Exhibit 10.2


 


AGREEMENT ACKNOWLEDGING CREDIT AGREEMENT


 


This AGREEMENT ACKNOWLEDGING CREDIT 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 Credit 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 “Credit Agreement”),
which is attached hereto as Exhibit A.


 


By executing and delivering this Agreement, each of
the undersigned, hereby agrees that:


 


(i) the Credit Agreement attached hereto as Exhibit A
shall constitute the final executed Credit Agreement between the parties
thereto and shall be in full force and effect on the date hereof; and


 


(ii) the increase in the Total Revolving Loan
Commitment from $300 million to $500 million shall take effect on the date
hereof after giving effect to the Merger.


 


[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


 
















 


	
   

  	
   

  



 


CREDIT 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. and THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD.,

as JOINT LEAD ARRANGERS and BOOK RUNNERS


 


MORGAN STANLEY SENIOR FUNDING, INC., THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD. and BMO CAPITAL MARKETS,

as JOINT REVOLVING LOAN LEAD ARRANGERS


 


BANK OF MONTREAL, WELLS FARGO BANK, N.A. and NATIXIS
NEW YORK BRANCH,


as CO-DOCUMENTATION AGENTS


 


MORGAN STANLEY MUFG LOAN PARTNERS, LLC,

as GLOBAL COORDINATOR


 


	
   

  	
   

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  Definitions and
  Accounting Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.01.

  	
  Defined Terms

  	
  1

  
	
  1.02.

  	
  Other Definitional
  Provisions

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Amount and Terms of
  Credit

  	
  45

  
	
   

  	
   

  	
   

  
	
  2.01.

  	
  The Commitments

  	
  45

  
	
  2.02.

  	
  Minimum Amount of Each
  Borrowing

  	
  48

  
	
  2.03.

  	
  Notice of Borrowing

  	
  48

  
	
  2.04.

  	
  Disbursement of Funds

  	
  49

  
	
  2.05.

  	
  Notes

  	
  50

  
	
  2.06.

  	
  Conversions

  	
  51

  
	
  2.07.

  	
  Pro Rata Borrowings

  	
  51

  
	
  2.08.

  	
  Interest

  	
  52

  
	
  2.09.

  	
  Interest Periods

  	
  52

  
	
  2.10.

  	
  Increased Costs,
  Illegality, etc.

  	
  54

  
	
  2.11.

  	
  Compensation

  	
  56

  
	
  2.12.

  	
  Change of Lending
  Office

  	
  56

  
	
  2.13.

  	
  Replacement of Lenders

  	
  56

  
	
  2.14.

  	
  Reverse Dutch Auction
  Repurchases

  	
  58

  
	
  2.15.

  	
  Open Market Purchases

  	
  60

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  Letters of Credit

  	
  61

  
	
   

  	
   

  	
   

  
	
  3.01.

  	
  Letters of Credit

  	
  61

  
	
  3.02.

  	
  Maximum Letter of
  Credit Outstandings; Final Maturities

  	
  62

  
	
  3.03.

  	
  Letter of Credit
  Requests; Minimum Stated Amount

  	
  62

  
	
  3.04.

  	
  Letter of Credit
  Participations

  	
  63

  
	
  3.05.

  	
  Agreement to Repay
  Letter of Credit Drawings

  	
  65

  
	
  3.06.

  	
  Increased Costs

  	
  66

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Commitment Commission;
  Fees; Reductions and Increases of Commitments

  	
  67

  
	
   

  	
   

  	
   

  
	
  4.01.

  	
  Fees

  	
  67

  
	
  4.02.

  	
  Voluntary Termination
  of Unutilized Revolving Loan Commitments

  	
  68

  
	
  4.03.

  	
  Mandatory Reduction or
  Conversion of Commitments

  	
  69

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Prepayments; Payments;
  Taxes

  	
  70

  
	
   

  	
   

  	
   

  
	
  5.01.

  	
  Voluntary Prepayments

  	
  70

  
	
  5.02.

  	
  Mandatory Repayments

  	
  72

  
	
  5.03.

  	
  Method and Place of
  Payment

  	
  75

  
	
  5.04.

  	
  Net Payments

  	
  75

  



 

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  Conditions Precedent to
  Credit Events on the Initial Borrowing Date

  	
  78

  
	
   

  	
   

  	
   

  
	
  6.01.

  	
  Effective Date;
  Notices; Notes

  	
  78

  
	
  6.02.

  	
  Representations and
  Warranties

  	
  78

  
	
  6.03.

  	
  Officer’s Certificate

  	
  78

  
	
  6.04.

  	
  Opinions of Counsel

  	
  79

  
	
  6.05.

  	
  Company Documents;
  Proceedings; etc.

  	
  79

  
	
  6.06.

  	
  Consummation of the
  Borrower Refinancing

  	
  79

  
	
  6.07.

  	
  Exchange Offer Funding
  Date Material Adverse Change

  	
  80

  
	
  6.08.

  	
  Patriot Act

  	
  80

  
	
  6.09.

  	
  Blocked Amounts

  	
  80

  
	
  6.10.

  	
  Guaranty and Collateral
  Agreement

  	
  81

  
	
  6.11.

  	
  Regulation U

  	
  82

  
	
  6.12.

  	
  Solvency Certificate

  	
  82

  
	
  6.13.

  	
  Fees, etc.

  	
  82

  
	
  6.14.

  	
  Consummation of the
  Exchange Offer; Etc.

  	
  83

  
	
  6.15.

  	
  Merger Agreement

  	
  83

  
	
  6.16.

  	
  Bridge
  Facility/Permitted Notes

  	
  83

  
	
  6.17.

  	
  Intercreditor Agreement

  	
  83

  
	
  6.18.

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

  	
  83

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  Conditions Precedent to
  Credit Events after the Initial Borrowing Date and On or Prior to the Merger
  Closing Date

  	
  85

  
	
  7.01.

  	
  Initial Borrowing

  	
  85

  
	
  7.02.

  	
  Notice of Borrowing;
  Letter of Credit Request

  	
  85

  
	
  7.03.

  	
  Consummation of the
  Exchange Offer

  	
  86

  
	
  7.04.

  	
  Merger Agreement

  	
  86

  
	
  7.05.

  	
  Officer’s Certificate

  	
  86

  
	
  7.06.

  	
  Margin Regulations

  	
  87

  
	
  7.07.

  	
  Blocked Amounts

  	
  87

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  Conditions Precedent to
  Credit Events After the Merger Closing Date

  	
  87

  
	
   

  	
   

  	
   

  
	
  8.01.

  	
  Consummation of the Merger

  	
  88

  
	
  8.02.

  	
  Notice of Borrowing;
  Letter of Credit Request

  	
  88

  
	
  8.03.

  	
  Representations and
  Warranties

  	
  88

  
	
  8.04.

  	
  No Default

  	
  88

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  Representations,
  Warranties and Agreements

  	
  89

  
	
   

  	
   

  	
   

  
	
  9.01.

  	
  Organization; Powers

  	
  89

  
	
  9.02.

  	
  Authorization;
  Enforceability

  	
  89

  
	
  9.03.

  	
  Governmental Approvals;
  No Conflicts

  	
  89

  
	
  9.04.

  	
  Financial Condition; No
  Material Adverse Change

  	
  90

  
	
  9.05.

  	
  Properties

  	
  90

  
	
  9.06.

  	
  Litigation and
  Environmental Matters

  	
  91

  
	
  9.07.

  	
  Compliance with Laws
  and Agreements

  	
  91

  
	
  9.08.

  	
  Investment Company Status

  	
  91

  



 

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  9.09.

  	
  Taxes

  	
  92

  
	
  9.10.

  	
  ERISA

  	
  92

  
	
  9.11.

  	
  Disclosure

  	
  92

  
	
  9.12.

  	
  Material Agreements

  	
  92

  
	
  9.13.

  	
  Solvency

  	
  92

  
	
  9.14.

  	
  Reportable Transaction

  	
  93

  
	
  9.15.

  	
  Capitalization and
  Subsidiaries

  	
  93

  
	
  9.16.

  	
  Common Enterprise

  	
  93

  
	
  9.17.

  	
  Labor Disputes

  	
  93

  
	
  9.18.

  	
  Use of Proceeds and
  Letters of Credit

  	
  93

  
	
  9.19.

  	
  Margin Regulations

  	
  94

  
	
  9.20.

  	
  Security Documents

  	
  94

  
	
  9.21.

  	
  Intellectual Property,
  etc.

  	
  95

  
	
  9.22.

  	
  Representations and
  Warranties in Merger Agreement

  	
  95

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  Affirmative Covenants

  	
  95

  
	
   

  	
   

  	
   

  
	
  10.01.

  	
  Financial Statements
  and Other Information

  	
  95

  
	
  10.02.

  	
  Notices of Material
  Events

  	
  98

  
	
  10.03.

  	
  Existence; Conduct of
  Business

  	
  99

  
	
  10.04.

  	
  Payment of Obligations

  	
  100

  
	
  10.05.

  	
  Maintenance of
  Properties and Intellectual Property Rights

  	
  100

  
	
  10.06.

  	
  Books and Records;
  Inspection Rights; Annual Lender Meetings

  	
  100

  
	
  10.07.

  	
  Compliance with Laws

  	
  101

  
	
  10.08.

  	
  Use of Proceeds and
  Letters of Credit

  	
  101

  
	
  10.09.

  	
  Insurance

  	
  101

  
	
  10.10.

  	
  Additional Collateral;
  Further Assurances; Etc.

  	
  101

  
	
  10.11.

  	
  [Intentionally
  Omitted.]

  	
  105

  
	
  10.12.

  	
  Ratings

  	
  105

  
	
  10.13.

  	
  Merger; Target
  Refinancing

  	
  105

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  Negative Covenants

  	
  106

  
	
   

  	
   

  	
   

  
	
  11.01.

  	
  Indebtedness

  	
  106

  
	
  11.02.

  	
  Liens

  	
  111

  
	
  11.03.

  	
  Fundamental Changes

  	
  115

  
	
  11.04.

  	
  Investments, Loans,
  Advances, Guarantees and Acquisitions

  	
  117

  
	
  11.05.

  	
  Interest Rate
  Protection Agreements or Other Hedging Agreements

  	
  121

  
	
  11.06.

  	
  Restricted Payments

  	
  121

  
	
  11.07.

  	
  Transactions with
  Affiliates

  	
  124

  
	
  11.08.

  	
  Restrictive Agreements

  	
  124

  
	
  11.09.

  	
  Prepayments, Commitment
  Reductions and Amendments of Specified Indebtedness

  	
  125

  
	
  11.10.

  	
  Capital Expenditures

  	
  126

  
	
  11.11.

  	
  Interest Coverage Ratio

  	
  127

  
	
  11.12.

  	
  Total Leverage Ratio

  	
  128

  
	
  11.13.

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

  	
  129

  



 

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  11.14.

  	
  Holdings

  	
  129

  
	
  11.15.

  	
  Limitation on Issuance
  of Equity Interests

  	
  129

  
	
  11.16.

  	
  Accounting Changes;
  Fiscal Year

  	
  130

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  Events of Default

  	
  130

  
	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  The Administrative
  Agent; Lead Arrangers; Etc.

  	
  133

  
	
   

  	
   

  	
   

  
	
  13.01.

  	
  Appointment

  	
  133

  
	
  13.02.

  	
  Nature of Duties

  	
  133

  
	
  13.03.

  	
  Lack of Reliance on the
  Administrative Agent

  	
  134

  
	
  13.04.

  	
  Certain Rights of the
  Administrative Agent

  	
  134

  
	
  13.05.

  	
  Reliance

  	
  135

  
	
  13.06.

  	
  Indemnification

  	
  135

  
	
  13.07.

  	
  The Administrative
  Agent in its Individual Capacity

  	
  135

  
	
  13.08.

  	
  Holders

  	
  135

  
	
  13.09.

  	
  Resignation by the
  Administrative Agent

  	
  135

  
	
  13.10.

  	
  Collateral Matters

  	
  136

  
	
  13.11.

  	
  Delivery of Information

  	
  137

  
	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
  Miscellaneous

  	
  138

  
	
   

  	
   

  	
   

  
	
  14.01.

  	
  Payment of Expenses,
  etc.

  	
  138

  
	
  14.02.

  	
  Right of Setoff

  	
  139

  
	
  14.03.

  	
  Notices

  	
  140

  
	
  14.04.

  	
  Benefit of Agreement;
  Assignments; Participations

  	
  140

  
	
  14.05.

  	
  No Waiver; Remedies
  Cumulative

  	
  143

  
	
  14.06.

  	
  Payments Pro Rata

  	
  143

  
	
  14.07.

  	
  Calculations;
  Computations

  	
  144

  
	
  14.08.

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

  	
  144

  
	
  14.09.

  	
  Counterparts

  	
  145

  
	
  14.10.

  	
  Effectiveness

  	
  146

  
	
  14.11.

  	
  Headings Descriptive

  	
  146

  
	
  14.12.

  	
  Amendment or Waiver;
  etc.

  	
  146

  
	
  14.13.

  	
  Survival

  	
  149

  
	
  14.14.

  	
  Domicile of Loans

  	
  149

  
	
  14.15.

  	
  Register

  	
  149

  
	
  14.16.

  	
  Confidentiality

  	
  150

  
	
  14.17.

  	
  Patriot Act

  	
  151

  
	
  14.18.

  	
  OTHER LIENS ON
  COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC.

  	
  151

  
	
  14.19.

  	
  Interest Rate
  Limitation

  	
  152

  
	
  14.20.

  	
  Regulation U

  	
  152

  
	
   

  	
   

  	
   

  
	
  SECTION 15.

  	
  Holdings Guaranty

  	
  152

  
	
   

  	
   

  	
   

  
	
  15.01.

  	
  Guaranty

  	
  152

  
	
  15.02.

  	
  Bankruptcy

  	
  153

  



 

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  15.03.

  	
  Nature of Liability

  	
  153

  
	
  15.04.

  	
  Independent Obligation

  	
  154

  
	
  15.05.

  	
  Authorization

  	
  154

  
	
  15.06.

  	
  Reliance

  	
  155

  
	
  15.07.

  	
  Subordination

  	
  155

  
	
  15.08.

  	
  Waiver

  	
  155

  
	
  15.09.

  	
  Payments

  	
  157

  



 

















 


CREDIT 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.


 


“Adjustable Applicable Margins” shall have the
meaning assigned that term in the definition of Applicable Margin.


 


“Adjustable Commitment Commission Rate” shall
have the meaning assigned that term in the definition of Applicable Margin.


 


“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 Credit 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.


 


“Agent-Related Person” shall mean the
Administrative Agent, together with its Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons.


 


“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).


 


“Aggregate R/C Exposure” at any time shall mean
the aggregate principal amount of all Revolving Loans and Swingline Loans then
outstanding, plus the aggregate amount of Letter of Credit Outstandings at such
time.


 


2

















 


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


 


“Applicable Commitment Commission Rate” shall
have the meaning assigned that term in the definition of Applicable Margin.


 


“Applicable Margin” shall mean a percentage per
annum equal to (i) in the case of B-1 Term Loans or B-2 Term Loans (but,
in each case, subject to adjustment as provided below)  maintained as (A) Base Rate Loans, 2.50%
and (B) Eurodollar Loans, 3.50%; (ii) in the case of Revolving Loans
(but subject to adjustment as provided below), maintained as (A) Base Rate
Loans, 2.50% and (B) Eurodollar Loans, 3.50%; and (iii) in the case
of Swingline Loans (but subject to adjustment as provided below), 2.50%;
provided that each of the percentages listed above shall be permanently reduced
by 0.50% on the latest to occur of (x) the Merger Closing Date, (y) the
first date upon which all Bridge Loans have been repaid in full and (z) the
Qualified Equity Trigger Date, but only if the latest date to occur pursuant to
preceding clauses (x), (y) and (z) occurs on or prior to September 30,
2010 (with respect to Revolving Loans and Swingline Loans, the Applicable
Margins from time to time in effect pursuant to this sentence are herein called
the “Revolver Initial Applicable Margins” and with respect to Term
Loans, the Applicable Margins from time to time in effect pursuant to this
sentence are herein called the “Term Loan Initial Applicable Margins”)
and the “Applicable Commitment Commission Rate” shall mean, with respect
to the Applicable Margins from time to time in effect pursuant to this
sentence, a rate per annum equal to 3⁄4 of 1% (but subject to adjustment as
provided below).


 


From and after each day of delivery of any certificate
delivered in accordance with the first sentence of the following paragraph
indicating an entitlement to a different margin for any Tranche of Loans or a
different rate for calculating the Commitment Commission than that described in
the immediately preceding sentence (each, a “Start Date”) to and
including the applicable End Date described below, the Applicable Margins for
such Tranche of Loans (hereinafter, the “Adjustable Applicable Margins”)
and the Applicable Commitment Commission Rate (hereinafter, the “Adjustable
Commitment Commission Rate”) shall be those set forth below opposite the
Total Leverage Ratio indicated to have been achieved in any certificate
delivered in accordance with the following sentence:


 


	
  Total Leverage 

  Ratio

  	
   

  	
  Revolving/

  Swingline

  Loans Maintained as 

  Base Rate Loans

  	
   

  	
  Revolving

  Loans Maintained as 

  Eurodollar Loans

  	
   

  	
  Term
  Loans

  Maintained as Base 

  Rate Loans

  	
   

  	
  Term
  Loans 

  Maintained as 

  Eurodollar Loans

  	
   

  	
  Adjustable
  

  Commitment 

  Commission Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater
  than 2.0 to 1.0

  	
   

  	
  Revolver Initial
  Applicable Margins

  	
   

  	
  Revolver Initial
  Applicable Margins

  	
   

  	
  Term Loan Initial
  Applicable Margins

  	
   

  	
  Term Loan Initial
  Applicable Margins

  	
   

  	
  3/4 of 1% per
  annum

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or less than 2.0 to 1.0 but greater than 1.50 to 1.0

  	
   

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  	
  3/4 of 1% per
  annum

  	
   

  



 


3

















 


	
  Total Leverage 

  Ratio

  	
   

  	
  Revolving/

  Swingline

  Loans Maintained as 

  Base Rate Loans

  	
   

  	
  Revolving

  Loans Maintained as 

  Eurodollar Loans

  	
   

  	
  Term
  Loans

  Maintained as Base 

  Rate Loans

  	
   

  	
  Term
  Loans 

  Maintained as 

  Eurodollar Loans

  	
   

  	
  Adjustable
  

  Commitment 

  Commission Rate

  	
   

  
	
  Equal
  to or less than 1.50 to 1.0 but greater than 1.00 to 1.0

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  	
  1/2 of 1% per
  annum

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or less than 1.00 to 1.0

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  	
  3/8 of 1% per
  annum

  	
   

  



 


The Total Leverage Ratio
used in a determination of Adjustable Applicable Margins and the Adjustable Commitment Commission Rate shall be
determined based on the delivery of a certificate of the Borrower (each, a “Quarterly
Pricing Certificate”) by a Financial Officer of the Borrower to the
Administrative Agent, within 45 days (or 90 days in the case of the last Fiscal
Quarter in any Fiscal Year) after the last day of any Fiscal Quarter of
Holdings, which certificate shall set forth the calculation of the Total
Leverage Ratio as at the last day of the Test Period ended immediately prior to
the relevant Start Date and the Adjustable Applicable Margins and Adjustable Commitment Commission Rate which shall be
thereafter applicable (until same are changed or cease to apply in accordance
with the following sentences).  The
Adjustable Applicable Margins and the Adjustable Commitment Commission Rate so determined
shall apply, except as set forth in the succeeding sentence, from the relevant
Start Date to the earlier of (x) the date on which the next Quarterly
Pricing Certificate is delivered to the Administrative Agent or (y) the
date which is 45 days (or 90 days in the case of the last Fiscal Quarter in any
Fiscal Year) following the last day of the Test Period in which the previous
Start Date occurred (such earlier date, the “End Date”), at which time,
if no Quarterly Pricing Certificate has been delivered to the Administrative
Agent indicating an entitlement to new Adjustable Applicable Margins (and thus
commencing a new Start Date), (i) the Adjustable Applicable Margins shall
be, in the case of Revolving Loans or Swingline Loans, the Revolver Initial
Applicable Margins and, in the case of Term Loans, the Term Loan Initial
Applicable Margins and (ii) the Adjustable Commitment Commission Rate
shall be a rate per
annum equal to 3⁄4 of 1%. Notwithstanding anything to the contrary contained
above in this definition, (i) the Adjustable Applicable Margins shall be,
in the case of Revolving Loans or Swingline Loans, the Revolver Initial
Applicable Margins and, in the case of Term Loans, the Term Loan Initial
Applicable Margins and (ii)  the Adjustable Commitment Commission Rate
shall be a rate per
annum equal to 3⁄4 of 1%, in each case, (x) at all times during which
there shall exist any Default or any Event of Default and (y) at all times
prior to the date of delivery of the financial statements pursuant to Section 10.01(b) for
the fiscal quarter of Holdings ended June 30, 2010.


 


Notwithstanding anything to the contrary contained
above in this definition or elsewhere in this Agreement, if it is subsequently
determined that the Total Leverage Ratio set forth in any Quarterly Pricing
Certificate delivered for any period is inaccurate for any reason and the
result thereof is that the Lenders received interest or fees for any period
based on an Applicable Margin or an Applicable Commitment Commission Rate that
is less than that which would have been applicable had the Total Leverage Ratio
been accurately determined, then, for 


 


4

















 


all purposes of this
Agreement, the “Applicable Margin” and the “Applicable Commitment Commission
Rate” for any day occurring within the period covered by such Quarterly Pricing
Certificate shall retroactively be deemed to be the relevant percentage as
based upon the accurately determined Total Leverage Ratio for such period, and
any shortfall in the interest or fees theretofore paid by the Borrower for the
relevant period pursuant to Sections 2.08(a) and (b), 4.01(a) and
4.01(b) as a result of the miscalculation of the Total Leverage Ratio
shall be deemed to be (and shall be) due and payable under the relevant
provisions of Section 2.08(a) or (b), Section 4.01(a) or Section 4.01(b),
as applicable, at the time the interest or fees for such period were required
to be paid pursuant to said Section on the same basis as if the Total
Leverage Ratio had been accurately set forth in such Quarterly Pricing
Certificate (and shall remain due and payable until paid in full, together with
all amounts owing under Section 2.08(d) and/or Section 4.01(a),
as applicable, in accordance with the terms of this Agreement).


 


“Applicable Threshold Price” has the meaning
set forth in Schedule 2.14.


 


“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 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) or
in such other form as may be satisfactory to the Administrative Agent.


 


“Auction” shall
have the meaning set forth in Section 2.14(a).


 


“Auction Amount”
has the meaning set forth in Schedule 2.14.


 


“Auction Assignment
and Assumption” has the meaning set forth in Schedule 2.14.


 


“Auction Manager”
shall have the meaning set forth in Section 2.14(a).


 


“Auction Notice”
has the meaning set forth in Schedule 2.14.


 


“Authorized Officer” shall mean, with respect
to (i) delivering Notices of Borrowing, Notices of Conversion/Continuation
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, the Swingline Lender or the respective
Issuing Lender, (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 Credit


 


5
















 


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”
shall mean (x) the conversion of outstanding B-2 Term Loans into B-1 Term
Loans in accordance with Section 2.01(a)(ii)(z) and (y) the
related conversion of B-2 Term Loan Commitments into B-1 Term Loan Commitments
pursuant to Section 4.03(h).


 


“B-1 Conversion Date” shall mean the earlier to
occur of (x) the 90th day after the Effective Date or (y) the first
day occurring on or after the 30th day after the Effective Date upon which
either Lead Arranger notifies the Borrower that the B-1 Conversion shall occur.


 


“B-1 Term Loan” shall have the meaning provided
in Section 2.01(a)(i).


 


“B-1 Term Loan
Borrowing Date” shall mean the Initial Borrowing Date and each date
thereafter upon which B-1 Term Loans are incurred by the Borrower pursuant to Section 2.01(a)(i).


 


“B-1 Term Loan Commitment” shall mean, for each
Lender, the amount set forth opposite such Lender’s name in Schedule 1.01A
directly below the column entitled “B-1 Term Loan 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, (y) adjusted from time to time as a result
of assignments to or from, and purchases from, such Lender pursuant to Sections
2.13, 2.14, 2.15 or 14.04(b) or (z) increased on the B-1 Conversion
Date as a result of conversions of B-2 Term Loan Commitments of such Lender as
provided in Section 4.03(h).


 


“B-1 Term Note” shall have the meaning provided
in Section 2.05(a).


 


“B-2 Blocked Amount”
shall mean, at any time, the lesser of the Total B-2 Term Loan Commitment and
the Term Loan Blocked Amount, each as in effect at such time.


 


“B-2 Term Loan” shall have the meaning provided
in Section 2.01(a)(ii).


 


“B-2 Term Loan
Borrowing Date” shall mean each date (on or after the Initial Borrowing
Date) upon which B-2 Term Loans are incurred by the Borrower pursuant to Section 2.01(a)(ii).


 


“B-2 Term Loan Commitment” shall mean, for each
Lender, the amount set forth opposite such Lender’s name in Schedule 1.01A
directly below the column entitled “B-2 Term Loan 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, and purchases from, such Lender pursuant to Section 2.13,
2.14, 2.15 or 14.04(b).


 


6

















 


“B-2 Term Note” shall have the meaning provided
in Section 2.05(a).


 


“Back-Stop Arrangements” shall mean,
collectively, Letter of Credit Back-Stop Arrangements and Swingline Back-Stop
Arrangements.


 


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


 


“Base Rate” shall mean, at any time, the
highest of (i) the Prime Lending Rate at such time, (ii) 1/2 of 1% in
excess of the overnight Federal Funds Rate at such time, (iii) the
Eurodollar Rate for a Eurodollar Loan denominated in dollars with a one-month
interest period commencing on such day plus 1.00% and (iv) 2.50%.
For purposes of this definition, the Eurodollar Rate shall be determined using
the Eurodollar Rate as otherwise determined by the Administrative Agent in
accordance with the definition of Eurodollar Rate, except that (x) if a
given day is a Business Day, such determination shall be made on such day
(rather than two Business Days prior to the commencement of an Interest Period)
or (y) if a given day is not a Business Day, the Eurodollar Rate for such
day shall be the rate determined by the Administrative Agent pursuant to
preceding clause (x) for the most recent Business Day preceding such
day.  Any change in the Base Rate due to
a change in the Prime Lending Rate, the Federal Funds Rate or such Eurodollar
Rate shall be effective as of the opening of business on the day of such change
in the Prime Lending Rate, the Federal Funds Rate or such Eurodollar Rate,
respectively.


 


“Base Rate Loan” shall mean (i) each
Swingline Loan and (ii) each other Loan designated or deemed designated as
such by the Borrower at the time of the incurrence thereof or conversion
thereto.


 


“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).


 


“Borrowing” shall mean the borrowing of one
Type of Loan of a single Tranche from all the Lenders having Commitments of the
respective Tranche (or from the Swingline Lender in the case of Swingline
Loans) on a given date (or resulting from a conversion or conversions on such
date) having in the case of Eurodollar Loans the same Interest Period, provided
that Base Rate Loans incurred pursuant to Section 2.10(b) shall be
considered part of the related Borrowing of Eurodollar Loans.


 


7

















 


“Bridge Agent” shall mean Morgan Stanley Senior
Funding, Inc. and any successor agent under the Bridge Loan Agreement or
any other Bridge Loan Document.


 


“Bridge Lead Arranger” shall mean Morgan Stanley
Senior Funding, Inc., in its capacity as Lead Arranger pursuant to the
Bridge Loan Agreement.


 


“Bridge Loan Agreement” shall mean the Bridge
Loan Agreement, dated as of the date hereof, by and among Holdings, the
Borrower, certain of its Subsidiaries from time to time party thereto, the
lenders from time to time party thereto and the Bridge Agent, as it may be
amended, supplemented, modified, replaced or refinanced from time to time in
accordance with the terms hereof and thereof.


 


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


 


“Bridge Loan Exchange
Notes Indenture” shall mean the Exchange Notes Indenture, as defined in the
Bridge Loan Agreement, pursuant to which Bridge Loan Exchange Notes may from
time to time be issued as provided in the Bridge Loan Agreement.


 


“Bridge Loan Exchange
Notes” shall mean any Exchange Notes (as defined in the Bridge Loan
Agreement) issued in exchange for Bridge Loans as contemplated by the Bridge
Loan Agreement.


 


“Bridge Loan Exchange
Notes Trustee” shall mean the trustee under the Bridge Loan Exchange Notes
Indenture.


 


“Bridge Loans”
shall mean the “Loans” as defined in the Bridge Loan Agreement; provided that,
for purposes of this Agreement, Bridge Loans shall include any Bridge Loan
Exchange Notes issued in accordance with the provisions of the Bridge Loan
Agreement, so long as the Bridge Loan Exchange Notes Trustee has become party
to the Intercreditor Agreement by way of joinder thereto.


 


“Bridge Secured Creditors” shall mean the “Secured
Creditors” as defined in the Bridge Loan Agreement.


 


“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, Eurodollar 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.


 


8

















 


“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.


 


“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.


 


“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.


 


9

















 


“Commitment” shall mean any of the commitments
of any Lender, i.e., a B-1 Term Loan Commitment, a B-2 Term Loan
Commitment or a Revolving Loan Commitment.


 


“Commitment Commission” shall have the meaning
provided in Section 4.01(a).


 


“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.


 


“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 


 


10

















 


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 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 


 


11

















 


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.


 


“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 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.


 


“Credit Event” shall mean the making of any
Loan or the issuance, amendment, extension or renewal of any Letter of Credit
(other than any amendment, extension or renewal that does not increase the
maximum Stated Amount of such Letter of Credit).


 


“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 Section 5.02(e),
will not on such date of required prepayment be) required to be applied in
accordance with Section 5.02(e) minus (y) the
sum of (i) the aggregate amount of Section 11.04(viii) Investments
made on or prior to such date 


 


12

















 


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.


 


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


 


“Discount Range” has the meaning set forth in Schedule
2.14.


 


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


 


“Documentation Agents”
shall mean collectively, Bank of Montreal, Wells Fargo Bank, N.A. and Natixis
New York Branch, in their capacities as Co-Documentation Agents.


 


“Documents” shall mean, collectively, (i) the
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.


 


“Drawing” shall have the meaning provided in Section 3.05(b).


 


“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 


 


13

















 


“accredited investor” (as
defined in Regulation D of the Securities Act), but in any event excluding
Holdings and its Subsidiaries.


 


“End Date” shall have the meaning assigned that
term in the definition of Applicable Margin.


 


“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.


 


“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 


 


14

















 


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 Loan” shall mean each Loan (other
than a Swingline Loan) designated as such by the Borrower at the time of the
incurrence thereof or conversion thereto.


 


“Eurodollar Rate” means, with respect to any
Eurodollar Loan for any Interest 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 Interest 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)), (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, insurance or Indebtedness, (3) payments
of Loans and/or other Obligations, provided that repayments of Loans
shall be deducted in determining Excess Cash Flow to the extent such repayments
were (x) required as a result of a Scheduled Term Loan Repayment pursuant
to Section 5.02(b) or (y) made as a voluntary prepayment
pursuant to Section 5.01 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 to the Total Revolving Loan
Commitment 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.


 


15
















 


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


 


“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, 


 


16

















 


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 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).


 


“Expiration Time” has the meaning set forth in Schedule
2.14.


 


“Facing Fee” shall have the meaning provided in
Section 4.01(c).


 


17

















 


“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.


 


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


 


“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.


 


“Global Coordinator” shall mean Morgan Stanley
MUFG Loan Partners, LLC.


 


“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 


 


18

















 


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 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 (x) each of the Administrative Agent, the
Collateral Agent, the Issuing Lenders and the Lenders, (y) each Person
(other than any Credit Party or any of its Subsidiaries) that is party to an
Interest Rate Protection Agreement or Other Hedging Agreement with Holdings
and/or one or more Guaranteed Parties, in each case so long as each such
Guaranteed Creditor pursuant to this clause (y) is a Lender or an
affiliate of a Lender, or was a Lender or an affiliate of a Lender at the time
it entered into the respective Interest Rate Protection Agreement or Other
Hedging Agreement and (z) each Lender or affiliate thereof which is party
to a Cash Management Agreement (with respect to the Cash Management Agreements
to which it is then a party) with Holdings and/or one or more Guaranteed
Parties.


 


“Guaranteed Obligations” shall mean (i) 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 and all
reimbursement obligations and Unpaid Drawings with respect to Letters of
Credit, 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 Issuing 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 Credit 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 Credit Agreement and in each
such other Credit Document, (ii) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations (including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due), liabilities and indebtedness (including
any interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate 


 


19

















 


provided for herein,
whether or not such interest is an allowed claim in any such proceeding) of the
Borrower and/or one or more other Guaranteed Parties owing under any Interest
Rate Protection Agreement or Other Hedging Agreement entered into by the
Borrower and/or one or more other Guaranteed Parties with any Lender or any
affiliate thereof (even if such Lender subsequently ceases to be a Lender under
this Agreement for any reason) so long as such Lender or affiliate participates
in such Interest Rate Protection Agreement or Other Hedging Agreement and their
subsequent assigns, if any, whether now in existence or hereafter arising, and
the due performance and compliance with all terms, conditions and agreements
contained therein and (iii) the full and prompt payment when due of all
obligations (including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due), liabilities and indebtedness (including
any interest, fees and/or expenses accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for in the respective Cash Management Agreement, whether or not such interest,
fees and/or expenses are an allowed claim in any such proceeding) of the
Borrower or any other Guaranteed Party owing to any Guaranteed Creditor under
any Cash Management Agreement, in each case so long as such obligations,
liabilities and indebtedness under such Cash Management Agreement were incurred
in the ordinary course of business (but specifically excluding any such
obligation intentionally created by a Lender or such affiliate thereof by
allowing financing to the Borrower or any other Guaranteed Party in the form of
an overdraft outside the ordinary course of business).


 


“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.


 


“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 


 


20

















 


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
1.01E and, to the best of Holdings’ and the Borrower’s knowledge, all
Inactive Subsidiaries that are Domestic Subsidiaries of Target are listed on Schedule
1.01E.  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
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).


 


21

















 


“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 Term
Loans occurs (it being understood that Credit Events utilizing the Total
Revolving Loan Commitment may also occur on such date).


 


“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; provided that, if the Intercreditor Agreement is terminated in accordance
with its terms and is thereafter replaced by an intercreditor agreement in
substantially the form of Exhibit I as contemplated in clause (v) of Section 14.12(c) (with
such changes as are deemed reasonably necessary or desirable by the
Administrative Agent, in each case so long as no such changes are adverse in
any material respect to the Lenders, taken as a whole), then any such successor
intercreditor agreement as then in effect (and as amended, modified, restated
and/or supplemented from time to time in accordance with its terms) shall be
deemed to constitute the Intercreditor Agreement hereunder.


 


“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 Eurodollar Loan, the second Business Day prior to the
commencement of any Interest Period relating to such Eurodollar Loan.


 


“Interest Period” shall have the meaning
provided in Section 2.09.


 


“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.


 


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


 


“Issuing Lender” shall mean Morgan Stanley
Bank, N.A. (except as otherwise provided in Section 13.09) and any other
Lender reasonably acceptable to the Administrative Agent and the Borrower which
agrees to issue Letters of Credit hereunder; provided that, unless Morgan Stanley
Bank, N.A. specifically consents thereto in a given instance, neither Morgan
Stanley Bank, N.A. nor any of its Affiliates shall be obligated to issue any
trade Letters of Credit (and Morgan Stanley Bank, N.A. and its Affiliates shall
only be obligated to issue standby Letters of Credit).  Any Issuing Lender may, in its discretion,
arrange for one or more Letters of Credit to be issued by one or more
Affiliates of such Issuing Lender (and such Affiliate shall be deemed to be an “Issuing
Lender” for all purposes of the Credit Documents).


 


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


 


22

















 


“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.


 


“L/C Aggregate Maximum Amount” shall mean
$75,000,000; provided that the L/C Aggregate Maximum Amount shall be
increased from to time to time by the aggregate Stated Amount of any Letters of
Credit then outstanding and issued to support obligations under the Consent
Decree to secure the satisfaction of the Consent Decree Phosphogypsum Stack
Liability; provided  further that in no event shall the L/C
Aggregate Maximum Amount exceed at any time $125,000,000.


 


“L/C Supportable Obligations” shall mean (1) any
obligations of the Borrower or any of its Subsidiaries permitted to exist
pursuant to the terms of this Agreement (other than obligations in respect of (x) Indebtedness
incurred or which remains outstanding pursuant to Sections 11.01(i), (ii),
(iii), (iv), (v) and (xv)), (y) any other Indebtedness or other
obligations that are subordinated in right of payment to the Obligations and (z) any
Equity Interests) and (2) obligations of Terra Nitrogen, so long as the
aggregate Stated Amount of all Letters of Credit supporting same at any time
does not exceed $15,000,000.


 


“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, 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
(including any Mandatory Borrowing) or to fund its portion of any unreimbursed
payment with respect to a Letter of Credit pursuant to Section 3.04(c) or
3.05, (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


 


23

















 


notified the
Administrative Agent, the Swingline Lender, any Issuing Lender and/or any
Credit Party in writing (x) that it does not intend to comply with its
obligations under Sections 2.01(a), (b), (c) or (d) or 3 in
circumstances where such non-compliance would constitute a breach of such
Lender’s obligations under the respective Section or (y) of the
events described in preceding clause (ii); provided that, for purposes
of (and only for purposes of) Section 2.01(c), Section 3.03(b), Section 5.02(j) and
any documentation entered into pursuant to the Back-Stop Arrangements (and the
term “Defaulting Lender” as used therein), the term “Lender Default” shall also
include, as to any Lender, (i) any Affiliate of such Lender that has “control”
(within the meaning provided in the definition of “Affiliate”)  of such Lender having been deemed
insolvent or having become the subject of a bankruptcy or insolvency proceeding
or a takeover by a regulatory authority, (ii) any default by such Lender
with respect to its obligations under any other credit facility to which it is
a party and which the Swingline Lender, any Issuing Lender or the
Administrative Agent believes in good faith has occurred and is continuing, and
(iii) the failure of such Lender to make available its portion of any
Borrowing (including any Mandatory Borrowing) or to fund its portion of any
unreimbursed payment with respect to a Letter of Credit pursuant to Section 3.04(c) or
3.05 within three (3) Business Days of the date (x) the
Administrative Agent (in its capacity as a Lender) or (y) Lenders
constituting the Majority Lenders with Revolving Loan Commitments has or have,
as applicable, funded its or their portion thereof.


 


“Letter of Credit” shall have the meaning
provided in Section 3.01(a).


 


“Letter of Credit Back-Stop Arrangements” shall
have the meaning provided in Section 3.03(b).


 


“Letter of Credit Fee” shall have the meaning
provided in Section 4.01(b).


 


“Letter of Credit Outstandings” shall mean, at
any time, the sum of (without duplication) (i) the Stated Amount of all
outstanding Letters of Credit at such time and (ii) the aggregate amount
of all Unpaid Drawings in respect of all Letters of Credit at such time.


 


“Letter of Credit Request” shall have the
meaning provided in Section 3.03(a).


 


“LIBO Rate” means, with respect to any
Eurodollar 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 Eurodollar Business Days prior
to the commencement of such Interest Period, as the rate for dollar deposits
with a maturity comparable to such Interest Period 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 and for a maturity
comparable to such Interest Period 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) 1.50% per annum.


 


24

















 


“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 Term Loan, each
Revolving Loan and each Swingline Loan.


 


“Majority Lenders”
of any Tranche shall mean those Non-Defaulting Lenders which would constitute
the Required Lenders under, and as defined in, this Agreement if all
outstanding Obligations of the other Tranche under this Agreement were repaid
in full and all Commitments with respect thereto were terminated.


 


“Mandatory Borrowing” shall have the meaning
provided in Section 2.01(d).


 


“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 Credit 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, with respect to the
relevant Tranche of Loans, the Term Loan Maturity Date (which shall be the
Maturity Date for all Term Loans), the Revolving Loan Maturity Date or the
Swingline Expiry Date, as the case may be.


 


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


 


“Maximum Swingline Amount” shall mean
$50,000,000.


 


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


 


25
















 


“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 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 Arrangers.


 


“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 direct Wholly-Owned Subsidiary of the
Borrower.


 


“Minimum Borrowing Amount” shall mean (i) for
Term Loans, $5,000,000 (or, if less, the remaining Total Term Loan Commitment),
(ii) for Revolving Loans, $500,000, and (iii) for Swingline Loans,
$100,000.


 


“MNPI” shall mean material non-public
information with respect to Holdings or its Subsidiaries, or the respective
securities of any of the foregoing.


 


“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.


 


26

















 


“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.


 


“NAIC” shall mean the National Association of
Insurance Commissioners.


 


“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 any
Indebtedness (other than Indebtedness under the Credit Documents and the Second
Lien Indebtedness) that is secured by a senior Lien on such asset and that 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); provided that in the case of any
equity issuance of Holdings, the cash proceeds received shall also be net of
any amounts applied to repay outstanding principal of Bridge Loans or, if the
Merger Closing Date has not already occurred, to reduce commitments (on a
dollar for dollar basis) pursuant to the Bridge Loan Agreement.


 


“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 any
Indebtedness (other than Indebtedness pursuant to the Credit Documents or
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 


 


27

















 


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.


 


“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”, “Non-Defaulting RL
Lender” and “Non-Defaulting TL Lender” shall mean and include each
Lender, RL Lender or TL Lender, as the case may be, other than a Defaulting
Lender.


 


“Note” shall mean each B-1 Term Note, each B-2
Term Note, each Revolving Note and the Swingline Note.


 


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


 


“Notice of Conversion/Continuation” shall have
the meaning provided in Section 2.06.


 


“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, any Issuing Lender, the
Swingline Lender or any Lender pursuant to the terms of this Agreement or any
other Credit 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.


 


“Open Market Purchase” shall have the meaning
provided in Section 2.15.


 


28

















 


“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.


 


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


 


“Participant” shall have the meaning provided
in Section 3.04(a).


 


“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;


 


29

















 


(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;


 


(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
in favor of the Administrative Agent granted pursuant to any Credit Document.


 


“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;


 


30

















 


(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, 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 


 


31

















 


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 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 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 in
the Intercreditor Agreement for Second-Lien Obligations (as defined therein), (e) 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 (f) 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. 
Notwithstanding
anything to the contrary contained above, in instances where the Refinanced
Debt is this Agreement, (x) if the respective Permitted Refinancing
Indebtedness is incurred before the Merger Closing Date, the respective
aggregate principal amount of Permitted Refinancing Indebtedness shall be
permitted to replace Term Loan Commitments hereunder, in each case in
accordance with the relevant requirements hereof and (y) Permitted
Refinancing Indebtedness shall, as contemplated by the proviso to Section 11.01(i) and
subject to compliance with Section 5.02(g), be permitted to refinance
Revolving Loan Commitments as more fully provided therein.


 


“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 


 


32

















 


of second lien secured notes; provided  that (i) such Indebtedness may only
be secured by Collateral on a second lien, subordinated basis to the Secured
Obligations, 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 date that is one year after the latest
Maturity Date (in each case, determined without regard to the provisos to the
component defined terms used in the definition of Maturity Date) hereunder at
the time such Indebtedness is incurred, (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 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 latest
Maturity Date (in each case, determined without regard to the provisos to the
component defined terms used in the definition of Maturity Date) hereunder at
the time such Indebtedness is incurred, (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 


 


33

















 


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.


 


“Prime Lending Rate” shall mean the rate of
interest per annum published by The Wall Street Journal U.S. edition, from time
to time, as the prime rate (and if such a rate is not at any time published, such
substitute or successor rate as may be chosen by the Administrative
Agent).  The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer by the Administrative Agent, which may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.


 


“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), 


 


34

















 


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 (for this purpose ignoring the proviso to
the definition of Net Cash Proceeds) have actually been applied to repay
outstanding principal of Bridge Loans or Term Loans (or, if issued prior to the
Merger Closing Date, to reduce on a dollar-for-dollar basis the Total Term Loan
Commitment and/or unutilized commitments under the Bridge Loan Agreement);
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.


 


“Qualifying Bid” shall have the meaning set
forth in Schedule 2.14.


 


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


 


“Quarterly Pricing Certificate” shall have the
meaning provided in the definition of “Applicable Margin” herein.


 


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


 


“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.


 


35
















 


“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.


 


“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.


 


“Reply Amount” has the meaning set forth in Schedule
2.14.


 


“Reply Price” has the meaning set forth in Schedule
2.14.


 


“Required Lenders”
shall mean, at any time, Non-Defaulting Lenders the sum of whose outstanding
Term Loan Commitments at such time, outstanding principal of Term Loans at such
time and Revolving Loan Commitments at such time (or, after the termination
thereof, outstanding Revolving Loans and RL Percentages of (x) outstanding
Swingline Loans at such time and (y) Letter of Credit Outstandings at such
time) represents at least a majority of the sum of (i) all outstanding
Term Loans and Term Loan Commitments of Non-Defaulting Lenders and (ii) the
Total Revolving Loan Commitment in effect at such time less the
Revolving Loan Commitments of all Defaulting Lenders at such time (or, after
the termination thereof, the sum of then total outstanding Revolving Loans of
Non-Defaulting Lenders and the aggregate RL Percentages of all Non-Defaulting
Lenders of the total outstanding Swingline Loans and Letter of Credit
Outstandings at such time).


 


36

















 


“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 Credit Documents or Liens created
thereunder), (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) the Collateral Agent for the
benefit of the Secured Creditors and any junior lien securing Second Lien
Indebtedness 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.


 


“Return Bid” has the meaning set forth in Schedule
2.14.


 


“Revolver Initial Applicable Margins” shall
have the meaning assigned that term in the definition of Applicable Margin.


 


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


 


“Revolving Loan Commitment” shall mean, for
each Lender, the amount set forth opposite such Lender’s name in Schedule
1.01A directly below the column entitled “Revolving Loan Commitment,” as
same may be (x) reduced from time to time or terminated 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).


 


“Revolving Loan Lead Arrangers” shall mean
collectively, Morgan Stanley Senior Funding, Inc., The Bank of Tokyo-Mitsubishi
UFJ, Ltd. and BMO Capital Markets, in their capacities as Joint Revolving Loan
Lead Arrangers.


 


“Revolving Loan Maturity Date” shall mean April 5,
2015; provided that if the Merger Closing Date does not occur on or
prior to October 15, 2010, the Revolving Loan Maturity Date shall be October 15,
2010.


 


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


 


37

















 


“RL Lender” shall mean each Lender with a
Revolving Loan Commitment or with outstanding Revolving Loans.


 


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


 


“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.


 


“Scheduled Term Loan Repayment” shall have the
meaning provided in Section 5.02(b).


 


“Scheduled Term Loan Repayment Date” shall have
the meaning provided in Section 5.02(b).


 


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


 


“Second Lien
Indebtedness” shall mean and include (x) the Bridge Loans, (y) any
Permitted Second Lien Notes issued or incurred pursuant to Section 11.01(i)(B) and/or
Section 11.01(ii) and (z) any Permitted Refinancing Indebtedness
secured by Collateral and incurred in respect of Indebtedness described in
preceding clauses (x) and/or (y), or which refinanced any Permitted
Refinancing Indebtedness originally incurred as described in this clause (z) or
a subsequent refinancing thereof with Permitted Refinancing Indebtedness.


 


“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.  For
the avoidance of doubt, it is understood and agreed that Interest Rate
Protection Agreements, Other Hedging Agreements and Cash Management Agreements,
to the extent secured by the Security Documents, shall not be secured prior to
the Merger Closing Date.


 


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


 


38

















 


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


 


“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; provided,
that any cash collateral or other agreements entered into pursuant to the
Back-Stop Arrangements shall constitute “Security Documents” solely for
purposes of (x) Sections 9.03 and clause (k) of the definition
of Permitted Encumbrances and (y) the term “Credit Documents” as used in Sections 11.01(i), 11.08 and 14.01.


 


“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
Indebtedness” shall have the meaning provided in Section 11.09.


 


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


 


“Start Date” shall have the meaning assigned
that term in the definition of Applicable Margin.


 


“Stated Amount” of each Letter of Credit shall
mean, at any time, the maximum amount available to be drawn thereunder, in each
case determined (x) as if any future automatic increases in the maximum
amount available that are provided for in any such Letter of Credit had in fact
occurred at such time and (y) without regard to whether any conditions to
drawing could then be met but after giving effect to all previous drawings made
thereunder.


 


“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.  Eurodollar 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.


 


39

















 


“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.


 


“Swingline Back-Stop
Arrangements” shall have the meaning provided in Section 2.01(c).


 


“Swingline Expiry Date” shall mean that date
which is five Business Days prior to the Revolving Loan Maturity Date.


 


“Swingline Lender” shall mean MSSF, in its
capacity as Swingline Lender hereunder.


 


“Swingline Loan” shall have the meaning
provided in Section 2.01(c).


 


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


 


“Syndication Date” shall mean the earlier of (x) the
date upon which the Administrative Agent determines in its sole discretion (and
notifies the Borrower) that the primary syndication (and resultant addition of
Persons as Lenders pursuant to Section 14.04(b)) has been completed and (y) 90
days after the Initial Borrowing Date.


 


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


 


40

















 


“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 each B-1 Term Loan and each B-2 Term Loan.


 


“Term Loan Blocked
Amount” shall mean, at any time, the lesser of (x) the Total Term Loan
Commitment at such time less $100,000,000 or (y) the Blocked Amount at
such time.


 


“Term Loan Commitment” shall mean, for each
Lender at any time, the B-1 Term Loan Commitment and the B-2 Term Loan
Commitment of such Lender at such time.


 


“Term Loan Initial Applicable Margins” shall
have the meaning assigned that term in the definition of Applicable Margin.


 


“Term Loan Maturity Date” shall mean April 5,
2015; provided that if the Merger Closing Date does not occur on or
prior to October 15, 2010, the Term Loan Maturity Date shall be October 15,
2010.


 


“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.


 


41

















 


“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.


 


“Ticking Fee” shall have the meaning provided
in Section 4.01(f).


 


“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.


 


“TL Lender” shall mean each Lender with a Term
Loan Commitment or with outstanding Term Loans.


 


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


 


“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 B-1 Term Loan Commitment” shall mean, at
any time, the sum of the B-1 Term Loan Commitments of each of the Lenders at
such time.


 


“Total B-2 Term Loan Commitment” shall mean, at
any time, the sum of the B-2 Term Loan Commitments of each of the Lenders at
such time.


 


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


 


“Total Term Loan Commitment” shall mean, at any
time, the sum of the B-1 Term Loan Commitments and the B-2 Term Loan
Commitments of each of the Lenders at such time.


 


42

















 


“Total Unutilized Revolving Loan Commitment”
shall mean, at any time, an amount equal to the remainder of (x) the Total
Revolving Loan Commitment in effect at such time less (y) the sum
of (i) the aggregate principal amount of all Revolving Loans and Swingline
Loans outstanding at such time plus (ii) the aggregate amount of
all Letter of Credit Outstandings at such time.


 


“Tranche” shall mean the respective facility
and commitments utilized in making Loans hereunder, with there being four
separate Tranches, i.e., B-1 Term Loans, B-2 Term Loans, Revolving Loans
and Swingline Loans; provided that (x) for purposes of Sections
2.13, 14.04(b), 14.12(a) and (b) and the definition of “Majority
Lenders”, Revolving Loans and Swingline Loans shall be deemed to constitute
part of a single “Tranche” and (y) after the occurrence of the B-1
Conversion Date, the B-2 Term Loan Tranche shall be eliminated (as a result of
the conversion of B-2 Term Loans into B-1 Term Loans) and there shall then be
three separate Tranches hereunder.


 


“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 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.


 


“Type” shall mean the type of Loan determined
with regard to the interest option applicable thereto, i.e., whether a
Base Rate Loan or a Eurodollar Loan.


 


“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.


 


“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.


 


“Unpaid Drawing” shall have the meaning
provided in Section 3.05(a).


 


43

















 


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


 


“Unutilized Revolving Loan Commitment” shall
mean, with respect to any Lender at any time, such Lender’s Revolving Loan
Commitment at such time less the sum of (i) the aggregate
outstanding principal amount of all Revolving Loans made by such Lender at such
time and (ii) such Lender’s RL Percentage of the Letter of Credit
Outstandings at such time.


 


“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 Credit Documents or any certificate or other document made or
delivered pursuant hereto or thereto.


 


(b)           As used herein and in the other
Credit 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 “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 


 


44

















 


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)  (i)   Subject
to and upon the terms and conditions set forth herein, each Lender with a B-1
Term Loan 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 term loan or term loans (each, together with any term
loan resulting from the B-1 Conversion, a “B-1 Term Loan” and,
collectively, the “B-1 Term Loans”) to the Borrower, which B-1 Term
Loans (x) shall be denominated in Dollars, (y) except as hereinafter
provided, shall, at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or Eurodollar Loans, provided
that (A) except as otherwise specifically provided in Section 2.10(b),
all B-1 Term Loans comprising the same Borrowing shall at all times be of the
same Type and (B) all B-1 Term Loans made on the Initial Borrowing Date
shall be incurred as Base Rate Loans, and (z) shall not be incurred on any
date occurring prior to the Merger Closing Date if, after giving effect to the
making of the respective B-1 Term Loans and the related reductions to the Total
B-1 Term Loan Commitment pursuant to Section 4.03(b)(x), the B-1 Blocked
Amount would exceed the then remaining Total B-1 Term Loan Commitment.  On the Initial Borrowing Date, the Borrower
shall be required to borrow $100,000,000 of B-1 Term Loans, but may borrow such
larger principal amount as is permitted hereunder.  Once repaid, B-1 Term Loans incurred
hereunder may not be reborrowed.


 


(ii)           Subject
to and upon the terms and conditions set forth herein, each Lender with a B-2
Term Loan 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
earlier of (A) the B-1 Conversion Date and (B) the Merger Closing
Date, a term loan or term loans (each, a “B-2 Term Loan” and,
collectively, the “B-2 Term Loans”) to the Borrower, which B-2 Term
Loans (v) shall be denominated in Dollars, (w) may not be made until
such time as (or if concurrently therewith) B-1 Term Loans are incurred in such
amounts so that the Total B-1 Term Loan Commitment is reduced to $0, (x) except
as hereinafter provided, shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar


 


45
















 


Loans, provided
that (A) except as otherwise specifically provided in Section 2.10(b),
all B-2 Term Loans comprising the same Borrowing shall at all times be of the
same Type and (B) all B-2 Term Loans made on the Initial Borrowing Date
shall be incurred as Base Rate Loans, (y) shall not be incurred on any
date occurring prior to the Merger Closing Date if, after giving effect to the
making of the respective B-2 Term Loans and the related reductions to the Total
B-2 Term Loan Commitment pursuant to Section 4.03(b)(y), the B-2 Blocked
Amount would exceed the then remaining Total Term Loan Commitment and (z) shall
be automatically converted on the B-1 Conversion Date into B-1 Term Loans of
such Lender hereunder in an aggregate principal amount equal to the outstanding
B-2 Term Loans of such Lender on such date. 
Once repaid, B-2 Term Loans incurred hereunder may not be reborrowed.


 


(iii)          On
the B-1 Conversion Date, (w) all accrued but unpaid interest on all B-2
Term Loans shall be paid in full (regardless of whether same would otherwise
then be due and payable on such date), (x) the B-2 Term Loans being
converted into B-1 Term Loans pursuant to the B-1 Conversion shall be deemed
repaid on the date of such B-1 Conversion for purposes of Section 2.11
(and the Borrower agrees to pay any amounts owing pursuant to said Section 2.11
as a result thereof), (y) the aggregate principal amount of B-1 Term Loans
resulting from the B-1 Conversion shall be added (on a proportionate basis) to
each of the then outstanding Borrowings of B-1 Term Loans, in each case so
that, after giving effect to the B-1 Conversion, each Lender of B-1 Term Loans
(including as a result of the B-1 Conversion) participates ratably (based on
its total outstandings of B-1 Term Loans) in each then outstanding Borrowing of
B-1 Term Loans and (z) at the request of any Lender which converted B-2
Term Loans into any Borrowing of B-1 Term Loans maintained as Eurodollar Loans
on a day other than the first day of the respective Interest Period applicable
thereto, the Borrower shall compensate such Lender for such amounts as are
reasonably determined by it to constitute costs (losses) incurred by it as a
result of the requirement to fund such Loan during an existing Interest Period
as opposed to funding same on the first day of an Interest Period.


 


(b)           Subject to and upon the terms and
conditions set forth herein, each Lender with a Revolving Loan Commitment
severally agrees to make, at any time and from time to time on or after the
Initial Borrowing Date and prior to the Revolving Loan Maturity Date, a
revolving loan or revolving loans (each, a “Revolving Loan” and,
collectively, the “Revolving Loans”) to the Borrower, which Revolving
Loans (i) shall be denominated in Dollars, (ii) shall, at the option
of the Borrower, be incurred and maintained as, and/or converted into, Base
Rate Loans or Eurodollar Loans, provided that (A) except as
otherwise specifically provided in Section 2.10(b), all Revolving Loans
comprising the same Borrowing shall at all times be of the same Type, and (B) all
Revolving Loans made on the Initial Borrowing Date shall be incurred as Base
Rate Loans, (iii) may be repaid and reborrowed in accordance with the
provisions hereof, and (iv) shall not exceed for any such Lender at any
time outstanding that aggregate principal amount which, when added to the
product of (x) such Lender’s RL Percentage and (y) the sum of (I) the
aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans
which are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) then outstanding, equals the
Revolving Loan Commitment of such Lender at such time.


 


46

















 


(c)           Subject to and upon the terms and
conditions set forth herein, the Swingline Lender agrees to make, at any time
and from time to time on or after the Initial Borrowing Date and prior to the
Swingline Expiry Date, a revolving loan or revolving loans (each, a “Swingline
Loan” and, collectively, the “Swingline Loans”) to the Borrower,
which Swingline Loans (i) shall be incurred and maintained as Base Rate
Loans, (ii) shall be denominated in Dollars, (iii) may be repaid and
reborrowed in accordance with the provisions hereof, (iv) shall not exceed
in aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
aggregate amount of all Letter of Credit Outstandings at such time (exclusive
of Unpaid Drawings which are repaid with the proceeds of, and simultaneously
with the incurrence of, Swingline Loans), an amount equal to the Total
Revolving Loan Commitment at such time, and (v) shall not exceed in
aggregate principal amount at any time outstanding the Maximum Swingline Amount.  Notwithstanding anything to the contrary
contained in this Section 2.01(c), (i) the Swingline Lender shall not
be obligated to make any Swingline Loans at a time when a Lender Default exists
with respect to an RL Lender unless the Swingline Lender has entered into
arrangements satisfactory to it and the Borrower to eliminate the Swingline
Lender’s risk with respect to each Defaulting Lender’s participation in such
Swingline Loans (which arrangements are hereby consented to by the Lenders),
including by cash collateralizing such Defaulting Lender’s RL Percentage of the
outstanding Swingline Loans (such arrangements, the “Swingline Back-Stop
Arrangements”), and (ii) the Swingline Lender shall not make any
Swingline Loan after it has received written notice from the Borrower, any
other Credit Party or the Required Lenders stating that a Default or an Event
of Default exists until such time as the Swingline Lender shall have received
written notice (A) of rescission of all such notices from the party or parties
originally delivering such notice or notices or (B) of the waiver of such
Default or Event of Default by the Required Lenders.


 


(d)           On any Business Day, the Swingline
Lender may, in its sole discretion, give notice to the Borrower (unless a
Default or Event of Default then exists under Section 12(h) or 12(i))
and the RL Lenders that the Swingline Lender’s outstanding Swingline Loans
shall be funded with one or more Borrowings of Revolving Loans (provided
that such notice shall be deemed to have been automatically given upon the
occurrence of a Default or an Event of Default under Section 12(h) or
12(i) or upon the exercise of any of the remedies provided in the last
paragraph of Section 12), in which case one or more Borrowings of
Revolving Loans constituting Base Rate Loans (each such Borrowing, a “Mandatory
Borrowing”) shall be made on the immediately succeeding Business Day by all
RL Lenders pro  rata based on each such RL Lender’s RL Percentage
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 12, if applicable)
and the proceeds thereof shall be applied directly by the Swingline Lender to
repay the Swingline Lender for such outstanding Swingline Loans.  Each RL Lender hereby irrevocably agrees to
make Revolving Loans upon one Business Day’s notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Swingline Lender notwithstanding (i) the
amount of the Mandatory Borrowing may not comply with the Minimum Borrowing
Amount otherwise required hereunder, (ii) whether any conditions specified
in Sections 6, 7 and 8 are then satisfied, (iii) whether a Default or an
Event of Default then exists, (iv) the date of such Mandatory Borrowing,
and (v) the amount of the Total Revolving Loan Commitment at such
time.  In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a 


 


47

















 


result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then each RL Lender hereby
agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing
would otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the Swingline
Lender such participations in the outstanding Swingline Loans as shall be necessary
to cause the RL Lenders to share in such Swingline Loans ratably based upon
their respective RL Percentages (determined before giving effect to any
termination of the Revolving Loan Commitments pursuant to the last paragraph of
Section 12), provided that (x) all interest payable on the
Swingline Loans shall be for the account of the Swingline Lender until the date
as of which the respective participation is required to be purchased and, to
the extent attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing RL
Lender shall be required to pay the Swingline Lender interest on the principal
amount of participation purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but excluding
the date of payment for such participation, at the overnight Federal Funds Rate
for the first three days and at the interest rate otherwise applicable to
Revolving Loans maintained as Base Rate Loans hereunder for each day
thereafter.


 


2.02.        Minimum Amount of Each Borrowing.  The aggregate principal amount of each
Borrowing of Loans under a respective Tranche shall not be less than the
Minimum Borrowing Amount applicable to such Tranche.  More than one Borrowing may occur on the same
date, but at no time shall there be outstanding more than 10 Borrowings of
Eurodollar Loans in the aggregate for all Tranches of Loans.


 


2.03.        Notice of Borrowing.  (a)  Whenever the Borrower desires
to incur (x) Eurodollar Loans hereunder, the Borrower shall give the
Administrative Agent at the Notice Office at least three Business Days’ prior
notice of each Eurodollar Loan to be incurred hereunder and (y) Base Rate
Loans hereunder (excluding Swingline Loans and Revolving Loans made pursuant to
a Mandatory Borrowing), the Borrower shall give the Administrative Agent at the
Notice Office at least one Business Day’s (or, in the case of the Initial
Borrowing Date, same Business Day’s) prior notice of each Base Rate Loan to be
incurred hereunder, provided that (in each case) 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-1
or another form acceptable to the Administrative Agent, appropriately completed
to specify:  (i) the aggregate
principal amount of the Loans to be incurred pursuant to such Borrowing, (ii) the
date of such Borrowing (which shall be a Business Day), (iii) whether the
Loans being incurred pursuant to such Borrowing shall constitute B-1 Term
Loans, B-2 Term Loans or Revolving Loans, it being understood that the
incurrence of B-2 Term Loans shall be subject to the restrictions contained in
sub-clause (w) of Section 2.01(a)(ii), (iv) whether the Loans
being incurred pursuant to such Borrowing are to be initially maintained as
Base Rate Loans or, to the extent permitted hereunder, Eurodollar Loans and, if
Eurodollar Loans, the initial Interest Period to be applicable thereto, and (v) in
the case of a Borrowing of Term 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 Bridge Loan Blocked Amount).  The


 


48

















 


Administrative Agent
shall promptly give each Lender which is required to make Loans of any Tranche
specified in the respective Notice of Borrowing, 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)           (i)  Whenever the Borrower
desires to incur Swingline Loans hereunder, the Borrower shall give the
Swingline Lender no later than 1:00 P.M. (New York City time) on the date
that a Swingline Loan is to be incurred, written notice or telephonic notice
promptly confirmed in writing of each Swingline Loan to be incurred
hereunder.  Each such notice shall be
irrevocable and specify in each case (A) the date of Borrowing (which
shall be a Business Day) and (B) the aggregate principal amount of the
Swingline Loans to be incurred pursuant to such Borrowing.


 


(ii)           Mandatory Borrowings shall be made upon the notice
specified in Section 2.01(d), with the Borrower irrevocably agreeing, by
its incurrence of any Swingline Loan, to the making of the Mandatory Borrowings
as set forth in Section 2.01(d); provided, however, that the
making of such Mandatory Borrowings shall not constitute a representation or
warranty by Holdings or the Borrower that any of the conditions specified in
Sections 6, 7 or 8 are satisfied as of the time such Mandatory Borrowings are
made.


 


(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 or the Swingline
Lender, as the case may be, 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 or the Swingline Lender, as the case may be, 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
or the Swingline Lender’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 (x) in the
case of Swingline Loans or any Loans made on same day’s notice on the Initial
Borrowing Date as permitted pursuant to Section 2.03, no later than 4:00 P.M.
(New York City time) on the date specified pursuant to Section 2.03(b)(i) or
(y) in the case of Mandatory Borrowings, no later than 1:00 P.M. (New
York City time) on the date specified in Section 2.01(d)), each Lender
with a Commitment of the respective Tranche 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 (or in the case of Swingline Loans,
the Swingline Lender will make available the full amount thereof).  All such amounts will be made available in
Dollars and in immediately available funds at the Payment Office, and the
Administrative Agent will, except in the case of Revolving Loans made pursuant
to a Mandatory Borrowing, 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; provided that, if, on the date of a Borrowing of Revolving
Loans (other than a Mandatory Borrowing), there are Unpaid Drawings or
Swingline Loans then outstanding, then the proceeds of such Borrowing shall be
applied, first, to the payment in full of any such Unpaid Drawings with
respect to Letters of Credit, second, to the


 


49

















 


payment in full of any
such Swingline Loans, and third, to the Borrower as otherwise provided
above.  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 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 (i) in the case
of B-1 Term Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-1, with blanks
appropriately completed in conformity herewith (each, a “B-1 Term Note”
and, collectively, the “B-1 Term Notes”), (ii) in the case of B-2
Term Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-2, with blanks appropriately
completed in conformity herewith (each, a “B-2 Term Note” and,
collectively, the “B-2 Term Notes”), (iii) in the case of Revolving
Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-3, with blanks appropriately
completed in conformity herewith (each, a “Revolving Note” and,
collectively, the “Revolving Notes”), and (iv) in the case of
Swingline Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-4, with blanks
appropriately completed in conformity herewith (the “Swingline Note”).  On and after the B-1 Conversion Date, each
Lender which has had an increase in outstanding B-1 Term Loans as a result of
the B-1 Conversion shall be entitled to receive a new B-1 Term Note evidencing
all its then outstanding B-1 Term Loans; provided that if a B-1 Term
Note or B-2 Term Note has previously been issued to such Lender, such Lender
shall surrender such Note or Notes to the Borrower or provide it with a customary
lost note indemnity.


 


(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


 


50

















 


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, and shall not in
any way affect the security or guaranties therefor provided pursuant to the
various Credit 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.        Conversions.  The Borrower shall have the option to
convert, on any Business Day, all or a portion equal to at least the Minimum
Borrowing Amount of the outstanding principal amount of Loans (other than
Swingline Loans, which may not be converted pursuant to this Section 2.06)
made pursuant to one or more Borrowings (so long as of the same Tranche) of one
or more Types of Loans into a Borrowing (of the same Tranche) of another Type
of Loan, provided that, (i) except as otherwise provided in Section 2.10(b),
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
an Interest Period applicable to the Loans being converted and no such partial
conversion of Eurodollar Loans shall reduce the outstanding principal amount of
such Eurodollar Loans made pursuant to a single Borrowing to less than the
Minimum Borrowing Amount applicable thereto, (ii) unless the Required
Lenders otherwise agree, Base Rate Loans may only be converted into Eurodollar
Loans if no Default or Event of Default is in existence on the date of the
conversion, and (iii) no conversion pursuant to this Section 2.06
shall result in a greater number of Borrowings of Eurodollar Loans than is
permitted under Section 2.02.  Each
such conversion shall be effected by the Borrower by giving the Administrative
Agent at the Notice Office prior to 11:00 A.M. (New York City time) at
least (x) in the case of conversions of Base Rate Loans into Eurodollar
Loans, three Business Days’ prior notice and (y) in the case of
conversions of Eurodollar Loans into Base Rate Loans, one Business Day’s prior
notice (each, a “Notice of Conversion/Continuation”), in each case in
the form of Exhibit A-2 or another form acceptable to the
Administrative Agent, appropriately completed to specify the Loans to be so
converted, the Borrowing or Borrowings pursuant to which such Loans were
incurred and, if to be converted into Eurodollar Loans, the Interest Period to
be initially applicable thereto.  The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Loans.


 


2.07.        Pro Rata Borrowings.  All Borrowings of B-1 Term Loans, B-2 Term
Loans and Revolving Loans under this Agreement shall be incurred from the
Lenders pro  rata on the basis of their B-1 Term Loan Commitments,
B-2 Term Loan Commitments or Revolving Loan Commitments, as the case may be, provided
that (x) all Mandatory Borrowings shall be incurred from the RL Lenders pro
rata on the basis of their RL Percentages and (y) the B-1


 


51

















 


Conversion shall occur in
accordance with the relevant provisions of this Agreement.  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)  The Borrower agrees to pay interest
in respect of the unpaid principal amount of each Base Rate Loan from the date
of Borrowing thereof until the earlier of (i) the maturity thereof
(whether by acceleration or otherwise) and (ii) the conversion of such
Base Rate Loan to a Eurodollar Loan pursuant to Section 2.06 or 2.09, as
applicable, at a rate per annum which shall be equal to the sum of the relevant
Applicable Margin plus the Base Rate, each as in effect from time to
time.


 


(b)           The Borrower agrees to pay interest
in respect of the unpaid principal amount of each Eurodollar Loan from the date
of Borrowing thereof until the earlier of (i) the maturity thereof
(whether by acceleration or otherwise) and (ii) the conversion of such
Eurodollar Loan to a Base Rate Loan pursuant to Section 2.06, 2.09 or
2.10, as applicable, at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the relevant Applicable
Margin as in effect from time to time during such Interest Period plus
the Eurodollar Rate for such Interest Period.


 


(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 and under any other Credit Document shall bear interest at a
rate per annum equal to the rate which is 2% in excess of the rate applicable
to Revolving Loans that are maintained as Base Rate Loans from time to
time.  Interest that accrues under this Section 2.08(c) shall
be payable on demand.


 


(d)           Accrued (and theretofore unpaid)
interest shall be payable (i) in respect of each Base Rate Loan, (x) quarterly
in arrears on each Quarterly Payment Date, (y) on the date of any
repayment or prepayment in full of all outstanding Base Rate Loans of any
Tranche, and (z) at maturity (whether by acceleration or otherwise) and,
after such maturity, on demand, and (ii) in respect of each Eurodollar
Loan, (x) on the last day of each Interest Period applicable thereto and,
in the case of an Interest Period in excess of three months, on each date
occurring at three month intervals after the first day of such Interest Period,
and (y) on the date of any repayment or prepayment (on the amount repaid
or prepaid), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.  In addition,
accrued and unpaid interest with respect to B-2 Term Loans shall be due and
payable upon the occurrence of the B-1 Conversion.


 


(e)           Upon each Interest Determination
Date, the Administrative Agent shall determine the Eurodollar Rate for each
Interest Period applicable to the respective Eurodollar Loans 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.        Interest Periods.  At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion/Continuation in respect of the making of, or
conversion into, any


 


52

















 


Eurodollar Loan (in the
case of the initial Interest Period applicable thereto) or prior to 11:00 A.M.
(New York City time) on the third Business Day prior to the expiration of an
Interest Period applicable to such Eurodollar Loan (in the case of any
subsequent Interest Period), the Borrower shall have the right to elect the
interest period (each, an “Interest Period”) applicable to such
Eurodollar Loan, which Interest Period shall, at the option of the Borrower, be
a one, two, three, six or, to the extent approved by each Lender with Loans
and/or Commitments under the relevant Tranche, nine or twelve month period, provided
that (in each case):


 


(i)            all Eurodollar Loans comprising a
Borrowing shall at all times have the same Interest Period;


 


(ii)           the initial Interest Period for any
Eurodollar Loan shall commence on the date of Borrowing of such Eurodollar Loan
(including the date of any conversion thereto from a Base Rate Loan) and each
Interest Period occurring thereafter in respect of such Eurodollar Loan shall
commence on the day on which the next preceding Interest Period applicable
thereto expires;


 


(iii)          if any Interest Period for a
Eurodollar Loan begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;


 


(iv)          if any Interest Period for a
Eurodollar Loan would otherwise expire on a day which is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day; provided,
however, that if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which is not a Business Day but is a day of the month
after which no further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day;


 


(v)           unless the Required Lenders otherwise
agree, no Interest Period may be selected at any time when a Default or an
Event of Default is then in existence;


 


(vi)          no Interest Period in respect of any
Borrowing of any Tranche of Loans shall be selected which extends beyond the
Maturity Date (determined without regard to the provisos to the component
defined terms used in the definition of Maturity Date) for such Tranche of
Loans;


 


(vii)         no Interest Period in respect of any
Borrowing of B-1 Term Loans shall be selected which extends beyond any
Scheduled Term Loan Repayment Date if the aggregate principal amount of such B-1
Term Loans which have Interest Periods which will expire after such date will
be in excess of the aggregate principal amount of such B-1 Term Loans then
outstanding less the aggregate amount of such required repayment; and


 


(viii)        the only Interest Periods that may be
selected prior to the occurrence of the Syndication Date shall be one-month
periods.


 


53

















 


If by 11:00 A.M. (New York City time) on the
third Business Day prior to the expiration of any Interest Period applicable to
a Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.


 


2.10.        Increased Costs, Illegality, etc.  (a)  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 Eurodollar Loan does not adequately and fairly reflect the cost of Lenders
of funding such Eurodollar 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 Eurodollar Loan because of 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;
or


 


(iii)          at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, or (y) impossible by compliance by any Lender
in good faith with any governmental request (whether or not having force of
law);


 


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 (x) in
the case of clause (i)(A) above, Eurodollar Loans shall no longer be
available until such time as the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any 


 


54

















 


Notice of Borrowing or Notice of
Conversion/Continuation given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (i)(B) or
(ii) above, the Borrower agrees to pay to each affected Lender, upon such
affected Lender’s written request therefor, such additional amounts (in the
form of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender shall determine in good faith) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional amounts
owed to such Lender, showing in reasonable detail the basis for the calculation
thereof, submitted to the Borrower by such Lender shall, absent manifest error,
be final and conclusive and binding on all the parties hereto) and (z) in
the case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 2.10(b) as promptly as possible and, in any
event, within the time period required by law.


 


(b)           At any time that any Eurodollar Loan
is affected by the circumstances described in Section 2.10(a)(ii), the
Borrower may, and in the case of a Eurodollar Loan affected by the
circumstances described in Section 2.10(a)(iii), the Borrower shall, either
(x) if the affected Eurodollar Loan is then being made initially or
pursuant to a conversion, cancel such Borrowing by giving the Administrative
Agent telephonic notice (confirmed in writing) on the same date that the
Borrower was notified by the affected Lender or the Administrative Agent
pursuant to Section 2.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days’
written notice to the Administrative Agent, require the affected Lender to convert
such Eurodollar Loan into a Base Rate Loan, provided that, if more than
one Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 2.10(b).


 


(c)           If any Lender determines that after
the Effective Date the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by the NAIC or any Governmental
Authority, central bank or comparable agency, will have the effect of
increasing the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender based on the existence of
such Lender’s Commitments hereunder or its obligations hereunder, then the
Borrower agrees to pay to such Lender, upon its written demand therefor, such
additional amounts as shall be required to compensate such Lender or such other
corporation for the increased cost to such Lender or such other corporation or
the reduction in the rate of return to such Lender or such other corporation as
a result of such increase of capital.  In
determining such additional amounts, each Lender will act reasonably and in
good faith and will use averaging and attribution methods which are reasonable,
provided that such Lender’s determination of compensation owing under
this Section 2.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto.  Each Lender, upon determining that any
additional amounts will be payable pursuant to this Section 2.10(c), will
give prompt written notice thereof to the Borrower, which notice shall show in
reasonable detail the basis for calculation of such additional amounts.


 


(d)           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


 


55
















 


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 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 Eurodollar 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, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion/Continuation (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) or conversion of any of
its Eurodollar Loans 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
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of any election made
pursuant to Section 2.10(b).


 


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(a)(ii) or (iii), Section 2.10(c), Section 3.06
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 or Letters of
Credit 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, 3.06 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),
Section 3.06 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 or (i) in the case of a replacement as provided in Section 14.12(b) where
the consent of the respective Lender is required with respect to less than all
Tranches of its Loans or Commitments, to replace


 


56

















 


the Commitments and/or
outstanding Loans (it being understood that if there are both outstanding
Commitments and Loans of a given Tranche, all such Commitments and Loans must
be replaced) of such Lender in respect of each Tranche where the consent of
such Lender would otherwise be individually required, with identical
Commitments and/or Loans of the respective Tranche provided by the Replacement
Lender or (ii) in case of replacements as described in clauses (x) and/or
(y) above, at the option of the Borrower, to replace the respective Lender
with respect to a given Tranche of its Loans and related Commitments (if any),
rather than to replace the respective Lender with respect to all Tranches; 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 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
(or, in the case of the replacement of only (a) the Revolving Loan
Commitment, the Revolving Loan Commitment and outstanding Revolving Loans and
participations in Letter of Credit Outstandings and/or (b) the outstanding
Term Loans and/or Term Loan Commitments of a given Tranche, the outstanding
Term Loans and Term Loan Commitments of such Tranche of the Lender being
replaced) of, and in each case (except for the replacement of only outstanding
Term Loans and/or Term Loan Commitments of the respective Lender) all
participations in Letters of Credit by, the Replaced Lender and, in connection
therewith, shall pay to (x) the Replaced Lender in respect thereof an
amount equal to the sum of (A) an amount equal to the principal of, and
all accrued interest on, all outstanding Loans of the respective Replaced
Lender under each Tranche with respect to which such Replaced Lender is being
replaced, (B) an amount equal to all Unpaid Drawings (unless there are no
Unpaid Drawings with respect to the Tranche being replaced) that have been
funded by (and not reimbursed to) such Replaced Lender, together with all then
unpaid interest with respect thereto at such time and (C) an amount equal
to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender (but
only with respect to the relevant Tranche or Tranches, in the case of the
replacement of less than all Tranches of Loans then held by the respective
Replaced Lender) pursuant to Section 4.01, (y) except in the case of
the replacement of only outstanding Term Loans and/or Term Loan Commitments of
a Replaced Lender, each Issuing Lender an amount equal to such Replaced Lender’s
RL Percentage of any Unpaid Drawing relating to Letters of Credit issued by
such Issuing Lender (which at such time remains an Unpaid Drawing) to the
extent such amount was not theretofore funded by such Replaced Lender and (z) in
the case of any replacement of Revolving Loan Commitments, the Swingline Lender
an amount equal to such Replaced Lender’s RL Percentage of any Mandatory
Borrowing to the extent such amount was not theretofore funded by such Replaced
Lender to the Swingline Lender; and


 


(b)           all obligations of the
Borrower then owing to the Replaced Lender (other than those (a) 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 or (b) relating to any Tranche of Loans
and/or Commitments of the respective Replaced Lender which will remain
outstanding after


 


57

















 


giving effect to the
respective replacement) shall be paid in full to such Replaced Lender
concurrently with such replacement.


 


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, (x) the Replacement
Lender shall become a Lender hereunder and, unless the respective Replaced
Lender continues to have outstanding Term Loans, a Term Loan Commitment and/or
a Revolving Loan Commitment hereunder, 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, 3.06, 5.04, 13.06, 14.01 and 14.06), which shall survive as to such
Replaced Lender and (y) except in the case of the replacement of only
outstanding Term Loans and/or Term Loan Commitments pursuant to this Section 2.13,
the RL Percentages of the Lenders shall be automatically adjusted at such time
to give effect to such replacement.


 


2.14.        Reverse Dutch Auction Repurchases.  (a) Notwithstanding
anything to the contrary contained in this Credit Agreement or any other Credit
Document, the Borrower may, at any time and from time to time after the latest
to occur of the Merger Closing Date, the B-1 Conversion Date and the
Syndication Date (for this purpose, determined without regard to clause (y) thereof),
conduct reverse Dutch auctions in order to purchase Term Loans (each, an “Auction”)
(each such Auction to be managed exclusively by MS&Co. or another
investment bank of recognized standing selected by the Borrower following
consultation with the Administrative Agent (in such capacity, the “Auction
Manager”)), so long as the following conditions are satisfied:


 


(i)            each Auction shall be
conducted in accordance with the procedures, terms and conditions set forth in
this Section 2.14 and Schedule 2.14;


 


(ii)           no Default or Event of
Default shall have occurred and be continuing on the date of the delivery of
each Auction Notice and at the time of purchase of any Term Loans in connection
with any Auction;


 


(iii)          the maximum principal amount
(calculated on the face amount thereof) of all Term Loans that the Borrower
offers to purchase in any such Auction shall be no less than $25,000,000
(unless another amount is agreed to by the Administrative Agent);


 


(iv)          after giving effect to any
purchase of Term Loans pursuant to this Section 2.14, the sum of (x) the
Total Unutilized Revolving Loan Commitment and (y) the aggregate amount of
all Unrestricted cash and unrestricted Permitted Investments


 


58

















 


of the Borrower and the other Credit Parties,
shall not be less than $200,000,000;


 


(v)           the aggregate principal
amount (calculated on the face amount thereof) of all Term Loans so purchased
by the Borrower shall automatically be cancelled and retired by the Borrower on
the settlement date of the relevant purchase (and may not be resold);


 


(vi)          at the time of each purchase
of Term Loans through an Auction, (A) Holdings’ corporate rating by
S&P shall not be less than BB- (with a stable outlook) and (B) Holdings’
corporate family rating by Moody’s shall not be less than Ba3 (with a stable
outlook);


 


(vii)         prior to commencing an
Auction, the Borrower shall have discussed same with each of S&P and Moody’s
and, based upon such discussions, shall reasonably believe that the proposed
purchase of Term Loans through such Auction shall not be deemed to be a “distressed
exchange”;


 


(viii)        at the time of each purchase
of Term Loans pursuant to an Auction, neither S&P nor Moody’s shall have announced
or communicated to the Borrower that the proposed purchase of Term Loans
through such Auction shall be deemed to be a “distressed exchange”;


 


(ix)           no more than one Auction may
be ongoing at any one time;


 


(x)            the aggregate principal
amount of all Term Loans purchased pursuant to Sections 2.14 and 2.15 shall not
exceed $200,000,000;


 


(xi)           the Borrower represents and
warrants that no Credit Party shall have any MNPI that both (A) has not
been previously disclosed in writing to the Administrative Agent and the
Lenders (other than because such Lender does not wish to receive such MNPI)
prior to such time and (B) could reasonably be expected to have a material
effect upon, or otherwise be material to, a Lender’s decision to participate in
the Auction; and


 


(xii)          at the time of each purchase
of Term Loans through an Auction, the Borrower shall have delivered to the
Auction Manager an officer’s certificate of an Authorized Officer certifying as
to compliance with preceding clauses (vi) through (viii).


 


(b)           The Borrower must terminate an Auction if it fails to
satisfy one or more of the conditions set forth above which are required to be
met at the time which otherwise would have been the time of purchase of Term
Loans pursuant to the respective Auction. 
If the Borrower commences any Auction (and all relevant requirements set
forth above which are required to be satisfied at the time of the commencement
of the respective Auction have in fact been satisfied), and if at such time of
commencement the Borrower reasonably believes that all required conditions set
forth above which are required to be satisfied at the time of the purchase of
Term Loans pursuant to such Auction shall be satisfied, then the Borrower shall
have no liability to any Lender for any termination of the respective Auction
as a result of its failure to 


 


59

















 


satisfy one or more of the conditions set forth above
which are required to be met at the time which otherwise would have been the
time of purchase of Term Loans pursuant to the respective Auction, and any such
failure shall not result in any Default or Event of Default hereunder.  With respect to all purchases of Term Loans
made by the Borrower pursuant to this Section 2.14, (x) the Borrower
shall pay on the settlement date of each such purchase all accrued and unpaid
interest (except to the extent otherwise set forth in the relevant offering
documents), if any, on the purchased Term Loans up to the settlement date of
such purchase and (y) such purchases (and the payments made by the
Borrower and the cancellation of the purchased Term Loans, in each case in
connection therewith) shall not constitute voluntary or mandatory payments or
prepayments for purposes of Sections 5.01, 5.02 or 14.06.


 


(c)           The Administrative Agent and the Lenders hereby
consent to the Auctions and the other transactions contemplated by this Section 2.14
(provided that no Lender shall have an obligation to participate in any such
Auctions) and hereby waive the requirements of any provision of this Agreement
(including, without limitation, Sections 5.01, 5.02 and 14.06 (it being
understood and acknowledged that purchases of the Term Loans by the Borrower
contemplated by this Section 2.14 shall not constitute Investments by the
Borrower)) or any other Credit Document that may otherwise prohibit any Auction
or any other transaction contemplated by this Section 2.14.  The Auction Manager acting in its capacity as
such hereunder shall be entitled to the benefits of the provisions of Section 13
and Section 14.01 mutatis  mutandis as if each reference
therein to the “Administrative Agent” were a reference to the Auction Manager,
and the Administrative Agent shall cooperate with the Auction Manager as
reasonably requested by the Auction Manager in order to enable it to perform
its responsibilities and duties in connection with each Auction.


 


2.15.        Open Market Purchases.  (a) Notwithstanding
anything to the contrary contained in this Credit Agreement or any other Credit
Document, the Borrower may, at any time and from time to time after the latest
to occur of the Merger Closing Date, the B-1 Conversion Date and the
Syndication Date (for this purpose, determined without regard to clause (y) thereof),
make open market purchases of Term Loans (each, an “Open Market Purchase”),
so long as the following conditions are satisfied:


 


(i)            no Default or Event of
Default shall have occurred and be continuing on the date of such Open Market
Purchase;


 


(ii)           after giving effect to any
purchase of Term Loans pursuant to this Section 2.15, the sum of (x) the
Total Unutilized Revolving Loan Commitment and (y) the aggregate amount of
all Unrestricted cash and unrestricted Permitted Investments of the Borrower
and the other Credit Parties, shall not be less than $200,000,000;


 


(iii)          the aggregate principal
amount (calculated on the face amount thereof) of all Term Loans so purchased
by the Borrower shall automatically be cancelled and retired by the Borrower on
the settlement date of the relevant purchase (and may not be resold);


 


(iv)          at the time of each purchase
of Term Loans pursuant to this Section 2.15, (A) Holdings’
corporate rating by S&P shall not be less than BB- (with a stable


 


60

















 


outlook) and (B) Holdings’ corporate
family rating by Moody’s shall not be less than Ba3 (with a stable outlook);
and


 


(v)           the aggregate principal
amount of all Term Loans purchased pursuant to Sections 2.14 and 2.15 shall not
exceed $200,000,000.


 


 


(b)           With respect to all purchases of Term Loans made by
the Borrower pursuant to this Section 2.15, (x) the Borrower shall
pay on the settlement date of each such purchase all accrued and unpaid
interest, if any, on the purchased Term Loans up to the settlement date of such
purchase (except to the extent otherwise set forth in the relevant purchase
documents as agreed by the respective selling Lender) and (y) such
purchases (and the payments made by the Borrower and the cancellation of the
purchased Term Loans, in each case in connection therewith) shall not
constitute voluntary or mandatory payments or prepayments for purposes of
Sections 5.01, 5.02 or 14.06.


 


(c)           The Administrative Agent and the Lenders
hereby consent to the Open Market Purchases contemplated by this Section 2.15
and hereby waive the requirements of any provision of this Agreement
(including, without limitation, Sections 5.01, 5.02 and 14.06 (it being
understood and acknowledged that purchases of the Term Loans by the Borrower
contemplated by this Section 2.15 shall not constitute Investments by the
Borrower)) or any other Credit Document that may otherwise prohibit any Open
Market Purchase by this Section 2.15.


 


SECTION 3.           Letters of Credit.


 


3.01.        Letters of Credit.  (a)  Subject
to and upon the terms and conditions set forth herein, the Borrower may request
that an Issuing Lender issue, at any time and from time to time on and after
the Initial Borrowing Date and prior to the 60th day prior to the Revolving
Loan Maturity Date (for this purpose, determined without regard to the proviso
to the definition thereof), for the account of the Borrower and for the benefit
of any holder (or any trustee, agent or other similar representative for any
such holders) of L/C Supportable Obligations, an irrevocable standby or trade
letter of credit, in a form customarily used by such Issuing Lender or in such
other form as is reasonably acceptable to such Issuing Lender (each such letter
of credit, a “Letter of Credit” and, collectively, the “Letters of
Credit”).  All Letters of Credit shall
be denominated in Dollars, issued on a sight basis only and governed by laws of
the State of New York (unless the laws of another jurisdiction is agreed to by
the respective Issuing Lender) and governed under The International Standby
Practices (ISP98).


 


(b)           Subject to and upon the terms and conditions set forth
herein, each Issuing Lender agrees that it will, at any time and from time to
time on and after the Initial Borrowing Date and prior to the 60th day prior to
the Revolving Loan Maturity Date (for this purpose, determined without regard
to the proviso to the definition thereof), following its receipt of the
respective Letter of Credit Request, issue for account of the Borrower, one or
more Letters of Credit as are permitted to remain outstanding hereunder without
giving rise to a Default or an Event of Default, provided that no
Issuing Lender shall be under any obligation to issue any Letter of Credit of
the types described above if at the time of such issuance:


 


61

















 


(i)            any order, judgment or
decree of any Governmental Authority shall purport by its terms to enjoin or
restrain such Issuing Lender from issuing such Letter of Credit or any
requirement of law applicable to such Issuing Lender or any request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such Issuing Lender shall prohibit, or request
that such Issuing Lender refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such
Issuing Lender with respect to such Letter of Credit any restriction or reserve
or capital requirement (for which such Issuing Lender is not otherwise
compensated hereunder) not in effect with respect to such Issuing Lender on the
date hereof, or any unreimbursed loss, cost or expense which was not applicable
or in effect with respect to such Issuing Lender as of the date hereof and
which such Issuing Lender reasonably and in good faith deems material to it; or


 


(ii)           such Issuing Lender shall
have received from the Borrower, any other Credit Party or the Required Lenders
prior to the issuance of such Letter of Credit notice of the type described in
the second sentence of Section 3.03(b).


 


3.02.        Maximum Letter of Credit Outstandings; Final
Maturities.  Notwithstanding anything to the contrary
contained in this Agreement, (i) no Letter of Credit shall be issued the
Stated Amount of which, when added to the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid on the date of, and prior to the
issuance of, the respective Letter of Credit) at such time would exceed either (x) the
L/C Aggregate Maximum Amount (determined after giving effect to any proposed
issuance of a Letter of Credit pursuant to the Consent Decree to secure the
satisfaction of the Consent Decree Phosphogypsum Stack Liability) or (y) when
added to the sum of (I) the aggregate principal amount of all Revolving
Loans then outstanding and (II) the aggregate principal amount of all
Swingline Loans then outstanding, an amount equal to the Total Revolving Loan
Commitment at such time, and (ii) each Letter of Credit shall by its terms
terminate (x) in the case of standby Letters of Credit, on or before the
earlier of (A) the date which occurs 12 months after the date of the
issuance thereof and (B) five Business Days prior to the Revolving Loan
Maturity Date (for this purpose, determined without regard to the proviso to
the definition thereof), and (y) in the case of trade Letters of Credit,
on or before the earlier of (A) the date which occurs 180 days after the
date of issuance thereof and (B) 30 days prior to the Revolving Loan
Maturity Date (for this purpose, determined without regard to the proviso to
the definition thereof).


 


3.03.        Letter of Credit Requests; Minimum Stated Amount.  (a)  Whenever
the Borrower desires that a Letter of Credit be issued for its account, the
Borrower shall give the Administrative Agent and the respective Issuing Lender
at least five Business Days’ (or such shorter period as is acceptable to such
Issuing Lender) written notice thereof (including by way of facsimile).  Each notice shall be in the form of Exhibit C
or another form acceptable to the Administrative Agent and the respective
Issuing Lender, in each case appropriately completed (each, a “Letter of
Credit Request”). The Borrower may request to amend or modify an issued
Letter of Credit so long as (x) the Borrower shall give the Administrative
Agent and the respective Issuing Lender at least five Business Days’ (or such
shorter period as is acceptable to such Issuing Lender) written notice thereof
(including by way of facsimile) and (y) the issued Letter of Credit as
amended or modified is permitted under the terms and conditions herein.


 


62

















 


(b)           The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower to the Lenders that
such Letter of Credit may be issued in accordance with, and will not violate
the requirements of, Section 3.02. 
Unless the respective Issuing Lender has received notice from the
Borrower, any other Credit Party or the Required Lenders before it issues a
Letter of Credit that one or more of the applicable conditions specified in Section 6,
7 or 8, as applicable, are not then satisfied, or that the issuance of such
Letter of Credit would violate Section 3.02, then such Issuing Lender
shall, subject to the terms and conditions of this Agreement, issue the
requested Letter of Credit for the account of the Borrower in accordance with
such Issuing Lender’s usual and customary practices.  Upon the issuance of or modification or
amendment to any standby Letter of Credit, each Issuing Lender shall promptly
notify the Borrower and the Administrative Agent, in writing of such issuance,
modification or amendment and such notice shall be accompanied by a copy of
such Letter of Credit or the respective modification or amendment thereto, as
the case may be.  Promptly after receipt
of such notice the Administrative Agent shall notify the Participants, in
writing, of such issuance, modification or amendment.  On the first Business Day of each week, each
Issuing Lender shall furnish the Administrative Agent with a written (including
via facsimile) report of the daily aggregate outstandings of trade Letters of
Credit issued by such Issuing Lender for the immediately preceding week.  Notwithstanding anything to the contrary
contained in this Agreement, in the event that a Lender Default exists with
respect to any RL Lender, no Issuing Lender shall be required to issue, renew,
extend or amend any Letter of Credit, unless such Issuing Lender has entered
into arrangements satisfactory to it and the Borrower to eliminate such Issuing
Lender’s risk with respect to each Defaulting Lender’s participation in Letters
of Credit issued by such Issuing Lender (which arrangements are hereby
consented to by the Lenders), including by cash collateralizing each Defaulting
Lender’s RL Percentage of the Letter of Credit Outstandings with respect to
such Letters of Credit (such arrangements, the “Letter of Credit Back-Stop
Arrangements”).


 


(c)           The initial Stated Amount of each Letter of Credit
shall not be less than $100,000  or such lesser
amount as is acceptable to the respective Issuing Lender.


 


3.04.        Letter of Credit Participations.  (a)  Immediately
upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing
Lender shall be deemed to have sold and transferred to each RL Lender, and each
such RL Lender (in its capacity under this Section 3.04, a “Participant”)
shall be deemed irrevocably and unconditionally to have purchased and received
from such Issuing Lender, without recourse or warranty, an undivided interest
and participation, to the extent of such Participant’s RL Percentage, in such
Letter of Credit, each drawing or payment made thereunder and the obligations
of the Borrower under this Agreement with respect thereto, and any security
therefor or guaranty pertaining thereto. 
Upon any change in the Revolving Loan Commitments or RL Percentages of
the Lenders pursuant to Section 2.13 or 14.04(b), it is hereby agreed
that, with respect to all outstanding Letters of Credit and Unpaid Drawings
relating thereto, there shall be an automatic adjustment to the participations
pursuant to this Section 3.04 to reflect the new RL Percentages of the
assignor and assignee Lender, as the case may be.


 


(b)           In determining whether to pay under any Letter of
Credit, no Issuing Lender shall have any obligation relative to the other
Lenders other than to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered


 


63

















 


and that they appear to substantially comply on their
face with the requirements of such Letter of Credit.  Any action taken or omitted to be taken by an
Issuing Lender under or in connection with any Letter of Credit issued by it
shall not create for such Issuing Lender any resulting liability to the
Borrower, any other Credit Party, any Lender or any other Person unless such
action is taken or omitted to be taken with gross negligence, bad faith or
willful misconduct on the part of such Issuing Lender (as determined by a court
of competent jurisdiction in a final and non-appealable decision).


 


(c)           In the event that an Issuing Lender makes any payment
under any Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a),
such Issuing Lender shall promptly notify the Administrative Agent, which shall
promptly notify each Participant of such failure, and each Participant shall
promptly and unconditionally pay to such Issuing Lender the amount of such
Participant’s RL Percentage of such unreimbursed payment in Dollars and in same
day funds.  If the Administrative Agent
so notifies, prior to 12:00 Noon (New York City time) on any Business Day, any
Participant required to fund a payment under a Letter of Credit, such
Participant shall make available to the respective Issuing Lender in Dollars
such Participant’s RL Percentage of the amount of such payment on such Business
Day in same day funds.  If and to the
extent such Participant shall not have so made its RL Percentage of the amount
of such payment available to respective Issuing Lender, such Participant agrees
to pay to such Issuing Lender, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is
paid to such Issuing Lender at the overnight Federal Funds Rate for the first
three days and at the interest rate applicable to Revolving Loans that are
maintained as Base Rate Loans for each day thereafter.  The failure of any Participant to make
available to an Issuing Lender its RL Percentage of any payment under any
Letter of Credit issued by such Issuing Lender shall not relieve any other
Participant of its obligation hereunder to make available to such Issuing
Lender its RL Percentage of any payment under any Letter of Credit on the date
required, as specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to such Issuing Lender such
other Participant’s RL Percentage of any such payment.


 


(d)           Whenever an Issuing Lender receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Lender shall pay
to each such Participant which has paid its RL Percentage thereof, in Dollars
and in same day funds, an amount equal to such Participant’s share (based upon
the proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.


 


(e)           Upon the request of any Participant, each Issuing
Lender shall furnish to such Participant copies of any standby Letter of Credit
issued by it and such other documentation as may reasonably be requested by
such Participant.


 


(f)            The obligations of the Participants to make payments
to each Issuing Lender with respect to Letters of Credit shall be irrevocable
and not subject to any qualification or exception whatsoever and shall be made
in accordance with the terms and conditions of this 


 


64

















 


Agreement under all circumstances, including, without
limitation, any of the following circumstances:


 


(i)            any lack of validity or
enforceability of this Agreement or any of the other Credit Documents;


 


(ii)           the existence of any claim,
setoff, defense or other right which Holdings or any of its Subsidiaries may
have at any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such transferee
may be acting), the Administrative Agent, any Participant, or any other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including any
underlying transaction between Holdings or any Subsidiary of Holdings and the
beneficiary named in any such Letter of Credit);


 


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


 


(iv)          the surrender or impairment
of any security for the performance or observance of any of the terms of any of
the Credit Documents; or


 


(v)           the occurrence of any
Default or Event of Default.


 


3.05.        Agreement to Repay Letter of Credit Drawings.  (a)  The
Borrower agrees to reimburse each Issuing Lender, by making payment to the
Administrative Agent in immediately available funds at the Payment Office, for
any payment or disbursement made by such Issuing Lender under any Letter of
Credit issued by it (each such amount, so paid until reimbursed by the
Borrower, an “Unpaid Drawing”), not later than two Business Days following
receipt by the Borrower of notice of such payment or disbursement (provided
that no such notice shall be required to be given if a Default or an Event of
Default under Section 12(h) or 12(i) shall have occurred and be
continuing, in which case the Unpaid Drawing shall be due and payable
immediately without presentment, demand, protest or notice of any kind (all of
which are hereby waived by the Borrower)), with interest on the amount so paid
or disbursed by such Issuing Lender, to the extent not reimbursed prior to
12:00 Noon (New York City time) on the date of such payment or disbursement,
from and including the date paid or disbursed to but excluding the date such
Issuing Lender was reimbursed by the Borrower therefor at a rate per annum
equal to the Base Rate as in effect from time to time plus the
Applicable Margin as in effect from time to time for Revolving Loans that are
maintained as Base Rate Loans; provided, however, to the extent
such amounts are not reimbursed prior to 12:00 Noon (New York City time) on the
third Business Day following the receipt by the Borrower of notice of such
payment or disbursement or following the occurrence of a Default or an Event of
Default under Section 12(h) or 12(i), interest shall thereafter
accrue on the amounts so paid or disbursed by such Issuing Lender (and until
reimbursed by the Borrower) at a rate per annum equal to the Base Rate as in
effect from time to time plus the Applicable Margin for Revolving Loans that
are maintained as Base Rate Loans as in effect from time to time plus
2%, with such interest to be payable on demand. 
Each Issuing Lender shall give the Borrower prompt written notice of
each Drawing under any Letter


 


65
















 


of Credit issued by it, provided
that the failure to give any such notice shall in no way affect, impair or
diminish the Borrower’s obligation to repay such drawing and interest thereon
as provided herein.


 


(b)           The obligations of the Borrower under
this Section 3.05 to reimburse each Issuing Lender with respect to drafts,
demands and other presentations for payment under Letters of Credit issued by
it (each, a “Drawing”) (including, in each case, interest thereon) shall
be absolute and unconditional under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment which Holdings or any
Subsidiary of Holdings may have or have had against any Lender (including in
its capacity as an Issuing Lender or as a Participant), including, without
limitation, any defense based upon the failure of any drawing under a Letter of
Credit to conform to the terms of the Letter of Credit or any nonapplication or
misapplication by the beneficiary of the proceeds of such Drawing; provided,
however, that the Borrower may seek damages (but not punitive or
consequential damages) from any Issuing Lender to the extent resulting from any
wrongful payment made by such Issuing Lender under a Letter of Credit issued by
it as a result of acts or omissions constituting gross negligence, bad faith or
willful misconduct on the part of such Issuing Lender (as determined by a court
of competent jurisdiction in a final and non-appealable decision).


 


3.06.        Increased Costs.  If at any time after the Effective Date, the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Issuing Lender or any Participant with any
request or directive issued after the Effective Date by the NAIC or any such
Governmental Authority (whether or not having the force of law), shall either (i) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by any Issuing Lender or
participated in by any Participant, or (ii) impose on any Issuing Lender
or any Participant any other conditions relating, directly or indirectly, to this
Agreement or any Letter of Credit; and the result of any of the foregoing is to
increase the cost to any Issuing Lender or any Participant of issuing,
maintaining or participating in any Letter of Credit, or reduce the amount of
any sum received or receivable by any Issuing Lender or any Participant
hereunder or reduce the rate of return on its capital with respect to Letters
of Credit (except for changes in the rate of tax on, or determined by reference
to, the net income or net profits of such Issuing Lender or such Participant
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), then, upon the delivery of the certificate referred to
below to the Borrower by any Issuing Lender or any Participant (a copy of which
certificate shall be sent by such Issuing Lender or such Participant to the
Administrative Agent), the Borrower agrees to pay to such Issuing Lender or
such Participant such additional amount or amounts as will compensate such
Issuing Lender or such Participant for such increased cost or reduction in the
amount receivable or reduction on the rate of return on its capital.  Any Issuing Lender or any Participant, upon
determining that any additional amounts will be payable to it pursuant to this Section 3.06,
will give prompt written notice thereof to the Borrower, which notice shall
include a certificate submitted to the Borrower by such Issuing Lender or such
Participant (a copy of which certificate shall be sent by such Issuing Lender
or such Participant to the Administrative Agent), setting forth in reasonable
detail the basis for the calculation of such additional amount or amounts
necessary to compensate such Issuing Lender or such Participant.  The certificate 


 


66

















 


required to be delivered
pursuant to this Section 3.06 shall, absent manifest error, be final and
conclusive and binding on the Borrower. 
Failure or delay on the part of any Lender to demand compensation
pursuant to this Section 3.06 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 reductions and of such Lender’s intention to claim
compensation therefore; 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.


 


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


 


4.01.        Fees.  (a)  The Borrower agrees to pay to
the Administrative Agent for distribution to each Non-Defaulting RL Lender a
commitment commission (the “Commitment Commission”) for the period from
and including the Effective Date to and including the Revolving Loan Maturity
Date (or such earlier date on which the Total Revolving Loan Commitment has
been terminated) computed at the Applicable Commitment Commission Rate of the
Unutilized Revolving Loan Commitment of such Non-Defaulting RL Lender as in
effect from time to time. Accrued Commitment Commission shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the
Revolving Loan Maturity Date (or such earlier date on which the Total Revolving
Loan Commitment is terminated).


 


(b)           The Borrower agrees to pay to the
Administrative Agent for distribution to each RL Lender (based on each such RL
Lender’s respective RL Percentage) a fee in respect of each Letter of Credit
(the “Letter of Credit Fee”) for the period from and including the date
of issuance of such Letter of Credit to and including the date of termination
or expiration of such Letter of Credit, computed at a rate per annum equal to
the Applicable Margin as in effect from time to time during such period with
respect to Revolving Loans that are maintained as Eurodollar Loans on the daily
Stated Amount of each such Letter of Credit. 
Accrued Letter of Credit Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date, on the date of termination of the Total
Revolving Loan Commitment and on the first day on or after the termination of
the Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.


 


(c)           The Borrower agrees to pay to each
Issuing Lender, for its own account, a facing fee in respect of each Letter of
Credit issued by it (the “Facing Fee”) for the period from and including
the date of issuance of such Letter of Credit to and including the date of
termination or expiration of such Letter of Credit, computed at a rate per
annum equal to 1/8 of 1% on the daily Stated Amount of such Letter of Credit
(or such other amount as agreed to by the Borrower and such Issuing
Lender).  Accrued Facing Fees shall be
due and payable quarterly in arrears on each Quarterly Payment Date, on the
date of termination of the Total Revolving Loan Commitment and upon the first
day on or after the termination of the Total Revolving Loan Commitment upon
which no Letters of Credit remain outstanding.


 


(d)           The Borrower agrees to pay to each
Issuing Lender, for its own account, upon each payment under, issuance of, or
amendment to, any Letter of Credit issued by it, such amount as shall at the
time of such event be the administrative charge and the reasonable 


 


67

















 


expenses which such Issuing Lender is generally
imposing in connection with such occurrence with respect to letters of credit.


 


(e)           The Borrower agrees to pay to the
Administrative Agent and each 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 each Lead Arranger, as the case may be.


 


(f)            The Borrower agrees to pay to the
Administrative Agent for distribution to each Non-Defaulting TL Lender a
ticking fee (the “Ticking Fee”) for the period from and including the
Effective Date to and including the Merger Closing Date (or such earlier date
on which the Total Term Loan Commitment has been terminated) computed at a rate
per annum equal to 3/4 of 1% of the Term Loan Commitment of such Non-Defaulting
TL Lender as in effect from time to time. Accrued Ticking Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the date
upon which the Total Term Loan Commitment is terminated.


 


4.02.        Voluntary Termination of Unutilized
Revolving Loan Commitments.  (a) 
Upon at least three 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 Lenders), the Borrower shall have the right,
at any time or from time to time after the Merger Closing Date, without premium
or penalty to terminate the Total Unutilized Revolving Loan Commitment in whole,
or reduce it in part, pursuant to this Section 4.02(a), in an integral
multiple of $1,000,000 in the case of partial reductions to the Total
Unutilized Revolving Loan Commitment, provided that each such reduction
shall apply proportionately to permanently reduce the Revolving Loan Commitment
of each RL Lender.  Each notice given
pursuant to this Section 4.02(a) shall be irrevocable; provided that
a notice of a termination of the Total Revolving Loan Commitment pursuant to
this Section 4.02(a), given in conjunction with a notice of the prepayment
in full of all Loans pursuant to Section 5.01(a), may state that the
respective notice is conditioned upon the effectiveness of other credit
facilities, 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 shall have the right, subject to obtaining the consents required by Section 14.12(b),
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 Lenders), to terminate the entire Revolving Loan
Commitment of such Lender, so long as all Loans, together with accrued and
unpaid interest, Fees and all other amounts, owing to such Lender (including
all amounts, if any, owing pursuant to Section 2.11 but excluding the
payment of amounts owing in respect of Loans of any Tranche maintained by such
Lender, if such Loans are not being repaid pursuant to Section 14.12(b))
are repaid concurrently with the effectiveness of such termination pursuant to Section 5.01(b) (at
which time Schedule 1.01A shall be deemed modified to reflect such
changed amounts) and such Lender’s RL Percentage of all outstanding Letters of
Credit is cash collateralized in a manner satisfactory to the Administrative
Agent and the respective Issuing Lenders, and at such time, unless the
respective Lender continues to have 


 


68

















 


outstanding Term Loans hereunder, such Lender shall no
longer constitute a “Lender” for purposes of this Agreement, except with
respect to indemnification provisions under this Agreement (including, without
limitation, Sections 2.10, 2.11, 3.06, 5.04, 13.06, 14.01 and 14.06), which
shall survive as to such repaid Lender.


 


4.03.        Mandatory Reduction or Conversion 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
B-1 Term Loan Commitment shall be reduced on each B-1 Term Loan Borrowing Date
(immediately after giving effect to the borrowing of B-1 Term Loans on such
date) by the aggregate principal amount of B-1 Term Loans borrowed on such
date, (y) the Total B-2 Term Loan Commitment shall be reduced on each B-2
Term Loan Borrowing Date (immediately after giving effect to the borrowing of
B-2 Term Loans on such date) by the aggregate principal amount of B-2 Term
Loans borrowed on such date, and (z) the Total Term Loan Commitment (and
the Term Loan Commitments of each Lender) shall terminate in its entirety on
the Merger Closing Date (after giving effect to the incurrence of Term Loans on
such date).


 


(c)           In addition to any other mandatory
commitment reductions pursuant to this Section 4.03, the Total Term Loan
Commitment shall be permanently reduced on the Merger Closing Date (before any
borrowings on such date) in an aggregate amount equal to (x) $5,283,000,000
minus (y) the sum of (i) the aggregate cash consideration used
(or to be used) to effect the Exchange Offer, the termination of the Prior
Merger Agreement, any Top-Off Purchases (if applicable), the Merger, the
Borrower Refinancing and the Target Refinancing or to pay fees and expenses in
connection therewith and (ii) the amount of any commitment reductions on
such date pursuant to following clause (e). 
All reductions to the Total Term Loan Commitment pursuant to this Section 4.03(c) shall
be applied (i) first, to reduce the Total B-2 Term Loan Commitment as then
in effect and (ii) second, to the extent in excess thereof, to reduce the Total
B-1 Term Loan Commitment as then in effect.


 


(d)           In addition to any other mandatory
commitment reductions pursuant to this Section 4.03, the Total Revolving
Loan Commitment (and the Revolving Loan Commitment of each Lender) shall
terminate in its entirety upon the earlier of (i) the Revolving Loan
Maturity Date and (ii) the date on which the Revolving Loan Commitments
are terminated pursuant to Section 12.


 


(e)           In addition to any other mandatory
commitment reductions pursuant to this Section 4.03, the Total Term Loan
Commitment shall be permanently reduced on the Merger Closing Date (before any
borrowings on such date) in an aggregate amount equal to the greater of (i) $0
and (ii) (x) $145,000,000 minus (y) the aggregate
premiums paid (or to be paid) in connection with the purchase or retirement of
Target Existing Notes.  All reductions to
the Total Term Loan Commitment pursuant to this Section 4.03(e) shall
be applied (i) first, to reduce the Total B-2 Term Loan Commitment as then
in effect and (ii) second, to the extent in excess thereof, to reduce the
Total B-1 Term Loan Commitment as then in effect.


 


69

















 


(f)            In addition to any other mandatory
commitment reductions pursuant to this Section 4.03, if on any date on or
after the Effective Date and on or prior to the Merger Closing Date, Holdings
receives any cash proceeds from the sale or issuance of its Equity Interests,
an aggregate amount equal to 100% of the Net Cash Proceeds of such sale or
issuance of Equity Interests shall apply to permanently reduce the Total Term
Loan Commitment as then in effect (and before giving effect to any borrowings
on such date).  All reductions to the
Total Term Loan Commitment pursuant to this Section 4.03(f) shall be
applied (i) first, to reduce the Total B-2 Term Loan Commitment as then in
effect and (ii) second, to the extent in excess thereof, to reduce the
Total B-1 Term Loan Commitment as then in effect.


 


(g)           Each reduction to, or termination of,
the Total B-1 Term Loan Commitment pursuant to this Section 4.03 shall be
applied to proportionately reduce or terminate, as the case may be, the B-1
Term Loan Commitment of each Lender with a B-1 Term Loan Commitment.  Each reduction to, or termination of, the
Total B-2 Term Loan Commitment pursuant to this Section 4.03 shall be
applied to proportionately reduce or terminate, as the case may be, the B-2
Term Loan Commitment of each Lender with a B-2 Term Loan Commitment.


 


(h)           In addition to any other mandatory
commitment reductions pursuant to this Section 4.03, the B-2 Term Loan
Commitment of each Lender shall be automatically converted on the B-1
Conversion Date into a B-1 Term Loan Commitment of such Lender hereunder in an
amount equal to the then remaining B-2 Term Loan Commitment of such Lender on
such date and the B-2 Term Loan Commitment of each Lender shall terminate.


 


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 (x) at least one Business Day’s prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Base
Rate Loans (or same day notice in the case of a prepayment of Swingline Loans)
and (y) at least three Business Days’ prior written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay Eurodollar Loans,
which notice (in each case) shall specify whether B-1 Term Loans, B-2 Term
Loans, Revolving Loans or Swingline Loans shall be prepaid, the amount of such
prepayment and the Types of Loans to be prepaid and, in the case of Eurodollar
Loans, the specific Borrowing or Borrowings pursuant to which such Eurodollar
Loans were made, and which notice the Administrative Agent shall, except in the
case of a prepayment of Swingline Loans, promptly transmit to each of the
Lenders; (ii) (x) each partial prepayment of Term 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), (y) each partial prepayment of Revolving Loans
pursuant to this Section 5.01(a) shall be in an aggregate principal
amount of at least $500,000 (or such lesser amount as is acceptable to the
Administrative Agent) and (z) each partial prepayment of Swingline Loans
pursuant to this Section 5.01(a) shall be in an aggregate principal
amount of at least $100,000 (or such lesser amount as is acceptable to the
Administrative Agent in any given case), provided that if any partial
prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding principal amount of Eurodollar Loans made pursuant to such
Borrowing to an 


 


70

















 


amount less than the
Minimum Borrowing Amount applicable thereto, then such Borrowing may not be
continued as a Borrowing of Eurodollar Loans (and same shall automatically be
converted into a Borrowing of Base Rate Loans at the end of the Interest Period
then applicable thereto unless otherwise repaid at or prior to the end of the
Interest Period then in effect) and any election of an Interest Period with
respect thereto given by the Borrower shall have no force or effect; (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, provided that at the Borrower’s election in connection with any
prepayment of Revolving Loans pursuant to this Section 5.01(a), such
prepayment shall not, so long as no Default or Event of Default then exists, be
applied to any Revolving Loan of a Defaulting Lender; (iv) each prepayment
of Term Loans pursuant to this Section 5.01(a) shall be applied to
the then outstanding Term Loans on a pro  rata basis; provided
that if any voluntary repayment of Term Loans is made before the B-1 Conversion
Date with the Net Cash Proceeds of one or more issuances of Equity Interests by
Holdings, then such voluntary prepayment shall be applied (A) first, to
then outstanding B-2 Term Loans until same are repaid in full and (B) second,
to the extent in excess thereof, to then outstanding B-1 Term Loans; and (v) each
prepayment of Term Loans pursuant to this Section 5.01(a) shall be
applied to reduce any Scheduled Term Loan Repayment (or any combination of
Scheduled Term Loan Repayments), in each case in aggregate amount equal to the
principal amount of the respective prepayment of Term Loans, at the direction
of the Borrower in its sole discretion; provided that any amount applied
to the prepayment of B-2 Term Loans pursuant to the proviso to preceding clause
(iv) shall be applied to reduce the then remaining Scheduled Term Loan
Repayments on a pro  rata basis (based upon the then remaining
principal amount of each such Scheduled Term Loan Repayment after giving effect
to all prior reductions thereto). 
Notwithstanding anything to the contrary contained herein, voluntary
prepayments of Term Loans may not be made on or prior to the Merger Closing
Date without the prior written consent of the Lead Arrangers and the Bridge
Lead Arranger.  Each notice given
pursuant to this Section 5.01(a) shall be irrevocable; provided that
a notice of the prepayment in full of all Loans pursuant to Section 5.01(a),
given in conjunction with a notice of the termination of the Total Revolving
Loan Commitment pursuant to Section 4.02(a), or a notice of prepayment of
Term 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 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 (or owing to such Lender with respect to each Tranche
which gave rise to the need to obtain such Lender’s individual consent) in
accordance with, and subject to the requirements of, said Section 14.12(b),
so long as (A) in the case of the repayment of Revolving Loans of any
Lender pursuant to this clause (b), (x) the Revolving Loan Commitment of
such Lender is terminated concurrently with such repayment pursuant to Section 4.02(b) (at
which time Schedule 1.01A shall be deemed modified to reflect the
changed Revolving Loan 


 


71

















 


Commitments) and (y) such Lender’s RL Percentage
of all outstanding Letters of Credit is cash collateralized in a manner
satisfactory to the Administrative Agent and the respective Issuing Lenders and
(B) the consents, if any, required by Section 14.12(b) in
connection with the repayment pursuant to this clause (b) shall have been
obtained.  Each prepayment of Term Loans
pursuant to this Section 5.01(b) shall reduce the then remaining
Scheduled Term Loan Repayments of the Term Loans on a pro  rata
basis (based upon the then remaining principal amount of each such Scheduled
Term Loan Repayment of the respective Tranche after giving effect to all prior
reductions thereto).


 


5.02.        Mandatory Repayments.  (a) On any day on which the sum of (I) the
aggregate outstanding principal amount of all Revolving Loans (after giving
effect to all other repayments thereof on such date), (II) the aggregate
outstanding principal amount of all Swingline Loans (after giving effect to all
other repayments thereof on such date) and (III) the aggregate amount of
all Letter of Credit Outstandings, exceeds the Total Revolving Loan Commitment
at such time, the Borrower shall prepay on such day the principal of Swingline
Loans and, after all Swingline Loans have been repaid in full or if no
Swingline Loans are outstanding, Revolving Loans, in an amount equal to such
excess.  If, after giving effect to the
prepayment of all outstanding Swingline Loans and Revolving Loans, the
aggregate amount of the Letter of Credit Outstandings exceeds the Total
Revolving Loan Commitment at such time, the Borrower shall pay to the
Administrative Agent at the Payment Office on such day an amount of cash and/or
Permitted Investments equal to the amount of such excess (up to a maximum
amount equal to the Letter of Credit Outstandings at such time), such cash
and/or Permitted Investments to be held as security for all Obligations of the
Borrower to the Issuing Lenders and the Lenders hereunder in a cash collateral
account to be established by the Administrative Agent.


 


(b)           In addition to any other mandatory
repayments pursuant to this Section 5.02, (x) on each Quarterly
Payment Date, beginning with the Quarterly Payment Date occurring in September,
2010, the Borrower shall be required to repay that principal amount of Term
Loans, to the extent then outstanding, as is equal to 1⁄4 of 1% of the aggregate
initial principal amounts of all Term Loans theretofore borrowed by the
Borrower pursuant to Section 2.01 of this Agreement (without double
counting any B-2 Term Loans converted into B-1 Term Loans), and (y) on the
Term Loan Maturity Date (with the Term Loan Maturity Date and each Quarterly
Payment Date described in preceding clause (x), each a “Scheduled Term Loan
Repayment Date”), the Borrower shall be required to repay in full the
entire principal amount of Term Loans then outstanding (with each such
repayment pursuant to this Section 5.02(b), as the same may be reduced as
provided in Section 5.01(a), 5.01(b) or 5.02(h), a “Scheduled Term
Loan Repayment”).  All repayments
pursuant to this clause (b) shall be applied to repay outstanding B-1 Term
Loans, as all theretofore outstanding B-2 Term Loans shall have been required
to be converted into B-1 Term Loans in accordance with Section 2.01 hereof
prior to the initial Scheduled Term Loan Repayment Date.


 


(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 Indebtedness incurred pursuant to
clause (B) of Section 11.01(i) shall 


 


72

















 


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 Sections 5.02(g) and (h).


 


(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 Sections 5.02(g) and (h); 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.


 


(e)           In addition to any other mandatory
repayments pursuant to this Section 5.02, on each Excess Cash Payment
Date, an amount equal to 50% of the Excess Cash Flow for the related Excess
Cash Payment Period shall be applied as a mandatory repayment in accordance
with the requirements of Sections 5.02(g) and (h); provided, however,
so long as no Event of Default then exists and if the Total Leverage Ratio as
of the last day of the respective Excess Cash Payment Period is less than or
equal to 1.25:1.00 (but greater than 0.75:1.00), the foregoing percentage shall
be reduced to 25% for the respective Excess Cash Payment Period; provided
further that so long as no Event of Default then exists and is continuing
and if the Total Leverage Ratio as of the last day of the respective Excess
Cash Payment Period is less than or equal to 0.75:1.00, the foregoing
percentage shall be reduced to 0% for the respective Excess Cash Payment
Period.


 


(f)            In addition to any other mandatory
repayments pursuant to this Section 5.02, on each date on or after the
Effective Date and on or prior to the Merger Closing 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 Sections 5.02(g) and
(h).


 


(g)           Each amount required to be applied
pursuant to Sections 5.02(c), (d), (e) 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 B-2 Term Loan Commitment, (ii) second, if on or prior to the
Merger Closing Date, and if the Total B-2 Term Loan Commitment has been
terminated, to reduce (on a dollar for dollar basis) the Total B-1 Term Loan
Commitment, (iii) third, to the extent in excess of the amounts
required to be applied pursuant to the preceding clauses (i) and (ii), to
repay the outstanding principal amount of Term Loans and (iv) fourth,
to the extent in excess of the amounts required to be applied pursuant to
preceding clauses (i) through (iii), inclusive, to repay the outstanding
principal amount of 


 


73

















 


Revolving Loans and/or Swingline Loans (to the extent
then outstanding).  The amount of each
principal repayment of outstanding principal of Term Loans made as required by
Sections 5.02(c), (d), (e) and (f) shall be applied (i) pro rata to the then outstanding
Term Loans of the Lenders; provided that any payments required pursuant to Section 5.02(c) and
(f) prior to the B-1 Conversion Date shall be required to be applied (x) first,
to then outstanding principal of B-2 Term Loans until they are paid in full and
(y) second, to the extent in excess thereof, to repay then outstanding
principal of B-1 Term Loans, and (ii) to reduce the then remaining Scheduled Term Loan
Repayments on a pro  rata basis (based upon the then remaining
principal amounts of the Scheduled Term Loan Repayments after giving effect to
all prior reductions thereto). 
Notwithstanding the foregoing priorities, with respect to not more than
$200,000,000 aggregate principal amount of Permitted Refinancing Indebtedness
incurred pursuant to Section 11.01(i)(B), the Lead Arrangers may (in their
sole discretion) at the request of the Borrower allow the utilization of same
as contemplated by clause (y) of the proviso to Section 11.01(i) before
requiring that such amounts be applied as otherwise required pursuant to the
two preceding sentences of this Section 5.02(g).


 


(h)           All repayments of the Loans of a
given Tranche required by this Section 5.02 shall be made on a pro  rata
basis to the Lenders of such Tranche of Loans (based upon their respective
relative outstanding principal amounts of such Loans).  With respect to each repayment of Loans
required by this Section 5.02, the Borrower may designate the Types of
Loans of the respective Tranche which are to be repaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings of the respective
Tranche pursuant to which such Eurodollar Loans were made, provided
that:  (i) repayments of Eurodollar
Loans pursuant to this Section 5.02 may only be made on the last day of an
Interest Period applicable thereto unless all Eurodollar Loans of the respective
Tranche with Interest Periods ending on such date of required repayment and all
Base Rate Loans of the respective Tranche have been paid in full; (ii) if
any repayment of Eurodollar Loans made pursuant to a single Borrowing shall
reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount applicable thereto, such
Borrowing shall be automatically converted into a Borrowing of Base Rate Loans
on the last day of the Interest Period then applicable thereto unless otherwise
repaid at or prior to the end of the Interest Period then in effect; and (iii) each
repayment of any Loans made pursuant to a Borrowing shall be applied pro
rata among such Loans.  In the
absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its sole discretion.


 


(i)            In addition to any other mandatory
repayments pursuant to this Section 5.02, (i) all then outstanding
Loans of a respective Tranche (other than Swingline Loans) shall be repaid in
full on the respective Maturity Date for such Tranche of Loans, (ii) outstanding
Swingline Loans shall be repaid in full on the earlier of (x) the
tenth Business Day following the date of the incurrence of such Swingline Loans
(unless otherwise agreed by the Swingline Lender) and (y) the Swingline
Expiry Date and (iii) all
then outstanding Loans shall be repaid in full on the date on which the
repayment of the Loans is accelerated pursuant to Section 12.


 


(j)            If any RL
Lender becomes a Defaulting Lender at any time that any Letter of Credit issued
by any Issuing Lender is outstanding, the Borrower shall enter into the 


 


74

















 


applicable
Letter of Credit Back-Stop Arrangements with such Issuing Lender no later than
10 Business Days after the date such RL Lender becomes a Defaulting Lender.


 


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 Credit 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 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


 


75
















 


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, (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 


 


76

















 


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
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 Credit 


 


77

















 


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,
and the obligation of each Issuing Lender to issue Letters of Credit, on the
Initial Borrowing Date, is subject at the time of the making of such Loans or
the issuance of such Letters of Credit 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 Term Loans (in amounts determined by it and
consistent with the provisions of this Agreement) on the Initial Borrowing Date
(together with any Revolving Loans, Swingline Loans and/or Letters of Credit
requested by it on such date), and the Administrative Agent shall have received
the appropriate Notices of Borrowing, Swingline Loan notices and/or Letter of
Credit Requests, meeting the relevant requirements of Section 2.03(a),
2.03(b)(i) and/or 3.03(a), as appropriate, and (iii) the appropriate
Notes executed by the Borrower shall have been delivered to the Administrative
Agent for the account of each Lender or Swingline Lender that has requested a
Note, in each case in the amount, maturity and as otherwise provided herein.


 


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 Term 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, 


 


78

















 


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 Bridge Loan
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
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
Credit 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



 


79

















 


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 hereunder.


 


(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, (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 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 each of the Total B-1
Term Loan Commitment (after the reductions thereto on the Initial Borrowing
Date), the Total B-2 Term Loan Commitment (after the reductions thereto on the
Initial Borrowing Date) and the 


 


80

















 


unutilized commitments
under the Bridge Loan Agreement (after giving effect to any reductions thereto
on the Initial Borrowing Date) shall equal or exceed the B-1 Blocked Amount,
the B-2 Blocked Amount and the Bridge Loan 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 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 


 


81

















 


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 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 FR
G-3, as applicable, showing that Loans may be extended by the Lenders in an
amount equal to the sum of the Total Term Loan Commitment and the Total
Revolving Loan Commitment (each as in effect before any extensions of credit on
such date) and that Bridge Loans may be extended under the Bridge Loan
Agreement in an amount equal to the total commitments thereunder, and that said
Loans (and Bridge Loans, together with any Permitted Second Lien Notes actually
issued) 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 Lenders
in an amount equal to the sum of the aggregate principal amount of Term Loans
then being incurred and the Aggregate R/C Exposure after giving effect to all
extensions of credit on such date, and that said Loans and extensions of credit
shall (when added to the aggregate principal amount of Bridge Loans and any
then outstanding Permitted Second Lien Notes 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 Arrangers and the Lenders.


 


82

















 


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 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.        Bridge Facility/Permitted Notes.  Unless $1,750,000,000 of gross cash proceeds
shall have been received pursuant to the issuance of Permitted Notes on or
prior to the Initial Borrowing Date, the Bridge Loan 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 $1,750,000,000 less the
principal amount of any Permitted Notes theretofore issued (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 Bridge Agent (for and on behalf of the Bridge Secured Creditors) (and the
trustee for any issue of Permitted Second Lien Notes then outstanding) 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 


 


83

















 


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 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;


 


84

















 


(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
Credit Documents, (i) the provisions of this Section 6 shall be
subject to the last three paragraphs of Section 8 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 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 and On or Prior to the Merger Closing Date. 
The obligation of each Lender to make Loans (other than pursuant to any
B-1 Conversion or Mandatory Borrowings), and the obligation of each Issuing Lender
to issue Letters of Credit, 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 Term Loans shall
have occurred on the Initial Borrowing Date pursuant to the terms of this
Agreement.


 


7.02.        Notice of Borrowing; Letter of Credit
Request.  (a)  Prior to the
making of each Loan (other than a Swingline Loan or a Revolving Loan made
pursuant to a Mandatory Borrowing), the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 2.03(a).  Prior to the making of each Swingline Loan,
the Swingline Lender shall have received the Swingline Loan notice referred to
in Section 2.03(b)(i).


 


85
















 


(b)           Prior to the issuance of each Letter
of Credit, the Administrative Agent and the respective Issuing Lender shall
have received a Letter of Credit Request meeting the requirements of Section 3.03(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 Credit Events to
occur 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 relating to the Borrowing of a Term Loan
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 Term 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
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 


 


86

















 


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 Bridge Loan
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 Arrangers.


 


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 Term Loans which will
be outstanding after giving effect to all Credit Events on such date, (y) the
Aggregate R/C Exposure after giving effect to all Credit Events on such date
and (z) the aggregate principal amount of all Bridge Loans (and any
Permitted Second Lien Notes) which will be outstanding after giving effect to
any additional borrowings thereof 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 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 none of the Total B-1 Term Loan Commitment (after any
reductions thereto on such date), the Total B-2 Term Loan Commitment (after any
reductions thereto on such date), or the unutilized commitments under the
Bridge Loan Agreement after giving effect to any reductions thereto on such
date shall equal or exceed the B-1 Blocked Amount, the B-2 Blocked Amount or
the Bridge Loan Blocked Amount, as the case may be.


 


Notwithstanding anything
to the contrary contained above or elsewhere in this Agreement or any other
Credit Documents, the provisions of this Section 7 shall be subject to the
last three paragraphs of Section 8 hereof.


 


SECTION 8.           Conditions Precedent to Credit Events
After the Merger Closing Date.  The
obligation of each Lender to make Loans (other than pursuant to any B-1
Conversion or Mandatory Borrowings) after the Merger Closing Date, and the
obligation of each Issuing 


 


87

















 


Lender to issue Letters
of Credit after the Merger Closing Date, is subject, at the time of each such
Credit Event, to the satisfaction of the following conditions:


 


8.01.        Consummation of the Merger.  The Merger shall have been consummated in
accordance with applicable law and the requirements described in Section 7.04
above.


 


8.02.        Notice of Borrowing; Letter of Credit
Request.  (a)  Prior to the
making of each Loan (other than a Swingline Loan or a Revolving Loan made
pursuant to a Mandatory Borrowing), the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 2.03(a).  Prior to the making of each Swingline Loan,
the Swingline Lender shall have received the Swingline Loan notice referred to
in Section 2.03(b)(i).


 


(b)           Prior to the issuance of each Letter
of Credit, the Administrative Agent and the respective Issuing Lender shall
have received a Letter of Credit Request meeting the requirements of Section 3.03(a).


 


8.03.        Representations and Warranties.  At the time of each such Credit Event and
also after giving effect thereto all representations and warranties contained
herein and in the other Credit Documents 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 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
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).


 


8.04.        No Default.  At the time of each such Credit Event and
also after giving effect thereto there shall exist no Default or Event of
Default.


 


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), Section 7 (with respect to Credit Events after the Initial
Borrowing Date and on or prior to the Merger Closing Date), and in this Section 8
(with respect to Credit Events after the Merger Closing Date) and applicable to
such Credit Event are (to the extent required to be satisfied at such time)
satisfied as of that time.  All of the
Notes, certificates, legal opinions and other documents and papers referred to
in Section 6, Section 7, and in this Section 8, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office.


 


Upon the Administrative Agent’s good faith
determination that the conditions specified in Section 6, Section 7,
or in this Section 8, as the case may be, have been met or duly waived,
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, 7 or 8, as the case may be).


 


88

















 


Notwithstanding anything to the contrary contained in Section 6,
Section 7, or in this Section 8 or elsewhere in this Agreement or any
other Credit Documents, the Borrower shall not request, or incur, any borrowing
of Term Loans (except for a borrowing of B-1 Term Loans in the amount of
$100,000,000 on the Initial Borrowing Date) at a time when there are (and would
otherwise remain after any concurrent borrowing of Bridge Loans) undrawn
commitments pursuant to the Bridge Loan Agreement (without giving effect to any
required termination of undrawn commitments on the Merger Closing Date), with
the Borrower hereby agreeing that such amounts instead be borrowed as Bridge
Loans pursuant to the Bridge Loan Agreement.


 


SECTION 9.           Representations, Warranties and Agreements. 
In order to induce the Administrative Agent, the Lenders and the Issuing
Lender to enter into this Agreement and to make Loans, and issue (or
participate in) the Letters of Credit as provided herein, 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 and the issuance of the Letters of Credit, 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 required, stockholder action. 
This Agreement has been, and each other Credit Document when delivered
hereunder will be, duly executed and delivered by each Credit Party thereto.
This Agreement constitutes, and each other Credit 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 


 


89

















 


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 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)           In the case of representations and
warranties made after the Merger Closing Date only, since December 31,
2009, but for this purpose treating the Transaction as if same had been
consummated prior thereto, there has been no change in the business, assets,
operations or financial condition of Holdings and its Subsidiaries, taken as a
whole, which could reasonably be expected to have a Material Adverse Effect.


 


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


 


9.05.        Properties.  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 


 


90

















 


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, 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.


 


91

















 


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) 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.


 


92

















 


9.14.        Reportable Transaction.  The Borrower does not intend to treat the
Borrowings or issuances of Letters of Credit 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 and Letters of Credit.  (a) 
All proceeds of the Term 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.


 


(b)           All proceeds of the Revolving Loans
and the Swingline Loans will be used for the working capital and general
corporate purposes of the Borrower and its Subsidiaries; provided that (x) proceeds
of Revolving Loans and Swingline Loans may not be used, in an aggregate amount
in excess of $100,000,000, for the purposes described in Section 9.18(a) and
(y) the proceeds of Swingline Loans shall not be used to refinance then
outstanding Swingline Loans.


 


93

















 


(c)           Letters of Credit will be issued only
to support the working capital needs and other general corporate purposes of
the Credit Parties, their respective Subsidiaries and, subject to the limits
specified in the definition of L/C Supportable Obligations, Terra Nitrogen not
in contravention of the Credit Agreement.


 


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).


 


94

















 


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 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 and all Letters of
Credit have terminated and the Loans, Notes and Unpaid Drawings (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


 


95
















 


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;


 


(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 


 


96

















 


under Section 5.02(e) 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 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 


 


97

















 


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.


 


The Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Lead Arrangers 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 Arrangers 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 Arrangers 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 either 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;


 


98

















 


(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 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 


 


99

















 


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.


 


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.


 


100

















 


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 and Letters of Credit  (a) 
All proceeds of the Term 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.


 


(b)                                 All proceeds of the Revolving Loans and
the Swingline Loans will be used for the working capital and general corporate
purposes of the Borrower and its Subsidiaries; provided that (x) proceeds
of Revolving Loans and Swingline Loans may not be used, in an aggregate amount
in excess of $100,000,000 (except to the extent a higher amount is agreed by
the Lead Arrangers), for the purposes described in Section 10.08(a) and
(y) the proceeds of Swingline Loans shall not be used to refinance then
outstanding Swingline Loans.


 


(c)                                  Letters of Credit will be issued only to
support the working capital needs and other general corporate purposes of the
Credit Parties and their Subsidiaries not in contravention of the Credit
Agreement.


 


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 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 


 


101

















 


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 Credit 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).


 


(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 first priority perfected Lien in favor of the Administrative
Agent pursuant to the terms and conditions of the Credit 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.  If (and only if) the Qualified
Equity Trigger Date does not occur on or prior to September 30, 2010, then
by November 30, 2010 (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), the Borrower and its Subsidiaries which are Credit
Parties (as required by preceding clause (a)) shall be required to grant
Mortgages with respect to each Original Mortgage Tax State Property and, in
connection therewith, shall take all the actions specified in Section 6.18
as would have 


 


102

















 


been required if the respective Original Mortgage Tax State Property
were an Original Mortgaged Property.


 


(d)                                 Holdings will, and will cause each other
Credit Party to, grant to the Collateral Agent for the benefit of the Secured
Creditors security interests and Mortgages in such Owned Real Property
(excluding the Original Mortgage Tax State Properties, which are subject to
preceding clause (c)) of Holdings and such other Credit Party as are not
covered by the original Security Documents (or otherwise covered by the actions
taken as required in preceding clauses (a) through (c)) and as may be
reasonably requested from time to time by the Administrative Agent or the
Required Lenders (collectively, the “Additional Security Documents”).  All such security interests and Mortgages
shall be granted pursuant to documentation reasonably satisfactory in form and
substance to the Collateral Agent and shall constitute valid and enforceable
perfected security interests, hypothecations and Mortgages superior to and
prior to the rights of all third Persons and enforceable against third parties
and subject to no other Liens except for Permitted Liens or, in the case of
Owned Real Property, the Permitted Encumbrances related thereto.  The Additional Security Documents or
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish and perfect the
Liens in favor of the Collateral Agent required to be granted pursuant to the
Additional Security Documents and all taxes, fees and other charges payable in
connection therewith shall have been paid in full.  Notwithstanding the foregoing, this Section 10.10(d) shall
not apply to (and Holdings and its Subsidiaries shall not be required to grant
a Mortgage in) any Owned Real Property the fair market value (as reasonably
estimated by the Borrower) or book value (whichever is higher) of which is less
than $30,000,000, except that if the aggregate fair market value or book value
(whichever is higher) of all Owned Real Property of the Credit Parties which
are not subject to Mortgages (exclusive of the Original Mortgage Tax State
Properties) is greater than $500,000,000, then the Credit Parties shall be
required to grant Mortgages in such Owned Real Properties as may be requested by
the Administrative Agent or the Required Lenders so that the aggregate value of
the non-mortgaged Owned Real Properties described above does not exceed
$500,000,000.  Furthermore, with respect
to any Owned Real Property in a Mortgage Tax State which is acquired by
Holdings or a Subsidiary thereof which is a Credit Party after the Initial
Borrowing Date and with respect to which a Mortgage would otherwise be required
to be granted above, the Administrative Agent may, in its sole discretion,
agree that a Mortgage on such Owned Real Property shall not be required if the
Administrative Agent determines that the cost of obtaining the respective
Mortgage exceeds the benefits of the security interests in the respective Owned
Real Property (given the other Collateral at such time for the Obligations).


 


(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 


 


103

















 


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.


 


(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)                                 Within 60 days after any request by the
Administrative Agent or the Required Lenders (or such later date as may be
agreed by the Administrative Agent), with respect to any Equity Interests in
one or more Persons organized under the laws of a non-U.S. jurisdiction which
have been pledged pursuant to the Guaranty and Collateral Agreement, if the
Administrative Agent or Required Lenders reasonably determine (based on advice
of local counsel and to the extent legally permitted by the relevant applicable
foreign law) that it would be in the interests of the Secured Creditors that
the respective Credit Party or Credit Parties which own such Equity Interests
authorize, execute and deliver one or more additional pledge agreements
governed by the laws of the jurisdiction or jurisdictions in which the Person
or Persons whose Equity Interests are being pledged is (or are) organized, then
the respective Credit Party or Credit Parties shall, subject to local law
limitations, (i) so authorize, execute and deliver one or more such
additional pledge agreements (each, as amended, modified, restated and/or
supplemented from time to time, a “Foreign Pledge Agreement” and, collectively,
the “Foreign Pledge Agreements”) and (ii) take such reasonable
actions as may be necessary or desirable under local law (as advised by local
counsel) to create, maintain, effect, perfect, preserve, maintain and protect
the security interests granted (or purported to be granted) by each such
Foreign Pledge Agreement.  Each Foreign
Pledge Agreement shall (i) be prepared by local counsel reasonably
satisfactory to the Administrative Agent and (ii) be in form and substance
reasonably satisfactory to the Administrative Agent, 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 Credit 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 


 


104

















 


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, 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) and (y) 60 days after the
Initial Borrowing Date in the case of actions required to be taken pursuant to 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.


 


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


 


105
















 


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


 


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


 


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 and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings (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)            Indebtedness (A) incurred
pursuant to this Agreement and the other Credit Documents and (B) Permitted
Refinancing Indebtedness incurred with respect to indebtedness theretofore
outstanding pursuant to this clause (i); provided that (x) Permitted
Refinancing Indebtedness incurred pursuant to this clause (i)(B) may only
be pursuant to one or more issues of Permitted Second Lien Notes or Permitted
Unsecured Notes and (y) if any such Permitted Refinancing Indebtedness is
incurred in respect of Revolving Loan Commitments or outstandings pursuant
thereto (which shall only be permitted in accordance with the repayment
priorities pursuant to Section 5.02(g)), there shall be required to be a
permanent reduction to the Total Revolving Loan Commitment in an amount equal
to the respective Permitted Refinancing Indebtedness (in which case Revolving
Loans or Swingline Loans then outstanding pursuant to the Revolving Loan
Commitments shall be required to be repaid with such amounts only to the extent
then outstanding);


 


(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 the Bridge Loan 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 termination of the Prior Merger
Agreement, the Exchange Offer, the Borrower Refinancing, the Target Refinancing
and/or Top-Off Purchases (if any) and to pay fees and expenses incurred 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 


 


106

















 


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;


 


(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 


 


107

















 


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 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 (ii), (v) and (xv)
hereof;


 


(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 


 


108

















 


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 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 


 


109

















 


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;


 


(xxvii)      after the Merger Closing Date and the
repayment in full of all Bridge Loans (for this purpose, determined without
regard to the proviso to the definition thereof), unsecured Indebtedness
incurred by Holdings or the Borrower (and which may be Guaranteed by one or
more other Credit Parties) so long as (x) all Net Cash Proceeds therefrom
are used substantially contemporaneously with the issuance thereof to finance
one or more Acquisitions by the Borrower or one or more Wholly-Owned
Subsidiaries thereof which are Credit Parties (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)”), (y) immediately after giving
effect thereto (and the respective Acquisition), for the Test Period most
recently ended for which financial statements have been (or were required to
be) furnished to the Administrative Agent pursuant to Section 10.01(a) or
(b), Holdings would be in compliance on a Pro Forma Basis with the covenants
contained in Sections 11.11 and 11.12 (for this purpose, using the levels
provided for September 30, 2010 for all periods prior to 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), and (z) no
Default or Event of Default shall exist after giving effect to the respective
issuance of Indebtedness or the respective Acquisition or Acquisitions to be
effected with the proceeds thereof;


 


(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 


 


110

















 


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 Bridge Loans (for this purpose, determined without regard to the
proviso to the definition thereof); 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)(A) and obligations pursuant to Interest
Rate Protection Agreements and Other Hedging Agreements which are secured pursuant
to the Security Documents, 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
Sections 11.01(i)(B) and (ii), and Permitted Refinancing Indebtedness
incurred in respect thereof (or in respect of Permitted Refinancing
Indebtedness originally incurred in respect thereof or a previous refinancing
thereof) pursuant to Section 11.01(xv).


 


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 Collateral securing Permitted Second Lien Notes
permitted to be outstanding pursuant Section 11.01(i)(B), Indebtedness
permitted to be outstanding 


 


111

















 


pursuant to Section 11.01(ii) (excluding
any issuances of Permitted Unsecured Notes), or securing any Permitted
Refinancing Indebtedness (including successive issues of such Permitted
Refinancing Indebtedness) in respect of the foregoing (to the extent permitted
to be so secured in accordance with the definition of Permitted Refinancing
Indebtedness), in each case so long as (i) such Indebtedness is secured by
the Collateral on a junior priority basis to the Liens created by the Security
Documents, and (ii) the Lenders of the respective Indebtedness (or the
respective agent or trustee on their behalf) has entered into the Intercreditor
Agreement (including by way of joinder thereto) and is subject to the terms and
provisions thereof;


 


(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;


 


(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; 


 


112

















 


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;


 


(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;


 


113

















 


(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 Total Unutilized Revolving
Loan Commitments 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, 


 


114

















 


N.A.; provided that such Lien shall
only be permitted for 90 days from the Effective Date (or such longer period as
agreed to by the Administrative Agent in its sole discretion).


 


Notwithstanding the
foregoing, with respect to Liens permitted pursuant to preceding clause (ii),
to the extent the Collateral hereunder consists of a Mortgaged Property located
in a Mortgage Tax State, Liens on such Mortgaged Property pursuant to clause (ii) of
this Section 11.02 shall not be permitted at any time when the amount of
obligations secured thereby is less than the aggregate amount of then
outstanding Secured Obligations (which is expected to be the case because of
the costs imposed by the respective Mortgage Tax State).  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 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


 


115
















 


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 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 


 


116

















 


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:


 


(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) 


 


117

















 


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 (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-


 


118

















 


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);


 


(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 


 


119

















 


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;


 


(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;


 


120

















 


(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
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:


 


121

















 


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


 


122

















 


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


 


123

















 


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 Credit 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 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 


 


124

















 


hereunder, (iv) the foregoing shall not apply to restrictions and
conditions imposed under any agreement evidencing Specified Indebtedness
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.      Prepayments, Commitment Reductions and
Amendments of Specified Indebtedness. 
(a)  No Credit Party shall, or shall permit any of its
Subsidiaries to, directly or indirectly, voluntarily purchase, redeem, defease
or prepay any principal of, premium, if any, interest or other amount payable
in respect of Indebtedness incurred or which at any time was permitted to be
outstanding pursuant to Section 11.01(i)(B), Section 11.01(ii) or
constituting Permitted Refinancing Indebtedness incurred in respect of the
foregoing (or incurred in respect of a previous issue of Permitted Refinancing
Indebtedness which is justified on the basis of refinancing such Indebtedness
under Section 11.01(i)(B) or 11.01(ii) or a previous issue of
Refinancing Indebtedness in relating thereto) (all such Indebtedness, the “Specified
Indebtedness”) at any time prior to its scheduled maturity or required
repayment thereof, except that Specified Indebtedness may be repaid with (x) proceeds
of Permitted Refinancing Indebtedness permitted to be incurred hereunder in
respect thereof and (y) proceeds of equity securities or equity-linked
securities issued by Holdings.


 


(b)           Prior to the Merger Closing Date,
Holdings and the Borrower shall not make, or permit to be made, any voluntary
reduction to the commitments pursuant to the Bridge Loan Agreement unless same
is agreed to by the Lead Arrangers.


 


125
















 


(c)           No Credit Party shall make any
amendment or modification to any indenture, note or other agreement evidencing
or governing any Specified Indebtedness if such amendment or modification, if
same were contained in an indenture, note or other agreement evidencing
Indebtedness incurred to refinance same (when compared to the terms of the
Specified Indebtedness before giving effect to such amendment or modification)
would cause the respective Refinancing Indebtedness to fail to qualify as
Permitted Refinancing Indebtedness in accordance with the definition thereof
contained herein.


 


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:


 


	
  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 


 


126

















 


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.


 


(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

  	
   

  



 


127

















 


	
   

  	
   

  	
  Minimum Required Ratio

  	
   

  
	
  Fiscal Quarter Ending

  	
   

  	
  A

  	
   

  	
  B

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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

  	
   

  
	
  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

  	
   

  



 


128

















 


	
   

  	
   

  	
  Maximum Permitted Ratio

  	
   

  
	
  Fiscal Quarter Ending

  	
   

  	
  A

  	
   

  	
  B

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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
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 


 


129

















 


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
or any reimbursement obligation in respect of any Drawing 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;


 


(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 Credit 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
Credit 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
Credit 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);


 


130

















 


(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 the Bridge Loans in accordance with the terms of the
Bridge Loan Documents (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, 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 


 


131

















 


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 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 Credit 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 Credit
Document) (or any Credit Party shall challenge the enforceability of any Credit
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 Credit
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 


 


132

















 


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, (i) require the Borrower to cash
collateralize all outstanding Letters of Credit and (ii) exercise any
rights and remedies provided to the Administrative Agent under the Credit
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 Arrangers;
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 Credit 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 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 Credit 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 Credit 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 Credit 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 Credit Document a fiduciary relationship in respect
of any Lender or the holder of any Note; and nothing in this Agreement or in
any other Credit Document, expressed or implied, is intended to or shall be so
construed as to impose upon the 


 


133

















 


Administrative Agent any obligations in respect of this Agreement or
any other Credit Document except as expressly set forth herein or therein.


 


(b)           Notwithstanding any other provision
of this Agreement or any provision of any other Credit Document, each Lead
Arranger, the Global Coordinator, each Revolving Loan Lead Arranger and each
Documentation Agent are 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 Credit Documents or the
transactions contemplated hereby and thereby; it being understood and agreed
that each Lead Arranger, the Global Coordinator, each Revolving Loan Lead
Arranger and each Documentation Agent 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, each
Lead Arranger, the Global Coordinator, each Revolving Loan Lead Arranger and
each Documentation Agent shall not, solely by reason of this Agreement or any
other Credit 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,
perfection, collectability, priority or sufficiency of this Agreement or any
other Credit 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 Credit 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 Credit 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 Credit Document in accordance with the instructions of the Required
Lenders.


 


134

















 


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 Credit 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 Credit Document or in any way relating to or
arising out of this Agreement or any other Credit 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, or issue or participate in Letters of Credit,
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,” “Majority Lenders,” “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 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


 


135
















 


under the other Credit
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 an Issuing Lender and the Swingline Lender,
in which case the resigning Administrative Agent (x) 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, (y) shall not be required to issue any
further Letters of Credit or make any additional Swingline Loans hereunder and (z) shall
maintain all of its rights as Issuing Lender or Swingline Lender, as the case
may be, with respect to any Letters of Credit issued by it, or Swingline Loans
made by it, prior to the date of such resignation.  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.


 


(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 Credit 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 Credit Documents and the provisions of this Section 13 (and the
analogous provisions of the other Credit 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) 


 


136

















 


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 Credit 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 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 Credit Document except as specifically provided in this
Agreement or any other Credit Document.


 


137

















 


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 Arrangers (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 Credit Documents and the
documents and instruments referred to herein and therein and any amendment,
waiver or consent relating hereto or thereto, of the Administrative Agent, the
Lead Arrangers and their respective Affiliates in connection with its or their
syndication efforts with respect to this Agreement and of the Administrative
Agent, of each Issuing Lender and the Swingline Lender in connection with the
Back-Stop Arrangements entered into by such Persons and, after the occurrence
of an Event of Default, for the period during which such Event of Default is
continuing, the Administrative Agent, each of the Issuing Lenders and Lenders
in connection with the enforcement of this Agreement and the other Credit
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, each of
the Issuing Lenders 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, each of the
Issuing Lenders 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, such Issuing Lender or
such Lender) to pay such taxes; and (iii) indemnify the Administrative
Agent, each Issuing Lender, each 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 (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, any Issuing Lender, any 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 or any other Credit Document
or the use of any Letter of Credit or the proceeds of any Loans hereunder or
the consummation of the Transaction or any other transactions contemplated
herein or in any other Credit Document or the exercise of any of their rights
or remedies provided herein or in the other Credit 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 


 


138

















 


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, any Issuing Lender,
any 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 Credit 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 Credit 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, each Issuing Lender 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 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, such
Issuing Lender or such Lender (including, without limitation, by branches and
agencies of the Administrative Agent, such Issuing Lender 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, such Issuing Lender or such Lender under this
Agreement or under any of the other Credit 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.


 


139

















 


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 Credit
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, 14.04(b) and 14.04(c)), (ii) the participant shall not
constitute a “Lender” hereunder, (iii) such Lender shall remain the holder
of its Loans and owner of its interest in any Letter of Credit 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 Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is cash collateralized pursuant to the terms hereunder or not
extended beyond the Revolving Loan Maturity Date) 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 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 Credit Documents) supporting the Loans or
Letters of Credit 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
Credit 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 


 


140

















 


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 Term Loan Commitments and outstanding principal amount
of Term Loans and/or Revolving Loan Commitments and related outstanding
Obligations (or, if the Revolving Loan Commitments have terminated, the related
outstanding Obligations) 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) to 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 Term Loans
and/or Term Loan Commitments and/or $5,000,000 in the aggregate in respect of
Revolving Loan Commitments for the assigning Lender or assigning Lenders, (or,
if the Revolving Loan Commitments have terminated, the related outstanding
Obligations) 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 (x) B-1 Term Loan
Commitments and B-1 Term Loans are outstanding hereunder, each assignment by a
given Lender pursuant to this clause (b) shall be of a like percentage of
the Total B-1 Term Loan Commitment and then total outstanding principal amount
of B-1 Term Loans and (y) B-2 Term Loan Commitments and B-2 Term Loans are
outstanding hereunder, each assignment by a given Lender pursuant to this
clause (b) shall be of a like percentage of the Total B-2 Term Loan
Commitment and the then total outstanding principal amount of B-2 Term Loans, (iv) the
consent of the Administrative Agent shall be required in connection with any
such assignments of Term Loan Commitments or Revolving Loan Commitments pursuant
to clause (x) or (y) (such consent, in any case, not to be
unreasonably withheld, delayed or conditioned), (v) so long as no Default
under Sections 12(a) and no Event of Default then exists and the
Syndication Date (determined without regard to clause (y) of the
definition thereof) has theretofore occurred, the consent of the Borrower shall
be 


 


141

















 


required in connection with any such assignment of Revolving Loan
Commitments pursuant to clause (x) or (y) above (such consent, in any
case, not to be unreasonably withheld, delayed or conditioned), provided
that the Borrower shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to the Administrative Agent
within 5 Business Days after having received notice thereof, and (vi) 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)           The Borrower shall also be entitled
to purchase (from Lenders) outstanding principal of Term Loans in accordance
with the provisions of Sections 2.14 and 2.15, which purchases shall be
evidenced by assignments (in form reasonably satisfactory to the Administrative
Agent) from the respective Lender to the Borrower.  No such assignment will be effective until
recorded by the Administrative Agent (in a manner consistent with the following
sentence) on the Register pursuant to Section 14.15.  All Loans purchased pursuant to Section 2.14
shall be immediately and automatically cancelled and retired, and the Borrower
shall in no event become a Lender hereunder. 
To the extent of any assignment to the Borrower as described in this
clause (c), the assigning Lender shall be relieved of its obligations hereunder
with respect to the assigned Term Loans.


 


(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) and/or
(c) shall cease to constitute a “Lender” hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation,
Sections 2.10, 2.11, 3.06, 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.


 


142

















 


14.05.      No Waiver; Remedies Cumulative.  No failure or delay on the part of the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit
Party and the Administrative Agent, the Collateral Agent, any Issuing Lender or
any Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
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 Credit Document expressly provided are cumulative and not exclusive
of any rights, powers or remedies which the Administrative Agent, the
Collateral Agent, any Issuing Lender 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, any Issuing Lender 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 Credit Documents, or otherwise), which is applicable to the payment of the
principal of, or interest on, the Loans, Unpaid Drawings, Commitment Commission
or Letter of Credit Fees, 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 this Agreement
which require, or permit, differing payments to be made to Non-Defaulting
Lenders as opposed to Defaulting Lenders, (y) the express provisions of
this Agreement which permit disproportionate payments with respect to various
of the Tranches as, and to the extent, provided herein, and (z) the
express provisions of Sections 2.14, 2.15, 4.02(b) and 14.12(b), which
permit disproportionate payments with respect to the Loans as, and to the extent,
provided therein.


 


143

















 


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 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,
Commitment Commission and other Fees hereunder shall be made on the basis of a
year of 360 days (except for interest calculated by reference to the Prime
Lending Rate, which shall be based on a year of 365 or 366 days, as applicable)
for the actual number of days (including the first day but excluding the last
day; except that in the case of Letter of Credit Fees and Facing Fees, the last
day shall be included) occurring in the period for which such interest,
Commitment Commission or Fees are payable.


 


14.08.      GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL.  (a)  THIS
AGREEMENT AND THE OTHER CREDIT 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 CREDIT 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 CREDIT 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 CREDIT
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 


 


144

















 


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 CREDIT 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 CREDIT 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 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 CREDIT 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 CREDIT 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 CREDIT 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.


 


145
















 


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.


 


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 provisons of
following clause (c), neither this Agreement nor any other Credit 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 Credit 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 Credit 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 Term Loans and the
Revolving Loan Commitments 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 Term Loans and Revolving Loan Commitments 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 extend the stated expiration
date of any Letter of Credit beyond the Revolving Loan Maturity Date, 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 


 


146

















 


Commitment of such Lender), (3) without the consent of each
Issuing Lender, amend, modify or waive any provision of Section 3 or alter
its rights or obligations with respect to Letters of Credit, (4) without
the consent of the Swingline Lender, alter the Swingline Lender’s rights or
obligations with respect to Swingline Loans, (5) 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, (6) without the consent of Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of the
Collateral Agent, (7) except in cases where additional extensions of term
loans and/or revolving loans are being afforded substantially the same
treatment afforded to the Term Loans and Revolving Loans pursuant to this
Agreement on the Effective Date, without the consent of the Majority Lenders of
each Tranche which is being allocated a lesser prepayment, repayment or
commitment reduction, alter the required application of any prepayments or
repayments (or commitment reduction), as between the various Tranches, pursuant
to Section 5.02(g) (it being understood, however, that the Required
Lenders may waive, in whole or in part, any such prepayment, repayment or
commitment reduction, so long as the application, as amongst the various
Tranches, of any such prepayment, repayment or commitment reduction which is
still required to be made is not altered), (8) without the consent of the
Majority Lenders of the respective Tranche affected thereby, amend the
definition of Majority 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 Majority Lenders on
substantially the same basis as the extensions of Loans and Commitments are
included on the Effective Date), (9) without the written consent of the
Majority Lenders with Revolving Loans and/or Revolving Loan Commitments, amend,
modify or waive any condition precedent set forth in Section 8 with
respect to the making of Revolving Loans, Swingline Loans or the issuance of
Letters of Credit, or (10) reduce the amount of, or extend the date of,
any Scheduled Term Loan Repayment without the consent of each TL Lender with
Obligations being directly affected thereby.


 


(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 in either clause (A) or (B) below, to either (A) replace
each such non-consenting Lender or Lenders (or, at the option of the Borrower,
if the respective Lender’s consent is required with respect to less than all
Tranches of Loans (or related Commitments), to replace only the Commitments
and/or Loans of the respective non-consenting Lender in the relevant Tranche(s) which
gave rise to the need to obtain such Lender’s individual consent) 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 to the proposed
change, waiver, discharge or termination or (B) terminate such
non-consenting Lender’s Revolving Loan Commitment (if such Lender’s consent is
required as a result of its Revolving Loan Commitment) and/or repay each
Tranche of outstanding Loans of such Lender which gave rise to the need to
obtain such Lender’s consent and/or cash collateralize its applicable RL
Percentage of the Letter of Credit of Outstandings, in accordance with
Sections 4.02(b) and/or 5.01(b), provided that, unless the
Commitments which are terminated and Loans which are repaid pursuant to
preceding clause (B) are immediately replaced in full at 


 


147

















 


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 Credit 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 issues of Specified Indebtedness (so long as permitted to be secured
by the Collateral in accordance with the requirements of this Agreement) may
become subject to the Intercreditor Agreement as Second-Lien Obligations, and
the Administrative Agent is authorized and directed to make 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 such Specified Indebtedness pursuant to the
Intercreditor Agreement, without the consent of any Lenders;


 


(ii)           the Administrative Agent may execute any documents in
connection with a Refinancing First-Lien Credit Agreement succeeding this
Agreement as the First-Lien Credit Agreement under the Intercreditor Agreement,
so long as concurrently therewith all Commitments pursuant to this Agreement
shall be terminated and all Loans hereunder shall be repaid in full (and all
Letters of Credit terminated or cash collateralized to the satisfaction of the
respective Issuing Lenders); it being understood that the consent of the
Required Lenders shall be required for any other Series (as defined in the
Intercreditor Agreement) of Additional First-Lien Obligations (excluding
Interest Rate Protection Agreements and Other Hedging Agreements and Cash Management
Agreements secured as provided in the Security Documents) to become party to
the Intercreditor Agreement;


 


(iii)          in connection with the foregoing actions, 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 


 


148

















 


penultimate sentence of Section 8.2
thereof, the Administrative Agent may agree to the termination thereof with the
written agreement of the Borrower;


 


(v)           if at any time after a termination of the Intercreditor
Agreement has occurred as permitted by preceding clause (iv), if the Borrower
or Holdings wishes to incur Specified Indebtedness which would otherwise be
permitted to be secured by the Collateral in accordance with the requirements
of this Agreement and become party to the Intercreditor Agreement as
contemplated by preceding clause (i), Administrative Agent shall, at the
request of the Borrower, enter into a new Intercreditor Agreement in
substantially the form of the original Intercreditor Agreement (with such
changes as are otherwise permitted above in this clause (c)), and may enter
into same so long as, concurrently therewith, the respective Intercreditor
Agreement is executed and delivered by all Credit Parties and by the respective
Second-Lien Authorized Representative on behalf of the holders of such
Specified Indebtedness;


 


(vi)          with respect to the Security Documents, (x) additional
Credit Parties 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, 3.06, 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, 3.06
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.  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 


 


149

















 


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 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, each Issuing Lender 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 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, any Issuing Lender, 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, any 


 


150

















 


Issuing Lender 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 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 THE CREDIT DOCUMENTS AND THE BRIDGE LOAN DOCUMENTS
(AND IN THE FUTURE MAY BE CREATED ON THE COLLATERAL WITH RESPECT TO ONE OR
MORE ADDITIONAL 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. 
IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR
AGREEMENT AND ANY OF THE CREDIT 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.


 


151

















 


14.19.      Interest Rate Limitation.  Notwithstanding
anything to the contrary contained in any Credit Document, the interest paid or
agreed to be paid under the Credit 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 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 all
Bridge Loans 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 Bridge 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, the Issuing Lenders and the Lenders to enter into this
Agreement and to extend credit 


 


152

















 


hereunder, and to induce the other Guaranteed Creditors to enter into
Interest Rate Protection Agreements, Other Hedging Agreements and Cash
Management Agreements and in recognition of the direct benefits to be received
by Holdings from the proceeds of the Loans, the issuance of the Letters of
Credit and the entering into of such Interest Rate Protection Agreements, Other
Hedging Agreements and Cash Management Agreements, 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 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 


 


153

















 


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.


 


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;


 


154

















 


(g)           consent to or waive any breach of, or any act, omission or
default under, this Agreement, any other Credit Document, any Interest Rate
Protection Agreement, any Other Hedging Agreement or any Cash Management
Agreement or any of the instruments or agreements referred to herein or
therein, or otherwise amend, modify or supplement this Agreement, any other
Credit Document, any Interest Rate Protection Agreement, any Other Hedging
Agreement or any Cash Management Agreement 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.


 


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


 


155
















 


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 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 


 


156

















 


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.


 


(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.


 


*     *    
*


 


157

















 


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 and as a Lead Arranger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ L. Bressler

  
	
   

  	
  Name: L. Bressler

  
	
   

  	
  Title:   SVP & Manager

  



 

















 


	
   

  	
  SIGNATURE PAGE TO THE
  CREDIT 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