Exhibit
10.1


 


AGREEMENT ACKNOWLEDGING BRIDGE LOAN AGREEMENT


 


This AGREEMENT ACKNOWLEDGING BRIDGE LOAN AGREEMENT (this
“Agreement”), dated as of April 15, 2010, is by and between CF
Industries Holdings, Inc., a Delaware corporation (“Holdings”), CF
Industries, Inc., a Delaware corporation (the “Borrower”), Morgan
Stanley Senior Funding, Inc. (“MSSF”), and The Bank of
Tokyo-Mitsubishi UFJ, Ltd.  Capitalized
terms used herein without definition are used as defined in that certain Bridge
Loan Agreement, dated as of April 5, 2010, by and between Holdings, the
Borrower, MSSF, as Administrative Agent and the Lenders party thereto from time
to time (the “Bridge Loan Agreement”), which is attached hereto as Exhibit A.


 


By executing and delivering this Agreement, each of
the undersigned, hereby agrees that the Bridge Loan Agreement attached hereto
as Exhibit A shall constitute the final executed Bridge Loan Agreement
between the parties thereto and shall be in full force and effect on the date
hereof.


 


[SIGNATURE PAGES
FOLLOW]


 

















 


IN WITNESS WHEREOF, each of
the undersigned has caused this Agreement to be duly executed and delivered as
of the date first above written.


 


	
   

  	
  MORGAN STANLEY SENIOR FUNDING, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kevin D. Emerson

  
	
   

  	
   

  	
  Name:
   Kevin D. Emerson

  
	
   

  	
   

  	
  Title:
     Vice President

  



 

















 


	
   

  	
  THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Laurance J. Bressler

  
	
   

  	
   

  	
  Name:
   Laurance J. Bressler

  
	
   

  	
   

  	
  Title:
     Senior Vice President & Manager

  



 

















 


	
   

  	
  CF INDUSTRIES HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Randall W. Selgrad

  
	
   

  	
   

  	
  Name:
   Randall W. Selgrad

  
	
   

  	
   

  	
  Title:    Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CF INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Randall W. Selgrad

  
	
   

  	
   

  	
  Name:  Randall W. Selgrad

  
	
   

  	
   

  	
  Title:    Vice President and Treasurer

  



 

















 


Exhibit A


 
















 


	
   

  



 


 


BRIDGE LOAN AGREEMENT


 


 


among


 


 


CF INDUSTRIES HOLDINGS, INC.,


 


CF INDUSTRIES, INC.,


 


VARIOUS LENDERS,


 


and


 


MORGAN STANLEY SENIOR FUNDING, INC.,


as ADMINISTRATIVE AGENT and COLLATERAL AGENT


 


 






 


Dated as of April 5, 2010


 






 


 


MORGAN STANLEY SENIOR FUNDING, INC.,

as LEAD ARRANGER and BOOK RUNNER


 


 


	
   

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  Definitions and
  Accounting Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.01.

  	
  Defined Terms

  	
   

  	
  1

  
	
  1.02.

  	
  Other Definitional
  Provisions

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Amount and Terms of
  Credit

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  2.01.

  	
  The Commitments

  	
   

  	
  37

  
	
  2.02.

  	
  Minimum Amount of Each
  Borrowing

  	
   

  	
  38

  
	
  2.03.

  	
  Notice of Borrowing

  	
   

  	
  38

  
	
  2.04.

  	
  Disbursement of Funds

  	
   

  	
  38

  
	
  2.05.

  	
  Notes

  	
   

  	
  39

  
	
  2.06.

  	
  [Intentionally Omitted]

  	
   

  	
  40

  
	
  2.07.

  	
  Pro Rata Borrowings

  	
   

  	
  40

  
	
  2.08.

  	
  Interest

  	
   

  	
  40

  
	
  2.09.

  	
  [Intentionally Omitted]

  	
   

  	
  40

  
	
  2.10.

  	
  Increased Costs,
  Illegality, etc

  	
   

  	
  41

  
	
  2.11.

  	
  Compensation

  	
   

  	
  42

  
	
  2.12.

  	
  Change of Lending
  Office

  	
   

  	
  42

  
	
  2.13.

  	
  Replacement of Lenders

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  [Intentionally Omitted]

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Commitment Commission;
  Fees; Reductions and Increases of Commitments

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  4.01.

  	
  Fees

  	
   

  	
  43

  
	
  4.02.

  	
  [Intentionally Omitted]

  	
   

  	
  43

  
	
  4.03.

  	
  Mandatory Reduction of
  Commitments

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Prepayments; Payments;
  Taxes

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  5.01.

  	
  Voluntary Prepayments

  	
   

  	
  44

  
	
  5.02.

  	
  Mandatory Repayments

  	
   

  	
  45

  
	
  5.03.

  	
  Method and Place of
  Payment

  	
   

  	
  46

  
	
  5.04.

  	
  Net Payments

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  Conditions Precedent to
  Credit Events on the Initial Borrowing Date

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  6.01.

  	
  Effective Date;
  Notices; Notes

  	
   

  	
  49

  
	
  6.02.

  	
  Representations and
  Warranties

  	
   

  	
  50

  
	
  6.03.

  	
  Officer’s Certificate

  	
   

  	
  50

  
	
  6.04.

  	
  Opinions of Counsel

  	
   

  	
  50

  
	
  6.05.

  	
  Company Documents;
  Proceedings; etc

  	
   

  	
  51

  
	
  6.06.

  	
  Consummation of the
  Borrower Refinancing

  	
   

  	
  51

  
	
  6.07.

  	
  Exchange Offer Funding
  Date Material Adverse Change

  	
   

  	
  52

  



 

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  6.08.

  	
  Patriot Act

  	
   

  	
  52

  
	
  6.09.

  	
  Blocked Amounts

  	
   

  	
  52

  
	
  6.10.

  	
  Guaranty and Collateral
  Agreement

  	
   

  	
  52

  
	
  6.11.

  	
  Regulation U

  	
   

  	
  53

  
	
  6.12.

  	
  Solvency Certificate

  	
   

  	
  54

  
	
  6.13.

  	
  Fees, etc.

  	
   

  	
  54

  
	
  6.14.

  	
  Consummation of the
  Exchange Offer; Etc.

  	
   

  	
  54

  
	
  6.15.

  	
  Merger Agreement

  	
   

  	
  54

  
	
  6.16.

  	
  Facilities Under the First
  Lien Credit Agreement

  	
   

  	
  55

  
	
  6.17.

  	
  Intercreditor Agreement

  	
   

  	
  55

  
	
  6.18.

  	
  Mortgage; Title
  Insurance; Survey; Landlord Waivers; etc.

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  Conditions Precedent to
  Credit Events after the Initial Borrowing Date

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  7.01.

  	
  Initial Borrowing

  	
   

  	
  57

  
	
  7.02.

  	
  Notice of Borrowing

  	
   

  	
  57

  
	
  7.03.

  	
  Consummation of the
  Exchange Offer

  	
   

  	
  57

  
	
  7.04.

  	
  Merger Agreement

  	
   

  	
  57

  
	
  7.05.

  	
  Officer’s Certificate

  	
   

  	
  57

  
	
  7.06.

  	
  Margin Regulations

  	
   

  	
  58

  
	
  7.07.

  	
  Blocked Amounts

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  [Intentionally Omitted]

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  Representations,
  Warranties and Agreements

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  9.01.

  	
  Organization; Powers

  	
   

  	
  59

  
	
  9.02.

  	
  Authorization;
  Enforceability

  	
   

  	
  59

  
	
  9.03.

  	
  Governmental Approvals;
  No Conflicts

  	
   

  	
  60

  
	
  9.04.

  	
  Financial Condition; No
  Material Adverse Change

  	
   

  	
  60

  
	
  9.05.

  	
  Properties

  	
   

  	
  61

  
	
  9.06.

  	
  Litigation and
  Environmental Matters

  	
   

  	
  61

  
	
  9.07.

  	
  Compliance with Laws
  and Agreements

  	
   

  	
  61

  
	
  9.08.

  	
  Investment Company
  Status

  	
   

  	
  62

  
	
  9.09.

  	
  Taxes

  	
   

  	
  62

  
	
  9.10.

  	
  ERISA

  	
   

  	
  62

  
	
  9.11.

  	
  Disclosure

  	
   

  	
  62

  
	
  9.12.

  	
  Material Agreements

  	
   

  	
  62

  
	
  9.13.

  	
  Solvency

  	
   

  	
  62

  
	
  9.14.

  	
  Reportable Transaction

  	
   

  	
  63

  
	
  9.15.

  	
  Capitalization and
  Subsidiaries

  	
   

  	
  63

  
	
  9.16.

  	
  Common Enterprise

  	
   

  	
  63

  
	
  9.17.

  	
  Labor Disputes

  	
   

  	
  63

  
	
  9.18.

  	
  Use of Proceeds

  	
   

  	
  63

  
	
  9.19.

  	
  Margin Regulations

  	
   

  	
  64

  
	
  9.20.

  	
  Security Documents

  	
   

  	
  64

  
	
  9.21.

  	
  Intellectual Property,
  etc.

  	
   

  	
  65

  
	
  9.22.

  	
  Representations and
  Warranties in Merger Agreement

  	
   

  	
  65

  



 

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  Affirmative Covenants

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  10.01.

  	
  Financial Statements
  and Other Information

  	
   

  	
  65

  
	
  10.02.

  	
  Notices of Material
  Events

  	
   

  	
  68

  
	
  10.03.

  	
  Existence; Conduct of
  Business

  	
   

  	
  69

  
	
  10.04.

  	
  Payment of Obligations

  	
   

  	
  69

  
	
  10.05.

  	
  Maintenance of
  Properties and Intellectual Property Rights

  	
   

  	
  70

  
	
  10.06.

  	
  Books and Records;
  Inspection Rights; Annual Lender Meetings

  	
   

  	
  70

  
	
  10.07.

  	
  Compliance with Laws

  	
   

  	
  70

  
	
  10.08.

  	
  Use of Proceeds

  	
   

  	
  70

  
	
  10.09.

  	
  Insurance

  	
   

  	
  70

  
	
  10.10.

  	
  Additional Collateral;
  Further Assurances; Etc

  	
   

  	
  71

  
	
  10.11.

  	
  [Intentionally
  Omitted.]

  	
   

  	
  74

  
	
  10.12.

  	
  Ratings

  	
   

  	
  74

  
	
  10.13.

  	
  Merger; Target
  Refinancing

  	
   

  	
  74

  
	
  10.14.

  	
  Securities Demand

  	
   

  	
  75

  
	
  10.15.

  	
  Exchange Notes;
  Exchange Notes Indentures; Etc

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  Negative Covenants

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  11.01.

  	
  Indebtedness

  	
   

  	
  79

  
	
  11.02.

  	
  Liens

  	
   

  	
  84

  
	
  11.03.

  	
  Fundamental Changes

  	
   

  	
  87

  
	
  11.04.

  	
  Investments, Loans,
  Advances, Guarantees and Acquisitions

  	
   

  	
  89

  
	
  11.05.

  	
  Interest Rate
  Protection Agreements or Other Hedging Agreements

  	
   

  	
  93

  
	
  11.06.

  	
  Restricted Payments

  	
   

  	
  94

  
	
  11.07.

  	
  Transactions with
  Affiliates

  	
   

  	
  96

  
	
  11.08.

  	
  Restrictive Agreements

  	
   

  	
  96

  
	
  11.09.

  	
  [Intentionally
  Omitted.]

  	
   

  	
  97

  
	
  11.10.

  	
  Capital Expenditures

  	
   

  	
  97

  
	
  11.11.

  	
  Interest Coverage Ratio

  	
   

  	
  99

  
	
  11.12.

  	
  Total Leverage Ratio

  	
   

  	
  100

  
	
  11.13.

  	
  Modifications of
  Certificate of Incorporation, By-Laws and Certain Other Agreements

  	
   

  	
  100

  
	
  11.14.

  	
  Holdings

  	
   

  	
  101

  
	
  11.15.

  	
  Limitation on Issuance
  of Equity Interests

  	
   

  	
  101

  
	
  11.16.

  	
  Accounting Changes;
  Fiscal Year

  	
   

  	
  101

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  Events of Default

  	
   

  	
  101

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  The Administrative
  Agent; Lead Arranger; Etc

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  13.01.

  	
  Appointment

  	
   

  	
  104

  
	
  13.02.

  	
  Nature of Duties

  	
   

  	
  105

  
	
  13.03.

  	
  Lack of Reliance on the
  Administrative Agent

  	
   

  	
  105

  
	
  13.04.

  	
  Certain Rights of the
  Administrative Agent

  	
   

  	
  106

  
	
  13.05.

  	
  Reliance

  	
   

  	
  106

  
	
  13.06.

  	
  Indemnification

  	
   

  	
  106

  
	
  13.07.

  	
  The Administrative
  Agent in its Individual Capacity

  	
   

  	
  106

  



 

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  13.08.

  	
  Holders

  	
   

  	
  107

  
	
  13.09.

  	
  Resignation by the
  Administrative Agent

  	
   

  	
  107

  
	
  13.10.

  	
  Collateral Matters

  	
   

  	
  108

  
	
  13.11.

  	
  Delivery of Information

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
  Miscellaneous

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  
	
  14.01.

  	
  Payment of Expenses,
  etc

  	
   

  	
  109

  
	
  14.02.

  	
  Right of Setoff

  	
   

  	
  110

  
	
  14.03.

  	
  Notices

  	
   

  	
  111

  
	
  14.04.

  	
  Benefit of Agreement;
  Assignments; Participations

  	
   

  	
  111

  
	
  14.05.

  	
  No Waiver; Remedies
  Cumulative

  	
   

  	
  113

  
	
  14.06.

  	
  Payments Pro Rata

  	
   

  	
  114

  
	
  14.07.

  	
  Calculations;
  Computations

  	
   

  	
  114

  
	
  14.08.

  	
  GOVERNING LAW;
  SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL

  	
   

  	
  115

  
	
  14.09.

  	
  Counterparts

  	
   

  	
  116

  
	
  14.10.

  	
  Effectiveness

  	
   

  	
  116

  
	
  14.11.

  	
  Headings Descriptive

  	
   

  	
  117

  
	
  14.12.

  	
  Amendment or Waiver; etc

  	
   

  	
  117

  
	
  14.13.

  	
  Survival

  	
   

  	
  119

  
	
  14.14.

  	
  Domicile of Loans

  	
   

  	
  119

  
	
  14.15.

  	
  Register

  	
   

  	
  119

  
	
  14.16.

  	
  Confidentiality

  	
   

  	
  120

  
	
  14.17.

  	
  Patriot Act

  	
   

  	
  120

  
	
  14.18.

  	
  OTHER LIENS ON
  COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC

  	
   

  	
  121

  
	
  14.19.

  	
  Interest Rate
  Limitation

  	
   

  	
  121

  
	
  14.20.

  	
  Regulation U

  	
   

  	
  122

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 15.

  	
  Holdings Guaranty

  	
   

  	
  122

  
	
   

  	
   

  	
   

  	
   

  
	
  15.01.

  	
  Guaranty

  	
   

  	
  122

  
	
  15.02.

  	
  Bankruptcy

  	
   

  	
  123

  
	
  15.03.

  	
  Nature of Liability

  	
   

  	
  123

  
	
  15.04.

  	
  Independent Obligation

  	
   

  	
  123

  
	
  15.05.

  	
  Authorization

  	
   

  	
  124

  
	
  15.06.

  	
  Reliance

  	
   

  	
  124

  
	
  15.07.

  	
  Subordination

  	
   

  	
  125

  
	
  15.08.

  	
  Waiver

  	
   

  	
  125

  
	
  15.09.

  	
  Payments

  	
   

  	
  127

  



 

















 


BRIDGE LOAN AGREEMENT, dated as of April 5, 2010
among CF Industries Holdings, Inc., a Delaware corporation (“Holdings”),
CF Industries, Inc., a Delaware corporation (the “Borrower”), the
Lenders party hereto from time to time and Morgan Stanley Senior Funding, Inc.,
as Administrative Agent and Collateral Agent. 
All capitalized terms used herein and defined in Section 1 are used
herein as therein defined.


 


W I  T  N  E  S  S
E  T  H:


 


WHEREAS, subject to and upon the terms and conditions
set forth herein, the Lenders are willing to make available to the Borrower the
respective credit facilities provided for herein;


 


NOW, THEREFORE, IT IS AGREED:


 


SECTION 1.           Definitions and Accounting Terms.


 


1.01.        Defined
Terms.  As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):


 


“Account” shall have the meaning assigned in Article 9
of the UCC.


 


“Account Debtor” shall mean any Person
obligated on an Account.


 


“Acquisition” means a transaction or series of
related transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a Person,
or of any division of a Person, (b) the acquisition of in excess of 50% of
the capital stock, partnership interests, membership interests or equity of any
Person, or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person (other
than a Person that is a Subsidiary) provided that Borrower or a Subsidiary of
Borrower is the surviving entity.  For
the avoidance of doubt, it is understood and agreed that the Terra Acquisition
shall constitute an Acquisition.


 


“Acquisition Blocked
Amount” shall have the meaning provided in the definition of Blocked
Amount.


 


“Additional Security Documents” shall have the
meaning provided in Section 10.10.


 


“Adjusted Consolidated Net Income” shall mean,
for any period, Consolidated Net Income for such period plus the sum of the
amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense)
and net non-cash losses which were included in arriving at Consolidated Net
Income for such period, less the amount of all net non-cash gains and
non-cash credits which were included in arriving at Consolidated Net Income for
such period.


 


“Adjusted Consolidated Working Capital” shall
mean, at any time, Consolidated Current Assets (but excluding therefrom all
cash and Permitted Investments) less Consolidated 


 

















 


Current Liabilities (but
excluding therefrom (x) liabilities with respect to customer advances that
are included in the definition of Consolidated Current Liabilities and that are
received under forward purchasing agreements entered into with customers in the
ordinary course of business and (y) liabilities representing dividends
payable with respect to minority interests in Subsidiaries) at such time;
provided that for all purposes of determining Adjusted Consolidated Working
Capital there shall be excluded the effects in changes to account values that
represent non-cash items (i.e., changes to account values that neither utilize
nor generate cash).


 


“Administrative Agent” shall mean Morgan
Stanley Senior Funding, Inc., in its capacity as administrative agent for
the Lenders hereunder and under the other Bridge Loan Documents, and shall
include any successor to the Administrative Agent appointed pursuant to Section 13.09.


 


“Affiliate” means, with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.


 


“Affiliated Cooperatives” shall mean the
cooperatives listed on Schedule 1.01C.


 


“Aggregate R/C Exposure” shall mean “Aggregate
R/C Exposure” as defined in the First Lien Credit Agreement.


 


“Agreed Non-Guarantor Subsidiaries” shall mean
each of Terra Real Estate, Terra Express, Terra Investment Fund LLC and Terra
Investment Fund II LLC, and any other Subsidiary which is not then a Credit
Party and at the request of the Borrower is agreed by the Administrative Agent
in its sole discretion to constitute an Agreed Non-Guarantor Subsidiary (it
being acknowledged and agreed that, in reaching any such decision, the
Administrative Agent shall take into account the cost of the respective such
Subsidiary becoming a Credit Party as against the benefits expected to be
provided thereby, as well as any existing contractual or legal restrictions
which may impede the respective Subsidiary’s ability to become a Credit Party);
provided that the Borrower may at any time designate any Agreed Non-Guarantor
Subsidiary as no longer being an Agreed Non-Guarantor Subsidiary, in which case
the respective such Subsidiary shall be required to take all actions required
under Section 10.10 which would be required of a Wholly-Owned Domestic
Subsidiary which is not an Excluded Subsidiary, an Inactive Subsidiary or an
Agreed Non-Guarantor Subsidiary (in each case within the time periods specified
therein).


 


“Agreement” shall mean this Bridge Loan
Agreement, as modified, supplemented, amended, restated (including any
amendment and restatement hereof), extended or renewed from time to time.


 


“Asset Sale” shall mean any sale, transfer or
other disposition by Holdings or any of its Subsidiaries to any Person
(including by way of redemption by such Person) other than to Holdings or a
Wholly-Owned Subsidiary of Holdings of any asset (including, without
limitation, any capital stock or other securities of, or Equity Interests in,
another Person), but excluding (x) sales of assets pursuant to Section 11.03
(other than clauses (i), (ii), (iii)(1) and (2), (iv), (v), (vii)(A),
(viii), (ix), (xi), (xiv) and (xv) thereof) and (y) any other sale,
transfer or disposition (for 


 


2

















 


such purpose, treating
any series of related sales, transfers or dispositions as a single such
transaction) that generates Net Sale Proceeds of less than $10,000,000.


 


“Assignment and Assumption Agreement” shall
mean an Assignment and Assumption Agreement substantially in the form of Exhibit K
(appropriately completed).


 


“Authorized Officer” shall mean, with respect
to (i) delivering Notices of Borrowing and similar notices, any person or
persons that has or have been authorized by the board of directors of Holdings
or the Borrower to deliver such notices pursuant to this Agreement and that has
or have appropriate signature cards on file with the Administrative Agent, (ii) delivering
financial information and officer’s certificates pursuant to this Agreement,
the chief financial officer, the treasurer, the principal accounting officer or
controller of Holdings or the Borrower, and (iii) any other matter in
connection with this Agreement or any other Bridge Loan Document, any officer
(or a person or persons so designated by any two officers) of Holdings or the
Borrower.


 


“B-1 Blocked Amount”
shall mean, at any time, the amount (if any) by which the Term Loan Blocked
Amount exceeds the B-2 Blocked Amount, it being understood that at all times
after the B-1 Conversion Date, the B-1 Blocked Amount shall equal the Term Loan
Blocked Amount.


 


“B-1 Conversion Date”
shall mean the “B-1 Conversion Date” as defined in the First Lien Credit
Agreement.


 


“B-2 Blocked Amount”
shall mean, at any time, the lesser of the Total B-2 Term Loan Commitment (as
defined in the First Lien Credit Agreement) and the Term Loan Blocked Amount,
each as in effect at such time.


 


“Bankruptcy Code” shall mean Title 11 of the
United States Code entitled “Bankruptcy”, as now or hereafter in effect, or any
successor thereto.


 


“Blackout Period” shall have the meaning provided
in Section 10.15(e).


 


“Blocked Amount” shall mean, at any time, the
sum of (x) the aggregate cash consideration (after giving effect to any
purchase of Shares pursuant to the Exchange Offer and/or one or more Top-Off
Purchases) required to consummate the Merger in accordance with the Merger
Agreement at such time (the “Acquisition Blocked Amount”) and (y) the
Target Notes Blocked Amount.


 


“Borrower” shall have the meaning provided in
the first paragraph of this Agreement.


 


“Borrower Materials” shall have the meaning
provided in Section 10.01.


 


“Borrower Refinancing” shall mean the
refinancing transactions described in Sections 6.06(a) and (b).


 


3

















 


“Borrowing” shall mean the borrowing from all
the Lenders having Commitments on a given date.


 


“Borrowing Date” shall mean the Initial
Borrowing Date and each date thereafter upon which Initial Loans are incurred
by the Borrower pursuant to Section 2.01(a).


 


“Bridge Loan Blocked Amount” at any time shall
mean the amount, if any, by which the Blocked Amount at such time exceeds the
Term Loan Blocked Amount at such time.


 


“Bridge Loan Documents” shall mean this
Agreement, the Guaranty and Collateral Agreement, the Foreign Pledge
Agreements, the Intercreditor Agreement (at any time while in effect in
accordance with its terms) and, after the execution and delivery thereof
pursuant to the terms of this Agreement, each Note and each other Security
Document.


 


“Business Day” shall mean (i) for all
purposes other than as covered by clause (ii) below, any day except
Saturday, Sunday and any day which shall be in New York, New York, a
legal holiday or a day on which banking institutions are authorized or required
by law or other government action to close and (ii) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, Loans, any day which is a Business Day described in clause (i) above
and which is also a day for trading by and between banks in U.S. dollar
deposits in the interbank Eurodollar market.


 


“Cap Rate” shall mean
12.5% per annum.  It is understood that
total interest on the Loans may exceed the Cap Rate to the extent provided in Section 2.08(c).


 


“Capital Expenditures” means, without
duplication, any expenditure for any purchase or other acquisition of any asset
which would be classified as a fixed or capital asset on a consolidated balance
sheet of the Credit Parties and their Subsidiaries prepared in accordance with
GAAP.


 


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


 


“Cash Management
Agreement” shall mean any agreement for the provision of Cash Management
Services.


 


“Cash Management
Services” shall mean (i) cash management services, including treasury,
depository, overdraft, electronic funds transfer and other cash management
arrangements and (ii) commercial credit card and merchant card services.


 


“CFL” shall mean Canadian Fertilizers, Ltd., a
limited company organized under the laws of the Province of Alberta, Canada.


 


4

















 


“Change of Control” means any of (a) any “person”
or “group” (as such terms are used in Sections 13(d)  and 14(d)  of
the Securities Exchange Act of 1934 (as amended)) becomes the “beneficial owner”
(as that term is used under Rule 13d-3 under the Exchange Act), directly
or indirectly, of Equity Interests representing more than thirty-five percent
(35%) of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of Holdings; (b) occupation of a majority of
the seats (other than vacant seats) on the board of directors of Holdings by
Persons who were neither (i) nominated by the board of directors of
Holdings nor (ii) appointed by directors so nominated; (c) the
failure of Holdings to own, directly or indirectly, 100% of the outstanding
Equity Interests of the Borrower; or (d) any “change of control” (as such
term or any words of similar import are defined under any Material
Indebtedness) shall occur.


 


“Clearance Notice” shall have the meaning
provided in Section 10.15(e).


 


“Code” shall mean the Internal Revenue Code of
1986, as amended.  Section references
to the Code are to the Code, as in effect at the date of this Agreement and any
subsequent provisions of the Code, amendatory thereof, supplemental thereto or
substituted therefor.


 


“Collateral” shall mean all property (whether
real or personal) with respect to which any security interests have been
granted (or purported to be granted) pursuant to any Security Document,
including, without limitation, all GCA Collateral, all Mortgaged Properties at
such time and all cash and Permitted Investments delivered as collateral
pursuant to Section 5.02 or 12.


 


“Collateral Agent” shall mean MSSF acting as
collateral agent for the Secured Creditors pursuant to the Security Documents.


 


“Commitment” shall mean, for each Lender, the
amount set forth opposite such Lender’s name in Schedule 1.01A
directly below the column entitled “Commitment,” as the same may be (x) reduced
or terminated from time to time pursuant to Sections 4.02, 4.03 and/or 12, as
applicable, or (y) adjusted from time to time as a result of assignments
to or from such Lender pursuant to Section 2.13 or 14.04(b).


 


“Company” shall mean any corporation, limited
liability company, partnership or other business entity (or the adjectival form
thereof, where appropriate).


 


“Consent Decree”
shall mean a Consent Decree, being negotiated as at the Effective Date by
Borrower, the United States of America, and the Florida Department of
Environmental Protection, to resolve alleged violations of the federal Resource
Conservation and Recovery Act and the Florida Resource Recovery and Management
Act in connection with operations at Borrower’s Plant City, Florida Phosphoric
Acid Complex.


 


“Consent Decree
Phosphogypsum Stack Liability” shall, at any time after the entry of a
Consent Decree, mean the then current dollar value of the estimated cost of
closing phosphogypsum stacks upon formal plans for closure, wastewater
management, long term maintenance and monitoring, as required by the Consent
Decree if the Borrower enters into the Consent Decree.


 


5






 












 


“Consolidated Current Assets” shall mean, at
any time, the consolidated current assets of Holdings and its Subsidiaries at
such time determined in accordance with GAAP.


 


“Consolidated Current Liabilities” shall mean,
at any time, the consolidated current liabilities of Holdings and its
Subsidiaries at such time determined in accordance with GAAP, but excluding the
current portion of any Indebtedness under this Agreement and the current
portion of any other long-term Indebtedness which would otherwise be included
therein.


 


“Consolidated EBITDA” shall mean, with
reference to any period, Consolidated Net Income for such period plus, without
duplication and to the extent deducted from revenues in determining such
Consolidated Net Income, the sum of (a) the aggregate amount of
Consolidated Interest Expense for such period, (b) the aggregate amount of
expense for taxes paid or accrued for such period (including payments to
Affiliated Cooperatives under the NOL Agreement), (c) all amounts
attributable to depreciation and depletion for such period, (d) all
amortization and other non-cash charges and (e) all customary up-front
fees and expenses incurred in connection with any Acquisition, any Asset Sale,
any issuance of Equity Interests by Holdings or any issuance or incurrence of
Indebtedness by Holdings or its Subsidiaries and the amortization of any
deferred financing charges, in each case for such period, minus the sum of (i) all
non-cash gains included in Consolidated Net Income for such period and (ii) all
amounts (except as expressly contemplated by clause (e) above) which
constituted non-cash charges in prior periods (and which were or would have
been deducted in determining Consolidated Net Income in a prior period) and
which were actually paid in cash during the period for which Consolidated
EBITDA is being determined, all calculated for the Holdings and its
Subsidiaries on a consolidated basis. To the extent the net income of any
Subsidiary is excluded from Consolidated Net Income in accordance with the proviso
to the definition of Consolidated Net Income, then add-backs and deductions in
determining Consolidated EBITDA, to the extent relating to such Subsidiary,
shall be limited to the same extent. 
Notwithstanding anything to the contrary contained above, if any Fiscal
Quarter shown on Schedule 1.01D (which includes the Fiscal Quarter ended
March 31, 2009 and each Fiscal Quarter ended thereafter through the Fiscal
Quarter ended September 30, 2011) will be included in the respective Test
Period for which Consolidated EBITDA is being determined, then there shall be
added to Consolidated EBITDA for such period the respective amount set forth
opposite such Fiscal Quarter in Schedule 1.01D (which amounts represent
restructuring charges and anticipated future cost savings and synergies related
to the Terra Acquisition which will not yet have been actually realized).


 


“Consolidated Indebtedness” shall mean, at any
time, the sum of (without duplication) (i) all Indebtedness of Holdings
and its Subsidiaries (on a consolidated basis) as would be required to be
reflected as debt or Capital Lease Obligations on the liability side of a
consolidated balance sheet of Holdings and its Subsidiaries in accordance with
GAAP and (ii) all Guarantees of Holdings and its Subsidiaries in respect
of Indebtedness of any third Person of the type referred to in preceding clause
(i).


 


“Consolidated Interest Expense” shall mean,
with reference to any period, accrued interest expense of Holdings and its
Subsidiaries calculated on a consolidated basis for such period determined in
accordance with GAAP excluding amortization of financing fees.  To the extent any Test Period includes (i) the
Fiscal Quarter ended March 31, 2009, the Consolidated Interest Expense for
such Fiscal Quarter shall be deemed to be $75.8 million, (ii) the Fiscal 


 


6

















 


Quarter ended June 30,
2009, the Consolidated Interest Expense for such Fiscal Quarter shall be deemed
to be $75.8 million, (iii) the Fiscal Quarter ended September 30,
2009, the Consolidated Interest Expense for such Fiscal Quarter shall be deemed
to be $75.8 million, (iv) the Fiscal Quarter ended December 31, 2009,
the Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be
$75.8 million, (v) the Fiscal Quarter ended March 31, 2010, the
Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be
$81.7 million and (vi) the period commencing on April 1, 2010 and
ended on the Merger Closing Date, Consolidated Interest Expense for such
portion of such Fiscal Quarter occurring prior to the Merger Closing Date shall
be deemed to be (x) $82.4 million, multiplied by (y) a fraction the
numerator of which is the number of days in such Test Period occurring on or
after April 1, 2010 and prior to the Merger Closing Date and the
denominator of which is 90; provided that if on or prior to September 30,
2010 the Borrower repays outstanding Indebtedness in aggregate principal amount
of at least $500,000,000 with Net Cash Proceeds (for their purpose, ignoring
the proviso to the definition of Net Cash Proceeds) from one or more issuances
of Equity Interests (other than Disqualified Equity Interests) of Holdings
and/or proceeds of Permitted Refinancing Indebtedness, then for purposes of all
calculations to be made on or after September 30, 2010 (or, in the case of
calculations required to be made before that date on a Pro  Forma
Basis, giving effect to the issuances which have actually been made through the
date of determination), Consolidated Interest Expense for all portions of any
Test Period occurring prior to September 30, 2010 (or, if earlier, the
last date prior to September 30, 2010 upon which Indebtedness has been
repaid with proceeds of issuances of Equity Interests or Permitted Refinancing Indebtedness
as described above) shall be determined by using a revised annualized
Consolidated Interest Expense amount (as determined by the Borrower with the
agreement of the Administrative Agent), which shall give pro forma effect to
all incurrences and repayments of Indebtedness on or prior to September 30,
2010 (or on or prior to the date of determination in the case of determinations
before such date being made on a Pro  Forma Basis) and shall be
based upon the weighted average interest rates applicable to the Indebtedness
which remains outstanding (including newly incurred Indebtedness), with such
annualized amount multiplied in each case by a fraction the numerator of which
is the number of days in the respective Test Period occurring prior to the Qualified
Equity Trigger Date and the denominator of which is 365.


 


“Consolidated Net Income” shall mean, for any
period, the net income (or loss) of Holdings and its Subsidiaries determined on
a consolidated basis for such period (taken as a single accounting period) in
accordance with GAAP, provided that the following items shall be
excluded in computing Consolidated Net Income (without duplication): (i) the
net income (or loss) of any Person in which a Person or Persons other than
Holdings and its Wholly-Owned Subsidiaries has an Equity Interest or Equity
Interests to the extent of such Equity Interests held by Persons other than
Holdings and its Wholly-Owned Subsidiaries in such Person, (ii) except for
determinations expressly required to be made on a Pro  Forma
Basis, the net income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary or accrued prior to such Person merging into or
consolidating with any Subsidiary or accrued prior to all or substantially all
of the property or assets of such Person being acquired by a Subsidiary and (iii) the
net income of any Subsidiary to the extent that the declaration or payment of
cash dividends or similar cash distributions by such Subsidiary of such net
income is not at the time permitted by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary.


 


7

















 


“Consolidated Total
Assets” shall mean the total assets of Holdings and its Subsidiaries
determined on a consolidated basis determined in accordance with GAAP.


 


“Control” means 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 ability to exercise voting power, by
contract or otherwise, provided that being an officer or director of a Person
shall not, in and of itself, be deemed “Control” of such Person.  “Controlling” and “Controlled” have meanings correlative
thereto.


 


“Credit Event” shall mean the making of any
Initial Loan.


 


“Credit Party” shall mean Holdings, the
Borrower and each Subsidiary Guarantor.


 


“Cumulative Retained Excess Cash Flow Amount”
shall mean, at any date, an amount, not less than zero, determined on a
cumulative basis equal to (x) the amount of Excess Cash Flow for all
Excess Cash Payment Periods ending after the Initial Borrowing Date which is
not (and, in the case of any Excess Cash Payment Period where the respective
required date of prepayment has not yet occurred pursuant to the First Lien
Credit Agreement, will not on such date of required prepayment be) required to
be applied to repay outstanding Loans in accordance with the First Lien Credit
Agreement minus (y) the sum of (i) the
aggregate amount of Section 11.04(viii) Investments made on or prior
to such date pursuant to sub-clause (x) of Section 11.04(viii)(3) (determined
without regard to any write-downs or write-offs thereof and treating the
maximum amount of any Guarantee as an investment, but reducing the amount of
such investments by any return of capital and principal repayments actually
received in respect of Section 11.04(viii) Investments previously
made pursuant to said sub-clause (x) (and treating any reduction of a
Guarantee provided pursuant to said sub-clause (x) without a corresponding
payment having been made thereunder as a return of principal), (ii) the
aggregate amount of all Restricted Payments made on or prior to such date
pursuant to sub-clause (y) of Section 11.06(xiv)(2) and (iii) the
aggregate amount of all Capital Expenditures made on or prior to such date
pursuant to sub-clause (y) of Section 11.10(f)(2).


 


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


 


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


 


“Demand Failure Date” shall have the meaning
provided in Section 10.14.


 


“Demand Notice” shall have the meaning provided
in Section 10.14.


 


“Deposit Accounts”
shall have the meaning provided in the Guaranty and Collateral Agreement.


 


“Description of Exchange Notes” shall mean the
description of the terms and conditions of the proposed Exchange Notes due 2017
of the Borrower, substantially in the form of Schedule 1.01E.


 


8

















 


“Disqualified Equity Interests” shall mean all
Preferred Equity of Holdings or any of its Subsidiaries, other than Qualified
Preferred Stock.


 


“Documents” shall mean, collectively, (i) the
First Lien Credit Documents, (ii) the Merger Documents, (iii) the
Refinancing Documents, and (iv) the Exchange Offer Documents.


 


“Dollars” and the sign “$” shall each
mean freely transferable lawful money of the United States.


 


“Domestic Subsidiary” of any Person shall mean
any Subsidiary of such Person incorporated or organized in the United States or
any State or territory thereof or the District of Columbia; provided
that any Subsidiary that would otherwise constitute a Domestic Subsidiary and
is a holding company which owns Equity Interests in one or more Foreign
Subsidiaries, but owns no other material assets and does not engage in any
trade or business (other than acting as a holding company for such Equity
Interests in Foreign Subsidiaries) shall not constitute a Domestic Subsidiary
hereunder.


 


“Effective Date” shall have the meaning
provided in Section 14.10.


 


“Eligible Transferee” shall mean and include a
commercial bank, an insurance company, a finance company, a financial
institution, any fund that invests in loans or any other “accredited investor”
(as defined in Regulation D of the Securities Act), but in any event excluding
Holdings and its Subsidiaries.


 


“Environmental Laws” means all laws, 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 environment, preservation or reclamation
of natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters.


 


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


 


“Equity Interests” means shares of capital
stock, partnership interests, membership interests in a limited liability
company, beneficial interests in a trust or other equity ownership interests in
a Person (including, for the avoidance of doubt, but only for the purpose of
the definition of Domestic Subsidiary, any interests treated as equity for
United States federal income tax purposes), and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any such equity interest.


 


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


 


9

















 


“ERISA Affiliate” means any trade or business
(whether or not incorporated) that, together with the Borrower, 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” means (a) any “reportable
event”, as defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (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; (d) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower 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.


 


“Eurodollar Rate” means, with respect to any
period, an interest rate per annum (rounded upwards, if necessary, to the next
1/100 of 1%) equal to (a) the LIBO Rate for such period multiplied by (b) the
Statutory Reserve Adjustment.


 


“Event of Default” shall have the meaning
provided in Section 12.


 


“Excepted Defaults”
shall mean, during the period from the Merger Closing Date until the 50th day
thereafter, any default or event of default existing with respect to the Target
Existing Notes or under the Target Existing Notes Indenture, in each case so
long as all actions specified in Section 10.13(b) with respect to the
Target Existing Notes have been taken in accordance with the requirements
thereof.


 


“Excess Cash Flow”
shall mean, for any period, the remainder of (a) the sum of, without
duplication, (i) Adjusted Consolidated Net Income for such period and (ii) the
decrease, if any, in Adjusted Consolidated Working Capital from the first day
to the last day of such period, minus (b) the sum of, without
duplication, (i) the aggregate amount of all Capital Expenditures made by
Holdings and its Subsidiaries in accordance with Sections 11.10(a) and (b) (but
not pursuant to Sections 11.10(c), (d), (e) and (f)) hereof during such
period (other than Capital Expenditures to the extent financed with equity proceeds,
Equity Interests, asset sale proceeds, insurance proceeds or Indebtedness
(other than revolving loans and swingline loans incurred under the First Lien
Credit Agreement)), (ii) the aggregate amount of permanent principal
payments of Indebtedness for borrowed money of Holdings and its Subsidiaries
and the permanent repayment of the principal component of Capital Lease
Obligations of Holdings and its Subsidiaries during such period (other than (1) repayments
made pursuant to the Refinancing, (2) repayments made with the proceeds of
asset sales, sales or issuances of Equity Interests, 


 


10

















 


insurance or Indebtedness, (3) payments of First
Lien Loans and/or other obligations under the First Lien Credit Documents, provided
that repayments of First Lien Loans shall be deducted in determining Excess
Cash Flow to the extent such repayments were (x) required as a result of
scheduled mandatory repayments or (y) made as a voluntary prepayment with
internally generated funds (but in the case of a voluntary prepayment of
revolving loans or swingline loans, only to the extent accompanied by a
voluntary reduction of the related revolving loan commitments in an amount
equal to such prepayment) and (4) repayments of Indebtedness incurred or
at any time outstanding pursuant to Section 11.01(ii) or any
Permitted Refinancing Indebtedness incurred in respect thereof (or in respect
of previously incurred Permitted Refinancing Indebtedness to the extent such
Indebtedness (or a previous refinancing) constituted a refinancing of
Indebtedness pursuant to said Section 11.01(ii))) and (iii) the
increase, if any, in Adjusted Consolidated Working Capital from the first day
to the last day of such period.


 


“Excess Cash Payment Date” shall mean the date
occurring 95 days after the last day of each Fiscal Year of Holdings
(commencing with the Fiscal Year of Holdings ended December 31, 2010).


 


“Excess Cash Payment Period” shall mean (i) with
respect to the repayment required on the first Excess Cash Payment Date, the
period from June 30, 2010 to the last day of Holdings’ Fiscal Quarter
ending closest to December 31, 2010 (taken as one accounting period), and (ii) with
respect to the repayment required on each successive Excess Cash Payment Date,
the immediately preceding Fiscal Year of Holdings.


 


“Excess Qualified Equity Proceeds” shall mean
the Net Cash Proceeds received by Holdings from one or more issuances of its
Equity Interests (excluding any issuances of Disqualified Equity Interests,
Equity Interests issued as part of the consideration for the Transaction, any
issuances of Equity Interests before the Initial Borrowing Date and any
issuances of Equity Interests which are included in determining whether the
Qualified Equity Trigger Date has occurred), in each case to the extent such
Net Cash Proceeds have not been used (and are not required to be used) to repay
outstanding Indebtedness of (or to permanently reduce unutilized commitments to
lend to) Holdings or any of is Subsidiaries; provided that repayments of
revolving indebtedness without a corresponding reduction to the related
commitments shall not be counted as a repayment of outstanding Indebtedness for
the foregoing purposes.


 


“Exchange” shall mean
any exchange of Loans for a like principal of amount of Exchange Notes, it
being understood and agreed that (i) the first Exchange may not occur
sooner than the Initial Maturity Date (although notice thereof may be provided
beforehand as contemplated by Section 10.15(a)) and shall only occur if
Extended Loans are made on such date (or would be made on such date if the
Exchange did not occur concurrently therewith), (ii) each Exchange shall
be made on the basis that Exchange Notes in principal amount equal to the
principal of Loans being exchanged shall be issued to the respective exchanging
Lenders and (iii) each Exchange shall be made with the concurrent payment,
in cash, of all accrued and unpaid interest, and all fees and other expenses,
then owing (whether or not same would otherwise be then payable under this
Agreement) to such Lender with respect to its Loans being Exchanged at such
time.


 


11

















 


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


 


“Exchange Notes” shall mean the securities
issued under the Exchange Note Indenture received in Exchange for Loans.


 


“Exchange Notes
Indenture” shall mean the indenture to be entered into relating to the
Exchange Notes, having terms and conditions substantially as set forth in the
Description of Exchange Notes (with such changes to cure any ambiguity,
omission, defect or inconsistency and such changes with respect to the trustee
provisions as may be reasonably be requested by the person appointed to act as
trustee thereunder as the Lead Arranger and the Borrower shall approve), as the
same may be amended, modified, or supplemented.


 


“Exchange Offer” has the meaning set forth in
the Transaction Summary.


 


“Exchange Offer Documents” shall mean all
agreements and documents relating to the Exchange Offer, as the same may be
amended, modified and/or supplemented from time to time in accordance with the
terms hereof and thereof.


 


“Exchange Offer Funding Date Material Adverse
Effect” shall mean any change, development, event, occurrence, effect or
state of facts that, individually or in the aggregate with all such other
changes, developments, events, occurrences, effects or states of facts is, or
is reasonably expected to be, materially adverse to the business, financial
condition or results of operations of the Target and its subsidiaries, taken as
a whole; provided that none of the following shall be deemed either
alone or in combination to constitute, or be taken into account in determining
whether there has been, or is reasonably likely to be, an Exchange Offer
Funding Date Material Adverse Effect: any change, development, event,
occurrence, effect or state of facts arising out of or resulting from (i) capital
market conditions generally or general economic conditions, including with respect
to interest rates or currency exchange rates, (ii) geopolitical conditions
or any outbreak or escalation of hostilities, acts of war or terrorism
occurring after the Merger Agreement Date, (iii) any hurricane, tornado,
flood, earthquake or other natural or man-made disaster occurring after the
Merger Agreement Date, (iv) any change in applicable law, regulation or
GAAP (or authoritative interpretation thereof) which is proposed, approved or
enacted after the Merger Agreement Date, (v) general conditions in the
industries in which the Target and its subsidiaries operate, (vi) the
failure, in and of itself, of the Target to meet any internal or published
projections, forecasts, estimates or predictions in respect of revenues,
earnings or other financial or operating metrics after the Merger Agreement
Date, or changes in the market price, credit rating or trading volume of the
Target’s securities after the Merger Agreement Date (it being understood that
the underlying facts giving rise or contributing to such failure or change may
be deemed either alone or in combination to constitute, or be taken into
account in determining whether there has been, or is reasonably likely to be,
an Exchange Offer Funding Date Material Adverse Effect), (vii) changes in
the price of natural gas, nitrogen, urea, ammonia or any other product used or
sold by the Target or any of its subsidiaries and (viii) the announcement
and pendency of the Merger Agreement and the transactions contemplated thereby,
including any lawsuit in respect thereof, compliance with the covenants
contained therein, and any loss of or change in relationship with any customer,
supplier, distributor, or other business partner, or departure of any employee
or officer, of the Target or any of its subsidiaries, except, in the cases of
clauses (i), (ii), (iii), (iv) and (v), to the extent that the Target 


 


12

















 


and its subsidiaries,
taken as a whole, are materially disproportionately affected thereby as
compared with other participants in the industries in which the Target and its
subsidiaries operate (in which case the incremental disproportionate impact or
impacts may be deemed either alone or in combination to constitute, or be taken
into account in determining whether there has been, or is reasonably likely to
be, an Exchange Offer Funding Date Material Adverse Effect).


 


“Excluded Deposit
Accounts” shall have the meaning provided in the Guaranty and Collateral
Agreement.


 


“Excluded Securities
Accounts” shall have the meaning provided in the Guaranty and Collateral
Agreement.


 


“Excluded Subsidiary” shall mean each of Terra
Nitrogen, CFL, TNCLP and Terra Nitrogen GP Inc. and each of their respective
subsidiaries; provided that the Borrower may at any time designate any Excluded
Subsidiary as no longer being an Excluded Subsidiary so long as no Default or
Event of Default exists after giving effect to such designation, in which case (x) such
Person shall thereafter constitute a Subsidiary (and not an Excluded Subsidiary)
for all purposes of this Agreement and the other Credit Documents, (y) all
Equity Interests in such Person shall be pledged pursuant to the Guaranty and
Collateral Agreement (to the extent required for Equity Interests of a
Subsidiary which is not an Excluded Subsidiary) and (z) such Person, if a
Wholly-Owned Domestic Subsidiary shall be required to take all actions required
under Section 10.10 which are required of a Wholly-Owned Domestic
Subsidiary which is not an Excluded Subsidiary, an Inactive Subsidiary or an
Agreed Non-Guarantor Subsidiary (in each case within the time periods specified
therein).


 


“Existing Credit Agreement” shall mean the
Credit Agreement, dated as of August 16, 2005, among Holdings, the
Borrower, certain Subsidiaries of the Borrower, JPMorgan Chase Bank, N.A., as
administrative agent, and the lenders party thereto (as amended through and
including the Initial Borrowing Date).


 


“Existing Letters of Credit” shall mean “Existing
Letters of Credit” as defined in the First Lien Credit Agreement.


 


“Extended Loan” shall have the meaning provided
in Section 2.01(b).


 


“Extended Notes”
shall have the meaning provided in Section 2.05(a).


 


“Federal Funds Rate” shall mean, for any
period, a fluctuating interest rate equal for each day during such period to
the weighted average of the rates on overnight Federal Funds transactions with
members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the Administrative
Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.


 


“Fees” shall mean all amounts payable pursuant
to or referred to in Section 4.01.


 


13

















 


“Final Maturity Date” shall mean April 5,
2017.


 


“Financial Officer” means, in respect of a
Person, the chief financial officer, principal accounting officer, treasurer or
controller of such Person.


 


“First Lien Agent” shall mean Morgan Stanley
Senior Funding, Inc., as administrative agent or collateral agent, as the
case may be, under the First Lien Credit Agreement or any other First Lien
Credit Document, and any successor agent or agents in such capacities.


 


“First Lien Basis”
shall mean the securing of First Lien Indebtedness on a first priority basis in
accordance with the terms of the Intercreditor Agreement.


 


“First Lien Collateral”
shall mean all property (whether real or personal) with respect to which any
security interest has been granted (or reported to be granted) to secure First
Lien Indebtedness, including, without limitation, all Collateral under, and as
defined in, the First Lien Credit Agreement. 
All First Lien Collateral has also constitute Collateral hereunder,
except as otherwise expressly permitted in accordance with Section 10.15
hereof.


 


“First Lien Credit Agreement” shall mean the
Credit Agreement, dated as of the date hereof, by and among Holdings, the
Borrower, the lenders from time to time party thereto and the First Lien Agent,
as it may be amended, supplemented or modified, from time to time in accordance
with the terms hereof and thereof.


 


“First Lien Credit
Agreement Security Documents” shall mean all Security Documents under and
as defined in the First Lien Credit Agreement.


 


“First Lien Credit Documents” shall mean the
First Lien Credit Agreement and all other “Credit Documents” (as defined in the
First Lien Credit Agreement), as the same may be amended, modified and/or
supplemented from time to time in accordance with the terms hereof and thereof.


 


“First Lien Indebtedness”
shall mean and include (w) any Indebtedness incurred pursuant to Section 11.01(i)(A) if
incurred under the First Lien Credit Agreement or otherwise pursuant to an
agreement which is secured by the First Lien Collateral on a pari passu basis
with other First Lien Indebtedness and has become subject to the Intercreditor
Agreement by way of joinder thereto, (x) all Indebtedness and other
obligations pursuant to the First Lien Credit Agreement in accordance with Section 11.01(i)(B),
(y) any Interest Rate Protection Agreements, Other Hedging Agreements or
Cash Management Agreements secured in accordance with the terms of the First
Lien Credit Documents and (z) any Permitted Refinancing Indebtedness
secured by First Lien Collateral on a First Priority Basis and incurred in
respect of Indebtedness described in preceding clause (x), or which refinanced
any Permitted Refinancing Indebtedness constituting First Lien Indebtedness
originally incurred as described in this clause (z) or a subsequent
refinancing thereof with Permitted Refinancing Indebtedness.


 


“First Lien Lead Arrangers” shall mean,
collectively, Morgan Stanley Senior Funding, Inc. and The Bank of
Tokyo-Mitsubishi UFJ, Ltd, in their capacities as Joint Lead Arrangers and
Bookrunners pursuant to the First Lien Credit Agreement.


 


14

















 


“First Lien Loans”
shall mean the “Loans” under, and as defined in, the First Lien Credit
Agreement.


 


“First Lien Secured Creditors” shall mean the “Secured
Creditors” as defined in the First Lien Credit Agreement or any equivalent term
used to describe secured parties thereunder.


 


“First Lien Term Loans”
shall mean all “Term Loans” under, and as defined in, the First Lien Credit
Agreement.


 


“Fiscal Quarter” shall mean each three fiscal month
period ending on March 31, June 30, September 30 and December 31.


 


“Fiscal Year” shall mean the twelve-month
period ending on December 31.


 


“Flood Hazard Property” means any Real Property
of a Credit Party subject to a Mortgage on which improvements are located in an
area designated by the Federal Emergency Management Agency as having special
flood or mud slide hazards.


 


“Foreign Lender” shall have the meaning
provided in Section 5.04(b).


 


“Foreign Pledge Agreements” shall have the
meaning provided in Section 10.10(h).


 


“Foreign Subsidiary” of any Person shall mean
any Subsidiary of such Person that is not a Domestic Subsidiary.


 


“GAAP” means generally accepted accounting
principles in the United States of America as set forth from time to time.


 


“GCA Collateral” shall mean all “Collateral” as
defined in the Guaranty and Collateral Agreement.


 


“Governmental Authority” means the government
of the United States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of government.


 


“Guarantee” of or by any Person (the “guarantor”)
means any obligation, contingent or otherwise, of the guarantor 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, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary


 


15






 












 


obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation or (d) as
an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course
of business.  The amount of any Guarantee
obligation of any guarantor shall be deemed to be the lower of (i) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee obligation is made and (ii) the maximum
amount for which such guarantor may be liable pursuant to the terms of the
instrument embodying such Guarantee obligation, unless such primary obligation
and the maximum amount or which such guarantor may be liable are not stated or
determinable, in which case the amount of such Guarantee obligation shall be
such guarantor’s maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.


 


“Guaranteed Creditors” shall mean and include
each of the Administrative Agent, the Collateral Agent and the Lenders.


 


“Guaranteed Obligations” shall mean the full
and prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of the principal and interest on each Note issued by, and all Loans
made to, the Borrower under this Agreement, together with all the other
obligations (including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due), indebtedness and liabilities
(including, without limitation, indemnities, fees and interest (including any
interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided for herein, whether or
not such interest is an allowed claim in any such proceeding) thereon) of the
Borrower and each other Credit Party to the Lenders, the Administrative Agent
and the Collateral Agent now existing or hereafter incurred under, arising out
of or in connection with this Agreement (or referred to in Section 4.01
hereof) and each other Bridge Loan Document to which the Borrower or such
Credit Party is a party and the due performance and compliance by the Borrower
with all the terms, conditions and agreements contained in the Bridge Loan
Agreement and in each such other Bridge Loan Document.


 


“Guaranteed Party” shall mean the Borrower and
each Subsidiary of the Borrower that is a Credit Party.


 


“Guarantor” shall mean each of Holdings and
each Subsidiary Guarantor.


 


“Guaranty” shall mean each of the Holdings
Guaranty and the Subsidiaries Guaranty.


 


“Guaranty and Collateral Agreement” shall have
the meaning provided in Section 6.10.


 


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


 


16

















 


“Holdings” shall have the meaning provided in
the first paragraph of this Agreement.


 


“Holdings Guaranty” shall mean the guaranty of
Holdings pursuant to Section 15.


 


“Immaterial Subsidiary” shall mean, as of any
date of determination, a Subsidiary (other than a Credit Party) (a) whose
consolidated total assets do not constitute more than 3% of the consolidated
total assets of Holdings (on a pro  forma basis for the most
recently ended Fiscal Year of Holdings for which audited financial statements
are available), and (b) whose consolidated gross sales do not constitute
more than 3% of the consolidated gross sales of Holdings (on a pro  forma
basis for the most recently ended Fiscal Year of Holdings for which audited
financial statements are available); provided that if at any time one or more
Immaterial Subsidiaries are subject to one or more events as described in
Sections 12(g) and/or (h), if such Immaterial Subsidiaries would fail to
meet either the test described in preceding clause (a) or (b) if all
such Immaterial Subsidiaries were a single Subsidiary (rather than separate
Subsidiaries), for this purpose treated as if each reference in preceding
clause (a) and (b) to “3%” were instead a reference to “5%”, then the
respective such Subsidiaries shall not constitute Immaterial Subsidiaries
unless and until such time as in aggregate they do not fail either of the tests
referenced in this proviso.


 


“Inactive Subsidiary” shall mean, as of any
date of determination, a Subsidiary (other than a Credit Party) (a) whose
consolidated total assets do not exceed $500,000, (b) which does not
engage in any trade or business and (c) does not own Equity Interests in
any Person other than one or more other Inactive Subsidiaries.  As of the date hereof, all Inactive
Subsidiaries that are Domestic Subsidiaries of Holdings are listed on Schedule
1.01F and, to the best of Holdings’ and the Borrower’s knowledge, all
Inactive Subsidiaries that are Domestic Subsidiaries of Target are listed on Schedule
1.01F.  At any time when a Subsidiary
which was an Inactive Subsidiary ceases to meet the tests contained above, such
Subsidiary shall no longer constitute an Inactive Subsidiary.


 


“Indebtedness” shall mean, of any Person,
without duplication, (a) all obligations of such Person for borrowed money
or with respect to deposits or advances of any kind (other than deposits or
advances in the ordinary course of business), (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding accounts payable incurred in the ordinary
course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) the principal
portion of all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) obligations
under any liquidated earn-out, (l) obligations of such Person to purchase
securities or other property arising out of or in connection with the sale of
the same securities or property or any other Off-Balance Sheet Liability and (m) the



 


17

















 


aggregate liquidation preference
of all Disqualified Equity Interests of such Person.  The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.  In the
avoidance of doubt, “Indebtedness” shall not include obligations or liabilities
under operating leases.


 


“Indemnified Person” shall have the meaning
provided in Section 14.01(a).


 


“Information Memorandum” means the Confidential
Information Memorandum dated March 29, 2010, relating to the Borrower and
the Transaction.


 


“Initial Borrowing Date” shall mean the date
occurring on or after the Effective Date on which the initial Borrowing of
Initial Loans occurs.


 


“Initial Loan” shall have the meaning provided
in Section 2.01(a).


 


“Initial Maturity Date” shall mean April 5,
2011; provided that if the Merger Closing Date does not occur on or
prior to October 15, 2010, the Initial Maturity Date shall be October 15,
2010.


 


“Initial Notes” shall
have the meaning provided in Section 2.05(a).


 


“Intercreditor
Agreement” shall mean an intercreditor agreement in the form of Exhibit I
as entered into on or prior to the Initial Borrowing Date pursuant to Section 6.17,
as same may be amended, modified, restated and/or supplemented from time to
time.


 


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


 


“Interest Determination
Date” shall mean, with respect to any Loan, the second Business Day prior
to the commencement of any Interest Period relating to such Loan.


 


“Interest Rate Protection Agreement” shall mean
any interest rate swap agreement, interest rate cap agreement, interest collar
agreement, interest rate hedging agreement or other similar agreement or
arrangement.


 


“Interest Period”
shall mean the period beginning on the Initial Borrowing Date and ended on the
last day of the first Fiscal Quarter ended thereafter, and each subsequent
period beginning on the last day of a Fiscal Quarter and ended on the last day
of the next fixed Fiscal Quarter.


 


“Inventory” shall have the meaning assigned to
such term in the Guaranty and Collateral Agreement.


 


“Joinder Agreement” shall have the meaning
provided in Section 10.10(a).


 


18

















 


“Joint Venture” means a limited-purpose
corporation, partnership, limited liability company, joint venture or other
similar legal arrangement (whether created or conducted through a separate
legal entity) (excluding a Subsidiary) now or hereafter formed or invested in
by Holdings or any of its Subsidiaries with another Person or Persons in order
to conduct a common venture or enterprise with such Person or Persons.


 


“Lead Arranger” shall mean Morgan Stanley
Senior Funding, Inc., in its capacity as Lead Arranger and Bookrunner, and
any successor thereto.


 


“Lease” shall mean any lease, sublease, or
other agreement pursuant to which a Credit Party has a Leasehold.


 


“Leased Real Property” shall mean any Real
Property that is the subject of a Lease.


 


“Leasehold Waiver
Properties” shall mean any Leased Real Property which has Collateral
located thereon or therein in excess of $10,000,000 as of the Effective Date,
as designated on Schedule 6.18 as “Leasehold Waiver Properties”.


 


“Leaseholds” of any Person shall mean all the
right, title and interest of such Person as lessee or licensee in, to and under
leases or licenses of land, improvements and/or fixtures.


 


“Lender” shall mean each financial institution
listed on Schedule 1.01A, as well as any Person that becomes a “Lender”
hereunder pursuant to Section 2.13 or 14.04(b).


 


“Lender Default” shall mean, as to any Lender, (i) the
wrongful refusal (which has not been retracted) of such Lender or the wrongful
failure of such Lender to make available its portion of any Borrowing (ii) such
Lender having been deemed insolvent or having become the subject of a
bankruptcy or insolvency proceeding or a takeover by a regulatory authority, or
(iii) such Lender having notified the Administrative Agent and/or any
Credit Party in writing (x) that it does not intend to comply with its
obligations under Section 2.01(a) in circumstances where such
non-compliance would constitute a breach of such Lender’s obligations under
such Section or (y) of the events described in preceding clause (ii).


 


“LIBO Rate” means, with respect to any Loan for any Interest Period, the greater at
any time of (a) (x) the rate per annum appearing on Page BBAM 1
on the Bloomberg Service (or on any successor or substitute page of such
service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of such
service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity of three months or (y) if
the rate referred to in clause (x) is not available at such time for any
reason, then the rate at which dollar deposits of $5,000,000 with a maturity of
three months are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days before the
beginning of such Interest Period and (b) 2.00% per annum.


 


19

















 


“Lien” means, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in, on or of 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” shall mean each Initial Loan and each
Extended Loan.


 


“Loan Proportionate
Amount” shall mean, with respect to any Net Cash Proceeds, a percentage of
such Net Cash Proceeds equal to a fraction the numerator of which is the
aggregate principal amount of Loans then outstanding and the denominator of
which is the aggregate principal amount of all Second Lien Indebtedness then
outstanding (including the Loans)  which
requires a repayment (or offer to repay) same with such Net Cash Proceeds.


 


“Margin Regulations” shall mean Regulation T,
Regulation U and Regulation X.


 


“Margin Stock” shall have the meaning provided
in Regulation U.


 


“Material Adverse Effect” means a material
adverse effect on (a) the business, assets, operations or financial
condition of Holdings and its Subsidiaries taken as a whole, (b) the
Collateral or the Administrative Agent’s Liens (on behalf of itself and the
Lenders) on the Collateral or the priority of such Liens, or (c) the
validity or enforceability of this Agreement or any of the other Bridge Loan
Documents or the rights and remedies, taken as a whole, of the Administrative
Agent, the Issuing Lenders or the Lenders hereunder or thereunder.


 


“Material Indebtedness”
means Indebtedness (other than the Loans and Letters of Credit), or obligations
in respect of one or more Interest Rate Protection Agreements or Other Hedging
Agreements, of any one or more of the Credit Parties and their Subsidiaries in
an aggregate principal amount exceeding $50,000,000 outstanding at the time of
determination.  For purposes of
determining Material Indebtedness, the “obligations” of any Credit Party or any
Subsidiary in respect of any Interest Rate Protection Agreements or Other
Hedging Agreements at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that such Credit Party or such Subsidiary
would be required to pay if such Interest Rate Protection Agreement or Other
Hedging Agreement were terminated at such time.


 


“Maturity Date”
shall mean the Initial Maturity Date or the Final Maturity Date, as the case
may be.


 


“Maximum Rate” shall have the meaning provided
in Section 14.19.


 


“Merger” shall mean the merger of Target with
and into Mergersub, with Target being the surviving corporation of such merger.


 


“Merger Agreement” shall mean that certain
Agreement and Plan of Merger, dated as of March 12, 2010, by and between
Holdings, Mergersub and Target, as amended, waived or otherwise modified from
time to time but without any modifications, waivers or amendments thereof or
any consents thereunder that are materially adverse to the Lenders (including,
without limitation, any of the foregoing that results in an increase in the
aggregate 


 


20

















 


consideration (except for
any increase to the extent consisting solely of additional shares of common
stock of Holdings) or the allowance of any additional permitted dividends) unless
consented to by the Lead Arranger.


 


“Merger Agreement Date” shall mean March 12,
2010.


 


“Merger Closing Date” shall mean the date of
the consummation of the Merger.


 


“Merger Documents” shall mean the Merger
Agreement and all other agreements and documents relating to the Merger, as the
same may be amended, modified and/or supplemented from time to time in
accordance with the terms hereof and thereof.


 


“Mergersub” shall mean Composite Merger
Corporation, a Maryland corporation and a Wholly-Owned Subsidiary of the
Borrower.


 


“Minimum Borrowing Amount” shall mean for
Initial Loans, $5,000,000 (or, if less, the remaining Total Commitment).


 


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


 


“Mortgage” means any mortgage, deed of trust or
other agreement which conveys or evidences a Lien in favor of the Collateral
Agent, for the benefit of the Collateral Agent, Administrative Agent and the
Lenders, substantially in the form of Exhibit L (with such changes
as the Collateral Agent, based on advice of counsel, believes are reasonably
desirable, including given the local law of the jurisdiction in which the
respective real property is located), on any Mortgaged Property; provided,
however, that any Mortgage encumbering a Mortgaged Property located in a
Mortgage Tax State shall expressly state that the amount secured thereby shall
be limited to either (i) 115% of the reasonably estimated fair market
value of the applicable Mortgaged Property or (ii) the allocated amount
based on the allocation formula customarily in use in the applicable state, in
Collateral Agent’s reasonable discretion.


 


“Mortgage Policy” shall mean an ALTA loan
policy of title insurance (Form 2006).


 


“Mortgage Tax State” shall mean each state that
imposes a mortgage tax, intangible tax or other similar tax (other than
immaterial amounts) on a mortgage of real property located in such state.


 


“Mortgaged Property” shall mean any Owned Real
Property of any Credit Party which is subject to a Mortgage pursuant to the
terms hereof.


 


“MS&Co.” shall mean Morgan Stanley &
Co. Incorporated.


 


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


 


“Multiemployer Plan” shall mean a multiemployer
plan as defined in Section 3(37) of ERISA.


 


21

















 


“Net Cash Proceeds” means, if in connection
with (a) an Asset Sale, the Net Sale Proceeds therefrom, (b) a
Recovery Event, the cash proceeds received net of (without duplication) (i) reasonable
costs, fees and expenses incurred and payable by Holdings or its respective
Subsidiary in connection therewith (in each case, paid to non-Affiliates), (ii) the
principal amount of Indebtedness under the First Lien Credit Agreement or any
other Indebtedness (other than any Second Lien Indebtedness) that is secured by
a senior Lien on such asset, in each case to the extent that such Indebtedness
is required to be (and is) repaid in connection with such Recovery Event, (iii) federal,
state, provincial, foreign and local Taxes and other Taxes paid or reasonably
estimated to be payable in connection with such Recovery Event or (c) an
equity issuance or the issuance or incurrence of Indebtedness, cash proceeds
received net of attorneys’ fees, investment banking fees, accountants’ fees,
underwriting discounts and commissions and other customary fees, costs,
commissions, premiums, fees and expenses incurred in connection therewith (in
each case, paid to non-Affiliates).


 


“Net Sale Proceeds” shall mean for any sale or
other disposition of assets (other than pursuant to a Recovery Event), the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from such sale or other disposition of assets, net of (i) reasonable
transaction costs (including, without limitation, any underwriting, brokerage
or other customary selling commissions, reasonable legal, advisory and other
fees and expenses (including title and recording expenses), associated
therewith and sales, VAT and transfer taxes arising therefrom), (ii)  any
reserves in accordance with GAAP against any liabilities relating to the assets
sold or otherwise disposed of, (iii) the amount of such gross cash
proceeds required to be used to permanently repay Indebtedness under the First
Lien Credit Agreement or any other Indebtedness (other than Second Lien
Indebtedness) which is secured (on a senior basis) by the respective assets
which were sold or otherwise disposed of, and (iv)  federal, state,
provincial, foreign and local Taxes and other Taxes paid or reasonably
estimated to be payable in connection with such sale or other disposition; provided,
however, that such gross proceeds shall not include any portion of such
gross cash proceeds which Holdings determines in good faith should be reserved
for post-closing adjustments (to the extent Holdings delivers to the
Administrative Agent a certificate signed by an Authorized Officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than
six months following the date of the respective asset sale), the amount (if
any) by which the reserved amount in respect of such sale or disposition
exceeds the actual post-closing adjustments paid by Holdings or any of its
Subsidiaries shall constitute Net Sale Proceeds on such date received by
Holdings and/or any of its Subsidiaries from such sale or other disposition.


 


“90% Condition” shall have the meaning provided
in the Transaction Summary.


 


“Nitrogen Servicing
Agreement” shall mean that certain Amended and Restated General and
Administrative Services Agreement Regarding Services, dated as of October 23,
2007, between Target and Terra Nitrogen GP Inc., as same may be amended,
modified or supplemented from time to time, but without giving effect to any
such amendments, modifications, supplements or waivers which, taken as a whole,
are materially adverse to the Credit Parties.


 


22

















 


“NOL Agreement” shall mean that certain Net
Operating Loss Agreement, dated August 16, 2005, by and among Holdings,
the Borrower and the Members (as defined therein).


 


“Non-Defaulting Lender” shall mean and include
each Lender other than a Defaulting Lender.


 


“Note” shall have the meaning provided in Section 2.05(a).


 


“Notes” shall have
the meaning provided in Section 2.05(a).


 


“Notice of Borrowing” shall have the meaning
provided in Section 2.03(a).


 


“Notice Office” shall mean the office of the
Administrative Agent located at 1 Pierrepont Plaza, Brooklyn, NY 11201,
Attention: Stephen Giacolone or such other office or person as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.


 


“Obligations” shall mean all amounts owing to
the Administrative Agent, the Collateral Agent or any Lender pursuant to the
terms of this Agreement or any other Bridge Loan Document (including all
interest which accrues after the commencement of any case or proceeding in
bankruptcy after the insolvency of, or for the reorganization of Holdings or
any of its Subsidiaries, whether or not allowed in such case or proceeding).


 


“Off-Balance Sheet Liability” of a Person means
(a) any repurchase obligation or liability of such Person with respect to
accounts or notes receivable sold by such Person, (b) any indebtedness,
liability or obligation under any sale and leaseback transaction which is not a
Capital Lease Obligation, or (c) any indebtedness, liability or obligation
under any so-called “synthetic lease” transaction entered into by such Person.


 


“Original Mortgaged Property” shall mean each
Mortgaged Property designated on Schedule 6.18 as an “Original Mortgaged
Property”, it being understood that each Owned Real Property of Holdings or any
of its Subsidiaries (other than Target and its Subsidiaries) which is required
to become a Credit Party and with a fair market value reasonably estimated to
be in excess of $30,000,000, other than the Original Mortgage Tax State
Properties, shall be set forth as an “Original Mortgaged Property” on said Schedule
6.18.


 


“Original Mortgage Tax State Properties” shall
mean each Owned Real Property designated on Schedule 6.18 as an “Original
Mortgage Tax State Property”, it being understood and agreed that the Owned
Real Property so designated have fair market values reasonably estimated to
exceed $30,000,000 but shall be located in the States of Florida and Oklahoma,
which are Mortgage Tax States on the Effective Date.  It is further understood and agreed that such
properties shall only be required to become Mortgaged Properties, in accordance
with Section 10.10(c), if the Qualified Equity Trigger Date does not occur
on or prior to September 30, 2010.


 


“Other Hedging Agreements” shall mean any
foreign exchange contracts, currency swap agreements, commodity agreements or
other similar arrangements, or arrangements designed to protect against
fluctuations in currency values or commodity prices.


 


23

















 


“Other Lender” shall have the meaning provided
in Section 10.15(a).


 


“Other Lender Notice” shall have the meaning
provided in Section 10.15(a).


 


“Owned Real Property” shall mean any Real
Property that is owned in fee simple by a Credit Party.


 


“Patriot Act” shall mean the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended.


 


“Payment Office” shall mean the office of the
Administrative Agent located at 1 Pierrepont Plaza, Brooklyn, NY 11201,
Attention: Stephen Giacolone or such other office as the Administrative Agent
may hereafter designate in writing as such to the other parties hereto.


 


“PBGC” shall mean the Pension Benefit Guaranty
Corporation established pursuant to Section 4002 of ERISA, or any
successor thereto.


 


“Permitted Encumbrances” means:


 


(a)           Liens
imposed by law for Taxes, assessments or governmental charges or levies that
are not yet due and payable or are being contested in compliance with Section 10.04;


 


(b)           landlords’,
carriers’, warehousemen’s, mechanics’, materialmen’s, suppliers’, processors’,
repairmen’s and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than sixty
(60) days or are being contested in compliance with Section 10.04;


 


(c)           pledges
and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security or similar laws
or regulations (other than Liens arising under ERISA);


 


(d)           utility
deposits and deposits made to secure the performance of bids, tenders,
contracts, leases, statutory obligations, surety and appeal bonds (or deposits
made to otherwise secure an appeal, stay or discharge in the course of legal
proceeding), performance or completion bonds and other obligations of a like
nature or other cash deposits required to be made, in each case in the ordinary
course of business;


 


(e)           judgment
liens and judicial attachment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Section 12;


 


(f)            recorded
or unrecorded easements, rights-of-way, covenants, conditions, restrictions,
leases, licenses, reservations, subdivisions, and similar encumbrances of any
kind or rights of others for rights-of-way, utilities and other similar
purposes, or zoning, building, subdivision, environmental regulations, or other
restrictions as to the use of owned or leased real property and minor defects
and irregularities in title on real property that do not secure any monetary
obligations and do not materially affect the ability of the applicable Credit
Party or Subsidiary to operate the affected property in the ordinary conduct of
business;


 


24

















 


(g)           any
exceptions to title set forth in any Mortgage Policy delivered pursuant to Section 6.18(ii),
all of which exceptions shall be acceptable to the Administrative Agent in its
reasonable discretion;


 


(h)           any
matters disclosed on any survey, aerial survey, ExpressMap or equivalent
photographic depiction delivered pursuant to Section 6.18(iv), all of
which matters shall be acceptable to the Administrative Agent in its reasonable
discretion;


 


(i)            any
interest or title, and any encumbrances thereon, of a lessor or sublessor under
any Lease entered into by a Credit Party or Subsidiary as a lessee or
sublessee;


 


(j)            Liens
described in Section 11.02(ii); and


 


(k)           Liens
granted pursuant to any First Lien Credit Document or in respect of Permitted
Refinancing Indebtedness incurred in respect thereof (or in respect of a
previous issue of such Permitted Refinancing Indebtedness) (all of which shall
be subject to the terms and conditions of the Intercreditor Agreement).


 


“Permitted Investments” means:


 


(a)      investments
in direct obligations of the United States of America or Canada or of any
agency or instrumentality thereof whose obligations constitute full faith and
credit obligations of the United States of America or Canada, provided that any
such obligations shall mature within one year of the date of issuance thereof;


 


(b)      investments
in commercial paper rated at least Aa2 by Moody’s and at least A by S&P
maturing within one year of the date of issuance thereof;


 


(c)      investments
in certificates of deposit, bankers’ acceptances and time deposits issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any United States or Canadian commercial bank or any Lender (or
affiliate thereof) having capital and surplus of not less than $100,000,000
which have a maturity of one year or less or, in the case of bankers’
acceptances endorsed by any Lender (or affiliate thereof) or other such
commercial bank, maturing within six months of the date of acceptance;


 


(d)      investments
in repurchase obligations, including whole mortgage loans, with a term of not
more than 30 days for underlying securities of the types described in
subsection (a) above entered into with any bank meeting the qualifications
specified in subsection (c) above, provided all such agreements require
physical delivery of the securities securing such repurchase agreement, except
those delivered through the Federal Reserve Book Entry System;


 


(e)      investments
in Dutch Auction reset securities with a reset date no greater than 180 days
rated at least Aa by Moody’s and at least A by S&P;


 


(f)       marketable
general obligations of a state or municipality of the United States or a
province or municipality of Canada, or any political subdivision of any of the
foregoing, unconditionally secured by the full faith and credit of such state,
municipality,


 


25
















 


province or political subdivision and marketable corporate debt
securities having an A credit rating or better by S&P or Moody’s Investors
Service or, in the case of such obligations of a province or a political
subdivision of Canada, an equivalent rating from Dominion Bond Rating Service;
and


 


(g)      investments
in money market funds that invest 95% of their assets in investments of the
type described in the immediately preceding subsections (a), (b), (c), (d), (e) and
(f) above.


 


“Permitted Liens” shall have the meaning
provided in Section 11.02.


 


“Permitted Notes” shall mean Permitted Second
Lien Notes or Permitted Unsecured Notes.


 


“Permitted Refinancing Indebtedness” shall
mean, with respect to Holdings, the Borrower or any of their respective
Subsidiaries, any refinancing, replacement, refunding, renewal or extension of
any Indebtedness, in whole or in part, of such Person from time to time; provided
that (a) the principal amount (or accreted value, if applicable) thereof
does not, or in the case of any revolving facility, the commitments thereunder
do not, exceed the principal amount (or accreted value, if applicable) or in
the case of any revolving facility, the commitments thereunder (so long as such
commitments could have been fully drawn with no violation of this Agreement),
of the Indebtedness so modified, refinanced, replaced, refunded, renewed or
extended (the “Refinanced Debt”) except by an amount equal to unpaid
accrued interest and premium thereon plus other reasonable amounts paid, and
fees and expenses reasonably incurred, in connection with such modification,
refinancing, replacement, refunding, renewal or extension and by an amount
equal to any existing commitments unutilized thereunder (so long as such
commitments could have been fully drawn with no violation of this Agreement), (b) the
Indebtedness resulting from such refinancing, replacement, refunding, renewal
or extension (the “Refinancing Debt”) has a final maturity date the same
as or later than the final maturity date of, and, other than in the case of a
revolving facility, has a Weighted Average Life to Maturity equal to or greater
than the Weighted Average Life to Maturity of, the Refinanced Debt, (c) to
the extent such Refinanced Debt is subordinated in right of payment to the
Obligations, such Refinancing Debt is subordinated in right of payment to the
Obligations on terms, when taken as a whole, in all material respects at least
as favorable to the Lenders as those contained in the documentation governing
the Refinanced Debt, (d) if the Refinanced Debt is secured, the
Refinancing Debt shall be unsecured or secured only by assets (including the
same after-acquired assets) that secured (or are required to secure) such
Refinanced Debt; provided that (x) if the Refinanced Debt consists
of Indebtedness described in Section 11.01(i)(B) or 11.01(ii) or
Refinancing Debt previously incurred in respect thereof (or in respect of any
Refinancing Debt which has successively refinanced Indebtedness originally
incurred under Section 11.01(i)(B) or 11.01(ii)), such Refinancing
Debt may be secured by the First Lien Collateral (but only if the Refinanced
Debt was so secured) on a First Lien Basis (if the Refinanced Debt was so
secured) or by the Collateral on a Second Lien Basis (if the Refinanced Debt was
secured on either a First Lien Basis or Second Lien Basis), and in each such
case the respective Refinancing Debt must be subject to the terms of the
Intercreditor Agreement (whether as First Lien Indebtedness or Second Lien
Indebtedness) pursuant to arrangements (including a joinder agreement)
reasonably satisfactory to the Administrative 
Agent and may be secured by (and only by) any First Lien 


 


26

















 


Collateral or Collateral,
as the case may be, on the terms provided in the Intercreditor Agreement and (y) if
the Refinanced Debt consists of Indebtedness described in Section 11.01(ii) or
Refinancing Debt previously incurred in respect thereof (or in respect of any
Refinancing Debt which has successively refinanced Indebtedness originally
incurred under Section 11.01(ii)) and is to be secured, such Refinancing
Debt may be secured by the Collateral (but only if the Refinanced Debt was so
secured) on a Second Lien Basis (if the Refinanced Debt was secured on a Second
Lien Basis) and in each case the respective Refinancing Debt must be subject to
the terms of the Intercreditor Agreement pursuant to arrangements (including a
joinder agreement) reasonably satisfactory to the Administrative Agent and may
be secured by (and only by) any Collateral which also secures the Obligations
on the terms provided for Second Lien Indebtedness in the Intercreditor
Agreement, (f) the terms and conditions (including, if applicable, as to
collateral, covenants and events of default but excluding as to interest rate,
redemption premium, and other pricing provisions) of any such Refinancing Debt,
taken as a whole, are not materially less favorable to the Credit Parties or
the Lenders than the terms and conditions of the Refinanced Debt and (g) neither
the direct obligors nor the guarantors of any Permitted Refinancing
Indebtedness may be different (except in each case if less extensive; provided
that after-acquired or created Subsidiaries, and Subsidiaries that cease to
qualify for exceptions contained in such Refinanced Debt that entitled such
Subsidiaries to not become guarantors thereunder, may be required to become
guarantors on substantially the same terms as applied to the respective
Refinanced Debt) than those which apply to the relevant Refinanced
Debt.


 


“Permitted Sale and Leaseback Transaction”
means an arrangement entered into by the Borrower or any of its Subsidiaries
with any Person providing for the Borrower or such Subsidiary to lease or rent
property, plant and equipment that the Borrower or such Subsidiary has or will
sell or otherwise transfer to such Person, provided that the aggregate value of
property, plant and equipment sold or otherwise transferred pursuant to such
arrangements shall not exceed $20,000,000 during any Fiscal Year.


 


“Permitted Second Lien Notes” shall mean
secured Indebtedness incurred by the Borrower or Holdings and issued under an
indenture or similar governing instrument in a registered public offering or a Rule 144A
or other private placement transaction or other transaction not subject to
registration under the Securities Act in the form of one or more series of second lien
secured notes; provided  that
(i) such Indebtedness may only be secured by Collateral on a Second Lien
Basis, and shall not be secured by any property or assets of Holdings, the
Borrower or any of their respective Subsidiaries other than the Collateral; (ii) such
Indebtedness does not mature or have scheduled amortization or other required
payments of principal prior to the Final Maturity Date, (iii) the security
agreements relating to such Indebtedness are substantially the same as the
Security Documents (with such differences as are reasonably satisfactory to the
Administrative Agent), (iv) such Indebtedness is not guaranteed by any
Person other than the Credit Parties, (v) such Indebtedness and the
indenture or other governing instrument applicable thereto does not contain
covenants, events of default, or other terms and conditions that, when taken as
a whole, are materially more restrictive to the Credit Parties than the terms
of this Agreement (it being understood that the limitations on indebtedness
covenant contained therein may take into account permanent repayments of
Indebtedness which have occurred after the Effective Date), and (vi) the
holders of such Indebtedness pursuant to the 


 


27

















 


indenture or other
instrument governing such Indebtedness (or a trustee, agent or other
representative on their behalf) shall have become party to the Intercreditor
Agreement.


 


“Permitted Unsecured Notes” shall mean senior
unsecured or unsecured subordinated Indebtedness incurred by the Borrower or
Holdings and issued under an indenture or similar governing instrument in a
registered public offering or a Rule 144A or other private placement
transaction or other transaction not subject to registration under the
Securities Act in the form of one or more series of senior unsecured or
unsecured subordinated notes; provided that (i) such Indebtedness
does not mature or have scheduled amortization or other required payments of
principal prior to the date that is one year after the Final Maturity Date, (ii) such
Indebtedness is not guaranteed by any Person other than the Credit Parties, (iii) such
Indebtedness and the indenture or other governing instrument applicable thereto
does not contain covenants, events of default, or other terms and conditions
that, when taken as a whole, are materially more restrictive to the Credit
Parties than the terms of this Agreement (it being understood that the
limitations on indebtedness covenant contained therein may take into account
permanent repayments of Indebtedness which have occurred after the Effective
Date) and (iv) such Indebtedness is not secured by any Lien on any
property or assets of Holdings, the Borrower or any of their respective
Subsidiaries.


 


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


 


“Phosphogypsum Stack Liability” means the
present value of the estimated cost of closing phosphogypsum stacks based upon
formal closure plans for closure, wastewater management, long-term maintenance
and monitoring, as reported in Holdings’s financial statements in accordance
with GAAP.


 


“Plan” means 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 or Section 302
of ERISA, and in respect of which the Borrower or any ERISA Affiliate 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.


 


“Platform” shall have the meaning provided in Section 10.01.


 


“Pooling Agreement” means that certain Spare
Parts Pooling Agreement, dated as of August 15, 1968, by and among
Commercial Solvents Corporation, First Nitrogen Corporation, the Borrower
(formerly known as Central Farmers Fertilizer Company), Miscoa and Triad
Chemical, as amended, restated, supplemented or otherwise modified from time to
time, but without giving effect to any amendments, restatements, supplements or
other modifications which, taken as a whole, are materially adverse to the
Credit Parties.


 


“Preferred Equity”, as applied to the Equity
Interests of any Person, means Equity Interests of such Person (other than
common Equity Interests of such Person) of any class or classes (however
designed) that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Equity Interests of any
other class of such Person.


 


28

















 


“Prior Merger Agreement” shall mean the Agreement
and Plan of Merger, dated as of February 12, 2010, by and among Yara
International ASA, a Norwegian public company limited by shares, Yukon Merger
Sub, Inc., a Maryland corporation, and Target.


 


“Pro Forma Basis” shall mean, in connection
with any calculation of compliance with any financial covenant or financial
term, the calculation thereof after giving effect on a pro  forma
basis to any Acquisition (including the Terra Acquisition) and any Significant
Asset Sale consummated after the first day of the relevant Test Period and on
or prior to the last day of the relevant Test Period, as if same had occurred
on the first day of the respective Test Period, in each case with such pro forma
adjustments as would be permitted to be reflected in pro forma
financial information complying with the requirements of Article 11 of
Regulation S-X under the Securities Act (and the interpretations of the SEC
thereunder) (collectively,
the “S-X Adjustments”).


 


“Projections” has the meaning assigned to such
term in Section 10.01(e).


 


“Public Lender” shall have the meaning provided
in Section 10.01.


 


“Qualified Equity Trigger Date” shall mean the
first date occurring on or after the Initial Borrowing Date upon which Holdings
shall have issued its Equity Interests (excluding any issuances of Disqualified
Equity Interests, all Equity Interests issued as part of the consideration for
the Transaction and any issuances of Equity Interests before the Initial
Borrowing Date), whether pursuant to one or more offerings, in return for cash
consideration where the gross cash proceeds received by Holdings therefrom
aggregate at least $750,000,000 and where all Net Cash Proceeds therefrom have
actually been applied to repay outstanding principal of Loans (or, if issued
prior to the Merger Closing Date, to reduce on a dollar-for-dollar basis the
Total Commitment); provided that if the Qualified Equity Trigger Date does not
occur on or prior to September 30, 2010 then it shall not thereafter
occur.


 


“Qualified Preferred Stock” shall mean any
Preferred Equity of Holdings so long as the terms of any such Preferred Equity (v) do
not contain any mandatory put, redemption, repayment, sinking fund or other
similar provision prior to the first anniversary of the then latest Maturity
Date (in each case determined without regard to the provisos in the component
defined terms used in such definition), (w) do not require the cash
payment of dividends or distributions that would otherwise be prohibited by the
terms of this Agreement or any other agreement or contract of Holdings or any
of its Subsidiaries, (x) do not contain any covenants (other than periodic
reporting requirements), (y) do not grant the holders thereof any voting
rights except for (I) voting rights required to be granted to such holders
under applicable law and (II) limited customary voting rights on
fundamental matters such as mergers, consolidations, sales of all or
substantially all of the assets of Holdings, or liquidations involving
Holdings, and (z) are otherwise reasonably satisfactory to the
Administrative Agent.


 


“Quarterly Payment Date” shall mean the last
Business Day of each March, June, September and December occurring
after the Initial Borrowing Date.


 


“RCRA” shall mean the Resource Conservation and
Recovery Act.


 


29

















 


“Real Property” of any Person shall mean all
the right, title and interest of such Person in and to land, improvements and
fixtures, including Leaseholds.


 


“Recovery Event” shall mean the receipt by
Holdings or any of its Subsidiaries of any cash insurance proceeds or
condemnation awards payable (i) by reason of thief, loss, physical
destruction, damage, taking or any similar event with respect to any property
or assets of Holdings or any of its Subsidiaries and/or (ii) under any
policy of casualty insurance; provided that a Recovery Event shall not
include any receipt (for a single event or series of related events) of less
than $10,000,000.


 


“Refinanced Debt” shall have the meaning
provided in the definition of Permitted Refinancing Indebtedness.


 


“Refinancing” shall mean the Borrower
Refinancing and the Target Refinancing.


 


“Refinancing Debt” shall have the meaning
provided in the definition of Permitted Refinancing Indebtedness.


 


“Refinancing Documents” shall mean all pay-off
letters, guaranty releases, Lien releases (including, without limitation, UCC
termination statements) and other documents and agreements entered into in
connection with the payoff of existing indebtedness pursuant to the Refinancing
and the termination of the agreements relating thereto and the Liens securing
the same.


 


“Register” shall have the meaning provided in Section 14.15.


 


“Registration Rights Agreement” shall have the
meaning provided in Section 10.15(c).


 


“Regulation D” shall mean Regulation D of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof establishing reserve
requirements.


 


“Regulation T” shall mean Regulation T of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.


 


“Regulation U” shall mean Regulation U of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.


 


“Regulation X” shall mean Regulation X of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof.


 


“Replaced Lender” shall have the meaning
provided in Section 2.13.


 


“Replacement Lender” shall have the meaning
provided in Section 2.13.


 


30

















 


“Requesting Bridge
Lenders” at any time shall mean Lenders holding at least $50,000,000
aggregate principal amount of Initial Loans or Extended Loans.


 


“Requesting Bridge
Lenders Exchange Request” shall have the meaning provided in Section 10.15(a).


 


“Required Lenders” shall mean, at any time,
Non-Defaulting Lenders the sum of whose outstanding Commitments at such time
and outstanding principal of Loans at such time represents at least a majority
of the sum of all outstanding Loans and Commitments of Non-Defaulting Lenders.


 


“Responsible Officer” means, with respect to
any Person, the chief executive officer, president, principal accounting
officer, chief financial officer, chief internal general counsel, treasurer or
controller of such Person.


 


“Restricted” shall
mean, when referring to cash or Permitted Investments of Holdings or any of its
Subsidiaries, that such cash or Permitted Investments (i) appears (or
would be required to appear) as “restricted” on a consolidated balance sheet of
Holdings or of any such Subsidiary (unless such appearance is related to the
First Lien Credit Documents or Liens created thereunder or Liens securing
Second Lien Indebtedness on a Second Lien Basis), (ii) are subject to any
Lien in favor of any Person other than (x) Liens described in clauses
(xii) and (xix) of Section 11.02 or in clauses (a) or (e) of the
definition of Permitted Encumbrances (in each case so long as no consensual
Lien has been created with respect to such cash or Permitted Investments) and (y) Liens
securing First Lien Indebtedness and Second Lien Indebtedness incurred as
permitted hereunder and subject to the terms of the Intercreditor Agreement or (iii) are
subject to binding contractual or legal obligations that result in such cash or
Permitted Investments being not otherwise generally available for use by
Holdings or such Subsidiary.


 


“Restricted Payment” means any dividend or other
distribution (whether in cash, securities or other property) with respect to
any Equity Interests in any Credit Party or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such Equity Interests in any
Credit Party or any Subsidiary or any option, warrant or other right to acquire
any such Equity Interests in any Credit Party or any Subsidiary.


 


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


 


“S-X Adjustments” shall have the meaning
provided in the definition of Pro  Forma Basis.


 


“SEC” shall have the meaning provided in Section 6.14.


 


“Second Lien Basis”
shall mean the securing of Second Lien Indebtedness on a junior and
subordinated basis to the securing of First Lien Indebtedness, in accordance
with the terms of the Intercreditor Agreement.


 


31

















 


“Second Lien
Indebtedness” shall mean and include (x) the Loans and (y) any
Permitted Refinancing Indebtedness secured by Collateral on a Second Lien Basis
and incurred in respect of Indebtedness described in preceding clause (x) (or
in respect of a previous issue of Permitted Refinancing Indebtedness originally
incurred in respect thereof), in each case so long as the respective
Indebtedness is provided to be secured on a Second Lien Basis.


 


“Section 5.04(b)(ii) Certificate”
shall have the meaning provided in Section 5.04(b)(ii).


 


“Section 11.04(viii) Investments”
shall have the meaning provided in Section 11.04(viii).


 


“Secured Creditors” shall have the meaning
assigned that term in the respective Security Documents.


 


“Secured Obligations”
shall mean all Obligations and all other Secured Obligations under, and as
defined in, the Security Documents.


 


“Securities” shall have the meaning provided in
Section 10.14.


 


“Securities Accounts”
shall have the meaning provided in the Guaranty and Collateral Agreement.


 


“Securities Act” shall mean the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder.


 


“Securities Offering” shall have the meaning
provided in Section 10.14.


 


“Security Document” shall mean and include each
of the Guaranty and Collateral Agreement, the Foreign Pledge Agreements (if
any), each Mortgage and, after the execution and delivery thereof, each
Additional Security Document and any other documents granting a Lien upon the
assets or property of a Credit Party as security for payment of the
Obligations.


 


“Shares” has the meaning set forth in the
Transaction Summary.


 


“Significant Asset
Sale” shall mean each Asset Sale where the gross consideration received
therefor by Holdings and its respective Subsidiaries (taking the Net Sale
Proceeds therefrom plus the fair market value (as reasonably determined by the
Borrower) of any non-cash consideration received) equals or exceeds
$20,000,000.


 


“Specified
Representations” shall have the meaning provided in Section 6.02.


 


“Spread” shall mean 8.00%; provided that
if the Loans are not repaid in full within 30 days following the Initial
Borrowing Date, the Spread otherwise in effect will increase by 1.00% on the
first day of the immediately succeeding 30 day period and shall thereafter
increase by an additional 1.00% at the beginning of each 30 day period
thereafter.


 


32

















 


“Statutory Reserve Adjustment” means a fraction
(expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Federal Reserve Board to
which the Administrative Agent is subject with respect to eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Federal Reserve Board).  Such reserve
percentages will include those imposed pursuant to such Regulation D.  Loans will be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Adjustment will be
adjusted automatically on and as of the effective date of any change in any
applicable reserve percentage.


 


“Stock Certificates” means Collateral
consisting of Stock Certificates representing capital stock of the Target and
its subsidiaries or Holdings and its Subsidiaries required as Collateral
pursuant to the Security Documents.


 


“Subsidiaries Guaranty” shall mean the guaranty
of the Subsidiary Guarantors pursuant to Article II of the Guaranty and
Collateral Agreement.


 


“Subsidiary” shall mean, as to any Person, (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person and/or
one or more Subsidiaries of such Person and (ii) any partnership, limited
liability company, association, joint venture or other entity in which such
Person and/or one or more Subsidiaries of such Person has more than a 50% of
the total voting power of the equity interests therein at the time.  Unless otherwise qualified, all references to
a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a
Subsidiary or Subsidiaries of Holdings; provided, however, that
each Excluded Subsidiary shall not be considered a Subsidiary for purposes of
this Agreement, except that each Excluded Subsidiary shall be considered a
Subsidiary for purposes of calculating the Interest Coverage Ratio, the Total
Leverage Ratio and Excess Cash Flow and for purposes of the accounting and
financial terms used in connection with making such calculations.


 


“Subsidiary Guarantor” shall mean each
Wholly-Owned Domestic Subsidiary of Holdings (other than the Borrower and, for
the avoidance of doubt, Excluded Subsidiaries, Inactive Subsidiaries and Agreed
Non-Guarantor Subsidiaries) (in each case, whether existing on the Initial
Borrowing Date or established, created or acquired after the Initial Borrowing
Date) which has executed the Guaranty and Collateral Agreement or has become a
party thereto by executing a joinder as required pursuant to Section 10.10,
unless and until such time as the respective Subsidiary is released from all of
its obligations under the Subsidiaries Guaranty in accordance with the terms
and provisions of the Guaranty and Collateral Agreement.


 


“Suspension Notice” shall have the meaning
provided in Section 10.15(e).


 


“Target” shall mean Terra Industries Inc., a
Maryland corporation.


 


33

















 


“Target Existing Notes” shall mean the 7.75%
senior notes of Target Sub due 2019.


 


“Target Existing Notes Indenture” shall have
the meaning provided in Section 10.13(b).


 


“Target Mortgaged Property” shall mean each
Owned Real Property of Target or any of its Subsidiaries designated as a “Target
Mortgaged Property” on Schedule 6.18.


 


“Target Notes Blocked
Amount” shall mean an amount equal to (x) the sum of the aggregate
principal amount of outstanding Target Existing Notes and the premiums which
would be payable thereon at such time based on the assumption that the
aggregate premiums payable for all Target Existing Notes shall equal
$145,000,000 less (y) $250,000,000.


 


“Target Refinancing” shall have the meaning
provided in Section 10.13(b).


 


“Target Sub” shall mean Terra Capital Inc., a
Delaware corporation and wholly-owned subsidiary of Target.


 


“Taxes” shall have the meaning provided in Section 5.04(a).


 


“Term Loan” shall mean the “Term Loan” as
defined in the First Lien Credit Agreement.


 


“Term Loan Blocked Amount” shall mean, at any
time of determination, the lesser of (x) the Blocked Amount at such time
and (y) the  total unfunded Term
Loan Commitments (as defined in the First Lien Credit Agreement) less
$100,000,000.


 


“Terra Acquisition” has the meaning set forth
in the Transaction Summary.


 


“Terra Canada”
shall mean Terra International (Canada) Inc., a corporation organized under the
laws of Ontario, Canada.


 


“Terra Capital”
shall mean Terra Capital, Inc., a Delaware corporation.


 


“Terra Express”
shall mean Terra Express, Inc. a Delaware corporation.


 


“Terra Real Estate”
shall mean Terra Real Estate Development Corporation an Iowa corporation.


 


“Terra Nitrogen” shall mean Terra Nitrogen
Limited Partnership, a Delaware limited partnership.


 


“Test Period” shall mean each period of four
consecutive Fiscal Quarters of Holdings then last ended, in each case taken as
one accounting period.


 


“Title Insurance Company” shall mean First
American Title Insurance Company and its affiliated companies or such other
title insurance or abstract company as shall be selected by the Credit Parties
and reasonably approved by the Collateral Agent.


 


34

















 


“TNCLP” shall mean Terra Nitrogen Company,
L.P., a Delaware limited partnership.


 


“Top-Off Purchases” has the meaning set forth
in the Transaction Summary.


 


“Total Commitment” shall mean, at any time, the
sum of the Commitments of each of the Lenders at such time.


 


“Total Leverage Ratio” shall mean, on any date
of determination, the ratio of (x) Consolidated Indebtedness on such date
to (y) Consolidated EBITDA for the Test Period most recently ended on or
prior to such date; provided that for purposes of any calculation of the
Total Leverage Ratio pursuant to this Agreement, Consolidated EBITDA shall be
determined on a Pro  Forma Basis in accordance with the definition
of “Pro  Forma Basis” contained herein.


 


“Total Yield Cap”
means, as at any date of a Securities Offering pursuant to a Demand Notice, a
rate equal to the sum of (x) 12.50% plus (y) the number of basis
points per annum, if any, but not to exceed 100 basis points, by which the
all-in yield to worst implied by the opening bid level of the Merrill Lynch US
High Yield Master II Index (or its on-the-run successor) has increased between March 10,
2010 and the respective date of the consummation of a Securities Offering
pursuant to a Demand Notice (for purposes of determining such implied spread,
using the OID equivalent applicable to such index (or its successor) to equate
to an interest rate spread in a manner satisfactory to the Lead Arranger), plus
(z) 100 basis points if Holdings shall not have received a corporate
rating of at least BB- from S&P and a corporate family rating of at least
Ba3 from Moody’s, in each case with at least stable outlook.


 


“Transaction” shall mean, collectively, (i) the
consummation of the Exchange Offer and the other transactions contemplated by
the Exchange Offer Documents, (ii) the consummation of one or more Top-Off
Purchases as contemplated by the Transaction Summary, (iii) the
consummation of the Merger, (iv) the consummation of the Refinancing, (v) the
execution, delivery and performance by each Credit Party of the First Lien
Credit Documents to which it is a party, and the extensions thereunder and use
of proceeds thereof, (vi) the incurrence of Indebtedness  permitted pursuant to Section 11.01(ii) and
the use of the proceeds thereof, and (vii) the payment of all fees and
expenses in connection with the foregoing, with the foregoing transactions to
be consummated substantially in accordance with the Transaction Summary.


 


“Transaction Summary” shall mean the
transaction summary attached hereto as Schedule 1.01B.


 


“UCC” shall mean the Uniform Commercial Code,
as in effect from time to time, of the State of New York; provided that, if
perfection or the effect of perfection or non-perfection or the priority of the
security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, “UCC” means
the Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions hereof relating to such perfection,
effect of perfection or non-perfection or priority.


 


35
















 


“UCC Filing Collateral” means Collateral
consisting solely of assets of the Credit Parties for which a security interest
can be perfected by filing a Uniform Commercial Code financing statement.


 


“United States” and “U.S.” shall each
mean the United States of America.


 


“Unrestricted” shall mean, when referring to
cash or Permitted Investments, that same are not Restricted.


 


“Weighted Average Life to Maturity” shall mean,
when applied to any Indebtedness or Preferred Equity, as the case may be, at
any date, the quotient obtained by dividing (a) the sum of the products of
the number of years from the date of determination to the date of each
successive scheduled principal payment of such Indebtedness or redemption or
similar payment with respect to such Preferred Equity multiplied by the amount
of such payment; by (b) the sum of all such payments.


 


“Wholly-Owned Domestic Subsidiary” shall mean,
as to any Person, any Wholly-Owned Subsidiary of such Person which is a
Domestic Subsidiary.


 


“Wholly-Owned Subsidiary” shall mean, as to any
Person, any Subsidiary of such Person which is (i) a corporation 100% of
whose capital stock is at the time owned by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person or (ii) a partnership, limited
liability company, association, joint venture or other entity in which such
Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100%
equity interest at such time (other than, in the case of a Foreign Subsidiary
of the Borrower with respect to the preceding clauses (i) and (ii),
director’s qualifying shares and/or other nominal amount of shares required to
be held by Persons other than the Borrower and its Subsidiaries under
applicable law).


 


“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.


 


“Woodward Plant
Expansion” shall mean the planned expenditures as of the Initial Borrowing
Date with respect to the expansion and upgrade of UAN capacity at the Woodward,
Oklahoma nitrogen manufacturing facility owned by a Subsidiary of Target.


 


1.02.                       Other Definitional Provisions.  (a) 
Unless otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in the other Bridge Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto.


 


(b)                 As used herein and in the other Bridge Loan Documents,
and any certificate or other document made or delivered pursuant hereto or
thereto, (i) accounting terms not defined in Section 1.01 shall have
the respective meanings given to them under GAAP, (ii) the words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”, (iii) the word “incur” shall be construed to mean incur,
create, issue, assume or become liable in respect of (and the words “incurred”
and “incurrence” shall have correlative meanings), (iv) unless the context
otherwise requires, the words “asset” and 


 


36

















 


“property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties,
including cash, Equity Interests, securities, revenues, accounts, leasehold
interests and contract rights, (v) the word “will” shall be construed to
have the same meaning and effect as the word “shall”, and (vi) unless the
context otherwise requires, any reference herein (A) to any Person shall
be construed to include such Person’s successors and assigns and (B) to
Holdings, the Borrower or any other Credit Party shall be construed to include
Holdings, the Borrower or such Credit Party as debtor and debtor-in-possession
and any receiver or trustee for Holdings, the Borrower or any other Credit
Party, as the case may be, in any insolvency or liquidation proceeding.


 


(c)                  Any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein)..


 


(d)                 The words “hereof”, “herein” and “hereunder” and words
of similar import, when used in this Agreement, shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.


 


SECTION 2.                                Amount and Terms of Credit.


 


2.01.                       The Commitments.  (a) 
Subject to and upon the terms and conditions set forth herein, each Lender with
a Commitment severally agrees to make, at par and any time and from time to
time on or after the Initial Borrowing Date and on or prior to the Merger
Closing Date, a loan or loans (each, an “Initial Loan” and,
collectively, the “Initial Loans”) to the Borrower, which Initial Loans (i) shall
be denominated in Dollars and (ii) shall not be incurred on any date occurring
prior to the Merger Closing Date if, after giving effect to the making of the
respective Initial Loans and the related reductions to the Total Commitment
pursuant to Section 4.03(b)(x), the Bridge Loan Blocked Amount would
exceed the then remaining Total Commitment.


 


(b)                 Each Lender agrees that, if the Initial Loans have not
been repaid in full prior to the Initial Maturity Date, on such Initial
Maturity Date the then outstanding principal amount of each of its Initial
Loans shall be automatically converted into an extended loan to the Borrower
(each, an “Extended Loan” and, collectively, the “Extended Loans”)
in an aggregate principal amount equal to the then outstanding principal amount
of such Initial Loan or Initial Loans; provided that the extension as
contemplated in this clause (b) shall not occur and all Initial Loans
shall be required to be paid in full on the Initial Maturity Date, if (i) there
then exists any Default or Event of Default under Section 12(h) or
12(i), (ii) there exists at such time any Event of Default hereunder or
the maturity of the Initial Loans has theretofore been accelerated as a result
of the occurrence of one or more Events of Default or (iii) the Merger
Closing Date did not occur on or prior to October 15, 2010.  It is understood and agreed that Loans may
also, at the option of the Lenders as provided in Section 10.15, be
required to be Exchanged for Exchange Notes in accordance with the requirements
of Section 10.15.  All Extended
Loans and Exchange Notes shall be denominated in Dollars.


 


37

















 


(c)                  Once repaid, Loans incurred hereunder may not be
reborrowed.


 


2.02.                       Minimum Amount of Each Borrowing. 
The aggregate principal amount of each Borrowing of Loans shall not be
less than the Minimum Borrowing Amount. 
More than one Borrowing may occur on the same date, but at no time shall
there be outstanding more than 10 Borrowings.


 


2.03.                       Notice of Borrowing.  (a)  Whenever
the Borrower desires to incur Initial Loans hereunder, the Borrower shall give
the Administrative Agent at the Notice Office at least three Business Days’
(or, in the case of the Initial Borrowing Date, same Business Day’s) prior
notice of each Initial Loan to be incurred hereunder, provided that any
such notice shall be deemed to have been given on a certain day only if given
before 11:00 A.M. (New York City time) on such day.  Each such notice (each, a “Notice of
Borrowing”), except as otherwise expressly provided in Section 2.10,
shall be irrevocable and shall be in writing, or by telephone promptly
confirmed in writing, in the form of Exhibit A or another form
acceptable to the Administrative Agent, appropriately completed to
specify:  (i) the aggregate
principal amount of the Initial Loans to be incurred pursuant to such
Borrowing, (ii) the date of such Borrowing (which shall be a Business
Day), and (iii) in the case of a Borrowing of Initial Loans prior to the
Merger Closing Date, detailed calculations of the Blocked Amount (with a
breakdown to show the B-1 Blocked Amount, the B-2 Blocked Amount and the Term
Loan Blocked Amount).  The Administrative
Agent shall promptly give each Lender notice of such proposed Borrowing, of
such Lender’s proportionate share thereof and of the other matters required by
the immediately preceding sentence to be specified in the Notice of Borrowing.


 


(b)                 [Intentionally Omitted].


 


(c)                  Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice of any Borrowing or
prepayment of Loans, the Administrative Agent may act without liability upon
the basis of telephonic notice of such Borrowing or prepayment, as the case may
be, believed by the Administrative Agent in good faith to be from an Authorized
Officer of the Borrower, prior to receipt of written confirmation.  In each such case, the Borrower hereby waives
the right to dispute the Administrative Agent’s record of the terms of such
telephonic notice of such Borrowing or prepayment of Loans, as the case may be,
absent manifest error.


 


2.04.                       Disbursement of Funds. 
No later than 12:00 P.M. 
(New York City time) on the date specified in each Notice of Borrowing
(or, in the case of the Initial Borrowing Date as permitted pursuant to Section 2.03,
no later than 4:00 P.M. (New York City time)), each Lender with a
Commitment will make available its pro  rata portion (determined
in accordance with Section 2.07) of each such Borrowing requested to be
made on such date.  All such amounts will
be made available in Dollars and in immediately available funds at the Payment
Office, and the Administrative Agent will make available to the Borrower at the
Payment Office, or to such other account as the Borrower may specify in writing
prior to the date of such Borrowing, the aggregate of the amounts so made available
by the Lenders.  Unless the
Administrative Agent shall have been notified by any Lender prior to the date
of Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender’s portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such 


 


38

















 


amount available to the Administrative Agent on such date of Borrowing
and the Administrative Agent may (but shall not be obligated to), in reliance
upon such assumption, make available to the Borrower a corresponding
amount.  If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent’s demand therefor, the Administrative
Agent shall promptly notify the Borrower and the Borrower shall pay on demand
such corresponding amount to the Administrative Agent.  The Administrative Agent also shall be
entitled to recover on demand from such Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from
such Lender, the overnight Federal Funds Rate for the first three days and at
the interest rate otherwise applicable to such Loans for each day thereafter
and (ii) if recovered from the Borrower, the rate of interest applicable
to the respective Borrowing, as determined pursuant to Section 2.08.
Nothing in this Section 2.04 shall be deemed to relieve any Lender from
its obligation to make Loans hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any failure by such Lender
to make Loans hereunder.


 


2.05.                       Notes.  (a)  The
Borrower’s obligation to pay the principal of, and interest on, the Loans made
by each Lender shall be evidenced in the Register maintained by the
Administrative Agent pursuant to Section 14.15 and shall, if requested by
such Lender, also be evidenced by a promissory note duly executed and delivered
by the Borrower.  To the extent requested
by any Lender, the Borrower shall execute and deliver to such Lender an Initial
Note dated the Initial Borrowing Date, substantially in the form of Exhibit B-1
hereto to evidence the Initial Loans made by such Lender to Borrower and with
appropriate insertions (the “Initial Notes”).  Unless converted to an Exchange Note or if
the conditions to extension specified in Section 2.01(b) were not
satisfied on the Initial Maturity Date (in which case the Initial Notes shall
mature and be payable in cash on such date) and to the extent requested by any
Lender, the Borrower shall execute and deliver to such Lender an Extended Note
dated the Initial Maturity Date substantially in the form of Exhibit B-2
hereto to evidence the Extended Loan made on such date, in the principal amount
of the Initial Notes of Borrower held by such Lender on such date and with
other appropriate insertions (collectively, the “Extended Notes” and,
together with the Initial Notes, the “Notes”).


 


(b)                 Each Lender will note on its internal records the
amount of each Loan made by it and each payment in respect thereof and prior to
any transfer of any of its Notes will endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby.  Failure to make any such notation or any
error in such notation shall not affect the Borrower’s obligations in respect
of such Loans.


 


(c)                  Notwithstanding anything to the contrary contained
above in this Section 2.05 or elsewhere in this Agreement, Notes shall
only be delivered to Lenders which at any time specifically request the
delivery of such Notes.  No failure of
any Lender to request or obtain a Note evidencing its Loans to the Borrower
shall affect or in any manner impair the obligations of the Borrower to pay the
Loans (and all related Obligations) incurred by the Borrower which would
otherwise be evidenced thereby in accordance with the requirements of this Agreement,



 


39

















 


and shall not in any way affect the security or guaranties therefor
provided pursuant to the various Bridge Loan Documents.  Any Lender which does not have a Note
evidencing its outstanding Loans shall in no event be required to make the
notations otherwise described in preceding clause (b).  At any time when any Lender requests the
delivery of a Note to evidence any of its Loans, the Borrower shall promptly
execute and deliver to the respective Lender the requested Note in the
appropriate amount or amounts to evidence such Loans.


 


2.06.                       [Intentionally Omitted].


 


2.07.                       Pro Rata Borrowings. 
All Borrowings of Initial Loans under this Agreement shall be incurred
from the Lenders pro  rata on the basis of their Commitments.  It is understood that no Lender shall be
responsible for any default by any other Lender of its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to make
its Loans hereunder.


 


2.08.                       Interest.  (a) 
[Intentionally Omitted].


 


(b)                 The Borrower agrees to pay interest (x) in
respect of the unpaid principal amount of each Initial Loan from the date of
Borrowing thereof until the maturity thereof (whether by acceleration or
otherwise) at a rate per annum which shall, during each Interest Period, be
equal to the sum of the relevant Spread as in effect from time to time during
such Interest Period plus the Eurodollar Rate for such Interest Period; provided
that the per annum interest rate on the Initial Loans shall not exceed the Cap
Rate; and (y) in respect of the unpaid principal amount of each Extended
Loan from the Initial Maturity Date until the maturity thereof (whether by
acceleration or otherwise) at a rate per annum which shall be equal to the Cap
Rate.


 


(c)                  Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall, in each case, bear interest at
a rate per annum equal to the rate which is 2% in excess of the rate otherwise
then applicable to such Loan and all other overdue amounts payable
hereunder.  Without limiting the
foregoing, if any Initial Loans remain outstanding after the Initial Maturity
Date (i.e., if one or more of the conditions to conversion into Extended Loans
set forth in Section 2.01(b) are not satisfied), same will at all
times thereafter accrue interest at the rate described in the immediately
preceding sentence.  Interest that
accrues under this Section 2.08(c) shall be payable on demand.


 


(d)                 Accrued (and theretofore unpaid) interest shall be
payable, in respect of each Loan, (w) quarterly in arrears on each
Quarterly Payment Date, (x) in arrears on the Initial Maturity Date, (y) on
the date of any repayment or prepayment of principal of any Loans (on the
amount repaid or prepaid) and (z) at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.


 


(e)                  Upon each Interest Determination Date, the
Administrative Agent shall determine the Eurodollar Rate for the respective
Interest Period and shall promptly notify the Borrower and the Lenders thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.


 


2.09.                       [Intentionally
Omitted].


 


40

















 


2.10.                       Increased Costs, Illegality, etc. 
In the event that any Lender shall have determined in good faith (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto but, with respect to clause (i)(A) below, may be
made only by the Administrative Agent, and with respect to clause (i)(B) below
may be made only by the Administrative Agent, acting at its own discretion or
at the direction of the Required Lenders):


 


(i)                                     on any Interest
Determination Date that, by reason of any changes arising after the date of
this Agreement affecting the interbank Eurodollar market, (A) adequate and
fair means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate or (B) the
Eurodollar Rate with respect to any Loan does not
adequately and fairly reflect the cost of Lenders of funding such Loan; or


 


(ii)                                  at any time,
that such Lender shall incur increased costs or reductions in the amounts
received or receivable hereunder with respect to any Loan because of (x) any
change since the Effective Date in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the force of
law) or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order, guideline
or request, such as, but not limited to: 
(A) a change in the basis of taxation of payment to any Lender of
the principal of or interest on the Loans or the Notes or any other amounts
payable hereunder (except for changes in the rate of tax on, or determined by
reference to, the net income or net profits of such Lender pursuant to the laws
of the jurisdiction in which it is organized or in which its principal office
or applicable lending office is located or any subdivision thereof or therein)
or (B) a change in official reserve requirements, but, in all events,
excluding reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate and/or (y) other circumstances arising
since the Effective Date affecting such Lender, the interbank Eurodollar market
or the position of such Lender in such market (including that the Eurodollar
Rate with respect to such Loan does not adequately and fairly reflect the cost
to such Lender of funding such Loan);


 


then, and in any such event, such Lender (or the
Administrative Agent, in the case of clause (i) above) shall promptly give
notice (by telephone promptly confirmed in writing) to the Borrower and, except
in the case of clause (i) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders).  Thereafter,
until the Administrative Agent notifies the Borrower that the circumstances
giving rise to such notice no longer exist, the affected Borrowing shall bear
interest at such rate per annum determined in accordance with Section 2.08,
except that, for each affected Lender, its cost of funds (as determined by it)
shall be used in lieu of the Eurodollar Rate as a component of determining the
applicable interest rate.


 


(b)                 Failure or delay on the part of any Lender to demand
compensation pursuant to this Section 2.10 shall not constitute a waiver
of such Lender’s right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section for
any increased costs or reductions incurred more than 180-days prior to the date
that such Lender notifies the Borrower of the circumstances giving rise to such
increased costs or 


 


41

















 


reductions and of such Lender’s intention to claim compensation therefor;
provided further that if the circumstances giving rise to such increased
costs or reductions are retroactive, then the 180-day period referred to above
shall be extended to include the period of retroactive effect thereof.


 


2.11.                       Compensation. 
The Borrower agrees to compensate each Lender, upon its written request
(which request shall set forth in reasonable detail the basis for requesting
such compensation), for all losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Lender
to fund its Loans but excluding loss of anticipated profits) which such Lender
may sustain:  (i) if for any reason
(other than a default by such Lender or the Administrative Agent) a Borrowing
of, Loans does not occur on a date specified therefor in a Notice of Borrowing
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to Section 2.10(a));
(ii) if any prepayment or repayment (including any prepayment or repayment
made pursuant to Section 5.01, Section 5.02 or as a result of an
acceleration of the Loans pursuant to Section 12) occurs on a date which
is not the last day of an Interest Period with respect thereto; (iii) if any
prepayment of any of its Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of any other
default by the Borrower to repay Loans when required by the terms of this
Agreement or any Note held by such Lender.


 


2.12.                       Change of Lending Office. 
Each Lender agrees that on the occurrence of any event giving rise to
the operation of Section 2.10 or Section 5.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans affected by such event, provided that such
designation is made on such terms that such Lender and its lending office
suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of such
Section.  Nothing in this Section 2.12
shall affect or postpone any of the obligations of the Borrower or the right of
any Lender provided in Sections 2.10 and 5.04.


 


2.13.                       Replacement of Lenders.  (x) 
If any Lender becomes a Defaulting Lender, (y) upon the occurrence of any
event giving rise to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c) or
Section 5.04 with respect to any Lender which results in such Lender
charging to the Borrower increased costs or other compensation in excess of
those being generally charged by the other Lenders or (z) in the case of a
refusal by a Lender to consent to a proposed change, waiver, discharge or
termination with respect to this Agreement which has been approved by the
Required Lenders as (and to the extent) provided in Section 14.12(b), the
Borrower shall have the right, in accordance with Section 14.04(b), if no
Default or Event of Default then exists or would exist after giving effect to
such replacement, to replace such Lender (the “Replaced Lender”) with
one or more other Eligible Transferees, none of whom shall constitute a
Defaulting Lender at the time of such replacement (collectively, the “Replacement
Lender”) and each of which shall be reasonably acceptable to the
Administrative Agent; provided that:


 


(a)                  at the time of any replacement pursuant to this Section 2.13,
the Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 14.04(b) (and with all fees payable
pursuant to said Section 14.04(b) to be 


 


42

















 


paid by the Replacement Lender and/or the Borrower (as may be agreed to
at such time by and among the Borrower and the Replacement Lender)) pursuant to
which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of the Replaced Lender, and in connection therewith, shall
pay to  the Replaced Lender in respect thereof
an amount equal to the sum of an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of such Replaced Lender; and


 


(b)                 all obligations of the Borrower then owing to the
Replaced Lender (other than those specifically described in clause (a) above
in respect of which the assignment purchase price has been, or is concurrently
being, paid, but including all amounts, if any, owing under Section 2.11.


 


Upon receipt by the Replaced Lender of all amounts
required to be paid to it pursuant to this Section 2.13, the
Administrative Agent shall be entitled (but not obligated) and authorized to
execute an Assignment and Assumption Agreement on behalf of such Replaced
Lender, and any such Assignment and Assumption Agreement so executed by the
Administrative Agent, the Replacement Lender and the Borrower shall be
effective for purposes of this Section 2.13 and Section 14.04.  Upon the execution of the respective
Assignment and Assumption Agreement, the payment of amounts referred to in
clauses (a) and (b) above, recordation of the assignment on the
Register by the Administrative Agent pursuant to Section 14.15 and, if so
requested by the Replacement Lender, delivery to the Replacement Lender of the
appropriate Note or Notes executed by the Borrower, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 2.10,
2.11, 5.04, 13.06, 14.01 and 14.06), which shall survive as to such Replaced
Lender.


 


SECTION 3.                                [Intentionally Omitted].


 


SECTION 4.                                Commitment Commission; Fees; Reductions
and Increases of Commitments.


 


4.01.                       Fees.  The Borrower
agrees to pay to the Administrative Agent and the Lead Arranger such fees as
may be agreed to in writing from time to time by Holdings or any of its
Subsidiaries and the Administrative Agent and the Lead Arranger, as the case
may be.


 


4.02.                       [Intentionally
Omitted].


 


4.03.                       Mandatory Reduction of Commitments.  (a)  The
Total Commitment (and the Commitments of each Lender) shall terminate in its
entirety on July 31, 2010, unless the Initial Borrowing Date has occurred
on or prior to such date.


 


(b)                 In addition to any other mandatory commitment
reductions pursuant to this Section 4.03, (x) the Total Commitment
shall be reduced on each Borrowing Date (immediately after giving effect to the
borrowing of Initial Loans on such date) by the aggregate principal amount of
Initial Loans borrowed on such date and (y) the Total Commitment (and the
Commitment of each Lender) shall terminate in its entirety on the Merger
Closing Date (after giving effect to any incurrence of Initial Loans on such
date).


 


43

















 


(c)                  [Intentionally Omitted.]


 


(d)                 In addition to any other mandatory
commitment reductions pursuant to this Section 4.03, on the date of each
issuance of Permitted Notes pursuant to Section 11.01(ii), the Total
Commitment shall be reduced by the aggregate principal amount of Permitted
Notes so issued.


 


(e)                  [Intentionally Omitted].


 


(f)                    In addition to any other mandatory commitment
reductions pursuant to this Section 4.03, the Total Commitment shall be
permanently reduced from time to time to the extent required by Section 5.02(g)(ii).


 


(g)                 [Intentionally Omitted].


 


(h)                 Each reduction to, or termination of, the Total
Commitment pursuant to this Section 4.03 shall be applied to
proportionately reduce or terminate, as the case may be, the Commitment of each
Lender with a Commitment.


 


SECTION 5.                                Prepayments; Payments; Taxes.


 


5.01.                       Voluntary Prepayments. (a)  The Borrower shall have
the right to prepay the Loans, without premium or penalty, in whole or in part
at any time and from time to time on the following terms and conditions:  (i) the Borrower shall give the
Administrative Agent prior to 12:00 Noon (New York City time) at the Notice
Office at least three Business Days’ prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Loans, which notice
shall specify the amount of such prepayment and the specific Borrowing or
Borrowings pursuant to which such Loans were made, and which notice the
Administrative Agent shall promptly transmit to each of the Lenders; (ii) each
partial prepayment of Loans pursuant to this Section 5.01(a) shall be
in an aggregate principal amount of at least $1,000,000 (or such lesser amount
as is acceptable to the Administrative Agent in any given case), (iii) each
prepayment pursuant to this Section 5.01(a) in respect of any Loans
made pursuant to a Borrowing shall be applied pro  rata among such
Loans; and (iv) each prepayment of Loans pursuant to this Section 5.01(a) shall
be applied to the then outstanding Loans on a pro  rata
basis.  Notwithstanding anything to the
contrary contained herein, voluntary prepayments of Loans may not be made on or
prior to the Merger Closing Date without the prior written consent of the Lead
Arranger and the First Lien Lead Arrangers. 
Each notice given pursuant to this Section 5.01(a) shall be
irrevocable; provided that a notice of prepayment of Loans may state
that the respective notice is conditioned upon the effectiveness of an issuance
of Equity Interests by Holdings or one or more issues of Indebtedness, in which
case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.


 


(b)                 In the event of certain refusals by a Lender to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Lenders as
(and to the extent) provided in Section 14.12(b), the Borrower may, upon
five Business Days’ prior written notice to the Administrative Agent at the
Notice Office (which notice the Administrative Agent shall promptly transmit to
each of the 


 


44

















 


Lenders), repay all Loans of such Lender (including all amounts, if
any, owing pursuant to Section 2.11), together with accrued and unpaid
interest, Fees and all other amounts then owing to such Lender in accordance
with, and subject to the requirements of, said Section 14.12(b), so long
as the consents, if any, required by Section 14.12(b) in connection
with the repayment pursuant to this clause (b) shall have been obtained.


 


5.02.                       Mandatory Repayments.  (a) [Intentionally
Omitted].


 


(b)                 (i) With respect to the Initial Loans, on the
Initial Maturity Date, the Borrower shall be required to repay in full the
entire principal amount of Initial Loans then outstanding if such Initial Loans
have not been converted on such date into Extended Loans pursuant to Section 2.01(b) (and/or,
if the conditions to extension contained in Section 2.01(b) have been
satisfied, concurrently exchanged for Exchange Notes in accordance with Section 10.15)
and (ii) with respect to the Extended Loans, if any, on the Final Maturity
Date, the Borrower shall be required to repay in full the entire principal
amount of Extended Loans then outstanding.


 


(c)                  In addition to any other mandatory repayments pursuant
to this Section 5.02, on each date on or after the Initial Borrowing Date
upon which Holdings or any of its Subsidiaries receives any cash proceeds from
any issuance or incurrence by Holdings or any of its Subsidiaries of
Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 11.01
except that, (x) Permitted Refinancing Indebtedness incurred in respect of
the Loans and (y) without duplication of preceding clause (x), any
issuance of Permitted Notes (except in each case shall not be excluded pursuant
to this parenthetical), an amount equal to 100% of the Net Cash Proceeds of the
respective incurrence of Indebtedness shall be applied on such date in
accordance with the requirements of Section 5.02(g).


 


(d)                 In addition to any other mandatory repayments pursuant
to this Section 5.02, on each date on or after the Effective Date upon
which Holdings or any of its Subsidiaries receives any cash proceeds from any
Asset Sale or Recovery Event, an amount equal to 100% of the Net Cash Proceeds
therefrom shall be applied on such date in accordance with the requirements of Section 5.02(g);
provided, however, that such Net Cash Proceeds shall not be
required to be so applied on such date so long as no Event of Default then
exists and such Net Cash Proceeds shall be used to purchase assets  used or to be used in the businesses
permitted pursuant to Section 11.03(b) within 540 days following the
date of such Asset Sale or Recovery Event, and provided further, that if
all or any portion of such Net Cash Proceeds not required to be so applied as
provided above in this Section 5.02(d) are not so reinvested within
such 540-day period (or such earlier date, if any, as Holdings or the relevant
Subsidiary determines not to reinvest the Net Cash Proceeds from such Asset
Sale or Recovery Event as set forth above), such remaining portion shall be
applied on the last day of such period (or such earlier date, as the case may be)
as provided above in this Section 5.02(d) without regard to the
preceding proviso.  Notwithstanding
anything to the contrary contained above in this clause (d), if there are one
or more other issues of Second Lien Indebtedness then outstanding which require
the payment (or offer to repay) such Second Lien Indebtedness with such Net
Cash Proceeds, then the Borrower shall only be required to apply the Loan
Proportionate Amount of such Net Cash Proceeds in accordance with this Section 5.02(d);
provided further that if any portion of such Net Cash Proceeds is not actually
applied to repay other outstanding Second Lien Indebtedness (whether


 


45






 












 


the holders thereof have declined to participate in an offer to
purchase or otherwise), then within 5 Business Days after it is determined that
such amount will not be so applied, the respective amount shall be applied in
accordance with this Section 5.02(d) (determined without regard to
this sentence).


 


(e)                  [Intentionally Omitted].


 


(f)                    In addition to any other mandatory repayments pursuant
to this Section 5.02, on each date on or after the Effective Date upon
which Holdings receives any cash proceeds from the sale or issuance of its
Equity Interests, an amount equal to 100% of the Net Cash Proceeds of such sale
or issuance of Equity Interests shall be applied on such date as a mandatory
repayment and/or commitment reduction in accordance with the requirements of Section 5.02(g).


 


(g)                 Each amount required to be applied pursuant to
Sections 5.02(c), (d) and (f) in accordance with this Section 5.02(g) shall
be applied (i) first, if on or prior to the Merger Closing Date, to
reduce (on a dollar for dollar basis) the Total Commitment, and (ii) second,
to repay the outstanding principal amount of Loans, except that amounts to be
applied pursuant to Section 5.02(c) shall first be applied as
required by preceding clause (ii) and only after all such Loans have been repaid
in full shall same be applied as required by preceding clause (i).  The amount of each principal repayment of
outstanding principal of Term Loans made as required by Sections 5.02(c), (d), (f) and
(i) shall be applied pro rata to the then
outstanding Loans of the Lenders.


 


(h)                 [Intentionally Omitted].


 


(i)                     In addition to any other mandatory repayments pursuant
to this Section 5.02, all then outstanding Loans shall be mandatorily
repaid in full on the date on which a Change of Control occurs.


 


5.03.                       Method and Place of Payment. 
Except as otherwise specifically provided herein, all payments under
this Agreement and under any Note shall be made to the Administrative Agent for
the account of the Lender or Lenders entitled thereto not later than 12:00 Noon
(New York City time) on the date when due and shall be made in Dollars in
immediately available funds at the Payment Office.  Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable at the
applicable rate during such extension.


 


5.04.                       Net Payments.  (a)  All
payments made by the Credit Parties hereunder and under any Bridge Loan
Document will be made without setoff, counterclaim or other defense.  Except as provided in Section 5.04(b),
all such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding (i) any tax imposed
on or measured by the net income or net profits of the Administrative Agent or
any Lender, as the case may be, pursuant to the laws of the 


 


46

















 


jurisdiction in which the
Administrative Agent or such Lender, as the case may be, is organized or
resident or the jurisdiction in which the principal office or, in the case of a
Lender, applicable lending office of the Administrative Agent or such Lender,
as the case may be, is located or any subdivision thereof or therein, (ii) in the case of
a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.12), any withholding tax that is imposed on amounts
payable to such Foreign Lender pursuant to applicable law in effect on the date
such Foreign Lender becomes a party hereto or the date such Foreign Lender
designates a new lending office, 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 the Borrower or
Holdings with respect to such withholding tax pursuant to Section 5.04(a),
(iii) any U.S.
backup withholding taxes, (iv) any taxes 
imposed as a result of the Administrative Agent’s or the Lender’s
failure to comply with  Section 5.04(b) and
(v) any United States federal withholding tax that would not have been
imposed but for a failure by such recipient (or any financial institution
through which any payment is made to such recipient) to comply with the
applicable requirements of  Sections 1471
through 1474 of the Code or any Treasury Regulation promulgated thereunder or
published administrative guidance implementing such Sections, and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as “Taxes”).  If any
Taxes are so levied or imposed, the Borrower agrees to pay or to cause a
relevant Credit Party to pay the full amount of such Taxes, and such additional
amounts as may be necessary so that every payment of all amounts due under this
Agreement or under any Note, after withholding or deduction for or on account
of any Taxes, will not be less than the amount provided for herein or in such
Note.  The Borrower will furnish to the
Administrative Agent within 45 days after the date the payment of any Taxes is
due pursuant to applicable law certified copies of tax receipts evidencing such
payment by such Borrower or Credit Party. 
The Borrower agrees to indemnify and hold harmless each Lender, and
reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender. If the Administrative Agent or
Lender determines, in its sole discretion, that it has received a refund of any
Taxes as to which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this Section 5.04(a),
it shall pay to Borrower an amount equal to such refund (but only to the extent
of indemnity payments made, or additional amounts paid, by the Borrower under
this Section 5.04(a) with respect to the Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided that the
Borrower, upon the request of the Administrative Agent or such Lender, agrees
to repay the amount paid over to Borrower (plus interest attributable to the
period during which the Borrower held such funds and any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender, as the case may be, is required to repay
such refund to such Governmental Authority. 
This Section 5.04(a) shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.


 


(b)                 Each Lender that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes (a “Foreign Lender”) agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Effective Date, 


 


47

















 


(i) two accurate and complete original signed copies of Internal
Revenue Service Form W-8ECI, Form W-8IMY or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or successor
forms) certifying to such Lender’s entitlement as of such date to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Lender is not
a “bank” within the meaning of Section 881(c)(3)(A) of the Code and
cannot deliver either Internal Revenue Service Form W-8ECI, Form W-8IMY
or Form W-8BEN (with respect to a complete exemption under an income tax
treaty) (or any successor forms) pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit D (any such
certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two
accurate and complete original signed copies of Internal Revenue Service Form W-8BEN
(with respect to the portfolio interest exemption) (or successor form)
certifying to such Lender’s entitlement as of such date to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. A Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 2.13 or
14.04(b) (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer) agrees to deliver to the
Borrower and the Administrative Agent on the date of such assignment or
transfer two accurate and complete original signed copies of Internal Revenue
Service Form W-8ECI, Form W-8IMY, Form W-8BEN (with respect to
the benefits of any income tax treaty), or Form W-8BEN (with respect to
the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate,
as the case may be, and such other forms as may be required in order to
establish the entitlement of such Lender to an exemption from or reduction in
United States withholding tax with respect to payments under this Agreement and
any Note, or such Lender shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or
Certificate, in which case such Lender shall not be required to deliver any
such Form or Certificate pursuant to this Section 5.04(b).  In addition, each Lender agrees that from
time to time after the Effective Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, such Lender will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI, Form W-8IMY or Form W-8BEN
(with respect to the benefits of any income tax treaty), or Form W-8BEN
(with respect to the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate,
as the case may be, and such other forms, certifications and other information
as may be required in order to confirm or establish the entitlement of the
Administrative Agent or such Lender to a continued exemption from or reduction
in United States withholding tax with respect to payments under this Agreement
and any Note, and the Administrative Agent or such Lender, as the case may be,
shall immediately notify the Borrower and the Administrative Agent (as
applicable) of its inability to deliver any such Form or Certificate, in
which case the Administrative Agent or such Lender, as the case may be, shall
not be required to deliver any such Form or Certificate pursuant to this Section 5.04(b) if
it is not legally permitted to deliver such forms as a result of a change in
law after the Effective Date. Notwithstanding anything to the contrary
contained in Section 5.04(a), but subject to Section 14.04(b) and
the immediately succeeding sentence, (x) the Borrower shall be entitled,
to the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, Fees or other amounts payable
hereunder for the account of any Lender to the extent that such Lender has not
provided to the Borrower and Administrative Agent U.S. Internal Revenue Service
Forms, certificates and 


 


48

















 


information that establish a complete exemption from such deduction or
withholding and (y) the Borrower shall not be obligated pursuant to Section 5.04(a) to
gross-up payments to be made to a Lender in respect of income or similar taxes
(including withholding taxes) imposed by the United States if (I) such
Lender has not provided to the Borrower the Internal Revenue Service Forms,
certificates or other information required to be provided to the Borrower
pursuant to this Section 5.04(b) or (II) in the case of a
payment, other than interest, to a Lender described in clause (ii) above,
to the extent that such forms do not establish a complete exemption from
withholding of such taxes.   Each
Administrative Agent and Lender that is a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Effective Date or, in the case of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 2.13 or
14.04(b) (unless the respective Lender as already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender (and from time to time thereafter as prescribed
by applicable law or upon the request of the Borrower or the Administrative
Agent), two accurate and complete original signed copies of Internal Revenue
Service Form W-9 certifying that it is not subject to backup withholding.
Notwithstanding anything to the contrary contained in this Section 5.04
and except as set forth in Section 14.04(b), the Borrower agrees to pay
any additional amounts and to indemnify each Lender in the manner set forth in Section 5.04(a) (without
regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any amounts deducted or withheld by it as described
in the second preceding sentence as a result of any changes that are effective
after the Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of such Taxes.


 


(c)                  In the event that the Borrower or the Administrative
Agent is required by applicable law to deduct or withhold any taxes (including
any taxes imposed under Section 1471 or 1472 of the Code) from any amounts
payable to any Lender on or in respect of any Bridge Loan Document, the
Borrower or the Administrative Agent, as the case may be, shall (a) deduct
and withhold such tax, (b) pay such tax to the applicable Governmental
Authority, and (c) shall promptly furnish to the relevant Lender
satisfactory official tax receipts in respect of any payment of taxes.


 


SECTION 6.                                Conditions Precedent to Credit Events on
the Initial Borrowing Date.  The obligation of each Lender to make Loans
on the Initial Borrowing Date, is subject at the time of the making of such
Loans to the satisfaction of the following conditions:


 


6.01.                       Effective Date; Notices; Notes.  On or prior to the Initial
Borrowing Date, (i) the Effective Date shall have occurred as provided in Section 14.10,
(ii) the Borrower shall have requested the making of one or more Loans (in
amounts determined by it and consistent with the provisions of this Agreement)
on the Initial Borrowing Date, and the Administrative Agent shall have received
the appropriate Notices of Borrowing meeting the relevant requirements of Section 2.03(a) and
(iii) the appropriate Notes executed by the Borrower shall have been
delivered to the Administrative Agent for the account of each Lender that has
requested a Note in the amount, maturity and as otherwise provided herein.


 


49

















 


6.02.                       Representations and Warranties. 
At the time of each such Credit Event on the Initial Borrowing Date and
also after giving effect thereto, all representations and warranties made under
Sections 9.01, 9.02, 9.04(a) and (c), 9.08, 9.13, 9.19(b), 9.20 and 9.22
(collectively, the “Specified Representations”) shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on the date of such Credit Event
(it being understood and agreed that (x) any such representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified date and
(y) any such representation or warranty that is qualified as to “materiality,”
“Material Adverse Effect” or similar language shall be true and correct in all
respects on such date).


 


6.03.                       Officer’s Certificate.  On the Initial Borrowing
Date, the Administrative Agent shall have received a certificate, substantially
in the form of Exhibit F-1, dated the Initial Borrowing Date and signed on
behalf of the Borrower by an Authorized Officer of the Borrower, certifying on
behalf of the Borrower that (A) all the proceeds of the Initial Loans
received on the Initial Borrowing Date will be used (i) to make cash
payments owing to pay for Shares purchased pursuant to the Exchange Offer and
to pay any fees and expenses in connection with the Transaction which are then
due and payable, less the amount of cash and Permitted Investments (for this
purpose, excluding (x) any auction rate securities which would otherwise
be included in Permitted Investments and (y) up to $136 million of cash
for the purpose of paying RCRA obligations of the Borrower and its
Subsidiaries) of the Borrower and its Subsidiaries (other than the Target and
its subsidiaries) then on hand which are available for such purpose (less a
reserve of $200 million) and to (ii) consummate the Borrower Refinancing
in accordance with Section 6.06 and (B) either (i) no Permitted
Notes have been issued between March 10, 2010 and the Initial Borrowing
Date, and no equity of Holdings (excluding equity issued directly as
consideration pursuant to the Exchange Offer) has been issued between March 10,
2010 and the Initial Borrowing Date or (ii) all net proceeds of any
Permitted Notes issued between March 10, 2010 and the Initial Borrowing
Date and any equity of Holdings (excluding equity issued directly as
consideration pursuant to the Exchange Offer) issued between March 10,
2010 and the Initial Borrowing Date have been or are being used for the purposes
described in clause (A) above on or prior to the Initial Borrowing Date
and, if preceding clause (ii) is applicable, such certificate shall
specify the aggregate amounts of such net proceeds and any related commitment
reductions pursuant to this Agreement or the First Lien Credit Agreement.


 


6.04.                       Opinions of Counsel.  On the Initial Borrowing
Date, the Administrative Agent shall have received (i) from Skadden, Arps,
Slate, Meagher & Flom LLP, special counsel to the Credit Parties, an
opinion addressed to the Administrative Agent, the Collateral Agent and each of
the Lenders and dated the Initial Borrowing Date in the form of Exhibit E,
(ii) from local counsel in each state (other than New York and Delaware)
in which a Credit Party is organized, an opinion in form and substance
reasonably satisfactory to the Administrative Agent and addressed to the
Administrative Agent, the Collateral Agent and each of the Lenders, dated the
Initial Borrowing Date and covering such matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request, and (iii) from
local counsel in each state in which an Original Mortgaged Property is located
and with respect to which a Mortgage has then been executed (subject to Section 6.10(b)),
an opinion in form and substance reasonably satisfactory to the Collateral
Agent addressed to the Collateral Agent in its capacity as such, and each of
the Lenders, dated the Initial Borrowing Date and covering such matters
incident to the 


 


50

















 


transactions contemplated
herein as the Collateral Agent may reasonably request including but not limited
to the enforceability of each Mortgage in such state.


 


6.05.                       Company Documents; Proceedings; etc.  (a)  On the Initial
Borrowing Date, the Administrative Agent shall have received a certificate or
certificates from the Credit Parties, dated the Initial Borrowing Date, signed
by the Secretary or any Assistant Secretary of each Credit Party, and attested
to by an Authorized Officer of each Credit Party, in the form of Exhibit F-2
with appropriate insertions, together with copies of the certificate or
articles of incorporation and by-laws (or other equivalent organizational
documents), as applicable, of such Credit Party and the resolutions of such
Credit Party referred to in such certificate, and each of the foregoing shall
be in form and substance reasonably acceptable to the Administrative Agent.


 


(b)                 On the Initial Borrowing Date, the Bridge Loan
Documents shall be reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received copies
of all good standing certificates and bring-down telegrams or facsimiles, if
any, for the jurisdiction of organization of each Credit Party, which the
Administrative Agent reasonably may have requested in connection therewith,
such documents where appropriate to be certified by proper Company personnel or
Governmental Authorities.


 


6.06.                       Consummation of the Borrower Refinancing.  (a) 
On or prior to the Initial Borrowing Date and concurrently with the incurrence
of Loans and the use of such Loans to finance the Borrower Refinancing on such
date, all Indebtedness of Holdings and its Subsidiaries under the Existing
Credit Agreement shall have been repaid in full, together with all fees and
other amounts owing thereon, all commitments under the Existing Credit
Agreement shall have been terminated and all letters of credit issued pursuant
to the Existing Credit Agreement shall have been terminated or, in the case of
Existing Letters of Credit, shall be deemed to have been issued under the First
Lien Credit Agreement.


 


(b)                 On the Initial Borrowing Date and concurrently with
the incurrence of Loans on such date, all security interests in respect of, and
Liens securing, the Indebtedness under the Existing Credit Agreement created
pursuant to the security documentation relating to the Existing Credit
Agreement shall have been terminated and released, and the Administrative Agent
shall have received all such releases as may have been reasonably requested by
the Administrative Agent, which releases shall be in form and substance
reasonably satisfactory to the Administrative Agent.  Without limiting the foregoing, there shall
have been delivered to the Administrative Agent (x) proper termination
statements (Form UCC-3 or the appropriate equivalent) for filing under the
UCC or equivalent statute or regulation of each jurisdiction where a financing
statement or application for registration (Form UCC-1 or the appropriate
equivalent) was filed with respect to Holdings or any of its Subsidiaries in
connection with the security interests created with respect to the Existing
Credit Agreement in accordance with Section 11.01(i)(B), (y) terminations
of any security interest in any patents, trademarks, copyrights, or similar
interests of  Holdings or any of its
Subsidiaries on which filings have been made (or assurances relating thereto
reasonably satisfactory to the Administrative Agent) and (z) terminations
of all mortgages, leasehold mortgages, hypothecs and deeds of trust created
with respect to property of Holdings or any of its Subsidiaries (or assurances
relating thereto reasonably satisfactory to the Administrative Agent), in each
case, to secure the obligations 


 


51

















 


under the Existing Credit Agreement, all of which shall be in form and
substance reasonably satisfactory to the Administrative Agent.


 


(c)                  The Administrative Agent shall have received evidence
in form, scope and substance reasonably satisfactory to it that the matters set
forth in Section 6.06(a) have been satisfied on the Initial Borrowing
Date.


 


(d)                 Notwithstanding anything to the contrary
contained above in Section 6.06(b) or (c), the Borrower shall be
required to deliver the documentation described therein only to the extent it
is able to do so after its use of commercially reasonable efforts.


 


6.07.                       Exchange Offer Funding Date Material
Adverse Change.  No Exchange Offer Funding Date Material
Adverse Effect shall have occurred.


 


6.08.                       Patriot Act. 
The Administrative Agent and the Lenders shall have received all
documentation and other information requested by the Administrative Agent or
the respective Lenders that is required by bank regulatory authorities under
the applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot Act.


 


6.09.                       Blocked Amounts.  The Borrower shall have
furnished the Administrative Agent reasonably detailed calculations of the
Blocked Amount on the Initial Borrowing Date (after giving effect to the
consummation of the Exchange Offer and the payments to be made in connection
therewith), showing the allocation thereof to the Bridge Loan Blocked Amount,
the B-1 Blocked Amount and the B-2 Blocked Amount, and shall certify that the
Total Commitment (after the reductions thereto on the Initial Borrowing Date)
and the unutilized commitments under the First Lien Credit Agreement (after
giving effect to any reductions thereto on the Initial Borrowing Date) shall
equal or exceed the Bridge Loan Blocked Amount, the B-1 Blocked Amount or the
B-2 Blocked Amount, as the case may be.


 


6.10.                       Guaranty and Collateral Agreement.  (a)  On the Initial
Borrowing Date, Holdings, the Borrower and each Wholly-Owned Domestic
Subsidiary of Holdings (other than the Borrower, the Inactive Subsidiaries, the
Agreed Non-Guarantor Subsidiaries and any Excluded Subsidiaries) shall have
duly authorized, executed and delivered (a) a Guaranty and Collateral
Agreement in the form of Exhibit G (as amended, modified, restated and/or
supplemented from time to time, the “Guaranty and Collateral Agreement”)
covering all of such Credit Party’s GCA Collateral, together with (subject to
clause (b) below):


 


(i)                                     the delivery of
proper financing statements (Form UCC-1 or the equivalent) fully completed
for filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable, to perfect the security interests purported to be
created by the Guaranty and Collateral Agreement in such GCA Collateral a
security interest in which may be perfected by such a filing;


 


(ii)                                  to the extent
required by the Guaranty and Collateral Agreement, (x) any certificates
representing Pledged Stock (as defined in the Guaranty and Collateral 


 


52

















 


Agreement), together with
executed and undated endorsements of transfer and (y) any promissory
notes, together with executed and undated allonges; and


 


(iii)                               certified
copies of requests for information or copies (Form UCC-11), or equivalent
reports as of a recent date, listing all effective financing statements that
name any Credit Party as debtor and that are filed in the jurisdictions where
the applicable financing statements referred to in clause (i) above will
be filed, together with copies of such other financing statements that name any
Credit Party as debtor in any such jurisdiction (none of which shall cover any
of the Collateral except (x) to the extent evidencing Permitted Liens or (y) those
in respect of which the Collateral Agent shall have received termination
statements (Form UCC-3) (or the authority to file the same) or such other
termination statements as shall be required by local law fully executed for
filing).


 


(b)                 Notwithstanding anything to the contrary contained
above in this Section 6.10 or in Section 6.04 or in following Section 6.18,
to the extent any Collateral is not provided (or any related required actions
under Section 6.04, 6.10 or 6.18 are not taken) on the Initial Borrowing
Date after the Credit Parties’ use of commercially reasonable efforts to do so
or without undue burden or expense, the delivery of such Collateral (and the
taking of the related required actions) shall not constitute a condition
precedent to the extensions of credit under this Agreement on the Initial
Borrowing Date but shall instead be required to be delivered (or taken) after
the Initial Borrowing Date in accordance with the requirements of Section 10.10,
except that (A) such Credit Party shall be required to comply with the
requirements of Section 6.11, (B) with respect to the perfection of
security interests in UCC Filing Collateral, such Credit Party shall be
obligated to deliver or cause to be delivered, necessary UCC financing
statements to the Administrative Agent or to irrevocably authorize and to cause
the applicable Credit Parties to irrevocably authorize, the Administrative
Agent to file necessary UCC financing statements and (C) with respect to
perfection of security interests in Stock Certificates, such Credit Party shall
be obligated to use commercially reasonable efforts to deliver to the
Administrative Agent Stock Certificates together with undated stock powers in
blank, it being understood and agreed that perfected security interests in all
Shares purchased by the Borrower pursuant to the Exchange Offer shall be
required to be provided on the Initial Borrowing Date.


 


For the avoidance of doubt, it is understood and
agreed that Target and its Wholly-Owned Domestic Subsidiaries shall not be
required to become Subsidiary Guarantors on the Initial Borrowing Date, but
shall only be required to do so after the Merger Closing Date in accordance
with the requirements of Section 10.10.


 


6.11.                       Regulation U. 
On the Initial Borrowing Date, the Borrower shall have delivered to each
Lender, together with any Permitted Notes then outstanding, a duly completed
and executed (by the Borrower) Form FR U-1 or FR G-3, as applicable, referred
to in Regulation U.  On the Initial
Borrowing Date, each Lender shall be able in good faith to complete said Form FR
U-1 or Form FR G-3, as applicable, showing that loans may be extended by
the relevant lenders in an amount equal to the sum of the total commitments
under the First Lien Credit Agreement (as in effect before any extensions of
credit on such date) and that the Initial Loans may be extended under this
Agreement in an amount equal to the Total Commitment hereunder, and that said
Loans (and extensions of credit pursuant to the First Lien Credit Agreement, 


 


53

















 


together with any Permitted Notes then outstanding)
shall comply with the collateral valuation requirements of Regulation U; provided
that if for any reason on the Initial Borrowing Date one or more Lenders cannot
so complete said Form FR U-1 or FR G-3, as applicable, then (x) each
Lender shall be able in good faith to complete said Form FR U-1 or FR G-3,
as applicable, showing that loans may be extended by the relevant lenders in an
amount equal to the sum of the aggregate principal amount of Loans then being
incurred after giving effect to all extensions of credit on such date, at such
time, and that said Loans and extensions of credit shall (when added to the
aggregate principal amount of First Lien Indebtedness and any other Second Lien
Indebtedness then outstanding) comply with the collateral valuation of
Regulation U and (y) if this proviso is applicable, supplements to such
Forms FR U-1 and FR G-3, as applicable, shall be required to be completed on
the date of each subsequent extension of credit hereunder occurring on or prior
to the Merger Closing Date.   Without
limiting the foregoing, on the Initial Borrowing Date, the Administrative Agent
(on behalf of the Secured Creditors) shall have perfected security interests in
all Shares then owned by Holdings and its Subsidiaries (excluding Shares owned
by Target and its Subsidiaries), including all such Shares acquired pursuant to
the Exchange Offer.


 


6.12.                       Solvency Certificate.  On the Initial Borrowing
Date, the Administrative Agent shall have received a solvency certificate from
the chief financial officer of Holdings in the form of Exhibit H hereto.


 


6.13.                       Fees, etc.  On the Initial Borrowing Date, the
Borrower shall have paid to the extent then due all accrued costs, fees and
expenses documented and received by the Borrower prior to the Initial Borrowing
Date (including legal fees and expenses and the fees and expenses of any other advisors)
and other compensation payable to the Administrative Agent, the Lead Arranger
and the Lenders.


 


6.14.                       Consummation of the Exchange Offer; Etc. 
On the Initial Borrowing Date and concurrently with the incurrence of
Loans on such date, the Exchange Offer shall have been consummated in
accordance with applicable law and in accordance with the Exchange Offer as
defined herein.  Immediately following
the consummation of the Exchange Offer, neither Holdings nor any of its
subsidiaries shall have any indebtedness or preferred equity other than as
described in the audited consolidated financial statements of Holdings, the
Target and their respective subsidiaries filed with the Securities and Exchange
Commission (the “SEC”) on Form 10-K for the fiscal year ended December 31,
2009 (without subsequent amendment, supplement, restatement or modification)
which has not yet been repaid in connection with the Refinancing or as
otherwise permitted pursuant to the terms of this Agreement (as in effect on
the Initial Borrowing Date).


 


6.15.                       Merger Agreement. 
Prior to the Initial Borrowing Date, Holdings, Mergersub and Target
shall have entered into the Merger Agreement, which shall remain in full force
and effect.  There shall have been no
modifications, waivers or amendments to the Merger Agreement, as originally
executed on March 12, 2010, or any consents thereunder which are
inconsistent with the definition of Merger Agreement contained herein.  On or prior to the Initial Borrowing Date,
the Administrative Agent shall have received a true and correct copy of the
Merger Agreement, certified as such by an Authorized Officer of Holdings.  In addition, the Administrative Agent shall
have received copies of all modifications, waivers or amendments with respect
to the Merger Agreement (if any) entered into after the original execution and 


 


54

















 


delivery of a Merger
Agreement, in each case in a form which enables the Administrative Agent to
specifically review the respective amendments, modifications and waivers, in
each case certified as such by an Authorized Officer of the Borrower (or such
officer shall have certified there have been no amendments, modifications or
waivers), and certifying that same meets the requirements of the definition of
Merger Agreement contained herein.


 


6.16.                       Facilities Under the First Lien Credit
Agreement.  The First Lien Credit Documents shall have
been executed and delivered, and the Borrower shall have the benefit of
commitments to lend gross cash proceeds thereunder of not less than
$2,300,000,000 (or such lesser amount determined by the Borrower to be
sufficient to consummate the Transaction).


 


6.17.                       Intercreditor Agreement. 
On the Initial Borrowing Date, each Credit Party, the Collateral Agent (for
and on behalf of the Secured Creditors) (and the trustee for any issue of
Permitted Second Lien Notes then outstanding) and the First Lien Agent (for and
on behalf of the First Lien Secured Creditors) shall have duly authorized,
executed and delivered the Intercreditor Agreement, and the Intercreditor
Agreement shall be in full force and effect.


 


6.18.                       Mortgage; Title Insurance; Survey;
Landlord Waivers; etc.  On the Initial Borrowing Date,
but subject to Section 6.10(b), the Collateral Agent shall have received:


 


(i)                                     original
counterparts of Mortgages fully executed by the applicable Credit Party and
corresponding UCC Fixture Filings, in form and substance reasonably
satisfactory to the Collateral Agent, which Mortgages and UCC Fixture Filings
shall cover each Original Mortgaged Property, together with evidence that such
counterparts of such Mortgages and UCC Fixture Filings have been delivered to
the Title Insurance Company insuring the Lien of such Mortgage for recording;


 


(ii)                                  with respect to
each Original Mortgaged Property, a Mortgage Policy, or unconditional
commitment therefor, issued by the Title Insurance Company, in an insured
amount equal to either 100% of the reasonably estimated fair market value of
such Original Mortgaged Property or an allocated loan amount, in Collateral
Agent’s reasonable discretion, and insuring the Collateral Agent that the
Mortgage on each such Mortgaged Property is a valid and enforceable mortgage
lien on such Mortgaged Property, free and clear of all defects and encumbrances
except Permitted Encumbrances, with each such Mortgage Policy (1) to be in
form and substance reasonably satisfactory to the Collateral Agent, (2) to
include, to the extent available in the applicable jurisdiction, supplemental
endorsements (including, without limitation, endorsements relating to future
advances under this Agreement and the Loans, usury, first loss, tax parcel,
subdivision, zoning, contiguity, variable rate, doing business, public road
access, survey, environmental lien, mortgage tax and so-called comprehensive
coverage over covenants and restrictions and for any other matters that the
Collateral Agent in its discretion may reasonably request), (3) to exclude
the “standard” title exceptions, and (4) to provide for affirmative insurance
and such reinsurance or coinsurance as the Collateral Agent in its discretion
may reasonably request;


 


(iii)                               to induce the
Title Insurance Company to issue the Mortgage Policies referred to in
subsection (ii) above, such affidavits, certificates, information and


 


55






 












 


instruments of
indemnification (including, without limitation, a so-called “gap”
indemnification) as shall be reasonably requested by the Title Insurance
Company, together with reasonable evidence of payment, or deposit with the
Title Insurance Company, by the Borrower of all Mortgage Policy premiums,
search and examination charges, mortgage recording taxes, fees, charges, costs
and expenses required for the recording of such Mortgages and issuance of such
Mortgage Policies;


 


(iv)          a survey that
complies with the minimum detail requirements of the American Land Title
Association as such requirements are in effect on the date of such survey, an
aerial survey, ExpressMap or equivalent photographic depiction of each Original
Mortgaged Property (and all improvements thereon) or such other map or survey,
in each case which is reasonably sufficient for the Title Insurance Company to
remove all standard survey exceptions from the Mortgage Policy relating to such
Original Mortgaged Property and issue the endorsements required pursuant to the
provisions of Section 6.18(ii) above;


 


(v)           to the extent
obtainable by Borrower, after using commercially reasonable efforts, on or
prior to the Initial Borrowing Date, fully executed landlord waivers and/or
bailee agreements in respect of those Leasehold Waiver Properties, each of
which landlord waivers and/or bailee agreements shall be in form and substance
reasonably satisfactory to the Collateral Agent;


 


(vi)          to the extent
reasonably requested by the Collateral Agent, copies of all leases on any
Original Mortgaged Property in effect as of the Initial Borrowing Date in which
any Credit Party holds the lessor’s interest or other agreements relating to
possessory interests, if any; provided that, to the extent any of the
foregoing affect the buildings or improvements located at such Original
Mortgaged Property and to the extent requested by the Collateral Agent, such
agreements shall be subordinated to the Lien of the Mortgage to be recorded
against such Original Mortgaged Property, either expressly by its terms or
pursuant to a subordination, non-disturbance and attornment agreement which the
applicable Credit Party shall use commercially reasonable efforts to secure on
behalf of the Collateral Agent (with any such agreement being reasonably
acceptable to the Collateral Agent); and


 


(vii)         flood
certificates covering each Original Mortgaged Property in form and substance
reasonably acceptable to the Collateral Agent, certified to the Collateral
Agent in its capacity as such and identifying whether or not such Original
Mortgaged Property are located in a flood hazard area, as determined by
reference to the most current Flood Insurance Rate Map published by FEMA.


 


Notwithstanding anything
to the contrary contained above or elsewhere in this Agreement or any other
Bridge Loan Documents, (i) the provisions of this Section 6 shall be
subject to the last two paragraphs of Section 7 hereof, (ii) from
time to time, if it comes to the knowledge of the Borrower that any of the
Owned Real Property or Leased Real Property of Target or any of its
Subsidiaries listed on Schedule 6.18 was owned by an Excluded Subsidiary as of
the Initial Borrowing Date, the Borrower shall notify the Administrative Agent
of same and such Owned Real Property and/or Leased Real Property shall
automatically be deemed removed


 


56

















 


from Schedule 6.18
effective as of the date hereof and (iii) if it comes to the knowledge of
the Borrower within five Business Days of the Initial Borrowing Date that any
of the Leased Real Property listed on Schedule 6.18 is leased by CFL then such
Leased Real Property shall automatically be deemed removed from Schedule 6.18.


 


SECTION 7.         Conditions Precedent to Credit Events
after the Initial Borrowing Date.  The
obligation of each Lender to make Initial Loans, on any date occurring after
the Initial Borrowing Date and on or prior to the Merger Closing Date, is
subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:


 


7.01.       Initial Borrowing. 
The initial Borrowing of Initial Loans shall have occurred on the
Initial Borrowing Date pursuant to the terms of this Agreement.


 


7.02.       Notice of Borrowing. 
Prior to the making of each Loan, the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 2.03(a).


 


7.03.       Consummation of the Exchange Offer. 
The Exchange Offer shall have been consummated as set forth in Section 6.14.


 


7.04.       Merger Agreement.  (a) 
The Merger Agreement shall have been entered into and shall continue to be in
full force and effect.  There shall have
been no modifications, waivers or amendments to the Merger Agreement, as
originally executed on March 12, 2010, nor shall there have been any
consents thereunder which are inconsistent with the definition of Merger
Agreement contained herein.


 


(b)      The Administrative Agent shall have
received copies of all modifications, waivers or amendments with respect to the
Merger Agreement (if any) entered after the original execution and delivery of
the Merger Agreement, in each case in a form which enables the Administrative
Agent to specifically review the respective amendments, modifications and
waivers, in each case certified as such by an Authorized Officer of the
Borrower (or such officer shall certify that there have been no amendments,
modifications or waivers with respect to the Merger Agreement), and certifying
that same meet the requirements of the definition of Merger Agreement contained
herein.


 


(c)      Only in the case of Initial Loans to be
made on the Merger Closing Date, on such date the Merger shall have been
consummated in accordance with applicable law and in accordance in all material
respects with the Merger Agreement.


 


7.05.       Officer’s Certificate.  In the case of any such
Credit Event occurring prior to the Merger Closing Date, at the time of such
Credit Event, the Administrative Agent shall have received a certificate signed
on behalf of the Borrower by an Authorized Officer of the Borrower, certifying
on behalf of the Borrower that (A) all the proceeds of the Initial Loans
received on the date of such Credit Event will be used solely (x) to make
Top-Off Purchases (with the consideration per share not to exceed that payable
pursuant to the Exchange Offer) or (y) to make loans to Target to enable
it or Target Sub to purchase Target Existing Notes as required in accordance
with the provisions of clause (vi) of the Transaction Summary, in each
case after using any cash and Permitted Investments (for this purpose,
excluding any (x) auction


 


57

















 


rate securities which
would otherwise be included in cash equivalents and (y) up to $136 million of
cash for the purpose of paying RCRA obligations of the Borrower and its
Subsidiaries) available for such purpose of (A) the Borrower and its
Subsidiaries other than Target and its subsidiaries (less a reserve of $200
million) and (B) Target and its subsidiaries (other than Terra Nitrogen)
with respect to clause (y) only above (less a reserve of $50 million) and (B) either
(i) no Permitted Notes have been issued between March 10, 2010 and
the date of such Credit Event, and no equity of Holdings (excluding equity
issued directly as consideration pursuant to the Exchange Offer) has been
issued between March 10, 2010 and the date of such Credit Event or (ii) all
net proceeds of any Permitted Notes issued between March 10, 2010 and the
date of such Credit Event and any equity of Holdings (excluding equity issued
directly as consideration pursuant to the Exchange Offer) issued between March 10,
2010 and the date of such Credit Event have been used for the purposes
described in clause (A) above prior to such Credit Event and, if preceding
clause (ii) is applicable, such certificate shall specify the aggregate
amounts of such net proceeds and any related commitment reductions pursuant to
this Agreement or the First Lien Credit Agreement.  In the event any proceeds are to be used for
the purposes described in preceding clause (A)(y), the requirements contained
in the proviso to the first sentence of clause (vi) of the Transaction
Summary shall be required to be met to the reasonable satisfaction of the Lead
Arranger.


 


7.06.       Margin Regulations.  (a) 
The representations and warranties (i) contained in Section 9.19(b) and
(ii) contained in Section 9.19(a) only in the case of Credit Events
occurring on the Merger Closing Date, shall be true and correct on the date of
such Credit Event, after giving effect to the Credit Events to occur on such
date.


 


(b)      In the event that, on the Initial
Borrowing Date, the proviso to Section 6.11 was applicable, then on the
date of such Credit Event supplements to the Forms FR U-1 and FR G-3, as
applicable, originally executed by the Lenders shall be required to be
completed showing that extensions of credit by the Lenders in an amount equal
to the sum of (x) the aggregate principal amount of Loans (and any
Permitted Second Lien Notes) which will be outstanding after giving effect to
all Credit Events on such date, and (y) the aggregate principal amount of
outstanding First Lien Term Loans and the Aggregate R/C Exposure and any other
First Lien Indebtedness after giving effect to all extensions of credit on such
date, shall comply with the collateral valuation requirements of Regulation U.


 


(c)      The Administrative Agent (on behalf of
the Secured Creditors) shall have perfected security interests in all Shares
then owned by Holdings and its Subsidiaries (excluding Shares owned by Target
and its Subsidiaries), including all such Shares acquired pursuant to the
Exchange Offer.


 


7.07.       Blocked Amounts. 
If the respective Credit Event is to occur before the Merger Closing
Date, the Borrower shall have furnished the Administrative Agent reasonably
detailed calculations of the Blocked Amount on such date (after giving effect
to any Credit Events and extensions of credit under the First Lien Credit
Agreement, and the payments to be made with the proceeds thereof on such date),
showing the allocation thereof to the Bridge Loan Blocked Amount, the B-1
Blocked Amount and the B-2 Blocked Amount, and shall certify that the
Commitments (after any reductions thereto on such date) and the unutilized
commitments under the First Lien Credit Agreement after giving effect to any
reductions thereto on such date


 


58

















 


shall equal or exceed the Bridge Loan Blocked Amount,
the B-1 Blocked Amount or the B-2 Blocked Amount, as the case may be.


 


The acceptance of the benefits
of each Credit Event shall constitute a representation and warranty by Holdings
and the Borrower to the Administrative Agent and each of the Lenders that all
the conditions specified in Section 6 (with respect to Credit Events on
the Initial Borrowing Date) and in this Section 7 (with respect to Credit
Events after the Initial Borrowing Date and applicable to such Credit Event are
satisfied as of that time.  All of the
Notes, certificates, legal opinions and other documents and papers referred to
in Section 6 and in this Section 7, unless otherwise specified, shall
be delivered to the Administrative Agent at the Notice Office for the account
of each of the Lenders and, except for the Notes, in sufficient counterparts or
copies for each of the Lenders and shall be in form and substance reasonably
satisfactory to the Administrative Agent.


 


Upon the Administrative Agent’s good faith
determination that the conditions specified in this Section 6 or 7, as the
case may be, have been met, then the Credit Events requested at that time shall
occur, regardless of any subsequent determination that one or more of the
conditions thereto had not been met (although the occurrence of the respective
Credit Event shall not release Holdings or the Borrower from any liability for
failure to satisfy one or more of the applicable conditions contained in Section 6
or 7, as the case may be).


 


SECTION 8.         [Intentionally Omitted].


 


SECTION 9.         Representations, Warranties and
Agreements.  In order to induce the Administrative Agent
and the Lenders to enter into this Agreement and to make Loans, each of
Holdings and the Borrower makes the following representations, warranties and
agreements, in each case after giving effect to the Transaction (only to the
extent that the Transaction is actually consummated on or prior to the date
upon which the following representations, warranties and agreements are being
made), all of which shall survive the execution and delivery of this Agreement
and the Notes and the making of the Loans, with the occurrence of each Credit
Event on or after the Initial Borrowing Date being deemed to constitute a
representation and warranty that the matters specified in this Section 9
are true and correct in all material respects on and as of the Initial
Borrowing Date and on the date of each such other Credit Event (it being
understood and agreed that any such representation, warranty or agreement which
by its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date).


 


9.01.       Organization; Powers. 
Each of the Credit Parties and each of its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to
carry on its business as now conducted and is qualified to do business in, and
is in good standing in, every jurisdiction where such qualification is
required, except where failure to be so qualified and in good standing,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.


 


9.02.       Authorization; Enforceability. 
The Transaction is within each Credit Party’s Company powers and has
been duly authorized by all necessary Company action and, if


 


59

















 


required,
stockholder action.  This Agreement has
been, and each other Bridge Loan Document when delivered hereunder will be,
duly executed and delivered by each Credit Party thereto. This Agreement
constitutes, and each other Bridge Loan Document when delivered hereunder will
constitute, a legal, valid and binding obligation of each Credit Party thereto,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.


 


9.03.       Governmental Approvals; No Conflicts. 
The Transaction (a) does not require any consent or approval of,
registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and
effect or waived, actions and filings necessary to create or perfect Liens in
the Collateral, the filing of a certificate of merger on the Merger Closing
Date (which action shall have occurred if this representation is being made
after the Merger Closing Date) and those the failure of which to make or obtain
could not reasonably be expected to have a Material Adverse Effect, (b) will
not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any Credit Party or any of its Subsidiaries or any
order of any Governmental Authority, except as could not reasonably be expected
to have a Material Adverse Effect, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon any
Credit Party or any of its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by any Credit Party or any of its
Subsidiaries, except as could not reasonably be expected to have a Material
Adverse Effect, and (d) will not result in the creation or imposition of
any Lien on any asset of any Credit Party (other than any Lien created or
permitted to be created under the First Lien Credit Documents or the Bridge
Loan Documents) or any of its Subsidiaries.


 


9.04.       Financial Condition; No Material Adverse
Change.  (a)  The Borrower has heretofore
furnished to the Lenders copies of (i) Holdings’ consolidated balance
sheet and statements of income, stockholders equity and cash flows as of and
for the Fiscal Years ended December 31, 2009 and December 31, 2008,
reported on by KPMG LLP, independent public accountants, (ii) Target’s
consolidated balance sheet and statements of income, stockholders equity and
cash flows as of and for the fiscal years ended December 31, 2009 and December 31,
2008 reported on by Deloitte & Touche LLP, independent public
accountants and (iii) pro  forma consolidated financial
statements of the Borrower and its Subsidiaries (including the Target and its
Subsidiaries) meeting the requirements of Regulation S-X under the Securities
Act for registration statements (as if such a registration statement for a debt
issuance of the Borrower became effective on the Initial Borrowing Date) on Form S-1
and a pro  forma consolidated statement of income of the Borrower
for the twelve-month period ending on the last day of the most recently
completed four Fiscal Quarter period ended at least 45 days before the Merger
Agreement Date, prepared after giving effect to the Transaction as if the
Transaction had occurred at the beginning of such period, in each case, certified
by its chief financial officer.  Such
financial statements in clauses (i) and (ii) present fairly, in all
material respects, the consolidated financial position and consolidated results
of operations and cash flows of the Borrower and its consolidated Subsidiaries
and/or Target and its consolidated Subsidiaries, as the case may be, as of such
dates and for such periods in accordance with GAAP.


 


(b)      [Intentionally Omitted.]


 


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(c)      On the Initial Borrowing Date, there has
been no Exchange Offer Funding Date Material Adverse Effect.


 


9.05.       Properties.  (a)  As
of the Initial Borrowing Date, Schedule 9.05(a) sets forth a
correct and complete list of all Owned Real Property and Leased Real Property
of each Credit Party (other than Target and its Subsidiaries) and Schedule
9.05(b) sets forth a correct and complete list of all Owned Real Property
and Leased Real Property of Target and its Subsidiaries which are expected to
become Credit Parties on or after the Merger Closing Date.  Except as could not reasonably be expected to
have a Material Adverse Effect, as of the Initial Borrowing Date (a) (i) each
of such Leases listed on Schedule 9.05(a) and (ii) each of
such leases and subleases listed on Schedule 9.05(b), in each case, is
valid and enforceable in accordance with its terms and is in full force and
effect, and (b) to the knowledge of the Borrower and the other Credit
Parties, no default by any party to any such Lease, lease or sublease
exists.  Except as set forth on Schedule
9.05(a) or (b), each of the Credit Parties has good title to
all of its Owned Real Property and personal property and valid leasehold
interests in (or otherwise has the right to use), all of its Leased Real
Property, in each case as is necessary to the conduct of its business in the
ordinary course, free of all Liens other than Permitted Liens.  Notwithstanding anything to the contrary
contained above or elsewhere in this Agreement, from time to time, if it comes
to the knowledge of the Borrower that any of the Owned Real Property or Leased
Real Property listed on Schedule 9.05(b) was owned by an Excluded
Subsidiary as of the Initial Borrowing Date, the Borrower shall notify the
Administrative Agent of same and such Owned Real Property and/or Leased Real
Property shall automatically be deemed removed from Schedule 9.05(b) effective
as of the date hereof and (iii) if it comes to the knowledge of the
Borrower within five Business Days of the Initial Borrowing Date that any of
the Leased Real Property listed on Schedule 9.05(a) is leased by CFL
then such Leased Real Property shall automatically be deemed removed from Schedule
9.05(a).


 


9.06.       Litigation and Environmental Matters.  (a) 
There are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of any Credit
Party, threatened against the Credit Parties or any of their Subsidiaries (i) as
to which there is a reasonable possibility of an adverse determination and that
could reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect or (ii) that in any material respect draws into
question the validity or enforceability of this Agreement or the Transactions.


 


(b)      Except for any matters that, individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, (i) no Credit Party nor any of its Subsidiaries has
received written notice of any claim with respect to any Environmental
Liability or knows of any basis for any such Environmental Liability, and (ii) no
Credit Party nor any of its Subsidiaries (1) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law or (2) to the
knowledge of a Responsible Officer of such Person, has become subject to any
Environmental Liability.


 


9.07.       Compliance with Laws and Agreements. 
Each of the Credit Parties and its Subsidiaries is in compliance in all
material respects with all statutes, laws, regulations and orders of any
Governmental Authority applicable to it or its property, and all indentures,


 


61

















 


agreements and
other instruments binding upon it or its property, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.  No
Default or Event of Default has occurred and is continuing.


 


9.08.       Investment Company Status. 
Neither Holdings nor any of its Subsidiaries is an “investment company”
or a company “controlled” by an “investment company” as defined in the
Investment Company Act of 1940.


 


9.09.       Taxes.  Each Credit
Party and its Subsidiaries has timely filed or caused to be filed all federal
income and other material tax returns required to have been filed and has paid
or caused to be paid all material taxes required to have been paid by it,
except taxes that are being contested in good faith by appropriate proceedings
and for which a Credit Party or its Subsidiary, as applicable, has set aside on
its books adequate reserves.  No tax
liens have been filed, except for liens for taxes not yet due and payable or
that are being contested in accordance with Section 5.04, and no claims
are being asserted with respect to any material amount of such taxes, except
claims being contested in accordance with Section 10.04.


 


9.10.       ERISA.  No ERISA
Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to either (a) have a Material Adverse
Effect or (b) result in the occurrence of a lien or other granting of
security interest (in each case other than as permitted by this Agreement) against
the property or assets of the Borrower or such ERISA Affiliate.


 


9.11.       Disclosure.  To Holdings’
and the Borrower’s knowledge after due inquiry, neither the Information
Memorandum nor any of the other reports, financial statements, certificates or
other information furnished in writing by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contained, as of the date furnished, any untrue
statement of a material fact or omitted to state any material fact necessary to
make the statements therein, taken as a whole, not materially misleading in the
light of the circumstances under which they were made; provided that, with
respect to the Projections and other projected and forward-looking information,
the Borrower represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time made (it being understood
that no assurance has been given or will be given that the Projections and
other projections and forward-looking information have been or will be
achieved).


 


9.12.       Material Agreements. 
All material agreements to which any Credit Party is a party or is bound
as of the date of this Agreement are listed on Schedule 9.12.  Except as could not reasonably be expected to
have a Material Adverse Effect, no Credit Party is in default or in event of
default under the terms of any material agreement to which it is a party.


 


9.13.       Solvency.  Immediately after the consummation of the
transactions to occur on the date of each Credit Event and immediately
following each Credit Event, and after giving effect to any application of the
proceeds of such Credit Event, Holdings and its Subsidiaries on a consolidated
basis:  (a) own assets the fair
saleable value of which are (i)


 


62

















 


greater than the total amount of their liabilities
(including contingent liabilities) as they become absolute and mature and (ii) greater
than the amount that will be required to pay their existing debts as they
become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to them, (b) have capital that
is not unreasonably small in relation to their business as presently conducted
and (c) do not intend to incur and do not believe they will incur debts
beyond their ability to pay such debts as they become due.


 


9.14.       Reportable Transaction. 
The Borrower does not intend to treat the Borrowings and related
transactions as being a “reportable transaction” (within the meaning of
Treasury Regulation Section 1.6011-4). 
In the event the Borrower determines to take any action inconsistent
with such intention, it will promptly notify the Administrative Agent thereof.


 


9.15.       Capitalization and Subsidiaries.  Schedule
9.15 sets forth as of the Initial Borrowing Date (a) a correct and
complete list of the name and relationship to each Credit Party of each and all
of such Credit Party’s Subsidiaries, (b) a true and complete listing of
each class of each Credit Party’s authorized Equity Interests, of which all of
such issued shares are (to the extent such concepts are relevant with respect
to such ownership interest) validly issued, outstanding, fully paid and
non-assessable, and (except in the case of Holdings) owned beneficially and of
record by the Persons identified on Schedule 9.15, and (c) the type
of entity of each Credit Party and each of its Subsidiaries.  All of the issued and outstanding Equity
Interests owned by any Credit Party has been (to the extent such concepts are
relevant with respect to such ownership interests) duly authorized and issued
and is fully paid and non-assessable.


 


9.16.       Common Enterprise. 
The Credit Parties are part of an affiliated group.  Each Credit Party expects to derive benefit,
directly and indirectly, from (i) successful operations of each of the
other Credit Parties and (ii) the credit extended by the Lenders to the Borrower
hereunder, both in their separate capacities and as members of the group of
companies.


 


9.17.       Labor Disputes. 
Except as set forth on Schedule 9.17, as of the date of this
Agreement (a) there is no collective bargaining agreement or other labor
contract covering employees of any Credit Party or any of its Subsidiaries, (b) no
such collective bargaining agreement or other labor contract is scheduled to
expire during the term of this Agreement, and (c) no Responsible Officer
of any Credit Party has knowledge that any union or other labor organization is
seeking to organize, or to be recognized as, a collective bargaining unit of
employees of such Credit Party or any of its Subsidiaries or for any similar
purpose.  Except as could not reasonably
be expected to have a Material Adverse Effect, there is no pending or (to the
best of the Borrower’s knowledge) threatened, strike, work stoppage, material
unfair labor practice claim, or other material labor dispute against or
affecting any Credit Party or its Subsidiaries or their employees.


 


9.18.       Use of Proceeds.  All proceeds of the Loans
will be used by the Borrower to finance the Merger, the termination of the
Prior Merger Agreement, the Exchange Offer, the Borrower Refinancing, the
Target Refinancing, the Top-Off Purchases (if any) and to pay fees and expenses
incurred in connection with the Transaction.


 


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9.19.       Margin Regulations.  (a) 
On the Merger Closing Date, the Borrower shall cause all Shares (and any other
Equity Interests) of the Target owned by Holdings and its Subsidiaries to cease
to constitute Margin Stock.  Except for
the Shares of Target owned while same constitute Margin Stock in accordance
with the preceding sentence, the Credit Parties shall at no time own Margin
Stock with an aggregate fair market value in excess of $5,000,000.


 


(b)      Neither the making of any Loan nor the
use of the proceeds thereof nor the occurrence of any other Credit Event will
violate or be inconsistent with the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.


 


9.20.       Security Documents.  (a)  The
provisions of the Guaranty and Collateral Agreement are effective to create in
favor of the Collateral Agent for the benefit of the Secured Creditors a legal,
valid and enforceable security interest in all right, title and interest of the
Credit Parties in the GCA Collateral described therein, and the Collateral
Agent, for the benefit of the Secured Creditors, has, or will within 5 Business
Days of the Initial Borrowing Date have, a fully perfected security interest in
all right, title and interest in all of the GCA Collateral described therein to
the extent that the perfection of such security interests can be obtained
through the filing of UCC financing statements or other actions required in
accordance with the terms of the Guaranty and Collateral Agreement (except to
the extent such actions are not then required to have been taken in accordance
with the express provisions of the Guaranty and Collateral Agreement), subject
to no other Liens other than Permitted Liens. 
The recordation of (x) the Grant of Security Interest in U.S.
Patents and (y) the Grant of Security Interest in U.S. Trademarks in the
respective form attached to the Guaranty and Collateral Agreement, in each case
in the United States Patent and Trademark Office, together with filings on Form
UCC-1 made pursuant to the Guaranty and Collateral Agreement, will create, as
may be perfected by such filings and recordation, a perfected security interest
in the United States trademarks and patents covered by the Guaranty and
Collateral Agreement, and the recordation of the Grant of Security Interest in
U.S. Copyrights in the form attached to the Guaranty and Collateral Agreement with
the United States Copyright Office, together with filings on Form UCC-1
made pursuant to the Guaranty and Collateral Agreement, will create, as may be
perfected by such filings and recordation, a perfected security interest in the
United States copyrights covered by the Guaranty and Collateral Agreement.


 


(b)      Each Mortgage creates, as security for
the obligations purported to be secured thereby, a valid and enforceable
perfected security interest in and mortgage lien on the respective Mortgaged
Property in favor of the Collateral Agent (or such other trustee as may be
required or desired under local law) for the benefit of the Secured Creditors,
superior and prior to the rights of all third Persons (except that the security
interest and mortgage lien created on such Mortgaged Property may be subject to
the Permitted Encumbrances related thereto) and subject to no other Liens
(other than Permitted Encumbrances related thereto).


 


Notwithstanding anything
to the contrary contained above in this Section 9.20, to the extent that
actions with respect to the Collateral are not required to be taken on the
Initial Borrowing Date pursuant to the express provisions of Section 6.10(b)
hereof, then the foregoing representations in this Section 9.20 shall be
deemed modified to the extent reasonably required so that same are not untrue
as a result of actions not required to be taken pursuant to said Section 6.10(b);
provided that with respect to any such action which was not required to
be taken


 


64

















 


pursuant to Section 6.10(b), the exception provided
herein shall cease to apply at such time as the respective action is required
to be taken in accordance with the requirements of Section 10.10 hereof.


 


9.21.       Intellectual Property, etc. 
Each of Holdings and each of its Subsidiaries owns or has the right to
use all the patents, trademarks, domain names, service marks, trade names,
copyrights, licenses, inventions, trade secrets, proprietary information and
know-how (including, but not limited to, rights in computer programs and
databases) and formulas, or rights with respect to the foregoing necessary for
the present conduct of its business, without any known conflict with the rights
of others which, or the failure to own or have which, as the case may be, could
reasonably be expected, either individually or in the aggregate, to have a
Material Adverse Effect.


 


9.22.       Representations and Warranties in Merger
Agreement.  On the Initial Borrowing Date, all
representations and warranties made by the Target in the Merger Agreement that
are material to the interests of the Lenders are true and correct, but only to
the extent that Holdings (or Mergersub) has the right (without regard to any
notice requirement) to terminate its obligations under the Merger Agreement (or
would be permitted to decline to consummate the Merger) as a result of a breach
of such representation and warranties in the Merger Agreement.


 


SECTION 10.       Affirmative Covenants. 
Each of Holdings and the Borrower hereby covenants and agrees that on
and after the Effective Date and until the Total Commitment has terminated and
the Loans and Notes (in each case together with interest thereon), Fees and all
other Obligations (other than indemnities that are not then due and payable)
incurred hereunder and thereunder, are paid in full:


 


10.01.     Financial Statements and Other
Information.  The Borrower will furnish to the
Administrative Agent (for delivery to each Lender):


 


(a)      as soon as required under the Exchange
Act but in any event within ninety (90) days after the end of each Fiscal Year
of Holdings, its audited consolidated balance sheet and related consolidated
statements of operations, stockholders’ equity and cash flows as of the end of
and for such Fiscal Year, setting forth in each case in comparative form the
figures for the previous Fiscal Year, all reported on by independent public
accountants of recognized national standing (without a “going concern” or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
operations of Holdings and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP, accompanied by any management letter prepared by said
accountants, and its unaudited consolidating balance sheet and related
unaudited consolidating statement of operations for such Fiscal Year; provided
that if Holdings has filed with the SEC its annual financial statements for the
respective Fiscal Year and same contain a footnote complying with the
requirements of subsection (c)(4) of Rule 3-10 of Regulation S-X
under the Securities Act, such annual financial statements shall be deemed to
meet the requirement that the Borrower provide consolidating financial
statements as otherwise required above for the respective Fiscal Year;


 


65






 












 


(b)      as soon as required under the Exchange
Act but in any event within forty-five (45) days after the end of each of the
first three Fiscal Quarters of each Fiscal Year of Holdings, its consolidated
balance sheet and related consolidated statements of operations, stockholders’
equity and cash flows as of the end of and for such Fiscal Quarter and the
then-elapsed portion of the Fiscal Year, setting forth in each case in
comparative form the figures for the corresponding period or periods of (or, in
the case of the balance sheet, as of the end of) the previous Fiscal Year, and
its consolidating balance sheet and related consolidating statement of
operations for such period; provided that if Holdings has filed with the
SEC its quarterly financial statements for the respective Fiscal Quarter and
same contain a footnote complying with the requirements of subsection (c)(4) of
Rule 3-10 of Regulation S-X under the Securities Act, such quarterly
financial statements shall be deemed to meet the requirement that the Borrower
provide consolidating financial statements as otherwise required above for the
respective Fiscal Quarter;


 


(c)      concurrently with any delivery of
financial statements under clause (a) or (b) above, a compliance
certificate of a Financial Officer of the Borrower in substantially the form of
Exhibit J (i) certifying, on behalf of the Borrower, in the
case of the financial statements delivered under clause (a) or (b), as
presenting fairly in all material respects as of the date of each such
statement the financial condition and results of operations of Holdings and its
consolidated Subsidiaries on a consolidated and consolidating basis in
accordance with GAAP, subject, in the case of financial statements delivered
pursuant to clause (b), to normal year-end audit adjustments and the absence of
footnotes, (ii) certifying as to whether a Default or Event of Default has
occurred and is continuing and, to the knowledge of such Financial Officer
after due inquiry, whether any Default or Even of Default has occurred during
the respective Fiscal Quarter or Fiscal Year and, if a Default or Event of
Default has occurred during the respective Fiscal Quarter or Fiscal Year or is
then continuing, in each case specifying the details thereof and any action
taken or proposed to be taken with respect thereto, and (iii) certifying
as to whether any material change in GAAP or in the application thereof (to the
extent such change is applicable to Holdings and its consolidated Subsidiaries)
has occurred since the date of the audited financial statements referred to in Section 9.04
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate which certificate shall (i) set
forth in reasonable detail the calculations required to establish whether
Holdings and its Subsidiaries were in compliance with the provisions of
Sections 11.03(iii)(4), 11.04(viii), 11.06(xiv), 11.10, 11.11 and 11.12 at the
end of such Fiscal Quarter or Fiscal Year, as the case may be, (ii) if
delivered with the financial statements required by Section 10.01(a), set
forth in reasonable detail the amount of (and the calculations required to
establish the amount of) Excess Cash Flow for the respective Excess Cash
Payment Period and the amount of any required payment under Section 5.02(e) of
the First Lien Credit Agreement in respect of such Excess Cash Payment Period
and a calculation in reasonable detail of the Cumulative Retained Excess Cash
Flow Amount (showing in reasonable detail the sources and uses thereof) and (iii) certify
that there have been no changes to the information in Schedules 3.03
(Pledged Securities), 4.02(b) (Grantor Legal Name), 4.02(c) (Merger
and Acquisitions), 4.02(d) (Grantor Organizational Information), 4.02(e) (Collateral
Address), 4.02(j) (Intellectual Property), 4.06(a) (Deposit
Accounts) or 4.06(b) (Securities Accounts) of the Guaranty and
Collateral Agreement since the Initial Borrowing Date or, if later, since the
date of the most recent certificate delivered pursuant to this Section 10.01(c),
or if there have been any such changes, a list in reasonable detail of such
changes (but, in each case with respect to this clause (iii), only to the
extent that


 


66

















 


such changes in information are required to be reported to the
Collateral Agent pursuant to the terms of such Security Documents) and whether
Holdings and the other Credit Parties have otherwise taken all actions required
to be taken by them pursuant to such Security Documents in connections with any
such changes;


 


(d)      concurrently with any delivery of
financial statements under clause (a) above, a certificate or other
written statement of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default or Event of Default
(which certificate may be limited to the extent required by accounting rules or
guidelines);


 


(e)      as soon as available, but in any event
not more than ninety (90) days after the end of each Fiscal Year of Holdings, a
copy of the plan and forecast (including a projected consolidated balance
sheet, income statement and cash flow statement) of Holdings and its
Subsidiaries for each month of such Fiscal Year (the “Projections”),
together with a summary of assumptions underlying such forecast, in form
reasonably satisfactory to the Administrative Agent;


 


(f)       promptly after the same become publicly
available, copies of all periodic and other reports, proxy statements and other
materials filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities exchange, or
distributed by Holdings to its public securities holders generally, as the case
may be;


 


(g)      promptly following any request therefor,
such other information regarding the operations, business affairs and financial
condition of any Credit Party or any Subsidiary, or compliance with the terms
of this Agreement, as the Administrative Agent may reasonably request; and


 


(h)      promptly following the reasonable request
from the Administrative Agent, any documentation and other information required
to be delivered pursuant to the requirements of Section 6.08.


 


Documents required to be
delivered pursuant to Section 10.01 and Section 10.02 may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date on which such documents are posted on the Borrower’s
behalf on IntraLinks/IntraAgency or another website identified in the notice
provided pursuant to the next succeeding paragraph of this Section 10.01, if
any, to which each Lender and the Administrative Agent have been granted access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that (x) upon written request by
the Administrative Agent or any Lender, the Borrower shall deliver paper copies
of such information to the Administrative Agent or such Lender (as applicable)
and (y) the Borrower shall notify (which may be by facsimile or electronic
mail) the Administrative Agent of the posting of any such documents.  Each Lender shall be solely responsible for
timely accessing posted documents or requesting delivery of paper copies of
such documents from the Administrative Agent and maintaining its copies of such
documents.


 


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The Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Lead Arranger will make available to the
Lenders materials and/or information provided by or on behalf of Holdings
and/or the Borrower hereunder (collectively, “Borrower Materials”) by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b) certain of the Lenders may be “public-side”
Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to the Holdings or any of its Subsidiaries or their
securities) (each, a “Public Lender”). 
The Borrower hereby agrees that it will use commercially reasonable
efforts to identify that portion of the Borrower Materials that may be
distributed to the Public Lenders and that the Borrower will use commercially
reasonable efforts to (w) clearly and conspicuously mark all such Borrower
Materials “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower
Materials “PUBLIC,” the Borrower shall be deemed to have authorized the
Administrative Agent, the Lead Arranger and the Lenders to treat such Borrower
Materials as not containing any material non-public information (although it
may be sensitive and proprietary) with respect to the Borrower or its
securities for purposes of United States federal and state securities laws (provided,
however, that the Borrower Materials shall be subject to Section 14.16,
to the extent applicable; (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public
Investor”; and (z) the Administrative Agent and the Lead Arranger shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Investor.”  At the request of the
Administrative Agent or the Lead Arranger, the Borrower shall promptly review
any Borrower Materials as may be requested in order to determine whether same
may be marked “PUBLIC” and made available to Public Lenders as provided above.


 


10.02.      Notices of Material Events. 
The Borrower will furnish to the Administrative Agent and each Lender
prompt written notice of the following:


 


(a)      the occurrence of any Default or Event of
Default;


 


(b)      the written assertion of which a
Responsible Officer of the Borrower has knowledge by the holder of any
Indebtedness of any Credit Party in excess of $25,000,000 principal amount then
outstanding that any event of default exists with respect thereto or that any
Credit Party is not in compliance therewith;


 


(c)      receipt of any written notice of which a
Responsible Officer of the Borrower has knowledge of any governmental
investigation or any litigation commenced or threatened against any Credit
Party that (i) seeks damages which could reasonably be expected to exceed
$25,000,000; (ii) seeks injunctive relief that, if granted, could
reasonably be expected to have a Material Adverse Effect, (iii) is
asserted or instituted against any Plan, its fiduciaries or its assets, which
assertion could reasonably be expected to result in damages, costs or
liabilities of any Credit Party or Subsidiary in excess of $25,000,000; (iv) alleges
criminal misconduct by any Credit Party or Subsidiary that, if resulting in a
conviction, could reasonably be expected to have a Material Adverse Effect; (v) alleges
the violation of any law regarding, or seeks remedies in connection with, any
Environmental Laws, which resolution or remedy asserts or could reasonably be
expected to result in damages, costs or liabilities of any Credit Party or
Subsidiary 


 


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in excess of $25,000,000; or (vi) involves any product recall to
the extent such product recall could reasonably be expected to have a Material
Adverse Effect;


 


(d)      commencement of any proceedings
contesting any tax, fee, assessment, or other governmental charge in excess of
$25,000,000;


 


(e)      any loss, damage, or destruction to the
Collateral in the amount of $25,000,000 or more, whether or not covered by
insurance;


 


(f)       after any Responsible Officer of the
Borrower becoming aware of any pending or threatened strike, work stoppage,
unfair labor practice claim, or other labor dispute affecting the Borrower or
any of its Subsidiaries in a manner which could reasonably be expected to have
a Material Adverse Effect;


 


(g)      the occurrence of any ERISA Event that,
alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $25,000,000; and


 


(h)      any other development that results in, or
could reasonably be expected to result in, a Material Adverse Effect.


 


Each notice delivered under this Section 10.02 shall
be accompanied by a statement of a Financial Officer or other executive officer
of the Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.


 


10.03.      Existence; Conduct of Business. 
Each Credit Party will, and will cause each of its Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits, privileges
and franchises material to the conduct of its business, and maintain all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted, in each case except where the failure to do so could
not, in the aggregate, reasonably be expected to have a Material Adverse
Effect; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation, dissolution or other transaction permitted under Section 11.03;
provided, further, that nothing in this Section 10.03 shall
prevent any Credit Party from discontinuing the corporate existence of any
Subsidiary if discontinuance is desirable in the conduct of such Credit Party’s
business or the business of such Subsidiary and such discontinuance is not
disadvantageous in any material respect to the Lenders.


 


10.04.      Payment of Obligations. 
Each Credit Party will, and will cause each of its Subsidiaries to, pay
or discharge when due all material Indebtedness and all other material
liabilities and obligations, including Taxes, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) such Credit Party or such Subsidiary has set aside on its
books adequate reserves with respect thereto to the extent required in accordance
with GAAP and (c) the failure to make payment pending such contest could
not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 


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10.05.      Maintenance of Properties and Intellectual
Property Rights.  Except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect, each Credit Party
will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain in effect at all
times all material intellectual property rights and licenses, which are
necessary for it to own its property or conduct its business.


 


10.06.      Books and Records; Inspection Rights;
Annual Lender Meetings.  (a)  Each Credit Party will, and will cause each of
its Subsidiaries to, keep proper books of record and account in which entries
which are full, true and correct in all material respects are made of all
material dealings and transactions in relation to its business and
activities.  Each Credit Party will, and
will cause each of its Subsidiaries to, permit any representatives designated
by the Administrative Agent (including employees of the Administrative Agent,
or any consultants, accountants, lawyers and appraisers retained by the
Administrative Agent), upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants (provided a representative from the Borrower shall have the right
to be present), all at such reasonable times during normal business hours and
as often as reasonably requested; provided, that following the Effective Date
and so long as no Event of Default has occurred and is continuing, the Borrower
shall only be required to reimburse the Administrative Agent in accordance with
Section 14.01 for the cost of two such inspections in any Fiscal
Year.  The Credit Parties acknowledge
that the Administrative Agent, after exercising its rights of inspection, may
prepare and distribute to the Lenders reports regarding same for internal use
by the Administrative Agent and the Lenders.


 


(b)      At the request of the Administrative
Agent, the Borrower will within 30 days after the date of the delivery (or, if
later, required delivery) of the annual financial information pursuant to
Sections 10.01(a) (or such later date agreed to by the Administrative
Agent), hold a meeting (with telephonic conferences being acceptable if agreed
to by the Administrative Agent), at a time and location (as applicable)
selected by the Borrower and reasonably acceptable to the Administrative Agent,
with all of the Lenders that choose to attend, to review the financial results
of the previous Fiscal Year and the financial condition of Holdings and its
Subsidiaries and the budgets presented for the current Fiscal Year of Holdings
and its Subsidiaries.


 


10.07.      Compliance with Laws. 
Each Credit Party will, and will cause each of its Subsidiaries to,
comply with all statutes, 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
have a Material Adverse Effect.


 


10.08.      Use of Proceeds. 
All proceeds of the Loans will be used by the Borrower to finance the
Merger, the termination of the Prior Merger Agreement, the Exchange Offer, the
Refinancing and the Top-Off Purchases (if any) and to pay fees and expenses
incurred in connection with the Transaction.


 


10.09.      Insurance.  Each Credit
Party will, and will cause each of its Subsidiaries to maintain with
financially sound and reputable carriers having a financial strength rating of
at


 


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least A- by A.M.
Best Company (or the equivalent rating with respect to markets not rated by A.M.
Best Company) or otherwise reasonably satisfactory to the Administrative Agent,
insurance against: (i) loss or damage by fire and loss in transit; (ii) theft,
burglary, pilferage, larceny, embezzlement, and other criminal activities; (iii) business
interruption; (iv) general liability and (v) and such other hazards,
as is customary in the business of such Person; provided that the Credit
Parties and the Subsidiaries may self-insure in accordance with good business
practice.  Without limiting the
generality of the foregoing, the Borrower shall maintain, with respect to each
Flood Hazard Property, flood hazard insurance, as required by law and as
reasonably acceptable to the Administrative Agent.  All such insurance shall be in amounts, cover
such assets and be under such policies as are customary in the business of such
Person.  No Credit Party will use or
permit any property to be used in any manner which might render inapplicable
any insurance coverage, except as could not reasonably be expected to have a
Material Adverse Effect.  Each Credit
Party shall, as promptly as practicable (and in any event by April 30,
2010 or such later date as may be agreed by the Administrative Agent), deliver
to the Collateral Agent certificates of insurance with respect to the insurance
maintained by the Credit Parties as required above and naming the Collateral
Agent as additional insured and/or as loss payee, and stating that such
insurance shall not be cancelled or materially revised without at least 30 day’s
prior written notice (or 10 days’ prior written notice in the case of
nonpayment of premiums) by the insured to the Collateral Agent.


 


10.10.      Additional Collateral; Further
Assurances; Etc.  (a)  Subject to applicable law, each
Credit Party shall, unless the Required Lenders otherwise consent, cause each
of its Wholly-Owned Domestic Subsidiaries (excluding any Excluded Subsidiary,
any Inactive Subsidiary and any Agreed Non-Guarantor Subsidiary) formed or
acquired (or which first becomes such a Wholly-Owned Domestic Subsidiary or
ceases to be an Excluded Subsidiary, an Inactive Subsidiary or an Agreed
Non-Guarantor Subsidiary) after the date of this Agreement to become a Credit
Party (and a party to the Guaranty and Collateral Agreement and, if same has
not been terminated in accordance with its terms, the Intercreditor Agreement)
by executing a Joinder Agreement in substantially the form set forth as Exhibit M
hereto, in each case with such changes as may be reasonably requested by or
satisfactory to the Administrative Agent (each, a “Joinder Agreement”)
within thirty (30) days (or such longer time period if agreed to by the
Administrative Agent in its sole discretion) after the formation or acquisition
thereof or after the first date upon which the respective Subsidiary of such
Person becomes a Wholly-Owned Domestic Subsidiary or ceases to be an Excluded
Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary.  Upon execution and delivery thereof, each
such Person (i) shall become a Guarantor hereunder and thereupon shall
have all of the rights, benefits, duties, and obligations in such capacity
under the Bridge Loan Documents and (ii) will grant Liens to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders, in any property of such Credit Party which constitutes Collateral as
set forth in, and in accordance with, the Security Documents.  Without limiting the foregoing, it is
understood and agreed that all actions specified above shall be required to be
taken with respect to Target and each of its Wholly-Owned Domestic Subsidiaries
(excluding any Excluded Subsidiary, any Inactive Subsidiary and any Agreed
Non-Guarantor Subsidiary) as soon as practicable following the Merger Closing
Date, and in any event within thirty (30) days thereafter or such later date if
agreed to by the Administrative Agent in its sole discretion; provided
that actions with respect to Target Mortgaged Properties shall be taken as
required by the following clause (c).


 


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(b)      Subject to the time period in which to
deliver a Joinder Agreement pursuant to Section 10.10(a) above, each
Credit Party will cause (i) 100% of the issued and outstanding Equity
Interests of each of its Domestic Subsidiaries (excluding any Excluded
Subsidiary) and (ii) 66% of the issued and outstanding voting Equity
Interests in each Foreign Subsidiary (excluding any Excluded Subsidiary), and
100% of the issued and outstanding non-voting Equity Interests in each such
Foreign Subsidiary, directly owned by the Borrower or any Guarantor to be
subject at all times to a perfected Lien in favor of the Administrative Agent
pursuant to the terms and conditions of the Bridge Loan Documents or other
security documents as the Administrative Agent shall reasonably request.


 


(c)      Within 60 days following the Merger
Closing Date (or such later date as may reasonably be agreed to by the
Administrative Agent, provided one extension of 30 days shall automatically be
granted if the applicable Credit Parties are using good faith efforts to
satisfy this covenant), Target and its Subsidiaries which are Credit Parties
(as required by preceding clause (a)) shall be required to grant Mortgages with
respect to each Target Mortgaged Property and, in connection therewith, shall
take all the actions specified in Section 6.18 as would have been required
if the requested Target Mortgaged Property were an Original Mortgaged Property;
provided that the actions required to be taken pursuant to clauses (ii) and
(iii) of Section 6.18 shall not be required to be completed until 90
days following the Merger Closing Date (or such later date as may be agreed to
by the Administrative Agent in its sole discretion).


 


(d)      Holdings will, and will cause each
Subsidiary that, after the Effective Date, provides security, directly or
indirectly, under the First Lien Credit Documents (or any Permitted Refinancing
Indebtedness incurred in respect thereof) to pledge its assets that secure the
obligations under the First Lien Loans (or any Permitted Refinancing
Indebtedness incurred in respect thereof) to secure the Obligations hereunder
on at least a second-ranking basis (in relation to the First Lien Indebtedness)
in a manner consistent with the Intercreditor Agreement and with the priority
contemplated under this Agreement and the other Bridge Loan Documents, in each
case pursuant to security documents (collectively, the “Additional Security
Documents”) which are substantially consistent with those used to create
the respective security interests pursuant to the First Lien Credit Documents
or relevant Permitted Refinancing Indebtedness.


 


(e)      Holdings will, and will cause each of the
other Credit Parties to, at the expense of Holdings and the Borrower, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
financing statements, transfer endorsements, powers of attorney, certificates,
real property surveys, reports, landlord waivers, bailee agreements, control
agreements and other assurances or instruments and take such further steps
relating to the Collateral covered by any of the Security Documents as the
Collateral Agent may reasonably require; provided that the foregoing shall not
require actions which are expressly not required to be taken in accordance with
the terms of any relevant Security Document or this Agreement.  Furthermore, Holdings will, and will cause
the other Credit Parties that are Subsidiaries of Holdings to, deliver to the
Collateral Agent such opinions of counsel, title insurance and other related
documents as may be reasonably requested by the Administrative Agent to assure
itself that this Section 10.10 has been complied with or this Agreement.


 


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(f)       If the Administrative Agent or the
Required Lenders reasonably determine that they are required by law or
regulation to have appraisals prepared in respect of any Real Property of
Holdings and the other Credit Parties constituting Collateral, Holdings and the
Borrower will, at their own expense, provide to the Administrative Agent
appraisals which satisfy the applicable requirements of the Real Estate
Appraisal Reform Amendments of the Financial Institution Reform, Recovery and
Enforcement Act of 1989, as amended, and which shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent.


 


(g)      Holdings and the Borrower agree that each
action required by clauses (d) through (f) of this Section 10.10
shall be completed as soon as possible, but, except as otherwise expressly
provided in the relevant Security Document or this Agreement, in no event later
than 45 days after such action is requested to be taken by the Administrative
Agent or the Required Lenders (or such longer period as may be satisfactory to the
Administrative Agent or the Required Lenders, as the case may be); provided
that in no event will Holdings or any of its Subsidiaries be required to take
any action, other than using its commercially reasonable efforts, to obtain
consents from third parties (who are not Subsidiaries of Holdings) with respect
to its compliance with this Section 10.10.


 


(h)           If any Foreign Pledge Agreements (as
defined in the First Lien Credit Agreement) are executed with respect to the
security interests created under the First Lien Credit Documents, then
substantially contemporaneously therewith the respective Credit Party or Credit
Parties shall execute and deliver substantially similar pledge agreements to
secure the Obligations hereunder (each a “Foreign Pledge Agreement” and,
collectively, the “Foreign Pledge Agreements”), it being understood and
agreed, however, in the case of any Foreign Pledge Agreement entered into by
Holdings or any of its Subsidiaries, the respective Credit Party shall not be
required to pledge more than 66% of the total combined voting power of all
classes of Equity Interests entitled to vote of any Foreign Subsidiary that is
a corporation (or treated as such for U.S. federal tax purposes) in support of
its obligations (x) as a Borrower under the Bridge Loan Agreement (in the
case of the Borrower) or (y) under its Guaranty in respect of the
Obligations of the Borrower (in the case of the other Credit Parties) (although
100% of the non-voting Equity Interests, if any, of each such Foreign Subsidiary
shall be required to be pledged in support of such obligations).  Notwithstanding anything to the contrary
contained in this Section 10.10, except if required pursuant to preceding
clause (d)), no Foreign Subsidiary shall guarantee any Obligation of the Borrower
and no security or similar interest shall be granted in the assets of any
Foreign Subsidiary, which security or similar interest guarantees any
Obligation of the Borrower.  In
determining whether to require one or more Foreign Pledge Agreements as
permitted above, the Administrative Agent or Required Lenders, as the case may
be, shall (in their sole discretion) consider the costs of the actions required
in connection with the execution and delivery of the respective Foreign Pledge
Agreements as against the relative value of the security interests and
additional protection provided thereby.


 


(i)            To the extent any action which would
otherwise have been required to be taken pursuant to Sections 6.10 and 6.18
hereof have not been taken on or prior to the Initial Borrowing Date as
permitted by Section 6.10(b), then the Borrower shall cause all such
actions to be taken as promptly as practicable after the Initial Borrowing
Date, provided that in any event such actions shall be required to be completed
within (x) 30 days after the Initial Borrowing Date in the case of actions
otherwise required under Sections 6.10(a), (y) 60 days after the Initial 


 


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Borrowing Date in the case of actions required to be
taken pursuant to Section 6.18 and (z) 90 days after the Initial
Borrowing Date in the case of all actions to be taken pursuant to clauses (ii) and
(iii) of Section 6.18, in each case as such dates may be extended
(with respect to a given action or actions) at the sole discretion of the
Administrative Agent.  In determining
whether to require one or more Foreign Pledge Agreements as permitted above,
the Administrative Agent or Required Lenders, as the case may be, shall (in
their sole discretion) consider the costs of the actions required in connection
with the execution and delivery of the respective Foreign Pledge Agreements as
against the relative value of the security interests and additional protection
provided thereby.


 


Notwithstanding anything to the contrary contained
above, the Borrower and the other Credit Parties shall not be required to grant
Mortgages with respect to any Original Mortgage Tax State Property and, in the
case of any Real Properties (other than the Original Mortgage Properties and
the Target Mortgage Properties) at any time acquired or owned in one or more
Mortgage Tax States, the Credit Parties shall not be required to grant
Mortgages therein unless and until such time (if any) as the First-Lien
Obligations (as defined in the Intercreditor Agreement) are fully secured to
the maximum principal thereof.


 


10.11.      [Intentionally Omitted.]


 


10.12.      Ratings.  Holdings and
the Borrower shall use commercially reasonable efforts to obtain and maintain (i) a
public corporate family rating of Holdings and a rating of the Loans, in each
case from Moody’s, and (ii) a public corporate credit rating of Holdings
and a rating of the Loans, in each case from S&P (it being understood and
agreed that “commercially reasonable efforts” shall in any event include the
payment by Holdings or the Borrower of customary rating agency fees and
cooperation with information and data requests by Moody’s and S&P in
connection with their ratings process).


 


10.13.      Merger; Target Refinancing. 
Holdings and the Borrower hereby agree and covenant to:


 


(a)      consummate the Merger in accordance in
all material respects with the terms and conditions of the Merger Agreement and
all applicable law as promptly as practicable and in any event on or prior to
the earlier to occur of (x) the 35th day after the 90% Condition has been
satisfied and (y) October 15, 2010;


 


(b)      within 50 days after the Merger Closing
Date, cause the redemption in full of all then outstanding Target Existing
Notes (the “Target Refinancing”), which Target Existing Notes shall at
such time be permanently retired; provided that if any Target Existing
Notes are outstanding on the Merger Closing Date, Borrower shall cause Target
or Target Sub to issue (on the Merger Closing Date) an irrevocable notice of
redemption of all then outstanding Target Existing Notes in accordance with the
requirements of the indenture governing the Target Existing Notes (the “Target
Existing Notes Indenture”) and shall on the Merger Closing Date deposit
with the trustee under the Target Existing Notes Indenture cash in the
aggregate amount needed to effect such redemptions (including amounts needs for
accrued interest and any applicable make whole premiums); and


 


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(c)      effect the Transaction in all material
respects in accordance with the Transaction Summary.


 


10.14.      Securities Demand.  (a)   At any time and from time to time during the
period beginning on the Merger Closing Date and ending on the first anniversary
of the Merger Closing Date, if and to the extent so directed in a Demand Notice
(as defined below) given in accordance with Section 10.14(b) with
respect to a private issuance and sale of Securities (as defined below), the
Borrower shall provide to the Lead Arranger as soon as reasonably practicable a
preliminary offering memorandum usable in a customary high-yield road show
relating to the issuance by the Borrower of Securities (including all financial
statements and other data to be included therein (including all audited
financial statements and unaudited interim financial statements (each of which
unaudited interim financial statements shall have undergone a SAS 100 review))
and all appropriate pro forma financial statements prepared in accordance with
Regulation S-X under the Securities Act (with such deviations therefrom as may
be mutually agreed by Borrower and the Lead Arranger), and substantially all
other data (including selected financial data) that the SEC would require in a
registered offering; provided that (i) financial information that would be
so required by Rule 3-16 of Regulation S-X shall not be required in
any offering memorandum with respect to Securities and (ii) a
consolidating footnote required by Rule 3-10 of Regulation S-X shall not
be required in any offering memorandum with respect to Securities so long as
the substantive information that would be presented in such footnote is
otherwise disclosed in such offering memorandum; and provided further that any
offering memorandum with respect to Securities may include information through
incorporation by reference to the same extent, and on the same basis, as would
be permitted by Section 10.15(b) if such offering memorandum were an
offering memorandum for Exchange Notes required to be delivered pursuant to Section 10.15(b).


 


(b)      At any time and from time to time during
the period commencing upon the Effective Date and ending on the first
anniversary of the Merger Closing Date, upon notice by the Lead Arranger to the
Borrower (a “Demand Notice”), the Borrower will take such actions as are
reasonably necessary to cause the public or private issuance and sale of debt
securities (such debt securities, the “Securities” and such issuance and sale
of debt securities, a “Securities Offering”) in one or more transactions
in such amounts and on such terms and conditions (including without limitation
covenants, events of default, guarantees, collateral and intercreditor
provisions, currency, interest and/or dividend rates, yield, redemption
provisions, maturity date and registration rights) as specified in the Demand
Notice, in each case, as MS&Co. in its reasonable judgment determines to be
appropriate in light of the then prevailing circumstances and market conditions
and the financial condition and prospects of Holdings and its Subsidiaries at
such time; provided, however, that (a) at the date of issuance of
Securities, the weighted average total interest rate on (i) Securities
issued to replace or refinance the Loans and Commitments and (ii) the
First Lien Loans and commitments under the First Lien Credit Agreement, shall
not exceed the Total Yield Cap, (b) any securities issued in a public
Securities Offering or in a private Securities Offering with registration
rights will not, without Holdings’ consent, be secured by the Equity Interests
of any of Holdings’ Subsidiaries to the extent that the granting of such
security interest would give rise to any requirement to file separate financial
statements for such subsidiary with the SEC pursuant to Rule 3-16 of
Regulation S-X under the Securities Act or any successor rule or
regulation and (c) each Demand Notice shall provide for not less than
$50,000,000 of Securities to be issued. 
Any Securities that are the subject of a


 


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Demand Notice will be issued pursuant to one or more
customary agreements, which, in each case, shall contain such terms, conditions
and covenants as are typical and customary for similar financings (as
determined by MS&Co.) and as are reasonably satisfactory in all respects to
the MS&Co.; provided that (i) the Securities shall be denominated in
Dollars, (ii) the guarantee structure shall be consistent with that in the
Bridge Loan Documents, (iii) the maturity date of the Securities shall not
be less than 7 years after the Effective Date, (iv) the Securities shall
be unsecured (unless and to the extent otherwise permitted to be secured in
accordance with the relevant provisions of the First Lien Credit Documents) and
(v) the Securities will not require any scheduled amortization payments,
mandatory redemptions or sinking fund payments prior to the final stated
maturity thereof.


 


(c)      Notwithstanding anything to the contrary
contained herein, in the event of a failure by the Borrower to execute a
Securities Offering within 30 days after delivery of a Demand Notice (such 30th
day, the “Demand Failure Date”), the Lead Arranger shall have the right
to increase the interest rate with respect to the Loans on the Demand Failure
Date (and/or any time thereafter) to an amount such that the weighted average
total interest rate on such Loans and the First Lien Loans and commitments
under the First Lien Credit Agreement shall not exceed the Total Yield Cap.


 


10.15.     Exchange Notes; Exchange Notes
Indentures; Etc.  (a)  
If any Loan remains outstanding at any time on or after the 20th
Business Day prior to the Initial Maturity Date then, upon any request by
Requesting Bridge Lenders to Exchange at least $50,000,000 aggregate principal
amount of Loans (which request shall specify the aggregate principal amount of
Loans then requested to be Exchanged by the Requesting Bridge Lenders) for a
like principal amount of Exchange Notes (each a “Requesting Bridge Lenders
Exchange Request”), the Borrower agrees to effect such Exchange within 15
Business Days after such request (or, if later, upon the occurrence of the
Initial Maturity Date).  Upon its receipt
of any Requesting Bridge Lenders Exchange Request, the Borrower shall promptly
(and in any event within 3 Business Days) notify the Lenders other than the
Requesting Bridge Lenders (each an “Other Lender” and such notice to the
Other Lenders the “Other Lender Notice”) of such Requesting Bridge
Lenders Exchange Request, of the principal amount of Loans requested to be
Exchanged pursuant to such Requesting Bridge Lenders Exchange Request and of
the Other Lenders’ opportunity to exchange Loans for Exchange Notes pursuant to
the respective Exchange, and to the extent that any Other Lender notifies the
Borrower within 10 Business Days after effectiveness of the Other Lender Notice
with respect to such Other Lender pursuant to Section 14.03 that such
Other Lender elects to include principal of such Other Lender’s Loans in such
Exchange, such Other Lender’s Loans shall be so exchanged for Exchange Notes
pursuant to said Exchange.  With respect
to notices pursuant to the immediately preceding sentence it is understood and
agreed that (i) any Lender may, subject to the requirements of the
immediately preceding sentence, elect to include all or any portion of the
principal of its outstanding Loans in any Exchange, (ii) no Lender shall
be obligated to participate in any Exchange and (iii) if any Lender fails
to provide a response to an Other Lender Notice as required above, such Lender
shall be deemed to have declined to participate in the Exchange to which such
Other Lender Notice relates.  Loans
delivered to the Borrower under this Section 10.15 in exchange for
Exchange Notes shall be canceled by the Borrower and the applicable Lenders and
the corresponding amount of the Loan deemed repaid, and the Exchange Notes
shall be governed by and construed in accordance with the terms of the Exchange
Notes Indenture.


 


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(b)      Following its receipt of a Requesting
Bridge Lenders Exchange Request, the Borrower agrees, as promptly as
practicable and in any event within 20 Business Days after such receipt, to (i) deliver
to the respective Requesting Bridge Lenders and all other Lenders participating
in the applicable Exchange as well as any then existing holders of Exchange
Notes, an offering memorandum of the type customarily utilized in a Rule 144A
offering of high yield securities covering the resale of such Exchange Notes by
such Lenders or Exchange Note holders, in such form and substance as is
reasonably acceptable to the Borrower and the Requesting Bridge Lenders, and
(subject to Section 10.15(e)) keep such offering memorandum updated during
the first year after the respective Exchange, provided that the Borrower may
include information in such offering memorandum by incorporating such
information by reference to documents filed with the SEC and may update such
offering memorandum through “forward” incorporation by reference to Holdings’
or the Borrower’s filings with the SEC on and after the date of such offering
memorandum, and the effect of such incorporation by reference and such updating
shall be deemed to be consistent with the manner in which such incorporation by
reference and updating would operate pursuant to Rule 412 under the
Securities Act if the offering memorandum were a registration statement under
the Securities Act, (ii) execute an exchange agreement containing
provisions customary in Rule 144A securities purchase agreements (including
indemnification provisions), if requested by the Requesting Bridge Lenders, (iii)
deliver or cause to be delivered such opinions and accountants’ comfort letters
addressed to the Requesting Bridge Lenders and such certificates as the
Requesting Bridge Lenders may request as would be customary in Rule 144A
offerings and otherwise in form and substance reasonably satisfactory to the
Requesting Bridge Lenders and (iv) take such other actions, and cause its
advisors, auditors and counsel to take such actions, as are reasonably
requested by the Requesting Bridge Lenders in connection with issuances or
resales of Exchange Notes, including providing such information regarding the
business and operations of the Borrower and its Subsidiaries as is reasonably
requested by the Requesting Bridge Lenders and customarily provided in due
diligence investigations in connection with purchases of securities by initial
purchasers in Rule 144A offerings. 
The Borrower shall not be required to act on or respond to any
Requesting Bridge Lenders Exchange Request other than the first four such
requests received by the Borrower and shall not be required to undertake the
actions specified in the immediately preceding sentence, including clauses (i) through
(iv) thereof, or the second sentence of Section 10.15(a) with respect
to more than four Requesting Bridge Lenders Exchange Requests in the aggregate.


 


(c)      If any Loans remain outstanding on the
date occurring nine calendar months after the Initial Borrowing Date, then the
Borrower shall direct the Administrative Agent to prepare the Exchange Notes
Indenture and the Administrative Agent agrees to direct its counsel to so
prepare the Exchange Notes Indenture. 
The terms of the Exchange Notes Indenture shall be consistent with the
Description of Exchange Notes, it being understood and agreed that all
determinations of market conditions shall be made at such time by the
Administrative Agent and shall be binding on the Borrower in each case so long
as the respective terms (other than pricing and other financial terms and
redemptions provisions) are not more restrictive (as applied to the Borrower)
in any material respect then those contained in this Agreement.  The Administrative Agent shall furnish a
draft of the Exchange Notes Indenture to the Borrower within 20 Business Days
after the date on which the Borrower directs the Administrative Agent to
prepare the Exchange Notes Indenture, and the Borrower shall have an
opportunity to comment on same. 
Following the receipt of the Borrower’s comments (so long as provided


 


77

















 


within 10 Business Days or such longer period as is
acceptable to the Administrative Agent) and the incorporation of those agreed
by the Administrative Agent, the Administrative Agent shall prepare the final
Exchange Notes Indenture, which shall be binding for purposes of this Agreement
and shall be the Exchange Notes Indenture pursuant to which Exchange Notes
shall be issued if any Exchanges are effected. 
The Exchange Notes Indenture shall be finalized on or prior to the date
occurring 20 Business Days prior to the Initial Maturity Date, so that same is
available for Exchanges which may occur at any time or from time to time on or
after the Initial Maturity Date. 
Consistent with the foregoing requirements and concurrently therewith,
the Administrative Agent shall direct its counsel to prepare a registration
rights agreement (the “Registration Rights Agreement”) which shall
provide the registration rights described in the Description of Exchange Notes
and otherwise be in customary form.  The
time periods applicable to the Registration Rights Agreement with respect to
delivery of the initial draft to the Borrower, delivery of the Borrower’s
comments thereon and finalization (after incorporation of such of the Borrower’s
comments as agreed by the Administrative Agent (which agreement with respect to
any comment of the Borrower shall not be unreasonably withheld)) shall be the
same as those applicable to the Exchange Notes Indenture.  The Administrative Agent shall also have the
right to require the execution of any other related customary documentation in
connection with the Exchange Notes Indenture, the Registration Rights Agreement
or any Exchange.  With respect to the
Exchange Notes Indenture, the Borrower shall also be required to retain (at its
own expense) a trustee (reasonably satisfactory to the Administrative Agent) to
act as such pursuant to the Exchange Notes Indenture.


 


(d)      All costs and expenses reasonably
incurred in connection with the forgoing actions required by this Section 10.15
shall be for the account of the Borrower, which shall reimburse the
Administrative Agent for any expenses so incurred by it as described above in
accordance with the requirements of Section 14.01.


 


(e)      Notwithstanding anything to the contrary contained in
this Agreement, upon notice to the Lenders that have received an offering
memorandum relating to Exchange Securities pursuant to this Section 10.15
(any such notice a “Suspension Notice”), the Borrower may at any time,
on one or more occasions, require suspension of the use of all such offering
memoranda until the Borrower delivers to such Lenders a Clearance Notice (as
defined below) with respect to such suspension (any such period of suspension a
“Blackout Period”), provided that all Blackout Periods, in the
aggregate, shall not exceed 90 days during any period of 12 consecutive
calendar months, if Holdings or the Borrower determines in good faith that (i) it
is necessary to update such an offering memorandum and (ii) such update
would entail disclosure of information that, directly or indirectly (including
through any public disclosure thereof made pursuant to Regulation FD or
otherwise), (A) could reasonably be expected to have a material adverse effect
on the business, operations or prospects of Holdings or any of its
subsidiaries, (B) could reasonably be expected to jeopardize the success
of a transaction or prospective transaction in which Holdings or any of its
Subsidiaries is involved or (C) is prohibited by the terms of an agreement
or order to which Holdings or any of its Subsidiaries is subject.  Upon a Lender’s receipt of any Suspension
Notice, such Lender shall discontinue disposition of Exchange Notes pursuant to
any offering memorandum relating thereto and shall discontinue dissemination of
any offering memorandum relating to Exchange Notes until receipt from the
Borrower of notice of termination of the applicable Blackout Period (such
notice the “Clearance Notice” with respect to such Blackout Period) and
receipt of any updated offering memorandum identified in


 


78

















 


the Clearance Notice (to the extent applicable to such
Lender’s Exchange Notes; provided that no such discontinuance shall be required
if, and to the extent, the limitations on the duration of the respective
Blackout Period contained above would be exceeded).


 


SECTION 11.       Negative Covenants. 
Each of Holdings and the Borrower hereby covenants and agrees that on
and after the Effective Date and until the Total Commitment has terminated and
the Loans and Notes (in each case, together with interest thereon), Fees and
all other Obligations (other than indemnities that are not then due and
payable) incurred hereunder and thereunder, are paid in full:


 


11.01.     Indebtedness. 
Holdings will not, and will not permit any of its Subsidiaries to,
contract, create, incur, assume or suffer to exist any Indebtedness, except:


 


(i)            (A) Indebtedness
of one or more Credit Parties incurred pursuant to revolving credit facilities
(including revolving credit facilities which may be made available pursuant to
the First Lien Credit Agreement) in an aggregate principal amount not to exceed
$500 million at any time outstanding and (B) Indebtedness of the Borrower
or Holdings (which may be guaranteed by one or more Credit Parties, for so long
as each such Person remains a Credit Party hereunder) incurred on or prior to
the Merger Closing Date as term loans pursuant to the First Lien Credit
Agreement; provided that (x) all net cash proceeds of each incurrence of
Indebtedness permitted pursuant to this clause (i)(B) shall be used solely
to finance the Merger, the Exchange Offer, the Borrower Refinancing, the Target
Refinancing and/or Top-Off Purchases (if any) and to pay fees and expenses
incurred in connection with the Transaction and (y) the aggregate
principal amount of all Indebtedness incurred pursuant to this clause (B) shall
not exceed $2,000,000,000;


 


(ii)           Indebtedness of
the Borrower or Holdings (which may be guaranteed by one or more Credit
Parties, for so long as each such Person remains a Credit Party hereunder)
incurred on or prior to the Merger Closing Date pursuant to this Agreement
and/or one or more issuances of Permitted Notes; provided that (x) all net
cash proceeds of each incurrence of Indebtedness permitted pursuant to this
clause (ii) shall be used solely to finance the Merger, the Exchange
Offer, the Borrower Refinancing, the Target Refinancing and/or Top-Off
Purchases (if any) and to pay fees and expenses incurred in connection with the
Transaction and (y) the aggregate principal amount of all Indebtedness
incurred pursuant to this clause (ii) shall not exceed $1,750,000,000;


 


(iii)          until the
occurrence of the Merger Closing Date, Indebtedness of Target and its
Subsidiaries that remains outstanding consistent with the requirements of the
second sentence of Section 6.14 hereof;


 


(iv)          until and
including the 50th day after the Merger Closing Date, Indebtedness pursuant to
the Target Existing Notes but only if the actions required by the proviso to Section 10.13(b) hereof
have been taken on the Merger Closing Date;


 


(v)           Indebtedness existing on the
date hereof and set forth in Schedule 11.01;


 


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(vi)          Indebtedness of (w) any
Credit Party to any other Credit Party, (x) Holdings or Mergersub to
Target representing amounts owed to Target for Top-Off Purchases of Target
common stock purchased from Target, (y) any Credit Party to any Foreign
Subsidiary or Excluded Subsidiary so long as (1) such Indebtedness arises
pursuant to Section 11.03(a)(xvi) or is otherwise in a principal amount not in
excess of the amount of cash loaned to such Credit Party from the respective
Foreign Subsidiary or Excluded Subsidiary, (2) such Indebtedness is
unsecured and subordinated to its Obligations pursuant to the respective Credit
Documents to which it is a party (and any other Secured Obligations) on terms
reasonably satisfactory to the Administrative Agent and (3) such Indebtedness
is not Guaranteed by any Credit Party, and (z) Target to the Borrower as a
result of loans made to it pursuant to Section 11.04(xxiii);


 


(vii)         Indebtedness of any
Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is
not a Subsidiary Guarantor;


 


(viii)        Indebtedness of any
Subsidiary that is not a Subsidiary Guarantor to any Credit Party to the extent
that the credit extension creating such Indebtedness is permitted under Section 11.04(viii);


 


(ix)          Indebtedness of Foreign
Subsidiaries in an aggregate principal amount not to exceed $150,000,000 at any
time outstanding;


 


(x)           Guarantees by a
Credit Party of Indebtedness of any other Credit Party (other than Holdings) if
the primary obligation is expressly permitted elsewhere in this Section 11.01
(other than (x) as expressly otherwise provided in the definition of
Permitted Refinancing Indebtedness in the case of such Permitted Refinancing
Indebtedness and (y) Indebtedness incurred or acquired pursuant to clause (vi)(y) above
or (xvi) below, which may not be Guaranteed by a Credit Party unless (in the
case of clause (xvi) below) such Guarantee existed at the time such Credit
Party became a Subsidiary hereunder);


 


(xi)          Guarantees by any Subsidiary
that is not a Subsidiary Guarantor of Indebtedness of other Subsidiaries that
are not Subsidiary Guarantors if the primary obligation is otherwise expressly
permitted elsewhere in this Section 11.01;


 


(xii)         Guarantees by a Credit Party
of Indebtedness of any Subsidiary that is not a Subsidiary Guarantor if the
primary obligation is expressly permitted elsewhere in this Section 11.01
and if the credit extension creating such Guarantee (for this purpose,
determined as if the maximum amount so Guaranteed constitutes an investment
pursuant to said Section 11.04(viii)) is permitted under Section 11.04(viii);


 


(xiii)        (A) Indebtedness of any
Credit Party or any of its Subsidiaries incurred to finance the acquisition,
construction or improvement of any property, plant and equipment, including
Capital Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof;  provided
that such Indebtedness is incurred prior to or within 180 days after such
acquisition or the completion of such construction or


 


80

















 


improvement,
and (B) Permitted Refinancing Indebtedness incurred with respect to
Indebtedness theretofore outstanding pursuant to this clause (xiii); provided
that the aggregate principal amount of Indebtedness permitted by this clause
(xiii) and clause (xiv) of this Section shall not exceed at any time
outstanding an amount equal to 5% of Consolidated Total Assets as at the last
day of the most recently ended Fiscal Quarter for which financial statements
have been (or were required to be) furnished to the Administrative Agent
pursuant to Section 10.01(a) or (b) (or prior to any such
delivery, as shown on the December 31, 2009 consolidated balance sheet of
Holdings delivered pursuant to Section 9.04(a)), as the case may be;
provided that no violation of this clause (xiii) shall occur solely as a result
of any reduction in Consolidated Total Assets if at the time the respective
Indebtedness was incurred such incurrence was permitted within the limitations
established by this clause (xiii);


 


(xiv)        (A) purchase money
Indebtedness incurred in connection with the purchase of any property, plant
and equipment; provided that, the amount of such purchase money Indebtedness
shall be limited to an amount not in excess of the purchase price of such
property, plant and equipment and (B) Permitted Refinancing Indebtedness
in respect of Indebtedness theretofore outstanding pursuant to this clause
(xiv); provided that, the aggregate principal amount of Indebtedness
permitted by this clause (xiv) and clause (xiii) of this Section shall not
exceed at any time outstanding an amount equal to 5% of Consolidated Total
Assets as at the last day of the most recently ended Fiscal Quarter for which
financial statements have been (or were required to be) furnished to the
Administrative Agent pursuant to Section 10.01(a) or (b) (or
prior to any such delivery, as shown on the December 31, 2009 consolidated
balance sheet of Holdings delivered pursuant to Section 9.04(a)), as the
case may be; provided that no violation of this clause (xiv) shall occur solely
as a result of any reduction in Consolidated Total Assets if at the time the
respective Indebtedness was incurred such incurrence was permitted within the
limitations established by this clause (xiv);


 


(xv)         Permitted Refinancing
Indebtedness incurred in respect of (and to refinance) Indebtedness theretofore
outstanding (and permitted to be outstanding) pursuant to clauses (i), (ii), (v) and
(xv) hereof; provided that until the Total Commitment has terminated and
all Bridge Loans have been repaid in full, Permitted Notes may only be issued
pursuant to this clause (xv) if all Net Cash Proceeds thereof are applied to
repay outstanding principal of Loans in accordance with Section 5.02(c);


 


(xvi)        after the Merger Closing
Date, (A) Indebtedness of any Person that becomes a Subsidiary after the
Merger Closing Date; provided that such Indebtedness exists at the time
such Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary and (B) Permitted
Refinancing Indebtedness in respect of Indebtedness theretofore outstanding
pursuant to this clause (xvi); provided that, the aggregate principal
amount of Indebtedness permitted by this clause (xvi) shall not exceed at any
time outstanding an amount equal to 5% of Consolidated Total Assets as at the
last day of the most recently ended Fiscal Quarter for which financial
statements have been (or were required to be) furnished to the Administrative
Agent pursuant to Section 10.01(a) or (b) (or prior to any such
delivery, as shown on the December 31, 2009 consolidated balance sheet of
Holdings delivered


 


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pursuant
to Section 9.04(a)), as the case may be; provided that no violation of
this clause (xvi) shall occur solely as a result of any reduction in
Consolidated Total Assets if at the time the respective Indebtedness was
incurred such incurrence was permitted within the limitations established by
this clause (xvi);


 


(xvii)       Indebtedness of the Borrower
and its Subsidiaries under Interest Rate Protection Agreements and Other
Hedging Agreements permitted under Section 11.05;


 


(xviii)      Indebtedness in respect of
deposits held under forward purchasing arrangements entered into with customers
in the ordinary course of business;


 


(xix)        Indebtedness of any Credit
Party or any of their respective Subsidiaries in respect of performance, bid,
surety, appeal or similar bonds or completion or performance guarantees
provided in the ordinary course of business;


 


(xx)         Indebtedness of
any Credit Party or any of their respective Subsidiaries in respect of workers’
compensation claims or self-insurance obligations otherwise permitted
hereunder, in each case incurred in the ordinary course of business;


 


(xxi)        customary indemnification,
reimbursement or similar obligations and warranties under leases and other
contracts in the ordinary course of business;


 


(xxii)       payment
obligations of Holdings under the NOL Agreement;


 


(xxiii)      Guarantees
constituting investments expressly permitted by Section 11.04 (excluding
clause (iv) thereof);


 


(xxiv)     any
Indebtedness (including the funding of a trust fund, a letter of credit or some
other form of third party instrument or the provision of a Guarantee) of the
Borrower or Holdings required in connection with the provision of financial
assurance pursuant to the Consent Decree;


 


(xxv)      Indebtedness of
Target and Terra Capital or their Subsidiaries to (i) Terra Nitrogen
arising in connection with unpaid obligations to Terra Nitrogen under the
Nitrogen Servicing Agreement and with respect to receivables of Terra Nitrogen
collected by Target or Terra Capital or their Subsidiaries, the proceeds of
which have not then been remitted to Terra Nitrogen and (ii) Terra Canada
with respect to the unpaid purchase price of inventory sold by Terra Canada to
Target or its Subsidiaries in the ordinary course of business or receivables of
Terra Canada collected by Target or Terra Capital or their Subsidiaries, the
proceeds of which have not then been remitted to Terra Canada, provided in each
case that amounts are incurred in the ordinary course of business and settled
on a regular basis in accordance with past practices;


 


(xxvi)     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, so long as such Indebtedness is extinguished within four
Business Days of its incurrence;


 


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(xxvii)    [Intentionally
Omitted];


 


(xxviii)   so long as no
Default or Event of Default then exists or would result therefrom, Indebtedness
of Holdings and the Borrower (which may be Guaranteed by one or more other
Credit Parties) in an aggregate principal amount not exceeding the greater of
$750,000,000 or an amount equal to 10% of Consolidated Total Assets as at the
last day of the most recently ended Fiscal Quarter for which financial
statements have been (or were required to be) furnished to the Administrative
Agent pursuant to Section 10.01(a) or (b) (or prior to any such
delivery, as shown on the December 31, 2009 consolidated balance sheet of
Holdings delivered pursuant to Section 9.04(a)), as the case may be;
provided that (w) at the time of any incurrence of Indebtedness pursuant
to this clause (xxviii), if the aggregate principal amount of Indebtedness so
outstanding would exceed $100,000,000, then the Borrower shall also be required
to establish compliance on a Pro Forma Basis with the covenants set forth in
Sections 11.11 and 11.12 (for this purpose, using the levels provided for September 30,
2010 for all periods prior the time when financial statements for the Fiscal
Year ended December 31, 2010 have been (or were required to be) furnished
to the Administrative Agent, (x) Indebtedness incurred pursuant to this
clause (xxviii) may not be secured unless, at the time of any incurrence of
secured Indebtedness pursuant to this clause (xxviii), the aggregate principal
amount of all outstanding secured Indebtedness pursuant to this clause (xxviii)
shall not exceed an amount equal to 3% of Consolidated Total Assets on the last
day of the most recently ended Fiscal Quarter for which financial statements
have been (or were required to be) furnished to the Administrative Agent
pursuant to Section 10.01(a) or (b) (or prior to any such
delivery, as shown on the December 31, 2009 consolidated balance sheet of
Holdings delivered pursuant to Section 9.04(a)), as the case may be, (y) no
violation of this clause (xxviii) shall occur solely as a result of any
reduction in Consolidated Total Assets if at the time the respective
Indebtedness was incurred such incurrence was permitted within the limitations
established by this clause (xxviii), and (z) not more than $50,000,000 of
Indebtedness may be outstanding pursuant to this clause (xxviii) at any time
prior to the later to occur of the Merger Closing Date and the repayment in
full of all Loans; and


 


(xxix)     so long as no
Default or Event of Default exists at the time of incurrence thereof or would
result therefrom, Indebtedness of Subsidiaries of the Borrower in an aggregate
principal amount not exceeding $50,000,000 at any time outstanding.


 


Notwithstanding anything to the contrary contained
above, (A) except for Indebtedness outstanding pursuant to Section 11.01(i) and
obligations pursuant to Interest Rate Protection Agreements, Other Hedging
Agreements and Cash Management Agreements which are secured on a First Lien
Basis, and one or more issues of Permitted Refinancing Indebtedness incurred in
respect of the foregoing (or a previous issue of Permitted Refinancing
Indebtedness so incurred), no Additional First-Lien Obligations (as defined in
the Intercreditor Agreement) shall be permitted to be incurred at any time and (B) the
only Second-Lien Obligations under, and as defined in, the Intercreditor
Agreement shall be those incurred from time to time under, and as permitted by Section 11.01(ii),
and Permitted Refinancing Indebtedness incurred in respect thereof (or in
respect of Permitted Refinancing Indebtedness originally incurred in respect
thereof or a pervious refinancing thereof) pursuant to Section 11.01(xv).


 


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11.02.     Liens.  Holdings will
not, and will not permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon or with respect to any property or assets (real
or personal, tangible or intangible) of Holdings or any of its Subsidiaries,
whether now owned or hereafter acquired, or sell any such property or assets
subject to an understanding or agreement, contingent or otherwise, to
repurchase such property or assets (including sales of accounts receivable with
recourse to Holdings or any of its Subsidiaries), or assign any right to
receive income or authorize the filing of any financing statement under the UCC
or any other similar notice of Lien under any similar recording or notice
statute; provided that the provisions of this Section 11.02 shall
not prevent the creation, incurrence, assumption or existence of the following
(Liens described below are herein referred to as “Permitted Liens”):


 


(i)            Permitted
Encumbrances;


 


(ii)           Liens on (x) First
Lien Collateral securing First Lien Indebtedness permitted to be outstanding
pursuant to Sections 11.01(i) and/or (xv) (and the last sentence of Section 11.01),
and (y) Collateral securing Second Lien Indebtedness permitted to be
outstanding pursuant to Section 11.01(ii) and/or (xv) (and the last
sentence of Section 11.01); provided that in each case each issue of the
respective First Lien Indebtedness or Second Lien Indebtedness is subject to
the terms of the Intercreditor Agreement (by way of execution of the
Intercreditor Agreement by the agent, trustee or other representative for the
respective issue of Indebtedness or a joinder thereto); and


 


(iii)          until the
Merger Closing Date, Indebtedness outstanding pursuant to Section 11.01(iii) may
be secured by the assets of Target and its Subsidiaries (including
after-acquired property as required by the terms of such Indebtedness) which
secured same prior to the Exchange Closing Date;


 


(iv)          until the 50th
day after the Merger Closing Date, Indebtedness permitted to remain outstanding
pursuant to Section 11.01(iv) may be secured by amounts deposited with the
trustee for the Target Existing Notes in order to repay same on or prior to the
50th day after the Merger Closing Date;


 


(v)           any Lien on any property or
asset of any Credit Party or any of its Subsidiaries existing on the date
hereof and set forth in Schedule 11.02(v); provided that (i) such
Lien shall not apply to any other property or asset of such Credit Party or
Subsidiary (other than proceeds of the sale or other disposition thereof) and (ii) such
Lien shall secure only those obligations which it secures on the date hereof
and extensions, renewals, replacements and refinancings of such obligations
that do not increase the outstanding principal amount thereof (except to the
extent of any reasonable fees, expenses and premium incurred in connection
therewith);


 


(vi)          Liens securing purchase
money Indebtedness of a Credit Party or any of its Subsidiaries permitted
pursuant to clause (xiv) of Section 11.01; provided that, such
Liens attach only to the property which was purchased with the proceeds of such
purchase money Indebtedness;


 


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(vii)         Liens on property, plant and
equipment acquired, constructed or improved by a Credit Party or any of its
Subsidiaries; provided that (i) such security interests secure
Indebtedness permitted by clause (xiii) of Section 11.01, (ii) such
security interests and the Indebtedness secured thereby are incurred prior to
or within 180 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does
not exceed 100% of the cost of acquiring, constructing or improving such
property, plant and equipment and (iv) such security interests shall not
apply to any other property or assets of such Credit Party or Subsidiary;


 


(viii)        any Lien existing on any
property or asset prior to the acquisition thereof by a Person or existing on
any property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such
Lien shall not apply to any other property or assets of the Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof (except to the extent of any reasonable
fees, expenses and premium incurred in connection therewith);


 


(ix)          Liens on assets of any
Foreign Subsidiary securing Indebtedness of such Foreign Subsidiaries permitted
under clause (ix) of Section 11.01;


 


(x)           Liens securing
Permitted Refinancing Indebtedness to the extent the respective such Liens are
permitted in accordance with the requirements of the definition of Permitted
Refinancing Indebtedness;


 


(xi)          Liens on cash
deposits, Permitted Investments and Excluded Deposit Accounts and/or Excluded
Securities Accounts to which they are credited (so long as those are the only
amounts credited to the respective Excluded Deposits Accounts and/or Excluded
Securities Accounts) made by the Borrower or Holdings to secure the
Phosphogypsum Stack Liability and/or the Consent Decree Phosphogypsum Stack
Liability, including, if required by the Consent Decree or determined by
Borrower to be in its best interest with respect to its compliance with the
Consent Decree, the full funding of the Consent Decree Phosphogypsum Stack
Liability;


 


(xii)         Liens arising solely by
virtue of any statutory or common law provision relating to banker’s Liens,
rights of set-off or similar rights and remedies as to deposit, securities and
commodities accounts or other funds maintained with a creditor depository
institution or a securities or commodities intermediary in the ordinary course
of business and not with the intent of granting security;


 


(xiii)        Liens in favor of any Credit
Party securing obligations of any Credit Party or any Subsidiary and Liens in
favor of any Subsidiary that is not a Subsidiary Guarantor securing obligations
of any Subsidiary that is not a Subsidiary Guarantor;


 


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(xiv)        Liens of
sellers of goods to the Borrower and any of its Subsidiaries arising under Article 2
of the Uniform Commercial Code or similar provisions of applicable law in the
ordinary course of business;


 


(xv)         any interest or
title of a lessor, sublessor, lessee, licensee or licensor under any lease or
license agreement not prohibited by this Agreement and in the ordinary course
of business;


 


(xvi)        Liens securing Interest Rate
Protection Agreements or Other Hedging Agreements, limited to cash deposits and/or
Permitted Investments not to exceed $100,000,000 in the aggregate and any
Excluded Deposit Accounts and/or Excluded Securities Accounts containing only
such cash deposits and/or Permitted Investments;


 


(xvii)       Liens in favor
of customs and revenue authorities arising by operation of law to secure
payment of customs duties in connection with the importation of goods;


 


(xviii)      Liens deemed to exist in
connection with Investments in repurchase agreements constituting Permitted
Investments;


 


(xix)         Liens of a
collection bank arising under Section 4-210 of the Uniform Commercial
Code;


 


(xx)          Liens on real or personal
property subject to the Pooling Agreement;


 


(xxi)         Liens on cash deposits
and/or Permitted Investments pledged to the landlord of the Borrower’s leased
real property located in Tampa, Florida (and Liens on any Excluded Deposit
Account and/or Excluded Securities Account containing only such cash deposits
and/or Permitted Investments), as required for the delivery of any Collateral
Access Agreement (as defined in the Guaranty and Collateral Agreement), with
respect to such location;


 


(xxii)        Liens not otherwise
permitted under this Section 11.02 securing Indebtedness, claims and other
liabilities not in excess of, in the aggregate at any time, an amount equal to
3% of Consolidated Total Assets as of the last day of the most recently ended
Fiscal Quarter for which financial statements have been (or were required to
be) furnished to the Administrative Agent pursuant to Section 10.01(a) or
(b) (or prior to any such delivery, as shown on the December 31, 2009
consolidated balance sheet of Holdings delivered pursuant to Section 9.04(a)),
as the case may be; provided that (x) no violation of this clause
(xxii) shall occur solely as a result of any reduction in Consolidated Total
Assets if at the time the respective Indebtedness, claim or other liability was
secured the respective Liens were permitted to be granted within the
limitations established by this clause (xxii) (although any increase in the
amount of Indebtedness, claims or other liabilities secured shall require an
independent test at the time of such increase), (y) Liens pursuant to this
clause (xxii) may be created on cash deposits and Permitted Investments (and
Excluded Deposit Accounts and Excluded Securities Accounts which hold only such
cash and Permitted Investments) so long as the sum of the sum of the total
unutilized revolving loan commitments under the First Lien 


 


86

















 


Credit Agreement and the
Unrestricted cash and Permitted Investments of the Credit Parties is not less
than $250 million at the time of the creation of the respective Lien or any
increase in the amount of cash or Permitted Investments subject thereto (except
as a result of investment returns on funds previously deposited) and (z) Liens
pursuant to this clause (xxii) may apply to any assets other than cash and
Permitted Investments (and related Excluded Deposit Accounts and Excluded
Securities Accounts), except that such Liens shall not apply to any other
assets which constitute Collateral;


 


(xxiii)       Liens in favor of CoBank,
ACB in all capital stock of CoBank, ACB owned by the Borrower; and


 


(xxiv)       Lien in favor of Citibank,
N.A. on account #30426918 at Citibank, N.A.; provided that such Lien
shall only be permitted for 60 days from the Effective Date (or such longer
period as agreed to by the Administrative Agent in its sole discretion).


 


In connection with Liens
permitted pursuant to preceding clauses (vi), (vii) and (viii) of this
Section 11.02, the Administrative Agent and Collateral Agent are hereby
authorized and directed by the Lenders to execute and deliver such Lien
releases and/or Lien subordinations as may be requested from time to time by
the Borrower and as may be deemed necessary or desirable by the Administrative
Agent and/or Collateral Agent, as the case may be.  Furthermore, the Administrative Agent and/or
Collateral Agent may execute acknowledgements to the effect that one or more
Excluded Deposit Accounts and/or Excluded Securities Accounts (and the cash and
Permitted Investments therein) are not subject to the Liens pursuant to the
Security Documents.


 


11.03.      Fundamental Changes.  (a)  No
Credit Party will, nor will it permit any Subsidiary to, 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) any of its assets, or any of the stock of any
of its Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Event of Default shall have occurred and be
continuing (i) any Subsidiary of the Borrower may liquidate, dissolve,
merge or consolidate into the Borrower in a transaction in which the Borrower
is the surviving corporation; provided that any merger consideration
payable to minority shareholders of any such Subsidiary in connection with any
such transaction shall be independently justified as an investment pursuant to Section 11.04(viii);
(ii) (1) any Subsidiary Guarantor may liquidate, dissolve, merge or
consolidate into any Subsidiary Guarantor in a transaction in which the
surviving entity is a Subsidiary Guarantor, (2) any Subsidiary that is not
a Subsidiary Guarantor may liquidate, dissolve, merge or consolidate into any
Subsidiary Guarantor in a transaction in which the surviving entity is a
Subsidiary Guarantor and (3) any Subsidiary that is not a Subsidiary
Guarantor may liquidate, dissolve, merge or consolidate into any other
Subsidiary that is not a Subsidiary Guarantor; (iii) any Credit Party or
any Subsidiary may sell, transfer, lease or otherwise dispose of (1) its
assets to any Credit Party (other than Holdings), (2) Inventory and
precious metals to be recovered from spent catalysts in the ordinary course of
business, (3) assets constituting property, plant and equipment that are
uneconomical, obsolete, worn out or no longer used or useful in its business or
constitute surplus and which are disposed 


 


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of in the ordinary course of business, (4) other
assets (other than any disposition of property, plant and equipment as part of
a Permitted Sale and Leaseback Transaction) having a market value not to exceed
either (x) 5% of Consolidated Total Assets during any Fiscal Year or (y) 15%
of Consolidated Total Assets in the aggregate for all periods after the
Effective Date, with each determination pursuant to preceding clause (x) or
(y) to be made on the date of each sale, transfer, lease or other
disposition of assets pursuant to this clause (4) based upon Consolidated
Total Assets as shown at the last day of the most recently ended Fiscal Quarter
for which financial statements have been (or were required to be) furnished to
the Administrative Agent pursuant to Section 10.01(a) or (b) (or
prior to any such delivery, as shown on the December 31, 2009 consolidated
balance sheet of Holdings delivered pursuant to Section 9.04(a)), as the
case may be; provided that (x) no violation of this clause (4) shall
occur solely as a result of any reduction in Consolidated Total Assets if at
the time the respective disposition of assets occurred such disposition was
permitted within the limitations established by this clause (4), (y) each
sale, transfer, lease or other disposition of assets pursuant to this clause (4) shall
be at fair market value and for consideration at least 75% of which (in the
good faith determination of the Borrower) constitutes cash, except that during
any Fiscal Year asset dispositions in an aggregate amount not exceeding
$100,000,000 may be made at fair market value but without being subject to the
cash consideration requirements set forth above, and (5) sales, transfers,
leases or other dispositions of assets to one or more Foreign Subsidiaries or
Excluded Subsidiaries so long as the aggregate fair market value of all assets
so transferred (in the case of goods, net of any cash payments therefor
actually received by the respective transferor) pursuant to this clause (5) in
any Fiscal Year does not exceed $20,000,000; (iv) any Subsidiary that is
not a Subsidiary Guarantor may liquidate or dissolve; (v) the Transaction
shall be permitted; (vi) as part of any Acquisition permitted under Section 11.04(viii),
any Subsidiary of the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with it in a
transaction in which the survivor is a Wholly-Owned Subsidiary of the Borrower;
provided that (x) in the case of any such merger or consolidation
to which a Subsidiary Guarantor is a party, the surviving entity in such merger
or consolidation shall be (after giving effect to such transaction) a
Subsidiary Guarantor and (y) the aggregate amount of merger consideration
shall be justified as an investment pursuant to Section 11.04(viii); (vii) bona
fide sales, transfers and other dispositions in the ordinary course of (A) Permitted
Investments, and (B) Investments permitted under clauses (vii), (xii) and
(xiii) of Section 11.04; (viii) Holdings, the Borrower and each
Subsidiary may make payments and other transactions permitted by Section 11.06;
(ix) Holdings, the Borrower and each Subsidiary may lease, sublease,
license or sublicense any property, plant and equipment or intellectual
property in the ordinary course of business, including without limitation the
lease of vacant land for farming or for the exploration and production of oil,
gas, sulphur and other minerals; (x) Holdings, the Borrower and each
Subsidiary may sell or otherwise dispose of delinquent Accounts in the ordinary
course of business for purposes of collection only (and not for the purpose of
any bulk sale, securitization or financing transaction); (xi) Holdings, the
Borrower and each Subsidiary may surrender or waive contractual rights or
settle, release or surrender any contract, tort or other litigation claims in
the ordinary course of business; (xii) Holdings, the Borrower and each
Subsidiary may grant Liens permitted by Section 11.02 of this Agreement;
(xiii) Holdings and its Subsidiaries may sell, transfer or otherwise dispose of
property, plant and equipment in a Permitted Sale and Leaseback Transaction;
(xiv) Holdings and its Subsidiaries may in the ordinary course of business
abandon or dispose of intellectual property or other proprietary rights of the
Borrower 


 


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or any Subsidiary that are, in the reasonable business
judgment of the Borrower or any Subsidiary, no longer practicable to maintain
or useful in the conduct of the business of the Borrower or any Subsidiary;
(xv) any Subsidiary that is not a Credit Party may sell, transfer, lease or
otherwise dispose of any of its assets to any other Subsidiary that is not a
Credit Party; and (xvi) CFL and its subsidiaries may receive from, or transfer
to, the Borrower and its Subsidiaries spare parts, equipment or goods in the
ordinary course of business consistent with past practices and, in connection
therewith, may incur loans deemed to arise as a result of such transfers to
them, and may be a lender of loans to the Borrower and its Subsidiaries which
arise from time to time as a result of transfers of such assets by them to the
Borrower and its Subsidiaries; provided that all Indebtedness of the Borrower
and its Subsidiaries arising as a result of such transfers is incurred under,
and meets the requirements of, Section 11.01(vi)(y).  For purposes of this Section 11.03 and the
definition of Asset Sale, any issuance of Equity Interests by a Subsidiary of
Holdings (to a Person other than Holdings or a Wholly-Owned Subsidiary thereof)
which, after giving effect thereto, increases the proportional holdings of such
Person in such Subsidiary shall be deemed to be a sale of Equity Interests by
Holdings or the respective Subsidiary which directly owns Equity Interests in
such Subsidiary.  In addition to the
requirements contained above, no Credit Party will, nor will it permit any of its
Subsidiaries to, sell the Equity Interests in any of its Subsidiaries unless
the sale is otherwise permitted above in this Section 11.03 and, in the
case of any such sale to any Persons other than Holdings or a Subsidiary,
constitutes (x) a sale or disposition of all Equity Interests owned by
Holdings and its Subsidiaries in such Subsidiary or (y) a sale or
disposition of Equity Interests in order to convert the respective Subsidiary
to a Joint Venture; provided that in the case of this clause (y) the aggregate
fair market value of the Equity Interests of Holdings and its Subsidiaries in
the respective Subsidiary being converted into a Joint Venture, immediately
before the transaction described in this clause (y) net of any cash
consideration actually received by any Credit Party (and not the Subsidiary
being converted to a Joint Venture) at the time of, and in connection with,
said conversion, shall be deemed an investment pursuant to Section 11.04(viii) and
shall only be permitted if same is allowed in accordance with the requirements
thereof.  The Net Cash Proceeds of any
sale or disposition permitted pursuant to this Section 11.03 shall be
applied as, and to the extent required by, Section 5.02.


 


(b)      No Credit Party will, nor will it permit any of its Subsidiaries
to, engage in any business other than businesses of the type generally
conducted by the Borrower and its Subsidiaries on the date of execution of this
Agreement and businesses reasonably related thereto or reasonable extensions or
expansions thereof.


 


11.04.      Investments,
Loans, Advances, Guarantees and Acquisitions.  No Credit
Party will, nor will it permit any of its Subsidiaries to, purchase, hold or
acquire (including pursuant to any merger with any Person that was not a Credit
Party and a Wholly-Owned Subsidiary prior to such merger) any capital stock,
evidences of Indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets
of any other Person constituting a business unit (whether through purchase of
assets, merger or otherwise), except:


 


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(i)            Permitted Investments,
subject to control agreements (with respect to Credit Parties) in favor of the
Administrative Agent for the benefit of the Secured Creditors to the extent
required by the Guaranty and Collateral Agreement;


 


(ii)           investments (w) constituting
extensions of credit by Target to Holdings or Mergersub with respect to any
unpaid amount relating to Top-Off Purchases, (x) by the Credit Parties and
their Subsidiaries (excluding Target and its Subsidiaries) existing on the date
hereof in the capital stock or other Equity Interests of their respective
Subsidiaries and Excluded Subsidiaries, (y) by Target and its Subsidiaries
existing on the Exchange Closing Date and (z) constituting the acquisition
of Equity Interests in Target pursuant to the Transaction;


 


(iii)          investments, loans or
advances made by a Credit Party to any other Credit Party (other than Holdings)
and by any Subsidiary that is not a Subsidiary Guarantor to any other
Subsidiary that is not a Subsidiary Guarantor;


 


(iv)          Guarantees permitted by Section 11.01
(excluding clauses (xxii) and (xxiii) thereof);


 


(v)           investments, loans and
advances in existence on the date of this Agreement and described in Schedule
11.04 and any extensions or renewals thereof which do not increase the
amount thereof or conversions of any such loans or advances to equity
investments;


 


(vi)          loans, advances or other
extensions of credit made by a Credit Party or any Subsidiary to its employees,
officers and directors in the ordinary course of business for travel and
entertainment expenses, relocation costs and similar purposes up to a maximum
of $10,000,000 in the aggregate at any one time outstanding;


 


(vii)         notes payable, or stock or
other securities issued by Account Debtors to a Credit Party or any Subsidiary
pursuant to negotiated agreements with respect to settlement of such Account
Debtor’s Accounts in the ordinary course of business;


 


(viii)        Guarantees, investments,
loans and advances not otherwise permitted under this Section 11.04
(including (a) Guarantees, investments, loans or advances made by or to or
on behalf of any Credit Party to or by or on behalf of any Subsidiary which is
not a Subsidiary Guarantor, (b) Guarantees, investments, loans or advances
made by any Credit Party or any Subsidiary which is not a Subsidiary Guarantor
to or on behalf of any Excluded Subsidiary, (c) investments in any Joint
Venture and minority interests and (d) investments made in order to
consummate Acquisitions (other than the Terra Acquisition)); provided that (1) no
Event of Default shall have occurred and be continuing or would result
therefrom, (2) in the case of any Acquisition, (A) such Acquisition
shall only comprise a business or those assets of a business, of the type
generally conducted by the Borrower and its Subsidiaries as of the Effective
Date or a business reasonably related thereto or a reasonable extension or
expansion thereof and (B) such Acquisition shall be consensual and shall
have been approved by the board of directors or equivalent governing body of
the acquiree or the parent of the acquiree and 


 


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(3) the aggregate
amount of all such Guarantees, investments, loans and advances made pursuant to
this Section 11.04(viii) (collectively, “Section 11.04(viii) Investments”)
shall not exceed the limitations set forth below:


 


(w)          the aggregate amount of Section 11.04(viii) Investments
made during any Fiscal Year (determined without regard to any write-downs or
write-offs thereof) and treating the maximum amount of any Guarantee as an
investment, but reducing the amount of such investments made during any Fiscal
Year by any returns of capital and principal repayments actually received
during such Fiscal Year in respect of Section 11.04(viii) Investments
previously made during such Fiscal Year pursuant to this sub-clause (w) (and
treating any reduction of a Guarantee provided in such Fiscal Year without a
corresponding payment having been made thereunder as a return of principal)),
together with the aggregate amount of Restricted Payments made during such
Fiscal Year pursuant to sub-clause (x) of Section 11.06(xiv)(2) and
any Capital Expenditures made pursuant to sub-clause (x) of Section 11.10(f)(2),
shall not exceed $50,000,000, except to the extent independently justified
pursuant to following clauses (x), (y) or (z);


 


(x)            additional Section 11.04(viii) Investments
may be made at any time in an amount not to exceed the Cumulative Retained
Excess Cash Flow Amount as in effect immediately before the respective such
investment is made; and


 


(y)           additional Section 11.04(viii) Investments
(but not Guarantees) may be made at any time with Excess Qualified Equity
Proceeds; and


 


(z)            Net Cash Proceeds of incurrences of
Indebtedness pursuant to Section 11.01(xxvii) may be used by Holdings and
one or more of its Wholly-Owned Subsidiaries which are Credit Party to effect
Acquisitions (for this purpose, determined as if the phrase “in excess of 50%
of the capital stock, partnership interests, membership interests or equity of
any Person” appearing in the definition of Acquisition instead read “100% of
the capital stock, partnership interests, membership interests or equity of any
Person (other than, in the case of a Foreign Subsidiary of the Borrower,
director’s qualifying shares and/or other nominal amount of shares required to
be held by Persons other than the Borrower and its Subsidiaries under
applicable law)”);


 


(ix)           investments in Interest Rate
Protection Agreements or Other Hedging Agreements otherwise permitted by this
Agreement;


 


(x)            prepaid expenses in the
ordinary course of business, lease, utility, workers’ compensation, performance
and other similar deposits in the ordinary course of business;


 


(xi)           investments received as
consideration from any sale, lease, transfer or other disposition permitted by Section 11.03(a);


 


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(xii)          investments
received in satisfaction of judgments, settlements of debts or compromises of
obligations or as consideration for the settlement, release or surrender of a
contract, tort or other litigation claim, in each case in the ordinary course
of business, including, without limitation, pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of any
trade creditor or customer;


 


(xiii)         investments that are deemed
to have been made as a result of an Acquisition of a Person that at the time of
such Acquisition held instruments constituting investments that were not
acquired in contemplation of such Acquisition;


 


(xiv)        advances and prepayments for
asset purchases in the ordinary course of business;


 


(xv)         deposits of cash with banks
or other depository institutions in the ordinary course of business and not
with the intent of granting security;


 


(xvi)        any investment or
acquisition of assets solely in exchange for the issuance of Equity Interests
of Holdings;


 


(xvii)       any investment, loan or
advance made solely to fund any Credit Party’s or any Subsidiary’s deferred
compensation plans for employees and non-employee directors or any successor
plans approved by the board of directors of such Credit Party or such
Subsidiary;


 


(xviii)      investments consisting of
extensions of credit in the nature of accounts receivable, chattel paper or
notes receivable arising from the granting of trade credit in the ordinary
course of business;


 


(xix)         Restricted Payments
permitted by Section 11.06;


 


(xx)          investments (which may take the form of Guarantees,
it being understood that the maximum amount so Guaranteed at any time shall be
deemed an investment, with any reduction of the amount Guaranteed to constitute
a reduction in the respective investment except to the extent the respective
amount was required to be funded under the respective Guarantee or otherwise)
in TNCLP, Terra Nitrogen GP, Inc. and Terra Nitrogen or any of their
respective subsidiaries to fund (or support) working capital needs in an
aggregate amount not to exceed $75,000,000 at any time outstanding (determined
without regard to any write-downs or write-offs thereof, but giving effect to
any returns of principal or capital);


 


(xxi)         investments constituting intercompany loans made by
any Foreign Subsidiary to one or more Credit Parties from time to time, so long
as the respective Indebtedness meet the requirements of Section 11.01(vi)(y);


 


(xxii)        Investments to match employee-directed funds under
the Terra Deferred Supplemental Savings Plan and to fund the obligations of
Target and its Subsidiaries under the Terra Excess Benefit Plan;


 


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(xxiii)       loans made by the Borrower
to Target to fund the Target Refinancing or the purchase of any Target Existing
Notes pursuant to a change of control offer;


 


(xxiv)       the Transaction may be
effected;


 


(xxv)        Guarantees by Borrower or
any of its Subsidiaries in the ordinary course of business, of leases (other
than Capital Lease Obligations), purchase or supply contracts, or of other obligations,
in each case of Borrower or any of its Subsidiaries that do not constitute
Indebtedness; and


 


(xxvi)       so long as no Default or
Event of Default exists at the time of incurrence thereof or would result
therefrom, loans may be made by one or more Credit Parties to CFL after the
Initial Borrowing Date so long as the aggregate amount thereof at no time
outstanding (for this purpose determined without regard to any write-downs or
write-offs thereof, but without prejudice to loans otherwise permitted by this Section 11.04,
including pursuant to clause (viii)) exceeds the amount of cash dividends paid
by CFL after the Initial Borrowing Date that were actually received (by
on-dividending if needed) by one or more Credit Parties (and so long as no such
dividends were counted as returns on investments for purposes of Section 11.04(viii) or
the definition of Cumulative Retained Excess Cash Flow Amount).


 


Notwithstanding anything
to the contrary contained herein, except for Target Shares owned prior to the
Merger Closing Date, in no event shall the aggregate fair market value of all
Margin Stock owned by Holdings and its Subsidiaries at any time exceed
$5,000,000.


 


11.05.      Interest
Rate Protection Agreements or Other Hedging Agreements. 
No Credit Party will, nor will it permit any of its Subsidiaries to,
enter into any Interest Rate Protection Agreement or Other Hedging Agreement,
except the following (in each case so long as entered into for non-speculative
purposes, it being understood and agreed that raw materials and inventory
hedges entered in the ordinary course of business and consistent with past
practices prior to the Effective Date are not for speculative purposes): (a) Interest
Rate Protection Agreements or Other Hedging Agreements entered into to hedge or
mitigate risks relating to fluctuations in currency values or commodities
prices to which any Credit Party, any Subsidiary or Terra Nitrogen has actual
exposure (other than those in respect of Equity Interests of any Credit Party
or any of its Subsidiaries); provided that any Interest Rate Protection
Agreement or Other Hedging Agreement entered into by any Credit Party or any
Subsidiary to hedge risks of Terra Nitrogen shall be entered into in accordance
with Target’s and Terra Nitrogen’s practices prior to the Effective Date and
pursuant to arrangements whereby Terra Nitrogen compensates Target (or the
respective Credit Party or Subsidiary) for any costs associated therewith
(although Terra Nitrogen shall be entitled to receive the benefits of any hedging
so entered into for its benefit), (b) Interest Rate Protection Agreements
or Other Hedging Agreements entered into in order to effectively cap or collar
interest rates with respect to any interest-bearing liability of any Credit
Party or any Subsidiary or to exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with
respect to any interest-bearing investment of any Credit Party or any
Subsidiary and (c) Other Hedging Agreements entered into with respect to
commodities with the intention of delivering inventory to the relevant hedge 


 


93

















 


counterparties at the
maturity of or on the date otherwise required under such Other Hedging
Agreements.


 


11.06.      Restricted Payments.  No Credit
Party will, nor will it permit any of its Subsidiaries to, declare or make, or
agree to pay or make, directly or indirectly, any Restricted Payment, except:


 


(i)            any Credit Party or any
Subsidiary may declare and pay dividends with respect to its Equity Interests
payable solely in additional shares (or options or warrants with respect to
such shares) of its Equity Interests having equal or inferior voting power,
designations, preferences and rights;


 


(ii)           Subsidiaries of the Borrower
may declare and pay dividends ratably with respect to their Equity Interests;


 


(iii)          Holdings or any Subsidiary
of Holdings may make Restricted Payments pursuant to and in accordance with
stock option plans or other benefit plans for management or employees of the
Borrower and its Subsidiaries;


 


(iv)          the Borrower and each
Subsidiary may make Restricted Payments (directly or indirectly) to Holdings or
the Borrower that are used by Holdings or the Borrower, as the case may be, to (A) pay
federal, state and local income taxes then due and owing, franchise taxes and
other similar expenses and operating expenses incurred in the ordinary course
of business or (B) make payments pursuant to the NOL Agreement;


 


(v)           dividends may be paid by
Holdings on shares of its common stock within sixty (60) days after the date of
declaration thereof, so long as such dividend would have been permitted under
clause (xiv) hereof if paid on the date of such declaration;


 


(vi)          Holdings or any Subsidiary
of Holdings may repurchase, redeem, retire or otherwise acquire any outstanding
Equity Interests of Holdings or any of its Subsidiaries that have been held or
beneficially owned by any employee, officer or director of such Person (or
similarly related individual) upon the death, disability, termination or
similar event which ends the relationship between such Person and such
individual;


 


(vii)         Holdings or any of its
Subsidiaries may repurchase, redeem or otherwise acquire or retire for value
any Equity Interests in Holdings or any of its Subsidiaries that is held by any
current or former employee, director or consultant (or their estates or the
beneficiaries of such estates) of Holdings or any of its Subsidiaries; provided
that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests, shall not exceed $10,000,000 during any Fiscal Year, provided,
further, that any amount not utilized shall be carried forward to the next
succeeding Fiscal Year (with any such acquisitions during such succeeding
Fiscal Year being allocated first against the amount permitted in such Fiscal
Year before being allocated to such carryforward);


 


(viii)        Holdings’ purchase,
redemption, retirement, acquisition, cancellation or termination of any Equity
Interests with the proceeds received contemporaneously from 


 


94

















 


the issue of new Equity
Interests with equal or inferior voting powers, designations, preferences and
rights;


 


(ix)           Holdings or any of its
Subsidiaries may make repurchases of Equity Interests deemed to occur upon the
exercise of stock options if such Equity Interests represent a portion of the
exercise price thereof;


 


(x)            Holdings or any of its
Subsidiaries may make any purchase or acquisition from, or retain any
withholding on issuances to, any employee of the Borrower or any of its
Subsidiaries of Equity Interests to satisfy any applicable federal, state or
local tax payments in respect of the receipt of Equity Interests of the
Borrower or any of its Subsidiaries;


 


(xi)           the Borrower may make cash
dividends to Holdings to make principal, interest, and other payments on or
relating to Indebtedness of Holdings permitted by Section 11.01 or to fund
other Restricted Payments permitted to be made by Holdings hereunder;


 


(xii)          any Subsidiary may accept
capital contributions from its parent to the extent permitted under Section 11.04;


 


(xiii)         Holdings or any Subsidiary
of Holdings, including Mergersub, may make payments to the holders of the
shares of Target in connection with, and pursuant to the terms of, the Exchange
Offer, any Top-Off Purchases and the Merger Agreement;


 


(xiv)        the Credit Parties and their
Subsidiaries may make Restricted Payments from time to time not otherwise
permitted hereunder so long as immediately before and immediately after giving
effect to such Restricted Payments and to any related Borrowings (1) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom and (2) the aggregate amount for all such Restricted
Payments made pursuant to this Section 11.06(xiv) shall not exceed the
limitations set forth below:


 


(x)            the aggregate amount of such Restricted
Payments made during any Fiscal Year, together with the aggregate amount of Section 11.04(viii) Investments
made during such Fiscal Year pursuant to sub-clause (w) of Section 11.04(viii)(3) (determined
as provided in accordance with the provision of said sub-clause (w) of Section 11.04(viii)(3))
and any Capital Expenditures made pursuant to sub-clause (x) of Section 11.10(f)(2) during
such Fiscal Year, shall not exceed $50,000,000, except to the extent
independently justified pursuant to following clause (y); and


 


(y)           additional Restricted Payments may be
made at any time in an amount not to exceed the Cumulative Retained Excess Cash
Flow Amount as in effect immediately before the respective such Restricted
Payment is made; and


 


(xv)         dividends may be paid from
time to time with respect to the preferred stock of Terra Investment Fund LLC
and/or Terra Investment Fund II LLC that was


 


95






 












 


outstanding on the Effective
Date in accordance with the terms thereof as in effect on the Effective Date.


 


11.07.      Transactions with Affiliates. 
No Credit Party will, nor will it permit any of its Subsidiaries to,
sell, lease or otherwise transfer any property or assets to, or purchase, lease
or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) in the ordinary
course of business at prices and on terms and conditions not materially less
favorable to the Credit Party or such Subsidiary than could be obtained on an
arm’s-length basis from third parties not affiliated with each other, (b) transactions
between or among a Credit Party and another Credit Party not involving any other
Affiliate, (c) any Restricted Payment permitted by Section 11.06 and
investments, loans, advances and Guarantees permitted under clauses (ii),
(iii), (iv), (v), (vi), (viii), (xvii), (xix), (xx), (xxi), (xxii), (xxiii),
(xxiv), (xxv) and (xxvi) of Section 11.04, (d) any transaction
permitted by clauses (i), (ii), (iv), (v), (viii), (xv) and (xvi) of Section 11.03(a),
(e) any transaction permitted by clauses (iii)(1) and (5) of Section 11.03(a),
(f) payment of reasonable fees, expenses and compensation to officers and
directors of any Credit Party and its Subsidiaries and customary
indemnification and insurance arrangements in favor of any director or officer
of any Credit Party and its Subsidiaries, and any agreement relating to any of
the foregoing entered into in the ordinary course of business, (g) payments
made pursuant to the NOL Agreement, (h) Indebtedness owing from any Credit
Party or any of its Subsidiaries to any other Credit Party and any of it
Subsidiaries permitted under Section 11.01, (i) Indebtedness
expressly permitted pursuant to Section 11.01(vi), (x), (xi), (xii) or
(xxv), (j) transactions pursuant to the Nitrogen Servicing Agreement, (k) the
entering of Interest Rate Protection Agreements or Other Hedging Agreement with
respect to Terra Nitrogen to the extent permitted by Section 11.05(a), (l) sales
and collection of services provided during the ordinary course of business
(consistent with past practices prior to the Acquisition) provided by Target or
Terra Capital on behalf of Terra Canada and (m) any agreements in
existence and as in effect on the Effective Date (including, without
limitation, any shareholders agreements or registration rights agreements with
existing equity holders), as set forth on Schedule 11.07, as such
agreements may be renewed, replaced or otherwise modified after the Effective
Date upon terms which taken as a whole are not less favorable to the Credit
Parties and their Subsidiaries than the original terms of such agreements.


 


11.08.      Restrictive
Agreements.  No Credit Party will, nor will it permit any
of its Subsidiaries to, directly or indirectly, enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of such Credit Party or any of its
Subsidiaries to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Subsidiary of a Credit Party
to pay dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Borrower or any
other Subsidiary of the Borrower or to Guarantee Indebtedness of the Borrower
or any other Subsidiary of the Borrower; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law, rule,
regulation or order or by any Bridge Loan Document, (ii) the foregoing
shall not apply to restrictions and conditions contained in the Merger
Agreement, until the 50th day after the Merger Closing Date restrictions and
conditions contained in the Target Existing Notes Indenture and in the Target
Existing Notes, and other conditions and restrictions existing on the date
hereof identified on Schedule 11.08 (but shall apply to any extension,
renewal, amendment or modification expanding in any material respect the scope
of any such restriction or condition), (iii) the foregoing shall not apply
to customary 


 


96

















 


restrictions and
conditions contained in agreements relating to the sale or other disposition of
a Subsidiary pending such sale or disposition, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold or disposed of and
such sale or disposition is permitted hereunder, (iv) the foregoing shall
not apply to restrictions and conditions imposed under any First Lien Credit
Document existing on the date such agreement is entered into and, in each case,
any amendment, modification, extension, renewal, refinancing or replacement of
any such Indebtedness, provided, that such amendment, modification,
restatement, renewal, refinancing or replacement does not expand in any
material respect the scope of any such restriction or condition contained in
the agreements evidencing such Indebtedness as in effect on the date such
agreement is entered into, (v) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness, (vi) clause
(a) of the foregoing shall not apply to customary provisions in leases,
licenses and other agreements and instruments restricting the assignment
thereof, (vii) the foregoing shall not apply to any restriction or
conditions imposed by any instrument governing Indebtedness or Equity Interests
of a Person acquired by Holdings or any of its Subsidiaries as in effect at the
time of such acquisition (except to the extent such Indebtedness was incurred
in connection with or in contemplation of such acquisition), which encumbrance
or restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person, or the property or assets of the Person, so
acquired, (viii) the foregoing shall not apply to any restrictions or
conditions imposed by any agreement governing Indebtedness of a Foreign
Subsidiary permitted by Section 11.01(ix), which restriction is not
applicable to any Person, or the property or assets of any Person, other than one
or more Foreign Subsidiaries, (ix) clause (a) of the foregoing shall
not apply to customary restrictions and conditions contained in agreements
relating to the sale of property permitted by Section 11.03 pending the
consummation of such sale, provided such restrictions and conditions apply only
to the property that is to be sold and (x) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to Liens permitted by clauses (viii), (xi), (xx), (xxi),
(xxii), (xxiii) and (xxiv) of Section 11.02 if such restrictions or
conditions apply only to the property or assets covered thereby.


 


11.09.      [Intentionally Omitted.]


 


11.10.      Capital Expenditures.  (a) 
Holdings will not, and will not permit any of its Subsidiaries to, make any
Capital Expenditures, except that during any Fiscal Year of Holdings set forth
below (taken as one accounting period), Holdings and its Subsidiaries may make
Capital Expenditures so long as the aggregate amount of all such Capital Expenditures
does not exceed in any Fiscal Year of Holdings set forth below the amount set
forth opposite such Fiscal Year below:


 


97

















 


	
  Fiscal Year Ending

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  December 31, 2013

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  December 31, 2014

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  December 31,
  2015

  	
   

  	
  $

  	
  350,000,000

  	
   

  



 


(b)      In addition to the foregoing, in the event that the
amount of Capital Expenditures permitted to be made by Holdings and its
Subsidiaries pursuant to clause (a) above in any Fiscal Year of Holdings
(before giving effect to any increase in such permitted Capital Expenditure
amount pursuant to this clause (b)) is greater than the amount of Capital
Expenditures actually made by the Borrower and its Subsidiaries during such
Fiscal Year, the lesser of (x) such excess and (y) 50% of the
applicable permitted scheduled Capital Expenditure amount as set forth in such
clause (a) above, may be carried forward and utilized to make Capital
Expenditures in the immediately succeeding Fiscal Year, provided that (x) no
amounts once carried forward pursuant to this Section 11.10(b) may be
carried forward to any Fiscal Year of Holdings thereafter and (y) no
amounts carried forward into a subsequent Fiscal Year may be used until all
Capital Expenditures permitted pursuant to clause (a) above for such
subsequent Fiscal Year are first used in full.


 


(c)                 In addition to the foregoing, the Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 11.10(a) or
(b)) with the amount of Net Sale Proceeds received by the Borrower or any of
its Subsidiaries from any Asset Sale so long as such Net Sale Proceeds are
reinvested within 540 days following the date of such Asset Sale, but only to
the extent that such Net Sale Proceeds are not otherwise required to be applied
as a mandatory repayment and/or commitment reduction pursuant to Section 5.02(d).


 


(d)                In addition to the foregoing, the Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 11.10(a) or
(b)) with the amount of Net Cash Proceeds received by the Borrower or any of
its Subsidiaries from any Recovery Event so long as such Net Cash Proceeds are
used to replace or restore any properties or assets in respect of which such
Net Cash Proceeds were paid within 540 days following the date of receipt of
such Net Cash Proceeds from such Recovery Event, but only to the extent that
such Net Cash Proceeds are not otherwise required to be applied as a mandatory
repayment and/or commitment reduction pursuant to Section 5.02(d).


 


(e)                 In addition to the foregoing, the Borrower and its
Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 11.10(a) or
(b)) (x) to consummate the Terra Acquisition or Acquisitions effected in
accordance with the requirements of Section 11.04(viii) and (y) on
or prior to the first anniversary of the Effective Date, Capital Expenditures
to effect the Woodward Plant Expansion in an aggregate amount not to exceed
$95,000,000 in the aggregate.


 


98

















 


(f)       In addition to the foregoing, the Borrower and its
Subsidiaries may make additional Capital Expenditures; provided that (1) no
Event of Default shall have occurred and be continuing or would result
therefrom and (2) the aggregate amount of Capital Expenditures made
pursuant to this clause (f) shall not exceed the limitations set forth
below:


 


(x)            the aggregate amount of such Capital
Expenditures made during any Fiscal Year, together with the aggregate amount of
Section 11.04(viii) Investments made during such Fiscal Year pursuant
to sub-clause (w) of Section 11.04(viii)(3) (determined as
provided in accordance with the provisions of said sub-clause (w) of Section 11.04(viii)(3))
and any Restricted Payments made pursuant to sub-clause (x) of Section 11.06(xiv)(2) during
such Fiscal Year, shall not exceed $50,000,000, except to the extent
independently justified pursuant to following clauses (y) and (z); and


 


(y)           additional Capital Expenditures may be
made at any time in an amount not to exceed the Cumulative Retained Excess Cash
Flow Amount as in effect immediately before the respective such Capital
Expenditure is made; and


 


(z)            additional Capital Expenditures may be
made at any time with Excess Qualified Equity Proceeds.


 


11.11.      Interest Coverage Ratio.  Holdings will
not permit the Interest Coverage Ratio for any Test Period ending on the last
day of a Fiscal Quarter of Holdings set forth below to be less than the ratio
set forth opposite such Fiscal Quarter under Column A below; provided that if
the Qualified Equity Trigger Date occurs on or prior to September 30,
2010, then the minimum ratio shall instead be the respective ratio set forth
opposite such Fiscal Quarter in Column B below:


 


	
   

  	
   

  	
  Minimum Required Ratio

  
	
  Fiscal Quarter Ending

  	
   

  	
  A

  	
   

  	
  B

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2010

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  December 31,
  2010

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  March 31,
  2011

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  June 30,
  2011

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  September 30,
  2011

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  December 31,
  2011

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  March 31,
  2012

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  June 30,
  2012

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  September 30,
  2012

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  December 31,
  2012

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  March 31,
  2013

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  June 30,
  2013

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  September 30,
  2013

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  December 31,
  2013

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  March 31,
  2014

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  



 


99

















 


	
   

  	
   

  	
  Minimum Required Ratio

  
	
  Fiscal Quarter Ending

  	
   

  	
  A

  	
   

  	
  B

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2014

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  September 30,
  2014

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  December 31,
  2014

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  
	
  March 31,
  2015

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  



 


 


11.12.      Total
Leverage Ratio.  Holdings will not permit the Total Leverage
Ratio as of the last day of any Fiscal Quarter set forth below to be greater
than the ratio set forth opposite such Fiscal Quarter under Column A below;
provided that if the Qualified Equity Trigger Date occurs on or prior to September 30,
2010, then the maximum ratio shall instead be the respective ratio set forth
opposite such Fiscal Quarter in Column B below:


 


	
   

  	
   

  	
  Maximum Permitted Ratio

  
	
  Fiscal
  Quarter Ending

  	
   

  	
  A

  	
   

  	
  B

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  September 30,
  2010

  	
   

  	
  4.50:1.00

  	
   

  	
  3.50:1.00

  
	
  December 31,
  2010

  	
   

  	
  4.50:1.00

  	
   

  	
  3.50:1.00

  
	
  March 31,
  2011

  	
   

  	
  4.00:1.00

  	
   

  	
  3.25:1.00

  
	
  June 30,
  2011

  	
   

  	
  4.00:1.00

  	
   

  	
  3.25:1.00

  
	
  September 30,
  2011

  	
   

  	
  4.00:1.00

  	
   

  	
  3.25:1.00

  
	
  December 31,
  2011

  	
   

  	
  4.00:1.00

  	
   

  	
  3.25:1.00

  
	
  March 31,
  2012

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  June 30,
  2012

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  September 30,
  2012

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  December 31,
  2012

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  March 31,
  2013

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  June 30,
  2013

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  September 30,
  2013

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  December 31,
  2013

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  March 31,
  2014

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  June 30,
  2014

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  September 30,
  2014

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  December 31,
  2014

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  
	
  March 31,
  2015

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  



 


11.13.      Modifications of Certificate
of Incorporation, By-Laws and Certain Other Agreements.  Holdings will not, and will not permit any of
its Subsidiaries to, amend, modify or change (x) its certificate or
articles of incorporation (including, without limitation, by the filing or
modification of any certificate or articles of designation), certificate of
formation, limited liability company agreement or by-laws (or the equivalent
organizational documents), as applicable, or any agreement entered into by it
with respect to its capital stock or other Equity Interests, or enter into any
new agreement with respect to its capital stock or other Equity Interests, in
any manner which could reasonably be expected to be adverse in any material 


 


100

















 


respect to the interests of the Lenders or (y) the
Exchange Offer or the Merger Agreement in any manner which could cause a
failure of the applicable conditions precedent to subsequent Credit Events to
occur on or prior to the Merger Closing Date.


 


11.14.      Holdings. 
Holdings shall not engage in any trade or business, or own any assets
(other than (i) the Equity Interests and Indebtedness for borrowed money
of the Borrower, (ii) the ownership of the Equity Interests in CF
Industries Peru S.A.C. owned by it on the Effective Date (and any Equity
Interests issued in replacement or substitution therefor) and any sale of such
Equity Interests, (iii) performing its obligations and activities
incidental thereto under the Credit Documents, the Bridge Loan Documents and
any other permitted Indebtedness and with respect to the Transactions, (iv) making
Restricted Payments to the extent permitted by this Agreement, (v) making
investments in the Borrower and other Subsidiaries to the extent permitted by
this Agreement (it being understood that Holdings shall not own Equity
Interests in any Person other than the Borrower and as set forth in preceding
clause (ii) above) and (vi) other than contractual and other rights
incidental to being a holding company), or incur any Indebtedness (other than
the Obligations or Indebtedness permitted pursuant to Section 11.01).


 


11.15.      Limitation
on Issuance of Equity Interests.  (a) 
Holdings will not, and will not permit any of its Subsidiaries to, issue any
Disqualified Equity Interests.


 


(b)      Holdings will not permit any of its Subsidiaries to
issue any capital stock or other Equity Interests (including by way of sales of
treasury stock) or any options or warrants to purchase, or securities
convertible into, capital stock or other Equity Interests, except (i) for
transfers and replacements of then outstanding shares of capital stock or other
Equity Interests, (ii) for stock splits, stock dividends and other
issuances (including pro rata issuances to existing equity holders) which do
not decrease the percentage ownership of Holdings or any of its Subsidiaries in
any class of the capital stock or other Equity Interests of such Subsidiary, (iii) in
the case of Foreign Subsidiaries of Holdings, to qualify directors to the
extent required by applicable law and for other nominal share issuances to
Persons other than Holdings and its Subsidiaries to the extent required under
applicable law, (iv) for issuances by Subsidiaries of the Borrower which
are newly created or acquired in accordance with the terms of this Agreement
and (v) for issuances of capital stock or other Equity Interests in connection
with the formation or organization of joint ventures permitted under Section 11.04(viii).


 


11.16.      Accounting Changes; Fiscal Year. 
Holdings and its Subsidiaries shall not change its (a) accounting
treatment or reporting practices, except as required by GAAP or any other
applicable law, or (b) its Fiscal Year or its method for determining
Fiscal Quarters or fiscal months.


 


SECTION 12.         Events of Default.  Upon the
occurrence and during the continuance of any of the following specified events
(each, an “Event of Default”):


 


(a)      the Borrower shall fail to pay any principal of any
Loan 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 otherwise;


 


101

















 


(b)      the Borrower shall fail to pay any interest on any
Loan or any fee or any other amount (other than an amount referred to in clause
(a) of this Section) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of three (3) Business Days;


 


(c)      any representation or warranty made or deemed made by
or on behalf of any Credit Party or any Subsidiary of any Credit Party in this
Agreement or any Bridge Loan Document or any amendment or modification thereof
or waiver thereunder, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement or
any Bridge Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been materially incorrect when made or deemed
made;


 


(d)      any Credit Party shall fail to observe or perform any
covenant, condition or agreement contained in Section 10.02(a), 10.08 or
10.13, or in Section 11;


 


(e)      any Credit Party shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement or the other
Bridge Loan Documents (other than those specified above in clauses (a), (b) or
(d)), and such failure shall continue unremedied for a period of thirty (30)
days after the earlier of (A) a Financial Officer’s or other Responsible
Officer’s (in each case of the Borrower) actual knowledge of such breach or (B) notice
thereof from the Administrative Agent or any Lender;


 


(f)       any Credit Party or any Subsidiary shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due and
payable (whether upon the stated maturity thereof, by acceleration or
otherwise);


 


(g)      any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (in each case, after giving effect to any applicable grace
or notice period) the holder or holders of any such Material Indebtedness or
any trustee or agent on its or their behalf to cause any such Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided
that (x) this clause (g) shall not apply to (i) secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness, (ii) the Target
Existing Notes becoming due and payable, or being required to be repaid or
repurchased, on or prior to the 50th day after the Merger Closing Date, so long
as repaid in full on or prior to such 50th day after the Merger Closing Date or
(iii) any event requiring the repayment of First Lien Indebtedness in
accordance with the terms thereof (other than (I) an acceleration of the
maturity thereof as a result of an event of default occurring under, and as
defined, therein or (II) a prepayment as a result of a Change of Control)
and (y) until the 50th day after the Merger Closing Date, any Excepted
Defaults shall not cause a default or event of default pursuant to this clause
(g);


 


(h)      an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of a Credit Party or any Subsidiary
of any Credit Party (other than any Immaterial Subsidiary) or its debts, or of
a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, 


 


102

















 


receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any Credit Party or any Subsidiary of any Credit Party
(other than any Immaterial Subsidiary) or for a substantial part of its assets,
and, in any such case, 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)       any Credit Party or any Subsidiary of any Credit Party
(other than any Immaterial Subsidiary) shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Section, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for such Credit Party or any Subsidiary of any
Credit Party (other than any Immaterial Subsidiary) or for a substantial part
of its assets, (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) take any action for the
purpose of effecting any of the foregoing;


 


(j)       any Credit Party or any Subsidiary of any Credit Party
(other than any Immaterial Subsidiary) shall become unable, admit in writing
its inability or fail generally to pay its debts as they become due;


 


(k)      one or more judgments for the payment of money in an
aggregate amount in excess of $50,000,000 (except to the extent covered by
insurance) shall be rendered against any Credit Party, any Subsidiary of any
Credit Party or any combination thereof and the same shall remain undischarged
for a period of forty-five (45) consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of any Credit Party to enforce any
such judgment;


 


(l)       an ERISA Event shall have occurred that, when taken
together with all other ERISA Events that have occurred, could reasonably be
expected to have a Material Adverse Effect;


 


(m)     a Change of Control shall occur;


 


(n)      the Holdings Guaranty or the Subsidiaries Guaranty
shall fail to remain in full force or effect as to Holdings or any Subsidiary
Guarantor, as the case may be, or any action shall be taken to discontinue or
to assert the invalidity or unenforceability of either such Guarantee, or any
Guarantor shall deny that it has any further liability under the Holdings
Guaranty or the Subsidiaries Guaranty, as the case may be, or shall give notice
to such effect;


 


(o)      any Security Document shall for any reason fail to
create a valid and perfected first priority security interest in any Collateral
purported to be covered thereby, except as permitted by the terms of this
Agreement or any Security Document, or any Security Document (other than
Security Documents which collectively cover an immaterial amount of Collateral)
shall fail to remain in full force or effect (except as otherwise expressly
provided in 


 


103

















 


this Agreement or such Security Document) or any action shall be taken
by any Credit Party to discontinue or to assert the invalidity or
unenforceability of any such Security Document; or


 


(p)      any material provision of any Bridge Loan Document for
any reason ceases to be valid, binding and enforceable in accordance with its
terms (except as otherwise expressly provided in this Agreement or such Bridge
Loan Document) (or any Credit Party shall challenge the enforceability of any
Bridge Loan Document or shall assert in writing, or engage in any action or
inaction based on any such assertion, that any material provision of any of the
Bridge Loan Documents has ceased to be or otherwise is not valid, binding and
enforceable in accordance with its terms);


 


then, and in every such event (other than an event
with respect to Holdings or the Borrower described in clause (h) or (i) of
this Section), the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: 
(i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be
due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with
respect to Holdings or the Borrower described in clause (h) or (i) of
this Section, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.  Upon the occurrence and the continuance of an
Event of Default, the Administrative Agent may, and at the request of the
Required Lenders shall, exercise any rights and remedies provided to the
Administrative Agent under the Bridge Loan Documents or at law or equity,
including all remedies provided under the UCC. 
Notwithstanding anything to the contrary contained above, at any time on
or prior to the Merger Closing Date, if the only Event of Default which has
occurred and is then continuing is pursuant to Section 12(c) and is
solely as a result of a material incorrectness of one or more representations
or warranties that do not constitute Specified Representations, then the
remedies described above in this Section 12 may not be exercised unless
and until the earlier to occur of (x) the first Business Day after the
Merger Closing Date and (y) the occurrence (and during the continuance) of
one or more Events of Default other than as described above in this sentence.


 


SECTION 13.         The Administrative Agent; Lead Arranger; Etc.


 


13.01.      Appointment.  The Lenders hereby irrevocably designate and
appoint MSSF as Administrative Agent and as Collateral Agent for the Lenders
and the other Secured Creditors (for purposes of this Section 13 and Section 14.01,
the term “Administrative Agent” also shall include MSSF in its capacity as
Collateral Agent pursuant to the Security Documents) to act as specified herein
and in the other Bridge Loan Documents. 
MSSF hereby accepts such appointment as Administrative Agent and
Collateral Agent, subject to its resignation rights provided herein.  Each Lender hereby irrevocably authorizes,
and each holder of any Note by the 


 


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acceptance of such Note
shall be deemed irrevocably to authorize, the Administrative Agent to take such
action on its behalf under the provisions of this Agreement, the other Bridge
Loan Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto.  The Administrative
Agent may perform any of its respective duties hereunder by or through its
officers, directors, agents, employees or affiliates.


 


13.02.      Nature of Duties.  (a)  The
Administrative Agent shall not have any duties or responsibilities except those
expressly set forth in this Agreement and in the other Bridge Loan
Documents.  Neither the Administrative
Agent nor any of its officers, directors, agents, employees or affiliates shall
be liable for any action taken or omitted by it or them hereunder or under any
other Bridge Loan Document or in connection herewith or therewith, unless
caused by its or their gross negligence, bad faith or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable
decision).  The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Bridge Loan Document a fiduciary relationship in respect of any Lender or the
holder of any Note; and nothing in this Agreement or in any other Bridge Loan
Document, expressed or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent any obligations in respect of this
Agreement or any other Bridge Loan Document except as expressly set forth
herein or therein.


 


(b)      Notwithstanding any other provision of this Agreement
or any provision of any other Bridge Loan Document, the Lead Arranger is named
as such for recognition purposes only, and in its capacity as such shall have
no powers, duties, responsibilities or liabilities with respect to this
Agreement or the other Bridge Loan Documents or the transactions contemplated
hereby and thereby; it being understood and agreed that the Lead Arranger shall
be entitled to all indemnification and reimbursement rights as, and to the
extent, provided for under Section 14.01. 
Without limitation of the foregoing, the Lead Arranger shall not, solely
by reason of this Agreement or any other Bridge Loan Documents, have any
fiduciary relationship in respect of any Lender or any other Person.


 


13.03.      Lack
of Reliance on the Administrative Agent.  Independently
and without reliance upon the Administrative Agent, each Lender and the holder
of each Note, to the extent it deems appropriate, has made and shall continue
to make (i) its own independent investigation of the financial condition
and affairs of Holdings and its Subsidiaries (and Target and its Subsidiaries)
in connection with the making and the continuance of the Loans and the taking
or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of Holdings and its Subsidiaries (and Target
and its Subsidiaries) and, except as expressly provided in this Agreement, the
Administrative Agent shall not have any duty or responsibility, either
initially or on a continuing basis, to provide any Lender or the holder of any
Note with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times thereafter.  The Administrative Agent shall not be
responsible to any Lender or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability,


 


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perfection,
collectability, priority or sufficiency of this Agreement or any other Bridge
Loan Document or the financial condition of Holdings or any of its Subsidiaries
or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any other Bridge Loan Document, or the financial condition of Holdings or any
of its Subsidiaries or the existence or possible existence of any Default or
Event of Default.


 


13.04.      Certain
Rights of the Administrative Agent.  If the
Administrative Agent requests instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Bridge Loan Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required
Lenders; and the Administrative Agent shall not incur liability to any Lender
by reason of so refraining.  Without
limiting the foregoing, neither any Lender nor the holder of any Note shall
have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder or
under any other Bridge Loan Document in accordance with the instructions of the
Required Lenders.


 


13.05.      Reliance. 
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by any Person that
the Administrative Agent believed to be the proper Person, and, with respect to
all legal matters pertaining to this Agreement and any other Bridge Loan
Document and its duties hereunder and thereunder, upon advice of counsel
selected by the Administrative Agent.


 


13.06.      Indemnification. 
To the extent the Administrative Agent (or any affiliate thereof) is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Administrative Agent (and any affiliate thereof) in proportion to
their respective “percentages” as used in determining the Required Lenders
(determined as if there were no Defaulting Lenders) for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent (or
any affiliate thereof) in performing its duties hereunder or under any other
Bridge Loan Document or in any way relating to or arising out of this Agreement
or any other Bridge Loan Document; provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent’s (or such affiliate’s) gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).


 


13.07.      The
Administrative Agent in its Individual Capacity.  With respect
to its obligation to make Loans under this Agreement, the Administrative Agent
shall have the rights and powers specified herein for a “Lender” and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term “Lender,” “Required Lenders,” “holders
of Notes” or any similar terms shall, unless the context clearly indicates
otherwise, include the Administrative Agent in its respective individual
capacities.  The 


 


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Administrative Agent and
its affiliates may accept deposits from, lend money to, and generally engage in
any kind of banking, investment banking, trust or other business with, or
provide debt financing, equity capital or other services (including financial
advisory services) to any Credit Party or any Affiliate of any Credit Party (or
any Person engaged in a similar business with any Credit Party or any Affiliate
thereof) as if they were not performing the duties specified herein, and may
accept fees and other consideration from any Credit Party or any Affiliate of
any Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.


 


13.08.      Holders. 
The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Administrative Agent. 
Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee,
assignee or endorsee, as the case may be, of such Note or of any Note or Notes
issued in exchange therefor.


 


13.09.      Resignation by the Administrative Agent.  (a) 
The Administrative Agent may resign from the performance of all its respective
functions and duties hereunder and/or under the other Bridge Loan Documents at
any time by giving 15 Business Days’ prior written notice to the Lenders and,
unless a Default or an Event of Default under Section 12(h) or (i) then
exists, the Borrower.  Any such
resignation by an Administrative Agent hereunder shall also constitute its
resignation as the Collateral Agent, in which case the resigning Administrative
Agent shall no longer act as Collateral Agent, except that, until a successor
Administrative Agent (who shall act as Collateral Agent) is appointed as
provided below, the resigning Administrative Agent shall continue to act as Collateral
Agent for purposes of maintaining the perfection and priority of security
interests granted pursuant to the various Security Documents.  Such resignation shall take effect upon the
appointment of a successor Administrative Agent pursuant to clauses (b) and
(c) below or as otherwise provided below.


 


(b)      Upon any such notice of resignation by the
Administrative Agent, the Required Lenders shall appoint a successor
Administrative Agent hereunder or thereunder who shall be a commercial bank or
trust company having a combined capital and surplus of at least $200,000,000,
and which has an office, branch or agency located in New York, New York, which
is reasonably acceptable to the Borrower, which acceptance shall not be
unreasonably withheld or delayed (provided that the Borrower’s
acceptance or approval shall not be required if an Event of Default then
exists).


 


(c)      If a successor Administrative Agent shall not have
been so appointed within such 15 Business Day period, the Administrative Agent,
with the consent of the Borrower (which consent shall not be unreasonably
withheld or delayed, provided that the Borrower’s consent shall not be
required if an Event of Default then exists), shall then appoint a successor
Administrative Agent who shall serve as Administrative Agent hereunder or
thereunder until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above.


 


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(d)      If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after
the date such notice of resignation was given by the Administrative Agent, the
Administrative Agent’s resignation shall become effective and the Required
Lenders shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Bridge Loan Document until such time, if any,
as the Required Lenders appoint a successor Administrative Agent as provided
above.


 


(e)      Upon a resignation of the Administrative Agent
pursuant to this Section 13.09, the Administrative Agent shall remain
indemnified to the extent provided in this Agreement and the other Bridge Loan
Documents and the provisions of this Section 13 (and the analogous
provisions of the other Bridge Loan Documents) shall continue in effect for the
benefit of the Administrative Agent for all of its actions and inactions while
serving as the Administrative Agent.


 


13.10.      Collateral Matters.  (a)  Each
Lender hereby irrevocably (i) designates and appoints MSSF as Collateral
Agent for the Lenders and the other Secured Creditors and (ii) authorizes
and directs the Collateral Agent to enter into the Security Documents for the
benefit of the Lenders and the other Secured Creditors. MSSF hereby accepts
such appointment as Collateral Agent subject to its resignation rights pursuant
to Section 13.09.  Each Lender
hereby agrees, and each holder of any Note by the acceptance thereof will be
deemed to agree, that, except as otherwise set forth herein, any action taken
by the Required Lenders in accordance with the provisions of this Agreement or
the Security Documents, and the exercise by the Required Lenders of the powers
set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the
Lenders.  The Collateral Agent is hereby
authorized on behalf of all of the Lenders, without the necessity of any notice
to or further consent from any Lender, from time to time prior to an Event of
Default, to take any action with respect to any Collateral or Security
Documents which may be necessary to perfect and maintain perfected the security
interest in and liens upon the Collateral granted pursuant to the Security
Documents.


 


(b)      The Lenders hereby authorize the Collateral Agent to
release any Lien granted to or held by the Collateral Agent upon any Collateral
(i) upon termination of the Commitments and payment and satisfaction of
all of the Obligations (other than unasserted indemnification obligations) at
any time arising under or in respect of this Agreement or the Bridge Loan
Documents or the transactions contemplated hereby or thereby, (ii) constituting
property being sold or otherwise disposed of (to Persons other than Credit
Parties) upon the sale or other disposition thereof in compliance with Section 11.03,
(iii) if approved, authorized or ratified in writing by the Required
Lenders (or all of the Lenders hereunder, to the extent required by Section 14.12)
or (iv) as otherwise may be expressly provided in the relevant Security
Documents.  Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Collateral Agent’s authority to release particular types or items of Collateral
pursuant to this Section 13.10.


 


(c)      The Collateral Agent shall have no obligation
whatsoever to the Lenders or to any other Person to assure that the Collateral
exists or is owned by any Credit Party or is cared for, protected or insured or
that the Liens granted to the Collateral Agent herein or pursuant hereto have
been properly or sufficiently or lawfully created, perfected, protected or 


 


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enforced or are entitled to any particular priority, or to exercise or
to continue exercising at all or in any manner or under any duty of care,
disclosure or fidelity any of the rights, authorities and powers granted or
available to the Collateral Agent in this Section 13.10 or in any of the
Security Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Collateral Agent
may act in any manner it may deem appropriate, in its sole discretion, given
the Collateral Agent’s own interest in the Collateral as one of the Lenders and
that the Collateral Agent shall have no duty or liability whatsoever to the
Lenders, except for its gross negligence or willful misconduct (as determined
by a court of competent jurisdiction in a final and non-appealable decision).


 


13.11.      Delivery
of Information.  The Administrative Agent shall not be
required to deliver to any Lender originals or copies of any documents,
instruments, notices, communications or other information received by the
Administrative Agent from any Credit Party, any Subsidiary, the Required
Lenders, any Lender or any other Person under or in connection with this
Agreement or any other Bridge Loan Document except as specifically provided in
this Agreement or any other Bridge Loan Document.


 


SECTION 14.         Miscellaneous.


 


14.01.      Payment
of Expenses, etc.  (a)  The Borrower hereby agrees
to:  (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable and documented out-of-pocket costs and expenses
of the Administrative Agent and the Lead Arranger (including, without
limitation, the reasonable fees and disbursements of White & Case LLP
and, if necessary, one local counsel in any applicable jurisdiction and one
regulatory counsel) in connection with the preparation, execution, delivery and
administration of this Agreement and the other Bridge Loan Documents and the
documents and instruments referred to herein and therein (including, without
limitation, the documentation referred to in Section 10.15 hereof) and any
amendment, waiver or consent relating hereto or thereto, of the Administrative
Agent, the Lead Arranger and their respective Affiliates in connection with its
or their syndication efforts with respect to this Agreement and of the
Administrative Agent and, after the occurrence of an Event of Default, for the
period during which such Event of Default is continuing, the Administrative
Agent and each of the Lenders in connection with the enforcement of this
Agreement and the other Bridge Loan Documents and the documents and instruments
referred to herein and therein; provided, however, that in the absence of
conflicts, reimbursement of legal fees and disbursements shall be limited to
the reasonable fees and disbursements of one counsel (and one local counsel in
each relevant jurisdiction and one regulatory counsel, if applicable) for the
Administrative Agent, the Issuing Lenders and the Lenders, such counsel to be
selected by the Administrative Agent;(ii) pay and hold the Administrative
Agent and each of the Lenders harmless from and against any and all present and
future stamp, excise and other similar documentary taxes with respect to the
foregoing matters and save the Administrative Agent and each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to the
Administrative Agent to pay such taxes; and (iii) indemnify the
Administrative Agent, the Lead Arranger and each Lender, and each of their
respective officers, directors, employees and affiliates (each, an “Indemnified
Person”) from and hold each of them harmless against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements 


 


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(including reasonable attorneys’ and consultants’ fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not the
Administrative Agent, the Lead Arranger or any Lender is a party thereto and
whether or not such investigation, litigation or other proceeding is brought by
or on behalf of any Credit Party) related to the entering into and/or
performance of this Agreement, the Exchange Notes Indenture, the Exchange Notes
or any other Bridge Loan Document or the proceeds of any Loans hereunder or the
consummation of the Transaction or any other transactions contemplated herein
or in any other Bridge Loan Document or the exercise of any of their rights or
remedies provided herein or in the other Bridge Loan Documents, or (b) the
actual or alleged presence of Hazardous Materials in the air, surface water or
groundwater or on the surface or subsurface of any Real Property at any time
owned, leased or operated by Holdings or any of its Subsidiaries, the
generation, storage, transportation, handling or disposal of Hazardous
Materials by Holdings or any of its Subsidiaries at any location, whether or
not owned, leased or operated by Holdings or any of its Subsidiaries, the
non-compliance by Holdings or any of its Subsidiaries with any Environmental
Law (including applicable permits thereunder) applicable to any Real Property,
or any Environmental Liability of Holdings, any of its Subsidiaries or any Real
Property at any time owned, leased or operated by Holdings or any of its
Subsidiaries, including, in each case, without limitation, the reasonable fees
and disbursements of counsel and other consultants incurred in connection with
any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence, bad faith or willful misconduct of the
Indemnified Person to be indemnified (as determined by a court of competent
jurisdiction in a final and non-appealable decision)).  To the extent that the undertaking to
indemnify, pay or hold harmless the Administrative Agent, the Lead Arranger or
any Lender set forth in the preceding sentence may be unenforceable because it
is violative of any law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the indemnified liabilities
which is permissible under applicable law.


 


(b)      To the full extent permitted by applicable law, each
of Holdings and the Borrower shall not assert, and hereby waives, any claim
against any Indemnified Person, on any theory of liability, for special,
indirect, consequential or incidental damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Bridge Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or the use of
the proceeds thereof.  No Indemnified
Person shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Bridge Loan  Documents or the transactions contemplated
hereby or thereby, except to the extent the liability of such Indemnified
Person results from such Indemnified Person’s gross negligence, bad faith or
willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).


 


14.02.      Right
of Setoff.  In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent and each Lender (with the prior written
consent of the Administrative Agent or the Required Lenders) is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice 


 


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of any kind to any Credit
Party or to any other Person, any such notice being hereby expressly waived, to
set off and to appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by the Administrative
Agent or such Lender (including, without limitation, by branches and agencies
of the Administrative Agent or such Lender wherever located) to or for the
credit or the account of Holdings or any of its Subsidiaries against and on
account of the Obligations of the Credit Parties to the Administrative Agent or
such Lender under this Agreement or under any of the other Bridge Loan
Documents, including, without limitation, all interests in Obligations
purchased by such Lender pursuant to Section 14.04(b), and although said
Obligations  shall be contingent or
unmatured. After exercising any set off rights pursuant to the immediately
preceding sentence, the respective Lender shall promptly notify the
Administrative Agent and the Borrower of such exercise, although any delay or
failure in giving any such notice shall not affect the exercise of set off
rights as provided above and shall result in no liability for the respective
Lender.


 


14.03.      Notices. 
Except as otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including facsimile
communication) and mailed, faxed or delivered: 
if to any Credit Party, at the address specified opposite its signature
below or in the other relevant Bridge Loan Documents; if to any Lender, at its
address specified on Schedule 14.03; and if to the Administrative Agent,
at the Notice Office; or, as to any Credit Party or the Administrative Agent,
at such other address as shall be designated by such party in a written notice
to the other parties hereto and, as to each Lender, at such other address as
shall be designated by such Lender in a written notice to the Borrower and the
Administrative Agent.  All such notices
and communications shall, when mailed, faxed or sent by overnight courier, be
effective when deposited in the mails, faxed (with return receipt), or
delivered to the overnight courier, as the case may be, except that notices and
communications to the Administrative Agent and the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.


 


14.04.      Benefit
of Agreement; Assignments; Participations.  (a) 
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto; provided,
however, neither Holdings nor the Borrower may assign or transfer any of
its rights, obligations or interest hereunder without the prior written consent
of the Lenders and, provided further, that, although any Lender may
grant participations to Eligible Transferees in its rights hereunder, (i) such
Lender shall remain a “Lender” for all purposes hereunder (and may not transfer
or assign all or any portion of its Commitments hereunder except as provided in
Sections 2.13 and 14.04(b)) and, (ii) the participant shall not constitute
a “Lender” hereunder, (iii) such Lender shall remain the holder of its
Loans for all purposes hereunder, and (iv) Borrowers and any Lender shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement, and, provided further,
that no Lender shall transfer or grant any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Bridge Loan Document except to the extent such amendment
or waiver would (i) extend the final scheduled maturity of any Loan or
Note in which such participant is participating, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with a
waiver of applicability of any post-default increase in interest rates) or
reduce the principal amount thereof or increase the amount of the participant’s
participation over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of 


 


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Default or of a mandatory
reduction in the Total Commitment or a mandatory prepayment of the Loans shall
not constitute a change in the terms of such participation, and that an
increase in any Commitment (or the available portion thereof) or Loan shall be
permitted without the consent of any participant if the participant’s
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by Holdings or the Borrower of any of its rights and
obligations under this Agreement or (iii) release all or substantially all
of the Collateral under all of the Security Documents (except as expressly
provided in the Bridge Loan Documents) supporting the Loans hereunder in which
such participant is participating.  In
the case of any such participation, the participant shall not have any rights
under this Agreement or any of the other Bridge Loan Documents (the participant’s
rights against such Lender in respect of such participation to be those set
forth in the agreement executed by such Lender in favor of the participant
relating thereto) and all amounts payable by the Borrower hereunder shall be
determined as if such Lender had not sold such participation.


 


(b)      Notwithstanding the foregoing, any Lender (or any
Lender together with one or more other Lenders) may (x) assign (but not to
Holdings or any Subsidiary thereof except pursuant to clause (c) below)
all or a portion of its Commitments and/or outstanding principal amount of
Loans hereunder to (i)(A) its parent company and/or any Affiliate of such
Lender which is at least 50% owned by such Lender or its parent company or (B) one
or more other Lenders or any Affiliate of any such other Lender which is at
least 50% owned by such other Lender or its parent company (provided
that any fund that invests in loans and is managed or advised by the same
investment advisor of another fund which is a Lender (or by an Affiliate of
such investment advisor) shall be treated as an Affiliate of such other Lender
for the purposes of this sub-clause (x)(i)(B)), or (ii) in the case of any
Lender that is a fund that invests in loans, any other fund that invests in
loans and is managed or advised by the same investment advisor as such Lender
or by an Affiliate of such investment advisor or (y) assign all, or if
less than all, a portion equal to at least $1,000,000 (or such lesser amount as
the Administrative Agent and, so long as no Default under Section 12(a) and
no Event of Default then exists, the Borrower may otherwise agree) in the
aggregate in respect of the Commitments and/or Loans for the assigning Lender
or assigning Lenders, hereunder to one or more Eligible Transferees (treating
any fund that invests in loans and any other fund that invests in loans and is
managed or advised by the same investment advisor of such fund or by an
Affiliate of such investment advisor as a single assignor or Eligible
Transferee (as applicable) (if any)), each of which assignees shall become a
party to this Agreement as a Lender by execution of an Assignment and
Assumption Agreement, provided that (i) at such time, Schedule
1.01A shall be deemed modified to reflect the Commitments and/or
outstanding Loans, as the case may be, of such new Lender and of the existing
Lenders, (ii) upon the surrender of the relevant Notes by the assigning
Lender (or, upon such assigning Lender’s indemnifying the Borrower for any lost
Note pursuant to a customary indemnification agreement) new Notes will be
issued, at the Borrower’s expense, to such new Lender and to the assigning
Lender upon the request of such new Lender or assigning Lender, such new Notes
to be in conformity with the requirements of Section 2.05 (with
appropriate modifications) to the extent needed to reflect the revised
Commitments and/or outstanding Loans, as the case may be, (iii) at any
time when both Commitments and Loans are outstanding hereunder, each assignment
by a given Lender pursuant to this clause (b) shall be of a like
percentage of the Total Commitment and then total outstanding principal amount
of the Loans, and (iv) the consent of the Administrative Agent shall be
required in connection with any such assignments of Commitments pursuant to
clause (x) or (y) (such consent, in any case, not to be 


 


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unreasonably withheld, delayed or conditioned) and (v) no such
transfer or assignment will be effective until recorded by the Administrative
Agent on the Register pursuant to Section 14.15.  To the extent of any assignment pursuant to
this Section 14.04(b), the assigning Lender shall be relieved of its
obligations hereunder with respect to its assigned Commitments and Loans.  At the time of each assignment pursuant to
this Section 14.04(b) to a Person which is not already a Lender
hereunder, the respective assignee Lender shall, to the extent legally entitled
to do so, provide to the Borrower the appropriate Internal Revenue Service
Forms, certificates and other information (and, if applicable, a Section 5.04(b)(ii) Certificate)
described in Section 5.04(b).  To
the extent that an assignment of all or any portion of a Lender’s Commitments
and related outstanding Obligations pursuant to Section 2.13 or this Section 14.04(b) would,
at the time of such assignment, result in increased costs under Section 2.10,
3.06 or 5.04 from those being charged by the respective assigning Lender prior
to such assignment, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower, in accordance with and pursuant to the
other provisions of this Agreement, shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).


 


(c)      [Intentionally Omitted].


 


(d)      Nothing in this Agreement shall prevent or prohibit
any Lender from pledging its Loans and Notes hereunder to a Federal Reserve
Bank in support of borrowings made by such Lender from such Federal Reserve
Bank, any Lender which is a fund may pledge all or any portion of its Loans and
Notes to its trustee or to a collateral agent providing credit or credit
support to such Lender in support of its obligations to such trustee, such
collateral agent or a holder of such obligations, as the case may be.  No pledge pursuant to this clause (d) shall
release the transferor Lender from any of its obligations hereunder.


 


(e)      Any Lender which assigns all of its Commitments and/or
Loans hereunder in accordance with Section 14.04(b) shall cease to
constitute a “Lender” hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 2.10,
2.11, 5.04, 13.06, 14.01 and 14.06), with respect to matters arising while it
was a Lender which shall survive as to such assigning Lender.  To the extent any Lender exchanges its Loans
(and related Notes) hereunder for Exchange Notes, the Loans and any Notes so
exchanged shall be immediately and automatically cancelled and retired, and the
Borrower shall in no event become a Lender hereunder.  To the extent of any such exchange by a
Lender hereunder, such Lender shall be relieved of obligations hereunder with
respect to the exchanged Loans.  If any
Lender exchanges all of its Loans (and related Notes) hereunder pursuant to one
or more Exchanges, such Person shall cease to constitute a “Lender” hereunder,
except with respect to indemnification provisions under this Agreement
(including, without limitation, Sections 2.10, 2.11, 5.04, 13.06, 14.01 and
14.06), with respect to matters arising while it was a Lender which shall
survive as to such assigning Lender.


 


14.05.      No
Waiver; Remedies Cumulative.  No failure or
delay on the part of the Administrative Agent, the Collateral Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Bridge Loan Document and no course of dealing between the Borrower or any other
Credit Party and the Administrative Agent, the Collateral Agent or any Lender
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, 


 


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power or privilege
hereunder or under any other Bridge Loan Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder.  The rights,
powers and remedies herein or in any other Bridge Loan Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which the Administrative Agent, the Collateral Agent or any Lender would
otherwise have.  No notice to or demand
on any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent, the Collateral Agent or any
Lender to any other or further action in any circumstances without notice or
demand.


 


14.06.      Payments
Pro Rata.  (a)  Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, the Administrative Agent shall distribute such payment to the
Lenders entitled thereto (other than any Lender that has consented in writing
to waive its pro  rata share of any such payment) pro  rata
based upon their respective shares, if any, of the Obligations with respect to
which such payment was received.


 


(b)      Each of the Lenders agrees that, if it should receive
any amount hereunder (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or banker’s lien, by
counterclaim or cross action, by the enforcement of any right under the Bridge
Loan Documents, or otherwise), which is applicable to the payment of the
principal of, or interest on, the Loans of a sum which with respect to the
related sum or sums received by other Lenders is in a greater proportion than
the total of such Obligation then owed and due to such Lender bears to the
total of such Obligation then owed and due to all of the Lenders immediately
prior to such receipt, then such Lender receiving such excess payment shall
purchase for cash without recourse or warranty from the other Lenders an
interest in the Obligations of the respective Credit Party to such Lenders in
such amount as shall result in a proportional participation by all the Lenders
in such amount; provided that if all or any portion of such excess
amount is thereafter recovered from such Lenders, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but without
interest.


 


(c)      Notwithstanding anything to the contrary contained
herein, the provisions of the preceding Sections 14.06(a) and (b) shall
be subject to (x) the express provisions of Section 10.15, which
permit various Lenders to exchange Loans for Exchange Notes, and (y) the
express provisions of Section 14.12(b), which permit disproportionate
payments with respect to the Loans as, and to the extent, provided therein.


 


14.07.      Calculations;
Computations.  (a)  The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders); provided that, (i) except as
otherwise specifically provided herein, all computations of Excess Cash Flow
and all computations and all definitions (including accounting terms) used in
determining compliance with Sections 11.10 through 11.12, inclusive, shall (x) utilize
GAAP and policies in conformity with those used to prepare the audited
financial statements of Holdings referred to in Section 9.04(a) for
the Fiscal Year ended December 31, 2009 and (y) be calculated, in
each case, without giving effect to any election under Statement of Financial
Accounting Standards 159 (or 


 


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any similar accounting
principle) permitting a Person to value its financial liabilities at the fair
value thereof and (ii) to the extent expressly provided herein, certain
calculations shall be made on a Pro  Forma Basis.


 


(b)      All computations of interest and other Fees hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or Fees are payable.


 


14.08.      GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.  (a)  THIS
AGREEMENT AND THE OTHER BRIDGE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN ANY
MORTGAGE OR ANY OTHER SECURITY DOCUMENT, BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES).  ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER BRIDGE LOAN DOCUMENT
(EXCEPT THAT, (X) IN THE CASE OF ANY MORTGAGE OR SECURITY DOCUMENT,
PROCEEDINGS MAY ALSO BE BROUGHT BY THE ADMINISTRATIVE AGENT OR COLLATERAL
AGENT IN THE STATE IN WHICH THE RESPECTIVE MORTGAGED PROPERTY OR COLLATERAL IS
LOCATED  OR ANY OTHER RELEVANT
JURISDICTION AND (Y) IN THE CASE OF ANY BANKRUPTCY, INSOLVENCY OR SIMILAR
PROCEEDINGS WITH RESPECT TO ANY CREDIT PARTY, ACTIONS OR PROCEEDINGS RELATED TO
THIS AGREEMENT AND THE OTHER BRIDGE LOAN DOCUMENTS MAY BE BROUGHT IN SUCH
COURT HOLDING SUCH BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDINGS) SHALL BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF
NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER BRIDGE
LOAN DOCUMENT, EACH PARTY HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS. 
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE IMMEDIATELY
PRECEDING SENTENCE, IF ANY PARTY HERETO IS UNABLE TO OBTAIN JURISDICTION WITH
RESPECT TO ANY OTHER PARTY HERETO IN THE COURTS SPECIFIED IN THE IMMEDIATELY
PRECEDING SENTENCE, THEN SUCH PARTY MAY BRING ANY LEGAL ACTION OR OTHER
PROCEEDING AGAINST ANY PARTY OVER WHICH IT WAS UNABLE TO OBTAIN JURISDICTION AS
PROVIDED ABOVE WITH RESPECT TO THIS AGREEMENT OR ANY OTHER BRIDGE LOAN DOCUMENT
IN ANY COURT IN WHICH IT IS ABLE TO OBTAIN SUCH JURISDICTION.  EACH PARTY HERETO HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS DESCRIBED ABOVE LACK PERSONAL
JURISDICTION OVER SUCH PERSON, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL
ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER BRIDGE LOAN
DOCUMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK
PERSONAL JURISDICTION OVER SUCH PERSON. 
EACH PARTY HERETO FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OUT OF ANY OF THE


 


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AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PERSON AT ITS ADDRESS FOR NOTICES
PURSUANT TO SECTION 14.03, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING.  EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER BRIDGE LOAN DOCUMENT IN THE COURTS
SPECIFIED ABOVE THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE.  NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.


 


(b)      EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER BRIDGE LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED
TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES
NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


(c)      EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER BRIDGE
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


14.09.      Counterparts. 
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. 
A set of counterparts executed by all the parties hereto shall be lodged
with the Borrower and the Administrative Agent.


 


14.10.      Effectiveness. 
This Agreement shall become effective on the date (the “Effective
Date”) on which Holdings, the Borrower, the Administrative Agent, the
Collateral Agent and each of the Lenders shall have signed a counterpart hereof
(whether the same or different counterparts) and shall have delivered the same
(including delivery by facsimile or electronic transmission in pdf format) to
the Administrative Agent at the Notice Office or, in the case of the Lenders,
shall have given to the Administrative Agent telephonic (confirmed in writing),
written or telex notice (actually received) at such office that the same has
been signed and mailed to it.  The
Administrative Agent will give Holdings, the Borrower and each Lender prompt
written notice (including delivery by facsimile or electronic transmission in
pdf format) of the occurrence of the Effective Date.


 


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14.11.      Headings
Descriptive.  The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.


 


14.12.      Amendment
or Waiver; etc.  (a)  Subject to the provisions of
following clause (c), neither this Agreement nor any other Bridge Loan Document
nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by the respective Credit Parties party hereto or thereto and the
Required Lenders (or the Administrative Agent at the direction of or with the
consent of the Required Lenders) (except that the Administrative Agent and the
Borrower may enter into any amendment of any Bridge Loan Document in order to
correct any immaterial technical error therein without the consent of the
Credit Parties or the Required Lenders), provided that no such change,
waiver, discharge or termination shall, without the consent of each Lender
(other than a Defaulting Lender), (i) release all or substantially all of (x) the
Collateral (except as expressly provided in the Bridge Loan Documents) under
all the Security Documents or (y) the guarantees under the Guaranty and
Collateral Agreement, (ii) amend, modify or waive any provision of this Section 14.12
(except for technical amendments with respect to additional extensions of
credit pursuant to this Agreement which afford the protections to such additional
extensions of credit of the type provided to the Loans on the Effective Date), (iii) reduce
the “majority” voting threshold specified in the definition of Required Lenders
(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
extensions of Loans are included on the Effective Date) or (iv) consent to
the assignment or transfer by Holdings or the Borrower of any of its rights and
obligations under this Agreement; provided further, that no such change,
waiver, discharge or termination shall (1) without the consent of each
Lender with Obligations being directly modified, extend the final scheduled
maturity of any Loan or Note, or reduce the rate or extend the time of payment
of interest or Fees thereon (except in connection with the waiver of
applicability of any post-default increase in interest rates), or reduce (or
forgive) the principal amount thereof, (2) increase the Commitments of any
Lender over the amount thereof then in effect without the 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 Total Commitment or a mandatory repayment of Loans shall not constitute
an increase of the Commitment of any Lender, and that an increase in the
available portion of any Commitment of any Lender shall not constitute an increase
of the Commitment of such Lender), (3) without the consent of the
Administrative Agent, amend, modify or waive any provision of Section 13
or any other provision as same relates to the rights or obligations of the
Administrative Agent or (4) without the consent of Collateral Agent,
amend, modify or waive any provision relating to the rights or obligations of
the Collateral Agent.


 


(b)      If, in connection with any proposed change, waiver,
discharge or termination of or to any of the provisions of this Agreement as
contemplated by clauses (i) through (iv), inclusive, of the first proviso
to Section 14.12(a), the consent of the Required Lenders is obtained but
the consent of one or more of such other Lenders whose consent is required is
not obtained, then the Borrower shall have the right, so long as all
non-consenting Lenders whose individual consent is required are treated as
described below, to replace each such non-consenting Lender or Lenders with one
or more Replacement Lenders pursuant to Section 2.13 so long as at the
time of such replacement, each such Replacement Lender consents 


 


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to the proposed change, waiver, discharge or termination, or (B) terminate
such non consenting Lender’s Commitment and/or repay the outstanding Loans of
such Lender, provided that, unless the Commitments which terminated and
Loans which are repaid pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Lenders or the increase
of the Commitments and/or outstanding Loans of existing Lenders (who in each
case must specifically consent thereto), then in the case of any action
pursuant to preceding clause (B), the Required Lenders (determined after giving
effect to the proposed action) shall specifically consent thereto, provided
further, that the Borrower shall not have the right to replace a Lender,
terminate its Commitment or repay its Loans solely as a result of the exercise
of such Lender’s rights (and the withholding of any required consent by such
Lender) pursuant to the second proviso to Section 14.12(a) (unless
pursuant to clause (1) thereof).


 


(c)      Notwithstanding anything to contrary contained above
in this Section 14.12 or elsewhere in this Agreement or any other Bridge
Loan Document, the following modifications may be made, and actions taken, by
the Administrative Agent, in each case without the consent of any Credit Party
(except as expressly required below) or the Required Lenders or any other group
of Lenders (with all capitalized terms used in clauses (i) through (v) below,
if not otherwise defined herein, being used herein as defined in the
Intercreditor Agreement):


 


(i)            as contemplated by the
Intercreditor Agreement, additional Series (as defined in the Intercreditor
Agreement) of First-Lien Obligations and Second-Lien Obligations (so long as
permitted in accordance with the requirements of this Agreement) may become
subject to the Intercreditor Agreement and the Administrative Agent is
authorized and directed to agree to any technical changes to the Intercreditor
Agreement and to execute such joinder agreements with respect to the
Intercreditor Agreement as may be deemed appropriate by it in connection with
the inclusion of any such Indebtedness pursuant to the Intercreditor Agreement,
without the consent of any Lenders;


 


(ii)           [Intentionally Omitted];


 


(iii)          the Administrative Agent may
agree to such technical changes to the Intercreditor Agreement as are deemed
reasonably necessary or desirable by it, in each case so long as such changes,
taken as a whole, are not adverse in any material respect to the Lenders;


 


(iv)          the Administrative Agent may
agree to, or acknowledge, the termination of the Intercreditor Agreement with
respect to any Series in accordance with the express provisions of Section 8.2
of the Intercreditor Agreement, and at any time when the Intercreditor
Agreement may be terminated in accordance with the penultimate sentence of Section 8.2
thereof, the Administrative Agent may agree to the termination thereof with the
written agreement of the Borrower;


 


(v)           [Intentionally Omitted];


 


(vi)          with respect to the Security
Documents, (x) additional Credit Parties 


 


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may be added as parties thereto with only the
consent of the relevant Credit Parties being added (and annexes may be modified
to reflect additions), and (y) Subsidiaries of Holdings (other than the
Borrower) may be released from the Guarantee and Collateral Agreement and any
other Security Documents in accordance with the provisions hereof and thereof,
in each case without the consent of the other Credit Parties or any Lenders;
and


 


(vii)         the Administrative Agent and
the Collateral Agent may execute any documents or instruments evidencing any
release of any Liens granted to or held by the Collateral Agent upon any
Collateral in accordance with Section 13.10(b) without the consent of
the Credit Parties or any Lenders.


 


14.13.      Survival. 
All indemnities set forth herein including, without limitation, in
Sections 2.10, 2.11, 5.04, 13.06 and 14.01 shall survive the execution,
delivery and termination of this Agreement and the Notes and the making and
repayment of the Obligations.


 


14.14.      Domicile
of Loans.  Each
Lender may transfer and carry its Loans at, to or for the account of any
office, Subsidiary or Affiliate of such Lender. 
Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 14.14 would, at the time
of such transfer, result in increased costs under Section 2.10, 2.11 or
5.04 from those being charged by the respective Lender prior to such transfer,
then the Borrower shall not be obligated to pay such increased costs (although
the Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).


 


14.15.      Register. 
The Borrower hereby designates the Administrative Agent to serve as its
agent, solely for purposes of this Section 14.15, to maintain a register
(the “Register”) on which it will record the Commitments from time to
time of each of the Lenders, the Loans made by each of the Lenders and each
repayment in respect of the principal amount of the Loans of each Lender
(including as a result of one or more Exchanges pursuant to Section 10.15).  Failure to make any such recordation, or any
error in such recordation, shall not affect the Borrower’s obligations in
respect of such Loans.  With respect to
any Lender, the transfer of the Commitments of such Lender and the rights to
the principal of, and interest on, any Loan made pursuant to such Commitments
shall not be effective until such transfer is recorded on the Register
maintained by the Administrative Agent with respect to ownership of such Commitments
and Loans and prior to such recordation all amounts owing to the transferor
with respect to such Commitments and Loans shall remain owing to the
transferor.  The registration of
assignment or transfer of all or part of any Commitments and Loans shall be
recorded by the Administrative Agent on the Register upon and only upon the
acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 14.04(b) or
agreement pursuant to Section 14.04(c). 
Upon such acceptance and recordation, the assignee specified therein
shall be treated as a Lender for all purposes of this Agreement.  Coincident with the delivery of such an
Assignment and Assumption Agreement or agreement pursuant to Section 14.04(c) to
the Administrative Agent for acceptance and registration of assignment or
transfer of all or part of a Loan, or as soon thereafter as practicable, the
assigning or transferor Lender shall surrender the Note (if any) evidencing
such Loan, and thereupon (in the case of an assignment pursuant to Section 14.04(b)),
one or more new Notes in 


 


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the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender at the request of any such Lender.  The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this Section 14.15.


 


14.16.      Confidentiality.  (a) 
Subject to the provisions of clause (b) of this Section 14.16, each
of the Administrative Agent, the Collateral Agent and each Lender agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and will agree
to keep such Information confidential in accordance with this Section), (b) to
the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process (provided that in the case of Information required to be disclosed by a
Person pursuant to a subpoena or similar legal process, such Person shall use
reasonable efforts to provide the Borrower with prior notice of such required
disclosure and the opportunity to obtain a protective order in respect thereof
if no conflict exists with such Person’s governmental, regulatory or legal
requirements), (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Bridge Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Loan Parties and their obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or
by the respective Lender or agent (ii) becomes available to the
Administrative Agent, the Collateral Agent or any Lender on a nonconfidential
basis from a source other than any Credit Party.  For the purposes of this
Section, “Information” means all information received from any Credit
Party relating to any Credit Party or its business, other than any such
information that is available to the Administrative Agent, the Collateral Agent
or any Lender on a nonconfidential basis prior to disclosure by such Credit
Party from a source other than a Credit Party.  Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


(b)      Each of Holdings and the Borrower hereby acknowledges
and agrees that each Lender may share with any of its affiliates, and such
affiliates may share with such Lender, any information related to Holdings or
any of its Subsidiaries (including, without limitation, any non-public customer
information regarding the creditworthiness of Holdings and its Subsidiaries),
provided such Persons shall be subject to the provisions of this Section 14.16
to the same extent as such Lender.


 


14.17.      Patriot Act.  Each Lender
subject to the Patriot Act hereby notifies Holdings and the Borrower that
pursuant to the requirements of the Patriot Act, it is required to 


 


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obtain, verify and record information that identifies
Holdings, the Borrower and the other Credit Parties and other information that
will allow such Lender to identify Holdings, the Borrower and the other Credit
Parties in accordance with the Patriot Act.


 


14.18.      OTHER LIENS ON COLLATERAL; TERMS OF INTERCREDITOR
AGREEMENT; ETC.  (a)  EACH LENDER UNDERSTANDS,
ACKNOWLEDGES AND AGREES THAT LIENS SHALL BE CREATED ON THE COLLATERAL PURSUANT
TO FIRST LIEN CREDIT DOCUMENTS (ON A FIRST LIEN BASIS) AND THE BRIDGE LOAN
DOCUMENTS (ON A SECOND LIEN BASIS) (AND IN THE FUTURE MAY BE CREATED ON
THE COLLATERAL WITH RESPECT TO ONE OR MORE SERIES OF INDEBTEDNESS IN ACCORDANCE
WITH THE TERMS HEREOF AND THE INTERCREDITOR AGREEMENT), WHICH LIENS SHALL BE
SUBJECT TO THE TERMS AND CONDITIONS OF THE INTERCREDITOR AGREEMENT, IT IS
UNDERSTOOD AND AGREED THAT THE LIENS ON THE COLLATERAL SECURING THE EXTENSIONS
OF CREDIT PURSUANT TO THIS AGREEMENT (AND ANY OTHER SECOND LIEN INDEBTEDNESS)
ARE PROVIDED ON A JUNIOR AND SUBORDINATE BASIS IN ACCORDANCE WITH THE EXPRESS
PROVISIONS OF THE INTERCREDITOR AGREEMENT. 
IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR
AGREEMENT AND ANY OF THE OTHER BRIDGE LOAN DOCUMENTS, THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.


 


(b)      EACH LENDER AUTHORIZES AND INSTRUCTS THE
ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT TO ENTER INTO THE INTERCREDITOR
AGREEMENT ON BEHALF OF THE LENDERS, AND TO TAKE ALL ACTIONS (AND EXECUTE ALL
DOCUMENTS) REQUIRED (OR DEEMED ADVISABLE) BY IT IN ACCORDANCE WITH THE TERMS OF
THE INTERCREDITOR AGREEMENT.


 


(c)      THE PROVISIONS OF THIS SECTION 14.18 ARE NOT
INTENDED TO SUMMARIZE THE RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT,
THE FORM OF WHICH IS ATTACHED AS AN EXHIBIT TO THIS AGREEMENT.  REFERENCE MUST BE MADE TO THE INTERCREDITOR
AGREEMENT ITSELF TO UNDERSTAND THE TERMS AND CONDITIONS THEREOF.  EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN
ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS
THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES
ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR ADVISABILITY OF THE
PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT.


 


14.19.      Interest Rate Limitation.  Notwithstanding anything to the contrary
contained in any Bridge Loan Document, the interest paid or agreed to be paid
under the Bridge Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. 
In determining whether the interest contracted for, charged, or received
by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by 


 


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applicable law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.


 


14.20.      Regulation U.  (a)  The
Borrower and the Lenders agree that, for purposes of this Agreement and for
determining compliance with Regulation U, all Loans and extensions of credit
incurred hereunder and under the First Lien Credit Agreement shall be deemed to
be “purpose loans” under Regulation U and the provisions of this Section 14.20
shall apply.


 


(b)      Notwithstanding anything to the contrary contained
elsewhere in this Agreement, the Borrower agrees that at all times prior to the
Merger Closing Date it shall not, and shall not permit Holdings or any of its
Subsidiaries to, sell, transfer or otherwise dispose of any shares of Margin
Stock, or otherwise withdraw or substitute any direct or indirect security for
any Loans or other extensions of credit hereunder, unless after giving effect
thereto and to any prepayments of Loans and/or First Lien Loans to be made in
connection therewith, such sale, transfer, disposition or other withdrawal or
substitution would be permissible under Section 221.3(f) of
Regulation U.


 


(c)      The Borrower will furnish to each Lender, prior to the
making of any Credit Event or at any time thereafter upon the request of such
Bank, such information as such Lender may require to determine compliance with
Regulation U and such documents as such Lender may require to comply with
Regulation U.


 


(d)      At the time of the making of any assignment or the
granting of any participation under this Agreement, the transferor shall
furnish to the transferee (including by making same available as described in
the penultimate paragraph of Section 10.01) a copy of the Form FR U-1
or Form FR G-3, as the case may be, originally obtained with respect to
the transferred interest pursuant to Section 6.11 of this Agreement (as
supplemented from time to time pursuant to Section 7.06(b) of this
Agreement).


 


(e)      Each Lender acknowledges and agrees that it shall be
responsible for complying with any applicable registration requirements
applicable to lenders as set forth in Regulation U.


 


SECTION 15.         Holdings Guaranty.


 


15.01.      Guaranty. 
In order to induce the Administrative Agent, the Collateral Agent and
the Lenders to enter into this Agreement and to extend credit hereunder and in
recognition of the direct benefits to be received by Holdings from the proceeds
of the Loans,  Holdings hereby agrees
with the Guaranteed Creditors as follows: 
Holdings hereby unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, acceleration or otherwise, of any and all of the Guaranteed
Obligations of the Guaranteed Parties to the Guaranteed Creditors.  If any or all of the Guaranteed Obligations
of the Guaranteed Parties to the Guaranteed Creditors becomes due and payable
hereunder, Holdings, unconditionally and irrevocably, promises to pay such
Guaranteed Obligations to the Administrative Agent for the benefit of the
Administrative Agent 


 


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and/or the other
Guaranteed Creditors to which such Guaranteed Obligations are owed, on demand
together with any and all expenses which may be incurred by the Administrative
Agent and the other Guaranteed Creditors in collecting any of the Guaranteed
Obligations to the extent reimbursable under Section 14.01.  If claim is ever made upon any Guaranteed
Creditor for repayment or recovery of any amount or amounts received in payment
or on account of any of the Guaranteed Obligations and any of the aforesaid
payees repays all or part of said amount by reason of (i) any judgment,
decree or order of any court or administrative body having jurisdiction over
such payee or any of its property or (ii) any settlement or compromise of
any such claim effected by such payee with any such claimant (including the
Guaranteed Parties), then and in such event Holdings agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon
Holdings, notwithstanding any revocation of this Holdings Guaranty or other instrument
evidencing any liability of the Borrower, and Holdings shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by any
such payee.


 


15.02.      Bankruptcy. 
Additionally, Holdings unconditionally and irrevocably guarantees the
payment of any and all of the Guaranteed Obligations to the Guaranteed Creditors
whether or not due or payable by any Guaranteed Party upon the occurrence of
any of the Events of Default with respect to Holdings or the Borrower specified
in Section 12(h) or (i), and irrevocably and unconditionally promises
to pay such Guaranteed Obligations to the Guaranteed Creditors, on demand, in
lawful money of the United States.


 


15.03.      Nature
of Liability.  The liability of Holdings hereunder is
primary, absolute and unconditional, exclusive and independent of any security
for or other guaranty of the Guaranteed Obligations, whether executed by any
other guarantor or by any other party, and the liability of Holdings hereunder
shall not be affected or impaired by (a) any direction as to application
of payment by any Guaranteed Party or by any other party, or (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor
or of any other party as to the Guaranteed Obligations, or (c) any payment
on or in reduction of any such other guaranty or undertaking, or (d) any dissolution,
termination or increase, decrease or change in personnel by any Guaranteed
Party, or (e) any payment made to any Guaranteed Creditor on the
Guaranteed Obligations which any such Guaranteed Creditor repays to any
Guaranteed Party pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and Holdings waives
any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding, or (f) any action or inaction by the
Guaranteed Creditors as contemplated in Section 15.05, or (g) any
invalidity, irregularity or enforceability of all or any part of the Guaranteed
Obligations or of any security therefor.


 


15.04.      Independent
Obligation.  The obligations of Holdings hereunder are
independent of the obligations of any other guarantor, any other party or any
Guaranteed Party, and a separate action or actions may be brought and
prosecuted against Holdings whether or not action is brought against any other
guarantor, any other party or any Guaranteed Party and whether or not any other
guarantor, any other party or any Guaranteed Party be joined in any such action
or actions.  Holdings waives, to the
fullest extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof.  Any payment by any Guaranteed Party or other
circumstance which operates to toll any statute of limitations as to such
Guaranteed Party shall operate to toll the statute of limitations as to
Holdings.


 


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15.05.      Authorization. 
Holdings authorizes the Guaranteed Creditors without notice or demand
(except as shall be required by applicable statute and cannot be waived), and
without affecting or impairing its liability hereunder, from time to time to:


 


(a)      change the manner, place or terms of payment of,
and/or change or extend the time of payment of, renew, increase, accelerate or
alter, any of the Guaranteed Obligations (including any increase or decrease in
the principal amount thereof or the rate of interest or fees thereon), any
security therefor, or any liability incurred directly or indirectly in respect
thereof, and this Holdings Guaranty shall apply to the Guaranteed Obligations
as so changed, extended, renewed or altered;


 


(b)      take and hold security for the payment of the
Guaranteed Obligations and sell, exchange, release, impair, surrender, realize
upon or otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever securing,
the Guaranteed Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and/or
any offset there against;


 


(c)      exercise or refrain from exercising any rights against
any Guaranteed Party, any other Credit Party or others or otherwise act or
refrain from acting;


 


(d)      release or substitute any one or more endorsers,
guarantors, any Guaranteed Party, other Credit Parties or other obligors;


 


(e)      settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and
may subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of any Guaranteed Party to its creditors other
than the Guaranteed Creditors;


 


(f)       apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of any Guaranteed Party to the
Guaranteed Creditors regardless of what liability or liabilities of any
Guaranteed Party remain unpaid;


 


(g)      consent to or waive any breach of, or any act,
omission or default under, this Agreement, any other Bridge Loan Document or
any of the instruments or agreements referred to herein or therein, or
otherwise amend, modify or supplement this Agreement, any other Bridge Loan
Document or any of such other instruments or agreements; and/or


 


(h)      take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
Holdings from its liabilities under this Holdings Guaranty.


 


15.06.      Reliance. 
It is not necessary for any Guaranteed Creditor to inquire into the
capacity or powers of Holdings or any of its Subsidiaries or the officers,
directors, partners or agents acting or purporting to act on their behalf, and
any Guaranteed Obligations made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.


 


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15.07.      Subordination.  Any indebtedness of any Guaranteed Party now
or hereafter owing to Holdings is hereby subordinated to the Guaranteed
Obligations owing to the Guaranteed Creditors; and if the Administrative Agent
so requests at a time when an Event of Default exists, all such indebtedness of
any Guaranteed Party to Holdings shall be collected, enforced and received by
Holdings for the benefit of the Guaranteed Creditors and be paid over to the
Administrative Agent on behalf of the Guaranteed Creditors on account of the
Guaranteed Obligations to the Guaranteed Creditors, but without affecting or
impairing in any manner the liability of Holdings under the other provisions of
this Holdings Guaranty. Prior to the transfer by Holdings of any note or negotiable
instrument evidencing any such indebtedness of any Guaranteed Party to
Holdings, Holdings shall mark such note or negotiable instrument with a legend
that the same is subject to this subordination. 
Without limiting the generality of the foregoing, Holdings hereby agrees
with the Guaranteed Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this
Holdings Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.


 


15.08.      Waiver.  (a)  Holdings waives any right
(except as shall be required by applicable statute and cannot be waived) to
require any Guaranteed Creditor to (i) proceed against any Guaranteed
Party, any other guarantor or any other party, (ii) proceed against or
exhaust any security held from any Guaranteed Party, any other guarantor or any
other party or (iii) pursue any other remedy in any Guaranteed Creditor’s
power whatsoever.  Holdings waives any
defense based on or arising out of any defense of any Guaranteed Party, any
other guarantor or any other party, other than payment of the Guaranteed
Obligations to the extent of such payment, based on or arising out of the
disability of any Guaranteed Party, Holdings, any other guarantor or any other
party, or the validity, legality or unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of any Guaranteed Party other than payment of the Guaranteed
Obligations to the extent of such payment. 
The Guaranteed Creditors may, at their election, foreclose on any
security held by the Administrative Agent, the Collateral Agent or any other
Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or
not every aspect of any such sale is commercially reasonable (to the extent
such sale is permitted by applicable law), or exercise any other right or
remedy the Guaranteed Creditors may have against any Guaranteed Party or any
other party, or any security, without affecting or impairing in any way the
liability of Holdings hereunder except to the extent the Guaranteed Obligations
have been paid.  Holdings waives any defense
arising out of any such election by the Guaranteed Creditors, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of Holdings against any Guaranteed Party
or any other party or any security.


 


(b)      Holdings
waives all presentments, demands for performance, protests and notices,
including without limitation notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Holdings Guaranty, and
notices of the existence, creation or incurring of new or additional Guaranteed
Obligations.  Holdings assumes all
responsibility for being and keeping itself informed of each Guaranteed Party’s
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which Holdings assumes and incurs hereunder, and agrees
that neither the Administrative Agent nor any of the other Guaranteed 


 


125

















 


Creditors shall have any duty to advise Holdings of information known
to them regarding such circumstances or risks.


 


(c)      Until
such time as the Guaranteed Obligations have been paid in full in cash,
Holdings hereby waives all rights of subrogation which it may at any time
otherwise have as a result of this Holdings Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code, or otherwise) to the claims of
the Guaranteed Creditors against any Guaranteed Party or any other guarantor of
the Guaranteed Obligations and all contractual, statutory or common law rights
of reimbursement, contribution or indemnity from any Guaranteed Party or any
other guarantor which it may at any time otherwise have as a result of this
Holdings Guaranty.


 


(d)      Holdings
hereby acknowledges and affirms that it understands that to the extent the
Guaranteed Obligations are secured by Real Property located in California,
Holdings shall be liable for the full amount of the liability hereunder
notwithstanding the foreclosure on such Real Property by trustee sale or any
other reason impairing Holdings’ or any Guaranteed Creditor’s right to proceed
against any Guaranteed Party or any other guarantor of the Guaranteed
Obligations.  In accordance with Section 2856
of the California Code of Civil Procedure, Holdings hereby waives until such
time as the Guaranteed Obligations have been paid in full in cash:


 


(i)            all rights of
subrogation, reimbursement, indemnification, and contribution and any other
rights and defenses that are or may become available to Holdings by reason of
Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Code of Civil
Procedure;


 


(ii)           all rights and
defenses that Holdings may have because the Guaranteed Obligations are secured
by Real Property located in California, meaning, among other things, that:  (A) the Guaranteed Creditors may collect
from Holdings without first foreclosing on any real or personal property
collateral pledged by any Guaranteed Party or any other Credit Party, and (B) if
the Guaranteed Creditors foreclose on any Real Property collateral pledged by
any Guaranteed Party or any other Credit Party, (1) the amount of the
Guaranteed Obligations may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is worth
more than the sale price, and (2) the Guaranteed Creditors may collect
from Holdings even if the Guaranteed Creditors, by foreclosing on the Real
Property collateral, have destroyed any right Holdings may have to collect from
any Guaranteed Party, it being understood that this is an unconditional and
irrevocable waiver of any rights and defenses Holdings may have because the
Guaranteed Obligations are secured by Real Property (including, without
limitation, any rights or defenses based upon Sections 580a, 580d or 726 of the
California Code of Civil Procedure); and


 


(iii)          all rights and
defenses arising out of an election of remedies by the Guaranteed Creditors,
even though that election of remedies, such as a nonjudicial foreclosure with
respect to security for the Guaranteed Obligations, has destroyed Holdings’
rights of subrogation and reimbursement against any Guaranteed Party by the
operation of Section 580d of the California Code of Civil Procedure or
otherwise.


 


126

















 


(e)           Holdings
warrants and agrees that each of the waivers set forth above is made with full
knowledge of its significance and consequences and that if any of such waivers
are determined to be contrary to any applicable law of public policy, such
waivers shall be effective only to the maximum extent permitted by law.


 


15.09.      Payments.  All payments made by Holdings pursuant to
this Section 15 shall be made in Dollars and will be made without setoff,
counterclaim or other defense, and shall be subject to the provisions of
Sections 5.03 and 5.04.


 


*     *    
*


 


127

















 


IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this Agreement as of the
date first above written.


 


 


	
   

  	
  CF INDUSTRIES HOLDINGS,
  INC., as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen R. Wilson

  
	
   

  	
   

  	
  Name:  Stephen R. Wilson

  
	
   

  	
   

  	
  Title:    President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CF INDUSTRIES, INC., as
  the Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen R. Wilson

  
	
   

  	
   

  	
  Name:  Stephen R. Wilson

  
	
   

  	
   

  	
  Title:    President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MORGAN STANLEY SENIOR
  FUNDING, INC.,

  
	
   

  	
  Individually as a
  Lender and as Administrative Agent, Collateral Agent and a Lead Arranger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin Emerson 

  
	
   

  	
   

  	
  Name:  Kevin Emerson

  
	
   

  	
   

  	
  Title:    Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher H.
  O’Neill

  
	
   

  	
   

  	
  Name:  Christopher H. O’Neill

  
	
   

  	
   

  	
  Title:    Senior Vice President

  



 

















 


	
   

  	
  SIGNATURE PAGE TO THE
  BRIDGE LOAN AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG CF
  INDUSTRIES HOLDINGS, INC., CF INDUSTRIES, INC., THE LENDERS PARTY HERETO FROM
  TIME TO TIME, MORGAN STANLEY SENIOR FUNDING, INC., AS ADMINISTRATIVE AGENT
  AND COLLATERAL AGENT

  
	
   

  	
   

  
	
   

  	
  NAME OF INSTITUTION:

  
	
   

  	
   

  
	
   

  	
  MORGAN STANLEY BANK,
  N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin Emerson

  
	
   

  	
   

  	
  Name:  Kevin Emerson

  
	
   

  	
   

  	
  Title:    Authorized
  Signatory