exv10w1



 





Exhibit 10.1




EXECUTION VERSION




 

 






$1,350,000,000




AMENDED AND RESTATED




CREDIT AGREEMENT




among




ZIMMER HOLDINGS, INC.,




ZIMMER K.K.,




ZIMMER INVESTMENT LUXEMBOURG S.C.A.,




THE BORROWING SUBSIDIARIES,




THE LENDERS NAMED HEREIN,




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




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




and




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




Dated as of November 30, 2007




 

 






J.P. Morgan Securities Inc.

and Banc of America Securities LLC,

as Joint Book Managers




J.P. Morgan Securities Inc.,

Banc of America Securities LLC,

Credit Suisse Securities (USA) LLC,

and Citigroup Global Markets Inc.,

as Joint Lead Arrangers




Bank of America, N.A., Credit Suisse, and Citibank, N.A.,

as Co-Syndication Agents




The Royal Bank of Scotland plc and BNP Paribas,

as Co-Documentation Agents




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE I

	 
	 	 	 	 	 	 
	Definitions

	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Defined Terms
	 	 	1	 
	SECTION 1.02.

	 	Classification of Loans and Borrowings
	 	 	23	 
	SECTION 1.03.

	 	Terms Generally
	 	 	23	 
	SECTION 1.04.

	 	Accounting Terms, GAAP
	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 	 	 
	Amount and Terms of the Commitments

	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	Commitments
	 	 	24	 
	SECTION 2.02.

	 	Loans and Borrowings
	 	 	24	 
	SECTION 2.03.

	 	Requests for Borrowings
	 	 	25	 
	SECTION 2.04.

	 	Borrowing Subsidiaries
	 	 	26	 
	SECTION 2.05.

	 	Extension of Maturity Date
	 	 	27	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 
	 	 	 	 	 	 
	Competitive Bid Loans

	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Competitive Bid Procedure
	 	 	28	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 	 	 
	Letters of Credit

	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Letters of Credit
	 	 	30	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 
	 	 	 	 	 	 
	Swingline Loans

	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Swingline Loans
	 	 	34	 






i









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 	 	 
	General Provisions Applicable to Loans

	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Funding of Borrowings
	 	 	36	 
	SECTION 6.02.

	 	Interest Elections
	 	 	36	 
	SECTION 6.03.

	 	Termination and Reduction of Commitments
	 	 	38	 
	SECTION 6.04.

	 	Repayment of Loans; Evidence of Debt
	 	 	38	 
	SECTION 6.05.

	 	Increase in Commitments
	 	 	39	 
	SECTION 6.06.

	 	Prepayment of Loans
	 	 	40	 
	SECTION 6.07.

	 	Fees
	 	 	42	 
	SECTION 6.08.

	 	Interest
	 	 	43	 
	SECTION 6.09.

	 	Alternate Rate of Interest
	 	 	44	 
	SECTION 6.10.

	 	Increased Costs
	 	 	44	 
	SECTION 6.11.

	 	Break Funding Payments
	 	 	46	 
	SECTION 6.12.

	 	Taxes
	 	 	46	 
	SECTION 6.13.

	 	Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	49	 
	SECTION 6.14.

	 	Mitigation Obligations; Replacement of Lenders
	 	 	51	 
	SECTION 6.15.

	 	Restatement Date Borrowings
	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 	 	 
	Representations and Warranties

	 
	 	 	 	 	 	 
	SECTION 7.01.

	 	Organization; Powers
	 	 	52	 
	SECTION 7.02.

	 	Authorization
	 	 	52	 
	SECTION 7.03.

	 	Enforceability
	 	 	52	 
	SECTION 7.04.

	 	Governmental Approvals
	 	 	53	 
	SECTION 7.05.

	 	Financial Statements; No Material Adverse Effect
	 	 	53	 
	SECTION 7.06.

	 	Litigation, Compliance with Laws
	 	 	53	 
	SECTION 7.07.

	 	Federal Reserve Regulations
	 	 	53	 
	SECTION 7.08.

	 	Taxes
	 	 	53	 
	SECTION 7.09.

	 	Employee Benefit Plans
	 	 	54	 
	SECTION 7.10.

	 	Environmental and Safety Matters
	 	 	54	 
	SECTION 7.11.

	 	Properties
	 	 	54	 
	SECTION 7.12.

	 	Investment Company Status
	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 	 	 
	Conditions

	 
	 	 	 	 	 	 
	SECTION 8.01.

	 	Restatement Date
	 	 	55	 
	SECTION 8.02.

	 	Conditions to All Other Extensions of Credit
	 	 	56	 
	SECTION 8.03.

	 	Initial Borrowing by Each Borrowing Subsidiary
	 	 	56	 






ii









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 	 	 
	Affirmative Covenants

	 
	 	 	 	 	 	 
	SECTION 9.01.

	 	Existence
	 	 	57	 
	SECTION 9.02.

	 	Business and Properties
	 	 	57	 
	SECTION 9.03.

	 	Financial Statements, Reports, Etc
	 	 	57	 
	SECTION 9.04.

	 	Insurance
	 	 	58	 
	SECTION 9.05.

	 	Obligations and Taxes
	 	 	58	 
	SECTION 9.06.

	 	Litigation and Other Notices
	 	 	58	 
	SECTION 9.07.

	 	Books and Records
	 	 	59	 
	SECTION 9.08.

	 	Use of Proceeds
	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE X

	 
	 	 	 	 	 	 
	Negative Covenants

	 
	 	 	 	 	 	 
	SECTION 10.01.

	 	Consolidations, Mergers, and Sales of Assets
	 	 	59	 
	SECTION 10.02.

	 	Liens
	 	 	60	 
	SECTION 10.03.

	 	Limitation on Sale and Leaseback Transactions
	 	 	61	 
	SECTION 10.04.

	 	Financial Condition Covenants
	 	 	62	 
	SECTION 10.05.

	 	Indebtedness
	 	 	62	 
	SECTION 10.06.

	 	Transactions with Affiliates
	 	 	62	 
	SECTION 10.07.

	 	Restricted Payments
	 	 	62	 
	SECTION 10.08.

	 	Investments
	 	 	62	 
	 
	 	 	 	 	 	 
	ARTICLE XI

	 
	 	 	 	 	 	 
	Events of Default

	 
	 	 	 	 	 	 
	ARTICLE XII

	 
	 	 	 	 	 	 
	The Administrative Agents

	 
	 	 	 	 	 	 
	ARTICLE XIII

	 
	 	 	 	 	 	 
	Miscellaneous

	 
	 	 	 	 	 	 
	SECTION 13.01.

	 	Notices
	 	 	69	 
	SECTION 13.02.

	 	Survival of Agreement
	 	 	70	 
	SECTION 13.03.

	 	Binding Effect
	 	 	70	 
	SECTION 13.04.

	 	Successors and Assigns
	 	 	70	 






iii









 






	 	 	 	 	 	 	 
	SECTION 13.05.

	 	Expenses, Indemnity
	 	 	74	 
	SECTION 13.06.

	 	Applicable Law
	 	 	74	 
	SECTION 13.07.

	 	Waivers, Amendment
	 	 	74	 
	SECTION 13.08.

	 	Entire Agreement
	 	 	75	 
	SECTION 13.09.

	 	Severability
	 	 	75	 
	SECTION 13.10.

	 	Counterparts
	 	 	76	 
	SECTION 13.11.

	 	Headings
	 	 	76	 
	SECTION 13.12.

	 	Right of Setoff
	 	 	76	 
	SECTION 13.13.

	 	Jurisdiction: Consent to Service of Process
	 	 	76	 
	SECTION 13.14.

	 	Waiver of Jury Trial
	 	 	77	 
	SECTION 13.15.

	 	Conversion of Currencies
	 	 	77	 
	SECTION 13.16.

	 	Guaranty
	 	 	77	 
	SECTION 13.17.

	 	CAM Exchange
	 	 	79	 
	SECTION 13.18.

	 	Letters of Credit
	 	 	80	 
	SECTION 13.19.

	 	Confidentiality
	 	 	80	 
	SECTION 13.20.

	 	Effect of Restatement
	 	 	81	 
	SECTION 13.21.

	 	USA PATRIOT Act Notice
	 	 	82	 
	 
	 	 	 	 	 	 
	SCHEDULES:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.01

	 	Commitments	 	 	 	 
	Schedule 4.01

	 	Existing Letters of Credit	 	 	 	 
	Schedule 10.02

	 	Existing Liens	 	 	 	 
	Schedule 10.06

	 	Transactions with Affiliates	 	 	 	 
	 
	 	 	 	 	 	 
	EXHIBITS:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit A-1

	 	Form of Competitive Bid Request	 	 	 	 
	Exhibit A-2

	 	Form of Notice of Competitive Bid Request	 	 	 	 
	Exhibit A-3

	 	Form of Competitive Bid	 	 	 	 
	Exhibit A-4

	 	Form of Competitive Bid Accept/Reject Letter	 	 	 	 
	Exhibit A-5

	 	Form of Borrowing Request	 	 	 	 
	Exhibit B

	 	Form of Assignment and Acceptance	 	 	 	 
	Exhibit C

	 	Form of Opinion of Baker & Daniels	 	 	 	 
	Exhibit D

	 	Form of Administrative Questionnaire	 	 	 	 
	Exhibit E

	 	Form of Borrowing Subsidiary Agreement	 	 	 	 
	Exhibit F

	 	Form of Borrowing Subsidiary Termination	 	 	 	 
	Exhibit G

	 	Additional Cost	 	 	 	 
	Exhibit H

	 	Form of Maturity Date Extension Request	 	 	 	 







iv











 






                         AMENDED AND RESTATED CREDIT AGREEMENT (the “Agreement”) dated
as of November 30, 2007, among ZIMMER HOLDINGS, INC., a Delaware
corporation (the “Company”), ZIMMER K.K., a company organized
under the laws of Japan (the “Japanese Borrower”), ZIMMER
INVESTMENT LUXEMBOURG S.C.A., a company organized under the laws
of Luxembourg, inclusive of its Winterthur Branch (the “Luxembourg
Borrower”), the BORROWING SUBSIDIARIES (as defined herein), the
LENDERS (as defined herein), JPMORGAN CHASE BANK, N.A., as
administrative agent for the Lenders (in such capacity, the
“General Administrative Agent”), JPMORGAN CHASE BANK, N.A., TOKYO
BRANCH, as administrative agent for the Japanese Lenders (in such
capacity, the “Japanese Administrative Agent”), and J.P. MORGAN
EUROPE LIMITED, as administrative agent for the European Lenders
(in such capacity, the “European Administrative Agent”).



          The parties hereto agree as follows:




ARTICLE I




Definitions




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




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




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




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




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


1









 







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




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




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




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




          “Alternate Base Rate” shall mean for any day, a rate per annum equal to the greater of (a) the
rate of interest per annum publicly announced from time to time by JPMCB as its base rate in effect
at its principal office in New York City and (b) 1/2 of one percent above the Federal Funds
Effective Rate. If for any reason JPMCB shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate
specified in clause (b) of the first sentence of this definition, for any reason, including,
without limitation, the inability or failure of JPMCB to obtain sufficient quotations in accordance
with the terms hereof, the Alternate Base Rate shall be determined without regard to clause (b) of
the first sentence of this definition until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate shall be effective on the effective date of
any change in such rate.




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




          “Applicable Administrative Agent” shall mean, (a) with respect to a Loan or Borrowing
denominated in Dollars, and with respect to any payment hereunder that does not relate to a
particular Loan or Borrowing, the General Administrative Agent, (b) with respect to a Borrowing
denominated in Japanese Yen, the Japanese Administrative Agent, (c) with respect to a Borrowing
denominated in a Committed Currency, the European Administrative Agent and (d) with respect to a
Competitive Borrowing, the Advance Agent.




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




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




          “Arrangers” shall mean J.P. Morgan Securities Inc., Banc of America Securities LLC, Credit
Suisse Securities (USA) LLC and Citigroup Global Markets Inc.


2









 







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




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




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




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




          “Borrowers” shall mean the Company, the Luxembourg
Borrower, the Japanese Borrower and any Borrowing Subsidiary.




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




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




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




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




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




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




          “Business Day” shall mean any day (other than a day which is a Saturday, Sunday or legal
holiday in the State of New York) on which banks are open for business in New York City; provided,
however, that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in dollar


3









 







deposits in the London interbank market, or in the city which is the principal financial center of the country of issuance
of the applicable Alternate Currency.




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




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




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




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




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




          “Cash Equivalents” shall mean (a) marketable direct obligations issued by, or unconditionally
guaranteed or insured by, the United States Government or issued by any agency thereof and backed
by the full faith and credit of the United States, in each case maturing within one year from the
date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits, bankers’
acceptances or overnight bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the laws of the United
States or any state thereof whose short-term commercial paper rating at the time of acquisition is
at least B or the equivalent thereof by Fitch IBCA, A-3 or the equivalent thereof by S&P, or P-3 or
the equivalent thereof by Moody’s; (c) commercial paper of an issuer rated at least A-2 or the
equivalent thereof at the time of acquisition by S&P or at least P-2 or the equivalent thereof at the time of acquisition by Moody’s, or carrying an equivalent rating by
a nationally recognized rating agency, if both of the two named rating agencies cease publishing
ratings of commercial paper issuers generally, and maturing within six months from the date of
acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than 30 days, with respect
to securities issued or fully guaranteed or insured by the United States government; (e) securities
or marketable direct obligations with maturities of one year or less


4









 







from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth or territory or by any
foreign government, the securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by
Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed
by standby letters of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition; or (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition; provided, however, that, in case of any investment by a Foreign Subsidiary, “Cash
Equivalents” shall also include: (i) certificates of deposit, time deposits, Eurodollar time
deposits, bankers’ acceptances or overnight bank deposits having maturities of six months or less
from the date of acquisition issued by any commercial bank located in the same jurisdiction as such
Foreign Subsidiary whose short-term commercial paper rating at the time of acquisition would meet
or exceed those ratings applicable to a Lender set forth in clause (b) hereof, (ii) direct
obligations of the sovereign nation (or any agency thereof) in which such Foreign Subsidiary is
organized or is conducting business or in obligations fully and unconditionally guaranteed by such
sovereign nation (or any agency thereof), in each case maturing within one year from the date of
acquisition, (iii) investments of the type and maturity described in clauses (c) through (f) above
of obligors located in the same jurisdiction as such Foreign Subsidiary, which Investments or
obligors (or the parent of any such obligor) have ratings described in clauses (c) through (f) or
equivalent ratings from comparable foreign rating agencies and (iv) shares of money market mutual
or similar funds which invest exclusively in assets otherwise satisfying the requirements of this
proviso.




          “Change in Control” shall be deemed to have occurred if (a) any Person or group of Persons
(other than (i) the Company, (ii) any Subsidiary or (iii) any employee or director benefit plan or
stock plan of the Company or a Subsidiary or any trustee or fiduciary with respect to any such plan
when acting in that capacity or any trust related to any such plan) shall have acquired beneficial
ownership of shares representing more than 20% of the combined voting power represented by the
outstanding Voting Shares of the Company (within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder)
or (b) during any period of 12 consecutive months, commencing before and ending after, or
commencing after the Restatement Date, individuals who on the first day of such period were
directors of the Company (together with any replacement or additional directors who were nominated
or elected by a majority of directors then in office) cease to constitute a majority of the Board
of Directors of the Company.




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




          “Class” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are U.S. Revolving Loans, Multicurrency


5









 







Revolving Loans, Japanese Revolving Loans, Swingline Loans, or Competitive Loans and when used in
reference to any Commitment, refers to whether such Commitment is a U.S. Commitment, a
Multicurrency Commitment or a Japanese Commitment.




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




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




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




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




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




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




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




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




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




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




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




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




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


6









 







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




          “Consenting Lender” shall have the meaning assigned to such term in Section 2.05.




          “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period
plus, without duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense,
amortization or write-off of debt discount and debt issuance costs and commissions, discounts and
other fees and charges associated with Debt (including the Loans), (c) depreciation and
amortization expense (plus, to the extent GAAP then includes amounts as such expense, amounts of
such expenses (calculated under the current GAAP) for any prior portion of such period if not
otherwise so included), (d) amortization of intangibles (including goodwill) and organization
costs, (e) any extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such Consolidated Net
Income for such period, non-cash losses on sales of assets outside of the ordinary course of
business), (f) any non-cash expenses relating to stock option exercises (if applicable accounting
rules so require) and (g) any other non-cash charges and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a) interest income, (b) any
extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary
course of business) and (c) any other non-cash income, all as determined on a consolidated basis.
For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal
quarters (each, a “Reference Period”) pursuant to any determination of the Consolidated Leverage
Ratio, (i) if at any time during such Reference Period the Company or any Subsidiary shall have
made any Material Disposition, the Consolidated EBITDA for such Reference Period shall be reduced
by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is
the subject of such Material Disposition for such Reference Period or increased by an amount equal
to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if
during such Reference Period the Company or any Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect
thereto as if such Material Acquisition occurred on the first day of such Reference Period. As used
in this definition, “Material Acquisition” means any acquisition of property or series of related
acquisitions of property that (a) constitutes assets comprising all or substantially all of an
operating unit of a business or constitutes all or substantially all of the


7









 







common stock of a Person and (b) involves the payment of consideration by the Company and its Subsidiaries in excess
of $25,000,000; and “Material Disposition” means any Disposition of property or series of related
Dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in
excess of $25,000,000.




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




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




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




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




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




          “Consolidated Total Debt” shall mean, at any date, the aggregate stated balance sheet amount
of all Debt of the Company and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP, minus up to $100,000,000 of cash and cash equivalent investments held in the
United States by the Company and its Domestic Wholly


8









 







Owned Subsidiaries; provided that such cash and cash equivalent investments are free of any Liens.




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




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




          “Currency” shall mean Dollars or any Alternate Currency.




          “Debt” of any Person, shall mean, without duplication, (i) all obligations of such Person
represented by notes, bonds, debentures or similar evidences of indebtedness; (ii) all indebtedness
of such Person for borrowed money or for the deferred purchase price of property or services other
than, in the case of any such deferred purchase price, on normal trade terms, (iii) all rental
obligations of such Person as lessee under leases which shall have been or should be recorded as
Capital Lease Obligations, (iv) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (v) all obligations,
contingent or otherwise, of such Person as an account party or applicant under or in respect of
acceptances, letters of credit, surety bonds or similar arrangements, (vi) the liquidation value of
all preferred capital stock of such Person which is redeemable at the option of the holder thereof
or which may become (by scheduled or mandatory redemption) due within one year of the Maturity
Date, (vii) all Guarantees of such Person in respect of obligations of the kind referred to in
clauses (i) through (vi) above, (viii) all obligations of the kind referred to in clauses (i)
through (vii) above secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including accounts and contract
rights) owned by the applicable Person, whether or not such Person has assumed or become liable for
the payment of such obligation and (ix) for the purposes of paragraph (f) of Article XI only, all
obligations in respect of Hedge Agreements. The Debt of any Person shall include Debt of any other
entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefore as a
result of such Person’s ownership interest in or other relationship with such entity, except to the
extent the terms of such Debt expressly provide that such Person is not liable therefor.




          “Declining Lender” shall have the meaning assigned to such term in Section 2.05.




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




          “Designated Obligations” shall mean all obligations of the Borrowers with respect to (a)
principal of and interest on the Loans of each Class (other than Competitive Loans), (b)


9









 







unreimbursed LC Disbursements and interest thereon and (c) all facility fees and participation fees
under Section 6.07 with respect thereto.




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




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




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




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




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




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




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


10









 






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




          “Euro” and “€” shall mean the single currency of the participating member states of the
European Union as constituted by the Treaty of Rome of March 25, 1957 (as amended by the Single
European Act 1986, the Maastricht Treaty which was signed at Maastricht on February 7, 1992 and
came into force on November 1, 1993), the Amsterdam Treaty (which was signed at Amsterdam on
October 2, 1997 and came into force on May 1, 1999) and the Nice Treaty (which was signed on
February 26, 2001), each as amended from time to time and as referred to in legislative measures of
the European Union for the introduction of, changeover to or operating of the Euro in one or more
member states.




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




          “Eurocurrency Rate” shall mean (a) with respect to any Eurocurrency Borrowing (other than
Borrowings denominated in Euro or Japanese Yen) for any Interest Period, the rate appearing on Page
3740 or Page 3750, as the case may be, of Dow Jones Markets (or on any successor or substitute page
of such service, or any successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as determined by the General
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to deposits in Dollars or the applicable Alternate Currency in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for deposits in Dollars or the applicable Alternate Currency with
a maturity comparable to such Interest Period, (b) with respect to any Eurocurrency Borrowing
denominated in Euro for any Interest Period, the rate appearing on page 248 of Dow Jones Markets
(it being understood that this rate is the Euro interbank offered rate (known as the “EURIBOR
Rate”) sponsored by the Banking Federation of the European Union (known as the “FBE”) and the
Financial Markets Association (known as the “ACI”)) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate for deposits in Euro
with a maturity comparable to such Interest Period, and (c) with respect to any Eurocurrency Borrowing
denominated in Japanese Yen for any Interest Period, the rate appearing on the TIBM Page under the
caption “Average 10 Banks” of Reuters (or on any successor or substitute page of such service, or
any successor to or substitute for such service, providing rate quotations comparable


11









 







to those currently provided on such page of such service, as determined by General Administrative Agent from
time to time for purposes of providing quotations of interest rates applicable to deposits in
Japanese Yen in the Tokyo interbank market) at approximately 11:00 a.m., Tokyo time, two Business
Days prior to the commencement of such Interest Period, as the rate for deposits in Japanese Yen
with a maturity comparable to such Interest Period. In the event that such rate is not available at
such time for any reason, then the “Eurocurrency Rate” with respect to such Eurocurrency Borrowing
for such Interest Period shall be the rate per annum (rounded upwards, if necessary, to the next
Basis Point) equal to the arithmetic average of the rates at which deposits in Dollars or the
applicable Alternate Currency approximately equal in principal amount to such Borrowing and for a
maturity comparable to such Interest Period are offered (x) with respect to any Eurocurrency
Borrowing (other than Borrowings denominated in Japanese Yen), to the principal London offices of
the Reference Lenders (or, if any Reference Lender does not at the time maintain a London office,
the principal London office of any Affiliate of such Reference Lender) in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period and (y) with respect to any Eurocurrency
Borrowing denominated in Japanese Yen, to the principal Tokyo offices of the Reference Lenders (or,
if any Reference Lender does not at the time maintain a Tokyo office, the principal Tokyo office of
any Affiliate of such Reference Lender) in immediately available funds in the Tokyo interbank
market at approximately 11:00 a.m., Tokyo time, two Tokyo Business Days prior to the commencement
of such Interest Period; provided, however, that, if only two Reference Lenders notify the General
Administrative Agent of the rates offered to such Reference Lenders (or any Affiliates of such
Reference Lenders) as aforesaid, the Eurocurrency Rate with respect to such Eurocurrency Borrowing
shall be equal to the arithmetic average of the rates so offered to such Reference Lenders (or any
such Affiliates).




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




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




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




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




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


12









 







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




          “Existing Credit Agreement” shall mean the Amended and Restated Revolving Credit and Term Loan
Agreement dated as of March 31, 2005, among the Company, Zimmer, Inc., the Japanese Borrower,
Zimmer Ltd., Zimmer Switzerland Holdings Ltd., the Luxembourg Borrower, Zimmer GmbH, the
Subsidiaries party thereto, the lenders from time to time party thereto and the Administrative
Agents.




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




          “Existing Maturity Date” shall have the meaning assigned to such term in Section 2.05.




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




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




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


13









 







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




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




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




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




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




          “Governmental Authority” shall mean the government of any nation, including, but not limited
to, the United States of America, or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.




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




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




          “Hedge Agreements” shall mean all interest rate swaps, caps or collar agreements, foreign
exchange transactions or other arrangements dealing with interest rates or currency


14









 







exchange rates or the exchange of nominal interest obligations or foreign currencies, either generally or under
specific contingencies.




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




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




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




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




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




          “Investment Grade Standing” shall exist at any time when the actual Rating from S&P is at or
above BBB- or the actual Rating from Moody’s is at or above Baa3. If either S&P


15









 







or Moody’s shall change its system of classifications after the Restatement Date, Investment Grade
Standing shall exist at any time when the actual Rating is at or above the new Rating which most
closely corresponds to the above-specified level under the previous rating system.




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




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




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




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




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




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




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




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




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




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


16









 






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




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




          “Letter Agreement” shall mean the Fee Letter dated October 16, 2007, between the Company and
the General Administrative Agent.




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




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




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




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




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




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




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




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




          “Maturity Date” shall mean November 30, 2012, as such date may be extended pursuant to Section
2.05.




          “Maturity Date Extension Request” shall mean a request by the Company, substantially in the
form of Exhibit H or such other form as shall be approved by the General Administrative Agent, for
the extension of the Maturity Date pursuant to Section 2.05.


17









 







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




          “Multicurrency Commitment” shall mean, as to any Multicurrency Lender at any time, its
obligation to make Multicurrency Revolving Loans to the European Borrower and the U.S. Borrower in
an aggregate Dollar Equivalent amount not to exceed at any time outstanding the amount set forth
opposite such Multicurrency Lender’s name in Part C of Schedule 2.01 under the heading
“Multicurrency Commitment”, as such amount may be reduced from time to time pursuant to Section
6.03 and the other applicable provisions hereof, or increased from time to time pursuant to Section
6.05. The initial aggregate amount of the Multicurrency Commitments is $750,000,000.




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




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




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




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




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




          “Permitted Debt” shall mean (i) Debt of any Subsidiary to any Borrower, (ii) Guarantees by any
Subsidiary of Debt of any Borrower (other than the Company) and Guarantees by the Company of any
Debt of any Subsidiary, (iii) any Debt incurred pursuant to Sale and Leaseback Transactions permitted
under Section 10.03, (iv) Debt of any Subsidiary as an account party in respect of trade letters of
credit, to the extent that such letters of credit are not drawn upon, (v) Debt assumed in
connection with any Investment permitted under Section 10.08, (vi) Debt secured by any Lien
permitted pursuant to Section 10.02 (b) or (q), (vii) Debt consisting of guarantees of loans made
to officers, directors or employees of any Subsidiary, (viii) unsecured trade accounts payable and
other unsecured current Debt incurred in the ordinary course of business and not more than 120 days
past due (but excluding any Debt for borrowed money), (ix)any Permitted Receivables Securitization,
(x) Debt with respect to surety, appeal and performance bonds obtained by any Subsidiary in the
ordinary course of business, and (xi) any replacement, renewal, refinancing or extension of any
Debt referenced above that does not exceed the aggregate principal amount (plus associated fees and
expenses) of the Debt being replaced, renewed, refinanced or extended (except that accrued and
unpaid interest not delinquent in accordance with its terms may be part of any refinancing pursuant
to this clause) and that otherwise complies with this Agreement.




          “Permitted Receivables Securitization” shall mean the incurrence of Debt in respect of any
receivables securitization of the Company or any Subsidiary, provided that the


18









 







aggregate principal amount of all Permitted Receivables Securitizations outstanding at any time shall not exceed
$200,000,000.




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




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




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




	 	 	 	 	 	 	 	 	 	 	 	 	 
	S&P/Moody's Rating	 	 	 	 	 	Applicable	 	 
	Equivalent of the	 	 	 	 	 	Margin for	 	 
	Company's senior	 	 	 	 	 	Eurocurrency	 	 
	unsecured non-credit	 	Facility Fee	 	Revolving Loans	 	Utilization Fee
	enhanced long-term debt	 	(in Basis Points)	 	(in Basis Points)	 	(in Basis Points)
	A /A2 or better
	 	 	5.0	 	 	 	15.0	 	 	 	5.0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	A-/A3 or

BBB+/A3 or

A-/Baa1
	 	 	6.5	 	 	 	18.5	 	 	 	5.0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BBB+/Baa1 or

BBB/Baa1 or 

BBB+/Baa2
	 	 	8.0	 	 	 	27.0	 	 	 	10.0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BBB/Baa2 or 

BBB-/Baa2 or 

BBB/Baa3
	 	 	10.0	 	 	 	35.0	 	 	 	10.0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BBB-/Baa3

or lower or unrated
	 	 	15.0	 	 	 	47.5	 	 	 	12.5	 






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


19









 







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




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




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




          “Reference Lenders” shall mean Bank of America, N.A., JPMCB and Credit Suisse.




          “Released Parties” shall mean Zimmer, Inc., Zimmer Ltd., Zimmer Switzerland Holdings Ltd.,
Zimmer GmbH and each Subsidiary Guarantor (under and as defined in the Existing Credit Agreement).




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




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




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




          “Restatement Date” shall mean November 30, 2007.




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




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




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




          “Sale and Leaseback Transaction” shall mean any arrangement with any Person pursuant to which
the Company or any Subsidiary leases any property that has been or is to be sold or transferred by the Company or
the Subsidiary to such Person, other than (i) temporary leases for a term, including renewals at
the option of the lessee, of not more than three years,



20









 







(ii) leases between the Company and a Subsidiary or between Subsidiaries, (iii) leases of property
executed by the time of, or within 12 months after the latest of, the acquisition, the completion
of construction or improvement, or the commencement of commercial operation, of such property and
(iv) arrangements pursuant to any provision of law with an effect similar to that under former
Section 168(f)(8) of the Internal Revenue Code of 1954.




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




          “SEC” shall mean the Securities and Exchange Commission.




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




          “subsidiary” shall mean, with respect to any Person (the “parent”) at any date, (a) for
purposes of Sections 10.03 and 10.06 only, any Person the majority of the outstanding Voting Stock
(or equivalent voting securities of any Person which is not a corporation) of which is owned,
directly or indirectly, by the parent or one or more subsidiaries of the parent of such Person and
(b) for all other purposes under this Agreement, any corporation, limited liability company,
partnership, association or other entity the accounts of which would be consolidated with those of
the parent in the parent’s consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other corporation, limited
liability company, partnership, association or other entity of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the ordinary voting power
or, in the case of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held.




          “Subsidiary” shall mean a subsidiary of the Company.




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




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




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




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




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




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





21











 





          “U.S. Borrower” shall mean the Company and any Borrowing Subsidiary that is a Domestic Wholly
Owned Subsidiary.




          “U.S. Commitment” shall mean, as to any U.S. Lender at any time, its obligation to make U.S.
Revolving Loans to, and/or participate in Swingline Loans made to and Letters of Credit issued for
the account of, any U.S. Borrower in an aggregate amount not to exceed at any time outstanding the
Dollar amount set forth opposite such U.S. Lender’s name in Part A of Schedule 2.01 under the
heading “U.S. Commitment”, as such amount may be reduced from time to time pursuant to Section 6.03
and the other applicable provisions hereof, or increased from time to time pursuant to Section
6.05. The initial aggregate amount of the U.S. Commitments is $400,000,000.




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




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




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




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




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




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




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




22









 








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




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




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




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




23









 







ARTICLE II




Amount and Terms of the Commitments




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




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




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




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




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




24









 








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




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




          (e) Subject to Section 6.09, (i) each Revolving Borrowing denominated in Dollars shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Company (on its own behalf or on
behalf of any other applicable Borrower) may request in accordance herewith, (ii) each Competitive
Borrowing shall be comprised entirely of Eurocurrency Loans or Fixed Rate Loans as the Company (on
its own behalf or on behalf of any other Borrower) may request in accordance herewith and (iii)
each Revolving Borrowing denominated in an Alternate Currency shall be comprised entirely of
Eurocurrency Loans. Each Lender at its option may make any Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of any Borrower to repay such Loan in accordance with the terms of
this Agreement.




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




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




          SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing, the applicable
Borrower or the Company (on its own behalf or on behalf of any other Borrower) shall notify the
Applicable Administrative Agent and the General Administrative Agent of such request by telephone
(a) in the case of a Borrowing denominated in Yen, not later than 1:30 p.m., Local Time, four
Business Days before the date of the proposed Borrowing, (b) in the case of a Eurocurrency
Borrowing denominated in a currency other than Yen, not later than 1:30 p.m., Local Time, three
Business Days before the date of the proposed Borrowing or (c) in the case of





25









 







an ABR Borrowing,
not later than 12:00 noon, New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the applicable Administrative Agent and the General Administrative Agent of a
written Borrowing Request in the form of Exhibit A-5. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:





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




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




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




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




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




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




     (vii) the applicable Borrower.


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




     SECTION 2.04. Borrowing Subsidiaries. The Company may designate any Wholly Owned Subsidiary
of the Company as a Borrowing Subsidiary under any of the Commitments; provided that the
Administrative Agent shall be reasonably satisfied that the applicable Lenders may make loans and
other extensions of credit to such Person in the applicable Currency or Currencies in such Person’s
jurisdiction in compliance with applicable laws and regulations and without being subject to any
unreimbursed or unindemnified Tax or other expense. Upon the receipt by the General Administrative
Agent of a Borrowing Subsidiary Agreement executed by such a Wholly Owned Subsidiary and the
Company, such Wholly Owned Subsidiary shall be a Borrowing Subsidiary and a party to this
Agreement. A Subsidiary shall cease to be a Borrowing Subsidiary hereunder at such time as no
Loans, fees or any other



26









 




amounts due in connection therewith pursuant to the terms hereof shall be
outstanding to such Subsidiary and such Subsidiary and the Company shall have executed and
delivered to the General Administrative Agent a Borrowing Subsidiary Termination; provided that,
notwithstanding anything herein to the contrary, no Borrowing Subsidiary shall cease to be a
Borrowing Subsidiary solely because it no longer is a Wholly Owned Subsidiary of the Company so
long as such Borrowing Subsidiary and the Company shall not have executed and delivered to the
General Administrative Agent a Borrowing Subsidiary Termination and the Company’s guarantee of the
Borrower Obligations of such Borrowing
Subsidiary pursuant to Section 13.16 has not been released.




          SECTION 2.05. Extension of Maturity Date. The Company may, by delivery of a Maturity Date
Extension Request to the General Administrative Agent (which shall promptly deliver a copy to each
of the Lenders) not less than 45 days and not more than 85 days prior to any anniversary of the
Effective Date, request that the Lenders extend the Maturity Date for an additional period of one
year; provided that there shall be no more than two extensions of the Maturity Date pursuant to
this Section. Each Lender shall, by notice to the Company and the General Administrative Agent
given not later than the 20th day after the date of the General Administrative Agent’s receipt of
the Company’s Maturity Date Extension Request, advise the Company whether or not it agrees to the
requested extension (each Lender agreeing to a requested extension being called a “Consenting
Lender”, and each Lender declining to agree to a requested extension being called a “Declining
Lender”). Any Lender that has not so advised the Company and the General Administrative Agent by
such day shall be deemed to have declined to agree to such extension and shall be a Declining
Lender; provided that a Declining Lender may, with the written consent of the Company, elect to
become a Consenting Lender by providing written notice of such election to the Company and the
General Administrative Agent at any time prior to the Existing Maturity Date. If Lenders
constituting the Required Lenders shall have agreed to a Maturity Date Extension Request within the
20-day period described above, then the Maturity Date shall, as to the Consenting Lenders, be
extended to the first anniversary of the Maturity Date theretofore in effect (such Maturity Date
being called the “Existing Maturity Date”). The decision to agree or withhold agreement to any
Maturity Date Extension Request shall be at the sole discretion of each Lender. The Commitment of
any Declining Lender shall terminate on the Existing Maturity Date. The principal amount of any
outstanding Loans made by Declining Lenders, together with any accrued interest thereon and any
accrued fees and other amounts payable to or for the account of such Declining Lenders hereunder,
shall be due and payable on the Existing Maturity Date, and on the Existing Maturity Date the
Borrowers shall also make such other prepayments of their Loans pursuant to Section 6.06 as shall
be required in order that, after giving effect to the termination of the Commitments of, and all
payments to, Declining Lenders pursuant to this sentence, the sum of the Revolving Credit Exposures
plus the Competitive Loan Exposure would not exceed the total Commitments. Notwithstanding the
foregoing provisions of this paragraph, the Company shall have the right, pursuant to Section
6.14(b), at any time on or prior to the Existing Maturity Date, to replace a Declining Lender
with one or more Lenders or other financial institutions that will agree to the applicable Maturity
Date Extension Request, and each such replacement Lender or financial institution shall for all
purposes constitute a Consenting Lender. Notwithstanding the foregoing, no extension of the
Maturity Date pursuant to this paragraph shall become effective unless on the anniversary of the
Effective Date that immediately follows the date on which the Company delivers the applicable
Maturity Date Extension Request, the conditions set forth in Sections 8.02 (c) and (d)




27









 







shall be
satisfied and the General Administrative Agent shall have received a certificate to that effect
dated on such anniversary of the Effective Date and executed by a Financial Officer of the Company.




ARTICLE III




Competitive Bid Loans




     SECTION 3.01. Competitive Bid Procedure. (a) Subject to the terms and conditions set forth
herein, from time to time during the Revolving Availability Period the Company (on its own behalf
or on behalf of any other Borrower) may request Competitive Bids and the Company (on its own behalf
or on behalf of any other Borrower) may (but shall not have any obligation to) accept Competitive
Bids and borrow Competitive Loans; provided that (i) the sum of the total Revolving Credit
Exposures plus the total Competitive Loan Exposures shall not exceed the total Commitments or (ii)
in the event the Maturity Date shall have been extended as provided in Section 2.05, the sum of the
LC Exposures attributable to Letters of Credit expiring after any Existing Maturity Date and the
Competitive Loans maturing after such Existing Maturity Date shall not exceed the aggregate
Commitments of the Consenting Lenders. To request Competitive Bids, the Company (on its own behalf
or on behalf of any other Borrower) shall hand deliver or telecopy to the Advance Agent a duly
completed Competitive Bid Request in the form of Exhibit A-1 hereto, to be received by the Advance
Agent, in the case of a Eurocurrency Borrowing, not later than 10:00 a.m., New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of a Fixed Rate Borrowing,
not later than 10:00 a.m., New York City time, two Business Days before the date of the proposed
Borrowing. A Competitive Bid Request that does not conform substantially to Exhibit A-1 may be
rejected in the Advance Agent’s sole discretion, and the Advance Agent shall promptly notify the
Company
of such rejection by telecopy. Each Competitive Bid Request shall specify the following
information in compliance with Section 2.02:




     (i) the aggregate amount of the requested Borrowing;




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




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




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




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




     (vi) the applicable Borrower.


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




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          (b) Each Lender may (but shall not have any obligation to) make one or more Competitive Bids
to such Borrower in response to a Competitive Bid Request. Each Competitive Bid by a Lender must
be received by the Advance Agent by telecopy, in the form of Exhibit A-3 hereto, in the case of a
Eurocurrency Competitive Borrowing, not later than 9:30 a.m., New York City time, three Business
Days before the proposed date of such Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 11:30 a.m., New York City time, one Business Day before the proposed date
of such Competitive Borrowing. Competitive Bids that do not conform substantially to the format of
Exhibit A-3 may be rejected by the Advance Agent, and the Advance Agent shall notify the applicable
Lender as promptly as practicable. Each Competitive Bid shall specify (i) the principal amount of
the Competitive Loan or Loans that the Lender is willing to make (which shall be a minimum of
$5,000,000 and an integral multiple of $1,000,000, and which may equal the entire principal amount
of the Competitive Borrowing Request by such Borrower), (ii) the Competitive Bid Rate or Rates at
which the Lender is prepared to make such Loan or Loans
(expressed as a percentage rate per annum in the form of a decimal to no more than four
decimal places) and (iii) the Interest Period applicable to each such Loan and the last day
thereof.




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




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




29









 







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




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




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




ARTICLE IV




Letters of Credit




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




          (b) Notice of Issuance; Amendment; Renewal; Extension; Certain Conditions. To request the
issuance of a Letter of Credit (or
the amendment, renewal or extension of an outstanding Letter of Credit), the Company (on
behalf of itself or any Borrowing Subsidiary) shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing Lender) to
the Issuing Lender and the General Administrative Agent (reasonably in advance of the requested
date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended, the date of
issuance, amendment, renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section 4.01), the amount of such Letter of Credit,
the name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Lender, the
Company (on behalf of itself or any Borrowing Subsidiary) also shall submit a letter of credit
application on




30









 







the Issuing Lender’s standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit, the Borrowers shall be deemed
to represent and warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $50,000,000, (ii) the sum of the total U.S.
Revolving Credit Exposures shall not exceed the total U.S. Commitments, (iii) the sum of the total
Revolving Credit Exposures plus the total Competitive Loan Exposures shall not exceed the total
Commitments and (iv) in the event the Maturity Date shall have been extended as provided in Section
2.05, the sum of the LC Exposures attributable to Letters of Credit expiring after any Existing
Maturity Date and the Competitive Loans maturing after such Existing Maturity Date shall not exceed
the total Commitments of the Consenting Lenders.




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




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




          (e) Reimbursement. If the Issuing Lender shall make any LC Disbursement in respect of a Letter
of Credit, the applicable Borrower shall reimburse such LC Disbursement by paying to the General
Administrative Agent an amount equal to such LC Disbursement not later than 2:00 p.m., New York
City time, on the date that such LC Disbursement is made, if such Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by such Borrower prior to such time on such date, then not later than
2:00 p.m., New York City time, on (i) the Business Day that such Borrower receives such notice, if
such notice is received prior to 10:00 a.m., New York City time, on the day of receipt or (ii) the
Business Day immediately following the day that such Borrower receives such notice, if such notice
is not received prior to such time on the day of receipt; provided that the Company (on behalf of
itself or the applicable Borrowing Subsidiary) may, subject to the conditions to borrowing set
forth herein, request in





31









 







accordance with Section 2.03 that such payment be financed with a U.S.
Revolving Loan or Swingline Loan in an equivalent amount and, to the extent so financed, such
Borrower’s obligation to make such payment shall be discharged and replaced by the resulting U.S.
Revolving Loan or Swingline Loan. If such Borrower fails to make such payment when due, the General
Administrative Agent shall notify each U.S. Lender of the applicable LC Disbursement, the payment
then due from such Borrower in
respect thereof and such U.S. Lender’s U.S. Commitment Percentage thereof. Promptly following
receipt of such notice, each U.S. Lender shall pay to the General Administrative Agent its U.S.
Commitment Percentage of the payment then due from such Borrower, in the same manner as provided in
Section 6.01 with respect to U.S. Revolving Loans made by such U.S. Lender (and Section 6.01 shall
apply, mutatis mutandis, to the payment obligations of the U.S. Lenders), and the General
Administrative Agent shall promptly pay to the Issuing Lender the amounts so received by it from
the U.S. Lenders. Promptly following receipt by the General Administrative Agent of any payment
from such Borrower pursuant to this paragraph, the General Administrative Agent shall distribute
such payment to the Issuing Lender or, to the extent that U.S. Lenders have made payments pursuant
to this paragraph to reimburse the Issuing Lender, then to such U.S. Lenders and the Issuing Lender
as their interests may appear. Any payment made by a U.S. Lender pursuant to this paragraph to
reimburse the Issuing Lender for any LC Disbursement (other than the funding of U.S. Revolving
Loans as contemplated above) shall not constitute a Loan and shall not relieve such Borrower of its
obligation to reimburse such LC Disbursement.




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





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




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




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




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




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



32









 






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


Neither the General Administrative Agent, the Lenders nor the Issuing Lender nor any of their
Affiliates, directors, officers, employees and agents, shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder, including any of the circumstances specified in clauses
(i) through (vi) above, as well as any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Lender;
provided that the foregoing shall not be construed to excuse the Issuing Lender from liability to
such Borrower to the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrowers to the extent permitted by applicable law)
suffered by such Borrower that are caused by the Issuing Lender’s failure to exercise the agreed
standard of care (as set forth below) in determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that
the Issuing Lender shall have exercised the agreed standard of care in the absence of gross
negligence or wilful misconduct on the part of the Issuing Lender. Without limiting the generality
of the foregoing, it is understood that the Issuing Lender may accept documents that appear on
their face to be in substantial compliance with the terms of a Letter of Credit, without
responsibility for further
investigation, regardless of any notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in substantial compliance with the terms
of such Letter of Credit; provided that the Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such payment if such documents are not
in strict compliance with the terms of such Letter of Credit.




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




          (h) Interim Interest. If the Issuing Lender shall make any LC Disbursement, unless the
Borrowers shall reimburse (including with the proceeds of Loans as provided in Section 4.01(e))
such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC Disbursement is made to but
excluding the date that the Borrowers reimburse such LC Disbursement at the rate per annum
specified in Section 6.08(a); provided that, if the Borrowers fail to reimburse (including with the
proceeds of Loans as provided in Section 4.01(e)) such LC,




33









 







Disbursement when due pursuant to paragraph (e) of this Section 4.01, then Section 6.08(d) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Lender,
except that interest accrued on and after the date of payment by any U.S. Lender pursuant to
paragraph (e) of this Section 4.01 to reimburse the Issuing Lender shall be for the account of such
U.S. Lender to the extent of such payment.




          (i) 
Resignation or Removal of the Issuing Lender. The Issuing Lender may resign at any time by
giving at least 30 days’ prior written notice to the General Administrative Agent and the Company,
and may be removed at any time by the Company by notice to the Issuing Lender and the General
Administrative Agent. Upon the acceptance of any
appointment as the Issuing Lender hereunder by a Lender that shall agree to serve as successor
Issuing Lender, such successor shall succeed to and become vested with all the interests, rights
and obligations of the retiring Issuing Lender and the retiring Issuing Lender shall be discharged
from its obligations to issue additional Letters of Credit hereunder. At the time such removal or
resignation shall become effective, the Company shall pay all accrued and unpaid fees pursuant to
Section 6.07(c)(ii). The acceptance of any appointment as the Issuing Lender hereunder by a
successor Lender shall be evidenced by an agreement entered into by such successor, in a form
satisfactory to the Company and the General Administrative Agent, and, from and after the effective
date of such agreement, (i) such successor Lender shall have all the rights and obligations of the
previous Issuing Lender under this Agreement and the other Loan Documents and (ii) references
herein and in the other Loan Documents to the term “Issuing Lender” shall be deemed to refer to
such successor or to any previous Issuing Lender, or to such successor and all previous Issuing
Lenders, as the context shall require. After the resignation or removal of the Issuing Lender
hereunder, the retiring Issuing Lender shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Lender under this Agreement and the other Loan Documents
with respect to Letters of Credit issued by it prior to such resignation or removal, but shall not
be required to issue additional Letters of Credit.




ARTICLE V




Swingline Loans




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




34









 








          (b) To request a Swingline Loan, the Company (on behalf of itself or any Borrowing Subsidiary)
shall notify the General Administrative Agent of such request by telephone (confirmed by telecopy),
not later than 3:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such
notice shall be irrevocable and shall specify the requested date (which shall be a Business Day)
and amount of the requested Swingline Loan. The General Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Company (on behalf of itself or any
Borrowing Subsidiary). The Swingline Lender shall make each Swingline Loan available to such
Borrower by means of a credit to the general deposit account of such Borrower with the Swingline
Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement
as provided in Section 4.01, by remittance to the Issuing Lender) by 4:00 p.m., New York City time,
on the requested date of such Swingline Loan.




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




35









 








ARTICLE VI




General Provisions Applicable to Loans




          SECTION 6.01. Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available funds in the
applicable Currency to the account of the Applicable Administrative Agent or an Affiliate thereof,
most recently designated by it for such purpose by notice to the Lenders, by 2:00 p.m., Local Time
or, in the case of any Japanese Revolving Loan by 12:00 noon, Local Time. The Applicable
Administrative Agent will make Loans available to the applicable Borrower by promptly crediting the
amounts so received, in like funds, to an account of such Borrower maintained with the Applicable
Administrative Agent in (i) New York City with respect to Loans made in Dollars, (ii) London with
respect to Loans made in a Committed Currency and (iii) Tokyo with respect to Loans made in
Japanese Yen, as the case may be. If a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, the Applicable Administrative Agent shall
return the amounts so received to the respective Lenders.




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




          SECTION 6.02. Interest Elections. (a) Each Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the applicable Borrower
or the Company (on its own behalf or on behalf of any other Borrower) may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency
Borrowing, may elect Interest Periods therefor, all as provided in this Section. The applicable
Borrower or the Company (on its own behalf or on




36









 







behalf of any other Borrower) may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Competitive Borrowings, which may not be
converted or continued.




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




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





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




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




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




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


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




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




          (e) If the Company or the applicable Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Borrowing prior to the end of the




37









 







Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be (i) converted to an ABR Borrowing if it is
denominated in Dollars or (ii) continued as such with an Interest Period of one month if it is
denominated in an Alternate Currency.




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




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




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




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




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




          (c) Each of the Borrowers hereby unconditionally promises to pay to the European
Administrative Agent for the account of each Multicurrency Lender (i) on the Maturity Date, the
then unpaid principal amount of its Multicurrency Revolving Loans and (ii) the then





38









 







unpaid
principal amount of each Competitive Loan made by such Multicurrency Lender to such Borrower on the
last day of the Interest Period applicable to such Loan.




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




          (e) Each Administrative Agent shall maintain a Register pursuant to subsection 13.04(d) and an
account for each applicable Lender in which it shall record (i) the amount of each Loan made
hereunder and any promissory note evidencing such Loan, the Class and Type thereof (and, in
the case of an Alternate Currency Loan, the Currency) and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by such Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.




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




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




          SECTION 6.05. Increase in Commitments. (a) The Company may, by written notice to the General
Administrative Agent from time to time (which notice the General Administrative Agent shall
promptly forward to the Lenders), request that the Commitment of any Class be increased by an
amount not to exceed the Incremental Facility Amount at such time. Such notice shall set forth the
amount of the requested increase (which shall be in minimum increments of $1,000,000 and a minimum
amount of $10,000,000 or equal to the remaining Incremental Facility Amount), the Class or Classes
of the requested increase and the date on which such increase is requested to become effective
(which shall be not less than 10 Business Days nor more than 60 days after the date of such notice
and which, in any event, must be on or prior to the Maturity Date), and shall offer each Lender of
the affected Class the opportunity to
increase its Commitment by its Applicable Percentage of such Class of the proposed increased
amount. Each Lender of the affected Class shall, by notice to the Company and the General
Administrative Agent given not more than 10 days after the date of the General Administrative
Agent’s notice, either agree to increase its Commitment by all or a portion of the




39









 







offered amount
(each Lender so agreeing being an “Increasing Lender”) or decline to increase its Commitment (and
any Lender that does not deliver such a notice within such period of 10 days shall be deemed to
have declined to increase its Commitment) (each Lender so declining or being deemed to have
declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the General
Administrative Agent’s notice, the Lenders shall have agreed pursuant to the preceding sentence to
increase their Commitments by an aggregate amount less than the increase requested by the Company,
the Company may arrange for one or more banks or other entities (any such bank or other entity
being called an “Augmenting Lender”), which may include any Lender, to extend Commitments or
increase their existing Commitments of the affected Class in an aggregate amount equal to the
unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall
be subject to the approval of the Administrative Agents (which approval shall not be unreasonably
withheld), and the Borrowers and each Augmenting Lender shall execute all such documentation as the
General Administrative Agent shall reasonably specify to evidence its Commitment and/or its status
as a Lender hereunder. Any increase in the Commitments of any Class may be made in an amount which
is less than the increase requested by the Company if the Company is unable to arrange for, or
chooses not to arrange for, Augmenting Lenders.




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




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




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




          (b) A Borrower shall notify the General Administrative Agent and the Applicable Administrative
Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Borrowing, not later than 12:00 noon,




40









 







Local Time, three Business Days before the date of prepayment, and (ii) in the case of prepayment
of an ABR Borrowing, not later than 12:00 noon, New York City time, one Business Day before the
date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and
the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided
that, if a notice of prepayment is given in connection with a conditional notice of termination of
any Commitments as contemplated by Section 6.03, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 6.03. Promptly following receipt
of any such notice relating to a Borrowing, the Applicable Administrative Agent shall advise the
applicable Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the same Commitment and
Type as provided in Section 2.02, except as necessary to apply fully the required amount of a
mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by
Section 6.08.




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




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




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




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





41











 





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



          SECTION 6.07. Fees. (a) The Company agrees to pay to the General Administrative Agent
for the account of each Lender a facility fee, which shall accrue at the facility fee rate set
forth in the Pricing Grid from time to time on the daily amount of the Commitments of such Lender
(whether used or unused) during the period from and including the Restatement Date to but excluding
the date on which such Commitments terminate; provided that, if such Lender continues to
have any Revolving Credit Exposure after its Commitments terminate, then such facility fee shall
continue to accrue on the daily amount of such Lender’s Revolving Credit Exposure from and
including the date on which its Commitments terminate to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued facility fees shall be payable in
arrears on the last day of March, June, September and December of each year and on the date on
which the Commitments terminate, commencing on the first such date to occur after the Restatement
Date; provided that any facility fees accruing after the date on which the Commitments
terminate shall be payable on demand. All facility fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).



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



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



          (d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the General Administrative Agent for distribution, in the case of facility fees



42









 







and
participation fees, to the Lenders. Fees paid shall not be refundable under any circumstances.



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



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



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



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



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



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



          (g) Notwithstanding anything to the contrary contained herein, Japanese Revolving Loans to be
made on the Restatement Date in Japanese Yen may bear interest at the Yen Overnight Rate (computed
on the basis of the actual number of days elapsed (including the first day and excluding the last)
in a 365 day year) until such Japanese Revolving Loans are



43









 







converted into one or more Eurocurrency
Borrowings with Interest Periods commencing on the second Business Day after the Restatement Date.
Such Interest Periods shall be specified in an Interest Election Request delivered not later than
12:00 p.m. noon, Local Time, on the Restatement Date. Interest accrued on such Japanese Revolving
Loans prior to the commencement of such Interest Period shall be payable on the second Business Day
after the Restatement Date. The Japanese Borrower shall notify the Japanese Administrative Agent
and the General Administrative Agent of its borrowing request (by telephone, with such telephonic
borrowing request confirmed promptly in writing
substantially in the form of Exhibit A-5) for such Japanese Revolving Loans not later than
12:00 noon, Local Time, on the Restatement Date.



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



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



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


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




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




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,



44









 







any Lender (except for any such reserve requirement which is reflected in the Adjusted
Eurocurrency Rate); or




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


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or Fixed Rate Loan (or of maintaining its obligation to make any
such Loan) or issuing or participating in Letters of Credit by an amount deemed by such Lender to
be material or to reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise) by an amount deemed by such Lender to be material,
then the applicable Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs actually incurred or reduction actually suffered.




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



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



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



          (e) Notwithstanding the foregoing provisions of this Section, a Lender shall not be entitled
to compensation pursuant to this Section in respect of any Competitive Loan if the Change in Law
that would otherwise entitle it to such compensation shall have been publicly



45









 







announced prior to
submission of the Competitive Bid pursuant to which such Loan was made. The obligations of the
Borrowers under this Section shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.



          SECTION 6.11. Break Funding Payments. In the event of (a) the payment or prepayment of
any principal of any Eurocurrency Loan or Fixed Rate Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any
Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked under Section 6.06(b)
and is revoked in accordance therewith), (d) the failure to borrow any Competitive Loan after
accepting the Competitive Bid to make such Loan or (e) the assignment of any Eurocurrency Loan or
Fixed Rate Loan other than on the last day of the Interest Period applicable thereto as a result of
a request by any Borrower pursuant to Section 6.14, then, in any such event, the applicable
Borrower shall compensate each Lender for the out-of-pocket loss, cost and expense attributable to
such event. In the case of a Eurocurrency Loan, such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the present value of the excess,
if any, of (i) its cost of obtaining the funds for the Loan being paid, prepaid, refinanced or not
borrowed (assumed to be the Eurocurrency Rate applicable thereto) for the period from the date of
such payment, prepayment, refinancing or failure to borrow or refinance to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow or refinance the Interest
Period for such Loan which would have commenced on the date of such failure) over (ii) the amount
of interest (as reasonably determined by such Lender) that would be realized by such Lender in
reemploying the funds so paid, prepaid or not borrowed or refinanced for such period or Interest
Period, as the case may be. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section and setting forth in reasonable detail
the manner in which such amount or amounts shall have been determined shall be delivered to the
applicable Borrower and shall be conclusive absent manifest error. Such Borrower shall pay such
Lender the amount shown as due on any such certificate within 10 days after receipt thereof. The
obligations of the Borrowers under this Section shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.



          SECTION 6.12. Taxes. (a) Any and all payments to the Lenders or the Administrative
Agents hereunder by a Borrower or on behalf of any Borrower shall be made free and clear of and
without deduction for any and all current or future Taxes or Other Taxes (as defined in Section (b)
below), excluding (i) Taxes imposed on any Administrative Agent or any Lender (or participant) as a
result of a present or former connection between such Administrative Agent or such Lender (or
participant) and the jurisdiction of the Governmental Authority imposing such Tax or any political
subdivision or taxing authority thereof or therein (other than as a result of entering into this
Agreement, performing any obligations hereunder, receiving any payments hereunder or enforcing any
rights hereunder) and (ii) any Taxes that are attributable solely to the failure of any Lender to
comply with Section 6.12 (g) or 6.12 (h) (all such nonexcluded Taxes or Other Taxes, collectively
or individually, “Non-Excluded Taxes”). If the relevant Borrower shall be required to
deduct any Non-Excluded Taxes from or in respect of any sum payable hereunder to any Lender or any
Administrative Agent, (i) the sum payable shall be increased by the amount (an “Additional
Amount”) necessary so that after making all required



46









 







deductions (including deductions
applicable to Additional Amounts
payable under this Section 6.12) such Lender or such Administrative Agent (as the case may be)
shall receive an amount equal to the sum it would have received had no such deductions been made,
(ii) the relevant Borrower shall make such deductions and (iii) the relevant Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance with applicable law.



          (b) In addition, the relevant Borrower (or the Company, as applicable) shall pay to the
relevant Governmental Authority in accordance with applicable law any current or future stamp,
intangibles or documentary taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document that are imposed by a
Governmental Authority in a jurisdiction in which the relevant Borrower is incorporated, organized,
managed and controlled or considered to have its seat or otherwise has a connection (other than as
a result of entering into this Agreement, performing any obligations hereunder, making any payments
hereunder or enforcing any rights hereunder (“Other Taxes”).



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



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



47









 





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



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



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



          (h) A Lender (or participant) that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which a Borrower (other than the Company) is
located, or any treaty to which such jurisdiction is a party, with respect to payments under this
Agreement, shall deliver to such Borrower (with a copy to the applicable Administrative Agent), at
the time or times prescribed by applicable law or reasonably requested by such Borrower, such
properly completed and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such Lender (or
participant) is legally entitled to complete, execute and deliver



48









 







such documentation and in such
Lender’s reasonable judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender (or participant).



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



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



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



          SECTION 6.13. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees, or of amounts payable under Section 6.10, 6.11 or 6.12, or otherwise) prior to 3:00
p.m., Local Time or, in the case of any Japanese Revolving Loan, by 12:00 noon Local Time at the
place of payment, on the date when due, in immediately available funds, without setoff or
counterclaim. Any amounts received after such time on any date may, in the discretion of the
Applicable Administrative Agent, be deemed to have been received on the next succeeding Business
Day for purposes of calculating interest thereon. All such payments shall be made to the Applicable
Administrative Agent at its offices referred to in Section 13.01, or



49









 







such other location as such
Administrative Agent shall designate from time to time, except that payments pursuant to Sections
6.10, 6.11 or 6.12 and 13.05 shall be made directly to the Persons entitled thereto. The Applicable
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall be made in the
Currency in which the applicable payment obligation is due.



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



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



          (d) Unless the Applicable Administrative Agent shall have received notice from a Borrower
prior to the date on which any payment is due to the Applicable Administrative Agent for the
account of the Lenders hereunder that such Borrower will not make such payment, the Applicable
Administrative Agent may assume that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In
such event, if such Borrower has not in fact made such payment,



50









 







then each of the Applicable Lenders severally agrees to repay to the Applicable Administrative
Agent forthwith on demand the amount so distributed to such Lenders with interest thereon, for each
day from and including the date such amount is distributed to it to but excluding the date of
payment to the Applicable Administrative Agent, (i) if the relevant amount is denominated in
Dollars, at the greater of the Federal
Funds Effective Rate and a rate determined by the Applicable Administrative Agent in accordance
with banking industry rules on interbank compensation and (ii) if the relevant amount is
denominated in any other Currency, at the interest rate reasonably determined by the Applicable
Administrative Agent to reflect the cost of funds for the amount paid by such Administrative Agent
on behalf of such Borrower.



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



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



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



51









 





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



ARTICLE VII




Representations and Warranties 




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



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



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



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



52









 





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



          SECTION 7.05. Financial Statements; No Material Adverse Effect. (a) The Company has
heretofore furnished to the Administrative Agents and the Lenders its consolidated balance sheet
and statements of
income, stockholders’ equity and cash flows as of and for (i) the fiscal year ended December
31, 2006, reported on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) the
fiscal quarters ended March 31, June 30 and September 30, 2007. Such financial statements present
fairly, in all material respects, the financial position and results of operations and cash flows
of the Company and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (ii) above.



          (b) Since December 31, 2006, there has been no material adverse effect on the business,
operations, properties or financial condition of the Company and its Subsidiaries, taken as a
whole.



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



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



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



          SECTION 7.08. Taxes. The Company and the Subsidiaries have filed or caused to be filed
all Federal and material state, local and foreign Tax returns which are required to be filed by
them, and have paid or caused to be paid all material Taxes required to have been paid by them,
other than any Taxes or assessments the validity of which is being contested in good



53









 







faith by
appropriate proceedings, and with respect to which appropriate accounting reserves have, to the
extent required by GAAP, been set aside.



          SECTION 7.09. Employee Benefit Plans. The present aggregate value of accumulated
benefit obligations of each Plan and each foreign employee pension benefit plan required to be
funded (based on those assumptions used for disclosure of such obligations in corporate financial
statements in accordance with GAAP) did not, as of the most recent statements available, exceed the
aggregate value of the assets for each plan by an amount in the aggregate for all such plans that
would reasonably be expected to have a Material Adverse Effect. Except as would not individually or
in the aggregate be reasonably expected to have a Material Adverse Effect, (a) no ERISA Termination
Event has occurred or (b) each Plan has been established and administered in accordance with its
terms and in compliance with the applicable provisions of ERISA, the Code and other applicable
laws, rules and regulations.



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



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



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



          SECTION 7.12. Investment Company Status. Neither the Company nor any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.



54









 





ARTICLE VIII




Conditions 




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



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



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



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



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



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



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



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



55









 







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



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



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



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



          (b) The Restatement Date shall have occurred.



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



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


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




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



ARTICLE IX




Affirmative Covenants 




          The Company covenants and agrees with each Lender and each Administrative Agent that so long
as this Agreement shall remain in effect or the principal of or interest on any



56









 







Loan, any fees or any other amounts payable hereunder shall be unpaid or any Letter of Credit
remains outstanding, unless the Required Lenders shall otherwise consent in writing, it will, and
will cause each of the Subsidiaries to, on and after the Restatement Date:



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



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



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



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



          (b) within 60 days after the end of each of the first three fiscal quarters of each fiscal
year, its quarterly report on Form 10-Q as filed with the SEC, including its unaudited consolidated
balance sheet and related consolidated earnings statement, showing its consolidated financial
condition as of the close of such fiscal quarter and the consolidated results of its operations
during such fiscal quarter and the then elapsed portion of the fiscal year (and each delivery of
such statements shall be deemed a representation that such statements fairly present the Company’s
financial condition and results of operations on a consolidated basis in accordance with GAAP,
subject to normal year-end audit adjustments and the absence of footnotes);



57









 





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



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



          (e) promptly, from time to time, such other information as any Lender shall reasonably request
through the General Administrative
Agent (it being understood that the Company shall not be required to provide any information
or documents which are subject to confidentiality provisions the nature of which prohibit such
disclosure).


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




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



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



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



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



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



          (c) any change in any of the Ratings.



58









 




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




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



          SECTION 9.08. Use of Proceeds. All proceeds of the Loans shall be used for general
corporate purposes including, share repurchases and commercial paper backup.



ARTICLE X




Negative Covenants 




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



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



59









 







however, that the foregoing restrictions of this Section 10.01 shall not
apply to transactions permitted under Section 10.06 or 10.08.



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



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



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



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



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



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



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



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



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



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



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



60









 





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



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



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



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



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



          (p) any extension, renewal or replacement (or successive extensions, renewals or replacements)
in whole or in part of any Lien referred to in clauses (a) through (o) above, so long as the
principal amount of the Debt or other obligations secured thereby does not exceed the principal
amount of Debt or obligations so secured at the time of such extension, renewal or replacement
(except that, where an additional principal amount of Debt is incurred to provide funds for the
completion of a specific project, the additional principal amount, and any related financing costs,
may be secured by the Lien as well) and such Lien is limited to the same property subject to the
Lien so extended, renewed or replaced (and improvements on such property); and



          (q) any Lien not permitted by clauses (a) through (p) above securing Debt which, together with
the aggregate outstanding principal amount of all other Debt of the Company and its Subsidiaries
which would otherwise be subject to the foregoing restrictions and the aggregate Value of their
existing Sale and Leaseback Transactions which would be subject to the restrictions of Section
10.02 but for this clause (q), does not at any time exceed 10% of Consolidated Net Tangible Assets.



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



61









 





          SECTION 10.04. Financial Condition Covenants.



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



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



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



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



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



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



          (a) investments in Cash Equivalents;



62









 





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



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



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



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



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



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



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



ARTICLE XI




Events of Default 




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



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



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



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



63









 





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



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



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



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



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



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



64









 







exceeds $75,000,000) to levy upon
assets or properties of the Company or any Subsidiary to enforce any such judgment;



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



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



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


then, and in every such event (other than an event with respect to any Borrower described
in paragraph (g) or (h) above), and at any time thereafter during the continuance of such event,
the General Administrative Agent, at the request of the Required Lenders, shall, by notice to the
Company or any other Borrower (which notice to any other Borrower may be given to the Company),
take either or both of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued fees and all other
liabilities of the Borrowers accrued hereunder (including all amounts of LC Exposure, whether or
not the beneficiary of the then outstanding Letters of Credit shall have presented the documents
required therein), shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived anything contained herein to
the contrary notwithstanding; and, in any event with respect to any Borrower described in paragraph
(g) or (h) above, the Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued fees and all other
liabilities of the Borrowers accrued hereunder (including all amounts of LC Exposure, whether or
not the beneficiary of the then outstanding




65









 







Letters of Credit shall have presented the documents required therein) shall automatically become
due and payable, without presentment, demand, protest or any other notice of any kind, all of which
are hereby expressly waived anything contained herein to the contrary notwithstanding. With respect
to all Letters of Credit with respect to which presentment for honor shall not have occurred at the
time of an acceleration pursuant to this paragraph, the U.S. Borrower shall at such time deposit in
a cash collateral account opened by the General Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the General Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit
shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of
the U.S. Borrower hereunder and under the other Loan Documents. The General Administrative Agent
shall have exclusive dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits, which investments shall
be made at the option and sole discretion of the General Administrative Agent and at the U.S.
Borrower risk and expense, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. After all such Letters of Credit shall have
expired or been fully drawn
upon, all reimbursement obligations shall have been satisfied and all other obligations of the U.S.
Borrower hereunder and under the other Loan Documents shall have been paid in full, the balance, if
any, in such cash collateral account shall be returned to the U.S. Borrower (or such other Person
as may be lawfully entitled thereto).




ARTICLE XII




The Administrative Agents 




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



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          Neither the Administrative Agents nor any of their respective directors, officers, employees
or agents shall be liable as such for any action taken or omitted by any of them except for its or
his or her own gross negligence or wilful misconduct, or be responsible for any statement, warranty
or representation herein or the contents of
any document delivered in connection herewith, or be required to ascertain or to make any
inquiry concerning the performance or observance by any Borrower of any of the terms, conditions,
covenants or agreements contained in this Agreement. The Administrative Agents shall not be
responsible to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or other instruments or agreements. The Administrative Agents may
deem and treat the Lender which makes any Loan or issues or participates in any Letter of Credit as
the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have
received notice from such Lender, given as provided herein, of the transfer thereof. The
Administrative Agents shall in all cases be fully protected in acting, or refraining from acting,
in accordance with written instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction pursuant thereto shall
be binding on all the Lenders. The Administrative Agents shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document believed by it in good faith to be
genuine and correct and to have been signed or sent by the proper Person or Persons. Neither the
Administrative Agents nor any of their respective directors, officers, employees or agents shall
have any responsibility to any Borrower on account of the failure of or delay in performance or
breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure
of or delay in performance or breach by any other Lender or any Borrower of any of their respective
obligations hereunder or in connection herewith. The Administrative Agents may execute any and all
duties hereunder by or through their respective branches, Affiliates, agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by them with due care with respect to
all matters arising hereunder and shall not be liable for any action taken or suffered in good
faith by them in accordance with the advice of such counsel. Without limiting the foregoing, any
Administrative Agent may, by notice to the Company and the applicable Borrower, designate any of
its branches or Affiliates as the Person to receive any or all notices (including Borrowing
Requests and Interest Election Requests) to be delivered to such Administrative Agent pursuant to
this Agreement.



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



          Subject to the appointment and acceptance of a successor Administrative Agent as provided
below, any Administrative Agent may resign at any time by notifying the Lenders, the other
Administrative Agents and the Company. Upon any such resignation of an Administrative Agent, the
Required Lenders shall have the right to appoint a successor Administrative Agent acceptable to the
Company. If no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent gives notice of
its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank having a combined capital and surplus of at
least $500,000,000 (or any Affiliate of such bank), (i) with, in the case of the U.S. Commitments,
an office in New York, New York, (ii) with, in the case of the Japanese Commitments, an office in
Tokyo, Japan, or (iii) with, in the case of the



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Multicurrency Commitments, an office in London. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and obligations hereunder.
After any Administrative Agent’s resignation hereunder, the provisions of this Article XII and
Section 13.05 shall continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Administrative Agent.



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



          Each Lender agrees (i) to reimburse the Administrative Agents, on demand, in the amount of its
Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative
Agents, including counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, which shall not
have been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the
Administrative Agents and any of their respective directors, officers, employees or agents, on
demand, in the amount of its Applicable Percentage, from and against any and all liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted
against either of them in its capacity as an Administrative Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by either of them under this Agreement to the
extent the same shall not have been reimbursed by the Borrowers; provided that no Lender
shall be liable to any Administrative Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or wilful misconduct of such Administrative Agent or any of its
directors, officers, employees or agents.



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



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ARTICLE XIII




Miscellaneous 




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




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




     (ii) if to the Japanese Borrower, to Zimmer K.K., 7F Shiroyama Mt. Building, 1-17,
Toranomon 4-Chome, Minato-ku, Tokyo,
Japan 10S-0001, Attention of Rob Pullan, Director, Finance & IM, (Telecopy No.:
81-3-6402-6625); with a copy to Zimmer Holdings, Inc., 345 East Main Street, Warsaw, IN
46580, Attention of James T. Crines, Executive Vice President, Finance and Chief Financial
Officer (Telecopy No.: 574-372-4988);




     (iii) If to the Luxembourg Borrower, to Zimmer Investment Luxembourg S.C.A., 67, Bd.
Grande-Duchesse Charlotte, L-1331 Luxembourg, Attention of James T. Crines (Telecopy No.:
574-372-4988); with a copy to Zimmer Holdings, Inc., 345 East Main Street, Warsaw, IN
46580, Attention of James T. Crines, Executive Vice President, Finance and Chief Financial
Officer (Telecopy No.: 574-372-4988);




     (iv) if to the General Administrative Agent, to JPMorgan Chase Bank, N.A., 1111 Fannin
Street, Houston, Texas 77002, Attention of Lisa McCants, Account Manager (Telecopy No.:
713-750-2782) (email: lisa.a.mccants@jpmchase.com); with a copy of all documents to be
delivered pursuant to Section 9.03 to JPMorgan Chase Bank, N.A., 4 New York Plaza, 4th
Floor, New York, New York 10004-2413, Attention of Lyette Proctor, (Telecopy No.:
212-623-1310) and to JPMorgan Chase Bank, N.A., 270 Park Avenue, 4th Floor, New York, New
York, 10017, Attention of Dawn Lee Lum (Telecopy No.: 212-270-3279);




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




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




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



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




     (ix) if to any other Borrowing Subsidiary, to it at the
address (or telecopy number) set forth above for the Company. Each Borrower (other
than the Company) hereby irrevocably appoints the Company as its agent for the purpose of
giving on its behalf any notice and taking any other action provided for in this Agreement
(whether or not this Agreement expressly authorizes the Company to take any such action on
behalf of such Borrower) and hereby agrees that it shall be bound by any such notice or
action given or taken by the Company hereunder irrespective of whether or not any such
notice shall have in fact been authorized by such Borrower and irrespective of whether or
not the agency provided for herein shall have theretofore been terminated.



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



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



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



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



          (b) Each Lender other than any Conduit Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including



70









 







all or a portion
of its Commitment and the Loans at the time owing to it); provided, however, that,
except in the case of an assignment to another Lender, an Affiliate of a Lender or an Approved
Fund, (i) each of the Company (so long as no Event of Default shall have occurred and be
continuing) and the General Administrative Agent must give its prior written consent to such
assignment (which consent in each case shall not be unreasonably withheld), (ii) the amount of the
Commitments of the assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the General
Administrative Agent) shall not be less than $5,000,000 unless it shall be the entire amount of
such Lender’s Commitments or Loans, as applicable, or unless such assignment is an assignment by a
Declining Lender to an assignee which is or will become a Consenting Lender, and (iii) an
assignment by a Lender of any of its U.S. Commitments shall include an assignment by such Lender of
its proportionate interest in LC Exposure. The parties to each assignment shall execute and deliver
to the General Administrative Agent an Assignment and Acceptance, and a processing and recordation
fee of $3,500; provided, however, that such processing and recordation fee shall
not be payable in the case of assignments made by or to Arrangers or their Affiliates. Upon
acceptance and recording pursuant to paragraph (e) of this Section 13.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date shall be at least
five Business Days after the execution thereof, (x) the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (y) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto (but shall (i)
continue to be entitled to the benefits of Sections 6.10, 6.11, 6.12 and 13.05, as well as to any
fees accrued for its account hereunder and not yet paid and (ii) continue to be subject to the
confidentiality provisions hereof). Notwithstanding the foregoing, any Lender assigning its rights
and obligations under this Agreement may retain any Competitive Loans made by it outstanding at
such time, and in such case shall retain its rights hereunder in respect of any Loans so retained
until such Loans have been repaid in full in accordance with this Agreement. Notwithstanding the
foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without
the consent of the Company or the General Administrative Agent any or all of the Loans it may have
funded hereunder and pursuant to its designation agreement and without regard to the limitations
set forth in the first sentence of this Section 13.04(b).



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



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



          (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the



71









 







legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim; (ii) except as
set forth in (i) above, such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrowers or the performance or observance by the
Borrowers of any obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it
has received a copy of this Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 9.03 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will independently and without reliance upon any Administrative
Agent, such assigning Lender or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (vi) such assignee appoints and authorizes the General
Administrative Agent, the Japanese Administrative Agent and the European Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agents by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.



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



          (e) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee together with an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above, if applicable, and, if



72









 







required, the written consent of the
Company to such assignment, the relevant Administrative Agent shall (i) accept such Assignment and
Acceptance and (ii) record the information contained therein in the Register.



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



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



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



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



          (j) Each party hereto hereby confirms that it will not institute against a Conduit Lender or
join any other Person in instituting against a Conduit Lender any bankruptcy,



73









 







reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for
one year and one day after the payment in full of the latest maturing commercial paper note issued
by such Conduit Lender; provided, however, that each Lender designating any Conduit
Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss,
cost, damage or expense arising out of its inability to institute such a proceeding against such
Conduit Lender during such period of forbearance.



          SECTION 13.05. Expenses, Indemnity. (a) The Company agrees to pay all reasonable
out-of-pocket expenses incurred by the Administrative Agents and the Arrangers in connection with
entering into this Agreement or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (including the reasonable fees, disbursements and other charges of a
single counsel), or incurred by the Administrative Agents, the Arrangers or any Lender in
connection
with the enforcement of their rights in connection with this Agreement or in connection with
the Loans made hereunder or thereunder, including the fees and disbursements of counsel for the
Administrative Agents and the Arrangers and, in the case of enforcement, each Lender.



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



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



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



          SECTION 13.07. Waivers, Amendment. (a) No failure or delay of any Administrative Agent
or any Lender in exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agents and the Lenders hereunder are cumulative and are not exclusive of



74









 







any rights or
remedies which they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or demand on the Company or any
other Borrower in any case shall entitle such party to any other or further notice or demand in
similar or other circumstances.



          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required
Lenders; provided, however, that no such agreement shall (i) decrease the principal
amount of, or extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan or reimbursement obligation with respect to an LC Disbursement
(other than any extension of the Maturity Date pursuant to Section 2.05), or waive or excuse any
such payment or any part thereof, or decrease the rate of interest on any Loan, or amend or modify
Section 13.16, without the prior written consent of each Lender directly affected thereby, (ii)
increase the Commitments or decrease or extend the date for payment of the facility fees or fees in
respect of Letters of Credit of any Lender (with the exception of fronting fees payable to the
Issuing Lender, which shall require the consent of the Issuing Lender) without the prior written
consent of such Lender, (iii) amend or modify the provisions of Section 6.13 or Section 13.04(h),
the provisions of this Section 13.07 or the definition of the “Required Lenders”, or release the
Company from its obligations under Section 13.16 hereof, without the prior written consent of each
Lender, (iv) change the provisions of any Loan Document in a manner that by its terms adversely
affects the rights in respect of payments due to Lenders holding Loans of one Class differently
from the rights of Lenders holding Loans of any other class without the prior written consent of
Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each
adversely affected Class or (v) change the requirement that disbursements made by any Lender be
made ratably with respect to its applicable Commitment without the prior written consent of each
Lender directly affected thereby; provided further, however, that no such agreement
shall amend, modify or otherwise affect the rights or duties of (w) any Administrative Agent
hereunder without the prior written consent of such Administrative Agent, (x) any Issuing Lender
without the prior written consent of such Issuing Lender, (y) the Swingline Lender without the
prior written consent of the Swingline
Lender or (z) an Arranger under Section 13.04(b) without the prior written consent of such
Arranger. Each Lender shall be bound by any waiver, amendment or modification authorized by this
Section 13.07 and any consent by any Lender pursuant to this Section 13.07 shall bind any assignee
of its rights and interests hereunder.



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



          SECTION 13.09. Severability. In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall not in any



75









 







way be
affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable provisions.



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



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



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



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



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



76









 





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



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



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



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



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



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



          SECTION 13.16. Guaranty. In order to induce the Lenders to make Loans to the other
Borrowers, the Company hereby unconditionally and irrevocably guarantees as a primary obligor the
Borrower Obligations of all the Borrowers. The Company further agrees that such Borrower
Obligations may be extended and renewed, in whole or in part, without notice to or



77









 







further assent
from it, and that it will remain bound upon its agreement hereunder notwithstanding any extension
or renewal of any Borrower Obligation.



          The Company waives promptness, diligence, presentment to, demand of payment from and protest
to the Borrowers of any Borrower Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment. The obligations of the Company hereunder shall be
absolute and unconditional and not be affected by, and the Company waives any defense it may now or
hereafter have arising out of (a) the failure of any Lender or the Administrative Agents to assert
any claim or demand or to enforce any right or remedy against any Borrower under the provisions of
this Agreement or any of the other Loan Documents or otherwise; (b) any rescission, waiver,
amendment or modification of any of the terms or provisions of this Agreement, any other Loan
Documents or any other agreement; (c) the failure of any Lender to exercise any right or remedy
against any Borrower; (d) the invalidity or unenforceability of any Loan Document; (e) the
validity, legality or enforceability of this Agreement or any Loan or Letter of Credit or any
document or instrument relating thereto or given in connection therewith; or (f) any other
circumstance which might otherwise constitute a defense available to or discharge of a Borrower or
a guarantor (other than indefeasible payment).



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



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



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



          In furtherance of the foregoing and not in limitation of any other right which the
Administrative Agents or any Lender may have at law or in equity against the Company by virtue
hereof, upon the failure of any Borrower to pay any Borrower Obligation when and as the same shall
become due, whether at maturity, by acceleration, after notice of prepayment or



78









 







otherwise, the
Company hereby promises to and will, upon receipt of written demand by the General Administrative
Agent, forthwith pay, or cause to be paid, in cash the amount of such unpaid Borrower Obligation.
In the event that, by reason of the bankruptcy of any Borrower (i) acceleration of Loans made to
such Borrower is prevented and (ii) the Company shall not have prepaid the outstanding Loans and
other amounts due hereunder owed by such Borrower, the Company will forthwith purchase such Loans
and other amounts at a price equal to the principal amount thereof plus accrued interest thereon
and any other amounts due hereunder with respect thereto. The Company further agrees that if
payment in respect of any Borrower Obligation shall be due in a currency other than Dollars and/or
at a place of payment other than New York and if, by reason of any Change in Law, disruption of
currency or foreign exchange markets, war or civil disturbance or similar event, payment of such
Borrower Obligations in such currency or such place of payment shall be impossible or, in the
judgment of any applicable
Lender, not consistent with the protection of its rights or interests, then, at the election
of any applicable Lender, the Company shall make payment of such Borrower Obligation in Dollars
(based upon the applicable Exchange Rate in effect on the date of payment) and/or in New York, and
shall indemnify such Lender against any losses or expenses that it shall sustain as a result of
such alternative payment.



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



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



          SECTION 13.17. CAM Exchange. (a) On the CAM Exchange Date, to the extent not
prohibited by a Requirement of Law, all Loans outstanding in any currency other than Dollars shall
be converted to Dollars (calculated on the basis of the relevant Exchange Rates as of the Business
Day immediately preceding the CAM Exchange Date) and shall be ABR Loans, and (ii) the Lenders shall
automatically and without further act be deemed to have exchanged interests in the Classes (other
than Competitive Loans) such that, in lieu of the interests of each Lender in each Class in which
it shall participate as of such date (including such Lender’s interest in the Designated
Obligations of each Borrower in respect of each such Class), such Lender shall hold an interest in
every one of the Classes (including the Designated Obligations of each Borrower in respect of each
such Class but excluding Competitive Loans and participations in undrawn Letters of Credit),
whether or not such Lender shall previously have participated therein, equal to such Lender’s CAM
Percentage thereof. Each Lender, the Company and each other Borrower hereby consents and agrees to
the CAM Exchange, and each Lender hereby agrees that the CAM Exchange shall be binding
upon its successors and assigns and any Person that acquires a participation in its interests
in any Class. The Company and each other Borrower



79









 







and each Lender agrees from time to time to execute and deliver to the General Administrative Agent
all such promissory notes and other instruments and documents as the General Administrative Agent
shall reasonably request to evidence and confirm the respective interests and obligations of the
Lenders after giving effect to the CAM Exchange, and each Lender agrees to surrender any promissory
notes originally received by it in connection with its Loans hereunder to the General
Administrative Agent against delivery of any promissory notes so executed and delivered; provided
that the failure of the Company or any other Borrower to execute or deliver or of any Lender to
accept any such promissory note, instrument or document shall not affect the validity or
effectiveness of the CAM Exchange. In the event that on the CAM Exchange Date any Swingline Loan
shall be outstanding (other than any Swingline Loan in respect of which U.S. Lenders have funded
their purchase of participations pursuant to Section 5.01), then each U.S. Lender (determined
immediately prior to the CAM Exchange) shall, in accordance with the provisions of Section 5.01,
promptly purchase from the Swingline Lender a participation in such Swingline Loan in the amount of
such Lenders’ Applicable Percentage of such Swingline Loan (determined immediately prior to the CAM
Exchange).



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



          SECTION 13.18. Letters of Credit. In the event that, on or after the CAM Exchange
Date, the aggregate amount of the Designated
Obligations shall change as a result of the making of an LC Disbursement by the Issuing Lender
that is not reimbursed by a Borrower, then (a) each U.S. Lender (determined without giving effect
to the CAM Exchange) shall, in accordance with Section 4.01(d), promptly purchase from the Issuing
Lender a participation in such LC Disbursement in the amount of such Lender’s Applicable Percentage
of such LC Disbursement (without giving effect to the CAM Exchange) and (b) the General
Administrative Agent shall redetermine the CAM Percentages after giving effect to such LC
Disbursement and the purchase of participations therein by the U.S. Lenders. Each such
redetermination shall be binding on each of the Lenders and their successors and assigns and shall
be conclusive, absent manifest error.



          SECTION 13.19. Confidentiality. Each of the Administrative Agents and the Lenders
expressly agrees, for the benefit of the Company and the Subsidiaries, to maintain the
confidentiality of the Confidential Information (as defined below), except that Confidential
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Confidential Information and instructed to keep such Confidential Information confidential),



80









 







(b) to the extent requested by any regulatory authority, (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an
express agreement for the benefit of the Company and the Subsidiaries containing provisions
substantially the same as those of this Section, to any assignee of or participant in, or any
prospective assignee of or participant in, any of its rights or obligations under this Agreement or
to any direct or indirect counterparty to a Hedge Agreement, (g) with the consent of the Company
and the Subsidiaries, (h) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized ratings agency, or (i) to the extent such Confidential
Information (i) becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to any Administrative Agent or any Lender on a nonconfidential basis from a
source other than the Company and the Subsidiaries. For the purposes of this Section, “Confidential
Information” means all information, including material nonpublic information within the meaning of
Regulation FD promulgated by the SEC (“Regulation FD”), received from the Company and the
Subsidiaries relating to such entities or their respective businesses, other than any such
information that is available to any Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by such entities; provided that, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the confidentiality of
Confidential Information as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person customarily accords to its own confidential
information; provided, however, that with respect to disclosures pursuant to
clauses (b) and (c) of this Section, unless prohibited by law or applicable court order, each
Lender and each Administrative Agent shall attempt to notify the Company and the Subsidiaries of
any request by any governmental agency or representative thereof or other Person for disclosure of
Confidential Information after receipt of such request, and if reasonable, practicable and
permissible, before disclosure of such Confidential Information. It is understood and agreed that
the Company and the Subsidiaries and their respective Affiliates may rely upon this Section 13.19
for any purpose, including without limitation to comply with Regulation FD. Notwithstanding
anything herein to the contrary, any Party to this Agreement (and any employee, representative or
other agent of such Party) may disclose to any and all persons, without limitation of any kind, the
tax treatment and tax structure of the transactions contemplated by this Agreement and all
materials of any kind (including opinions or other tax analyses) that are provided to it relating
to such tax treatment and tax structure. The preceding sentence is intended to cause the
transactions contemplated hereby not to be treated as having been offered under conditions of
confidentiality for purposes of Section 1.6011-4(b)(3) and 301.6111-2(a)(2)(ii) (or any successor
provisions) of the Treasury Regulations promulgated under the Code, and shall be construed in a
manner consistent with such purpose.



          SECTION 13.20. Effect of Restatement. This Agreement shall supersede the Existing
Credit Agreement from and after the Restatement Date with respect to the transactions hereunder and
with respect to the Loans outstanding under the Existing Credit Agreement as of the Restatement
Date. The parties hereto acknowledge and agree, however, that (a) except with respect to the
Released Parties, each of whom shall
be, and hereby is, released from its obligations under the Existing Credit Agreement upon the
payment in full thereof on the



81









 







Restatement Date, (i) this Agreement and all other Loan Documents executed and delivered herewith
do not constitute a novation or termination of the Borrowers’ obligations under the Existing Credit
Agreement and the other Loan Documents as in effect prior to the Restatement Date, and (ii) such
obligations are in all respects continuing with only the terms being modified as provided in this
Agreement and the other Loan Documents and (b) all references in the other Loan Documents to the
Credit Agreement shall be deemed to refer without further amendment to this Agreement.



          SECTION 13.21. USA PATRIOT Act Notice. Each Lender and the General Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to
the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies each of
the Borrowers, which information includes the names and addresses of each of the Borrowers and
other information that will allow such Lender or the Administrative Agent, as applicable, to
identify each of the Borrowers in accordance with the Act.



[Rest of page left intentionally blank]





82











 





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



	 	 	 	 	 
	 	ZIMMER HOLDINGS, INC.,

 	 
	 	by  	/s/ James T. Crines
 	 
	 	 	Name:  	James T. Crines 	 
	 	 	Title:  	Executive Vice President, Finance and

Chief Financial Officer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ZIMMER K.K.,

 	 
	 	by  	/s/ James T. Crines
 	 
	 	 	Name:  	James T. Crines 	 
	 	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ZIMMER INVESTMENT LUXEMBOURG S.C.A.,

 	 
	 	by  	/s/ Carl
W. A. Speecke
 	 
	 	 	Name:  	Carl
W. A. Speecke	 
	 	 	Title:  	Manager of Zimmer Luxembourg II S.à.r.l.	 



 









 






	 	 	 	 	 



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

 	 
	 	by  	/s/ Stephanie Parker
 	 
	 	 	Name:  	Stephanie Parker 	 
	 	 	Title:  	Executive Director 	 



 









 






	 	 	 	 	 



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

 	 
	 	by  	/s/ Sachiko Ogasawara
 	 
	 	 	Name:  	Sachiko Ogasawara 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



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

 	 
	 	by  	/s/ Belinda Lucas
 	 
	 	 	Name:  	Belinda Lucas 	 
	 	 	Title:  	Associate 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: Bank of America, N.A.

 	 
	 	by  	/s/ Alysa Trakas
 	 
	 	 	Name:  	Alysa Trakas 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: CREDIT SUISSE, Cayman Islands Branch

 	 
	 	by  	/s/ KARIM BLASETTI
 	 
	 	 	Name:  	KARIM BLASETTI 	 
	 	 	Title:  	VICE PRESIDENT 	 
	 
	 	 	 
	 	by  	     /s/ JAMES NEIRA
 	 
	 	 	Name:  	JAMES NEIRA 	 
	 	 	Title:  	ASSOCIATE 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: Citibank, N.A.

 	 
	 	by  	/s/ RICHARD M. LEVIN
 	 
	 	 	Name:  	RICHARD M. LEVIN 	 
	 	 	Title:  	VICE PRESIDENT 
CITIBANK, N.A.
 (312) 876-3274 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: The Royal Bank of Scotland plc

 	 
	 	by  	/s/ Iain Stewart
 	 
	 	 	Iain Stewart 	 
	 	 	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: BNP PARIBAS

 	 
	 	by  	/s/ Andrew Strait
 	 
	 	 	Name:  	Andrew Strait 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	by  	     /s/ Michael Pearce
 	 
	 	 	Name:  	Michael Pearce 	 
	 	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: The Bank of Tokyo-Mitsubishi UFJ, Ltd.

 	 
	 	by  	/s/ Victor Pierzchalski
 	 
	 	 	Name:  	Victor Pierzchalski 	 
	 	 	Title:  	Vice President & Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: DEUTSCHE BANK AG NEW YORK BRANCH

 	 
	 	by  	/s/ Frederick W. Laird
 	 
	 	 	Name:  	Frederick W. Laird 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	by  	     /s/ Ming K. Chu
 	 
	 	 	Name:  	Ming K. Chu 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: FIFTH THIRD BANK

 	 
	 	by  	/s/ David O’Neal
 	 
	 	 	Name:  	David O’Neal 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: KEYBANK NATIONAL ASSOCIATION

 	 
	 	by  	/s/ J.T. Taylor
 	 
	 	 	Name:  	J.T. Taylor 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: MIZUHO CORPORATE BANK (USA)

 	 
	 	by  	/s/ Raymond Ventura
 	 
	 	 	Name:  	Raymond Ventura 	 
	 	 	Title:  	Deputy General Manager 	 
	 




 











 





	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: SUMITOMO MITSUI BANKING CORPORATION

 	 
	 	by  	/s/ Yoshihiro Hyakutome
 	 
	 	 	Name:  	Yoshihiro Hyakutome 	 
	 	 	Title:  	General Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: HSBC Bank USA, National Association

 	 
	 	by  	/s/  Michael Frawley
 	 
	 	 	Name:  	Michael Frawley 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: The Governor and Company of The Bank of Ireland

 	 
	 	by  	/s/ Aidan Brosnan
 	 
	 	 	Name:  	Aidan Brosnan 	 
	 	 	Title:  	Authorised Signatory 	 
	 
	 	 	 
	 	by  	/s/ Gareth Magee
 	 
	 	 	Name:  	Gareth Magee 	 
	 	 	Title:  	Authorised Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: The Bank of New York

 	 
	 	by  	/s/ Mark F. Johnston
 	 
	 	 	Name:  	Mark F. Johnston 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: Fortis Capital Corp.,

 	 
	 	by  	/s/ John W. Deegan
 	 
	 	 	Name:  	John W. Deegan 	 
	 	 	Title:  	Director & Group Head 	 
	 
	 	 	 
	 	by  	/s/ William R. Rogers
 	 
	 	 	Name:  	William R. Rogers 	 
	 	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: ING Capital LLC

 	 
	 	by  	/s/ John Kippax
 	 
	 	 	Name:  	John Kippax 	 
	 	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC.
AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: PNC Bank, National Association

 	 
	 	by:  	/s/ Richard C. Munsick
 	 
	 	 	Richard C. Munsick 	 
	 	 	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: Bank of China, New York Branch

 	 
	 	by  	/s/ Richard Bradspies
 	 
	 	 	Name:  	Richard Bradspies 	 
	 	 	Title:  	Deputy General Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: CHANG HWA COMMERCIAL BANK, LTD.,

NEW YORK BRANCH

 	 
	 	by  	/s/  Jim C.Y. Chen
 	 
	 	 	Name:  	Jim C.Y. Chen 	 
	 	 	Title:  	General Manager & VP 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: National City Bank

 	 
	 	by  	/s/ Jeff Dysert
 	 
	 	 	Name:  	Jeff Dysert 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: Standard Chartered Bank

 	 
	 	By  	/s/ Mark Sims
 	 
	 	 	Name:  	Mark Sims 	 
	 	 	Title:  	Global Account Manager 	 




	 	 	 	 	 
	 	 	 
	 	By  	/s/ ROBERT K. REDDINGTON
 	 
	 	 	Name:  	ROBERT K. REDDINGTON 	 
	 	 	Title:  	AVP/CREDIT DOCUMENTATION

CREDIT RISK CONTROL

STANDARD CHARTERED BANK N.Y. 	 
	 


 









 





	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: SUNTRUST BANK

 	 
	 	by  	/s/  Helen C. Hartz
 	 
	 	 	Name:  	Helen C. Hartz 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: U.S. Bank National Association

 	 
	 	by  	/s/  James N. DeVries
 	 
	 	 	Name:  	James N. DeVries 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COUNTERPART SIGNATURE PAGE TO ZIMMER HOLDINGS, INC. AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2007



Lender: Wells Fargo Bank, N.A.

 	 
	 	by  	/s/ Charles W. Reed
 	 
	 	 	Name:  	Charles W. Reed 	 
	 	 	Title:  	Vice President