CHI-2816838-v10-Emerson_-_2014_Credit_Agreement






Exhibit 10.1
Execution Version




$3,500,000,000
CREDIT AGREEMENT
dated as of April 30, 2014
among
EMERSON ELECTRIC CO.,
THE LENDERS AND LC ISSUERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A., 
as the Agent,
and
CITIBANK, N.A., 
as Syndication Agent




J.P. MORGAN SECURITIES LLC 
and  
CITIGROUP GLOBAL MARKETS INC., 
as Joint Lead Arrangers and Joint Bookrunners











TABLE OF CONTENTS
	
					
	 
	 
	 
	Page
	


	 
	 
	 
	 

	 
	ARTICLE 1 DEFINITIONS .................................................................................................
	1
	


	 
	 
	 
	 

	 
	Section 1.01.
	Definitions. ...................................................................................................
	1
	


	 
	Section 1.02.
	Accounting Terms and Determinations. .......................................................
	18
	


	 
	Section 1.03.
	Types of Advances. ......................................................................................
	19
	


	 
	 
	 
	 

	 
	ARTICLE 2 THE CREDITS ................................................................................................
	19
	


	 
	 
	 
	 

	 
	Section 2.01.
	The Facility. .................................................................................................
	19
	


	 
	Section 2.02.
	Ratable Advances. .......................................................................................
	20
	


	 
	Section 2.03.
	Determination of Dollar Amounts; Required Payments. .............................
	22
	


	 
	Section 2.04.
	Swing Line Loans. .......................................................................................
	23
	


	 
	Section 2.05.
	Competitive Bid Advances. .........................................................................
	24
	


	 
	Section 2.06.
	Facility Fee; Reductions in Aggregate Commitment. ..................................
	27
	


	 
	Section 2.07.
	Minimum Amount of Each Advance. ...........................................................
	28
	


	 
	Section 2.08.
	Optional Principal Payments. .......................................................................
	28
	


	 
	Section 2.09.
	Changes in Interest Rate, etc. .......................................................................
	28
	


	 
	Section 2.10.
	Rates Applicable After Default. ...................................................................
	29
	


	 
	Section 2.11.
	Method of Payment. .....................................................................................
	29
	


	 
	Section 2.12.
	[Reserved]. ...................................................................................................
	30
	


	 
	Section 2.13.
	Noteless Agreement; Evidence of Indebtedness. .........................................
	30
	


	 
	Section 2.14.
	Telephonic Notices. .....................................................................................
	31
	


	 
	Section 2.15.
	Interest Payment Dates; Interest and Fee Basis. ..........................................
	31
	


	 
	Section 2.16.
	Notification of Advances, Interest Rates, Prepayments and Commitment
	 

	 
	 
	 Reductions. ...............................................................................................
	32
	


	 
	Section 2.17.
	Regulation D Compensation. ......................................................................
	32
	


	 
	Section 2.18.
	Non-Receipt of Funds by the Agent. ...........................................................
	32
	


	 
	Section 2.19.
	Facility LCs. ................................................................................................
	33
	


	 
	Section 2.20.
	Market Disruption. ......................................................................................
	37
	


	 
	Section 2.21.
	Judgment Currency. ....................................................................................
	38
	


	 
	Section 2.22.
	Funding Indemnification. ...........................................................................
	38
	


	 
	Section 2.23.
	Defaulting Lenders. ....................................................................................
	38
	


	 
	 
	 
	 

	 
	ARTICLE 3 CONDITIONS ...............................................................................................
	40
	


	 
	 
	 
	 

	 
	Section 3.01.
	Effectiveness. ..............................................................................................
	40
	


	 
	Section 3.02.
	Each Credit Extension. ................................................................................
	41
	


	 
	 
	 
	 

	 
	ARTICLE 4 REPRESENTATIONS AND WARRANTIES ...............................................
	41
	






i






	
					
	 
	 
	 
	 

	 
	Section 4.01.
	Corporate Existence and Power. ...................................................................
	41
	


	 
	Section 4.02.
	Corporate and Governmental Authorization; No Contravention. .................
	42
	


	 
	Section 4.03.
	Binding Effect. ..............................................................................................
	42
	


	 
	Section 4.04.
	Financial Information. ...................................................................................
	42
	


	 
	Section 4.05.
	Litigation. ......................................................................................................
	42
	


	 
	Section 4.06.
	Compliance with ERISA. .............................................................................
	42
	


	 
	Section 4.07.
	Environmental Matters. ................................................................................
	43
	


	 
	Section 4.08.
	Taxes. ............................................................................................................
	43
	


	 
	Section 4.09.
	Subsidiaries. ..................................................................................................
	43
	


	 
	Section 4.10.
	Regulatory Restrictions on Advance. ...........................................................
	43
	


	 
	Section 4.11.
	Full Disclosure. .............................................................................................
	43
	


	 
	Section 4.12.
	OFAC. ...........................................................................................................
	44
	


	 
	 
	 
	 

	 
	ARTICLE 5 COVENANTS...................................................................................................
	44
	


	 
	 
	 
	 

	 
	Section 5.01.
	Information. ...................................................................................................
	44
	


	 
	Section 5.02.
	Payment of Obligations..................................................................................
	45
	


	 
	Section 5.03.
	Maintenance of Property; Insurance. ............................................................
	45
	


	 
	Section 5.04.
	Maintenance of Existence. ............................................................................
	46
	


	 
	Section 5.05.
	Compliance with Laws. .................................................................................
	46
	


	 
	Section 5.06.
	Mergers and Sales of Assets. .........................................................................
	46
	


	 
	Section 5.07.
	Use of Proceeds. ............................................................................................
	46
	


	 
	Section 5.08.
	Negative Pledge. ...........................................................................................
	46
	


	 
	Section 5.09.
	OFAC. .........................................................................................................
	47
	


	 
	 
	 
	 

	 
	ARTICLE 6 DEFAULTS ......................................................................................................
	48
	


	 
	 
	 
	 

	 
	Section 6.01.
	Events of Default. ..........................................................................................
	48
	


	 
	Section 6.02.
	Notice of Default. ..........................................................................................
	49
	


	 
	Section 6.03.
	Acceleration; Facility LC Collateral Account. ..............................................
	49
	


	 
	 
	 
	 

	 
	ARTICLE 7 THE AGENT ....................................................................................................
	50
	


	 
	 
	 
	 

	 
	Section 7.01.
	Appointment and Authorization. ...................................................................
	50
	


	 
	Section 7.02.
	Agent and Affiliates. .....................................................................................
	50
	


	 
	Section 7.03.
	Action by Agent. ...........................................................................................
	50
	


	 
	Section 7.04.
	Consultation with Experts; Reliance. ...........................................................
	51
	


	 
	Section 7.05.
	Liability of Agent. .........................................................................................
	51
	


	 
	Section 7.06.
	Indemnification. ...........................................................................................
	51
	


	 
	Section 7.07.
	Sub-Agents and Affiliates. ............................................................................
	51
	


	 
	Section 7.08.
	Credit Decision. ............................................................................................
	52
	


	 
	Section 7.09.
	Successor Agent. ...........................................................................................
	52
	






ii






	
					
	 
	Section 7.10.
	Agent’s Fees. .................................................................................................
	52
	


	 
	Section 7.11.
	Co-Arranger; Syndication Agent; Documentation Agent; Senior Managing
	 

	 
	 
	Agent. ...........................................................................................................
	52
	


	 
	 
	 
	 

	 
	ARTICLE 8 CHANGE IN CIRCUMSTANCES ..................................................................
	52
	


	 
	 
	 
	 

	 
	Section 8.01.
	Basis for Determining Interest Rate Inadequate or Unfair............................
	53
	


	 
	Section 8.02.
	Illegality. .......................................................................................................
	53
	


	 
	Section 8.03.
	Increased Cost. ..............................................................................................
	54
	


	 
	Section 8.04.
	Taxes. ............................................................................................................
	55
	


	 
	Section 8.05.
	Base Rate Loans Substituted for Affected Eurocurrency Loans. ..................
	59
	


	 
	Section 8.06.
	Mitigation of Obligations. .............................................................................
	59
	


	 
	 
	 
	 

	 
	ARTICLE 9 MISCELLANEOUS .........................................................................................
	59
	


	 
	 
	 
	 

	 
	Section 9.01.
	Notices; Electronic Communications. ...........................................................
	60
	


	 
	Section 9.02.
	No Waivers. ...................................................................................................
	60
	


	 
	Section 9.03.
	Expenses; Indemnification. ...........................................................................
	61
	


	 
	Section 9.04.
	Sharing of Set-Offs. ......................................................................................
	61
	


	 
	Section 9.05.
	Amendments and Waivers. ...........................................................................
	62
	


	 
	Section 9.06.
	Successors and Assigns. ................................................................................
	62
	


	 
	Section 9.07.
	Designated Lenders. ......................................................................................
	64
	


	 
	Section 9.08.
	Collateral. ......................................................................................................
	65
	


	 
	Section 9.09.
	Confidentiality. ............................................................................................
	65
	


	 
	Section 9.10.
	USA PATRIOT ACT NOTIFICATION. ......................................................
	66
	


	 
	Section 9.11.
	Governing Law; Submission to Jurisdiction. ................................................
	67
	


	 
	Section 9.12.
	Waiver of Jury Trial. ......................................................................................
	67
	


	 
	Section 9.13.
	Counterparts; Integration. ..............................................................................
	67
	


	 
	Section 9.14
	No Fiduciary Duty. ........................................................................................
	67
	





SCHEDULES:
Pricing Schedule
Schedule 1.1(a)    Commitments
Schedule 1.1(b)    Eurocurrency Payment Offices




EXHIBITS:
		
	EXHIBIT A-1
	Ratable Note


		
	EXHIBIT A-2
	Swing Line Note


		
	EXHIBIT A-3
	Competitive Bid Note


		
	EXHIBIT B
	Opinion of In-House Counsel for the Borrower


		
	EXHIBIT C
	Opinion of Special Counsel for the Agent


		
	EXHIBIT D
	Assignment and Assumption Agreement



iii






		
	EXHIBIT E
	Designation Agreement


		
	EXHIBIT F
	Competitive Bid Quote Request


		
	EXHIBIT G
	Initiative for Competitive Bid Quotes


		
	EXHIBIT H
	Competitive Bid Quotes


		
	EXHIBIT I-1
	U.S. Tax Compliance Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal; Income Tax Purposes


		
	EXHIBIT I-2
	U.S. Tax Compliance Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal; Income Tax Purposes


		
	EXHIBIT I-3
	U.S. Tax Compliance Certificate (For Non-U.S. Participants that are not Partnerships for U.S. Federal; Income Tax Purposes


		
	EXHIBIT I-4
	U.S. Tax Compliance Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal; Income Tax Purposes









iv






CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April 30, 2014, is by and among EMERSON ELECTRIC CO., the LENDERS, the LC ISSUERS and JPMORGAN CHASE BANK, N.A., as Agent.  The parties hereto agree as follows:
RECITALS:
A.    The Borrower has requested the Lenders and the LC Issuers to make financial accommodations to it in the aggregate principal amount of $3,500,000,000; and
B.    The Lenders and the LC Issuers are willing to extend such financial accommodations on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Lenders, the LC Issuers and the Agent hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01.    Definitions.  The following terms, as used herein, have the following meanings:
“Absolute Rate” means, with respect to an Absolute Rate Loan made by a given Lender for the relevant Absolute Rate Interest Period, the rate of interest per annum (rounded to the nearest 1/10,000 of 1%) offered by such Lender and accepted by the Borrower pursuant to Section 2.05.
“Absolute Rate Advance” means a borrowing hereunder consisting of the aggregate amount of the several Absolute Rate Loans made by some or all of the Lenders to the Borrower at the same time in the same Agreed Currency and for the same Absolute Rate Interest Period.
“Absolute Rate Auction” means a solicitation of Competitive Bid Quotes setting forth Absolute Rates pursuant to Section 2.05.
“Absolute Rate Interest Period” means, with respect to an Absolute Rate Advance, a period of not less than 7 and not more than 180 days commencing on a Business Day selected by the Borrower pursuant to this Agreement; provided, however, that (a) if an Absolute Rate Interest Period would otherwise end on a day which is not a Business Day, such Absolute Rate Interest Period shall, subject to clause (b) below, end on the next succeeding Business Day and (b) any Absolute Rate Interest Period which would otherwise end after the Facility Termination Date shall end on the Facility Termination Date.
“Absolute Rate Loan” means a Loan which bears interest at an Absolute Rate.











“Administrative Questionnaire” means, with respect to each Lender, an administrative questionnaire in the form prepared by the Agent and submitted to the Agent (with a copy to the Borrower) duly completed by such Lender.
“Advance” means a Ratable Advance or a Competitive Bid Advance.
“Agent” means JPMCB in its capacity as administrative agent for the Lenders hereunder, and its successors in such capacity.
“Aggregate Commitment” means, at any time, the aggregate amount of the Commitments of all the Lenders at such time, after giving effect to any increases or permanent reductions in the Commitments pursuant to the terms hereof.
“Aggregate Outstanding Credit Exposure” means, at any time, the aggregate amount of the Outstanding Credit Exposures of all the Lenders.
“Agreed Currencies” means (a) Dollars, (b) so long as such currencies remain Eligible Currencies, British Pounds Sterling, Japanese Yen and Euros, and (c) any other Eligible Currency which the Borrower requests the Agent to include as an Agreed Currency hereunder and which is reasonably acceptable to all of the Lenders.  For the purposes of this definition, each of the specific currencies referred to in clause (b), above, shall mean and be deemed to refer to the lawful currency of the jurisdiction referred to in connection with such currency, e.g., “Japanese Yen” means the lawful currency of Japan.
“Agreement” means this Credit Agreement, together with all exhibits and schedules hereto, as may be amended, restated, supplemented or otherwise modified from time to time pursuant to the terms hereof.
“Alternate Base Rate”  means, for any day, a rate of interest per annum equal to the sum of (a) the highest of (i) the Prime Rate for such day, (ii) the sum of the Federal Funds Effective Rate for such day plus 1⁄2% per annum and (iii) the Eurocurrency Reference Rate for a one month interest period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, (A) for the avoidance of doubt, the Eurocurrency Reference Rate for any day shall be based upon the rate appearing on the Reuters Screen LIBOR01 (or on any successor or substitute page of such page) at approximately 11:00 a.m. London time on such day and (B) if the Agent shall have determined that such Eurocurrency Reference Rate is not available for such day, the Alternate Base Rate shall be determined based upon the higher of clauses (i) and (ii) above, plus (b) the Applicable Margin.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Reference Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Reference Rate, respectively.
“Applicable Lending Office” means, with respect to any Lender, (a) in the case of its Base Rate Loans, its Domestic Lending Office, (b) in the case of its Eurocurrency Ratable Loans, its Eurocurrency Lending Office and (c) in the case of its Competitive Bid Loans, its Competitive Bid Lending Office.





2








“Applicable Margin” means, for any day, with respect to any Base Rate Loan or Eurocurrency Ratable Loan, or with respect to the Facility Fees payable hereunder, as the case may be, the applicable rate per annum set forth on the Pricing Schedule under the caption “Base Rate Spread”, “Eurocurrency Spread” or “Facility Fee Rate”, as the case may be, based upon the Index Debt Rating on such date.
“Approximate Equivalent Amount” of any currency on any date with respect to any amount of Dollars shall mean the Equivalent Amount of such currency with respect to such amount of Dollars on, or as of, such date, rounded up to the nearest amount of such currency as reasonably determined by the Agent or a Lender, as applicable, from time to time.
“Assignee” has the meaning set forth in Section 9.06(c).
“Authorized Officer” means the Chief Executive Officer, the Treasurer or the Chief Financial Officer of the Borrower.
“Available Aggregate Commitment” means, at any time, the Aggregate Commitment at such time minus the Aggregate Outstanding Credit Exposure at such time.
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a governmental authority or instrumentality thereof unless such ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such governmental authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Base Rate Advance” means a borrowing of Base Rate Loans hereunder (a) made by the Lenders on the same Borrowing Date, or (b) into which Eurocurrency Ratable Loans are converted by the Lenders on the same date of conversion of Base Rate Loans, and consisting, in either case, of the aggregate amount of the several Base Rate Loans in the same Agreed Currency.
“Base Rate Loan” means (a) a Loan made pursuant to Section 2.02 which bears interest at the Alternate Base Rate and (b) solely for purposes of the definitions of “Applicable Margin” and the Pricing Schedule, a Swing Line Loan.
“Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.
“Borrower” means Emerson Electric Co., a Missouri corporation, and its successors.



3








“Borrower’s 2013 Form 10-K” means the Borrower’s annual report on Form 10-K for fiscal year 2013, as filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934.
“Borrowing Date” means a date on which an Advance or a Swing Line Loan is made hereunder.
“Borrowing Notice” means a Competitive Bid Borrowing Notice, a Ratable Borrowing Notice or a Swing Line Borrowing Notice, as the context may require.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, (a) when used in connection with Eurocurrency Advances, the term “Business Day” shall also exclude any day on which banks are generally not open in London for the conduct of substantially all of their commercial lending activities and, in the case of Eurocurrency Advance denominated in Euros, “Business Day” shall also exclude any day on which the TARGET2 payment system is not open for the settlement of payment in Euros and (b) when used in relation to any funding, disbursement, settlement or payment in a currency other than Dollars or Euros, the term “Business Day” shall also exclude any day on which banks are not open for foreign exchange business in the principal financial center of the country of such currency.
“Change in Law” means the occurrence after the date of this Agreement or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement of (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any governmental authority or (c) compliance by any Lender or any LC Issuer (or, for purposes of Section 8.03, by any lending office of such Lender or by such Lender’s or such LC Issuer’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 date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Citibank” means Citibank, N.A., in its individual capacity, and its successors.
“Collateral Shortfall Amount” is defined in Section 6.03.
“Commitment” means, for each Lender, the obligation of such Lender to make Ratable Loans and to refund or participate in Swing Line Loans and Facility LCs in an aggregate amount not exceeding the amount set forth opposite its name on Schedule 1.1(a) hereto, as it may be modified as a result of any assignment that has become effective pursuant to Section 9.06(c) or as otherwise modified from time to time pursuant to the terms hereof.



4








“Competitive Bid Advance” means an Absolute Rate Advance, a Eurocurrency Bid Rate Advance, or both, as the context may require.
“Competitive Bid Borrowing Notice” is defined in Section 2.05.6.
“Competitive Bid Lending Office” means, as to each Lender, its Domestic Lending Office or such other office, branch or affiliate of such Lender as it may hereafter designate as its Competitive Bid Lending Office by notice to the Borrower and the Agent; provided, that any Lender may from time to time by notice to the Borrower and the Agent designate separate Competitive Bid Lending Offices for its Eurocurrency Bid Rate Loans, on the one hand, and its Absolute Rate Loans, on the other hand, in which case all references herein to the Competitive Bid Lending Office of such Lender shall be deemed to refer to either or both of such offices, as the context may require.
“Competitive Bid Loan” means a Eurocurrency Bid Rate Loan or an Absolute Rate Loan, or both, as the case may be.
“Competitive Bid Margin” means the margin above or below the applicable Eurocurrency Reference Rate offered for a Eurocurrency Bid Rate Loan, expressed as a percentage (rounded to the nearest 1/10,000 of 1%) to be added or subtracted from such Eurocurrency Reference Rate.
“Competitive Bid Note” means any promissory note issued at the request of a Lender pursuant to Section 2.13(d) to evidence its Competitive Bid Loans substantially in the form of Exhibit A-3 hereto.
“Competitive Bid Quote” means a Competitive Bid Quote substantially in the form of Exhibit H hereto completed and delivered by a Lender to the Agent in accordance with Section 2.05.4.
“Competitive Bid Quote Request” means a Competitive Bid Quote Request substantially in the form of Exhibit F hereto completed and delivered by the Borrower to the Agent in accordance with Section 2.05.2.
“Computation Date” is defined in Section 2.03.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Subsidiary” means at any date any Subsidiary or other entity the accounts of which would be consolidated with those of the Borrower in its consolidated financial statements if such statements were prepared as of such date.
“Consolidated Total Assets” means, at any date, the total assets of the Borrower and its Consolidated Subsidiaries, determined on a consolidated basis as of such date.
“Conversion/Continuation Notice” is defined in Section 2.02.4.







5








“Credit Extension” means the making of an Advance or a Swing Line Loan or the issuance of a Facility LC hereunder.
“Credit Extension Date” means the Borrowing Date for an Advance or a Swing Line Loan or the issuance date for a Facility LC.
“Debt” of any Person means at any date, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (d) all obligations of such Person as lessee which are capitalized in accordance with generally accepted accounting principles, (e) all non-contingent obligations (and, for purposes of Section 5.08 and the definition of Material Debt, all contingent obligations) of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit or similar instrument, (f) all Debt secured by a Lien on any asset of such Person, whether or not such Debt is otherwise an obligation of such Person and (g) all Debt of others Guaranteed by such Person.
“Default” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Facility LCs or Swing Line Loans or (iii) pay over to any Specified Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or any Specified Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after written request by a Specified Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Facility LCs and Swing Line Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Specified Party’s receipt of such certification in form and substance reasonably satisfactory to it and the Agent, or (d) has, or has a Parent which has, become the subject of a Bankruptcy Event.
“Derivatives Obligations” of any Person means all obligations of such Person in respect of any rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit default 



6








swap, credit default insurance or any other similar transaction (including any option with respect to any of the foregoing transactions) or any combination of the foregoing transactions.
“Designated Lender” means, with respect to any Designating Lender, an Eligible Designee designated by it pursuant to Section 9.07(a) as a Designated Lender for purposes of this Agreement.
“Designating Lender” means, with respect to each Designated Lender, the Lender that designated such Designated Lender pursuant to Section 9.07(a).
“Dollar Amount” means, with respect to any currency at any date, (a) if such currency is Dollars, the amount of such currency or (b) otherwise, the equivalent in Dollars of such amount, determined by the Agent pursuant to Section 2.03 using the Exchange Rate with respect to such Agreed Currency at the time in effect under the provisions of such Section.
“Dollars” and “$” shall mean the lawful currency of the United States of America.
“Domestic Lending Office” means, as to each Lender, its office located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Domestic Lending Office) or such other office as such Lender may hereafter designate as its Domestic Lending Office by notice to the Borrower and the Agent.
“Effective Date” means the date this Agreement becomes effective in accordance with Section 3.01.
“Eligible Currency” means any currency other than Dollars (a) that is readily available, (b) that is freely traded, (c) in which deposits are customarily offered to banks in the London interbank market, (d) which is convertible into Dollars in the international interbank market and (e) as to which an Equivalent Amount may be readily calculated.  If, after the designation by the Lenders of any currency as an Agreed Currency, (i) currency control or other exchange regulations are imposed in the country in which such currency is issued with the result that different types of such currency are introduced, (ii) such currency is, in the determination of the Agent, no longer readily available or freely traded or (iii) in the determination of the Agent, an Equivalent Amount of such currency is not readily calculable, the Agent shall promptly notify the Lenders and the Borrower, and such currency shall no longer be an Agreed Currency until such time as all of the Lenders agree to reinstate such currency as an Agreed Currency and promptly, but in any event within five Business Days of receipt of such notice from the Agent, the Borrower shall repay all Loans in such affected currency or convert such Loans into Loans in Dollars or another Agreed Currency, subject to the other terms set forth in Article 2.
“Eligible Designee” means a special purpose corporation that (a) is organized under the laws of the United States or any state thereof, (b) is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and (c) issues (or the parent of which issues) commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s.
“Environmental Laws” means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions,



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permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to the environment, the effect of the environment on human health or emissions, discharges or releases of pollutants, contaminants, Hazardous Substances or wastes into the environment including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, Hazardous Substances or wastes or the clean‐up or other remediation thereof.
“Equivalent Amount” of any currency with respect to any amount of Dollars at any date shall mean the equivalent in such currency of such amount of Dollars, calculated on the basis of the Exchange Rate, on the date on or as of which such amount is to be determined.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute.
“ERISA Group” means the Borrower, any Subsidiary and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any Subsidiary, are treated as a single employer under Section 414 of the Internal Revenue Code.
“Euro” and/or “EUR” means the single currency unit of the Participating Member States.
“Eurocurrency Advance” means a Eurocurrency Ratable Advance, a Eurocurrency Bid Rate Advance, or both, as the context may require.
“Eurocurrency Auction” means a solicitation of Competitive Bid Quotes setting forth Competitive Bid Margins pursuant to Section 2.05.
“Eurocurrency Bid Rate” means, with respect to a Eurocurrency Bid Rate Loan made by a given Lender for the relevant Eurocurrency Interest Period, the sum of (a) the Eurocurrency Reference Rate applicable to such Interest Period, plus (b) the Competitive Bid Margin offered by such Lender and accepted by the Borrower.
“Eurocurrency Bid Rate Advance” means a borrowing hereunder consisting of the aggregate amount of the several Eurocurrency Bid Rate Loans made by some or all of the Lenders to the Borrower at the same time in the same Agreed Currency and for the same Eurocurrency Interest Period.
“Eurocurrency Bid Rate Loan” means a Loan which bears interest at a Eurocurrency Bid Rate.
“Eurocurrency Interest Period” means, with respect to a Eurocurrency Advance, a period of one, two, three or six months commencing on a Business Day selected by the Borrower in a Borrowing Notice or a Conversion/Continuation Notice and ending on the day which corresponds numerically to such date one, two, three or six months thereafter, as the Borrower may elect in such notice; provided, however, that (a) if the first day of such Interest Period is the last Business Day of a calendar month or if there is no such numerically corresponding day in such next, second, third or sixth succeeding month, such Eurocurrency Interest Period shall, 



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subject to clause (c) below, end on the last Business Day of such next, second, third or sixth succeeding month, (b) if a Eurocurrency Interest Period would otherwise end on a day which is not a Business Day, such Eurocurrency Interest Period shall, subject to clause (c) below, end on the next succeeding Business Day unless said next succeeding Business Day falls in a new calendar month, in which case such Eurocurrency Interest Period shall end on the immediately preceding Business Day and (c) any Eurocurrency Interest Period which would otherwise end after the Facility Termination Date shall end on the Facility Termination Date.
“Eurocurrency Lending Office” means, as to each Lender, its office, branch or affiliate located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Eurocurrency Lending Office) or such other office, branch or affiliate of such Lender as it may hereafter designate as its Eurocurrency Lending Office by notice to the Borrower and the Agent.
“Eurocurrency Loan” means a Eurocurrency Ratable Loan or a Eurocurrency Bid Rate Loan, or both, as the context may require.
“Eurocurrency Payment Office” of the Agent shall mean, for each of the Agreed Currencies, the office, branch, affiliate or correspondent bank of the Agent specified as the “Eurocurrency Payment Office” for such currency on Schedule 1.1(b) hereto or such other office, branch, affiliate or correspondent bank of the Agent as it may from time to time specify to the Borrower and each Lender as its Eurocurrency Payment Office.
“Eurocurrency Ratable Advance” means a borrowing hereunder (a) made by the Lenders on the same Borrowing Date, or (b) converted or continued by the Lenders on the same date of conversion or continuation, consisting, in either case, of the aggregate amount of the several Eurocurrency Ratable Loans in the same Agreed Currency and for the same Eurocurrency Interest Period.
“Eurocurrency Ratable Loan” means a loan requested by the Borrower and made pursuant to Section 2.02 which bears interest at a Eurocurrency Rate.
“Eurocurrency Rate” means, with respect to a Eurocurrency Ratable Advance for the relevant Eurocurrency Interest Period, the sum of (a) the Eurocurrency Reference Rate applicable to such Eurocurrency Interest Period, plus (b) the Applicable Margin.
“Eurocurrency Reference Rate” means, with respect to any Eurocurrency Advance and for any applicable Eurocurrency Interest Period, the London interbank offered rate administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for the applicable currency for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall be agreed by the Agent and the Borrower from time to time (the “Screen Rate”) at approximately 11:00 a.m., London time, on the Quotation Day for such Eurocurrency Interest Period; provided that, if the Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement; and provided further that if a Screen Rate shall not be 



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available at the applicable time for a period equal in length to such Eurocurrency Interest Period, then the Eurocurrency Reference Rate shall be the Interpolated Rate at such time; and provided further that, if none of the foregoing rates are available to the Agent, the applicable Eurocurrency Reference Rate for the relevant Eurocurrency Interest Period shall instead be the rate determined by the Agent to be the rate at which JPMCB or one of its affiliate banks offers to place deposits in the applicable Agreed Currency with first-class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Eurocurrency Interest Period, in the approximate amount of JPMCB’s relevant Eurocurrency Advance requested by the Borrower, and in each case having a maturity equal to such Eurocurrency Interest Period.
“Event of Default” has the meaning set forth in Section 6.01.
“Exchange Rate” means on any day, for purposes of determining the Dollar Amount of any currency other than Dollars, the rate at which such currency may be exchanged into Dollars at 11:00 a.m. London time on such day on the Reuters Currency pages, if available, for such currency.  In the event that such rate does not appear on any Reuters Currency pages, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Agent and the Borrower, or, in the absence of such an agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about such time as the Agent shall elect after determining that such rates shall be the basis for determining the Exchange Rate, on such date for the purchase of Dollars for delivery two Business Days later; provided that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Agent may use any commercially reasonable method it deems appropriate to determine such rate.
 “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 8.06) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 8.04, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 8.04(g) and (d) any withholding Taxes imposed under FATCA.
“Existing Agreement” means the $2,750,000,000 Credit Agreement, dated as of December 16, 2010, among the Borrower, the financial institutions party thereto and JPMCB, as Agent.





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“Facility Fee” is defined in Section 2.06.
“Facility LC” is defined in Section 2.19.1.
“Facility LC Application” is defined in Section 2.19.3.
“Facility LC Collateral Account” is defined in Section 2.19.11.
“Facility Termination Date” means April 30, 2019 or any earlier date on which the Aggregate Commitment is reduced to zero pursuant to Section 2.06 or terminated pursuant to Section 6.03, or, if any such day is not a Business Day, then the next preceding Business Day.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any law implementing an intergovernmental agreement with respect thereto.
“Federal Funds Effective Rate” means, for any day, an interest rate per annum equal to the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent in its sole discretion.
“Fixed Rate” means any Eurocurrency Rate, any Eurocurrency Bid Rate or any Absolute Rate.
“Fixed Rate Advance” means an Absolute Rate Advance, a Eurocurrency Bid Rate Advance, a Eurocurrency Ratable Advance, or any or all of the foregoing, as the context may require.
“Fixed Rate Loan” means an Absolute Rate Loan, a Eurocurrency Bid Rate Loan, a Eurocurrency Ratable Loan, or any or all of the foregoing, as the context may require
“Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
“Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt (whether arising by virtue of partnership arrangements, by agreement to keep‐well, to 





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purchase assets, goods, securities or services, to take‐or‐pay, or to maintain financial statement conditions or otherwise) or (b) entered into for the purpose of assuring in any other manner the holder of such Debt of the payment thereof or to protect such holder against loss in respect thereof (in whole or in part), provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.  The term “Guarantee” used as a verb has a corresponding meaning.
“Hazardous Substances” means any toxic, radioactive, caustic or otherwise hazardous substance, including petroleum, its derivatives, by‐products and other hydrocarbons, or any substance having any constituent elements displaying any of the foregoing characteristics.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the meaning set forth in Section 9.03(b).
“Index Debt” means the senior, unsecured, non-credit enhanced, long-term indebtedness for borrowed money of the Borrower.
“Index Debt Rating” means, as of any date, the rating that has been most recently announced by S&P and Moody’s for the Index Debt of the Borrower.  For purposes of the foregoing, (i) if either Moody’s or S&P shall not have in effect a rating for the Index Debt (other than by reason of the circumstances referred to in the last sentence of this definition), then such rating agency shall be deemed to have established a rating for the Index Debt in the lowest level in the Pricing Schedule; (ii) if the ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall fall within different levels set forth in the Pricing Schedule, the Applicable Margin shall be based on the higher of the two ratings unless the ratings differ by more than one level, in which case the governing rating shall be the rating next below the higher of the two; and (iii) if the ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency.  If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the Agent shall negotiate in good faith the terms of an amendment to this definition to reflect such changed rating system or the non-availability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Margin shall be determined by reference to the rating most recently in effect prior to such change or cessation.
“Interest Period” means a Eurocurrency Interest Period or an Absolute Rate Interest Period.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, or any successor statute.
“Interpolated Rate” means, at any time, for any Eurocurrency Interest Period, the rate per annum determined by the Agent to be equal to the rate that results from interpolating on a linear





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 basis between: (a) the applicable Screen Rate for the longest period (for which the applicable Screen Rate is available for the applicable currency) that is shorter than the impacted Eurocurrency Interest Period and (b) the applicable Screen Rate for the shortest period (for which such Screen Rate is available for the applicable currency) that exceeds the impacted Eurocurrency Interest Period, in each case, at such time.
“Invitation for Competitive Bid Quotes” means an Invitation for Competitive Bid Quotes substantially in the form of Exhibit G hereto, completed and delivered by the Agent to the Lenders in accordance with Section 2.05.3.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Facility LC, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“JPMCB” means JPMorgan Chase Bank, N.A., in its individual capacity, and its successors.
“LC Commitment” means the obligation of each LC Issuer to issue Facility LCs in accordance with Section 2.19.1 up to a maximum aggregate amount of outstanding LC Obligations of $600,000,000.  As of the Effective Date (a) the LC Commitment of JPMCB is $300,000,000 and (b) the LC Commitment of Citibank is $300,000,000.
“LC Fee” is defined in Section 2.19.4.
“LC Issuer” means JPMCB (or any subsidiary or affiliate of JPMCB designated by JPMCB), Citibank (or any subsidiary or affiliate of Citibank designated by Citibank), or any other Lender that agrees to be an issuer of Facility LCs hereunder, as selected by the Borrower from time to time, in its capacity as an issuer of Facility LCs hereunder.
“LC Obligations” means, at any time, the sum, without duplication, of (a) the aggregate undrawn stated amount of all Facility LCs outstanding at such time plus (b) the aggregate unpaid amount at such time of all Reimbursement Obligations.  The LC Obligations of any Lender at any time shall be its Pro Rata Share of the total LC Obligations at such time.
“LC Payment Date” is defined in Section 2.19.5.
“Lender” means each Person listed and identified as such on the signature pages of this Agreement, each Assignee which becomes a Lender pursuant to Section 8.06 or 9.06(c), and their respective successors.  Unless otherwise specified or the context requires otherwise, the term “Lenders” includes the Swing Line Lenders.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, or any other type of preferential arrangement that has the practical effect of creating a security interest, in respect of such asset.  For the purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset





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which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.
“Loan” means, (a) with respect to any Lender, any Ratable Loan made by such Lender pursuant to Section 2.02 (or any conversion or continuation thereof) or Competitive Bid Loan made by such Lender pursuant to Section 2.05 and, (b) with respect to any Swing Line Lender, any Swing Line Loan made by it pursuant to Section 2.04.
“Loan Documents” means this Agreement, any Notes issued pursuant to Section 2.13, and the Facility LC Applications.
“Material Adverse Effect” means (a) a material adverse effect on the business, financial position or results of operations of the Borrower and its Consolidated Subsidiaries, considered as a whole, or (b) a material adverse effect on the rights and remedies of the Lenders under this Agreement and any Notes.
“Material Debt” means Debt (other than obligations arising under this Agreement or any Note) of the Borrower and/or one or more of its Significant Subsidiaries, arising in one or more related or unrelated transactions, in an aggregate principal or face amount exceeding $200,000,000.
“Material Plan” means at any time a Plan having aggregate Unfunded Liabilities in excess of $200,000,000.
“Modify” and “Modification” are defined in Section 2.19.1.
“Moody’s” means Moody’s Investors Service, Inc.
“Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such five year period.
“Notes” means, collectively, all of the Competitive Bid Notes, Ratable Notes and Swing Line Notes which may be issued hereunder, and “Note” means any one of the Notes.
“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Obligations, all accrued and unpaid fees and all expenses, reimbursements, indemnifications and other obligations of the Borrower to the Lenders or to any Lender, the Agent or any indemnified party arising under this Agreement, any Note, the Facility LC Applications or any other Loan Document.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, 



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become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are imposed with respect to an assignment (other than an assignment made pursuant to Section 8.06).
“Outstanding Credit Exposure” means, as to any Lender at any time, the sum of (a) the aggregate principal amount of its Ratable Loans and Competitive Bid Loans outstanding at such time, plus (b) an amount equal to its Pro Rata Share of the aggregate principal amount of Swing Line Loans outstanding at such time, plus (c) an amount equal to its Pro Rata Share of the LC Obligations at such time.
“Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a Subsidiary.
“Participant” has the meaning set forth in Section 9.06(b).
“Participating Member State” means any member state of the European Communities that adopts or has adopted the Euro as its lawful currency in accordance with the legislation of the European Community relating to the Economic and Monetary Union.
“Participant Register” has the meaning set forth in Section 9.06(b).
“Payment Date” means each March 31, June 30, September 30 and December 31.
“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
“Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code and either (a) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (b) has at any time within the preceding five years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time a member of the ERISA Group.
“Pricing Schedule” means the Schedule attached hereto and identified as such.





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“Prime Rate” means a rate per annum equal to the prime rate of interest publicly announced from time to time by JPMCB (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes.
“Pro Rata Share” means, with respect to a Lender, a portion equal to a fraction the numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate Commitment; provided, that for the purposes of determining a Swing Line Lender’s Pro Rata Share of the Swing Line Commitment (but not any Swing Line Obligations) pursuant to Section 2.04, “Pro Rata Share” means, with respect to a Swing Line Lender, a portion equal to a fraction the numerator of which is such Swing Line Lender’s Swing Line Commitment and the denominator of which is the aggregate Swing Line Commitments of all Swing Line Lenders; provided further, that pursuant to, and as provided in, Section 2.23 for so long as a Defaulting Lender shall exist, “Pro Rata Share” shall be calculated disregarding any Defaulting Lender’s Commitment.
“Quotation Day” means, with respect to any Eurocurrency Advance and any Eurocurrency Interest Period, (i) if the currency is Euro, the day two TARGET Days before the first day of such Eurocurrency Interest Period and (ii) for any other currency, the day two Business Days prior to the commencement of such Eurocurrency Interest period (or such day as the Agent shall reasonably determine is the day on which it is market practice in the relevant interbank market for prime banks to give quotations for deposits in the currency of such Eurocurrency Advance for delivery on the first day of such Eurocurrency Interest Period).
“Ratable Advance” means a Base Rate Advance or a Eurocurrency Ratable Advance.
“Ratable Borrowing Notice” is defined in Section 2.02.3.
“Ratable Loan” means a Base Rate Loan or a Eurocurrency Ratable Loan.
“Ratable Note” means any promissory note issued at the request of a Lender pursuant to Section 2.13(d) to evidence its Ratable Loans in substantially the form of Exhibit A-1 hereto.
“Recipient” means (a) the Agent, (b) any Lender and (c) any LC Issuer, as applicable.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Reimbursement Obligations” means, at any time, all obligations of the Borrower under Section 2.19.6 to reimburse the LC Issuers for amounts paid by the LC Issuers in respect of any one or more drawings under Facility LCs.
“Related Parties” means, with respect to any specified Person, such Person’s affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s affiliates.
“Required Lenders” means at any time, subject to Section 2.23(b), Lenders in the aggregate having more than 50% of the Aggregate Commitment or, if the Aggregate 





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Commitment shall have been terminated, Lenders in the aggregate holding more than 50% of the Aggregate Outstanding Credit Exposure.
“Reserve Requirement” means, with respect to an Interest Period, the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed under Regulation D on Eurocurrency liabilities.
“S&P” means Standard & Poor’s Financial Services LLC.
“Sanctioned Country” means a country that is the subject to comprehensive territorial sanctions administered by OFAC (currently Cuba, Iran, North Korea, Sudan and Syria).
“Screen Rate” has the meaning set forth in the definition of Eurocurrency Reference Rate.
“SDN List” means the Specially Designated Nationals and Blocked Persons List maintained by OFAC.
“Significant Subsidiary” means at any time a Subsidiary of the Borrower which as of such time meets the definition of a “significant subsidiary” contained as of the Effective Date in Regulation S-X of the Securities and Exchange Commission.
“Specified Party” means the Agent, any LC Issuer, any Swing Line Lender or any other Lender.
“Subsidiary” means, as to any Person, any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person; unless otherwise specified, “Subsidiary” means a Subsidiary of the Borrower.
“Swing Line Borrowing Notice” is defined in Section 2.04.2.
“Swing Line Commitment” means the obligation of the Swing Line Lenders to make Swing Line Loans up to a maximum aggregate principal amount of $400,000,000 at any one time outstanding.  As of the Effective Date (a) the Swing Line Commitment of JPMCB is $200,000,000 and (b) the Swing Line Commitment of Citibank is $200,000,000.
“Swing Line Lender” means each of JPMCB, Citibank and each other Lender which may succeed to any of their rights and obligations as Swing Line Lenders pursuant to the terms of this Agreement.
“Swing Line Loan” means a Loan made available to the Borrower by a Swing Line Lender pursuant to Section 2.04.
“Swing Line Note” means any promissory note issued at the request of a Swing Line Lender pursuant to Section 2.13(d) to evidence its Swing Line Loans substantially in the form of Exhibit A-2 hereto.



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“Swing Line Obligations” means, at any time, the aggregate principal amount of all Swing Line Loans outstanding at such time.  The Swing Line Obligations of any Lender at any time shall be its Pro Rata Share of the total Swing Line Obligations at such time.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Agent to be a suitable replacement) for the settlement of payments in Euro. 
“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any governmental authority, including any interest, additions to tax or penalties applicable thereto.
“Type” means, with respect to any Advance, its nature as a Base Rate Advance, an Absolute Rate Advance, a Eurocurrency Bid Rate Advance or a Eurocurrency Ratable Advance.
“UCP” means, with respect to any Facility LC, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by which (i) the value of all benefit liabilities under such Plan, determined on a plan termination basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions), all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.
“United States” means the United States of America, including the States and the District of Columbia, but excluding its territories and possessions.
“U.S. Borrower” means any Borrower that is a U.S. Person.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in paragraph (g) of Section 8.04.
Section 1.02.    Accounting Terms and Determinations.  Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with generally accepted accounting principles as in effect from time to 



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time, applied on a basis consistent (except for changes agreed to by the Borrower’s independent public accountants) with the most recent audited consolidated financial statements of the Borrower and its Consolidated Subsidiaries delivered to the Lenders; provided that, if the Borrower notifies the Agent that the Borrower wishes to amend any covenant in Article 5 to eliminate the effect of any change in generally accepted accounting principles on the operation of such covenant (or if the Agent notifies the Borrower that the Required Lenders wish to amend Article 5 for such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis of generally accepted accounting principles in effect immediately before the relevant change in generally accepted accounting principles became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required Lenders.
Section 1.03.    Types of Advances.  The term “Advance” denotes the aggregation of Loans of one or more Lenders made or to be made to the Borrower pursuant to Article 2 on a single date in a single Agreed Currency and for a single initial Interest Period.  Advances are classified for purposes of this Agreement either by reference to the pricing of Loans comprising such Advance (e.g., a “Fixed Rate Advance” is a Eurocurrency Ratable Advance, a Eurocurrency Bid Rate Advance or an Absolute Rate Advance) or by reference to the provisions of Article 2 under which participation therein is determined (i.e., a “Ratable Advance” is an Advance under Section 2.02 in which all Lenders participate in proportion to their Commitments, while a “Competitive Bid Advance” is an Advance under Section 2.05 in which the Lenders participants are determined on the basis of their bids in accordance therewith).
 
ARTICLE 2
 
THE CREDITS


Section 2.01.    The Facility.


2.01.1    Description of Facility.  The Lenders hereby establish in favor of the Borrower a revolving credit facility pursuant to which, and upon the terms and subject to the conditions herein set forth:
(a)    each Lender severally agrees to make Ratable Loans to the Borrower in accordance with Section 2.02;
(b)    each Lender severally agrees to participate in Facility LCs issued upon the request of the Borrower, and each LC Issuer severally agrees to issue Facility LCs hereunder in accordance with Section 2.19;
(c)    each Swing Line Lender severally agrees to make Swing Line Loans to the Borrower in accordance with Section 2.04; and
(d)    each Lender may, in its sole discretion, make bids to make Competitive Bid Loans to the Borrower in accordance with Section 2.05.
2.01.2    Amount of Facility; Increase of Aggregate Commitment.  The Borrower may, at its option, on one or more occasions, at any time on or prior to the Facility Termination



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Date, seek to increase the Aggregate Commitment by up to an aggregate amount which is no greater than $500,000,000 upon at least three (3) Business Days’ prior notice to the Agent, which notice shall specify the amount of any such increase (which shall be in an amount not less than $50,000,000) and shall be delivered at a time when no Default has occurred and is continuing. The Borrower may, after giving such notice, offer all or any portion of the increase in the Aggregate Commitment on either a ratable basis to the Lenders or a non pro-rata basis to one or more Lenders and/or to other banks or entities reasonably acceptable to the Agent (any Person that accepts such offer, whether or not a Lender at such time, an “Increasing Lender”, and any Increasing Lender that is not a Lender at the time of such acceptance, a “New Lender”).  Any Lender may, in its sole discretion, accept or reject any offer from the Borrower to increase its Commitment.  No increase in the Aggregate Commitment shall become effective until each Increasing Lender shall have delivered to the Agent a document in form reasonably satisfactory to the Agent pursuant to which such Increasing Lender shall state the amount of its Commitment and each New Lender shall assume and accept the obligations and rights of a Lender hereunder, and the Borrower shall have accepted such incremental Commitments.  Each Increasing Lender shall accept an assignment from the existing Lenders, and each existing Lender shall make a ratable assignment to each Increasing Lender of an interest in each then outstanding Ratable Advance and a participation in each outstanding Swing Line Loan and Facility LC such that, after giving effect thereto, all Ratable Advances and participations in all Facility LCs and Swing Line Loans are held ratably by the Lenders (including the Increasing Lenders) in proportion to their respective Commitments.  Assignments pursuant to the preceding sentence shall be automatic after giving effect to each increase in the Aggregate Commitment and shall be made in exchange for the principal amount assigned plus accrued and unpaid interest and Facility Fees and LC Fees.  The Borrower shall make any payments under Section 2.22 resulting from such assignments.
2.01.3    Availability of Facility.  Subject to the terms of this Agreement, the facility is available from the Effective Date to the Facility Termination Date, and the Borrower may borrow and reborrow at any time prior to the Facility Termination Date and may repay at any time on or prior to the Facility Termination Date.  The Commitments to extend credit hereunder shall expire on the Facility Termination Date.
2.01.4    Repayment of Facility.  All outstanding Loans and all other accrued and unpaid Obligations shall be paid in full on the Facility Termination Date.
Section 2.02.    Ratable Advances.
2.02.1    Ratable Advances.  Each Lender severally agrees, on the terms and conditions set forth in this Agreement, to make loans to the Borrower in Agreed Currencies from time to time from and including the date of this Agreement and prior to the Facility Termination Date in Dollar Amounts not to exceed in the aggregate at any one time outstanding its Pro Rata Share of the Available Aggregate Commitment existing at such time; provided, that all Base Rate Loans shall be made in Dollars.  Each Ratable Advance hereunder shall consist of Loans made by the several Lenders ratably in proportion to the ratio that their respective Commitments bear to the Aggregate Commitment.





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2.02.2    Types of Advances.  The Ratable Advances may be Base Rate Advances or Eurocurrency Advances, or a combination thereof, selected by the Borrower in accordance with Sections 2.02.3 and 2.02.4.
2.02.3    Method of Selecting Types and Interest Periods for New Advances.  The Borrower shall select the Type of Ratable Advance and, in the case of each Eurocurrency Advance, the Interest Period and Agreed Currency applicable thereto from time to time.  The Borrower shall give the Agent irrevocable notice (a “Ratable Borrowing Notice”) not later than 10:00 a.m. (Chicago time) on (x) the Borrowing Date of each Base Rate Advance which is a Ratable Advance, and (y) the third Business Day before the Borrowing Date for each Eurocurrency Advance, specifying:
(a)    the Borrowing Date of such Ratable Advance, which shall be a Business Day,
(b)    the aggregate amount of such Ratable Advance,
(c)    the Type of such Ratable Advance, and
(d)    in the case of each Eurocurrency Advance, the Interest Period and Agreed Currency applicable thereto.
On each Borrowing Date, each Lender shall make available its Ratable Loan or Ratable Loans (i) if such Ratable Loan is denominated in Dollars, not later than 12:00 noon (Chicago time) in funds immediately available to the Agent at its address specified pursuant to Section 9.01 and (ii) if such Ratable Loan is denominated in an Agreed Currency other than Dollars, no later than 12:00 noon, local time, in the city of the Agent’s Eurocurrency Payment Office for such currency, in such funds as may then be customary for the settlement of international transactions in such currency in the city of and at the address of the Agent’s Eurocurrency Payment Office for such currency.  Unless the Agent determines that any applicable condition specified in Article 3 has not been satisfied, the Agent will make the funds so received from the Lenders available to the Borrower at the Agent’s aforesaid address.
2.02.4    Conversion and Continuation of Outstanding Advances.  Base Rate Advances shall continue as Base Rate Advances unless and until such Base Rate Advances are converted into Eurocurrency Ratable Advances pursuant to this Section 2.02.4 or are prepaid in accordance with Section 2.08.  Each Eurocurrency Ratable Advance shall continue as a Eurocurrency Ratable Advance until the end of the then applicable Eurocurrency Interest Period therefor, at which time:
(a)    each such Eurocurrency Ratable Advance denominated in Dollars shall be automatically converted into a Base Rate Advance unless (x) such Eurocurrency Ratable Advance is or was prepaid in accordance with Section 2.08 or (y) the Borrower shall have given the Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Eurocurrency Interest Period, such Eurocurrency Ratable Advance continue as a Eurocurrency Ratable Advance for the same or another Eurocurrency Interest Period; and







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(b)    each such Eurocurrency Ratable Advance denominated in an Agreed Currency other than Dollars shall continue as a Eurocurrency Ratable Advance in the same Agreed Currency with a Eurocurrency Interest Period of one month unless (x) such Eurocurrency Ratable Advance is or was prepaid in accordance with Section 2.08 or (y) the Borrower shall have given the Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Eurocurrency Interest Period, such Eurocurrency Ratable Advance continue as a Eurocurrency Ratable Advance for the same or another Eurocurrency Interest Period.
Subject to the terms of Section 2.07, the Borrower may elect from time to time to convert all or any part of a Ratable Advance of any Type into any other Type or Types of Advances denominated in the same or any other Agreed Currency; provided that any conversion of any Eurocurrency Ratable Advance made on any day other than the last day of the Eurocurrency Interest Period applicable thereto shall be subject to Section 2.22.  The Borrower shall give the Agent irrevocable notice (a “Conversion/Continuation Notice”) of each conversion of a Eurocurrency Ratable Advance or continuation of a Eurocurrency Ratable Advance not later than 10:00 a.m. (Chicago time) at least one Business Day, in the case of a conversion into a Base Rate Advance or three Business Days, in the case of a conversion into or continuation of a Eurocurrency Ratable Advance, prior to the date of the requested conversion or continuation, specifying:
(i)    the requested date, which shall be a Business Day, of such conversion or continuation,
(ii)    the aggregate amount and Type of the Ratable Advance which is to be converted or continued, and
(iii)    the Agreed Currency of any Ratable Advance which is to be converted into or continued as a Eurocurrency Ratable Advance and the Eurocurrency Interest Period applicable thereto.
A Conversion/Continuation Notice may, if it so specifies, apply to only a portion of the aggregate principal amount of the relevant Advances; provided that (A) such portion is allocated ratably among the Loans comprising such Advance and (B) the portion to which such Conversion/Continuation Notice applies, and the remaining portion to which it does not apply, are each at least $10,000,000 (or, in the case of Loans that are Eurocurrency Ratable Loans, the Approximate Equivalent Amount if denominated in an Agreed Currency other than Dollars), in each case unless such portion is comprised of Base Rate Loans.
Section 2.03.    Determination of Dollar Amounts; Required Payments.  The Agent will determine the Dollar Amount of:
(a)    each Credit Exposure denominated in an Agreed Currency other than Dollars as of the date three Business Days prior to (i) in the case of an Advance, the Borrowing Date or, if applicable, date of conversion/continuation of such Advance or (ii)  in the case of a Facility LC, the date of issuance thereof, and





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(b)    all Outstanding Credit Exposures on and as of the last Business Day of each quarter and on any other Business Day elected by the Agent in its discretion or upon instruction by the Required Lenders.
Each day upon or as of which the Agent determines Dollar Amounts as described in the preceding clauses (a) and (b) is herein described as a “Computation Date” with respect to each Credit Extension for which a Dollar Amount is determined on or as of such day.  If at any time the Dollar Amount of the Aggregate Outstanding Credit Exposure (calculated, with respect to those  Credit Extensions denominated in Agreed Currencies other than Dollars, as of the most recent Computation Date with respect to each such Credit Extension) exceeds 105% of the Aggregate Commitment, the Borrower shall immediately repay Ratable Advances in an aggregate principal amount sufficient to eliminate any such excess.
Section 2.04.    Swing Line Loans.
2.04.1.    Amount of Swing Line Loans.  Each Swing Line Lender severally agrees, on the terms and conditions set forth in this Agreement, to make Swing Line Loans in Dollars to the Borrower from time to time from and including the date of this Agreement and prior to the Facility Termination Date in an aggregate principal amount not to exceed its Pro Rata Share of the Swing Line Commitment, provided, that the outstanding principal amount of all Swing Line Loans shall not at any time exceed the Swing Line Commitment.  Subject to the terms of this Agreement, the Borrower may borrow and reborrow Swing Line Loans at any time prior to the Facility Termination Date and may repay Swing Line Loans at any time on or prior to the Facility Termination Date.
2.04.2.    Borrowing Notice.  The Borrower shall deliver to the Agent and the Swing Line Lenders irrevocable notice (a “Swing Line Borrowing Notice”) not later than 2:00 p.m. (Chicago time) on the Borrowing Date of each Swing Line Loan, specifying (a) the applicable Borrowing Date (which date shall be a Business Day), and (b) the aggregate amount of the requested Swing Line Loans which shall be an amount not less than $100,000.  The Swing Line Loans shall bear interest at the Alternate Base Rate.
2.04.3.    Making of Swing Line Loans.  Promptly after receipt of a Swing Line Borrowing Notice, the Agent shall notify each Lender by fax, or other similar form of transmission, of the requested Swing Line Loans.  Not later than 4:00 p.m. (Chicago time) on the applicable Borrowing Date, each Swing Line Lender shall make available its Swing Line Loan, in funds immediately available in Chicago, to the Agent at its address specified pursuant to Section 9.01.  The Agent will promptly make the funds so received from the Swing Line Lenders available to the Borrower on the Borrowing Date at the Agent’s aforesaid address.
2.04.4.    Repayment of Swing Line Loans.  Each Swing Line Loan shall be paid in full by the Borrower on or before the fifth (5th) Business Day after the Borrowing Date for such Swing Line Loan.  If not sooner paid by the Borrower, each Swing Line Lender (a) may at any time in its sole discretion with respect to any outstanding Swing Line Loan made by such Swing Line Lender, or (b) shall on the fifth (5th) Business Day after the Borrowing Date of any Swing Line Loan made by such Swing Line Lender, require each Lender (including the Swing Line Lenders) to make a Ratable Loan in the amount of such Lender’s Pro Rata Share of such 



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Swing Line Loan (including, without limitation, any interest accrued and unpaid thereon), for the purpose of repaying such Swing Line Loan.  Not later than noon (Chicago time) on the date of any notice received pursuant to this Section 2.04.4 prior to 10:00 a.m. (Chicago time) on such day (or not later than noon (Chicago time) on the next Business Day in the case of any such notice received after 10:00 a.m. (Chicago time)), each Lender shall make available its required Ratable Loan, in funds immediately available to the Agent at its address specified pursuant to Section 9.01.  Ratable Loans made pursuant to this Section 2.04.4 shall initially be Base Rate Loans and thereafter may be continued as Base Rate Loans or converted into Euro-currency Loans in the manner provided in Section 2.02.4 and subject to the other conditions and limitations set forth in this Article 2.  Unless a Lender shall have notified the applicable Swing Line Lender, prior to the making any Swing Line Loan by such Swing Line Lender, that any applicable condition precedent set forth in Sections 3.01 or 3.02 had not then been satisfied, each Lender’s obligation to make Ratable Loans pursuant to this Section 2.04.4 to repay Swing Line Loans shall be unconditional, continuing, irrevocable and absolute and shall not be affected by any circumstances, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Agent, any Swing Line Lender or any other Person, (ii) the occurrence or continuance of a Default, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, or (iv) any other circumstances, happening or event whatsoever.  In the event that any Lender fails to make payment to the Agent of any amount due under this Section 2.04.4, the Agent shall be entitled to receive, retain and apply against such obligation the principal and interest otherwise payable to such Lender hereunder until the Agent receives such payment from such Lender or such obligation is otherwise fully satisfied.  In addition to the foregoing, if for any reason any Lender fails to make payment to the Agent of any amount due under this Section 2.04.4, such Lender shall be deemed, at the option of the Agent, to have unconditionally and irrevocably purchased from the Swing Line Lenders, without recourse or warranty, an undivided interest and participation in the applicable Swing Line Loan in the amount of such Ratable Loan, and such interest and participation may be recovered from such Lender together with interest thereon at the Federal Funds Effective Rate for each day during the period commencing on the date of demand and ending on the date such amount is received.
Section 2.05.    Competitive Bid Advances.
2.05.1.  Competitive Bid Option.  In addition to Ratable Advances pursuant to Section 2.02 and Swing Line Loans pursuant to Section 2.04, but subject to the terms and conditions of this Agreement, the Borrower may, as set forth in this Section 2.05, request the Lenders, prior to the Facility Termination Date, to make offers to make Competitive Bid Advances to the Borrower.  Each Lender may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section 2.05.  Each Competitive Bid Advance shall be repaid by the Borrower on the last day of the Interest Period applicable thereto.
2.05.2.  Competitive Bid Quote Request.  When the Borrower wishes to request offers to make Competitive Bid Loans under this Section 2.05, it shall transmit to the Agent by telecopy a Competitive Bid Quote Request so as to be received no later than (a) 10:00 a.m. (Chicago time) at least five Business Days prior to the Borrowing Date proposed therein, in the case of a Eurocurrency Auction, or (b) 9:00 a.m. (Chicago time) at least one Business Day prior 





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to the Borrowing Date proposed therein, in the case of an Absolute Rate Auction (or, in either case, such other time or date as the Borrower and the Agent shall have mutually agreed and shall have notified to the Lenders not later than the date of the Competitive Bid Quote Request for the first Eurocurrency Auction or Absolute Rate Auction for which such change is to be effective), specifying:
(i)    the proposed Borrowing Date, which shall be a Business Day, for such Competitive Bid Advance,
(ii)    the aggregate principal amount of such Competitive Bid Advance, which shall be $10,000,000 or a larger multiple of $5,000,000,
(iii)    whether the Competitive Bid Quotes requested are to set forth a Competitive Bid Margin or an Absolute Rate, or both, and
(iv)    the Interest Period applicable thereto.
The Borrower may request offers to make Competitive Bid Loans for more than one Interest Period and for a Eurocurrency Auction and an Absolute Rate Auction in a single Competitive Bid Quote Request.  No Competitive Bid Quote Request shall be given within five (5) Business Days (or such other number of days as the Borrower and the Agent may agree) of any other Competitive Bid Quote Request.  A Competitive Bid Quote Request that does not conform substantially to the format of Exhibit F hereto may be rejected, and the Agent shall promptly notify the Borrower of such rejection by facsimile.
2.05.3.    Invitation for Competitive Bid Quotes.  Promptly and in any event before the close of business on the same Business Day of receipt of a Competitive Bid Quote Request that is not rejected pursuant to Section 2.05.2, the Agent shall send to each of the Lenders by telecopy an Invitation for Competitive Bid Quotes substantially in the form of Exhibit G hereto, which shall constitute an invitation by the Borrower to each Lender to submit Competitive Bid Quotes offering to make the Competitive Bid Loans to which such Competitive Bid Quote Request relates in accordance with this Section 2.05.
2.05.4.    Submission and Contents of Competitive Bid Quotes.  (a)  Each Lender may, in its sole discretion, submit a Competitive Bid Quote containing an offer or offers to make Competitive Bid Loans in response to any Invitation for Competitive Bid Quotes.  Each Competitive Bid Quote must comply with the requirements of this Section 2.05.4 and must be submitted to the Agent by telecopy at its offices specified in or pursuant to Section 9.01 not later than (i) 9:00 a.m. (Chicago time) at least three Business Days prior to the proposed Borrowing Date, in the case of a Eurocurrency Auction or (ii) 9:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case of an Absolute Rate Auction (or, in either case upon reasonable prior notice to the Lenders, such other time and date as the Borrower and the Agent may agree); provided that Competitive Bid Quotes submitted by JPMCB may only be submitted if the Agent or JPMCB notifies the Borrower of the terms of the offer or offers contained therein not later than 15 minutes prior to the latest time at which the relevant Competitive Bid Quotes must be submitted by the other Lenders.  Subject to Article 3 and Section 6.03, any Competitive Bid 



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Quote so made shall be irrevocable except with the written consent of the Agent given on the instructions of the Borrower.
(b)    Each Competitive Bid Quote shall be in substantially the form of Exhibit H hereto and shall in any case specify:
(i)    the proposed Borrowing Date, which shall be the same as that set forth in the applicable Invitation for Competitive Bid Quotes;
(ii)    the principal amount of the Competitive Bid Loan for which each such offer is being made, which principal amount (1) may be greater than, less than or equal to the Commitment of the quoting Lender, (2) must be at least $5,000,000 and an integral multiple of $1,000,000, (3) may not exceed the principal amount of Competitive Bid Loans for which offers were requested, and (4) may be subject to a maximum limitation as to the principal amount of Competitive Bid Loans for which offers being made by such quoting Lender may be accepted;
(iii)    in the case of a Eurocurrency Auction, the Competitive Bid Margin offered for each such Competitive Bid Loan;
(iv)    in the case of an Absolute Rate Auction, the Absolute Rate offered for each such Competitive Bid Loan; and
(v)    the identity of the quoting Lender.
A Competitive Bid Quote may set forth up to five separate offers by the quoting Lender with respect to each Interest Period specified in the related Invitation for Competitive Bid Quotes.
(c)    The Agent shall reject any Competitive Bid Quote that:
(i)    is not substantially in the form of Exhibit H hereto or does not specify all of the information required by Section 2.05.4(b),
(ii)    contains qualifying, conditional or similar language, other than any such language contained in Exhibit H hereto,
(iii)    proposes terms other than or in addition to those set forth in the applicable Invitation for Competitive Bid Quotes, or
(iv)    arrives after the time set forth in Section 2.05.4(a).
If any Competitive Bid Quote shall be rejected pursuant to this Section 2.05.4(c), then the Agent shall notify the relevant Lender of such rejection as soon as practical.
2.05.5.    Notice to Borrower.  The Agent shall promptly notify the Borrower of the terms (a) of any Competitive Bid Quote submitted by a Lender that is in accordance with Section 2.05.4 and (b) of any Competitive Bid Quote that amends, modifies or is otherwise





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inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request.  Any such subsequent Competitive Bid Quote shall be disregarded by the Agent unless such subsequent Competitive Bid Quote specifically states that it is submitted solely to correct a manifest error in such former Competitive Bid Quote.  The Agent’s notice to the Borrower shall specify the aggregate principal amount of Competitive Bid Loans for which offers have been received for each Interest Period specified in the related Competitive Bid Quote Request and the respective principal amounts and Eurocurrency Bid Rates or Absolute Rates, as the case may be, so offered.
2.05.6.    Acceptance and Notice by Borrower.  Not later than (a) 10:00 a.m. (Chicago time) at least three Business Days prior to the proposed Borrowing Date, in the case of a Eurocurrency Auction or (b) 10:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case of an Absolute Rate Auction (or, in either case upon reasonable prior notice to the Lenders, such other time and date as the Borrower and the Agent may agree), the Borrower shall notify the Agent of its acceptance or rejection of the offers so notified to it pursuant to Section 2.05.5; provided, however, that the failure by the Borrower to give such notice to the Agent shall be deemed to be a rejection of all such offers.  In the case of acceptance, such notice (a “Competitive Bid Borrowing Notice”) shall specify the aggregate principal amount of offers for each Interest Period that are accepted.  The Borrower may accept any Competitive Bid Quote in whole or in part; provided that:
(i)    the aggregate principal amount of each Competitive Bid Advance may not exceed the applicable amount set forth in the related Competitive Bid Quote Request,
(ii)    acceptance of offers may only be made on the basis of ascending Eurocurrency Bid Rates or Absolute Rates, as the case may be, and
(iii)    the Borrower may not accept any offer that is described in Section 2.05.4(c) or that otherwise fails to comply with the requirements of this Agreement.
2.05.7.  Allocation by Agent.  If offers are made by two or more Lenders with the same Eurocurrency Bid Rates or Absolute Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which offers are accepted for the related Interest Period, the principal amount of Competitive Bid Loans in respect of which such offers are accepted shall be allocated by the Agent among such Lenders as nearly as possible (in such multiples, not greater than $1,000,000, as the Agent may deem appropriate) in proportion to the aggregate principal amount of such offers.  Allocations by the Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence of manifest error.  The Agent shall promptly, but in any event on the same Business Day, notify each Lender of its receipt of a Competitive Bid Borrowing Notice and the aggregate principal amount of such Competitive Bid Advance allocated to each participating Lender.
Section 2.06.    Facility Fee; Reductions in Aggregate Commitment.   The Borrower agrees to pay to the Agent for the account of each Lender a facility fee (the “Facility Fee”), which shall accrue at the Applicable Margin on the daily amount of the Commitment of 





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such Lender (whether used or unused) during the period from and including the Effective Date to but excluding the date on which such Commitment terminates; provided that, if such Lender continues to have any Outstanding Credit Exposure after its Commitment terminates, then such Facility Fee shall continue to accrue on the daily amount of such Lender’s Outstanding Credit Exposure to but excluding the date on which such Lender ceases to have any Outstanding Credit Exposure.  Accrued Facility Fees shall be payable in arrears on the third Business Day following the last day of March, June, September and December of each year and on the date on which the Aggregate Commitments terminate, commencing on the first such date to occur after the Effective Date; provided that any Facility Fees accruing after the date on which the Aggregate Commitments terminate shall be payable on demand.  The Borrower may permanently reduce the Aggregate Commitment in whole, or in part ratably among the Lenders, in the amount of $25,000,000 or a multiple of $5,000,000 in excess thereof, upon at least three Business Days’ written notice to the Agent, which notice shall specify the amount of any such reduction; provided, however, that the amount of the Aggregate Commitment may not be reduced below the Dollar Amount of the Aggregate Outstanding Credit Exposure.
Section 2.07.    Minimum Amount of Each Advance.  Each Advance shall be in the amount of $10,000,000 or a multiple of $1,000,000 in excess thereof (or the Approximate Equivalent Amounts if denominated in an Agreed Currency other than Dollars), provided that (a) an Advance to repay Swing Line Loans may be in the amount of such Swing Line Loans and (b) any Base Rate Advance may be in the amount of the unused Aggregate Available Commitment.  Each Competitive Bid Advance shall be in the amount of $5,000,000 or a multiple of $1,000,000 in excess thereof.
Section 2.08.    Optional Principal Payments.  The Borrower may from time to time prepay, without penalty or premium, all outstanding Base Rate Advances or, in a minimum aggregate amount of $10,000,000 or any integral multiple of $1,000,000 in excess thereof, any portion of the outstanding Base Rate Advances (in each case including any Competitive Bid Loans bearing interest at the Alternate Base Rate pursuant to the last sentence of Section 8.01) upon notice to the Agent not later than 10:00 a.m. (Chicago time) on the date of such prepayment.  The Borrower may at any time prepay, without penalty or premium, all outstanding Swing Line Loans, or, in a minimum amount of $100,000 and increments of $50,000 in excess thereof, any portion of the outstanding Swing Line Loans, with notice to the Agent and the Swing Line Lender by 11:00 a.m. (Chicago time) on the date of prepayment.  The Borrower may from time to time prepay, subject to the payment of any funding indemnification amounts required by Section 2.22 but without penalty or premium, all outstanding Eurocurrency Ratable Advances, or, in a minimum aggregate amount of $10,000,000 or any integral multiple of $1,000,000 in excess thereof (or the Approximate Equivalent Amount if denominated in an Agreed Currency other than Dollars), any portion of the outstanding Eurocurrency Ratable Advances upon three Business Days’ prior notice to the Agent.  Except as provided in the first sentence of this Section 2.08, Competitive Bid Loans may not be paid prior to the last day of the applicable Interest Period.  Each such optional prepayment shall be applied to prepay ratably the Loans of the several Lenders included in such Advance.
Section 2.09.    Changes in Interest Rate, etc.  Each Base Rate Advance shall bear interest on the outstanding principal amount thereof, for each day from and including the date such Advance is made or is automatically converted from a Eurocurrency Ratable Advance into a 





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Base Rate Advance pursuant to Section 2.02.4, to but excluding the date it is paid or is converted into a Eurocurrency Ratable Advance pursuant to Section 2.02.4 hereof, at a rate per annum equal to the Alternate Base Rate for such day.  Changes in the rate of interest on that portion of any Advance maintained as a Base Rate Advance will take effect simultaneously with each change in the Alternate Base Rate.  Each Eurocurrency Ratable Loan shall bear interest on the outstanding principal amount thereof, for each day during each Interest Period applicable thereto, at a rate per annum equal to the Eurocurrency Rate for such day.  Each Eurocurrency Bid Rate Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the Eurocurrency Bid Rate quoted by the Lender making such Loan in accordance with Section 2.05.  Each Absolute Rate Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the Absolute Rate quoted by the Lender making such Loan in accordance with Section 2.05.
Section 2.10.    Rates Applicable After Default.  Notwithstanding anything to the contrary contained in Section 2.02.3 or 2.02.4, the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 9.05 requiring unanimous consent of the Lenders to changes in interest rates), during the continuance of an Event of Default declare that no Ratable Advance may be made as, converted into or continued as a Eurocurrency Ratable Advance.  The Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 9.05 requiring unanimous consent of the Lenders to changes in interest rates), declare that (a) overdue principal of and interest on each Fixed Rate Advance shall bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable to such Interest Period plus 1% per annum and (b) overdue principal of and interest on each Base Rate Advance, each Swing Line Loan and each Reimbursement Obligation shall bear interest at a rate per annum equal to the Alternate Base Rate in effect from time to time plus 1% per annum.
Section 2.11.    Method of Payment.  (a)  Except for Loans that have been converted into Loans of another Agreed Currency as provided in the definition of “Eligible Currency,” each Advance shall be repaid and each payment of interest thereon shall be paid in the currency in which such Advance was made, and any such amount in respect of a Loan that has been converted as described above shall be paid in the currency into which such Loan has been converted.  All payments to be made by the Borrower hereunder in Dollars shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Agent at the Agent’s address specified pursuant to Section 9.01 or at any other Domestic Lending Office of the Agent specified in writing by the Agent to the Borrower, by 11:00 a.m. (Chicago time) on the date when due.  All payments to be made by the Borrower hereunder in any currency other than Dollars shall be made in such currency on the date due in such funds as may then be customary for the settlement of international transactions in such currency for the account of the Agent, at its Eurocurrency Payment Office for such currency.  All payments of Obligations hereunder shall (except (x) repayments of Swing Line Loans and Competitive Bid Loans, (y) Reimbursement Obligations for which the LC Issuers have not been fully indemnified by the Lenders or (z) as otherwise specifically required hereunder) be applied ratably by the Agent among the Lenders.  Each payment delivered to the Agent for the account of any Lender shall be delivered promptly by the Agent to such Lender in the same type of funds that the Agent received at (i) with respect 



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to Base Rate Loans and Eurocurrency Loans denominated in Dollars, its address specified pursuant to Section 9.01 and (b) with respect to Eurocurrency Loans denominated in an Agreed Currency other than Dollars, in the funds received from the Borrower at the address of the Agent’s Eurocurrency Payment Office for such currency.  Whenever any payment of principal of, or interest on, Base Rate Loans or Absolute Rate Loans or of fees shall be due on a day which is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day.  Whenever any payment of principal of, or interest on, Eurocurrency Loans shall be due on a day which is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case the date for payment thereof shall be the next preceding Business Day.  If the date for any payment of principal is extended by operation of law or otherwise, interest thereon shall be payable for such extended time.  Each reference to the Agent in this Section 2.11 shall also be deemed to refer, and shall apply equally, to the LC Issuers, in the case of payments required to be made by the Borrower directly to the LC Issuers pursuant to Section 2.19.6.
(b)    Notwithstanding the foregoing provisions of this Section, if, after the making of any Loan in any currency other than Dollars, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Loan was made (the “Original Currency”) no longer exists or the Borrower is not able to make payment to the Agent for the account of the Lenders in such Original Currency, then all payments to be made by the Borrower hereunder in such currency shall instead be made when due in Dollars in an amount equal to the Dollar Amount (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Borrower take all risks of the imposition of any such currency control or exchange regulations.
Section 2.12.    [Reserved].
Section 2.13.    Noteless Agreement; Evidence of Indebtedness.  (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(b)    The Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Borrowing Date, the Agreed Currency and the Type thereof and any Interest Period with respect thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder, (iii) the original stated amount of each Facility LC and the amount of LC Obligations outstanding at any time, (iv) the amount of any sum received by the Agent hereunder from the Borrower and each Lender’s share thereof and (v) the amount of any increase or decrease in the Aggregate Commitment pursuant to Section 2.01.2 or 2.06.
(c)    The entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided, however, that the failure of the Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the 



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Borrower to repay the Obligations in accordance with their terms or the rights of the Borrower to borrow in accordance with the terms and conditions of this Agreement.
(d)    Any Lender may request that its Ratable Loans, Competitive Bid Loans or Swing Line Loans be evidenced by Ratable Notes, Competitive Bid Notes or Swing Line Notes, respectively.  In such event, the Borrower shall prepare, execute and deliver to such Lender such Note or Notes payable to such Lender.  Thereafter, the Loans evidenced by such Note or Notes and interest thereon shall at all times (prior to any assignment pursuant to Section 9.06(c)) be represented by one or more Notes payable to the payee named therein or any Assignee pursuant to Section 9.06(c), except to the extent that any such Lender or Assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described in paragraphs (a) and (b) above.  Each reference in this Agreement to the “Note” of such Lender shall be deemed to refer to and include any or all of such Notes, as the context may require.
Section 2.14.    Telephonic Notices.  The Borrower hereby authorizes the Lenders and the Agent to extend, convert or continue Advances, effect selections of Agreed Currencies and Types of Advances, submit Competitive Bid Quotes and to transfer funds based on telephonic notices made by any person or persons the Agent or any Lender in good faith believes to be acting on behalf of the Borrower, it being understood that the foregoing authorization is specifically intended to allow Borrowing Notices, Conversion/Continuation Notices and Competitive Bid Quote Requests to be given telephonically.  The Borrower agrees to deliver promptly to the Agent a written confirmation signed by an Authorized Officer, if such confirmation is requested by the Agent or any Lender, of each telephonic notice.  If the written confirmation differs in any material respect from the action taken by the Agent and the Lenders, the records of the Agent and the Lenders shall govern absent manifest error.
Section 2.15.    Interest Payment Dates; Interest and Fee Basis.  Interest accrued on each Base Rate Advance shall be payable in arrears on each Payment Date, commencing with the first such date to occur after the Effective Date, and at maturity.  Interest accrued on each Fixed Rate Advance shall be payable on the last day of its applicable Interest Period, on any date on which the Fixed Rate Advance is prepaid, whether by acceleration or otherwise, and at maturity.  Interest accrued on each Fixed Rate Advance having an Interest Period longer than three months shall also be payable on the last day of each three-month interval during such Interest Period.  Interest accrued on each Base Rate Advance or any Fixed Rate Advance that is bearing interest at the Alternate Base Rate pursuant to Article 8 shall be calculated for actual days elapsed on the basis of a 365-day or 366-day year, as the case may be.  Interest on all Advances other than Base Rate Advances and Fixed Rate Advances that bear interest at the Alternate Base Rate pursuant to Article 8 and fees (including, without limitation, Facility Fees and LC Fees) shall be calculated for actual days elapsed on the basis of a 360-day year, except for interest on Eurocurrency Ratable Advances denominated in British Pounds Sterling which shall be calculated for actual days elapsed on the basis of a 365-day year.  Interest shall be payable for the day an Advance is made but not for the day of any payment on the amount paid if payment is received at the place of payment prior to noon (local time) or at such other time as shall be specified for such payment under this Agreement.







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Section 2.16.    Notification of Advances, Interest Rates, Prepayments and Commitment Reductions.  Promptly after receipt thereof, the Agent will notify each Lender of the contents of each Aggregate Commitment reduction notice, Ratable Borrowing Notice, Swing Line Borrowing Notice, Competitive Bid Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder.  Promptly after notice from an LC Issuer, the Agent will notify each applicable Lender of the contents of each request for issuance of a Facility LC hereunder.  The Agent will notify each Lender of the interest rate applicable to each Fixed Rate Advance promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.
Section 2.17.    Regulation D Compensation.  If and so long as a reserve requirement of the type described in the definition of “Reserve Requirement” is prescribed by the Board of Governors of the Federal Reserve System (or any successor), each Lender subject to such requirement may require the Borrower to pay, contemporaneously with each payment of interest on each of such Lender’s Eurocurrency Loans, additional interest on such Eurocurrency Loan at a rate per annum determined by such Lender that reflects the cost to such Lender of such reserve requirement in respect of such Eurocurrency Loan but does not exceed the excess of (a)(i) the applicable Eurocurrency Reference Rate divided by (ii) one minus the Reserve Requirement over (b) the applicable Eurocurrency Reference Rate. Any Lender wishing to require payment of such additional interest (x) shall so notify the Borrower and the Agent, in which case such additional interest on the Eurocurrency Loans of such Lender shall be payable to such Lender at the place indicated in such notice with respect to each Interest Period commencing at least three Business Days after such Lender gives such notice and (y) shall notify the Borrower at least five Business Days before each date on which interest is payable on the Eurocurrency Loans of the amount then due it under this Section.
Section 2.18.    Non-Receipt of Funds by the Agent.  Unless the Borrower or a Lender, as the case may be, notifies the Agent prior to the time on which it is scheduled to make payment to the Agent of (a) in the case of a Lender, the proceeds of a Loan or (b) in the case of the Borrower, a payment of principal, interest or fees to the Agent for the account of the Lenders, that it does not intend to make such payment, the Agent may assume that such payment has been made.  The Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption.  If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Agent, the recipient of such payment shall, on demand by the Agent, repay to the Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Agent until the date the Agent recovers such amount at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective Rate for such day for the first three days and, thereafter, the interest rate applicable to the relevant Loan or (ii) in the case of payment by the Borrower, a rate per annum equal to the higher of the Federal Funds Effective Rate and the interest rate applicable to the relevant Loan.  Nothing in this Section 2.18 shall be deemed to relieve any Lender from any of its obligations hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any default by such Lender hereunder.





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Section 2.19.    Facility LCs.
2.19.1.    Issuance.  Each LC Issuer hereby agrees, on the terms and conditions set forth in this Agreement, to issue standby and commercial letters of credit denominated in any Agreed Currency (each, a “Facility LC”) and to renew, extend, increase, decrease or otherwise modify any Facility LC issued by it (“Modify,” and each such action a “Modification”), from time to time (including on the Effective Date) prior to the Facility Termination Date, upon the request of the Borrower; provided that immediately after each such Facility LC is issued or Modified, (a) the aggregate amount of the outstanding LC Obligations shall not exceed $600,000,000, (b) the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate Commitment and (c) the aggregate amount of the outstanding LC Obligations of any LC Issuer shall not exceed its LC Commitment.  No Facility LC shall have an expiry date later than the earlier of (x) the fifth Business Day prior to the Facility Termination Date and (y) one year after its issuance; provided that any Facility LC may contain an “evergreen” provision providing for automatic renewal of such Facility LC absent advance notice by the Borrower or the applicable LC Issuer for periods up to one year unless (A) prior to the date specified in such Facility LC the beneficiary thereof receives notice from the LC Issuer (or the beneficiary and the LC Issuer receive notice from the Agent) that such Facility LC shall not be renewed or (B) the new expiry day of such Facility LC would extend beyond the fifth Business Day prior to the Facility Termination Date.
2.19.2.    Participations.  Upon the issuance or Modification by an LC Issuer of a Facility LC in accordance with this Section 2.19, such LC Issuer shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably sold to each Lender without recourse or warranty, and each Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from such LC Issuer, a participation in such Facility LC (and each Modification thereof) and the related LC Obligations in proportion to such Lender’s Pro Rata Share.
2.19.3.    Notice.  Subject to Section 2.19.1, the Borrower shall give the applicable LC Issuer notice prior to 10:00 a.m. (Chicago time) at least three Business Days prior to the proposed date of issuance or Modification of each Facility LC, specifying the beneficiary, the proposed date of issuance (or Modification) and the expiry date of such Facility LC, and describing any other proposed terms of such Facility LC.  Upon receipt of such notice, the applicable LC Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Lender, of the contents thereof and of the amount of such Lender’s participation in such proposed Facility LC.  The issuance or Modification by an LC Issuer of any Facility LC shall, in addition to the conditions precedent set forth in Section 3.02 (and, in the case of any Facility LC issued on the Effective Date, Section 3.01) (the satisfaction of which no LC Issuer shall have any duty to ascertain), be subject to the condition precedent that the Borrower shall have executed and delivered such application agreement and/or such other instruments and agreements relating to such Facility LC as such LC Issuer shall have reasonably requested in accordance with its standard practice (each, a “Facility LC Application”).  In the event of any conflict between the terms of this Agreement and the terms of any Facility LC Application, the terms of this Agreement shall control.







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2.19.4.    LC Fees.  The Borrower shall pay to the Agent, for the account of the Lenders ratably in accordance with their respective Pro Rata Shares, with respect to each Facility LC, a letter of credit fee at a per annum rate equal to the Applicable Margin for Eurocurrency Loans in effect from time to time on the actual daily undrawn stated amount under such Facility LC for each day from the issuance date of such Facility LC to and including the later of (a) the Facility Termination Date and (b) the expiry date of such Facility LC, such fee to be payable in arrears on each Payment Date (the fees described in this sentence, “LC Fees”).  The Borrower shall also pay to each LC Issuer for its own account (i) a fronting fee in an amount and payable at times to be agreed upon between such LC Issuer and the Borrower, and (ii) documentary and processing charges in connection with the issuance or Modification of and draws under Facility LCs in accordance with such LC Issuer’s standard schedule for such charges as in effect from time to time.  LC Fees and, unless otherwise agreed to by the applicable LC Issuer, fronting fees shall be payable in arrears on the third Business Day following the last day of March, June, September and December of each year and on the date on which the Aggregate Commitments terminate, commencing on the first such date to occur after the Effective Date; provided that any LC Fees accruing after the date on which the Aggregate Commitments terminate shall be payable on demand.
2.19.5.    Administration; Reimbursement by Lenders.  Upon receipt from the beneficiary of any Facility LC of any complying demand for payment under such Facility LC, the applicable LC Issuer shall notify the Agent, and the Agent shall promptly notify the Borrower and each other Lender, as to the amount to be paid by such LC Issuer as a result of such demand and the proposed payment date (the “LC Payment Date”).  Each LC Issuer shall endeavor to exercise the same care in the issuance and administration of the Facility LCs as it does with respect to letters of credit in which no participations are granted, it being understood that in the absence of any gross negligence or willful misconduct by an LC Issuer, each Lender shall be unconditionally and irrevocably liable without regard to the occurrence of any Default or any condition precedent whatsoever, to reimburse the applicable LC Issuer on demand for (a) such Lender’s Pro Rata Share of the amount of each payment made by such LC Issuer under each Facility LC to the extent such amount is not reimbursed by the Borrower pursuant to Section 2.19.6, plus (b) interest on the foregoing amount to be reimbursed by such Lender, for each day from the date of such LC Issuer’s demand for such reimbursement (or, if such demand is made after 11:00 a.m. (Chicago time) on such date, from the next succeeding Business Day) to the date on which such Lender pays the amount to be reimbursed by it, at a rate of interest per annum equal to the Federal Funds Effective Rate for the first three days and, thereafter, at a rate of interest equal to the rate applicable to Base Rate Advances.
2.19.6.    Reimbursement by Borrower.  The Borrower shall be irrevocably and unconditionally obligated to reimburse each LC Issuer on or before the applicable LC Payment Date for any amounts to be paid by such LC Issuer upon any drawing under any Facility LC, without presentment, demand, protest or other formalities of any kind; provided, that the Borrower shall not be obligated to reimburse any LC Issuer for any amounts so paid by it, and the LC Payment Date in respect of any such reimbursement shall not be, earlier than the later of (i) the date on which such LC Issuer is required to pay the beneficiary of such Facility LC and (ii) (A) 12:00 noon (Chicago time) on the day that the Agent delivers notice of a drawing under a Facility LC pursuant to Section 2.19.5, if such notice shall have been received by the Borrower prior to 10:00 a.m. (Chicago time) on a Business Day, or (B) if such notice has not been so 



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received by the Borrower prior to such time on such date, then not later than 12:00 noon (Chicago time) on the Business Day immediately following the day that the Borrower receives such notice; provided, further, that neither the Borrower nor any Lender shall hereby be precluded from asserting any claim for direct (but not consequential) damages suffered by the Borrower or such Lender to the extent, but only to the extent, caused by (a) the willful misconduct or gross negligence of any LC Issuer in determining whether a request presented under any Facility LC issued by it complied with the terms of such Facility LC or (b) any LC Issuer’s failure to pay under any Facility LC issued by it after the presentation to it of a request strictly complying with the terms and conditions of such Facility LC.  All such amounts paid by an LC Issuer and remaining unpaid by the Borrower shall bear interest, payable on demand, for each day until paid at a rate per annum equal to (i) the rate applicable to Base Rate Advances for such day if such day falls on or before the applicable LC Payment Date and (ii) the sum of 1% plus the rate applicable to Base Rate Advances for such day if such day falls after such LC Payment Date.  The applicable LC Issuer will pay to each Lender ratably in accordance with its Pro Rata Share all amounts received by it from the Borrower for application to the payment, in whole or in part, of the Reimbursement Obligation in respect of any Facility LC issued by such LC Issuer, but only to the extent such Lender has made payment to such LC Issuer in respect of such Facility LC pursuant to Section 2.19.5.  Subject to the terms and conditions of this Agreement (including without limitation the submission of a Borrowing Notice in compliance with Section 2.02.4 and the satisfaction of the applicable conditions precedent set forth in Article 3), the Borrower may request an Advance or a Swing Line Advance hereunder for the purpose of satisfying any Reimbursement Obligation.
2.19.7.    Obligations Absolute.  The Borrower’s obligations under Section 2.19.6 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against any LC Issuer, any Lender or any beneficiary of a Facility LC.  The Borrower further agrees with the LC Issuers and the Lenders that the LC Issuers and the Lenders shall not be responsible for, and the Borrower’s Reimbursement Obligation in respect of any Facility LC shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any dispute between or among the Borrower, any of its affiliates, the beneficiary of any Facility LC or any financing institution or other party to whom any Facility LC may be transferred or any claims or defenses whatsoever of the Borrower or of any of its affiliates against the beneficiary of any Facility LC or any such transferee.  The responsibility of an LC Issuer to the Borrower and each Lender shall be only to determine that the documents (including each demand for payment) delivered under each Facility LC in connection with such presentment shall be in conformity in all material respects with such Facility LC.  No LC Issuer shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Facility LC.  The Borrower agrees that any action taken or omitted by any LC Issuer or any Lender under or in connection with each Facility LC and the related drafts and documents, if done without gross negligence or willful misconduct, shall be binding upon the Borrower and shall not put any LC Issuer or any Lender under any liability to the Borrower.  Notwithstanding the foregoing, nothing in this Section 2.19.7 is intended to limit the right of the Borrower to make a claim against any LC Issuer for damages as contemplated by the proviso to the first sentence of Section 2.19.6.



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2.19.8.    Actions of LC Issuers.  Subject to Section 2.19.7, each LC Issuer shall be entitled to rely, and shall be fully protected in relying, upon any Facility LC, draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by such LC Issuer.  Each Lender agrees that each LC Issuer shall be fully justified in failing or refusing to take any action under this Agreement unless it shall first have received such advice or concurrence of the Required Lenders as it reasonably deems appropriate or it shall first be indemnified to its reasonable satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Notwithstanding any other provision of this Section 2.19, each Lender agrees that each LC Issuer shall in all cases be fully protected from liability to the Lenders in acting, or in refraining from acting, under this Agreement in accordance with a request of the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon the Lenders and any future holders of a participation in any Facility LC.
2.19.9.    Indemnification.  The Borrower hereby agrees to indemnify and hold harmless each Lender, each LC Issuer and the Agent, and their respective directors, officers, agents and employees from and against any and all claims and damages, losses, liabilities, costs or expenses which such Lender, such LC Issuer or the Agent may incur (or which may be claimed against such Lender, such LC Issuer or the Agent by any Person whatsoever) by reason of or in connection with the issuance, execution and delivery or transfer of or payment or failure to pay under any Facility LC or any actual or proposed use of any Facility LC, including, without limitation, any claims, damages, losses, liabilities, costs or expenses which such LC Issuer may incur by reason of or in connection with (a) the failure of any other Lender to fulfill or comply with its obligations to such LC Issuer hereunder (but nothing herein contained shall affect any rights the Borrower may have against any defaulting Lender) or (b) by reason of or on account of such LC Issuer issuing any Facility LC which specifies that the term “Beneficiary” included therein includes any successor by operation of law of the named Beneficiary, but which Facility LC does not require that any drawing by any such successor Beneficiary be accompanied by a copy of a legal document, satisfactory to such LC Issuer, evidencing the appointment of such successor Beneficiary; provided that the Borrower shall not be required to indemnify any Lender, any LC Issuer or the Agent for any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent, caused by (i) the willful misconduct or gross negligence of any LC Issuer in determining whether a request presented under any Facility LC complied with the terms of such Facility LC or (ii) any LC Issuer’s failure to pay under any Facility LC after the presentation to it of a request strictly complying with the terms and conditions of such Facility LC. Nothing in this Section 2.19.9 is intended to limit the obligations of the Borrower under any other provision of this Agreement.
2.19.10.    Lenders’ Indemnification  Each Lender shall, ratably in accordance with its Pro Rata Share, indemnify each LC Issuer, its affiliates and their respective directors, officers, agents and employees (to the extent not reimbursed by the Borrower) against any cost, expense (including reasonable counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from such indemnitees’ gross negligence or willful misconduct or such LC Issuer’s failure to pay under any Facility LC after the presentation to it of a request strictly 



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complying with the terms and conditions of the Facility LC) that such indemnitees may suffer or incur in connection with this Section 2.19 or any action taken or omitted by such indemnitees hereunder.
2.19.11.    Facility LC Collateral Account.  The Borrower agrees that it will, upon the request of the Agent or the Required Lenders made during the existence of an Event of Default and until the earlier of (a) the date on which such Event of Default shall have been waived or cured and (b) the date on which all LC Obligations shall have been paid in full, maintain a special collateral account pursuant to arrangements satisfactory to the Agent (the “Facility LC Collateral Account”) at the Agent’s office at the address specified pursuant to Section 9.01, in the name of such Borrower but under the sole dominion and control of the Agent, for the benefit of the Lenders and the LC Issuers and in which such Borrower shall have no interest other than as set forth in Section 6.03.  The Borrower hereby pledges, assigns and grants to the Agent, on behalf of and for the ratable benefit of the Lenders and the LC Issuers, a security interest in all of the Borrower’s right, title and interest in and to all funds which may from time to time be on deposit in the Facility LC Collateral Account (if any) to secure the prompt and complete payment and performance of the Obligations.  The Agent will invest any funds on deposit from time to time in the Facility LC Collateral Account (if any) in certificates of deposit of JPMCB having a maturity not exceeding 30 days.  Nothing in this Section 2.19.11 shall either obligate the Agent to require the Borrower to deposit any funds in the Facility LC Collateral Account (if any) or limit the right of the Agent to release any funds held in the Facility LC Collateral Account (if any) in each case other than as required by Section 6.03.
2.19.12.    Rights as a Lender.  In its capacity as a Lender, each LC Issuer shall have the same rights and obligations as any other Lender.
2.19.13.  Applicability of ISP and UCP.  Unless otherwise expressly agreed by the applicable LC Issuer and the Borrower when a Facility LC is issued the rules of the ISP shall apply to each standby Facility LC and the rules of the UCP shall apply to each commercial Facility LC.
Section 2.20.    Market Disruption.  Notwithstanding the satisfaction of all conditions referred to in Articles 2 and 3 with respect to any Advance in any Agreed Currency other than Dollars, if there shall occur on or prior to the date of such Advance any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which would in the reasonable opinion of the Agent or the Required Lenders make it impracticable for the Eurocurrency Loans comprising such Advance to be denominated in the Agreed Currency specified by the Borrower, then the Agent shall forthwith give notice thereof to the Borrower and the Lenders, and such Loans shall not be denominated in such Agreed Currency but shall be made on such Borrowing Date in Dollars, in an aggregate principal amount equal to the Dollar Amount of the aggregate principal amount specified in the related Borrowing Notice or Conversion/Continuation Notice, as the case may be, as Base Rate Loans, unless (a) the Borrower notifies the Agent at least one Business Day before such Borrowing Date that (i) it elects not to borrow on such date or (ii) it elects to borrow on such Borrowing Date in a different Agreed Currency, as the case may be, in which the denomination of such Loans would in the opinion of the Agent and the Required Lenders be practicable and in an aggregate principal amount equal to the Dollar Amount of the aggregate principal amount specified in the 



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related Borrowing Notice or Conversion/Continuation Notice, as the case may be, or (b) the Borrower notifies the Agent at least three Business Days before such Borrowing Date that it elects to borrow Eurocurrency Loans in a different Agreed Currency on such Borrowing Date.
Section 2.21.    Judgment Currency.  If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable herein (the “specified currency”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Agent could purchase the specified currency with such other currency at the Agent’s main Chicago office on the Business Day preceding that on which final, non‐appealable judgment is given.  The obligations of the Borrower in respect of any sum due to any Lender or the Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender or the Agent (as the case may be) may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency.  If the amount of the specified currency so purchased is less than the sum originally due to such Lender or the Agent, as the case may be, in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to any Lender or the Agent, as the case may be, in the specified currency, such Lender or the Agent, as the case may be, agrees to remit such excess to the Borrower.
Section 2.22.    Funding Indemnification.  If the Borrower makes any payment of  principal with respect to any Eurocurrency Advance on a date which is not the last day of the applicable Interest Period, whether because of acceleration, prepayment, conversion or otherwise, or a Eurocurrency Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders, the Borrower will indemnify each Lender within fifteen (15) days of demand for any loss or cost incurred by it (or by an existing or prospective Participant in the related Loan) resulting therefrom, including, without limitation, any loss or cost (excluding lost profits) in liquidating or employing deposits from third parties, but excluding loss of margin for the period after such payment or conversion or failure to borrow, prepay, convert or continue; provided, that such Lender shall have delivered to the Borrower a certificate as to the amount of such loss or expense, which certificate shall be conclusive in the absence of manifest error.
Section 2.23.    Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)    fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.06;
(b)    the Commitment and Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have





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taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.05); provided that (i) a Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans of such Defaulting Lender may not be reduced or excused or the scheduled date of payment postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(c)    if any Swing Line Obligations or LC Obligations exist at the time a Lender becomes a Defaulting Lender then:
(i)    the Swing Line Obligations and LC Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Outstanding Credit Exposures plus such Defaulting Lender’s Swing Line Obligations and LC Obligations does not exceed the aggregate Commitments of all non-Defaulting Lenders;
(ii)    if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within three Business Days following notice by the Agent (x) first, prepay such Swing Line Obligations and (y) second, cash collateralize for the benefit of each LC Issuer only the Borrower’s obligations corresponding, and in an amount equal, to such Defaulting Lender’s LC Obligations (after giving effect to any partial reallocation effected pursuant to clause (i) above) in accordance with the procedures set forth in Section 6.03 for so long as such LC Obligations are outstanding;
(iii)    if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any fees pursuant to Section 2.19.4 with respect to such portion of such Defaulting Lender’s LC Obligations during the period such Defaulting Lender’s LC Obligations are cash collateralized;
(iv)    if the LC Obligations of the non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.06 and Section 2.19.4 shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares; and
(v)    if all or any portion of such Defaulting Lender’s LC Obligations are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of each LC Issuer or any other Lender hereunder, all letter of credit fees payable under Section 2.19.4 with respect to such Defaulting Lender’s LC Obligations shall be payable to the applicable LC Issuer until and to the extent that such LC Obligations are reallocated and/or cash collateralized; and
(d)    so long as such Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any Swing Line Loan and the LC Issuers shall not be required to 



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issue, amend or increase any Facility LC, unless it is or they are satisfied that (i) all of the Defaulting Lender’s then outstanding LC Obligations will be reallocated to non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.23(c) and (ii) participating interests in any newly made Swing Line Loan or any newly issued or increased Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.23(c)(i) (and such Defaulting Lender shall not participate therein).
In the event that the Agent, the Borrower, each LC Issuer and each Swing Line Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swing Line Obligations and LC Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Competitive Bid Loans and Swing Line Loans) as the Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share.
                                                         
	
					
	 
	 
	ARTICLE 3
	 
	 

	 
	 
	CONDITIONS
	 
	 






Section 3.01.    Effectiveness.  This Agreement shall become effective on the date that each of the following conditions shall have been satisfied (or waived in accordance with Section 9.05):
(a)    receipt by the Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Agent in form satisfactory to it of telegraphic, telecopy, telex or other written confirmation from such party of execution of a counterpart hereof by such party);
(b)    receipt by the Agent of an opinion of John G. Shively, Assistant General Counsel and Assistant Secretary of the Borrower, substantially in the form of Exhibit B hereto;
(c)    receipt by the Agent of an opinion of Winston & Strawn LLP, special counsel for the Agent, substantially in the form of Exhibit C hereto and covering such additional matters relating to the transactions contemplated hereby as the Required Lenders may reasonably request;
(d)    receipt by the Agent of all documents it may reasonably request relating to the existence of the Borrower, the corporate authority for and the validity of this Agreement and the Notes, the name, title and signature of the officer authorized to sign on behalf of the Borrower and any other matters relevant hereto, all in form and substance satisfactory to the Agent; and
(e)    receipt by the Agent of evidence satisfactory to it of the payment of all principal of and interest on any loans outstanding under, and all accrued fees under, and termination of the commitments under the Existing Agreement, which termination shall be effected by the agreements and waivers by the applicable parties as set forth in the final sentence of this Section 3.01.





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The Agent shall promptly notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding on all parties hereto.  The Borrower and the Lenders (constituting the “Required Lenders” as defined in the Existing Agreement) hereby (i) agree that the “Commitments” under the Existing Agreement shall terminate automatically upon the Effective Date without further action by any party to the Existing Agreement and (ii) waive compliance with the notice requirements set forth in Section 2.06 of the Existing Agreement with respect thereto.
Section 3.02.    Each Credit Extension.  The obligation of any Lender or LC Issuer to make any Credit Extension (except as otherwise set forth in Section 2.04.4 with respect to Revolving Loans for the purpose of repaying Swing Line Loans) on any applicable Credit Extension Date is subject to the satisfaction of the following conditions:
(a)    receipt by the Agent of a Borrowing Notice or request for issuance of a Facility LC, as appropriate;
(b)    the fact that, immediately after such Credit Extension, the Dollar Amount of the Aggregate Outstanding Credit Exposure will not exceed the Aggregate Commitment;
(c)    the fact that, immediately after such Credit Extension (and, if such Credit Extension is an Advance, any payment on the date of such Advance of Obligations with the proceeds of such Advances), the sum of (i) the greater of (A) such Lender’s Pro Rata Share of all outstanding Swing Line Loans and (B) the outstanding Swing Line Loans made by such Lender, plus (ii) the outstanding Ratable Loans made by such Lender plus (iii) such Lender’s Pro Rata Share of all LC Obligations shall not exceed the Commitment of such Lender;
(d)    the fact that, immediately before and after such Credit Extension, no Default shall have occurred and be continuing; and
(e)    the fact that the representations and warranties of the Borrower contained in this Agreement (except the representations and warranties set forth in Sections 4.04(b), 4.05, 4.06, 4.07 and 4.08) shall be true in all material respects on and as of the date of such Credit Extension.
Each Credit Extension hereunder shall be deemed to be a representation and warranty by the Borrower on the date of such Credit Extension as to the facts specified in clauses (b), (c), (d) and (e) of this Section.
 
ARTICLE 4
 
REPRESENTATIONS AND WARRANTIES  


The Borrower represents and warrants that:
Section 4.01.    Corporate Existence and Power.  The Borrower is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation, and has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted, except 





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for such licenses, authorizations, consents and approvals whose lack could not reasonably be expected to have a Material Adverse Effect.
Section 4.02.    Corporate and Governmental Authorization; No Contravention.  The execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents are within the corporate powers of the Borrower, have been duly authorized by all necessary corporate action, require no action by or in respect of, or filing with, any governmental body, agency or official and do not contravene, or constitute a default under, any provision of applicable law or regulation or of the restated articles of incorporation or by‐laws of the Borrower or of any agreement, judgment, injunction, order, decree or other instrument binding upon the Borrower or any of its Significant Subsidiaries or result in the creation or imposition of any Lien on any asset of the Borrower or any of its Significant Subsidiaries, except to the extent that such contravention, default or Lien could not reasonably be expected to have a Material Adverse Effect.
Section 4.03.    Binding Effect.  This Agreement constitutes a valid and binding agreement of the Borrower and each other Loan Document, when executed and delivered in accordance with this Agreement, will constitute a valid and binding obligation of the Borrower, in each case enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
Section 4.04.    Financial Information.  (a)  The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of September 30, 2013 and the related consolidated statements of earnings, cash flows, and changes in stockholders’ equity for the fiscal year then ended, reported on by KPMG LLP and set forth in the Borrower’s 2013 Form 10-K, a copy of which has been made available to each of the Lenders, fairly present, in conformity with generally accepted accounting principles, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such fiscal year.
(b)    Since December 31, 2013 there has been no material adverse change in the business, financial position or results of operations of the Borrower and its Consolidated Subsidiaries, considered as a whole.
Section 4.05.    Litigation.  There is no action, suit or proceeding pending against, or to the knowledge of the Borrower threatened against or affecting, the Borrower or any of its Subsidiaries before any court or arbitrator or any governmental body, agency or official in which there is a reasonable possibility of an adverse decision which could have a Material Adverse Effect.
Section 4.06.    Compliance with ERISA.  Except to the extent that such waiver, failure or liability could not reasonably be expected to have a Material Adverse Effect, (a) to the best of the Borrower’s knowledge, each member of the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Internal Revenue 







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Code with respect to each Plan and is in compliance with the currently applicable provisions of ERISA and the Internal Revenue Code with respect to each Plan and (b) no member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to make any contribution or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Internal Revenue Code or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA.
Section 4.07.    Environmental Matters.  In the ordinary course of its business, the Borrower conducts an ongoing review of the effect of Environmental Laws on the business, operations and properties of the Borrower and its Significant Subsidiaries.  On the basis of this review, the Borrower has reasonably concluded that the liabilities and costs, including the costs of compliance, associated with Environmental Laws, are unlikely to have a Material Adverse Effect.
Section 4.08.    Taxes.  The Borrower and its Significant Subsidiaries have filed all United States federal income Tax returns and all other Tax returns which are required to be filed by them (inclusive of any permitted extensions) and have paid all Taxes due pursuant to such returns or pursuant to any assessment received by the Borrower or any Significant Subsidiary except (a) for Taxes which are being contested in good faith and for which adequate reserves have been established in accordance with generally accepted accounting principles or (b) where the failure to file or pay could not reasonably be expected to have a Material Adverse Effect.  The charges, accruals and reserves on the books of the Borrower and its Consolidated Subsidiaries in respect of Taxes or other governmental charges are, in the opinion of the Borrower, adequate.
Section 4.09.    Subsidiaries.  Each of the Borrower’s corporate Significant Subsidiaries is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, and has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted, except for such licenses, authorizations, consents and approvals whose lack could not reasonably be expected to have a Material Adverse Effect.
Section 4.10.    Regulatory Restrictions on Advance.  The Borrower is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or otherwise subject to any regulatory scheme which restricts its ability to incur debt.  As of the Effective Date, not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its Significant Subsidiaries on a consolidated basis) is “margin stock” (as defined in Regulation U).
Section 4.11.    Full Disclosure.  All information (taken as a whole) heretofore furnished by the Borrower to the Agent, any LC Issuer or any Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all such information (taken as a whole) hereafter furnished by the Borrower to the Agent, any LC Issuer or any Lender will be, true and accurate in all material respects on the date as of which such information is stated or certified.  The Borrower has disclosed to the Lenders in writing any and all facts which 





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materially and adversely affect or may affect (to the extent the Borrower can now reasonably foresee), the business, operations or financial condition of the Borrower and its Consolidated Subsidiaries, taken as a whole, or the ability of the Borrower to perform its obligations under this Agreement, or such facts are reflected in the financial statements and information described in Section 4.04(a).
Section 4.12.    OFAC.  Neither the Borrower nor any of its Subsidiaries is included on the SDN List or is located, organized or resident in a Sanctioned Country.  The Borrower and its Subsidiaries are in compliance in all material respects with all applicable anti-corruption laws and all applicable sanctions administered by OFAC.  
 
ARTICLE 5
 
COVENANTS


The Borrower agrees that, so long as any Lender has any Commitment hereunder or any Obligations (other than unmatured indemnification and unmatured expense reimbursement obligations) remain unpaid:
Section 5.01.    Information.  The Borrower will deliver to each of the Lenders and, if applicable, each LC Issuer which is not a Lender:
(a)    as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower, the consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and the related consolidated statements of earnings, cash flows, and changes in stockholders’ equity for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on in a manner acceptable to the Securities and Exchange Commission by KPMG LLP or other independent public accountants of nationally recognized standing (it being understood that timely delivery of the Borrower’s annual report on Form 10-K shall satisfy the requirement of this clause (a));
(b)    as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Borrower, the consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such quarter and the related consolidated statements of earnings for such quarter and for the portion of the Borrower’s fiscal year ended at the end of such quarter and the related consolidated statement of cash flows for the portion of the Borrower’s fiscal year ended at the end of such quarter, setting forth in the case of such statements of earnings and cash flows, in comparative form the figures for the corresponding quarter and the corresponding portion of the Borrower’s previous fiscal year, all certified (subject to normal year‐end adjustments) as to fairness of presentation, generally accepted accounting principles and consistency by the chief financial officer or the chief accounting officer of the Borrower (it being understood that timely delivery of the Borrower’s quarterly report on Form 10-Q shall satisfy the requirement of this clause (b));
(c)    within five days after the Chief Executive Officer, the Chief Financial Officer or the Treasurer of the Borrower obtains knowledge of any Default, if such Default is 



44








then continuing, a certificate of such officer setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;
(d)    promptly upon the mailing thereof to the shareholders of the Borrower generally, copies of all financial statements, reports and proxy statements so mailed;
(e)    promptly upon the filing thereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S‐8 or its equivalent) and reports on Forms 10‐K, 10‐Q and 8‐K (or their equivalents) which the Borrower shall have filed with the Securities and Exchange Commission;
(f)    if and when any member of the ERISA Group (i) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of such notice; (ii) applies for a waiver of the minimum funding standard under Section 412 of the Internal Revenue Code, a copy of such application; or (iii) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; and
(g)    from time to time such additional information regarding the financial position or business of the Borrower and its Significant Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including, without limitation, information necessary to carry out “know your customer” requirements.
Information required to be delivered pursuant to Sections 5.01(a), 5.01(b), 5.01(d) or 5.01(e) above shall be deemed to have been delivered on the date on which the Borrower posts such information on the Borrower’s website on the Internet at the website address at www.gotoemerson.com, at sec.gov/edaux/searches.htm or at another website identified in a notice delivered to the Lenders (and, if applicable, any LC Issuer which is not a Lender) and accessible by the Lenders (or such LC Issuer) without charge; provided that the Borrower shall deliver paper copies of the information referred to in Sections 5.01(a), 5.01(b), 5.01(d) or 5.01(e) to any Lender (and, if applicable, any LC Issuer which is not a Lender) which requests such delivery.
Section 5.02.    Payment of Obligations.  The Borrower will pay and discharge, and will cause each Significant Subsidiary to pay and discharge, at or before maturity, all its material obligations and liabilities (including, without limitation, Tax liabilities and claims of materialmen, warehousemen and the like which if unpaid might by law give rise to a Lien), except (a) for obligations and liabilities which are contested in good faith by appropriate proceedings or (b) where the failure to pay or discharge such obligations and liabilities could not reasonably be expected to have a Material Adverse Effect, and will maintain, and will cause each Significant Subsidiary to maintain, in accordance with generally accepted accounting principles, appropriate reserves for the accrual of any of the same.
Section 5.03.    Maintenance of Property; Insurance.  (a)  The Borrower will keep, and will cause each Significant Subsidiary to keep, all material property necessary in its business in good working order and condition, ordinary wear and tear, casualty and condemnation excepted.



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(b)    Subject to the normal operation of Borrower’s corporate insurance program, including, without limitation, deductibles and self insured retention, the Borrower will, and will cause each of its Significant Subsidiaries to, maintain (either in the name of the Borrower or in such Significant Subsidiary’s own name) with financially sound and responsible insurance companies, insurance on all its properties in at least such amounts, against at least such risks and with such risk retention as are usually maintained, insured against or retained, as the case may be, in the same general area by companies of established repute engaged in the same or a similar business; and will furnish to the Lenders (and, if applicable, any LC Issuer which is not a Lender), upon request from the Agent, information presented in reasonable detail as to the insurance so carried.
Section 5.04.    Maintenance of Existence.  The Borrower will preserve, renew and keep in full force and effect its corporate existence; provided that nothing in this Section 5.04 shall prohibit a transaction expressly permitted by Section 5.06.
Section 5.05.    Compliance with Laws.  The Borrower will comply, and cause each Significant Subsidiary to comply, in all material respects with all applicable laws, ordinances, rules, regulations, and requirements of governmental authorities (including, without limitation, Environmental Laws and ERISA and the rules and regulations thereunder) except (a) where the necessity of compliance therewith is contested in good faith by appropriate proceedings or (b) where the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.  
Section 5.06.    Mergers and Sales of Assets.  The Borrower will not consolidate or merge with or into any other Person or sell, lease or otherwise transfer, directly or indirectly, all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, to any other Person, unless (a) either the Borrower shall be the continuing corporation, or the successor corporation (if other than the Borrower) shall be a corporation organized and existing under the laws of the United States and such corporation shall expressly assume the due and punctual payment of the principal of, and interest on, the Loans and the Reimbursement Obligations in accordance with the Loan Documents, and the due and punctual performance and observance of all of the covenants and agreements contained in the Loan Documents to be performed by the Borrower, and (b) immediately after such merger or consolidation, or such sale, lease or other transfer, no Default shall have occurred and be continuing.
Section 5.07.    Use of Proceeds.  The proceeds of the Credit Extensions will be used by the Borrower for general corporate purposes.  None of such proceeds will be used, directly or indirectly, (a) in any manner which would violate or cause any Lender to be in violation of Regulation U or (b) to finance the acquisition of more than 50% of the outstanding voting “margin stock” (within the meaning of Regulation U) of any Person, which acquisition has not been approved and recommended by the board of directors (or functional equivalent thereof) of such Person.  
Section 5.08.    Negative Pledge.  Neither the Borrower nor any Significant Subsidiary will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:







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(a)    Liens existing on the date of this Agreement securing Debt outstanding on the date of this Agreement;
(b)    any Lien existing on any asset of any Person at the time such Person becomes a Subsidiary and not created in contemplation of such event;
(c)    any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring such asset, provided that such Lien attaches to such asset concurrently with or within 90 days after the acquisition thereof;
(d)    any Lien on any asset of any Person existing at the time such Person is merged or consolidated with or into the Borrower or a Subsidiary and not created in contemplation of such event;
(e)    any Lien existing on any asset prior to the acquisition thereof by the Borrower or a Subsidiary and not created in contemplation of such acquisition;
(f)    any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of the foregoing clauses of this Section, provided that such Debt is not increased and is not secured by any additional assets;
(g)    Liens arising in the ordinary course of its business (including, without limitation, Liens on assets securing Debt, interest on which is exempt from federal income tax (“Exempt Debt”); Liens for taxes, assessments or government charges; Liens arising out of the existence of judgments not constituting an Event of Default; statutory and contractual landlords’ liens under leases; Liens in favor of customs and revenue authorities arising as a matter of law to secure the payment of customs duties; and Liens arising out of claims under any Environmental Law provided such Liens are being contested in good faith) which (i) do not secure Debt (other than Exempt Debt) or Derivatives Obligations and (ii) do not in the aggregate materially detract from the value or materially impair the use of the assets of the Borrower and its Subsidiaries, taken as a whole;
(h)    Liens securing Derivatives Obligations, provided that the aggregate amount of assets subject to such Liens may at no time exceed $300,000,000; and
(i)    Liens not otherwise permitted by the foregoing clauses of this Section securing obligations (whether or not constituting Debt) in an aggregate principal or face amount at any date not to exceed 25% of Consolidated Total Assets.
Section 5.09.    OFAC.  The Borrower will not knowingly use the proceeds of any Loans to fund any activities or business (a) of or with any individual or entity that is included on the SDN List or (b) in, or with the government of, any Sanctioned Country, except in the case of (a) or (b) to the extent licensed by OFAC or otherwise authorized under U.S. law.  The Borrower shall maintain and implement written policies and procedures reasonably designed to promote compliance with all applicable laws, regulations, and executive orders relating to economic sanctions programs administered by OFAC.



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ARTICLE 6 

DEFAULTS


Section 6.01.    Events of Default.  The occurrence of any one or more of the following events shall constitute an “Event of Default”:
(a)    the Borrower shall fail to pay, (i) within two Business Days after the due date thereof, any principal of any Loan or any Reimbursement Obligation, or (ii) within five Business Days after the due date thereof, any interest, any fees or any other amount payable hereunder;
(b)    the Borrower shall fail to observe or perform any covenant contained in Section 5.06;
(c)    the Borrower shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those covered by clause (a) or (b) above) for 30 days after notice thereof has been given to the Borrower by the Agent at the request of any Lender;
(d)    any representation, warranty, certification or statement made by the Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made (or deemed made);
(e)    any event or condition shall occur which results in the acceleration of the maturity of any Material Debt or, following the stated maturity of any Material Debt, the Borrower shall fail to pay such Material Debt within two Business Days after the expiration of the period of grace or cure, if any, provided in the instrument or agreement under which such Material Debt was created;
(f)    the Borrower or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;
(g)    an involuntary case or other proceeding shall be commenced against the Borrower or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against the Borrower or any Significant Subsidiary under the federal bankruptcy laws as now or hereafter in effect;

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(h)    any member of the ERISA Group sponsoring a Material Plan shall fail to pay when due an amount or amounts aggregating in excess of $200,000,000 which it shall have become liable to pay under Title IV of ERISA with respect to such Material Plan; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation in excess of $200,000,000;
(i)    final judgments or orders for the payment of money in an aggregate amount exceeding $200,000,000 shall be entered against the Borrower or any Significant Subsidiary by a court or courts having jurisdiction in the premises and such judgments or orders shall not have been appealed in good faith (and execution of such judgments stayed during such appeal) or otherwise paid, bonded or otherwise stayed or discharged by the Borrower or such Significant Subsidiary within the time period permitted by applicable law for the filing of an appeal for such judgment or the taking of such other action; or
(j)    any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) (excluding, for this purpose, the Borrower and its Subsidiaries and any employee benefit plan of the Borrower or its Subsidiaries), shall have acquired beneficial ownership (within the meaning of Rule 13d‐3 promulgated by the Securities and Exchange Commission under said Act) of 50% or more of the then outstanding shares of common stock of the Borrower; or a majority of the seats (other than vacant seats) on the board of directors of Borrower shall at any time be occupied by persons who were neither nominated by the management of Borrower nor appointed by directors so nominated.
Section 6.02.    Notice of Default.  The Agent shall give notice to the Borrower under Section 6.01(c) promptly upon being requested to do so by any Lender and shall thereupon notify all the Lenders thereof.
Section 6.03.    Acceleration; Facility LC Collateral Account.  (a) If any Event of Default described in Section 6.01(f) or 6.01(g) occurs with respect to the Borrower, the obligations of the Lenders to make Loans hereunder and the obligation and power of the LC Issuers to issue Facility LCs shall automatically terminate and the Obligations shall immediately become due and payable without any election or action on the part of the Agent, any LC Issuer or any Lender and the Borrower will be and become thereby unconditionally obligated, without any further notice, act or demand, to pay to the Agent an amount in immediately available funds, which funds shall be held in the Facility LC Collateral Account, equal to the difference between (x) the amount of LC Obligations at such time, less (y) the amount on deposit in the Facility LC Collateral Account at such time which is free and clear of all rights and claims of third parties and has not been applied against the Obligations (such difference, the “Collateral Shortfall Amount”).  If any other Event of Default occurs and is continuing, the Agent shall (i) if requested by Lenders having more than 50% of the Aggregate Commitment, by notice to the Borrower terminate or suspend the obligations of the Lenders to make Loans hereunder and the 



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obligation and power of the LC Issuers to issue Facility LCs, or (ii) if requested by Lenders holding more than 50% of the Aggregate Outstanding Credit Exposure, (A) declare the Obligations to be due and payable, whereupon the Obligations shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which the Borrower hereby expressly waives, and (B) upon notice to the Borrower and in addition to the continuing right to demand payment of all amounts payable under this Agreement, make demand on the Borrower to pay all or any portion of the Collateral Shortfall Amount, and the Borrower will, forthwith upon such demand and without any further notice or act, pay to the Agent such amount, which funds shall be deposited in the Facility LC Collateral Account.
(b)    If at any time while any Event of Default is continuing, the Agent determines that the Collateral Shortfall Amount at such time is greater than zero, the Agent may make demand (and Agent shall make such demand upon request of any LC Issuer) on the Borrower to pay all or any portion of the Collateral Shortfall Amount, and the Borrower will, forthwith upon such demand and without any further notice or act, pay to the Agent such amount, which funds shall be deposited in the Facility LC Collateral Account.
(c)    The Agent may at any time or from time to time after funds are deposited in the Facility LC Collateral Account, apply such funds to the payment of any accrued and unpaid Obligations.
(d)    At any time while any Event of Default is continuing, neither the Borrower nor any Person claiming on behalf of or through the Borrower shall have any right to withdraw any of the funds held in the Facility LC Collateral Account.  After any accrued and unpaid Obligations have been paid in full and the Aggregate Commitment has been terminated, any funds remaining in the Facility LC Collateral Account shall be returned by the Agent to the Borrower or paid to whomever may be legally entitled thereto at such time.
 
ARTICLE 7 

THE AGENT


Section 7.01.    Appointment and Authorization.  Each Lender irrevocably appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the Notes as are delegated to the Agent by the terms hereof or thereof, together with all such powers as are reasonably incidental thereto.
Section 7.02.    Agent and Affiliates.  JPMCB shall have the same rights and powers under this Agreement as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and JPMCB and its affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Subsidiary or affiliate of the Borrower as if it were not the Agent.
Section 7.03.    Action by Agent.  The obligations of the Agent hereunder are only those expressly set forth herein.  Without limiting the generality of the foregoing, the Agent shall not be required to take any action with respect to any Default, except as expressly provided in Article 6.



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Section 7.04.    Consultation with Experts; Reliance.  The Agent may consult with legal counsel (who may be counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.  The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing reasonably believed by it to be genuine and to have been signed or sent by the proper Person.
Section 7.05.    Liability of Agent.  Neither the Agent nor any of its affiliates nor any of their respective directors, officers, agents or employees shall be (x) deemed to have knowledge of any Default unless and until written notice thereof is given to the Agent by the Borrower or a Lender or (y) liable for any action taken or not taken by it in connection herewith (a) with the consent or at the request of the Required Lenders (or, when expressly required hereby, all or a different proportion of the Lenders) or (b) in the absence of its own gross negligence or willful misconduct.  Neither the Agent nor any of its affiliates nor any of their respective directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection with this Agreement or any borrowing hereunder; (ii) the performance or observance of any of the covenants or agreements of the Borrower; (iii) the satisfaction of any condition specified in Article 3, except receipt of items required to be delivered to the Agent; or (iv) the validity, effectiveness or genuineness of this Agreement, the Notes or any other instrument or writing furnished in connection herewith.  The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties.  Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.  Except as expressly set forth herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as the Agent or any of its Affiliates in any capacity.
Section 7.06.    Indemnification.  Each Lender shall, ratably in accordance with its Commitment, indemnify the Agent, its affiliates and their respective directors, officers, agents and employees (to the extent not reimbursed by the Borrower) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from such indemnitees’ gross negligence or willful misconduct) that such indemnitees may suffer or incur in connection with this Agreement or any action taken or omitted by such indemnitees hereunder.
Section 7.07.    Sub-Agents and Affiliates.  The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent.  The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties.  The exculpatory provisions of the preceding Sections in this Article 7 shall apply to any such sub-agent and to the Related Parties 





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of the Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent.  The Agent shall be permitted from time to time to designate one of its Affiliates to perform the duties to be performed by the Agent hereunder solely with respect to Loans and Borrowings denominated in Agreed Currencies other than Dollars.  The provisions of this Article 7 shall apply to any such Affiliate mutatis mutandis.
Section 7.08.    Credit Decision.  Each Lender and each LC Issuer acknowledges that it has, independently and without reliance upon the 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 and each LC Issuer also acknowledges that it will, independently and without reliance upon the Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under this Agreement.
Section 7.09.    Successor Agent.  The Agent may resign at any time by giving notice thereof to the Lenders, the LC Issuers and the Borrower.  Upon any such resignation, the Required Lenders shall have the right, upon the approval of Borrower (which approval shall not be unreasonably withheld or delayed) to appoint a successor Agent.  If no successor Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Agent gives notice of resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized or licensed under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $50,000,000.  Upon the acceptance of its appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder.  After any retiring Agent’s resignation hereunder as Agent, the provisions of this Article shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent.
Section 7.10.    Agent’s Fees.  The Borrower shall pay to the Agent for its own account fees in the amounts and at the times previously agreed upon between the Borrower and the Agent.
Section 7.11.    Co-Arranger; Syndication Agent; Documentation Agent; Senior Managing Agent.  None of the Lenders identified on the facing page of this Agreement as a “co-arranger”, “joint book manager”, “syndication agent”, “documentation agent” or “senior managing agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.  Without limiting the foregoing, none of the Lenders so identified as a “co-arranger”, “syndication agent”, “documentation agent” or “senior managing agent” shall have or be deemed to have any fiduciary relationship with any Lender.  Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.
 
ARTICLE 8
 
CHANGE IN CIRCUMSTANCES







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Section 8.01.    Basis for Determining Interest Rate Inadequate or Unfair.  If on or prior to the first day of any Interest Period for any Eurocurrency Loan in any Agreed Currency:
(a)    the Agent is advised by Lenders having 50% or more of the aggregate amount of the Commitments that deposits in such Agreed Currency (in the applicable amounts) are not being offered to such Lenders in the relevant market for such Interest Period, or
(b)    Lenders having 50% or more of the aggregate amount of the Commitments advise the Agent that the Eurocurrency Rate for such Agreed Currency, as determined by the Agent will not adequately and fairly reflect the cost to such Lenders of funding their Eurocurrency Loans in such Agreed Currency for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Lenders, whereupon until the Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist, (i) the obligations of the Lenders to make Eurocurrency Loans in such Agreed Currency or to continue or convert outstanding Loans as or into Eurocurrency Loans in such Agreed Currency shall be suspended and (ii) each outstanding Eurocurrency Loan in such Agreed Currency shall be converted into a Base Rate Loan on the last day of the then current Interest Period applicable thereto.  Unless the Borrower notifies the Agent at least two Business Days before the date of any Eurocurrency Advance in the applicable Agreed Currency for which a Borrowing Notice has previously been given that it elects not to borrow on such date (x) if such Eurocurrency Advance in such Agreed Currency is a Ratable Advance, such Advance shall instead be made as a Base Rate Advance and (y) if such Eurocurrency Advance in such Agreed Currency is a Eurocurrency Bid Rate Advance, the Eurocurrency Bid Rate Loans comprising such Advance shall bear interest for each day from and including the first day to but excluding the last day of the Interest Period applicable thereto at the Alternate Base Rate for such day.
Section 8.02.    Illegality.  If, on or after the date of this Agreement, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its Eurocurrency Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for any Lender (or its Eurocurrency Lending Office) to make, maintain or fund its Eurocurrency Loans in any Agreed Currency and such Lender shall so notify the Agent, the Agent shall forthwith give notice thereof to the other Lenders and the Borrower, whereupon until such Lender notifies the Borrower and the Agent that the circumstances giving rise to such suspension no longer exist, the obligation of such Lender to make Eurocurrency Loans in such Agreed Currency, or to convert outstanding Loans into Eurocurrency Loans in such Agreed Currency or continue outstanding Loans as Eurocurrency Loans in such Agreed Currency shall be suspended.  Before giving any notice to the Agent pursuant to this Section, such Lender shall designate a different Eurocurrency Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Lender, be otherwise significantly disadvantageous to such Lender.  If such notice is given, each Eurocurrency Loan of such Lender in the applicable Agreed Currency then outstanding shall be converted to a Base Rate Loan either (i) on the last day of the then current Interest Period applicable to such Eurocurrency Loan in such Agreed Currency if such Lender may lawfully 



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continue to maintain and fund such Loan as a Eurocurrency Loan in such Agreed Currency to such day or (ii) immediately if such Lender shall determine that it may not lawfully continue to maintain and fund such Loan as a Eurocurrency Loan in such Agreed Currency to such day.  Interest and principal on any such Base Rate Loan shall be payable on the same dates as, and on a pro rata basis with, the interest and principal payable on the related Eurocurrency Loans in the applicable Agreed Currency of the other Lenders.
Section 8.03.    Increased Cost.  (a)  If any Change in Law shall:
(i)    impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any Reserve Requirements imposed pursuant to Section 2.17) or any LC Issuer; or
(ii)    impose on any Lender or any LC Issuer or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting into, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan) by an amount deemed by such Lender or such LC Issuer to be material or to increase the cost to such Lender, such LC Issuer or such other Recipient of participating in, issuing or maintaining any Letter of Credit by an amount deemed by such Lender or such LC Issuer to be material or to reduce the amount of any sum received or receivable by such Lender, such LC Issuer or such other Recipient hereunder (whether of principal, interest or otherwise) by an amount deemed by such Lender or such LC Issuer to be material, then, upon request of such Lender, LC Issuer or other Recipient, the Borrower will pay to such Lender, such LC Issuer or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such LC Issuer or such other Recipient, as the case may be, for such material additional costs incurred or reduction suffered.
(b)    If any Lender or any LC Issuer determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such LC Issuer’s capital or on the capital of such Lender’s or such LC Issuer’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such LC Issuer, to a level below that which such Lender or such LC Issuer or such Lender’s or such LC Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such LC Issuer’s policies and the policies of such Lender’s or such LC Issuer’s holding company with respect to capital adequacy and liquidity) by an amount deemed by such Lender or such LC Issuer to be material, then from time to time the Borrower will pay to such Lender or such LC Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such LC Issuer or such Lender’s or such LC Issuer’s holding company for any such material reduction suffered.
(c)    A certificate of a Lender or such LC Issuer setting forth the amount or amounts necessary to compensate such Lender or such LC Issuer or its holding company, as 



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the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender or such LC Issuer, as the case may be, the amount shown as due on any such certificate within 15 days after receipt thereof. 
(d)    Failure or delay on the part of any Lender or any LC Issuer to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or t such LC Issuer’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or a LC Issuer pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or such LC Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such LC Issuer’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 270-day period referred to above shall be extended to include the period of retroactive effect thereof .
Section 8.04.    Taxes.  
(a)    Defined Terms.  For purposes of this Section 8.04, the term “Lender” includes any LC Issuer and the term “applicable law” includes FATCA. 
(b)    Payments Free of Taxes.  Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant governmental authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c)    Payment of Other Taxes by the Borrower.  The Borrower shall timely pay to the relevant governmental authority in accordance with applicable law, or at the option of the Agent timely reimburse it for the payment of, any Other Taxes.
(d)    Indemnification by the Borrower.  The Borrower shall jointly and severally indemnify each Recipient, within 15 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant governmental authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent 



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manifest error.
(e)    Indemnification by the Lenders.  Each Lender shall severally indemnify the Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.06(b) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this paragraph (e).
(f)    Evidence of Payments.  As soon as practicable after any payment of Taxes by the Borrower to a governmental authority pursuant to this Section 8.04, the Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such governmental authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.
(g)    Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 8.04(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower.
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; 









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(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable:


(i)  in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;


(ii)  executed originals of IRS Form W-8ECI;


(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN; or


(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner;


(C)  any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Agent to determine the withholding or deduction required to be made; and





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(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.


Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.


(h)    Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund (or credit in lieu of a refund) of any Taxes as to which it has been indemnified pursuant to this Section 8.04 (including by the payment of additional amounts pursuant to this Section 8.04), it shall pay to the indemnifying party an amount equal to such refund or credit in lieu of a refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund or credit in lieu of a refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant governmental authority with respect to such refund or credit in lieu of a refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant governmental authority) in the event that such indemnified party is required to repay such refund or credit in lieu of a refund to such governmental authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i)    Survival.  Each party’s obligations under this Section 8.04 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.





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Section 8.05.    Base Rate Loans Substituted for Affected Eurocurrency Loans.  If (a) the obligation of any Lender to make, or to continue or convert outstanding Loans as or to, Eurocurrency Loans in any Agreed Currency has been suspended pursuant to Section 8.01 or (b) any Lender has demanded compensation under Section 8.03 or 8.04 with respect to its Eurocurrency Loans in any Agreed Currency, and in any such case the Borrower shall, by at least five Business Days’ prior notice to such Lender through the Agent, have elected that the provisions of this Section shall apply to such Lender, then, unless and until such Lender notifies the Borrower that the circumstances giving rise to such suspension or demand for compensation no longer exist, all Loans which would otherwise be made by such Lender as (or continued as or converted to) Eurocurrency Loans in such Agreed Currency shall instead be Base Rate Loans on which interest and principal shall be payable contemporaneously with the related Eurocurrency Loans in such Agreed Currency of the other Lenders.  If such Lender notifies the Borrower that the circumstances giving rise to such suspension or demand for compensation no longer exist, the principal amount of each such Base Rate Loan shall be converted into a Eurocurrency Loan in the applicable Agreed Currency on the first day of the next succeeding Interest Period applicable to the related Eurocurrency Loans in such Agreed Currency of the other Lenders.
Section 8.06.    Mitigation of Obligations.  
(a)    Designation of a Different Lending Office.  If any Lender or LC Issuer requests compensation under Section 8.03, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, LC Issuer or any governmental authority for the account of any Lender or LC Issuer pursuant to Section 8.04, then such Lender or such LC Issuer shall (at the request of the Borrower) use reasonable efforts 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 or such LC Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8.03 or 8.04, as the case may be, in the future, and (ii) would not subject such Lender or such LC Issuer to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such LC Issuer.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)    Substitution of Lenders.  If any Lender (i) has demanded compensation pursuant to Section 8.03 or 8.04 or (ii) becomes a Defaulting Lender, then the Borrower shall have the right to designate an Assignee which is not an affiliate of the Borrower to purchase for cash, pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit D hereto, the Outstanding Credit Exposure and Commitment of such Lender and to assume all of such Lender’s other rights and obligations hereunder without recourse to or warranty by such Lender, for a purchase price equal to the principal amount of all of such Lender’s Outstanding Credit Exposure plus the compensation then due and payable pursuant to Section 8.03 or 8.04.
 
ARTICLE 9


MISCELLANEOUS









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Section 9.01.    Notices; Electronic Communications.  (a) All notices, requests and other communications to any party hereunder shall be in writing (including bank wire, facsimile transmission or similar writing) and shall be given to such party: (i) in the case of the Borrower or the Agent, at its address or facsimile number set forth on the signature pages hereof, (ii) in the case of any Lender, at its address or facsimile number set forth in its Administrative Questionnaire or (iii) in the case of any party, such other address or facsimile number as such party may hereafter specify for the purpose by notice to the Agent and the Borrower.  Each such notice, request or other communication shall be effective (A) if given by facsimile transmission, when transmitted to the facsimile number specified in this Section and confirmation of receipt is received, (B) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid or (C) if given by any other means, when delivered at the address specified in this Section; provided that notices to the Agent under Article 2 or Article 8 shall not be effective until received.
(b)    In addition to the foregoing, notices and other communications to the Lenders and the LC Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and internet or intranet websites) pursuant to procedures approved by the Agent or as otherwise determined by the Agent, provided that the foregoing shall not apply to notices to any Lender or any LC Issuer pursuant to Article 2 (in which case such Lender shall be entitled to receive hard copies of such notices or communications) if such Lender or such LC Issuer, as applicable, has notified the Agent that it is incapable of receiving notices under such Article by electronic communication.  The Agent or the Borrower may, in its respective discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it or as it otherwise determines, provided that such determination or approval may be limited to particular notices or communications. Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not given during the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided, further, that the Agent, the Borrower or any Lender party hereto may specify multiple e-mail addresses for receipt of any notices or communications by such means, and receipt by any one of such multiple e-mail addressees as set forth above shall be deemed to have been received by the Agent, the Borrower or such Lender, as the case may be.
(c)    Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto or, in the case of any Lender, by notice to the Agent and the Borrower.
Section 9.02.    No Waivers.  No failure or delay in exercising any right, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the 



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exercise of any other right, power or privilege.  The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 9.03.    Expenses; Indemnification.  (a)  The Borrower shall pay (i) all reasonable out‐of‐pocket expenses of the Agent, including reasonable fees and disbursements of special counsel for the Agent, in connection with the preparation and administration of this Agreement, any waiver or consent hereunder or any amendment hereof or any Default or alleged Default hereunder and (ii) if an Event of Default occurs, all reasonable out‐of‐pocket expenses incurred by the Agent, each LC Issuer and each Lender, including the reasonable fees and disbursements of counsel, in connection with such Event of Default and collection, bankruptcy, insolvency and other enforcement proceedings resulting therefrom.
(b)    The Borrower agrees to indemnify the Agent, each LC Issuer and each Lender, their respective affiliates and the respective directors, officers, agents and employees of the foregoing (each an “Indemnitee”) and hold each Indemnitee harmless from and against any and all liabilities, losses, damages, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be incurred by such Indemnitee in connection with any investigative, administrative or judicial proceeding (whether or not such Indemnitee shall be designated a party thereto) brought or threatened relating to or arising out of this Agreement or any Commitment hereunder or any actual or proposed use of proceeds of Credit Extensions hereunder; provided that no Indemnitee shall have the right to be indemnified hereunder for such Indemnitee’s own gross negligence or willful misconduct as determined by a court of competent jurisdiction.  This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c)    To the extent permitted by applicable law, no party hereto shall assert, and each such party hereby waives, any claim against any other party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, any Loan or Facility LC or the use of the proceeds thereof; provided that, nothing in this clause (c) shall relieve the Borrower of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.
Section 9.04.    Sharing of Set-Offs.  Each Lender agrees that if it shall, by exercising any right of set‐off or counterclaim or otherwise, receive payment of a proportion of the aggregate amount of principal and interest then due and payable with respect to any Credit Extension (other than payments of principal or interest on Competitive Bid Loans at a time when no Event of Default is continuing) held by it which is greater than the proportion received by any other Lender in respect of the aggregate amount of principal and interest then due and payable with respect to any Credit Extension (other than payments of principal or interest on Competitive Bid Loans at a time when no Event of Default is continuing) held by such other Lender, the Lender receiving such proportionately greater payment shall purchase such participations in the Credit Extensions (other than payments of principal or interest on Competitive Bid Loans at a time when no Event of Default is continuing) held by the other Lenders, and such other adjustments shall be made, as may be required so that all such payments of principal and interest then due 



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and payable with respect to the Credit Extensions (other than payments of principal or interest on Competitive Bid Loans at a time when no Event of Default is continuing) held by the Lenders shall be shared by the Lenders pro rata; provided that nothing in this Section shall impair the right of any Lender to exercise any right of set‐off or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of the Borrower other than its indebtedness hereunder.  The Borrower agrees, to the fullest extent it may effectively do so under applicable law, that any holder of a participation in a Credit Extension, whether or not acquired pursuant to the foregoing arrangements, may exercise rights of set‐off or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such participation.
Section 9.05.    Amendments and Waivers.  Any provision of this Agreement or the Loan Documents may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Borrower and the Required Lenders (or the Agent with the consent of the Required Lenders); provided that no such amendment or waiver shall:
(a)    (x) unless signed by all the Lenders directly affected thereby, (i) increase or decrease the Commitment of any Lender (except for a ratable decrease in the Commitments of all the Lenders and except for an increase in the Commitments in accordance with Section 2.01.2) or subject any Lender to any additional obligation, (ii) reduce the principal of or, except as set forth in Section 2.10, rate of interest on any Loan or any Reimbursement Obligation or any fees hereunder or (iii) postpone the date fixed for any payment of principal of or interest on any Loan or Reimbursement Obligation or any fees hereunder or for the termination of any Commitment or extend the expiry date of any Facility LC to a date after the Facility Termination Date or (y) unless signed by each Lender, (i) change the percentage of the Commitments or the Aggregate Outstanding Credit Exposure which shall be required for the Lenders or any of them to take any action under this Section or any other provision of this Agreement, (ii) change Section 9.04 in a manner that would alter the pro rata sharing of payments required thereby or (iii) change any of the provisions of this Section; or
(b)    unless signed by a Designated Lender or its Designating Lender, subject such Designated Lender to any additional obligation or affect its rights hereunder (unless the rights of all the Lenders hereunder are similarly affected).
No amendment of any provision of this Agreement affecting the rights or duties of the Agent shall be effective without the written consent of the Agent, no amendment of any provision relating to any LC Issuer shall be effective without the written consent of such LC Issuer, no amendment of any provision of this Agreement relating to any Swing Line Lender or any Swing Line Loans shall be effective without the written consent of the applicable Swing Line Lenders and no amendment, waiver or modification of Section 2.23 shall be effective without the written consent of the Agent, each LC Issuer and each Swing Line Lender.
Section 9.06.    Successors and Assigns.  (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that the Borrower may not assign or otherwise transfer any of its rights under this Agreement without the prior written consent of all Lenders.



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(b)    Any Lender may at any time grant to one or more banks or other institutions (each a “Participant”) participating interests in its Commitment or any or all of its Outstanding Credit Exposure.  In the event of any such grant by a Lender of a participating interest to a Participant, whether or not upon notice to the Borrower and the Agent, such Lender shall remain responsible for the performance of its obligations hereunder, and the Borrower and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided that such participation agreement may provide that such Lender will not agree to any modification, amendment or waiver of this Agreement described in Section 9.05(a)(x)(i), (ii), or (iii) without the consent of the Participant.  The Borrower agrees that each Participant shall, be entitled to the benefits of Article 8 (in the case of Section 8.04, subject to the requirements and limitations therein, including the requirements under Section 8.04(g) (it being understood that the documentation required under Section 8.04(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 8.06 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 8.03 or Section 8.04, with respect to any participation, than its participating Lender would have been entitled to receive.  Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 8.06(b) with respect to any Participant.  An assignment or other transfer which is not permitted by subsection (c) or (d) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this subsection (b).  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(c)    Any Lender may at any time assign to one or more banks or other institutions (each an “Assignee”) all, or a proportionate part (equivalent to an initial Commitment of not less than $10,000,000) of all, of its rights and obligations under this Agreement and any Loan Document, and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption Agreement in substantially the form of 



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Exhibit D hereto executed by such Assignee and such transferor Lender, with (and subject to) the subscribed consent of the Borrower, the Agent and each LC Issuer; provided that (i) if an Assignee is an affiliate of such transferor Lender or was a Lender immediately prior to such assignment, such consents may not be unreasonably withheld and (ii) the Borrower’s consent shall not be required if an Event of Default has occurred and is continuing; and provided, further, that such assignment may, but need not, include rights of the transferor Lender in respect of outstanding Competitive Bid Loans.  Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be a Lender party to this Agreement with respect to the interest assigned and shall have all the rights and obligations of a Lender with a Commitment as set forth in such instrument of assumption, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required.  Upon the consummation of any assignment pursuant to this subsection (c), the transferor Lender, the Agent and the Borrower shall make appropriate arrangements so that, if required, a new Note is issued to the Assignee.  In connection with any such assignment (other than an assignment to an affiliate of the transferor Lender), the transferor Lender shall pay to the Agent an administrative fee for processing such assignment in the amount of $3,500.  The Assignee shall deliver to the Borrower and the Agent the forms required by Section 8.04(g).  The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Agent and the Lenders shall 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.  The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.  Notwithstanding anything herein to the contrary, no Assignee, with respect to which the Borrower shall not have provided consent to the applicable assignment, shall be entitled to receive any greater payment under Section 8.03 or 8.04, with respect to any Commitments or Loans, than its assigning Lender would have been entitled to receive.
(d)    Any Lender may at any time assign all or any portion of its rights under this Agreement and its Note, if any, to a Federal Reserve Bank.  No such assignment shall release the transferor Lender from its obligations hereunder.
Section 9.07.    Designated Lenders.  (a) Subject to the provisions of this Section 9.07(a), any Lender may from time to time elect to designate an Eligible Designee to provide all or a portion of the Ratable Loans and/or Competitive Bid Loans to be made by such Lender pursuant to this Agreement; provided that such designation shall not be effective unless the Borrower and the Agent consent thereto, which consent shall not be unreasonably withheld.  When a Lender and its Eligible Designee shall have signed an agreement substantially in the form of Exhibit E hereto (a “Designation Agreement”) and the Borrower and the Agent shall have signed their respective consents thereto, such Eligible Designee shall become a Designated Lender for purposes of this Agreement.  The Designating Lender shall thereafter have the right to permit such Designated Lender to provide all or a portion of the Ratable Loans and/or Competitive Bid 



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Loans to be made by such Designating Lender pursuant to Section 2.01 or 2.03, and the making of such Ratable Loans and/or Competitive Bid Loans or portions thereof shall satisfy the obligation of the Designating Lender to the same extent, and as if, such Ratable Loans and/or Competitive Bid Loans or portion thereof were made by the Designating Lender.  As to any Ratable Loans and/or Competitive Bid Loans or portion thereof made by it, each Designated Lender shall have all the rights that a Lender making such Ratable Loans and/or Competitive Bid Loans or portion thereof would have had under this Agreement and otherwise; provided that (x) its voting rights under this Agreement shall be exercised solely by its Designating Lender and (y) its Designating Lender shall remain solely responsible to the other parties hereto for the performance of its obligations under this Agreement, including its obligations in respect of the Ratable Loans and/or Competitive Bid Loans or portion thereof made by it.  No additional Note shall be required to evidence Ratable Loans and/or Competitive Bid Loans or portions thereof made by a Designated Lender; and the Designating Lender shall be deemed to hold its Note, if any, as agent for its Designated Lender to the extent of the Ratable Loans and/or Competitive Bid Loans or portion thereof funded by such Designated Lender.  Each Designating Lender shall act as administrative agent for its Designated Lender and give and receive notices and other communications on its behalf.  Any payments for the account of any Designated Lender shall be paid to its Designating Lender as administrative agent for such Designated Lender and neither the Borrower nor the Agent shall be responsible for any Designating Lender’s application of such payments.  In addition, any Designated Lender may (i) with notice to, but without the prior written consent of the Borrower or the Agent, assign all or portions of its interest in any Ratable Loans and/or Competitive Bid Loans to its Designating Lender or to any financial institutions consented to by the Borrower and the Agent providing liquidity and/or credit facilities to or for the account of such Designated Lender to support the funding of Ratable Loans and/or Competitive Bid Loans or portions thereof made by such Designated Lender and (ii) disclose on a confidential basis any non-public information relating to its Ratable Loans and/or Competitive Bid Loans or portions thereof to any rating agency, commercial paper dealer or provider of any guarantee, surety, credit or liquidity enhancement to such Designated Lender to the extent permitted by Section 9.09.
(b)    Each party to this Agreement agrees that it will not institute against, or join any other Person in instituting against, any Designated Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any federal or state bankruptcy or similar law, for one year and a day after all outstanding senior indebtedness of such Designated Lender is paid in full.  The Designating Lender for each Designated Lender agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of its inability to institute any such proceeding against such Designated Lender.  This Section 9.07(b) shall survive the termination of this Agreement.
Section 9.08.    Collateral.  Each of the Lenders represents to the Agent and each of the other Lenders that it in good faith is not relying upon any “margin stock” (as defined in Regulation U) as collateral in the extension or maintenance of the credit provided for in this Agreement.
Section 9.09.    Confidentiality.  The Agent, the LC Issuers and the Lenders each agree to hold any confidential information which it may receive from the Borrower in connection with 





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this Agreement (“Information”) in confidence, except for disclosure (a) to its affiliates and to the Agent and any other Lender and their respective affiliates, (b) to legal counsel, accountants, and other advisors to such Lender or to a Participant or Assignee to which disclosure would be permitted under clause (f)(ii) below (it being understood that, to the extent such Persons do not have fiduciary duties of confidentiality to the Agent, the LC Issuer or the Lender making such disclosure, such Persons will be informed of the confidential nature of such information and instructed to keep such information confidential), (c) to regulatory officials, (d) to any Person as requested pursuant to or as required by law, regulation, or legal process, (e) in connection with any legal proceeding relating hereto or to the exercise of remedies or the enforcement or rights hereunder, (f)(i) to its actual or prospective contractual counterparties in swap agreements relating to the Borrower and its obligations or to legal counsel, accountants and other advisors to such counterparties or (ii) to prospective Participants and Assignees, in each case that agree in writing to be bound by this Section 9.09 or similar confidentiality provisions, (g) to rating agencies if requested or required by such agencies in connection with a rating relating to the Advances hereunder and (h) to any credit insurance provider relating to the Borrower and its Obligations.  The Borrower agrees that from and after the Effective Date the terms of this Section 9.09 shall set forth the entire agreement between the Borrower and each Lender (including the Agent) and each LC Issuer with respect to any confidential information previously or hereafter received by such Lender or such LC Issuer in connection with this Agreement, and this Section 9.09 shall supersede any and all prior confidentiality agreements entered into by such Lender or such LC Issuer with respect to such confidential information.
EACH LENDER ACKNOWLEDGES THAT “INFORMATION” (AS DEFINED IN THIS SECTION 9.09) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER,  ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
Section 9.10.    USA PATRIOT ACT NOTIFICATION.  The following notification is provided to Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318:



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IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person or entity that opens an account, including any deposit account, treasury management account, loan, other extension of credit, or other financial services product. What this means for the Borrower: When the Borrower opens an account, the Agent, the LC Issuers and the Lenders will ask for the Borrower’s name, tax identification number, business address, and other information that will allow the Agent, the LC Issuers and the Lenders to identify the Borrower.  The Agent, the LC Issuers and the Lenders may also ask to see the Borrower’s legal organizational documents or other identifying documents.
Section 9.11.    Governing Law; Submission to Jurisdiction.  THIS AGREEMENT AND EACH NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.  THE BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  THE BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 9.12.    Waiver of Jury Trial.  THE BORROWER, THE AGENT, EACH LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER.
Section 9.13.    Counterparts; Integration.  This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  This Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
Section 9.14.    No Fiduciary Duty.  The Agent, each Lender and their affiliates (collectively, solely for purposes of this paragraph, the “Lenders”) may have economic interests that conflict with those of the Borrower, its stockholders and/or its affiliates. The Borrower agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and the Borrower, its stockholders or its affiliates, on the other.  The Borrower acknowledges and agrees that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Borrower, on the other, 



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and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of the Borrower, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise the Borrower, its stockholders or its affiliates on other matters) or any other obligation to the Borrower except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of the Borrower, its management, stockholders, creditors or any other Person.  The Borrower acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.  The Borrower agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty, to the Borrower in connection with such transactions or the process leading thereto.
[signature pages follow]



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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.
	
			
	EMERSON ELECTRIC CO.

	By:
	/s/ Frank J. Dellaquila

	 
	Frank J. Dellaquila

	 
	Executive Vice President &

	 
	Chief Financial Officer

	 
	 

	By:
	/s/ David J. Rabe

	 
	David J. Rabe

	 
	Vice President & Treasurer

	 
	 
	 

	Address:
	8000 W. Florissant Avenue

	 
	St. Louis, MO 63136

	Facsimile:
	(314) 553-2463





Emerson Electric Co.
Credit Agreement






	
		
	JPMORGAN CHASE BANK, N.A., as Agent and

	as a Lender

	 
	 

	By: /s/ Gene R. Riego De Dios

	Title:Vice President

	 
	 

	Address:
	383 Madison Avenue

	 
	New York, New York 10179

	 
	Attention:  Gene R. Riego De Dios

	Telephone:
	(212) 270-2348

	Facsimile:
	(212) 270-5100





Emerson Electric Co.
Credit Agreement






	
		
	CITIBANK, N.A., as a Lender

	/s/ Susan Olsen

	By:
	Susan Olsen

	Title:
	Vice President





Emerson Electric Co.
Credit Agreement






	
			
	BARCLAYS BANK PLC, as a Lender

	/s/ Alicia Borys
	 
	 

	By: Alicia Borys

	Title:  Vice President





Emerson Electric Co.
Credit Agreement






	
			
	BNP Parabis, as a Lender

	By: /s/ Todd Grossnickle
	 

	Name: Todd Grossnickle

	Title: Vice President

	 
	 
	 

	By:  /s/ Eric Slear
	 

	Name:  Eric Slear
	 
	 

	Title:  Director
	 
	 





Emerson Electric Co.
Credit Agreement






	
		
	DEUTSCHE BANK, AG NEW YORK BRANCH,

	as a Lender

	By:  /s/ Ming K. Chu

	Title: Vice President
	 

	 
	 

	By:  /s/ Virginia Cosenza

	Title:  Vice President





Emerson Electric Co.
Credit Agreement






	
			
	HSBC Bank USA, N. A., as a Lender

	/s/ Paul L. Hatton
	 
	 

	By:  Paul L. Hatton
	 

	Title: Managing Director





Emerson Electric Co.
Credit Agreement






	
			
	ROYAL BANK OF CANADA, as a Lender

	/s/ Kevin Flynn
	 
	 

	By:  Kevin Flynn
	 
	 

	Title: Authorized Signatory





Emerson Electric Co.
Credit Agreement






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

	By:  /s/ Patricia M. Watson
	 

	       Patricia M. Watson

	Title: Senior Vice President





Emerson Electric Co.
Credit Agreement






	
			
	Wells Fargo Bank, N.A., as a Lender

	/s/ Thiplada Siddiqui
	 

	By:  Thiplada Siddiqui
	 

	Title: Vice President





Emerson Electric Co.
Credit Agreement






	
			
	Standard Chartered Bank, as a Lender

	By:  /s/ Michael D'Anna
	 

	Title: Director, Corporate and Institutional Clients

	 
	 
	 

	By:  /s/ Robert K. Reddington
	 

	Title:  Credit Documentation Manager, Credit Documentation Unit, WB Legal American





Emerson Electric Co.
Credit Agreement






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

	By:  /s/ Thomas J. Sterr
	 

	Title:  Thomas J. Sterr  
	 

	           Authorized Signatory
	 





Emerson Electric Co.
Credit Agreement






	
			
	SUMITOMO MITSUI BANKING CORPORATION, as a Lender

	By: /s/ Shuji Yabe
	 

	Shuji Yabe
	 

	Managing Director
	 





Emerson Electric Co.
Credit Agreement






	
			
	U. S. Bank National Association, as a Lender

	By:  /s/ Kenneth R. Fieler
	 

	Title:  Vice President
	 





Emerson Electric Co.
Credit Agreement






	
			
	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, as a Lender

	By:  /s/ Robert Grillo
	 

	            Robert Grillo
	 

	Title:  Director
	 





Emerson Electric Co.
Credit Agreement






	
			
	DBS Bank Ltd., Los Angeles Agency, as a Lender

	By:  /s/ James McWalters
	 

	Title: James McWalters/General Manager





Emerson Electric Co.
Credit Agreement






	
			
	[Industrial and Commercial Bank of China, Shanghai Municipal Branch, No. 2 Business Department], as a Lender

	By:  /s/ Zhou Haibo
	 

	Title: Deputy General Manager





Emerson Electric Co.
Credit Agreement






	
			
	The Northern Trust Company, as a Lender

	By:  /s/ James R. Shanel 
	 

	         James R. Shanel

	Title: Vice President





Emerson Electric Co.
Credit Agreement






	
			
	Nordea Bank Finland Plc, as a Lender

	By:  
	/s/ Ulrik Berg Andersen
	/s/ Mogens R. Jensen

	     
	Ulrik Berg Andersen
	Mogens R. Jensen

	Title:
	Vice President
	Senior Vice President





Emerson Electric Co.
Credit Agreement






	
			
	Skandinaviska Enskilda Banken AB (publ), as a

	Lender
	 

	By: 
	/s/ Krissy Rands
	/s/ Duncan Nash

	Title:                  
	 
	 

	                         
	KRISSY RANDS
	DUNCAN NASH





Emerson Electric Co.
Credit Agreement






	
			
	Goldman Sachs Bank USA, as a Lender

	By:  /s/ Mark Walton

	Title:  Authorized Signatory

	 

	Mark Walton
	 

	Authorized Signatory
	 





Emerson Electric Co.
Credit Agreement






	
			
	Bank of China, Chicago Branch, as a Lender

	By:  /s/ Xuehui Zhuang

	Title:  Deputy Branch Manager





Emerson Electric Co.
Credit Agreement






	
			
	THE BANK OF NEW YORK MELLON, as a Lender

	By:  /s/ John T. Smathers

	Title: First Vice President







Emerson Electric Co.
Credit Agreement






PRICING SCHEDULE


	
					
	



Level
	Index Debt Rating  
	Base Rate Spread
	Eurocurrency Spread
	Facility
Fee Rate

	I
	AA-/Aa3 or better . . .    
	0 bps
	57.5 bps
	5.0 bps

	II
	A+/A1 . . . . . . . . . . . .    
	0 bps
	69.0 bps
	6.0 bps

	III
	A/A2 . . . . . . . . . . . . .  
	0 bps
	80.5 bps
	7.0 bps

	IV
	A-/A3 . . . . . . . . . . . . 
	0 bps
	90.0 bps
	10.0 bps

	V
	BBB+/Baa1 . . . . . . .   
	0 bps
	100.0 bps
	12.5 bps

	VI
	BBB/Baa2 or below .   
	10.0 bps
	110.0 bps
	15.0 bps

















SCHEDULE 1.1(a) 
 
COMMITMENT SCHEDULE


	
				
	Lender
	Commitment
	


	J.P. Morgan Chase Bank, N.A.
	$350,000,000

	Citibank, N.A.
	$350,000,000

	Barclays Bank PLC
	$250,000,000

	BNP Paribas
	$250,000,000

	Deutsche Bank AG New York Branch
	$250,000,000

	HSBC Bank USA, N.A.
	$250,000,000

	Royal Bank of Canada
	$175,000,000

	Bank of America, N.A.
	$175,000,000

	Wells Fargo Bank, N.A.
	$175,000,000

	Standard Chartered Bank
	$150,000,000

	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	$150,000,000

	Sumitomo Mitsui Banking Corporation
	$150,000,000

	U.S. Bank National Association
	$150,000,000

	Australia and New Zealand Banking Group Limited
	$100,000,000

	DBS Bank Ltd., Los Angeles Agency
	$100,000,000

	Industrial and Commercial Bank of China, Shanghai   Municipal Branch, No. 2 Business Department
	$75,000,000

	The Northern Trust Company
	$75,000,000

	Nordea Bank Finland Plc
	$75,000,000

	Skandinaviska Enskilda Branken AB (publ)
	$75,000,000

	Goldman Sachs Bank USA
	$75,000,000

	Bank of China, Chicago Branch
	$75,000,000

	The Bank of New York Mellon
	$25,000,000

	TOTAL
	

	$3,500,000,000
	


















SCHEDULE 1.1(b) 
 
EUROCURRENCY PAYMENT OFFICES


	
		
	Currency
	Eurocurrency Payment Office

	Dollars
	JPMorgan Chase Bank, N.A.,  
New York, New York

	Euros
	JPMorgan Chase Bank, N.A.,  
New York, New York

	British Pounds Sterling
	JPMorgan Chase Bank, N.A.,  
New York, New York

	Japanese Yen
	JPMorgan Chase Bank, N.A.,  
New York, New York

















EXHIBIT A-1 - Ratable Note 

RATABLE NOTE
New York, New York 
______________, 20__
For value received, Emerson Electric Co., a Missouri corporation (the “Borrower”), promises to pay to ______________________ (the “Lender”), for the account of its Applicable Lending Office, the unpaid principal amount of each Ratable Loan made by the Lender to the Borrower pursuant to the Credit Agreement referred to below on the maturity date provided for in the Credit Agreement.  The Borrower promises to pay interest on the unpaid principal amount of each such Ratable Loan on the dates and at the rate or rates provided for in the Credit Agreement.  All such payments of principal and interest shall be made in immediately available funds at the place specified pursuant to Article 2 of the Credit Agreement.
All Ratable Loans made by the Lender, the respective types, currencies and maturities thereof and all repayments of the principal thereof shall be recorded by the Lender and, if the Lender so elects in connection with any transfer or enforcement hereof, appropriate notations to evidence the foregoing information with respect to each such Ratable Loan then outstanding may be endorsed by the Lender on the schedule attached hereto, or on a continuation of such schedule attached to and made a part hereof; provided that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Ratable Notes referred to in the Credit Agreement dated as of April 30, 2014 among Emerson Electric Co., the Lenders and LC Issuers parties thereto, and JPMorgan Chase Bank, N.A., as Agent (as the same may be amended from time to time, the “Credit Agreement”).  Terms defined in the Credit Agreement are used herein with the same meanings.  Reference is made to the Credit Agreement for provisions for the prepayment hereof and the acceleration of the maturity hereof.




	
					
	 
	 
	EMERSON ELECTRIC CO.

	 
	 
	 
	 
	 

	 
	 
	By: ________________________________
	 

	 
	 
	Name: ________________________
	 

	 
	 
	Title: _________________________
	 

	 
	 
	 
	 
	 















RATABLE LOANS AND PAYMENTS OF PRINCIPAL


	
						
	Date
	Amount
of
Loan
	Type
of
Loan
	Amount of
Principal
Repaid
	Maturity
Date
	Notation
Made by

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

















EXHIBIT A-2 - Swing Line Note 

SWING LINE NOTE 

New York, New York 
______________, 20__
For value received, Emerson Electric Co., a Missouri corporation (the “Borrower”), promises to pay to ______________________ (the “Lender”), for the account of its Applicable Lending Office, the unpaid principal amount of each Swing Line Loan made by the Lender to the Borrower pursuant to the Credit Agreement referred to below on the maturity date provided for in the Credit Agreement.  The Borrower promises to pay interest on the unpaid principal amount of each such Swing Line Loan on the dates and at the rate or rates provided for in the Credit Agreement.  All such payments of principal and interest shall be made in immediately available funds at the place specified pursuant to Article 2 of the Credit Agreement.
All Swing Line Loans made by the Lender, the respective currencies and maturities thereof and all repayments of the principal thereof shall be recorded by the Lender and, if the Lender so elects in connection with any transfer or enforcement hereof, appropriate notations to evidence the foregoing information with respect to each such Swing Line Loan then outstanding may be endorsed by the Lender on the schedule attached hereto, or on a continuation of such schedule attached to and made a part hereof; provided that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Swing Line Notes referred to in the Credit Agreement dated as of April 30, 2014 among Emerson Electric Co., the Lenders and LC Issuers parties thereto, and JPMorgan Chase Bank, N.A., as Agent (as the same may be amended from time to time, the “Credit Agreement”).  Terms defined in the Credit Agreement are used herein with the same meanings.  Reference is made to the Credit Agreement for provisions for the prepayment hereof and the acceleration of the maturity hereof.
	
					
	 
	 
	 
	EMERSON ELECTRIC CO.
	 

	 
	 
	 
	 
	 

	 
	 
	 
	By:_________________________
	 

	 
	 
	 
	Name:______________________
	 

	 
	 
	 
	Title: ___________________
	 















SWING LINE LOANS AND PAYMENTS OF PRINCIPAL


	
					
	Date
	Amount
of
Loan
	Amount of
Principal
Repaid
	Maturity
Date
	Notation
Made by

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

















EXHIBIT A-3 - Competitive Bid Note 
 

COMPETITIVE BID NOTE 

New York, New York
______________, 20__
For value received, Emerson Electric Co., a Missouri corporation (the “Borrower”), promises to pay to ______________________ (the “Lender”), for the account of its Applicable Lending Office, the unpaid principal amount of each Competitive Bid Loan made by the Lender to the Borrower pursuant to the Credit Agreement referred to below on the maturity date provided for in the Credit Agreement.  The Borrower promises to pay interest on the unpaid principal amount of each such Competitive Bid Loan on the dates and at the rate or rates provided for in the Credit Agreement.  All such payments of principal and interest shall be made in immediately available funds at the place specified pursuant to Article 2 of the Credit Agreement.
All Competitive Bid Loans made by the Lender, the respective types, currencies and maturities thereof and all repayments of the principal thereof shall be recorded by the Lender and, if the Lender so elects in connection with any transfer or enforcement hereof, appropriate notations to evidence the foregoing information with respect to each such Competitive Bid Loan then outstanding may be endorsed by the Lender on the schedule attached hereto, or on a continuation of such schedule attached to and made a part hereof; provided that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Competitive Bid Notes referred to in the Credit Agreement dated as of April 30, 2014 among Emerson Electric Co., the Lenders and LC Issuers parties thereto, and JPMorgan Chase Bank, N.A., as Agent (as the same may be amended from time to time, the “Credit Agreement”).  Terms defined in the Credit Agreement are used herein with the same meanings.  Reference is made to the Credit Agreement for provisions for the prepayment hereof and the acceleration of the maturity hereof.
	
					
	 
	 
	EMERSON ELECTRIC CO.

	 
	 
	 
	 
	 

	 
	 
	By: ________________________________
	 

	 
	 
	Name: ________________________
	 

	 
	 
	Title: _________________________
	 















COMPETITIVE BID LOANS AND PAYMENTS OF PRINCIPAL


	
						
	Date
	Amount
of
Loan
	Type
of
Loan
	Amount of
Principal
Repaid
	Maturity
Date
	Notation
Made by

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

	 

















EXHIBIT B  - Opinion of In-House Counsel for the Borrower
[The opinion of In-House Counsel for the Borrower has been omitted.  The registrant hereby agrees to furnish supplementally a copy of such opinion upon request.]











EXHIBIT C  - Opinion of Special Counsel for the Agent
[The opinion of Special Counsel for the Agent has been omitted.  The registrant hereby agrees to furnish supplementally a copy of such opinion upon request.]















EXHIBIT D  - Assignment and Assumption Agreement
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit, guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”).  Any such sale and assignment may, but need not, include rights of the Assignor in respect of outstanding Competitive Bid Loans.  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
		
	1.
	Assignor:        ____


		
	2.
	Assignee:        


		
	 

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




		
	3.
	Borrower:    Emerson Electric Co.


		
	4.
	Agent:    JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement


		
	5.
	Credit Agreement:    The $3,500,000,000 Credit Agreement dated as of April 30, 2014 among Emerson Electric Co., the financial institutions parties thereto, JPMorgan Chase Bank, N.A., as Agent, and the other agents parties thereto


		
	6.
	Assigned Interest:


1  Select as applicable.









	
			
	Aggregate Amount of Commitment/Loans for all Lenders
	Amount of Commitment/Loans Assigned
	Percentage Assigned of Commitment/Loans2

	$
	$
	%

	$
	$
	%

	$
	$
	%

	 
	 
	 

	 
	 
	 






Effective Date:  _____________ ___, 20___ [TO BE INSERTED BY AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee agrees to deliver to the Agent a completed Administrative Questionnaire in which the Assignee designates one or more Credit Contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its related parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]


By: ______________________    
 
Title:


ASSIGNEE
[NAME OF ASSIGNEE]


By: ______________________    
 
Title:


[Consented to and]3 Accepted:
JPMORGAN CHASE BANK, N.A., as 
Agent


By    ___
 
Title:
[Consented to:]4 
[NAME OF RELEVANT PARTY]

2






By    
 
Title:
_________________________ 
2 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
3To be added only if the consent of the Agent is required by the terms of the Credit Agreement.
4 To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, LC Issuer) is required by the terms of the Credit Agreement.

3






ANNEX 1
STANDARD TERMS AND CONDITIONS FOR 
ASSIGNMENT AND ASSUMPTION
1.    Representations and Warranties.
1.1    Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2.    Assignee.  The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Agent or any other Lender, and (vi) attached to the Assignment and Assumption is any documentation required to be delivered by the Assignee with respect to its tax status pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.    Payments.  From and after the Effective Date, the Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and 









other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3.    General Provisions.  This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

2








EXHIBIT E - Designation Agreement 
(Section 9.07)
DESIGNATION AGREEMENT
dated as of ________________, _____
Reference is made to the Credit Agreement dated as of April 30, 2014 (as amended from time to time, the “Credit Agreement”) among Emerson Electric Co., a Missouri corporation (the “Borrower”), the Lenders and LC Issuers party thereto and JPMorgan Chase Bank, N.A., as Agent (the “Agent”).  Terms defined in the Credit Agreement are used herein with the same meaning.
_________________ (the “Designator”) and ________________ (the “Designee”) agree as follows:
(a)    The Designator designates the Designee as its Designated Lender under the Credit Agreement and the Designee accepts such designation.
(b)    The Designator makes no representations or warranties and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto.
(c)    The Designee confirms that it is an Eligible Designee; appoints and authorizes the Designator as its administrative agent and attorney-in-fact and grants the Designator an irrevocable power of attorney to receive payments made for the benefit of the Designee under the Credit Agreement and to deliver and receive all communications and notices under the Credit Agreement, if any, that the Designee is obligated to deliver or has the right to receive thereunder; and acknowledges that the Designator retains the sole right and responsibility to vote under the Credit Agreement, including, without limitation, the right to approve any amendment or waiver of any provision of the Credit Agreement, and agrees that the Designee shall be bound by all such votes, approvals, amendments and waivers and all other agreements of the Designator pursuant to or in connection with the Credit Agreement, all subject to Section 9.05(b) of the Credit Agreement.
(d)    The Designee confirms that it has received a copy of the Credit Agreement, together with copies of the most recent financial statements referred to in Section 4.04 or delivered pursuant to Section 5.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Designation Agreement; agrees that it will, independently and without reliance upon the Agent, the Designator, any LC Issuer 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 any action it may be permitted to take under the Credit Agreement. The Designee acknowledges that it is subject to and bound by the confidentiality provisions of the Credit Agreement (except as provided in Sections 9.07(a) and 9.09 thereof).









(e)    Following the execution of this Designation Agreement by the Designator and the Designee and the consent hereto by the Borrower, it will be delivered to the Agent for its consent. This Designation Agreement shall become effective when the Agent consents hereto or on any later date specified on the signature page hereof.
(f)    Upon the effectiveness hereof, (i) the Designee shall have the right to make Ratable Loans and/or Competitive Bid Loans or portions thereof as a Lender pursuant to Section 2.02 or 2.05 of the Credit Agreement and the rights of a Lender related thereto and (ii) the making of any such Loans or portions thereof by the Designee shall satisfy the obligations of the Designator under the Credit Agreement to the same extent, and as if, such Loans or portions thereof were made by the Designator.
(g)    This Designation Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Designation Agreement to be executed by their respective officers hereunto duly authorized, as of the date first above written.
Effective Date∗:______ , ____
	
					
	 
	[NAME OF DESIGNATOR]
	 

	 
	 
	 
	 
	 

	 
	By:
	 

	 
	Name: ________________________________________________
	 

	 
	Title: _________________________________________________
	 






_______________
*This date should be no earlier than the date of the Agent's consent hereto.





























	
					
	 
	[NAME OF DESIGNATEE]
	 

	 
	 
	 
	 
	 

	 
	By: __________________________________________
	 

	 
	Name: ________________________________________
	 

	 
	Title: _________________________________________
	 




The undersigned consent to the foregoing designation.
	
					
	 
	EMERSON ELECTRIC CO.
	 

	 
	 
	 
	 
	 

	 
	By:
	 

	 
	Name: ________________________________________
	 

	 
	Title: _________________________________________
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	JPMORGAN CHASE BANK, N.A., as Agent
	 

	 
	 
	 
	 
	 

	 
	By:
	 

	 
	Name: ________________________________________
	 

	 
	Title: _________________________________________
	 

















       EXHIBIT F - Competitive Bid Quote Request                    
(Section 2.05.2)           
__________, ____
		
	To:
	JPMorgan Chase Bank, N.A., 
as  agent (the “Agent”)


		
	From:
	Emerson Electric Co. (the “Borrower”)


		
	Re:
	Credit Agreement dated as of April 30, 2014 (as amended, supplemented or otherwise modified from time to time through the date hereof, the “Agreement”) among the Borrower, the Lenders and LC Issuers from time to time party thereto and JPMorgan Chase Bank, N.A., as Agent


1.    Capitalized terms used herein have the meanings assigned to them in the Agreement.
2.    We hereby give notice pursuant to Section 2.05.2 of the Agreement that we request Competitive Bid Quotes for the following proposed Competitive Bid Advance(s):
Borrowing Date: _________, ____
Principal Amount1    Interest Period2 
$_____________    _____________
3.    Such Competitive Bid Quotes should offer [a Competitive Bid Margin] [an Absolute Rate].
_________________________
1 Amount must be at least $10,000,000 and an integral multiple of $1,000,000.
2 One, two, three or six months (Eurocurrency Auction) or at least 7 and up to 180 days (Absolute Rate Auction), subject to the provisions of the definitions of Eurocurrency Interest Period and the Absolute Rate Interest Period.















EMERSON ELECTRIC CO.
By:
Title:











EXHIBIT G - Invitation for Competitive Bid Quotes 
(Section 2.05.3)
___________, _____
To:    Each of the Lenders party to the Agreement
referred to below
Re:    Invitation for Competitive Bid Quotes to
Emerson Electric Co. (the “Borrower”)
Pursuant to Section 2.05.3 of the Credit Agreement dated as of April 30, 2014 (as amended, supplemented or otherwise modified from time to time through the date hereof, the “Agreement”) among the Borrower, the Lenders and LC Issuers from time to time party thereto and JPMorgan Chase Bank, N.A., as Agent, we are pleased on behalf of the Borrower to invite you to submit Competitive Bid Quotes to the Borrower for the following proposed Competitive Bid Advance(s):
Borrowing Date:  _________, ____
Principal Amount            Interest Period
$_____________            _______________
Such Competitive Bid Quotes should offer [a Competitive Bid Margin] [an Absolute Rate].  Your Competitive Bid Quote must comply with Section 2.05.4 of the Agreement and the foregoing.  Capitalized terms used herein have the meanings assigned to them in the Agreement.
Please respond to this invitation by no later than 9:00 a.m. (Chicago time) on _________, ____.
JPMORGAN CHASE BANK, N.A., 
as Agent
By:
Title:











EXHIBIT H - Competitive Bid Quote
(Section 2.05.4)
_________, ____
To:    JPMorgan Chase Bank, N.A.,
as Agent
Re:    Competitive Bid Quote to Emerson Electric Co. (the “Borrower”)
In response to your invitation on behalf of the Borrower dated _________, ____, we hereby make the following Competitive Bid Quote pursuant to Section 2.05.4 of the Agreement hereinafter referred to on the following terms:
1.    Quoting Lender: ________________
2.    Person to contact at Quoting Lender: ________________
3.     Borrowing Date: _______________1 
		
	4.
	We hereby offer to make Competitive Bid Loan(s) in the following principal amounts, for the following Interest Periods and at the following rates:


Principal    Interest        [Competitive        [Absolute    Maximum
Amount2    Period    3    Bid Margin4]            Rate5   ]     Amount6 
$________     __________    __________        __________    $___________
We understand and agree that the offer(s) set forth above, subject to the satisfaction of the applicable conditions set forth in the Credit Agreement dated as of April 30, 2014 (as amended, supplemented or otherwise modified from time to time through the date hereof, the “Agreement”) among the Borrower, the Lenders and LC Issuers from time to time party thereto and JPMorgan Chase Bank, N.A., as Agent, irrevocably obligates us to make the Competitive Bid Loan(s) for which any offer(s) are accepted, in whole or in part.  Capitalized terms used herein and not otherwise defined herein shall have their meanings as defined in the Agreement.
Very truly yours,
[NAME OF LENDER]


By:     
Title:     









_______________________________________________________ 
1As set forth in the related Invitation of Competitive Bid Quotes.
2 Principal amount bid for each Interest Period may not exceed the principal amount requested.  Bids must be made for at least $5,000,000 and an integral multiple of $1,000,000.
3 One, two three or six months or at least 7 and up to 180 days, as specified in the related Invitation For Competitive Bid Quotes.
4 Competitive Bid Margin over or under the Eurocurrency Reference Rate determined for the applicable Interest Period.  Specify percentage (rounded to the nearest 1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
5 Specify rate of interest per annum (rounded to the nearest 1/10,000 of 1%).
6 Specify maximum amount, if any, which the Borrower may accept (see Section 2.05.4(b)(ii)).









EXHIBIT I-1 – Tax Form
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of April 30, 2014 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Emerson Electric Co. (the “Borrower”) , each lender from time to time party thereto and JPMorgan Chase Bank, National Association, as Agent.
Pursuant to the provisions of Section 8.04 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished the Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Agent and (2) the undersigned shall have at all times furnished the Borrower and the Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By:______________________________________
     Name:
     Title:


DATE: ________ __, 20__











EXHIBIT I-2 – Tax Form
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of April 30, 2014 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Emerson Electric Co. (the “Borrower”) , each lender from time to time party thereto and JPMorgan Chase Bank, National Association, as Agent.
Pursuant to the provisions of Section 8.04 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By:______________________________________
Name:
     Title:


DATE: ________ __, 20__











EXHIBIT I-3 – Tax Form
U.S. TAX COMPLIANCE CERTIFICATE
 (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of April 30, 2014 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Emerson Electric Co. (the “Borrower”) , each lender from time to time party thereto and JPMorgan Chase Bank, National Association, as Agent.
Pursuant to the provisions of Section 8.04 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
     Name:
     Title:


DATE: ________ __, 20__











EXHIBIT I-4 – Tax Form
U.S. TAX COMPLIANCE CERTIFICATE
 (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of April 30, 2014 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Emerson Electric Co. (the “Borrower”) , each lender from time to time party thereto and JPMorgan Chase Bank, National Association, as Agent.
Pursuant to the provisions of Section 8.04 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished the Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By:______________________________________
     Name:
     Title:


DATE: ________ __, 20__