exv4w1






Exhibit 4.1




Execution Version




$2,500,000,000




CREDIT AGREEMENT



dated as of



February 17, 2011



among



Johnson Controls, Inc.,

as Borrower and Guarantor,



The Eligible Subsidiaries Referred to Herein,

as Borrowers,



The Lenders Parties Hereto



and



JPMorgan Chase Bank, N.A.,

as Administrative Agent



 





J.P. Morgan Securities LLC

and

Merrill Lynch, Pierce, Fenner & Smith Incorporated,

Joint Lead Arrangers and Joint Bookrunners



Bank of America, N.A.,

Syndication Agent



Barclays Bank PLC

Citibank, N.A.

ING Bank N.V.,

Documentation Agents



 









 





TABLE OF CONTENTS

 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1
	Definitions
	 
	 	 	 	 
	Section 1.01. Definitions

	 	 	1	 
	Section 1.02. Accounting Terms and Determinations

	 	 	17	 
	Section 1.03. Types of Loans and Borrowings

	 	 	17	 
	 
	 	 	 	 
	ARTICLE 2
	The Credits
	 
	 	 	 	 
	Section 2.01. Commitments to Lend

	 	 	17	 
	Section 2.02. Notice of Borrowing

	 	 	19	 
	Section 2.03. Notice to Lenders; Funding of Loans

	 	 	19	 
	Section 2.04. Notes

	 	 	21	 
	Section 2.05. Maturity of Loans

	 	 	21	 
	Section 2.06. Interest Rates

	 	 	21	 
	Section 2.07. Fees

	 	 	23	 
	Section 2.08. Optional Termination or Reduction of Commitments

	 	 	23	 
	Section 2.09. Mandatory Termination of Commitments

	 	 	24	 
	Section 2.10. Optional Prepayments

	 	 	24	 
	Section 2.11. General Provisions as to Payments

	 	 	24	 
	Section 2.12. Funding Losses

	 	 	26	 
	Section 2.13. Computation of Interest and Fees

	 	 	26	 
	Section 2.14. Regulation D Compensation

	 	 	26	 
	Section 2.15. Method of Electing Interest Rates

	 	 	26	 
	Section 2.16. Determining Dollar Amounts; Related Mandatory Prepayments

	 	 	28	 
	Section 2.17. Additional Reserve Costs

	 	 	29	 
	Section 2.18. Judgment Currency

	 	 	30	 
	Section 2.19. Letters of Credit

	 	 	30	 
	Section 2.20. Increased Commitments, Additional Lenders

	 	 	36	 
	Section 2.21. Defaulting Lenders

	 	 	37	 
	 
	 	 	 	 
	ARTICLE 3
	Conditions
	 
	 	 	 	 
	Section 3.01. Effectiveness

	 	 	39	 
	Section 3.02. Borrowings and Issuances of Letters of Credit

	 	 	40	 
	Section 3.03. First Borrowing by Each Eligible Subsidiary

	 	 	41	 






ii 









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 4
	Representations and Warranties of the Company
	 
	 	 	 	 
	Section 4.01. Legal Existence and Power

	 	 	42	 
	Section 4.02. Legal and Governmental Authorization; No Contravention

	 	 	42	 
	Section 4.03. Binding Effect

	 	 	42	 
	Section 4.04. Financial Information

	 	 	42	 
	Section 4.05. Litigation

	 	 	43	 
	Section 4.06. Compliance with ERISA

	 	 	43	 
	Section 4.07. Environmental Matters

	 	 	43	 
	Section 4.08. Not an Investment Company

	 	 	44	 
	Section 4.09. Full Disclosure

	 	 	44	 
	 
	 	 	 	 
	ARTICLE 5
	Covenants
	 
	 	 	 	 
	Section 5.01. Information

	 	 	44	 
	Section 5.02. Payment of Taxes

	 	 	46	 
	Section 5.03. Maintenance of Property; Insurance

	 	 	46	 
	Section 5.04. Conduct of Business and Maintenance of Existence

	 	 	47	 
	Section 5.05. Compliance with Laws

	 	 	47	 
	Section 5.06. Inspection of Property, Books and Records

	 	 	47	 
	Section 5.07. Minimum Consolidated Shareholders’ Equity

	 	 	47	 
	Section 5.08. Negative Pledge

	 	 	48	 
	Section 5.09. Consolidation, Mergers and Sales of Assets

	 	 	48	 
	Section 5.10. Use of Proceeds

	 	 	49	 
	 
	 	 	 	 
	ARTICLE 6
	Defaults
	 
	 	 	 	 
	Section 6.01. Events of Default

	 	 	49	 
	Section 6.02. Notice of Default

	 	 	52	 
	Section 6.03. Cash Cover

	 	 	52	 
	 
	 	 	 	 
	ARTICLE 7
	The Administrative Agent
	 
	 	 	 	 
	Section 7.01. Appointment and Authorization

	 	 	52	 
	Section 7.02. Administrative Agent and Affiliates

	 	 	52	 
	Section 7.03. Action by Administrative Agent

	 	 	53	 
	Section 7.04. Consultation with Experts

	 	 	53	 
	Section 7.05. Liability of Administrative Agent

	 	 	53	 
	Section 7.06. Indemnification

	 	 	53	 
	Section 7.07. Credit Decision

	 	 	54	 






iii 









 






	 	 	 	 	 
	 	 	Page	 
	 
	Section 7.08. Successor Administrative Agent

	 	 	54	 
	Section 7.09. Administrative Agent’s Fee

	 	 	54	 
	Section 7.10. Other Agents

	 	 	54	 
	 
	 	 	 	 
	ARTICLE 8
	Change in Circumstances
	 
	 	 	 	 
	Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair

	 	 	55	 
	Section 8.02. Illegality

	 	 	55	 
	Section 8.03. Increased Cost and Reduced Return

	 	 	56	 
	Section 8.04. Taxes

	 	 	57	 
	Section 8.05. Base Rate Loans Substituted for Affected Euro-Currency Loans

	 	 	62	 
	Section 8.06. Mitigation Obligations; Replacement of Lenders

	 	 	62	 
	 
	 	 	 	 
	ARTICLE 9
	Representations and Warranties of Eligible Subsidiaries
	 
	 	 	 	 
	Section 9.01. Legal Existence and Power

	 	 	63	 
	Section 9.02. Legal and Governmental Authorization; No Contravention

	 	 	63	 
	Section 9.03. Binding Effect

	 	 	64	 
	Section 9.04. Taxes

	 	 	64	 
	 
	 	 	 	 
	ARTICLE 10
	Guaranty
	 
	 	 	 	 
	Section 10.01. The Guaranty

	 	 	64	 
	Section 10.02. Guaranty Unconditional

	 	 	64	 
	Section 10.03. Discharge Only Upon Payment In Full; Reinstatement In Certain Circumstances

	 	 	65	 
	Section 10.04. Waiver by the Company

	 	 	65	 
	Section 10.05. Subrogation

	 	 	66	 
	Section 10.06. Stay of Acceleration

	 	 	66	 
	 
	 	 	 	 
	ARTICLE 11
	Miscellaneous
	 
	 	 	 	 
	Section 11.01. Notices.

	 	 	66	 
	Section 11.02. No Waivers

	 	 	67	 
	Section 11.03. Expenses; Indemnification

	 	 	67	 
	Section 11.04. Sharing of Set-offs

	 	 	68	 
	Section 11.05. Amendments and Waivers

	 	 	69	 
	Section 11.06. Successors and Assigns

	 	 	69	 
	Section 11.07. Collateral

	 	 	72	 






iv 










 






	 	 	 	 	 
	 	 	Page	 
	 
	Section 11.08. Governing Law; Submission to Jurisdiction

	 	 	73	 
	Section 11.09. Counterparts; Integration

	 	 	73	 
	Section 11.10. Waiver of Jury Trial

	 	 	73	 
	Section 11.11. Confidentiality

	 	 	73	 
	Section 11.12. USA Patriot Act

	 	 	74	 
	Section 11.13. Termination of Existing Agreement

	 	 	74	 






v 









 






COMMITMENT SCHEDULE



PRICING SCHEDULE



SCHEDULE I




	 	 	 

	EXHIBIT A -

	 	Form of Note
	EXHIBIT B -

	 	Opinion of General Counsel of the Company
	EXHIBIT C -

	 	Opinion of Special Counsel of the Administrative Agent
	EXHIBIT D -

	 	Form of Election to Participate
	EXHIBIT E -

	 	Form of Election to Terminate
	EXHIBIT F -

	 	Opinion of Counsel of the Borrower (Borrowings by Eligible
Subsidiaries)
	EXHIBIT G -

	 	Assignment and Assumption Agreement
	EXHIBIT H -

	 	Mandatory Costs Rate
	EXHIBIT I -

	 	Extension Agreement







 











 





     CREDIT AGREEMENT dated as of February 17, 2011 among JOHNSON CONTROLS, INC., the ELIGIBLE
SUBSIDIARIES referred to herein, the LENDERS from time to time parties hereto and JPMORGAN CHASE
BANK, N.A., as Administrative Agent.



     The parties hereto agree as follows:



ARTICLE 1

Definitions




     Section 1.01. Definitions. The following terms, as used herein, have the following meanings:



     “Additional Lender” has the meaning set forth in Section 2.20(b).



     “Additional Letter of Credit” means a letter of credit issued hereunder by an Issuing Lender
on or after the Effective Date.



     “Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as agent for the
Lenders hereunder, and its successors in such capacity.



     “Administrative Questionnaire” means, with respect to each Lender, an administrative
questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative
Agent (with a copy to the Company) duly completed by such Lender.



     “Agent” means any of the Administrative Agent, the Syndication Agent or the Documentation
Agent.



     “Alternative Currency” means Euro or Sterling.



     “Alternative Currency Loan” means a Loan that is made in an Alternative Currency pursuant to
the applicable Notice of Borrowing.



     “Applicable Lending Office” means, with respect to any Lender, (i) in the case of its Base
Rate Loans, its Domestic Lending Office and (ii) in the case of its Euro-Currency Loans, its
Euro-Currency Lending Office.



     “Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment; provided that in the case of Section 2.21 when
a Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the total
Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s
Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most



 









 







recently in effect, giving effect to any assignments and
to any Lender’s status as a Defaulting Lender at the time of determination.



     “Assignee” has the meaning set forth in Section 11.06(c).



     “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator,
custodian, assignee for the benefit of creditors or similar Person charged with the reorganization
or liquidation of its business appointed for it, or, in the good faith determination of the
Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.



     “Base Rate” means, for any day, a rate per annum equal to the highest of (i) the Prime Rate
for such day, (ii) the sum of 1/2 of 1% plus the Federal Funds Rate for such day and (iii) the sum
of 1% plus the rate for deposits in Dollars with a one-month maturity appearing on the Screen at
approximately 11:00 a.m., London time, on such day (or if such day is not a Euro-Dollar Business
Day, on the immediately preceding Euro-Dollar Business Day).



     “Base Rate Loan” means a Loan which bears interest at the Base Rate pursuant to the applicable
Notice of Borrowing or Notice of Interest Rate Election or the provisions of Section 2.06(a) or
Article 8.



     “Base Rate Margin” means, at any date, the applicable rate per annum determined in accordance
with the Pricing Schedule.



     “Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section
3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.



     “Borrower” means the Company or any Eligible Subsidiary, as the context may require, and their
respective successors, and “Borrowers” means all of the foregoing. When used in relation to any
Loan or Letter of Credit, references to “the Borrower” are to the particular Borrower to which such
Loan is or is to be made or at whose request such Letter of Credit is or is to be issued.



2









 





     “Borrowing” has the meaning set forth in Section 1.03.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Issuing Lender, as
collateral for the applicable outstanding Letter of Credit, cash or deposit account balances
pursuant to documentation in form and substance
reasonably satisfactory to the Issuing Lender in an amount equal to 105% of the face amount of
such Letter of Credit. Each Borrower hereby grants to the Issuing Lender, for the benefit of the
Issuing Lender and the Lenders, a security interest in all of its right, title and interest (if
any) in such cash, deposit accounts and all balances therein and all proceeds of the foregoing.
Cash collateral shall be maintained in blocked interest bearing (to the extent available) deposit
accounts at the Issuing Lender.



     “Change in Law” means (a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority in each case after the date of this Agreement or (c)
compliance by any Lender or the Issuing Lender with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.



     “Commitment” means (i) with respect to each Lender, the amount of such Lender’s Commitment, as
such amount is set forth opposite the name of such Lender on the Commitment Schedule, (ii) with
respect to any Additional Lender, the amount of the Commitment assumed by it pursuant to Section
2.20 and (iii) with respect to any Assignee, the amount of the transferor Lender’s Commitment
assigned to it pursuant to Section 11.06(c), in each case as such amount may be changed from time
to time pursuant to Section 2.09, 2.20 or 11.06(c); provided that, if the context so requires, the
term “Commitment” means the obligation of a Lender to extend credit up to such amount to the
Borrowers hereunder.



     “Commitment Schedule” means the Schedule attached hereto identified as such.



     “Company” means Johnson Controls, Inc., a Wisconsin corporation (“JCI”), and its successors
provided that upon consummation of a Holding Company Reorganization in compliance with Section
5.09, the Holding Company shall thereafter be the Company for purposes hereof, except that any
reference made to the Company as of a specific date prior to any such Holding Company
Reorganization shall continue to refer to JCI.



     “Company’s 2010 Form 10-K” means the Company’s annual report on Form 10-K for 2010, as
amended, filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934.



3









 





     “Conduit” means a special purpose corporation which is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business.



     “Conduit Designation” has the meaning set forth in Section 11.06(f).



     “Consolidated Shareholders’ Equity” means at any date the shareholders’ equity of the Company
determined on a consolidated basis as of
such date in accordance with GAAP; provided that, for purposes hereof, the consolidated
shareholders’ equity of the Company shall be calculated without giving effect to (i) the
application of Accounting Standards Codification 715-60, “Defined Benefit Plans — Other
Postretirement” or (ii) the cumulative foreign currency translation adjustment.



     “Consolidated Subsidiary” shall mean, as to any Person, each Subsidiary of such Person
(whether now existing or hereafter created or acquired) the financial statements of which shall be
(or should have been) consolidated with the financial statements of such Person in accordance with
GAAP.



     “Credit Exposure” means, with respect to any Lender at any time, (i) the amount of its
Commitment (whether used or unused) at such time or (ii) if the Commitments have terminated in
their entirety, the sum of the aggregate Dollar Amount of its Loans at such time plus the aggregate
Dollar Amount of its Letter of Credit Liabilities at such time.



     “Debt” of any Person means at any date, without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property, except trade and similar payables and accrued expenses or liabilities
arising in the ordinary course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with GAAP as in effect on the date of this Agreement, (v) all Debt (as
defined in one of the other clauses of this definition) of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person; provided that, for purposes of
determining the amount of any Debt of the type described in this clause (v), if recourse with
respect to such Debt is limited to such asset, the amount of such Debt shall be limited to the
lesser of (A) the greater of (x) the book value of such asset or (y) the fair market value of such
asset or (B) the amount of such Debt and (vi) all Debt of others Guaranteed by such Person (each
such Guarantee to constitute Debt in an amount equal to the lesser of (A) the stated maximum amount
of such Guarantee, if any, or (B) the amount of such other Person’s Debt Guaranteed thereby);
provided that Debt shall not include obligations in respect of letters of credit to secure the
performance of bids, trade contracts (other than for Debt), operating leases (determined in
accordance with GAAP as in effect on the date of this Agreement),



4









 







any customary earn out or
holdback in connection with an acquisition, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the ordinary course of
business and letters of credit issued in connection with the Company’s self-insurance programs for
workman’s compensation, product liability and general liability. For all purposes of this
Agreement, the amount of Debt of the Company and its Subsidiaries shall be calculated without
duplication of guaranty obligations of the Company or any Subsidiary in respect thereof.



     “Default” means any condition or event which constitutes an Event of Default or which with the
giving of notice or lapse of time or both would, unless cured or waived, become an Event of
Default.



     “Defaulting Lender” means any Lender that (a) has failed, within two Domestic Business Days of
the date required to be funded or paid, to (i) fund all or any portion of its Loans, (ii) fund all
or any portion of its participations in Letters of Credit or (iii) pay over to the Administrative
Agent or any Lender any other amount required to be paid by it hereunder, unless, in the case of
clause (i) above, such Lender notifies the Administrative Agent and the Company in writing that
such failure is the result of such Lender’s reasonable determination that a condition precedent to
funding (specifically identified and including the particular default, if any) has not been
satisfied, (b) has notified the Company or the Administrative Agent in writing, or has made a
public statement to the effect, that it does not intend or expect to comply with all or any portion
of its funding obligations under this Agreement (unless such writing or public statement indicates
that such position is based on such Lender’s reasonable determination that a condition precedent
(specifically identified and including the particular default, if any) to funding under this
Agreement cannot be satisfied) or generally under other agreements in which it commits to extend
credit, (c) has failed, within three Domestic Business Days after written request by the
Administrative Agent, acting in good faith, to provide a certification in writing from an
authorized officer of such Lender that it will comply with its obligations to fund Loans and
participations in then outstanding Letters of Credit under this Agreement, provided that such
Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Administrative
Agent’s receipt of such certification in form and substance reasonably satisfactory to it, or (d)
has become the subject of a Bankruptcy Event or has a Parent that has become the subject of a
Bankruptcy Event.



     “Documentation Agents” means Barclays Bank PLC, Citibank, N.A. and ING Bank N.V., in their
capacity as Documentation Agents with the credit facility provided hereunder.



5









 





     “Dollar Amount” means, at any time:




     (i) with respect to any Dollar-Denominated Loan, the principal amount thereof then
outstanding;




     (ii) with respect to any Alternative Currency Loan, the principal amount thereof then
outstanding in the relevant Alternative Currency, converted to Dollars in accordance with
Section 2.16(a); and




     (iii) with respect to any Letter of Credit Liabilities, (A) if denominated in
Dollars, the amount thereof and (B) if denominated in an Alternative Currency, the amount
thereof converted to Dollars in accordance with Section 2.16(b).



     “Dollar-Denominated Loan” means a Loan that is made in Dollars pursuant to the applicable
Notice of Borrowing.



     “Dollars” and the sign “$” mean lawful currency of the United States.



     “Domestic Business Day” means any day except a Saturday, Sunday or other day on which
commercial banks in New York City are authorized by law to close.



     “Domestic Lending Office” means, as to each Lender, its office located at its address set
forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its
Domestic Lending Office) or such other office as such Lender may hereafter designate as its
Domestic Lending Office by notice to the Company and the Administrative Agent.



     “Effective Date” means the date on which the conditions specified in Section 3.01 are
satisfied (or waived in accordance with Section 11.05).



     “Election to Participate” means an Election to Participate substantially in the form of
Exhibit D hereto.



     “Election to Terminate” means an Election to Terminate substantially in the form of Exhibit E
hereto.



     “Eligible Subsidiary” means any Wholly-Owned Consolidated Subsidiary of the Company as to
which an Election to Participate shall have been delivered to the Administrative Agent and as to
which an Election to Terminate shall not have been delivered to the Administrative Agent. Each
such Election to Participate and Election to Terminate shall be duly executed on behalf of such
Wholly-Owned Consolidated Subsidiary and the Company in such number of copies as the Administrative
Agent may request. The delivery of an Election to Terminate shall not affect any obligation of an
Eligible Subsidiary theretofore



6









 







incurred. The Administrative Agent shall promptly give notice to
the Lenders of the receipt of any Election to Participate or Election to Terminate.



     “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation or reclamation of
natural resources, or the management, release or threatened release of any Hazardous Material.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Company or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.



     “ERISA Group” means the Company, any Consolidated Subsidiary and all members of a controlled
group of corporations or other entities and all trades or businesses (whether or not incorporated)
under common control which, together with the Company or any Consolidated Subsidiary, are treated
as a single employer under Section 414 of the Internal Revenue Code.



     “Euro” means the single currency of the Participating Member States.



     “Euro-Currency Business Day” means a Euro-Dollar Business Day, unless such term is used in
connection with an Alternative Currency Borrowing or Alternative Currency Loan, in which case such
day shall only be a Euro-Currency Business Day if (i) commercial banks are open for international
business (including dealings in deposits in such Alternative Currency) in London and (ii) if such
Alternative Currency is Euro, the Trans-European Automated Real-time Gross settlement Express
Transfer (or “TARGET”) payment system is open for the settlement of payment in Euro.



     “Euro-Currency Lending Office” means, as to each Lender, its office, branch or affiliate
located at its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Euro-Currency Lending Office) or such other office, branch or
affiliate of such Lender as it may hereafter designate as its Euro-Currency Lending Office by
notice to the Company and the Administrative Agent; provided that any Lender may from time



7









 







to time
by notice to the Company and the Administrative Agent designate separate Euro-Currency Lending
Offices for its Loans in different currencies, in which case all references herein to the
Euro-Currency Lending Office of such Lender shall be deemed to refer to any or all of such offices,
as the context may require.



     “Euro-Currency Loan” means either a Euro-Dollar Loan or an Alternative Currency Loan.



     “Euro-Currency Margin” means, at any date, the applicable rate per annum determined in
accordance with the Pricing Schedule.



     “Euro-Currency Rate” means a rate of interest determined pursuant to Section 2.06(b) on the
basis of a London Interbank Offered Rate.



     “Euro-Currency Reserve Percentage” means, for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve requirement for a member bank
of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in respect of
“Eurocurrency liabilities” (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Euro-Currency Loans is determined or any
category of extensions of credit or other assets which includes loans by a non-United States office
of any Lender to United States residents).



     “Euro-Dollar Business Day” means any Domestic Business Day on which commercial banks are open
for international business (including dealings in Dollar deposits) in London.



     “Euro-Dollar Loan” means a Dollar-Denominated Loan that bears interest at a Euro-Currency Rate
pursuant to the applicable Notice of Borrowing or Notice of Interest Rate Election.



     “Event of Default” has the meaning set forth in Section 6.01.



     “Existing Agreement” means the $2,000,000,000 Amended and Restated Credit Agreement dated as
of December 5, 2006 among the Company, the Eligible Subsidiaries referred to therein, the banks
parties thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent.



     “Existing Letters of Credit” means the letters of credit issued by an Issuing Lender under the
Existing Agreement before the Effective Date.



8









 





     “Facility Fee Rate” means, at any date, the applicable rate per annum determined in accordance
with the Pricing Schedule.



     “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code and any current or
future regulations or official interpretations thereof; provided, FATCA shall also include any
amendments to Sections 1471 through 1474 of the Internal Revenue Code if, as amended, FATCA
provides a commercially reasonable mechanism to avoid the tax imposed thereunder by satisfying the
information reporting and other requirements of FATCA.



     “Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if necessary, to
the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day; provided that (i) if such day is not a Domestic Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and (ii) if no such rate
is so published on such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to JPMorgan Chase Bank, N.A. on such day on such transactions as
determined by the Administrative Agent.



     “GAAP” shall mean generally accepted accounting principles as in effect from time to time.



     “Governmental Authority” means the government of the United States of America, any other
nation 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.



     “Group of Loans” means, at any time, a group of Loans consisting of (i) all Loans to the same
Borrower which are Base Rate Loans at such time or (ii) all Loans which are Euro-Currency Loans in
the same currency to the same Borrower having the same Interest Period at such time, provided that,
if a Loan of any particular Lender is converted to or made as a Base Rate Loan pursuant to Article
8, such Loan shall be included in the same Group or Groups of Loans from time to time as it would
have been in if it had not been so converted or made.



     “Guarantee” by any Person means, without duplication, any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such



9









 







Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the purpose of assuring in
any other manner the holder of such Debt of the payment thereof or to protect such holder against
loss in respect thereof (in whole or in part); provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The term “Guarantee”
used as a verb has a corresponding meaning. It is understood that the amount of any Guarantee of
or by any Person shall be deemed to be the lower of (a) the amount of Debt in respect of which such
Guarantee exists and (b) the maximum amount for which such Person may be liable pursuant to the
instrument embodying such Guarantee.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



     “Holding Company” means a corporation or other legal entity organized under the laws of a
State of the United States which becomes the direct or indirect owner of equity interests of the
Company and its Subsidiaries pursuant to a Holding Company Reorganization.



     “Holding Company Reorganization” means a transaction or series of transactions pursuant to
which the Company becomes a direct or indirect wholly-owned subsidiary of the Holding Company.



     “Increased Commitments” has the meaning set forth in Section 2.20(a).



     “Indemnitee” has the meaning set forth in Section 11.03(b).



     “Interest Period” means, with respect to each Euro-Currency Loan, the period commencing on the
date of borrowing specified in the applicable Notice of Borrowing or on the date specified in an
applicable Notice of Interest Rate Election and ending one, two, three or six months thereafter (or
such other period of time as may at the time be mutually agreed by the Borrower and the Lenders),
as the Borrower may elect in such notice; provided that:




     (a) any Interest Period which would otherwise end on a day which is not a
Euro-Currency Business Day shall be extended to the next succeeding Euro-Currency Business
Day unless such Euro-Currency Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Euro-Currency Business Day; and



10









 






     (b) any Interest Period which begins on the last Euro-Currency Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last Euro-Currency
Business Day of a calendar month; and




     (c) any Interest Period applicable to any Loan of any Lender which would otherwise
end after the Termination Date for such Lender shall end on the Termination Date for such
Lender.



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, or any successor
statute.



     “Issuing Lender” means JPMorgan Chase Bank, N.A., Bank of America, N.A. and any other Lender
that may agree to issue letters of credit hereunder pursuant to an instrument in form satisfactory
to the Company, such Lender and the Administrative Agent, in its capacity as issuer of a Letter of
Credit hereunder. Unless the contest otherwise requires, any reference herein to a “Lender”
includes each Issuing Lender.



     “LC Sublimit” means (i) as to aggregate Letter of Credit Liabilities with respect to all
Letters of Credit, $350,000,000 and (ii) as to aggregate Letter of Credit Liabilities with respect
to the Letters of Credit issued by any individual Issuing Lender, such amount as may be agreed in
writing from time to time by the Company and such Issuing Lender and notified to the Administrative
Agent.



     “LC Termination Date” means, at any time, the fifth Business Day prior to the earliest
Termination Date then in effect as to any Lender.



     “Lender” means each Person listed in the Commitment Schedule, each Additional Lender or
Assignee which becomes a Lender pursuant to Section 2.20 or 11.06(c), and their respective
successors.



     “Lender Affiliate” means, (a) with respect to any Lender, (i) an Affiliate of such Lender or
(ii) any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by such Lender or an Affiliate of
such Lender and (b) with respect to any Lender that is a fund which invests in bank loans and
similar extensions of credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor. As used in this definition, (x) “Affiliate” means, with respect to a specified
Person, another Person that directly, or indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with such specified Person and (y)



11









 







“Control” means
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ability to exercise voting power, by contract or
otherwise (and “Controlled” has a meaning correlative thereto).



     “Letter of Credit” means any Existing Letter of Credit or Additional Letter of Credit.



     “Letter of Credit Disbursement” means a payment made by an Issuing Lender pursuant to a Letter
of Credit.



     “Letter of Credit Liabilities” means, for any Lender and at any time, such Lender’s ratable
participation in the sum of (x) the amounts then owing by the Borrowers in respect of amounts drawn
under Letters of Credit and (y) the aggregate amount then available for drawing under all Letters
of Credit.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset. For the purposes of this Agreement, the
Company or any Consolidated Subsidiary shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease (determined in accordance with GAAP as in effect on the date of this
Agreement) or other title retention agreement relating to such asset (other than an operating lease
(determined in accordance with GAAP as in effect on the date of this Agreement)).



     “Loan” means a loan made by a Lender pursuant to Section 2.01; provided that, if any such loan
or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term “Loan” shall refer to the
combined principal amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be.



     “Loan Documents” means this Agreement, each Election to Participate and any promissory notes
issued to any Lender hereunder.



     “London Interbank Offered Rate” has the meaning set forth in Section 2.06(b).



     “London Office” means the office of the Administrative Agent identified on the signature pages
hereof as its London office, or such other office of the Administrative Agent as it may specify for
such purpose by notice to the other parties hereto.



12









 





     “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations or financial condition of the Company and its Subsidiaries taken as a whole, (b) the
ability of the Company to perform any of its material obligations under the Loan Documents or (c)
the validity or enforceability of, or the rights of or remedies available to the Lenders under, the
Loan Documents.



     “Material Debt” means Debt (other than the Loans) of the Company and/or one or more of its
Consolidated Subsidiaries, arising in one or more related or unrelated transactions, in an
aggregate principal amount exceeding $150,000,000.



     “Material Plan” means at any time a Plan or Plans having aggregate Unfunded Liabilities in
excess of $150,000,000.



     “Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of
Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an
obligation to make contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA Group during such
five year period.



     “New York Office” means the office of the Administrative Agent identified on the signature
pages hereof as its New York office, or such other office of the Administrative Agent as it may
specify for such purpose by notice to the other parties hereto.



     “Notes” means promissory notes of a Borrower, substantially in the form of Exhibit A hereto,
evidencing the obligation of such Borrower to repay the Loans made to it, and “Note” means any one
of such promissory notes issued hereunder.



     “Notice of Borrowing” has the meaning set forth in Section 2.02.



     “Notice of Interest Rate Election” has the meaning set forth in Section 2.15.



     “Notice of Issuance” has the meaning set forth in Section 2.19(c).



     “Outstanding Amount” means, as to any Lender at any time, the sum of (i) the aggregate Dollar
Amount of Loans made by it outstanding at such time plus (ii) the aggregate Dollar Amount of its
Letter of Credit Liabilities at such time.



13









 





     “Parent” means, with respect to any Lender, any Person controlling such Lender.



     “Participant” has the meaning set forth in Section 11.06(b).



     “Participant Register” has the meaning set forth in Section 11.06(b).



     “Participating Member States” means those members of the European Union from time to time
which adopt a single, shared currency.



     “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all
of its functions under ERISA.



     “Person” means an individual, a corporation, a limited liability company, a partnership, an
association, a trust, a limited liability company or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.



     “Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Internal Revenue Code and either (i) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the
preceding five years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a member of the ERISA
Group.



     “Pricing Schedule” means the Schedule attached hereto identified as such.



     “Prime Rate” means the rate of interest publicly announced by JPMorgan Chase Bank, N.A. in New
York City from time to time as its Prime Rate.



     “Quarterly Payment Date” means each March 31, June 30, September 30 and December 31.



     “Register” has the meaning set forth in Section 11.06(c).



     “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as
in effect from time to time.



     “Reimbursement Obligation” has the meaning set forth in Section 2.19(e).



     “Required Lenders” means at any time Lenders having more than 50% of the aggregate amount of
the Credit Exposures at such time, in each case exclusive of Defaulting Lenders.



14









 





     “Screen” has the meaning set forth in Section 2.06.



     “Significant Subsidiary” means any Consolidated Subsidiary (which term, as used in this
definition, includes such Subsidiary’s Consolidated subsidiaries) which meets any of the following
conditions:




	 	(i)	 	the Company’s and the other Subsidiaries’ outstanding investments in and
advances to such Subsidiary exceed 10% of the Consolidated total assets of the
Company, in each case as of the end of the most recently completed fiscal year of the
Company for which financial statements have been delivered pursuant to Section
5.01(a);
	 
	 	(ii)	 	the total assets (after intercompany eliminations) of such Subsidiary
exceed 10% of the Consolidated total assets of the Company as of the end of the most
recently completed fiscal year of the Company for which financial statements have
been delivered pursuant to Section 5.01(a);
	 
	 	(iii)	 	the net sales of such Subsidiary (after intercompany eliminations) exceed
10% of the Consolidated net sales of the Company for the most recently completed
fiscal year of the Company for which financial statements have been delivered
pursuant to Section 5.01(a); or
	 
	 	(iv)	 	any Consolidated Subsidiary with or into which a Significant Subsidiary is
merged or which has acquired all or substantially all the assets of a Significant
Subsidiary in either case pursuant to a transaction permitted by Section 5.09;
provided, however, that such Subsidiary shall cease to be a Significant Subsidiary at
the time of delivery pursuant to Section 5.01(a) of financial statements covering the
fiscal year in which such transaction occurred unless one of the conditions set forth
in clauses (i), (ii) or (iii) above is satisfied with respect to such Subsidiary.





     “Spot Rate” means, for any Alternative Currency on any day, the average of the Administrative
Agent’s spot buying and selling rates for the exchange of
such Alternative Currency and Dollars as of approximately 11:00 A.M. (London time) on such
day.



     “Sterling” means the lawful currency of the United Kingdom.



     “Sterling Loan” means a Loan that is made in Sterling pursuant to the applicable Notice of
Borrowing.



15









 





     “Stop Issuance Notice” has the meaning set forth in Section 2.19(i).



     “Subsidiary” means, with respect to any Person, any corporation, association or other business
entity of which more than 50% of the total voting power of shares of stock (or comparable ownership
interests) entitled (without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of the Person or a combination
thereof.



     “Syndication Agent” means Bank of America, N.A., in its capacity as Syndication Agent in
connection with the credit facility provided hereunder.



     “Termination Date” means, as to each Lender, February 17, 2015 or, in the case of any Lender,
such later date to which the Commitment of such Lender shall have been extended pursuant to Section
2.01(c) (or, if any of the foregoing days is not a Euro-Dollar Business Day, the next preceding
Euro-Dollar Business Day).



     “Total Outstanding Amount” means, at any time, the aggregate Dollar Amount of all Loans
outstanding at such time plus the aggregate Dollar Amount of the Letter of Credit Liabilities of
all Lenders at such time.



     “Type” refers to the determination whether a loan is a Base Rate Loan or a Euro-Dollar Loan.



     “Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by
which (i) the present value of all benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits (excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of the ERISA Group to the PBGC or any
other Person under Title IV of ERISA.



     “United States” means the United States of America, including the States and the District of
Columbia, but excluding its territories and possessions.



     “Withholding Agent” has the meaning set forth in Section 8.04(a).



     “Wholly-Owned Consolidated Subsidiary” means any Consolidated Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors’ qualifying shares) are at
the time directly or indirectly owned by the Company.



16









 





     Section 1.02. Accounting Terms and Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time to time, applied on
a basis consistent (except for changes concurred in by the Company’s independent public
accountants) with the most recent audited consolidated financial statements of the Company and its
Consolidated Subsidiaries delivered to the Lenders; provided that, if the Company notifies the
Administrative Agent that the Company wishes to amend any covenant in Article 5 to eliminate the
effect of any change in generally accepted accounting principles on the operation of such covenant
(or if the Administrative Agent notifies the Company that the Required Lenders wish to amend
Article 5 for such purpose), then the Company’s compliance with such covenant shall be determined
on the basis of generally accepted accounting principles in effect immediately before the relevant
change in generally accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company and the Required
Lenders.



     Section 1.03. Types of Loans and Borrowings. The term “Borrowing” denotes the aggregation of
Loans of one or more Lenders to be made to a single Borrower pursuant to Article 2 on the same
date, all of which Loans are of the same Type and currency and, in the case of Euro-Currency Loans,
have the same initial Interest Period. Identification of a Borrowing by Type (e.g., a
“Euro-Currency Borrowing”) indicates that such Borrowing is comprised of Loans of such Type.



ARTICLE 2

The Credits




     Section 2.01. Commitments to Lend.



     (a) Committed Loans. Each Lender severally agrees, on the terms and conditions set forth in
this Agreement, to make loans (which may be denominated in Dollars or an Alternative Currency as
the Borrower elects pursuant to Section 2.02) to the Borrowers pursuant to this Section 2.01(a)
from time to time prior to its Termination Date in amounts such that (i) the Outstanding Amount of
such Lender shall at no time exceed the amount of such Lender’s Commitment and (ii) the Total
Outstanding Amount shall at no time exceed the aggregate amount of the Commitments. Within the
foregoing limits, any Borrower may borrow under this Section, repay or, to the extent permitted by
Section 2.10, prepay Loans and
reborrow at any time prior to the Termination Date for any Lender under this Section 2.01.



17









 





     (b) Minimum Borrowings. Each Borrowing under this Section 2.01 shall be in an aggregate
Dollar Amount of not less than $10,000,000 (except that any such Borrowing may be in the aggregate
Dollar Amount of the available Commitments) and shall be made from the several Lenders ratably in
proportion to their respective Commitments.



     (c) Extension of Commitments. (i) Each Lender’s Commitment may be extended, if at the time no
Event of Default has occurred and is continuing, in the manner set forth in this subsection (c), on
a single occasion on any anniversary of the date hereof (the “Extension Date”) for a period of one
year after the date on which the Commitment of such Lender would have been terminated. If the
Company wishes to request an extension of each Lender’s Commitment, it shall give notice to that
effect to the Administrative Agent not less than 45 days and not more than 90 days prior to the
Extension Date then in effect, whereupon the Administrative Agent shall promptly notify each of the
Lenders of such request. Each Lender will use its best efforts to respond to such request, whether
affirmatively or negatively, as it may elect in its discretion, within 30 days of such request to
the Administrative Agent. If any Lender shall not have responded affirmatively within such 30-day
period, such Lender shall be deemed to have rejected the Company’s proposal to extend its
Commitment, and only the Commitments of those Lenders which have responded affirmatively shall be
extended, subject to receipt by the Administrative Agent of counterparts of an Extension Agreement
in substantially the form of Exhibit I hereto (the “Extension Agreement”) duly completed and signed
by the Company, the Administrative Agent and all of the Lenders which have responded affirmatively.
The Administrative Agent shall provide to the Company, no later than 10 days prior to the
Extension Date for any such request, a list of the Lenders which have responded affirmatively. The
Extension Agreement shall be executed and delivered no later than five days prior to the Extension
Date, and no extension of the Commitments pursuant to this subsection (c) shall be legally binding
on any party hereto unless and until such Extension Agreement is so executed and delivered by
Lenders having at least 51% of the aggregate amount of the Commitments.



     (ii) If any Lender rejects, or is deemed to have rejected, the Borrower’s proposal to extend
its Commitment (A) this Agreement shall terminate on the Termination Date with respect to such
Lender, (B) the Borrower shall pay to such Lender on the Termination Date any amounts due and
payable to such Lender on such date and (C) the Borrower may, if it so elects, designate a Person
not theretofore a Lender and acceptable to the Administrative Agent to become a Lender, or agree
with an existing Lender that such Lender’s Commitment shall be increased, provided that the
aggregate amount of the Commitments following any designation or agreement may not exceed the
aggregate amount of the Commitments as in effect immediately prior to the



18









 







relevant request. Upon execution and delivery by the Borrower and such replacement Lender or
other Person of an instrument of assumption in form and amount satisfactory to the Administrative
Agent and execution and delivery of the Extension Agreement pursuant to subsection (c)(i), such
existing Lender shall have a Commitment as therein set forth or such other Person shall become a
Lender with a Commitment as therein set forth and all the rights and obligations of a Lender with
such a Commitment hereunder.



     (iii) The Administrative Agent shall promptly notify the Lenders of the effectiveness of each
extension of the Commitments pursuant to this subsection (c).



     Section 2.02. Notice of Borrowing. The Borrower shall give the Administrative Agent notice
(a “Notice of Borrowing”) (1) at its New York Office not later than 10:30 A.M. (New York City
time) on (y) the date of each Base Rate Borrowing and (z) the third Euro-Dollar Business Day before
each Euro-Dollar Borrowing and (2) at its New York Office and its London Office not later than
10:30 A.M. (London time) on the third Euro-Currency Business Day before each Borrowing of
Alternative Currency Loans, specifying:




     (i) the date of such Borrowing, which shall be a Domestic Business Day in the case of
a Base Rate Borrowing or a Euro-Currency Business Day in the case of a Euro-Currency
Borrowing;




     (ii) the currency and aggregate amount (in such currency) of such Borrowing;




     (iii) in the case of a Borrowing of Dollar-Denominated Loans, whether such Loans are
to be Base Rate Loans or Euro-Dollar Loans; and




     (iv) in the case of a Euro-Currency Borrowing, the duration of the initial Interest
Period applicable thereto, subject to the provisions of the definition of Interest Period.



     Section 2.03. Notice to Lenders; Funding of Loans.



     (a) Upon receipt of a Notice of Borrowing, the Administrative Agent shall promptly notify each
Lender of the contents thereof and of such Lender’s share of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.



     (b) On the date of each Borrowing, each Lender participating therein shall make available its
ratable share of such Borrowing:



19









 






     (A) if such Borrowing is to be made in Dollars, not later than 2:00 P.M. (New York
City time), in Federal or other funds immediately available in New York City, to the
Administrative Agent at its New York Office; or




     (B) if such Borrowing is to be made in an Alternative Currency, in such Alternative
Currency (in such funds as may then be customary for the settlement of international
transactions in such Alternative Currency) to the account of the Administrative Agent at
its London Office.


Unless the Administrative Agent determines that any applicable condition specified in Article 3 has
not been satisfied or waived in accordance with Section 11.05, the Administrative Agent will make
the funds so received from the Lenders available to the Borrower on the date of each Borrowing as
directed by the Borrower.




     (c) Unless the Administrative Agent shall have received at its New York Office notice from a
Lender prior to the date (or in the case of a Base Rate Borrowing, prior to 2:00 P.M. (New York
City time) on the date of such Borrowing) of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available to the Administrative Agent on the date of
such Borrowing in accordance with subsection (b) of this Section 2.03 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such share available to the
Administrative Agent, such Lender and, if such Lender shall not have paid such amount to the
Administrative Agent within two Domestic Business Days of the Administrative Agent’s demand
therefor, the Borrower severally agree to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the Administrative Agent, at
the Federal Funds Rate (if such Borrowing is in Dollars) or the applicable London Interbank Offered
Rate (if such Borrowing is in an Alternative Currency). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall constitute such
Lender’s Loan included in such Borrowing for purposes of this Agreement.



     (d) The failure of any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of any obligation to make a Loan on such date.



20









 





     (e) Each Lender may, at its option, make any Loan available to any Eligible Subsidiary which
is not organized under the laws of the United States or any political subdivision thereof by
causing any foreign or domestic branch or affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of such Eligible Subsidiary to repay
such Loan in accordance with the terms of this Agreement.



     Section 2.04. Notes.



     (a) Each Lender may, by notice to the Company and the Agent, request (i) that its Loans to any
Borrower be evidenced by a single Note of such Borrower payable to the order of such Lender for the
account of its Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Lender’s Loans to such Borrower or (ii) that its Loans of a particular Type or
currency to any Borrower be evidenced by a separate Note of such Borrower in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such Note shall be in substantially the form
of Exhibit A hereto with appropriate modifications to reflect the fact that it evidences solely
Loans of the relevant Type or currency. Each reference in this Agreement to the “Notes” of such
Lender shall be deemed to refer to and include any or all of such Notes, as the context may
require.



     (b) Each Lender shall record the date, amount, Type, currency and maturity of each Loan made
by it and the date and amount of each payment of principal made with respect thereto, and may, if
such Lender so elects in connection with any transfer or enforcement of its Note, endorse on the
schedule forming a part thereof appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding; provided that the failure of any Lender to make any
such recordation or endorsement shall not affect the obligations of any Borrower hereunder or under
the Notes. Each Lender is hereby irrevocably authorized by the Borrowers so to endorse its Notes
and to attach to and make a part of any Note a continuation of any such schedule as and when
required.



     Section 2.05. Maturity of Loans. Each Loan of each Lender shall mature, and the principal
amount thereof shall be due and payable (together with interest accrued thereon), on the
Termination Date of such Lender.



     Section 2.06. Interest Rates.



     (a) Each Base Rate Loan shall bear interest on the outstanding principal amount thereof, for
each day from the date such Loan is made until it becomes due, at a rate per annum equal to the sum
of the Base Rate Margin and the Base Rate for each such day. Such interest shall be payable at
maturity, quarterly in arrears on each Quarterly Payment Date prior to maturity and, with respect
to the



21









 







principal amount of any Base Rate Loan converted to a Euro-Dollar Loan, on the date such
amount is so converted. Any overdue principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day from and including the date payment thereof was due to
but excluding the date of actual payment, at a rate per annum equal to the sum of 2% plus the rate
otherwise applicable to Base Rate Loans for each such day.



     (b) Each Euro-Currency Loan shall bear interest on the outstanding principal amount thereof,
for each day during each Interest Period applicable thereto, at a rate per annum equal to the sum
of the Euro-Currency Margin for such day plus the applicable London Interbank Offered Rate for such
Interest
Period. Such interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three months after the first
day thereof.



     The “London Interbank Offered Rate” applicable to any Euro-Currency Loan for any Interest
Period means the rate appearing on the Screen at approximately 11:00 A.M. (London time) on the Rate
Fixing Date (as defined below) as the rate for deposits in Dollars or the relevant Alternative
Currency with a maturity comparable to such Interest Period. If no rate appears on the Screen for
the necessary currency and period, then the “London Interbank Offered Rate” with respect to such
Euro-Currency Loan for such Interest Period shall be the rate at which deposits in that currency
for value on the first day of such Interest Period with a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent in the London
interbank market at approximately 11:00 A.M. (London time) on the Rate Fixing Date.



     The “Screen” means (i) with respect to Dollar-Denominated Loans, the Reuters “LIBOR01” screen
displaying British Bankers’ Association Interest Settlement Rates and (ii) with respect to
Alternative Currency Loans, the Reuters screen selected by the Administrative Agent that displays
rates for interbank deposits in the appropriate Alternative Currency or, in the case of either (i)
or (ii), any successor or substitute screen provided by Reuters, or any successor to or substitute
for such service, providing rate quotations comparable to those currently provided on such screen,
as determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in the London interbank market.



     “Rate Fixing Date” means the second Euro-Currency Business Day before the first day of such
Interest Period.



     (c) Any overdue principal of or interest on any Euro-Currency Loan shall bear interest,
payable on demand, for each day from and including the date payment thereof was due to but
excluding the date of actual payment, at a rate per annum equal to the sum of 2% plus the higher of
(i) the sum of the Euro-Currency



22









 








Margin for such day plus the London Interbank Offered Rate
applicable to such Loan on the day before such payment was due and (ii) the Euro-Currency Margin
for such day plus the quotient obtained (rounded upward, if necessary, to the next higher 1/100 of
1%) by dividing (x) the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of
the respective rates per annum at which one day (or, if such amount due remains unpaid more than
three Euro-Currency Business Days, then for such other period of time not longer than six months as
the Administrative Agent may select) deposits in the relevant currency in an amount approximately
equal to such overdue payment are offered by the principal London office of the Administrative
Agent in the London interbank market for the applicable period determined as provided above by (y)
1.00 minus the Euro-Currency Reserve Percentage.



     (d) The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder. The Administrative Agent shall give prompt notice to the Borrower and the Lenders of
each rate of interest so determined, and its determination thereof shall be conclusive in the
absence of manifest error.



     Section 2.07. Fees. (a) The Company shall pay to the Administrative Agent for the account of
the Lenders ratably a facility fee in Dollars at the Facility Fee Rate (determined daily in
accordance with the Pricing Schedule) on the daily aggregate amount of the Credit Exposures. Such
facility fee shall accrue from and including the Effective Date to but excluding the date on which
the Credit Exposures are reduced to zero.



     (b) The Borrower shall pay to the Administrative Agent (i) for the account of the Lenders
ratably a letter of credit fee in Dollars accruing daily on the aggregate Dollar Amount of all
outstanding Letters of Credit at a rate per annum equal to the Euro-Currency Margin or, in the case
of performance standby Letters of Credit with respect to nonfinancial contractual obligations, a
rate per annum equal to 66 2/3% of the Euro-Currency Margin (determined daily in accordance with
the Pricing Schedule) and (ii) for the account of each Issuing Lender a letter of credit fronting
fee accruing daily on the aggregate Dollar Amount of all Letters of Credit issued by such Issuing
Lender at a rate per annum mutually agreed from time to time by the Company and such Issuing
Lender.



     (c) Accrued fees under this Section shall be payable quarterly in arrears on each Quarterly
Date and on the date of termination of the Commitments in their entirety (and, if later, the date
the Credit Exposures are reduced to zero).



     Section 2.08. Optional Termination or Reduction of Commitments. The Company may, upon at
least three Domestic Business Days’ notice (which notice may be conditioned upon the effectiveness
of other credit facilities) to the Administrative Agent at its New York Office, (i) terminate the
Commitments at any time, if no Loans or Letter of Credit Liabilities are outstanding at such time
or



23









 







(ii) ratably reduce from time to time by an aggregate amount of $10,000,000 or any larger
multiple thereof, the aggregate amount of the Commitments in excess of the Total Outstanding
Amount. Promptly after receiving a notice pursuant to this Section, the Administrative Agent shall
notify each Lender of the contents thereof.



     Section 2.09. Mandatory Termination of Commitments. The Commitment of each Lender shall
terminate on its Termination Date.



     Section 2.10. Optional Prepayments.



     (a) Subject in the case of Euro-Currency Loans to Section 2.12, the Borrower may upon notice
to the Administrative Agent (i) at its New York Office not later than 10:30 A.M. (New York City
time) on any Domestic Business Day for prepayment on that date of any Group of Base Rate Loans or
the third Euro-
Dollar Business Day before the date of prepayment of any Group of Euro-Dollar Loans, prepay
any such Group or (ii) at its London Office not later than 11:00 A.M. (London time) on the third
Euro-Currency Business Day before the date of prepayment, prepay any Group of Alternative Currency
Loans, in each case in whole at any time, or from time to time in part in Dollar Amounts
aggregating not less than $10,000,000, by paying the principal amount to be prepaid together with
accrued interest thereon to but not including the date of prepayment. Each such optional prepayment
shall be applied to prepay ratably the Loans of the several Lenders included in such Group of
Loans.



     (b) Upon receipt of a notice of prepayment pursuant to this Section, the Administrative Agent
shall promptly notify each Lender of the contents thereof and of such Lender’s ratable share of
such prepayment and once notice is so given to the Lenders, the Borrower’s notice of prepayment
shall not thereafter be revocable by the Borrower.



     Section 2.11. General Provisions as to Payments.



     (a) The Borrowers shall make each payment of principal of, and interest on, the
Dollar-Denominated Loans, of Letter of Credit Liabilities denominated in Dollars and of fees
hereunder not later than 2:00 P.M. (New York City time) on the date when due, in Federal or other
funds immediately available in New York City, without set-off, counterclaim or other deduction, to
the Administrative Agent at its New York Office. The Borrowers shall make each payment of principal
of, and interest on, the Alternative Currency Loans and of Letter of Credit Liabilities denominated
in an Alternative Currency in the relevant Alternative Currency in such funds as may then be
customary for the settlement of international transactions in such Alternative Currency, without
set-off, counterclaim or other deduction, to the Administrative Agent at its London Office. The
Administrative Agent will promptly distribute to each Lender its ratable share



24









 







of each such payment
received by the Administrative Agent for the respective accounts of the Lenders. Whenever any
payment of principal of, or interest on, the Base Rate Loans or of fees shall be due on a day which
is not a Domestic Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or interest on, the
Euro-Currency Loans shall be due on a day which is not a Euro-Currency Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Currency Business Day unless such
Euro-Currency Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Currency Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon shall be payable for such
extended time.



     (b) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Lenders hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the
Administrative Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent that the Borrower shall not have so made such payment,
each Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date such amount is distributed
to such Lender until the date such Lender repays such amount to the Administrative Agent, at (i)
the Federal Funds Rate (if such amount was distributed in Dollars) or (ii) the rate per annum at
which one-day deposits in the relevant currency are offered by the principal London office of the
Administrative Agent in the London interbank market for such day (if such amount was distributed in
an Alternative Currency).



     (c) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.03(b), 2.11(b), 2.19(e) or 7.06 and has not cured the payment within two Domestic Business Days,
then the Administrative Agent may, in its discretion and notwithstanding any contrary provision
hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of
such Lender for the benefit of the Administrative Agent or the Issuing Lender to satisfy such
Lender’s obligations to it under such Section until all such unsatisfied obligations are fully
paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and
application to, any future funding obligations of such Lender under any such Section, in the case
of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in
its discretion. Such cash collateral shall be returned to the Lender (i) if such Lender is a
Defaulting Lender, once it ceases to be a Defaulting Lender or (ii) upon



25









 







termination of this
Agreement; provided that, in each of clause (i) and (ii), the Lender has made all payments required
to be made hereunder.



     Section 2.12. Funding Losses. If the Borrower makes any payment of principal with respect to
any Euro-Currency Loan or any Euro-Dollar Loan is converted to a Base Rate Loan (pursuant to
Article 2, 6 or 8 or otherwise) on any day other than the last day of an Interest Period applicable
thereto, or the last day of an applicable period fixed pursuant to Section 2.06(c), or if the
Borrower fails to borrow, prepay, convert or continue any Euro-Currency Loans after notice has been
given to any Lender in accordance with Section 2.03(a), 2.10(b), or 2.15, the Borrower shall
reimburse each Lender within 15 days after demand for any resulting loss or expense reasonably
incurred by it (or by an existing or prospective Participant in the related Loan) in obtaining,
liquidating or employing deposits or other funds from third parties, but excluding loss of margin
for the period after any such payment or conversion or failure to borrow, prepay, convert or
continue; provided that such Lender shall have delivered to the Borrower a certificate specifying
in reasonable detail the calculation of, and the reasons for, the amount of such loss or expense,
which certificate shall be conclusive in the absence of clearly demonstrable error.



     Section 2.13. Computation of Interest and Fees. Interest on Euro-Currency Loans denominated
in Sterling and interest calculated on the basis of the Prime Rate shall be computed on the basis
of a year of 365 days (or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and fees shall be computed
on the basis of a year of 360 days and paid for the actual number of days elapsed (including the
first day but excluding the last day).



     Section 2.14. Regulation D Compensation. Each Lender may require the Borrower to pay,
contemporaneously with each payment of interest on the Euro-Currency Loans, additional interest on
the related Euro-Currency Loan of such Lender at a rate per annum determined by such Lender up to
but not exceeding the excess of (i) (A) the applicable London Interbank Offered Rate divided by (B)
one minus the Euro-Currency Reserve Percentage over (ii) the applicable London Interbank Offered
Rate. Any Lender wishing to require payment of such additional interest (x) shall so notify the
Borrower and the Administrative Agent, in which case such additional interest on the Euro-Currency
Loans of such Lender shall be payable to such Lender at the place indicated in such notice with
respect to each Interest Period commencing at least three Euro-Currency Business Days after the
giving of such notice, and (y) shall notify the Borrower at least five Euro-Currency Business Days
prior to each date on which interest is payable on the Euro-Currency Loans of the amount then due
it under this Section.



     Section 2.15. Method of Electing Interest Rates.



26









 





     (a) The Dollar-Denominated Loans included in each Borrowing shall initially be of the Type
specified by the Borrower in the applicable Notice of Borrowing. Thereafter, the Borrower may from
time to time elect to change or continue the Type of each such Group of Loans (subject to
subsection 2.15(d) of this Section and the provisions of Article 8), as follows:




     (i) if such Loans are Base Rate Loans, the Borrower may elect to convert such Loans
to Euro-Dollar Loans as of any Euro-Dollar Business Day; and




     (ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to convert such
Loans to Base Rate Loans or elect to continue such Loans as Euro-Dollar Loans for an
additional Interest Period, subject to Section 2.12 if any such conversion is effective on
any day other than the last day of an Interest Period applicable to such Loans.



     Each such election shall be made by delivering a notice (a “Notice of Interest Rate Election”)
to the Administrative Agent at its New York Office not later than 10:30 A.M. (New York City time)
on the third Euro-Dollar Business Day before the conversion or continuation selected in such notice
is to be effective. A Notice of Interest Rate Election may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising such Group and
(ii) the portion to which such Notice applies, and the remaining portion to which it does not
apply, are each at least $10,000,000 (unless such portion is comprised of Base Rate Loans). If no
such notice is timely received before the end of an Interest Period for any Group of Euro-Dollar
Loans, the Borrower shall be deemed to have elected that such Group of Loans be converted to Base
Rate Loans at the end of such Interest Period.



     (b) Each Notice of Interest Rate Election shall specify:




     (i) the Group of Loans (or portion thereof) to which such notice applies;




     (ii) the date on which the conversion or continuation selected in such notice is to
be effective, which shall comply with the applicable clause of Section 2.15(a) above;




     (iii) if the Loans comprising such Group are to be converted, the new Type of Loans
and, if the Loans resulting from such conversion are to be Euro-Dollar Loans, the duration
of the next succeeding Interest Period applicable thereto; and



27









 






     (iv) if such Loans are to be continued as Euro-Dollar Loans for an additional
Interest Period, the duration of such additional Interest Period.



     Each Interest Period specified in a Notice of Interest Rate Election shall comply with the
provisions of the definition of Interest Period.



     (c) Promptly after receiving a Notice of Interest Rate Election from the Borrower pursuant to
subsection (a) above, the Administrative Agent shall notify each Lender of the contents thereof and
such notice shall not thereafter be revocable by the Borrower.



     (d) The Borrower shall not be entitled to elect to convert any Loans to, or continue any Loans
for an additional Interest Period as, Euro-Dollar Loans if (i) the aggregate Dollar Amount of any
Group of Euro-Dollar Loans created or continued as a result of such election would be less than
$10,000,000 or (ii) a Default shall have occurred and be continuing when the Borrower delivers
notice of such election to the Administrative Agent.



     (e) The initial Interest Period for each Borrowing of Alternative Currency Loans shall be
specified by the Borrower in the applicable Notice of Borrowing. The Borrower may specify the
duration of each subsequent Interest Period applicable to such Group of Loans by delivering to the
Administrative Agent at its London Office not later than 11:00 A.M. (London time) on the third
Euro-Currency Business Day before the end of the immediately preceding Interest Period, a notice
specifying the Group of Loans to which such notice applies and
the duration of such subsequent Interest Period (which shall comply with the provisions of the
definition of Interest Period). Such notice may, if it so specifies, apply to only a portion of
the aggregate principal amount of the relevant Group of Loans; provided that (i) such portion is
allocated ratably among the Loans comprising such Group and (ii) the Dollar Amounts of the portion
to which such notice applies, and the remaining portion to which it does not apply, are each at
least $10,000,000. If no such notice is timely received by the Administrative Agent before the
end of any applicable Interest Period, the Borrower shall be deemed to have elected that the
subsequent Interest Period for such Group of Loans shall have a duration of one month (subject to
the provisions of the definition of Interest Period).



     Section 2.16. Determining Dollar Amounts; Related Mandatory Prepayments.



     (a) The Administrative Agent shall determine the Dollar Amount of each Alternative Currency
Loan as of the first day of each Interest Period applicable thereto and, in the case of any such
Interest Period of more than three months, at three-month intervals after the first day thereof,
and shall promptly



28









 







notify the Borrower and the Lenders of each Dollar Amount so determined by it.
Each such determination shall be based on the Spot Rate (i) on the date of the related Notice of
Borrowing for purposes of the initial such determination for any Alternative Currency Loan and (ii)
on the fourth Euro-Currency Business Day prior to the date as of which such Dollar Amount is to be
determined, for purposes of any subsequent determination.



     (b) The Administrative Agent shall determine the Dollar Amount of the Letter of Credit
Liabilities related to each Letter of Credit as of the date of issuance thereof and at three-month
intervals after the date of issuance thereof. Each such determination shall be based on the Spot
Rate (i) on the date of the related Notice of Issuance, in the case of the initial determination in
respect of any Letter of Credit and (ii) on the fourth Euro-Currency Business Day prior to the date
as of which such Dollar Amount is to be determined, in the case of any subsequent determination
with respect to an outstanding Letter of Credit.



     (c) Each determination of a Dollar Amount pursuant to this Section shall be conclusive in the
absence of manifest error. If after giving effect to any such determination of a Dollar Amount,
the Total Outstanding Amount exceeds the aggregate amount of the Commitments, the Borrowers shall
within five Euro-Currency Business Days prepay outstanding Loans (as selected by the Company and
notified to the Lenders through the Administrative Agent not less than three Euro-Currency Business
Days prior to the date of prepayment) or take other action to the extent necessary to eliminate any
such excess.



     Section 2.17. Additional Reserve Costs.



     (a) If and so long as any Lender is required to make special deposits with the Bank of
England, to maintain reserve asset ratios or to pay fees, in each case in respect of such Lender’s
Euro-Currency Loans in any Alternative Currency, such Lender may require the Borrower to pay,
contemporaneously with each payment of interest on each of such Loans, additional interest on such
Loan at a rate per annum equal to the Mandatory Costs Rate calculated in accordance with the
formula and in the manner set forth in Exhibit H hereto.



     (b) If and so long as any Lender is required to comply with reserve assets, liquidity, cash
margin or other requirements of any monetary or other authority (including any such requirement
imposed by the European Central Bank or the European System of Central Banks, but excluding
requirements reflected in an applicable Euro-Currency Reserve Percentage or Mandatory Costs Rate)
in respect of any of such Lender’s Euro-Currency Loans in any Alternative Currency, such Lender may
require the Borrower to pay, contemporaneously with each payment of interest on each of such
Lender’s Euro-Currency Loans subject to such requirements, additional interest on such Loan at a
rate per annum specified



29









 







by such Lender to be the cost to such Lender of complying with such
requirements in relation to such Loan.



     (c) Any additional interest owed pursuant to subsection (a) or (b) above shall be determined
by the relevant Lender, which determination shall be conclusive in the absence of clearly
demonstrable error, and notified to the Borrower (with a copy to the Administrative Agent) at least
five Euro-Currency Business Days before each date on which interest is payable for the relevant
Loan, and such additional interest so notified to the Borrower by such Lender shall be payable to
the Administrative Agent for the account of such Lender on each date on which interest is payable
for such Loan.



     Section 2.18. Judgment Currency. If, under any applicable law and whether pursuant to a
judgment being made or registered against any Borrower or for any other reason, any payment under
or in connection with this Agreement is made or satisfied in a currency (the “Other Currency”)
other than that in which the relevant payment is due (the “Required Currency”) then, to the extent
that the payment (when converted into the Required Currency at the rate of exchange on the date of
payment or, if it is not practicable for the party entitled thereto (the “Payee”) to purchase the
Required Currency with the Other Currency on the date of payment, at the rate of exchange as soon
thereafter as it is practicable for it to do so) actually received by the Payee falls short of the
amount due under the terms of this Agreement, such Borrower shall, to the extent permitted by law,
as a separate and independent obligation, indemnify and hold harmless the Payee against the amount
of such short-fall. For the purpose of this Section, “rate of exchange” means the rate at which
the Payee is able on the relevant date to purchase the Required Currency with the Other Currency
and shall take into account any premium and other costs of exchange.



     Section 2.19. Letters of Credit. (a) On the Effective Date, without further action by any
party hereto, the Issuing Lender shall be deemed to have granted to each Lender, and each Lender
shall be deemed to have acquired from the Issuing Lender, a participation in each Existing Letter
of Credit equal to such Lender’s Applicable Percentage of (i) the aggregate amount available to be
drawn thereunder and (ii) the aggregate unpaid amount of any outstanding reimbursement obligations
in respect thereof. Such participations shall be on all the same terms and conditions as
participations granted in Additional Letters of Credit under Section 2.19(b).



     (b) Subject to the terms and conditions hereof, each Issuing Lender agrees to issue Additional
Letters of Credit hereunder denominated in Dollars or in an Alternative Currency from time to time
upon the request of any Borrower; provided that, immediately after each Additional Letter of Credit
is issued (i) the Total Outstanding Amount shall not exceed the aggregate amount of the Commitments
and (ii) the aggregate Dollar Amount of Letter of Credit Liabilities



30









 







shall not exceed any
applicable LC Sublimit. Upon the date of issuance by the Issuing Lender of an Additional Letter of
Credit, the Issuing Lender shall be deemed, without further action by any party hereto, to have
sold to each Lender, and each Lender shall be deemed, without further action by any party hereto,
to have purchased from the Issuing Lender, a participation in such Letter of Credit and the related
Letter of Credit Liabilities in the proportion their respective Commitments bear to the aggregate
Commitments. 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 Borrower to, or entered into by the Borrower with, the Issuing Lender relating to
any Additional Letter of Credit, the terms and conditions of this Agreement shall control.



     (c) The Borrower shall give the Issuing Lender notice at least five Euro-Currency Business
Days prior to the requested issuance of a Letter of Credit (or such lesser notice as may be
acceptable to the Issuing Lender) specifying the date such Letter of Credit is to be issued, and
describing the terms of such Letter of Credit and the nature of the transactions to be supported
thereby (such notice, including any such notice given in connection with the extension, renewal or
amendment of a Letter of Credit, a “Notice of Issuance”). Upon receipt of a Notice of Issuance,
the Issuing Lender shall promptly notify the Administrative Agent, and the Administrative Agent
shall promptly notify each Lender of the contents thereof and of the amount of such Lender’s
participation in such Letter of Credit. The issuance by the Issuing Lender of each Letter of
Credit shall, in addition to the conditions precedent set forth in Article 3, be subject to the
conditions precedent that (i) such Letter of Credit shall be in such form and contain such terms as
shall be satisfactory to the Issuing Lender and the Borrower shall have executed and delivered such
other instruments and agreements relating to such Letter of Credit as the Issuing Lender shall have
reasonably requested and (ii) no Stop Issuance Notice shall be in effect. The Borrower shall also
pay to the Issuing Lender for its own account issuance, drawing, amendment and extension
charges in the amounts and at the times as agreed between the Borrower and the Issuing Lender.



     (d) The extension, renewal or amendment to increase the amount of any Letter of Credit shall
be deemed to be an issuance of such Letter of Credit, and if any Letter of Credit contains a
provision pursuant to which it is deemed to be extended unless notice of termination is given by
the Issuing Lender, the Issuing Lender shall timely give such notice of termination unless it has
theretofore timely received a Notice of Issuance and the other conditions to issuance of a Letter
of Credit have also theretofore been met with respect to such extension. Each Letter of Credit
shall expire at or before the close of business on the date that is one year after such Letter of
Credit is issued (or, in the case of any renewal or extension thereof, one year after such renewal
or extension); provided that (i) a



31









 







Letter of Credit may contain a provision pursuant to which it is
deemed to be extended on an annual basis unless notice of termination is given by the Issuing
Lender and (ii) in no event will a Letter of Credit expire (including pursuant to a renewal or
extension thereof) on a date later than the LC Termination Date unless Cash Collateralized or
backed by a standby letter of credit in a manner satisfactory to the Issuing Lender.



     (e) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, the Issuing Lender shall notify the Administrative Agent and the
Administrative Agent shall promptly notify the Borrower and each other Lender as to the amount to
be paid as a result of such demand or drawing and the payment date. If the Issuing Lender shall
make any Letter of Credit Disbursement in respect of a Letter of Credit, the Borrower shall
reimburse such Letter of Credit Disbursement by paying to the Administrative Agent an amount equal
to such Letter of Credit Disbursement (the “Reimbursement Obligation”) in the currency of such
Letter of Credit Disbursement (i) if such Letter of Credit Disbursement shall have been denominated
in Dollars, not later than 2:00 p.m., New York City time, on the date that such Letter of Credit
Disbursement is made, if the Borrower shall have received notice of such Letter of Credit
Disbursement prior to 9:00 a.m., New York City time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than 2:00 p.m., New York
City time, on (x) the Domestic Business Day that the Borrower receives such notice, if such notice
is received prior to 9:00 a.m., New York City time, on the day of receipt or (y) the Domestic
Business Day immediately following the day that the Borrower receives such notice, if such notice
is not received prior to such time on the day of receipt and (ii) if such Letter of Credit
Disbursement shall have been denominated in an Alternative Currency, not later than 12:00 noon,
London time, on the Euro-Currency Business Day following the date that such Letter of Credit
Disbursement is made, if the Borrower shall have received notice of such Letter of Credit
Disbursement prior to 4:00 p.m., London time, on the date such Letter of Credit Disbursement is
made, or, if such notice has not been received by the Borrower prior to such time on such date,
then not later than 12:00 noon, London time, on (x) the Euro-Currency Business Day following the
date that the
Borrower receives such notice, if such notice is received prior to 4:00 p.m., London time, on
the day of receipt or (y) the second Euro-Currency Business Day immediately following the day that
the Borrower receives such notice, if such notice is not received prior to such time on the day of
receipt (it being understood that, subject to the terms and conditions otherwise applicable to a
Borrowing hereunder, such payment may be financed with a Borrowing hereunder). If the Borrower
fails to make such payment when due, the Administrative Agent shall notify each Lender of the
applicable Letter of Credit Disbursement payment then due from the Borrower in respect thereof and
such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each
Lender shall



32









 







pay to the Administrative Agent its Applicable Percentage of the payment then due from
the Borrower, in the same manner as provided in Section 2.03 with respect to Loans made by such
Lender (and Section 2.03 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Issuing Lender the amounts so received by it
from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the
Issuing Lender or, to the extent that Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Lender, then to such Lenders and the Issuing Lender as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing Lender
for any Letter of Credit Disbursement (other than the funding of a Borrowing as contemplated above)
shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such
Letter of Credit Disbursement.



     (f) If the Issuing Lender shall make any Letter of Credit Disbursement, then, unless the
Borrower shall reimburse such Letter of Disbursement in full on the date such Letter of Credit
Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such Letter of Credit Disbursement is made to but excluding the date that the
Borrower reimburses such Letter of Credit Disbursement, (i) if such amount is denominated in
Dollars, at the rate per annum equal to the sum of the Base Rate Margin and the Base Rate for such
day, (ii) if such amount is denominated in an Alternative Currency, at the rate per annum equal to
the sum of the Euro-Currency Margin plus the rate per annum at which one-day deposits in relevant
currency in an amount approximately equal to such unpaid amount are offered by the principal London
office of the Administrative Agent in the London interbank market for such day; provided that, if
the Borrower fails to reimburse such Letter of Credit Disbursement when due pursuant to paragraph
(e) of this Section, then 2% per annum shall be added to the applicable rate specified above.
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 Lender pursuant to paragraph (e) of
this Section to reimburse the Issuing Lender shall be for the account of such Lender to the extent
of such payment.



     (g) The obligations of the Borrower and each Lender under Section 2.19(e) above shall be
absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the
terms of this Agreement, under all circumstances whatsoever, including without limitation the
following circumstances:




     (i) any lack of validity or enforceability of this Agreement or any Letter of Credit
or any document related hereto or thereto;




33











 






     (ii) any amendment or waiver of or any consent to departure from all or any of
the provisions of this Agreement or any Letter of Credit or any document related hereto or
thereto, provided by any party affected thereby;




     (iii) the use which may be made of the Letter of Credit by, or any acts or omission
of, a beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be
acting);




     (iv) the existence of any claim, set-off, defense or other rights that the Borrower
may have at any time against a beneficiary of a Letter of Credit (or any Person for whom
the beneficiary may be acting), the Lenders (including the Issuing Lender) or any other
Person, whether in connection with this Agreement or the Letter of Credit or any document
related hereto or thereto or any unrelated transaction;




     (v) any statement or any 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 whatsoever;




     (vi) payment under a Letter of Credit to the beneficiary of such Letter of Credit
against presentation to the Issuing Lender of a draft or certificate that does not comply
with the terms of the Letter of Credit;




     (vii) any termination of the Commitments prior to, on or after the payment date for
any Letter of Credit, whether at the scheduled termination thereof, by operation of
Article 6 or otherwise; or




     (viii) any other act or omission to act or delay of any kind by any Lender (including
the Issuing Lender), the Administrative Agent or any other Person or any other event or
circumstance whatsoever that might, but for the provisions of this subsection (viii),
constitute a legal or equitable discharge of the Borrower’s or the Lender’s obligations
hereunder.



     (h) The Borrower hereby indemnifies and holds harmless each Lender (including the Issuing
Lender) and the Administrative Agent from and against any and all claims, damages, losses,
liabilities, costs or expenses which such Lender or the Administrative Agent may incur (including,
without limitation, any claims, damages, losses, liabilities, costs or expenses which the Issuing
Lender may incur by reason of or in connection with the failure of any other Lender to fulfill or
comply with its obligations to such Issuing Lender hereunder (but nothing herein contained shall
affect any rights the Borrower may have against such defaulting Lender)), and none of the Lenders
(including the Issuing Lender) nor the



34









 




Administrative Agent nor any of their officers or directors or employees or agents shall be
liable or responsible, by reason of or in connection with the execution and delivery or transfer of
or payment or failure to pay under any Letter of Credit, including without limitation any of the
circumstances enumerated in subsection Section 2.19(g) above, as well as (i) any error, omission,
interruption or delay in transmission or delivery of any messages, by mail, cable, telegraph, telex
or otherwise, (ii) any loss or delay in the transmission of any document required in order to make
a drawing under a Letter of Credit, and (iii) any consequences arising from causes beyond the
control of the Issuing Lender, including without limitation any government acts, or any other
circumstances whatsoever in making or failing to make payment under such Letter of Credit; provided
that the Borrower shall not be required to indemnify the Issuing Lender for any claims, damages,
losses, liabilities, costs or expenses, and the Borrower shall have a claim for direct (but not
consequential) damage suffered by it, to the extent found by a court of competent jurisdiction to
have been caused by the willful misconduct or gross negligence of the Issuing Lender. Nothing in
this subsection Section 2.19(h) is intended to limit the obligations of the Borrower under any
other provision of this Agreement. To the extent the Borrower does not indemnify the Issuing
Lender as required by this subsection, the Lenders agree to do so ratably in accordance with their
Commitments.




     (i) If the Required Lenders reasonably determine at any time that the conditions set forth in
Section 3.02 would not be satisfied in respect of a Borrowing at such time, then the Required
Lenders may request that the Administrative Agent issue a “Stop Issuance Notice”, and the
Administrative Agent shall issue such notice to each Issuing Lender. Such Stop Issuance Notice
shall be withdrawn upon a determination by the Required Lenders that the circumstances giving rise
thereto no longer exist. No Letter of Credit shall be issued while a Stop Issuance Notice is in
effect. The Required Lenders may request issuance of a Stop Issuance Notice only if there is a
reasonable basis therefor, and shall consider reasonably and in good faith a request from the
Company for withdrawal of the same on the basis that the conditions in Section 3.02 are satisfied;
provided that the Administrative Agent and the Issuing Lenders may and shall conclusively rely upon
any Stop Issuance Notice while it remains in effect.



     (j) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however,
that with respect to any Letter of Credit that, by its terms or the terms of any document related
thereto, provides for one or more automatic increases in the stated amount thereof, the amount of
such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated amount is in effect
at such time.



35









 





     (k) Unless otherwise expressly agreed by the Issuing Lender and the Borrower when a Letter of
Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the
rules of the ISP shall apply to each standby Letter of Credit and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the International
Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.



     Section 2.20. Increased Commitments, Additional Lenders. (a) From time to time the Company
may, upon at least five days’ notice to the Administrative Agent (which shall promptly provide a
copy of such notice to the Lenders), increase the aggregate amount of the Commitments by an amount
not less than $10,000,000 (the amount of any such increase, the “Increased Commitments”).



     (b) To effect such an increase, the Company may designate one or more of the existing Lenders
or other financial institutions acceptable to the Administrative Agent and each Issuing Lender
which at the time agree to (i) in the case of any such Person that is an existing Lender, increase
its Commitment and (ii) in the case of any other such Person (an “Additional Lender”), become a
party to this Agreement with a Commitment of not less than $10,000,000.



     (c) Any increase in the Commitments pursuant to this Section 2.20 shall be subject to
satisfaction of the following conditions:




     (i) before and after giving effect to such increase, all representations and
warranties contained in Article 4 shall be true;




     (ii) at the time of such increase, no Default shall have occurred and be continuing
or would result from such increase; and




     (iii) after giving effect to such increase, the aggregate amount of all increases in
Commitments made pursuant to this Section 2.20 shall not exceed $500,000,000.



     (d) An increase in the aggregate amount of the Commitments pursuant to this Section 2.20 shall
become effective upon the receipt by the Administrative Agent of (i) an agreement in form and
substance satisfactory to the Administrative Agent signed by the Company, by each Additional Lender
and by each other Lender whose Commitment is to be increased, setting forth the new Commitments of
such Lenders and setting forth the agreement of each Additional Lender to become a party to this
Agreement and to be bound by all the terms and provisions hereof, (ii) such evidence of appropriate
legal authorization on the part of the Company with respect to the Increased Commitments and such
opinions of counsel for the Company with respect to the Increased Commitments as the Administrative
Agent may reasonably request and (iii) such evidence of the



36









 




satisfaction of the conditions set forth in subsection (c) above as the Administrative Agent
may reasonably request.




     (e) Upon any increase in the aggregate amount of the Commitments pursuant to this Section
2.20, (i) the respective Letter of Credit Liabilities of the Lenders shall be redetermined as of
the effective date of such increase in proportion to their respective Commitments after giving
effect to such increase and (ii) within five Domestic Business Days, in the case of Base Rate Loans
then outstanding, and at the end of the then current Interest Period with respect thereto, in the
case of Euro-Currency Loans then outstanding, the Borrower shall prepay or repay such Loans in
their entirety and, to the extent the Borrower elects to do so and subject to the conditions
specified in Article 3, the Borrower shall reborrow Loans from the Lenders in proportion to their
respective Commitments after giving effect to such increase, until such time as all outstanding
Loans are held by the Lenders in such proportion.



     Section 2.21. Defaulting Lenders. If any Lender becomes a Defaulting Lender, then the
following provisions shall apply for so long as such Lender is a Defaulting Lender:



     (a) fees shall cease to accrue on the unused portion of the Commitment of such Defaulting
Lender pursuant to Section 2.07(a);



     (b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in
determining whether the Required Lenders have taken or may take any action hereunder (including any
consent to any amendment, waiver or other modification permitted to be effected by the Required
Lenders pursuant to Section 11.05);



     (c) if any Letter of Credit Liabilities exist at the time such Lender becomes a Defaulting
Lender then:




     (i) the Letter of Credit Liabilities of such Defaulting Lender shall be automatically
reallocated among the non-Defaulting Lenders in accordance with their respective
Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’
Credit Exposures plus such Defaulting Lender’s Letter of Credit Liabilities does not
exceed the total of all non-Defaulting Lenders’ Commitments;




     (ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within three Domestic Business Days following notice by
the Administrative Agent either (x) procure the reduction or termination of the Defaulting
Lender’s Letter of Credit Liabilities (after giving effect to any partial reallocation
pursuant to clause (i) above) or (y) Cash Collateralize for the benefit of the Issuing



37









 







Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s
Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to
clause (i) above) in accordance with the procedures set forth in Section 6.03 for so long
as such Letter of Credit Liabilities are outstanding;




     (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s
Letter of Credit Liabilities pursuant to clause (ii) above, the Borrower shall not be
required to pay any fees to such Defaulting Lender pursuant to Section 2.07(b) with
respect to such Defaulting Lender’s Letter of Credit Liabilities during the period such
Defaulting Lender’s Letter of Credit Liabilities are Cash Collateralized;




     (iv) to the extent that the Letter of Credit Liabilities of the non-Defaulting
Lenders are reallocated pursuant to clause (i) above, then the letter of credit fees
payable to the Lenders pursuant to Section 2.07(b) shall to the same extent be adjusted in
accordance with such non-Defaulting Lenders’ Applicable Percentages; and




     (v) if all or any portion of such Defaulting Lender’s Letter of Credit Liabilities is
not reallocated, reduced, terminated nor Cash Collateralized pursuant to clause (i) or
(ii) above, then, without prejudice to any rights or remedies of the Issuing Lender or any
other Lender hereunder, all letter of credit fees payable under Section 2.07(b) with
respect to such Defaulting Lender’s Letter of Credit Liabilities shall be payable to the
Issuing Lender until and to the extent that such Letter of Credit Liabilities are
reallocated, reduced, terminated and/or Cash Collateralized; and



     (d) so long as such Lender is a Defaulting Lender, the Issuing Lender shall not be required to
issue, extend, renew or increase any Letter of Credit, unless the Defaulting Lender’s then
outstanding Letter of Credit Liabilities after giving effect thereto will be 100% covered by the
Commitments of the non-Defaulting Lenders and/or prepaid, reduced, terminated and/or Cash
Collateralized in accordance with Section 2.21(c), and participating interests in any newly issued
or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner
consistent with Section 2.21(c)(i)(and such Defaulting Lender shall not participate therein).



     If the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its
funding obligations under one or more other agreements in which such Lender commits to extend
credit, the Issuing Lender shall not be required to issue, extend, renew or increase any Letter of
Credit, unless the Issuing Lender shall have entered into arrangements with the Borrower or such
Lender,



38









 




reasonably satisfactory to the Issuing Lender to defease any risk to the Issuing Lender in
respect of such Lender hereunder relating to Letter of Credit Liabilities.




     In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees
that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a
Defaulting Lender, then the Letter of Credit Liabilities of the Lenders shall be readjusted to
reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at
par such of the Loans of the other Lenders as the Administrative Agent shall determine is necessary
in order for such Lender to hold such Loans in accordance with its Applicable Percentage; provided
that there shall be no retroactive effect on fees reallocated pursuant to Section 2.21(c)(iv)
and (v).



ARTICLE 3

Conditions




     Section 3.01. Effectiveness. The obligations of the Lenders to make Loans and of the Issuing
Lender to issue Letters of Credit hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section 11.05):



     (a) receipt by the Administrative Agent of counterparts hereof signed by each of the parties
hereto (or, in the case of any party as to which an executed counterpart shall not have been
received, receipt by the Administrative Agent in form satisfactory to it of telegraphic or other
written confirmation from such party of execution of a counterpart hereof by such party);



     (b) receipt by the Administrative Agent of an opinion of Jerome D. Okarma, general counsel for
the Company, substantially in the form of Exhibit B hereto and covering such additional matters
relating to the transactions contemplated hereby as the Required Lenders may reasonably request;



     (c) receipt by the Administrative Agent of an opinion of Davis Polk & Wardwell LLP, special
counsel for the Administrative Agent, substantially in the form of Exhibit C hereto and covering
such additional matters relating to the transactions contemplated hereby as the Required Lenders
may reasonably request;



     (d) receipt by the Administrative Agent of all documents the Administrative Agent may
reasonably request relating to the existence of the Company, the legal authority for and the
validity of this Agreement and the Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent; and



39









 





     (e) arrangements satisfactory to the Administrative Agent shall have been made for the payment
of all principal of any loans outstanding under, and all accrued interest and fees under, the
Existing Agreement;


provided that this Agreement shall not become effective or be binding on any party hereto unless
all of the foregoing conditions are satisfied not later than February 28, 2011. The Administrative
Agent shall promptly notify the Company, the Lenders and each other party to the Existing Credit
Agreement of the Effective Date, and such notice shall be conclusive and binding. The Company and
the Lenders party to the Existing Credit Agreement hereby agree that upon the Effective Date: (i)
the commitments of the banks under the Existing Credit Agreement shall terminate in their entirety
immediately and automatically upon the effectiveness of this Agreement, without further action by
any party to the Existing Credit Agreement, (ii) all accrued facility fees under the Existing
Credit Agreement shall be due and payable at such time and (iii) subject to Section 2.12 of the
Existing Credit Agreement, the Borrowers may prepay any and all loans outstanding thereunder on the
Effective Date.




     Section 3.02. Borrowings and Issuances of Letters of Credit. The obligation of any Lender to
make a Loan on the occasion of any Borrowing and the obligation of the Issuing Lender to issue,
renew, extend or increase any Letter of Credit is subject to the satisfaction of the following
conditions:



     (a) receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.02
or receipt by the Issuing Lender of a Notice of Issuance as required by Section 2.19(c), as the
case may be;



     (b) the fact that, immediately after such Borrowing or issuance, renewal, extension or
increase of such Letter of Credit (i) the Total Outstanding Amount will not exceed the aggregate
amount of the Commitments and (ii) the aggregate Dollar Amount of all Letter of Credit Liabilities
will not exceed any applicable LC Sublimit;



     (c) the fact that, immediately before and after such Borrowing or issuance of such Letter of
Credit, no Default shall have occurred and be continuing; and



     (d) the fact that the representations and warranties of the Company and, if other than the
Company, the Borrower contained in this Agreement (except the representations and warranties set
forth in Sections 4.04(c) and 4.05) shall be true on and as of the date of such Borrowing or
issuance, renewal, extension or increase, as applicable, except to the extent any such
representation and warranty expressly relates to an earlier date in which case such representation
and warranty shall be true and correct in all material respects as of such earlier date.



40









 




Each Borrowing and issuance of a Letter of Credit hereunder shall be deemed to be a representation
and warranty by the Borrower (and by the Company if it is not the Borrower) on the date of such
Borrowing as to the facts specified in clauses 3.02(b), 3.02(c) and 3.02(d).




     Section 3.03. First Borrowing by Each Eligible Subsidiary.



     (a) The obligation of each Lender to make a Loan, and the obligation of an Issuing Lender to
issue a Letter of Credit, on the occasion of the first Borrowing by or issuance of a Letter of
Credit for the account of each Eligible Subsidiary is subject to the receipt by the Administrative
Agent of the following documents:




     (i) an opinion of counsel for such Eligible Subsidiary acceptable to the
Administrative Agent, which may be in-house counsel unless the Administrative Agent
otherwise reasonably determines, substantially in the form of Exhibit F hereto and
covering such additional matters relating to the transactions contemplated hereby as the
Required Lenders may reasonably request; and




     (ii) all documents which it may reasonably request relating to the existence of such
Eligible Subsidiary, the legal authority for and the validity of the Election to
Participate of such Eligible Subsidiary, this Agreement and the Notes of such Eligible
Subsidiary, and any other matters relevant thereto, all in form and substance reasonably
satisfactory to the Administrative Agent.



     (b) Following the giving of any Election to Participate, if the designation of such Eligible
Subsidiary obligates the Administrative Agent or any Lender to comply with “know your customer” or
similar identification procedures in circumstances where the necessary information is not already
available to it, the Company shall, promptly upon the request of the Administrative Agent or any
Lender, supply such documentation and other evidence as is reasonably requested by the
Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry
out and be satisfied it has complied with all necessary “know your customer’ or other similar
checks under all applicable laws and regulations.



     (c) Any extension of credit to an Eligible Subsidiary which is not organized under the laws of
the United States or any political subdivision thereof shall not contravene any law or regulation
applicable to the Lender extending such credit.



41









 





ARTICLE 4

Representations and Warranties of the Company




     The Company represents and warrants that:



     Section 4.01. Legal Existence and Power. The Company is an entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization, and has all
corporate powers and all governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted except where the failure to have such power or possess such
licenses, authorizations, consents and approvals would not have a Material Adverse Effect.



     Section 4.02. Legal and Governmental Authorization; No Contravention. The execution,
delivery and performance by the Company of this Agreement and its Notes are within the Company’s
legal powers, have been duly authorized by all necessary legal action, require no action by or in
respect of, or filing with, any Governmental Authority and do not materially contravene, or
constitute a material default under, any provision of applicable law or regulation or of the
organizational documents or by-laws of the Company or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Company or result in the creation or imposition
of any Lien on any asset of the Company or any of its Consolidated Subsidiaries.



     Section 4.03. Binding Effect. This Agreement constitutes a valid and binding agreement of
the Company, and its Notes, if and when executed and delivered in accordance with this Agreement,
will constitute valid and binding obligations of the Company.



     Section 4.04. Financial Information.



     (a) The consolidated statement of financial position of the Company and its Consolidated
Subsidiaries as of September 30, 2010 and the related consolidated statements of income, cash flows
and shareholders’ equity for the fiscal year then ended, reported on by PricewaterhouseCoopers LLP
and set forth in the Company’s 2010 Form 10-K, a copy of which has been delivered to each of the
Lenders, fairly present, in conformity with generally accepted accounting principles, the
consolidated financial position of the Company and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows for such fiscal year.



     (b) The unaudited consolidated statement of financial position of the Company and its
Consolidated Subsidiaries as of December 31, 2010 and the related unaudited consolidated statements
of income, cash flows and shareholders’ equity for the three months then ended, set forth in the
Company’s quarterly report for the fiscal quarter ended December 31, 2010 as filed with the



42









 




Securities
and Exchange Commission on Form 10-Q, a copy of which has been delivered to each of the Lenders,
fairly present, in conformity with generally accepted accounting principles applied on a consistent
basis, the consolidated financial position of the Company and its Consolidated Subsidiaries as of
such date and their consolidated results of operations and cash flows for such three month period
(subject to normal year-end adjustments).




     (c) Since September 30, 2010 there has been no material adverse change in the business,
financial position, results of operations or prospects of the Company and its Consolidated
Subsidiaries, considered as a whole.



     Section 4.05. Litigation. Except as set forth in the Company’s reports on Form 8-K, Form
10-K and Form 10-Q filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, copies of which have been provided to the Lenders, there is no action, suit
or proceeding pending against, or to the knowledge of the Company threatened against or affecting,
the Company or any of its Consolidated Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable possibility of an adverse
decision which could reasonably be expected to materially adversely affect the business,
consolidated financial position or consolidated results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole, or which in any manner draws into question the
validity of this Agreement or the Notes.



     Section 4.06. Compliance with ERISA. Except to the extent the following could not reasonably
be expected to have a Material Adverse Effect, each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Internal Revenue Code with respect
to each Plan and is in compliance in all material respects with the presently applicable provisions
of ERISA and the Internal Revenue Code with respect to each Plan. Except to the extent the
following could not reasonably be expected to have a Material Adverse Effect, no member of the
ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any contribution or payment to
any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to
any Plan or Benefit Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code or (iii) incurred
any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA.



     Section 4.07. Environmental Matters. Except with respect to any matters that, individually
or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect,
neither the Company nor any of its Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply



43









 




with any permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received written notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.




     Section 4.08. Not an Investment Company. The Company is not an “investment company” within
the meaning of the Investment Company Act of 1940, as amended.



     Section 4.09. Full Disclosure. All information heretofore furnished in writing by the
Company to the Administrative Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information hereafter furnished
in writing by the Company to the Administrative Agent or any Lender will be, true and accurate in
all material respects on the date as of which such information is stated or certified. As of the
Effective Date, the Company has disclosed to the Lenders in writing any and all facts which
materially and adversely affect the business, operations or financial condition of the Company and
its Consolidated Subsidiaries, taken as a whole, or the ability of the Company to perform its
obligations under this Agreement.



ARTICLE 5

Covenants




     The Company agrees that, so long as any Lender has any Commitment hereunder or any principal,
interest or fees payable hereunder remain unpaid:



     Section 5.01. Information. The Company will deliver to each of the Lenders:



     (a) as soon as available and in any event within 95 days after the end of each fiscal year of
the Company, a consolidated statement of financial position of the Company and its Consolidated
Subsidiaries as of the end of such fiscal year and the related consolidated statements of income,
cash flow and shareholders’ or members’ equity for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all set forth in accordance with
generally accepted accounting principles and reported on in a manner acceptable to the Securities
and Exchange Commission by PricewaterhouseCoopers LLP or other independent public accountants of
nationally recognized standing;



     (b) as soon as available and in any event within 50 days after the end of each of the first
three quarters of each fiscal year of the Company, a consolidated statement of financial position
of the Company and its Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of income, cash flow and shareholders’ or members’ equity for such quarter
and for the



44









 




portion of the Company’s fiscal year ended at the end of such quarter, setting forth in each
case in comparative form the figures for the corresponding quarter and the corresponding portion of
the Company’s previous fiscal year, all certified (subject to normal year-end audit adjustments and
the absence of footnotes) as to fairness of presentation, generally accepted accounting principles
and consistency (except as otherwise indicated therein) by the chief financial officer or the chief
accounting officer of the Company;




     (c) simultaneously with the delivery of each set of financial statements referred to in
clauses (a) and (b) above, a certificate of the chief financial officer or the chief accounting
officer of the Company (i) stating whether any Default exists on the date of such certificate and,
if any Default then exists, setting forth the details thereof and the action which the Company is
taking or proposes to take with respect thereto and (ii) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance with the requirements of
Section 5.07 on the date of such financial statements;



     (d) as soon as practicable under the circumstances, after any executive officer of the Company
obtains knowledge of any Default, if such Default is then continuing, a certificate of the chief
financial officer or the chief accounting officer of the Company setting forth the details thereof
and the action which the Company is taking or proposes to take with respect thereto;



     (e) promptly upon the mailing thereof to the shareholders of the Company generally, copies of
all financial statements, reports and proxy statements so mailed;



     (f) promptly upon the filing thereof, copies of all registration statements (other than the
exhibits thereto and any registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Company shall have filed with the
Securities and Exchange Commission;



     (g) if and when any member of the ERISA Group (i) gives or is required to give notice to the
PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan which
could reasonably be expected to constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of
any such reportable event, a copy of the notice of such reportable event given or required to be
given to the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV
of ERISA or notice that any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose any material liability (other than for premiums under Section 4007
of ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding



45









 




standard under Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any material payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or makes
any amendment to any Plan or Benefit Arrangement which has resulted or could reasonably be expected
to result in the imposition of a Lien or the posting of a bond or other security to secure a
material obligation, a certificate of the chief financial officer or the chief accounting officer
of the Company setting forth details as to such occurrence and action, if any, which the Company or
applicable member of the ERISA Group is required or proposes to take; and




     (h) from time to time such additional information regarding the financial position or business
of the Company and its Consolidated Subsidiaries as the Administrative Agent, at the request of any
Lender, may reasonably request.



     Information required to be delivered pursuant to subsections (a), (b), (e) or (f) above shall
be deemed to have been delivered on the date on which the Company provides notice to the Lenders
that such information has been posted on the Company’s website on the Internet at the website
address www.jci.com, at sec.gov/edaux/searches.htm or at another website identified in such notice
and accessible by the Lenders without charge; provided that such notice may be included in a
certificate delivered pursuant to subsection 5.01(c).



     Section 5.02. Payment of Taxes. Each Borrower will pay and discharge, and will cause each of
its Consolidated Subsidiaries to pay and discharge, at or before maturity, all income and other
material taxes, assessments and governmental charges or levies imposed upon it or upon its income
or profits or in respect of its property, except where the same may be contested in good faith by
appropriate action, and will maintain, and will cause each of its Consolidated Subsidiaries to
maintain, in accordance with generally accepted accounting principles, appropriate reserves for the
accrual of any of the same.



     Section 5.03. Maintenance of Property; Insurance.



     (a) Each Borrower will, to the best of its ability, keep, and will cause each of its
Consolidated Subsidiaries to keep, all material property useful and necessary in its business in
good working order and condition, ordinary wear and tear excepted, except to the extent the failure
to do so could not reasonably be expected to have a Material Adverse Effect.



     (b) Each Borrower will, and will cause each of its Consolidated Subsidiaries to, maintain
(either in the name of such Borrower or in such Consolidated Subsidiary’s own name) with
financially sound and responsible



46









 




insurance companies, insurance on all their respective properties in at least such amounts,
and with such reasonable amounts of self-insurance, and against at least such risks (and with such
risk retention) as are usually insured against in the same general area by companies of established
repute engaged in the same or a similar business; and will furnish to the Lenders, upon request
from the Administrative Agent, information presented in reasonable detail as to the insurance so
carried.




     Section 5.04. Conduct of Business and Maintenance of Existence. (a) Each Borrower will
preserve, renew and keep in full force and effect, and will cause each of its Consolidated
Subsidiaries to preserve, renew and keep in full force and effect, their respective legal
existence; provided that nothing in this Section 5.04(a) shall prohibit (i) any transaction
expressly permitted by Section 5.09 or (ii) the termination of the legal existence of any
Consolidated Subsidiary if the Company in good faith determines that such termination (x) is in the
best interest of the Company and (y) is not materially disadvantageous to the Lenders.



     (b) Each Borrower will preserve, renew and keep in full force and effect, and will cause each
of its Consolidated Subsidiaries to preserve, renew and keep in full force and effect their
respective rights, privileges and franchises necessary or desirable in the normal conduct of
business, except to the extent the failure to do so could not reasonably be expected to have a
Material Adverse Effect.



     Section 5.05. Compliance with Laws. Each Borrower will comply, and cause each of its
Consolidated Subsidiaries to comply, in all material respects with all applicable laws, ordinances,
rules, regulations, and requirements of governmental authorities (including, without limitation,
Environmental Laws and ERISA and the rules and regulations thereunder) except where the necessity
of compliance therewith is contested in good faith by appropriate proceedings and except where the
failure to so comply could not reasonably be expected to have a Material Adverse Effect.



     Section 5.06. Inspection of Property, Books and Records. Each Borrower will keep, and will
cause each of its Consolidated Subsidiaries to keep, proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions in relation to its
business and activities; and will permit, and will cause each of its Consolidated Subsidiaries to
permit, representatives of any Lender at such Lender’s expense to visit and inspect any of their
respective properties, to examine any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers and independent public
accountants in the presence of such officers, all at such reasonable times and as often as may
reasonably be desired.



     Section 5.07. Minimum Consolidated Shareholders’ Equity. Consolidated Shareholders’ Equity
will at no time be less than $3,500,000,000.



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     Section 5.08. Negative Pledge. Neither the Company nor any Consolidated Subsidiary will
create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:



     (a) Liens existing on the date of this Agreement securing Debt outstanding or committed for on
the date of this Agreement in an aggregate principal amount not exceeding $100,000,000;



     (b) any Lien existing on any asset of any entity at the time such entity becomes a
Consolidated Subsidiary and not created in contemplation of such event;



     (c) any Lien on any asset securing Debt incurred or assumed for the purpose of financing an
amount not to exceed all or any part of the cost of acquiring such asset, provided that such Lien
attaches to such asset concurrently with or within 90 days after the acquisition thereof;



     (d) any Lien on any asset of any entity existing at the time such entity is merged or
consolidated with or into the Company or a Consolidated Subsidiary and not created in contemplation
of such event;



     (e) any Lien existing on any asset prior to the acquisition thereof by the Company or a
Consolidated Subsidiary and not created in contemplation of such acquisition;



     (f) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt
secured by any Lien permitted by any of the foregoing clauses of this Section 5.08, provided that
such Debt is not increased and is not secured by any additional assets;



     (g) Liens arising in the ordinary course of its business which (i) do not secure Debt, (ii) do
not secure any obligation in an amount exceeding $75,000,000 and (iii) do not in the aggregate
materially detract from the value of its assets or materially impair the use thereof in the
operation of its business;



     (h) Liens not otherwise permitted by the foregoing clauses of this Section 5.08 securing Debt
in an aggregate principal amount at any time outstanding not to exceed on the date of incurrence
thereof 10% of Consolidated Shareholders’ Equity; and



     (i) Liens on proceeds of any assets permitted to be subject to any Lien permitted by this
Section 5.08.



     Section 5.09. Consolidation, Mergers and Sales of Assets. Neither the Company nor any
Consolidated Subsidiary will (i) consolidate or merge with or



48









 




into any other Person or (ii) sell, lease or otherwise transfer, directly or indirectly, all
or substantially all of the assets of the Company and its Consolidated Subsidiaries, taken as a
whole, to any other Person; provided that (A) the Company and any Consolidated Subsidiary may merge
with another Person (other than a merger of a Consolidated Subsidiary with the Company) if the
Company or such Consolidated Subsidiary is the entity surviving such merger and if, immediately
after giving effect to such merger, no Default shall have occurred and be continuing, (B) the
Company and any Consolidated Subsidiary may merge with each other if immediately after giving
effect to such merger, no Default shall have occurred and be continuing; provided that, if the
Company is not the Person surviving such merger, such Person (1) is a entity organized under the
laws of any State of the United States of America and (2) shall have assumed all obligations of the
Company under this Agreement and any Note pursuant to an instrument satisfactory in form and
substance to the Administrative Agent, (C) any Consolidated Subsidiary may merge with or into any
other Consolidated Subsidiary, so long as a Consolidated Subsidiary is the Person surviving such
merger, (D) the Company may consummate a Holding Company Reorganization so long as after giving
effect thereto, (w) no Default shall have occurred and be continuing, (x) the Holding Company shall
have assumed, pursuant to an instrument in form and substance reasonably satisfactory to the
Administrative Agent, the obligations of the Company under this Agreement and its Notes, (y) the
Administrative Agent shall have received an opinion of counsel with respect to the Holding Company
substantially to the effect of Exhibit B hereto and such other evidence of compliance herewith as
the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory
to the Administrative Agent, and (z) the senior unsecured long-term debt ratings assigned by S&P,
Moody’s and Fitch, respectively, to the Holding Company are no lower than those assigned to the
Company immediately prior to the Holding Company Reorganization and (E) any Consolidated Subsidiary
may sell, lease or otherwise transfer its assets to the Company or to a Consolidated Subsidiary.




     Section 5.10. Use of Proceeds. The proceeds of the Loans made under this Agreement will be
used by the Borrowers for general business purposes. None of such proceeds will be used, directly
or indirectly, for the purpose, whether immediate, incidental or ultimate, of buying or carrying
any “margin stock” within the meaning of Regulation U.



ARTICLE 6

Defaults




     Section 6.01. Events of Default. If one or more of the following events (“Events of
Default”) shall have occurred and be continuing:



49









 





     (a) any principal of any Loan or any Reimbursement Obligation shall not be paid when due, or
any interest, any fees or any other amount payable hereunder, shall not be paid within five days of
the due date therefor;



     (b) the Company shall fail to observe or perform any covenant contained in Sections 5.07 to
5.10, inclusive;



     (c) any Borrower shall fail to observe or perform any covenant or agreement contained in this
Agreement (other than those covered by clause (a) or (b) above) for 30 days after written notice
thereof has been given to the Company by the Administrative Agent at the request of any Lender;



     (d) the guaranty provided by the Company under Section 10.01 of this Agreement shall cease to
be in full force and effect;



     (e) any representation, warranty, certification or statement made by any Borrower in this
Agreement or in any certificate, financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect when made (or deemed made);



     (f) the Company or any Consolidated Subsidiary shall fail to make any payment in respect of
any Material Debt when due or within any applicable grace period;



     (g) any event or condition shall occur which results in the acceleration of the maturity of
any Material Debt or enables (any applicable grace or cure period having expired) the holder of
such Debt or any Person acting on such holder’s behalf to accelerate the maturity thereof;



     (h) the Company or any Significant Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any legal action to authorize any of the foregoing;



     (i) an involuntary case or other proceeding shall be commenced against the Company or any
Significant Subsidiary seeking liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part



50









 




of its property, and such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered against the Company or
any Significant Subsidiary under the federal bankruptcy laws as now or hereafter in effect;




     (j) any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating
in excess of $125,000,000 which it shall have become liable to pay under Title IV of ERISA; or
notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by any member
of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5)
of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of
the ERISA Group to incur a current payment obligation in excess of $125,000,000;



     (k) a judgment or order for the payment of money in excess of $150,000,000 shall be rendered
against the Company or any Significant Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for the shorter of (x) a period of 30 days and (y) the period during which
a request or proceeding for stay of enforcement of such judgment or order is permitted under the
rules of the relevant jurisdiction; or



     (l) (i) any person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 30%
or more of the outstanding shares of common stock of the Company; or, (ii) during any period of 18
consecutive calendar months, individuals who were directors of the Company on the first day of such
period (together with any new directors whose election by the Company’s board of directors or whose
nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds
of the directors who either were directors at the beginning of such period or whose election or
nomination was previously so approved) shall cease to constitute at least a majority of the board
of directors of the Company; provided that if a Holding Company Reorganization is consummated in
compliance with Section 5.09, (x) neither the Holding Company Reorganization nor any of the
transactions giving rise to the Holding Company Reorganization shall give rise to a Default
pursuant to clause (i), and (y) clause (ii) shall apply as if the Company prior thereto and the
Company subsequent thereto were the same Person;



51









 




then, and in every such event, the Administrative Agent shall (i) if requested by Lenders having
more than 50% in aggregate amount of the Commitments, by notice to the Company terminate the
Commitments and they shall thereupon terminate, and (ii) if requested by Lenders holding more than
50% in aggregate principal amount of the Loans, by notice to the Company declare the Loans
(together with accrued interest thereon) to be, and the Loans shall thereupon become, immediately
due and payable without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower; provided that in the case of any of the Events of Default specified
in clause 6.01(h) or 6.01(i) above with respect to any Borrower, without any notice to any Borrower
or any other act by the Administrative Agent or the Lenders, the Commitments shall thereupon
terminate and the Loans (together with accrued interest thereon) shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by each Borrower.




     Section 6.02. Notice of Default. The Administrative Agent shall give notice to the Company
under Section 6.01(c) promptly upon being requested to do so by any Lender and shall thereupon
notify all the Lenders thereof.



     Section 6.03. Cash Cover. Each Borrower agrees, in addition to the provisions in Section
6.01, that upon the occurrence and during the continuance of any Event of Default, it shall, if
requested by the Administrative Agent upon the instruction of the Required Lenders or any Issuing
Lender having an outstanding Letter of Credit, Cash Collateralize all Letters of Credit outstanding
at such time (or, in the case of a request by an Issuing Lender, all such Letters of Credit issued
by it), provided that, upon the occurrence of any Event of Default specified in clause (h) or (i)
above with respect to any Borrower, the Borrowers shall Cash Collateralize all outstanding Letters
of Credit forthwith without any notice or demand or any other act by the Administrative Agent, any
Issuing Lender or any Lender.



ARTICLE 7

The Administrative Agent




     Section 7.01. Appointment and Authorization. Each Lender irrevocably appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the Notes as are delegated to the Administrative Agent by the terms hereof
or thereof, together with all such powers as are reasonably incidental thereto.



     Section 7.02. Administrative Agent and Affiliates. JPMorgan Chase Bank, N.A. shall have the
same rights and powers under this Agreement as any other



52









 




Lender and may exercise or refrain from exercising the same as though it were not the
Administrative Agent, and JPMorgan Chase Bank, N.A. and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with any Borrower or any Consolidated
Subsidiary or affiliate of any Borrower as if it were not the Administrative Agent.




     Section 7.03. Action by Administrative Agent. The obligations of the Administrative Agent
hereunder are only those expressly set forth herein. Without limiting the generality of the
foregoing, the Administrative Agent shall not be required to take any action with respect to any
Default, except as expressly provided in Article 6.



     Section 7.04. Consultation with Experts. The Administrative Agent shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with the advice of legal
counsel (who may be counsel for any Borrower), independent public accountants and other experts
selected by it.



     Section 7.05. Liability of Administrative Agent. Neither the Administrative Agent nor any of
its affiliates nor any of their respective directors, officers, agents or employees shall be liable
for any action taken or not taken by it in connection herewith (i) with the consent or at the
request of the Required Lenders or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in connection with this
Agreement or any Borrowing or issuance of a Letter of Credit hereunder; (ii) the performance or
observance of any of the covenants or agreements of any Borrower; (iii) the satisfaction of any
condition specified in Article 3 except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness or genuineness of this Agreement, the
Notes, the Letters of Credit or any other instrument or writing furnished in connection herewith.
The Administrative Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, statement, or other writing (which may be a bank wire or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.



     Section 7.06. Indemnification. Each Lender shall, ratably in accordance with its Commitment,
indemnify the Administrative Agent and each Issuing Lender, their affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the Borrowers) against
any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitees’ gross negligence or willful misconduct)
that such indemnitees may suffer or incur in connection with this Agreement or any Letter of Credit
or any action taken or omitted by such indemnitees hereunder or thereunder.



53









 





     Section 7.07. Credit Decision. Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking any action under this Agreement.



     Section 7.08. Successor Administrative Agent. Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign
at any time by giving written notice thereof to the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right, with the consent of the Company so long as
no payment or bankruptcy Event of Default exists, to appoint a successor Administrative Agent. If
no successor Administrative Agent 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 resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a commercial bank organized or licensed under the
laws of the United States of America or of any State thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Company and such successor.
After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent.



     Section 7.09. Administrative Agent’s Fee. The Company shall pay to the Administrative Agent
for its own account fees in the amounts and at the times previously agreed upon between the
Borrower and the Administrative Agent.



     Section 7.10. Other Agents. Nothing in the Loan Documents shall impose on any Agent other
than the Administrative Agent, in its capacity as an Agent, any obligation or liability whatsoever.



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ARTICLE 8

Change in Circumstances




     Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If on or prior to
the first day of any Interest Period for any Euro-Currency Loan:



     (a) the Administrative Agent determines that adequate and fair means do not exist for
determining the applicable London Interbank Offered Rate for such Interest Period, or



     (b) Lenders having more than 50% of the aggregate amount of the Commitments advise the
Administrative Agent that the London Interbank Offered Rate as determined by the Administrative
Agent will not adequately and fairly reflect the cost to such Lenders of funding their
Euro-Currency Loans for such Interest Period,


the Administrative Agent shall forthwith give notice thereof to the Company and the Lenders,
whereupon, until the Administrative Agent notifies the Company that the circumstances giving rise
to such suspension no longer exist (which the Administrative Agent shall do promptly after becoming
aware thereof), (i) the obligations of the Lenders to make Euro-Currency Loans in the relevant
currency, or to continue or convert outstanding Loans as or into Euro-Currency Loans in the
relevant currency, shall be suspended and (ii) each outstanding Euro-Currency Loan in the relevant
currency shall be prepaid (or, in the case of a Euro-Dollar Loan, converted into a Base Rate Loan)
on the last day of the then current Interest Period applicable thereto. Unless the Borrower
notifies the Administrative Agent at least one Domestic Business Day before the date of any
Euro-Currency Borrowing for which a Notice of Borrowing has previously been given that it elects
not to borrow on such date, such Borrowing shall instead be made as a Base Rate Borrowing in an
equal Dollar Amount.




     Section 8.02. Illegality. If a Change in Law shall make it unlawful or impossible for any
Lender (or its Euro-Dollar Lending Office) to make, maintain or fund its Euro-Currency Loans to any
Borrower in any currency and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Lenders and the Company,
whereupon until such Lender notifies the Company and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist (which notice such Lender shall give
promptly after such circumstances cease to exist), the obligation of such Lender to make
Euro-Currency Loans to such Borrower in such currency shall be suspended. Before giving any notice
to the Administrative Agent pursuant to this Section 8.02, such Lender shall designate a different
Euro-Currency Lending Office if such designation will avoid the need for giving such notice and
will not, in the judgment of such Lender, be otherwise disadvantageous to such Lender. If such
notice is given, each affected Euro-



55









 




Currency Loan of such Lender then outstanding shall be converted to a Base Rate Loan (in the
case of an Alternative Currency Loan, in a principal amount determined on the basis of the Spot
Rate on the date of conversion) either (a) on the last day of the then current Interest Period
applicable to such Euro-Currency Loan if such Lender may lawfully continue to maintain and fund
such Loan as a Euro-Currency Loan to such day or (b) immediately if such Lender shall determine
that it may not lawfully continue to maintain and fund such Loan as a Euro-Currency Loan to such
day.




     Section 8.03. Increased Cost and Reduced Return.



     (a) If a Change in Law shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System,
but excluding with respect to any Euro-Currency Loan any such requirement with respect to which
such Lender is entitled to compensation during the relevant Interest Period under Section 2.14),
special deposit, insurance assessment or similar requirement against assets of, deposits with or
for the account of, or credit extended by, such Lender (or its Applicable Lending Office) or shall
impose on any Lender (or its Applicable Lending Office) or on the London interbank market any other
condition affecting its Euro-Currency Loans, its Note(s) or its obligation to make Euro-Currency
Loans or its obligations hereunder in respect of Letters of Credit and the result of any of the
foregoing is to increase the cost to such Lender (or its Applicable Lending Office) of making or
maintaining any Euro-Currency Loan or of issuing or participating in any Letter of Credit, or to
reduce the amount of any sum received or receivable by such Lender (or its Applicable Lending
Office) under this Agreement or under its Note(s) with respect thereto, by an amount deemed by such
Lender to be material, then, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Company shall pay to such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduction.



     (b) If any Lender shall have determined that a Change in Law has or would have the effect of
reducing the rate of return on capital of such Lender (or its Parent) as a consequence of such
Lender’s obligations hereunder to a level below that which such Lender (or its Parent) could have
achieved but for such Change in Law (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from time to time, within 15 days
after demand by such Lender (with a copy to the Administrative Agent), the Company shall pay to
such Lender such additional amount or amounts as will compensate such Lender (or its Parent) for
such reduction.



     (c) If after the date of this Agreement, a Change in Law shall subject any Lender to any taxes
(other than Taxes imposed on or with respect to any



56









 




payment made by a Borrower hereunder or under any Notes and Domestic Taxes) on its loans, loan
principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other
liabilities or capital attributable thereto, and the result shall be to increase the cost to such
Lender of making or maintaining any Euro-Currency Loan (or of maintaining its obligation to make
any such Loan) or to increase the cost to such Lender of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender for such additional costs incurred
or reduction suffered.




     (d) Each Lender will promptly notify the Company and the Administrative Agent of any event of
which it has knowledge, occurring after the date hereof, and/or any Change in Law which will
entitle such Lender to compensation pursuant to this Section 8.03 and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender. A certificate of any Lender claiming compensation under this Section 8.03 and setting
forth the additional amount or amounts to be paid to it hereunder and the calculation of such
amount or amounts in reasonable detail shall be delivered to the Company contemporaneously with any
demand for payment hereunder and shall be conclusive in the absence of clearly demonstrable error.
In determining such amount, such Lender may use any reasonable averaging and attribution methods.



     (e) Failure or delay on the part of any Lender or the Issuing Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Lender’s
right to demand such compensation, as the case may be; provided that the Borrower shall not be
required to compensate a Lender or the Issuing Lender pursuant to this Section 8.03 for any
increased costs or reductions incurred more than 90 days prior to the date that such Lender or the
Issuing Lender, as the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the Issuing 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.



     Section 8.04. Taxes.



     (a) Any and all payments by any Borrower to or for the account of any Lender or the
Administrative Agent hereunder or under any Note shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, (i) in the case of each Lender
and the Administrative



57









 




Agent, taxes imposed on or measured by its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Administrative Agent (as the case may be)
is organized or any political subdivision thereof, (ii) in the case of each Lender, taxes imposed
on or measured by its income, and franchise or similar taxes imposed on it, by the jurisdiction of
such Lender’s Applicable Lending Office or any political subdivision thereof, and (iii) taxes
resulting from FATCA (all such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as its “Taxes”, and all such excluded
taxes being hereinafter referred to as its “Domestic Taxes”). If a Borrower or the Administrative
Agent (the “Withholding Agent”) shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder or under any Note to any Lender or the Administrative Agent, (i) the sum
payable by the applicable Borrower shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable under this Section
8.04) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Withholding Agent shall make
such deductions, (iii) such Withholding Agent shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law and (iv) if the Withholding
Agent is a Borrower, such Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 11.01, the original or a certified copy of a receipt evidencing payment
thereof.




     (b) In addition, the Company agrees to pay any present or future stamp or documentary taxes
and any other excise or property taxes, or charges or similar levies which arise from any payment
made hereunder or under any Note or from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note (hereinafter referred to as “Other Taxes”).



     (c) The Company agrees to indemnify each Lender and the Administrative Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 8.04) paid or payable by such
Lender or the Administrative Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto; provided, the Company shall not
be obligated to indemnify any party hereunder pursuant to this Section for penalties, interest or
similar liabilities arising therefrom or with respect thereto to the extent such penalties,
interest or similar liabilities are attributable to the gross negligence or willful misconduct by
such party. In addition, the Company agrees to indemnify the Administrative Agent and each Lender
for all Domestic Taxes and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, in each case to the extent that such Domestic Taxes result from
any payment or



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indemnification pursuant to this Section for (i) Taxes or Other Taxes imposed by any
jurisdiction other than the United States or (ii) Domestic Taxes of the Administrative Agent or
such Lender, as the case may be. This indemnification shall be made within 15 days from the date
such Lender or the Administrative Agent (as the case may be) makes demand therefor.




     (d) Any Lender that is entitled to an exemption from or reduction of withholding Tax with
respect to payments made under any Loan Document shall deliver to the Company and the
Administrative Agent, at the time or times reasonably requested by the Company or the
Administrative Agent, such properly completed and executed documentation reasonably requested by
the Company or the Administrative Agent as will permit such payments to be made without withholding
or at a reduced rate of withholding. In addition, any Lender, if requested by the Company or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Company or the Administrative Agent as will enable the Company or the
Administrative Agent to determine whether or not such Lender is subject to any withholding
(including backup withholding) or information reporting requirements. Notwithstanding anything to
the contrary in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in Sections 8.04(e), (f), (g) and (h) below)
shall not be required if in the Lender’s judgment such completion, execution or submission would
subject such Lender to any material unreimbursed cost or expense or would materially prejudice the
legal or commercial position of such Lender.



     (e) Without limiting the foregoing, at the times indicated herein, each Lender organized under
the laws of a jurisdiction outside the United States shall provide the Company and the
Administrative Agent with Internal Revenue Service form W-8BEN, W-8IMY (accompanied by a form
W-8ECI, W-8BEN, W-9 and other certification documents from each beneficial owner, as applicable) or
W-8ECI (in each case accompanied by any statements which may be required under applicable Treasury
regulations), as appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to receive payments under this Agreement (i) without
deduction or withholding of any United States federal income taxes or (ii) subject to a reduced
rate of United States federal withholding tax, unless, in each case of clause (i) and (ii) of this
Section 8.04(e), an event (including, without limitation, any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be required which renders
such forms inapplicable or which would prevent the Lender from duly completing and delivering any
such form with respect to it and the Lender advises the Company and the Administrative Agent that
it is not capable of receiving payments without any deduction or withholding of such taxes. Such
forms shall be provided (x) on or prior to the date of the



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Lender’s execution and delivery of this Agreement in the case of each Lender listed on the
signature pages hereof, and on or prior to the date on which it becomes a Lender in the case of
each other Lender, and (y) on or before the date that such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form so delivered by the
Lender. If the form provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of zero, United States
withholding tax at such rate shall be considered excluded from “Taxes” as defined in Section
8.04(a), unless the assignor of such Lender was entitled, at the time of such assignment, to
receive additional amounts from a Borrower with respect to such withholding taxes pursuant to
Section 8.04(a). In addition, to the extent that for reasons other than a change of treaty, law or
regulation any Lender becomes subject to an increased rate of United States interest withholding
tax while it is a party to this Agreement, United States withholding tax at such increased rate
shall be considered excluded from “Taxes” as defined in Section 8.04(a).




     (f) Any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of
the Internal Revenue Code shall deliver to the Company and the Administrative Agent on or prior to
the date on which such Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Company or the Administrative Agent), executed originals of
Internal Revenue Service form W-9 certifying, to the extent such Lender is legally entitled to do
so, that such Lender is exempt from U.S. Federal backup withholding tax.



     (g) If a payment made to a Lender under any Loan Document would be subject to U.S. federal
withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable
reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the
Internal Revenue Code, as applicable), such Lender shall deliver to the Company and the
Administrative Agent at the time or times prescribed by law and at such time or times reasonably
requested by the Company or the Administrative Agent such documentation prescribed by applicable
law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such
additional documentation reasonably requested by the Company or the Administrative Agent as may be
necessary for the Company or the Administrative Agent to comply with its obligations under FATCA,
to determine that such Lender has or has not complied with such Lender’s obligations under FATCA or
to determine the amount to deduct and withhold from such payment. Solely for the purposes of this
Section 8.04(g), “FATCA” shall include any amendments made to FATCA after the date of this
Agreement, whether or not included in the definition of FATCA.



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



     (i) For any period with respect to which a Lender organized under the laws of a jurisdiction
outside the United States has failed to provide the Company with the appropriate form in accordance
with Section 8.04(e) (unless such failure is excused by the terms of Section 8.04(e)), such Lender
shall not be entitled to indemnification under Section 8.04(a) or 8.04(c) with respect to Taxes
imposed by the United States; provided, however, that should a Lender, which is otherwise exempt
from or subject to a reduced rate of withholding tax, become subject to Taxes because of its
failure to deliver a form required hereunder, the Company shall take such steps as such Lender
shall reasonably request to assist such Lender to recover such Taxes.



     (j) Each Lender shall severally indemnify the Administrative Agent for any Taxes and Domestic
Taxes (but only to the extent that the Company has not already indemnified the Administrative Agent
for such Taxes and Domestic Taxes and without limiting the obligation, if any, of the Company to do
so), in each case attributable to such Lender that are paid or payable by the Administrative Agent
in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect
thereto. This indemnification shall be made within 15 days from the date the Administrative Agent
makes demand therefor.



     (k) Each party’s obligations under this Section 8.04 shall survive any assignment of rights
by, or the replacement of, a Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of all other obligations under any Loan Document.



     (l) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Company or
with respect to which the Company has paid additional amounts pursuant to this Section, it shall
pay over such refund to Company (but only to the extent of indemnity payments made, or additional
amounts paid, by the Company under this Section with respect to the Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses with respect to such refund of the
Administrative Agent or such Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that the Company, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the
Company (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such
Lender is required to repay such refund to such Governmental Authority. This Section shall not be
construed to require the



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Administrative Agent or any Lender to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to the Company or any other Person.




     Section 8.05. Base Rate Loans Substituted for Affected Euro-Currency Loans. If (i) the
obligation of any Lender to make, or to continue or convert outstanding Loans as or to,
Euro-Currency Loans to any Borrower in any currency has been suspended pursuant to Section 8.02 or
(ii) any Lender has demanded compensation under Section 8.03 or 8.04 with respect to its
Euro-Currency Loans in any currency and the Company shall, by at least five Euro-Dollar Business
Days’ prior notice to such Lender through the Administrative Agent, have elected that the
provisions of this Section shall apply to such Lender, then, unless and until such Lender notifies
the Company that the circumstances giving rise to such suspension or demand for compensation no
longer exist, all Loans which would otherwise be made by such Lender as (or continued as or
converted to) Euro-Currency Loans in such currency to such Borrower shall instead be Base Rate
Loans (in the case of Alternative Currency Loans, in the same Dollar Amount as the Euro-Currency
Loan that such Lender would otherwise have made in the Alternative Currency) on which interest and
principal shall be payable contemporaneously with the related Euro-Currency Loans of the other
Lenders. If such Lender notifies the Company that the circumstances giving rise to such suspension
or demand for compensation no longer exist, the principal amount of each such Base Rate Loan shall
be converted into a Euro-Currency Loan on the first day of the next succeeding Interest Period
applicable to the related Euro-Currency Loans of the other Lenders. If such Loan is converted into
an Alternative Currency Loan, such Lender, the Administrative Agent and the Borrower shall make
such arrangements as shall be required (including increasing or decreasing the amount of such
Alternative Currency Loan) so that such Alternative Currency Loan shall be in the same amount as it
would have been if the provisions of this Section had never applied thereto.



     Section 8.06. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests
compensation under Section 8.03, 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 8.04, then
such Lender shall use reasonable efforts to designate a different Applicable 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 designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 8.03 or 8.04, as the
case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Company hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.



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     (b) If any Lender requests compensation under Section 8.03, 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 8.04, or if any Lender becomes a Defaulting Lender or invokes Section 8.02, or
if any Lender shall refuse to consent to any waiver, amendment or other modification that would
otherwise require such Lender’s consent but to which the Required Lenders have consented, then the
Company may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 11.06), all its interests, rights and obligations under
this Agreement 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 Agent and the Issuing Lender, 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 and funded participations in Letter of Credit Disbursements,
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 Company
or the relevant Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 8.03 or payments required to be
made pursuant to Section 8.04, such assignment will result in a reduction in such compensation or
payments.



ARTICLE 9

Representations and Warranties of Eligible Subsidiaries 



Each Eligible Subsidiary shall be deemed by the execution and delivery of its Election to
Participate to have represented and warranted as of the date thereof that:




     Section 9.01. Legal Existence and Power. It is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and is and will continue to be a
Wholly-Owned Consolidated Subsidiary of the Company.



     Section 9.02. Legal and Governmental Authorization; No Contravention. The execution and
delivery by it of its Election to Participate and its Notes, and the performance by it of this
Agreement and its Notes, are within its legal powers, have been duly authorized by all necessary
legal action, require no action by or in respect of, or filing with, any Governmental Authority and
do not materially contravene, or constitute a default under, any provision of applicable law or
regulation or of its organizational documents or of any agreement, judgment,



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injunction, order, decree or other instrument binding upon the Company or such Eligible
Subsidiary or result in the creation or imposition of any Lien on any asset of the Company or any
of its Consolidated Subsidiaries.




     Section 9.03. Binding Effect. This Agreement constitutes a valid and binding agreement of
such Eligible Subsidiary and its Notes, if and when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of such Eligible Subsidiary.



     Section 9.04. Taxes. Except as disclosed in such Election to Participate, there is no
income, stamp or other tax of any country, or any taxing authority thereof or therein, imposed by
or in the nature of withholding or otherwise, which is imposed on any payment to be made by such
Eligible Subsidiary pursuant hereto or on its Notes, or is imposed on or by virtue of the
execution, delivery or enforcement of its Election to Participate or of its Notes.



ARTICLE 10

Guaranty




     Section 10.01. The Guaranty. The Company hereby unconditionally guarantees the full and
punctual payment (whether at stated maturity, upon acceleration or otherwise) of the principal of
and interest on each Loan made to and each Reimbursement Obligation incurred by any Eligible
Subsidiary pursuant to this Agreement, and the full and punctual payment of all other amounts
payable by any Eligible Subsidiary under this Agreement. Upon failure by any Eligible Subsidiary
to pay punctually any such amount, the Company shall forthwith on demand pay the amount not so paid
at the place and in the manner specified in this Agreement.



     Section 10.02. Guaranty Unconditional. The obligations of the Company hereunder shall be
unconditional and absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:



     (a) any extension, renewal, settlement, compromise, waiver or release in respect of any
obligation of any Eligible Subsidiary under this Agreement or any Note, by operation of law or
otherwise (except to the extent the foregoing expressly releases the Company’s obligations under
this Article 10);



     (b) any modification or amendment of or supplement to this Agreement or any Note (other than
any modification, amendment or supplement of this Article 10 effected in accordance with Section
11.05);



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     (c) any release, impairment, non-perfection or invalidity of any direct or indirect security
for any obligation of any Eligible Subsidiary under this Agreement or any Note;



     (d) any change in the legal existence, structure or ownership of any Eligible Subsidiary, or
any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Eligible
Subsidiary or its assets or any resulting release or discharge of any obligation of any Eligible
Subsidiary contained in this Agreement or any Note;



     (e) the existence of any claim, set-off or other rights which the Company may have at any time
against any Eligible Subsidiary, the Administrative Agent, any Lender or any other Person, whether
in connection herewith or any unrelated transactions, provided that nothing herein shall prevent
the assertion of any such claim by separate suit or compulsory counterclaim;



     (f) any invalidity or unenforceability relating to or against any Eligible Subsidiary for any
reason of this Agreement or any Note, or any provision of applicable law or regulation purporting
to prohibit the payment by any Eligible Subsidiary of the principal of or interest on any Loan or
any other amount payable by it under this Agreement; or



     (g) any other act or omission to act or delay of any kind by any Eligible Subsidiary, the
Administrative Agent, any Lender or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or
defense to the Company’s obligations hereunder (in each case other than payment in full of the
obligations guaranteed hereunder).



     Section 10.03. Discharge Only Upon Payment In Full; Reinstatement In Certain Circumstances.
The Company’s obligations hereunder shall remain in full force and effect until the Commitments
shall have terminated and the principal of and interest on the Loans, the Reimbursement Obligations
and all other amounts payable by the Company and each Eligible Subsidiary under this Agreement
shall have been paid in full. If at any time any payment of the principal of or interest on any
Loan or any other amount payable by any Eligible Subsidiary under this Agreement is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of any
Eligible Subsidiary or otherwise, the Company’s obligations hereunder with respect to such payment
shall be reinstated at such time as though such payment had been due but not made at such time.



     Section 10.04. Waiver by the Company. The Company irrevocably waives acceptance hereof,
presentment, demand (except as provided in Section 10.01), protest and any notice not provided for
herein, as well as, solely for



65









 




purposes of Article 10, any requirement that at any time any action be taken by any Person
against any Eligible Subsidiary or any other Person.




     Section 10.05. Subrogation. Upon making any payment with respect to any Eligible Subsidiary
hereunder, the Company shall be subrogated to the rights of the payee against such Eligible
Subsidiary with respect to such payment; provided that the Company shall not enforce any payment by
way of subrogation unless all principal and interest on the Loans to such Eligible Subsidiary and
all other amounts payable by such Eligible Subsidiary under this Agreement have been paid in full
in cash.



     Section 10.06. Stay of Acceleration. In the event that acceleration of the time for payment
of any amount payable by any Eligible Subsidiary under this Agreement or its Notes is stayed upon
insolvency, bankruptcy or reorganization of such Eligible Subsidiary, all such amounts otherwise
subject to acceleration under the terms of this Agreement shall nonetheless be payable by the
Company hereunder forthwith on demand by the Administrative Agent made at the request of the
Required Lenders.



ARTICLE 11

Miscellaneous




     Section 11.01. Notices.



     (a) All notices, requests and other communications to any party hereunder shall be in writing
(including bank wire, facsimile transmission or similar writing) and shall be given to such party:
(i) in the case of the Company at its address or facsimile number set forth below, (ii) in the case
of the Administrative Agent, at its address or facsimile number set forth below, (c) in the case of
an Eligible Subsidiary, at its address or facsimile number set forth in its Election to
Participate), (d) in the case of any Lender, at its address or facsimile number set forth in its
Administrative Questionnaire or (e) in the case of any party, such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the Administrative Agent
and the Company. Each such notice, request or other communication shall be effective (i) if given
by facsimile, when such facsimile is transmitted to the facsimile number specified in this Section
11.01 and the appropriate answerback is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid, addressed as aforesaid or
(iii) if given by any other means, when delivered at the address specified in this Section 11.01;
provided that notices to the Administrative Agent or an Issuing Lender under Article 2 or Article 8
shall not be effective until received.



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Company’s Address:



Johnson Controls, Inc.

Attention: Treasurer

5757 North Green Bay Avenue

Post Office Box 591

Milwaukee, WI 53209

Fax: (414) 524-2443

Email: frank.a.voltolina@jci.com



Administrative Agent’s Address:



JPMorgan Chase Bank, N.A.

1111 Fannin, 10th Floor

Houston, Texas 77002-6925

Attention: John K. Swint

Fax: 713-750-2494

Email: john.k.swint@jpmorgan.com




     (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the Company may, in
its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.



     Section 11.02. No Waivers. No failure or delay by the Administrative Agent or any Lender in
exercising any right, power or privilege hereunder or under any Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies provided by law.



     Section 11.03. Expenses; Indemnification.



     (a) The Company shall pay (i) all reasonable out-of-pocket expenses of the Administrative
Agent, including fees and disbursements of one counsel for the Administrative Agent, in connection
with the preparation of this Agreement, any waiver or consent hereunder or any amendment hereof or
any Default or alleged Default hereunder and (ii) if an Event of Default occurs, all out-of-pocket



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expenses incurred by the Administrative Agent and each Lender, including the fees and
disbursements of outside counsel and the allocated cost of inside counsel, in connection with such
Event of Default and collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom.




     (b) The Company agrees to indemnify each Agent and each Lender, their respective affiliates,
the respective directors, officers, agents and employees of the foregoing and their heirs,
successors and assigns (each an “Indemnitee”) and hold each Indemnitee harmless from and against
any and all liabilities, losses, damages, costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of one counsel for all Indemnitees (and, in the
event of actual or potential conflict of interest, additional counsel for each Indemnitee subject
to such conflict, limited to one such additional counsel so long as representation of each such
party by a single counsel is consistent with and permitted by professional responsibility rules)
and, if necessary, of one local counsel in each relevant jurisdiction, which may be incurred by
such Indemnitee in connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or threatened relating
to or arising out of this Agreement or any actual or proposed use of proceeds of Loans hereunder;
provided that no Indemnitee shall have the right to be indemnified hereunder for such Indemnitee’s
own gross negligence or willful misconduct, material breach in bad faith of express obligations
under the Loan Documents or violation by such Indemnitee of any statute or regulation (provided
that such violation was not the result of any breach of statute or regulation or of any provision
of this Agreement by the Company or any of its Consolidated Subsidiaries), all as determined by a
final, non-appealable judgment of a court of competent jurisdiction.



     Section 11.04. Sharing of Set-offs. Each Lender agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to the Loans and Letter of Credit Liabilities
held by it which is greater than the proportion received by any other Lender in respect of the
aggregate amount of principal and interest due with respect to the Loans and Letter of Credit
Liabilities held by such other Lender, the Lender receiving such proportionately greater payment
shall purchase such participations in the Loans and Letter of Credit Liabilities held by the other
Lenders, and such other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans and Letter of Credit Liabilities held by the
Lenders shall be shared by the Lenders pro rata; provided that nothing in this Section 11.04 shall
impair the right of any Lender or its affiliates to exercise any right of set-off or counterclaim
it may have and to apply the amount subject to such exercise to the payment of indebtedness of a
Borrower other than its indebtedness hereunder. Each Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any



68









 




holder of a participation in the Loans and Letter of Credit Liabilities, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off or counterclaim and
other rights with respect to such participation as fully as if such holder of a participation were
a direct creditor of such Borrower in the amount of such participation.




     Section 11.05. Amendments and Waivers. Any provision of this Agreement or the Notes may be
amended or waived if, but only if, such amendment or waiver is in writing and is signed by the
Company and the Required Lenders (and, if the rights or duties of the Administrative Agent or any
Issuing Lender are affected thereby, by it); provided that no such amendment or waiver shall:



     (a) unless signed by each affected Lender, (i) increase or extend the Commitment of any
Lender, (ii) reduce the principal of or rate of interest on any Loan or the amount to be reimbursed
in respect of any Letter of Credit or any interest thereon or any fees hereunder, (iii) postpone
the date fixed for any payment of principal of or interest on any Loan or for reimbursement in
respect of any Letter of Credit or interest thereon or any fees hereunder or for termination of any
Commitment, (iv) release the Company from any obligation under Article 10 or (v) modify the right
of a Lender to receive a pro rata share of payments as provided herein;



     (b) unless signed by all the Lenders, change the definition of “Required Lenders” or the
provisions of this Section 11.05; or



     (c) unless signed by an Eligible Subsidiary, (i) subject such Eligible Subsidiary to any
additional obligation, (ii) increase the principal of or rate of interest on any outstanding Loan
of such Eligible Subsidiary, (iii) accelerate the stated maturity of any outstanding Loan of such
Eligible Subsidiary or (iv) change this proviso.



     It is understood that the operation of Sections 2.01(c) and 2.20 in accordance with their
terms is not an amendment subject to this Section 11.05.



     Section 11.06. Successors and Assigns.



     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that no Borrower may assign or
otherwise transfer any of its rights under this Agreement without the prior written consent of all
Lenders.



     (b) Any Lender may at any time grant to one or more Persons (each a “Participant”)
participating interests in its Commitment and/or any or all of its Loans and Letter of Credit
Liabilities. In the event of any such grant by a Lender



69









 




of a participating interest to a Participant, whether or not upon notice to any Borrower and
the Administrative Agent, such Lender shall remain responsible for the performance of its
obligations hereunder, and the Borrowers, the Issuing Lenders and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights
and/or obligations hereunder. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrowers hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision hereof; provided that
such participation agreement may provide that such Lender will not agree to any modification,
amendment or waiver of this Agreement described in clause (a) of Section 11.05 without the consent
of the Participant. The Borrowers agree that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Section 2.14 and Article 8 with respect to
its participating interest. An assignment or other transfer which is not permitted by subsection
11.06(c), 11.06(d) or 11.06(f) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this subsection 11.06(b). Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of
the Borrowers, maintain a register on which it enters the name and address of each Participant and
the principal amounts (and stated interest) of each Participant’s interest in the Loans or other
obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall
have any obligation to disclose all or any portion of the Participant Register to any Person
(including the identity of any Participant or any information relating to a Participant’s interest
in any commitments, loans, letters of credit or its other obligations under any Loan Document)
except to the extent that such disclosure is necessary to establish that such commitment, loan,
letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United
States Treasury Regulations. The entries in the Participant Register shall be conclusive absent
clearly demonstrable error, and such Lender shall treat each Person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary.




     (c) Any Lender may at any time assign to one or more banks or other institutions (each an
“Assignee”) all, or a proportionate part (equivalent to an initial Commitment of not less than
$10,000,000) of all, of its rights and obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit G hereto executed by such Assignee and such
transferor Lender, with (and subject to) the consent of the Administrative Agent, each Issuing
Lender and, so long as no payment or bankruptcy Event of Default exists, the Company, such consents
not to be unreasonably withheld or delayed; provided that (i) if an Assignee is a Lender



70









 




Affiliate of such transferor Lender or was a Lender immediately prior to such assignment, no
such consent of the Company shall be required and (ii) the Company shall be deemed to have
consented to any such assignment unless it shall object thereto by written notice to the
Administrative Agent within 15 Domestic Business Days after having received notice thereof. Upon
execution and delivery of such instrument and payment by such Assignee to such transferor Lender of
an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such
Assignee shall be a Lender party to this Agreement and shall have all the rights and obligations of
a Lender with a Commitment as set forth in such instrument of assumption, and the transferor Lender
shall be released from its obligations hereunder to a corresponding extent, and no further consent
or action by any party shall be required. Upon the consummation of any assignment pursuant to this
subsection, the transferor Lender, the Administrative Agent and the Borrowers shall make
appropriate arrangements so that, if required, new Notes are issued to the Assignee. In connection
with any such assignment, the transferor Lender shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of $3,500. The Administrative
Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at
one of its offices in New York a copy of each Assignment and Assumption Agreement delivered to it
and a register for the recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the “Register”). The entries in the Register shall be conclusive absent clearly
demonstrative error, and the Borrowers, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for inspection by the
Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior
notice.




     (d) Any Lender may at any time assign all or any portion of its rights under this Agreement
and its Notes to a Federal Reserve Bank (or other central bank). No such assignment shall release
the transferor Lender from its obligations hereunder.



     (e) No Assignee, Participant or other transferee of any Lender’s rights shall be entitled to
receive any greater payment under Section 8.03 or 8.04 than such Lender would have been entitled to
receive with respect to the rights transferred, unless such transfer is made with the Company’s
prior written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring such
Lender to designate a different Applicable Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater payment did not exist.



71









 





     (f) Notwithstanding anything to the contrary contained in this Section 11.06, but subject to
the terms and conditions set forth in this subsection (f), any Lender may from time to time, elect
to designate a Conduit to provide all or any part of any Loan required to be made by such Lender
pursuant to this Agreement or to acquire a participation interest in any Loans extended by such
Lender hereunder (a “Conduit Designation”), provided the designation of a Conduit by any Lender for
purposes of this Section 11.06(f) shall be subject to the approval of the Company, which shall not
be unreasonably withheld. No additional Note shall be required with regard to a Conduit
Designation; provided, however, to the extent any Conduit shall advance funds under a Conduit
Designation, the designating Lender shall be deemed to hold the Note in its possession as an
Administrative Agent for such Conduit to the extent of the Loan funded by such Conduit.
Notwithstanding any such Conduit Designation, (x) the designating Lender shall remain solely
responsible to the other parties hereto for its obligations under this Agreement and (y) the
Borrowers and the Administrative Agent may continue to deal solely and directly with the
designating Lender as Administrative Agent for such designating Lender’s Conduit, in connection
with all of such Conduit’s rights and obligations under this Agreement, unless and until the
Company and the Administrative Agent are notified that the designating Lender has been replaced as
Administrative Agent for its Conduit; any payments for the benefit of any designating Lender and
its Conduit shall be paid to such designating Lender for itself as Administrative Agent for its
Conduit, as applicable; provided neither the Administrative Agent nor any Borrower shall be
responsible for any designating Lender’s application of any such payments. In addition, any
Conduit may (i) with notice to, but without the consent of the Company and the Administrative
Agent, and without paying any processing fee therefor, assign all or portions of its interest in
any Loans to the Lender that designated such Conduit or to any financial institutions consented to
by the Company and the Administrative Agent providing liquidity and/or credit facilities to or for
the account of such Conduit to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any guarantee, surety, credit or liquidity enhancement to
such Conduit.



     (g) Each party to this Agreement hereby agrees that, at any time a Conduit Designation is in
effect, it shall not institute against, or join any other person in instituting against, any
Conduit any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy or similar law, for one year and a day after the
latest maturing commercial paper note issued by such Conduit is paid. This Section 11.06(g) shall
survive the termination of this Agreement.



     Section 11.07. Collateral. Each of the Lenders represents to the Administrative Agent and
each of the other Lenders that it in good faith is not



72









 




relying upon any “margin stock” (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.




     Section 11.08. Governing Law; Submission to Jurisdiction. This Agreement and each Note shall
be governed by and construed in accordance with the laws of the State of New York. Each Borrower
and each Lender hereby submits, to the fullest extent permitted by applicable law, to the
nonexclusive jurisdiction of the United States District Court for the Southern District of New York
and of any New York State court sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated hereby. Each
Borrower and each Lender irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.



     Section 11.09. Counterparts; Integration. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.



     Section 11.10. Waiver of Jury Trial. EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.



     Section 11.11. Confidentiality.



     (a) The Lenders agree not to disclose, directly or indirectly, any information obtained from
or on behalf of the Company or any of its Subsidiaries or affiliates in connection with this
Agreement and will keep such information confidential; provided that (i) each Lender may use,
retain and disclose any such information to its affiliates, directors, officers, agents, employees,
insurance brokers, counsel, public accountants, any Participants, potential Assignees and
Participants and any governmental agency or instrumentality or other supervisory body requesting
such disclosure, provided that any Participants or potential Assignees or Participants shall have
agreed to keep such information confidential in accordance with this Section 11.11, (ii) each
Lender may use, retain and disclose any such information which has been publicly disclosed (other
than by such Lender or any Lender Affiliate thereof in breach of this Section 11.11), and (iii) to
the extent that such Lender may have received a subpoena or other legal demand for such
information, such Lender may disclose such information;



73









 




provided that such Lender shall notify the Company of such demand (to the extent permitted by
law and as promptly as practicable) and shall cooperate with the Company, at the Company’s expense,
to take actions necessary to obtain a protective order limiting the scope of the demand and the use
and disclosure of such information.




     (b) The parties hereby agree that, from the commencement of discussions with respect to the
transactions contemplated by this Agreement (the “Transactions”), each party (and each 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 (as such terms are used in Sections
6011, 6111 and 6112 of the Internal Revenue Code and the Treasury Regulations promulgated
thereunder) of the Transactions and all materials of any kind (including opinions or other tax
analyses) that are provided to such party relating to such tax treatment and tax structure, other
than any information for which nondisclosure is reasonably necessary in order to comply with
applicable securities laws.



     Section 11.12. USA Patriot Act. Each 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
Borrower, which information includes the name and address of each Borrower and other information
that will allow such Lender, to identify each Borrower in accordance with the Act.



     Section 11.13. Termination of Existing Agreement. Lenders which are parties to the
Existing Agreement (and which constitute “Required Lenders” under and as defined in the Existing
Agreement) hereby waive any advance notice requirement for terminating the commitments under the
Existing Agreement, and the Company and the applicable Lenders agree that the Existing Agreement
and the commitments thereunder shall be terminated on the Effective Date hereof (except for any
provisions thereof which by their terms survive termination thereof).



74









 





     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.



	 	 	 	 	 
	 	JOHNSON CONTROLS, INC.

 	 
	 	By:  	/s/ R. Bruce McDonald
 	 
	 	 	Name:  	R. Bruce McDonald  	 
	 	 	Title:  	Executive Vice President

and Chief Financial Officer 	 
	 
	 	 	 
	 	By:  	/s/ Frank A. Voltolina
 	 
	 	 	Name:  	Frank A. Voltolina 	 
	 	 	Title:  	Vice President

and Corporate Treasurer 	 
	 



[Signature Page to Credit Agreement]




 









 








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

 	 
	 	By:  	/s/ Robert P. Kellas
 	 
	 	 	Name:  	Robert P. Kellas 	 
	 	 	Title:  	Executive Director 	 
	 



[Signature Page to Credit Agreement]








 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Syndication Agent and as Lender

 	 
	 	By:  	/s/ L. Dustin Vincent, III
 	 
	 	 	Name:  	L. Dustin Vincent, III 	 
	 	 	Title:  	Managing Director 	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	Barclays Bank PLC, as a Lender

 	 
	 	By:  	/s/ David Barton
 	 
	 	 	Name:  	David Barton 	 
	 	 	Title:  	Director 	 
	 



[Signature Page to Credit Agreement]







 









 








	 	 	 	 	 
	 	CITIBANK, N.A., as a Lender

 	 
	 	By:  	/s/ Brian Reed
 	 
	 	 	Name:  	Brian Reed 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]








 









 








	 	 	 	 	 
	 	ING Bank N.V., Dublin Branch, as a Lender

 	 
	 	By:  	/s/ Pádraig Matthews
 	 
	 	 	Name:  	Pádraig Matthews 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	/s/ Aidan Neill
 	 
	 	 	Name:  	Aidan Neill 	 
	 	 	Title:  	Director 	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	Commerzbank AG, New York and Grand Cayman Branches, as a Lender

 	 
	 	By:  	/s/ Patrick Hartweger
 	 
	 	 	Name:  	Patrick Hartweger 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	/s/ Peter Wesemeier
 	 
	 	 	Name:  	Peter Wesemeier 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender

 	 
	 	By:  	/s/ Corey Billups
 	 
	 	 	Name:  	Corey Billups 	 
	 	 	Title:  	Managing Director 	 
	 
	 	Second signature block, if required



CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender

 	 
	 	By:  	/s/ Blake Wright
 	 
	 	 	Name:  	Blake Wright 	 
	 	 	Title:  	Managing Director 	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	Danske Bank A/S, as a Lender

 	 
	 	By:  	/s/ Merete Ryvald-Christensen
 	 
	 	 	Name:  	Merete Ryvald-Christensen 	 
	 	 	Title:  	Senior Credit Administrator 	 
	 
	 	Second signature block, if required



Danske Bank A/S, as a Lender

 	 
	 	By:  	/s/ Henrik Ibsen
 	 
	 	 	Name:  	Henrik Ibsen 	 
	 	 	Title:  	First Vice President 	 
	 



[Signature Page to Credit Agreement]






 









 








	 	 	 	 	 
	 	INTESA SANPAOLO S.p.A.-New York Branch,

as a Lender

 	 
	 	By:  	/s/ John Michalisin
 	 
	 	 	Name:  	John Michalisin 	 
	 	 	Title:  	First Vice President 	 
	 
	 	 	 
	 	By:  	/s/ Franco Di Mario
 	 
	 	 	Name:  	Franco Di Mario 	 
	 	 	Title:  	First Vice President & Credit Manager 	 
	 



[Signature Page to Credit Agreement]






 









 








	 	 	 	 	 
	 	Standard Chartered Bank, as a Lender

 	 
	 	By:  	/s/ Richard Van de Berghe
 	 
	 	 	Name:  	Richard Van de Berghe 	 
	 	 	Title:  	Director 	 
	 
	 	Second signature block, if required



Standard Chartered Bank, as a Lender

 	 
	 	By:  	/s/ Robert K. Reddington
 	 
	 	 	Name:  	Robert K. Reddington 	 
	 	 	Title:  	Credit Documentation Manager

Credit Documentation Unit,

WB Legal-Americas 	 
	 



[Signature Page to Credit Agreement]







 









 








	 	 	 	 	 
	 	The Bank of Tokyo-Mitsubishi UFJ, Ltd., as a Lender

 	 
	 	By:  	/s/ Victor Pierzchalski
 	 
	 	 	Name:  	Victor Pierzchalski 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Signature Page to Credit Agreement]









 









 








	 	 	 	 	 
	 	U.S. Bank National Association, as a Lender

 	 
	 	By:  	/s/ Joyce M. Kletti
 	 
	 	 	Name:  	Joyce M. Kletti 	 
	 	 	Title:  	Assistant Vice President 	 
	 



[Signature Page to Credit Agreement]




 









 








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

 	 
	 	By:  	/s/ Charles W. Reed
 	 
	 	 	Name:  	Charles W. Reed 	 
	 	 	Title:  	Director 	 
	 



[Signature Page to Credit Agreement]







 









 








	 	 	 	 	 
	 	Banco Bilbao Vizcaya Argentaria S.A., NY Branch, as a Lender

 	 
	 	By:  	/s/ Michael D’Anna
 	 
	 	 	Name:  	Michael D’Anna 	 
	 	 	Title:  	Executive Director 	 
	 
	 	Banco Bilbao Vizcaya Argentaria S.A., NY Branch, as a Lender

 	 
	 	By:  	/s/ Alex Mayral
 	 
	 	 	Name:  	Alex Mayral 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Credit Agreement]






 









 








	 	 	 	 	 
	 	Industrial and Commercial Bank of China Limited, New York Branch, as a Lender

 	 
	 	By:  	/s/ Bin Wu
 	 
	 	 	Name:  	Bin Wu 	 
	 	 	Title:  	General Manger 	 
	 



[Signature Page to Credit Agreement]




 









 








	 	 	 	 	 
	 	Toronto Dominion (Texas) LLC, as a Lender

 	 
	 	By:  	/s/ Debbi L. Brito
 	 
	 	 	Name:  	Debbi L. Brito 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Signature Page to Credit Agreement]







 









 








	 	 	 	 	 
	 	The Royal Bank of Scotland plc, as a Lender

 	 
	 	By:  	/s/ L. Peter Yetman
 	 
	 	 	Name:  	L. Peter Yetman 	 
	 	 	Title:  	Director 	 
	 



[Signature Page to Credit Agreement]





 









 








	 	 	 	 	 
	 	UniCredit Bank AG, New York Branch, as a Lender

 	 
	 	By:  	/s/ Richard Cordover
 	 
	 	 	Name:  	Richard Cordover 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	/s/ Fabienne Lelievre
 	 
	 	 	Name:  	Fabienne Lelievre 	 
	 	 	Title:  	Director 	 
	 



[Signature Page to Credit Agreement]





 











 





COMMITMENT SCHEDULE




	 	 	 	 	 
	Lender	 	Commitment
	Total Commitments
	 	$	2,500,000,000	 
	JPMorgan Chase Bank, N.A.
	 	$	212,500,000	 
	Bank of America, N.A.
	 	$	212,500,000	 
	Barclays Bank PLC
	 	$	187,500,000	 
	Citibank, N.A.
	 	$	187,500,000	 
	ING Bank N.V., Dublin Branch
	 	$	187,500,000	 
	Commerzbank AG, New York and Grand Cayman Branches
	 	$	135,000,000	 
	Credit Agricole Corporate and Investment Bank
	 	$	135,000,000	 
	Danske Bank A/S
	 	$	135,000,000	 
	Intesa Sanpaolo S.p.A. New York Branch
	 	$	135,000,000	 
	Standard Chartered Bank
	 	$	135,000,000	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	135,000,000	 
	U.S. Bank National Association
	 	$	135,000,000	 
	Wells Fargo Bank, N.A.
	 	$	135,000,000	 
	Banco Bilbao Vizcaya Argentaria S.A., NY Branch
	 	$	86,500,000	 
	Industrial and Commercial Bank of China Limited, New
York Branch
	 	$	86,500,000	 
	Toronto Dominion (Texas) LLC
	 	$	86,500,000	 
	The Royal Bank of Scotland plc
	 	$	86,500,000	 
	UniCredit Bank AG, New York Branch
	 	$	86,500,000	 










 









 








PRICING SCHEDULE




          Each of “Facility Fee Rate”, “Euro-Currency Margin” and “Base Rate Margin” means, for any day,
the rate set forth below, in basis points per annum, in the row opposite such term and in the
column corresponding to the Pricing Level that applies for such day:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	LEVEL I	 	LEVEL II	 	LEVEL III	 	LEVEL IV	 	LEVEL V	 	LEVEL VI
	Facility Fee Rate
	 	 	10.0	 	 	 	12.5	 	 	 	15.0	 	 	 	17.5	 	 	 	25.0	 	 	 	30.0	 
	Euro-Currency Margin
	 	 	77.5	 	 	 	87.5	 	 	 	110.0	 	 	 	120.0	 	 	 	137.5	 	 	 	170.0	 
	Base Rate Margin
	 	 	0.0	 	 	 	0.0	 	 	 	10.0	 	 	 	20.0	 	 	 	37.5	 	 	 	70.0	 






          For purposes of this Schedule, the following terms have the following meanings, subject
to the concluding paragraph of this Schedule:




          “Fitch” means Fitch, Inc.




          “Level I” status exists at any date if, at such date, the Credit Rating is A+ or higher by S&P
or A1 or higher by Moody’s or A+ or higher by Fitch.




          “Level II” status exists at any date if, at such date, (i) Level I status does not exist and
(ii) the Credit Rating is A or higher by S&P or A2 or higher by Moody’s or A or
higher by Fitch.




          “Level III” status exists at any date if, at such date, (i) neither Level I status nor Level
II status exists and (ii) the Credit Rating is A- or higher by S&P or A3 or higher by
Moody’s or A- or higher by Fitch.




          “Level IV” status exists at any date if, at such date, (i) none of Level I status, Level II
status or Level III status exists and (ii) the Credit Rating is BBB+ or higher by S&P or
Baa1 or higher by Moody’s or BBB+ or higher by Fitch.




          “Level V” status exists at any date if, at such date, (i) none of Level I status, Level II
status, Level III status or Level IV status exists and (ii) the Credit Rating is BBB or higher by
S&P or Baa2 or higher by Moody’s or BBB or higher by Fitch.




          “Level VI” status exists at any date if, at such date, no other Pricing Level status exists.




          “Moody’s” means Moody’s Investors Service, Inc.







 









 








          “Pricing Level” refers to the determination of which of Level I, Level II, Level III, Level
IV, Level V or Level VI status exists at any date.




          “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.




          “Credit Rating” means the rating assigned to the Company’s senior unsecured long-term debt.




          The rating in effect at any date is that in effect at the close of business on such date. If the
Company is split-rated and the ratings differential between the highest rating and the next highest
rating is one notch, the highest of the ratings will apply. If the Company is split-rated and the
ratings differential between the highest rating and the next highest rating is more than one notch,
a rating that is one notch lower than the highest of the ratings shall be used. In the event that
the Company does not have a Credit Rating by any two of S&P, Moody’s or Fitch, then Level VI shall
apply.






 









 








EXHIBIT A

Form of Note




NOTE




New York, New York




___________ __, ____




     For value received, <NAME OF RELEVANT BORROWER>, a <RELEVANT BORROWER’S JURISDICTION
OF INCORPORATION> corporation (the “Borrower”), promises to pay to the order of
______________________ (the “Lender”), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to the Credit Agreement
referred to below on the last day of the Interest Period relating to such Loan. The Borrower
promises to pay interest on the unpaid principal amount of each such Loan on the dates and at the
rate or rates provided for in the Credit Agreement. All such payments of principal and interest
shall be made (i) if in Dollars, in lawful money of the United States in Federal or other
immediately available funds at the office of JPMorgan Chase Bank, at 270 Park Avenue, New York, New
York or (ii) if in an Alternative Currency, in such funds as may then be customary for the
settlement of international transactions in such Alternative Currency at the place specified for
payment thereof pursuant to the Credit Agreement.



     All Loans made by the Lender, the respective types and maturities thereof and all repayments
of the principal thereof shall be recorded by the Lender and, if the Lender so elects in connection
with any transfer or enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding may be endorsed by the Lender on the
schedule attached hereto, or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.



     This note is one of the Notes referred to in the Credit Agreement dated as of February 17,
2011 among Johnson Controls, Inc., the Eligible Subsidiaries referred to therein, the Lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative Agent (as the same may be amended from
time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein with
the same meanings. Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.



A-1









 





     [The payment in full of the principal and interest on this note has, pursuant to the
provisions of the Credit Agreement, been unconditionally guaranteed by Johnson Controls,
Inc.]1



	 	 	 	 	 
	 	<NAME OF RELEVANT BORROWER>

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	To be deleted in case of Notes executed and
delivered by the Company.




A-2









 










LOANS AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	 	 	 	 	Principal	 	 	 	 
	Date	 	Amount of Loan	 	Type of Loan	 	Repaid	 	Notation	 	Made By
	 
	 	 	 	 	 	 	 	 	 	 










A-3









 








EXHIBIT B

Opinion of General

Counsel of the Company




________, 2011




To the Lenders and the Administrative Agent

     Referred to Below

c/o JPMorgan Chase Bank, N.A.,

     as Administrative Agent

270 Park Avenue

New York, New York 10017




Dear Sirs:




     I have acted as counsel for Johnson Controls, Inc. (the “Company”) in connection with
the Credit Agreement (the “Credit Agreement”) dated as of February 17, 2011 among the
Company, the Eligible Subsidiaries referred to therein, the Lenders party thereto, and JPMorgan
Chase Bank, N.A., as Administrative Agent. This opinion is delivered to you pursuant to Section
3.01(b) of the Credit Agreement. Terms defined in the Credit Agreement are used herein as therein
defined.



     For purposes of this opinion, I or others under my supervision have examined originals or
copies, certified or otherwise identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such other investigations
of fact and law as I have deemed necessary or advisable for purposes of this opinion.



     In making such examination, I have assumed the genuineness of all signatures other than those
of the Company, the authenticity of all documents submitted as originals and the conformity to
authentic original documents of all documents submitted as certified, conformed and photostatic
copies. I have assumed that the Credit Agreement constitutes the legal, valid and binding
obligations of each of the parties thereto, other than the Company, enforceable against such
parties in accordance with its terms. As to questions of facts material to such opinions, I have,
when relevant facts were not independently established by me, relied upon statements made in the
documents, records and certificates referred to above.



     Upon the basis of the foregoing, I am of the opinion that:



 









 





     1. The Company is a corporation duly incorporated, validly existing and in good standing under
the laws of Wisconsin and has all corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted except where the failure
to have such power or possess such licenses, authorizations, consents and approvals would not have
a Material Adverse Effect.



     2. The execution, delivery and performance by the Company of the Credit Agreement and its
Notes are within the Company’s corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any Governmental Authority
(other than routine disclosure or informational filing) and do not materially contravene, or
constitute a material default under, any provision of applicable law or regulation or of the
articles of incorporation or by-laws of the Company or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Company or result in the creation or imposition
of any Lien on any asset of the Company or any of its Consolidated Subsidiaries (other than as
contemplated by the Credit Agreement).



     3. The Credit Agreement has been duly executed by the Company and constitutes a valid and
binding agreement of the Company enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights and to general principles of equity.
Each of the Notes dated as of the date hereof, if any, has been duly executed by the Company, and
each of such Notes constitutes a valid and binding obligation of the Company, and each of such
Notes is enforceable against the Company in accordance with its respective terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar
laws affecting the enforcement of creditors’ rights and to general principles of equity.



     4. Except as set forth in the Company’s reports on Form 8-K, Form 10-K and Form 10-Q filed
with the Securities and Exchange Commission pursuant to the Securities and Exchange Act of 1934,
there is no action, suit or proceeding pending against, or to the best of my knowledge threatened
against or affecting, the Company or any of its Consolidated Subsidiaries before any court or
arbitrator or any governmental body, agency or official, in which there is a reasonable possibility
of an adverse decision which could reasonably be expected to materially adversely affect the
business, consolidated financial position or consolidated results of operations of the Company and
its Consolidated Subsidiaries, considered as a whole, or which in any manner draws into question
the validity of the Credit Agreement or the Notes.



B-2









 





     5. Each of the Company’s corporate Significant Subsidiaries is a corporation validly existing
and in good standing under the laws of its jurisdiction of incorporation, and has all corporate
powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its business as now
conducted, except those instances where failure to hold such powers, licenses, authorizations,
consents or approvals would not be expected to have a material adverse effect on the Company.



     With respect to my opinion set forth in opinion paragraph 2, I have not reviewed, and express
no opinion on, (i) financial covenants or ratios or similar provisions requiring financial
calculations, or any restriction or limitation expressed as an amount or percentage, or
determinations to ascertain whether there is any breach of or default under any such provisions or
(ii) provisions relating to the occurrence of a “material adverse effect” or words of similar
import. In addition, insofar as covenants in any agreement restrict the ability of the Company to
incur indebtedness, any borrowing under the Credit Agreement from time to time must comply with
such covenants so that a default or event of default does not result.



     I express no opinion as to the effect on the opinions expressed herein of (i) the compliance
or non-compliance of any party to the Credit Agreement (other than the Company to the extent set
forth herein) with any state, federal or other laws or regulations applicable to it or (ii) the
legal or regulatory status or the nature of the business of any party (other than the Company to
the extent expressly set forth herein).



     I express no opinion herein as to: (i) securities or blue sky laws or regulations; (ii)
antitrust or unfair competition laws or regulations; (iii) zoning, land use, or subdivision laws or
regulations; (iv) labor, ERISA, or other employee benefit laws or regulations; (v) tax,
environmental, racketeering, or health and safety laws or regulations; or (vi) local laws,
regulations, or ordinances.



     In connection with the foregoing opinion, I wish to point out that I am a member of the Bar of
the State of Wisconsin and do not hold myself out as an expert in the laws of other jurisdictions.
However, I have made, or caused to be made, such investigations or such consultations with counsel
as I have deemed appropriate with respect to the laws of other jurisdictions in connection with
such opinion, and nothing has come to my attention in the course of such investigation which would
lead me to question the correctness of such opinion.



     This opinion may not be relied upon by any other parties without my express written consent.



Very truly yours,




B-3 









 





EXHIBIT C

Opinion of Special Counsel

of the Administrative Agent




________, 2011




To the Lenders and the Administrative Agent

     Referred to Below

c/o JPMorgan Chase Bank, N.A.,

     as Administrative Agent

270 Park Avenue

New York, New York 10017




Dear Sirs:




     We have participated in the preparation of the Credit Agreement (the “Credit Agreement”) dated
as of February 17, 2011 among Johnson Controls, Inc., a Wisconsin corporation (the “Company”), the
Eligible Subsidiaries referred to therein, the Lenders party thereto (the “Lenders”), and JPMorgan
Chase Bank, N.A., as Administrative Agent (the “Administrative Agent”), and have acted as special
counsel for the Administrative Agent for the purpose of rendering this opinion pursuant to Section
3.01(c) of the Credit Agreement. Terms defined in the Credit Agreement are used herein as therein
defined.



     We have examined originals or copies, certified or otherwise identified to our satisfaction,
of such documents, corporate records, certificates of public officials and other instruments and
have conducted such other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion. In our examination, we have assumed (a) the genuineness of all
signatures, (b) the legal capacity of all natural persons executing documents, (c) the valid
existence of the Company, (d) that the Company has all necessary corporate power and authority to
execute and deliver the Credit Agreement and to perform its obligations thereunder, (e) the due
authorization, execution, and delivery of the Credit Agreement, (f) the authenticity of all
documents submitted to us as originals, and (g) the conformity to originals of all documents
submitted to us as copies.



     Upon the basis of the foregoing, we are of the opinion that the Credit Agreement constitutes a
valid and binding agreement of the Company and each of the Company’s Notes constitutes a valid and
binding obligation of the Company, in each case enforceable in accordance with its terms except as
the same may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights
generally and by general principles of equity.



C-1









 





     We are members of the Bar of the State of New York and the foregoing opinion is limited to the
laws of the State of New York and the federal laws of the United States of America. In giving the
foregoing opinion, we express no opinion as to (i) the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Lender is located which limits the rate of
interest that such Lender may charge or collect and (ii) the enforceability of the provisions of
Section 2.18.



     This opinion is rendered solely to you in connection with the above matter. This opinion may
not be relied upon by you for any other purpose or relied upon by any other person without our
prior written consent.



Very truly yours,




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EXHIBIT D

Form of Election to Participate




___________, 20__




JPMORGAN CHASE BANK, N.A.

      as Administrative Agent for the

      Lenders named in the Credit

      Agreement dated as of February 17, 2011

      among Johnson Controls, Inc.,

      the Eligible Subsidiaries referred to therein, the

      Lenders party thereto and the Administrative Agent

      (the “Credit Agreement”)




Dear Sirs:




     Reference is made to the Credit Agreement described above. Terms not defined herein which are
defined in the Credit Agreement shall have for the purposes hereof the meaning provided therein.



     The undersigned, <NAME OF ELIGIBLE SUBSIDIARY>, a <JURISDICTION OF INCORPORATION>
corporation, hereby elects to be an Eligible Subsidiary for purposes of the Credit Agreement,
effective from the date hereof until an Election to Terminate shall have been delivered on behalf
of the undersigned in accordance with the Credit Agreement. The undersigned confirms that the
representations and warranties set forth in Article 9 of the Credit Agreement are true and correct
as to the undersigned as of the date hereof, and the undersigned hereby agrees to perform all the
obligations of an Eligible Subsidiary under, and to be bound in all respects by the terms of, the
Credit Agreement, including without limitation Section 11.08 thereof, as if the undersigned were a
signatory party thereto.



     [Tax disclosure pursuant to Section 9.04]



     The address to which all notices to the undersigned under the Credit Agreement should be
directed is:



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     This instrument shall be construed in accordance with and governed by the laws of the State of
New York.



	 	 	 	 	 
	 	Very truly yours,



<NAME OF ELIGIBLE SUBSIDIARY>

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     The undersigned hereby confirms that <NAME OF ELIGIBLE SUBSIDIARY> is an Eligible
Subsidiary for purposes of the Credit Agreement described above.



	 	 	 	 	 
	 	JOHNSON CONTROLS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     Receipt of the above Election to Participate is hereby acknowledged on and as of the date set
forth above.



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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EXHIBIT E




Form of Election to Terminate




___________, 20__




JPMORGAN CHASE BANK, N.A.,

      as Administrative Agent for

      the Lenders named in the Credit

      Agreement dated as of February 17, 2011

      among Johnson Controls, Inc.,

      the Eligible Subsidiaries referred

      to therein, the Lenders party thereto

      and the Administrative Agent (the

      “Credit Agreement”)




Dear Sirs:




     Reference is made to the Credit Agreement described above. Terms not defined herein which are
defined in the Credit Agreement shall have for the purposes hereof the meaning provided therein.



     The undersigned, <NAME OF ELIGIBLE SUBSIDIARY>, a <JURISDICTION OF INCORPORATION>
corporation, hereby elects to terminate its status as an Eligible Subsidiary for purposes of the
Credit Agreement, effective as of the date hereof. The undersigned hereby represents and warrants
that all principal and interest on all Notes of the undersigned and all other amounts payable by
the undersigned pursuant to the Credit Agreement have been paid in full on or prior to the date
hereof. Notwithstanding the foregoing, this Election to Terminate shall not affect any obligation
of the undersigned under the Credit Agreement or under any Note heretofore incurred.



E-1











 





     This instrument shall be construed in accordance with and governed by the laws of the State of
New York.



	 	 	 	 	 
	 	Very truly yours,



<NAME OF ELIGIBLE SUBSIDIARY>

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     The undersigned hereby confirms that the status of <NAME OF ELIGIBLE SUBSIDIARY> as an
Eligible Subsidiary for purposes of the Credit Agreement described above is terminated as of the
date hereof.



	 	 	 	 	 
	 	JOHNSON CONTROLS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     Receipt of the above Election to Terminate is hereby acknowledged on and as of the date set
forth above.



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



E-2









 






	 	 	 	 	 



EXHIBIT F

Opinion of Counsel of the

Borrower (Borrowings by Eligible

Subsidiaries)




[Dated as provided in

Section 3.03(a) of the

Credit Agreement]




To the Lenders and the Administrative Agent

      Referred to Below

c/o JPMorgan Chase Bank, N.A.,

     as Administrative Agent

270 Park Avenue

New York, New York 10017




Dear Sirs:





     I am counsel to <NAME OF ELIGIBLE SUBSIDIARY, JURISDICTION OF INCORPORATION> (the
“Borrower”) and give this opinion pursuant to Section 3.03(a) of the Credit Agreement (the “Credit
Agreement”) dated as of February 17, 2011 among Johnson Controls, Inc. (the “Company”), the
Eligible Subsidiaries referred to therein, the Lenders party thereto and JPMorgan Chase Bank, N.A.,
as Administrative Agent. Terms defined in the Credit Agreement are used herein as therein defined.



     I have examined originals or copies, certified or otherwise identified to my satisfaction, of
such documents, corporate records, certificates of public officials and other instruments and have
conducted such other investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion.



     Upon the basis of the foregoing, I am of the opinion that:



     1. The Borrower is duly organized, validly existing and in good standing under the laws of
<JURISDICTION OF ORGANIZATION>, and is a Wholly-Owned Consolidated Subsidiary of the Company.



     2. The execution and delivery by the Borrower of its Election to Participate and its Notes and
the performance by the Borrower of the Credit Agreement and its Notes are within the Borrower’s
legal powers, have been duly authorized by all necessary legal action, require no action by or in
respect of, or filing with, any Governmental Authority and do not materially contravene, or
constitute a material default under, any provision of applicable law or regulation or of the
organizational documents of the Borrower or of any agreement,



F-1









 




judgment, injunction, order, decree or other instrument binding upon the Borrower or the
Company or any of its Consolidated Subsidiaries or result in the creation or imposition of any Lien
on any asset of the Company or any of its Consolidated Subsidiaries.




     3. The Credit Agreement constitutes a valid and binding agreement of the Borrower and its
Notes constitute valid and binding obligations of the Borrower, in each case enforceable in
accordance with its own terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance
or similar laws affecting the enforcement of creditors’ rights and to general principles of equity.



     4. Except as disclosed in the Borrower’s Election to Participate, there is no income, stamp or
other tax of <JURISDICTION OF INCORPORATION AND, IF DIFFERENT, PRINCIPAL PLACE OF BUSINESS>,
or any taxing authority thereof or therein, imposed by or in the nature of withholding or
otherwise, which is imposed on any payment to be made by the Borrower pursuant to the Credit
Agreement or its Notes, or is imposed on or by virtue of the execution, delivery or enforcement of
its Election to Participate or of its Notes.



Very truly yours,




F-2









 





EXHIBIT G

Assignment and Assumption Agreement




     AGREEMENT dated as of _________, 20__ between <NAME OF ASSIGNOR> (the “Assignor”) and
<NAME OF ASSIGNEE> (the “Assignee”).



     WHEREAS, this Assignment and Assumption Agreement (the “Agreement”) relates to the Credit
Agreement dated as of February 17, 2011 among Johnson Controls, Inc. (the “Company”), the Eligible
Subsidiaries referred to therein, the Assignor and the other Lenders thereto, as Lenders, and
JPMorgan Chase Bank, N.A., as Administrative Agent (the “Administrative Agent”) (as amended from
time to time, the “Credit Agreement”);



     WHEREAS, as provided under the Credit Agreement, the Assignor has a Commitment to make Loans
and participate in Letters of Credit in an aggregate Dollar Amount at any time outstanding not to
exceed $___,000,000;



     WHEREAS, Loans made to the Borrowers by the Assignor under the Credit Agreement in the
aggregate Dollar Amount of $__________ are outstanding at the date hereof;



     WHEREAS, Letters of Credit with a total Dollar Amount available for drawing thereunder of
$__________ are outstanding at the date hereof; and



     WHEREAS, the Assignor proposes to assign to the Assignee all of the rights of the Assignor
under the Credit Agreement in respect of a portion of its Commitment thereunder in an amount equal
to $__________ (the “Assigned Amount”), together with a corresponding portion of its outstanding
Loans and Letter of Credit Liabilities, and the Assignee proposes to accept assignment of such
rights and assume the corresponding obligations from the Assignor on such terms;



     NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein,
the parties hereto agree as follows:



     Section 1. Definitions. All capitalized terms not otherwise defined herein shall
have the respective meanings set forth in the Credit Agreement.



     Section 2. Assignment. The Assignor hereby assigns and sells to the Assignee all of
the rights of the Assignor under the Credit Agreement to the extent of the Assigned Amount, and the
Assignee hereby accepts such assignment from the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the



G-1









 




Loans made by, and Letter of Credit Liabilities of, the Assignor outstanding at the date
hereof. Upon the execution and delivery hereof by the Assignor, the Assignee and the Company and
the payment of the amounts specified in Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights and be obligated to perform the
obligations of a Lender under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date hereof, be reduced
by a like amount and the Assignor released from its obligations under the Credit Agreement to the
extent such obligations have been assumed by the Assignee. The assignment provided for herein
shall be without recourse to the Assignor and without any representations or warranties of any
kind, except that the Assignor is the legal and beneficial owner of the interest being assigned by
it hereunder and that such interest is free and clear of any adverse claim created by the Assignor.




     Section 3. Payments. As consideration for the assignment and sale contemplated in
Section 2 hereof, the Assignee shall pay to the Assignor on the date hereof in Federal funds the
amount heretofore agreed between them.1 It is understood that facility fees and Letter
of Credit fees accrued to the date hereof in respect of the Assigned Amount are for the account of
the Assignor and such fees accruing from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it receives any amount under
the Credit Agreement which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party’s interest therein and shall
promptly pay the same to such other party.



     Section 4. Consent of the Company. This Agreement is conditioned upon the consent
of [the Company,] the Administrative Agent and each Issuing Lender pursuant to Section 11.06(c) of
the Credit Agreement. The execution of this Agreement by them is evidence of this consent.
Pursuant to Section 11.06(c), the Company shall execute and deliver a Note and to cause each
Eligible Subsidiary to execute and deliver a Note payable to the order of the Assignee to evidence
the assignment and assumption provided for herein.



     Section 5. Non-reliance on Assignor. The Assignor makes no representation or
warranty in connection with, and shall have no responsibility with respect to, the solvency,
financial condition, or statements of any Borrower, or the validity and enforceability of the
obligations of any Borrower in respect of





 




			
	1	 	Amount should combine principal together
with accrued interest and breakage compensation, if any, to be paid by the
Assignee, net of any portion of any upfront fee to be paid by the Assignor to
the Assignee. It may be preferable in an appropriate case to specify these
amounts generically or by formula rather than as a fixed sum.




G-2









 









the Credit Agreement or any Note. The Assignee
acknowledges that it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial condition of the Borrowers.




     Section 6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.



     Section 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.



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



	 	 	 	 	 
	 	<NAME OF ASSIGNOR>

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	<NAME OF ASSIGNEE>

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JOHNSON CONTROLS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



G-3









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and as Issuing Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BANK OF AMERICA, N.A.,

as Issuing Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



G-4









 






	 	 	 	 	 



EXHIBIT H

Mandatory Costs Rate




MANDATORY COSTS RATE





	 	1.	 	Definitions
	 
	 	 	 	In this Exhibit:
	 
	 	 	 	“Act” means the Bank of England Act of 1998.
	 
	 	 	 	The terms “Eligible Liabilities” and “Special Deposits” have the meanings
ascribed to them under or pursuant to the Act or by the Bank of England (as may
be appropriate), on the day of the application of the formula.
	 
	 	 	 	“Fee Base” has the meaning ascribed to it for the purposes of, and shall be
calculated in accordance with, the Fees Regulations.
	 
	 	 	 	“Fees Regulations” means, as appropriate, either:






	 	(a)	 	the Banking Supervision (Fees) Regulations 1998; or
	 
	 	(b)	 	such regulations as from time to time may be in force,
relating to the payment of fees for banking supervision in respect of
periods subsequent to March 31, 1999.






	 	 	 	“FSA” means the Financial Services Authority.
	 
	 	 	 	Any reference to a provision of any statute, directive, order or regulation
herein is a reference to that provision as amended or re-enacted from time to
time.
	 
	 	2.	 	Calculation of the Mandatory Costs Rate
	 
	 	 	 	The Mandatory Costs Rate is an addition to the interest rate on each
Euro-Currency Loan or any other sum on which interest is to be calculated to
compensate the Lenders for the cost attributable to each Euro-Currency Loan or
such sum resulting from the imposition from time to time under or pursuant to the
Act and/or by the Bank of England and/or the FSA (or other United Kingdom
governmental authorities or agencies) of a requirement to place non-interest
bearing or Special Deposits (whether interest bearing or not) with the Bank of
England and/or pay fees to the FSA




H-1









 






	 	 	 	calculated by reference to liabilities used to fund the relevant Euro-Currency
Loan or such sum.






	 	 	 	The “Mandatory Costs Rate” will be the rate determined by the Agent to be the
rate resulting from the application of the following formula:
	 
	 	 	 	For Sterling:
	 
	 	 	 	
	 
	 	 	 	For Euro:
	 
	 	 	 	
	 
	 	 	 	where on the day of application of the formula:






	 	X	 	is the percentage of Eligible Liabilities (in excess of any stated minimum)
by reference to which JPMorgan Chase Bank, N.A. (or its Applicable Lending Office) is
required under or pursuant to the Act to maintain cash ratio deposits with the Bank
of England;
	 
	 	L 	 	is the rate of interest (exclusive of Euro-Currency Margin and Mandatory
Costs Rate) payable on that day on the related Euro-Currency Loan or unpaid sum
pursuant to this Agreement;
	 
	 	F 	 	is the rate of charge payable by JPMorgan Chase Bank, N.A. (or its
Applicable Lending Office) to the FSA pursuant to the Fees Regulations and expressed
in pounds per, 1 million of its Fee Base;
	 
	 	S 	 	 is the level of interest-bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which JPMorgan Chase Bank, N.A. (or its
Applicable Lending Office) is required to maintain by the Bank of England (or other
United Kingdom governmental authorities or agencies); and
	 
	 	D 	 	is the percentage rate per annum payable by the Bank of England to such
Reference Lender on Special Deposits.




H-2











 












	 	 	 	(X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall be
counted as zero.)
	 
	 	 	 	The Mandatory Costs Rate attributable to a Euro-Currency Loan or other sum for
any period shall be calculated at or about 11:00 A.M. (London time) on the first
day of such period for the duration of such period.
	 
	 	 	 	The determination of Mandatory Costs Rate by the Administrative Agent in relation
to any period shall, in the absence of manifest error, be conclusive and binding
on all parties hereto.
	 
	 	3.	 	Change of Requirements
	 
	 	 	 	If there is any change in circumstance (including the imposition of alternative
or additional requirements) which in the reasonable opinion of the Administrative
Agent renders or will render the above formula (or any element thereof, or any
defined term used therein) inappropriate or inapplicable, the Administrative
Agent shall (with the written consent of the Company which shall not be
unreasonably withheld) be entitled to vary the same. Any such variation shall,
in the absence of manifest error, be conclusive and binding on all parties and
shall apply from the date specified in such notice.




H-3









 











EXHIBIT I — Extension Agreement




EXTENSION AGREEMENT




JPMorgan Chase Bank, N.A., as Administrative Agent

     under the Credit Agreement referred to below

270 Park Avenue

New York, New York 10017




Ladies and Gentlemen:




     Effective as of [date], the undersigned hereby agrees to extend its Commitment and the
Termination Date under the Credit Agreement dated as of February 17, 2011 (the “Credit Agreement”)
among Johnson Controls, Inc. (the “Borrower”) and the Eligible Subsidiaries referred to therein and
the Lenders thereto and JPMorgan Chase Bank, N.A., as Administrative Agent, for ____ days to
<DATE TO WHICH THE TERMINATION DATE IS TO BE EXTENDED> pursuant to Section 2.01(c) of the
Credit Agreement. Terms defined in the Credit Agreement are used herein as therein defined.



     This Extension Agreement shall be construed in accordance with and governed by the law of the
State of New York. This Extension Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.



	 	 	 	 	 
	 	[NAME OF BANK]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



I-1









 







	 	 	 	 	 
	Agreed and Accepted:



JOHNSON CONTROLS, INC.

as Borrower

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 




I-2