Exhibit 10.1


 





 


AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of April 6, 2004 and amended
and restated as of January 26, 2005,


 


among


 


CELANESE HOLDINGS LLC,


 


BCP CRYSTAL US HOLDINGS CORP.


 


and


 


THE OTHER SUBSIDIARY BORROWERS,


 


THE LENDERS PARTY HERETO,


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


as Administrative Agent,


 


DEUTSCHE BANK SECURITIES INC.


and


MORGAN STANLEY SENIOR FUNDING, INC.,


as Joint Lead Arrangers,


 


DEUTSCHE BANK SECURITIES, INC.,


MORGAN STANLEY SENIOR FUNDING, INC.


and


BANC OF AMERICA SECURITIES LLC,


as Joint Book Runners,


 


MORGAN STANLEY SENIOR FUNDING INC., 


as Syndication Agent


and


BANK OF AMERICA, N.A.,


as Documentation Agent


 




 





 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE I Definitions

  	
   

  
	
  SECTION 1.01
  Defined Terms

  	
   

  
	
  SECTION 1.02
  Terms Generally

  	
   

  
	
  SECTION 1.03
  Exchange Rates

  	
   

  
	
  SECTION 1.04
  Effectuation of Transaction

  	
   

  
	
   

  	
   

  
	
  ARTICLE II The Credits

  	
   

  
	
  SECTION 2.01
  Commitments

  	
   

  
	
  SECTION 2.02(A) Loans and Borrowings

  	
   

  
	
  SECTION 2.02(B) Credit-Linked Deposits

  	
   

  
	
  SECTION 2.03
  Requests for Borrowings

  	
   

  
	
  SECTION 2.04
  Swingline Loans

  	
   

  
	
  SECTION 2.05
  Letters of Credit

  	
   

  
	
  SECTION 2.06
  Funding of Borrowings

  	
   

  
	
  SECTION 2.07
  Interest Elections

  	
   

  
	
  SECTION 2.08
  Termination and Reduction of Commitments

  	
   

  
	
  SECTION 2.09
  Repayment of Loans; Evidence of Debt, etc.

  	
   

  
	
  SECTION 2.10
  Repayment of Term Loans

  	
   

  
	
  SECTION 2.11
  Prepayments, etc.

  	
   

  
	
  SECTION 2.12
  Fees

  	
   

  
	
  SECTION 2.13
  Interest

  	
   

  
	
  SECTION 2.14
  Alternate Rate of Interest

  	
   

  
	
  SECTION 2.15
  Increased Costs

  	
   

  
	
  SECTION 2.16
  Break Funding Payments

  	
   

  
	
  SECTION 2.17
  Taxes

  	
   

  
	
  SECTION 2.18
  Payments Generally; Pro Rata Treatment; Sharing of Set-offs

  	
   

  
	
  SECTION 2.19
  Mitigation Obligations; Replacement of Lenders

  	
   

  
	
  SECTION 2.20
  Revolving Borrowers

  	
   

  
	
  SECTION 2.21
  Additional Reserve Costs

  	
   

  
	
  SECTION 2.22
  Illegality

  	
   

  
	
   

  	
   

  
	
  ARTICLE III Representations and
  Warranties

  	
   

  
	
  SECTION 3.01
  Organization; Powers

  	
   

  
	
  SECTION 3.02
  Authorization

  	
   

  
	
  SECTION 3.03
  Enforceability

  	
   

  
	
  SECTION 3.04
  Governmental Approvals

  	
   

  
	
  SECTION 3.05
  Financial Statements

  	
   

  
	
  SECTION 3.06
  No Material Adverse Effect

  	
   

  
	
  SECTION 3.07
  Title to Properties; Possession Under Leases

  	
   

  
	
  SECTION 3.08
  Subsidiaries

  	
   

  
	
  SECTION 3.09
  Litigation; Compliance with Laws

  	
   

  
	
  SECTION 3.10
  Federal Reserve Regulations

  	
   

  



 


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  SECTION 3.11
  Investment Company Act; Public Utility Holding Company Act

  	
   

  
	
  SECTION 3.12
  Use of Proceeds

  	
   

  
	
  SECTION 3.13
  Tax Returns

  	
   

  
	
  SECTION 3.14
  No Material Misstatements

  	
   

  
	
  SECTION 3.15
  Employee Benefit Plans

  	
   

  
	
  SECTION 3.16
  Environmental Matters

  	
   

  
	
  SECTION 3.17
  Security Documents

  	
   

  
	
  SECTION 3.18
  Location of Real Property and Leased Premises

  	
   

  
	
  SECTION 3.19
  Solvency

  	
   

  
	
  SECTION 3.20
  Labor Matters

  	
   

  
	
  SECTION 3.21
  Insurance

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV Conditions of Lending

  	
   

  
	
  SECTION 4.01
  All Credit Events

  	
   

  
	
  SECTION 4.02
  Credit Events Relating to Revolving Borrowers

  	
   

  
	
  SECTION 4.03
  Credit Events Relating to Bidco as DD Borrower

  	
   

  
	
   

  	
   

  
	
  ARTICLE V Affirmative Covenants

  	
   

  
	
  SECTION 5.01
  Existence; Businesses and Properties

  	
   

  
	
  SECTION 5.02
  Insurance

  	
   

  
	
  SECTION 5.03
  Taxes

  	
   

  
	
  SECTION 5.04
  Financial Statements, Reports, etc.

  	
   

  
	
  SECTION 5.05
  Litigation and Other Notices

  	
   

  
	
  SECTION 5.06
  Compliance with Laws

  	
   

  
	
  SECTION 5.07
  Maintaining Records; Access to Properties and Inspections

  	
   

  
	
  SECTION 5.08
  Use of Proceeds

  	
   

  
	
  SECTION 5.09
  Compliance with Environmental Laws

  	
   

  
	
  SECTION 5.10
  Further Assurances; Additional Mortgages

  	
   

  
	
  SECTION 5.11
  Fiscal Year; Accounting

  	
   

  
	
  SECTION 5.12
  Interest Rate Protection Agreements

  	
   

  
	
  SECTION 5.13
  Proceeds of Certain Dispositions

  	
   

  
	
  SECTION 5.14
  Post-Closing Matters

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI Negative Covenants

  	
   

  
	
  SECTION 6.01
  Indebtedness

  	
   

  
	
  SECTION 6.02
  Liens

  	
   

  
	
  SECTION 6.03
  Sale and Lease-Back Transactions

  	
   

  
	
  SECTION 6.04
  Investments, Loans and Advances

  	
   

  
	
  SECTION 6.05
  Mergers, Consolidations, Sales of Assets and Acquisitions

  	
   

  
	
  SECTION 6.06
  Dividends and Distributions

  	
   

  
	
  SECTION 6.07
  Transactions with Affiliates

  	
   

  
	
  SECTION 6.08
  Business of Holdings and the Subsidiaries

  	
   

  
	
  SECTION 6.09
  Limitation on Modifications and Prepayments

  	
   

  
	
  SECTION 6.10
  Capital Expenditures

  	
   

  
	
  SECTION 6.11
  Interest Coverage Ratio

  	
   

  



 


ii





















 


	
  SECTION 6.12
  Total Leverage Ratio

  	
   

  
	
  SECTION 6.13
  Swap Agreements

  	
   

  
	
  SECTION 6.14
  No Other “Designated Senior Indebtedness”

  	
   

  
	
  SECTION 6.15
  Limitation on the Lenders’ Control over German Entities

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII Events of Default

  	
   

  
	
  SECTION 7.01
  Events of Default

  	
   

  
	
  SECTION 7.02
  Holdings’ Right to Cure

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII The Agents

  	
   

  
	
  SECTION 8.01
  Appointment

  	
   

  
	
  SECTION 8.02
  Nature of Duties

  	
   

  
	
  SECTION 8.03
  Resignation by the Agents

  	
   

  
	
  SECTION 8.04
  The Administrative Agent in Its Individual Capacity

  	
   

  
	
  SECTION 8.05
  Indemnification

  	
   

  
	
  SECTION 8.06
  Lack of Reliance on Agents

  	
   

  
	
  SECTION 8.07
  Designation of Affiliates for Loans Denominated in Euros

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX Miscellaneous

  	
   

  
	
  SECTION 9.01
  Notices

  	
   

  
	
  SECTION 9.02
  Survival of Agreement

  	
   

  
	
  SECTION 9.03
  Binding Effect

  	
   

  
	
  SECTION 9.04
  Successors and Assigns

  	
   

  
	
  SECTION 9.05
  Expenses; Indemnity

  	
   

  
	
  SECTION 9.06
  Right of Set-off

  	
   

  
	
  SECTION 9.07
  Applicable Law

  	
   

  
	
  SECTION 9.08
  Waivers; Amendment

  	
   

  
	
  SECTION 9.09
  Interest Rate Limitation

  	
   

  
	
  SECTION 9.10
  Entire Agreement

  	
   

  
	
  SECTION 9.11
  WAIVER OF JURY TRIAL

  	
   

  
	
  SECTION 9.12
  Severability

  	
   

  
	
  SECTION 9.13
  Counterparts

  	
   

  
	
  SECTION 9.14
  Headings

  	
   

  
	
  SECTION 9.15
  Jurisdiction; Consent to Service of Process

  	
   

  
	
  SECTION 9.16
  Confidentiality

  	
   

  
	
  SECTION 9.17
  Conversion of Currencies

  	
   

  
	
  SECTION 9.18
  Release of Liens and Guarantees

  	
   

  
	
  SECTION 9.19
  Parallel Debt

  	
   

  
	
   

  	
   

  
	
  ARTICLE X Collection Allocation
  Mechanism

  	
   

  
	
  SECTION 10.01 Implementation of CAM

  	
   

  
	
  SECTION 10.02 Letters of Credit

  	
   

  



 


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Exhibits and Schedules


 


	
  Exhibit A

  	
  Form of
  Assignment and Acceptance

  
	
  Exhibit B-1

  	
  Form of
  Borrowing Request

  
	
  Exhibit B-2

  	
  Form of
  Request To Issue

  
	
  Exhibit C

  	
  Form of
  Swingline Borrowing Request

  
	
  Exhibit D

  	
  Form of
  Bidco Pledge

  
	
  Exhibit E

  	
  Form of Real
  Property Officers’ Certificate

  
	
  Exhibit F

  	
  Form of
  Subordinated Intercompany Debt

  
	
  Exhibit G-1

  	
  Form of
  Revolving Borrower Agreement

  
	
  Exhibit G-2

  	
  Form of Revolving
  Borrower Termination

  
	
  Exhibit H

  	
  Reserve
  Costs for Mandatory Costs Rate

  
	
   

  	
   

  
	
  Schedule 1.01(a)

  	
  Collateral
  and Guarantee Requirements

  
	
  Schedule 1.01(h)

  	
  Excluded
  Subsidiaries

  
	
  Schedule 2.01

  	
  Commitments

  
	
  Schedule 2.04

  	
  Swingline
  Commitments

  
	
  Schedule 3.01

  	
  Organization

  
	
  Schedule 3.04

  	
  Governmental
  Approvals

  
	
  Schedule 3.08(a)

  	
  Restatement
  Effective Date Structure

  
	
  Schedule 3.08(b)

  	
  Subsidiaries

  
	
  Schedule 3.08(c)

  	
  Subscriptions

  
	
  Schedule 3.09

  	
  Litigation

  
	
  Schedule 3.13

  	
  Taxes

  
	
  Schedule 3.16

  	
  Environmental

  
	
  Schedule 3.20

  	
  Labor
  Matters

  
	
  Schedule 3.21

  	
  Insurance

  
	
  Schedule 5.14

  	
  Post-Closing
  Matters

  
	
  Schedule 6.01

  	
  Indebtedness

  
	
  Schedule 6.02(a)

  	
  Liens

  
	
  Schedule 6.04

  	
  Investments

  
	
  Schedule 6.07

  	
  Transactions
  with Affiliates

  



 


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AMENDED AND RESTATED
CREDIT AGREEMENT dated as of April 6, 2004 and amended and restated as of January 26,
2005 (this “Agreement”), among CELANESE HOLDINGS LLC, a Delaware limited
liability company (“Holdings”), BCP CRYSTAL US HOLDINGS CORP., a
Delaware corporation (the “Company”), CELANESE AMERICAS CORPORATION, a
Delaware corporation (“CAC”), certain other subsidiaries of the Company
from time to time party hereto as a borrower, the LENDERS party hereto from
time to time, DEUTSCHE BANK AG, NEW YORK BRANCH (“DBNY”), as
administrative agent (in such capacity, the “Administrative Agent”), and
as collateral agent (in such capacity, the “Collateral Agent”), MORGAN STANLEY
SENIOR FUNDING, INC., as syndication agent (in such capacity, the “Syndication
Agent”), BANK OF AMERICA, N.A., as documentation agent (in such capacity,
the “Documentation Agent”) and DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH,
as Deposit Bank (in such capacity, the “Deposit Bank”).


 


W I T N E S S E T H :


 


WHEREAS, Holdings, the
Company, CAC and certain lenders are parties to a Credit Agreement, dated as of
April 6, 2004 (as in effect on the date immediately prior to the
Restatement Effective Date, the “Original Credit Agreement”);


 


NOW, THEREFORE, the
Company and the Lenders desire to amend and restate the Original Credit
Agreement and the Lenders are willing to extend additional senior secured
credit to Borrowers on the terms and subject to the conditions set forth
herein.  Accordingly, the parties hereto
agree as follows:


 


ARTICLE I


 


Definitions


 


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


 


“ABR Borrowing”
shall mean a Borrowing comprised of ABR Loans.


 


“ABR CL Loan”
shall mean any CL Loan bearing interest at a rate determined by reference to
the Alternate Base Rate in accordance with the provisions of Article II.


 


“ABR Loan” shall
mean any ABR Term Loan, ABR Revolving Loan, ABR CL Loan or Swingline Dollar
Loan.


 


“ABR Revolving
Borrowing” shall mean a Borrowing comprised of ABR Revolving Loans.


 


“ABR Revolving Loan”
shall mean any Revolving Facility Loan denominated in Dollars bearing interest
at a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II.


 





















 


“ABR Term Loan”
shall mean any Dollar Term Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of Article II.


 


“Acetex Acquisition”
shall mean the acquisition of Acetex Corporation, a Canadian corporation, for
approximately $261 million and the assumption of approximately $231 million of
outstanding debt.


 


“Additional Mortgage”
shall have the meaning assigned to such term in Section 5.10(c).


 


“Adjusted LIBO Rate”
shall mean, with respect to any Eurocurrency Borrowing for any Interest Period,
an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the result of dividing (a) the LIBO Rate in effect for such
Interest Period by (b) 1.00 minus the Statutory Reserves applicable to such Eurocurrency
Borrowing, if any.


 


“Administrative Agent”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Administrative Agent
Fees” shall have the meaning assigned to such term in Section 2.12(d).


 


“Affiliate” shall
mean, when used 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 the person specified.


 


“Agents” shall
mean DBNY, Morgan Stanley and Bank of America, N.A.


 


“Agreed Exchange Rate”
shall mean 1.21523.


 


“Agreement” shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.


 


“Agreement Currency”
shall have the meaning assigned to such term in Section 9.17(b).


 


“Agreement to Amend”
shall mean Agreement to Amend and Restate, dated as of January 26,
2005, among the Company and the Lenders party thereto.


 


“Alternate Base Rate”
shall mean, for any day, a rate per annum equal to the greater of (a) the Prime
Rate and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%.  If for any reason the Administrative
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective
Rate, including the failure of the Federal Reserve Bank of New York to publish
rates or the inability of the Administrative Agent to obtain quotations in
accordance with the terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) of the preceding sentence until the circumstances
giving rise to such inability no longer exist. 
Any change in the


 


2





















 


Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective date of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.


 


“Alternate Pledge
Agreement” shall mean a pledge agreement in form and substance reasonably
satisfactory to the Administrative Agent and the Company effecting the pledge
under local law of not in excess of 65% of the issued and outstanding Equity
Interests of a Foreign Subsidiary in support of the obligations of the Domestic
Subsidiary Loan Party which is the owner of such Equity Interests.


 


“Applicable CL Margin”
shall mean, at any time (x) for any day not in a Reduction Period, 2.50% per
annum and (y) for any day in a Reduction Period, 2.25%.


 


“Applicable Creditor”
shall have the meaning assigned to such term in Section 9.17(b).


 


“Applicable Margin”
shall mean with respect to (A) (i) any Eurocurrency Loan that is a Revolving
Facility Loan (x) for any day not occurring in a Reduction Period, 2.50% per
annum and (y) for any day occurring in a Reduction Period, 2.25% per annum, and
(ii) any ABR Loan that is a Revolving Facility Loan (x) for any day not
occurring in a Reduction Period, 1.50% per annum and (y) for any day occurring
in a Reduction Period, 1.25% per annum and (B) (i) any Term Loan for any day
from the Restatement Effective Date to the last day of the first fiscal quarter
ending after the Restatement Effective Date (the “First Quarter End Date”),
2.50% per annum (1.50% per annum if ABR Loans), (ii) any Term Loan that is a
Eurocurrency Loan (x) for any day occurring after the First Quarter End Date
and not in a Reduction Period, 2.50% per annum and (y) for any day occurring
after the First Quarter End Date and in a Reduction Period, 2.25% per annum and
(iii) any Term Loan that is an ABR Loan (x) for any day occurring after the
First Quarter End Date and not in a Reduction Period, 1.50% per annum and (y)
for any day occurring after the First Quarter End Date and in a Reduction
Period, 1.25% per annum.


 


“Applicant Party”
shall mean, with respect to a Letter of Credit, the Borrower for whose account
such Letter of Credit is being issued (with all CL Letters of Credit to be
issued for the account of the CL Borrower).


 


“Approved Fund”
shall mean any person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit
in the ordinary course and that is administered, managed or advised by a
Lender, an Affiliate of a Lender or an entity (including an investment advisor)
or an Affiliate of such entity that administers, manages or advises a Lender.


 


“Asset Acquisition”
shall mean any Permitted Business Acquisition, the aggregate consideration for
which exceeds $15.0 million, and, if effected, each Designated Acquisition.


 


“Asset Disposition”
shall mean any sale, transfer or other disposition by Holdings or any of the
Subsidiaries to any person other than Holdings or any Subsidiary to the extent
otherwise permitted hereunder of any asset or group of related assets (other
than inventory or


 


3





















 


other assets sold,
transferred or otherwise disposed of in the ordinary course of business) in one
or a series of related transactions, the Net Proceeds from which exceed $35.0
million.


 


“Assignment and Acceptance”
shall mean an assignment and acceptance entered into by a Lender and an
assignee, and accepted by the Administrative Agent and the Company (if required
by such assignment and acceptance), substantially in the form of Exhibit A
or such other form as shall be approved by the Administrative Agent.


 


“Available Investment
Basket Amount” shall mean, on any date of determination, an amount equal to
(a) the Cumulative Retained Excess Cash Flow Amount on such date plus the
aggregate amount of proceeds received after the Original Closing Date and prior
to such date that would have constituted Net Proceeds pursuant to clause (a) of
the definition thereof except for the operation of clause (x) or (y) of the
second proviso thereof, minus (b) any amounts thereof used to make Investments
pursuant to Section 6.04(b), clause (ii) of Section 6.04(l) and/or
clause (iii) of Section 6.04(m) after the Original Closing Date and on or
prior to such date, minus (c) the aggregate amount of Capital Expenditures made
after the Original Closing Date and on or prior to such date pursuant to Section 6.10(c).


 


“Available Revolving
Unused Commitment” shall mean, with respect to a Revolving Facility Lender
at any time, an amount equal to the amount by which (a) the Revolving Facility
Commitment of such Revolving Facility Lender at such time exceeds (b) the
Revolving Facility Credit Exposure of such Revolving Facility Lender at such
time.


 


“Bidco” shall mean
Celanese Europe Holding GmbH & Co. KG, a German limited partnership.


 


“Bidco Pledge”
shall mean a pledge agreement substantially in the form of Exhibit D hereto, as
amended, supplemented or otherwise modified from time to time, pledging the
Equity Interests of CAG owned by Bidco to secure the C Term Loans incurred by
Bidco, to be executed and delivered by Bidco if Bidco is designated as the DD
Borrower.


 


“Blackstone” shall
mean The Blackstone  Group and its
affiliates or any other investment vehicle controlled by any of them.


 


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


 


“Borrower” shall
mean and include (i) the Company, as the sole borrower under the B Term Loan
Facility, a CL Borrower, a Revolving Borrower and if so designated, the DD
Borrower, (ii) Bidco as the DD Borrower if so designated, (iii) CAC as a CL
Borrower and as a Revolving Borrower and (iv) each other subsidiary that is
designated as a Revolving Borrower.


 


“Borrowing” shall
mean a group of Loans of a single Type under a single Facility and made on a
single date and, in the case of Eurocurrency Loans, as to which a single
Interest Period is in effect.


 


4





















 


“Borrowing Minimum”
shall mean (a) in the case of a CL Borrowing, a Term Borrowing and/or a
Revolving Facility Borrowing denominated in Dollars, $5.0 million, (b) in the
case of a Term Borrowing or Revolving Facility Borrowing denominated in Euros,
€3.0 million, (c) in the case of a Swingline Dollar Borrowing, $500,000 and (d)
in the case of a Swingline Euro Borrowing, €500,000.


 


“Borrowing Multiple”
shall mean (a) in the case of a CL Borrowing, a Term Borrowing or a Revolving
Facility Borrowing denominated in Dollars, $1.0 million, (b) in the case of a
Term Borrowing or Revolving Facility Borrowing denominated in Euros, €600,000,
(c) in the case of a Swingline Dollar Borrowing, $500,000 and (d) in the case
of a Swingline Euro Borrowing, €500,000.


 


“Borrowing Request”
shall mean a request by a Borrower in accordance with the terms of Section 2.03
and substantially in the form of Exhibit B-1.


 


“B Term Loan Facility”
shall mean and include (i) the commitments under Section 2.01(a)(i) to
continue Term Loans outstanding under the Original Credit Agreement immediately
prior to the Restatement Effective Date as B Term Loans hereunder, and the B
Term Loans continued pursuant thereto, and (ii) the commitments under Section 2.01(a)(ii)
to make B Term Loans on the Restatement Effective Date, and the B Term Loans
made pursuant thereto.  If the Company is
the DD Borrower, on the DD Termination Date the B Term Loan Facility shall
terminate and be subsumed in the Term Loan Facility.


 


“B Term Loans”
shall mean (x) the Term Loans continued, or made, on the Restatement Effective
Date pursuant to Section 2.01(a) of which up to €250 million shall
constitute Euro Term Loans and the remainder Dollar Term Loans and (y) the C
Term Loans, if any, converted into B Term Loans on the DD Termination Date
pursuant to Section 2.01(b).


 


“Business Day”
shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain
closed; provided that (a) when used in connection with a Eurocurrency
Loan, the term “Business Day” shall also exclude any day on which banks are not
open for dealings in deposits in the applicable currency in the London
interbank market and (b) when used in connection with a Loan denominated in
Euros, the term “Business Day” shall also exclude any day on which the TARGET
payment system is not open for the settlement of payments in Euros.


 


“CAC” shall have the meaning assigned to such term
in the introductory paragraph of this Agreement.


 


“CAG” shall mean
Celanese AG, a company organized under the laws of Germany.


 


“Calculation Date”
shall mean (a) the last Business Day of each calendar month, (b) each date
(with such date to be reasonably determined by the Administrative Agent) that
is on or about the date of (i) a Borrowing Request or an Interest Election
Request with respect to any Revolving Facility Loan denominated in Euros, (ii)
the issuance of a Euro Letter of Credit or (iii)


 


5





















 


a request for a
Swingline Euro Borrowing and (c) if an Event of Default under Section 7.01(b)
or (c) has occurred and is continuing, any Business Day as determined by the
Administrative Agent in its sole discretion.


 


“CAM” shall mean
the mechanism for the allocation and exchange of interests in the Loans,
participations in Letters of Credit and collections thereunder established
under Article X.


 


“CAM Exchange”
shall mean the exchange of the Lenders’ interests provided for in Section 10.01.


 


“CAM Exchange Date”
shall mean the first date after the Restatement Effective Date on which there
shall occur (a) any event described in paragraph (h) or (i) of Section 7.01
with respect to any Borrower or (b) an acceleration of Loans pursuant to Section 7.01.


 


“CAM Percentage”
shall mean, as to each Lender, a fraction, expressed as a decimal, of which (a)
the numerator shall be the sum of (i) the Dollar Equivalent, determined using
the Exchange Rates calculated as of the CAM Exchange Date, of the aggregate
Obligations owed to such Lender, (ii) the Revolving L/C Exposure, if any, of
such Lender (less unreimbursed L/C Disbursements included therein), (iii) the
CL L/C Exposure, if any, of such Lender (less unreimbursed L/C Disbursements
included therein) and (iv) the Swingline Exposure, if any, of such Lender, in
each case immediately prior to the CAM Exchange Date, and (b) the denominator
shall be the sum of (i) the Dollar Equivalent, determined using the Exchange
Rates calculated as of the CAM Exchange Date, of the aggregate Obligations owed
to all the Lenders, (ii) the aggregate Revolving L/C Exposure of all the
Lenders (less unreimbursed L/C Disbursements included therein) and (iii) the
aggregate CL L/C Exposure of all the Lenders (less unreimbursed L/C
Disbursements included therein), in each case immediately prior to the CAM
Exchange Date; provided that, for purposes of clause (a) above, the
Obligations owed to a Swingline Lender will be deemed not to include any
Swingline Loans except to the extent provided in clause (a)(iii) above.


 


“CAMI” shall mean
Celanese Advanced Materials, Inc.


 


“CAMI Sale” shall
mean the sale in one or more transactions of all or any portion of the Equity
Interests of, or assets of, CAMI (including trademarks for CAMI businesses by
whomsoever held).


 


“Capital Expenditures”
shall mean, for any person in respect of any period, the aggregate of all
expenditures incurred by such person during such period that, in accordance
with US GAAP, are or should be included in “additions to property, plant or
equipment” or similar items reflected in the statement of cash flows of such
person, provided, however, that Capital Expenditures for Holdings
and the Subsidiaries shall not include:


 


(a)                                  expenditures to the extent they are made
with proceeds of the issuance of Equity Interests of Holdings after the
Original Closing Date to Blackstone or any other Permitted Investor or with
funds that would have constituted Net Proceeds under clause


 


6





















 


(a) of the
definition of the term “Net Proceeds” (but that will not constitute Net
Proceeds as a result of the first proviso to such clause (a)),


 


(b)                                 expenditures of proceeds of insurance
settlements, condemnation awards and other settlements in respect of lost,
destroyed, damaged or condemned assets, equipment or other property to the
extent such expenditures are made, or a binding contract is or has been entered
into to make such expenditures, to replace or repair such lost, destroyed, damaged
or condemned assets, equipment or other property or otherwise to acquire,
maintain, develop, construct, improve, upgrade or repair assets or properties
useful in the business of the Company and the Subsidiaries within 12 months of
receipt of such proceeds,


 


(c)                                  interest capitalized during such period,


 


(d)                                 expenditures that are accounted for as
capital expenditures of such person and that actually are paid for by a third
party (excluding Holdings or any Subsidiary thereof) and for which neither
Holdings nor any Subsidiary thereof has provided or is required to provide or
incur, directly or indirectly, any consideration or obligation to such third
party or any other person (whether before, during or after such period),


 


(e)                                  the book value of any asset owned by such
person prior to or during such period to the extent that such book value is
included as a capital expenditure during such period as a result of such person
reusing or beginning to reuse such asset during such period without a
corresponding expenditure actually having been made in such period, provided
that any expenditure necessary in order to permit such asset to be reused shall
be included as a Capital Expenditure during the period that such expenditure
actually is made,


 


(f)                                    the purchase price of equipment purchased
during such period to the extent the consideration therefor consists of any
combination of (i) used or surplus equipment traded in at the time of such
purchase and (ii) the proceeds of a concurrent sale of used or surplus equipment,
in each case, in the ordinary course of business,


 


(g)                                 Investments in respect of a Permitted
Business Acquisition, or


 


(h)                                 the purchase price of equipment that is
purchased substantially contemporaneously with the trade-in of existing
equipment to the extent that the gross amount of such purchase price is reduced
by the credit granted by the seller of such equipment for the equipment being
traded in at such time.


 


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


 


7





















 


“Captive Insurance
Subsidiaries” shall mean Celwood Insurance Company and Elwood Insurance
Limited, and any successor to either thereof to the extent such successor
constitutes a Subsidiary.


 


“Cash Interest Expense”
shall mean, with respect to Holdings and the Subsidiaries on a consolidated
basis for any period, Interest Expense for such period, less the sum of (a)
pay-in-kind Interest Expense or other noncash Interest Expense (including as a
result of the effects of purchase accounting), (b) to the extent included in
Interest Expense, the amortization of any financing fees paid by, or on behalf
of, Holdings or any Subsidiary, including such fees paid in connection with the
Transaction, (c) the amortization of debt discounts, if any, or fees in respect
of Swap Agreements, (d) the amortization of any deferred financing costs in
respect of the Luxco CPECs and (e) cash interest income of Holdings and its
Subsidiaries for such period; provided that Cash Interest Expense shall
exclude any financing fees paid in connection with the Transaction (or any
refinancing of any Indebtedness incurred in connection therewith to the extent
that such financing fees are paid with the proceeds from such refinancing
Indebtedness) or any amendment of this Agreement or upon entering into a
Permitted Receivables Financing.


 


A “Change in Control”
shall be deemed to occur if:


 


(a)                                  at any time, (i) Parent shall fail to
own, directly or indirectly, beneficially and of record, 100% of the issued and
outstanding Equity Interests of Holdings, (ii) Holdings shall fail to own,
directly or indirectly, beneficially and of record, 100% of the issued and
outstanding Equity Interests of the Company, (iii) until and unless the Company
is designated as the DD Borrower, the Company shall fail to own, directly or
indirectly, beneficially and of record 100% of the issued and outstanding
Equity Interests of Bidco, (iv) the Company or, until and unless the Company is
designated as the DD Borrower, Bidco shall fail to own directly or indirectly,
beneficially and of record (x) prior to any Squeeze-Out, 80% and (y) after any
Squeeze-Out, 100% of the issued and outstanding Equity Interests (but excluding
any rights to purchase, warrants or options outstanding on the Original Closing
Date or granted thereafter but prior to the effectiveness of the Domination
Agreement and all shares acquired upon the exercise thereof) of CAG, in each
case excluding any treasury shares held by CAG, (v) a majority of the seats
(other than vacant seats) on the board of directors of Holdings shall at any time
be occupied by persons who were neither (A) nominated by the board of directors
of Holdings, a Parent Company or a Permitted Holder, (B) appointed by directors
so nominated nor (C) appointed by a Parent Company or Permitted Holder or (vi)
a “Change in Control” shall occur under the Senior Subordinated Note Indenture
or under any Permitted Senior Subordinated Debt Securities; or


 


(b)                                 any person or group (within the meaning
of Rule 13d-5 of the Exchange Act as in effect on the Restatement Effective
Date), other than any combination of the Permitted Holders, shall own
beneficially (within the meaning of such Rule), directly or indirectly, in the
aggregate Equity Interests representing 35% or more of the aggregate ordinary
voting power represented by the issued and outstanding Equity Interests of
Parent, and the Permitted Holders own beneficially (as defined above), directly
or


 


8





















 


indirectly, a
smaller percentage of such ordinary voting power at such time than the Equity
Interests owned by such other person or group.


 


“Change in Law”
shall mean (a) the adoption of any law, rule or regulation after the
Restatement Effective Date, (b) any change in law, rule or regulation or in the
official interpretation or application thereof by any Governmental Authority
after the Restatement Effective Date or (c) compliance by any Lender or Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such
Lender or by such Lender’s or Issuing Bank’s holding company, if any) with any
written request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the Restatement
Effective Date.


 


“Charges” shall
have the meaning assigned to such term in Section 9.09.


 


“CL Availability
Period” shall mean the period from and including the Restatement Effective
Date to but excluding the Revolving Facility Maturity Date and in the case of
each CL Loan, CL Credit Event and CL Letter of Credit, the date of termination
of the Total Credit-Linked Commitment.


 


“CL Borrower”
shall mean either CAC or the Company (whomsoever of the two is designated in
the applicable Borrowing Request or Request to Issue).


 


“CL Borrowing”
shall mean a Borrowing comprised of CL Loans.


 


“CL Credit Event”
shall mean and include (i) the incurrence of a CL Loan and (ii) the issuance of
a CL Letter of Credit.


 


“CL Exposure”
shall mean at any time the sum of (a) the aggregate outstanding principal
amount of all CL Loans at such time plus (b) the CL L/C Exposure of all CL
Lenders at such time.  The CL Exposure of
any CL Lender at any time shall mean its CL Percentage of the aggregate CL
Exposure at such time.


 


“CL Facility”
shall mean the Credit-Linked Commitments and the CL Loans made hereunder and
the CL Letters of Credit issued hereunder.


 


“CL Facility Fee”
shall have the meaning provided in Section 2.12(b).


 


“CL Interest Payment
Date” shall mean (i) in the case of the first CL Interest Payment Date, the
last day of the third Interest Period applicable to Credit-Linked Deposits
occurring after the Original Closing Date and (ii) the last day of every third
Interest Period applicable to Credit-Linked Deposits to occur thereafter.


 


“CL L/C Exposure”
shall mean at any time the sum of (a) the aggregate undrawn amount of all CL
Letters of Credit denominated in Dollars outstanding at such time, (b) the
Dollar Equivalent of the aggregate undrawn amount of all CL Letters of Credit
denominated in Euros outstanding at such time, (c) the aggregate principal
amount of all Dollar L/C Disbursements made in respect of CL Letters of Credit
that have not yet been reimbursed at such time and (d) the Dollar Equivalent of
the aggregate principal amount of all Euro L/C Disbursements made


 


9





















 


in respect of CL
Letters of Credit that have not yet been reimbursed at such time.  The CL L/C Exposure of any CL Lender at any
time shall mean its CL Percentage of the aggregate CL L/C Exposure at such
time.


 


“CL Lender” shall
mean each Lender having a Credit-Linked Commitment (or, to the extent
terminated, an outstanding Credit-Linked Deposit).


 


“CL Letter of Credit”
shall mean each Letter of Credit designated as such in Schedule 2.05(a),
in the relevant Request to Issue or as provided in Section 2.05.


 


“CL Loan” shall mean a Loan made by a CL
Lender pursuant to Section 2.01(d). 
Each CL Loan shall be denominated in Dollars and shall be a Eurocurrency
Loan or an ABR Loan.


 


“CL Percentage”, with respect to any CL Lender at any time,
shall mean a fraction (expressed as a percentage) the numerator of which is the
Credit-Linked Commitment of such CL Lender at such time and the denominator of which
is the Total Credit-Linked Commitment at such time, provided that if
the CL Percentage of any CL Lender is to be determined after the Total Credit-Linked Commitment has been
terminated, then the CL Percentage of such CL Lender shall be determined
immediately prior (and without giving effect) to such termination.


 


“CL Reserve Account”
shall have the meaning assigned to such term in Section 10.02(a).


 


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


 


“Collateral” shall
mean all the “Collateral” as defined in any Security Document and shall also
include the Mortgaged Properties.


 


“Collateral Agent”
shall have the meaning given such term in the introductory paragraph of this
Agreement.


 


“Collateral and
Guarantee Requirements” shall mean the requirements that:


 


(a)                                  as
of the Restatement Effective Date, (i) the amendments to all the Loan Documents
required by the Agreement to Amend shall have been executed and delivered by
the parties thereto,
and, except as otherwise provided in clause (h) below, all Liens created under
the Loan Documents as so amended shall have been perfected (and
all actions required by clauses (e) and (g) below with respect to such Liens
shall have been effected);


 


(b)                                 in the case of (i) Bidco, if Bidco is the
DD Borrower, prior to the initial incurrence of C Term Loans by Bidco, (x) the
Administrative Agent shall have received a counterpart of the Bidco Pledge
executed by Bidco and (y) all actions required by clause (e) below with respect
to such pledge shall have been taken or (ii) any Person that is a


 


10





















 


Foreign Revolving
Borrower, the Administrative Agent shall have received, unless it has waived
such requirement for such Foreign Revolving Borrower (for reasons of cost,
legal limitations or such other matters as deemed appropriate by the
Administrative Agent), a counterpart of a Foreign Pledge Agreement by the
direct parent company of such Foreign Revolving Borrower with respect to all of
the Equity Interests owned by such parent company in such Foreign Revolving
Borrower, provided that the Equity Interests of a Foreign Revolving
Borrower shall not have to be so pledged if such pledge would result in
materially adverse tax or legal consequences to Holdings and its Subsidiaries
(as determined by Holdings in good faith);


 


(c)                                  in the case of any Person that becomes a
Domestic Subsidiary Loan Party after the Restatement Effective Date, the
Collateral Agent shall have received (i) a Supplement to the U.S. Collateral
Agreement duly executed and delivered on behalf of such Person and (ii) if such
Person owns Equity Interests of a Foreign Subsidiary organized in Germany or
Luxembourg that, as a result the law of any such jurisdiction of organization
of such Foreign Subsidiary, cannot be pledged under local applicable law to the
Collateral Agent under the U.S. Collateral Agreement, a counterpart of an
Alternate Pledge Agreement with respect to such Equity Interests (provided that
in no event shall more than 65% of the issued and outstanding Equity Interests
of any Foreign Subsidiary be pledged to secure Obligations of Domestic Loan
Parties), duly executed and delivered on behalf of such Subsidiary;


 


(d)                                 subject to Section 5.10(g) and the
definition of the Holdings Agreement, all the Equity Interests that are
acquired by a Loan Party (other than a Foreign Revolving Borrower) after the
Restatement Effective Date shall be pledged pursuant to the U.S. Collateral
Agreement or the Holdings Agreement, as the case may be, or, to the extent
representing Equity Interests in a Foreign Revolving Borrower, a Foreign Pledge
Agreement, as applicable (provided that in no event shall more than 65% of the
issued and outstanding Equity Interests of any Foreign Subsidiary be pledged to
secure Obligations of Domestic Loan Parties);


 


(e)                                  the Collateral Agent shall have received
all certificates or other instruments (if any) representing all Equity
Interests required to be pledged pursuant to any of the foregoing paragraphs,
together with stock powers or other instruments of transfer with respect
thereto endorsed in blank, in each case to the extent reasonably requested by
counsel to the Lenders, or such other action shall have been taken as required
under applicable law to perfect a security interest in such Equity Interests as
reasonably requested by counsel to the Lenders;


 


(f)                                    all Indebtedness of Holdings and each
Subsidiary having an aggregate principal amount that has a Dollar Equivalent in
excess of $10.0 million (other than intercompany current liabilities incurred
in the ordinary course of business) that is owing to any Domestic Loan Party
shall be evidenced by a promissory note or an instrument and shall have been
pledged pursuant to the U.S. Collateral Agreement, and the Collateral Agent
shall have received all such promissory notes or instruments, together with
note powers or other instruments of transfer with respect thereto endorsed in
blank;


 


11





















 


(g)                                 all documents and instruments, including
Uniform Commercial Code financing statements, required by law or reasonably
requested by the Collateral Agent to be filed, registered or recorded to create
the Liens intended to be created by the Security Documents (in each case,
including any supplements thereto) and perfect such Liens to the extent
required by, and with the priority required by, the Security Documents, shall
have been filed, registered or recorded or delivered to the Collateral Agent
for filing, registration or the recording concurrently with, or promptly
following, the execution and delivery of each such Security Document;


 


(h)                                 the Collateral Agent shall have received
within the time periods specified on Schedule 5.14, (i)
counterparts of each amendment to each Existing Mortgage with respect to each
Mortgaged Property subject thereto duly executed and delivered by the record
owner of such Mortgaged Property, (ii) an amendment to, or a revised, policy or
policies of title insurance, paid for by CAC, issued by a nationally recognized
title insurance company insuring (subject to any survey exception for the
Mortgaged Property located in Narrows, Virginia) the Lien of each Existing
Mortgage as a valid first Lien on the Mortgaged Property described therein,
free of any other Liens except as permitted by Section 6.02 and Liens
arising by operation of law, together with such endorsements, coinsurance and
reinsurance as the Collateral Agent may reasonably request, (iii) except for
the Mortgaged Property located in Narrows, Virginia, and, otherwise only to the
extent required to obtain the amended title policy insurance referred to in
clause (ii) above, a survey of each Mortgaged Property subject to an Existing
Mortgage (and all improvements thereon) which is (1) dated (or redated) not
earlier than six months prior to the date of delivery thereof unless there
shall have occurred within six months prior to such date of delivery any
exterior construction on the site of such Mortgaged Property, in which event
such survey shall be dated (or redated) after the completion of such
construction or if such construction shall not have been completed as of such
date of delivery, not earlier than 20 days prior to such date of delivery, (2)
certified by the surveyor (in a manner reasonably acceptable to the
Administrative Agent) to the Administrative Agent, the Collateral Agent and the
title insurance company insuring the Mortgage, (3) complying in all respects
with the minimum detail requirements of the American Land Title Association as
such requirements are in effect on the date of preparation of such survey and
(4) sufficient for such title insurance company to remove all standard survey
exceptions from the title insurance policy relating to such Mortgaged Property
or otherwise reasonably acceptable to the Collateral Agent, (iv) such legal
opinions and other documents as the Collateral Agent may reasonably request with
respect to any such amended Mortgage or Mortgaged Property and (v) a Real
Property Officers’ Certificate substantially in the form of Exhibit E
attached hereto with respect to each Mortgaged Property subject to an Existing
Mortgage; and


 


(i)                                     each Loan Party shall have obtained all
material consents and approvals required to be obtained by it in connection
with (A) the execution, delivery and performance of all Security Documents (or
supplements thereto) to which it is a party and (B) the granting by it of the
Liens under each Security Document to which it is party.


 


12





















 


“Commitments”
shall mean (a) with respect to any Lender, such Lender’s commitment to continue
and/or make B Term Loans under Section 2.01(a), Delayed Draw Commitment,
Revolving Facility Commitment and Credit-Linked Commitment and (b) with respect
to any Swingline Lender, its Swingline Dollar Commitment or Swingline Euro
Commitment, as applicable.


 


“Company” shall
have the meaning assigned to that term in the introductory paragraph of this
Agreement.


 


“Company Dividend”
shall mean a dividend or dividends paid by the Company (through Holdings and
Topco) to Parent in an amount that, when combined with any net proceeds of the
IPO retained by Parent, will be sufficient to permit Parent to pay in full the
Parent Dividend.


 


“Consolidated Debt”
at any date shall mean the sum of (without duplication) (i) all Indebtedness
consisting of Capital Lease Obligations, Indebtedness for borrowed money and
Indebtedness in respect of the deferred purchase price of property or services
(and not including any indebtedness under letters of credit (x) to the extent
undrawn or (y) if drawn, to the extent reimbursed within 10 Business Days after
such drawing) of Holdings and its Subsidiaries determined on a consolidated
basis on such date plus (ii) any Receivables Net Investment.


 


“Consolidated Net Debt”
at any date shall mean (A) Consolidated Debt on such date less (B) unrestricted
cash or marketable securities (determined in accordance with US GAAP) of
Holdings and its Subsidiaries on such date.


 


“Consolidated Net
Income” shall mean, with respect to any person for any period, the
aggregate of the Net Income of such person and its subsidiaries for such
period, on a consolidated basis; provided, however, that


 


(i)                                     any net after-tax extraordinary, special
(to the extent reflected as a separate line item on a consolidated income
statement prepared in accordance with US GAAP on a basis consistent with
historical practices) or non-recurring gain or loss (less all fees and expenses
relating thereto) or income or expense or charge including, without limitation,
any severance expense, and fees, expenses or charges related to any offering of
Equity Interests of Holdings, any Investment, acquisition or Indebtedness
permitted to be incurred hereunder (in each case, whether or not successful),
including all fees, expenses, charges or change in control payments related to
the Transaction (including, without limitation, all Transaction Costs), in each
case shall be excluded; provided that, with respect to each
non-recurring item, Holdings shall have delivered to the Administrative Agent
an officers’ certificate specifying and quantifying such item and stating that
such item is a non-recurring item,


 


(ii)                                  any net after-tax income or loss from
discontinued operations and any net after-tax gain or loss on disposal of
discontinued operations shall be excluded,


 


13





















 


(iii)                               any net after-tax gain or loss (less all
fees and expenses or charges relating thereto) attributable to business
dispositions or asset dispositions other than in the ordinary course of
business (as determined in good faith by the Board of Directors of Holdings)
shall be excluded,


 


(iv)                              any net after-tax income or loss (less
all fees and expenses or charges relating thereto) attributable to the early
extinguishment of indebtedness shall be excluded,


 


(v)                                 (A) the Net Income for such period of any
person that is not a subsidiary of such person, or that is accounted for by the
equity method of accounting, shall be included only to the extent of the amount
of dividends or distributions or other payments in respect of equity paid in
cash (or to the extent converted into cash) to such person or a subsidiary
thereof in respect of such period, but excluding any such dividend,
distribution or payment in respect of equity that funds a JV Reinvestment, and
(B) the Net Income for such period shall include any dividend, distribution or
other payment in respect of equity in cash received from any person in excess
of the amounts included in clause (A), but excluding any such dividend,
distribution or payment that funds a JV Reinvestment,


 


(vi)                              the Net Income for such period of any
subsidiary of such person shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by such subsidiary of its Net
Income is not at the date of determination permitted without any prior
governmental approval (which has not been obtained) or, directly or indirectly,
by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule, or governmental regulation applicable
to that subsidiary or its stockholders, unless such restriction with respect to
the payment of dividends or in similar distributions has been legally waived (provided
that the net loss of any such subsidiary shall be included), provided that such
Net Income shall be included to the extent (and only to the extent) such
subsidiary may (without violation of law or binding contractual arrangements)
make loans and/or advances to its parent corporation (which corporation may in
turn dividend, loan and/or advance the proceeds of such loans or advances to
its parent corporation and so on for all parents until reaching the Company)
and/or to the Company,


 


(vii)                           Consolidated Net Income for such period
shall not include the cumulative effect of a change in accounting principles
during such period,


 


(viii)                        an amount equal to the amount of Tax
Distributions actually made to the holders of capital stock of Parent in
respect of the net taxable income allocated by such person to such holders for
such period to the extent funded by the Company shall be included as though
such amounts had been paid as income taxes directly by such person,


 


(ix)                                any increase in amortization or
depreciation or any one-time noncash charges (such as purchased in-process
research and development or capitalized manufacturing profit in inventory)
resulting from purchase accounting in connection with the


 


14





















 


Transaction or any
acquisition that is consummated prior to or after the Original Closing Date
shall be excluded, and


 


(x)                                   accruals and reserves that are
established within twelve months after the Original Closing Date and that are
so required to be established as a result of the Transaction in accordance with
US GAAP shall be excluded.


 


“Consolidated Total
Assets” shall mean, as of any date, the total assets of Holdings and the
consolidated Subsidiaries, determined in accordance with US GAAP, as set forth
on the consolidated balance sheet of Holdings as of such date.


 


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


 


“Credit Event”
shall have the meaning assigned to such term in Article IV.


 


“Credit-Linked
Commitment” shall mean, for each CL Lender, the amount of such Lender’s
Credit-Linked Commitment under the Original Credit Agreement on the date
hereof, immediately prior to giving effect to the Restatement Effective Date, or
in the Assignment and Acceptance pursuant to which such CL Lender shall have
assumed its Credit-Linked Commitment, as applicable, as the same may be (x)
reduced from time to time pursuant to Section 2.08(d) and (y) reduced or
increased from time to time as a result of assignments by or to such Lender
pursuant to Section 9.04.


 


“Credit-Linked Deposit”
shall mean, as to each CL Lender, the cash deposit made by such CL Lender
pursuant to Section 2.02(B)(a), as such deposit may be (x) reduced from
time to time pursuant to the terms of this Agreement and (y) reduced or
increased from time to time pursuant to assignments by or to such CL Lender
pursuant to Section 9.04(b).  The
initial amount of each CL Lender’s Credit-Linked Deposit shall be equal to the
amount of its Credit-Linked Commitment on the Original Closing Date or on the
date that such Person becomes a CL Lender pursuant to Section 9.04(b).


 


“Credit-Linked Deposit
Account” shall mean the account of, and established by, the Deposit Bank
under its sole and exclusive control and maintained at the office of the
Deposit Bank, and designated as the “Celanese Credit-Linked Deposit Account”
that shall be used solely for the purposes set forth in Section 2.05(e).


 


“Credit-Linked Deposit
Cost Amount” shall mean, at any time, an amount (expressed in basis points)
determined by the Deposit Bank in consultation with the Company based on the
term on which the Credit-Linked Deposits are invested from time to time and
representing the Deposit Bank’s administrative cost for investing the
Credit-Linked Deposits and any reserve costs attributable thereto.


 


15





















 


“C Term Loan”
shall mean each term loan made to the DD Borrower pursuant to Section 2.01(b),
all of which shall be Dollar Term Loans, until and unless it is converted into
a B Term Loan as provided in Section 2.01(b).


 


“Cumulative Retained
Excess Cash Flow Amount” shall mean, at any date, an amount, not less than
zero, determined on a cumulative basis equal to the amount of Excess Cash Flow
for all Excess Cash Flow Periods ending after the Original Closing Date that is
not (and, in the case of any Excess Cash Flow Period where the respective
required date of prepayment has not yet occurred pursuant to Section 2.11(d),
will not on such date of required prepayment be) required to be applied in
accordance with Section 2.11(d).


 


“Cure Amount”
shall have the meaning assigned to such term in Section 7.02.


 


“Cure Right” shall
have the meaning assigned to such term in Section 7.02.


 


“Current Assets”
shall mean, with respect to Holdings and the Subsidiaries on a consolidated
basis at any date of determination, the sum of (a) all assets (other than cash
and Permitted Investments or other cash equivalents) that would, in accordance
with US GAAP, be classified on a consolidated balance sheet of Holdings and the
Subsidiaries as current assets at such date of determination, other than
amounts related to current or deferred Taxes based on income or profits and (b)
in the event that a Permitted Receivables Financing is accounted for
off-balance sheet, (x) gross accounts receivable comprising part of the
Receivables Assets subject to such Permitted Receivables Financing less (y)
collections against the amounts sold pursuant to clause (x).


 


“Current Liabilities”
shall mean, with respect to Holdings and the Subsidiaries on a consolidated
basis at any date of determination, all liabilities that would, in accordance
with US GAAP, be classified on a consolidated balance sheet of Holdings and the
Subsidiaries as current liabilities at such date of determination, other than
(a) the current portion of any debt or Capital Lease Obligations, (b) accruals
of Interest Expense (excluding Interest Expense that is due and unpaid), (c)
accruals for current or deferred Taxes based on income, profits or capital, (d)
accruals, if any, of transaction costs resulting from the Transaction, (e)
accruals of any costs or expenses related to (i) severance or termination of
employees prior to the Original Closing Date or (ii) bonuses, pension and other
post-retirement benefit obligations, and (f) accruals for add-backs to EBITDA
included in clauses (a)(iv) through (a)(ix) of the definition of such term.


 


“DBNY” shall have
the meaning assigned to such term in the introductory paragraph of this
Agreement.


 


“DBSI” shall mean
Deutsche Bank Securities, Inc.


 


“DD Borrower”
shall mean the Company or Bidco, whosoever is designated as the DD Borrower in
a writing by the Company to the Administrative Agent delivered on or after the
Restatement Effective Date and prior to the first incurrence of C Term Loans
(which writing will, if designating Bidco as the DD Borrower, be countersigned
by Bidco agreeing to be the DD Borrower on the terms and conditions, and for
all purposes, of this Agreement), provided that if


 


16





















 


Bidco is
designated as the DD Borrower, the Company shall have the subsequent right upon
10 days prior written notice to the Administrative Agent to replace Bidco as
the DD Borrower with the Company and upon execution of documentation reasonably
requested by, and in form and substance reasonably satisfactory to, the
Administrative Agent to effect such change, the Company shall thereupon become,
and Bidco shall thereupon cease to be, the DD Borrower for all purposes of this
Agreement.


 


“DD Termination Date”
shall mean the earlier of (i) the date which is 180 days after the Restatement
Effective Date and (ii) the date on which the Delayed Draw Commitments are
terminated in full pursuant to Section 2.08 or Article VII.


 


“Debt Service”
shall mean, with respect to Holdings and the Subsidiaries on a consolidated
basis for any period, Cash Interest Expense for such period plus scheduled
principal amortization of Consolidated Debt for such period.


 


“Default” shall
mean any event or condition that upon notice, lapse of time or both would
constitute an Event of Default.


 


“Defaulting Lender”
shall mean any Lender with respect to which a Lender Default is in effect.


 


“Delayed Draw Facility”
shall mean the Delayed Draw Commitments and the C Term Loans made thereunder
but excluding any C Term Loans converted into B Term Loans on the DD
Termination Date pursuant to Section 2.01(b).  If the Company is the DD Borrower, on the DD
Termination Date the Delayed Draw Facility shall terminate and be subsumed in
the Term Loan Facility.


 


“Delayed Draw
Commitment” shall mean, with respect to each Lender, the commitment (if
any) of such Lender to make term loans under Section 2.01(b) in the amount
set forth opposite such Lender’s name on Schedule 2.01 directly
below the column entitled “Delayed Draw Commitments” or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Delayed Draw
Commitment, as such commitment may be (x) reduced from time to time pursuant to
Section 2.08 and (y) reduced or increased from time to time pursuant to
assignments to or by such Lender under Section 9.04.  The aggregate Delayed Draw Commitments on the
Restatement Effective Date shall be $242.0 million.


 


“Deposit Bank”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Designated
Acquisitions” shall mean the Acetex Acquisition and the Vinamul
Acquisition.


 


“Documentation Agent”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Dollar Equivalent”
shall mean, on any date of determination (a) with respect to any amount in
Dollars, such amount, and (b) with respect to any amount in Euros, the
equivalent


 


17





















 


in Dollars of such
amount, determined by the Administrative Agent pursuant to Section 1.03(b)
using the Exchange Rate with respect to Euros at the time in effect under the
provisions of such Section.


 


“Dollar Letter of Credit”
shall mean a Letter of Credit denominated in Dollars.


 


“Dollar Term Loan”
shall mean each Term Loan (x) that was first incurred prior to the Restatement
Effective Date denominated in Dollars and continued as a Term Loan denominated
in Dollars on such date pursuant to Section 2.01(a)(i) and (y) first
incurred on or after the Restatement Effective Date as a Term Loan denominated
in Dollars.


 


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


 


“Domestic Loan Parties”
shall mean at any time Holdings, the Company and each Domestic Subsidiary Loan
Party.


 


“Domestic Subsidiary”
of any Person shall mean a subsidiary of such Person that is not (a) a Foreign
Subsidiary, (b) a subsidiary of a Foreign Subsidiary or (c) listed on Schedule 1.01(h).


 


“Domestic Subsidiary
Loan Party” shall mean each Guarantor Subsidiary.


 


“Domestic Swingline
Borrower” shall mean each Revolving Borrower that is not a Foreign
Subsidiary that has been designated to the Administrative Agent in writing by
the Company as a Domestic Swingline Borrower, provided that (x) its
Maximum Credit Limit will remain unchanged and (y) there shall not be more than
two Domestic Swingline Borrowers at any time and provided, further,
that the Company may revoke any such designation as to any such person at a
time when no Swingline Loans are outstanding to such person.


 


“Domination Agreement”
shall have the meaning provided in the Original Credit Agreement.


 


“EBITDA” shall
mean, with respect to Holdings and the Subsidiaries on a consolidated basis for
any period, the Consolidated Net Income of Holdings and the Subsidiaries for
such period plus (a) the sum of (in each case without duplication and to
the extent the respective amounts described in subclauses (i) through (xi) of
this clause (a) reduced such Consolidated Net Income for the respective period
for which EBITDA is being determined):


 


(i)                                     provision for Taxes based on income,
profits or capital of Holdings and the Subsidiaries for such period, including,
without limitation, state, franchise and similar taxes (such as the Texas
franchise tax and Michigan single business tax) (including any Tax Distribution
taken into account in calculating Consolidated Net Income),


 


(ii)                                  Interest Expense of Holdings and the
Subsidiaries for such period (net of interest income for such period of
Holdings and its Subsidiaries other than the cash interest income of the
Captive Insurance Subsidiaries),


 


18





















 


(iii)                               depreciation and amortization expenses of
Holdings and the Subsidiaries for such period,


 


(iv)                              restructuring charges; provided
that with respect to each such restructuring charge, Holdings shall have
delivered to the Administrative Agent an officer’s certificate specifying and
quantifying such charge and stating that such charge is a restructuring charge,


 


(v)                                 any other noncash charges (but excluding
any such charge which requires an accrual of, or a cash reserve for,
anticipated cash charges for any future period); provided that, for
purposes of this subclause (v) of this clause (a), any noncash charges or
losses shall be treated as cash charges or losses in any subsequent period
during which cash disbursements attributable thereto are made,


 


(vi)                              the minority interest expense consisting
of the subsidiary income attributable to minority equity interests of third
parties in any non-Wholly Owned Subsidiary in such period or any prior period,
except to the extent of dividends declared or paid on Equity Interests held by
third parties,


 


(vii)                           the noncash portion of “straight-line”
rent expense,


 


(viii)                        the amount of any expense to the extent a
corresponding amount is received in cash by any Loan Party from a Person other
than Holdings or any Subsidiary of Holdings under any agreement providing for
reimbursement of any such expense provided such reimbursement payment has not
been included in determining EBITDA (it being understood that if the amounts
received in cash under any such agreement in any period exceed the amount of
expense in respect of such period, such excess amounts received may be carried
forward and applied against expense in future periods),


 


(ix)                                turnaround costs and expenses to the
extent treated as, and included in computing for the period expended, Capital
Expenditures,


 


(x)                                   the amount of management, consulting,
monitoring and advisory fees and related expenses paid to Blackstone or any
other Permitted Investor (or any accruals related to such fees and related
expenses) during such period; provided that such amount shall not exceed
in any four quarter period the greater of (x) $5.0 million and (y) 2% of EBITDA
of Holdings and the Subsidiaries (assuming for purposes of this clause (y) that
the amount to be added to Consolidated Net Income under this clause (x) is $5.0
million), and


 


(xi)                                except for purposes of calculating Excess
Cash Flow to the extent consisting of any net cash loss, any net losses
resulting from currency Swap Agreements entered into in the ordinary course of
business relating to intercompany loans among or between Holdings and/or any of
its Subsidiaries to the extent that the nominal amount of the related Swap
Agreement does not exceed the principal amount of the related intercompany
loan;


 


19





















 


minus (b) the sum of
(in each case without duplication and to the extent the respective amounts
described in subclauses (i) to (iv) of this clause (b) increased such
Consolidated Net Income for the respective period for which EBITDA is being
determined):


 


(i)                                     the minority interest income consisting
of subsidiary losses attributable to the minority equity interests of third
parties in any non-Wholly Owned Subsidiary,


 


(ii)                                  noncash items increasing Consolidated Net
Income of Holdings and the Subsidiaries for such period (but excluding any such
items (A) in respect of which cash was received in a prior period or will be
received in a future period or (B) which represent the reversal of any accrual
of, or cash reserve for, anticipated cash charges in any prior period),


 


(iii)                               the cash portion of “straight-line” rent
expense which exceeds the amount expensed in respect of such rent expense, and


 


(iv)                              except for purposes of calculating Excess
Cash Flow to the extent consisting of a net cash gain, any net gains resulting
from currency Swap Agreements entered into in the ordinary course of business
relating to intercompany loans among or between Holdings and/or any of its
Subsidiaries to the extent that the nominal amount of the related Swap
Agreement does not exceed the principal amount of the related intercompany
loan.


 


“EMU Legislation”
shall mean the legislative measures of the European Union for the introduction
of, changeover to or operation of the Euro in one or more member states of the
European Union.


 


“Environment”
shall mean ambient and indoor air, surface water and groundwater (including
potable water, navigable water and wetlands), the land surface or subsurface
strata, natural resources such as flora and fauna, the workplace or as
otherwise defined in any Environmental Law.


 


“Environmental Laws”
shall mean all applicable laws (including common law), rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the protection of the Environment, preservation or
reclamation of natural resources, the generation, management, Release or
threatened Release of, or exposure to, any Hazardous Material or to health and
safety matters (to the extent relating to the Environment or exposure to
Hazardous Materials).


 


“Equity Interests”
of any person shall mean any and all shares, interests, rights to purchase,
warrants, options, participation or other equivalents of or interests in
(however designated) equity of such person, including any preferred stock,
convertible preferred equity certificate (whether or not equity under local
law), any limited or general partnership interest and any limited liability
company membership interest.


 


“Equity Percentage”
shall mean 50%.


 


20


















 


 


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


 


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


 


“ERISA Event”
shall mean (a) any Reportable Event; (b) the existence with respect to any Plan
of an “accumulated funding deficiency” (as defined in Section 412 of the
Code or Section 302 of ERISA), whether or not waived; (c) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan, the failure to make by its due date a required installment under Section 412(m)
of the Code with respect to any Plan or the failure to make any required contribution
to a Multiemployer Plan; (d) the incurrence by Holdings, the Company, a
Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by Holdings, the
Company, a Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
to appoint a trustee to administer any Plan under Section 4042 of ERISA;
(f) the incurrence by Holdings, the Company, a Subsidiary or any ERISA
Affiliate of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by Holdings, the
Company, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from Holdings, the Company, a Subsidiary or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.


 


“Euro” or “€”
shall mean the single currency of the European Union as constituted by the
treaty establishing the European Community being the Treaty of Rome, as amended
from time to time and as referred to in the EMU Legislation.


 


“Euro Equivalent”
shall mean, on any date of determination, (a) with respect to any amount in
Euros, such amount and (b) with respect to any amount in Dollars, the
equivalent in Euros of such amount or determined by the Administrative Agent
pursuant to Section 1.03(b) using the Exchange Rate with respect to such
currency of the time in effect under the provisions of such Section.


 


“Euro Letter of Credit”
shall mean a Letter of Credit denominated in Euros.


 


“Euro Term Loan”
shall mean each Term Loan (x) that was first incurred prior to the Restatement
Effective Date denominated in Euros and continued as a Term Loan denominated in
Euros on such date pursuant to Section 2.01(a)(i) and (y) first incurred
on the Restatement Effective Date as a Term Loan denominated in Euros.


 


“Eurocurrency
Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.


 


21





















 


“Eurocurrency CL Loan”
shall mean any CL Loan bearing interest at a rate determined by reference to the
Adjusted LIBO Rate in accordance with Article II.


 


“Eurocurrency Loan”
shall mean any Eurocurrency Term Loan, Eurocurrency Revolving Loan or
Eurocurrency CL Loan.


 


“Eurocurrency
Revolving Borrowing” shall mean a Borrowing comprised of Eurocurrency Revolving
Loans.


 


“Eurocurrency
Revolving Loan” shall mean any Revolving Facility Loan bearing interest at
a rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.


 


“Eurocurrency Term
Loan” shall mean any Term Loan bearing interest at a rate determined by
reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.


 


“Event of Default”
shall have the meaning assigned to such term in Section 7.01.


 


“Excess Cash Flow”
shall mean, with respect to Holdings and the Subsidiaries on a consolidated
basis for any Excess Cash Flow Period, EBITDA of Holdings and the Subsidiaries
on a consolidated basis for such Excess Cash Flow Period, minus, without
duplication,


 


(a)                                  Debt Service for such Excess Cash Flow
Period,


 


(b)                                 (i) any voluntary prepayments of Term
Loans during such Excess Cash Flow Period, (ii) any permanent voluntary
reductions during such Excess Cash Flow Period of Revolving Facility
Commitments to the extent that an equal amount of Revolving Facility Loans was
simultaneously repaid and (iii) any voluntary prepayment permitted hereunder of
term Indebtedness during such Excess Cash Flow Period to the extent not
financed, or intended to be financed, using the proceeds of the incurrence of
Indebtedness, so long as the amount of such prepayment is not already reflected
in Debt Service (it being agreed that the Senior Subordinated Clawback and the
Term C Repayment will not reduce Excess Cash Flow);


 


(c)                                  (i) Capital Expenditures by Holdings and
the Subsidiaries on a consolidated basis during such Excess Cash Flow Period
(excluding Capital Expenditures made in such Excess Cash Flow Period where a
certificate in the form contemplated by the following clause (d) was previously
delivered) that are paid in cash, and (ii) the aggregate consideration paid in
cash during such Excess Cash Flow Period in respect of Permitted Business
Acquisitions and other Investments permitted hereunder (less any amounts
received in respect thereof as a return of capital),


 


(d)                                 Capital Expenditures that Holdings or any
Subsidiary shall, during such Excess Cash Flow Period, become legally obligated
to make but that are not made during such Excess Cash Flow Period, provided
that Holdings shall deliver a certificate to the


 


22





















 


Administrative
Agent not later than 90 days after the end of such Excess Cash Flow Period,
signed by a Responsible Officer of Holdings and certifying that such Capital
Expenditures and the delivery of the related equipment will be made in the
following Excess Cash Flow Period,


 


(e)                                  Taxes paid in cash by Parent and its
Subsidiaries on a consolidated basis during such Excess Cash Flow Period or
that will be paid within six months after the close of such Excess Cash Flow
Period (provided that any amount so deducted that will be paid after the
close of such Excess Cash Flow Period shall not be deducted again in a
subsequent Excess Cash Flow Period) and for which reserves have been
established, including income tax expense and withholding tax expense incurred
in connection with cross-border transactions involving the Foreign
Subsidiaries,


 


(f)                                    an amount equal to any increase in
Working Capital of Holdings and its Subsidiaries for such Excess Cash Flow
Period,


 


(g)                                 cash expenditures made in respect of Swap
Agreements during such Excess Cash Flow Period, to the extent not reflected in
the computation of EBITDA or Interest Expense,


 


(h)                                 permitted dividends or distributions or
repurchases of its Equity Interests paid in cash by Holdings during such Excess
Cash Flow Period (other than the Company Dividend) and permitted dividends paid
by any Subsidiary to any person other than Holdings, the Company or any of the
Subsidiaries during such Excess Cash Flow Period, in each case in accordance
with Section 6.06,


 


(i)                                     amounts paid in cash during such Excess
Cash Flow Period on account of (x) items that were accounted for as noncash
reductions of Net Income in determining Consolidated Net Income or as non-cash
reductions of Consolidated Net Income in determining EBITDA of Holdings and its
Subsidiaries in a prior Excess Cash Flow Period, (y) reserves or accruals
established in purchase accounting and (z) any other long-term reserves
existing on the Original Closing Date as reflected in the pro  forma
balance sheet referred to in Section 3.05(b) of the Original Credit
Agreement,


 


(j)                                     to the extent not deducted in the
computation of Net Proceeds in respect of any asset disposition or condemnation
giving rise thereto, the amount of any mandatory prepayment of Indebtedness
(other than Indebtedness created hereunder or under any other Loan Document),
together with any interest, premium or penalties required to be paid (and
actually paid) in connection therewith,


 


(k)                                  the amount related to items that were
added to or not deducted from Net Income in calculating Consolidated Net Income
or were added to or not deducted from Consolidated Net Income in calculating
EBITDA to the extent such items represented a cash payment (which had not
reduced Excess Cash Flow upon the accrual thereof in a prior Excess Cash Flow
Period), or an accrual for a cash payment, by Holdings and its


 


23





















 


Subsidiaries or
did not represent cash received by Holdings and its Subsidiaries, in each case
on a consolidated basis during such Excess Cash Flow Period,


 


(l)                                     Tax Distributions which are paid during
the respective Excess Cash Flow Period or will be paid within six months after
the close of such Excess Cash Flow Period (as reasonably determined in good
faith by Holdings) to the extent, in each case, funded by the Company, provided
that to the extent such Tax Distributions are not actually paid within such six
month period such amounts shall be added to Excess Cash Flow the next succeeding
Excess Cash Flow Period, and


 


(m)                               any advance cash payments during such
Excess Cash Flow Period for the purchase of raw materials to the extent not
recorded as a Current Asset and to the extent that any such advance cash
payment did not otherwise reduce EBITDA for such Excess Cash Flow Period,


 


plus, without
duplication,


 


(a)                                  an amount equal to any decrease in
Working Capital for such Excess Cash Flow Period,


 


(b)                                 all proceeds received during such Excess
Cash Flow Period of Capital Lease Obligations, purchase money Indebtedness,
Sale and Lease-Back Transactions pursuant to Section 6.03 and any other
Indebtedness, in each case to the extent used to finance any Capital
Expenditure (other than Indebtedness under this Agreement to the extent there
is no corresponding deduction to Excess Cash Flow above in respect of the use
of such Borrowings),


 


(c)                                  all amounts referred to in clause (c)
above to the extent funded with the proceeds of the issuance of Equity
Interests of, or capital contributions to, Holdings after the Original Closing
Date (to the extent not previously used to prepay Indebtedness (other than
Revolving Facility Loans or Swingline Loans), make any investment or capital
expenditure or otherwise for any purpose resulting in a deduction to Excess
Cash Flow in any prior Excess Cash Flow Period) or any amount that would have
constituted Net Proceeds under clause (a) of the definition of the term “Net
Proceeds” if not so spent, in each case to the extent there is a corresponding
deduction from Excess Cash Flow above,


 


(d)                                 to the extent any permitted Capital
Expenditures and the corresponding delivery of equipment referred to in clause
(d) above do not occur in the Excess Cash Flow Period of Holdings specified in
the certificate of Holdings provided pursuant to clause (d) above, the amount
of such Capital Expenditures that were not so made in the Excess Cash Flow
Period of Holdings specified in such certificates,


 


(e)                                  cash payments received in respect of Swap
Agreements during such Excess Cash Flow Period to the extent (i) not included
in the computation of EBITDA or (ii) such payments do not reduce Cash Interest
Expense,


 


24





















 


(f)                                    any extraordinary or nonrecurring gain
realized in cash during such Excess Cash Flow Period (except to the extent such
gain consists of Net Proceeds subject to Section 2.11(c)),


 


(g)                                 to the extent deducted in the computation
of EBITDA, cash interest income,


 


(h)                                 the amount related to items that were
deducted from or not added to Net Income in connection with calculating
Consolidated Net Income or were deducted from or not added to Consolidated Net
Income in calculating EBITDA to the extent either (x) such items represented
cash received by Holdings or any Subsidiary or (y) does not represent cash paid
by Holdings or any Subsidiary, in each case on a consolidated basis during such
Excess Cash Flow Period, and


 


(i)                                     any expense which reduces EBITDA in such
Excess Cash Flow Period in respect of an advance cash payment made for raw
materials in a previous Excess Cash Flow Period to the extent that any such
advance cash payment reduced Excess Cash Flow in such previous Excess Cash Flow
Period.


 


“Excess Cash Flow
Period” shall mean (i) the period taken as one accounting period beginning
on the day following the Original Closing Date and ending on December 31,
2004, and (ii) each fiscal year of Holdings ended thereafter.


 


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


 


“Exchange Rate”
shall mean on any day, for purposes of determining the Dollar Equivalent or
Euro Equivalent of any other currency, the rate at which such other currency
may be exchanged into Dollars or Euros (as applicable), as set forth in the
Wall Street Journal published on such date for such currency provided that the
Exchange Rate for determining the Dollar Equivalent on the Original Closing
Date of a Euro amount was 1.21523.  In
the event that such rate does not appear in such copy of the Wall Street
Journal, the Exchange Rate shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Company, or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the spot
rates of exchange of the Administrative Agent in the market where its foreign
currency exchange operations in respect of such currency are then being
conducted, at or about 10:00 a.m., Local Time, on such date for the purchase of
Dollars or Euros (as applicable) for delivery two Business Days later; provided
that if at the time of any such determination, for any reason, no such spot
rate is being quoted, the Administrative Agent may, in consultation with the
Company, use any reasonable method it deems appropriate to determine such rate,
and such determination shall be prima facie evidence thereof.


 


“Excluded Equity
Issuances” shall mean (i) the issuance of Equity Interests by Holdings to
Blackstone or any other Permitted Investor, (ii) the issuance of Equity
Interests by Holdings the proceeds of which are used to fund Investments
permitted by Section 6.04, (iii) Equity Interests issued by Holdings (x)
as compensation to employees of Parent 
or any of its


 


25





















 


subsidiaries or
(y) to members of management of Parent or any of its subsidiaries within one
year of the Original Closing Date, in each case in the ordinary course of
business, (iv) Permitted Cure Securities, (v) issuances of Equity Interests
pursuant to the IPO and (vi) the Borrower Contribution (as defined in the
Agreement to Amend).


 


“Excluded Indebtedness”
shall mean all Indebtedness permitted to be incurred under Section 6.01
(other than Sections 6.01(o) and (s)).


 


“Excluded Taxes”
shall mean, with respect to the Administrative Agent, any Lender, any Issuing
Bank or any other recipient of any payment to be made by or on account of any
obligation of a Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the jurisdiction under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable lending office is located, (b)
any branch profits tax or any similar tax that is imposed by any jurisdiction
described in clause (a) above and (c) in the case of a Lender (other than an
assignee pursuant to a request by a Borrower under Section 2.19(b)), any
withholding tax imposed by the United States (other than a withholding tax
levied upon any amounts payable to such Lender in respect of any interest in
any Loan acquired by such Lender pursuant to Section 10.01) that is in
effect and would apply to amounts payable hereunder to such Lender at the time
such Lender becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Lender’s failure to comply with Section 2.17(e)
with respect to such Loans except to the extent that such Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from a Borrower with
respect to any withholding tax pursuant to Section 2.17(a).


 


“Existing Letter of
Credit” shall each mean each Existing Letter of Credit under and as defined
in the Original Credit Agreement.


 


“Existing Mortgage”
shall mean each Mortgage executed and delivered prior to the Restatement
Effective Date.


 


“Facility” shall
mean the respective facility and commitments utilized in making Loans and
credit extensions hereunder, it being understood that as of the Restatement
Effective Date, there are four Facilities, i.e., the B Term Loan
Facility, the Delayed Draw Facility, the Revolving Facility and the CL
Facility, reducing on the DD Termination Date if the Company is the DD Borrower
by the B Term Loan Facility and the Delayed Draw Facility being subsumed into
the Term Loan Facility.


 


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


 


26





















 


“Fee Letter” shall
mean that certain Fee Letter dated January 26, 2005 by and among the
Company and the Joint Book Runners.


 


“Fees” shall mean
the RF Commitment Fees, the L/C Participation Fees, the CL Facility Fee, the TL
Commitment Fees, the Issuing Bank Fees and the Administrative Agent Fees.


 


“Financial Officer”
of any person shall mean the Chief Financial Officer, principal accounting
officer, Treasurer, Assistant Treasurer or Controller of such person.


 


“Financial Performance
Covenants” shall mean the covenants of Holdings set forth in Sections 6.11
and 6.12.


 


“Flow Through Entity”
shall mean an entity that is treated as a partnership not taxable as a
corporation, a grantor trust or a disregarded entity for United States federal
income tax purposes or subject to treatment on a comparable basis for purposes
of state, local or foreign tax law.


 


“Foreign Borrower”
shall mean each Foreign Revolving Borrower and, if Bidco is the DD Borrower,
Bidco.


 


“Foreign Lender”
shall mean any Lender that is organized under the laws of a jurisdiction other
than the United States of America.  For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.


 


“Foreign Pledge
Agreement” shall mean a pledge agreement with respect to the Pledged
Collateral that constitutes Equity Interests of a Foreign Revolving Borrower,
in form and substance reasonably satisfactory to the Collateral Agent, as
amended, supplemented or otherwise modified from time to time, that will secure
Obligations of such Foreign Revolving Borrower.


 


“Foreign Revolving
Borrower” shall mean each Revolving Borrower that is a Foreign Subsidiary.


 


“Foreign Subsidiary”
shall mean any Subsidiary that is incorporated or organized under the laws of
any jurisdiction other than the United States of America, any State thereof or
the District of Columbia.


 


“Foreign Subsidiary
Loan Party” shall mean at any time (i) each Foreign Subsidiary that is a
Revolving Borrower and the Foreign Subsidiary (if any) that is the direct
parent thereof to the extent it has pledged the stock of such Revolving
Borrower to secure its Revolving Facility Loans and (ii) Bidco if Bidco is the
DD Borrower.


 


“Foreign Swingline
Borrower” shall mean each Revolving Borrower that is a Foreign Subsidiary
that has been designated to the Administrative Agent in writing by the Company
as a Foreign Swingline Borrower, provided that (x) its Maximum Credit
Limit will


 


27





















 


remain unchanged
and (y) there shall not be more than two Foreign Swingline Borrowers at any
time and, provided, further, that the Company may revoke any such
designation as to any person at a time when no Swingline Loans are outstanding
to such person.


 


“Governmental
Authority” shall mean any federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory or legislative
body.


 


“Guarantee” of or
by any person (the “guarantor”) shall mean (a) any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other person
(the “primary obligor”) in any manner, whether directly or indirectly,
and including any obligation of the guarantor, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities
or services, to take-or-pay or otherwise) or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation, (iv) entered into for the purpose of
assuring in any other manner the holders of such Indebtedness or other
obligation of the payment thereof or to protect such holders against loss in
respect thereof (in whole or in part) or (v) as an account party in respect of
any letter of credit or letter of guaranty issued to support such Indebtedness
or other obligation, or (b) any Lien on any assets of the guarantor securing
any Indebtedness (or any existing right, contingent or otherwise, of the holder
of Indebtedness to be secured by such a Lien) of any other person, whether or
not such Indebtedness or other obligation is assumed by the guarantor; provided,
however, that the term “Guarantee” shall not include endorsements for
collection or deposit, in either case in the ordinary course of business, or
customary and reasonable indemnity obligations.


 


“Guarantor Subsidiary”
shall mean each Domestic Subsidiary of the Company, with an exception for any
Special Purpose Receivables Subsidiary and with such other exceptions (if any)
as are satisfactory to the Administrative Agent, it being agreed that (i) LTIBR
Co. will not guarantee the Obligations (if any) owed by Bidco as the DD
Borrower and (ii) CAMI will become a Guarantor Subsidiary within 6 months of
the Restatement Effective Date unless all or substantially all of its assets or
equity are sold pursuant to the CAMI Sale.


 


 “Hazardous Materials” shall mean all
pollutants, contaminants, wastes, chemicals, materials, substances and
constituents, including, without limitation, explosive or radioactive
substances or petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls or radon gas, of any nature
subject to regulation or which could reasonably be expected to give rise to
liability under any Environmental Law.


 


“HC Activities”
shall have the meaning assigned to such term in the Original Credit Agreement.


 


28





















 


“Holdco Equity
Financing” shall have the meaning assigned to such term in the Original
Credit Agreement.


 


“Holdings” shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.


 


“Holdings Agreement”
shall mean the Guarantee and Pledge Agreement, as amended, supplemented or
otherwise modified from time to time, in the form delivered on the
Restructuring Date (and as amended by Amendment No. 1 thereto effected in
connection with the Agreement to Amend), between Holdings and the Collateral
Agent pursuant to which Holdings guarantees the Obligations and pledges all
Equity Interests it owns to secure such guarantee.


 


“Indebtedness” of
any person shall mean, without duplication, (a) all obligations of such person
for borrowed money, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
under conditional sale or other title retention agreements relating to property
or assets purchased by such person, (d) all obligations of such person issued
or assumed as the deferred purchase price of property or services (other than
current trade liabilities and current intercompany liabilities (but not any
refinancings, extensions, renewals or replacements thereof) incurred in the
ordinary course of business and maturing within 365 days after the incurrence
thereof and reimbursement obligations in respect of trade letters of credit
obtained in the ordinary course of business with expiration dates not in excess
of 365 days from the date of issuance (x) to the extent undrawn or (y) if
drawn, to the extent repaid in full within 10 Business Days of any such
drawing), (e) all Guarantees by such person of Indebtedness of others, (f) all
Capital Lease Obligations of such person, (g) all payments that such person
would have to make in the event of an early termination, on the date
Indebtedness of such person is being determined, in respect of outstanding Swap
Agreements, (h) except as provided in clause (d) above, the principal component
of all obligations, contingent or otherwise, of such person as an account party
in respect of letters of credit and (i) the principal component of all
obligations of such person in respect of bankers’ acceptances.  The Indebtedness of any person (x) shall
include the Indebtedness of any partnership in which such person is a general
partner, other than to the extent that the instrument or agreement evidencing
such Indebtedness expressly limits the liability of such person in respect
thereof, and (y) shall exclude any Indebtedness of a third party that is not an
Affiliate of Holdings or any of its Subsidiaries and that is attributable to
supply or lease arrangements as a result of consolidation under FIN 46 or
attributable to take-or-pay contracts that are accounted for in a manner
similar to a capital lease under EITF 01-8 in either case so long as (i) such
supply or lease arrangements or such take-or-pay contracts are entered into in
the ordinary course of business, (ii) the board of directors of Holdings has
approved any such supply or lease arrangement or any such take-or-pay contract
and (iii) notwithstanding anything to the contrary contained in the definition
of EBITDA, the related expense under any such supply or lease arrangement or
under any such take-or-pay contract is treated as an operating expense that
reduces EBITDA.


 


“Indemnified Taxes”
shall mean all Taxes other than Excluded Taxes.


 


29





















 


“Indemnitee” shall
have the meaning assigned to such term in Section 9.05(b).


 


“Initial Intercompany
Loans” shall have the meaning assigned to such term in the Original Credit
Agreement.


 


“Installment Date”
shall have the meaning assigned to such term in Section 2.10(a).


 


“Intercreditor
Agreement” shall mean an intercreditor agreement entered into in connection
with a Permitted Receivables Financing in form and substance reasonably
satisfactory to the Administrative Agent.


 


“Interest Coverage
Ratio” shall have the meaning assigned to such term in Section 6.11.


 


“Interest Election
Request” shall mean a request by a Borrower to convert or continue a Term
Borrowing, Revolving Borrowing or CL Borrowing in accordance with Section 2.07.


 


“Interest Expense”
shall mean, with respect to any person for any period, the sum of (a) gross
interest expense of such person for such period on a consolidated basis,
including (i) the amortization of debt discounts, (ii) the amortization of all
fees (including fees with respect to Swap Agreements) payable in connection
with the incurrence of Indebtedness to the extent included in interest expense,
(iii) the portion of any payments or accruals with respect to Capital Lease
Obligations allocable to interest expense and (iv) commissions, discounts, yield
and other fees and charges incurred in connection with any Permitted
Receivables Financing which are payable to any person other than Holdings, the
Company or a Subsidiary Loan Party and (b) capitalized interest expense of
such person during such period.  For
purposes of the foregoing, (x) gross interest expense shall be determined after
giving effect to any net payments made or received and costs incurred by
Holdings and the Subsidiaries with respect to Swap Agreements and (y) Interest
Expense shall exclude any interest expense on Indebtedness of a third party
that is not an Affiliate of Holdings or any of its Subsidiaries and that is
attributable to supply or lease arrangements as a result of consolidation under
FIN 46 or attributable to take-or-pay contracts that are accounted for in a
manner similar to a capital lease under EITF 01-8 in either case so long as the
underlying obligations under any such supply or lease arrangement or under any
such take-or-pay contract are not treated as Indebtedness as provided in clause
(y) of the second sentence of the definition of Indebtedness.


 


“Interest Payment Date”
shall mean (a) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and,
in the case of a Eurocurrency Borrowing with an Interest Period of more than
three months’ duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months’ duration been applicable to
such Borrowing and, in addition, the date of any refinancing or conversion of
such Borrowing with or to a Borrowing of a different Type, (b) with respect to
any ABR Loan, the last day of each calendar quarter, (c) with respect to any
Swingline Dollar Loan, the day that such Swingline Dollar Loan is required to
be repaid pursuant


 


30





















 


to Sections
2.09(a) and (d) with respect to any Swingline Euro Loan, the last day of the
Interest Period applicable to such Swingline Euro Loan or any day otherwise
agreed to by the Swingline Euro Lenders.


 


“Interest Period”
shall mean (a) as to any Eurocurrency Borrowing, the period commencing on the
date of such Borrowing or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as applicable, and ending on the
numerically corresponding day (or, if there is no numerically corresponding
day, on the last day) in the calendar month that is 1, 2, 3 or 6 months
thereafter (or, in the case of Term Borrowings or Revolving Facility
Borrowings, 9 or 12 months, if at the time of the relevant Borrowing, all
relevant Lenders make interest periods of such length available), as the
applicable Borrower may elect, or the date any Eurocurrency Borrowing is
converted to an ABR Borrowing in accordance with Section 2.07 or repaid or
prepaid in accordance with Section 2.09, 2.10 or 2.11 and (b) as to any
Swingline Euro Borrowing, the period commencing on the date of such Borrowing
and ending on the day that is designated in the notice delivered pursuant to Section 2.04
with respect to such Swingline Euro Borrowing, which shall not be later than
the seventh day thereafter; provided, however, that if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day.  Interest shall accrue from and including the
first day of an Interest Period to but excluding the last day of such Interest
Period.


 


“IPO” shall mean
an initial public offering of the common stock of Parent, together with an
issuance by Parent of its convertible preferred stock, for anticipated gross
proceeds of approximately $1.04 billion (plus the Over-Allotment Proceeds), all
effected on or prior to the Restatement Effective Date.


 


“Issuing Bank”
shall mean DBNY and each other Issuing Bank designated pursuant to Section 2.05(k),
in each case in its capacity as an issuer of Letters of Credit hereunder, and
its successors in such capacity as provided in Section 2.05(i) and, solely
with respect to an Existing Letter of Credit (and any amendment, renewal or
extension thereof in accordance with this Agreement), the Lender that issued
such Existing Letter of Credit.  An
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.


 


“Issuing Bank Fees”
shall have the meaning assigned to such term in Section 2.12(b).


 


“Joint Book Runners”
shall mean DBSC, Morgan Stanley and Banc of America Securities LLC.


 


“Joint Lead Arrangers”
shall mean DBSC and Morgan Stanley.


 


“Judgment Currency”
shall have the meaning assigned to such term in Section 9.17(b).


 


31





















 


“JV Reinvestment”
shall mean any investment by Company or any Subsidiary in a joint venture to
the extent funded with the proceeds of a reasonably concurrent dividend or
other distribution made by such joint venture.


 


“L/C Disbursement”
shall mean a payment or disbursement made by an Issuing Bank pursuant to a
Letter of Credit.


 


“L/C Lender” shall
mean a Lender with a Revolving Facility Commitment and/or a Credit-Linked
Commitment.


 


“L/C Participation Fee”
shall have the meaning assigned such term in Section 2.12(b).


 


“Lender” shall
mean each financial institution listed on Schedule 2.01 or party to
the Agreement to Amend, as well as any person that becomes a “Lender” hereunder
pursuant to Section 9.04.


 


“Lender Default”
shall mean (i) the refusal (which has not been retracted) of a Lender to make
available its portion of any Borrowing, to acquire participations in a
Swingline Loan pursuant to Section 2.04 or to fund its portion of any
unreimbursed payment under Section 2.05(e), or (ii) a Lender having
notified in writing the applicable Borrower and/or the Administrative Agent that
it does not intend to comply with its obligations under Section 2.04, 2.05
or 2.06.


 


“Letter of Credit”
shall mean any letter of credit (including each Existing Letter of Credit)
issued pursuant to Section 2.05. 
Letters of Credit shall be either CL Letters of Credit or RF Letters of
Credit.


 


“LIBO Rate” shall
mean, with respect to any Eurocurrency Borrowing for any Interest Period, the
rate per annum determined by the Administrative Agent at approximately 11:00
a.m., London time, on the Quotation Day for such Interest Period by reference
to the applicable Screen Rate, for a period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the “LIBO Rate” shall be the average
(rounded upward, if necessary, to the next 1/100 of 1%) of the respective
interest rates per annum at which deposits in the currency of such Borrowing
are offered for such Interest Period to major banks in the London interbank
market by Deutsche Bank AG at approximately 11:00 a.m., London time, on the
Quotation Day for such Interest Period.


 


“Lien” shall mean,
with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, encumbrance, charge or security interest in or on such
asset and (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset.


 


“Loan Documents”
shall mean this Agreement, the Letters of Credit, the Security Documents, the
Intercreditor Agreement, the Agreement to Amend and any promissory note


 


32





















 


issued under Section 2.09(e),
and solely for the purposes of Section 7.01(c) hereof, the Fee Letter.


 


“Loan Participant”
shall have the meaning assigned to such term in Section 9.04(c).


 


“Loan Parties”
shall mean Holdings, the Company and each Subsidiary Loan Party.


 


“Loans” shall mean
the Term Loans, the Revolving Facility Loans, the CL Loans and the Swingline
Loans (and shall include any Replacement Term Loans).


 


“Local Time” shall
mean (a) with respect to a Loan or Borrowing denominated in Dollars, New York
City time and (b) with respect to a Loan or Borrowing denominated in Euros,
London time.


 


“LTIBR” shall mean
any interest bearing receivable with a maturity which qualifies as long term in
accordance with Section 8 No. 1 of the German Trade Tax Act.


 


“LTIBR Co.” shall
have the meaning assigned such term in Section 6.04(b).


 


“Luxco” shall mean
BCP Caylux Holdings Luxembourg S.C.A., a corporate partnership limited by
shares (société en commandité par actions) organized under the laws of
Luxembourg.


 


“Luxco CPEC” shall
mean the convertible preferred equity certificates issued by Luxco on or prior
to the Original Closing Date.


 


“Majority Lenders”
(i) for any Facility other than the B Term Loan Facility and Term Loan Facility
shall mean, at any time, Lenders under such Facility having Loans and unused
Commitments representing more than 50% of the sum of all Loans outstanding
under such Facility and unused Commitments under such Facility at such time and
(ii) for the B Term Loan Facility and Term Loan Facility, (x) if the reason for
determining Majority Lenders is a waiver, amendment or modification that treats
all Term Loans (including, if prior to the DD Termination Date, C Term Loans
that still could be made) the same, Lenders having Term Loans  and Delayed Draw Commitments representing
more than 50% of all outstanding Term Loans 
and Delayed Draw Commitments and (y) for all other determinations, the
Majority Lenders determined pursuant to clause (x) plus, where the amendment
waiver or modification more adversely affects Dollar Term Loans, Euro Term
Loans or C Term Loans (or Delayed Draw Commitments), Lenders holding more than
50% of all Dollar Term Loans, Euro Term Loans or C Term Loans (or Delayed Draw
Commitments), respectively.


 


“Management Group”
means the group consisting of the directors, executive officers and other
management personnel of the Parent, the Company and Holdings, as the case may
be, on the Restatement Effective Date together with (1) any new directors whose
election by such boards of directors or whose nomination for election by the
shareholders of the Parent, the Company or Holdings, as the case may be, was
approved by a vote of a majority of the directors


 


33





















 


of the Parent, the
Company or Holdings, as the case may be, then still in office who were either
directors on the Restatement Effective Date or whose election or nomination was
previously so approved and (2) executive officers and other management
personnel of the Parent, the Company or Holdings, as the case may be, hired at
a time when the directors on the Restatement Effective Date together with the
directors so approved constituted a majority of the directors of the Parent,
the Company or Holdings, as the case may be.


 


“Margin Stock”
shall have the meaning assigned to such term in Regulation U.


 


“Material Adverse
Effect” shall mean the existence of events, conditions and/or contingencies
that have had or are reasonably likely to have (a) a materially adverse effect
on the business, operations, properties, assets or financial condition of
Holdings and the Subsidiaries, taken as a whole, or (b) a material impairment
of the validity or enforceability of, or a material impairment of the material
rights, remedies or benefits available to the Lenders, any Issuing Bank, the
Administrative Agent or the Collateral Agent under, any Loan Document.


 


“Material Indebtedness”
shall mean Indebtedness (other than Loans and Letters of Credit) of any one or
more of Holdings or any Subsidiary in an aggregate principal amount exceeding
$40 million.


 


“Material Subsidiary”
shall mean, at any date of determination, any Subsidiary (a) whose total assets
at the last day of the Test Period ending on the last day of the most recent
fiscal period for which financial statements have been delivered pursuant to Section 5.04(a)
or (b) were equal to or greater than 2% of the consolidated total assets of
Holdings and its consolidated subsidiaries at such date or (b) whose gross
revenues for such Test Period were equal to or greater than 2% of the consolidated
gross revenues of Holdings and its consolidated subsidiaries for such period,
in each case determined in accordance with US GAAP or (c) that is a Loan Party.


 


“Maximum Credit Limit”
shall mean, with respect to any Revolving Facility Borrower, an amount that the
aggregate outstanding principal amount (or the Dollar Equivalent thereof if not
denominated in Dollars) of its Revolving Facility Loans and Swingline Loans (if
any) plus the maximum stated amount (or the Dollar Equivalent thereof if not denominated
in Dollars) of outstanding RF Letters of Credit issued for its account may not
exceed.


 


“Maximum Rate”
shall have the meaning assigned to such term in Section 9.09.


 


“Maximum Term Amount”
shall mean at any time (i) the initial aggregate principal amount of all Dollar
Term Loans then or theretofore continued or made pursuant to Section 2.01(a)
and/or 2.01(b) plus (ii) the initial aggregate principal amount of all Euro
Term Loans then or theretofore continued pursuant to Section 2.01(a) (i)
divided by the Agreed Exchange Rate plus (iii) the initial aggregate principal
amount of all Euro Term Loans then or therefore first made pursuant to Section 2.01(a)
(ii) divided by the RED Agreed Exchange Rate.


 


“Moody’s” shall
mean Moody’s Investors Service, Inc.


 


“Morgan Stanley”
shall mean Morgan Stanley Senior Funding, Inc.


 


34





















 


“Mortgaged Properties”
shall mean the owned real properties of Loan Parties set forth on Schedule 5.14
and such additional real property (if any) encumbered by a Mortgage pursuant to
Section 5.10.


 


“Mortgages” shall
mean the mortgages, deeds of trust, assignments of leases and rents and other
security documents delivered pursuant to Section 5.10 or 5.14, as amended,
supplemented or otherwise modified from time to time, with respect to Mortgaged
Properties each in a form reasonably satisfactory to the Administrative Agent.


 


“Multiemployer Plan”
shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA
to which Holdings, the Company, the Company, CAC or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Code Section 414) is making or accruing an obligation to make
contributions, or has within any of the preceding six plan years made or
accrued an obligation to make contributions.


 


“Net Income” shall
mean, with respect to any person, the net income (loss) of such person,
determined in accordance with US GAAP and before any reduction in respect of
preferred stock dividends.


 


“Net Proceeds”
shall mean:


 


(a)                                  100% of the cash proceeds actually
received by Holdings, the Company or any of their Subsidiaries (including any
cash payments received by way of deferred payment of principal pursuant to a
note or installment receivable or purchase price adjustment receivable or
otherwise and including casualty insurance settlements and condemnation awards,
but only as and when received) from any loss, damage, destruction or
condemnation of, or any sale, transfer or other disposition (including any sale
and leaseback of assets and any mortgage or lease of real property) to any
person of any asset or assets of Holdings or any Subsidiary (other than those
pursuant to Section 6.05(a) (other than clause (iii) thereof to the extent
in excess of $65 million in any year), (b), (c), (e), (f), (g), (i), (j), (k),
(l) or (o)), net of (i) attorneys’ fees, accountants’ fees, investment banking
fees, survey costs, title insurance premiums, and related search and recording
charges, transfer taxes, deed or mortgage recording taxes, required debt
payments and required payments of other obligations relating to the applicable
asset (other than pursuant hereto or pursuant to any Permitted Senior
Subordinated Debt Securities), other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection therewith,
(ii) Taxes or Tax Distributions paid or payable as a result thereof and (iii)
appropriate amounts set up as a reserve against liabilities associated with the
assets or business so disposed of and retained by the selling entity after such
sale, transfer or other disposition, as reasonably determined by Holdings,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters, liabilities related
to post-closing purchase price adjustments and liabilities related to any other
indemnification obligation associated with the assets or business so disposed
of, provided that, upon any termination of such reserve, all amounts not
paid-out in connection therewith shall be deemed to be “Net Proceeds” of such
sale, transfer or other disposition, provided that, if no Event of
Default exists and Holdings shall deliver a


 


35





















 


certificate of a
Responsible Officer of Holdings to the Administrative Agent promptly following
receipt of any such proceeds setting forth Holdings’ intention to use any
portion of such proceeds to acquire, maintain, develop, construct, improve,
upgrade or repair assets useful in the business of Holdings and the
Subsidiaries, or make investments pursuant to Section 6.04(m), in each
case within 12 months of such receipt and to the extent not in excess of $110.0
million of Net Proceeds (determined without giving effect to this proviso)
resulting from the sale, transfer or other disposition of an asset or group of
related assets, such portion of such proceeds shall not constitute Net Proceeds
except to the extent not so used (or contractually committed to be used) within
such 12-month period (and, if contractually committed to be used within such
12-month period, to the extent not so used within the 18-month period following
the date of receipt of such Net Proceeds), and provided, further,
that (x) no proceeds realized in a single transaction or series of related
transactions shall constitute Net Proceeds unless such proceeds shall exceed
$5.0 million and (y) no proceeds shall constitute Net Proceeds in any fiscal
year until the aggregate amount of all such proceeds in such fiscal year shall
exceed $15.0 million,


 


(b)                                 100% of the cash proceeds from the
incurrence, issuance or sale by Holdings or any Subsidiary of any Indebtedness
(other than Excluded Indebtedness), net of all taxes and fees (including
investment banking fees), commissions, costs and other expenses, in each case
incurred in connection with such issuance or sale, and


 


(c)                                  the Equity Percentage of the cash
proceeds from the issuance or sale by Holdings of any Equity Interests (other
than Excluded Equity Issuances), net of all taxes and fees (including
investment banking fees), commissions, costs and other expenses, in each case
incurred in connection with such issuance or sale.


 


For
purposes of calculating the amount of Net Proceeds, fees, commissions and other
costs and expenses payable to Holdings or the Company or any Affiliate of
either of them shall be disregarded, except for financial advisory fees
customary in type and amount paid to Blackstone.


 


 “Non-Consenting Lender” shall have the
meaning assigned to such term in Section 2.19(c).


 


“Obligations”
shall mean all amounts owing to the Administrative Agent or any Lender pursuant
to the terms of this Agreement or any other Loan Document.


 


“Offer” shall have
the meaning assigned to such term in the Original Credit Agreement.


 


“Original Closing Date”
shall mean the Closing Date under and as defined in the Original Credit
Agreement.


 


“Original Credit
Agreement” shall have the meaning assigned to such term in the first
recital of this Agreement.


 


36





















 


“Other Taxes”
shall mean any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, the Loan Documents, and any and all interest and
penalties related thereto.


 


“Over-Allotment
Proceeds” shall mean the gross proceeds received by Parent from the
exercise of the underwriters’ over-allotment option in connection with the IPO.


 


“Parent” shall
mean Celanese Corporation, a Delaware corporation.


 


“Parent Company”
shall mean Parent and any subsidiary of Parent that is 100% owned by Parent and
which owns directly or indirectly 100% of the issued and outstanding Equity
Interests of the Company.


 


“Parent Dividend”
shall mean a dividend or dividends paid by Parent to its pre-IPO stockholders
in an amount not to exceed (x) $803,594,144.00 plus (y) all Over-Allotment
Proceeds.


 


“Participant”
shall have the meaning assigned to such term in Section 2.05(d).


 


“PBGC” shall mean
the Pension Benefit Guaranty Corporation referred to and defined in ERISA.


 


“Perfection
Certificate” shall mean a certificate in the form of Exhibit II to the U.S.
Collateral Agreement or any other form approved by the Collateral Agent.


 


“Permitted Business
Acquisition” shall mean any acquisition of all or any portion of the assets
of, or all the Equity Interests (other than directors’ qualifying shares) in, a
Person or division or line of business of a Person (or any subsequent
investment made in a Person, division or line of business previously acquired
in a Permitted Business Acquisition) if (a) such acquisition was not preceded
by, or effected pursuant to, an unsolicited or hostile offer and (b)
immediately after giving effect thereto: 
(i) no Event of Default shall have occurred and be continuing or would
result therefrom; (ii) all transactions related thereto shall be consummated in
accordance with all material applicable laws; and (iii) (A) Holdings and the
Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect
to such acquisition or formation, with the Financial Performance Covenants
recomputed as at the last day of the most recently ended fiscal quarter of
Holdings and the Subsidiaries, and Holdings shall have delivered to the
Administrative Agent a certificate of a Responsible Officer of Holdings to such
effect, together with all relevant financial information for such Subsidiary or
assets, and (B) any acquired or newly formed Subsidiary shall not be liable for
any Indebtedness (except for Indebtedness permitted by Section 6.01).


 


“Permitted Business
Acquisition Step-Up Period” shall mean any period commencing on the first
day on which the Total Leverage Ratio on a Pro Forma Basis is less than 3.00 to
1.00 and ending on the first day thereafter on which the Total Leverage Ratio
on a Pro Forma Basis is greater than or equal to 3.00 to 1.00.


 


37





















 


“Permitted Cure
Security” shall mean (i) any common equity security of Holdings and/or (ii)
any equity security of Holdings having no mandatory redemption, repurchase or
similar requirements prior to 91 days after the Term Loan Maturity Date, and
upon which all dividends or distributions (if any) shall be payable solely in
additional shares of such equity security.


 


“Permitted Holder”
shall mean each of (i) Blackstone, (ii) any other Permitted Investor and (iii)
the Management Group, with respect to not more than 15% of the total voting
power of the Equity Interests of Parent.


 


“Permitted Investments”
shall mean:


 


(a)                                  direct obligations of the United States
of America or any member of the European Union or any agency thereof or
obligations guaranteed by the United States of America or any member of the
European Union or any agency thereof, in each case with maturities not
exceeding two years;


 


(b)                                 time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company that is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital, surplus and
undivided profits having a Dollar Equivalent that is in excess of $500.0
million and whose long-term debt, or whose parent holding company’s long-term
debt, is rated A (or such similar equivalent rating or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436
under the Securities Act);


 


(c)                                  repurchase obligations with a term of not
more than 180 days for underlying securities of the types described in clause
(a) above entered into with a bank meeting the qualifications described in
clause (b) above;


 


(d)                                 commercial paper, maturing not more than
one year after the date of acquisition, issued by a corporation (other than an
Affiliate of any Borrower) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United States
of America with a rating at the time as of which any investment therein is made
of P-1 (or higher) according to Moody’s or A-1 (or higher) according to
S&P;


 


(e)                                  securities with maturities of two years
or less from the date of acquisition issued or fully guaranteed by any State,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least A by S&P or A2
by Moody’s;


 


(f)                                    shares of mutual funds whose investment
guidelines restrict 95% of such funds’ investments to those satisfying the
provisions of clauses (a) through (e) above;


 


38





















 


(g)                                 money market funds that (i) comply with
the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940,
(ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio
assets of at least $5,000.0 million;


 


(h)                                 time deposit accounts, certificates of
deposit and money market deposits in an aggregate face amount not in excess of
1/2 of 1% of the total assets of the Company and the Subsidiaries, on a
consolidated basis, as of the end of the Company’s most recently completed
fiscal year; and


 


(i)                                     in the case of the Captive Insurance
Subsidiaries only, other investments customarily held by the Captive Insurance
Subsidiaries in the ordinary course of their business and consistent with their
past practices.


 


“Permitted Investor”
shall mean (x) Blackstone and (y) each other investor that originally provided
a portion of the Holdco Equity Financing.


 


“Permitted Quarterly
Dividend Amount” shall mean for any fiscal quarter an amount equal to 25%
of the amount specified below opposite the Total Leverage Ratio that was in
effect on the last day of the last fiscal quarter ending prior to such fiscal
quarter:


 




	
  Total Leverage Ratio

  	
   

  	
  Dividend

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  > = 3.00:1.0

  	
   

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  < 3.00:1.0

  > = 2.66:1.0

  	
   

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  < 2.66:1.0

  > = 2.33:1.0

  	
   

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  < 2.33:1.0

  >= 2.00:1.0

  	
   

  	
   

  	
  $

  	
  125,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  < 2.00:1.0

  	
   

  	
   

  	
  $

  	
  150,000,000

  	
   

  






 


“Permitted Receivables
Documents” shall mean all documents and agreements evidencing, relating to
or otherwise governing a Permitted Receivables Financing.


 


“Permitted Receivables
Financing” shall mean one or more transactions pursuant to which (i)
Receivables Assets or interests therein are sold to or financed by one or more
Special Purpose Receivables Subsidiaries, and (ii) such Special Purpose
Receivables Subsidiaries finance their acquisition of such Receivables Assets or
interests therein, or the financing thereof, by selling or borrowing against
such Receivables Assets; provided that (A) recourse to Holdings or any
Subsidiary (other than Special Purpose Receivables Subsidiaries) in connection
with such transactions shall be limited to the extent customary for similar
transactions in the applicable jurisdictions (including, to the extent
applicable, in a manner consistent with the delivery of a “true sale”/”absolute
transfer” opinion with respect to any transfer by Holdings or


 


39





















 


any Subsidiary
(other than a Special Purpose Receivables Subsidiary) and purchase price
percentages being reasonably satisfactory to the Administrative Agent) and (B)
the aggregate Receivables Net Investment since the Original Closing Date shall
not exceed $200.0 million at any time.


 


“Permitted Refinancing
Indebtedness” shall mean any Indebtedness issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund (collectively, to “Refinance”), the Indebtedness being Refinanced
(or previous refinancings thereof constituting Permitted Refinancing
Indebtedness); provided that (a) the principal amount (or accreted
value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if applicable) of the
Indebtedness so Refinanced (plus unpaid accrued interest and premium thereon),
(b) the average life to maturity of such Permitted Refinancing Indebtedness is
greater than or equal to that of the Indebtedness being Refinanced, (c) if the
Indebtedness being Refinanced is subordinated in right of payment to the
Obligations under this Agreement, such Permitted Refinancing Indebtedness shall
be subordinated in right of payment to such Obligations on terms at least as
favorable to the Lenders as those contained in the documentation governing the
Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness shall
have different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced is
secured by any collateral (whether equally and ratably with, or junior to, the
Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be
secured by such collateral (including, in respect of working capital facilities
of Foreign Subsidiaries otherwise permitted under this Agreement only, any
collateral pursuant to after-acquired property clauses to the extent any such
collateral secured the Indebtedness being Refinanced) on terms no less
favorable to the Secured Parties than those contained in the documentation
governing the Indebtedness being Refinanced.


 


“Permitted Senior
Subordinated Debt Securities” shall mean (x) Senior Subordinated Notes and
(y) unsecured senior subordinated notes issued by the Company (i) the terms of
which (1) do not provide for any scheduled repayment, mandatory redemption or
sinking fund obligation prior to the date on which the final maturity of the
Senior Subordinated Notes occurs (as in effect on the Restatement Effective
Date) and (2) provide for subordination to the Obligations under the Loan
Documents to substantially the same extent as the Senior Subordinated Note
Indenture, (ii) the covenants, events of default, guarantees and other terms of
which (other than interest rate and redemption premiums), taken as a whole, are
not more restrictive to Holdings and the Subsidiaries than those in the Senior
Subordinated Notes and (iii) as to which no Subsidiary or parent company of the
Company is an obligor that is not an obligor under the Senior Subordinated
Notes.


 


“Person” shall
mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company or government,
individual or family trusts, or any agency or political subdivision thereof.


 


“Plan” shall mean
any employee pension benefit plan (other than a Multiemployer Plan) subject to
the provisions of Title IV of ERISA or Section 412 of the Code and in
respect of which Holdings, the Company, any Subsidiary (including the Company)
or any ERISA Affiliate


 


40





















 


is (or, if such
plan were terminated, would under Section 4069 of ERISA be deemed to be)
an “employer” as defined in Section 3(5) of ERISA.


 


“Pledged Collateral”
shall have the meaning assigned to such term in the U.S. Collateral Agreement,
the Bidco Pledge (if executed), each Alternate Pledge Agreement and each
Foreign Pledge Agreement, as applicable.


 


“Presumed Tax Rate”
shall mean the highest effective marginal statutory combined U.S. federal,
state and local income tax rate prescribed for an individual residing in New
York City (taking into account (i) the deductibility of state and local income
taxes for U.S. federal income tax purposes, assuming the limitation of Section 68(a)(2)
of the Code applies and taking into account any impact of the Code, and (ii)
the character (long-term or short-term capital gain, dividend income or other
ordinary income) of the applicable income).


 


“Primary obligor”
shall have the meaning given such term in the definition of the term “Guarantee.”


 


“Prime Rate” shall
mean the rate of interest per annum announced from time to time by DBNY as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced
as being effective.


 


“Pro Forma Basis”
shall mean, as to any person, for any events as described in clauses (i) and
(ii) below that occur subsequent to the commencement of a period for which the
financial effect of such events is being calculated, and giving effect to the
events for which such calculation is being made, such calculation as will give pro forma effect to such events as if such
events occurred on the first day of the four consecutive fiscal quarter period
ended on or before the occurrence of such event (the “Reference Period”):


 


(i)                                     in making any determination of EBITDA, pro forma effect shall be given to any Asset
Disposition and to any Asset Acquisition (or any similar transaction or
transactions that require a waiver or consent of the Required Lenders pursuant
to Section 6.04 or 6.05), in each case that occurred during the Reference
Period (or, in the case of determinations made pursuant to the definition of
the term “Asset Acquisition,” occurring during the Reference Period or
thereafter and through and including the date upon which the respective Asset
Acquisition is consummated); and


 


(ii)                                  in making any determination on a Pro
Forma Basis, (x) all Indebtedness (including Indebtedness incurred or assumed
and for which the financial effect is being calculated, whether incurred under
this Agreement or otherwise, but excluding normal fluctuations in revolving
Indebtedness incurred for working capital purposes and amounts outstanding
under any Permitted Receivables Financing, in each case not to finance any
acquisition) incurred or permanently repaid during the Reference Period (or, in
the case of determinations made pursuant to the definition of the term “Asset
Acquisition,” occurring during the Reference Period or thereafter and through
and including the date upon which the respective Asset Acquisition is
consummated) shall be deemed to have been


 


41





















 


incurred or repaid
at the beginning of such period and (y) Interest Expense of such person
attributable to interest on any Indebtedness, for which pro forma effect is being given as provided in preceding clause (x),
bearing floating interest rates shall be computed on a pro forma basis as if the rates that would have been in effect
during the period for which pro forma
effect is being given had been actually in effect during such periods.


 


Pro
forma
calculations made pursuant to the definition of the term “Pro Forma Basis”
shall be determined in good faith by a Responsible Officer of the Company and
(x) for any fiscal period ending on or prior to the first anniversary of an
Asset Acquisition or Asset Disposition (or any similar transaction or
transactions that require a waiver or consent of the Required Lenders pursuant
to Section 6.04 or 6.05), may include adjustments to reflect operating
expense reductions and other operating improvements or synergies reasonably
expected to result from such Asset Acquisition, Asset Disposition or other
similar transaction, to the extent that the Company delivers to the
Administrative Agent (i) a certificate of a Financial Officer of the Company
setting forth such operating expense reductions and other operating
improvements or synergies and (ii) information and calculations supporting in
reasonable detail such estimated operating expense reductions and other
operating improvements or synergies, and (y) for any fiscal period ending prior
to the first anniversary of the Closing Date, pro  forma effect
shall be given to the Transaction in determining EBITDA so long as the required
certifications described in preceding clause (x) are specifically included in
reasonable detail in the respective officer’s certificate and related
information and calculations.


 


“Projections”
shall mean the projections of Holdings and the Subsidiaries included in the RED
Information Memorandum and any other projections and any forward-looking
statements (including statements with respect to booked business) of such
entities furnished to the Lenders or the Administrative Agent in connection
with the events described in clause (ii) of the definition of Transaction by or
on behalf of Holdings, the Company or any of the Subsidiaries prior to the
Restatement Effective Date.


 


“Quotation Day”
shall mean, with respect to any Eurocurrency Borrowing or Swingline Euro
Borrowing and any Interest Period, the day on which it is market practice in
the relevant interbank market for prime banks to give quotations for deposits
in the currency of such Borrowing for delivery on the first day of such
Interest Period.  If such quotations
would normally be given by prime banks on more than one day, the Quotation Day
will be the last of such days.


 


“Receivables Assets”
shall mean accounts receivable (including any bills of exchange) and related
assets and property from time to time originated, acquired or otherwise owned
by Holdings or any Subsidiary.


 


“Receivables Net
Investment” shall mean the aggregate cash amount paid by the lenders or
purchasers under any Permitted Receivables Financing in connection with their
purchase of, or the making of loans secured by, Receivables Assets or interests
therein, as the same may be reduced from time to time by collections with
respect to such Receivables Assets or otherwise in accordance with the terms of
the Permitted Receivables Documents; provided, however, that if
all or any part of such Receivables Net Investment shall have been reduced by


 


42





















 


application of any
distribution and thereafter such distribution is rescinded or must otherwise be
returned for any reason, such Receivables Net Investment shall be increased by
the amount of such distribution, all as though such distribution had not been
made.


 


“RED Agreed Exchange
Rate” shall mean 1.2944.


 


“RED Information
Memorandum” shall mean the Confidential Information Memorandum to be
provided to prospective Lenders in connection with the Agreement to Amend, as
modified or supplemented.


 


“Reduction Period”
shall mean any fiscal quarter if the Total Leverage Ratio on the last day of
the immediately preceding fiscal quarter was less than 2.75 to 1.00, but only
to the extent that the Company shall have delivered to the Administrative Agent
within 45 days after such last day a certificate of a Financial Officer of the
Company setting forth computations in reasonable detail satisfactory to the
Administrative Agent showing that the Total Leverage Ratio was less than 2.75 to
1.00 on such last day.


 


“Reference Period”
shall have the meaning assigned to such term in the definition of the term “Pro
Forma Basis.”


 


“Refinance” shall
have the meaning assigned to such term in the definition of the term “Permitted
Refinancing Indebtedness,” and “Refinanced” shall have a meaning
correlative thereto.


 


“Refinanced Term Loans”
shall have the meaning assigned to such term in Section 9.08(e).


 


“Refinancing”
shall mean a refinancing of indebtedness for borrowed money of the Company and
its subsidiaries outstanding on the Closing Date.


 


“Register” shall
have the meaning assigned to such term in Section 9.04(b).


 


“Regulation U”
shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.


 


“Regulation X”
shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.


 


“Related Parties”
shall mean, with respect to any specified person, such person’s Affiliates and
the respective directors, officers, employees, agents and advisors of such
person and such person’s Affiliates.


 


“Release” shall
mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing,
emanating or migrating in, into, onto or through the Environment.


 


43





















 


“Remaining Present
Value” shall mean, as of any date with respect to any lease, the present
value as of such date of the scheduled future lease payments with respect to
such lease, determined with a discount rate equal to a market rate of interest
for such lease reasonably determined at the time such lease was entered into.


 


“Replacement Term
Loans” shall have the meaning assigned to such term in Section 9.08(e).


 


“Reportable Event”
shall mean any reportable event as defined in Section 4043(c) of ERISA or
the regulations issued thereunder, other than those events as to which the
30-day notice period referred to in Section 4043(c) of ERISA has been
waived, with respect to a Plan (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the Code).


 


“Request to Issue”
shall have the meaning assigned to such term in Section 2.05(b).


 


“Required Lenders”
shall mean, at any time, Lenders having (a) Term Loan Exposures, (b) Revolving
Facility Credit Exposures, (c) Available Revolving Unused Commitments (if prior
to the termination thereof) and (d) Credit-Linked Commitments (or after the
termination thereof, CL Percentages of the CL Exposure) that taken together,
represent more than 50% of the sum of (w) all Term Loan Exposures, (x) all
Revolving Facility Credit Exposures, (y) the total Available Revolving Unused
Commitments (if prior to the termination thereof) and (z) the Total
Credit-Linked Commitment (or after the termination thereof, the CL Exposure) at
such time.  The Term Loan Exposure,
Revolving Facility Credit Exposure, Available Revolving Unused Commitment and
Credit-Linked Commitment of any Defaulting Lender shall be disregarded in
determining Required Lenders at any time.


 


“Required Percentage”
shall mean, with respect to an Excess Cash Flow Period, (i) 75% or (ii) 50% for
any Excess Cash Flow Period ending on or after December 31, 2005, if the
Total Leverage Ratio at the end of such Excess Cash Flow Period was less than
3.00 to 1.00.


 


“Reserve Account”
shall have the meaning assigned to such term in Section 10.02(a).


 


“Reset Date” shall
have the meaning assigned to such term in Section 1.03(a).


 


“Responsible Officer”
of any person shall mean any executive officer or Financial Officer of such
person and any other officer or similar official thereof responsible for the
administration of the obligations of such person in respect of this Agreement.


 


“Restatement Effective
Date” shall be the Restatement Effective Date under and as defined in the
Agreement to Amend.


 


“Restructuring Date”
shall have the meaning assigned such term in the Original Credit Agreement.


 


44





















 


“Revolving
Availability Period” shall mean the period from and including the
Restatement Effective Date to but excluding the earlier of the Revolving
Facility Maturity Date and in the case of each of the Revolving Facility Loans,
Revolving Facility Borrowings, Swingline Dollar Loans, Swingline Dollar
Borrowings, Swingline Euro Loans and Swingline Euro Borrowings and RF Letters
of Credit, the date of termination of the Revolving Facility Commitments.


 


“Revolving Borrower
Agreement” shall mean a Subsidiary Borrower Agreement substantially in the
form of Exhibit G-1.


 


“Revolving Borrower
Termination” shall mean a Subsidiary Borrower Termination substantially in
the form of Exhibit G-2.


 


“Revolving Borrowers” shall mean (x)
CAC and the Company (each of which shall have a Maximum Credit Limit at any
time equal to the Dollar Equivalent of the aggregate Revolving Facility
Commitments at such time) and (y) from the date of the execution and delivery
to the Administrative Agent by it of a Revolving Borrower Agreement to but not
including the date of the execution and delivery to the Administrative Agent by
it of a Revolving Borrower Termination, each Subsidiary of the Company designated
as a Revolving Borrower by the Company pursuant to Section 2.20.


 


“Revolving Facility”
shall mean the Revolving Facility Commitments and the extensions of credit made
hereunder by the Revolving Facility Lenders.


 


“Revolving Facility
Borrowing” shall mean a Borrowing comprised of Revolving Facility Loans.


 


“Revolving Facility
Commitment” shall mean, with respect to each Revolving Facility Lender, the
commitment of such Revolving Facility Lender to make Revolving Facility Loans
pursuant to Section 2.01, expressed as an amount representing the maximum
aggregate permitted amount of such Revolving Facility Lender’s Revolving
Facility Credit Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender under Section 9.04.  The aggregate amount of the Revolving
Facility Commitments on the Restatement Effective Date is $600.0 million.


 


“Revolving Facility
Credit Exposure” shall mean, at any time, the sum of (a) the aggregate
principal amount of the Revolving Facility Loans denominated in Dollars
outstanding at such time, (b) the Dollar Equivalent of the aggregate principal
amount of the Revolving Facility Loans denominated in Euros outstanding at such
time, (c) the Swingline Dollar Exposure at such time, (d) the Swingline Euro
Exposure at such time and (e) the Revolving L/C Exposure at such time.  The Revolving Facility Credit Exposure of any
Revolving Facility Lender at any time shall be the sum of (a) the aggregate
principal amount of such Revolving Facility Lender’s Revolving Facility Loans
denominated in Dollars outstanding at such time, (b) the Dollar Equivalent of
the aggregate principal amount of Revolving Facility Lender’s Revolving
Facility Loans denominated in Euros outstanding at such time and (c) such
Revolving Facility Lender’s


 


45


















 


Revolving Facility
Percentage of the Swingline Dollar Exposure, Swingline Euro Exposure and
Revolving L/C Exposure at such time.


 


“Revolving Facility
Lender” shall mean a Lender with a Revolving Facility Commitment or with
outstanding Revolving Facility Loans.


 


“Revolving Facility
Loan” shall mean a Loan made by a Revolving Facility Lender pursuant to Section 2.01(b).  Each Revolving Facility Loan denominated in
Dollars shall be a Eurocurrency Loan or an ABR Loan, and each Revolving
Facility Loan denominated in Euros shall be a Eurocurrency Loan.


 


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


 


“Revolving Facility
Percentage” shall mean, with respect to any Revolving Facility Lender, the
percentage of the total Revolving Facility Commitments represented by such
Lender’s Revolving Facility Commitment. 
If the Revolving Facility Commitments have terminated or expired, the
Revolving Facility Percentages shall be determined based upon the Revolving
Facility Commitments most recently in effect, giving effect to any assignments
pursuant to Section 9.04.


 


“Revolving L/C
Exposure” shall mean at any time the sum of (a) the aggregate undrawn
amount of all RF Letters of Credit denominated in Dollars outstanding at such time,
(b) the Dollar Equivalent of the aggregate undrawn amount of all RF Letters of
Credit denominated in Euros outstanding at such time, (c) the aggregate
principal amount of all Dollar L/C Disbursements made in respect of RF Letters
of Credit that have not yet been reimbursed at such time and (d) the Dollar
Equivalent of the aggregate principal amount of Euro L/C Disbursements made in
respect of RF Letters of Credit that have not yet been reimbursed at such
time.  The Revolving L/C Exposure of any
Revolving Facility Lender at any time shall mean its Revolving Facility
Percentage of the aggregate Revolving L/C Exposure at such time.


 


“RF Commitment Fee”
shall have the meaning assigned to such term in Section 2.12(a).


 


“RF Letter of Credit”
shall mean each Letter of Credit designated as such pursuant to Schedule 2.05(a)
or the relevant Request to Issue (although any RF Letter of Credit initially
designated as such shall cease to constitute an RF Letter of Credit upon its
re-designation as a CL Letter of Credit pursuant to Section 2.05(b)).


 


“RF Reserve Account”
shall have the meaning assigned to such term in Section 10.02(a).


 


“S&P” shall
mean Standard & Poor’s Ratings Group, Inc.


 


“Sale and Lease-Back
Transaction” shall have the meaning assigned to such term in Section 6.03.


 


46





















 


“Screen Rate”
shall mean:


 


(a)                                  for Loans denominated in Dollars, the
British Bankers Association Interest Settlement Rate; and


 


(b)                                 for Loans denominated in Euros, the
percentage rate per annum determined by the Banking Federation of the European
Union


 


for the applicable
Interest Period displayed on the appropriate page of the Telerate screen
selected by the Administrative Agent.  If
the relevant page is replaced or the service ceases to be available, the
Administrative Agent (after consultation with the Company and the Lenders) may
specify another page or service displaying the appropriate rate.


 


“SEC” shall mean
the Securities and Exchange Commission or any successor thereto.


 


“Secured Parties”
shall mean the “Secured Parties” as defined in the U.S. Collateral Agreement.


 


“Securities Act”
shall mean the Securities Act of 1933, as amended.


 


“Security Documents”
shall mean, at any time, each of the Mortgages, the U.S. Collateral Agreement
and all Supplements thereto, the Holdings Agreement, the Bidco Pledge if then
in effect, any Foreign Pledge Agreement then in effect, any Alternate Pledge
Agreement then in effect, and each of the security agreements, mortgages and
other instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.10.


 


“Senior Discount
Clawback” shall mean the redemption of 35% of the outstanding principal
amount of the Senior Discount Notes by a payment of principal and premium
totaling approximately $207 million.


 


“Senior Discount Notes”
shall mean the (i) U.S. Dollar-denominated 10% Series A Senior Discount Notes
due 2014 and (ii) Euro-denominated 10-1/2% Series B Senior Discount Notes due
2014, in each case issued by Topco and Crystal US Sub 3 Corp.


 


“Senior Subordinated
Clawback” shall mean the redemption of 35% of the outstanding principal
amount of the Senior Subordinated Notes for a payment of principal and premium
equal to approximately $566 million.


 


“Senior Subordinated
Note Indenture” shall mean the Indenture dated as of June 8, 2004
among the Company and The Bank of New York, a New York banking corporation, as
trustee, governing the Senior Subordinated Notes.


 


“Senior Subordinated
Notes” shall mean the (i) U.S. Dollar-denominated 9-5/8% Senior
Subordinated Notes due 2014 and (ii) Euro-denominated 10-3/8% Senior
Subordinated Notes due 2014, in each case issued by the Company.


 


47





















 


“Special Purpose
Receivables Subsidiary” shall mean a direct or indirect Subsidiary of the
Company established in connection with a Permitted Receivables Financing for
the acquisition of Receivables Assets or interests therein, and which is
organized in a manner intended to reduce the likelihood that it would be
substantively consolidated with Holdings or any of the Subsidiaries (other than
Special Purpose Receivables Subsidiaries) in the event Holdings or any such
Subsidiary becomes subject to a proceeding under the U.S. Bankruptcy Code (or other
insolvency law).


 


“Specified Loan Party”
shall mean at any time a Loan Party at such time if the Obligations owing by it
(directly or by guarantee) are unsecured by a Lien on its assets.


 


“Squeeze-Out”
shall mean the procedures set out in sections 327a et  seq. of the
German Stock Corporation Act in respect of the acquisition of the shares of the
Company by Bidco.


 


“Statutory Reserves”
shall mean, with respect to any currency, any reserve, liquid asset or similar
requirements established by any Governmental Authority of the United States of
America or of the jurisdiction of such currency or any jurisdiction in which
Loans in such currency are made to which banks in such jurisdiction are subject
for any category of deposits or liabilities customarily used to fund loans in
such currency or by reference to which interest rates applicable to Loans in
such currency are determined.


 


“Subordinated
Intercompany Debt” shall have the meaning assigned to such term in Section 6.01(e).


 


“subsidiary” shall
mean, with respect to any person (herein referred to as the “parent”),
any corporation, partnership, association or other business entity of which
securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or more than 50% of the
general partnership interests are, at the time any determination is being made,
directly or indirectly, owned, Controlled, or held (or that is, at the time any
determination is made, otherwise Controlled) by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent, provided that Estech GmbH & Co. KG and Estech Managing GmbH shall
not constitute subsidiaries.


 


“Subsidiary” shall
mean, unless the context otherwise requires, a subsidiary of Holdings.


 


“Subsidiary Borrower”
shall mean CAC, Bidco if the DD Borrower and each other Subsidiary that is a
Subsidiary Revolving Borrower.


 


“Subsidiary Loan Party”
shall mean (i) each Subsidiary that is a Domestic Subsidiary Loan Party and
(ii) each Subsidiary that is a Foreign Subsidiary Loan Party.


 


“Subsidiary Revolving
Borrower” shall have the meaning assigned to that term in the introductory
paragraph of this Agreement.


 


48





















 


“Supplement” shall
have the meaning assigned to that term in the U.S. Collateral Agreement.


 


“Swap Agreement”
shall mean any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by
reference to, one or more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions, provided that no
phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of Holdings or any of its Subsidiaries shall be a Swap Agreement.


 


“Swingline Borrower”
shall mean and include each Domestic Swingline Borrower and each Foreign
Swingline Borrower.


 


“Swingline Borrowing
Request” shall mean a request substantially in the form of Exhibit C.


 


“Swingline Dollar
Borrowing” shall mean a Borrowing comprised of Swingline Dollar Loans.


 


“Swingline Dollar
Commitment” shall mean, with respect to each Swingline Dollar Lender, the
commitment of such Swingline Dollar Lender to make Swingline Dollar Loans
pursuant to Section 2.04.  The
amount of each Swingline Dollar Lender’s Swingline Dollar Commitment on the
Restatement Effective Date is set forth on Schedule 2.04 as the
same may be modified at the request of the Company with the consent of any
Revolving Facility Lender being added as a Swingline Dollar Lender and the
Administrative Agent.  The aggregate
amount of the Swingline Dollar Commitments on the Restatement Effective Date is
$75.0 million.


 


“Swingline Dollar
Exposure” shall mean at any time the aggregate principal amount of all
outstanding Swingline Dollar Borrowings at such time.  The Swingline Dollar Exposure of any
Revolving Facility Lender at any time shall mean its Revolving Facility
Percentage of the aggregate Swingline Dollar Exposure at such time.


 


“Swingline Dollar
Lender” shall mean a Lender with a Swingline Dollar Commitment or
outstanding Swingline Dollar Loans.


 


“Swingline Dollar
Loans” shall mean the swingline loans denominated in Dollars and made
pursuant to Section 2.04.


 


“Swingline Euro
Borrowing” shall mean a Borrowing comprised of Swingline Euro Loans.


 


“Swingline Euro
Commitment” shall mean, with respect to each Swingline Euro Lender, the
commitment of such Swingline Euro Lender to make Swingline Euro Loans pursuant
to Section 2.04.  The amount of each
Swingline Euro Lender’s Swingline Euro Commitment on


 


49





















 


the Restatement
Effective Date is set forth on Schedule 2.04 as the same may be
modified at the request of the Company with the consent of any Revolving
Facility Lender being added as a Swingline Euro Lender and the Administrative
Agent.  The aggregate amount of the
Swingline Euro Commitments on the Restatement Effective Date is €75.0 million.


 


“Swingline Euro
Exposure” shall mean at any time the Dollar Equivalent of the aggregate
principal amount of all outstanding Swingline Euro Loans at such time.  The Swingline Euro Exposure of any Revolving
Facility Lender at any time shall mean its Revolving Facility Percentage of the
aggregate Swingline Euro Exposure at such time.


 


“Swingline Euro Lender”
shall mean a Lender with a Swingline Euro Commitment or outstanding Swingline
Euro Loans.


 


“Swingline Euro Loans”
shall mean the swingline loans denominated in Euros and made to a Foreign
Subsidiary Borrower pursuant to Section 2.04.


 


“Swingline Exposure”
shall mean at any time the sum of the Swingline Dollar Exposure and the
Swingline Euro Exposure.


 


“Swingline Lender”
shall mean (i) the Swingline Dollar Lenders, in their respective capacities as
Lenders of Swingline Dollar Loans, and (ii) the Swingline Euro Lenders, in
their respective capacities as Lenders of Swingline Euro Loans.


 


“Swingline Loans”
shall mean the Swingline Dollar Loans and the Swingline Euro Loans.


 


“Syndication Agent”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Tax Distribution”
shall mean any distribution described in Section 6.06(f).


 


“Taxes” shall mean
any and all present or future taxes, levies, imposts, duties (including stamp
duties), deductions, charges (including ad  valorem charges) or
withholdings imposed by any Governmental Authority and any and all interest and
penalties related thereto.


 


“Term Availability
Period” shall mean the period from and including the Restatement Effective
Date until 5 p.m. New York City time on the DD Termination Date.


 


“Term Borrowing”
shall mean a borrowing of Term Loans.


 


“Term C Repayment”
shall mean the repayment in full on the Restatement Effective Date of the Term
Loan C Financing (as defined in the Original Credit Agreement).


 


“Term Lender”
shall mean a Lender with a Delayed Draw Commitment or with outstanding Term
Loans.


 


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“Term Loan” shall
mean each B Term Loan and C Term Loan. 
Each Term Loan shall be a Eurocurrency Loan or an ABR Loan.  Any Term Loan that is repaid may not be
reborrowed.


 


“Term Loan Exposure”
shall mean, at any time, the sum of (a) the aggregate principal amount of the
Dollar Term Loans outstanding at such time, (b) the Dollar Equivalent of the
aggregate principal amount of the Euro Term Loans outstanding at such time and
(c) the aggregate Delayed Draw Commitments outstanding at such time.  The Term Loan Exposure of any Lender at any
time shall be the sum of (a) the aggregate principal amount of such Lender’s
Dollar Term Loans outstanding at such time, (b) the Dollar Equivalent of the
aggregate principal amount of such Lender’s Euro Term Loans outstanding at such
time and (c) such Lender’s Delayed Draw Commitment at such time.


 


“Term Loan Facility”
shall first come into existence on the DD Termination Date if, and only if, the
Company is the DD Borrower and shall mean the Term Loans made or continued
hereunder on or after the Restatement Effective Date.


 


“Term Loan Maturity
Date” shall mean the date which is the seventh anniversary of the Original
Closing Date.


 


“Test Period”
shall mean, on any date of determination, the period of four consecutive fiscal
quarters of Holdings then most recently ended (taken as one accounting period).


 


“TL Borrower Pro Rata
Basis” shall mean at any time, as between the Term Loans owed by the
Company and Bidco, respectively, (x) the portion of the Maximum Term Amount
then owed by the Company to (y) the portion of the Maximum Term Amount then
owed by Bidco.


 


“TL Commitment Fee”
shall have the meaning assigned to such term in Section 2.12(c).


 


“TL Repayment Ratio”
shall mean at any time the ratio of (A) the amount equal to (x) the aggregate
principal amount of Dollar Term Loans (less, if prior to the DD Termination
Date, (i) for purposes of Section 2.10(a) the aggregate principal amount
of Dollar Term Loans made (as opposed to continued) on the Restatement
Effective Date and C Term Loans and (ii) for purposes of Section 2.10(c)
the aggregate principal amount of C Term Loans) then outstanding times (I) for
all Dollar Term Loans continued on the Restatement Effective Date, the Agreed
Exchange Rate or (II) for all other Dollar Term Loans, the RED Agreed Exchange
Rate to (B) the aggregate principal amount of Euro Term Loans (less, if prior
to the DD Termination Date, for purposes of Section 2.10(c) the aggregate
principal amount of Euro Term Loans made (as opposed to continued) on the
Restatement Effective Date) then outstanding.


 


“Topco” shall mean
Crystal US Holdings 3 L.L.C., a Delaware limited liability company.


 


51





















 


“Total Credit-Linked
Commitment” shall mean, at any time, the sum of the Credit-Linked
Commitments of each of the Lenders at such time, which on the Restatement
Effective Date shall equal $227,855,625.


 


“Total Leverage Ratio”
shall mean, on any date, the ratio of (a) Consolidated Net Debt as of such date
to (b) EBITDA for the period of four consecutive fiscal quarters of Holdings
most recently ended as of such date, all determined on a consolidated basis in
accordance with US GAAP; provided that any Asset Disposition or any
Asset Acquisition (or any similar transaction or transactions that require a
waiver or consent by the Required Lenders pursuant to Section 6.04 or
6.05) or incurrence or repayment of Indebtedness (excluding normal fluctuations
in revolving Indebtedness incurred for working capital purposes) has occurred
during the relevant Test Period, EBITDA shall be determined for the respective
Test Period on a Pro Forma Basis for such occurrences.


 


“Total Unutilized
Credit-Linked Commitment” shall mean, at any time, an amount equal to the
remainder of (x) the Total Credit-Linked Commitment then in effect less (y) the
CL Exposure at such time.


 


“Transaction”
shall mean (i) all the transactions included within the defined term “Transaction”
in the Original Credit Agreement plus (ii) the Transaction as defined in the
Agreement to Amend (which term includes (a) the consummation of the IPO; (b)
the execution and delivery of the amended or amended and restated Loan
Documents on the Restatement Effective Date and the initial borrowings under Section 2.01(a)
hereof; (c) the Senior Subordinated Clawback; (d) the Senior Discount Clawback;
(e) the Term C Repayment; (f) the Company Dividend; (g) the Parent Dividend;
and (h) the payment of all fees and expenses to be paid on or prior to the
Restatement Effective Date and owing in connection with the foregoing.


 


“Transaction Costs”
shall mean the out-of-pocket costs and expenses incurred by Holdings or any
Subsidiary in connection with the Transaction, the financing of the Transaction
and any refinancing of such financing (including fees paid to the Lenders and
fees and expenses of the Permitted Investors and their counsel and advisors).


 


“Type”, when used
in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is
determined.  For purposes hereof, the
term “Rate” shall include the Adjusted LIBO Rate and the Alternate Base
Rate, provided that Dollar Term Loans and Euro Term Loans shall be of a
different Type.


 


“U.S. Bankruptcy Code”
shall mean Title 11 of the United States Code, as amended, or any similar
federal or state law for the relief of debtors.


 


“U.S. Collateral
Agreement” shall mean the Guarantee and Collateral Agreement, as amended,
supplemented or otherwise modified from time to time, among the Company, the
Guarantor Subsidiaries and the Collateral Agent in the form delivered on the
Original Closing Date (and as supplemented on the Restructuring Date and as
amended by Amendment No. 1 thereto effected in connection with the Agreement to
Amend).


 


52





















 


“US GAAP” shall
mean generally accepted accounting principles in effect from time to time in
the United States, applied on a consistent basis, subject to the provisions of Section 1.02.


 


“Vinamul Acquisition”
shall mean the acquisition of Vinamul Polymers, the North American and European
emulsion polymers business of National Starch and Chemical Company, a
subsidiary of Imperial Chemicals Industries PLC, for $208 million.


 


“Wholly Owned
Subsidiary” of any person shall mean a subsidiary of such person, all of
the Equity Interests of which (other than directors’ qualifying shares or
nominee or other similar shares required pursuant to applicable law) are owned
by such person or another Wholly Owned Subsidiary of such person, provided
that CAG and its Wholly Owned Subsidiaries shall on and after the Original
Closing Date constitute Wholly Owned Subsidiaries of the Company.


 


“Withdrawal Liability”
shall mean liability to a Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.


 


“Working Capital”
shall mean, with respect to Holdings and the Subsidiaries on a consolidated
basis at any date of determination, Current Assets at such date of
determination minus Current Liabilities at such date of determination; provided
that, for purposes of calculating Excess Cash Flow, increases or decreases in
Working Capital shall be calculated without regard to any changes in Current
Assets or Current Liabilities as a result of (a) any reclassification in
accordance with US GAAP of assets or liabilities, as applicable, between
current and noncurrent or (b) the effects of purchase accounting.


 


SECTION 1.02  Terms Generally.  The definitions set forth or referred to in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. 
The words “include,” “includes” and “including” shall be deemed to be
followed by the phrase “without limitation.” 
All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require.  Except as otherwise expressly provided herein,
any reference in this Agreement to any Loan Document shall mean such document
as amended, restated, supplemented or otherwise modified from time to
time.  Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with US GAAP, as in effect from time to time; provided
that, if Holdings notifies the Administrative Agent that Holdings requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Restatement Effective Date in US GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies Holdings that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in US GAAP or in the application thereof,
then such provision shall be interpreted on the basis of US GAAP as in effect
and applied immediately before such change shall have become effective until
such notice shall have been withdrawn or such provision amended in


 


53





















 


accordance herewith.  For the
purposes of determining compliance with Section 6.01 through Section 6.10
with respect to any amount in a currency other than Dollars, amounts shall be
deemed to equal the Dollar Equivalent thereof determined using the Exchange
Rate calculated as of the Business Day on which such amounts were incurred or
expended, as applicable.  In addition,
for purposes of this Agreement, inventory will be deemed to be accounted for on
a “first-in-first-out” basis.


 


SECTION 1.03  Exchange Rates.  (a)    Not later than 1:00 p.m., New York City time,
on each Calculation Date, the Administrative Agent shall (i) determine the
Exchange Rate as of such Calculation Date and (ii) give notice thereof to the
Company.  The Exchange Rates so
determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (a “Reset Date”), shall remain
effective until the next succeeding Reset Date, and shall for all purposes of
this Agreement (other than any other provision expressly requiring the use of
an Exchange Rate calculated as of a specified date) be the Exchange Rates
employed in converting any amounts between Dollars and Euros.


 


(b)           Not later than 5:00 p.m., New York
City time, on each Reset Date, the Administrative Agent shall (i) determine the
aggregate amount of the Dollar Equivalents of (x) the Euro Term Loans then
outstanding and the Term Loan Commitments (Euros) on such date and (y) the
principal amounts of the Revolving Loans and Swingline Loans denominated in
Euros then outstanding (after giving effect to any Euro Term Loans or Revolving
Loans and Swingline Loans denominated in Euros made or repaid on such date),
the Revolving L/C Exposure and the CL Exposure and (ii) notify the Lenders,
each Issuing Bank and the Company of the results of such determination.


 


SECTION 1.04  Effectuation of Transaction.  Each of the representations and warranties of
Holdings and the Borrowers contained in this Agreement (and all corresponding
definitions) are made after giving effect to the Transaction, unless the
context otherwise requires.


 


ARTICLE II


 


The Credits


 


SECTION 2.01  Commitments.  Subject to the terms and conditions set forth
herein, each Lender agrees:


 


(a)           on the Restatement Effective Date,
(i) to continue outstanding the Term Loans, if any, made under the Original
Credit Agreement, each continued Term Loan to constitute a B Term Loan and
either a Dollar Term Loan or Euro Term Loan to the extent so constituted under
the Original Credit Agreement and to remain subject to the same Interest Period
applicable to them immediately prior to the Restated Effective Date and/or (ii)
to make B Term Loans to the Company in Dollars and/or Euros in the respective
amounts set forth opposite its name on Schedule 2.01 under the heading “New
B Term Loans”;


 


(b)                                 from time to time after the Restatement
Effective Date and during the Term Availability Period, make term loans to the
DD Borrower in Dollars in an aggregate


 


54





















 


amount not to exceed its
Delayed Draw Commitment (if any), such new term loans to constitute C Term
Loans, provided that, if the Company is the DD Borrower, all C Term Loans
outstanding on the DD Termination Date shall be converted into B Term Loans on
such date;


 


(c)                                  to make revolving loans to the Revolving
Borrowers from time to time thereafter during the Revolving Availability Period
in an aggregate principal amount that will not result in (A) such Lender’s
Revolving Facility Credit Exposure exceeding such Lender’s Revolving Facility
Commitment or (B) the Revolving Facility Credit Exposure exceeding the total
Revolving Facility Commitments, such Revolving Facility Loans to be made in (x)
Dollars if to any Revolving Borrower other than a Foreign Subsidiary and (y) in
Euros or Dollars, at the election of the applicable Borrower, if to any Foreign
Revolving Borrower, provided that the aggregate Revolving Facility Credit
Exposure with respect to any Revolving Borrower shall not exceed such Revolving
Borrower’s Maximum Credit Limit; within the foregoing limits and subject to the
terms and conditions set forth herein, the Revolving Borrowers may borrow,
prepay and reborrow Revolving Facility Loans; and


 


(d)                                 to make revolving loans to a CL Borrower
(as specified in the related Borrowing Request) in Dollars from time to time
during the CL Availability Period in an aggregate amount that will not result
in (A) such Lender’s CL Exposure exceeding such Lender’s Credit-Linked
Commitment or (B) the CL Exposure exceeding the Total Credit-Linked Commitment;
within the foregoing limits and subject to the terms and conditions set forth
herein, the CL Borrowers may borrow, repay and reborrow CL Loans.


 


SECTION 2.02(A)  Loans and Borrowings.  (a)  Each
Loan shall be made as part of a Borrowing consisting of Loans under the same
Facility and of the same Type made by the Lenders ratably in accordance with
their respective Commitments under the applicable Facility (or, in the case of
Swingline Loans, in accordance with their respective Swingline Dollar
Commitments or Swingline Euro Commitments, as applicable); provided, however,
that Revolving Facility Loans and CL Loans shall be made by the Revolving
Facility Lenders and CL Lenders, as the case may be, ratably in accordance with
their respective Revolving Facility Percentages or CL Percentages, as the case
may be, on the date such Loans are made hereunder.  The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender’s failure to make Loans as
required.


 


(b)           Subject to Section 2.14, (i)
each Borrowing denominated in Dollars (other than a Swingline Dollar Borrowing)
shall be comprised entirely of ABR Loans or Eurocurrency Loans as the
applicable Borrower may request in accordance herewith and (ii) each Borrowing
denominated in Euros shall be comprised entirely of Eurocurrency Loans.  Each Swingline Dollar Borrowing shall be an
ABR Borrowing.  Each Swingline Euro
Borrowing shall be comprised entirely of Swingline Euro Loans.  Each Lender at its option may make any ABR
Loan or Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of the applicable Borrower to
repay such Loan in accordance with the terms of this Agreement and such Lender
shall not be entitled to any amounts payable under Section 2.15,


 


55





















 


2.17 or 2.21
solely in respect of increased costs resulting from such exercise and existing
at the time of such exercise.


 


(c)           At the commencement of each Interest
Period for any Eurocurrency Revolving Borrowing, such Borrowing shall be in an
aggregate amount that is an integral multiple of the Borrowing Multiple and not
less than the Borrowing Minimum.  At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of the Borrowing Multiple and not
less than the Borrowing Minimum; provided that an ABR Revolving Borrowing
may be in an aggregate amount that is equal to the entire unused balance of the
Revolving Facility Commitments or that is required to finance the reimbursement
of an L/C Disbursement as contemplated by Section 2.05(e).  Each Swingline Dollar Borrowing and Swingline
Euro Borrowing shall be in an amount that is an integral multiple of the
Borrowing Multiple and not less than the Borrowing Minimum.  Borrowings of more than one Type and under
more than one Facility may be outstanding at the same time; provided
that there shall not at any time be more than a total of (i) 10 Eurocurrency
Borrowings outstanding under the B Term Loan Facility, (ii) 4 Eurocurrency
Borrowings outstanding under the Delayed Draw Facility, (iii) after the DD
Termination Date if the Company is the sole DD Borrower, 14 Eurocurrency
Borrowings under the Term Loan Facility and (iv) 20 Eurocurrency Borrowings
outstanding under the Revolving Facility and the CL Facility.


 


(d)           Notwithstanding any other provision
of this Agreement, (i) no Borrower shall be entitled to request, or to elect to
convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Revolving Facility Maturity Date or Term
Loan Maturity Date, as applicable and (ii) no Euro Term Loan may be converted
into a Dollar Term Loan and no Dollar Term Loan may be converted into a Euro
Term Loan.


 


SECTION 2.02(B)  Credit-Linked Deposits.  (a)  As
of the Restatement Effective Date each Lender that is a CL Lender on such date
has paid to the Deposit Bank such CL Lender’s Credit-Linked Deposit in the
amount of its Credit-Linked Commitment. 
The Credit-Linked Deposits shall be held by the Deposit Bank in (or
credited to) the Credit-Linked Deposit Account, and no Person other than the
Deposit Bank shall have a right of withdrawal from the Credit-Linked Deposit
Account or any other right or power with respect to the Credit-Linked
Deposits.  Notwithstanding anything
herein to the contrary, the funding obligation of each CL Lender in respect of
its participation in CL Credit Events shall be satisfied in full upon the
funding of its Credit-Linked Deposit. 
Each of the Deposit Bank, the Administrative Agent, each Issuing Bank
and each CL Lender hereby acknowledges and agrees (i) that each CL Lender is
funding its Credit-Linked Deposit to the Deposit Bank for application in the
manner contemplated by Section 2.06(a) and/or 2.05(e), (ii) the Deposit
Bank may invest the Credit-Linked Deposits in such investments as may be
determined from time to time by the Deposit Bank and (iii) the Deposit Bank has
agreed to pay to each CL Lender a return on its Credit-Linked Deposit (except
(x) during periods when such Credit-Linked Deposits are used to (x) fund CL
Loans or (y) reimburse an Issuing Lender with respect to Drawings on CL Letters
of Credit or (y) as otherwise provided in Sections 2.02(B)(c) and (d)) equal at
any time to the Adjusted LIBO Rate for Dollar Term Loans for the Interest
Period in effect for the Credit-Linked Deposits at such time less the Credit-Linked
Deposit Cost Amount at such time.  Such
interest will be paid to the CL Lenders by the Deposit Bank at the applicable
Adjusted LIBO Rate for an


 


56





















 


Interest Period of one month (or at an amount determined in accordance
with Section 2.02(B)(c) or (d), as applicable) less, in each case, the
Credit-Linked Deposit Cost Amount in arrears on each CL Interest Payment Date.


 


(b)                                 No Loan Party shall have any right, title
or interest in or to the Credit-Linked Deposit Account or the Credit-Linked
Deposits and no obligations with respect thereto (except to repay CL Loans and
to refund portions thereof used to reimburse an Issuing Lender with respect to
Drawings on CL Letters of Credit as provided in Section 2.05(e)), it being
acknowledged and agreed by the parties hereto that the funding of the
Credit-Linked Deposits by the CL Lenders, and the application of the
Credit-Linked Deposits in the manner contemplated by Section 2.05(e)
constitute agreements among the Deposit Bank, the Administrative Agent, each
Issuing Bank and each CL Lender with respect to the participation in the CL
Letters of Credit and do not constitute any loan or extension of credit to any
Borrower.


 


(c)                                  If the Deposit Bank is not offering
Dollar deposits (in the applicable amounts) in the London interbank market, or
the Deposit Bank determines that adequate and fair means do not otherwise exist
for ascertaining the Adjusted LIBO Rate for the Credit-Linked Deposits (or any
part thereof), then the Credit-Linked Deposits (or such parts, as applicable)
shall be invested so as to earn a return equal to the greater of the Federal
Funds Rate and a rate determined by the Deposit Bank in accordance with banking
industry rules on interbank compensation.


 


(d)                                 If any CL Loan is repaid by the
respective CL Borrower, or if any L/C Disbursement under a CL Letter of Credit
that has been funded by the CL Lenders from the Credit-Linked Deposits as
provided in Section 2.05(e) shall be reimbursed by the respective CL Borrower,
on a day other than on the last day of an Interest Period applicable to the
Credit-Linked Deposits, the Administrative Agent shall, upon receipt thereof,
pay over such amounts to the Deposit Bank which will invest such amounts in
overnight or short-term cash equivalent investments until the end of the
Interest Period at the time in effect and respective CL Borrower shall pay to
the Deposit Bank, upon the Deposit Bank’s request therefor, the amount, if any,
by which the interest accrued on a like amount of the Credit-Linked Deposits at
the Adjusted LIBO Rate for Term Loans for the Interest Period in effect
therefor shall exceed the interest earned through the investment of the amount
so reimbursed for the period from the date of such reimbursement through the
end of the applicable Interest Period, as determined by the Deposit Bank (such
determination shall, absent manifest error, be presumed correct and binding on
all parties hereto) and set forth in the request for payment delivered to CAC.  In the event that the respective CL Borrower
shall fail to pay any amount due under this Section 2.02(B)(d), the
interest payable by the Deposit Bank to the CL Lenders on their Credit-Linked
Deposits under Section 2.02 (B)(a) shall be correspondingly reduced and the
CL Lenders shall without further act succeed, ratably in accordance with their
CL Percentages, to the rights of the Deposit Bank with respect to such amount
due from the respective CL Borrower.  All
repayments of CL Loans and all reimbursements of L/C Disbursements under a CL
Letter of Credit that has been funded by the CL Lenders from the Credit-Linked
Deposits, in each case received by the Administrative Agent prior to the
termination of the Total Credit-Linked Commitment, shall be paid over to the Deposit
Bank which will deposit same in the Credit-Linked Deposit Account.


 


57





















 


SECTION 2.03  Requests for Borrowings.  To request any Borrowing, the applicable
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of the proposed Borrowing or (b) in the
case of an ABR Borrowing, not later than 12:00 noon, Local Time, one Business
Day before the date of the proposed Borrowing; provided that (x) B Term
Loans made on the Restatement Effective Date pursuant to Section 2.01(a)(ii)
will be  made on such notice as agreed
between the Company and DBNY and (y) any such notice of an ABR Revolving
Borrowing to finance the reimbursement of an L/C Disbursement as contemplated
by Section 2.05(e) may be given not later than 11:00 a.m., Local Time, on
the date of the proposed Borrowing.  Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the applicable Borrower.  Each such
telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:


 


(i)                                     the Borrower requesting such Borrowing;


 


(ii)                                  whether the requested Borrowing is to be
a Revolving Facility Borrowing, Term Borrowing or CL Borrowing;


 


(iii)                               the aggregate amount of the requested
Borrowing (expressed in Dollars or, if permitted to be borrowed in Euros, in
Euros);


 


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


 


(v)                                 in the case of a Borrowing denominated in
Dollars, whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;


 


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


 


(vii)                           the location and number of the applicable
Borrower’s account to which funds are to be disbursed.


 


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


 


SECTION 2.04  Swingline Loans.  (a)    Subject to the terms and conditions set forth
herein, (i) each Swingline Dollar Lender agrees to make Swingline Dollar Loans
to any Domestic Swingline Borrower from time to time during the Revolving
Availability Period, in an


 


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aggregate principal amount at any time outstanding for all Swingline
Dollar Loans that will not result in (x) the aggregate principal amount of
outstanding Swingline Dollar Loans made by such Swingline Dollar Lender
exceeding such Swingline Dollar Lender’s Swingline Dollar Commitment or (y) the
Revolving Facility Credit Exposure exceeding the total Revolving Facility
Commitments and (ii) each Swingline Euro Lender agrees to make Swingline Euro
Loans to any Foreign Swingline Borrower from time to time during the Revolving
Availability Period, in an aggregate principal amount at any time outstanding
for all Swingline Euro Loans that will not result in (x) the aggregate
principal amount of outstanding Swingline Euro Loans made by such Swingline
Euro Lender exceeding such Swingline Euro Lender’s Swingline Euro Commitment or
(y) the sum of the Revolving Facility Credit Exposure exceeding the total
Revolving Facility Commitments; provided that no Swingline Lender shall
be required to make a Swingline Loan to refinance an outstanding Swingline
Dollar Borrowing or Swingline Euro Borrowing. 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.


 


(b)           To request a Swingline Dollar
Borrowing or Swingline Euro Borrowing, the applicable Borrower shall notify the
Administrative Agent and the applicable Swingline Lender of such request by
telephone (confirmed by a Swingline Borrowing Request by telecopy), not later
than 11:00 a.m., Local Time, on the day of a proposed Swingline Borrowing (or
in the case of a Swingline Euro Borrowing, 10:00 a.m. New York time, on the
Business Day preceding the date of the proposed Swingline Euro Borrowing).  Each such notice and Swingline Borrowing
Request shall be irrevocable and shall specify (i) the Borrower requesting such
Borrowing, (ii) the requested date (which shall be a Business Day), (iii) the
amount of the requested Swingline Dollar Borrowing (expressed in Dollars) or
Swingline Euro Borrowing (expressed in Euros), as applicable, and (iv) in the
case of a Swingline Euro Borrowing, the Interest Period to be applicable
thereto, which shall be a period contemplated by clause (b) of the definition
of the term “Interest Period.”  The
Administrative Agent shall promptly advise each Swingline Dollar Lender (in the
case of a notice relating to a Swingline Dollar Borrowing) or each Swingline
Euro Lender (in the case of a notice relating to a Swingline Euro Borrowing) of
any such notice received from a Borrower and the amount of such Swingline
Lender’s Swingline Loan to be made as part of the requested Swingline Dollar
Borrowing or Swingline Euro Borrowing, as applicable.  Each Swingline Dollar Lender shall make each
Swingline Dollar Loan to be made by it hereunder in accordance with Section 2.04(a)
on the proposed date thereof by wire transfer of immediately available funds by
3:00 p.m., Local Time, to the account of the Administrative Agent by notice to
the Swingline Dollar Lenders.  The
Administrative Agent will make such Swingline Dollar Loans available to the
applicable Domestic Swingline Borrower by promptly crediting the amounts so
received, in like funds, to the general deposit account of the applicable
Domestic Swingline Borrower with the Administrative Agent (or, in the case of a
Swingline Dollar Borrowing made to finance the reimbursement of an L/C
Disbursement as provided in Section 2.05(e), by remittance to the
applicable Issuing Bank).  Each Swingline
Euro Lender shall make each Swingline Euro Loan to be made by it hereunder in
accordance with Section 2.04(a) on the proposed date thereof by wire
transfer of immediately available funds by 3:00 p.m., Local Time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Swingline Euro Lenders.  The Administrative Agent will make such
Swingline Euro Loans available to the applicable Foreign Swingline Borrower by
(i) promptly crediting the amounts so received, in like funds, to the
general deposit account with


 


59





















 


the Administrative
Agent of the applicable Foreign Swingline Borrower most recently designated to
the Administrative Agent or (ii) by wire transfer of the amounts received in
immediately available funds to the general deposit account of the applicable
Foreign Swingline Borrower most recently designated to the Administrative
Agent.


 


(c)           A Swingline Lender may by written
notice given to the Administrative Agent (and to the other Swingline Dollar
Lenders or Swingline Euro Lenders, as applicable) not later than 10:00 a.m.,
Local Time, on any Business Day require the Revolving Facility Lenders to
acquire participations on such Business Day in all or a portion of the
outstanding Swingline Loans made by it. 
Such notice shall specify the aggregate amount of such Swingline Loans
in which the Revolving Facility Lenders will participate.  Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each such Lender, specifying
in such notice such Lender’s Revolving Facility Percentage of such Swingline
Loan or Loans.  Each Revolving Facility
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the
applicable Swingline Lender, such Revolving Facility Lender’s Revolving
Facility Percentage of such Swingline Loan or Loans.  Each Revolving Facility Lender acknowledges
and agrees that its respective obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. 
Each Revolving Facility Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.06 with respect to Loans made by such
Revolving Facility Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations
of the Lenders), and the Administrative Agent shall promptly pay to the
applicable Swingline Lender the amounts so received by it from the Revolving
Facility Lenders.  The Administrative
Agent shall notify the applicable Borrower of any participations in any Swingline
Loan acquired pursuant to this paragraph (c), and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and
not to the applicable Swingline Lender. 
Any amounts received by a Swingline Lender from the applicable Borrower
(or other party on behalf of such Borrower) in respect of a Swingline Loan
after receipt by such Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Revolving Facility Lenders that
shall have made their payments pursuant to this paragraph and to such Swingline
Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to such Swingline Lender or to the Administrative
Agent, as applicable, if and to the extent such payment is required to be
refunded to the applicable Borrower for any reason.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the applicable Borrower of
any default in the payment thereof.


 


SECTION 2.05  Letters of Credit.


 


(a)           General.  Each Letter of Credit issued or deemed issued
pursuant to Section 2.05(a) of the Original Credit Agreement (including
each Existing Letter of Credit) and outstanding on the Restatement Effective
Date shall continue to remain outstanding as a CL


 


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Letter of Credit or RF Letter of Credit as
specified on Schedule 2.05(a) hereunder on and after such date on
the same terms as applicable to it immediately prior to such date.  In addition, subject to the terms and
conditions set forth herein, the Company may request the issuance of Dollar
Letters of Credit and Euro Letters of Credit (x) in the case of RF Letters of
Credit, for its own account or for the account of any of the other Revolving
Borrowers and (y) in the case of CL Letters of Credit, for the account of a CL
Borrower (as specified in the related Request to Issue), in each case in a form
reasonably acceptable to the applicable Issuing Bank, at any time and from time
to time during the Revolving Availability Period and prior to the date that is
five Business Days prior to the Revolving Facility Maturity Date.  All Letters of Credit shall be issued on a
sight basis only.


 


(b)           Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of
Credit, the Company shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
applicable Issuing Bank) to the applicable Issuing Bank, with a copy to the
Administrative Agent at least two Business Days (or such shorter period agreed
to by the Issuing Bank) in advance of the requested date of issuance a request
in the form of Exhibit B-2 (a “Request to Issue”) for the
issuance of a Letter of Credit, which Request to Issue shall specify, inter
alia, whether the requested Letter of Credit is to be a CL Letter of
Credit or an RF Letter of Credit.  If
requested by the applicable Issuing Bank, the Company also shall submit a
letter of credit application on such Issuing Bank’s standard form in connection
with any request for a Letter of Credit and in the event of any inconsistency between
the terms and conditions of this Agreement and the terms and conditions of any
such form of letter of credit application, the terms and conditions of this
Agreement shall control.  An RF Letter of
Credit shall be issued, amended, renewed or extended only if after giving
effect thereto (i) the Revolving L/C Exposure shall not exceed $150,000,000,
(ii) the Revolving Facility Credit Exposure shall not exceed the total
Revolving Facility Commitments and (iii) the aggregate Revolving Facility
Credit Exposure with respect to any Revolving Borrower shall not exceed the
Maximum Credit Limit for such Revolving Borrower, and a CL Letter of Credit
shall be issued, amended, renewed or extended only if after giving effect
thereto the CL Exposure would not exceed the Total Credit-Linked Commitment at
such time, provided that no RF Letter of Credit shall be issued unless a
CL Letter of Credit could not be issued in lieu thereof, giving effect to the
aforesaid limitations.  In the event that
an RF Letter of Credit is outstanding at a time when there is availability to
support the issuance of a new CL Letter of Credit in accordance with the terms
of this Agreement in a stated amount at least equal to the stated amount of
such RF Letter of Credit, the Company shall have the right, upon written notice
to the Administrative Agent and the respective Issuing Bank, to re-designate
such RF Letter of Credit as a CL Letter of Credit, in each case so long as (i)
each such CL Letter of Credit may otherwise be issued in accordance with, and
will not violate, the above limitations and requirements of this Section and
(ii) the Company certifies in writing to the Administrative Agent and the
respective Issuing Bank that the conditions specified in Sections 4.01(b) and
(c) are then satisfied.  Upon
satisfaction of the aforesaid conditions, (x) the respective Issuing Bank shall
re-designate the affected RF Letter of Credit as a CL Letter of Credit, and (y)
a new CL Letter of Credit shall be deemed issued at such time under this
Agreement.  No Letter of Credit shall be
issued, increased in stated amount, or renewed or extended without the prior
consent of the Administrative Agent, such consent to be limited to the question
of whether such issuance, increase, renewal or extension is being effected on
the terms and conditions of this Agreement.


 


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(c)           Expiration
Date.  Each Letter of Credit shall
expire at or prior to the close of business on the earlier of (i) the date one
year after the date of the issuance of such Letter of Credit (or, in the case
of any renewal or extension thereof, one year after such renewal or extension)
and (ii) the date that is five Business Days (or, in the case of a trade Letter
of Credit, 30 days) prior to the Revolving Facility Maturity Date; provided
that any standby Letter of Credit may provide for the automatic renewal thereof
for additional one-year periods (which, in no event, shall extend beyond the
date referred to in clause (ii) of this paragraph (c)).


 


(d)           Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or any Lenders, such
Issuing Bank hereby grants (x) if such Letter of Credit is a CL Letter of
Credit, to each CL Lender or (y) if such Letter of Credit is an RF Letter of
Credit to each Revolving Facility Lender (and such CL Lender or Revolving
Facility Lender, as the case may be, in its capacity under this Section 2.05(d),
a “Participant”) and each such Participant hereby acquires from such
Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
CL Percentage or Revolving Facility Percentage, as the case may be, as in
effect from time to time of the aggregate amount available to be drawn under
such Letter of Credit.  In consideration
and in furtherance of the foregoing, each Revolving Facility Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent in
Dollars or Euros, as the case may be, for the account of the applicable Issuing
Bank, such Lender’s Revolving Facility Percentage of each LC Disbursement made
in respect of an RF Letter of Credit and, in each case, not reimbursed by the
Applicant Party on the date due as provided in paragraph (e) of this Section,
or of any reimbursement payment required to be refunded to the Applicant Party
for any reason.  Each Participant
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and,
in the case of a Revolving Facility Lender, that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever.


 


(e)           Reimbursement.  If the applicable Issuing Bank shall make any
L/C Disbursement in respect of a Letter of Credit, the applicable Applicant
Party shall reimburse such L/C Disbursement by paying to the Administrative
Agent an amount equal to such L/C Disbursement in Dollars or Euros, as the case
may be, not later than 5:00 p.m., New York City time, on the Business Day
immediately following the date the applicable Applicant Party receives notice
under paragraph (g) of this Section of such L/C Disbursement, provided
that in the case of any L/C Disbursement under an RF Letter of Credit issued
for the account of a Revolving Borrower, such Revolving Borrower may, subject
to the conditions to borrowing set forth herein, request in accordance with Section 2.03
or 2.04 that such payment be financed (x) if a Dollar Letter of Credit, with an
ABR Revolving Borrowing or Swingline Dollar Borrowing, as applicable, or (y) if
a Euro Letter of Credit, with a Swingline Euro Borrowing in each case, in an
equivalent amount and, to the extent so financed, such Revolving Borrower’s
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing, Swingline Dollar Borrowing or Swingline Euro
Borrowing, as the case may be.  If the
applicable Applicant Party fails to reimburse any L/C Disbursement under an RF
Letter of Credit when due,


 


62





















 


then the Administrative Agent shall promptly
notify the applicable Issuing Bank and each relevant Participant of the
applicable L/C Disbursement, the payment then due in respect thereof and, in
the case of each such Participant, such Participant’s Revolving Facility
Percentage thereof.  Promptly following
receipt of such notice, each Participant shall pay to the Administrative Agent
in Dollars or Euros, as applicable, its Revolving Facility Percentage of the
payment then due from the applicable Applicant Party, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06
shall apply, mutatis  mutandis, to the payment obligations of the Participants),
and the Administrative Agent shall promptly pay to the applicable Issuing Bank
in Dollars or Euros, as applicable, the amounts so received by it from such
Participants.  In the event that an
Issuing Lender makes any LC Disbursement under any CL Letter of Credit issued
by it and the respective CL Borrower shall not have reimbursed such amount in
full to such Issuing Lender as provided above and such Issuing Lender has
notified the Administrative Agent thereof, each CL Lender hereby irrevocably
authorizes the Administrative Agent to reimburse on the date of (or if received
after 1:00 P.M. (New York time) on such date, on the Business Day following the
date of) receipt by the Administrative Agent of such notice such Issuing Lender
for such amount solely by requesting the Deposit Bank to withdraw such CL
Lender’s CL Percentage of the Credit-Linked Deposits on deposit with the
Deposit Bank in the Credit-Linked Deposit Account and to pay same over to the
Administrative Agent, the Deposit Bank hereby agreeing to effect such a
withdrawal and all other withdrawals and payments requested by the
Administrative Agent pursuant to the terms of this Agreement.  All reimbursements of Issuing Banks by
Revolving Facility Lenders or CL Lenders (through application of Credit-Linked
Deposits) shall be made as provided herein notwithstanding the occurrence of a
CAM Exchange Date after the L/C Disbursement and prior to such reimbursement.
Promptly following receipt by the Administrative Agent of any payment from the applicable
Applicant Party pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the applicable Issuing Bank or, to the extent that
Participants have made payments pursuant to this paragraph to reimburse such
Issuing Bank, then to such Lenders and such Issuing Bank as their interests may
appear (it being understood and agreed that any such payment to be made
pursuant to this Section 2.05(e) to a Participant which is a CL Lender
shall be made by such Issuing Lender to the Administrative Agent for the
account of such CL Lender and paid over to the Deposit Bank for deposit in the
Credit-Linked Deposit Account).  Any
payment made by a Revolving Facility Lender pursuant to this paragraph to reimburse
an Issuing Bank for any L/C Disbursement (other than the funding of an ABR
Revolving Loan or a Swingline Dollar Borrowing as contemplated above) shall
constitute a Loan and no payment shall relieve the Applicant Party of its
obligation to reimburse each L/C Disbursement.


 


(f)            Obligations
Absolute.  The obligation of the
applicable Applicant Party to reimburse L/C Disbursements as provided in
paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of
(i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the applicable Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply with the
terms of such Letter of Credit or


 


63





















 


(iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of,
or provide a right of setoff against, the Applicant Party’s obligations
hereunder; provided that, in each case, payment by the Issuing Bank
shall not have constituted gross negligence or willful misconduct as determined
by a final and nonappealable decision of court of competent jurisdiction.  Neither the Administrative Agent, the Lenders
nor any Issuing Bank, nor any of their Related Parties, shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of such Issuing Bank; provided
that the foregoing shall not be construed to excuse the applicable Issuing Bank
from liability to an Applicant Party to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by each Applicant Party to the extent permitted by applicable law) suffered by
such Applicant Party that are determined by a court having jurisdiction to have
been caused by (i) such Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof or (ii) such Issuing Bank’s refusal to
issue a Letter of Credit in accordance with the terms of this Agreement.  The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct as determined by a final
and nonappealable decision of court of competent jurisdiction on the part of
the applicable Issuing Bank, such Issuing Bank shall be deemed to have exercised
care in each such determination and each refusal to issue a Letter of
Credit.  In furtherance of the foregoing
and without limiting the generality thereof, the parties agree that, with
respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the applicable Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


(g)           Disbursement
Procedures.  The applicable Issuing
Bank shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit.  Such Issuing Bank shall promptly notify the
Administrative Agent, the Applicant Party and the Company (if the Company is
not the Applicant Party) by telephone (confirmed by telecopy) of such demand
for payment and whether such Issuing Bank has made or will make a L/C
Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Applicant Party of its obligation to
reimburse such Issuing Bank and the Revolving Facility Lenders with respect to
any such L/C Disbursement.


 


(h)           Interim
Interest.  If an Issuing Bank shall
make any L/C Disbursement, then, unless the applicable Applicant Party shall
reimburse such L/C Disbursement in full on the date such L/C Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and
including the date such L/C Disbursement is made to but excluding the date that
the applicable Applicant Party reimburses such L/C Disbursement, at the rate
per annum then applicable to ABR Revolving Loans provided that, in the
case of a L/C Disbursement made that


 


64





















 


is a Euro Letter of Credit, the amount of
interest due with respect thereto shall (A) be payable in Euros and (B) bear
interest at a rate equal to the rate reasonably determined by the applicable
Issuing Bank to be the cost to such Issuing Bank of funding such L/C
Disbursement plus the Applicable Margin applicable to Eurocurrency Revolving
Loans at such time; and provided, further, that, if such L/C
Disbursement is not reimbursed by the applicable Applicant Party when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall
apply, with the rate per annum for L/C Disbursements made in respect of a CL
Letter of Credit from the date any payment is made to the Issuing Lender on
behalf of the CL Lenders shall be 2% in excess of the rate per annum then
applicable to ABR Term Loans.  Interest
accrued pursuant to this paragraph shall be for the account of the applicable
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Facility Lender or by or on behalf of any CL Lender pursuant to
paragraph (e) of this Section to reimburse such Issuing Bank shall be for
the account of such Revolving Facility Lender or CL Lender, as the case may be,
to the extent of such payment.


 


(i)            Replacement
of an Issuing Bank.  An Issuing Bank
may be replaced at any time by written agreement among the Company, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank.  The Administrative Agent shall
notify the Lenders of any such replacement of an Issuing Bank.  At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section 2.12.  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the replaced Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the
term “Issuing Bank” shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require.  After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of such Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement but shall not be required to issue
additional Letters of Credit.


 


(j)            Cash
Collateralization.  If any Event of
Default shall occur and be continuing, (i) in the case of an Event of Default
described in Section 7.01(h) or (i), on the Business Day or (ii) in the
case of any other Event of Default, on the fifth Business Day, following the
date on which the Company receives notice from the Administrative Agent (or, if
the maturity of the Loans has been accelerated, Revolving Facility Lenders
and/or CL Lenders with Revolving L/C Exposure and/or CL Percentages
representing greater than 50% of the total Revolving L/C Exposure and total CL
Percentages), as the case may be, demanding the deposit of cash collateral
pursuant to this paragraph, the Company and, to the extent relating to CL
Exposure, CAC (on a joint and several basis with the Company) agree to deposit
in an account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Revolving Facility Lenders and the CL Lenders,
an amount in Dollars in cash equal to the Revolving L/C Exposure and/or CL
Exposure as of such date plus any accrued and unpaid interest thereon; provided
that the portion of such amount attributable to undrawn Euro Letters of Credit
or L/C Disbursements in Euros shall be deposited with the Administrative Agent
in Euros in the actual amounts of such undrawn Letters of Credit and L/C
Disbursements.  The obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable


 


65





















 


in Dollars or Euros, as applicable, without
demand or other notice of any kind.  The
applicable Applicant Party also shall deposit cash collateral pursuant to this
paragraph as and to the extent required by Section 2.11(b).  Each such deposit pursuant to this paragraph
or pursuant to Section 2.11(b) shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the
Borrowers under this Section 2.05. 
The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account.  Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of (i) for so long as an Event of Default shall be continuing,
the Administrative Agent and (ii) at any other time, the Company, in each case,
in Permitted Investments and at the risk and expense of the Company, such
deposits shall not bear interest. 
Interest or profits, if any, on such investments shall accumulate in
such account.  Moneys in such account
shall be applied by the Administrative Agent to reimburse each Issuing Bank for
L/C Disbursements for which such Issuing Bank has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrowers for the Revolving L/C Exposure and
CL Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Revolving Facility Lenders with Revolving L/C
Exposure representing greater than 50% of the total Revolving L/C Exposure and
of CL Lenders with CL Percentages aggregating more than 50%), be applied to
satisfy other obligations of the Borrowers under this Agreement.  If an Applicant Party is required to provide
an amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to such Applicant Party within three Business Days after all Events of
Default have been cured or waived.  If a
Borrower is required to provide an amount of cash collateral hereunder pursuant
to Section 2.11(b), such amount (to the extent not applied as aforesaid)
shall be returned to such Borrower as and to the extent that, after giving
effect to such return, the Borrowers would remain in compliance with Section 2.11(b)
and no Event of Default shall have occurred and be continuing.


 


(k)           Additional
Issuing Banks.  From time to time,
the Company may by notice to the Administrative Agent designate up to two
Lenders (in addition to DBNY and any Lender that is an issuer of Existing
Letters of Credit) that agree (in their sole discretion) to act in such
capacity and are reasonably satisfactory to the Administrative Agent as Issuing
Banks.  Each such additional Issuing Bank
shall execute a counterpart of this Agreement upon the approval of the
Administrative Agent (which approval shall not be unreasonably withheld) and
shall thereafter be an Issuing Bank hereunder for all purposes.


 


(l)            Reporting.  Promptly upon the issuance or amendment by it
of a standby Letter of Credit, an Issuing Bank shall notify the Company and the
Administrative Agent, in writing, of such issuance or amendment and such notice
shall be accompanied by a copy of such issuance or amendment.  Upon receipt of such notice, the
Administrative Agent shall notify each Lender, in writing, of such issuance or
amendment, and if so requested by a Lender the Administrative Agent shall
provide such Lender with a copy of such issuance or amendment.  Each Issuing Bank shall on the first Business
Day of each calendar week during which any CL Letters of Credit and/or RF
Letters of Credit issued by such Issuing Bank are outstanding provide the
Administrative Agent, by facsimile, with a report detailing the aggregated
daily outstandings of each such Letter of Credit issued by it.


 


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(m)          Notwithstanding
any other provision of this Agreement, if, after the Closing Date, any Change
in Law shall make it unlawful for an Issuing Bank to issue Letters of Credit
denominated in Euros, then by prompt written notice thereof to the L/C
Borrowers and to the Administrative Agent (which notice shall be withdrawn
whenever such circumstances no longer exist), such Issuing Bank may declare
that Letters of Credit will not thereafter (for the duration of such
declaration) be issued by it in Euros.


 


SECTION 2.06  Funding of Borrowings.  (a)    Each Lender shall make each Loan (other than
CL Loans) to be made (as opposed to be continued) by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, Local Time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided
that Swingline Loans shall be made as provided in Section 2.04.  Each CL Lender hereby irrevocably authorizes
the Administrative Agent to fund each CL Loan to be made by it hereunder solely
by requesting the Deposit Bank to withdraw such CL Lender’s CL Percentage of
the Credit-Linked Deposits on deposit with the Deposit Bank in the
Credit-Linked Deposit Account and to pay same over to it.  The Administrative Agent will make the
proceeds of funds made available to it pursuant to the two preceding sentences
available to the applicable Borrower by promptly crediting the amounts so received,
in like funds, to an account of the applicable Borrower maintained with the
Administrative Agent (i) in New York City, in the case of Loans denominated in
Dollars, or (ii) in London, in the case of Loans denominated in Euros and
designated by the applicable Borrower in the applicable Borrowing Request; provided
that ABR Revolving Loans, Swingline Dollar Borrowings and Swingline Euro
Borrowings made to finance the reimbursement of a L/C Disbursement as provided
in Section 2.05(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank.


 


(b)           Unless the Administrative Agent shall
have received notice from a Lender prior to the proposed date of any Borrowing
of Revolving Facility Loans and/or Term Loans 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 on such date in accordance with paragraph (a) of this Section and
may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount.  In such
event, if a Lender has not in fact made its share of the applicable Borrowing
of Revolving Facility Loans or Term Loans available to the Administrative
Agent, then the applicable Lender and the applicable Borrower severally agree
to pay to the Administrative Agent forthwith on demand (without duplication)
such corresponding amount (with demand to be first made on such Lender if
legally possible) with interest thereon, for each day from and including the
date such amount is made available to the applicable Borrower to but excluding
the date of payment to the Administrative Agent, at (i) in the case of such
Lender, (x) the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation (in the case of a Borrowing denominated in Dollars) or (y) the
rate reasonably determined by the Administrative Agent to be the cost to it of
funding such amount (in the case of a Borrowing denominated in Euros) or (ii)
in the case of the applicable Borrower, the interest rate applicable to ABR
Loans (in the case of a Borrowing denominated in Dollars) or the rate
reasonably determined by the Administrative Agent to be the cost to it of
funding such amount (in the case of a Borrowing denominated in Euros).  If such Lender pays such amount to


 


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the Administrative
Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.


 


SECTION 2.07  Interest Elections.  (a)    Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a
Eurocurrency Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request.  Thereafter, the
applicable Borrower may elect to convert such Borrowing to a different Type, in
the case of Borrowings denominated in Dollars, or to continue such Borrowing and,
in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor,
all as provided in this Section.  The
applicable Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.  This Section shall
not apply to Swingline Euro Borrowings or Swingline Dollar Borrowings, which
may not be converted or continued.


 


(b)           To make an election pursuant to this
Section, the applicable Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.03 if such Borrower were requesting a Borrowing of the
Type and denominated in Euros resulting from such election to be made on the
effective date of such election.  Each
such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of
a written Interest Election Request in a form approved by the Administrative
Agent and signed by the applicable Borrower.


 


(c)           Each telephonic and written Interest
Election Request shall specify the following information in compliance with Section 2.02:


 


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


 


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


 


(iii)                               whether the resulting Borrowing is to be
an ABR Borrowing or a Eurocurrency Borrowing; provided that the
resulting Borrowing is required to be a Eurocurrency Borrowing in the case of a
Borrowing denominated in Euros; and


 


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


 


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If
any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month’s duration.


 


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


 


(e)           If the applicable Borrower fails to
deliver a timely Interest Election Request with respect to a Eurocurrency
Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be continued as a Eurocurrency Borrowing with an
Interest Period of one month’s duration commencing on the last day of such
Interest Period.  Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Administrative Agent, at the written request (including a request
through electronic means) of the Required Lenders, so notifies the applicable
Borrower, then, so long as an Event of Default is continuing (i) except as
provided in clause (iii) below, no outstanding Borrowing may be converted to or
continued as a Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency
Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the
end of the Interest Period applicable thereto and (iii) unless repaid, each
Eurocurrency Borrowing denominated in Euros shall be continued as a
Eurocurrency Borrowing with an Interest Period of one month’s duration.


 


SECTION 2.08  Termination and Reduction of Commitments.  (a)    Unless previously terminated, the Revolving
Facility Commitments and the Credit-Linked Commitments shall terminate on the
Revolving Facility Maturity Date.  The
Delayed Draw Commitment of each Lender shall terminate on the date of each
incurrence of C Term Loans in the amount of C Term Loans made by it on such
date, and all remaining Delayed Draw Commitments will, unless previously
terminated, terminate at 5 p.m. New York City time on the DD Termination Date.


 


(b)           The
Company (on behalf of itself and all other Revolving Borrowers or Bidco (if the
DD Borrower), respectively) may at any time terminate, or from time to time
reduce, the Revolving Facility Commitments or the Delayed Draw Commitments, as
the case may be; provided that (i) each such reduction shall be in an
amount that is an integral multiple of $1.0 million and not less than $5.0
million (or, if less, the remaining amount of the Revolving Facility
Commitments or Delayed Draw Commitments, as the case may be) and (ii) the
Company shall not terminate or reduce the Revolving Facility Commitments if,
after giving effect to any concurrent prepayment of the Revolving Facility
Loans in accordance with Section 2.11, the Revolving Facility Credit
Exposure would exceed the total Revolving Facility Commitments.


 


(c)           The
Company shall notify the Administrative Agent of any election to terminate or
reduce the Revolving Facility Commitments, Delayed Draw Commitments and/or
Credit-Linked Commitments under paragraph (b) or (d) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the


 


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effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the applicable Lenders of the contents
thereof.  Each notice delivered by the
Company pursuant to this Section shall be irrevocable; provided
that a notice of termination of the Revolving Facility Commitments, Delayed
Draw Commitments and/or Credit-Linked Commitments delivered by the Company may
state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.  Any
termination or reduction of Commitments shall be permanent.  Each reduction of the Commitments under any
Facility shall be made ratably among the Lenders in accordance with their
respective Commitments under such Facility.


 


(d)           The
Company (on behalf of itself and CAC) shall have the right, at any time or from
time to time, without premium or penalty to terminate the Total Unutilized
Credit-Linked Commitment in whole, or reduce it in part, in an integral
multiple of $1.0 million and not less than $5.0 million (or if less the
remaining amount of the Credit-Linked Commitments) in the case of partial
reductions to the Total Unutilized Credit-Linked Commitment, provided
that each such reduction shall apply proportionately to permanently reduce the
Credit-Linked Commitment of each CL Lender. 
At the time of any termination or reduction of the Total Credit-Linked
Commitment pursuant to this Section 2.08(d) or on the Revolving Facility
Maturity Date, the Administrative Agent shall request the Deposit Bank to
withdraw from the Credit-Linked Deposit Account and to pay same over to it, and
shall return to the CL Lenders (ratably in accordance with their respective CL
Percentages) the CL Lenders’ Credit-Linked Deposits in an aggregate amount
equal to such reduction or the amount of such Commitment being terminated, as
the case may be.


 


SECTION 2.09  Repayment of Loans; Evidence of Debt, etc.  (a)    The Company hereby unconditionally promises
to pay (i) on the Revolving Facility Maturity Date in Euros or Dollars, as
applicable, to the Administrative Agent for the account of each Revolving
Facility Lender the then unpaid principal amount of each Revolving Facility
Loan made to the Company and (ii) in Euros or Dollars, as applicable, to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Loan of such Lender as provided in Section 2.10.  Each CL Borrower hereby unconditionally
promises to pay on the Revolving Facility Maturity Date in Dollars to the
Administrative Agent for the account of each CL Lender the then unpaid
principal amount of each CL Loan of such CL Lender owing by such CL
Borrower.  Each Domestic Swingline
Borrower hereby unconditionally promises to pay in Dollars to each Swingline
Lender the then unpaid principal amount of each Swingline Loan made to such
Borrower on the earlier of the Revolving Facility Maturity Date and the first
date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least five Business Days after such Swingline Loan is
made; provided that on each date that a Revolving Facility Borrowing is
made by such Borrower, then such Borrower shall repay all its Swingline Loans
then outstanding.  Each Revolving
Borrower hereby unconditionally promises to pay in Dollars (or in Euros if the
Revolving Facility Borrowing was made in Euros) to the Administrative Agent for
the account of each Revolving Facility Lender the then unpaid principal amount
of each Revolving Facility Loan to such Borrower on the Revolving Facility
Maturity Date.  Each Foreign Swingline
Borrower hereby unconditionally promises to pay in Euros to each Swingline Euro
Lender the then unpaid principal amount of each Swingline Euro


 


70


















 


Loan made by such Lender to such Borrower on the earlier of the
Revolving Facility Maturity Date and the last day of the Interest Period
applicable to such Swingline Euro Loan.


 


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


 


(c)                                  The Administrative Agent shall
maintain accounts in which it shall record (i) the amount of each Loan made
hereunder, the Facility and Type thereof and the Interest Period (if any)
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) any amount received by the Administrative Agent hereunder
for the account of the Lenders and each Lender’s share thereof.


 


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


 


(e)                                  Any Lender may request that
Loans made by it be evidenced by a promissory note.  In such event, the applicable Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).


 


(f)                                    At the time of any termination
of the Total Credit-Linked Commitment pursuant to Section 2.08(a) or
pursuant to Article VII, the Administrative Agent shall request the
Deposit Bank to withdraw from the Credit-Linked Deposit Account and to pay same
over to it, and shall return to the CL Lenders (ratably in accordance with
their respective CL Percentages), the CL Lenders’ Credit-Linked Deposits in an
amount by which the aggregate amount of the Credit-Linked Deposits at such time
exceeds the aggregate CL L/C Exposure (less unreimbursed L/C Disbursements
included therein) at such time.


 


SECTION 2.10  Repayment of Term Loans.  (a)    Subject to adjustment pursuant to paragraph
(c) of this Section, the Company and, if the DD Borrower, Bidco, on a TL
Borrower Pro Rata Basis, shall repay Term Loans owed by it (such repayment to
be in Dollars if made in respect of Dollar Term Loans or in Euros if made in
respect of Euro Term Loans) on (x) the last day of each of March, June, September and
December of each year (each such date being referred to as an “Installment
Date”) following the six month anniversary of the Original Closing Date and
prior to the Term Loan Maturity Date in an aggregate amount equal to 1/4 of 1%
of the then Maximum Term Amount, such prepayment to be made in accordance with
the TL


 


 


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Repayment Ratio, provided that no prepayment shall be made under this Section 2.10(a)(x)
in respect of B Term Loans made (as opposed to continued) on the Restatement
Effective Date and C Term Loans until the first Installment Date to occur after
the DD Termination Date, and (y) the Term Loan Maturity Date in an amount equal
to the remaining principal amount of the Term Loans owed by it.


 


(b)                                 To the extent not previously
paid, all Term Loans shall be due and payable on the Term Loan Maturity Date.


 


(c)                                  Prepayment of Term Loans from
all Net Proceeds or Excess Cash Flow pursuant to Section 2.11(c) or
2.11(d), respectively, shall be made (x) with respect to the Dollar Term Loans
and Euro Term Loans in accordance with the TL Repayment Ratio and (y) if Bidco
is the DD Borrower, with respect to the Term Loans owed by the Company and the
Term Loans owed by Bidco on the TL Borrower Pro Rata Basis (and thereafter pro rata among each Term Borrowing being
repaid) and shall be applied to reduce on a pro
rata basis (based on the amount of such amortization payments) the
remaining scheduled amortization payments in respect of the Term Loans.


 


(d)                                 Any Lender holding Term Loans
may elect, on not less than two Business Days’ prior written notice to the
Administrative Agent with respect to any mandatory prepayment made pursuant to Section 2.11(b)
or 2.11(c), not to have such prepayment applied to such Lender’s Term Loans, in
which case the amount not so applied shall be retained by the Company (and if
relevant, Bidco) (and applied as it or they elect).


 


(e)                                  Prior to any repayment of any
Borrowing under any Facility hereunder, the applicable Borrower shall select
the Borrowing or Borrowings under such Facility to be repaid and shall notify
the Administrative Agent by telephone (confirmed by telecopy) of such selection
not later than 2:00 p.m., Local Time, (i) in the case of an ABR Borrowing, one
Business Day before the scheduled date of such repayment and (ii) in the case
of a Eurocurrency Borrowing, three Business Days before the scheduled date of
such repayment provided that nothing in this sentence shall modify the
requirement that all repayments of Term Loans shall be made with respect to the
Dollar Term Loans and Euro Term Loans in accordance with the TL Repayment
Ratio.  Each repayment of a Borrowing (x)
in the case of the Revolving Facility, shall be applied to the Revolving Facility
Loans included in the repaid Borrowing such that each Revolving Facility Lender
receives its ratable share of such repayment (based upon the respective
Revolving Facility Credit Exposures of the Revolving Facility Lenders at the
time of such repayment) and (y) in all other cases, shall be applied ratably to
the Loans included in the repaid Borrowing. 
Notwithstanding anything to the contrary in the immediately preceding
sentence, prior to any repayment of a Swingline Dollar Borrowing or a Swingline
Euro Borrowing hereunder, the applicable Swingline Borrower shall select the
Borrowing or Borrowings to be repaid and shall notify the Administrative Agent
by telephone (confirmed by telecopy) of such selection not later than 1:00
p.m., Local Time, on the scheduled date of such repayment.  Except as provided in Section 2.13(d),
repayments of Borrowings shall be accompanied by accrued interest on the amount
repaid.


 


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SECTION 2.11  Prepayments, etc.  (a)    The applicable Borrower shall have the right
at any time and from time to time to prepay any Borrowing in whole or in part,
without premium or penalty (but subject to Section 2.16), in an aggregate
principal amount that is an integral multiple of the Borrowing Multiple and not
less than the Borrowing Minimum or, if less, the amount outstanding, subject to
prior notice in accordance with Section 2.10(e), provided that (i)
such optional prepayments of the Term Loans shall be applied to reduce on a pro
rata basis (based on the amount of such amortization payments) the
remaining scheduled amortization payments in respect of the Term Loans, (ii)
all such prepayments shall be made with respect to Dollar Term Loans and the
Euro Term Loans in accordance with the TL Repayment Ratio and (iii) if Bidco is
a DD Borrower, all such prepayments of Term Loans shall be made on the TL
Borrower Pro Rata Basis.


 


(b)                                 In the event and on such
occasion that the Revolving Facility Credit Exposure exceeds (x) 105% of the
total Revolving Facility Commitments solely as a result of currency
fluctuations or (y) the total Revolving Facility Commitments (other than as a
result of currency fluctuations), the Borrowers under the Revolving Facility
shall prepay Revolving Facility Borrowings, Swingline Dollar Borrowings and/or
Swingline Euro Borrowings (or, if no such Borrowings are outstanding, deposit
cash collateral in an account with the Administrative Agent pursuant to Section 2.05(k))
made to such Borrowers, in an aggregate amount equal to the amount by which the
Revolving Facility Credit Exposure exceeds the total Revolving Facility
Commitments.


 


(c)                                  Holdings shall cause all Net
Proceeds promptly upon receipt thereof to be used to prepay Term Loans (other
than, if prior to the DD Termination Date, C Term Loans) in accordance with
paragraph (c) of Section 2.10.


 


(d)                                 Not later than 90 days after the
end of each Excess Cash Flow Period, Holdings shall calculate Excess Cash Flow
for such Excess Cash Flow Period and shall cause an amount equal to the
Required Percentage of such Excess Cash Flow to be used to prepay Term Loans
(other than, if prior to the DD Termination Date, C Term Loans) in accordance
with paragraph (c) of Section 2.10. 
Not later than the date on which Holdings is required to deliver
financial statements with respect to the end of each Excess Cash Flow Period
under Section 5.04(a), Holdings will deliver to the Administrative Agent a
certificate signed by a Financial Officer of Holdings setting forth the amount,
if any, of Excess Cash Flow for such fiscal year and the calculation thereof in
reasonable detail.


 


(e)                                  On any day on which the
aggregate CL Exposure exceeds the Total Credit-Linked Commitment at such time,
CAC and the Company on a joint and several basis agree to pay to the
Administrative Agent at the Payment Office on such day an amount of cash and/or
Cash Equivalents equal to the amount of such excess, such cash and/or Cash
Equivalents to be held as security for all obligations of the respective CL
Borrower to the Issuing Lenders and the CL Lenders hereunder in respect of CL
Letters of Credit in a cash collateral account to be established by, and under
the sole dominion and control of, the Administrative Agent.


 


SECTION 2.12  Fees. 
(a)    The Company (on behalf of itself and the
other Revolving Borrowers) agrees to pay to each Revolving Facility Lender
(other than any


 


73





















 


Defaulting Lender), through the Administrative Agent, 10 Business Days
after the last day of March, June, September and December in each
year, and three Business Days after the date on which the Revolving Facility
Commitments of all the Lenders shall be terminated as provided herein, a
commitment fee (a “RF Commitment Fee”) in Dollars on the daily amount of
the Available Revolving Unused Commitment of such Lender during the preceding
quarter (or other period commencing with the Closing Date or ending with the
date on which the last of the Revolving Facility Commitment of such Lender
shall be terminated) at a rate equal to 0.75% per annum.  All RF Commitment Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days.  For the purpose of calculating any Lender’s
RF Commitment Fee, the outstanding Swingline Loans during the period for which
such Lender’s RF Commitment Fee is calculated shall be deemed to be zero.  The RF Commitment Fee due to each Lender
shall commence to accrue on the Closing Date and shall cease to accrue on the
date on which the last of the Revolving Facility Commitments of such Lender
shall be terminated as provided herein.


 


(b)                                 The Company (on behalf of itself
and the other Revolving Borrowers and/or CAC) from time to time agrees to pay
(i) to each Revolving Facility Lender (other than any Defaulting Lender),
through the Administrative Agent, 10 Business Days after the last day of March,
June, September and December of each year and three Business Days
after the date on which the Revolving Facility Commitments of all the Lenders
shall be terminated as provided herein, a fee (an “L/C Participation Fee”)
in Dollars on such Lender’s Revolving Facility Percentage of the daily
aggregate Revolving L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements), during the preceding quarter (or shorter
period commencing with the Closing Date or ending with the date on which the
Revolving Facility Commitments shall be terminated) at the rate per annum equal
to the Applicable Margin for Eurocurrency Revolving Borrowings effective for
each day in such period, and (ii) to each Issuing Bank, for its own account,
(x) 10 Business Days after the last day of March, June, September and December of
each year and three Business Days after the date on which the Revolving
Facility Commitments of all the Lenders shall be terminated as provided herein,
a fronting fee in Dollars in respect of each Letter of Credit issued by such
Issuing Bank for the period from and including the date of issuance of such
Letter of Credit to and including the termination of such Letter of Credit,
computed at a rate equal to 1/4 of 1% (1/8 of 1% in the case of CL Letters of
Credit) per annum of the daily stated amount of such Letter of Credit) (with
the minimum annual fronting fee for each Letter of Credit to be not less than
$500) plus (y) in connection with the issuance, amendment or transfer of any
such Letter of Credit or any L/C Disbursement thereunder, such Issuing Bank’s
customary documentary and processing charges (collectively, “Issuing Bank
Fees”).  The Company and CAC, jointly
and severally, agree to pay to each CL Lender (based on each such CL Lender’s
CL Percentage), through the Administrative Agent, a fee (the “CL Facility
Fee”) equal to the sum of (I) a rate per annum equal to the Applicable CL
Margin on the aggregate amount of the Credit-Linked Deposits from time to time
and (II) a rate per annum equal to the Credit-Linked Deposit Cost Amount as in
effect from time to time on the aggregate amount of the Credit-Linked Deposits
from time to time, in each case for the period from and including the Closing
Date to and including the date on which the Total Credit-Linked Commitment has
been terminated, the Credit-Linked Deposits have been returned to the CL
Lenders and all CL Letters of Credit have been terminated.  Accrued CL Facility Fees shall be due and
payable quarterly in arrears on each CL Interest Payment Date and on the date
on which the Total Credit-Linked Commitment has been terminated, the
Credit-Linked Deposits


 


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have been returned to the CL Lenders and all
CL Letters of Credit have been terminated. 
All L/C Participation Fees and Issuing Bank Fees that are payable on a
per annum basis shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.


 


(c)                                  The Company (on behalf of itself
or Bidco as the DD Borrower) agrees to pay to each Term Lender (other than any
Defaulting Lender), through the Administrative Agent, 10 Business Days after
each last day of March, June, September and December and three
Business Days after the date on which the Delayed Draw Commitments of all the
Lenders shall be terminated as provided herein, a commitment fee (a “TL
Commitment Fee”) in Dollars on the daily amount of the Delayed Draw
Commitment of such Lender during such preceding quarter (or other period
commencing with the Restatement Effective Date or ending with the date on which
the last of the Delayed Draw Commitments of such Lender shall be terminated) at
a rate equal to 0.75% per annum.  All TL
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.  The TL
Commitment Fee due to each Lender shall commence to accrue on the Restatement
Effective Date and shall cease to accrue on the date on which the last of the
Delayed Draw Commitments of such Lender shall be terminated as provided herein.


 


(d)                                 The Company agrees to pay to the
Administrative Agent, for the account of the Administrative Agent, the fees set
forth in the Fee Letter (the “Administrative Agent Fees”).


 


(e)                                  All Fees shall be paid on the
dates due, in immediately available funds, to the Administrative Agent for
distribution, if and as appropriate, among the Lenders, except that Issuing
Bank Fees shall be paid directly to the applicable Issuing Banks.  Once paid, none of the Fees shall be
refundable under any circumstances.


 


SECTION 2.13  Interest.  (a)    The Loans comprising each ABR Borrowing
(including each Swingline Dollar Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Margin.


 


(b)                                 The Loans comprising each
Eurocurrency Borrowing shall bear interest at the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable Margin.


 


(c)                                  Notwithstanding the foregoing,
if any principal of or interest on any Loan or any Fees or other amount payable
by the applicable Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue principal amount shall
bear interest, and each such other overdue amount shall, to the extent
permitted by law, bear interest, in each case after as well as before judgment,
at a rate per annum equal to (i) in the case of overdue principal of any Loan,
2% plus the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount (x)
payable in Dollars, 2% plus the rate applicable to Revolving Loans that are ABR
Loans as provided in paragraph (a) of this Section or (y) payable in
Euros, 2% plus the rate otherwise applicable to a Revolving Loan denominated in
Euros with a one-month Interest Period made on such date;


 


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provided that this paragraph (c) shall not
apply to any payment default that has been waived by the Lenders pursuant to Section 9.08.


 


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


 


(e)                                  All interest hereunder shall be
computed on the basis of a year of 360 days, except that interest computed by
reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day).  The applicable Alternate Base
Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be prima facie evidence thereof.


 


SECTION 2.14  Alternate Rate of Interest.  If prior to the commencement of any Interest
Period for a Eurocurrency Borrowing denominated in any currency:


 


(a)                                  the Administrative Agent
determines (which determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or


 


(b)                                 the Administrative Agent is
advised by the Majority Lenders under a Facility that the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period;


 


then the Administrative
Agent shall give notice thereof to the Borrowers and the Lenders by telephone
or telecopy as promptly as practicable thereafter and, until the Administrative
Agent notifies the Borrowers and the Lenders that the circumstances giving rise
to such notice no longer exist, (i) any Interest Election Request that requests
the conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurocurrency Borrowing denominated in such currency shall be ineffective and
such Borrowing shall be converted to or continued as on the last day of the
Interest Period applicable thereto (A) if such Borrowing is denominated in
Dollars, an ABR Borrowing or (B) if such Borrowing is denominated in Euros, as
a Borrowing bearing interest at such rate as the Majority Lenders under the
Revolving Facility and the applicable Borrower shall agree adequately reflects
the costs to the Revolving Facility Lenders of making or maintaining their
Loans, and (ii) if any Borrowing Request requests a Eurocurrency Borrowing in
such


 


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currency, such
Borrowing shall be made as an ABR Borrowing (if such Borrowing is requested to
be made in Dollars) or shall be made as a Borrowing bearing interest at such
rate as the Majority Lenders under the Revolving Facility shall agree
adequately reflects the costs to the Revolving Facility Lenders of making the
Loans comprising such Borrowing.


 


SECTION 2.15  Increased Costs.  (a)    If any Change in Law shall:


 


(i)                                     impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate or those for which payment has been requested pursuant to Section 2.21)
or Issuing Bank; or


 


(ii)                                  impose
on any Lender or Issuing Bank or the London interbank market any other
condition affecting this Agreement, Eurocurrency Loans or Swingline Euro Loans
made by such Lender or any Letter of Credit or participation therein (except
those for which payment has been requested pursuant to Section 2.21);


 


and the result of
any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or Swingline Euro Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or
Issuing Bank hereunder (whether of principal, interest or otherwise), in each
case determined to be material by such Lender, then the applicable Borrower (in
the case of a Loan) or the applicable Applicant Party (in the case of a Letter
of Credit) will pay to such Lender or Issuing Bank, as applicable, such
additional amount or amounts as will compensate such Lender or Issuing Bank, as
applicable, for such additional costs incurred or reduction suffered.


 


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


 


(c)                                  A certificate of a Lender or an
Issuing Bank setting forth the amount or amounts necessary to compensate such
Lender or Issuing Bank or its holding company, as applicable, as specified in
paragraph (a) or (b) of this Section (as well as reasonably detailed
calculations


 


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thereof) shall be delivered to the applicable
Borrower (in the case of a Loan) or the applicable Applicant Party (in the case
of a Letter of Credit) and shall be prima facie evidence of the amounts
thereof.  The applicable Borrower (in the
case of a Loan) or the applicable Applicant Party (in the case of a Letter of
Credit) shall pay such Lender or Issuing Bank, as applicable, the amount shown
as due on any such certificate within 10 days after receipt thereof.


 


(d)                                 Promptly after any Lender or any
Issuing Bank has determined that it will make a request for increased
compensation pursuant to this Section 2.15, such Lender or issuing Bank
shall notify the applicable Borrower thereof. 
Failure or delay on the part of any Lender or Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of
such Lender’s or Issuing Bank’s right to demand such compensation; provided
that a Borrower shall not be required to compensate a Lender or an Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Lender or Issuing Bank, as
applicable, notifies such Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or issuing Bank’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 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.


 


SECTION 2.16  Break Funding Payments.  In the event of (a) the payment of any
principal of any Eurocurrency Loan or Swingline Euro Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified
in any notice delivered pursuant hereto or (d) the assignment of any Eurocurrency
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by a Borrower pursuant to Section 2.19, then, in any
such event, such Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event.  In
the case of a Eurocurrency Loan or Swingline Euro Loan, such loss, cost or
expense to any Lender shall be deemed to be the amount reasonably determined by
such Lender to be the excess, if any, of (i) the amount of interest which would
have accrued on the principal amount of such Loan had such event not occurred,
at the Adjusted LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue a
Eurocurrency Loan, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for deposits in Euros
of a comparable amount and period from other banks in the Eurodollar
market.  A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to such Borrower and shall be
prima facie evidence of the amounts thereof. 
Such Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


SECTION 2.17  Taxes. 
(a)    Any and all payments by or on account of any
obligation of any Loan Party hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided
that if a Loan Party shall be required to deduct


 


78





















 


any Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) any Agent, Lender or Issuing Bank, as applicable, receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) such Loan Party shall make such deductions and (iii) such Loan Party
shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


 


(b)                                 In addition, the Loan Parties
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.


 


(c)                                  Each Loan Party shall indemnify
the Agents, each Lender and each Issuing Bank, within 10 days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by such Agent, Lender or Issuing Bank, as applicable, on or with respect
to any payment by or on account of any obligation of such Loan Party hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority.  A
certificate as to the amount of such payment or liability delivered to such
Loan Party by a Lender or an Issuing Bank, or by the Administrative Agent on
its own behalf, on behalf of another Agent or on behalf of a Lender or an
Issuing Bank, shall be conclusive absent manifest error.


 


(d)                                 As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by a Loan Party to a Governmental
Authority, such Loan Party shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.


 


(e)                                  Any Lender that is entitled to
an exemption from or reduction of withholding Tax under the law of the jurisdiction
in which a Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to such
Borrower (with a copy to the Administrative Agent), to the extent such Lender
is legally entitled to do so, at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by
applicable law as may reasonably be requested by such Borrower to permit such
payments to be made without such withholding tax or at a reduced rate; provided
that no Lender shall have any obligation under this paragraph (e) with respect
to any withholding Tax imposed by any jurisdiction other than the United States
if in the reasonable judgment of such Lender such compliance would subject such
Lender to any material unreimbursed cost or expense or would otherwise be
disadvantageous to such Lender in any material respect.


 


(f)                                    If an Agent or a Lender
determines, in good faith and in its sole discretion, that it has received a
refund of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by a Loan Party or with respect to which such Loan Party has paid
additional amounts pursuant to this Section 2.17, it shall pay over such
refund to such Loan Party (but only to the extent of indemnity payments made,
or additional amounts paid, by such Loan Party under


 


79





















 


this Section 2.17 with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of such Agent or such Lender (including any Taxes imposed with respect to such
refund) as is determined by the Agent or Lender in good faith and in its sole
discretion and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided that such
Loan Party, upon the request of such Agent or such Lender, agrees to repay as
soon as reasonably practicable the amount paid over to such Loan Party (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to such Agent or such Lender in the event such Agent or such Lender
is required to repay such refund to such Governmental Authority.  This Section shall not be construed to
require any Agent or any Lender to make available its Tax returns (or any other
information relating to its Taxes which it deems confidential) to the Loan
Parties or any other Person.


 


SECTION 2.18  Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.  (a)    Unless otherwise specified, each Borrower
shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of L/C Disbursements, or of amounts
payable under Section 2.15, 2.16, 2.17 or 2.21, or otherwise) prior to
2:00 p.m., Local Time, on the date when due, in immediately available funds,
without condition or deduction for any defense, recoupment, set-off or
counterclaim.  Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon.  All
such payments shall be made to the Administrative Agent to the applicable
account designated to the Company by the Administrative Agent, except payments
to be made directly to the applicable Issuing Bank or the applicable Swingline
Lender as expressly provided herein and except that payments pursuant to
Sections 2.15, 2.16, 2.17, 2.21 and 9.05 shall be made directly to the persons
entitled thereto.  The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof
or, in the case of payments made prior to the Revolving Facility Maturity Date
in respect of CL Loans or of L/C Disbursements funded by CL Lenders from
Credit-Linked Deposits, the Administrative Agent shall deposit same in the
Credit-Linked Deposit Account.  If any
payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for
the period of such extension.  All
payments hereunder of (i) principal or interest in respect of any Loan shall be
made in the currency in which such Loan is denominated, (ii) reimbursement
obligations shall, subject to Sections 2.05(e) and 2.05(k), be made in the
currency in which the Letter of Credit in respect of which such reimbursement
obligation exists is denominated or (iii) any other amount due hereunder or
under another Loan Document shall be made in Dollars.  Any payment required to be made by the
Administrative Agent hereunder shall be deemed to have been made by the time
required if the Administrative Agent shall, at or before such time, have taken
the necessary steps to make such payment in accordance with the regulations or
operating procedures of the clearing or settlement system used by the
Administrative Agent to make such payment.  Any amount payable by the Administrative Agent
to one or more Lenders in the national currency of a member state of the
European Union that has adopted the Euro as its lawful currency shall be paid
in Euros.


 


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


 


(c)                                  If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Term Loans, Revolving
Facility Loans or participations in L/C Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Term Loans, Revolving Facility Loans and participations
in L/C Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Term
Loans, Revolving Facility Loans and participations in L/C Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Term
Loans, Revolving Facility Loans and participations in L/C Disbursements and Swingline
Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
(c) shall not be construed to apply to any payment made by a Borrower pursuant
to and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in L/C Disbursements to any
assignee or participant, other than to such Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph (c) shall apply).


 


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


 


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(e)                                  If any Lender shall fail to make
any payment required to be made by it pursuant to Section 2.04(c), 2.05(d)
or (e), 2.06(b) or 2.18(d), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.


 


SECTION 2.19  Mitigation Obligations; Replacement of
Lenders.  (a)    If
any Lender requests compensation under Section 2.15 or 2.21, or if a
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or Affiliates, if, in
the reasonable judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 2.15, 2.17
or 2.21, as applicable, in the future and (ii) would not subject such Lender to
any material unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender in any material respect.  Each Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.


 


(b)                                 If any Lender requests
compensation under Section 2.15 or 2.21, or if a Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, or is a Defaulting Lender,
then such Borrower 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 9.04), 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) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in L/C Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or such Borrower (in the case of all
other amounts) and (ii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or 2.21 or payments required to
be made pursuant to Section 2.17, such assignment will result in a
reduction in such compensation or payments. 
Nothing in this Section 2.19 shall be deemed to prejudice any
rights that any Borrower may have against any Lender that is a Defaulting
Lender.


 


(c)                                  If any Lender (such Lender, a “Non-Consenting
Lender”) has failed to consent to a proposed amendment, waiver, discharge
or termination which pursuant to the terms of Section 9.08 requires the
consent of all of the Lenders affected and with respect to which the Required
Lenders shall have granted their consent, then provided no Event of Default
then exists, the Company shall have the right (unless such Non-Consenting
Lender grants such consent) to replace such Non-Consenting Lender by requiring
such Non-Consenting Lender to assign its Loans, and its Commitments hereunder
to one or more assignees reasonably acceptable to the Administrative Agent, provided
that:  (a) all Obligations of Borrowers
owing to such Non- Consenting Lender being replaced (and all Credit-Linked
Deposits funded by such Lender) shall be paid in full to such Non-Consenting
Lender concurrently with such assignment, and (b) the replacement Lender shall
purchase the foregoing by paying to such Non-Consenting Lender a


 


82





















 


price equal to the principal amount thereof
plus accrued and unpaid interest thereon. In connection with any such
assignment the Company, Administrative Agent, such Non-Consenting Lender and
the replacement Lender shall otherwise comply with Section 9.04.


 


SECTION 2.20  Revolving Borrowers.  The Company may designate after the
Restatement Effective Date any Domestic Subsidiary of the Company that is party
to the U.S. Collateral Agreement and/or any Foreign Subsidiary of the Company
that is a Wholly Owned Subsidiary as an additional Revolving Borrower, with a
specified Maximum Credit Limit, by delivery to the Administrative Agent of a
Revolving Borrower Agreement executed by such Subsidiary and the Company at
least 5 Business Days (or 10 Business Days in the case of any Subsidiary which
is not both a Domestic Subsidiary and a Wholly Owned Subsidiary) prior to the
date of such designation, a copy of which the Administrative Agent shall
promptly deliver to the Lenders.  It is
agreed that Grupo Celanese S.A., if and when designated by the Company as a
Revolving Borrower, will have a Maximum Credit Limit equal at any time to the
Dollar Equivalent of the aggregate Revolving Facility Commitments at such time.  Each such designation shall specify whether
such Subsidiary shall be entitled to make Borrowings under and/or request
Letters of Credit under the Revolving Facility, and each such designation and
specified Maximum Credit Limit shall be subject to the consent of the
Administrative Agent (which consent shall not unreasonably be withheld).  Upon the execution by the Company and
delivery to the Administrative Agent of a Revolving Borrower Termination with
respect to any Revolving Borrower, such Subsidiary shall cease to be a
Revolving Borrower and a party to this Agreement as a Revolving Borrower; provided
that no Revolving Borrower Termination will become effective as to any
Revolving Borrower (other than to terminate such Revolving Borrower’s right to
make further Borrowings under this Agreement) at a time when any principal of
or interest on any Loan to such Revolving Borrower or any Letter of Credit for
the account of such Revolving Borrower shall be outstanding hereunder.  Promptly following receipt of any Revolving
Borrower Agreement or Revolving Borrower Termination, the Administrative Agent
shall send a copy thereof to each Revolving Facility Lender.  The Company shall be entitled to designate
any Foreign Subsidiary that complies with the requirements described in Section 5.10(f)
as a Revolving Borrower.


 


SECTION 2.21  Additional Reserve Costs.  (a)    For so long as any Lender is required to make
special deposits with the Bank of England and/or the Financial Services
Authority (or, in either case any other authority which replaced all or any of
its functions) and/or the European Central Bank or comply with reserve assets,
liquidity, cash margin or other requirements of the Bank of England and/or the
Financial Services Authority (or, in either case any other authority which
replaced all or any of its functions) and/or the European Central Bank, to
maintain reserve asset ratios or to pay fees, in each case in respect of such
Lender’s Eurocurrency Loans or Swingline Euro Loans, such Lender shall be
entitled to require the applicable Borrower to pay, contemporaneously with each
payment of interest on each of such Loans, additional interest on such Loan at
a percentage rate per annum equal to the Mandatory Costs Rate calculated in
accordance with the formulae and in the manner set forth in Exhibit H
hereto.


 


(b)                                 Any additional interest owed
pursuant to paragraph (a) above shall be determined by the applicable Lender,
which determination shall be prima facie evidence of the


 


83





















 


amount thereof, and notified to the
applicable Borrower (with a copy to the Administrative Agent) at least 10 days
before each date on which interest is payable for the applicable Loan, and such
additional interest so notified to the applicable 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 2.22  Illegality.  (a)  If
any Lender reasonably determines that it is unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
lending office to make or maintain any Euro Term Loan, any Revolving Facility
Loan denominated in Euros or any Swingline Euro Loan, then, on notice thereof
by such Lender to the applicable Borrower through the Administrative Agent, any
obligations of such Lender to make or continue Euro Term Loans, Revolving
Facility Loans denominated in Euros or Swingline Euro Loans shall be suspended
until such Lender notifies the Administrative Agent and the applicable Borrower
that the circumstances giving rise to such determination no longer exist.  Upon any of such notice, the applicable
Borrower shall upon demand from such Lender (with a copy to the Administrative
Agent) prepay such Euro Term Loan, Revolving Facility Loan denominated in Euros
or Swingline Euro Loan.  Upon any such
prepayment, such Borrower shall also pay accrued interest on the amount so
prepaid.


 


(b)                                 If any Lender reasonably
determines that any change in law has made it unlawful, or that any
Governmental Authority has asserted after the Original Closing Date that it is
unlawful, for any Lender or its applicable lending office to make or maintain
any Eurocurrency Loans (other than as set forth in paragraph (a) above), then,
on notice thereof by such Lender to the applicable Borrower through the
Administrative Agent, any obligations of such Lender to make or continue
Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency Borrowings
shall be suspended until such Lender notifies the Administrative Agent and the
applicable Borrower that the circumstances giving rise to such determination no
longer exist.  Upon receipt of such
notice, the applicable Borrower shall upon demand from such Lender (with a copy
to the Administrative Agent), either (i) for Loans denominated in Euros (A)
prepay each Loan denominated in Euros or (B) keep such Loan denominated in
Euros outstanding, in which case the Adjusted LIBO Rate with respect to such
Loan shall be deemed to be the rate determined by such Lender as the
all-in-cost of funds to fund such Loan with maturities comparable to the
Interest Period applicable thereto, or (ii) for Loans denominated in Dollars,
convert all Eurocurrency Borrowings of such Lender to ABR Borrowings, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurocurrency Borrowings to such day, or immediately,
if such Lender may not lawfully continue to maintain such Loans.  Upon any such prepayment or conversion, such
Borrower shall also pay accrued interest on the amount so prepaid or converted.


 


ARTICLE III


 


Representations and Warranties


 


Each of Holdings and the
Company represents and warrants to each of the Lenders that:


 


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SECTION 3.01  Organization; Powers.  Except as set forth on Schedule 3.01,
each of Holdings, the Company and each of the Material Subsidiaries (a) is a
partnership, limited liability company, exempted company or corporation duly
organized, validly existing and in good standing (or, if applicable in a
foreign jurisdiction, enjoys the equivalent status under the laws of any
jurisdiction of organization outside the United States) under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted, (c)
is qualified to do business in each jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to have a Material Adverse Effect, and (d) has the power and authority
to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and, in the case of each Borrower, to borrow and
otherwise obtain credit hereunder.


 


SECTION 3.02  Authorization.  The execution, delivery and performance by
Holdings, the Company, and each of their Subsidiaries of each of the Loan Documents
to which it is a party, and the borrowings hereunder (a) have been duly
authorized by all corporate, stockholder, shareholder, limited liability
company or partnership action required to be obtained by Holdings, the Company
and such Subsidiaries and (b) will not (i) violate (A) any provision of law,
statute, rule or regulation, or of the certificate or articles of incorporation
or other constitutive documents or by-laws of Holdings, the Company or any such
Subsidiary, (B) any applicable order of any court or any rule, regulation or
order of any Governmental Authority or (C) any provision of any indenture,
certificate of designation for preferred stock, agreement or other instrument
to which Holdings, the Company or any such Subsidiary is a party or by which
any of them or any of their property is or may be bound, (ii) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse of
time or both) a default under, give rise to a right of or result in any
cancellation or acceleration of any right or obligation (including any payment)
or to a loss of a material benefit under any such indenture, certificate of
designation for preferred stock, agreement or other instrument, where any such
conflict, violation, breach or default referred to in clause (i) or (ii) of
this Section 3.02, could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, or (iii) result in the creation or
imposition of any Lien upon or with respect to any material property or assets
now owned or hereafter acquired by Holdings, the Company or any such
Subsidiary, other than the Liens created by the Loan Documents.


 


SECTION 3.03  Enforceability.  The Original Credit Agreement has been duly
executed and delivered by Holdings, the Company and CAC, the Agreement to Amend
has been duly executed and delivered by the Company, and this Agreement
constitutes, and each other Loan Document when executed and delivered by each
Loan Party that is party thereto will constitute, a legal, valid and binding
obligation of (x) in the case of this Agreement, Holdings and each Borrower or
(y) in the case of such other Loan Documents, such Loan Party, enforceable
against each such Loan Party in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance or other similar laws affecting creditors’ rights generally, (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (iii) implied covenants of
good faith and fair dealing.


 


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SECTION 3.04  Governmental Approvals.  No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority
is or will be required in connection with the Transactions, except for (a) the
filing of Uniform Commercial Code financing statements, (b) filings with the
United States Patent and Trademark Office and the United States Copyright
Office and comparable offices in foreign jurisdictions and equivalent filings
in foreign jurisdictions, (c) recordation of the Mortgages, (d) such as
have been made or obtained and are in full force and effect, (e) such
actions, consents and approvals the failure to be obtained or made which could
not reasonably be expected to have a Material Adverse Effect and (f) filings or
other actions listed on Schedule 3.04.


 


SECTION 3.05  Financial Statements.  (a)    Holdings has heretofore furnished to the
Lenders the audited consolidated balance sheet as of December 31, 2003 and
the related audited consolidated statements of income and cash flows of CAG and
its subsidiaries for the year ended December 31, 2003 and the unaudited
interim consolidated balance sheet as of September 30, 2004 and the
related unaudited interim consolidated statements of income and cash flows of
Holdings and its Subsidiaries for the period ended September 30, 2004,
which were prepared in accordance with US GAAP consistently applied (except as
may be indicated in the notes thereto), fairly present in all material respects
the consolidated financial position of the respective parties as of the dates
thereof and the consolidated results of operations and cash flows for the
period then ended (in the case of the unaudited interim statements, subject to
normal year-end adjustments and the absence of notes).


 


(b)                                 Holdings has heretofore
furnished to the Lenders a pro forma
consolidated balance sheet as of September 30, 2004 prepared giving effect
to the Transaction as if the Transaction had occurred on such date.  Such pro  forma consolidated
balance sheet (i) has been prepared in good faith based on the assumptions
believed by Holdings and the Company to have been reasonable at the time made
and to be reasonable as of the Restatement Effective Date (it being understood
that such assumptions are based on good faith estimates with respect to certain
items and that the actual amounts of such items on the Restatement Effective
Date is subject to variation and that purchase accounting will not have been
applied), (ii) subject to the assumptions and qualifications described therein,
accurately reflects all adjustments necessary to give effect to the Transaction
and (iii) subject to the assumptions and qualifications described therein,
presents fairly, in all material respects, the pro
forma consolidated financial position
of Holdings and its consolidated Subsidiaries as of September 30, 2004, as
if the Transaction had occurred on such date.


 


SECTION 3.06  No Material Adverse Effect.  Since December 31, 2003 (but after
giving effect to the Transaction) no Material Adverse Effect has occurred.


 


SECTION 3.07  Title to Properties; Possession Under
Leases.  (a)    Each
of Holdings, the Company and the Material Subsidiaries has good and valid
record fee simple title (insurable at ordinary rates) to, or valid leasehold
interests in, or easements or other limited property interests in, all its
properties and assets (including all Mortgaged Properties), except where the
failure to have such title could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.  All such properties and assets are free and
clear of Liens, other than Liens expressly permitted by Section 6.02 or
arising by operation of law.


 


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(b)                                 Each of Holdings, the Company
and the Material Subsidiaries has complied with all obligations under all
leases to which it is a party, except where the failure to comply would not
have a Material Adverse Effect, and all such leases are in full force and
effect, except leases in respect of which the failure to be in full force and
effect could not reasonably be expected to have a Material Adverse Effect.  Each of Holdings, the Company and each of the
Material Subsidiaries enjoys peaceful and undisturbed possession under all such
leases, other than leases in respect of which the failure to enjoy peaceful and
undisturbed possession could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.


 


(c)                                  Each of Holdings, the Company
and the Material Subsidiaries owns or possesses, or could obtain ownership or
possession of, on terms not materially adverse to it, all patents, trademarks,
service marks, trade names, copyrights, licenses and rights with respect
thereto necessary for the present conduct of its business, without any known
conflict with the rights of others, and free from any burdensome restrictions,
except where such conflicts and restrictions could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.


 


(d)                                 As of the Restatement Effective
Date, none of Holdings, the Company and the Material Subsidiaries has received
any notice of any pending or contemplated condemnation proceeding affecting any
of the Mortgaged Properties or any sale or disposition thereof in lieu of
condemnation that remains unresolved as of the Restatement Effective Date.


 


(e)                                  None of Holdings, the Company
and the Material Subsidiaries is obligated on the Restatement Effective Date
under any right of first refusal, option or other contractual right to sell,
assign or otherwise dispose of any Mortgaged Property or any interest therein,
except as permitted under Section 6.02 or 6.05.


 


SECTION 3.08  Subsidiaries.  (a)    On the Restatement Effective Date, after
giving effect to the Transaction, the corporate structure of Parent and its
Subsidiaries is in all material respects as set forth on Schedule 3.08(a).


 


(b)                                 Schedule 3.08(b) sets forth as of the
Restatement Effective Date the name and jurisdiction of incorporation,
formation or organization of each Material Subsidiary and, as to each such
Material Subsidiary, the percentage of each class of Equity Interests owned by
Holdings or by any such Material Subsidiary, subject to such changes as are
reasonably satisfactory to the Administrative Agent.


 


(c)                                  As of the Restatement Effective
Date, there are no outstanding subscriptions, options, warrants, calls, rights
or other similar agreements or commitments (other than stock options granted to
employees or directors and directors’ qualifying shares) of any nature relating
to any Equity Interests of Parent, Holdings, the Company or any of the Material
Subsidiaries, except as set forth on Schedule 3.08(c).


 


(d)                                 Except to the extent, if any,
specified for a subsidiary in Schedule 1.01(h), each subsidiary
listed on Schedule 1.01(h) owns no property other than any de
minimus assets and conducts no business other than de minimus business.


 


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SECTION 3.09  Litigation; Compliance with Laws.  (a)    Except as set forth on Schedule 3.09,
there are no actions, suits, investigations or proceedings at law or in equity
or by or on behalf of any Governmental Authority or in arbitration now pending,
or, to the knowledge of Holdings or the Company, threatened in writing against
or affecting Holdings or the Company or any of their Subsidiaries or any
business, property or rights of any such person which could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
or materially adversely affect the Transaction.


 


(b)                                 None of Holdings, the Company,
the Material Subsidiaries and their respective properties or assets is in
violation of (nor will the continued operation of their material properties and
assets as currently conducted violate) any law, rule or regulation (including
any zoning, building, Environmental Law, ordinance, code or approval or any
building permit) or any restriction of record or agreement affecting any
Mortgaged Property, or is in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, where such violation or
default could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.


 


SECTION 3.10  Federal Reserve Regulations.  (a)    None of Holdings, the Company and their
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock.


 


(b)                                 No part of the proceeds of any
Loan will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of the Regulations of the Board,
including Regulation U or Regulation X.


 


SECTION 3.11  Investment Company Act; Public Utility
Holding Company Act.  None of
Holdings, the Company and their Subsidiaries is (a) an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended, or (b) a “holding company” as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended.


 


SECTION 3.12  Use of Proceeds.  The respective Borrowers will use the
proceeds of Revolving Facility Loans, Swingline Loans and CL Loans and the
issuance of Letters of Credit solely for general corporate purposes; provided
that Letters of Credit may not be issued in support of Indebtedness permitted
under Section 6.01(x).  The Company
will use the proceeds of B Term Loans (net of a portion of such proceeds used
to satisfy fees and expenses) made to it on the Restatement Effective Date to
finance, in part, the Term C Repayment, the Company Dividend and the Vinamul
Acquisition, and the DD Borrower will use the proceeds of C Term Loans (x) to
finance in part the Acetex Acquisition and/or (y) to purchase Equity Interests
of CAG not owned by Bidco on the Restatement Effective Date and, in all such cases,
to pay related fees and expenses.


 


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SECTION 3.13  Tax Returns.  Except as set forth on Schedule 3.13:


 


(a)                                  each of Holdings, the Company
and the Material Subsidiaries (i) has timely filed or caused to be timely filed
all federal, state, local and non-U.S. Tax returns required to have been filed
by it that are material to such companies taken as a whole and each such Tax
return is true and correct in all material respects and (ii) has timely paid or
caused to be timely paid all material Taxes shown thereon to be due and payable
by it and all other material Taxes or assessments, except Taxes or assessments
that are being contested in good faith by appropriate proceedings in accordance
with Section 5.03 and for which Holdings, the Company or any of the
Material Subsidiaries (as the case may be) has set aside on its books adequate
reserves;


 


(b)                                 each of Holdings, the Company
and the Material Subsidiaries has paid in full or made adequate provision (in
accordance with US GAAP) for the payment of all Taxes due with respect to all
periods or portions thereof ending on or before the Restatement Effective Date,
which Taxes, if not paid or adequately provided for, could reasonably be
expected to have a Material Adverse Effect; and


 


(c)                                  as of the Restatement Effective
Date, with respect to each of Holdings, the Company and their Material
Subsidiaries, (i) there are no material audits, investigations or claims being
asserted in writing with respect to any Taxes, (ii) no presently effective
waivers or extensions of statutes of limitation with respect to Taxes have been
given or requested and (iii) no material Tax returns are being examined by, and
no written notification of intention to examine has been received from, the
Internal Revenue Service or, with respect to any material potential Tax
liability, any other Taxing authority.


 


SECTION 3.14  No Material Misstatements.  (a)    All written information (other than the
Projections, estimates and information of a general economic nature) (the “Information”)
concerning Holdings, the Company, their Subsidiaries, the Transaction and any
other transactions contemplated hereby included in the RED Information
Memorandum or otherwise prepared by or on behalf of the foregoing or their
representatives and made available to any Lenders or the Administrative Agent
in connection with the Transaction (as such information may have been
supplemented in writing prior to the Restatement Effective Date) or the other
transactions contemplated hereby, when taken as a whole, were true and correct
in all material respects, as of the date such Information was furnished to the
Lenders and (in the case of such Information delivered prior to the Restatement
Effective Date) as of the Restatement Effective Date and did not contain any
untrue statement of a material fact as of any such date or omit to state a
material fact necessary in order to make the statements contained therein not
materially misleading in light of the circumstances under which such statements
were made.


 


(b)                                 The Projections and estimates
and information of a general economic nature prepared by or on behalf of the
Company or any of its representatives and that have been made available to any
Lenders or the Administrative Agent in connection with the Transactions or the
other transactions contemplated hereby (i) have been prepared in good faith
based upon assumptions believed by the Company to be reasonable as of the date
thereof and as of the Restatement Effective Date, and (ii) as of the
Restatement Effective Date, have not been modified in any material respect by
the Company.


 


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SECTION 3.15  Employee Benefit Plans.  (a)    Each of Holdings, the Company, the Material
Subsidiaries and the ERISA Affiliates is in compliance with the applicable
provisions of ERISA and the provisions of the Code relating to Plans and the
regulations and published interpretations thereunder and any similar applicable
non-U.S. law, except for such noncompliance that could not reasonably be
expected to have a Material Adverse Effect. 
No Reportable Event has occurred during the past five years as to which
Holdings, the Company, any of the Material Subsidiaries or any ERISA Affiliate
was required to file a report with the PBGC, other than reports that have been
filed and reports the failure of which to file could not reasonably be expected
to have a Material Adverse Effect.  As of
the Restatement Effective Date, the excess of the present value of all benefit
liabilities under each Plan of Holdings, the Company, the Material Subsidiaries
and the ERISA Affiliates (based on those assumptions used to fund such Plan),
as of the last annual valuation date applicable thereto for which a valuation
is available, over the value of the assets of such Plan could not reasonably be
expected to have a Material Adverse Effect, and the excess of the present value
of all benefit liabilities of all underfunded Plans (based on those assumptions
used to fund each such Plan) as of the last annual valuation dates applicable
thereto for which valuations are available, over the value of the assets of all
such under funded Plans could not reasonably be expected to have a Material
Adverse Effect.  No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all
other such ERISA Events which have occurred or for which liability is
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect.  None of
Holdings, the Company, the Material Subsidiaries and the ERISA Affiliates has
received any written notification that any Multiemployer Plan is in
reorganization or has been terminated within the meaning of Title IV of ERISA,
or has knowledge that any Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, where such reorganization or termination
has had or could reasonably be expected to have, through increases in the
contributions required to be made to such Plan or otherwise, a Material Adverse
Effect.


 


(b)                                 Each of Holdings, the Company
and the Material Subsidiaries is in compliance (i) with all applicable
provisions of law and all applicable regulations and published interpretations
thereunder with respect to any employee pension benefit plan or other employee
benefit plan governed by the laws of a jurisdiction other than the United
States and (ii) with the terms of any such plan, except, in each case, for such
noncompliance that could not reasonably be expected to have a Material Adverse
Effect.


 


SECTION 3.16  Environmental Matters.  Except as disclosed in Schedule 3.16
and except as to matters that could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect (i) no written
notice, request for information, order, complaint or penalty has been received
by Holdings, the Company or any of the Material Subsidiaries relating to
Holdings, the Company or any of the Material Subsidiaries, and there are no
judicial, administrative or other actions, suits or proceedings relating to
Holdings, the Company or any of the Material Subsidiaries pending or, to the
knowledge of Company, threatened which allege a violation of or liability under
any Environmental Laws, (ii) each of Holdings, the Company and the Material
Subsidiaries has all environmental permits necessary for its current operations
to comply with all applicable Environmental Laws and is, and since January 1,
2001 has been, in compliance with the terms of such permits and with all other
applicable Environmental Laws, (iii) there has been no written environmental
audit conducted since


 


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January 1, 2000 by Holdings, the Company or any of the Material
Subsidiaries of any property currently owned or leased by Holdings, the Company
or any of the Material Subsidiaries which has not been made available to the
Administrative Agent prior to the date hereof, (iv) no Hazardous Material is
located at any property currently owned, operated or leased by Holdings, the
Company or any of the Material Subsidiaries that would reasonably be expected
to give rise to any cost, liability or obligation of Holdings, the Company or
any of the Material Subsidiaries under any Environmental Laws, and no Hazardous
Material has been generated, owned or controlled by Holdings, the Company or
any of the Material Subsidiaries and transported to or released at any location
in a manner that would reasonably be expected to give rise to any cost,
liability or obligation of Holdings, the Company or any of the Material
Subsidiaries under any Environmental Laws, and (v) there are no acquisition
agreements entered into after December 31, 2000 in which Holdings, the
Company or any of the Material Subsidiaries has expressly assumed or undertaken
responsibility for any liability or obligation of any other Person arising
under or relating to Environmental Laws, which in any such case has not been
made available to the Administrative Agent prior to the Restatement Effective
Date.


 


SECTION 3.17  Security Documents.  (a)    Each of the Security Documents described in Schedule 1.01(a)
will as of the Restatement Effective Date, and if Bidco is the DD Borrower, the
Bidco Pledge will as of the date of the first incurrence of C Term Loans by
Bidco, be effective to create in favor of the Collateral Agent (for the benefit
of the Secured Parties) a legal, valid and enforceable security interest in the
Collateral described therein (subject to any limitations specified
therein).  In the case of the Pledged
Collateral described in any of such Security Documents the security interest in
which is perfected by delivery thereof, when certificates or promissory notes,
as applicable, representing such Pledged Collateral are delivered to the
Collateral Agent, and in the case of the other Collateral described in any such
Security Document (other than the Intellectual Property (as defined in the U.S.
Collateral Agreement)), when financing statements and other filings specified
on Schedule 6 of the Perfection Certificate in appropriate form are
filed in the offices specified on Schedule 7 of the Perfection
Certificate, the Collateral Agent (for the benefit of the Secured Parties)
shall have a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral, as security for the
Obligations secured thereby, in each case prior and superior in right to any
other person (except, in the case of Collateral other than Pledged Collateral,
Liens expressly permitted by Section 6.02 and Liens having priority by
operation of law).


 


(b)                                 When the U.S. Collateral
Agreement or a summary thereof is properly filed in the United States Patent
and Trademark Office and the United States Copyright Office, and, with respect
to Collateral in which a security interest cannot be perfected by such filings,
upon the proper filing of the financing statements referred to in paragraph (a)
above, the Collateral Agent (for the benefit of the Secured Parties) shall have
a fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties thereunder in the Intellectual Property, in each
case prior and superior in right to any other person except Liens expressly
permitted by Section 6.02 and Liens having priority by operation of law
(it being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks and patents, trademark and patent
applications and registered copyrights acquired by the grantors after the
Closing Date).


 


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(c)                                  Each Foreign Pledge Agreement
will be effective to create in favor of the Collateral Agent, for the benefit
of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral described therein.  In the
case of the Pledged Collateral described in a Foreign Pledge Agreement, the
security interest in which is perfected by delivery thereof, when certificates
or promissory notes, as applicable, representing such Pledged Collateral are
delivered to the Collateral Agent, and, in the case of all other Collateral
provided for therein, when filings or recordings are made in the appropriate
offices in each relevant jurisdiction and the other actions, if any, specified
in such Foreign Pledge Agreement are taken, the Collateral Agent (for the
benefit of the Secured Parties) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
Collateral, as security for the Obligations secured thereby, in each case prior
and superior in right to any other person (except, in the case of Collateral
other than Pledged Collateral, Liens expressly permitted by Section 6.02
and Liens having priority by operation of law).


 


(d)                                 The Existing Mortgages, together with the
amendments thereto, and the Mortgages executed and delivered after the
Restatement Effective Date pursuant to Section 5.10 shall be effective to
create in favor of the Collateral Agent (for the benefit of the Secured
Parties) a legal, valid and enforceable Lien on all of the Loan Parties’ right,
title and interest in and to the Mortgaged Property thereunder and the proceeds
thereof, and when such Mortgages are filed or recorded in the proper real
estate filing or recording offices, the Collateral Agent (for the benefit of
the Secured Parties) shall have a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Mortgaged Property and, to the extent applicable, subject to Section 9-315
of the Uniform Commercial Code, the proceeds thereof, in each case prior and
superior in right to any other Person, other than with respect to the rights of
a Person pursuant to Liens expressly permitted by Section 6.02(a) and
Liens having priority by operation of law.


 


SECTION 3.18  Location of Real Property and Leased
Premises.  (a)    Schedule 8
to the Perfection Certificate lists completely and correctly as of the
Restatement Effective Date all material real property owned by Holdings, the
Company and the Domestic Subsidiary Loan Parties and the addresses
thereof.  As of the Restatement Effective
Date, Holdings, the Company and the Domestic Subsidiaries own in fee all the real
property set forth as being owned by them on such Schedule.


 


(b)                                 Schedule 8 to the Perfection Certificate
lists completely and correctly as of the Restatement Effective Date all
material real property leased by Holdings, the Company and the Domestic
Subsidiary Loan Parties and the addresses thereof.  As of the Restatement Effective Date,
Holdings, the Company and the Domestic Subsidiary Loan Parties have valid
leases in all the real property set forth as being leased by them on such
Schedule.


 


SECTION 3.19  Solvency.  (a)   Immediately after giving effect to the
Transaction (i) the fair value of the assets of Holdings and its Subsidiaries
on a consolidated basis, at a fair valuation, will exceed the debts and
liabilities, direct, subordinated, contingent or otherwise, of Holdings and its
Subsidiaries on a consolidated basis; (ii) the present fair saleable value of
the property of Holdings and its Subsidiaries on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of
Holdings and its Subsidiaries on a consolidated basis on their debts and other
liabilities, direct, subordinated, contingent or otherwise, as


 


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such debts and other liabilities become absolute and matured; (iii)
Holdings and its Subsidiaries on a consolidated basis will be able to pay their
debts and liabilities, direct, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (iv) Holdings and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted following the
Restatement Effective Date.


 


(b)                                 Neither Holdings nor the Company
intends to, and does not believe that it or any of the Material Subsidiaries
will, incur debts beyond its ability to pay such debts as they mature, taking
into account the timing and amounts of cash to be received by it or any such
subsidiary and the timing and amounts of cash to be payable on or in respect of
its Indebtedness or the Indebtedness of any such subsidiary.


 


SECTION 3.20  Labor Matters.  There are no strikes pending or threatened
against Holdings, the Company or any of the Material Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.  The hours
worked and payments made to employees of Holdings, the Company and the Material
Subsidiaries have not been in violation in any material respect of the Fair
Labor Standards Act or any other applicable law dealing with such matters.  All material payments due from Holdings, the
Company or any of the Material Subsidiaries or for which any claim may be made
against Holdings, the Company or any of the Material Subsidiaries, on account
of wages and employee health and welfare insurance and other benefits have been
paid or accrued as a liability on the books of Holdings, the Company or such
Material Subsidiary to the extent required by US GAAP.  Except as set forth on Schedule 3.20,
consummation of the Transaction will not give rise to a right of termination or
right of renegotiation on the part of any union under any collective bargaining
agreement to which Holdings, the Company or any of the Material Subsidiaries
(or any predecessor) is a party or by which Holdings, the Company or any of the
Material Subsidiaries (or any predecessor) is bound, other than collective
bargaining agreements that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.21  Insurance.  Schedule 3.21 sets forth a true,
complete and correct description of all material insurance maintained by or on
behalf of Holdings, the Company or the Material Subsidiaries as of the Restatement
Effective Date.  As of the Restatement
Effective Date, such insurance is in full force and effect.  The Company believes that the insurance
maintained by or on behalf of Holdings, the Company and the Material
Subsidiaries is adequate.


 


ARTICLE IV


 


Conditions of Lending


 


SECTION 4.01  All Credit Events.  The obligations of (a) the Lenders (including
the Swingline Lenders) to make Loans and (b) any Issuing Bank to issue Letters
of Credit or increase the stated amounts of Letters of Credit hereunder (each,
a “Credit Event”) are subject to the satisfaction of the following
conditions:


 


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(a)                                  The Administrative Agent shall
have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03
(or a Borrowing Request shall have been deemed given in accordance with the
last paragraph of Section 2.03) or, in the case of the issuance of a
Letter of Credit, the applicable Issuing Bank and the Administrative Agent
shall have received a Request to Issue such Letter of Credit as required by Section 2.05(b).


 


(b)                                 The representations and
warranties set forth in Article III hereof shall be true and correct in
all material respects on and as of the date of such Borrowing or issuance or
amendment that increases the stated amount of such Letter of Credit, as
applicable, with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date).


 


(c)                                  At the time of and immediately
after such Borrowing or issuance or amendment that increases the stated amount
of such Letter of Credit, as applicable, no Event of Default or Default shall
have occurred and be continuing.


 


Each Borrowing and
each issuance of, or amendment that increases the stated amount of, a Letter of
Credit shall be deemed to constitute a representation and warranty by the
applicable Borrower (in the case of a Borrowing) and each Applicant Party (in
the case of a Letter of Credit) on the date of such Borrowing, issuance or
amendment as applicable, as to the matters specified in paragraphs (b) and (c)
of this Section 4.01.


 


SECTION 4.02  Credit Events Relating to Revolving
Borrowers.  The obligations of (x)
the Lenders to make any Loans to any Revolving Borrower designated after the
Restatement Effective Date in accordance with Section 2.20 and (y) any
Issuing Bank to issue Letters of Credit for the account of any such Revolving
Borrower, are subject to the satisfaction of the following conditions (which
are in addition to the conditions contained in Section 4.01):


 


(a)                                  With respect to the initial Loan
made to or the initial Letter of Credit issued at the request of, such
Revolving Borrower, whichever comes first,


 


(i)                                     the Administrative Agent (or its counsel)
shall have received a Revolving Borrower Agreement with respect to such
Revolving Borrower duly executed by all parties thereto; and


 


(ii)                                  the Administrative Agent shall have
received such documents (including legal opinions) and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
formation, existence and good standing of such Revolving Borrower, the authorization
of Borrowings as they relate to such Revolving Borrower and any other legal
matters relating to such Revolving Borrower or its Revolving Borrower
Agreement, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.


 


(b)                                 The Administrative Agent shall
be reasonably satisfied that Section 5.10(f) shall have been complied with
in respect of each Foreign Subsidiary that becomes a Revolving


 


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Borrower and that the Collateral and
Guarantee Requirement shall have been satisfied or waived with respect to such
Foreign Revolving Borrower.


 


SECTION 4.03  Credit Events Relating to Bidco as DD
Borrower.  The obligations of the
Lenders to make C Term Loans to Bidco as the DD Borrower are subject to the
satisfaction of the following conditions (which are in addition to the
conditions contained in Section 4.01):


 


(a)                                  The Collateral and Guarantee
Requirements specified in clause (b)(i) of the definitions thereof shall have
been satisfied; and


 


(b)                                 At the time of the initial
incurrence of C Term Loans by Bidco, the Administrative Agent shall have
received (x) such opinions from counsel (who shall be reasonably satisfactory
to the Administrative Agent) relating to Bidco as the DD Borrower and the Bidco
Pledge as reasonably requested by the Administrative Agent and (y) each of the
items specified in Section 6(c)(i), (ii), (iii) and (iv) of the Agreement
to Amend with respect to Bidco.


 


ARTICLE V


 


Affirmative Covenants


 


Each of Holdings and the
Company covenants and agrees with each Lender that so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the
principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under any Loan Document shall have been paid in full and all
Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, each of Holdings and the Company will, and (other
than Sections 5.04 and 5.05) will cause each of the Material Subsidiaries to:


 


SECTION 5.01  Existence; Businesses and Properties.  (a)    Do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence,
except as otherwise expressly permitted under Section 6.05, and except for
the liquidation or dissolution of Subsidiaries if the assets of such
Subsidiaries to the extent they exceed estimated liabilities are acquired by a
Borrower or a Wholly Owned Subsidiary of a Borrower in such liquidation or
dissolution; provided that Subsidiaries that are Loan Parties may not be
liquidated into Subsidiaries that are not Loan Parties and Domestic
Subsidiaries may not be liquidated into Foreign Subsidiaries.


 


(b)                                 Do or cause to be done all
things necessary to (i) obtain, preserve, renew, extend and keep in full force
and effect the permits, franchises, authorizations, patents, trademarks,
service marks, trade names, copyrights, licenses and rights with respect
thereto necessary to the normal conduct of its business, (ii) comply in all
material respects with all material applicable laws, rules, regulations
(including any zoning, building, ordinance, code or approval or any building permits
or any restrictions of record or agreements affecting the Mortgaged Properties)
and material judgments, writs, injunctions, decrees and orders of any
Governmental Authority,


 


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whether now in effect or hereafter enacted,
and (iii) at all times maintain and preserve all property necessary to the
normal conduct of its business and keep such property in good repair, working
order and condition and from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection
therewith, if any, may be properly conducted at all times (in each case except
as expressly permitted by this Agreement).


 


SECTION 5.02  Insurance.  (a)    Keep its insurable properties insured at all
times by financially sound and reputable insurers in such amounts as shall be
customary for similar businesses and maintain such other reasonable insurance
(including, to the extent consistent with past practices, self-insurance), of
such types, to such extent and against such risks, as is customary with
companies in the same or similar businesses and maintain such other insurance
as may be required by law or any Mortgage.


 


(b)                                 Cause all such property and casualty
insurance policies with respect to the Mortgaged Properties to be endorsed or
otherwise amended to include a “standard” or “New York” lender’s loss
payable endorsement, in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent, which endorsement shall provide
that, from and after the Closing Date, if the insurance carrier shall have
received written notice from the Administrative Agent or the Collateral Agent
of the occurrence of an Event of Default, the insurance carrier shall pay all
proceeds otherwise payable to any Loan Party under such policies directly to
the Collateral Agent; cause all such policies to provide that neither the
Company, the Administrative Agent, the Collateral Agent nor any other party
shall be a coinsurer thereunder and to contain a “Replacement Cost Endorsement,”
without any deduction for depreciation, and such other provisions as the
Administrative Agent or the Collateral Agent may reasonably (in light of a
Default or a material development in respect of the insured Mortgaged Property)
require from time to time to protect their interests; deliver original or
certified copies of all such policies or a certificate of an insurance broker
to the Collateral Agent.


 


(c)                                  If at any time the area in which
the Premises (as defined in the Mortgages) are located is designated a “flood
hazard area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), obtain flood insurance in such
reasonable total amount as the Administrative Agent or the Collateral Agent may
from time to time reasonably require, and otherwise comply with the National
Flood Insurance Program as set forth in the Flood Disaster Protection Act of
1973, as it may be amended from time to time.


 


(d)                                 With respect to each Mortgaged
Property, carry and maintain comprehensive general liability insurance
including the “broad form CGL endorsement” and coverage on a “claims-made” occurrence
basis against claims made for personal injury (including bodily injury, death
and property damage) and umbrella liability insurance against any and all
claims, in each case in amounts and against such risks as are customarily
maintained by companies engaged in the same or similar industry operating in
the same or similar locations naming the Collateral Agent as an additional
insured in respect of such Mortgaged Property, on forms reasonably satisfactory
to the Collateral Agent.


 


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(e)                                  Notify the Administrative Agent
and the Collateral Agent promptly whenever any separate insurance concurrent in
form or contributing in the event of loss with that required to be maintained
under this Section 5.02 is taken out by Holdings, the Company or any of
the Subsidiaries; and promptly deliver to the Administrative Agent and the
Collateral Agent a duplicate original copy of such policy or policies, or an
insurance certificate with respect thereto.


 


(f)                                    In connection with the covenants
set forth in this Section 5.02, it is understood and agreed that:


 


(I)                                    none of the Agents, the Lenders, the
Issuing Bank and their respective agents or employees shall be liable for any
loss or damage insured by the insurance policies required to be maintained
under this Section 5.02, it being understood that (A) the Company and the
other Loan Parties shall look solely to their insurance companies or any other
parties other than the aforesaid parties for the recovery of such loss or damage
and (B) such insurance companies shall have no rights of subrogation against
the Agents, the Lenders, any Issuing Bank or their agents or employees.  If, however, the insurance policies do not
provide waiver of subrogation rights against such parties, as required above,
then each of Holdings, and the Company hereby agree, to the extent permitted by
law, to waive, and to cause each of their Subsidiaries to waive, its right of
recovery, if any, against the Agents, the Lenders, any Issuing Bank and their
agents and employees; and


 


(II)                                the designation of any form, type or
amount of insurance coverage by the Administrative Agent, the Collateral Agent
under this Section 5.02 shall in no event be deemed a representation,
warranty or advice by the Administrative Agent, the Collateral Agent or the
Lenders that such insurance is adequate for the purposes of the business of
Holdings, the Company and their Subsidiaries or the protection of their
properties.


 


SECTION 5.03  Taxes. 
Pay and discharge promptly when due all material Taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
in respect of its property, before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such properties or
any part thereof; provided, however, that such payment and
discharge shall not be required with respect to any such Tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings, and Holdings, the Company
or the affected Subsidiary, as applicable, shall have set aside on its books
reserves in accordance with US GAAP with respect thereto.


 


SECTION 5.04  Financial
Statements, Reports, etc.  Furnish
to the Administrative Agent (which will furnish such information to the
Lenders):


 


(a)                                  within 90 days after the end of
each fiscal year, a consolidated balance sheet and related consolidated
statements of operations, cash flows and owners’ equity showing the financial
position of Holdings and the Subsidiaries as of the close of such fiscal year
and the consolidated results of their operations during such year, with all
consolidated statements audited by independent public accountants of recognized
national standing reasonably acceptable to the Administrative Agent and
accompanied by an opinion of such accountants (which shall not be


 


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qualified in any material respect) to the
effect that such consolidated financial statements fairly present, in all
material respects, the financial position and results of operations of Holdings
and the Subsidiaries on a consolidated basis in accordance with US GAAP (it being
understood that the delivery by Holdings of Annual Reports on Form 10-K of
Holdings and its consolidated Subsidiaries shall satisfy the requirements of
this Section 5.04(a) to the extent such Annual Reports include the
information specified herein);


 


(b)                                 within 45 days after the end of
each of the first three fiscal quarters of each fiscal year, a consolidated
balance sheet and related consolidated statements of operations and cash flows
showing the financial position of Holdings and its Subsidiaries as of the close
of such fiscal quarter and the consolidated results of their operations during
such fiscal quarter and the then-elapsed portion of the fiscal year, all
certified by a Financial Officer of Holdings, on behalf of Holdings, as fairly
presenting, in all material respects, the financial position and results of
operations of Holdings and its Subsidiaries on a consolidated basis in
accordance with US GAAP (subject to normal year-end adjustments and the absence
of footnotes) (it being understood that the delivery by Holdings of Quarterly
Reports on Form 10-Q of Holdings and its consolidated Subsidiaries shall
satisfy the requirements of this Section 5.04(b) to the extent such
Quarterly Reports include the information specified herein);


 


(c)                                  (x) concurrently with any
delivery of financial statements under (a) or (b) above, (A) a certificate of a
Financial Officer of Holdings (i) certifying that no Event of Default or
Default has occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto and (ii) setting forth computations
in reasonable detail satisfactory to the Administrative Agent demonstrating
compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 and (B)
a reasonably detailed break-out of operational performance by business units
for the year or quarter then ended and (y) concurrently with any delivery of
financial statements under (a) above, a certificate of the accounting firm
opining on or certifying such statements stating whether they obtained
knowledge during the course of their examination of such statements of any
Default or Event of Default (which certificate may be limited to accounting
matters and disclaims responsibility for legal interpretations);


 


(d)                                 promptly after the same become
publicly available, copies of all periodic and other publicly available
reports, proxy statements and, to the extent requested by the Administrative
Agent, other materials filed by Holdings, the Company or any of the
Subsidiaries with the SEC, or after an initial public offering, distributed to
its stockholders generally, as applicable;


 


(e)                                  if, as a result of any change in
accounting principles and policies from those as in effect on the Restatement
Effective Date, the consolidated financial statements of Holdings and the
Subsidiaries delivered pursuant to paragraphs (a) or (b) above will differ in
any material respect from the consolidated financial statements that would have
been delivered pursuant to such clauses had no such change in accounting
principles and policies been made, then, together with the first delivery of
financial statements pursuant to paragraph (a) and (b) above following such
change, a schedule prepared by a Financial Officer on behalf of Holdings


 


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reconciling such changes to what the
financial statements would have been without such changes;


 


(f)                                    within 90 days after the
beginning of each fiscal year, an operating and capital expenditure budget, in
form reasonably satisfactory to the Administrative Agent prepared by Holdings
for each of the four fiscal quarters of such fiscal year prepared in reasonable
detail, of Holdings and the Subsidiaries, accompanied by the statement of a
Financial Officer of Holdings to the effect that, to the best of his knowledge,
the budget is a reasonable estimate for the period covered thereby;


 


(g)                                 upon the reasonable request of
the Administrative Agent (which request shall not be made more than once in any
12-month period), deliver updated Perfection Certificates (or, to the extent
such request relates to specified information contained in the Perfection
Certificates, such information) reflecting all changes since the date of the
information most recently received pursuant to this paragraph (g) or Section 5.10(e);


 


(h)                                 promptly, a copy of all reports
submitted to the Board of Directors (or any committee thereof) of any of
Holdings, the Company or any Material Subsidiary in connection with any interim
or special audit that is material made by independent accountants of the books
of Holdings, the Company or any Subsidiary;


 


(i)                                     promptly, from time to time,
such other information regarding the operations, business affairs and financial
condition of Holdings, the Company or any of the Subsidiaries, or compliance
with the terms of any Loan Document, as in each case the Administrative Agent
may reasonably request; and


 


(j)                                     promptly upon request by the
Administrative Agent, copies of:  (i)
each Schedule B (Actuarial Information) to the annual report (Form
5500 Series) filed with the Internal Revenue Service with respect to a Plan;
(ii) the most recent actuarial valuation report for any Plan; (iii) all notices
received from a Multiemployer Plan sponsor or any governmental agency
concerning an ERISA Event; and (iv) such other documents or governmental
reports or filings relating to any Plan or Multiemployer Plan as the
Administrative Agent shall reasonably request.


 


SECTION 5.05  Litigation and Other Notices.  Furnish to the Administrative Agent written
notice of the following promptly after any Responsible Officer of Holdings or
the Company obtains actual knowledge thereof:


 


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


 


(b)                                 the filing or commencement of,
or any written threat or notice of intention of any person to file or commence,
any action, suit or proceeding, whether at law or in equity or by or before any
Governmental Authority or in arbitration, against Holdings, the Company or any
of the Subsidiaries as to which an adverse determination is reasonably probable
and which, if adversely determined, could reasonably be expected to have a
Material Adverse Effect;


 


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(c)                                  any other development specific
to Holdings, the Company or any of the Subsidiaries that is not a matter of
general public knowledge and that has had, or could reasonably be expected to
have, a Material Adverse Effect; and


 


(d)                                 the occurrence of any ERISA
Event, that together with all other ERISA Events that have occurred, could
reasonably be expected to have a Material Adverse Effect.


 


SECTION 5.06  Compliance with Laws.  Comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect; provided
that this Section 5.06 shall not apply to Environmental Laws, which are
the subject of Section 5.09, or to laws related to Taxes, which are the
subject of Section 5.03.


 


SECTION 5.07  Maintaining Records; Access to Properties
and Inspections.  Maintain all
financial records in accordance with US GAAP and permit any persons designated
by the Agents or, upon the occurrence and during the continuance of an Event of
Default, any Lender to visit and inspect the financial records and the properties
of Holdings, the Company or any of the Subsidiaries at reasonable times, upon
reasonable prior notice to Holdings or the Company, and as often as reasonably
requested and to make extracts from and copies of such financial records, and
permit any persons designated by the Agents or, upon the occurrence and during
the continuance of an Event of Default, any Lender upon reasonable prior notice
to Holdings or the Company to discuss the affairs, finances and condition of
Holdings, the Company or any of the Subsidiaries with the officers thereof and
(subject to a senior officer of the respective company or a parent thereof
being present) independent accountants therefor (subject to reasonable
requirements of confidentiality, including requirements imposed by law or by
contract).


 


SECTION 5.08  Use of Proceeds.  Use the proceeds of Loans and request
issuances of Letters of Credit only in compliance with the representation
contained in Section 3.12.


 


SECTION 5.09  Compliance with Environmental Laws.  Comply, and make reasonable efforts to cause
all lessees and other persons occupying its properties to comply, with all
Environmental Laws applicable to its operations and properties; and obtain and
renew all material authorizations and permits required pursuant to Environmental
Law for its operations and properties, in each case in accordance with
Environmental Laws, except, in each case with respect to this Section 5.09,
to the extent the failure to do so could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


SECTION 5.10  Further Assurances; Additional Mortgages.  (a)    Execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, Mortgages and other documents and recordings of Liens in stock
registries), that may be required under any applicable law, or that the
Administrative Agent may reasonably request, to cause the Collateral and
Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan Parties and provide to the Administrative Agent, from time to time upon
reasonable request,


 


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evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.


 


(b)                                 If any asset (including any real
property (other than real property covered by Section 5.10(c) below) or
improvements thereto or any interest therein) that has an individual fair
market value in an amount having a Dollar Equivalent greater than $20.0 million
is acquired by Holdings, the Company or any Domestic Subsidiary Loan Party
after the Restatement Effective Date or owned by an entity at the time it first
becomes a Domestic Subsidiary Loan Party (in each case other than assets
constituting Collateral under a Security Document that become subject to the
Lien of such Security Document upon acquisition thereof), cause such asset to
be subjected to a Lien securing the Obligations and take, and cause the
Domestic Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all at the
expense of the Loan Parties, subject to paragraph (g) below.


 


(c)                                  Grant and cause each of the
Domestic Subsidiary Loan Parties to grant, to the Collateral Agent security
interests and mortgages in such real property of the Company or any such
Domestic Subsidiary Loan Parties as are not covered by the Existing Mortgages,
to the extent acquired after the Restatement Effective Date and having a fair
market value (as determined in good faith by Holdings) at the time of
acquisition in excess of $20.0 million pursuant to documentation substantially
in the form of the Mortgages delivered to the Collateral Agent on the Original
Closing Date (as amended by the amendments thereto effected in connection with
the Agreement to Amend), or in such other form as is reasonably satisfactory to
the Collateral Agent (each, an “Additional Mortgage”) and constituting
valid and enforceable perfected Liens superior to and prior to the rights of
all third persons subject to no other Liens except as are permitted by Section 6.02
or arising by operation of law, at the time of perfection thereof, record or
file, and cause each such Subsidiary to record or file, the Additional Mortgage
or instruments related thereto in such manner and in such places as is required
by law to establish, perfect, preserve and protect the Liens in favor of the
Collateral Agent required to be granted pursuant to the Additional Mortgages
and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and
other charges payable in connection therewith, in each case subject to
paragraph (g) below.  With respect to
each such Additional Mortgage, the Company shall, unless otherwise waived by
the Administrative Agent, deliver to the Collateral Agent contemporaneously
therewith a title insurance policy, a survey, an opinion of counsel and a Real
Property Officers’ Certificate meeting the requirements of subsection (i)
of the definition of the term “Collateral and Guarantee Requirement.”


 


(d)                                 If any additional direct or
indirect Subsidiary of Holdings is formed or acquired after the Restatement
Effective Date (including LITBR Co. if not a party to the US Collateral
Agreement on the Restatement Effective Date) and if such Subsidiary is a Domestic
Subsidiary Loan Party, within 10 Business days after the date such Subsidiary
is formed or acquired, notify the Administrative Agent and the Lenders thereof
and, within 25 Business Days after the date such Subsidiary is formed or
acquired, cause the Collateral and Guarantee Requirement to be satisfied with
respect to such Subsidiary and with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.


 


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(e)                                  In the case of the Company, (i)
furnish to the Collateral Agent prompt written notice of any change (A) in any
Loan Party’s corporate or organization name, (B) in any Loan Party’s identity
or organizational structure or (C) in any Loan Party’s organizational
identification number; provided that the Company shall not effect or
permit any such change unless all filings have been made, or will have been
made within any statutory period, under the Uniform Commercial Code or
otherwise that are required in order for the Collateral Agent to continue at
all times following such change to have a valid, legal and perfected security
interest in all the Collateral for the benefit of the Secured Parties and (ii)
promptly notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.


 


(f)                                    Prior to any Foreign Subsidiary
becoming a Revolving Borrower, cause the Collateral and Guarantee Requirement
to be satisfied with respect to such Foreign Subsidiary.


 


(g)                                 Prior to Bidco incurring any C
Term Loans as the DD Borrower, cause the Collateral and Guarantee Requirement
specified in clause (b)(i) of the definition thereof to be satisfied.


 


(h)                                 The Collateral and Guarantee
Requirement and the other provisions of this Section 5.10 need not be satisfied
with respect to (i) any real property held by the Company or any of its
Subsidiaries as a lessee under a lease, (ii) any Equity Interests acquired
after the Original Closing Date in accordance with this Agreement if, and to
the extent that, and for so long as (A) doing so would violate applicable law
or a contractual obligation binding on such Equity Interests and (B) such law
or obligation existed at the time of the acquisition thereof and was not
created or made binding on such Equity Interests in contemplation of or in
connection with the acquisition of such Subsidiary (provided that the
foregoing clause (B) shall not apply in the case of a joint venture, including
a joint venture that is a Subsidiary) or (iii) any assets acquired after the
Original Closing Date, to the extent that, and for so long as, taking such
actions would violate a contractual obligation binding on such assets that
existed at the time of the acquisition thereof and was not created or made
binding on such assets in contemplation or in connection with the acquisition
of such assets (except in the case of assets acquired with Indebtedness
permitted pursuant to Section 6.01(i) that is secured by a Lien permitted
pursuant to Section 6.02(i)).


 


SECTION 5.11  Fiscal Year; Accounting.  In the case of Holdings and the Company,
cause its fiscal year to end on December 31 or on such other date as is
consented to by the Administrative Agent (which consent shall not be
unreasonably withheld or delayed).


 


SECTION 5.12  Interest Rate Protection Agreements.  In the case of the Company, as promptly as
practicable and in any event within 180 days after the Original Closing Date,
enter into, and for a period of not less than three years after the Original
Closing Date maintain in effect, one or more Swap Agreements, the effect of
which is that at least 50% of Consolidated Net Debt will bear interest at a
fixed or capped rate or the interest cost in respect of which will be fixed or
capped, in each case on terms and conditions reasonably acceptable, taking into
account current market conditions, to the Administrative Agent.


 


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SECTION 5.13  Proceeds of Certain Dispositions.  If, as a result of the receipt of any cash
proceeds by the Company or any Subsidiary in connection with any sale,
transfer, lease or other disposition of any asset, including any Equity
Interest, the Company would be required by the terms of the Senior Subordinated
Note Indenture to make an offer to purchase any Senior Subordinated Notes then,
in the case of the Company or a Subsidiary, prior to the first day on which the
Company would be required to commence such an offer to purchase, (i) prepay
Loans in accordance with Section 2.11 or (ii) acquire assets, Equity
Interests or other securities in a manner that is permitted by Section 6.04
or Section 6.05, in each case in a manner that will eliminate any such
requirement to make such an offer to purchase.


 


SECTION 5.14  Post-Closing Matters.  To the extent not executed and delivered on
the Restatement Effective Date, execute and deliver the documents and complete
the tasks set forth on Schedule 5.14, in each case within the time limits
specified on such schedule.


 


ARTICLE VI


 


Negative Covenants


 


Each of Holdings and the
Company covenants and agrees with each Lender that, so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the
principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under any Loan Document have been paid in full and all Letters
of Credit have been canceled or have expired and all amounts drawn thereunder
have been reimbursed in full, unless the Required Lenders shall otherwise
consent in writing, neither Holdings nor the Company will, or, subject to Section 6.15,
will cause or permit any of the Subsidiaries to:


 


SECTION 6.01  Indebtedness.  Incur, create, assume or permit to exist any
Indebtedness (other than intercompany current liabilities incurred in the
ordinary course of business in connection with the cash management operations
of the Company and its subsidiaries), except:


 


(a)                                  (i) Indebtedness (other than
under letters of credit) existing on the Original Closing Date and set forth on
Schedule 6.01(a) and any Permitted Refinancing Indebtedness
incurred to Refinance such Indebtedness and (ii) Indebtedness under letters of
credit existing on the Original Closing Date and set forth on Schedule 6.01(b),
without giving effect to any extension, renewal or replacement thereof;


 


(b)                                 Indebtedness created hereunder
and under the other Loan Documents;


 


(c)                                  Indebtedness of Holdings and the
Subsidiaries pursuant to Swap Agreements permitted by Section 6.13;


 


(d)                                 Indebtedness owed to (including
obligations in respect of letters of credit or bank guarantees or similar
instruments for the benefit of) any person providing workers’ compensation,
health, disability or other employee benefits or property, casualty or
liability insurance to Holdings or any Subsidiary, pursuant to reimbursement or
indemnification


 


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obligations to such person, provided
that upon the incurrence of Indebtedness with respect to reimbursement
obligations regarding workers’ compensation claims, such obligations are
reimbursed not later than 30 days following such incurrence;


 


(e)                                  Indebtedness of any Borrower to
any Subsidiary or other Borrower and of any Subsidiary to any Borrower or any
other Subsidiary, provided that (i) Indebtedness of any Subsidiary that
is not a Domestic Subsidiary Loan Party to the Loan Parties shall be subject to
Section 6.04(b) and (ii) Indebtedness (the “Subordinated Intercompany
Debt”) of any Specified Loan Party to any Subsidiary (unless such
Indebtedness shall have been pledged in favor of the Collateral Agent by the
payee Subsidiary) shall be subordinated to the Obligations in the manner set
forth in Exhibit F (it being agreed that such subordination provisions will not
restrict the repayment of any such Subordinated Intercompany Debt other than
when an Event of Default exists);


 


(f)                                    Indebtedness in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and completion
guarantees and similar obligations, in each case provided in the ordinary
course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business;


 


(g)                                 Indebtedness arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary course of business
or other cash management services in the ordinary course of business, provided
that (x) such Indebtedness (other than credit or purchase cards) is
extinguished within three Business Days of its incurrence and (y) such
Indebtedness in respect of credit or purchase cards is extinguished within 60
days from its incurrence;


 


(h)                                 (i) Indebtedness of a Subsidiary
acquired after the Original Closing Date or a corporation merged into or
consolidated with the Company or any Subsidiary after the Original Closing Date
and Indebtedness assumed in connection with the acquisition of assets, which
Indebtedness in each case, exists at the time of such acquisition, merger or
consolidation and is not created in contemplation of such event and where such acquisition,
merger or consolidation is permitted by this Agreement and (ii) any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness, provided
that the aggregate principal amount of such Indebtedness at the time of, and
after giving effect to, such acquisition, merger or consolidation, such
assumption or such incurrence, as applicable (together with Indebtedness
outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01
and the Remaining Present Value of outstanding leases permitted under Section 6.03),
would not exceed 4% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such acquisition, merger or
consolidation, such assumption or such incurrence, as applicable, for which
financial statements have been delivered pursuant to Section 5.04;


 


(i)                                     Capital Lease Obligations,
mortgage financings and purchase money Indebtedness incurred by Holdings or any
Subsidiary prior to or within 270 days after the acquisition, lease or improvement
of the respective asset permitted under this Agreement in order to finance such
acquisition or improvement, and any Permitted Refinancing Indebtedness in
respect thereof, in an aggregate principal amount that at the time of, and
after giving effect to, the


 


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incurrence thereof (together with
Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01,
this paragraph (i) and the Remaining Present Value of leases permitted under Section 6.03)
would not exceed 4% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such incurrence for which financial
statements have been delivered pursuant to Section 5.04;


 


(j)                                     Capital Lease Obligations
incurred by the Company or any Subsidiary in respect of any Sale and Lease-Back
Transaction that is permitted under Section 6.03;


 


(k)                                  other Indebtedness of the
Company or any Subsidiary, in an aggregate principal amount at any time
outstanding pursuant to this paragraph (k) not in excess of $200.0 million; provided
that (i) the aggregate amount of Indebtedness of all Subsidiaries that are not
Domestic Subsidiary Loan Parties outstanding pursuant to this paragraph (k)
shall not at any time exceed $100.0 million and (ii) no Indebtedness incurred
pursuant to this paragraph (k) can be in the form of a Guarantee of
Indebtedness incurred under paragraph (x) of this Section 6.01;


 


(l)                                     Indebtedness of the Company
pursuant to the Senior Subordinated Notes in an aggregate amount (including the
Dollar Equivalent of any thereof denominated in Euros) not to exceed
approximately $961 million (after giving effect to the Senior Subordinated
Clawback) and pursuant to any Permitted Senior Subordinated Debt Securities
issued to refinance same;


 


(m)                               Guarantees (i) by Holdings and
the Domestic Subsidiary Loan Parties of the Indebtedness of the Company
described in paragraph (l), so long as such Guarantees are subordinated on
terms substantially the same as those on which the Senior Subordinated Notes
are subordinated to the Obligations as set forth in the Senior Subordinated
Note Indenture, (ii) by Holdings, the Company or any Domestic Subsidiary Loan
Party of any other Indebtedness of the Company or any Domestic Subsidiary Loan
Party expressly permitted to be incurred under this Agreement, (iii) by the
Company or any Domestic Subsidiary Loan Party of Indebtedness otherwise
expressly permitted hereunder of any Subsidiary that is not a Domestic
Subsidiary Loan Party to the extent permitted by Section 6.04(b), (iv) by
any Foreign Subsidiary that is not a Loan Party of Indebtedness of another
Foreign Subsidiary that is not a Loan Party subject, however, to Section 6.04(b);
provided that all Foreign Subsidiaries may guarantee obligations of other
Foreign Subsidiaries under ordinary course cash management obligations, and (v)
by the Company of Indebtedness of Foreign Subsidiaries incurred for working
capital purposes in the ordinary course of business on ordinary business terms
so long as such Indebtedness is permitted to be incurred under Section 6.01(a),
(k) or (t); provided that Guarantees by Holdings or any Domestic
Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness
of a person that is subordinated to other Indebtedness of such Person shall be
expressly subordinated to the Obligations on terms substantially the same as
those on which the Senior Subordinated Notes are subordinated under the Senior
Subordinated Note Indenture to the Obligations;


 


(n)                                 Indebtedness arising from
agreements of Holdings or any Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred or
assumed in connection with the disposition of any business, assets or a
Subsidiary,


 


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other than Guarantees of Indebtedness
incurred by any person acquiring all or any portion of such business, assets or
a Subsidiary for the purpose of financing such acquisition;


 


(o)                                 Indebtedness in connection with
Permitted Receivables Financings; provided that the proceeds thereof are
applied in accordance with Section 2.11(c);


 


(p)                                 letters of credit issued for the
account of a Subsidiary that is not a Loan Party (and the reimbursement
obligations in respect of which are not guaranteed by a Loan Party) in support
of a Captive Insurance Subsidiary’s reinsurance of insurance policies issued
for the benefit of Subsidiaries and other letters of credit or bank guarantees
(other than Letters of Credit issued pursuant to Section 2.05) having an
aggregate face amount not in excess of $15.0 million;


 


(q)                                 Indebtedness supported by a
Letter of Credit, in a principal amount not in excess of the stated amount of
such Letter of Credit;


 


(r)                                    Indebtedness consisting of (x)
the financing of insurance premiums or (y) take-or-pay or similar obligations
contained in supply arrangements, in each case, in the ordinary course of
business;


 


(s)                                  Indebtedness consisting of
Permitted Senior Subordinated Debt Securities (as provided for in clause (y) of
the definition thereof) to the extent the Net Proceeds in respect thereof are
actually utilized to repay Term Loans;


 


(t)                                    all premium (if any), interest
(including post-petition interest), fees, expenses, charges and additional or
contingent interest on obligations described in paragraphs (a) through (s)
above;


 


(u)                                 Indebtedness in respect of the
Luxco CPECs;


 


(v)                                 Indebtedness in respect of the
Initial Intercompany Loans;


 


(w)                               Indebtedness
incurred on behalf of or representing Guarantees of Indebtedness of joint
ventures not in excess of $50.0 million at any time outstanding; and


 


(x)                                   Indebtedness of one or more Subsidiaries
organized under the laws of the People’s Republic of China for their own
general corporate purposes in aggregate principal amount not to exceed $200.0
million at any time outstanding, provided that such Indebtedness (and any
Guaranty thereof) is not Guaranteed by, does not receive any other credit
support from, and is non-recourse to, Holdings and its Subsidiaries other than
any Subsidiary organized under the laws of the People’s Republic of China.


 


Notwithstanding
anything to the contrary herein, Holdings shall not be permitted to incur any
Indebtedness other than Indebtedness under Sections 6.01(b) and (m).


 


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SECTION 6.02  Liens. 
Create, incur, assume or permit to exist any Lien on any property or
assets (including stock or other securities of any person, including any
Subsidiary) at the time owned by it or on any income or revenues or rights in
respect of any thereof, except:


 


(a)                                  Liens on property or assets of
the Company and its Subsidiaries existing on the Original Closing Date and are
set forth on Schedule 6.02(a); provided that such Liens
shall secure only those obligations that they secure on the Original Closing
Date (and extensions, renewals and refinancings of such obligations permitted
by Section 6.01(a)) and shall not subsequently apply to any other property
or assets of Holdings or any of its Subsidiaries;


 


(b)                                 any Lien created under the Loan
Documents or permitted in respect of any Mortgaged Property by the terms of the
applicable Mortgage;


 


(c)                                  any Lien on any property or
asset of the Company or any Subsidiary securing Indebtedness or Permitted
Refinancing Indebtedness permitted by Section 6.01(h), provided
that such Lien (i) does not apply to any other property or assets of the
Company or any of the Subsidiaries not securing such Indebtedness at the date
of the acquisition of such property or asset (other than after acquired
property subjected to a Lien securing Indebtedness and other obligations
incurred prior to such date and which Indebtedness and other obligations are
permitted hereunder that require a pledge of after acquired property, it being
understood that such requirement shall not be permitted to apply to any
property to which such requirement would not have applied but for such
acquisition), (ii) such Lien is not created in contemplation of or in
connection with such acquisition and (iii) in the case of a Lien securing
Permitted Refinancing Indebtedness, any such Lien is permitted, subject to
compliance with clause (e) of the definition of the term “Permitted Refinancing
Indebtedness”;


 


(d)                                 Liens for Taxes, assessments or
other governmental charges or levies not yet delinquent or that are being
contested in compliance with Section 5.03;


 


(e)                                  landlord’s, carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other
like Liens arising in the ordinary course of business and securing obligations
that are not overdue by more than 45 days or that are being contested in good
faith by appropriate proceedings and in respect of which, if applicable,
Holdings or any Subsidiary shall have set aside on its books reserves in
accordance with US GAAP;


 


(f)                                    (i) pledges and deposits made in
the ordinary course of business in compliance with the Federal Employers
Liability Act or any other workers’ compensation, unemployment insurance and
other social security laws or regulations and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements in respect of
such obligations and (ii) pledges and deposits securing liability for
reimbursement or indemnification obligations of (including obligations in
respect of letters of credit or bank guarantees for the benefit of) insurance
carriers providing property, casualty or liability insurance to Holdings or any
Subsidiary;


 


(g)                                 pledges and deposits to secure
the performance of bids, trade contracts (other than for Indebtedness), leases
(other than Capital Lease Obligations), statutory obligations,


 


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surety and appeal bonds, performance and
return of money bonds, bids, leases, government contracts, trade contracts, and
other obligations of a like nature incurred in the ordinary course of business,
including those incurred to secure health, safety and environmental obligations
in the ordinary course of business;


 


(h)                                 zoning restrictions, easements,
trackage rights, leases (other than Capital Lease Obligations), licenses,
special assessments, rights-of-way, restrictions on use of real property and
other similar encumbrances incurred in the ordinary course of business that, in
the aggregate, do not interfere in any material respect with the ordinary
conduct of the business of Holdings or any Subsidiary;


 


(i)                                     purchase money security
interests in equipment or other property or improvements thereto hereafter
acquired (or, in the case of improvements, constructed) by Holdings or any
Subsidiary (including the interests of vendors and lessors under conditional
sale and title retention agreements); provided that (i) such security
interests secure Indebtedness permitted by Section 6.01(i) (including any
Permitted Refinancing Indebtedness in respect thereof), (ii) such security
interests are incurred, and the Indebtedness secured thereby is created, within
270 days after such acquisition (or construction), (iii) the Indebtedness
secured thereby does not exceed 100% of the cost of such equipment or other
property or improvements at the time of such acquisition (or construction),
including transaction costs incurred by Holdings or any Subsidiary in
connection with such acquisition (or construction) and (iv) such security
interests do not apply to any other property or assets of Holdings or any
Subsidiary (other than to accessions to such equipment or other property or
improvements); provided, further, that individual financings of
equipment provided by a single lender may be cross-collateralized to other
financings of equipment provided solely by such lender;


 


(j)                                     Liens arising out of capitalized
lease transactions permitted under Section 6.03, so long as such Liens
attach only to the property sold and being leased in such transaction and any
accessions thereto or proceeds thereof and related property;


 


(k)                                  Liens securing judgments that do
not constitute an Event of Default under Section 7.01(j);


 


(l)                                     other Liens with respect to
property or assets of Holdings or any Subsidiary with an aggregate fair market
value (valued at the time of creation thereof) of not more than $75.0 million
at any time;


 


(m)                               Liens disclosed by the title
insurance policies delivered pursuant to sub-section (h) of the definition
of Collateral and Guarantee Requirement, Section 5.14 or Section 5.10
and any replacement, extension or renewal of any such Lien; provided
that such replacement, extension or renewal Lien shall not cover any property
other than the property that was subject to such Lien prior to such
replacement, extension or renewal; provided, further, that the
Indebtedness and other obligations secured by such replacement, extension or
renewal Lien are permitted by this Agreement;


 


(n)                                 Liens in respect of Permitted
Receivables Financings;


 


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(o)                                 any interest or title of a
lessor under any leases or subleases entered into by Holdings or any Subsidiary
in the ordinary course of business;


 


(p)                                 Liens that are contractual
rights of set-off (i) relating to the establishment of depository relations
with banks not given in connection with the issuance of Indebtedness, (ii)
relating to pooled deposit or sweep accounts of Holdings or any Subsidiary to
permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of Holdings and the Subsidiaries or (iii) relating
to purchase orders and other agreements entered into with customers of Holdings
or any Subsidiary in the ordinary course of business;


 


(q)                                 Liens arising solely by virtue
of any statutory or common law provision relating to banker’s liens, rights of
set-off or similar rights;


 


(r)                                    Liens securing obligations in
respect of trade-related letters of credit permitted under Section 6.01(f)
or (q) and covering the goods (or the documents of title in respect of such
goods) financed by such letters of credit and the proceeds and products
thereof;


 


(s)                                  licenses of intellectual
property granted in a manner consistent with past practice;


 


(t)                                    Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods;


 


(u)                                 Liens on the assets of a Foreign
Subsidiary that do not constitute Collateral and which secure Indebtedness of
such Foreign Subsidiary (or of another Foreign Subsidiary) that is not
otherwise secured by a Lien on the Collateral under the Loan Documents and that
is permitted to be incurred under Section 6.01(a), (k) or (t);


 


(v)                                 Liens upon specific items of
inventory or other goods and proceeds of Holdings or any of the Subsidiaries
securing such person’s obligations in respect of bankers’ acceptances issued or
created for the account of such person to facilitate the purchase, shipment or
storage of such inventory or other goods;


 


(w)                               Liens solely on any cash earnest
money deposits made by Holdings or any of the Subsidiaries in connection with
any letter of intent or purchase agreement permitted hereunder; and


 


(x)                                   Liens on the assets of one or more
Subsidiaries organized under the laws of the People’s Republic of China
securing Indebtedness permitted under Section 6.01(x).


 


Notwithstanding
the foregoing, no Liens shall be permitted to exist, directly or indirectly, on
Pledged Collateral, other than Liens in favor of the Collateral Agent and Liens
permitted by Section 6.02(b), (d), (e) or (q).


 


SECTION 6.03  Sale and Lease-Back Transactions.  Enter into any arrangement, directly or
indirectly, with any person whereby it shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter


 


109





















 


rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property being sold or
transferred (a “Sale and Lease-Back Transaction”), provided that
a Sale and Lease-Back Transaction shall be permitted so long as at the time the
lease in connection therewith is entered into, and after giving effect to the
entering into of such Lease, the Remaining Present Value of such lease
(together with Indebtedness outstanding pursuant to paragraphs (h) and (i) of Section 6.01
and the Remaining Present Value of outstanding leases previously entered into
under this Section 6.03) would not exceed 4% of Consolidated Total Assets
as of the end of the fiscal quarter immediately prior to the date such lease is
entered into for which financial statements have been delivered pursuant to Section 5.04.


 


SECTION 6.04  Investments, Loans and Advances.  Purchase, hold or acquire (including pursuant
to any merger with a person that is not a Wholly Owned Subsidiary immediately
prior to such merger) any Equity Interests, evidences of Indebtedness or other
securities of, make or permit to exist any loans or advances (other than intercompany
current liabilities incurred in the ordinary course of business in connection
with the cash management operations of Holdings and the Subsidiaries) to or
Guarantees of the obligations of, or make or permit to exist any investment in
(each, an “Investment”), any other person, except:


 


(a)                                  Guarantees by the Borrowers or
any Subsidiary of operating leases (other than Capital Lease Obligations) or of
other obligations that do not constitute Indebtedness, in each case entered
into by any Borrower or any Subsidiary in the ordinary course of business;


 


(b)                                 (i) Investments (other than
intercompany loans and Guarantees) by the Company or any Subsidiary of the
Company or any Subsidiary; (ii) intercompany loans from the Company or any
Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by the
Company or any Subsidiary of obligations otherwise expressly permitted
hereunder of the Company or any Subsidiary; provided that (I) the sum of
(A) Investments (valued at the time of the making thereof and without giving
effect to any write-downs or write-offs thereof) after the Original Closing
Date by the Loan Parties pursuant to clause (i) in Subsidiaries (other than
Luxco while it was the Term Borrower under the Original Credit Agreement) that
are not Domestic Subsidiary Loan Parties, plus (B) intercompany loans
after the Original Closing Date to Subsidiaries (other than Luxco while it was
the Term Borrower under the Original Credit Agreement) that are not Domestic
Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of
Indebtedness after the Original Closing Date of Subsidiaries (other than Luxco
while it was the Term Borrower under the Original Credit Agreement) that are
not Domestic Subsidiary Loan Parties pursuant to clause (iii) (other than, in
each case, to the extent such Investments, Loans or Guarantees are made (1) by
any subsidiary of the Company that is not a Loan Party (and excluding Bidco in
all events from the term Loan Party for purposes of this proviso) or (2) by a
Foreign Subsidiary Loan Party in or to another Foreign Subsidiary Loan Party)
shall not exceed an aggregate amount equal to $190.0 million (plus any
return of capital actually received by the respective investors in respect of
investments theretofore made by them pursuant to above clause b(i)), plus
(y) the portion, if any, of the Available Investment Basket Amount on the date
of such election that Holdings elects to apply to this Section 6.04(b))
and (II) no Guarantees (other than by one or more Subsidiaries organized under
the laws of the People’s Republic of China) may be given under this clause (b)
in respect of Indebtedness permitted under Section 6.01(x), it being
agreed that each existing Domestic Loan Party may, if Bidco is


 


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designated as the DD Borrower, transfer (by
contribution or dividend) all of its LTIBRs to a company newly created or
theretofor existing that is (or upon formation will be) a Domestic Subsidiary
and that will own no, or substantially no, assets other than such LTIBRs
transferred to it (such company, “LTIBR Co.”);


 


(c)                                  Permitted Investments and
investments that were Permitted Investments when made;


 


(d)                                 Investments received in
connection with the bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with or judgments against, customers and
suppliers, in each case in the ordinary course of business;


 


(e)                                  Investments of a Subsidiary
acquired after the Original Closing Date or of a corporation merged into the
Company or merged into or consolidated with a Subsidiary in accordance with Section 6.05
after the Original Closing Date to the extent that such Investments were not
made in contemplation of or in connection with such acquisition, merger or
consolidation and were inexistence on the date of such acquisition, merger or
consolidation;


 


(f)                                    Investments arising out of the
receipt by Holdings or any Subsidiary of noncash consideration for the sale of
assets permitted under Section 6.05;


 


(g)                                 (i) loans and advances to
employees of Parent or any of its subsidiaries in the ordinary course of
business not to exceed $10.0 million in the aggregate at any time outstanding
(calculated without regard to write-downs or write-offs thereof) and (ii)
advances of payroll payments and expenses to employees in the ordinary course
of business;


 


(h)                                 accounts receivable arising and
trade credit granted in the ordinary course of business and any securities
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss and any prepayments and other credits to suppliers made in the
ordinary course of business;


 


(i)                                     Swap Agreements permitted pursuant to Section 6.14;


 


(j)                                     Investments existing on the Original
Closing Date and Investments made pursuant to binding commitments in effect on
the Original Closing Date, in each case to the extent set forth on Schedule 6.04;


 


(k)                                  Investments resulting from pledges and
deposits referred to in Sections 6.02(f) and (g);


 


(l)                                     other Investments by Holdings or any
Subsidiary in an aggregate amount (valued at the time of the making thereof,
and without giving effect to any write-downs or write-offs thereof) not to
exceed (i) $125.0 million (plus any returns of capital actually received
by the respective investor in respect of investments theretofore made by it
pursuant to this paragraph (l)), plus (ii) the portion, if any, of the
Available Investment Basket Amount on the date such election is made that the Company
elects to apply to this paragraph (l);


 


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(m)                               Investments constituting Permitted
Business Acquisitions in an aggregate amount, which shall be deemed to include
the principal amount of Indebtedness that is assumed pursuant to Section 6.01
in connection with such Permitted Business Acquisitions, not to exceed $300.0
million (net of any return representing return of capital in respect of any
such investment and valued at the time of the making thereof); provided
that (i) during any Permitted Business Acquisition Step-Up Period, such amount
shall be increased to $500.0 million, plus the portion, if any, of the
Available Investment Basket Amount on the date such election is made that the
Company elects to apply to this paragraph (m); (ii) if assets acquired in a
Permitted Business Acquisition are not acquired by the Company or a Domestic
Subsidiary Loan Party (or a Person that upon such acquisition becomes a
Domestic Subsidiary Loan Party) or if any Person acquired in a Permitted
Business Acquisition is not merged into the Company or a Domestic Subsidiary
Loan Party or does not become upon consummation of such Permitted Business
Acquisition a Domestic Subsidiary Loan Party, the aggregate amount expended in respect
thereof and for all such similar Permitted Business Acquisitions shall not
exceed an amount equal to 50% of the amount of Permitted Business Acquisitions
otherwise permitted under this Section 6.04(m); and (iii) that if the
amount of Investments constituting Permitted Business Acquisitions in
accordance with this Section 6.04(m) and outstanding at the time a
Permitted Business Acquisition Step-Up Period ends exceeds the amount of
Investments constituting Permitted Business Acquisitions that would be
permitted under this Section 6.04(m) immediately after the end of such
Permitted Business Acquisition Step-Up Period, then the amount of such excess
(less the amount by which investments constituting Permitted Business
Acquisitions are reduced from such time until the commencement of the next
Permitted Business Acquisition Step-Up Period, if any) shall be deemed to be
permitted under this Section 6.04(m); provided, further,
that such excess, if any, shall be deemed an election by the Company to utilize
the Available Investment Basket Amount in any amount equal to such excess;


 


(n)                                 additional Investments may be made from
time to time to the extent made with proceeds of Equity Interests (excluding
proceeds received as a result of the exercise of Cure Rights pursuant to Section 7.02)
of Holdings, which proceeds or Investments in turn are contributed (as common
equity) to the Company;


 


(o)                                 intercompany loans between Foreign
Subsidiaries that are not Loan Parties or from a Foreign Subsidiary to any
Domestic Subsidiary of Holdings that is not a Loan Party and Guarantees
permitted by Sections 6.01(m)(i), (ii), (iv) and (v);


 


(p)                                 Investments arising as a result of
Permitted Receivables Financings;


 


(q)                                 purchases or other acquisitions after the
Original Closing Date of shares of CAG that were outstanding on the Original
Closing Date (or issued in exchange for such outstanding shares);


 


(r)                                    HC Investments;


 


(s)                                  Investments (including by the transfer of
assets) in joint ventures existing on the Original Closing Date in an aggregate
amount (with assets transferred valued at the fair


 


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market value
thereof) for all such Investments made after the Original Closing Date not to
exceed $50.0 million;


 


(t)                                    JV Reinvestments;


 


(u)                                 the Designated Acquisitions;


 


(v)                                 the Transaction; and


 


(w)                               intercompany loans by Holdings or any of
its Subsidiaries to Holdings, Parent or Topco in order to permit Holdings
and/or any of the Parent Companies to make payments permitted by Sections 6.07(b)
and (c).


 


SECTION 6.05  Mergers, Consolidations, Sales of Assets
and Acquisitions.  Merge into or
consolidate with any other person, or permit any other person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or any part of its assets
(whether now owned or hereafter acquired), or issue, sell, transfer or
otherwise dispose of any Equity Interests of the Company or any Subsidiary or
preferred equity interests of Holdings, or purchase, lease or otherwise acquire
(in one transaction or a series of transactions) all or any substantial part of
the assets of any other person, except that this Section shall not
prohibit:


 


(a)                                  (i) the purchase and sale of
inventory in the ordinary course of business by Holdings or any Subsidiary,
(ii) the acquisition of any other asset in the ordinary course of business by
Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out
equipment or other property in the ordinary course of business by Holdings or
any Subsidiary, (iv) leases and subleases in the ordinary course of business by
Holdings or any Subsidiary or (v) the sale of Permitted Investments in the
ordinary course of business;


 


(b)                                 if at the time thereof and immediately
after giving effect thereto no Event of Default shall have occurred and be
continuing, (i) the merger of any Subsidiary into a Borrower in a transaction
in which such Borrower is the surviving corporation, (ii) the merger or
consolidation of any Subsidiary into or with any Subsidiary Loan Party in a
transaction in which the surviving or resulting entity is a Subsidiary Loan
Party (which shall be a Domestic Subsidiary Loan Party if any party to such
merger or consolidation shall be a Domestic Subsidiary) and, in the case of
each of clauses (i) and (ii), no person other than a Borrower or Subsidiary
Loan Party receives any consideration, (iii) the merger or consolidation of any
Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary
that is not a Subsidiary Loan Party or (iv) the liquidation or dissolution or
change in form of entity of any Subsidiary (other than a Borrower) if Holdings
determines in good faith that such liquidation or dissolution is in the best
interests of Holdings and is not materially disadvantageous to the Lenders;


 


(c)                                  sales, transfers, leases,
issuances or other dispositions to Holdings or a Subsidiary (upon voluntary
liquidation or otherwise); provided that any sales, transfers, leases,
issuances or other dispositions by a Loan Party to a Subsidiary that is not a
Loan Party shall be


 


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made in compliance with Section 6.07; provided,
further, that the aggregate gross proceeds of any sales, transfers,
leases, issuances or other dispositions by a Loan Party to a Subsidiary that is
not a Domestic Subsidiary Loan Party in reliance upon this paragraph (c) (other
than any thereof made by a Foreign Subsidiary Loan Party to another Foreign
Subsidiary Loan Party) and the aggregate gross proceeds of any or all assets
sold, transferred or leased in reliance upon paragraph (h) below shall not
exceed, in any fiscal year of Holdings, 5% of Consolidated Total Assets as of
the end of the immediately preceding fiscal year;


 


(d)                                 Sale and Lease-Back Transactions
permitted by Section 6.03;


 


(e)                                  Investments permitted by Section 6.04,
Liens permitted by Section 6.02 and dividends and distributions permitted
by Section 6.06;


 


(f)                                    the purchase and sale or other
transfer (including by capital contribution) of Receivables Assets pursuant to
Permitted Receivables Financings;


 


(g)                                 the sale of defaulted
receivables in the ordinary course of business and not as part of an accounts
receivables financing transaction;


 


(h)                                 sales, transfers, leases,
issuances (to the extent of all of the Equity Interests in a Person then owned
by Holdings and its Subsidiaries) or other dispositions not otherwise permitted
by this Section 6.05; provided that the aggregate gross proceeds
(including noncash proceeds) of any or all such sales, transfers, leases,
issuances or dispositions made in reliance upon this paragraph (h) and in
reliance upon the second proviso to paragraph (c) above shall not exceed, in
any fiscal year of Holdings, 5% of Consolidated Total Assets as of the end of
the immediately preceding fiscal year; provided, further, that
the Net Proceeds thereof are applied in accordance with Section 2.11(c);


 


(i)                                     any merger or consolidation in
connection with a Permitted Business Acquisition, provided that
following any such merger or consolidation (i) involving a Borrower, such
Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary,
the surviving or resulting entity shall be a Domestic Subsidiary Loan Party
that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the
surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is
a Wholly Owned Subsidiary;


 


(j)                                     licensing and cross-licensing
arrangements involving any technology or other intellectual property of the
Company or any Subsidiary in the ordinary course of business;


 


(k)                                  sales, leases or other
dispositions of inventory of Holdings and its Subsidiaries determined by the
management of Holdings or the Company to be no longer useful or necessary in
the operation of the business of Holdings or any of the Subsidiaries; provided
that the Net Proceeds thereof are applied in accordance with Section 2.11(c);


 


(l)                                     the sale of the performance
products business of Nutrinova; provided that the Net Proceeds of such
sale are applied in accordance with Section 2.11(c); and


 


(m)                               the CAMI Sale.


 


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Notwithstanding
anything to the contrary contained in Section 6.05 above, (i) no action
shall be permitted which results in a Change of Control under clause (a) of the
definition thereof, (ii) the Company shall at all times own directly (or to the
extent all direct and indirect owners of the Equity Interests of CAC (other
than the Company) are Domestic Subsidiary Loan Parties, indirectly) 100% of the
Equity Interests of CAC, (iii) neither Holdings nor any Subsidiary that owns
Equity Interests in any Borrower or in any other Subsidiary that directly owns
Equity Interests in any Borrower shall sell, dispose of, grant a Lien on or
otherwise transfer such Equity Interests in such Borrower or in such
Subsidiary, as applicable, (iv) each Foreign Subsidiary that is a Revolving
Borrower shall be a Wholly Owned Subsidiary, (v) no sale, transfer, lease,
issuance or other disposition shall be permitted by this Section 6.05
(other than sales, transfers, leases, issuances or other dispositions to Loan
Parties pursuant to paragraph (c) hereof and purchases, sales or transfers
pursuant to paragraph (f) or (to the extent made to Holdings or a Wholly Owned
Subsidiary) (j) hereof) unless such disposition is for fair market value, (vi)
no sale, transfer or other disposition of assets shall be permitted by
paragraph (a), (d) or (l) of this Section 6.05 unless such disposition is
for at least 75% cash consideration and (vii) no sale, transfer or other
disposition of assets in excess of $10.0 million shall be permitted by
paragraph (h) of this Section 6.05 unless such disposition is for at least
75% cash consideration; provided that for purposes of clauses (vi) and
(vii), the amount of any secured Indebtedness or other Indebtedness of a
Subsidiary that is not a Loan Party (as shown on Holdings’ or such Subsidiary’s
most recent balance sheet or in the notes thereto) of Holdings or any
Subsidiary of Holdings that is assumed by the transferee of any such assets
shall be deemed cash.


 


SECTION 6.06  Dividends and Distributions.  Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any of its Equity Interests (other than dividends and distributions on Equity
Interests payable solely by the issuance of additional shares of Equity
Interests of the Person paying such dividends or distributions) or directly or
indirectly redeem, purchase, retire or otherwise acquire for value (or permit
any Subsidiary to purchase or acquire) any shares of any class of its Equity
Interests or set aside any amount for any such purpose; provided, however,
that:


 


(a)                                  any subsidiary of the Company
may declare and pay dividends to, repurchase its Equity Interests from or make
other distributions to the Company or to any Wholly Owned Subsidiary of the
Company (or, in the case of non-Wholly Owned Subsidiaries, to the Company or
any subsidiary that is a direct or indirect parent of such subsidiary and to
each other owner of Equity Interests of such subsidiary on a pro rata basis (or more favorable basis from
the perspective of the Company or such subsidiary) based on their relative
ownership interests);


 


(b)                                 the Company may declare and pay
dividends or make other distributions to Holdings (and Holdings may pay the
amounts so received to Topco and/or 
through Topco to the Parent) (A) in respect of (i) overhead, tax
liabilities, legal, accounting and other professional fees and expenses, (ii)
compensation and incentive payments, (iii) fees and expenses related to the
Transaction, any equity offering of Holdings or any of the Parent Companies or
any investment or acquisition by Holdings and its Subsidiaries permitted
hereunder (whether or not successful) and (iv) other fees and expenses in
connection with the maintenance of its existence


 


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and its ownership of the Company, and (B) in
order to permit Holdings and/or any of the Parent Companies to make payments
permitted by Sections  6.06(f), 6.07(b)
and (c);


 


(c)                                  the Company may declare and pay
dividends or make other distributions to Holdings (and Holdings may declare and
pay the amounts so received as dividends to Parent (through Topco)), the
proceeds of which are used to purchase or redeem Equity Interests of Parent
(including related stock appreciation rights or similar securities) held by
then present or former directors, consultants, officers or employees of Parent
or any of its Subsidiaries or by any Plan upon such person’s death, disability,
retirement or termination of employment or under the terms of any such Plan or
any other agreement under which such shares of stock or related rights were
issued, provided that the aggregate amount of such purchases or
redemptions under this paragraph (c) shall not exceed in any fiscal year $7.5
million plus the amount of net proceeds (x) received by Parent during such
calendar year from sales of Equity Interests of Parent to directors,
consultants, officers or employees of Parent or any of its Subsidiaries in
connection with permitted employee compensation and incentive arrangements,
which, if not used in any year, may be carried forward to any subsequent
calendar year and (y) of any key-man life insurance policies recorded during
such calendar year;


 


(d)                                 noncash repurchases of Equity
Interests deemed to occur upon exercise of stock options if such Equity Interests
represent a portion of the exercise price of such options shall be permitted;


 


(e)                                  payment may be made to the
minority shareholders of CAG of the “guaranteed dividends” (Ausgleichzahlung)
payable pursuant to the Domination Agreement;


 


(f)                                    (i) with respect to each tax
year (or portion thereof) that Parent qualifies as a Flow Through Entity, the
distribution by Holdings (through the Parent Companies) to the holders of the
Equity Interests of Parent of an amount equal to the product of (A) the amount
of aggregate net taxable income allocated by Parent to the direct or indirect
holders of the Equity Interests of Parent for such period and (B) the Presumed
Tax Rate for such period and (ii) with respect to any tax year (or portion
thereof) that Parent does not qualify as a Flow Through Entity, the payment of
dividends or other distributions to any direct or indirect holders of Equity
Interests of Parent in amounts required for such holder to pay federal, state
or local income taxes (as the case may be) imposed directly on such holder to
the extent such income taxes are attributable to the income of Parent and its
Subsidiaries; provided, however, that in each case the amount of such payments
in respect of any tax year does not exceed the amount that Parent and its
Subsidiaries would have been required to pay in respect of federal, state or
local taxes (as the case may be) in respect of such year if Parent and its
Subsidiaries paid such taxes directly as a stand-alone taxpayer (or stand-alone
group);


 


(g)                                 the Company may, at any time
when no Default or Event of Default exists, declare and pay a dividend to the
extent the aggregate dividends declared and paid in a fiscal quarter do not
exceed an amount equal to the Permitted Quarterly Dividend Amount for such fiscal
quarter (and Holdings will pay the amount so received as a dividend to Topco,
Topco will pay the amount it receives to Parent as a dividend and Parent will
pay the amount it receives to its stockholders as a dividend), provided that
the Company may elect to not declare and pay a


 


116





















 


dividend permitted by this clause (g) in any
fiscal quarter in whole or in part but instead to declare and pay the deferred
portion of such permitted dividend during a future fiscal quarter, provided
further that any dividend not declared and paid in any fiscal quarter must be
declared and paid no later than the third succeeding fiscal quarter following
such fiscal quarter and if not so declared and paid by such time then such
deferred dividend may no longer be declared and paid pursuant to this clause
(g); and


 


(h)                                 the Company may make the Company
Dividend (and Holdings will promptly pay the amount received pursuant thereto
as a dividend to Parent (through Topco) and Parent will promptly use the
proceeds of the Company Dividend to pay the Parent Dividend).


 


SECTION 6.07  Transactions with Affiliates.  (a)    Sell or transfer any property or assets to,
or purchase or acquire any property or assets from, or otherwise engage in any
other transaction with, any of its Affiliates or any known direct or indirect
holder of 10% or more of any class of capital stock of Holdings, unless such
transaction is (i) otherwise permitted (or required) under this Agreement
(including in connection with any Permitted Receivables Financing) or (ii) upon
terms no less favorable to Holdings or such Subsidiary, as applicable, than
would be obtained in a comparable arm’s-length transaction with a Person that
is not an Affiliate; provided that this clause (ii) shall not apply to
(A) the payment, directly or indirectly through the Parent Companies, to
Blackstone and/or any other Permitted Investor of monitoring or management or
similar fees referred to in paragraph (c) below or fees payable on the Restatement
Effective Date or (B) the indemnification of directors of Parent and its
subsidiaries in accordance with customary practice.


 


(b)                                 The foregoing paragraph (a)
shall not prohibit, to the extent otherwise permitted under this Agreement,


 


(i)                                     any issuance of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock options and stock ownership plans
approved by the Board of Directors of Holdings,


 


(ii)                                  loans or advances to employees of Parent
or any of its subsidiaries in accordance with Section 6.04(g),


 


(iii)                               transactions among the Borrowers and any Subsidiaries
and transactions among Subsidiaries otherwise permitted by this Agreement,


 


(iv)                              the payment of fees, compensation and
incentive payments and indemnities to directors, officers and employees of
Parent or any of its subsidiaries in the ordinary course of business,


 


(v)                                 transactions pursuant to permitted
agreements in existence on the Original Closing Date and set forth on Schedule 6.07
or any amendment thereto to the extent such amendment is not adverse to the
Lenders in any material respect,


 


(vi)                              any employment agreements entered into by
Holdings or any of the Subsidiaries in the ordinary course of business,


 


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(vii)                           dividends, redemptions and repurchases permitted under
Section 6.06,


 


(viii)                        any purchase by a Parent Company or a Permitted
Investor of Equity Interests of Holdings or any contribution by Holdings to, or
purchase by Holdings of, the equity capital of the Company; provided
that any Equity Interests of the Company purchased by Holdings shall be pledged
to the Collateral Agent on behalf of the Lenders pursuant to the Holdings
Pledge Agreement,


 


(ix)                                payments by Holdings or any of the
Subsidiaries directly or indirectly through Parent Companies to Blackstone made
for any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved by the majority of
the board of directors of Holdings, in good faith,


 


(x)                                   transactions with Subsidiaries for the
purchase or sale of goods, products, parts and services entered into in the ordinary
course of business in a manner consistent with past practice,


 


(xi)                                any transaction in respect of which
Holdings delivers to the Administrative Agent (for delivery to the Lenders) a
letter addressed to the board of directors of Holdings from an accounting,
appraisal or investment banking firm, in each case of nationally recognized
standing that is (A) in the good faith determination of Holdings qualified to
render such letter and (B) reasonably satisfactory to the Administrative Agent,
which letter states that such transaction is on terms that are no less
favorable to Holdings or such Subsidiary, as applicable, than would be obtained
in a comparable arm’s-length transaction with a person that is not an
Affiliate,


 


(xii)                             subject to paragraph (c) below, the payment of all
fees, expenses, bonuses and awards related to the Transaction, including fees
to Blackstone,


 


(xiii)                          transactions pursuant to any Permitted Receivables
Financings, and


 


(xiv)                         transactions with joint ventures for the purchase or
sale of chemicals, equipment and services entered into in the ordinary course
of business and in a manner consistent with past practice.


 


(c)                                  On and after the Restatement
Effective Date, make directly or indirectly through Parent Companies any
payment of or on account of monitoring or management or similar fees payable to
Blackstone and all other Permitted Investors (other than fees payable with
respect to the Transaction or in connection with the termination of Blackstone’s
management agreement) in an aggregate amount not to exceed $10.0 million (it
being understood that the foregoing shall not prohibit the payment of fees
described in Section 6.07(b)(ix)).


 


SECTION 6.08  Business of Holdings and the Subsidiaries.  Notwithstanding any other provisions hereof,
engage at any time in any business or business activity other than:


 


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(x)                                   in the case of the Company and any
Subsidiary, (i) any business or business activity conducted by it on the
Restatement Effective Date and any business or business activities incidental
or related thereto, or any business or activity that is reasonably similar
thereto or a reasonable extension, development or expansion thereof or
ancillary thereto, including the consummation of the Transaction and (ii)
performance of its obligations under and in connection with the Loan Documents
and the Senior Subordinated Note Indenture, or


 


(y)                                 in the case of Holdings, (i) ownership of
the Equity Interests in the Company, together with activities directly related
thereto, (ii) performance of its obligations under and in connection with the
Loan Documents and the Senior Subordinated Note Indenture, (iii) actions
incidental to the consummation of the Transaction, (iv) the Guarantees
permitted pursuant to Section 6.01(m), (v) actions required by law to
maintain its existence, (vi) the holding of cash in amounts reasonably required
to pay for its own costs and expenses, (vii) owing and paying legal, registered
office and auditing fees and (viii) the issuance of common Equity Interests.


 


SECTION 6.09  Limitation on Modifications and
Prepayments.  (a)    Amend
or modify in any manner materially adverse to the Lenders, or grant any waiver
or release under or terminate in any manner (if such granting or termination
shall be materially adverse to the Lenders), the articles or certificate of
incorporation or by-laws or partnership agreement or limited liability company
operating agreement of Holdings, the Company or any of the Subsidiaries.


 


(b)                                 (i) Make (or give any notice in
respect of) any voluntary or optional payment or prepayment on or redemption or
acquisition for value (including, without limitation, by way of depositing with
the trustee with respect thereto money or securities before due for the
purposes of paying when due) of any of the Senior Subordinated Notes or any
Permitted Senior Subordinated Debt Securities (except (x) pursuant to the
Senior Subordinated Clawback and (y) for refinancings thereof with Permitted
Senior Subordinated Debt Securities as permitted by Section 6.01(l)); or


 


(c)                                  Amend or modify, or permit the
amendment or modification of, any provision of the Senior Subordinated Note
Indenture, any other Permitted Senior Subordinated Debt Securities or any
Permitted Receivables Document, or any agreement relating thereto, other than
amendments or modifications that are not in any manner materially adverse to
the Lenders and that do not affect the subordination provisions thereof (if
any) in a manner adverse to the Lenders.


 


(d)                                 Permit any Subsidiary to enter
into any agreement or instrument that by its terms restricts (i) the payment of
dividends or distributions or the making of cash advances by such Subsidiary to
Holdings or any Subsidiary that is a direct or indirect parent of such
Subsidiary or (ii) the granting of Liens by such Subsidiary pursuant to the
Security Documents, in each case other than those arising under any Loan
Document, except, in each case, restrictions existing by reason of:


 


119





















 


(A)                              restrictions imposed by applicable law;


 


(B)                                restrictions contained in any Permitted
Receivables Document with respect to any Special Purpose Subsidiary;


 


(C)                                contractual encumbrances or restrictions
under any agreements related to any permitted renewal, extension or refinancing
of any Indebtedness existing on the Original Closing Date that does not expand
the scope of any such encumbrance or restriction;


 


(D)                               any restriction on a Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Equity Interests or assets of a Subsidiary pending the
closing of such sale or disposition;


 


(E)                                 customary provisions in joint venture
agreements and other similar agreements applicable to joint ventures entered
into in the ordinary course of business;


 


(F)                                 any restrictions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement to the extent that
such restrictions apply only to the property or assets securing such
Indebtedness;


 


(G)                                customary provisions contained in leases
or licenses of intellectual property and other similar agreements entered into
in the ordinary course of business;


 


(H)                               customary provisions restricting
subletting or assignment of any lease governing a leasehold interest;


 


(I)                                    customary provisions restricting
assignment of any agreement entered into in the ordinary course of business;


 


(J)                                   customary restrictions and conditions
contained in any agreement relating to the sale of any asset permitted under Section 6.05
pending the consummation of such sale; or


 


(K)                               any agreement in effect at the time such
subsidiary becomes a Subsidiary, so long as such agreement was not entered into
in contemplation of such person becoming a Subsidiary.


 


SECTION 6.10  Capital Expenditures.  Permit Holdings or the Subsidiaries to make
any Capital Expenditure, except that:


 


(a)                                  During any fiscal year Holdings
and the Subsidiaries may make Capital Expenditures so long as the aggregate
amount thereof does not exceed $375 million for such fiscal year.


 


(b)                                 Notwithstanding anything to the
contrary contained in paragraph (a) above, to the extent that the aggregate
amount of Capital Expenditures made by Holdings and the


 


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Subsidiaries in any fiscal year of Holdings
pursuant to Section 6.10(a) is less than the amount set forth for such
fiscal year, the amount of such difference may be carried forward and used to
make Capital Expenditures in the next two succeeding fiscal years; provided
that in any fiscal year, the amount permitted to be applied to make Capital
Expenditures pursuant to this paragraph (b) shall in no event exceed an amount
equal to 50% of the amount set forth in Section 6.10(a) for such fiscal
year.


 


(c)                                  In addition to the Capital
Expenditures permitted pursuant to the preceding paragraphs (a) and (b),
Holdings and the Subsidiaries may make additional Capital Expenditures at any
time in an amount not to exceed the portion, if any, of the Available
Investment Basket Amount on the date of such Capital Expenditure that the
Company elects to apply to this Section 6.10(c).


 


SECTION 6.11  Interest Coverage Ratio.  Permit the ratio (the “Interest Coverage
Ratio”) on the last day of any fiscal quarter occurring in any period set
forth below, for the four quarter period ended as of such day of (a) EBITDA to
(b) Cash Interest Expense to be less than the ratio set forth below for such
period; provided that to the extent any Asset Disposition or any Asset
Acquisition (or any similar transaction or transactions for which a waiver or a
consent of the Required Lenders pursuant to Section 6.05 has been
obtained) or any incurrence or repayment of Indebtedness (excluding normal
fluctuations of revolving Indebtedness incurred for working capital purposes)
has occurred during the relevant Test Period, the Interest Coverage Ratio shall
be determined for the respective Test Period on a Pro Forma Basis for such
occurrences:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  Restatement
  Effective Date - December 31, 2005

  	
   

  	
  1.70 to 1.00

  	
   

  
	
  January 1,
  2006 - December 31, 2006

  	
   

  	
  1.80 to 1.00

  	
   

  
	
  January 1,
  2007 - December 31, 2007

  	
   

  	
  1.85 to 1.00

  	
   

  
	
  Thereafter

  	
   

  	
  2.00 to 1.00

  	
   

  



 


SECTION 6.12  Total Leverage Ratio.  Permit the Total Leverage Ratio on the last
day of any fiscal quarter occurring in any period set forth below, to be in
excess of the ratio set forth below for such period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  Restatement
  Effective Date - December 31, 2005

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  January 1,
  2006 - December 31, 2006

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  January 1,
  2007 - December 31, 2007

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  Thereafter

  	
   

  	
  4.75 to 1.00

  	
   

  



 


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SECTION 6.13  Swap Agreements.  Enter into any Swap Agreement, other than (a)
Swap Agreements required by Section 5.12 or any Permitted Receivables
Financing, (b) Swap Agreements entered into in the ordinary course of business
to hedge or mitigate risks to which Holdings or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities and (c) Swap
Agreements entered into not for speculative purposes but in order to
effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with
respect to any interest bearing liability or investment of Holdings or any
Subsidiary.


 


SECTION 6.14  No Other “Designated Senior Indebtedness”.  None of Holdings or any Borrower shall
designate, or permit the designation of, any Indebtedness (other than under
this Agreement or the other Loan Documents) as “Designated Senior Indebtedness”
or any other similar term for the purpose of the definition of the same or the
subordination provisions contained in the Senior Subordinated Note Indenture or
any indenture governing any Permitted Senior Subordinated Debt Securities.


 


SECTION 6.15  Limitation on the Lenders’ Control over
German Entities.  (a)   The
provisions of Section 6.05, Section 6.06, Section 6.08 and subsection (a)
of Section 6.09 (the “Relevant Restrictive Covenants”) shall only apply to
a German Entity (as defined below) in the following manner:


 


(i)                                     such
German Entity (or a parent company thereof which is a German Entity) shall give
the Administrative Agent no less than 45 Business Days’ prior written notice
(the “Intention Notice”) of the intention of such German Entity to carry
out any acts or take any steps inconsistent with the Relevant Restrictive
Covenants;


 


(ii)                                  the
Administrative Agent shall be entitled within 15 Business Days of receipt of an
Intention Notice to request that the relevant German Entity supply the
Administrative Agent with any further relevant information in connection with
the proposed action or steps referred to in such notice; and


 


(iii)                               the
Administrative Agent shall, if it decides that the proposed action or steps set
out in such notice would reasonably be expected to be materially prejudicial to
the interests of the Lenders under the Financing Documents, notify the relevant
German Entity of such a decision within 20 Business Days of its receipt of such
a notice or receipt of further relevant information pursuant to clause (a)(ii)
above.


 


(b)                                 If:


 


(i)                                     the
Administrative Agent notifies a German Entity that the proposed action or steps
set out in the relevant Intention Notice pursuant to paragraph (a) above would
reasonably be expected to be materially prejudicial to the interests of the
Lenders under the Loan Documents; and


 


(ii)                                  the
relevant German Entity nevertheless proceeds to carry out such proposed actions
or steps, the Administrative Agent shall be entitled to (and, if so


 


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instructed by the Required
Lenders, shall) exercise all or any of its rights under Section 7.01 (“Events
of Default”).


 


(c)                                  For the purposes of this Section 6.16,
a “German Entity” is any person who is incorporated in Germany or, if it
is not so incorporated, has its seat or principal place of business in Germany.


 


ARTICLE VII


 


Events of Default


 


SECTION 7.01  Events of Default.  In case of the happening of any of the
following events (“Events of Default”):


 


(a)                                  any representation or warranty
made or deemed made by Holdings, the Company or any other Loan Party in any
Loan Document, or any representation, warranty or material statement contained
in any report, certificate, financial statement or other instrument furnished
in connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished by Holdings, the Company or any other Loan Party;


 


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


 


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


 


(d)                                 default shall be made in the due
observance or performance by Holdings, the Company or any of the Subsidiaries
of any covenant, condition or agreement contained in Section 5.01(a) (with
respect to Holdings or a Borrower), 5.05(a), 5.08, 5.10(d) or in Article VI;


 


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


 


(f)                                    (i) any event or condition
occurs that (A) results in any Material Indebtedness becoming due prior to its
scheduled maturity or (B) enables or permits (with all applicable grace periods
having expired) the holder or holders of any Material Indebtedness or any trustee
or agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity or (ii) Holdings, any Borrower or any
of the Subsidiaries shall fail to pay the principal of any Material


 


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Indebtedness at the stated final maturity
thereof; provided that this clause (f) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness if such sale or transfer is
permitted hereunder and under the documents providing for such Indebtedness;


 


(g)                                 there shall have occurred a
Change in Control;


 


(h)                                 an involuntary proceeding shall
be commenced or an involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of Holdings, any Borrower or any of
the Material Subsidiaries, or of a substantial part of the property or assets
of Holdings, any Borrower or any Material Subsidiary, under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, any Borrower or any of the
Material Subsidiaries or for a substantial part of the property or assets of
Holdings, any Borrower or any of the Material Subsidiaries, (iii) the
winding-up or liquidation of Holdings, any Borrower or any Material Subsidiary
(except, in the case of any Material Subsidiary (other than any Borrower), in a
transaction permitted by Section 6.05) or (iv) in the case of a Person
organized under the laws of Germany, any of the actions set out in Section 21
of the German Insolvenzordnung or
to institute insolvency proceedings against any such Person (Eröffnung des Insolvenzverfahrens), and
such proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;


 


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


 


(j)                                     the failure by Holdings, the
Company or any Material Subsidiary to pay one or more final judgments (not
covered by insurance) aggregating in excess of $40.0 million, which judgments
are not discharged or effectively waived or stayed for a period of 30
consecutive days, or any action shall be legally taken by a judgment creditor
to levy upon any material assets or properties of Holdings, the Company or any
Material Subsidiary to enforce any such judgment;


 


(k)                                  (i) a Reportable Event or
Reportable Events shall have occurred with respect to any Plan or a trustee
shall be appointed by a United States district court to administer any Plan,
(ii) the PBGC shall institute proceedings (including giving notice of intent
thereof) to


 


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terminate any Plan or Plans, (iii) Holdings,
the Company or any Subsidiary or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred or will be assessed
Withdrawal Liability to such Multiemployer Plan and such person does not have
reasonable grounds for contesting such Withdrawal Liability or is not contesting
such Withdrawal Liability in a timely and appropriate manner, (iv) Holdings,
the Company or any Subsidiary or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
(v) Holdings, the Company or any Subsidiary or any ERISA Affiliate shall engage
in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975
of the Code) involving any Plan or (vi) any other similar event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or


 


(l)                                     (i) any Loan Document shall for
any reason be asserted in writing by Holdings, any Borrower or any Material
Subsidiary not to be a legal, valid and binding obligation of any party
thereto, (ii) any security interest purported to be created by any Security
Document and to extend to assets that are not immaterial to Holdings, any
Borrower and the Subsidiaries on a consolidated basis shall cease to be, or
shall be asserted in writing by the Company or any other Loan Party not to be,
a valid and perfected security interest (having the priority required by this
Agreement or the relevant Security Document) in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent to
maintain possession of certificates actually delivered to it representing
securities pledged under the Security Documents or to file Uniform Commercial
Code continuation statements and except to the extent that such loss is covered
by a lender’s title insurance policy and the Administrative Agent shall be
reasonably satisfied with the credit of such insurer, (iii) the Guarantees
pursuant to the Security Documents by Holdings, the Company or the Subsidiary
Loan Parties of any of the Obligations shall cease to be in full force and
effect (other than in accordance with the terms thereof), or shall be asserted
in writing by Holdings or the Company or any Subsidiary Loan Party not to be in
effect or not to be legal, valid and binding obligations or (iv) the
Obligations of the Borrowers or the Guarantees thereof by Holdings, the Company
and the Subsidiary Loan Parties pursuant to the Security Documents shall cease
to constitute senior indebtedness under the subordination provisions of the
Senior Subordinated Note Indenture or such subordination provisions shall be
invalidated or otherwise cease, or shall be asserted in writing by Holdings,
the Company or any Material Subsidiary to be invalid or to cease, to be legal,
valid and binding obligations of the parties thereto, enforceable in accordance
with their terms;


 


then, subject to
Sections 7.02 and/or 7.03, and in every such event (other than an event with
respect to a Borrower described in paragraph (h) or (i) above), and at any time
thereafter during the continuance of such event, the Administrative Agent, at
the request of the Required Lenders, shall, by notice to the Borrowers, take
any or all of the following actions, at the same or different times:  (i) terminate forthwith the Commitments, (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and
all other liabilities of the Borrowers accrued hereunder and under any other
Loan Document,


 


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shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrowers,
anything contained herein or in any other Loan Document to the contrary
notwithstanding and (iii) demand cash collateral pursuant to Section 2.05(j);
and in any event with respect to a Borrower described in paragraph (h) or (i)
above, the Commitments shall automatically terminate, the principal of the
Loans then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrowers accrued hereunder and
under any other Loan Document, shall automatically become due and payable and
the Administrative Agent shall be deemed to have made a demand for cash
collateral to the full extent permitted under Section 2.05(j), without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrowers, anything contained herein or in any
other Loan Document to the contrary notwithstanding.


 


SECTION 7.02  Holdings’ Right to Cure.


 


(a)                                  Financial Performance Covenants.  Notwithstanding anything to the contrary
contained in Section 7.01, in the event that Holdings fails to comply with
the requirements of any Financial Performance Covenant, until the expiration of
the 10th day subsequent to the date the certificate calculating such Financial
Performance Covenant is required to be delivered pursuant to Section 5.04(c),
Holdings shall have the right to issue Permitted Cure Securities for cash or
otherwise receive cash contributions to the capital of Holdings, and, in each
case, to contribute any such cash to the capital of the Company (collectively,
the “Cure Right”), and upon the receipt by Company of such cash (the “Cure
Amount”) pursuant to the exercise by Holdings of such Cure Right and
request to the Administrative Agent to effect such recalculation, such
Financial Performance Covenant shall be recalculated giving effect to the
following pro  forma adjustments:


 


(i)                                     EBITDA
shall be increased, solely for the purpose of measuring the Financial
Performance Covenants and not for any other purpose under this Agreement, by an
amount equal to the Cure Amount; and


 


(ii)                                  if,
after giving effect to the foregoing recalculations, Holdings shall then be in
compliance with the requirements of all Financial Performance Covenants,
Holdings shall be deemed to have satisfied the requirements of the Financial
Performance Covenants as of the relevant date of determination with the same
effect as though there had been no failure to comply therewith at such date,
and the applicable breach or default of the Financial Performance Covenants
that had occurred shall be deemed cured for this purposes of the Agreement.


 


(b)                                 Limitation on Exercise of Cure
Right.  Notwithstanding anything herein to the
contrary, (a) in each four-fiscal-quarter period there shall be at least one
fiscal quarter in which the Cure Right is not exercised, (b) in each
eight-fiscal-quarter period, there shall be a period of at least four
consecutive fiscal quarters during which the Cure Right is not exercised, (c) the
Cure Amount shall be no greater than the amount required for purposes of
complying with the Financial Performance Covenants, (d) in each 12 month
period, the maximum aggregate Cure Amount for all exercises shall not exceed
€200 million and (e) no Indebtedness repaid with


 


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the proceeds of Permitted Cure Securities
shall be deemed repaid for purposes of calculating the ratios specified in Section 6.11
or 6.12 for the period during which such Permitted Cure Securities were issued.


 


ARTICLE VIII


 


The Agents


 


SECTION 8.01  Appointment.  (a)    In order to expedite the transactions
contemplated by this Agreement, DBNY is hereby appointed to act as
Administrative Agent (with each reference in this Article to
Administrative Agent to include DBNY in its capacity as Collateral Agent).  Each of the Lenders and each assignee of any
such Lender hereby irrevocably authorizes the Administrative Agent to take such
actions on behalf of such Lender or assignee and to exercise such powers as are
specifically delegated to the Administrative Agent by the terms and provisions
hereof and of the other Loan Documents, together with such actions and powers
as are reasonably incidental thereto. 
The Administrative Agent is hereby expressly authorized by the Lenders
and each Issuing Bank, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders and such Issuing Bank all payments of
principal of and interest on the Loans, all payments in respect of L/C
Disbursements and all other amounts due to the Lenders and such Issuing Bank
hereunder, and promptly to distribute to each Lender or such Issuing Bank its
proper share of each payment so received; (b) to give notice on behalf of each
of the Lenders of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with the
performance of its duties as Administrative Agent hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by any Borrower pursuant to this Agreement as received by
the Administrative Agent.  Without
limiting the generality of the foregoing, the Agents are hereby expressly
authorized to execute any and all documents (including releases) with respect
to the Collateral and the rights of the Secured Parties with respect thereto,
as contemplated by and in accordance with the provisions of this Agreement and
the Security Documents.  In the event
that any party other than the Lenders and the Agents shall participate in all
or any portion of the Collateral pursuant to the Security Documents, all rights
and remedies in respect of such Collateral shall be controlled by the
Administrative Agent.  No other Agent or
Senior Managing Agent shall have any duties or responsibilities under this
Agreement.


 


(b)                                 Neither the Agents nor any of
their respective directors, officers, employees or agents shall be liable as
such for any action taken or omitted by any of them except for its or his own
gross negligence or willful misconduct, or be responsible for any statement,
warranty or representation herein or the contents of any document delivered in
connection herewith, or be required to ascertain or to make any inquiry
concerning the performance or observance by the Borrowers or any other Loan
Party of any of the terms, conditions, covenants or agreements contained in any
Loan Document.  The Agents shall not be
responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other Loan Documents
or other instruments or agreements.  The
Agents shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Lenders
and, except as otherwise specifically provided herein, such instructions and
any action or inaction pursuant thereto shall be binding on all the


 


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Lenders. 
Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons.  Neither the Agents nor any of
their respective directors, officers, employees or agents shall have any
responsibility to any Borrower or any other Loan Party or any other party
hereto on account of the failure, delay in performance or breach by, or as a
result of information provided by, any Lender or Issuing Bank of any of its
obligations hereunder or to any Lender or Issuing Bank on account of the
failure of or delay in performance or breach by any other Lender or Issuing
Bank or any Borrower or any other Loan Party of any of their respective
obligations hereunder or under any other Loan Document or in connection
herewith or therewith. Each Agent may execute any and all duties hereunder by
or through agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.


 


SECTION 8.02  Nature of Duties.  The Lenders hereby acknowledge that no Agent
shall be under any duty to take any discretionary action permitted to be taken
by it pursuant to the provisions of this Agreement unless it shall be requested
in writing to do so by the Required Lenders. 
The Lenders further acknowledge and agree that so long as an Agent shall
make any determination to be made by it hereunder or under any other Loan
Document in good faith, such Agent shall have no liability in respect of such
determination to any person. 
Notwithstanding any provision to the contrary elsewhere in this
Agreement, no Agent shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into the Loan Documents or otherwise exist against
any Agent.  Each Lender recognizes and
agrees that the Global Coordinators and the Joint Lead Arrangers shall have no
duties or responsibilities under this Agreement or any other Loan Document, or
any fiduciary relationship with any Lender, and shall have no functions,
responsibilities, duties, obligations or liabilities for acting as the Global
Coordinator or as the Joint Lead Arrangers hereunder.


 


SECTION 8.03  Resignation by the Agents.  Subject to the appointment and acceptance of
a successor Administrative Agent or Deposit Bank, as the case may be, as
provided below, each of the Administrative Agent and the Deposit Bank may
resign at any time by notifying the Lenders and the Company.  Upon any such resignation, the Required
Lenders shall have the right to appoint a successor with the consent of the
Company (not to be unreasonably withheld or delayed).  If no successor shall have been so appointed
by the Required Lenders and approved by the Company and shall have accepted
such appointment within 45 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders with the consent of the Company (not to be unreasonably
withheld or delayed), appoint a successor Administrative Agent which shall be a
bank with an office in New York, New York and an office in London, England (or
a bank having an Affiliate with such an office) having a combined capital and
surplus having a Dollar Equivalent that is not less than $500.0 million or an
Affiliate of any such bank.  Upon the
acceptance of any appointment as Administrative Agent or Deposit Bank hereunder
by a successor bank, such successor shall succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Administrative Agent
or Deposit Bank, as the case may be,


 


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and the retiring Administrative Agent or Deposit Bank, as the case may
be, shall be discharged from its duties and obligations hereunder.  After the resignation by the Administrative
Agent or by the Deposit Bank hereunder, the provisions of this Article and
Section 9.05 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
Administrative Agent or Deposit Bank, as the case may be.


 


SECTION 8.04  The Administrative Agent in Its Individual
Capacity.  With respect to the Loans
made by it hereunder, the Administrative Agent in its individual capacity and
not as Administrative Agent shall have the same rights and powers as any other
Lender and may exercise the same as though it were not the Administrative
Agent, and the Administrative Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of business with Holdings,
any Borrower or any of the Subsidiaries or other Affiliates thereof as if it
were not the Administrative Agent.


 


SECTION 8.05  Indemnification.  Each Lender agrees (a) to reimburse each
Agent, on demand, in the amount of its pro  rata share (based on
its Commitments hereunder (or if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of its
applicable outstanding Loans or participations in L/C Disbursements, as
applicable)) of any reasonable expenses incurred for the benefit of the Lenders
by such Agent, including counsel fees and compensation of agents and employees
paid for services rendered on behalf of the Lenders, which shall not have been
reimbursed by the Company and (b) to indemnify and hold harmless each Agent and
any of its directors, officers, employees or agents, on demand, in the amount
of such pro  rata share, from and against any and all liabilities,
Taxes, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against it in its capacity as Agent or any
of them in any way relating to or arising out of this Agreement or any other
Loan Document or any action taken or omitted by it or any of them under this
Agreement or any other Loan Document, to the extent the same shall not have
been reimbursed by the Company, provided that no Lender shall be liable
to an Agent for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of such Agent or any
of its directors, officers, employees or agents.


 


SECTION 8.06  Lack of Reliance on Agents.  Each Lender acknowledges that it has,
independently and without reliance upon any Agent and any Lender and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,
independently and without reliance upon any Agent, any other Lender and based
on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.


 


SECTION 8.07  Designation of Affiliates for Loans
Denominated in Euros.  The
Administrative Agent shall be permitted from time to time to designate one of
its Affiliates to perform the duties to be performed by the Administrative
Agent hereunder with respect to Loans,


 


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Borrowings and Letters of Credit denominated in Euros.  The provisions of this Article VIII
shall apply to any such Affiliate, mutatis  mutandis.


 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01  Notices.  (a)    Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:


 


(i)                                     if
to any Loan Party, to it, c/o the Company, 1601 West LBJ Freeway, Dallas, Texas
75234, with a copy to The Blackstone Group, 345 Park Avenue, New York, New York
10154;


 


(ii)                                  if
to the Administrative Agent or the Collateral Agent, to Deutsche Bank AG, New
York Branch, 60 Wall Street, New York, New York 10005, attention: Carin Keegan
(telecopy: (212) 797-5696) (e-mail: carin.keegan@db.com), with a copy to White
& Case LLP, 1155 Avenue of
the Americas, New York, New York 10036, attention:  Sean Geary, Esq. (telecopy: (212) 354-8113);


 


(iii)                               if
to an Issuing Bank, to it at the address or telecopy number set forth
separately in writing; and


 


(iv)                              if
such notice relates to a Revolving Facility Borrowing denominated in Euros, to
the Administrative Agent.


 


(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 II unless
otherwise agreed by the Administrative Agent and the applicable Lender.  Each of the Administrative Agent, the
Collateral Agent and the Company (on behalf of itself and the Foreign
Subsidiary Borrowers) may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided, further, that approval of
such procedures may be limited to particular notices or communications.


 


(c)                                  All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt if
delivered by hand or overnight courier service, sent by telecopy or (to the
extent permitted by paragraph (b) above) electronic means or on the date five
Business Days after dispatch by certified or registered mail if mailed, in each
case delivered, sent or mailed (properly addressed) to such party as provided
in this Section 9.01 or in accordance with the latest unrevoked direction
from such party given in accordance with this Section 9.01.


 


(d)                                 Any party hereto may change its
address or telecopy number for notices and other communications hereunder by
notice to the other parties hereto.


 


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SECTION 9.02  Survival of Agreement.  All covenants, agreements, representations
and warranties made by the Loan Parties herein, in the other Loan Documents and
in the certificates or other instruments prepared or delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the Lenders and each Issuing Bank and
shall survive the making by the Lenders of the Loans, the execution and
delivery of the Loan Documents and the issuance of the Letters of Credit,
regardless of any investigation made by such persons or on their behalf, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or L/C Disbursement or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated.  Without
prejudice to the survival of any other agreements contained herein,
indemnification and reimbursement obligations contained herein (including
pursuant to Sections 2.15, 2.16, 2.17 and 9.05) shall survive the payment in
full of the principal and interest hereunder, the expiration of the Letters of
Credit and the termination of the Commitments or this Agreement.


 


SECTION 9.03  Binding Effect.  This Agreement shall become effective when it
shall have been executed by Holdings, the Company and the Administrative Agent
and when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of Holdings, the
Borrowers, each Issuing Bank, the Administrative Agent, the Deposit Bank and
each Lender and their respective permitted successors and assigns.


 


SECTION 9.04  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 permitted hereby (including any Affiliate of
any Issuing Bank that issues any Letter of Credit), except that (i) other than
pursuant to a merger permitted by Section 6.05(b) or 6.05(i), no Borrower
may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by a Borrower without such consent shall be null and void) and (ii)
no Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. 
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of any Issuing
Bank that issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Agents, each Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b)                                 (i) Subject to the conditions
set forth in paragraph (b)(ii) below, any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment, the Loans and/or Credit-Linked
Deposits at the time owing to it) with the prior written consent (such consent
not to be unreasonably withheld) of:


 


(A)                              the
Company; provided that no consent of the Company shall be required for
an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or,
if an


 


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Event of Default has occurred
and is continuing or until the primary syndication of the Facilities is
completed (as provided in the Fee Letter), any other assignee (provided
that any liability of the Borrowers to an assignee that is an Approved Fund or
Affiliate of the assigning Lender under Section 2.15, 2.16, 2.17 or 2.21
shall be limited to the amount, if any, that would have been payable hereunder
by such Borrower in the absence of such assignment); and


 


(B)                                the
Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment of (i) a Revolving Facility
Commitment to an assignee that is a Lender with a Revolving Facility
Commitment, immediately prior to giving effect to such assignment, or (ii) a
Credit-Linked Commitment or a Term Loan to a Lender, an Affiliate of a Lender
or Approved Fund immediately prior to giving effect to such assignment.


 


(ii)                                  Assignments
shall be subject to the following additional conditions:


 


(A)                              except
in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitment, the amount of the commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than (x) $5.0 million (or the Euro Equivalent in the
case of Revolving Facility Loans denominated in Euros), in the case of
Revolving Facility Commitments and Revolving Facility Loans, (y) $5.0 million
in the case of Credit-Linked Commitments and Credit-Linked Deposits and (z)
$1.0 million (or the Euro Equivalent in the case of Euro Term Loans), in the
case of Term Loans and Delayed Draw Commitments, unless each of the Company and
the Administrative Agent otherwise consent; provided that no such
consent of the Company shall be required if an Event of Default under paragraph
(b), (c), (h) or (i) of Section 7.01 has occurred and is continuing;


 


(B)                                each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement;


 


(C)                                the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500; provided that no such recordation fee shall be due in
connection with an assignment to an existing Lender or Affiliate of a Lender or
an assignment by the Administrative Agent;


 


(D)                               no
assignment of Revolving Facility Loans or Revolving Facility Commitments shall
be permitted to be made to an assignee that cannot make Revolving Facility
Loans in Dollars and Euros; and


 


(E)                                 no assignments of Euro
Term Loans or of a commitment to make Euro Term Loans shall be permitted to be
made to an assignee that cannot hold or make Euro Term Loans.


 


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(iii)                               Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
hereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 9.05).  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.


 


(iv)                              The
Administrative Agent, acting for this purpose as an agent of the Company, shall
maintain at one of its offices a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitment of, and principal amount of the Loans and
L/C Disbursements owing to, each Lender pursuant to the terms hereof from time
to time (the “Register”).  The
entries in the Register shall be conclusive, and the Company, the Agents, each
Issuing Bank and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Company, any Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.


 


(v)                                 Upon
its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the processing and recordation fee referred
to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
acting for itself and, in any situation wherein the consent of the Company is
not required, the Company shall accept such Assignment and Acceptance and record
the information contained therein in the Register.  No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.


 


(c)                                  (i) Any Lender may, without the
consent of the Company, the Administrative Agent, any Issuing Bank or any
Swingline Lender, sell participations to one or more banks or other entities (a
“Loan Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (C) the Borrowers, the Agents, each Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument (oral or written)
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Agreement and the other Loan Documents; provided that (x) such
agreement or instrument may provide that such Lender will


 


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not, without the consent of the Loan
Participant, agree to any amendment, modification or waiver described in Section 9.04(a)(i)
or clauses (i), (ii), (iii), (iv), (v) or (vi) of the first proviso to Section 9.08(b)
that affects such Loan Participant and (y) no other agreement (oral or written)
with respect to such participation may exist between such Lender and such Loan
Participant.  Subject to paragraph
(c)(ii) of this Section, each of the Borrowers agrees that each Loan
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each Loan
Participant also shall be entitled to the benefits of Section 9.06 as
though it were a Lender, provided such Loan Participant agrees to be
subject to Section 2.18(c) as though it were a Lender.


 


(ii)                                  A
Loan Participant shall not be entitled to receive any greater payment under Section 2.15,
2.16 or 2.17 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Loan Participant, unless the
sale of the participation to such Loan Participant is made with the Company’s
prior written consent.  A Loan
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.17 to the extent such Loan
Participant fails to comply with Section 2.17(e) as though it were a
Lender.


 


(d)                                 Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including (i) any pledge
or assignment to secure obligations to a Federal Reserve Bank and (ii) in the
case of any Lender that is an Approved Fund, any pledge or assignment to any
holders of obligations owed, or securities issued, by such Lender including to
any trustee for, or any other representative of, such holders, and this Section shall
not apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


 


SECTION 9.05  Expenses; Indemnity.  (a)    The Company agrees to pay all reasonable
out-of-pocket expenses (including Other Taxes) incurred by the Administrative
Agent in connection with the preparation of this Agreement and the other Loan
Documents or the administration of this Agreement and by the Agents in
connection with the syndication of the Commitments (including expenses incurred
prior to the Restatement Effective Date in connection with due diligence and
the reasonable fees, disbursements and the charges for no more than one counsel
in each jurisdiction where Collateral is located) or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not
the Transactions hereby contemplated shall be consummated) or incurred by the
Agents or any Lender in connection with the enforcement or protection of their
rights in connection with this Agreement and the other Loan Documents, in
connection with the Loans made or the Letters of Credit issued hereunder,
including the reasonable fees, charges and disbursements of White & Case LLP, counsel for the Administration
Agent, and, in connection with any such enforcement or protection, the
reasonable fees, charges and disbursements of any other counsel (including the
reasonable allocated costs of internal counsel if a Lender elects to use
internal counsel in lieu of outside counsel) for the Agents, the Joint Lead
Arrangers, any Issuing Bank or all Lenders (but no more than one such counsel
for all Lenders).


 


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(b)                                 The Company agrees to indemnify
the Agents, the Joint Lead Arrangers, each Issuing Bank, each Lender and each
of their respective directors, trustees, officers, employees and agents (each
such person being called an “Indemnitee”) against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto and
thereto of their respective obligations thereunder or the consummation of the
Transaction and the other transactions contemplated hereby, (ii) the use of the
proceeds of the Loans or the use of any Letter of Credit or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses result primarily from
the gross negligence or willful misconduct of such Indemnitee (treating, for
this purpose only, any Agent, any Joint Lead Arranger, any Issuing Bank, any
Lender and any of their respective Related Parties as a single
Indemnitee).  Subject to and without
limiting the generality of the foregoing sentence, the Company agrees to indemnify
each Indemnitee against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including reasonable
counsel or consultant fees, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a
result of (A) any Environmental Claim related in any way to Holdings, the
Company or any of their Subsidiaries, or (B) any actual or alleged presence,
Release or threatened Release of Hazardous Materials at, under, on or from any Mortgaged
Property or any property owned, leased or operated by any predecessor of
Holdings, the Company or any of their Subsidiaries, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
any of its Related Parties.  The
provisions of this Section 9.05 shall remain operative and in full force
and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document, or any investigation made by or on
behalf of any Agent, any Issuing Bank or any Lender.  All amounts due under this Section 9.05
shall be payable on written demand therefor accompanied by reasonable
documentation with respect to any reimbursement, indemnification or other
amount requested.


 


(c)                                  Unless an Event of Default shall
have occurred and be continuing, the Company shall be entitled to assume the
defense of any action for which indemnification is sought hereunder with
counsel of its choice at its expense (in which case the Company shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by an Indemnitee except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to each such
Indemnitee.  Notwithstanding the Company’s
election to assume the defense of such action, each Indemnitee shall have the
right to employ separate counsel and to participate in the defense of such
action, and the Company shall bear the reasonable fees, costs and expenses of
such separate counsel, if (i) the use of counsel chosen by the Company to
represent such Indemnitee would present such counsel with a conflict of
interest; (ii) the actual


 


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or potential defendants in, or targets of,
any such action include both the Company and such Indemnitee and such
Indemnitee shall have reasonably concluded that there may be legal defenses available
to it that are different from or additional to those available to the Company
(in which case the Company shall not have the right to assume the defense or
such action on behalf of such Indemnitee); (iii) the Company shall not have
employed counsel reasonably satisfactory to such Indemnitee to represent it
within a reasonable time after notice of the institution of such action; or
(iv) the Company shall authorize in writing such Indemnitee to employ separate
counsel at the Company’s expense.  The
Company will not be liable under this Agreement for any amount paid by an
Indemnitee to settle any claims or actions if the settlement is entered into
without the Company’s consent, which consent may not be withheld or delayed
unless such settlement is unreasonable in light of such claims or actions
against, and defenses available to, such Indemnitee.


 


(d)                                 Except as expressly provided in Section 9.05(a)
with respect to Other Taxes, which shall not be duplicative with any amounts
paid pursuant to Section 2.17, this Section 9.05 shall not apply to
Taxes.


 


SECTION 9.06  Right of Set-off.  If an Event of Default shall have occurred
and be continuing, each Lender and each Issuing Bank is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender or such Issuing Bank to or for the credit or the account of
Holdings, the Company or any Subsidiary against any of and all the obligations
of Holdings or the Company now or hereafter existing under this Agreement or
any other Loan Document held by such Lender or such Issuing Bank, irrespective
of whether or not such Lender or such Issuing Bank shall have made any demand
under this Agreement or such other Loan Document and although the obligations
may be unmatured.  The rights of each
Lender and each Issuing Bank under this Section 9.06 are in addition to
other rights and remedies (including other rights of set-off) that such Lender
or such Issuing Bank may have.


 


SECTION 9.07  Applicable Law.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.


 


SECTION 9.08  Waivers; Amendment.  (a)    No failure or delay of the Administrative
Agent, any Issuing Bank or any Lender in exercising any right or power
hereunder or under any Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.  The rights and remedies
of the Administrative Agent, each Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. 
No waiver of any provision of this Agreement or any other Loan Document
or consent to any departure by Holdings, any Borrower or any other Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in


 


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the specific instance and for the purpose for which given.  No notice or demand on Holdings, any Borrower
or any other Loan Party in any case shall entitle such person to any other or
further notice or demand in similar or other circumstances.


 


(b)                                 Neither this Agreement nor any
other Loan Document nor any provision hereof or thereof may be waived, amended
or modified except (x) in the case of this Agreement, pursuant to an agreement
or agreements in writing entered into by the Company and the Required Lenders
and (y) in the case of any other Loan Document, pursuant to an agreement or
agreements as provided for therein; provided, however, that no
such agreement shall


 


(i)                                     decrease
or forgive the principal amount of, or extend the final maturity of, or
decrease the rate of interest on, any Loan or any L/C Disbursement, without the
prior written consent of each Lender directly affected thereby; provided
that any amendment to the financial covenant definitions in this Agreement
shall not constitute a reduction in the rate of interest for purposes of this
clause (i),


 


(ii)                                  increase
or extend the Commitment of any Lender or decrease the Commitment Fees or L/C
Participation Fees or other fees of any Lender without the prior written
consent of such Lender (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a
mandatory reduction in the aggregate Commitments shall not constitute an
increase of the Commitments of any Lender),


 


(iii)                               extend
or waive any Installment Date or extend any date on which payment of interest
on any Loan or any L/C Disbursement is due, without the prior written consent
of each Lender adversely affected thereby,


 


(iv)                              amend
or modify the provisions of Section 2.18(c) in a manner that would by its
terms alter the pro  rata sharing of payments required thereby,
without the prior written consent of each Lender adversely affected thereby,


 


(v)                                 amend
or modify the provisions of this Section or the definition of the terms “Required
Lenders,” “Majority Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
prior written consent of each Lender adversely affected thereby (it being
understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
Loans and Commitments are included on the Restatement Effective Date),


 


(vi)                              release
all or substantially all the Collateral or release Holdings, the Company, CAC
or all or substantially all of the other Subsidiary Loan Parties from its
Guarantee under the Holdings Agreement or the U.S. Collateral Agreement, as
applicable, unless, in the case of a Subsidiary Loan Party, all or substantially
all the Equity Interests of such Subsidiary Loan Party is sold or otherwise
disposed of in a


 


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transaction permitted by this
Agreement, without the prior written consent of each Lender adversely affected
thereby, or


 


(vii)                           effect
any waiver, amendment or modification that by its terms directly adversely
affects the rights in respect of payments or collateral of Lenders
participating in any Facility differently from those of Lenders participating
in other Facilities, without the consent of the Majority Lenders participating
in the adversely affected Facility (it being agreed that the Required Lenders
may waive, in whole or in part, any prepayment or Commitment reduction required
by Section 2.11 so long as the application of any prepayment or Commitment
reduction still required to be made is not changed);


 


provided, further, that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Deposit Bank or an Issuing Bank hereunder without the
prior written consent of the Administrative Agent, the Deposit Bank or such
Issuing Bank acting as such at the effective date of such agreement, as
applicable.  Each Lender shall be bound
by any waiver, amendment or modification authorized by this Section 9.08
and any consent by any Lender pursuant to this Section 9.08 shall bind any
assignee of such Lender.


 


(c)                                  Without the consent of either
Joint Lead Arranger, the Deposit Bank or any Lender, the Loan Parties and the
Administrative Agent and/or Collateral Agent may (in their respective sole
discretion, or shall, to the extent required by any Loan Document) enter into
any amendment, modification or waiver of any Loan Document, or enter into any
new agreement or instrument, to effect the granting, perfection, protection,
expansion or enhancement of any security interest in any Collateral or
additional property to become Collateral for the benefit of the Secured
Parties, or as required by local law to give effect to, or protect any security
interest for the benefit of the Secured Parties, in any property or so that the
security interests therein comply with applicable law.


 


(d)                                 Notwithstanding the foregoing,
this Agreement may be amended (or amended and restated) with the written
consent of the Required Lenders, the Administrative Agent, Holdings and the
Borrowers (a) to add one or more additional credit facilities to this Agreement
and to permit the extensions of credit from time to time outstanding thereunder
and the accrued interest and fees in respect thereof to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and
the Revolving Facility Loans and the accrued interest and fees in respect
thereof and (b) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders.


 


(e)                                  In addition, notwithstanding the
foregoing, this Agreement may be amended with the written consent of the
Administrative Agent, Holdings, the Borrowers and the Lenders providing the
relevant Replacement Term Loans (as defined below) to permit the refinancing of
all outstanding Term Loans and unused Delayed Draw Commitments (“Refinanced
Term Loans”) with a replacement “B” term loan tranche hereunder which shall
be Loans hereunder (“Replacement Term Loans”); provided that (a)
the aggregate principal amount of such Replacement Term Loans shall not exceed
the aggregate principal amount of such Refinanced Term Loans, (b) the
Applicable Margin for such Replacement Term Loans shall not be higher than the
Applicable Margin for such Refinanced Term Loans, (c) the weighted average


 


138





















 


life to maturity of such Replacement Term
Loans shall not be shorter than the weighted average life to maturity of such
Refinanced Term Loans at the time of such refinancing and (d) all other terms
applicable to such Replacement Term Loans shall be substantially identical to,
or less favorable to the Lenders providing such Replacement Term Loans than,
those applicable to such Refinanced Term Loans, except to the extent necessary
to provide for covenants and other terms applicable to any period after the
latest final maturity of the Term Loans in effect immediately prior to such
refinancing.


 


SECTION 9.09  Interest Rate Limitation.  Notwithstanding anything herein to the
contrary, if at any time the applicable interest rate, together with all fees
and charges that are treated as interest under applicable law (collectively,
the “Charges”), as provided for herein or in any other document executed
in connection herewith, or otherwise contracted for, charged, received, taken
or reserved by any Lender or any Issuing Bank, shall exceed the maximum lawful
rate (the “Maximum Rate”) that may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate
of interest payable hereunder, together with all Charges payable to such Lender
or such Issuing Bank, shall be limited to the Maximum Rate, provided
that such excess amount shall be paid to such Lender or such Issuing Bank on
subsequent payment dates to the extent not exceeding the legal limitation.


 


SECTION 9.10  Entire Agreement.  This Agreement, the other Loan Documents and
the agreements regarding certain Fees referred to herein constitute the entire
contract between the parties relative to the subject matter hereof.  Any previous agreement among or
representations from the parties or their Affiliates with respect to the
subject matter hereof is superseded by this Agreement and the other Loan
Documents.  Notwithstanding the
foregoing, the Fee Letter shall survive the execution and delivery of this
Agreement and remain in full force and effect. 
Nothing in this Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other than the parties hereto and
thereto any rights, remedies, obligations or liabilities under or by reason of
this Agreement or the other Loan Documents.


 


SECTION 9.11  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS.  EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.


 


SECTION 9.12  Severability.  In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions


 


139





















 


contained herein and therein shall not in any way be affected or
impaired thereby.  The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


 


SECTION 9.13  Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute but one contract, and shall become effective
as provided in Section 9.03. Delivery of an executed counterpart to this
Agreement by facsimile transmission shall be as effective as delivery of a
manually signed original.


 


SECTION 9.14  Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.


 


SECTION 9.15  Jurisdiction; Consent to Service of
Process.  (a)    Each
of Holdings and each Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New
York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this Agreement
shall affect any right that any Lender or any Issuing Bank may otherwise have
to bring any action or proceeding relating to this Agreement or the other Loan
Documents against Holdings, any Borrower or any Loan Party or their properties
in the courts of any jurisdiction.


 


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


 


(c)                                  Each Loan Party hereto
irrevocably and unconditionally appoints The Blackstone Group with an office on
the date hereof at 345 Park Avenue, New York, New York 10154 and its successors
hereunder (the “Process Agent”), as its agent to receive on behalf of
each such Loan Party and its property all writs, claims, process, and summonses
in any action or proceeding brought against it in the State of New York.  Such service may be made by mailing or
delivering a copy of such process to the respective Loan Party in care of the
Process Agent at the address specified above for the Process Agent, and such Loan
Party irrevocably authorizes


 


140





















 


and directs the Process Agent to accept such
service on its behalf.  Failure by the
Process Agent to give notice to the respective Loan Party, or failure of the
respective Loan Party, to receive notice of such service of process shall not
impair or affect the validity of such service on the Process Agent or any such
Loan Party, or of any judgment based thereon. 
Each Loan Party hereto covenants and agrees that it shall take any and
all reasonable action, including the execution and filing of any and all documents,
that may be necessary to continue the designation of the Process Agent above in
full force and effect, and to cause the Process Agent to act as such.  Each Loan Party hereto further covenants and
agrees to maintain at all times an agent with offices in New York City to act
as its Process Agent.  Nothing herein
shall in any way be deemed to limit the ability to serve any such writs,
process or summonses in any other manner permitted by applicable law.


 


SECTION 9.16  Confidentiality.  (a)  Each
of the Lenders, the Deposit Bank, each Issuing Bank and the Administrative
Agent agrees that it shall maintain in confidence any information relating to
Holdings, the Company and the other Loan Parties furnished to it by or on
behalf of Holdings, the Company or the other Loan Parties (other than
information that (a) has become generally available to the public other than as
a result of a disclosure by such party, (b) has been independently developed by
such Lender, such Issuing Bank, the Deposit Bank or the Administrative Agent
without violating this Section 9.16 or (c) was available to such Lender,
such Issuing Bank, the Deposit Bank or the Administrative Agent from a third
party having, to such person’s knowledge, no obligations of confidentiality to
Holdings, the Company or any other Loan Party) and shall not reveal the same
other than to its directors, trustees, officers, employees and advisors with a
need to know or to any person that approves or administers the Loans on behalf
of such Lender (so long as each such person shall have been instructed to keep
the same confidential in accordance with this Section 9.16), except:  (A) to the extent necessary to comply with
law or any legal process or the requirements of any Governmental Authority, the
National Association of Insurance Commissioners or of any securities exchange
on which securities of the disclosing party or any Affiliate of the disclosing
party are listed or traded, (B) as part of normal reporting or review
procedures to Governmental Authorities or the National Association of Insurance
Commissioners, (C) to its parent companies, Affiliates or auditors (so long as
each such person shall have been instructed to keep the same confidential in
accordance with this Section 9.16), (D) in order to enforce its rights
under any Loan Document in a legal proceeding, (E) to any prospective assignee
of, or prospective Participant in, any of its rights under this Agreement (so
long as such person shall have been instructed to keep the same confidential in
accordance with this Section 9.16) and (F) to any direct or indirect
contractual counterparty in Swap Agreements or such contractual counterparty’s
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provisions
of this Section).


 


(b)                                 Neither the Administrative
Agent, the Deposit Bank, any Lender, any of their respective affiliates nor any
Loan Party provide accounting, tax or legal advice.  Notwithstanding anything provided herein, and
any express or implied claims of exclusivity or proprietary rights, each party
hereto hereby agrees and acknowledges that each such party (and each of their
employees, representatives or other agents) are authorized to disclose to any
and all Persons, beginning immediately upon commencement of their discussions
and without limitation of any kind, the tax treatment and tax structure of the
Transaction, and all materials of any kind


 


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(including opinions or other tax analyses)
that are provided by any such party to any other party relating to such tax
treatment and tax structure, except to the extent that such disclosure is
subject to restrictions reasonably necessary to comply with securities laws.  In this regard, each party hereto
acknowledges and agrees that disclosure of the tax treatment and tax structure
of the Transaction has not been and is not limited in any manner by an express
or implied understanding or agreement (whether oral or written, and whether or
not such understanding or agreement is legally binding), except to the extent
that such disclosure is subject to restrictions reasonably necessary to comply
with securities laws.  For purposes of
this authorization, “tax treatment” means the purported or claimed U.S. federal
income tax treatment of the Transaction, and “tax structure” means any fact
that may be relevant to understanding the purported or claimed U.S. federal
income tax treatment of the Transaction. 
This paragraph is intended to reflect the understanding of the parties
hereto that the Transaction has not been offered under “conditions of
confidentiality” as that phrase is used in Treasury Regulation §§ 1.6011-4(b)(3)(i)
and 30 1.6111-2(c)(1), and shall be interpreted in a manner consistent
therewith.


 


SECTION 9.17  Conversion of Currencies.  (a)  If,
for the purpose of obtaining judgment in any court, it is necessary to convert
a sum owing hereunder in one currency into another currency, each party hereto
(including any Foreign Subsidiary Borrower) agrees, to the fullest extent that
it may effectively do so, that the rate of exchange used shall be that at which
in accordance with normal banking procedures in the relevant jurisdiction the
first currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.


 


(b)                                 The obligations of each Borrower
in respect of any sum due to any party hereto or any holder of the obligations
owing hereunder (the “Applicable Creditor”) shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than the currency
in which such sum is stated to be due hereunder (the “Agreement Currency”),
be discharged only to the extent that, on the Business Day following receipt by
the Applicable Creditor of any sum adjudged to be so due in the Judgment
Currency, the Applicable Creditor may in accordance with normal banking
procedures in the relevant jurisdiction purchase the Agreement Currency with
the Judgment Currency; if the amount of the Agreement Currency so purchased is
less than the sum originally due to the Applicable Creditor in the Agreement
Currency, such Borrower agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Applicable Creditor against such loss.  The obligations of the Borrowers contained in
this Section 9.17 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.


 


SECTION 9.18  Release of Liens and Guarantees.  In the event that any Loan Party conveys,
sells, leases, assigns, transfers or otherwise disposes of all or any portion
of any of its assets (including the Equity Interests of any Subsidiary Loan
Party (other than a Borrower)) to a person that is not (and is not required to
become) a Loan Party in a transaction not prohibited by Section 6.05, the
Administrative Agent and the Collateral Agent shall promptly (and the Lenders
hereby authorize the Administrative Agent and the Collateral Agent to) take
such action and execute any such documents as may be reasonably requested by
Holdings or the Company and at the Company’s expense to release any Liens
created by any Loan Document in respect of such assets or Equity Interests,
and, in the case of a disposition of the Equity Interests


 


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of any Subsidiary Loan Party that is not a Borrower in a transaction
permitted by Section 6.05 and as a result of which such Subsidiary Loan
Party would cease to be a Subsidiary, terminate such Subsidiary Loan Party’s
obligations under its Guarantee.  The
Administrative Agent and the Collateral Agent agree to take such actions as are
reasonably requested by Holdings or the Company and at the Company’s expense to
terminate the Liens and security interests created by the Loan Documents when
all the Obligations are paid in full and all Letters of Credit and Commitments
are terminated.  Any representation,
warranty or covenant contained in any Loan Document relating to any such Equity
Interests, asset or subsidiary of Holdings shall no longer be deemed to be made
once such Equity Interests or asset is so conveyed, sold, leased, assigned,
transferred or disposed of.


 


SECTION 9.19  Parallel Debt.  (a)  Each
of the parties hereto agrees, and each Foreign Borrower acknowledges by way of
an abstract acknowledgement of debt, that each and every obligation of each
Foreign Borrower (and any of its successors pursuant to this Agreement) under
this Agreement and the other Loan Documents shall also be owing in full to the
Collateral Agent (and each of its successors under this Agreement), and that
accordingly the Collateral Agent will have its own independent right to demand
performance by each such Foreign Borrower of those obligations.  The Collateral Agent agrees with each Foreign
Borrower that in case of any discharge of any such obligation owing to the
Collateral Agent or any Lender, it will, to the same extent, not make a claim
against the relevant Foreign Borrower under the aforesaid acknowledgement at
any time, provided that any such claims can be made against any such Foreign
Borrower if such discharge is made by virtue of any set off, counterclaim or
similar defense invoked by any such Foreign Borrower vis-à-vis the Collateral
Agent.


 


(b)                                 Without limiting or affecting
the Collateral Agent’s rights against any Foreign Borrower (whether under this
paragraph or under any other provision of the Loan Documents), the Collateral
Agent agrees with each other Lender that, except as set out in the next
sentence, it will not exercise its rights under the Acknowledgement except with
the consent of the relevant Lender. 
However, for the avoidance of doubt, nothing in the previous sentence
shall in any way limit the Collateral Agent’s right to act in the protection or
preservation of rights under or to enforce any Loan Document as contemplated by
this Agreement and/or the relevant Loan Document (or to do any act reasonably
incidental to the foregoing).


 


SECTION 9.20  Confirmation by the Administrative Agent
on Absence of back-to-back Financing. For the purposes of providing
evidence to the German tax authorities of the absence of any back to back
financing in connection with the decree issued by the German Federal Ministry
of Finance (Bundesfinanzministerium)
on 15 July 2004 (IV A2-S27 42a-20/40) in relation to Section 8a
of the Corporation Tax Act (KStG),
the Administrative Agent agrees, if Bidco is the DD Borrower, to deliver to
Bidco no later than fifteen (15) Business Days after receiving a request
to do so from Bidco a letter of confirmation stating that:


 


(i)                                     its
willingness to enter into this Agreement to make C Term Loans to Bidco as the
DD Borrower has not been based on it having received, and is not conditional on
its receiving, any back-to-back deposits from Bidco and/or any of its
subsidiaries or any of Bidco’s direct or indirect shareholders to fund its
participation in such C Term Loans;


 


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(ii)                                  each
Lender (other than Deutsche Bank AG, New York Branch) that holds C Term Loans
made to Bidco has executed an assignment by which it acquired such Loans (or
the Delayed Draw Commitment to make same) that stated that its willingness to
enter into this Agreement to make C Term Loans to Bidco as the DD Borrower has
not been based on it having received, and is not conditional on its receiving,
any back-to-back deposits from Bidco and/or any of its subsidiaries or any of
Bidco’s direct or indirect shareholders to fund its participation in such C
Term Loans; and


 


(iii)                               the
Loan Documents provide for no security over any LTIBRs for the purposes of
securing any of the C Term Loans incurred by Bidco hereunder.


 


ARTICLE X


 


Collection Allocation Mechanism


 


SECTION 10.01  Implementation of CAM.  (a)  On
the CAM Exchange Date, (i) the Commitments shall automatically and without
further act be terminated as provided in Section 7.01, (ii) each Revolving
Facility Lender shall immediately be deemed to have acquired (and shall
promptly make payment therefor to the Administrative Agent in accordance with Section 2.04(c))
participations in the Swingline Euro Loans (other than any Swingline Euro Loan
in respect of which Revolving Facility Lenders have funded their purchase of
participations pursuant to Section 2.04(c)) in an amount equal to such Lender’s
ratable share (based on the respective Revolving Facility Commitments of the
Revolving Facility Lenders immediately prior to the CAM Exchange Date) of each
Swingline Euro Loan outstanding on such date, (iii) each Revolving Facility
Lender shall immediately be deemed to have acquired (and shall promptly make
payment therefor to the Administrative Agent in accordance with Section 2.04(c))
participations in the Swingline Dollar Loans (other than any Swingline Dollar
Loan in respect of which the Revolving Facility Lenders have funded their
purchase of participations pursuant to Section 2.04(c)) in an amount equal
to such Lender’s Revolving Facility Percentage of each Swingline Dollar Loan
outstanding on such date, (iv) simultaneously with the automatic conversions
pursuant to clause (v) below, the Lenders shall automatically and without
further act (and without regard to the provisions of Section 9.04) be
deemed to have exchanged interests in the Loans (other than the Swingline
Loans), Swingline Loans and undrawn Letters of Credit, such that in lieu of the
interest of each Lender in each Loan and Letter of Credit in which it shall
participate as of such date (including such Lender’s interest in the
Obligations of each Loan Party in respect of each such Loan and undrawn Letter
of Credit), such Lender shall hold an interest in every one of the Loans (other
than the Swingline Loans) and a participation in every one of the Swingline
Loans and undrawn Letters of Credit (including the Obligations of each Loan Party
in respect of each such Loan and each Reserve Account established pursuant to Section 10.02
below), whether or not such Lender shall previously have participated therein,
equal to such Lender’s CAM Percentage thereof and (v) simultaneously with the
deemed exchange of interests pursuant to clause (iv) above, the interests in
the Loans to be received in such deemed exchange shall, automatically and with
no further action required, be converted into the Dollar Equivalent, determined
using the Exchange Rate calculated as of such date, of such


 


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amount and on and after such date all amounts accruing and owed to the
Lenders in respect of such Obligations shall accrue and be payable in Dollars
at the rate otherwise applicable hereunder. 
Each Lender and each Loan Party hereby consents and agrees to the CAM
Exchange, and each Lender agrees that the CAM Exchange shall be binding upon
its successors and assigns and any person that acquires a participation in its
interests in any Loan.  Each Loan Party
agrees from time to time to execute and deliver to the Administrative Agent all
such promissory notes and other instruments and documents as the Administrative
Agent shall reasonably request to evidence and confirm the respective interests
of the Lenders after giving effect to the CAM Exchange, and each Lender agrees
to surrender any promissory notes originally received by it in connection with
its Loans hereunder to the Administrative Agent against delivery of any promissory
notes evidencing its interests in the Loans so executed and delivered; provided,
however, that the failure of any Loan Party to execute or deliver or of
any Lender to accept any such promissory note, instrument or document shall not
affect the validity or effectiveness of the CAM Exchange.


 


(b)                                 As a result of the CAM Exchange,
upon and after the CAM Exchange Date, each payment received by the
Administrative Agent or the Collateral Agent pursuant to any Loan Document in
respect of the Obligations, and each distribution made by the Collateral Agent
pursuant to any Security Document in respect of the Obligations, shall be
distributed to the Lenders pro rata in
accordance with their respective CAM Percentages.  Any direct payment received by a Lender upon
or after the CAM Exchange Date, including by way of set-off, in respect of an
Obligation shall be paid over to the Administrative Agent for distribution to
the Lenders in accordance herewith.


 


SECTION 10.02  Letters of Credit.  (a)  In
the event that on the CAM Exchange Date any RF Letter of Credit shall be
outstanding and undrawn in whole or in part, each Revolving Facility Lender
shall promptly pay over to the Administrative Agent, in immediately available
funds, an amount in Dollars equal to such Lender’s Revolving Facility
Percentage of such undrawn face amount, together with interest thereon from the
CAM Exchange Date to the date on which such amount shall be paid to the
Administrative Agent at the rate that would be applicable at the time to an ABR
Revolving Loan in a principal amount equal to such undrawn face amount or
unreimbursed drawing, as applicable.  The
Administrative Agent shall establish a separate account (each, an “RF
Reserve Account”) or accounts for each Lender for the amounts received with
respect to each such RF Letter of Credit pursuant to the preceding
sentence.  On the CAM Exchange Date, the
Administrative Agent shall request the Deposit Bank to withdraw all amounts
remaining in the Credit-Linked Deposit Account (after giving effect to
withdrawals therefrom made pursuant to Section 2.08(d)) less the aggregate
amount (if any) equal to all unreimbursed L/C Disbursements made in respect of
CL Letters of Credit not yet founded by application of Credit-Linked Deposits
as contemplated by Section 2.05(e) and deposit same in a new separate
account maintained with the Administrative Agent (each a “CL Reserve Account”
and together with the RF Reserve Account, the “Reserve Accounts”) or
accounts for such Lender.  The
Administrative Agent shall deposit in each Lender’s RF Reserve Account or CL
Reserve Account, as the case may be, such Lender’s CAM Percentage of the
amounts received from the Revolving Facility Lenders or the Credit-Linked
Deposit Account, as the case may be, as provided above.  The Administrative Agent shall have sole
dominion and control over each Reserve Account, and the amounts deposited in
each Reserve Account shall be held in such


 


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Reserve Account until withdrawn as provided in paragraph (b), (c), (d)
or (e) below.  The Administrative Agent
shall maintain records enabling it to determine the amounts paid over to it and
deposited in the Reserve Accounts in respect of each Letter of Credit and the
amounts on deposit in respect of each Letter of Credit attributable to each
Lender’s CAM Percentage.  The amounts
held in each Lender’s RF Reserve Account or CL Reserve Account, as the case may
be, shall be held as a reserve against the Revolving L/C Exposures or CL L/C
Exposures, as the case may be, shall be the property of such Lender, shall not
constitute Loans to or give rise to any claim of or against any Loan Party and
shall not give rise to any obligation on the part of any Borrower to pay
interest to such Lender, it being agreed that the reimbursement obligations in
respect of Letters of Credit shall arise only at such times as drawings are
made thereunder, as provided in Section 2.05.


 


(b)                                 In the event that after the CAM
Exchange Date any drawing shall be made in respect of a Letter of Credit, the
Administrative Agent shall, at the request of the applicable Issuing Bank
withdraw from the RF Reserve Account or CL Reserve Account, as applicable, of
each Lender any amounts, up to the amount of such Lender’s CAM Percentage of
such drawing or payment, deposited in respect of such Letter of Credit and
remaining on deposit and deliver such amounts, to such Issuing Bank in
satisfaction of the reimbursement obligations of the respective Lenders under Section 2.05(d)
(but not of the Applicant Party under Section 2.05(e)).  In the event that any Revolving Facility
Lender shall default on its obligation to pay over any amount to the
Administrative Agent as provided in this Section 10.02, the applicable
Issuing Bank shall have a claim against such Revolving Facility Lender to the
same extent as if such Lender had defaulted on its obligations under Section 2.05(d),
but shall have no claim against any other Lender in respect of such defaulted
amount, notwithstanding the exchange of interests in the applicable Borrower’s
reimbursement obligations pursuant to Section 10.01.  Each other Lender shall have a claim against
such defaulting Revolving Facility Lender for any damages sustained by it as a
result of such default, including, in the event that such RF Letter of Credit
shall expire undrawn, its CAM Percentage of the defaulted amount.


 


(c)                                  In the event that after the CAM
Exchange Date any Letter of Credit shall expire undrawn, the Administrative
Agent shall withdraw from the RF Reserve Account or CL Reserve Account, as
applicable, of each Lender the amount remaining on deposit therein in respect
of such Letter of Credit and distribute such amount to such Lender.


 


(d)                                 With the prior written approval
of the Administrative Agent and the respective Issuing Bank (not to be
unreasonably withheld), any Lender may withdraw the amount held in its RF
Reserve Account or CL Reserve Account in respect of the undrawn amount of any
Letter of Credit.  Any Lender making such
a withdrawal shall be unconditionally obligated, in the event there shall
subsequently be a drawing under such Letter of Credit to pay over to the
Administrative Agent, for the account of the Issuing Bank on demand, its CAM
Percentage of such drawing or payment.


 


(e)                                  Pending the withdrawal by any Lender
of any amounts from either of its Reserve Accounts as contemplated by the above
paragraphs, the Administrative Agent will, at the direction of such Lender and
subject to such rules as the Administrative Agent may prescribe for the
avoidance of inconvenience, invest such amounts in Permitted Investments.  Each Lender


 


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that has not withdrawn all of the amounts in
its Reserve Accounts as provided in paragraph (d) above shall have the right,
at intervals reasonably specified by the Administrative Agent, to withdraw the
earnings on investments so made by the Administrative Agent with amounts
remaining in its Reserve Accounts and to retain such earnings for its own
account.


 


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 written above.


 


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