participant became a participant hereunder) or, with respect to payments to a New Lending Office,
the date such Lender designated such New Lending Office with respect to a Loan or, with




48









 








respect to payments by a Borrower pursuant to a Competitive Loan, as of the date the Company
accepts a Competitive Bid pursuant to Section 3.01(d);
provided, however, that this clause (i)
shall not apply to any Lender (or participant) if the assignment, participation, transfer or
designation of a New Lending Office was made at the request of the
relevant Borrower; and provided further, however, that this clause (i) shall not apply (x) to the extent the indemnity payment or
Additional Amounts any Lender (or participant) would be entitled to receive (without regard to this
clause (i)) do not exceed the indemnity payment or Additional Amounts that the Lender (or
participant) making the assignment, participation, transfer or designation of such New Lending
Office would have been entitled to receive in the absence of such assignment, participation,
transfer or designation or (y) to the extent the obligation to withhold such amounts is an
obligation of, or an obligation in respect of payments made by, a Borrowing Subsidiary that becomes
a Borrowing Subsidiary after the Restatement Date, or (ii) the obligation to pay such Additional
Amounts would not have arisen but for a failure by such Lender (or participant) to comply with the
provisions of paragraph (g) or (h) of this Section 6.12.




          (j) Any Lender (or participant) claiming any indemnity payment or Additional Amounts payable
pursuant to this Section 6.12 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document reasonably requested in writing by the relevant
Borrower or to change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such indemnity payment or
Additional Amounts that may thereafter accrue and would not, in the sole determination of such
Lender (or participant), be otherwise disadvantageous to such Lender (or participant).



          (k) Nothing contained in this Section 6.12 shall require any Lender (or participant) or any
Administrative Agent to make available any of its tax returns (or any other information that it
deems to be confidential or proprietary).



          SECTION 6.13. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower
shall make each payment required to be made by it hereunder (whether of principal, interest, fees, or of amounts payable under Section 6.10, 6.11 or 6.12,
or otherwise) prior to 3:00 p.m., Local Time or, in the case of any Japanese Revolving Loan, by
12:00 noon Local Time at the place of payment, on the date when due, in immediately available
funds, without setoff or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Applicable Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be
made to the Applicable Administrative Agent at its offices referred to in Section 13.01, or such
other location as such Administrative Agent shall designate from time to time, except that payments
pursuant to Sections 6.10, 6.11 or 6.12 and 13.05 shall be made directly to the Persons entitled
thereto. The Applicable Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall
be extended to the next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments hereunder shall be
made in the Currency in which the applicable payment obligation is due.




49









 








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



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



          (d) Unless the Applicable Administrative Agent shall have received notice from a Borrower
prior to the date on which any payment is due to the Applicable Administrative Agent for the
account of the Lenders hereunder that such Borrower will not make such payment, the Applicable
Administrative Agent may assume that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In
such event, if such Borrower has not in fact made such payment, then each of the Applicable Lenders
severally agrees to repay to the Applicable Administrative Agent forthwith on demand the amount so
distributed to such Lenders with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Applicable Administrative
Agent, (i) if the relevant amount is denominated in Dollars, at the greater of the Federal Funds
Effective Rate and a rate determined by the Applicable Administrative Agent in accordance with
banking industry rules on interbank compensation and (ii) if the relevant amount is denominated in
any other Currency, at the interest rate reasonably determined by the Applicable Administrative
Agent to reflect the cost of funds for the amount paid by such Administrative Agent on behalf of
such Borrower.




50









 









(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
6.01(b) or 6.12(d), then the Applicable Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by such
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.



     SECTION 6.14. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests
compensation under Section 6.10, or if any Borrower is required to pay any Additional Amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section 6.12, then
such Lender shall use reasonable efforts to file any certificate or document requested by the
applicable Borrower (consistent with legal and regulatory restrictions), to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender,
such filing, designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 6.10 or 6.12, as the case may be, in the future and
(ii) would not otherwise be disadvantageous to such Lender.



     (b) If any Lender requests compensation under Section 6.10, or if any
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 6.12, or if any Lender defaults in its obligation to
fund Loans hereunder, then such Borrower may, upon notice to such Lender and the applicable
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 13.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans held by it and any
and all rights and interests related thereto) to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) such
Borrower shall have received the prior written consent of the Administrative Agents which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans (other than Competitive Loans), accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or such Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation
under Section 6.10 or payments required to be made pursuant to Section 6.12, such assignment will
result in a reduction in such compensation or payments.



     SECTION 6.15.Restatement Date Borrowings. In order to ensure that the Revolving Loans of
each Class to be outstanding on and after the Restatement Date are held by the Lenders in
accordance with their Applicable Percentages of such Class after giving effect to the increase in
the Commitments to be effected on the Restatement Date, the Borrowers shall repay and refinance all
outstanding Revolving Loans, together with accrued interest thereon to but excluding the
Restatement Date, under the Existing Credit Agreement on the Restatement Date with the proceeds of
new Revolving Loans under this Agreement. Such repayment shall be subject to Section 6.11 but
otherwise without premium or penalty.




51









 








ARTICLE VII




Representations and Warranties




          The Company represents and warrants to each of the Lenders and each of the Administrative
Agents that:



          SECTION
7.01. Organization; Powers. Each Credit Party (a) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted and (c) is qualified to do
business in every jurisdiction where such qualification is required, except where the failure so to
qualify would not result in a Material Adverse Effect. Each Credit Party has the corporate power
and authority to execute and deliver this Agreement (or, in the case of the Borrowing Subsidiaries,
the Borrowing Subsidiary Agreements), to perform its obligations under this Agreement and to borrow
hereunder.



          SECTION
7.02. Authorization. The Transactions (a) are within each Credit Party’s corporate
powers and have been duly authorized by all requisite corporate action and (b) do not (i) violate
(A) any provision of any law, statute, rule or regulation (including, without limitation, the
Margin Regulations), (B) any provision of the certificate of incorporation or other constitutive
documents or by-laws of the Company or any Subsidiary, (C) any order of any Governmental Authority
or (D) any provision of any indenture, agreement or other instrument to which the Company or any
Subsidiary is a party or by which it or any of its property is or may be bound, (ii) conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or both) a default under
any such indenture, agreement or other instrument or (iii) result in the creation or imposition of
any lien upon any property or assets of the Company or any Subsidiary other than, in the case of
clauses (i)(A), (i)(C), (i)(D), (ii) and (iii), any such violations, conflicts, breaches, defaults
or liens that, individually or in the aggregate, would not have a Material Adverse Effect.



          SECTION
7.03. Enforceability. This Agreement has been duly executed and delivered by each of
the Credit Parties and constitutes, and each other Loan Document constitutes or, when executed and
delivered, will constitute a legal, valid and binding obligation of each Credit Party thereto,
enforceable in accordance with its terms (subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally
and to general principles of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity)).



          SECTION
7.04. Governmental Approvals. No action, consent or approval of, registration or
filing with or other action by any Governmental Authority is required in connection with the
Transactions except such as have, or on or prior to the Restatement Date will have, been obtained
or made and are in full force and effect or except for the failure of which to obtain could not
reasonably be expected to have a Material Adverse Effect.



          SECTION
7.05. Financial Statements; No Material Adverse Effect. (a) The Company has
heretofore furnished to the Administrative Agents and the Lenders its consolidated




52









 








balance sheet and statements of income, stockholders’ equity and cash flows as of and for
the fiscal year ended December 31, 2004, reported on by PricewaterhouseCoopers LLP, independent
public accountants. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Company and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements referred to in clause
(ii) above.




     (b) Since December 31, 2004, there has been no material adverse effect on the business,
operations, properties or financial condition of the Company and its Subsidiaries, taken as a
whole.



     SECTION
7.06. Litigation, Compliance with Laws. (a) There are no actions, proceedings or
investigations filed or (to the knowledge of the Company) threatened against the Company or any
Subsidiary in any court or before any Governmental Authority or arbitration board or tribunal which
question the validity or legality of this Agreement, the Transactions or any action taken or to be
taken pursuant to this Agreement and no order or judgment has been issued or entered restraining or
enjoining the Company from the execution, delivery or performance of this Agreement nor is there
any other action, proceeding or investigation filed or (to the knowledge of the Company) threatened
against the Company or any Subsidiary in any court or before any Governmental Authority or
arbitration board or tribunal as to which there is a reasonable likelihood of an adverse
determination and that, if adversely determined, would be reasonably likely to result in a Material
Adverse Effect.



     (b) Neither the Company nor any Subsidiary is in violation of any law, rule or regulation, or
in default with respect to any judgment, writ, injunction or decree of any Governmental Authority,
where such violation or default would be reasonably likely to result in a Material Adverse Effect.



     SECTION
7.07. Federal Reserve Regulations. No part of the proceeds of any Loan will be used,
whether directly or indirectly, and whether immediately, incidentally or ultimately, for any
purpose which entails a violation of, or which is inconsistent with, the provisions of the Margin
Regulations.



     SECTION 7.08. Taxes. The Company and the Subsidiaries have filed or caused to be filed all
Federal and material state, local and foreign Tax returns which are required to be filed by them,
and have paid or caused to be paid all material Taxes required to have been paid by them, other
than any Taxes or assessments the validity of which is being contested in good faith by appropriate
proceedings, and with respect to which appropriate accounting reserves have, to the extent required
by GAAP, been set aside.



     SECTION
7.09. Employee Benefit Plans. The present aggregate value of
accumulated benefit obligations of each Plan and each foreign employee pension benefit plan
required to be funded (based on those assumptions used for disclosure of such obligations in
corporate financial statements in accordance with GAAP) did not, as of the most recent statements
available, exceed the aggregate value of the assets for each plan by an amount in the aggregate for
all such plans that would reasonably be expected to have a Material Adverse




53









 








Effect. Except as would not individually or in the aggregate be reasonably expected to have a
Material Adverse Effect, (a) no ERISA Termination Event has occurred or (b) each Plan has been
established and administered in accordance with its terms and in compliance with the applicable
provisions of ERISA, the Code and other applicable laws, rules and regulations.




          SECTION 7.10. Environmental and Safety Matters. Other than exceptions to any of the following
that would not in the aggregate have a Material Adverse Effect: (a) the Company and the
Subsidiaries comply and have complied with all applicable Environmental and Safety Laws; (b) there
are and have been no Hazardous Substances at any property owned, leased or operated by the Company
now or in the past, or at any other location, that could reasonably be expected to result in
liability of the Company or any Subsidiary under any Environmental and Safety Law or result in
costs to any of them arising out of any Environmental and Safety Law; (c) there are no past,
present, or, to the knowledge of the Company and the Subsidiaries, anticipated future events,
conditions, circumstances, practices, plans, or legal requirements that could reasonably be
expected to prevent the Company or any of the Subsidiaries from, or increase the costs to the
Company or any of the Subsidiaries of, complying with applicable Environmental and Safety Laws or
obtaining or renewing all material permits, approvals, authorizations, licenses or permissions
required of any of them pursuant to any such law; and (d) neither the Company nor any of the
Subsidiaries has retained or assumed, by contract or operation of law, any liability, fixed or
contingent, under any Environmental and Safety Law.



          SECTION 7.11. Properties. (a) Each of the Company and its Subsidiaries has good title to, or
valid leasehold interests in, all its real and personal property that are material to the business
of the Company and its Subsidiaries taken as a whole, except for defects in title that could not
reasonably be expected to result in a Material Adverse Effect.



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



          SECTION 7.12. Investment and Holding Company Status. Neither the Company nor any of its
Subsidiaries is (a) an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a “holding company” as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.




54










 






ARTICLE VIII




Conditions




          SECTION 8.01. Restatement Date. The effectiveness of the amendment and restatement of
the Existing Credit Agreement is subject to the satisfaction of the following conditions:



          (a) The General Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the General Administrative Agent (which may include telecopy transmission
of a signed signature page of this Agreement) that such party has signed a counterpart of this
Agreement.



          (b) The General Administrative Agent shall have received, with a counterpart or copy for each
Lender, such documents and certificates as the General Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of each Credit Party,
the authorization of the Transactions and other legal matters relating to the Credit Parties, the
Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the
General Administrative Agent and its counsel.



          (c) The representations and warranties of each Credit Party set forth in the Loan Documents
shall be true and correct on and as of the Restatement Date, except to the extent such
representations and warranties expressly relate to an earlier or later date and no Default shall
have occurred and be continuing, and the General Administrative Agent shall have received, with a
counterpart or copy for each Lender, a certificate signed by the President, a Vice President or a
Financial Officer of the Company confirming the foregoing.



          (d) The General Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by any Credit Party
hereunder or under any Loan Document.



          (e) The General Administrative Agent (or its counsel) shall have received a favorable written
opinion (addressed to the General Administrative Agent and the Lenders and dated the Restatement
Date) from Baker & Daniels, U.S. counsel for the Borrowers, substantially in the form of Exhibit C
and covering such other matters relating to the Credit Parties, the Loan Documents or the
Transactions as the General Administrative Agent or the Lenders shall reasonably request. The
Company hereby requests such counsel to deliver such opinion.



          (f) The General Administrative Agent shall have received updated schedules to the Existing
Credit Agreement, in form and substance reasonably satisfactory to the General Administrative Agent
and its counsel.



          (g) Substantially simultaneous with the initial Borrowings to be made
on the Restatement Date (in respect of which the General Administrative Agent and the
Applicable Administrative Agent shall have received one or more Borrowing Requests in accordance
with Section 2.03), (i) the commitments under the 364-Day Credit Agreement shall be terminated



55









 





(and all loans (if any) outstanding thereunder and other amounts due in respect thereof paid in
full), (ii) the Existing Term Loans shall be repaid and refinanced in full, together with accrued
interest thereon to but excluding the Restatement Date, and (iii) the Borrowers shall pay to the
Administrative Agents for the accounts of the lenders and issuing lenders entitled thereto all
accrued fees and expenses payable under the Existing Credit Agreement to but excluding the
Restatement Date.




          (h) The Lenders shall have received, to the extent requested, all documentation and other
information required by regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including the U.S.A. Patriot Act.



          SECTION 8.02. Conditions to All Other Extensions of Credit. The obligation of each
Lender to make a Loan on the occasion of any Borrowing (other than a Borrowing made solely to
refinance outstanding Borrowings that does not increase the aggregate principal amount of the Loans
of any Lender outstanding), and of the Issuing Lender to issue, amend, renew or extend any Letter
of Credit is subject to the satisfaction of the following conditions:



          (a) The General Administrative Agent and the Applicable Administrative Agent shall have received a Borrowing Request in accordance
with Section 2.03.



          (b) The Restatement Date shall have occurred.



          (c) The representations and warranties of each Credit Party set forth in the
Loan Documents (other than, in the case of a Borrowing the sole purpose of which is to refinance
maturing commercial paper, the representations and warranties set forth in Sections 7.05(b) and
7.06(a)) shall be true and correct on and as of the date of any such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except to the
extent such representations and warranties expressly relate to an earlier or later date.



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



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



          SECTION 8.03. Initial Borrowing by Each Borrowing Subsidiary. The obligation of each
Lender to make a Loan on the occasion of the first Borrowing by each Borrowing Subsidiary is
subject to the satisfaction of the condition that the General Administrative Agent (or its counsel)
shall have received a Borrowing Subsidiary Agreement properly executed by such Borrowing Subsidiary
and the Company.



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ARTICLE IX




Affirmative Covenants




          The Company covenants and agrees with each Lender and each Administrative Agent that so long
as this Agreement shall remain in effect or the principal of or interest on any Loan, any fees or
any other amounts payable hereunder shall be unpaid or any Letter of Credit remains outstanding,
unless the Required Lenders shall otherwise consent in writing, it will, and will cause each of the
Subsidiaries to, on and after the Restatement Date:



          SECTION 9.01. Existence. Do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate, partnership and/or limited liability company existence
and its rights and franchises that are material to the business of the Company and its Subsidiaries
as a whole, except as expressly permitted under Section 10.01 or 10.06 and except, in the case of
any Subsidiary, where the failure to do so would not result in a Material Adverse Effect.



          SECTION 9.02. Business and Properties. Comply in all respects with all applicable
laws, rules, regulations and orders of any Governmental Authority (including Environmental and
Safety Laws and ERISA), whether now in effect or hereafter enacted except instances that could not,
in the aggregate, reasonably be expected to result in a Material Adverse Effect; and at all times
maintain and preserve all property material to the conduct of the business of the Company and its
Subsidiaries as a whole and keep such property in good repair, working order and condition and from
time to time make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business carried on in connection
therewith may be properly conducted at all times, except where the failure to do so would not
result in a Material Adverse Effect.



          SECTION 9.03. Financial Statements, Reports, Etc. Furnish to the Administrative
Agents for distribution to each Lender (except in the case of the materials required by paragraphs
(d) below, which shall only be furnished to the General Administrative Agent, the Japanese
Administrative Agent and the Japanese Lenders):



          (a) within 105 days after the end of each fiscal year, its annual report on Form 10-K as filed
with the SEC, including its consolidated balance sheet and the related consolidated earnings
statement showing its consolidated financial condition as of the close of such fiscal year and the
consolidated results of its operations during such year, all audited by PricewaterhouseCoopers LLP
or other independent certified public accountants of recognized national standing selected by the
Company and accompanied by an opinion of such accountants to the effect that such consolidated
financial statements fairly present the Company’s financial condition and results of operations on
a consolidated basis in accordance with GAAP;



          (b) within 60 days after the end of each of the first three fiscal quarters of each fiscal
year, its quarterly report on Form 10-Q as filed with the SEC, including its
unaudited consolidated balance sheet and related consolidated earnings statement, showing its
consolidated financial condition as of the close of such fiscal quarter and the consolidated
results of its operations during such fiscal quarter and the then elapsed portion of the fiscal
year (and each



57









 





delivery of such statements shall be deemed a representation that such statements fairly present
the Company’s financial condition and results of operations on a consolidated basis in accordance
with GAAP, subject to normal year-end audit adjustments and the absence of footnotes);




          (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a
certificate of a Financial Officer (i) certifying that no Event of Default or Default has occurred
or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof
and any corrective action taken or proposed to be taken with respect thereto and (ii) demonstrating
in reasonable detail calculation of the covenants set forth in Section 10.04 as of the last day of
the period covered by such financial statements;



          (d) promptly after the same become publicly available, copies of all reports on Form 8-K filed
by it with the SEC, or any Governmental Authority succeeding to any of or all the functions of the
SEC, or copies of all reports distributed to its shareholders, as the case may be; and



          (e) promptly, from time to time, such other information as any Lender shall reasonably request
through the General Administrative Agent, including any additional information relating to any
one-time integration or transaction costs referred to in clause (f) of the definition of the term
“Consolidated EBITDA” (it being understood that the Company shall not be required to provide any
information or documents which are subject to confidentiality provisions the nature of which
prohibit such disclosure).



Information required to be delivered pursuant to this Section shall be deemed to have been
delivered on the date on which the Company provides notice (reasonably identifying where the
applicable disclosure may be obtained) to the General Administrative Agent that such information
has been posted on the Company’s website on the internet at www.zimmer.com, or on the SEC’s website
on the internet at www.sec.gov or at another website identified in such notice and accessible by
the Lenders without charge.




          SECTION 9.04. Insurance. Keep its insurable properties adequately insured at all
times by financially sound and reputable insurers (which may include captive insurers), and
maintain such other insurance or self insurance (including product liability insurance), to such
extent and against such risks, including fire and other risks insured against by extended coverage,
as is customary with companies similarly situated and in the same or similar businesses.



          SECTION 9.05. Obligations and Taxes. Pay and discharge promptly when due all material
taxes, assessments and governmental charges imposed upon it or upon its income or profits or in
respect of its property, in each case before the same shall become
delinquent or in default and before penalties accrue thereon, unless and to the extent that
the same are being contested in good faith by appropriate proceedings and adequate reserves with
respect thereto shall, to the extent required by GAAP, have been set aside.



          SECTION 9.06. Litigation and Other Notices. Give the General Administrative Agent
written notice of the following within ten Business Days after any executive officer of the Company
obtains knowledge thereof:



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          (a) the filing or commencement of any action, suit or proceeding which the
Company reasonably expects to result in a Material Adverse Effect;



          (b) any Event of Default or Default, specifying the nature and extent thereof
and the action (if any) which is proposed to be taken with respect thereto; and



          (c) any change in any of the Ratings.



provided, that in each case the Company shall not be required to provide separate notice of any
event disclosed in any report promptly filed with the SEC if the Company has provided notice to the
General Administrative Agent in accordance with the last paragraph of Section 9.03 as long as the
Company has provided notice reasonably identifying where the applicable disclosure may be obtained
to the General Administrative Agent that such information has been posted.




          SECTION 9.07. Books and Records. (a) Keep proper books of record and account in which
full, true and correct entries are made of all material dealings and transactions in relation to
its business and activities and (b) permit any representatives designated by the General
Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and (in the presence of officers of a Credit Party,
whether by phone or in person) its independent accountants (in each case subject to the Company’s
obligations under applicable confidentiality provisions), all at such reasonable times and as often
as reasonably requested, all at the expense of the applicable Lenders; provided that during the
continuation of any Default (x) any expense of the Lenders in connection with the foregoing shall
be for the account of the Company and (y) Lenders shall be permitted to discuss the affairs,
finances and condition of the Company and its Subsidiaries without officers of the Credit Parties
being present.



          SECTION 9.08. Subsidiary Guarantor. (a) Cause each subsidiary guarantor under the
Existing Credit Agreement to execute and deliver a counterpart to this Agreement thereby
reaffirming its obligations as a Subsidiary Guarantor under Section 13.16 on the Restatement Date
and (b) cause any subsequently acquired or organized Domestic Wholly Owned Subsidiary (other than a
special purpose subsidiary organized to facilitate a Permitted Receivables Securitization or an
Inactive Subsidiary) or any Domestic Wholly Owned Subsidiary that ceases to be an Inactive
Subsidiary to execute and deliver a counterpart to this Agreement thereby assuming the obligations
of a Subsidiary Guarantor under Section 13.16 within 15 Business Days of such Person
becoming such a Domestic Wholly Owned Subsidiary.



          SECTION 9.09. Use of Proceeds. All proceeds of the Loans shall be used for general
corporate purposes (including payment of the Existing Term Loans pursuant to Section 8.01(g)),
including acquisitions that are not prohibited by the terms of this Agreement and commercial paper
backup.



59









 





ARTICLE X




Negative Covenants




          The Company covenants and agrees with each Lender and each Administrative Agent that so long
as this Agreement shall remain in effect or the principal of or interest on any Loan, any fees or
any other amounts payable hereunder shall be unpaid or any Letter of Credit remains outstanding,
unless the Required Lenders shall otherwise consent in writing, it will not, and will not permit
any of the Subsidiaries to, on and after the Restatement Date:



          SECTION 10.01. Consolidations, Mergers, and Sales of Assets. (a) Consolidate or merge
with or into any other Person or liquidate, wind up or dissolve (or suffer any liquidation or
dissolution) or (b) sell, or otherwise transfer (in one transaction or a series of transactions),
or permit any Subsidiary to sell, or otherwise transfer (in one transaction or a series of
transactions), all or substantially all of the assets of the Company and the Subsidiaries, taken as
a whole, to any other Person; provided that (i) the Company may merge or consolidate with another
Person if the Company is the corporation surviving such merger or consolidation, (ii) a Subsidiary
may merge or consolidate with another Person if (A) the Company is the surviving corporation if the
Company is a party to such merger or consolidation or (B) the survivor of such merger or
consolidation (in the event that it is not the Subsidiary) shall assume all of the payment and
performance obligations of such Subsidiary on terms reasonably satisfactory to the General
Administrative Agent and (iii) immediately after giving effect to any such merger or consolidation,
no Default or Event of Default shall have occurred and be continuing; provided, however, that the
foregoing restrictions of this Section 10.01 shall not apply to transactions permitted under
Section 10.06 or 10.08.



          SECTION 10.02. Liens. Create, assume or suffer to exist any Lien upon any property,
except that the foregoing shall not prevent the Company or any Subsidiary from creating, assuming
or suffering to exist any of the following Liens:



          (a) Liens existing on the Restatement Date and set forth on Schedule 10.02 hereof;



          (b) any Lien existing on property owned or leased by any Person at the time it
becomes a Subsidiary, provided that such Lien was not created in anticipation of such
person becoming a Subsidiary;



          (c) any Lien existing on property at the time of the acquisition thereof
by the Company or any Subsidiary, provided that such Lien was not created in
anticipation of such acquisition;



          (d) Liens on property acquired, constructed or improved by the Company or any Subsidiary;
provided that the Debt secured thereby does not exceed 80% of the cost of acquiring,
constructing or improving such property and such Liens do not apply to any other property of the
Company or any Subsidiary;



          (e) Liens on receivables and the proceeds thereof securing any Permitted Receivables
Securitization;



60









 





          (f) any Liens securing Debt of the Company owing to a Subsidiary or a Subsidiary owing to the
Company or to another Subsidiary;



          (g) Liens for taxes, assessments or governmental charges or levies not yet due or that are
being contested in good faith by appropriate proceedings; provided that adequate reserves with
respect thereto are maintained on the books of the Company or its Subsidiaries, as the case may be,
in conformity with GAAP;



          (h) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or
other like Liens arising in the ordinary course of business that are not more than 60 days
delinquent in accordance with their terms or that are being contested in good faith by
appropriate proceedings;



          (i) pledges or deposits in connection with workers’ compensation,
unemployment insurance and other social security legislation and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements;



          (j) deposits to secure the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;



          (k) easements, rights-of-way, restrictions, licenses, reservations, utility easements and
other similar encumbrances imposed by law or incurred in the ordinary course of business that, do
not materially detract from the value of the property subject thereto or materially interfere with
the ordinary conduct of the business of the Company and its Subsidiaries, considered as a whole;



          (l) any interest or title of a lessor under any lease entered into by the Company or any
Subsidiary in the ordinary course of its business and covering only the assets so leased;



          (m) attachment or judgment Liens in respect of judgments or decrees that have been vacated,
discharged or stayed within 30 days from the entry thereof; and attachment or judgment Liens in
respect of judgments or decrees that have been bonded
pending appeal within 30 days from the entry thereof and which do not exceed $75,000,000 in
the aggregate;



          (n) Liens arising from precautionary U.C.C. financing statement filings with respect to
operating leases or consignment arrangements entered into by the Company or any Subsidiary in the
ordinary course of business;



          (o) customary Liens in favor of a banking institution arising by operation of law encumbering
deposits (including the right of set-off) held by such banking institutions incurred in the
ordinary course of business and that are within the general parameters customary in the banking
industry;



          (p) any extension, renewal or replacement (or successive extensions, renewals or replacements)
in whole or in part of any Lien referred to in clauses (a) through (o) above, so long as the
principal amount of the Debt or other obligations secured thereby does not exceed the



61









 





principal amount of Debt or obligations so secured at the time of such extension, renewal or
replacement (except that, where an additional principal amount of Debt is incurred to provide funds
for the completion of a specific project, the additional principal amount, and any related
financing costs, may be secured by the Lien as well) and such Lien is limited to the same property
subject to the Lien so extended, renewed or replaced (and improvements on such property); and




          (q) any Lien not permitted by clauses (a) through (p) above securing Debt which, together with
the aggregate outstanding principal amount of all other Debt of the Company and its Subsidiaries
which would otherwise be subject to the foregoing restrictions and the aggregate Value of their
existing Sale and Leaseback Transactions which would be subject to the restrictions of Section
10.02 but for this clause (q), does not at any time exceed 5% of Consolidated Net Tangible Assets.



          SECTION 10.03. Limitation on Sale and Leaseback Transactions. Enter into any Sale and
Leaseback Transaction, or permit any Subsidiary to do so, unless the Company or such Subsidiary
would be entitled to incur Debt, in a principal amount equal to the Value of such Sale and
Leaseback Transaction, which is secured by Liens on the property to be leased without violating
Section 10.02.



          SECTION 10.04. Financial Condition Covenants.



          (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as
at the last day of any period of four consecutive fiscal quarters of the Company to exceed 3.0
to 1.0.



          (b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio as at the last day of any period of four consecutive fiscal quarters of the
Company to be less than 3.5 to 1.0.



          SECTION 10.05. Indebtedness. Permit Subsidiaries of the Company to create, issue,
incur, assume, become liable in respect of or suffer to exist any Debt (other than Permitted Debt)
in an aggregate principal amount exceeding $125,000,000 outstanding at any time.



          SECTION 10.06. Transactions with Affiliates. Enter into any material transaction,
including any purchase, sale, lease or exchange of property, the rendering of any service or the
payment of any management, advisory or similar fees, with any Affiliate, except any such
transaction which is (a) otherwise permitted under this Agreement, in the ordinary course of
business of the relevant Affiliate and upon fair and reasonable terms no less favorable to the
relevant Affiliate than it would obtain in a comparable arm’s length transaction with a Person that
is not an Affiliate, (b) entered into prior to the Restatement Date or contemplated by any
agreement identified on Schedule 10.06 hereof, (c) between or among the Company or any Subsidiary
exclusively, (d) any Restricted Payment permitted under Section 10.07, (e) any transactions in
connection with any Permitted Receivables Securitization or (f) any arrangements with officers,
directors, representatives or other employees of the Company or any Subsidiary relating
specifically to employment as such.



62









 





          SECTION 10.07. Restricted Payments. At any time that the Company does not have an
Investment Grade Standing, declare or pay any dividend (other than dividends payable solely in
common stock of the Person making such dividend or options, warrants or rights to purchase shares
of such common stock) on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of,
any capital stock of the Company or any Subsidiary, whether now or hereafter outstanding, or make
any other distribution in respect thereof, either directly or indirectly, whether in cash or
property or in obligations of any Subsidiary (collectively,
“Restricted Payments”), except that any
Subsidiary may make Restricted Payments to the Company and its other equity holders, pro rata in
accordance with their respective equity interests in such Subsidiary.



          SECTION 10.08. Investments. At any time that the Company does not have an Investment
Grade Standing, make any advance, loan, extension of credit (by way of guaranty or otherwise) or
capital contribution to, or purchase any capital stock, bonds, notes, debentures or other debt
securities of, or any assets constituting a business unit of, or make any other investment in, any
Person (all of the foregoing, “Investments”), except:



          (a) investments in Cash Equivalents;



          (b) extensions of trade credit in the ordinary course of business;



          (c) Loans and advances to employees of the Company or any Subsidiary in
the ordinary course of business (including for travel, entertainment and relocation expenses) in an
aggregate amount for such employees not to exceed $10,000,000 at any one time outstanding;



          (d) Loans to employees of the Company or any Subsidiary solely for the purpose of exercising
options to purchase the common stock of the Company or any Subsidiary;



          (e) intercompany Investments by the Company or any Subsidiary in the Company or any Person
that, prior to such investment, is a Guarantor, including Guarantees by the Company of any Debt of
any Subsidiary;



          (f) in addition to Investments otherwise expressly permitted by this Section 10.08,
Investments by the Company or any of its Subsidiaries in an aggregate amount (valued at cost) at
any time invested not to exceed the sum of $250,000,000 plus any amount thereof financed with
Company Stock or the proceeds of the issuance of Company Stock;



          (g) Investments made or committed to be made when the Company has
Investment Grade Standing, together with any extensions, renewals or replacements thereof
(provided the aggregate amount of the Investment is not increased); and



          (h) Loans and advances to vendors, distributors or agents in the ordinary
course of business in an aggregate amount not to exceed $20,000,000 at any one time
outstanding.



63









 





ARTICLE XI




Events of Default




          In case of the happening of any of the following events (each an “Event of Default”):



          (a) any representation or warranty made or deemed made in or in connection with the execution
and delivery of this Agreement or the Borrowings hereunder or under any Borrowing Subsidiary
Agreement shall prove to have been false or misleading in any material respect when so made, deemed
made or furnished;



          (b) default shall be made in the payment of any principal of any Loan or LC Disbursement when
and as the same shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise;



          (c) default shall be made in the payment of any interest on any Loan or any fee or any other
amount (other than an amount referred to in paragraph (b) above) due hereunder, when and as the
same shall become due and payable, and such default shall continue unremedied for a period of five
Business Days;



          (d) default shall be made in the due observance or performance of any covenant, condition or
agreement contained in Section 9.06 or Article X;



          (e) default shall be made in the due observance or performance of any
covenant, condition or agreement contained herein (other than those specified in (b), (c) or
(d) above) or in any other Loan Document and such default shall continue unremedied for a period of
30 days after notice thereof from any Administrative Agent or any Lender to the Company;



          (f) the Company or any Subsidiary shall (i) fail to pay any principal or interest, regardless
of amount, due in respect of one or more items of Debt in an aggregate principal amount greater
than or equal to $75,000,000, when and as the same shall become due and payable (giving effect to
any applicable grace period) or (ii) fail to observe or perform any other term, covenant, condition
or agreement contained in any agreement or instrument evidencing or governing any such Debt if the
effect of any failure referred to in this clause (ii) is to cause such Debt to become due prior to
its stated maturity;



          (g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in
a court of competent jurisdiction seeking (i) relief in respect of the Company or any Subsidiary,
or of a substantial part of the property or assets of the Company or any Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or any other Federal, state or
foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the Company or any Subsidiary
or for a substantial part of the property or assets of the Company or any Subsidiary or (iii) the
winding up or liquidation of the Company or any Subsidiary; and such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;



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          (h) the Company or any Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Company or any Subsidiary or for a substantial part of the property or assets of the Company or
any Subsidiary, (iv) file an answer admitting the material allegations of a petition filed against
it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;



          (i) one or more judgments for the payment of money in an aggregate amount equal to or greater
than $75,000,000 (exclusive of any amount thereof reasonably expected to be covered by insurance)
shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor (whose liquidated
judgment, along with those of any other judgment creditors, exceeds $75,000,000) to levy upon
assets or properties of the Company or any Subsidiary to enforce any such judgment;



          (j) (i) a Plan of any Borrower shall fail to maintain the minimum funding standard required by
Section 412 of the Code for any plan year or a waiver of such standard is sought or granted under
Section 412(d) or (ii) an ERISA Termination Event shall have occurred with respect to any Borrower
or an ERISA Affiliate has incurred, or in the reasonable opinion of the Required Lenders is
reasonably likely to incur, a liability to or on account of a Plan under Section 4062, 4063, 4064,
4201 or 4204 of ERISA or (iii) any Person shall engage in any prohibited transaction described in
Sections 406 of ERISA or 4975 of the Code for which a statutory or class exemption is not available
or a private exemption has not been previously obtained from the United States Department of Labor
or (iv) any Borrower or any ERISA Affiliate shall fail to pay any required installment or any other
payment required to be paid by such entity under Section 412 of the Code on or before the due date
for such installment or other payment (taking into account any extensions granted) or (v) any
Borrower or any ERISA Affiliate shall fail to make any contribution or payment to any Multiemployer
Plan (as defined in Section 4001(a)(3) of ERISA) which any Borrower or any ERISA Affiliate is
required to make under any agreement relating to such Multiemployer Plan or any law pertaining
thereto (taking into account any extensions granted), and, in the event of the occurrence of any of
the events described in clauses (i) through (v) above, there shall result from any such event or
events either a liability or a material risk of incurring a liability which is reasonably expected
to have a Material Adverse Effect;



          (k) a Change in Control shall occur; or the Company shall cease to own beneficially all of the
then outstanding capital stock (or equivalent equity interests) of each of the Japanese Borrower
and the European Borrowers; or



65









 





          (l) the guarantee in Section 13.16 shall cease to be, or shall be asserted by any Credit Party
not to be, a valid and binding obligation on the part of any Guarantor;



then, and in every such event (other than an event with respect to any Borrower described in
paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the
General Administrative Agent, at the request of the Required Lenders, shall, by notice to the
Company or any other Borrower (which notice to any other Borrower may be given to the Company),
take either or both of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued fees and all other
liabilities of the Borrowers accrued hereunder (including all amounts of LC Exposure, whether or
not the beneficiary of the then outstanding Letters of Credit shall have presented the documents
required therein), shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived anything contained herein to
the contrary notwithstanding; and, in any event with respect to any Borrower described in paragraph
(g) or (h) above, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon and any unpaid
accrued fees and all other liabilities of the Borrowers accrued hereunder (including all amounts of
LC Exposure, whether or not the beneficiary of the then outstanding Letters of Credit shall have
presented the documents required therein) shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are hereby expressly
waived anything contained herein to the contrary notwithstanding. With respect to all Letters of
Credit with respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the U.S. Borrower shall at such time deposit in a cash
collateral account opened by the General Administrative Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral
account shall be applied by the General Administrative Agent to the payment of drafts drawn under
such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have
expired or been fully drawn upon, if any, shall be applied to repay other obligations of the U.S.
Borrower hereunder and under the other Loan Documents. The General Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which investments shall be made
at the option and sole discretion of the General Administrative Agent and at the U.S. Borrower risk
and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. After all such Letters of Credit shall have expired
or been fully drawn upon, all reimbursement obligations shall have been satisfied and all other
obligations of the U.S. Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned to the U.S.
Borrower (or such other Person as may be lawfully entitled thereto).




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ARTICLE XII




The Administrative Agents




          In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby
appointed to act as the General Administrative Agent on behalf of the U.S. Lenders, JPMorgan Chase
Bank, N.A., Tokyo Branch is hereby appointed to act as Japanese Administrative Agent on behalf of
the Japanese Lenders, J.P. Morgan Europe Limited is hereby appointed to act as European
Administrative Agent on behalf of the Multicurrency Lenders and JPMCB is hereby appointed to act as
Advance Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes each
Administrative Agent (which term, for purposes of this Article XII shall be deemed to include the
Advance Agent) to take such actions on behalf of such Lender or holder and to exercise such powers
as are specifically delegated to the Administrative Agents or an Administrative Agent individually,
as the case may be, by the terms and provisions hereof, together with such actions and powers as
are reasonably incidental thereto. Each Administrative Agent is hereby expressly authorized by the
Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all
payments of principal of and interest on the Loans, payments in respect of the Letters of Credit
and all
other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its
proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to
the Credit Parties of any Event of Default of which such Administrative Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of
all notices, financial statements and other materials delivered by any Credit Party pursuant to
this Agreement as received by such Administrative Agent.



          Neither the Administrative Agents nor any of their respective directors, officers, employees
or agents shall be liable as such for any action taken or omitted by any of them except for its or
his or her own gross negligence or wilful misconduct, or be responsible for any statement, warranty
or representation herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or observance by any
Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The
Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The
Administrative Agents may deem and treat the Lender which makes any Loan or issues or participates
in any Letter of Credit as the holder of the indebtedness resulting therefrom for all purposes
hereof until it shall have received notice from such Lender, given as provided herein, of the
transfer thereof. The Administrative Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the Required Lenders and,
except as otherwise specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The Administrative Agents shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by
it in good faith to be genuine and correct and to have been signed or sent by the proper Person or
Persons. Neither the Administrative Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to any Borrower on account of the failure of or
delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender
on account of the failure of or delay in performance or breach by any other Lender or any Borrower
of any of their



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respective obligations hereunder or in connection herewith. The Administrative Agents may execute
any and all duties hereunder by or through their respective branches, Affiliates, agents or
employees and shall be entitled to rely upon the advice of legal counsel selected by them with due
care with respect to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by them in accordance with the advice of such counsel. Without limiting the
foregoing, any Administrative Agent may, by notice to the Company and the applicable Borrower,
designate any of its branches or Affiliates as the Person to receive any or all notices (including
Borrowing Requests and Interest Election Requests) to be delivered to such Administrative Agent
pursuant to this Agreement.




          The Lenders hereby acknowledge that the Administrative Agents shall be under no duty to take
any discretionary action permitted to be taken by them pursuant to
the provisions of this Agreement unless they shall be requested in writing to do so by the
Required Lenders.



          Subject to the appointment and acceptance of a successor Administrative Agent as provided
below, any Administrative Agent may resign at any time by notifying the Lenders, the other
Administrative Agents and the Company. Upon any such resignation of an Administrative Agent, the
Required Lenders shall have the right to appoint a successor Administrative Agent acceptable to the
Company. If no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent gives notice of
its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank having a combined capital and surplus of at
least $500,000,000 (or any Affiliate of such bank), (i) with, in the case of the U.S. Commitments,
an office in New York, New York, (ii) with, in the case of the Japanese Commitments, an office in
Tokyo, Japan, or (iii) with, in the case of the Multicurrency Commitments, an office in London.
Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Administrative Agent and the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder. After any Administrative Agent’s resignation hereunder, the
provisions of this Article XII and Section 13.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as Administrative
Agent.



          With respect to the Loans made by, or Letters of Credit issued by or participated in by, them
hereunder, each Administrative Agent in its individual capacity and not as Administrative Agent
shall have the same rights and powers as any other Lender and may exercise the same as though it
were not an Administrative Agent, and such Administrative Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with the Company or any
Subsidiary or other Affiliate thereof as if it were not an Administrative Agent.



          Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its
Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative
Agents, including counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to
indemnify and hold harmless the Administrative Agents and any of their respective directors,
officers, employees or agents, on demand, in the amount of its Applicable



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Percentage, from and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against either of them in its capacity
as an Administrative Agent in any way relating to or arising out of this Agreement or any action
taken or omitted by either of them under this Agreement to the extent the same shall not have been
reimbursed by the Borrowers; provided that no
Lender shall be liable to any Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or wilful misconduct of such Administrative Agent
or any of its directors, officers, employees or agents.




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



ARTICLE XIII




Miscellaneous 




          SECTION 13.01. Notices. Notices and other communications provided for herein shall be
in writing and shall be delivered by hand or overnight courier service, mailed or sent by telecopy,
as follows:




     (i) if to the Company, to Zimmer Holdings, Inc., 345 East Main Street, Warsaw, IN 46580,
Attention of Sam R. Leno, Executive Vice President, Corporate Finance and Operations and Chief
Financial Officer (Telecopy No.: 574-372-4988);




     (ii) if to Zimmer, to Zimmer, Inc., 345 East Main Street, Warsaw, IN 46580, Attention of Sam
R. Leno, Executive Vice President, Corporate Finance and Operations and Chief Financial Officer
(Telecopy No.: 574-372-4988);




     (iii) if to the Japanese Borrower, to Zimmer K.K., 7F Shiroyama Mt. Building, 1-17, Toranomon
4-Chome, Minato-ku, Tokyo, Japan 10S-0001, Attention of Rob Pullan, Director, Finance & IM,
(Telecopy No.: 81-3-6402-6620); with a copy to Zimmer Holdings, Inc., 345 East Main Street, Warsaw,
IN 46580, Attention of Sam R. Leno, Executive Vice President, Corporate Finance and Operations and
Chief Financial Officer (Telecopy No.: 574-372-4988);




     (iv) if to the English Borrower, to Zimmer Ltd., The Courtyard, Lancaster Place, Southmarston
Park, Swindon, Wiltshire SN3 4FP, Attention of James Evenson, Director of Finance (Telecopy No.:
44-1793-584-563); with a copy to Zimmer Holdings, Inc., 345 East Main Street, Warsaw, IN 46580,
Attention of Sam R. Leno, Executive



69









 






Vice President, Corporate Finance and Operations and Chief Financial Officer (Telecopy No.:
574-372-4988);




     (v)
If to the Swiss Borrowers, to (i) Zimmer Switzerland Holdings Ltd., Postfach 65, CH - 8404
Oberwinterhur, Switzerland, Attention of Heidi Jauch, Legal
Counsel (Telecopy No.: 41-52-262-7974); and (ii) Zimmer GmbH,
Postfach 65, CH - 8404
Oberwinterhur, Switzerland, Attention of Heidi Jauch, Legal Counsel (Telecopy No.: 41-52-262-7974),
in each case with a copy to Zimmer Holdings, Inc., 345 East Main Street, Warsaw, IN 46580,
Attention of Sam R. Leno, Executive Vice President, Corporate Finance and Operations and Chief
Financial Officer (Telecopy No.: 574-372-4988);




     (vi) If to the Luxembourg Borrower, to Zimmer Investment Luxembourg S.C.A., 73 Cote d’Eich,
LO1450 Luxembourg, Attention of Sam R. Leno (Telecopy No.: 574-372-4988); with a copy to Zimmer
Holdings, Inc., 345 East Main Street, Warsaw, IN 46580, Attention of Sam R. Leno, Executive Vice
President, Corporate Finance and Operations and Chief Financial Officer (Telecopy No.:
574-372-4988);




     (vii) if to the General Administrative Agent, to JPMorgan Chase Bank, N.A., 1111 Fannin
Street, Houston, Texas 77002, Attention of Jennifer Anyigbo, Account Manager (Telecopy No.:
713-750-2782) (email: jennifer.anyigbo@jpmorgan.com); with a copy of all documents to be delivered
pursuant to Section 9.03 to JPMorgan Chase Bank, N.A., 270 Park Avenue, 15th Floor, New York, New
York 10017, Attention of Lyette Proctor, (Telecopy No.: 212-270-5135) and to JPMorgan Chase Bank,
N.A., 270 Park Avenue, 4th Floor, New York, New York, 10017, Attention of Dawn Lee Lum (Telecopy
No.: 212-270-3279);




     (viii) if to the European Administrative Agent, to J. P. Morgan Europe Limited, 125 London
Wall, London EC2Y 5AJ, Attention of Belinda Lucas (Telecopy No.: 44-207-777-2360);




     (ix) if to the Japanese Administrative Agent, to JPMorgan Chase Bank, N.A., Tokyo Branch,
5-2-20, Akasaka, Minato-ku, Tokyo, Japan 107-6117, Attention of Mayumi Takehisa (Telecopy No.:
813-5570-7539);




     (x) if to the Issuing Lender, to JPMorgan Chase Bank, N.A., JPMorgan Treasury Services , 10420
Highland Manor Drive, Tampa, FL 33610, Attention: Stephen Carew, Operations Manager (Telecopy No.:
813-432-5161), (email: stephen.m.carew@jpmorgan.com).




     (xi) if to a Lender, to it at its address (or telecopy number) set forth in Schedule 2.01 or
in the Assignment and Acceptance pursuant to which such Lender became a party hereto; and




     (xii) if to any other Borrowing Subsidiary, to it at the address (or telecopy number) set
forth above for the Company. Each Borrower (other than the Company) hereby irrevocably appoints
the Company as its agent for the purpose of giving on its behalf any notice and taking any other
action provided for in this Agreement (whether or



70









 






not this Agreement expressly authorizes the Company to take any such action on behalf of such
Borrower) and hereby agrees that it shall be bound by any such notice or action given or taken by
the Company hereunder irrespective of whether or not any such notice
shall have in fact been authorized by such Borrower and irrespective of whether or not the agency
provided for herein shall have theretofore been terminated.



          All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered
by hand or overnight courier service or sent by telecopy to such party as provided in this Section
or in accordance with the latest unrevoked direction from such party given in accordance with this
Section.



          SECTION 13.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by any Credit Party herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered to have been relied
upon by the Lenders and shall survive the making by the Lenders of the Loans regardless of any
investigation made by the Lenders or on their behalf, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or the Commitments have not been terminated.



          SECTION 13.03. Binding Effect. This Agreement shall become effective when it shall
have been executed by the Company, the European Borrowers, the Japanese Borrower and the
Administrative Agents and when the Administrative Agents shall have received copies hereof
(telecopied or otherwise) which, when taken together, bear the signatures of each Lender (after
giving effect to the repayment of the Existing Term Loans and any concurrent assignments of
Commitments effective on the Restatement Date), and thereafter shall be binding upon and inure to
the benefit of the parties hereto and the Lenders and their respective successors and assigns,
except that no Borrower shall have the right to assign any rights hereunder or any interest herein,
except in accordance with Section 10.01, without the prior consent of all the Lenders.



          SECTION 13.04. Successors and Assigns. (a) Whenever in this Agreement any of the
parties is referred to, such reference shall be deemed to include the successors and assigns of
such party; and all covenants, promises and agreements by or on behalf of any party that are
contained in this Agreement shall bind and inure to the benefit of its successors and assigns
(including any Affiliate of the Issuing Lender that issues any Letter of Credit).



          (b) Each Lender other than any Conduit Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided, however, that,
except in the case of an assignment to another Lender, an Affiliate of a Lender or an Approved
Fund, (i) each of the Company (so long as no Event of Default shall have occurred and be
continuing) and the General Administrative Agent must give its prior written consent to such
assignment (which consent in each case shall not be unreasonably withheld), (ii) the amount of the
Commitments of the assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the General



71









 





Administrative Agent) shall not be less than $5,000,000 unless it shall be the entire amount of
such Lender’s Commitments or Loans, as applicable and (iii) an assignment by a Lender of any of its
U.S. Commitments shall include an assignment by such Lender of its proportionate interest in LC
Exposure. The parties to each assignment shall execute and deliver to the General Administrative
Agent an Assignment and Acceptance, and a processing and recordation fee of $3,500;
provided, however, that such processing and recordation fee shall not be payable in
the case of assignments made by or to Arrangers or their Affiliates. Upon acceptance and recording
pursuant to paragraph (e) of this Section 13.04, from and after the effective date specified in
each Assignment and Acceptance, which effective date shall be at least five Business Days after the
execution thereof, (x) the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (y) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
party hereto (but shall (i) continue to be entitled to the benefits of Sections 6.10, 6.11, 6.12
and 13.05, as well as to any fees accrued for its account hereunder and not yet paid and (ii)
continue to be subject to the confidentiality provisions hereof). Notwithstanding the foregoing,
any Lender assigning its rights and obligations under this Agreement may retain any Competitive
Loans made by it outstanding at such time, and in such case shall retain its rights hereunder in
respect of any Loans so retained until such Loans have been repaid in full in accordance with this
Agreement. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its
designating Lender hereunder without the consent of the Company or the General Administrative Agent
any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and
without regard to the limitations set forth in the first sentence of this Section 13.04(b).




          For the purpose of this Section 13.04(b), the term “Approved Fund” has the following meaning:



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



          (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim; (ii) except as
set forth in (i) above, such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document furnished pursuant
hereto
or the financial condition of the Borrowers or the performance or observance by the Borrowers
of any obligations under this Agreement or any other instrument or document furnished pursuant
hereto; (iii) such assignee represents and



72









 





warrants that it is legally authorized to enter into such Assignment and Acceptance; (iv) such
assignee confirms that it has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 9.03 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (v) such assignee will independently and without reliance upon any
Administrative Agent, such assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the
General Administrative Agent, the Japanese Administrative Agent and the European Administrative
Agent to take such action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Administrative Agents by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.




          (d) Each of the Administrative Agents shall maintain at its office referred to in Section
13.01 a copy of each Assignment and Acceptance delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitments of, and the principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time and any promissory notes
evidencing such Loans (the “Register”). The entries in the Register shall be conclusive in
the absence of manifest error and the Company, the other Borrowers, the Administrative Agents and
the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement. No assignment or transfer of any
Loan (or portion thereof) or any Note evidencing such Loan shall be effected unless and until it
has been recorded in the Register as provided in this subsection 13.04(d). Notwithstanding any
other provision of this Agreement, any assignment or transfer of all or part of a promissory note
shall be registered on the Register only upon surrender for registration of assignment or transfer
of the promissory note (and each promissory note shall expressly so provide), accompanied by a duly
executed Assignment and Acceptance, and thereupon one or more new promissory notes in the same
aggregate principal amount shall be issued to the designated Assignee and the old promissory notes
shall be returned by the applicable Administrative Agent to the Company marked “cancelled”. The
Register shall be available for inspection by each party hereto, at any reasonable time and from
time to time upon reasonable prior notice.



          (e) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee together with an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above, if applicable, and, if required, the written consent of the
Company to such assignment, the
relevant Administrative Agent shall (i) accept such Assignment and Acceptance and (ii) record
the information contained therein in the Register.



          (f) Each Lender other than any Conduit Lender may sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans owing to it); provided, however,
that (i) such Lender’s obligations under this Agreement shall remain unchanged,



73









 





(ii) such Lender shall remain solely responsible to the other parties hereto or thereto for the
performance of such obligations, (iii) each participating bank or other entity shall be entitled to
the benefit of the cost protection provisions contained in Sections 6.10, 6.11 and 6.12 to the same
extent as if it was the selling Lender (and limited to the amount that could have been claimed by
the selling Lender had it continued to hold the interest of such participating bank or other
entity, it being further agreed that the selling Lender will not be permitted to make claims
against the Borrowers under Section 6.10(b) for costs or reductions resulting from the sale of a
participation), except that all claims made pursuant to such Sections shall be made through such
selling Lender and (iv) the Borrowers, the Administrative Agents and the other Lenders shall
continue to deal solely and directly with such selling Lender in connection with such Lender’s
rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce
the obligations of the Borrowers relating to the Loans and to approve any amendment, modification
or waiver of any provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or thereunder or the amount of principal of or the rate at
which interest is payable on the Loans, extending the final scheduled maturity of the Loans or any
date scheduled for the payment of interest on the Loans, extending the Commitments or releasing any
Guarantor from its obligations hereunder).




          (g) Any Lender or participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 13.04, disclose to the assignee or
participant or proposed assignee or participant any information relating to the Company or the
other Borrowers furnished to such Lender; provided that, prior to any such disclosure, each
such assignee or participant or proposed assignee or participant shall be subject to the
confidentiality provisions contained herein.



          (h) The Borrowers shall not assign or delegate any rights and duties
hereunder, except in accordance with Section 10.01, without the prior written consent of all
Lenders.



          (i) Any Lender may at any time pledge or otherwise assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank; provided that no such pledge shall release
any Lender from its obligations hereunder. In order to facilitate such an assignment to a Federal
Reserve Bank, the relevant Borrower shall, at the request of the assigning Lender, duly execute and
deliver to the assigning Lender a promissory note or notes evidencing the Loans made by the
assigning Lender hereunder.



          (j) Each party hereto hereby confirms that it will not institute against a
Conduit Lender or join any other Person in instituting against a Conduit Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however,
that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless
each other party hereto for any loss, cost, damage or expense arising out of its inability to
institute such a proceeding against such Conduit Lender during such period of forbearance.



          SECTION
13.05. Expenses, Indemnity. (a) The Company agrees to pay all reasonable
out-of-pocket expenses incurred by the Administrative Agents and the Arrangers in



74









 





connection with entering into this Agreement or in connection with any amendments, modifications or
waivers of the provisions hereof or thereof (including the reasonable fees, disbursements and other
charges of a single counsel), or incurred by the Administrative Agents, the Arrangers or any Lender
in connection with the enforcement of their rights in connection with this Agreement or in
connection with the Loans made hereunder or thereunder, including the fees and disbursements of
counsel for the Administrative Agents and the Arrangers and, in the case of enforcement, each
Lender.




          (b) The Company agrees to indemnify each Administrative Agent, the Arrangers, each Lender,
each of their Affiliates and the directors, officers, employees and agents of the foregoing (each
such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including reasonable counsel
fees, incurred by or asserted against any Indemnitee arising out of (i) the consummation of the
transactions contemplated by this Agreement, (ii) the use of the proceeds of the Loans or (iii) any
claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that (x) such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses result from the gross negligence or wilful misconduct of such Indemnitee and (y) such
indemnity shall not apply to losses, claims, damages, liabilities or relate expenses that result
from disputes solely between Lenders.



          (c) The provisions of this Section 13.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the invalidity or unenforceability of any
term or provision of this Agreement or any investigation made by or on behalf of the Administrative
Agents, the Syndication Agent or any Lender. All amounts due under this Section 13.05 shall be
payable on written demand therefor.



          SECTION
13.06. Applicable Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.



          SECTION 13.07. Waivers, Amendment. (a) No failure or delay of any Administrative
Agent or any Lender in exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agents and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies
which they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure therefrom shall in any event be effective unless the same shall be permitted by paragraph
(b) below, and then such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Company or any other Borrower in any case
shall entitle such party to any other or further notice or demand in similar or other
circumstances.



          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the




75










 






Borrowers and the Required Lenders; provided, however, that no such agreement
shall (i) decrease the principal amount of, or extend the maturity of or any scheduled principal
payment date or date for the payment of any interest on any Loan or reimbursement obligation with
respect to an LC Disbursement, or waive or excuse any such payment or any part thereof, or decrease
the rate of interest on any Loan, or amend or modify Section 13.16, without the prior written
consent of each Lender directly affected thereby, (ii) increase the Commitments or decrease or
extend the date for payment of the facility fees or fees in respect of Letters of Credit of any
Lender (with the exception of fronting fees payable to the Issuing Lender, which shall require the
consent of the Issuing Lender) without the prior written consent of such Lender, (iii) amend or
modify the provisions of Section 6.13 or Section 13.04(h), the provisions of this Section 13.07 or
the definition of the “Required Lenders”, or release any Guarantor from its obligations under
Section 13.16 hereof except for the release of a Subsidiary Guarantor in connection with the
consummation of a transaction permitted under Section 10.01, without the prior written consent of
each Lender, (iv) change the provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans of one Class
differently from the rights of Lenders holding Loans of any other class without the prior written
consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments
of each adversely affected Class or (v) change the requirement that disbursements made by any
Lender be made ratably with respect to its applicable Commitment without the prior written consent
of each Lender directly affected thereby; provided further, however, that no such
agreement shall amend, modify or otherwise affect the rights or duties of (w) any Administrative
Agent hereunder without the prior written consent of such Administrative Agent, (x) any Issuing
Lender without the prior written consent of such Issuing Lender, (y) the Swingline Lender without
the prior written consent of the Swingline Lender or (z) an Arranger under Section 13.04(b) without
the prior written consent of such Arranger. Each Lender shall be bound by any waiver, amendment or
modification authorized by this Section 13.07 and any consent by any Lender pursuant to this
Section 13.07 shall bind any assignee of its rights and interests hereunder.




          SECTION 13.08. Entire Agreement. This Agreement and the Letter Agreement constitute
the entire contract among the parties relative to the subject matter hereof. Any previous
agreement among the parties with respect to the subject matter hereof is superseded by this
Agreement. Nothing in this Agreement, expressed or implied, is intended to confer upon any party
other than the parties hereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement.




          SECTION
13.09. Severability. In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable provisions.




          SECTION 13.10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken
together shall constitute but one contract, and shall become effective as provided in Section
13.03.



76









 





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




          SECTION
13.12. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or obligations of each Credit Party now or hereafter existing under
this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Company after such setoff and application made by such Lender, but the
failure to give such notice shall not affect the validity of such setoff and application. The
rights of each Lender under this Section 13.12 are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Lender may have.




          SECTION
13.13. Jurisdiction: Consent to Service of Process. (a) Each party hereto
hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States of America sitting
in New York City, and any appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Subject to the foregoing and to
paragraph (b) below, nothing in this Agreement shall affect any right that any party hereto may
otherwise have to bring any action or proceeding relating to this Agreement against any other party
hereto in the courts of any jurisdiction.




          (b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or thereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.




          (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 13.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.




          (d) Each Borrower hereby irrevocably appoints the Company as its agent for the service of
process in any action referred to in Section 13.13(a) and agrees that service of process in any
such proceeding may be made by mailing or delivering a copy thereof to it care of the Company at
its address for notice set forth in Section 13.01.





77









 








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




          SECTION 13.14. Waiver of Jury Trial. Each party hereto hereby waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in respect of any
litigation directly or indirectly arising out of, under or in connection with this Agreement. Each
party hereto (a) certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the event of litigation,
seek to enforce the foregoing waiver and (b) acknowledges that it and other parties hereto have
been induced to enter into this Agreement by, among other things, the mutual waivers and
certification in this Section 13.14.




          SECTION
13.15. Conversion of Currencies. (a) If, for the purpose of obtaining judgment
in any court, it is necessary to convert a sum owing hereunder in one currency into another
currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other currency on the
Business Day immediately preceding the day on which final judgment is given.




          (b) The obligations of each Borrower in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than the
currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be
discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction 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 Applicable Creditor in the Agreement Currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrowers contained in this Section 13.15 shall
survive the termination of this Agreement and the payment of all other amounts owing hereunder.




          SECTION
13.16. Guaranty. In order to induce the Lenders to make Loans to the Company
and the other Borrowers, each Guarantor, on a joint and several basis, hereby unconditionally and
irrevocably guarantees as a primary obligor the Borrower Obligations of all the Borrowers. Each
Guarantor further agrees that the Borrower Obligations may be extended and renewed, in whole or in
part, without notice to or further assent from it, and that it will remain bound upon its agreement
hereunder notwithstanding any extension or renewal of any Borrower Obligation.




          Each Guarantor waives promptness, diligence, presentment to, demand of payment from and
protest to the Borrowers of any Borrower Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment. The obligations of each Guarantor hereunder shall
be absolute and unconditional and not be affected by, and each Guarantor waives any defense it may
now or hereafter have arising out of (a) the failure of any






78









 








Lender or the Administrative Agents to assert any claim or demand or to enforce any right or remedy
against any Borrower under the provisions of this Agreement or any of the other Loan Documents or
otherwise; (b) any rescission, waiver, amendment or modification of any of the terms or provisions
of this Agreement, any other Loan Documents or any other agreement; (c) the failure of any Lender
to exercise any right or remedy against any Borrower; (d) the invalidity or unenforceability of any
Loan Document; (e) the validity, legality or enforceability of this Agreement or any Loan or Letter
of Credit or any document or instrument relating thereto or given in connection therewith; or (f)
any other circumstance which might otherwise constitute a defense available to or discharge of a
Borrower or a guarantor (other than indefeasible payment).




          Each Guarantor further agrees that its agreements hereunder constitutes a promise of payment
when due and not of collection, and waives any right to require that any resort be had by any
Lender to any balance of any deposit account or credit on the books of any Lender in favor of any
Borrower or any other Person.




          The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Borrower Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of the Guarantors hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agents or any Lender to assert any claim or
demand or to enforce any remedy under this Agreement or under any other Loan Document or any other
agreement, by any waiver or modification in respect of any thereof, by any default, failure or
delay, wilful or otherwise, in the performance of the Borrower Obligations, or by any other act or
omission which may or might in any manner or to any extent vary the risk of the Guarantors (or any
of them) or otherwise operate as a discharge of the Guarantors (or any of them) as a matter of law
or equity.




          Each Guarantor further agrees that its obligations hereunder shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or
interest on any Borrower Obligation is rescinded or must otherwise be restored by the
Administrative Agents or any Lender upon the bankruptcy or reorganization of any Borrower or
otherwise.




          In furtherance of the foregoing and not in limitation of any other right which the
Administrative Agents or any Lender may have at law or in equity against the Guarantors (or any of
them) by virtue hereof, upon the failure of any Borrower to pay any Borrower Obligation when and as
the same shall become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the
General Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of such unpaid
Borrower Obligation. In the event that, by reason of the bankruptcy of any Borrower (i)
acceleration of Loans made to such Borrower is prevented and (ii) the Guarantors shall not have
prepaid the outstanding Loans and other amounts due hereunder owed by such Borrower, the Guarantors
will forthwith purchase such Loans and other amounts at a price equal to the principal amount
thereof plus accrued interest thereon and any other amounts due hereunder with respect thereto.
Each Guarantor further agrees that if payment in respect of






79









 








any Borrower Obligation shall be due in a currency other than Dollars and/or at a place of payment
other than New York and if, by reason of any Change in Law, disruption of currency or foreign
exchange markets, war or civil disturbance or similar event, payment of such Borrower Obligations
in such currency or such place of payment shall be impossible or, in the judgment of any applicable
Lender, not consistent with the protection of its rights or interests, then, at the election of any
applicable Lender, the Guarantors shall make payment of such Borrower Obligation in Dollars (based
upon the applicable Exchange Rate in effect on the date of payment) and/or in New York, and shall
indemnify such Lender against any losses or expenses that it shall sustain as a result of such
alternative payment.




          Following indefeasible payment in full in cash of all Borrower Obligations and the termination
of the Commitments hereunder, upon payment by any Guarantor of any Borrower Obligations, each
Lender shall, in a reasonable manner, assign the amount of such Borrower Obligations owed to it and
paid by such Guarantor pursuant to this guarantee to such Guarantor,
such assignment to be pro tanto to the extent to which the Borrower Obligations in question were discharged by such
Guarantor, or make such disposition thereof as such Guarantor shall direct (all without recourse to
any Lender and without any representation or warranty by any Lender except with respect to the
amount of the Borrower Obligations so assigned).




          Each Subsidiary Guarantor hereby agrees that to the extent that a Subsidiary Guarantor shall
have paid more than its proportionate share of any payment made hereunder, such Subsidiary
Guarantor shall be entitled to seek and receive contribution from and against any other Subsidiary Guarantor hereunder which has not paid its
proportionate share of such payment. Each Subsidiary Guarantor’s right of contribution shall be
subject to the terms and conditions of the immediately following paragraph. The provisions of this
paragraph shall in no respect limit the obligations and liabilities of any Subsidiary Guarantor to
the Administrative Agents and the Lenders and each Subsidiary Guarantor shall remain liable to the
Administrative Agents and the Lenders for the full amount guaranteed by such Subsidiary Guarantor
hereunder.




          Upon payment by any Guarantor of any sums as provided above, all rights of the Guarantors
against any Borrower arising as a result thereof by way of right of subrogation or otherwise shall
in all respects be subordinated and junior in right of payment to the prior indefeasible payment in
full of all the Borrower Obligations to the Lenders and termination of the Commitments.




          Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of each Subsidiary Guarantor in its capacity as a guarantor under this Section 13.16
shall in no event exceed the amount which can be guaranteed by such Subsidiary Guarantor under
applicable federal and state laws relating to the insolvency of debtors (after giving effect to the
right of contribution established above).




          Each Guarantor agrees that the Borrower Obligations may at any time and from time to time
exceed the amount of the liability of such Guarantor hereunder without impairing the guarantee
contained in this Section 13.16 or affecting the rights and remedies of the Administrative Agent or
any Lender hereunder.





80









 








          SECTION 13.17. CAM Exchange. (a) On the CAM Exchange Date, to the extent not
prohibited by a Requirement of Law, all Loans outstanding in any currency other than Dollars shall
be converted to Dollars (calculated on the basis of the relevant Exchange Rates as of the Business
Day immediately preceding the CAM Exchange Date) and shall be ABR Loans, and (ii) the Lenders shall
automatically and without further act be deemed to have exchanged interests in the Classes (other
than Competitive Loans) such that, in lieu of the interests of each Lender in each Class in which
it shall participate as of such date (including such Lender’s interest in the Designated
Obligations of each Credit Party in respect of each such Class), such Lender shall hold an interest
in every one of the Classes (including the Designated Obligations of each Credit Party in respect
of each such Class but excluding Competitive Loans and participations in undrawn Letters of
Credit), whether or not such Lender shall previously have participated therein, equal to such
Lender’s CAM Percentage thereof. Each Lender, the Company and each other Borrower hereby consents
and agrees to the CAM Exchange, and each Lender hereby agrees that the CAM Exchange shall be
binding upon its successors and assigns and any Person that acquires a participation in its
interests in any Class. The Company and each other Borrower and each Lender agrees from time to
time to execute and deliver to the General Administrative Agent all such promissory notes and other
instruments and documents as the General Administrative Agent shall reasonably request to evidence and confirm
the respective interests and obligations of the Lenders after giving effect to the CAM Exchange,
and each Lender agrees to surrender any promissory notes originally received by it in connection
with its Loans hereunder to the General Administrative Agent against delivery of any promissory
notes so executed and delivered; provided that the failure of the Company or any other
Borrower to execute or deliver or of any Lender to accept any such promissory note, instrument or
document shall not affect the validity or effectiveness of the CAM Exchange. In the event that on
the CAM Exchange Date any Swingline Loan shall be outstanding (other than any Swingline Loan in
respect of which U.S. Lenders have funded their purchase of participations pursuant to Section
5.01), then each U.S. Lender (determined immediately prior to the CAM Exchange) shall, in
accordance with the provisions of Section 5.01, promptly purchase from the Swingline Lender a
participation in such Swingline Loan in the amount of such Lenders’ Applicable Percentage of such
Swingline Loan (determined immediately prior to the CAM Exchange).




          (b) As a result of the CAM Exchange, on and after the CAM Exchange Date, (i) each payment
received by an Administrative Agent pursuant to any Loan Document in respect of the Designated
Obligations shall be distributed to the Lenders pro rata in accordance with their respective CAM
Percentages (to be redetermined as of each such date of payment or distribution to the extent
required by Section 13.18) and (ii) Sections 6.12(g), 6.12(h) and 6.12(i) shall not apply with
respect to any Taxes required to be withheld or deducted by a Borrower from or in respect of
payments hereunder to any Lender or the Administrative Agent that exceed the Taxes such Borrower
would have otherwise been required to withhold or deduct from or in respect of payments to such
Lender or the Administrative Agent had such CAM Exchange not occurred; provided,
however, that this Section 13.17(b)(ii) shall not limit the obligations set forth in
Section 6.12(j) hereof.




          SECTION 13.18. Letters of Credit. In the event that, on or after the CAM Exchange
Date, the aggregate amount of the Designated Obligations shall change as a result of the making of
an LC Disbursement by the Issuing Lender that is not reimbursed by a Credit Party, then (a) each
U.S. Lender (determined without giving effect to the CAM Exchange) shall,






81









 








in accordance with Section 4.01(d), promptly purchase from the Issuing Lender a participation in
such LC Disbursement in the amount of such Lender’s Applicable Percentage of such LC Disbursement
(without giving effect to the CAM Exchange) and (b) the General Administrative Agent shall
redetermine the CAM Percentages after giving effect to such LC Disbursement and the purchase of
participations therein by the U.S. Lenders. Each such redetermination shall be binding on each of
the Lenders and their successors and assigns and shall be conclusive, absent manifest error.




          SECTION 13.19. Confidentiality. Each of the Administrative Agents and the Lenders expressly agrees, for the benefit of the Company and the Subsidiaries, to maintain
the confidentiality of the Confidential Information (as defined below), except that Confidential
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Confidential Information and instructed to keep such Confidential Information confidential), (b) to
the extent requested by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, (f) subject to an express
agreement for the benefit of the Company and the Subsidiaries containing provisions substantially
the same as those of this Section, to any assignee of or participant in, or any prospective
assignee of or participant in, any of its rights or obligations under this Agreement or to any
direct or indirect counter party to a Hedge Agreement, (g) with the consent of the Company and the
Subsidiaries, (h) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized ratings agency, or (i) to the extent such Confidential
Information (i) becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to any Administrative Agent or any Lender
on a nonconfidential basis from a
source other than the Company and the Subsidiaries. For the purposes of this Section,
“Confidential Information” means all information, including material nonpublic information within
the meaning of Regulation FD promulgated by the SEC (“Regulation FD”), received from the
Company and the Subsidiaries relating to such entities or their respective businesses, other than
any such information that is available to any Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by such entities; provided that, such information
is clearly identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Confidential Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person customarily accords to its own
confidential information; provided, however, that with respect to disclosures
pursuant to clauses (b) and (c) of this Section, unless prohibited by law or applicable court
order, each Lender and each Administrative Agent shall attempt to notify the Company and the
Subsidiaries of any request by any governmental agency or representative thereof or other Person
for disclosure of Confidential Information after receipt of such request, and if reasonable,
practicable and permissible, before disclosure of such Confidential Information. It is understood
and agreed that the Company and the Subsidiaries and their respective Affiliates may rely upon this
Section 13.19 for any purpose, including without limitation to comply with Regulation FD.
Notwithstanding anything herein to the contrary, any Party to this Agreement (and any employee,
representative or other agent of such Party) may






82









 








disclose to any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax
treatment and tax structure. The preceding sentence is intended to cause the transactions
contemplated hereby not to be treated as having been offered under conditions of confidentiality
for purposes of Section 1.6011-4(b)(3) and 301.6111-2(a)(2)(ii) (or any successor provisions) of
the Treasury Regulations promulgated under the Code, and shall be construed in a manner consistent
with such purpose.




          SECTION 13.20. Effect of Restatement. This Agreement shall supersede the Existing
Credit Agreement from and after the Restatement Date with respect to the transactions hereunder and
with respect to the Loans outstanding under the Existing Credit Agreement as of the Restatement
Date. The parties hereto acknowledge and agree, however, that (a) this Agreement and all other
Loan Documents executed and delivered herewith do not constitute a novation or termination of the
Credit Parties’ obligations under the Existing Credit Agreement and the other Loan Documents as in
effect prior to the Restatement Date, (b) such obligations are in all respects continuing with only
the terms being modified as provided in this Agreement and the other Loan Documents and (c) all
references in the other Loan Documents to the Credit Agreement shall be deemed to refer without
further amendment to this Agreement.




          SECTION 13.21. USA PATRIOT Act Notice. Each Lender and the General 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 each of
the Borrowers, which information includes the names and addresses of each of the Borrowers and
other information that will allow such Lender or the Administrative Agent, as applicable, to
identify each of the Borrowers in accordance with the Act.




[Rest of page left intentionally blank]






83









 








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



	 	 	 	 	 	 	 
	 	 	ZIMMER HOLDINGS, INC.,
	 	 	as a Borrower and Guarantor,
	 
	 	 	 	 	 	 
	

	 	by	 	/s/ Sam R. Leno	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:  Sam R. Leno	 	 
	

	 	 	 	Title:    EVP, Corp. Finance & Operations & CFO	 	 
	 
	 	 	 	 	 	 
	 	 	ZIMMER, INC.,
	 	 	as a Borrower and Subsidiary Guarantor,
	 
	 	 	 	 	 	 
	

	 	by	 	/s/ Sam R. Leno	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:  Sam R. Leno	 	 
	

	 	 	 	Title:    Vice
President	 	 
	 
	 	 	 	 	 	 
	 	 	ZIMMER K.K.,
	 	 	as a Borrower,
	 
	 	 	 	 	 	 
	

	 	by	 	/s/ James T. Crines	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:  James T. Crines	 	 
	

	 	 	 	Title:    Director	 	 
	 
	 	 	 	 	 	 
	 	 	ZIMMER LTD.,
	 	 	as a Borrower,
	 
	 	 	 	 	 	 
	

	 	by	 	/s/ James P. Evensen	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:  James P. Evensen	 	 
	

	 	 	 	Title:    Finance Director	 	 
	 
	 	 	 	 	 	 
	 	 	ZIMMER SWITZERLAND HOLDINGS LTD.,
	 	 	as a Borrower,
	 
	 	 	 	 	 	 
	

	 	by	 	/s/ J. Raymond Elliott	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:  J. Raymond Elliott	 	 
	

	 	 	 	Title:    President
of the Board of Directors	 	 
	 
	 	 	 	 	 	 
	 	 	ZIMMER INVESTMENT LUXEMBOURG S.C.A.,
	 	 	as a Borrower,
	 
	 	 	 	 	 	 
	

	 	by	 	/s/ Lorenzato Patrick	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:  Lorenzato Patrick	 	 
	

	 	 	 	Title:    Manager
of Zimmer Luxembourg II SARL	 	 






84









 






	 	 	 	 	 	 	 
	 	 	ZIMMER GMBH,
	 	 	as a Borrower,
	 
	 	 	 	 	 	 
	

	 	by	 	/s/ Jim Fisher	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name: James D. E. Fisher	 	 
	

	 	 	 	Title: Director of Finance	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,
	 	 	as a Lender,
	 
	 	 	 	 	 	 
	

	 	by	 	 	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:	 	 
	

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,
	 	 	individually and as General Administrative Agent,
	 
	 	 	 	 	 	 
	

	 	by	 	 	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:	 	 
	

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., TOKYO BRANCH,
	 	 	as Japanese Administrative Agent,
	 
	 	 	 	 	 	 
	

	 	by	 	 	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:	 	 
	

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	J.P. MORGAN EUROPE LIMITED, as European
	 	 	Administrative Agent,
	 
	 	 	 	 	 	 
	

	 	by	 	 	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:	 	 
	

	 	 	 	Title:	 	 






85









 






	 	 	 	 	 	 	 
	 	 	CREDIT SUISSE FIRST BOSTON,
	 	 	acting through its Cayman Islands branch,
	 	 	as a Lender,
	 
	 	 	 	 	 	 
	

	 	by	 	 	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:	 	 
	

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	

	 	by	 	 	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name:	 	 
	

	 	 	 	Title:	 	 






	 	 	 	 	 
	 	 	Subsidiary Guarantors: 
	 
	 	 	 	 
	 	 	ZIMMER INVESTMENTS, LLC,
	 
	 	 	 	 
	 	 	by       /s/
James T. Crines
	 	 	 	 	 
	

	 	 	 	Name: James T. Crines
	

	 	 	 	Title: President
	 
	 	 	 	 
	 	 	ZIMMER ORTHOPAEDIC SURGICAL PRODUCTS,
	 	 	INC.,
	 
	 	 	 	 
	 	 	by       /s/
James T. Crines
	 	 	 	 	 
	

	 	 	 	Name: James T. Crines
	

	 	 	 	Title: Vice
President & Treasurer
	 
	 	 	 	 
	 	 	ZIMMER PRODUCTION, INC.,
	 
	 	 	 	 
	 	 	by       /s/
James T. Crines
	 	 	 	 	 
	

	 	 	 	Name: James T. Crines
	

	 	 	 	Title: Vice
President & Treasurer






86









 






	 	 	 	 	 
	 	 	ZIMMER TECHNOLOGY, INC.,
	 
	 	 	 	 
	 	 	by       /s/
James T. Crines
	 	 	 	 	 
	

	 	 	 	Name: James T. Crines
	

	 	 	 	Title: Vice President &
Treasurer
	 
	 	 	 	 
	 	 	ZIMMER US, INC.,
	 
	 	 	 	 
	 	 	by       /s/
James T. Crines
	 	 	 	 	 
	

	 	 	 	Name: James T. Crines
	

	 	 	 	Title: Vice President &
Treasurer
	 
	 	 	 	 
	 	 	ZIMMER CEP USA HOLDING CO.,
	 
	 	 	 	 
	 	 	by       /s/
Sam R. Leno
	 	 	 	 	 
	

	 	 	 	Name: Sam R. Leno
	

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	ZIMMER SPINE, INC.,
	 
	 	 	 	 
	 	 	by       /s/
Sam R. Leno
	 	 	 	 	 
	

	 	 	 	Name: Sam R. Leno
	

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	ZIMMER ORTHOBIOLOGICS, INC.,
	 
	 	 	 	 
	 	 	by       /s/
Sam R. Leno
	 	 	 	 	 
	

	 	 	 	Name: Sam R. Leno
	

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	ZIMMER DENTAL, INC.,
	 
	 	 	 	 
	 	 	by       /s/
Sam R. Leno
	 	 	 	 	 
	

	 	 	 	Name: Sam R. Leno
	

	 	 	 	Title: Vice President






87









 






	 	 	 	 	 
	 	 	ZIMMER CEP USA, INC.,
	 
	 	 	 	 
	 	 	by       /s/
Sam R. Leno
	 	 	 	 	 
	

	 	 	 	Name: Sam R. Leno
	

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	ZIMMER AUSTIN, INC.,
	 
	 	 	 	 
	 	 	by       /s/
Sam R. Leno
	 	 	 	 	 
	

	 	 	 	Name: Sam R. Leno
	

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	ZIMMER TRABECULAR METAL TECHNOLOGY,
	 	 	INC.,
	 
	 	 	 	 
	 	 	by       /s/
Sam R. Leno
	 	 	 	 	 
	

	 	 	 	Name: Sam R. Leno
	

	 	 	 	Title: Vice President






88









 






	 	 	 
	

	 	COUNTERPART SIGNATURE PAGE
	

	 	TO ZIMMER HOLDINGS, INC.
	

	 	AMENDED AND RESTATED CREDIT
	

	 	AGREEMENT DATED AS OF
	

	 	MARCH 31, 2005






	 	 	 	 	 	 	 	 	 
	 

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