Exhibit 10.1






Exhibit 10.1




EXECUTION COPY




 





$600,000,000




AMENDED AND RESTATED CREDIT AGREEMENT




among




FIRST SOLAR, INC.,




The Borrowing Subsidiaries Parties Hereto,




The Several Lenders from Time to Time Parties Hereto,




BANK OF AMERICA, N.A.




and




THE ROYAL BANK OF SCOTLAND PLC,




as Documentation Agents,




CREDIT SUISSE, CAYMAN ISLANDS BRANCH,




as Syndication Agent,




and




JPMORGAN CHASE BANK, N.A.,




as Administrative Agent




Dated as of October 15, 2010




 





J.P. MORGAN SECURITIES LLC and BANC OF AMERICA SECURITIES LLC,




as Joint-Lead Arrangers and Bookrunners




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 1. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 Defined Terms
	 	 	1	 
	1.2 Other Definitional Provisions
	 	 	21	 
	 
	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF REVOLVING COMMITMENTS
	 	 	22	 
	 
	 	 	 	 
	2.1 Revolving Commitments
	 	 	22	 
	2.2 Procedure for Revolving Loan Borrowing
	 	 	22	 
	2.3 Increase in Revolving Commitments
	 	 	23	 
	2.4 Swingline Commitment
	 	 	24	 
	2.5 Procedure for Swingline Borrowing; Refunding of Swingline Loans
	 	 	24	 
	2.6 Commitment Fees, etc.
	 	 	26	 
	2.7 Termination or Reduction of Revolving Commitments
	 	 	26	 
	2.8 Optional Prepayments
	 	 	26	 
	2.9 Mandatory Prepayments
	 	 	26	 
	2.10 Conversion and Continuation Options
	 	 	27	 
	2.11 Limitations on Eurocurrency Tranches
	 	 	27	 
	2.12 Interest Rates and Payment Dates
	 	 	27	 
	2.13 Computation of Interest and Fees
	 	 	28	 
	2.14 Inability to Determine Interest Rate
	 	 	28	 
	2.15 Pro Rata Treatment and Payments
	 	 	29	 
	2.16 Requirements of Law
	 	 	30	 
	2.17 Taxes
	 	 	31	 
	2.18 Indemnity
	 	 	35	 
	2.19 Change of Lending Office
	 	 	35	 
	2.20 Replacement of Lenders
	 	 	35	 
	2.21 Defaulting Lenders
	 	 	36	 
	2.22 Borrowing Subsidiaries
	 	 	38	 
	 
	 	 	 	 
	SECTION 3. LETTERS OF CREDIT
	 	 	38	 
	 
	 	 	 	 
	3.1 L/C Commitment
	 	 	38	 
	3.2 Procedure for Issuance of Letter of Credit
	 	 	39	 
	3.3 Fees and Other Charges
	 	 	39	 
	3.4 L/C Participations
	 	 	39	 
	3.5 Reimbursement Obligation of the Borrowers
	 	 	40	 
	3.6 Obligations Absolute
	 	 	41	 
	3.7 Letter of Credit Payments
	 	 	41	 
	3.8 Applications
	 	 	41	 
	 
	 	 		 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	41	 
	 
	 	 	 	 
	4.1 Financial Condition
	 	 	41	 
	4.2 No Change
	 	 	42	 
	4.3 Existence; Compliance with Law
	 	 	42	 
	4.4 Power; Authorization; Enforceable Obligations
	 	 	42	 






 


i









 





	 	 	 	 	 
	 	 	Page	 
	 
	4.5 No Legal Bar
	 	 	42	 
	4.6 Litigation
	 	 	42	 
	4.7 No Default
	 	 	43	 
	4.8 Ownership of Property
	 	 	43	 
	4.9 Intellectual Property
	 	 	43	 
	4.10 Taxes
	 	 	43	 
	4.11 Federal Regulations
	 	 	43	 
	4.12 Labor Matters
	 	 	43	 
	4.13 ERISA; Foreign Benefit Arrangements and Plans
	 	 	43	 
	4.14 Investment Company Act; Other Regulations
	 	 	44	 
	4.15 Restricted Subsidiaries
	 	 	44	 
	4.16 Use of Proceeds
	 	 	44	 
	4.17 Environmental Matters
	 	 	44	 
	4.18 Accuracy of Information, etc.
	 	 	45	 
	4.19 Security Documents
	 	 	45	 
	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT
	 	 	46	 
	 
	 	 	 	 
	5.1 Conditions to Initial Extension of Credit
	 	 	46	 
	5.2 Conditions to Each Extension of Credit
	 	 	47	 
	 
	 	 	 	 
	SECTION 6. AFFIRMATIVE COVENANTS
	 	 	48	 
	 
	 	 	 	 
	6.1 Financial Statements
	 	 	48	 
	6.2 Certificates; Other Information
	 	 	48	 
	6.3 Payment of Obligations
	 	 	50	 
	6.4 Maintenance of Existence; Compliance
	 	 	50	 
	6.5 Maintenance of Property; Insurance
	 	 	50	 
	6.6 Inspection of Property; Books and Records; Discussions
	 	 	50	 
	6.7 Notices
	 	 	50	 
	6.8 Environmental Laws
	 	 	51	 
	6.9 Additional Collateral, etc.
	 	 	51	 
	6.10 Designation of Subsidiaries
	 	 	52	 
	6.11 Post-Closing Obligations
	 	 	53	 
	 
	 	 	 	 
	SECTION 7. NEGATIVE COVENANTS
	 	 	53	 
	 
	 	 	 	 
	7.1 Financial Condition Covenants
	 	 	53	 
	7.2 Indebtedness and Guarantee Obligations
	 	 	53	 
	7.3 Liens
	 	 	55	 
	7.4 Fundamental Changes
	 	 	57	 
	7.5 Disposition of Property
	 	 	57	 
	7.6 Restricted Payments
	 	 	58	 
	7.7 Acquisitions
	 	 	58	 
	7.8 Transactions with Affiliates
	 	 	59	 
	7.9 Sales and Leasebacks
	 	 	59	 
	7.10 Swap Agreements
	 	 	59	 
	7.11 Changes in Fiscal Periods
	 	 	59	 
	7.12 Negative Pledge Clauses
	 	 	59	 
	7.13 Clauses Restricting Subsidiary Distributions
	 	 	59	 
	7.14 Lines of Business
	 	 	60	 






 


ii









 





	 	 	 	 	 
	 	 	Page	 
	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	60	 
	 
	 	 	 	 
	SECTION 9. THE AGENTS
	 	 	63	 
	 
	 	 	 	 
	9.1 Appointment
	 	 	63	 
	9.2 Delegation of Duties
	 	 	63	 
	9.3 Exculpatory Provisions
	 	 	63	 
	9.4 Reliance by Administrative Agent
	 	 	63	 
	9.5 Notice of Default
	 	 	64	 
	9.6 Non-Reliance on Agents and Other Lenders
	 	 	64	 
	9.7 Indemnification
	 	 	64	 
	9.8 Agent in Its Individual Capacity
	 	 	65	 
	9.9 Successor Administrative Agent
	 	 	65	 
	9.10 Documentation Agent and Syndication Agent
	 	 	65	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	66	 
	 
	10.1 Amendments and Waivers
	 	 	66	 
	10.2 Notices
	 	 	67	 
	10.3 No Waiver; Cumulative Remedies
	 	 	68	 
	10.4 Survival of Representations and Warranties
	 	 	68	 
	10.5 Payment of Expenses and Taxes
	 	 	68	 
	10.6 Successors and Assigns; Participations and Assignments
	 	 	69	 
	10.7 Adjustments; Set-off
	 	 	72	 
	10.8 Counterparts
	 	 	73	 
	10.9 Severability
	 	 	73	 
	10.10 Integration
	 	 	73	 
	10.11 GOVERNING LAW
	 	 	73	 
	10.12 Submission To Jurisdiction; Waivers
	 	 	73	 
	10.13 Acknowledgements
	 	 	74	 
	10.14 Releases of Guarantees and Liens
	 	 	74	 
	10.15 Confidentiality
	 	 	74	 
	10.16 WAIVERS OF JURY TRIAL
	 	 	75	 
	10.17 No Fiduciary Duty
	 	 	75	 
	10.18 USA Patriot Act
	 	 	76	 
	10.19 Consent to Amendment and Restatement
	 	 	76	 







 


iii









 







SCHEDULES:




	 	 	 
	1.1A

	 	Revolving Commitments
	1.1B

	 	Specified Restricted Subsidiaries
	1.1C

	 	Specified Swap Agreements
	3.1

	 	Existing Letters of Credit
	4.4

	 	Consents, Authorizations, Filings and Notices
	4.15

	 	Restricted Subsidiaries
	4.19

	 	UCC Filing Jurisdictions
	6.11

	 	Post-Closing Obligations
	7.2(A)(d)

	 	Existing Indebtedness
	7.2(B)(c)

	 	Existing Guarantee Obligations
	7.3(f)

	 	Existing Liens
	7.12

	 	Existing Negative Pledge Clauses
	 	 	 
	EXHIBITS:
	 	 	 
	A

	 	Guarantee and Collateral Agreement
	B

	 	Form of Compliance Certificate
	C

	 	Form of New Lender Supplement
	D

	 	Form of Commitment Increase Supplement
	E

	 	Form of Closing Certificate
	F

	 	Form of Legal Opinion of Cravath, Swaine & Moore LLP
	G

	 	Form of Assignment and Assumption
	H

	 	Form of U.S. Tax Compliance Certificate
	I

	 	Form of Acknowledgement and Confirmation of Guarantee and Collateral Agreement





 


iv









 





AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of October 15,
2010, among FIRST SOLAR, INC., a Delaware corporation (the “Company”), the Borrowing
Subsidiaries (as defined herein, and, together with the Company, the “Borrowers”), the
several banks and other financial institutions or entities from time to time parties to this
Agreement (the “Lenders”), BANK OF AMERICA, N.A. and THE ROYAL BANK OF SCOTLAND PLC, as
documentation agents (in such capacity, the “Documentation Agents”), CREDIT SUISSE, CAYMAN
ISLANDS BRANCH, as syndication agent (in such capacity, the “Syndication Agent”), and
JPMORGAN CHASE BANK, N.A., as administrative agent.



WHEREAS, the Borrowers entered into that certain Credit Agreement, dated as of September 4,
2009, among the Company, the borrowing subsidiaries party thereto, the several lenders from time to
time party thereto (the “Existing Lenders”) and JPMorgan Chase Bank, N.A., as
administrative agent (the “Existing Credit Agreement”), pursuant to which the Existing
Lenders made available a revolving credit facility in the amount of $300,000,000; and



WHEREAS, the Borrowers have requested that the Existing Lenders agree to amend and restate the
Existing Credit Agreement in its entirety upon the terms and conditions set forth herein to, among
other things, provide for an increase in the aggregate amount of the commitments under the
revolving credit facility to $600,000,000 and extend the term thereof.



NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein,
the parties hereto agree that the Existing Credit Agreement is hereby amended and restated as of
the Closing Date (as hereinafter defined) to read in its entirety as follows:



SECTION 1. DEFINITIONS




1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1
shall have the respective meanings set forth in this Section 1.1.



“ABR”: for any day, a rate per annum equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c)
the Eurocurrency Rate for a Eurocurrency Loan with a one-month interest period commencing on such
day plus 1.0%. Any change in the ABR due to a change in the Prime Rate, the Federal Funds
Effective Rate or such Eurocurrency Rate shall be effective as of the opening of business on the
day of such change in the Prime Rate, the Federal Funds Effective Rate or such Eurocurrency Rate,
respectively.



“ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.
Only Loans denominated in Dollars shall have an ABR option.



“Acknowledgement and Confirmation of Guarantee and Collateral Agreement”: the
Acknowledgement and Confirmation of Guarantee and Collateral Agreement executed and delivered by
the Company, substantially in the form of Exhibit I.



“Acquisition”: as to any Person, any acquisition by such Person (i) of a majority or
controlling interest in the Capital Stock of any other Person, (ii) of all or substantially all of
the assets of any Person or (iii) of all or substantially all of the assets constituting a
division, business unit or line of business of any other Person.




“Adjustment Date”: as defined in the definition of Applicable Pricing Grid.


 


1









 





“Administrative Agent”: JPMorgan Chase Bank, N.A., together with its affiliates, as
the arranger of the Revolving Commitments and as the administrative agent for the Lenders under
this Agreement and the other Loan Documents, together with any of its successors.



“Affiliate”: as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For purposes of this
definition, “control” of a Person means the power, directly or indirectly, to direct or cause the
direction of the management and policies of such Person, whether by contract or otherwise.



“Agents”: the collective reference to the Syndication Agent, the Documentation Agents
and the Administrative Agent.




“Agreement”: as defined in the preamble hereto.



“Alternate Currency Overnight Rate”: with respect to a currency other than Dollars,
the rate per annum determined by the Administrative Agent to represent its cost of overnight or
short-term funds in such currency (which determination shall be conclusive absent manifest error)
plus the Applicable Margin then in effect with respect to Eurocurrency Loans.



“Applicable Margin”: for each Type of Loan, the rate per annum set forth under the
relevant column heading below:



	 	 	 	 	 	 	 	 	 
	 	 	ABR Loans	 	 	Eurocurrency Loans	 
	Revolving Loans and
Swingline Loans
	 	 	1.25	%	 	 	2.25	%






; provided, that on and after the first Adjustment Date occurring after the Closing Date,
the Applicable Margin shall be determined pursuant to the Applicable Pricing Grid.



“Applicable Pricing Grid”: the table set forth below, which specifies the rate per
annum that will apply under the relevant column heading below, in each case based upon the
Consolidated Leverage Ratio as of the end of the fiscal quarter of the Company for which
consolidated financial statements have been most recently delivered pursuant to Section 6.1:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Consolidated	 	Applicable Margin for	 	 	Applicable Margin for	 	 	 	 
	Leverage Ratio	 	Eurocurrency Loans	 	 	ABR Loans	 	 	Commitment Fee Rate	 
	≤1.00x
	 	 	2.25	%	 	 	1.25	%	 	 	0.375	%
	>1.00x but <1.50x
	 	 	2.50	%	 	 	1.50	%	 	 	0.375	%
	≥1.50x
	 	 	2.75	%	 	 	1.75	%	 	 	0.500	%






Changes in the Applicable Margin or the Commitment Fee Rate resulting from changes in the
Consolidated Leverage Ratio shall become effective on the date (the “Adjustment Date”) that
is three Business Days after the date on which financial statements are delivered to the Lenders
pursuant to Section 6.1 and shall remain in effect until the next change to be effected pursuant to
this paragraph. If any financial statements referred to above are not delivered within the time
periods specified in Section 6.1 when the Applicable Margin is being determined pursuant to the
Applicable Pricing Grid, then, until
the date that is three Business Days after the date on which such financial statements are
delivered, the highest rate set forth in the applicable column of the table above shall apply.


 


2









 





In addition, at all times while an Event of Default shall have occurred and be continuing the
highest rate set forth in each column of the table above shall apply. Each determination of the
Consolidated Leverage Ratio pursuant to the Applicable Pricing Grid shall be made in a manner
consistent with the determination thereof pursuant to Section 7.1.



“Application”: an application, in such form as an Issuing Lender may specify from
time to time, requesting such Issuing Lender to open a Letter of Credit.




“Approved Fund”: as defined in Section 10.6(b).




“Assignee”: as defined in Section 10.6(b).




“Assuming Lender”: as defined in Section 2.3(a).



“Assignment and Assumption”: an Assignment and Assumption, substantially in the form
of Exhibit G.



“Available Revolving Commitment”: as to any Lender at any time, an amount equal to
the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over (b) such
Lender’s Revolving Extensions of Credit then outstanding; provided, that in calculating any
Lender’s Revolving Extensions of Credit for the purpose of determining such Lender’s Available
Revolving Commitment pursuant to Section 2.6(a), the aggregate principal amount of Swingline Loans
then outstanding shall be deemed to be zero.




“Benefitted Lender”: as defined in Section 10.7(a).



“Board”: the Board of Governors of the Federal Reserve System of the United States
(or any successor).




“Borrower”: the Company or any Borrowing Subsidiary, as applicable.



“Borrowing Date”: any Business Day specified by the Company (on its own behalf or on
behalf of any other Borrower) as a date on which such Borrower requests the relevant Lenders to
make Loans hereunder.



“Borrowing Subsidiary”: (i) at any time when the German Security Documents are in
full force and effect, and until such time as it ceases to be a Borrowing Subsidiary pursuant to
Section 2.22, the German Borrower, and any other Restricted Subsidiary that is organized under the
laws of the Federal Republic of Germany and designated as a Borrowing Subsidiary pursuant to
Section 2.22, and (ii) any other Restricted Subsidiary designated as a Borrowing Subsidiary
pursuant to Section 2.22.



“British Pound Sterling”: British pound sterling in lawful currency of the United
Kingdom.




“Business”: as defined in Section 4.17(b).



“Business Day”: a day (i) that is not a Saturday or a Sunday and (ii) (A) when used
in connection with a Loan denominated in Euro, is both a TARGET Settlement Day and a London
Business
Day, (B) when used in connection with a Loan denominated in Dollars is a New York Business Day
and (C) when used in connection with matters not relating to Loans, unless otherwise provided, is a
New York Business Day, provided, that with respect to notices and determinations in
connection with, and payments of principal and interest on, Eurocurrency Loans, such day is also a
day for trading by and between banks in Dollar or Euro deposits, as the case may be, in the
interbank Eurocurrency market.


 


3









 





“Calculation Date”: two Business Days prior to the last Business Day of each calendar
month (or any other day selected by the Administrative Agent when an Event of Default has occurred
and is continuing); provided, that the second Business Day preceding each Borrowing Date
with respect to any Revolving Loan denominated in Euro and each issuance of any Letter of Credit
denominated in a currency other than Dollars shall also be a “Calculation Date”; provided,
further, that the second Business Day preceding each date on which any Interest Period in
respect of a Revolving Loan denominated in Euro is continued shall also be a “Calculation Date”.
The Administrative Agent will notify the Company of the applicable amounts recalculated on each
Calculation Date.




“Canadian Dollars”: dollars in lawful currency of Canada.



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



“Capital Stock”: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase any
of the foregoing.



“Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency thereof with a minimum
long-term credit rating of AA by S&P or Aa by Moody’s, in each case maturing within three years
from the date of acquisition; (b) marketable direct obligations issued by, or unconditionally
guaranteed by any foreign sovereign state, or any agency thereof, with a minimum long-term credit
rating of AA by S&P and Aa by Moody’s, in each case maturing within three years from the date of
acquisition; (c) securities with maturities of three years or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth or territory, with a
minimum long-term credit rating of AA by S&P and Aa by Moody’s, in each case maturing within three
years from the date of acquisition; (d) certificates of deposit, time deposits or overnight bank
deposits having maturities of 1 year or less from the date of acquisition, issued by any Lender or
by any commercial bank with a long-term credit rating of at least A by S&P or A by Moody’s; (e)
commercial paper maturing within nine months from the date of acquisition with a minimum short-term
credit rating of A-1 by S&P or P-1 by Moody’s; (f) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (d) of this definition, having a term of not
more than 30 days, with respect to securities issued or fully guaranteed or insured by the United
States government or a foreign sovereign state with a long-term credit rating of at least AAA by
S&P or Aaa by Moody’s; (g) corporate debt securities issued in the U.S. or Europe with maturities
of three years or less from the date of acquisition and with a long-term credit rating of at least
AA by S&P or Aa by Moody’s; (h) supranational debt securities issued in the U.S. or Europe with
maturities of three years or less from the date of acquisition and with a long-term credit rating
of at least AA by S&P or Aa by Moody’s; (i) money market mutual or similar funds that invest
exclusively in assets satisfying the
requirements of clauses (a) through (h) of this definition; or (j) money market funds that (i)
comply with the criteria set forth in SEC Rule2a-7 under the Investment Company Act of 1940, as
amended, (ii) are rated AAA by S&P or Aaa by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000.


 


4









 





“Closing Date”: the date on which the conditions precedent set forth in Section 5.1
shall have been satisfied.




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



“Collateral”: the property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.



“Commitment Fee Rate”: 0.375% per annum; provided, that on and after the
first Adjustment Date occurring after the Closing Date, the Commitment Fee Rate shall be determined
pursuant to the Applicable Pricing Grid.




“Commitment Increase Supplement”: as defined in Section 2.3(b)(ii).




“Company”: as defined in the preamble hereto.



“Compliance Certificate”: a certificate duly executed by a Responsible Officer
substantially in the form of Exhibit B.



“Conduit Lender”: any special purpose corporation organized and administered by any
Lender for the purpose of making Loans otherwise required to be made by such Lender and designated
by such Lender in a written instrument; provided, that the designation by any Lender of a
Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan
under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement with respect to its
Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled
to receive any greater amount pursuant to Section 2.16, 2.17, 2.18 or 10.5 than the designating
Lender would have been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Revolving Commitment.



“Confidential Information Memorandum”: the Confidential Executive Summary dated
September 2010 and furnished to certain Lenders.



“Consolidated EBITDA”: for any period, Consolidated Net Income of the Company and its
Restricted Subsidiaries for such period plus, without duplication and to the extent
deducted in the calculation of such Consolidated Net Income for such period, the sum of (a) income
Tax expense, (b) interest expense, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated with Indebtedness (including
the Loans), (c) depreciation and amortization expense, (d) amortization of intangibles (including,
but not limited to, goodwill) and organization costs, (e) any extraordinary and non-recurring
expenses or losses (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on sales of assets outside of the
ordinary course of business exceeding $1,000,000), (f) compensation expense attributable to the
issuance or grant of Capital Stock of the Company and (g) any other non-cash expenses, and
minus, to the extent included in the statement of such Consolidated Net Income for such
period, the sum of (i) interest income, (ii) any extraordinary and non-recurring income or gains
(including, whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary


 


5









 






course of business exceeding $1,000,000), (iii) income Tax credits (to the extent not netted from
income Tax expense) (iv) any other non-cash income, and (v) revenue in respect of any sale of
property to an Unrestricted Subsidiary or any Affiliate that is not a Group Member until such
revenue is received in cash. For the purposes of calculating Consolidated EBITDA for any period of
four consecutive fiscal quarters (each, a “Reference Period”) pursuant to any determination
of the Consolidated Leverage Ratio, (i) if at any time during such Reference Period (or thereafter,
for purposes of determining the Consolidated Leverage Ratio as of any date by reference to
Consolidated EBITDA for such Reference Period) the Company or any Restricted Subsidiary shall have
made any Material Disposition, the Consolidated EBITDA for such Reference Period shall be reduced
by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is
the subject of such Material Disposition for such Reference Period or increased by an amount equal
to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if
at any time during such Reference Period (or thereafter, for purposes of determining the
Consolidated Leverage Ratio as of any date by reference to Consolidated EBITDA for such Reference
Period) the Company or any Restricted Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving pro
forma effect thereto as if such Material Acquisition occurred on the first day of such
Reference Period. As used in this definition, “Material Acquisition” means any acquisition of
property or series of related acquisitions of property that (a) constitutes assets comprising all
or substantially all of an operating unit of a business or constitutes all or substantially all of
the common stock (or similar equity interests) of a Person and (b) involves the payment of
consideration by the Company and its Restricted Subsidiaries in excess of $10,000,000; and
“Material Disposition” means any Disposition of property or series of related Dispositions of
property that (a) constitutes assets comprising all or substantially all of an operating unit of a
business or constitutes all or substantially all of the common stock (or similar equity interests)
of a Person and (b) yields consideration to the Company or any of its Restricted Subsidiaries in
excess of $10,000,000.



“Consolidated Leverage Ratio”: as at any day, the ratio of (a) Consolidated Total
Debt on such day to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters most
recently ended on or prior to such day.



“Consolidated Net Income”: for any period, the consolidated net income (or loss) of
the Company and its Restricted Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person
accrued prior to the date it becomes a Restricted Subsidiary of the Company or is merged into or
consolidated with the Company or any of its Restricted Subsidiaries, (b) the income (or deficit) of
any Person (other than a Restricted Subsidiary of the Company) in which the Company or any of its
Restricted Subsidiaries has an ownership interest, except to the extent that any such income is
actually received by the Company or such Restricted Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Restricted Subsidiary (other than a
Subsidiary Guarantor) of the Company to the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of
any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to
such Restricted Subsidiary.



“Consolidated Tangible Assets”: at any date, the total assets of the Company and its
Restricted Subsidiaries at such date, as determined on a consolidated basis in accordance with
GAAP, less their consolidated Intangible Assets.  For purposes of this definition, “Intangible
Assets” means the amount of (a) all write-ups in the book value of any asset owned by the Company
or a Restricted Subsidiary and (b) all unamortized debt discount and expense, unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade names, copyrights and other intangible
assets, determined on a consolidated basis in accordance with GAAP.  


 


6









 





“Consolidated Total Debt”:  at any date, the aggregate principal amount of all
Indebtedness (excluding (i) up to $150,000,000 of Indebtedness of the type described in clause (f)
of the definition of Indebtedness and (ii) any Defeased Debt) of the Company and its Restricted
Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP;
provided that each Guarantee Obligation with respect to Indebtedness of an Unrestricted
Subsidiary or another Person that is not a Group Member shall be included and valued at an amount
equal to the maximum amount of obligations that may be covered by such Guarantee Obligation, unless
such Guarantee Obligation is a Specified Guarantee Obligation, in which case such Guarantee
Obligation shall be included and valued at an amount equal to the outstanding principal amount of
Indebtedness guaranteed thereby at the date of determination (provided that, upon the occurrence
and during the continuance of an event described in clause (a) of the definition of “Specified
Guarantee Obligation” limiting the amount that can be collected under a Specified Guarantee
Obligation, the valuation of such Specified Guarantee Obligation shall include the maximum amount
estimated to be payable in respect thereof as described in clause (a) therein).



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



“Default”: any of the events specified in Section 8, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.



“Defaulting Lender”: any Lender, as reasonably determined by the Administrative
Agent, that has (a) failed to comply with its obligation to fund any portion of its Loans or
participations in Letters of Credit or Swingline Loans within three Business Days of the date
required to be funded by it hereunder, (b) notified the Company, the Administrative Agent, the
Issuing Lenders, the Swingline Lender or any Lender in writing that it does not intend to comply
with any of its funding obligations under this Agreement or has made a public statement to the
effect that it does not intend to comply with its funding obligations under this Agreement or
generally under other agreements in which it commits to extend credit, (c) failed, within five
Business Days after written request by the Administrative Agent (based on the reasonable belief
that it may not fulfill its funding obligations), to confirm that it will comply with the terms of
this Agreement relating to its obligations to fund prospective Loans and participations in then
outstanding Letters of Credit and Swingline Loans, provided that said Lender shall cease to be a
Defaulting Lender under this clause (c) upon receipt of such information by the Administrative
Agent, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other
amount (other than a de minimis amount) required to be paid by it hereunder within five Business
Days of the date when due, unless the subject of a good faith dispute, or (e) (i) become or is
insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian
appointed for it, or has taken any action indicating its consent to, approval of or acquiescence in
any such proceeding or appointment or has a parent company that has become the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian
appointed for it, or has taken any action indicating its consent to, approval of or acquiescence in
any such proceeding or appointment; provided that the Administrative Agent shall provide written
notice to any Lender determined by the Administrative Agent to be a Defaulting Lender hereunder
(and the Administrative Agent shall provide a copy of such determination to the Company) and
provided further than a Lender shall not be a Defaulting Lender solely by virtue of the ownership
or acquisition of any ownership interest in such Lender or parent company thereof or the exercise
of control over a Lender or parent company thereof by a Governmental Authority or instrumentality
thereof.


 


7









 





“Defeased Debt”: any Indebtedness of a Group Member that has been legally or
economically fully defeased by such Group Member in a manner that is reasonably acceptable to the
Administrative Agent.



“Disposition”: with respect to any property, any sale, sale and leaseback,
conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed
of” shall have correlative meanings.




“Documentation Agent”: as defined in the preamble hereto.



“Dollar Equivalent”: on any date, with respect to any amount denominated in Euro,
Canadian Dollars or British Pound Sterling, the equivalent in Dollars that may be purchased with
such currency at the Spot Exchange Rate (determined as of the most recent Calculation Date) with
respect to such currency at such date.




“Dollars” and “$”: dollars in lawful currency of the United States.



“Domestic Subsidiary”: any Subsidiary of the Company organized under the laws of any
jurisdiction within the United States.



“Domestic Subsidiary Guarantor”: any Domestic Subsidiary of the Company that
guarantees the borrowing obligations of the Company and the Borrowing Subsidiaries pursuant to the
Security Documents.



“Eligible Assignee”: (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund,
and (d) any other Person (other than a natural person) approved by the Administrative Agent;
provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or
any of the Borrower’s Affiliates or Subsidiaries.



“Environmental Laws”: any and all foreign, Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, legally-binding requirements of
any Governmental Authority or other Requirements of Law (including common law) regulating, relating
to or imposing liability or standards of conduct concerning protection of human health (as it
relates to exposure to hazardous substances) or the environment.



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



“ERISA Affiliate”: any trade or business (whether or not incorporated) that, together
with any Group Member, is treated as a single employer under Section 414 of the Code.



“ERISA Event”: (a) any Reportable Event; (b) the existence with respect to any Plan
of a non-exempt Prohibited Transaction; (c) any failure by any Pension Plan to satisfy the minimum
funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA)
applicable to such Pension Plan, whether or not waived; (d) the filing pursuant to Section 412 of
the Code or Section 303 of ERISA of an application for a waiver of the minimum funding standard
with respect to any Pension Plan, the failure to make by its due date a required installment under
Section 430(j) of the Code with respect to any Pension Plan or the failure by any Group Member or
any ERISA Affiliate to make any required contribution to a Multiemployer Plan; (e) the incurrence
by any Group Member or any ERISA Affiliate of any liability under Title IV of ERISA with respect
to the termination of any Pension Plan, including but not limited to the imposition of any Lien in
favor of the PBGC or any Pension Plan; (f) a



 


8









 






determination that any Pension Plan is, or is expected to be, in “at risk” status (within the
meaning of Section 430 of the Code or Title IV of ERISA); (g) the receipt by any Group Member or
any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section
4042 of ERISA; (h) the incurrence by any Group Member or any ERISA Affiliate of any liability with
respect to the withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan; or
(i) the receipt by any Group Member or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from a Group Member 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, in Reorganization or in endangered or critical status, within the meaning of
Section 432 of the Code or Section 305 or Title IV of ERISA.



“Euro” or “€”: the single currency of participating member states of the
European Union.



“Eurocurrency Base Rate”: with respect to each day during each Interest Period
pertaining to a Eurocurrency Loan, the rate per annum determined on the basis of the rate for
deposits in Dollars or Euro, as the case may be, for a period equal to such Interest Period
commencing on the first day of such Interest Period appearing on the Reuters Screen LIBOR01 Page as
of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period. In
the event that such rate does not appear on the Reuters Screen LIBOR01 Page (or otherwise on such
screen), the “Eurocurrency Base Rate” shall be determined by reference to such other
comparable publicly available service for displaying Eurocurrency rates as may be reasonably
selected by the Administrative Agent or, in the absence of such availability, by reference to the
rate at which the Administrative Agent is offered Dollar deposits or Euro deposits, as applicable,
at or about 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest
Period in the relevant interbank market where its Eurocurrency and foreign currency and exchange
operations are then being conducted for delivery on the first day of such Interest Period for the
number of days comprised therein.



“Eurocurrency Loans”: Loans the rate of interest applicable to which is based upon
the Eurocurrency Rate.



“Eurocurrency Rate”: with respect to each day during each Interest Period pertaining
to a Eurocurrency Loan, a rate per annum determined for such day in accordance with the following
formula:


Eurocurrency Base Rate

     1.00 - Eurocurrency Reserve Requirements     




“Eurocurrency Reserve Requirements”: for any day as applied to a Eurocurrency Loan,
the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of
reserve requirements in effect on such day (including basic, supplemental, marginal and emergency
reserves) under any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System.



“Eurocurrency Tranche”: the collective reference to Eurocurrency Loans the then
current Interest Periods with respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made on the same day).


 


9









 





“European Restructuring”: the restructuring of First Solar Holdings GmbH and its
existing subsidiaries, to be effected pursuant to a series of steps involving the formation and
capitalization
of new Wholly Owned Subsidiaries of the Company, intercompany transactions, investments and
asset transfers, and mergers and changes of legal form of certain Wholly Owned Subsidiaries of the
Company, with the result that, after giving affect thereto, (a) the German Borrower (which will be
the survivor of a merger involving the existing German Borrower) is an indirect Wholly Owned
Subsidiary of the Company organized in Germany, (b) First Solar Holdings GmbH (or its successor)
and its existing Restricted Subsidiaries (or their successors), along with any Wholly Owned
Subsidiaries of the Company formed in connection with, and surviving after giving effect to, such
restructuring that are the direct or indirect parent of a Restricted Subsidiary, are Restricted
Subsidiaries of the Company owned, directly or indirectly, by a newly-formed holding company
(“European Holdco”) that is a Restricted Subsidiary and (c) European Holdco and all such
Restricted Subsidiaries have guaranteed the Obligations of the German Borrower and complied with
Section 6.9.



“Event of Default”: any of the events specified in Section 8, provided that
any requirement for the giving of notice, the lapse of time, or both, has been satisfied.



“Excluded Foreign Subsidiary”: as to the Obligations of any Borrower, any Foreign
Subsidiary in respect of which either (a) the pledge of all the Capital Stock of such Subsidiary as
Collateral for such Obligations or a guarantee thereof or (b) the guaranteeing by such Subsidiary
of such Obligations, would, in the good faith judgment of the Company, result in adverse tax
consequences to the Company and its Subsidiaries or would not be permitted by applicable law.



“Excluded Taxes”: with respect to the Administrative Agent, any Lender, any Issuing
Lender or any other recipient of any payment to be made by or on account of any obligation of any
Loan Party hereunder or any other Loan Document or Letter of Credit, (a) any Other Connection
Taxes, (b) any withholding Taxes imposed by a Requirement of Law in effect (including FATCA) at
(and, in the case of FATCA, including any regulations or official interpretations thereof issued
after) the time a Lender (other than an assignee under Section 2.20) becomes a party hereto (or
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 with respect to such withholding Tax under clause (a) of Section 2.17 or (c)
Taxes attributable to a Lender’s failure to comply with Section 2.17(g).




“Existing Credit Agreement”: as defined in the preamble hereto.




“Existing Lenders”: as defined in the preamble hereto.




“Existing Letters of Credit”: as defined in Section 3.1.




“FATCA”: Sections 1471 through 1474 of the Code, as of the date of this Agreement.



“Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by JPMorgan Chase Bank, N.A. from three
federal funds brokers of recognized standing selected by it.



“Fee Payment Date”: (a) the third Business Day following the last day of each March,
June, September and December and (b) the last day of the Revolving Commitment Period.


 


10









 





“Foreign Lender”: any Lender or Issuing Lender, (a) with respect to any Borrower other
than a U.S. Borrower and any Tax, that is treated as foreign by the jurisdiction imposing such Tax,
(b) with respect to any U.S. Borrower, (1) that is not a “United States person” as defined by
section 7701(a)(30) of the Code (“US Person”), or (2) that is a partnership or other entity treated
as a partnership for United States federal income Tax purposes which is a US Person, but only to
the extent the beneficial owners (including indirect partners if its direct partners are
partnerships or other entities treated as partnerships for United States federal income Tax
purposes are US Persons) are not US Persons.



“Foreign Benefit Arrangement”: any employee benefit arrangement mandated by non-US
law that is maintained or contributed to by any Group Member or any ERISA Affiliate.



“Foreign Collateral Agreements”: the German Security Documents, the Singapore Security
Documents, and any other collateral agreement or guarantee required to be executed and delivered by
the Company, a Borrowing Subsidiary that is a Foreign Subsidiary or a Foreign Subsidiary Guarantor
after the Closing Date pursuant to Section 6.9(c).



“Foreign Plan”: each employee benefit plan (within the meaning of Section 3(3) of
ERISA, whether or not subject to ERISA) that is not subject to US law and is maintained or
contributed to by any Group Member or any ERISA Affiliate.




“Foreign Subsidiary”: any Subsidiary that is not a Domestic Subsidiary.



“Foreign Subsidiary Guarantor”: any Foreign Subsidiary that guarantees the borrowing
obligations of any Borrowing Subsidiary pursuant to the Security Documents.



“Funding Office”: the U.S. Funding Office or the London Funding Office, as
applicable.



“GAAP”: generally accepted accounting principles in the United States as in effect
from time to time. In the event that any “Accounting Change” (as defined below) shall occur and
such change results in a change in the method of calculation of financial covenants, standards or
terms in this Agreement, then, upon notice by the Administrative Agent to the Company or vice
versa, the Company and the Administrative Agent agree to enter into negotiations in order to amend
such provisions of this Agreement so as to reflect equitably such Accounting Changes with the
desired result that the criteria for evaluating the Company’s financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been made. If any such notice
is given with respect to any Accounting Change then, until such time as such an amendment shall
have been executed and delivered by the Company, the Administrative Agent and the Required Lenders,
all financial covenants, standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. “Accounting Changes” refers to changes in
accounting principles required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the SEC, or any change in the application thereof. Notwithstanding
any other provision contained herein, all terms of an accounting or financial nature used herein
shall be construed, and all computations of amounts and ratios referred to herein shall be made,
without giving effect to any election under Statement of Financial Accounting Standards 159 (or any
other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or
other liabilities of the Company or any Subsidiary at “fair value,” as defined therein.



“German Borrower”: First Solar Manufacturing GmbH or, upon consummation of the
European Restructuring, the survivor of a merger involving First Solar Manufacturing GmbH.



“German Manufacturing Subsidiary”: First Solar Manufacturing GmbH.


 


11









 





“German Security Documents”: the collective reference to: (i) the guarantee entered
into by First Solar Holdings GmbH, First Solar Manufacturing GmbH and First Solar GmbH for the
benefit of the Administrative Agent; (ii) the share pledge agreements entered into by the Company
and the Administrative Agent relating to the Capital Stock of First Solar Holdings GmbH; (iii) the
share pledge agreement entered into by First Solar Holdings GmbH and the Administrative Agent
relating to the Capital Stock of First Solar GmbH; (iv) the share pledge agreement entered into by
First Solar Holdings GmbH and the Administrative Agent relating to the Capital Stock of First Solar
Manufacturing GmbH; (v) the assignment agreement between First Solar Holdings GmbH as assignor and
the Administrative Agent as assignee relating to intercompany receivables and other intercompany
monetary claims; (vi) the assignment agreement between First Solar GmbH as assignor and the
Administrative Agent as assignee relating to intercompany receivables and other intercompany
monetary claims; (vii) the assignment agreement between First Solar Manufacturing GmbH as assignor
and the Administrative Agent as assignee relating to intercompany receivables and other
intercompany monetary claims; (viii) the security trust agreement entered into by the Company,
First Solar Holdings GmbH, First Solar GmbH, First Solar Manufacturing GmbH, as security grantors,
and the Administrative Agent and (ix) all other security documents under the laws of Germany
delivered to the Administrative Agent granting a Lien on any property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.



“Governmental Authority”: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government.



“Group Members”: the collective reference to the Company and the Restricted
Subsidiaries.



“Guarantee and Collateral Agreement”: the Guarantee and Collateral Agreement executed
and delivered by the Company, attached as Exhibit A hereto, together with the Acknowledgement and
Confirmation of Guarantee and Collateral Agreement.



“Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing
Person that guarantees or in effect guarantees, or which is given to induce the creation of a
separate obligation by another Person (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness (the “primary obligations”) of any
other third Person (the “primary obligor”) in any manner, whether directly or indirectly,
including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of
(a) an amount equal to the stated or determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated
liability in respect thereof as determined by the Company in good faith; provided, that for
purposes of Section 7.2(B) and the definition of “Consolidated Total Debt” only, each Guarantee
Obligation with respect to Indebtedness of an Unrestricted Subsidiary or another Person that is not
a Group Member shall be valued at an amount equal to the maximum amount of obligations that may be
covered by such Guarantee Obligation, except for Specified Guarantee Obligations.


 


12









 






“Increase Date”: as defined in Section 2.3(a).




“Increasing Lender”: as defined in Section 2.3(a).



“Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than current accounts payable), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness
created or arising under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of such property), (e)
all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or
otherwise, as an account party or applicant under or in respect of acceptances, letters of credit
or similar arrangements, (g) the liquidation value of all mandatorily redeemable preferred Capital
Stock of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of the
kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in
clauses (a) through (g) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts
and contract rights) owned by such Person, whether or not such Person has assumed or become liable
for the payment of such obligation, and (j) for the purposes of Section 8(e) only, the amount that
would be payable by such Person in respect of any Swap Agreement if such Swap Agreement were
terminated on such date (giving effect to any documented netting agreements). 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 expressly provide that such Person is not liable therefor.




“Indemnified Taxes”: Taxes other than Excluded Taxes.



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




“Insolvent”: pertaining to a condition of Insolvency.



“Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes.



“Interest Payment Date”: (a) as to any ABR Loan (other than any Swingline Loan), the
last day of each March, June, September and December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to any Eurocurrency Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any Eurocurrency Loan having
an Interest Period longer than three months, each day that is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day of such Interest Period, (d)
as to any Loan (other than any
Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any repayment or
prepayment made in respect thereof and (e) as to any Swingline Loan, the day that such Loan is
required to be repaid.


 


13









 





“Interest Period”: as to any Eurocurrency Loan, (a) initially, the period commencing
on the borrowing or conversion date, as the case may be, with respect to such Eurocurrency Loan and
ending one, two, three or six months thereafter, as selected by the Company (on its own behalf or
on behalf of any other Borrower) in its notice of borrowing or notice of conversion, as the case
may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurocurrency Loan and ending one, two, three
or six months thereafter, as selected by the Company (on its own behalf or on behalf of any other
Borrower) by irrevocable notice to the Administrative Agent not later than 1:00 P.M., Local Time,
on the date that is three Business Days prior to the last day of the then current Interest Period
with respect thereto; provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:




(i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding Business Day;




(ii) the Company (on its own behalf or on behalf of any other Borrower) may not select
an Interest Period that would extend beyond the Revolving Termination Date; and




(iii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of a calendar month.



“Issuing Lender”: each of JPMorgan Chase Bank N.A. and any other Lender approved by
the Administrative Agent and the Company that has agreed in its sole discretion to act as an
“Issuing Lender” hereunder, or any of their respective affiliates, in each case in its capacity as
issuer of any Letter of Credit. Each reference herein to “the Issuing Lender” shall be deemed to
be a reference to the relevant Issuing Lender.



“L/C Commitment”: an amount at any time equal to the Total Revolving Commitments at
such time.



“L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5 (in
each case based on the Dollar Equivalent thereof with respect to Letters of Credit denominated in a
currency other than Dollars).



“L/C Participants”: with respect to any Letter of Credit, the collective reference to
all the Lenders other than the applicable Issuing Lender.



“Lenders”: as defined in the preamble hereto; provided, that unless the
context otherwise requires, each reference herein to the Lenders shall be deemed to include any
Conduit Lender.




“Letters of Credit”: as defined in Section 3.1(a).



“Lien”: any mortgage, pledge, hypothecation, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or any preference, priority or any
conditional sale or
other title retention agreement and any capital lease having substantially the same economic
effect as any of the foregoing.


 


14









 





“Liquidity Availability”: on any date of determination, an amount equal to (x) the
unrestricted cash and Cash Equivalents of the Company and its Restricted Subsidiaries (which in any
event shall exclude any cash and Cash Equivalents of any Restricted Subsidiary to the extent that,
on such date of determination, encumbrances or restrictions permitted pursuant to Section 7.13(vi)
would prevent the distribution or other transfer of such cash or Cash Equivalents by such
Restricted Subsidiary to the Company) minus (y) to the extent otherwise included therein the amount
of any such cash or Cash Equivalents used to defease any Defeased Debt.




“Loan”: any loan made by any Lender pursuant to this Agreement.



“Loan Documents”: this Agreement, the Security Documents, the Notes and any
amendment, waiver, supplement or other modification to any of the foregoing.




“Loan Party”: each Group Member that is a Borrower or a Subsidiary Guarantor.



“Local Time”: with respect to (i) fundings, continuations, payments and prepayments
for the account of the Company in Dollars or Canadian Dollars, New York City time, and (ii) all
other fundings, continuations, payments and prepayments, London, England, time.



“London Funding Office”: the office of the Administrative Agent specified in Section
10.2 or such other office as may be specified from time to time by the Administrative Agent as its
London funding office by written notice to the Company and the Lenders.



“Malaysian Facility Agreement”: the Facility Agreement dated as of May 6, 2008 between
the Malaysian Manufacturing Subsidiary, as borrower, and IKB Deutsche Industriebank AG, as
arranger, as amended, modified or supplemented from time to time.




“Malaysian Manufacturing Subsidiary”: First Solar Malaysia Sdn. Bhd.



“Manufacturing Subsidiary”: any Subsidiary of the Company primarily engaged in the
business of manufacturing or selling solar modules using a thin film semiconductor technology, and
any Subsidiary of the Company holding the Capital Stock of any such Subsidiary.



“Material Adverse Effect”: a material adverse effect on (a) the business, property,
operations or condition (financial or otherwise) of the Company and its Subsidiaries taken as a
whole, (b) the Company’s ability to perform its obligations with respect to this Agreement or any
of the other Loan Documents or (c) the validity or enforceability of this Agreement or any of the
other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder
or thereunder.



“Materials of Environmental Concern”: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or
wastes, defined or regulated as such in or under any Environmental Law, including asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.



“Multiemployer Plan”: any employee pension benefit plan that is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.


 


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“New Lender Supplement”: a supplement substantially in the form of Exhibit C pursuant
to which an Assuming Lender shall become a Lender for all purposes and to the same extent as if
originally a party hereto.




“Notes”: the collective reference to any promissory note evidencing Loans.



“Obligations”: the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans and Reimbursement Obligations and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the applicable Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all other obligations and
liabilities of the Borrowers to the Administrative Agent or to any Lender (or, in the case of
Specified Swap Agreements, any affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit or any
Specified Swap Agreement, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by the Borrowers pursuant
hereto) or otherwise.



“Other Taxes”: all present or future stamp, court or documentary Taxes and any other
excise, property, intangible, recording, filing or similar Taxes which arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, or from the
receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document
or Letter of Credit, including any interest, additions to tax or penalties applicable thereto.



“Other Connection Taxes”: with respect to the Administrative Agent, any Lender, any
Issuing Lender or any other recipient of any payment to be made by or on account of any obligation
of any Loan Party hereunder or under any other Loan Document, Taxes imposed as a result of a
present or former connection between such recipient and the jurisdiction imposing such Tax (other
than connections arising solely from such recipient having executed, delivered, or become a party
to, performed its obligations or received payments under, received or perfected a security interest
under, sale or assignment of an interest in any Loan or Loan Document, engaged in any other
transaction pursuant to, or enforced, any Loan Documents).




“Participant”: as defined in Section 10.6(c).




“Participant Register”: as defined in Section 10.6(c).



“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA (or any successor).



“Pension Plan”: any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which any Group Member 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.



“Permitted Acquisition”: any Acquisition; provided that (i) at the time thereof and
after giving effect thereto no Default or Event of Default shall have occurred and be continuing
(including as a result of any non-compliance with Section 7.1(c)), and (ii) the Company and its
Restricted Subsidiaries would be in compliance with Section 7.1(a) and (b) for the most recent
calculation period and as of the last day thereof, calculated as if such Acquisition (and any other
Acquisition consummated since the first
day of such calculation period) and any planned financing (including equity financing)
therefor had been completed on the first day of such calculation period.


 


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“Person”: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.



“Plan”: any employee benefit plan as defined in Section 3(3) of ERISA, including any
employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit
plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee welfare benefit
plan and an employee pension benefit plan, and in respect of which any Group Member or any ERISA
Affiliate is an “employer” as defined in Section 3(5) of ERISA.



“Prime Rate”: the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank,
N.A. in connection with extensions of credit to debtors).



“Prohibited Transaction”: as defined in Section 406 of ERISA and Section 4975(f)(3)
of the Code.




“Properties”: as defined in Section 4.17(a).




“Refunded Swingline Loans”: as defined in Section 2.5(b).




“Register”: as defined in Section 10.6(b).




“Regulation U”: Regulation U of the Board as in effect from time to time.



“Reimbursement Obligation”: the obligation of the applicable Borrower to reimburse
the applicable Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.



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



“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other
than those events as to which the thirty day notice period referred to in Section 4043(c) of ERISA
has been waived with respect to a Pension Plan.



“Required Lenders”: at any time, the holders of more than 50% of (a) until the
Closing Date, the Revolving Commitments then in effect and (b) thereafter, the Total Revolving
Commitments then in effect or, if the Revolving Commitments have been terminated, the Total
Revolving Extensions of Credit then outstanding.



“Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws
or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.


 


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“Responsible Officer”: the chief executive officer, president, chief financial
officer or treasurer of the Company, but in any event, with respect to financial matters, the chief
financial officer or treasurer of the Company.




“Restricted Payments”: as defined in Section 7.6.



“Restricted Subsidiary”: each Manufacturing Subsidiary and each other Subsidiary of
the Company listed as such on Schedule 1.1B or designated by the Company as a Restricted Subsidiary
pursuant to Section 6.10. Neither any Subsidiary Guarantor in existence on the Closing Date nor any
Borrowing Subsidiary shall be designated as an Unrestricted Subsidiary at any time that it remains
a Subsidiary Guarantor or Borrowing Subsidiary. A Subsidiary of an Unrestricted Subsidiary shall
not be designated as a Restricted Subsidiary. A Restricted Subsidiary shall always be a direct
Subsidiary of the Company or another Restricted Subsidiary or of a combination thereof for so long
as it is a Restricted Subsidiary. Schedule 4.15 sets forth the Restricted Subsidiaries as of the
Closing Date.



“Revolving Commitment”: as to any Lender, the obligation of such Lender, if any, to
make Revolving Loans and participate in Swingline Loans and Letters of Credit, as such commitment
may be changed from time to time pursuant to the terms hereof (including any increase in the
Revolving Commitments pursuant to Section 2.3). The initial amount of each Lender’s Revolving
Commitment is set forth opposite such Lender’s name on Schedule 1.1A or in the Assignment and
Assumption pursuant to which such Lender became a party hereto, as applicable. The original amount
of the total Revolving Commitments is $600,000,000.




“Revolving Commitment Increase”: as defined in Section 2.3(a).



“Revolving Commitment Period”: the period from and including the Closing Date to the
Revolving Termination Date or earlier termination of the Revolving Commitments.



“Revolving Extensions of Credit”: as to any Lender at any time, an amount equal to
the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender then
outstanding that are denominated in Dollars, (b) the Dollar Equivalent at such time of the
aggregate principal amount of all Revolving Loans held by such Lender then outstanding that are
denominated in Euro, (c) such Lender’s Revolving Percentage of the L/C Obligations then outstanding
and (d) such Lender’s Revolving Percentage of the aggregate principal amount of Swingline Loans
then outstanding.




“Revolving Loans”: as defined in Section 2.1(a).



“Revolving Percentage”: as to any Lender at any time, the percentage which such
Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments or, at any time
after the Revolving Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender’s Revolving Extensions of Credit then outstanding
constitutes of the aggregate principal amount of the Revolving Extensions of Credit then
outstanding.




“Revolving Termination Date”: October 15, 2015.



“SEC”: the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.



“Security Documents”: the collective reference to the Guarantee and Collateral
Agreement, the Foreign Collateral Agreements and all other security documents delivered to the
Administrative Agent granting a Lien on any property of any Person to secure the obligations
and liabilities of any Loan Party under any Loan Document.


 


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“Singapore Security Documents”: the collective reference to (i) the charge of company
shares deed between the Company, as Chargor, and the Administrative Agent relating to the pledge of
66 percent of the Capital Stock of First Solar FE Holdings Pte. Ltd. and (ii) all other security
documents under the laws of Singapore delivered to the Administrative Agent granting a Lien on any
property of any Person to secure the obligations and liabilities of any Loan Party under any Loan
Document.



“Specified Guarantee Obligation”: a Guarantee Obligation in respect of Indebtedness of
an Unrestricted Subsidiary which is a Wholly-Owned Subsidiary of, or otherwise controlled by, the
Company or any of its Restricted Subsidiaries, the terms of which (a) provide that, in the event of
any exercise of remedies upon an event of default in respect of such Indebtedness or following any
notice by the Administrative Agent to the holders of such Indebtedness (or to an agent, trustee or
other representative for them) that an Event of Default hereunder has occurred and is continuing,
such Guarantee Obligation shall be limited to an amount not exceeding (i) Indebtedness and other
obligations covered by such Guarantee Obligation that are outstanding or accrued and owing at the
time of such exercise of remedies or such notice, as the case may be, (ii) accrued interest on the
amount referred to in clause (i) to the date of payment and (iii) costs of collection under such
Guarantee Obligation (or a substantially similar limitation that may be approved by the
Administrative Agent) or (b) are otherwise reasonably satisfactory to the Administrative Agent.



“Specified Restricted Subsidiary”: a Restricted Subsidiary of the Company listed in
Schedule 1.1B.



“Specified Swap Agreement”: (a) the Swap Agreements set forth in Schedule 1.1C and
(b) any other Swap Agreement in respect of interest rates, currency exchange rates or commodity
prices entered into by the Company or any Subsidiary Guarantor and any Person that is a Lender or
an affiliate of a Lender at the time such Swap Agreement is entered into so long as the Company has
agreed in writing with the applicable Lender or affiliate that such Swap Agreement shall constitute
a Specified Swap Agreement for purposes of the Loan Documents.



“Spot Exchange Rate”: on any day (i) with respect to Euro, the spot rate at which
Dollars are offered on such day by JPMorgan Chase Bank, N.A. in London for Euro at approximately
11:00 A.M. London time for delivery two Business Days later and (ii) with respect to any other
foreign currency, the spot rate at which Dollars are offered on such day by JPMorgan Chase Bank,
N.A. in the market where its foreign currency exchange operations are then being conducted for such
foreign currency, at approximately 11:00 A.M. Local Time, for delivery two Business Days later.
For purposes of determining the Spot Exchange Rate in connection with Euro-denominated Loans, such
spot exchange rate shall be determined as of the Calculation Date for such Loan with respect to
transactions in Euro that will settle on the date of such Loan.



“State of Ohio Facility Agreements”: the credit facility agreements entered into by
(i) the Director of Development of the State of Ohio and the Company, dated as of December 1, 2003
and (ii) the Director of Development of the State of Ohio, the Company and First Solar Property,
LLC, dated as of July 1, 2005, in each case as amended, modified or supplemented from time to time.
 



“Subsidiary”: as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation,
partnership or other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Company.


 


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“Subsidiary Guarantors”: the collective reference to the Domestic Subsidiary
Guarantors and the Foreign Subsidiary Guarantors.



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



“Swingline Commitment”: the obligation of the Swingline Lender to make Swingline
Loans pursuant to Section 2.4 in an aggregate principal amount at any one time outstanding not to
exceed $10,000,000.



“Swingline Lender”: JPMorgan Chase Bank, N.A., in its capacity as the lender of
Swingline Loans.




“Swingline Loans”: as defined in Section 2.4.




“Swingline Participation Amount”: as defined in Section 2.5.




“Syndication Agent”: as defined in the preamble hereto.



“Systems Subsidiary”: any Subsidiary of the Company primarily engaged in the business
of providing solar electricity solutions.



“TARGET Settlement Day”: any day on which the Trans-European Automated Real Time
Gross Settlement Express Transfer System (or, if such clearing system ceases to be operative, such
other clearing system (if any) determined by the Administrative Agent to be a suitable replacement)
is open for settlement of payment in Euro.



“Taxes”: all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



“Total Revolving Commitments”: at any time, the aggregate amount of the Revolving
Commitments then in effect.



“Total Revolving Extensions of Credit”: at any time, the aggregate amount of the
Revolving Extensions of Credit of the Lenders outstanding at such time.




“Transferee”: any Assignee or Participant.



“Type”: as to any Loan, its nature as an ABR Loan or a Eurocurrency Loan.


 


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“United States”: the United States of America.



“Unrestricted Subsidiary”: any Subsidiary of the Company that is not a Restricted
Subsidiary.



“U.S. Borrower”: any Borrower that is a “United States person” within the meaning of
Section 7701(a)(30) of the Code.



“U.S. Funding Office”: the office of the Administrative Agent specified in Section
10.2 or such other office as may be specified from time to time by the Administrative Agent as its
U.S. funding office by written notice to the Company and the Lenders.




“U.S. Tax Compliance Certificate”: as defined in Section 2.17(g).



“Walton Interests”: any of (i) S. Robson Walton, Jim C. Walton, Alice L. Walton, the
Estate of John T. Walton, JCL Holdings LLC and JTW Trust No.1 UAD 9/19/02, (ii) a parent, brother,
sister or lineal descendent of the individuals named in clause (i), (iii) the spouse of any
individual identified in (i) or (ii), (iv) the estate or any guardian, custodian or other legal
representative of any individual identified in clauses (i) through (iii), (v) any trust established
solely for the benefit of any one or more of the individuals identified in clauses (i) through
(iii), and (vi) any Person all of the equity interests in which are beneficially owned, directly or
indirectly, by any one or more of the Persons identified in clauses (i) through (v).



“Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital
Stock of which (other than directors’ qualifying shares required by law) is owned by such Person
directly and/or through other Wholly Owned Subsidiaries.



“Wholly Owned Subsidiary Guarantor”: any Subsidiary Guarantor that is a Wholly Owned
Subsidiary of the Company.



“Withdrawal Liability”: any liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV
of ERISA.




“Withholding Agent”: any Loan Party and the Administrative Agent.



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



(b) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP, (ii) the use of the word
“consolidated” in any accounting or financial term that refers to the Company and its Restricted
Subsidiaries shall be construed as to exclude in any calculation of the amount represented by such
term any results, charges, expenses, liabilities or other accounting or financial attributes of the
Unrestricted Subsidiaries as of the date or for the period such amount is being determined, but the
foregoing shall not apply to the use of “consolidated” in Section 4.1, 5.1(b), 6.1 or similar
contexts referring to financial statements, (iii) the words “include”, “includes” and “including”
shall be deemed to be followed by the
phrase “without limitation”, (iv) 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), (v) 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, Capital Stock, securities, revenues, accounts, leasehold interests and contract
rights, (vi) references to agreements or other Contractual Obligations shall, unless otherwise
specified, be deemed to refer to such agreements or Contractual Obligations as amended,
supplemented, restated or otherwise modified from time to time and (vii) references to any Person
shall be construed to include such Person’s successors and assigns permitted hereunder and, in the
case of any Governmental Authority, any other Governmental Authority that shall have succeeded to
any and all functions thereof.



 


21









 






(c) 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.



(d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



SECTION 2. AMOUNT AND TERMS OF REVOLVING COMMITMENTS




2.1 Revolving Commitments. (a) Subject to the terms and conditions hereof, each
Lender severally agrees to make revolving credit loans denominated in Dollars or Euro
(“Revolving Loans”) to the Company or any Borrowing Subsidiary from time to time during the
Revolving Commitment Period in an aggregate principal amount for all the Borrowers at any one time
outstanding which will not result in such Lender’s aggregate Revolving Extensions of Credit
exceeding such Lender’s Revolving Commitment. During the Revolving Commitment Period the Company
and each Borrowing Subsidiary may use the Revolving Commitments by borrowing, prepaying the
Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Loans denominated in Dollars may from time to time be
Eurocurrency Loans or ABR Loans, as determined by the Company (on its own behalf or on behalf of
the other Borrowers) and notified to the Administrative Agent in accordance with Sections 2.2 and
2.10. The Revolving Loans denominated in Euro shall be Eurocurrency Loans.



(b) The Company and each Borrowing Subsidiary shall repay all its outstanding Revolving Loans
on the Revolving Termination Date.



2.2 Procedure for Revolving Loan Borrowing. Each Borrower may borrow under the
Revolving Commitments during the Revolving Commitment Period on any Business Day, provided
that the Company (on behalf of such Borrower) shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to (a) 11:00 A.M., Local
Time, three Business Days prior to the requested Borrowing Date, in the case of Eurocurrency Loans
or ABR Loans borrowed by a Borrowing Subsidiary, or (b) 1:00 P.M., Local Time, one Business Day
prior to the requested Borrowing Date, in the case of ABR Loans borrowed by the Company)
(provided that any such notice of a borrowing of ABR Loans under the Revolving Commitments
to finance payments required by Section 3.5 may be given not later than 12:00 P.M., New York City
time, on the date of the proposed borrowing), specifying (i) the amount and Type of Revolving Loans
to be borrowed, (ii) the requested Borrowing Date, (iii) in the case of Eurocurrency Loans, the
respective amounts of each such Type of Loan and the respective lengths of the initial Interest
Period therefor, (iv) the location and number of the account to which funds are to be
disbursed, (v) the currency of the Revolving Loans to be borrowed, and (vi) the applicable
Borrower. Each borrowing under the Revolving Commitments shall be in an initial amount equal to
(x) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate
Available Revolving Commitments are less than $1,000,000 or not a whole multiple of $1,000,000, the
amount thereof) and (y) in the case of Eurocurrency Loans,



 


22









 






$5,000,000 or €5,000,000, as applicable,
or a whole multiple of $1,000,000 or €1,000,000 in excess thereof; provided, that the
Swingline Lender may request, on behalf of the applicable Borrower, borrowings in Dollars under the
Revolving Commitments that are ABR Loans in other amounts pursuant to Section 2.5. Upon receipt of
any such notice from the Company, the Administrative Agent shall promptly notify each Lender
thereof. Each Lender will make the amount of its pro rata share of each borrowing
available to the Administrative Agent for the account of the applicable Borrower at the applicable
Funding Office on the Borrowing Date requested by the Company in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the applicable Borrower by the
Administrative Agent crediting the account of the applicable Borrower on the books of such office
with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in
like funds as received by the Administrative Agent. If no election as to the currency of a
Revolving Loan is specified in any such notice, then the requested Revolving Loan shall be
denominated in Dollars. If no election as to the Type of Revolving Loan is specified in any such
notice, then the requested Revolving Loan shall be a Eurocurrency Loan. If no Interest Period with
respect to any Eurocurrency Loan is specified in any such notice, then the Company shall be deemed
to have selected an Interest Period of one month’s duration.



2.3 Increase in Revolving Commitments. (a) The Company may, at any time, by means
of a notice to the Administrative Agent, request that the aggregate Revolving Commitments be
increased (a “Revolving Commitment Increase”) as of the date specified in such notice (the
“Increase Date”) by (i) increasing the Revolving Commitment of one or more Lenders that
have agreed to such increase (an “Increasing Lender”) (it being understood that no Lender
shall have an obligation to increase its Revolving Commitment pursuant to this Section 2.3) and/or
(ii) adding one or more lenders (an “Assuming Lender”) as a party hereto with a Revolving
Commitment in an amount agreed to by such Assuming Lender; provided that (A) in no event
shall the aggregate amount of the aggregate Revolving Commitments exceed $750,000,000 after giving
effect to any such increase and (B) the Revolving Commitment of each such Assuming Lender shall be
in an amount of $10,000,000 or more.



(b) On each Increase Date, (x) each Assuming Lender that has agreed to participate in the
requested Revolving Commitment Increase in accordance with Section 2.3(a) shall become a Lender
party to this Agreement with a Revolving Commitment in the amount set forth in its New Lender
Supplement, (y) the Revolving Commitment of each Increasing Lender for such requested Revolving
Commitment Increase shall be increased by the amount set forth in its Commitment Increase
Supplement as provided in clause (b)(ii)(B) below, and (z) participating interests in then
outstanding Letters of Credit shall be reallocated to reflect the respective Revolving Percentages
of the L/C Obligations of the Lenders from time to time; provided that:




(i) on such Increase Date, the conditions in Section 5.2 shall be satisfied and the
Administrative Agent shall have received a certificate signed by a Responsible Officer of
the Company, dated such Increase Date, to the effect that such conditions are satisfied; and




(ii) on or before such Increase Date, the Administrative Agent shall have received the
following, each dated such Increase Date: (A) such documents or legal opinions as the
Administrative Agent may reasonably request in connection with such Revolving Commitment
Increase (of the nature referred to in paragraphs (g) and (h) of Section 5.1); (B) a
Commitment Increase Supplement duly executed by each Increasing Lender (if any) and each
Borrower and the
Administrative Agent, substantially in the form of Exhibit D (each a “Commitment
Increase Supplement”); and (C) a New Lender Supplement executed by each Assuming Lender
(if any).


 


23









 





On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding
sentence, the Administrative Agent shall notify the Lenders (including each Assuming Lender) and
the Company of the occurrence of the Revolving Commitment Increase to be effected on such Increase
Date and shall record in the Register the relevant information with respect to each Increasing
Lender and each Assuming Lender. If any Revolving Loans are outstanding, each Increasing Lender
and each Assuming Lender shall, before 2:00 P.M. (New York City time) on the Increase Date, make
available for the account of its applicable lending office to the Administrative Agent, in same day
funds, an amount in Dollars and Euro to be distributed to the other Lenders as prepayments for the
account of their respective applicable lending offices such that the amount of the outstanding Loan
owing to each Lender in each borrowing after giving effect to such distribution equals such
Lender’s ratable portion of the Loans then outstanding thereafter (calculated based on its
Revolving Commitment as a percentage of the aggregate Revolving Commitments outstanding after
giving effect to the relevant Revolving Commitment Increase, and including the Dollar Equivalent of
any Loans denominated in Euro), unless other arrangements satisfactory to the Administrative Agent
and the Company are made in order to achieve ratable treatment.



2.4 Swingline Commitment. (a) Subject to the terms and conditions hereof, the
Swingline Lender agrees to make a portion of the credit otherwise available to the Company and the
Borrowing Subsidiaries under the Revolving Commitments from time to time during the Revolving
Commitment Period by making swing line loans denominated in Dollars (“Swingline Loans”) to
the Company or any Borrowing Subsidiary; provided that (i) the Borrowers shall not request
and the Swingline Lender shall not make any Swingline Loan if, after giving effect to the making of
such Swingline Loan, the aggregate principal amount of Swingline Loans would exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding at any time, when
aggregated with the Swingline Lender’s other outstanding Revolving Loans, may exceed the Swingline
Commitment then in effect) and (ii) the Borrowers shall not request, and the Swingline Lender shall
not make, any Swingline Loan if, after giving effect to the making of such Swingline Loan, the
aggregate amount of the Available Revolving Commitments would be less than zero. During the
Revolving Commitment Period, the Company and each Borrowing Subsidiary may use the Swingline
Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions
hereof. Swingline Loans shall be ABR Loans only.



(b) The applicable Borrower shall repay to the Swingline Lender the then unpaid principal
amount of each Swingline Loan made to it on the earlier of the Revolving Termination Date and the
first date after such Swingline Loan is made that is the 15th or last day of a calendar month and
is at least two Business Days after such Swingline Loan is made.



2.5 Procedure for Swingline Borrowing; Refunding of Swingline Loans. (a) Whenever the
Company or a Borrowing Subsidiary desires that the Swingline Lender make Swingline Loans, the
Company (on its own behalf or on behalf of such Borrowing Subsidiary, as the case may be) shall
give the Swingline Lender irrevocable telephonic notice confirmed promptly in writing (which
telephonic notice must be received by the Swingline Lender not later than 1:00 P.M., New York City
time, on the proposed Borrowing Date), specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving Commitment Period), (iii) the
location and number of the account to which funds are to be disbursed, which shall comply with the
requirements of clause (b) below and (iv) the applicable Borrower. Each borrowing under the
Swingline Commitment shall be in an amount equal to $500,000 or a whole multiple
of $100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the Borrowing
Date specified in a notice in respect of Swingline Loans, the Swingline Lender shall make available
to the Administrative Agent at the applicable Funding Office an amount in immediately available
funds equal to the amount of the Swingline Loan to be made by the Swingline Lender. The
Administrative Agent shall make the proceeds of such Swingline Loan available to the applicable
Borrower on such Borrowing Date by depositing such proceeds in the account of such Borrower with
the Administrative Agent on such Borrowing Date in immediately available funds.


 


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(b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the applicable Borrower (which hereby irrevocably directs the
Swingline Lender to act on its behalf), on one Business Day’s notice given by the Swingline Lender
(with a copy to the Company) no later than 12:00 Noon, New York City Time, request each Lender to
make, and each Lender hereby agrees to make, a Revolving Loan, in an amount equal to such Lender’s
Revolving Percentage of the aggregate amount of the Swingline Loans (the “Refunded Swingline
Loans”) outstanding on the date of such notice, to repay the Swingline Lender. Each Lender
shall make the amount of such Revolving Loan available to the Administrative Agent at the
applicable Funding Office in immediately available funds, not later than 10:00 A.M., New York City
Time, one Business Day after the date of such notice. The proceeds of such Revolving Loans shall
be immediately made available by the Administrative Agent to the Swingline Lender for application
by the Swingline Lender to the repayment of the Refunded Swingline Loans. If the Administrative
Agent shall notify the Company that the amounts received from the Lenders are not sufficient to
repay in full such Refunded Swingline Loans, the Company shall pay such shortfall to the
Administrative Agent within two (2) Business Days after receipt of such notice. Each of the Company
and the Borrowing Subsidiaries irrevocably authorizes the Swingline Lender to charge its accounts
with the Administrative Agent in order to pay any such shortfall remaining outstanding after such
two following Business Days.



(c) If prior to the time a Revolving Loan would have otherwise been made pursuant to Section
2.5(b), one of the events described in Section 8(f) shall have occurred and be continuing with
respect to the applicable Borrower or if for any other reason, as determined by the Swingline
Lender in its sole discretion, Revolving Loans may not be made as contemplated by Section 2.5(b),
each Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice
referred to in Section 2.8(b), purchase for cash an undivided participating interest in the then
outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline
Participation Amount”) equal to (i) such Lender’s Revolving Percentage times (ii) the
sum of the aggregate principal amount of Swingline Loans then outstanding that were to have been
repaid with such Revolving Loans.



(d) Whenever, at any time after the Swingline Lender has received from any Lender such
Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of
the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline
Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s participating interest was outstanding and funded and, in
the case of principal and interest payments, to reflect such Lender’s pro rata
portion of such payment if such payment is not sufficient to pay the principal of and interest on
all Swingline Loans then due); provided, however, that in the event that such
payment received by the Swingline Lender is required to be returned, such Lender will return to the
Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.



(e) Each Lender’s obligation to make the Loans referred to in Section 2.5(b) and to purchase
participating interests pursuant to Section 2.5(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or such Borrower may have against the Swingline Lender, such Borrower
or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or
an Event of
Default or the failure to satisfy any of the other conditions specified in Section 5, (iii)
any adverse change in the condition (financial or otherwise) of such Borrower or the Company, (iv)
any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan
Party or any other Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.


 


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2.6 Commitment Fees, etc. (a) The Company agrees to pay to the Administrative Agent
for the account of each Lender a commitment fee in Dollars for the period from and including the
Closing Date to the last day of the Revolving Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on each Fee Payment Date, commencing
on the first such date to occur after the date hereof.



(b) The Company agrees to pay to the Administrative Agent the fees in the amounts and on the
dates as set forth in any fee agreements with the Administrative Agent and to perform any other
obligations contained therein.



2.7 Termination or Reduction of Revolving Commitments. The Company shall have the
right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments;
provided that no such termination or reduction of Revolving Commitments shall be permitted
if, after giving effect thereto and to any prepayments of the Revolving Loans and Swingline Loans
made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total
Revolving Commitments. Any such reduction shall be in a minimum amount equal to $10,000,000 or a
whole multiple of $5,000,000 in excess thereof, and shall reduce permanently the Revolving
Commitments then in effect.



2.8 Optional Prepayments. Each Borrower may at any time and from time to time prepay
its Loans, in whole or in part, without premium or penalty, upon irrevocable notice of the Company
(on its own behalf or on behalf of any other Borrower) delivered to the Administrative Agent no
later than 1:00 P.M., Local Time, three Business Days prior thereto, in the case of Eurocurrency
Loans, and no later than 1:00 P.M., New York City time, one Business Day prior thereto, in the case
of ABR Loans, which notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurocurrency Loans or ABR Loans; provided, that if a Eurocurrency Loan is
prepaid on any day other than the last day of the Interest Period applicable thereto, the
applicable Borrower shall also pay any amounts owing pursuant to Section 2.18. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Loans that are ABR Loans and
Swingline Loans) accrued interest to such date on the amount prepaid. Partial prepayments of
Revolving Loans shall be in an aggregate principal amount of $5,000,000 or €5,000,000 or a whole
multiple of $1,000,000 or €1,000,000 in excess thereof. Partial prepayments of Swingline Loans
shall be in an aggregate principal amount of $100,000 or a whole multiple thereof. Notwithstanding
the foregoing, the Company may revoke or postpone any notice of prepayment if such prepayment would
have resulted from a refinancing of the Loans or proceeds from another transaction, which
refinancing or transaction shall not be consummated or otherwise shall be delayed.



2.9 Mandatory Prepayments. If on any Calculation Date, the Total Revolving Extensions
of Credit exceeds 105% of the Total Revolving Commitments then in effect, the Company shall (or
shall cause any Borrowing Subsidiary to), within three Business Days after the Administrative Agent
gives notice of such excess to the Company, (i) repay such of the outstanding Loans in an aggregate
principal amount or (ii) cash collateralize a portion of the L/C Obligations in an amount, such
that, after giving effect thereto, the Total Revolving Extensions of Credit (as reduced by any
amount of L/C Obligations that have been cash collateralized pursuant to this Section 2.9 or
otherwise) does not exceed the Total Revolving Commitments.


 


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2.10 Conversion and Continuation Options. (a) The Company (on its own behalf or on
behalf of any other Borrower) may elect from time to time to convert Eurocurrency Loans denominated
in Dollars to ABR Loans by giving the Administrative Agent prior irrevocable notice of such
election no later than 11:00 A.M., Local Time, on the Business Day preceding the proposed
conversion date. The Company (on its own behalf or on behalf of any other Borrower) may elect from
time to time to convert ABR Loans to Eurocurrency Loans or to convert Eurocurrency Loans into
Eurocurrency Loans having a different Interest Period by giving the Administrative Agent prior
irrevocable notice of such election no later than 11:00 A.M., Local Time, on the third Business Day
preceding the proposed conversion date (which notice shall specify the length of the initial
Interest Period therefor), provided that no ABR Loan may be converted into a Eurocurrency
Loan and no Eurocurrency Loan may be converted into a Eurocurrency Loan having a different Interest
Period when any Event of Default has occurred and is continuing and the Administrative Agent or the
Required Lenders have determined in its or their sole discretion and notified the Company not to
permit such conversions. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof.



(b) Any Eurocurrency Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Company (on its own behalf or on behalf of any other
Borrower) giving irrevocable notice to the Administrative Agent, in accordance with the applicable
provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next
Interest Period to be applicable to such Loans, (i) provided that no Eurocurrency Loan
denominated in Dollars may be continued as such when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have determined in its or their
sole discretion and notified the Company not to permit such continuations and, and
provided, further, that if the Company (on its own behalf or on behalf of any other
Borrower) shall fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest Period and (ii)
provided that no Eurocurrency Loan denominated in Euro may be continued with an Interest
Period in excess of one month when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined in its or their sole discretion
and notified the Company as to permit such continuation, and provided further that
if the Company (on its own behalf or on behalf of any other Borrower) shall fail to give any
required notice as described above in this paragraph or if such continuation is not permitted
pursuant to the immediately preceding proviso such Euro-denominated Loans shall be automatically
continued as Eurocurrency Loans having an Interest Period of one month. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender thereof.



(c) No Revolving Loans made in Dollars may be converted into Revolving Loans denominated in
Euro, and no Revolving Loans denominated in Euro may be converted into Revolving
Loans denominated in Dollars. For the avoidance of doubt, Revolving Loans denominated in
Dollars or Euro shall be repaid or prepaid in such currency.



2.11 Limitations on Eurocurrency Tranches. Notwithstanding anything to the contrary
in this Agreement, all borrowings, conversions and continuations of Eurocurrency Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to such elections so
that, (a) after giving effect thereto, the aggregate principal amount of the Eurocurrency Loans
comprising each Eurocurrency Tranche shall be equal to $5,000,000 or €5,000,000 or a whole multiple
of $1,000,000 or €1,000,000 in excess thereof and (b) no more than ten Eurocurrency Tranches shall
be outstanding at any one time.



2.12 Interest Rates and Payment Dates. (a) Each Eurocurrency Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate per annum equal to
the Eurocurrency Rate determined for such day plus the Applicable Margin.



(b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable
Margin.


 


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(c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum equal to (x) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this
Section plus 2% or (y) in the case of Reimbursement Obligations in Dollars, the rate
applicable to ABR Loans plus 2% or, in the case of Reimbursement Obligations in any
currency other than Dollars, at the Alternate Currency Overnight Rate plus 2% and (ii) if
all or a portion of any interest payable on any Loan or Reimbursement Obligation or any commitment
fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate then applicable to ABR Loans plus 2% or, in the case of amounts determined in any
currency other than Dollars, at the Alternate Currency Overnight Rate plus 2%, in each
case, with respect to clauses (i) and (ii) above, from the date of such non-payment until such
amount is paid in full (as well after as before judgment).



(d) Interest shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on
demand.



2.13 Computation of Interest and Fees. (a) Interest and fees payable pursuant
hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that,
with respect to (i) ABR Loans the rate of interest on which is calculated on the basis of the Prime
Rate and (ii) interest and fees payable hereunder denominated in British Pound Sterling, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year
for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the
Company and the relevant Lenders of each determination of a Eurocurrency Rate, or of a rate for an
amount owing in a currency other than Dollars. Any change in the interest rate on a Loan resulting
from a change in the ABR or the Eurocurrency Reserve Requirements shall become effective as of the
opening of business on the day on which such change becomes effective. The Administrative Agent
shall as soon as practicable notify the Company and the relevant Lenders of the effective date and
the amount of each such change in interest rate.



(b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrowers and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Company, deliver
to the Company a statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to Section 2.12(a).



2.14 Inability to Determine Interest Rate. If prior to the first day of any Interest
Period:




(a) the Administrative Agent shall have determined (which determination shall be conclusive
and binding upon the Borrowers) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the Eurocurrency Rate
for such Interest Period, or




(b) the Administrative Agent shall have received notice from the Required Lenders that the
Eurocurrency Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest Period,


 


28









 





the Administrative Agent shall give telecopy or telephonic notice thereof to the Company and the
relevant Lenders as soon as practicable thereafter. If such notice is given and until such notice
has been withdrawn by the Administrative Agent any request by the Company (on its own behalf or on
behalf of any other Borrower) for a Eurocurrency Loan of the affected type or in the affected
currency, or a conversion to or continuation of a Eurocurrency Loan of the affected type or if the
affected currency, pursuant to Sections 2.2 and 2.10(b), shall be deemed rescinded;
provided that in the circumstances giving rise to such notice affect only one currency,
then Eurocurrency Loans in the other currency shall be permitted.



2.15 Pro Rata Treatment and Payments. (a) Each borrowing by a Borrower from the
Lenders hereunder, each payment on account of any commitment fee and any reduction of the Revolving
Commitments of the Lenders shall be made pro rata according to the respective
Revolving Percentages of the relevant Lenders.



(b) Each payment (including each prepayment) by a Borrower on account of principal of and
interest on its Revolving Loans shall be made pro rata according to the respective
outstanding principal amounts of such Revolving Loans then held by the Lenders.



(c) All payments (including prepayments) to be made by a Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 1:00 P.M., Local Time, on the due date thereof to the Administrative Agent,
for the account of the Lenders, at the relevant Funding Office, in Dollars (with respect to
Obligations denominated in Dollars), Canadian Dollars (with respect to Obligations denominated in
Canadian Dollars), British Pound Sterling (with respect to Obligations denominated in British Pound
Sterling) and Euro (with respect to Obligations denominated in Euro), and in immediately available
funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly
upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section
9.7. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a
Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension of any payment of
principal pursuant to the preceding two sentences, interest thereon shall be payable at the then
applicable rate during such extension.



(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the applicable Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon, at a rate equal to (i) in the case of amounts denominated in Dollars,
the greater of (x) the Federal Funds Effective Rate and (y) a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation, for the period until
such Lender makes such amount immediately available to the Administrative Agent or (ii) in the case
of amounts denominated in Euro at the rate per annum determined by the Administrative Agent to
represent its cost of overnight or short-term funds in Euro. A certificate of the Administrative
Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to (i) in the case of amounts denominated in
Dollars, ABR Loans or (ii) in the case of amounts denominated in Euro at the rate per annum
determined by the Administrative Agent to represent its cost of overnight or short-term funds in
Euro plus the Applicable Margin for Eurocurrency Loans, on demand, from the applicable Borrower.


 


29









 





(e) Unless the Administrative Agent shall have been notified in writing by the Company (on its
own behalf or on behalf of any other Borrower) prior to the date of any payment due to be made by
the applicable Borrower hereunder that the applicable Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the applicable Borrower is making
such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such
assumption, make available to the Lenders their respective pro rata shares of a
corresponding amount. If such payment is not made to the Administrative Agent by the applicable
Borrower within three Business Days after such due date, the Administrative Agent shall be entitled
to recover, on demand, from each Lender to which any amount which was made available pursuant to
the preceding sentence, such amount with interest thereon at the rate per annum equal to (i) in the
case of amounts denominated in Dollars, the daily average Federal Funds Effective Rate and (ii) in
the case of amounts denominated in Euro, at the rate per annum determined by the Administrative
Agent to represent its cost of overnight or short term funds in Euro. Nothing herein shall be
deemed to limit the rights of the Administrative Agent or any Lender against the applicable
Borrower.



(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.5(b), 2.5(c), 2.15(e) or 3.4(a), unless subject to a good faith dispute, then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision of this Agreement), apply any
amounts thereafter received by the Administrative Agent, the Swingline Lender or the Issuing Lender
hereunder for the account of such Lender to satisfy such Lender’s obligations under such Sections
until all such unsatisfied obligations are fully paid.



2.16 Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof or compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority made subsequent to
the date hereof:




(i) shall subject any Lender or the Issuing Lender to any (or any increase in any)
Other Connection Taxes with respect to this Agreement or any other Loan Document, any Letter
of Credit, or any participation in a Letter of Credit or any Loan made or Letter of Credit
issued by it, except any such Taxes imposed on or measured by its net income or profits
(however denominated) or franchise taxes imposed in lieu of net income or profits taxes;




(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender that is not otherwise included in the determination
of the Eurocurrency Rate; or




(iii) shall impose on such Lender any other condition (other than with respect to
Taxes);


 


30









 





and the result of any of the foregoing is to increase the cost to such Lender, by an amount that
such Lender deems to be material, of making, converting into, continuing or maintaining
Eurocurrency Loans (or, in the case of clause (i), any Loan, any Letter of Credit, or any
participation in a Letter of Credit or any Loan made or Letter of Credit issued by it) or issuing
or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the applicable Borrower shall promptly pay such Lender, promptly
following its demand, any additional amounts necessary to compensate such Lender for such increased
cost or reduced amount receivable; provided that notwithstanding anything herein to the
contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines or directives thereunder or issued in connection therewith shall be deemed to be a
change in a Requirement of Law, regardless of the date enacted, adopted or issued. If any Lender
becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly
notify the applicable Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.



(b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s
or such corporation’s capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration such Lender’s or
such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the Company (with a copy to
the Administrative Agent) of a written request therefor, the Company shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation for such reduction.



(c) A certificate as to any additional amounts payable pursuant to this Section submitted by
any Lender to the Company (with a copy to the Administrative Agent) shall be conclusive in the
absence of manifest error. Notwithstanding anything to the contrary in this Section, the
applicable Borrower shall not be required to compensate a Lender pursuant to this Section for any
amounts incurred
more than nine months prior to the date that such Lender notifies the Company of such Lender’s
intention to claim compensation therefor; provided that, if the circumstances giving rise
to such claim have a retroactive effect, then such nine-month period shall be extended to include
the period of such retroactive effect. The obligations of the Company pursuant to this Section
shall survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.



2.17 Taxes. (a) Any and all payments by or on account of any obligation of any Loan
Party hereunder or under any other Loan Document or Letter of Credit shall be made free and clear
of and without reduction or withholding for any Taxes unless such withholding is required by any
Requirement of Law. If any Withholding Agent determines, in its sole discretion exercised in good
faith, that it (or in the case of any Lender that is treated as a partnership for U.S. federal
income Tax purposes, by such Lender for the account of any of its direct or indirect beneficial
owners) is so required to deduct and withhold Taxes, then such Withholding Agent (or such Lender,
if applicable) may so deduct and withhold and shall timely pay the full amount of withheld Taxes to
the relevant Governmental Authority in accordance with applicable law. If such Taxes are
Indemnified Taxes, then the sum payable by the applicable Loan Party shall be increased as
necessary so that after making all required withholdings or deductions (including withholdings or
deductions applicable to additional sums payable under this Section) the Administrative Agent,
Lender, any Issuing Lender or its beneficial owner, as the case may be, receives an amount equal to
the sum it would have received had no such withholdings or deductions been made.



(b) Without limiting the provisions of paragraph (a) above, the Borrower shall timely pay, or
at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.


 


31









 





(c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Lender,
within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) payable by the Administrative Agent, such Lender (or its beneficial
owner) or the Issuing Lender, as the case may be, and any reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or the Issuing Lender (with a
copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of
a Lender or the Issuing Lender, shall be conclusive absent manifest error.



(d) Within 10 days after demand therefor, each Lender shall indemnify the Administrative Agent
(or any Loan Party) for the full amount of any Taxes (or in the case of a Loan Party, any Excluded
Taxes) attributable to such Lender that are payable or paid by the Administrative Agent or such
Loan Party (provided that, with respect to the Administrative Agent, only to the extent that the
Administrative Agent has not already been reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority and together with reasonable expenses arising
therefrom or with respect thereto. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent or the Loan Parties, as applicable, shall be
conclusive absent manifest error.



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




(f) [Reserved]




(g) (i) Any Lender that is entitled to an exemption from or reduction of any
applicable withholding Tax with respect to payments hereunder or under any other Loan
Document or Letter of Credit shall deliver to the Borrower (with a copy to the
Administrative Agent or, in the case of a Participant, to the Administrative Agent and the
Lender from which the related Participation shall have been purchased), at the time or times
reasonably requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law (if any) as will permit such
payments to be made without withholding or at a reduced rate of withholding. In addition,
any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such
other documentation prescribed by applicable law or reasonably requested by the Borrower or
the Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or information
reporting requirements. Notwithstanding anything to the contrary in the preceding two
sentences, in the case of any withholding Tax other than the U.S. federal withholding
Tax, the completion, execution and submission of such forms shall not be required
if (1) in the Lender’s judgment such completion, execution or submission would subject such
Lender to any material unreimbursed cost or expense or would materially prejudice the legal
or commercial position of such Lender and (2) in the case of German withholding Tax, such
forms are not substantially similar to forms prescribed by applicable law as of the date
hereof for exemption from or reduction of German withholding Tax.


 


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(ii) Without limiting the generality of the foregoing, in the event that the Borrower
is a U.S. Borrower, each Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Administrative Agent or, in the case of a Participant, to
the Administrative Agent and the Lender from which the related participation shall have been
purchased (in such number of copies as shall be requested by the recipient) on or prior to
the date on which such Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent), whichever of the
following is applicable:




	 	(A)	 	in the case of a Lender that is a
“United States Person” as defined in Section 7701(a)(30) of the
Code, two properly completed and duly signed copies of Internal
Revenue Service Form W-9 (or any successor form) certifying that
such Lender is exempt from U.S. federal withholding tax,






	 	(B)	 	duly completed copies of Internal
Revenue Service Form W-8BEN claiming eligibility for benefits of
an income Tax treaty to which the United States of America is a
party,






	 	(C)	 	duly completed copies of Internal
Revenue Service Form W-8ECI,






	 	(D)	 	in the case of a Foreign Lender
claiming the benefits of the exemption for portfolio interest
under section 881(c) of the Code, (x) a certificate
substantially in the Form of Exhibit H to the effect that (A)
such Foreign Lender is not (1) a “bank” within
the meaning of section 881(c)(3)(A) of the Code, (2) a “10
percent shareholder” of the Borrower within the meaning of
section 881(c)(3)(B) of the Code or (3) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code
and (B) the interest payment in question is not effectively
connected with the United States trade or business conducted
by such Lender (a “U.S. Tax Compliance Certificate”) and (y)
duly completed copies of Internal Revenue Service Form
W-8BEN,






	 	(E)	 	to the extent a Foreign Lender is
not the beneficial owner (for example, where the Foreign Lender
is a partnership or participating Lender granting a typical
participation), an Internal Revenue Service Form W-8IMY,
accompanied by a Form W-8ECI, W-8BEN, U.S. Tax Compliance
Certificate, Form W-9, and/or other certification documents from
each beneficial owner, as applicable; provided that, if the
Foreign Lender is a partnership (and not a participating Lender)
and one or more beneficial owners of such Foreign Lender are
claiming the portfolio interest exemption, such Foreign Lender
may provide a U.S. Tax Compliance Certificate on behalf of each
such beneficial owner, or






	 	(F)	 	any other form prescribed by
applicable law as a basis for claiming exemption from or a
reduction in United States federal withholding Tax duly
completed together with such supplementary documentation as may
be prescribed by applicable law to permit the Borrower and the
Administrative Agent to determine the withholding or deduction
required to be made




 


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(iii) In addition to the foregoing, if a payment made to a Lender under any Loan
Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall
deliver to the Withholding Agent, at the time or times prescribed by law and at such time or
times reasonably requested by the Withholding Agent, such documentation prescribed by
applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Withholding Agent as may be necessary
for the Withholding Agent to comply with its obligations under FATCA, to determine that such
Lender has complied with such Lender’s obligations under FATCA or to determine the amount to
deduct and withhold from such payment. For purposes of the preceding sentence, FATCA shall
include any amendments thereto and any regulations or official interpretations thereof.




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



(h) If the Administrative Agent, a Lender or the Issuing Lender determines, in its sole
discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it
has been
indemnified pursuant to this Section (including additional amounts paid by any Loan Party
pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund
(but only to the extent of indemnity payments made under this Section with respect to the
Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
(including any Taxes with respect to such refund) of the Administrative Agent, such Lender or the
Issuing Lender, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to the receipt of such refund), provided that
such indemnifying party, upon the request of the Administrative Agent, such Lender or the Issuing
Lender, agrees to repay the amount paid over pursuant to this Section 2.17(h) (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Lender or the Issuing Lender in the event the Administrative Agent, such Lender or the
Issuing Lender is required to repay such refund to such Governmental Authority. Notwithstanding
anything to the contrary in this paragraph (h), in no event will any Issuing Lender or Lender be
required to pay any amount to any Loan Party the payment of which would place the Issuing Lender or
such Lender in a less favorable net after-Tax position than the Issuing Lender or such Lender would
have been in if the indemnification payments or additional amounts giving rise to such refund had
never been paid. This paragraph shall not be construed to require the Administrative Agent, the
Issuing Lender 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.



(i) The agreements in this Section shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.


 


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2.18 Indemnity. Each Borrower agrees to indemnify each Lender for, and to hold each
Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of
(a) default by such Borrower in making a borrowing of, conversion into or continuation of
Eurocurrency Loans after the Company has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by such Borrower in making any prepayment of or
conversion from Eurocurrency Loans after the Company has given a notice thereof in accordance with
the provisions of this Agreement or (c) the making of a prepayment of Eurocurrency Loans, or a
conversion of Eurocurrency Loans into Eurocurrency Loans with a different Interest Period, on a day
that is not the last day of an Interest Period with respect thereto. Such indemnification may
include an amount equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from
the date of such prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurocurrency market. A certificate as to any
amounts payable pursuant to this Section submitted to the Company by any Lender shall be conclusive
in the absence of manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.



2.19 Change of Lending Office. Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of Section 2.16 or 2.17(a) with respect to such Lender, it will,
if requested by the Company, use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event;
provided, that such designation is made on terms that, in the sole judgment of such
Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect or
postpone any of the obligations of any Borrower or the rights of any Lender pursuant to Section
2.16 or 2.17(a). Each Lender may at any time and for any period, by notice to the Administrative
Agent and the Company, designate another lending office (including an Affiliate of a Lender) for
any Loans so long as such designation would not give rise to any additional obligation on the part
of any Borrower under Section 2.16 or 2.17(a).



2.20 Replacement of Lenders. The Company shall be permitted to replace any Lender
that (a) requests reimbursement for amounts owing pursuant to Section 2.16 or 2.17(a), (b) is a
Defaulting Lender, or (c) does not consent to any proposed amendment, supplement, modification,
consent or waiver of any provision of this Agreement or any other Loan Document that requires the
consent of each of the Lenders or each of the Lenders affected thereby and with respect to which
the Required Lenders shall have granted their consent, with a replacement financial institution;
provided that (i) such replacement does not conflict with any Requirement of Law, (ii) no
Event of Default shall have occurred and be continuing at the time of such replacement, (iii) prior
to any such replacement, such Lender shall have taken no action under Section 2.19 so as to
eliminate the continued need for payment of amounts owing pursuant to Section 2.16 or 2.17(a), (iv)
the replacement financial institution shall purchase, at par, all Loans and other amounts owing to
such replaced Lender on or prior to the date of replacement, (v) each applicable Borrower shall be
liable to such replaced Lender under Section 2.18 if any Eurocurrency Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period relating thereto, (vi)
the replacement financial institution shall be reasonably satisfactory to the Administrative Agent,
(vii) the replaced Lender shall be obligated to make such replacement in accordance with the
provisions of Section 10.6 (provided that the replaced Lender shall be deemed to have consented to
an Assignment and Acceptance and shall not be required to execute an Assignment and Acceptance),
(viii) until such time as such replacement shall be consummated, the Borrower shall pay all
additional amounts (if any) required pursuant to Section 2.16 or 2.17(a), as the case may be, and
(ix) any such replacement shall not be deemed to be a waiver of any rights that any Borrower, the
Administrative Agent or any other Lender shall have against the replaced Lender.


 


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2.21 Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Lender is a Defaulting Lender:



(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such
Defaulting Lender pursuant to Section 2.6;



(b) the Revolving Commitments and Revolving Extensions of Credit of such Defaulting Lender
shall not be included in determining whether the Required Lenders have taken or may take any action
hereunder, provided that any waiver, amendment or modification requiring the consent of all Lenders
shall require the consent of such Defaulting Lender, and any waiver, amendment or modification
requiring the consent of any affected Lender or all affected Lenders or such Lender shall require
the consent of such Defaulting Lender that is an affected Lender or such Lender;



(c) if any Swingline Loans or L/C Obligations exists at the time a Lender becomes a Defaulting
Lender then:




(i) all or any part of such Swingline Loans and L/C Obligations shall be reallocated
among the non-Defaulting Lenders in accordance with their respective Revolving Percentages
but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Extensions
of Credit does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and
(y) the conditions set forth in Section 5.2 are satisfied at such time; and




(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the applicable Borrower shall within one Business Day following notice by the
Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the
Swingline Loans and (y) second, cash collateralize such Defaulting Lender’s Revolving
Percentage of the L/C Obligations (after giving effect to any partial reallocation pursuant
to clause (i) above) in accordance with the procedures set forth in Section 8 for so long as
such L/C Obligations are outstanding, unless the Swingline Lender or the applicable Issuing
Lender, as applicable, have agreed on an alternate arrangement;




(iii) if the applicable Borrower cash collateralizes any portion of such Defaulting
Lender’s Revolving Percentage of the L/C Obligations pursuant to Section 2.21(c), such
Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section
3.3 with respect to such Defaulting Lender’s Revolving Percentage of the L/C Obligations
during the period of such collateralization;




(iv) if the Revolving Percentages of the L/C Obligations of the non-Defaulting Lenders
are reallocated pursuant to Section 2.21(c), then the fees payable to the Lenders pursuant
to Section 3.3 shall be correspondingly adjusted for the benefit of such non-Defaulting
Lenders in accordance with their Revolving Percentages; or




(v) if any Defaulting Lender’s Revolving Percentage of the L/C Obligations is neither
cash collateralized nor reallocated pursuant to Section 2.21(c), then, without prejudice to
any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all fees
that otherwise would have been payable to such Defaulting Lender under Section 3.3 with
respect to such Defaulting Lender’s Revolving Percentage of the L/C Obligations shall be
payable to the applicable Issuing Lender until such Revolving Percentage of the L/C
Obligations is cash collateralized and/or reallocated;


 


36









 





(d) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required
to fund any Swingline Loan and the Issuing Lenders shall not be required to issue, amend or
increase any Letter of Credit, unless it is satisfied that the related exposure will be 100%
covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be
provided by the Borrowers in accordance with Section 2.21(c), and participating interests in any
such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated
among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and Defaulting Lenders
shall not participate therein);



(e) if no Swingline Loans or L/C Obligations then exist, or all the obligations of the
Defaulting Lender in respect of the outstanding Swingline Loans or L/C Obligations have been
reallocated, cash collateralized or prepaid as contemplated in paragraph (c)(i) or (ii) of this
Section 2.21, the Company shall have the right, notwithstanding Section 2.15, to terminate the
Revolving Commitment of such Defaulting Lender only upon not less than three Business Days prior
notice to the Administrative Agent and payment in full on the date of such termination to the
Administrative Agent, for the account of such Defaulting Lender, of the principal and accrued
interest and fees then owing to such Defaulting Lender, with the Company remaining liable to such
Defaulting Lender under Section 2.18 if such payment is made in respect of any Eurocurrency Loan
other than on the last day of the Interest Period relating thereto; and



(f) any amount payable to such Defaulting Lender hereunder on account of any fees shall, in
lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a
segregated account and, subject to any applicable requirements of law, be applied at such time or
times as may be determined by the Administrative Agent (i) first, to the payment of any amounts
owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to
the payment of any amounts owing by such Defaulting Lender to the Issuing Lenders or Swingline
Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an
Issuing Lender or Swingline Lender, held in such account as cash collateral for future funding
obligations of the Defaulting Lender in respect of any existing or future participating interest in
any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which
such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and
the Company, held in such account as cash collateral for future funding obligations of the
Defaulting Lender in respect of any Loans under this Agreement, and (vi) sixth, to such Defaulting
Lender or as otherwise directed by a court of competent jurisdiction.



In the event that the Administrative Agent, the Company, the Issuing Lenders and the Swingline
Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the Revolving Percentages of the non-Defaulting Lenders
shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date
such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline
Loans) as the Administrative shall determine may be necessary in order for such Lender to hold such
Loans in accordance with its Revolving Percentage.


 


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2.22 Borrowing Subsidiaries. The Company may designate any Restricted Subsidiary that
is (i) a Wholly Owned Subsidiary of the Company and (ii) a Manufacturing Subsidiary, as a Borrowing
Subsidiary upon ten Business Days notice, or shorter notice if acceptable to the Administrative
Agent, to the Administrative Agent and the Lenders (such notice to include the name, primary
business address and tax identification number of such proposed Borrowing Subsidiary). Upon proper
notice and receipt by the Administrative Agent of such documents and legal opinions as the
Administrative Agent in consultation with all the Lenders may reasonably request (including a legal
opinion that no withholding Tax is applicable with respect to any payment made by such Restricted
Subsidiary and, with respect to any Restricted Subsidiary that is a Foreign Subsidiary, any
documents contemplated to be delivered by such Restricted Subsidiary (and its Restricted
Subsidiaries and parent entities) pursuant to 6.9(c) were such Restricted Subsidiary a new Foreign
Subsidiary acquired on the date of designation of such new Borrowing Subsidiary) and subject to the
Administrative Agent’s determining in consultation with all the Lenders that designating such
Restricted Subsidiary as a Borrowing Subsidiary would not cause any Lender to suffer any economic,
legal or regulatory disadvantage (it being understood and agreed that no Lender shall be deemed to
suffer any such disadvantage on account of any withholding Tax being applicable to any payment made
by such Restricted Subsidiary to the extent that the applicable Loan Parties agree to treat any
such withholding Tax as an Indemnified Tax, in which case no legal opinion that no withholding Tax
is applicable shall be required), such Restricted Subsidiary shall be a Borrowing Subsidiary and a
party to this Agreement and the other Loan Documents. A Restricted Subsidiary shall cease to be a
Borrowing Subsidiary hereunder at such time the Company gives at least ten Business Days prior
notice (or, shorter notice if acceptable to the Administrative Agent) to the Administrative Agent
and the Lenders of its intention of terminating such Restricted Subsidiary as a Borrowing
Subsidiary, provided that any such termination shall not be effective and such Restricted
Subsidiary shall remain a Borrowing Subsidiary until such time as Loans to such Borrowing
Subsidiary and accrued interest thereon and all other amounts then due from such Borrowing
Subsidiary have been paid in full. In this connection, if outstanding Letters of Credit have been
issued for the account of a Borrowing Subsidiary but all its Loans and accrued interest thereon
have been paid in full, the Company shall be permitted to reallocate such Letters of Credit to
another Borrower for the purpose of terminating such Borrowing
Subsidiary as a Borrowing Subsidiary, provided that such reallocation would not cause
the applicable Issuing Lender to suffer any economic, legal or regulatory disadvantage and such
reallocation is documented in a manner reasonably satisfactory to the Administrative Agent and the
Issuing Lender.



SECTION 3. LETTERS OF CREDIT




3.1 L/C Commitment. (a) Subject to the terms and conditions hereof, each Issuing
Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a),
agrees to issue letters of credit (“Letters of Credit”) for the account of the Company or
any Borrowing Subsidiary on any Business Day during the Revolving Commitment Period in such form as
may be approved from time to time by such Issuing Lender; provided that no Issuing Lender
shall have any obligation to issue any Letter of Credit if, after giving effect to such issuance,
(i) the L/C Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Commitments would be less than zero. Each Letter of Credit shall (i) be
denominated in Dollars, Canadian Dollars, Euro or British Pound Sterling, as the case may be, and
(ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y)
the date that is five Business Days prior to the Revolving Termination Date, provided that
any Letter of Credit may provide for the renewal thereof for additional periods of up to one year
(but in no event shall any such renewal extend beyond the date referred to in clause (y) above).
The letters of credit identified on Schedule 3.1 (the “Existing Letters of Credit”) shall
be deemed to be “Letters of Credit” issued on the Closing Date for all purposes of this Agreement
and the other Loan Documents.



(b) No Issuing Lender shall at any time be obligated to issue any Letter of Credit if such
issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed any
limits imposed by, any applicable Requirement of Law.


 


38









 





3.2 Procedure for Issuance of Letter of Credit. Each Borrower may from time to time
request that an Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender at its
address for notices specified herein an Application therefor, completed to the satisfaction of such
Issuing Lender, and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, such Issuing Lender will verify with
the Administrative Agent whether the requested Letter of Credit is permitted under Section 3.1 and
following the receipt of such verification, such Issuing Lender will process such Application and
the certificates, documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall such Issuing Lender be required to issue any Letter of
Credit earlier than three Business Days after its receipt of the Application therefor and all such
other certificates, documents and other papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by
such Issuing Lender and the applicable Borrower. Following receipt of such notice and prior to the
issuance of a requested Letter of Credit, the Administrative Agent shall calculate the Dollar
Equivalent of such Letter of Credit if it is to be denominated in a currency other than Dollars and
shall notify the Company and such Issuing Lender of the amount of the Total Revolving Extensions of
Credit after giving effect to (i) the issuance of such Letter of Credit, (ii) the issuance or
expiration of any other Letter of Credit that is to be issued or will expire prior to the requested
date of issuance of such Letter of Credit and (iii) the borrowing or repayment of any Revolving
Loans or Swingline Loans that (based upon notices delivered to the Administrative Agent by the
Company) are to be borrowed or repaid prior to the requested date of issuance of such Letter of
Credit. A Letter of Credit shall be issued only if (and upon issuance of each Letter of Credit the
relevant Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance,
amendment, renewal or extension (i) the L/C Obligations shall not exceed the L/C Commitment
and (ii) the amount of the Revolving Extensions of Credit shall not exceed the Total Revolving
Commitments. Such Issuing Lender shall promptly furnish to the Administrative Agent, which shall in
turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit (including
the amount thereof).



3.3 Fees and Other Charges. (a) Each Borrower will pay a fee on all outstanding
Letters of Credit issued for its account at a per annum rate equal to the Applicable Margin then in
effect with respect to Eurocurrency Loans under the Revolving Loans, shared ratably among the
Lenders and payable quarterly in arrears on each Fee Payment Date after the issuance date. In
addition, such Borrower shall pay to the applicable Issuing Lender for its own account a fronting
fee in an amount agreed by the Company and such Issuing Lender on the undrawn and unexpired amount
of each Letter of Credit issued by such Issuing Lender, payable quarterly in arrears on each Fee
Payment Date after the issuance date.



(b) Unless otherwise specifically agreed with an Issuing Lender, in addition to the foregoing
fees, each Borrower shall pay or reimburse such Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by such Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit issued for the account of
such Borrower.



3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees to grant and
hereby grants to each L/C Participant, and, to induce such Issuing Lender to issue Letters of
Credit, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from such Issuing Lender, on the terms and conditions set forth below, for such L/C
Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving
Percentage in such Issuing Lender’s obligations and rights under and in respect of each Letter of
Credit issued by it and the amount of each draft paid by such Issuing Lender thereunder. Each L/C
Participant agrees with each Issuing Lender that, if a draft is paid under any Letter of Credit
issued by such Issuing Lender for which such Issuing Lender is not reimbursed in full by the
applicable Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay
to such Issuing Lender upon demand at such Issuing Lender’s address for notices specified herein an
amount equal to such L/C Participant’s Revolving Percentage of the amount of such draft, or any
part thereof, that is not so reimbursed. Each L/C Participant’s obligation to pay such amount shall
be absolute and unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense or other right that such L/C Participant may have against
such Issuing Lender, the applicable Borrower or any other Person for any reason whatsoever, (ii)
the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of
the other conditions specified in Section 5, (iii) any adverse change in the condition (financial
or otherwise) of the applicable Borrower, (iv) any breach of this Agreement or any other Loan
Document by any Borrower, any other Loan Party or any other L/C Participant or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.


 


39









 





(b) If any amount required to be paid by any L/C Participant to an Issuing Lender pursuant to
Section 3.4(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender
under any Letter of Credit is paid to such Issuing Lender within three Business Days after the date
such payment is due, such L/C Participant shall pay to such Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate
during the period from and including the date such payment is required to the date on which such
payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of
which is the number
of days that elapse during such period and the denominator of which is 360. If any such
amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is not made available
to such Issuing Lender by such L/C Participant within three Business Days after the date such
payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the rate per annum
applicable to ABR Loans under the Revolving Loans. A certificate of such Issuing Lender submitted
to any L/C Participant with respect to any amounts owing under this Section shall be conclusive in
the absence of manifest error.



(c) Whenever, at any time after an Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its pro rata share of such payment in
accordance with Section 3.4(a), such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the applicable Borrower or otherwise, including proceeds of
collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof,
such Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C Participant
shall return to such Issuing Lender the portion thereof previously distributed by such Issuing
Lender to it.



3.5 Reimbursement Obligation of the Borrowers. If any draft is paid under any Letter
of Credit, the applicable Borrower shall reimburse the applicable Issuing Lender for the amount of
(a) the draft so paid and (b) any Taxes, fees, charges or other costs or expenses incurred by such
Issuing Lender in connection with such payment, not later than 2:00 P.M., Local Time, on (A) if
such Letter of Credit is denominated in Dollars, (i) the Business Day after such Borrower receives
notice of such draft, if such notice is received on such day prior to 10:00 A.M., New York City
time, or (ii) if clause (i) above does not apply, the second Business Day following the day that
such Borrower receives notice of such draft or (B) if such Letter of Credit is denominated in a
currency other than Dollars, three Business Days immediately following the day that such Borrower
receives notice of such draft. Each such payment shall be made to such Issuing Lender at its
address for notices referred to herein in the currency in which such draft is payable (except that,
in the case of any Letter of Credit denominated in any currency other than Dollars, upon notice by
such Issuing Lender to the applicable Borrower, such payment shall be made in Dollars from and
after the date on which the amount of such payment shall have been converted into Dollars at the
Spot Exchange Rate on such date of conversion, which date of conversion shall be selected by such
Issuing Lender and may be any Business Day after the date on which such payment is due) in
immediately available funds. Interest shall be payable on any such amounts from the date on which
the relevant draft is paid until payment in full at the rate set forth in (x) until the Business
Day next succeeding the date of the relevant notice, Section 2.12(b) and (y) thereafter, Section
2.12(c); provided, that if any such amount is denominated in a currency other than Dollars
for any period, such interest shall be payable for such period at the Alternate Currency Overnight
Rate.


 


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3.6 Obligations Absolute. Each Borrower’s obligations under this Section 3 with
respect to any Letter of Credit issued for its account shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that
such Borrower may have or have had against the applicable Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. Each Borrower also agrees with each Issuing Lender that such
Issuing Lender shall not be responsible for, and such Borrower’s Reimbursement Obligations under
Section 3.5 shall not be affected by, among other things, the validity or genuineness of documents
or of any endorsements thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among such Borrower
and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit
may be transferred or any claims whatsoever of such Borrower against any beneficiary of such Letter
of Credit or any such transferee. An Issuing Lender shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or omissions found to have
resulted from the gross negligence or willful misconduct of such Issuing Lender. Each Borrower
agrees that any action taken or omitted by each Issuing Lender under or in connection with any
Letter of Credit issued for the account of such Borrower or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct, shall be binding on such Borrower
and shall not result in any liability of the Issuing Lenders to such Borrower.



3.7 Letter of Credit Payments. If any draft shall be presented for payment under any
Letter of Credit, the applicable Issuing Lender shall promptly notify the Company of the date and
amount thereof. The responsibility of such Issuing Lender to a Borrower in connection with any
draft presented for payment under any Letter of Credit issued for the account of such Borrower
shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered under such Letter of
Credit in connection with such presentment are substantially in conformity with such Letter of
Credit.



3.8 Applications. To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall apply.



SECTION 4. REPRESENTATIONS AND WARRANTIES




To induce the Administrative Agent and the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, each of the Borrowers hereby jointly
and severally represents and warrants to the Administrative Agent and each Lender that:



4.1 Financial Condition. The audited consolidated and unaudited consolidating balance
sheets of the Company as at December 29, 2007, December 27, 2008 and December 26, 2009, and the
related consolidated statements of operations and of cash flows for the fiscal years ended on such
dates, reported on by and accompanied by an unqualified report (in the case of such consolidated
financial statements) from PricewaterhouseCoopers LLP, present fairly the consolidated financial
condition of the Company as at such date, and the consolidated and consolidating results of its
operations and its consolidated and consolidating cash flows for the respective fiscal years then
ended. The unaudited consolidated balance sheet of the Company as at March 27, 2010 and June 26,
2010, and the related unaudited consolidated statements of operations and cash flows for the
respective 3-month and 6-month periods ended on such dates, present fairly the consolidated
financial condition of the Company as at such date, and the consolidated results of its operations
and its consolidated cash flows for the respective 3-month and 6-month periods then ended (subject
to normal year-end audit adjustments, if any). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except, in the case of audited financial statements,
as approved by the aforementioned firm of accountants and disclosed therein), subject to normal
year-end audit adjustments, if any.


 


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4.2 No Change. Since December 26, 2009, there has been no development or event that has had a Material
Adverse Effect.



4.3 Existence; Compliance with Law. Each Group Member (a) is duly organized, validly
existing and (where such concept is legally relevant) in good standing under the laws of the
jurisdiction of its organization, (b) has the power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct the business in
which it is currently engaged, (c) is duly qualified as a foreign corporation or other organization
and (where such concept is legally relevant) in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its business requires such
qualification and (d) is in compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.



4.4 Power; Authorization; Enforceable Obligations. Each Loan Party has the power and
authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a
party and, in the case of each Borrower, to obtain extensions of credit hereunder. Each Loan Party
has taken all necessary organizational action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of each Borrower, to authorize the
extensions of credit on the terms and conditions of this Agreement. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the extensions of credit hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described in Schedule 4.4,
which consents, authorizations, filings and notices have been obtained or made and are in full
force and effect, (ii) the filings referred to in Section 4.19 or otherwise required in order to
perfect, record or maintain the security interests granted under the Security Documents and (iii)
those that, if not obtained or made, could not reasonably be expected to have a Material Adverse
Effect. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party
thereto. This Agreement constitutes, each Loan Document previously executed constitutes and each
other Loan Document upon execution will constitute, a legal, valid and binding obligation of each
Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or at law) or, with
respect to Loan Documents governed by the laws of the Federal Republic of Germany, conflicts of law
and similar principles.



4.5 No Legal Bar. The execution, delivery and performance of this Agreement and the
other Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and the use of
the proceeds thereof will not violate any Requirement of Law or any Contractual Obligation of any
Group Member in any material respect and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or
any such Contractual Obligation (other than the Liens created by the Security Documents).



4.6 Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Company, threatened by or against any Group Member
or against any of its respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably
be expected to have a Material Adverse Effect.


 


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4.7 No Default. No Default or Event of Default has occurred and is continuing.



4.8 Ownership of Property. Each Group Member has title in fee simple to (or, to the
extent such concept is not applicable in a foreign jurisdiction, the legal equivalent in such
jurisdiction of “legal title”), or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other property, and none of such property is
subject to any Lien except as permitted by Section 7.3, except in any such case to the extent that
it could not reasonably be expected to have a Material Adverse Effect.



4.9 Intellectual Property. To the Company’s knowledge, each Group Member owns, or is
licensed to use, all Intellectual Property necessary for the conduct of its business as currently
conducted. No claim has been asserted and is pending by any Person challenging the use of any
Intellectual Property or the validity or effectiveness of any Intellectual Property that could
reasonably be expected to have a Material Adverse Effect, nor does the Company know of any valid
basis for any such claim. To the Company’s knowledge, the use of Intellectual Property by each
Group Member does not infringe on the rights of any Person in any respect that could reasonably be
expected to have a Material Adverse Effect.



4.10 Taxes. Each Group Member has filed or caused to be filed all Federal Tax returns
that are required to be filed and has paid all Taxes shown to be due and payable on said returns.
Except to the extent that it could not reasonably be expected to have a Material Adverse Effect,
(i) each Group Member has filed or caused to be filed all state, foreign and other Tax returns that
are required to be filed and has paid all Taxes shown to be due and payable on said returns, (ii)
each Group Member has paid any assessments made against it or any of its property and all other
Taxes, fees or other charges imposed on it (including in its capacity as withholding agent) or any
of its property by any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings or with respect to which
reserves in conformity with GAAP have been provided on the books of the relevant Group Member), and
(iii) no Tax Lien has been filed, and, to the knowledge of the Company, no claim is being asserted,
with respect to any such Tax, fee or other charge.



4.11 Federal Regulations. No part of the proceeds of any Loans, and no other
extensions of credit hereunder, will be used (a) for “buying” or “carrying” any “margin stock”
within the respective meanings of each of the quoted terms under Regulation U as now and from time
to time hereafter in effect for any purpose that violates the provisions of the Regulations of the
Board or (b) for any purpose that violates the provisions of the Regulations of the Board. No more
than 25% of the assets of the Group Members consist of “margin stock” as so defined. If requested
by any Lender or the Administrative Agent, the Company will
furnish to the Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in
Regulation U.



4.12 Labor Matters. Except as, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, there are no strikes or other labor disputes against any Group
Member pending or, to the knowledge of the Company, threatened.



4.13 ERISA; Foreign Benefit Arrangements and Plans. (a) Except as could not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (i)
each Group Member and each of their respective ERISA Affiliates is in compliance with the
applicable provisions of ERISA and the provisions of the Code relating to Plans and the regulations
and published interpretations thereunder and with the terms of such Plan; and (ii) no ERISA Event
has occurred or is reasonably expected to occur.


 


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(b) Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (i) all employer and employee contributions required by applicable law or by the terms of
any Foreign Benefit Arrangement or Foreign Plan have been made, or, if applicable, accrued in
accordance with normal accounting practices; (ii) each Foreign Plan that is required to be
registered has been registered and has been maintained in good standing with applicable regulatory
authorities; and (iii) each such Foreign Benefit Arrangement and Foreign Plan is in compliance (A)
with all material provisions of applicable law and all applicable regulations and published
interpretations thereunder with respect to such Foreign Benefit Arrangement or Foreign Plan and (B)
with the terms of such plan or arrangement.



4.14 Investment Company Act; Other Regulations. No Loan Party is an “investment
company”, or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness.



4.15 Restricted Subsidiaries. Schedule 4.15 sets forth as of the Closing Date the
name and jurisdiction of incorporation of each Restricted Subsidiary and, as to each such
Restricted Subsidiary, the percentage of each class of Capital Stock owned by any Loan Party.



4.16 Use of Proceeds. The proceeds of the Revolving Loans and the Swingline Loans,
and the Letters of Credit, shall be used for general corporate purposes.



4.17 Environmental Matters. Except as, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:



(a) the facilities and properties owned, leased or operated by any Group Member (the
“Properties”) do not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under circumstances that constitute or
constituted a violation of, or could reasonably be expected to give rise to liability under, any
applicable Environmental Law;



(b) no Group Member has received or is aware of any written notice of violation or other
written notice, alleging a violation, non-compliance, liability or potential liability under or
relating to Environmental Laws with regard to any of the Properties or the business operated by any
Group Member (the “Business”), nor does the Company have knowledge of any reason for
believing that any such notice will be received;



(c) Materials of Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location that could reasonably be expected to
give rise to liability under, any applicable Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Law;



(d) no judicial proceeding or governmental or administrative action is pending or, to the
knowledge of the Company, threatened, under any Environmental Law to which any Group Member is or
could reasonably be expected to be named as a party with respect to the Properties or the Business,
nor are there any consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any Environmental Law
with respect to the Properties or the Business;


 


44









 





(e) there has been no release or threatened release of Materials of Environmental Concern at
or from the Properties, or arising from or related to the operations of any Group Member in
connection with the Properties or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could reasonably be expected to give rise to liability under applicable
Environmental Laws;



(f) all operations at the Properties are in compliance, and have in the last five years been
in compliance, with all applicable Environmental Laws, and there is no outstanding violation of any
Environmental Law with respect to the Properties or the Business; and



(g) no Group Member has assumed any liability of any other Person under applicable
Environmental Laws.



4.18 Accuracy of Information, etc. No statement or information contained in this
Agreement, any other Loan Document, the Confidential Information Memorandum or any other document,
certificate or statement furnished by or on behalf of any Loan Party to the Administrative Agent or
the Lenders, or any of them, for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement, information,
document or certificate was so furnished and taken together with any prior statements and
information (or, in the case of the Confidential Information Memorandum, as of the date of this
Agreement), any untrue statement of a material fact or omitted to state a material fact necessary
to make the statements contained herein or therein not misleading. The projections contained in
the materials referenced above are based upon good faith estimates and assumptions believed by
management of the Company to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be viewed as fact and that
actual results
during the period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount.



4.19 Security Documents. The Guarantee and Collateral Agreement is effective to
create in favor of the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds thereof. In the case
of the certificated Pledged Stock described in Schedule 2 to the Guarantee and Collateral Agreement
as of the Closing Date, stock certificates representing such Pledged Stock have been delivered to
the Administrative Agent (together with a properly completed and signed stock power or
endorsement), and in the case of the other Collateral described in the Guarantee and Collateral
Agreement as of the Closing Date, financing statements and other filings specified on Schedule 4.19
in appropriate form have been filed in the offices specified on Schedule 4.19, and the Guarantee
and Collateral Agreement constitutes a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as
security for the Obligations (as defined in the Guarantee and Collateral Agreement), in each case
prior and superior in right to any other Person (except, in the case of Collateral other than
certificated Pledged Stock, Liens permitted by Section 7.3). In the case of any certificated
Pledged Stock covered by the grant of a security interest pursuant to Section 3 of the Guarantee
and Collateral Agreement but not described on Schedule 2 thereto, when stock certificates
representing such Pledged Stock have been delivered to the Administrative Agent (together with a
properly completed and signed stock power or endorsement), the Guarantee and Collateral Agreement
will constitute a fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Pledged Stock and the proceeds thereof, as security for the
Obligations, prior and superior in right to any other Person.


 


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SECTION 5. CONDITIONS PRECEDENT




5.1 Conditions to Initial Extension of Credit. The effectiveness of this Agreement
and the agreement of each Lender to make Loans and of the Issuing Lender to issue Letters of Credit
hereunder are subject to the satisfaction, in each case prior to or concurrently with the Closing
Date, of the following conditions precedent:




(a) Credit Agreement; Guarantee and Collateral Agreement. The Administrative
Agent shall have received (i) this Agreement, executed and delivered by the Administrative
Agent, each Borrower, each Person listed on Schedule 1.1A and the “Required Lenders” under
and as defined in the Existing Credit Agreement; (ii) the Acknowledgement and Confirmation
of Guarantee and Collateral Agreement, executed and delivered by the Company; and (iii) such
confirmations or other documents, executed and delivered by the appropriate Loan Parties,
with respect to, or replacing, the German Security Documents and the Singapore Security
Documents, as the Administrative Agent shall have been advised by its German and Singaporean
counsel as being necessary or advisable for maintaining the security interests and charges
granted thereby.




(b) Financial Statements. The Lenders shall have received (i) the audited
consolidated and unaudited consolidating financial statements of the Company for the
December 29, 2007, December 27, 2008 and December 26, 2009 fiscal years and (ii) unaudited
interim consolidated financial statements of the Company for each fiscal quarter ended after
the date of the latest applicable financial statements delivered pursuant to clause (i) of
this paragraph as to which such financial statements are available.




(c) Approvals. All governmental and third party approvals necessary in connection
with the transactions contemplated hereby shall have been obtained and be in full force and
effect.




(d) Lien Searches. The Administrative Agent shall have received the results of a
recent lien search in the jurisdiction where the Company is organized, and such search shall
reveal no liens on any of the assets of the Company except for liens permitted by Section
7.3 or discharged on or prior to the Closing Date pursuant to documentation satisfactory to
the Administrative Agent.




(e) Repayment of Existing Credit Agreement. The Borrowers shall have prepaid or
paid, or shall have made arrangements reasonably satisfactory to the Administrative Agent to
prepay or pay, all “Loans” under the Existing Credit Agreement, together with all accrued
interest thereon and accrued fees under the Existing Credit Agreement.




(f) Fees. The Administrative Agent shall have received all fees required to be
paid by the Company to the Administrative Agent or the Lenders in connection with this
Agreement, and all expenses required by the terms hereof to be reimbursed or paid by the
Company for which invoices have been presented before the Closing Date (including the
reasonable fees and expenses of legal counsel).




(g) Closing Certificate; Certified Certificate of Incorporation; Good Standing
Certificates. The Administrative Agent shall have received a certificate of each Loan
Party, dated the Closing Date, substantially in the form of Exhibit E, with appropriate
insertions and attachments relating to the organization, existence and good standing of such
Loan Party (or equivalent certificate to the extent available in the case of any Foreign
Subsidiary), with such adjustments and modifications with respect to any Foreign Subsidiary
as the Administrative Agent may reasonably request.


 


46









 






(h) Legal Opinions. The Administrative Agent shall have received the following
executed legal opinions:




(i) the legal opinion of Cravath, Swaine & Moore LLP, counsel to the Company
and its Subsidiaries, substantially in the form of Exhibit F;




(ii) the legal opinion of local counsel in Germany, and of such other special
and local counsel as may be reasonably required by the Administrative Agent.




Each such legal opinion shall cover such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agent may reasonably require.




(i) Pledged Stock; Stock Powers; Pledged Notes. The Administrative Agent shall
have received or shall have in its possession (i) the certificates (if any) representing the
 shares of Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, together
with an undated stock power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof and (ii) each promissory note (if any) pledged to the
Administrative Agent pursuant to the Guarantee and Collateral Agreement endorsed (without
recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor
thereof.




(j) Filings, Registrations and Recordings. Each document (including any Uniform
Commercial Code financing statement) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed, registered or recorded in
order to maintain in favor of the Administrative Agent, for the benefit of the Lenders, a
perfected Lien on
the Collateral described therein, prior and superior in right to any other Person
(other than with respect to Liens expressly permitted by Section 7.3), shall be in proper
form for filing, registration or recordation.



For the purpose of determining compliance with the conditions specified in this Section 5.1, each
Lender that has signed this Agreement shall be deemed to have accepted, and to be satisfied with,
each document or other matter required under this Section 5.1 unless the Administrative Agent shall
have received written notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.



5.2 Conditions to Each Extension of Credit. The agreement of each Lender to make a
Loan and of the Issuing Lender to issue a Letter of Credit hereunder on any date (including any
Loans made and Letters of Credit issued hereunder on the Closing Date) are subject to the
satisfaction of the following conditions precedent:




(a) Representations and Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of such date as if made on and as of such date, except for
representations and warranties expressly stated to relate to a specific earlier date, in
which case such representations and warranties shall be true and correct in all material
respects as of such earlier date.




(b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date, both before and after giving effect to the extensions of credit
requested to be made on such date.



Each borrowing by and issuance of a Letter of Credit on behalf of each Borrower hereunder shall
constitute a representation and warranty by the Company and such Borrower as of the date of such
extension of credit that the conditions contained in this Section 5.2 have been satisfied.


 


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SECTION 6. AFFIRMATIVE COVENANTS




The Company hereby agrees that, so long as the Revolving Commitments remain in effect, any
Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender or the
Administrative Agent hereunder, it shall and shall cause each of its Restricted Subsidiaries to:



6.1 Financial Statements. In the case of the Company, furnish to the Administrative
Agent:




(a) as soon as available, but in any event within 90 days after the end of each fiscal
year of the Company, a copy of the audited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such year and the related audited consolidated
statements of income and of cash flows for such year, and setting forth in each case in
comparative form the figures for the previous year, reported (in the case of audited
financial statements) on without a “going concern” or like qualification or exception, or
qualification arising out of the scope of the audit, by PricewaterhouseCoopers LLP or other
independent certified public accountants of nationally recognized standing, together with an
unaudited summary of the consolidating balance sheet and statements of income and of cash
flow as of the end of such fiscal year for the Company and the Restricted Subsidiaries
setting forth in reasonable detail the figures required to allow the Administrative Agent
and the Lenders to
determine compliance by the Company with the covenants set forth in Section 7.1 as of
such end of fiscal year; and




(b) as soon as available, but in any event not later than 45 days after the end of each
of the first three quarterly periods of each fiscal year of the Company, the unaudited
consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated of income and of cash flows for such
quarter and the portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for the previous year, certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal year-end audit
adjustments), together with an unaudited summary of the consolidating balance sheet and
statements of income and of cash flow as at the end of such quarter for the Company and the
Restricted Subsidiaries setting forth in reasonable detail the figures required to allow the
Administrative Agent and the Lenders to determine compliance by the Company with the
covenants set forth in Section 7.1 as of the end of such quarter.



All such financial statements shall be complete and correct in all material respects and shall be
prepared in accordance with GAAP applied (except as disclosed in reasonable detail therein)
consistently throughout the periods reflected therein and with prior periods.




6.2 Certificates; Other Information. Furnish to the Administrative Agent:




(a) concurrently with the delivery of the audited financial statements referred to in
Section 6.1(a), and to the extent such independent certified public accountants provide such
certificates to the Company, a certificate of the independent certified public accountants
reporting on such financial statements stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default pursuant to Section
7.1, except as specified in such certificate;


 


48









 






(b) concurrently with the delivery of any financial statements pursuant to Section 6.1,
(i) a certificate of a Responsible Officer stating that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in such
certificate, (ii) a Compliance Certificate containing all information and calculations
necessary for determining compliance by the Company and the Restricted Subsidiaries with the
provisions of this Agreement referred to therein as of the last day of the fiscal quarter or
fiscal year of the Company, as the case may be, (iii) to the extent not previously disclosed
to the Administrative Agent, (1) a description of any change in the jurisdiction of
organization of any Loan Party and (2) a description of any Person that has become a Group
Member, in each case since the date of the most recent report delivered pursuant to this
clause (iii) (or, in the case of the first such report so delivered, since the Closing Date)
and (iv) a certificate of a Responsible Officer of the Company disclosing all Guarantee
Obligations by a Group Member of Indebtedness of any Person (other than a Group Member) and
including, with respect to each such Guarantee Obligations, the identity of the parties to
the Indebtedness and other obligations covered by such Guarantee Obligations, the notice
information for each such party and any change in the identity of any party, whether such
Guarantee Obligations constitute Specified Guarantee Obligations, the aggregate amount of
the Indebtedness and other obligations covered by such Guarantee Obligations, the amount of
such Indebtedness and other obligations that is outstanding or accrued, the accrued interest
on the outstanding or accrued amount and the date of payments and any other information that
the Administrative Agent may reasonably request;




(c) upon reasonable request of the Administrative Agent, copies of (i) any documents
described in Section 101(k) of ERISA that any Group Member or any ERISA Affiliate may
request with respect to any Multiemployer Plan and (ii) any notices described in Section
101(l) of ERISA that any Group Member or any ERISA Affiliate may request with respect to any
Multiemployer Plan;




(d) promptly, such additional financial and other information as the Administrative
Agent (including at the request of any Lender) may from time to time reasonably request;




(e) promptly, after any Person (other than a Group Member) enters into Indebtedness
covered by Guarantee Obligations of a Group Member, a copy of the documents evidencing the
Guarantee Obligations and notice of any default under such documents; and




(f) prior to the consummation of the European Restructuring, organizational charts
describing in reasonable detail the European Restructuring and such other charts and other
documents relating thereto as the Administrative Agent may reasonably request (provided that
it is understood that the Company shall not be required to effect the European Restructuring
in accordance with such charts and other documents so long as it notifies the Administrative
Agent of any changes).



Information required to be delivered pursuant to Section 6.1 and this Section 6.2 shall be
deemed to have been effectively delivered on the date on which the Company provides notice to the
Administrative Agent (which notice the Administrative Agent shall promptly provide to the Lenders)
 that such information has been posted on the Securities and Exchange Commission website on the
Internet, on the Company’s IntraLinks site at intralinks.com or at another relevant website
identified in such notice and accessible by the Lenders without charge. Any such notice by the
Company or the Administrative Agent may be made by e-mail.


 


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6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, as the case may be, all obligations (including Taxes but
excluding Indebtedness) of whatever nature, except where the amount or validity thereof is being
contested in good faith by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the relevant Group Member and except to the
extent that any failure to pay, discharge or otherwise satisfy any such obligation could not
reasonably be expected to have a Material Adverse Effect.



6.4 Maintenance of Existence; Compliance. (a)(i) Preserve, renew and keep in full
force and effect its organizational existence and (ii) take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 7.4 and except, in the case of clause (ii)
above, to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Contractual Obligations and Requirements of Law except to
the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.



6.5 Maintenance of Property; Insurance. (a)  Keep all property useful and necessary
in its business in good working order and condition, ordinary wear and tear excepted and
(b) maintain with financially sound and reputable
insurance companies insurance in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies engaged in the same or a similar
business.



6.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper books of
records and account in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation to its business and
activities and (b) permit representatives of the Administrative Agent or any Lender to (i) visit
and inspect any of its properties and examine and make abstracts from any of its books and records
and (ii) to discuss the business, operations, properties and financial and other condition of the
Group Members with officers and employees of the Company and with its independent certified public
accountants, in each of clause (i) and (ii), during regular business hours upon reasonable advance
notice and at any reasonable time but not more than once per year (or, during the occurrence and
continuation of an Event of Default, as often as may reasonably be requested); provided
that the Company shall have the right to be present at any such visit, inspection or discussion.



6.7 Notices. Promptly give notice to the Administrative Agent and each Lender upon a
Responsible Officer obtaining knowledge of:




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




(b) any (i) default or event of default under any Contractual Obligation of any Group
Member or (ii) litigation, investigation or proceeding that may exist at any time between
any Group Member and any Governmental Authority, that in either case could reasonably be
expected to have a Material Adverse Effect;




(c) any litigation or proceeding affecting any Group Member that could reasonably be
expected to have a Material Adverse Effect or which relates to any Loan Document;




(d) an ERISA Event; and




(e) any development or event that is reasonably expected to have a Material Adverse
Effect.



Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
relevant Group Member proposes to take with respect thereto.


 


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6.8 Environmental Laws. (a) Comply in all material respects with, and ensure
compliance in all material respects by all of its tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply in all material respects with and maintain,
and ensure that all of its tenants and subtenants obtain and comply in all material respects with
and maintain, any and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.



(b) Conduct and complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws, except, in each case, to the extent the Company is diligently disputing
its responsibility or liability for any such matter in a reasonably appropriate forum or manner and
such disputation could not reasonably be expected to result, individually or in the aggregate, in a
Material Adverse Effect.



6.9 Additional Collateral, etc. (a) With respect to any property in the form of
Capital Stock of a Restricted Subsidiary or intercompany notes or intercompany receivables (but, in
the case of any intercompany note or receivable owing by an Unrestricted Subsidiary, only if it
arises out of the sale of solar modules) acquired after the Closing Date by any Loan Party (other
than any such property described in paragraph (b) or (c) below and such property acquired by any
Excluded Foreign Subsidiary) as to which the Administrative Agent, for the benefit of the Lenders,
does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement, the Foreign Collateral Agreements or such
other documents as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in such property
(provided that, only with respect to the Obligations of the Company or any Domestic Subsidiary
Guarantor, the amount of Capital Stock of any Restricted Subsidiary that is a first-tier Foreign
Subsidiary owned by the Company or any Domestic Subsidiary Guarantor pledged pursuant to this
Section 6.9(a) shall be limited to 66% of the total outstanding voting Capital Stock and 100% of
the total outstanding non-voting Capital Stock of such Foreign Subsidiary) and (ii) take all
actions necessary or advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest in such property, including the filing of
Uniform Commercial Code financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent.



(b) With respect to any new Domestic Subsidiary that is a Restricted Subsidiary created or
acquired after the Closing Date (which, for the purposes of this paragraph (b), shall include any
such existing Unrestricted Subsidiary that is subsequently designated as a Restricted Subsidiary),
promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest
in the Capital Stock of such new Restricted Subsidiary that is owned by the Company or any Domestic
Subsidiary Guarantor, (ii) deliver to the Administrative Agent the certificates representing such
Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly
authorized officer of the relevant Group Member, (iii) cause such new Restricted Subsidiary, if it
is a Wholly Owned Subsidiary of the Company, (A) to become a party to the Guarantee and Collateral
Agreement, (B) to take such actions necessary or advisable to grant to the Administrative Agent for
the benefit of the Lenders a perfected first priority security interest in the Collateral described
in the Guarantee and Collateral Agreement (but, in the case of any intercompany note or receivable
owing by an Unrestricted Subsidiary, only if it arises out of the sale of solar modules) owned by
such Restricted Subsidiary, including the filing of Uniform Commercial Code financing statements in
such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may
be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a
certificate of such Restricted Subsidiary, substantially in the form of Exhibit E, with appropriate
insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above, which opinions shall
be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.


 


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(c) With respect to any new Foreign Subsidiary that is a Restricted Subsidiary created or
acquired after the Closing Date (which, for the purposes of this paragraph (c), shall include any
such existing Unrestricted Subsidiary that is subsequently designated as a Restricted Subsidiary),
to the extent
permitted and practicable and as reasonably requested by the Administrative Agent, and unless
material adverse Tax or other legal effects would result therefrom (as assessed by the Company and
the Administrative Agent) promptly (i) execute and deliver to the Administrative Agent such
amendments to the applicable Security Documents or execute such new Security Documents as the
Administrative Agent reasonably deems necessary or advisable to grant to the Administrative Agent,
for the benefit of the Lenders, a perfected first priority security interest in the Capital Stock
of such new Foreign Subsidiary that is owned by a Loan Party (provided that, only with respect to
the Obligations of the Company or any Domestic Subsidiary Guarantor, the amount pledged pursuant to
this Section 6.9(c) shall be limited to 66% of the total outstanding voting Capital Stock and 100%
of the total outstanding non-voting Capital Stock of any first-tier Foreign Subsidiary owned by the
Company or any Domestic Subsidiary Guarantor), (ii) deliver to the Administrative Agent the
certificates (if any) representing such Capital Stock, together with undated stock powers, in
blank, executed and delivered by a duly authorized officer of the relevant Group Member, and take
such other action as may be necessary or, in the opinion of the Administrative Agent, desirable to
perfect the Administrative Agent’s security interest therein, (iii) cause such new Restricted
Subsidiary, if it is a Wholly Owned Subsidiary of the Company (A) to execute and deliver any new
Security Documents or become a party to the applicable Security Documents (provided that such new
Restricted Subsidiary shall only guarantee Obligations of the Borrowing Subsidiaries that are
Foreign Subsidiaries), (B) to take such actions necessary or advisable to grant to the
Administrative Agent for the benefit of the Lenders a perfected first priority security interest in
its property in the form of Capital Stock of a Restricted Subsidiary or intercompany notes or
intercompany receivables of such new Restricted Subsidiary (but, in the case of any intercompany
note or receivable owing by an Unrestricted Subsidiary, only if it arises out of the sale of solar
modules), including the applicable filings in such jurisdictions as may be required by the
applicable Security Document or by law or as may be requested by the Administrative Agent and (C)
to deliver to the Administrative Agent a certificate of such Restricted Subsidiary, substantially
in the form of Exhibit E, with appropriate insertions and attachments and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.



6.10 Designation of Subsidiaries. The Company may at any time designate any
Restricted Subsidiary other than a Manufacturing Subsidiary as an Unrestricted Subsidiary or any
Unrestricted Subsidiary as a Restricted Subsidiary, provided that (i) immediately after
giving effect to such designation, the Company and the Restricted Subsidiaries shall be in
compliance, on a pro forma basis with the covenants set forth in Section 7.1(a), 7.1(b) and 7.1(c),
and (ii) the Company may only designate any existing Restricted Subsidiary other than a
Manufacturing Subsidiary as an Unrestricted Subsidiary if immediately before and after such
designation, no Default shall have occurred and be continuing. The designation of any Unrestricted
Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of
any Indebtedness or Liens of such Subsidiary existing at such time. Each designation or
redesignation must be evidenced by a notice from a Responsible Officer to the Administrative Agent
together with a certificate of a Responsible Officer of the Company certifying that such
designation complies with the foregoing conditions and setting forth in reasonable detail the
calculations demonstrating compliance with the covenants set forth in Section 7.1(a), 7.1(b) and
7.1(c).


 


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6.11 Post-Closing Obligations. Take each action set forth on Schedule 6.11 within the
time period set forth on Schedule 6.11 for such action; provided that in each case, the
Administrative Agent may, in its sole discretion, grant extensions of the time periods set forth in
Schedule 6.11.



SECTION 7. NEGATIVE COVENANTS




The Company hereby agrees that, so long as the Revolving Commitments remain in effect, any
Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender or
the Administrative Agent hereunder, it shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:




7.1 Financial Condition Covenants.



(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as at any
time to exceed 1.75 to 1.00.



(b) Consolidated EBITDA. Permit Consolidated EBITDA for any period of four
consecutive fiscal quarters of the Company (i) ending with any fiscal quarter ending after the
Closing Date and prior to the third anniversary of the Closing Date, to be less than $400,000,000,
(ii) ending with any fiscal quarter ending after the third anniversary of the Closing Date and
prior to the fourth anniversary of the Closing Date, to be less than $500,000,000, and (iii) ending
with any fiscal quarter ending after the fourth anniversary of the Closing Date and prior to the
Revolving Termination Date, to be less than $600,000,000.



(c) Minimum Liquidity. Permit the Liquidity Availability at any time to be less than
$400,000,000.



7.2 Indebtedness and Guarantee Obligations. (A) In the case of any Restricted
Subsidiary, create, issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness, except:




(a) Indebtedness of any Restricted Subsidiary pursuant to any Loan Document;




(b) Indebtedness of any Restricted Subsidiary to the Company or any other Restricted
Subsidiary;




(c) Indebtedness of any Domestic Subsidiary Guarantor not secured by any Lien on its
property;




(d) Indebtedness of any Restricted Subsidiary listed on Schedule 7.2(A)(d) and any
refinancings, refundings, renewals or extensions thereof (without increasing, or shortening
the maturity of, the principal amount thereof);




(e) Indebtedness of any Restricted Subsidiary incurred to finance the construction or
acquisition of fixed or capital assets or any data or software in an aggregate principal
amount for all Restricted Subsidiaries not to exceed $25,000,000 at any one time
outstanding;


 


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(f) additional Indebtedness of the Restricted Subsidiaries other than the Specified
Restricted Subsidiaries incurred to finance the construction or acquisition of new
manufacturing facilities and assets relating thereto in an aggregate principal amount,
together with (i) the aggregate principal amount of any Indebtedness of the Company secured
as permitted under Section 7.3(u) and (ii) the aggregate amount of Guarantee Obligations
incurred pursuant to Section 7.2(B)(b), not to exceed $700,000,000 at any one time
outstanding; provided that additional Indebtedness availability pursuant to this
Section 7.2(A)(f) at the Malaysian Manufacturing Subsidiary shall be limited to term
Indebtedness in a principal amount not to exceed $150,000,000 plus €80,000,000 and
additional Indebtedness availability at the German
Manufacturing Subsidiary shall be limited to term Indebtedness in a principal amount
not to exceed €130,000,000; provided, further, that (i) any such new term
Indebtedness at the Malaysian Manufacturing Subsidiary or the German Manufacturing
Subsidiary, once all contemplated draw-downs have been made, shall not be increased, but may
be extended or refinanced at any time so long as the final maturity thereof is not shortened
(except if to a maturity date occurring after the Revolving Termination Date) and any
interim amortization is at no time greater than as provided in such new term Indebtedness
and (ii) any such new term Indebtedness at the German Manufacturing Subsidiary shall also be
subject to the Company and the German Manufacturing Subsidiary, together with the lenders
party thereto or an agent or other representative on their behalf, entering into an
intercreditor agreement or similar document with the Administrative Agent reasonably
acceptable to the Administrative Agent;




(g) Guarantee Obligations permitted under Section 7.2(B); and




(h) unsecured Indebtedness of First Solar France Manufacturing SAS that is not covered
by an explicit Guarantee Obligation by any Group Member (other than a French parent company
of First Solar France Manufacturing SAS), incurred pursuant to a joint venture arrangement
more fully described to the Administrative Agent and the Lenders in an aggregate principal
amount not to exceed €50,000,000 at any one time outstanding and any refinancings,
refundings, renewals or extensions thereof (without increasing, or shortening the maturity
of, the principal amount thereof).



For purposes of determining compliance with this Section 7.2(A), the amount of any
Indebtedness denominated in any currency other than Dollars shall be calculated based on customary
currency exchange rates in effect on the date that such Indebtedness was incurred.



(B) In the case of any Restricted Subsidiary (other than a Domestic Subsidiary Guarantor),
create, issue, incur, assume, become liable in respect of or suffer to exist any Guarantee
Obligation, except:




(a) Guarantee Obligations by any Restricted Subsidiary in respect of the obligations of
the Company or any other Restricted Subsidiary;




(b) Guarantee Obligations by any Restricted Subsidiary in respect of obligations of any
Unrestricted Subsidiary or another Person that is not a Group Member that are recommended as
a result of tax savings, Requirement of Law or other reasons in the operation of the
business of the Company and its Restricted Subsidiaries and that in each case are reasonably
satisfactory to the Administrative Agent; and




(c) Guarantee Obligations of any Restricted Subsidiary outstanding on the date hereof
and listed on Schedule 7.2(B)(c) and any renewal or extension thereof (including in
connection with any refinancing or refunding of the obligations guaranteed).


 


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7.3 Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, whether now owned or hereafter acquired, except:




(a) Liens for Taxes and other governmental charges not overdue by more than 30 days or
that are being contested in good faith by appropriate proceedings, provided that
adequate reserves
with respect thereto are maintained on the books of the applicable Group Member in
conformity with GAAP;




(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s or other
like Liens arising in the ordinary course of business that are not overdue for a period of
more than 30 days or that are being contested in good faith by appropriate proceedings;




(c) pledges, deposits or similar Liens in connection with workers’ compensation,
unemployment insurance and other social security legislation or regulation;




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




(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business that, in the aggregate do not in any case materially detract
from the value of the property subject thereto or materially interfere with the ordinary
conduct of the business of any Group Member;




(f) Liens in existence on the date hereof listed on Schedule 7.3(f), provided that
no such Lien is spread to cover any additional property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;




(g) Liens created pursuant to the Security Documents;




(h) Liens created pursuant to the Malaysian Facility Agreement and the State of Ohio
Facility Agreements;




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




(j) Liens securing Indebtedness of any Restricted Subsidiary to finance the
acquisition or construction of fixed or capital assets or any data or software,
provided that (i) such Liens shall be created prior to or within 180 days after the
acquisition or completion of construction of such fixed or capital assets or data or
software, (ii) such Liens do not at any time encumber any property other than the property
financed by such Indebtedness, (iii) the amount of Indebtedness secured thereby does not
exceed $25,000,000 at any one time outstanding and (iv) such secured Indebtedness shall not
be incurred to finance the construction or acquisition of new manufacturing facilities and
assets relating thereto;




(k) Liens securing Indebtedness of the Company to finance the acquisition or
construction of fixed or capital assets or any data or software, provided that (i)
such Liens shall be created prior to or within 180 days after the acquisition or completion
of construction of such fixed or capital assets or data or software, (ii) such Liens do not
at any time encumber any property other than the property financed by such Indebtedness,
(iii) the amount of Indebtedness secured thereby, together with any obligations of the
Company and the Restricted Subsidiaries permitted by Section 7.3(v), does not exceed
$75,000,000 at any one time outstanding and (iv) such secured Indebtedness shall not be
incurred to finance the construction or acquisition of new manufacturing facilities and
assets relating thereto;


 


55









 






(l) any Lien on any property acquired after the Closing Date and existing prior to the
acquisition thereof by any Group Member or existing on any property of any Person that
becomes a Restricted Subsidiary after the Closing Date that exists prior to the time such
Person becomes a Restricted Subsidiary; provided that in each case such Lien is not
created in contemplation of or in connection with such acquisition or such Person becoming a
Restricted Subsidiary, as the case may be;




(m) customary rights of set-off, revocation, refund or chargeback under deposit
agreements or under the Uniform Commercial Code of banks or other financial institutions
where any Group Member maintains deposits (other than deposits intended as cash collateral)
in the ordinary course of business;




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




(o) Liens on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto;




(p) licenses, sublicenses, leases and subleases entered into in the ordinary course of
business and any landlords’ liens arising under any such leases;




(q) obligations with respect to repurchase agreements of the type described in the
definition of Cash Equivalents;




(r) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods by any Group Member entered into by such Group Member in
the ordinary course of its business;




(s) Liens on property of a Group Member securing obligations owed to another Group
Member;




(t) Liens securing judgments in an aggregate amount not exceeding $20,000,000 at any
one time;




(u) Liens not otherwise permitted by this Section securing Indebtedness of the Company
incurred to finance the construction or acquisition of new manufacturing facilities and
assets relating thereto, or Indebtedness of any Restricted Subsidiary permitted by Section
7.2(A)(f), so long as the aggregate outstanding principal amount of such Indebtedness does
not exceed (as to all Group Members) $700,000,000 at any one time and such Liens are on the
new manufacturing facilities and assets relating thereto financed thereby and other related
assets; and




(v) other Liens not otherwise permitted by this Section 7.3 securing obligations in an
aggregate amount for all Group Members, together with any Indebtedness of the Company
secured by Liens permitted by Section 7.3(k), not exceeding $75,000,000 at any time
outstanding.



For purposes of determining compliance with this Section 7.3, the amount of obligations
secured by Liens denominated in any currency other than Dollars shall be calculated based on
customary currency exchange rates in effect on the date that obligations secured by such Liens were
incurred.


 


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7.4 Fundamental Changes. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:




(a) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into
the Company (provided that the Company shall be the continuing or surviving
corporation) or with or into any other Restricted Subsidiary (provided that if
either Restricted Subsidiary is a Subsidiary Guarantor or Wholly Owned Subsidiary, the
survivor shall be a Subsidiary Guarantor or a Wholly Owned Subsidiary, as applicable);




(b) any Person may be merged, consolidated or amalgamated with or into any Group Member
in order to effect an acquisition;




(c) any Restricted Subsidiary may Dispose of any or all of its assets (i) to the
Company or any Wholly Owned Subsidiary Guarantor (upon voluntary liquidation or otherwise)
or (ii) pursuant to a Disposition permitted by Section 7.5;




(d) any Restricted Subsidiary may be liquidated, wound up or dissolved if such
liquidation, winding up or dissolution is not materially disadvantageous to the Lenders,
provided that if such Restricted Subsidiary is a Subsidiary Guarantor any
liquidation, winding up or dissolution thereof shall be into a Borrower or a Subsidiary
Guarantor;




(e) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into
another Person to effect a Disposition permitted by Section 7.5; and




(f) the European Restructuring shall be permitted.



7.5 Disposition of Property. Dispose of any of its property (other than cash),
whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or
sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:




(a) the Disposition of obsolete or worn out property, used equipment or other property
no longer useful in the business of the Group Members, in each case in the ordinary course
of business;




(b) the sale of inventory in the ordinary course of business;




(c) Dispositions permitted by clause (i) of Section 7.4(c);




(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company or
any Wholly Owned Subsidiary Guarantor;




(e) Dispositions of Cash Equivalents;




(f) Dispositions of accounts receivable in connection with the collection or compromise
thereof in the ordinary course of business;




(g) Dispositions by any Group Member to any other Group Member;




(h) Dispositions permitted by Section 7.9;




(i) Dispositions constituting investments in another Person;


 


57









 






(j) Dispositions of a portion of any property acquired after the Closing Date pursuant
to an Acquisition, provided such Dispositions are effected within 360 days after such
Acquisition;




(k) issuance by a newly-formed Restricted Subsidiary of its Capital Stock to any Group
Member in connection with its formation;




(l) issuance by any Restricted Subsidiary of additional Capital Stock to any Group
Member that already owns Capital Stock of such Restricted Subsidiary or to any other Group
Member that is the Company or is a wholly owned Restricted Subsidiary, provided that if the
Capital Stock of such Restricted Subsidiary is already owned directly by a Loan Party, then
such Capital Stock shall be issued to such Loan Party;




(m) issuance by any non-wholly owned Restricted Subsidiary of additional Capital Stock
to Persons that are not Group Members, if such issuance does not result in the dilution of
the interests in the Capital Stock of such non-wholly owned Restricted Subsidiary held by
the Group Members or, to the extent resulting in a dilution, is treated as a Disposition and
is permitted under Section 7.5(n);




(n) the Disposition during any fiscal year of the Company of other property having an
aggregate fair market value not to exceed 5% of Consolidated Tangible Assets of the Company
as of the end of the immediately preceding fiscal year; and




(o) any Disposition to an Unrestricted Subsidiary so long as such Disposition is not of
assets used in, and does not impair, the manufacturing or sales operations of any Group
Member.



7.6 Restricted Payments. Declare or pay any dividend (other than dividends payable
solely in common stock of the Person making such dividend) on, or make any payment on account of,
or set apart assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, whether now
or hereafter outstanding, or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of any Group Member (collectively,
“Restricted Payments”), except that:




(a) any Restricted Subsidiary may make Restricted Payments to any Group Member that
holds any of its Capital Stock, as well as ratable Restricted Payments to the other holders
of its Capital Stock;




(b) so long as no Default or Event of Default shall have occurred and be continuing at
the time thereof and after giving effect thereto, the Company may purchase the Company’s
Capital Stock from present or former directors, officers or employees of the Company or any
Subsidiary (or their estates or heirs) (i) upon the death, disability or termination of
employment of such officer or employee or (ii) pursuant to Contractual Obligations or
compensation plans; and




(c) any Group Member may purchase any Capital Stock of any Subsidiary.



7.7 Acquisitions. Make any Acquisition, except for (a) Permitted Acquisitions, (b)
Acquisitions of Capital Stock of any Subsidiary and (c) Acquisitions of assets of the Company or
any Subsidiary not prohibited by Section 7.4.


 


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7.8 Transactions with Affiliates. Enter into any transaction, including any purchase,
sale, lease or exchange of property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than the Company or any Subsidiary) unless such
transaction is (a) otherwise permitted under this Agreement, and (b) upon terms no less favorable
to the relevant Group Member than it would obtain in a comparable arm’s length transaction with a
Person that is not an Affiliate.



7.9 Sales and Leasebacks. Enter into any arrangement with any Person (other than
another Group Member) providing for the leasing by any Group Member other than a Systems Subsidiary
of real or personal property that has been or is to be sold or transferred by such Group Member to
such Person or to any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of such Group Member (a “Sale and
Leaseback”), other than Sale and Leasebacks of real or personal property by a Group Member
effected within 180 days after the date of the acquisition of such property if sold or transferred
for a price equal or higher than the acquisition price paid by such Group Member.



7.10 Swap Agreements.  Enter into any Swap Agreement, except (a) Swap Agreements
entered into to hedge or mitigate risks to which the Company or any Restricted Subsidiary has
actual exposure and (b) Swap Agreements entered into in order to effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one floating rate to another floating
rate or otherwise) with respect to any interest-bearing liability or investment of the Company or
any Restricted Subsidiary.



7.11 Changes in Fiscal Periods. Change the fiscal year of the Company or change the
Company’s method of determining fiscal quarters, provided that the Company is permitted to change
its fiscal year to end on December 31 and its fiscal quarters to calendar quarters.



7.12 Negative Pledge Clauses. Enter into or suffer to exist or become effective any
agreement that prohibits or limits the ability of any Loan Party to create, incur, assume or suffer
to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, to
secure its obligations under the Loan Documents to which it is a party other than this Agreement
and the other Loan Documents, other than (i) the agreements existing on the date hereof and listed
on Schedule 7.12, (ii) any restrictions with respect to a Restricted Subsidiary imposed pursuant to
an agreement that has been entered into in connection with the Disposition of all or substantially
all of the Capital Stock or assets of any Restricted Subsidiary, (iii) any customary provisions in
leases, licenses and other agreements restricting assignment thereof, (iv) restrictions that are
binding on a Restricted Subsidiary at the time it becomes a Restricted Subsidiary and that were not
entered into in contemplation of its becoming a Restricted Subsidiary, (v) agreements entered into
after the Closing Date with limitations or prohibitions on the ability to create or incur Liens
that are not more restrictive to such Loan Party than those contained in the Malaysian Facility
Agreement that do not restrict the ability of the Loan Party to secure its obligations under the
Loan Documents and (vi) restrictions imposed by any agreement relating to secured obligations that
apply only to the property securing such obligations.



7.13 Clauses Restricting Subsidiary Distributions. Enter into or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) make Restricted Payments in respect of any Capital Stock of such Restricted
Subsidiary held by, or pay any Indebtedness owed to, the Company or any other Restricted
Subsidiary, (b) make loans or advances to the Company or any other Restricted Subsidiary or (c)
transfer any of its assets to the Company or any other Restricted Subsidiary, except for such
encumbrances or restrictions existing under or by reason of (i) any restrictions existing under the
Loan Documents, (ii) any restrictions with respect to a Restricted Subsidiary imposed pursuant to
an agreement that has been entered into in connection with the Disposition of all or substantially
all of the Capital Stock or assets of such Restricted Subsidiary, (iii) any customary provisions in
leases, licenses and other agreements restricting assignment thereof, (iv) restrictions that are
binding on a Restricted Subsidiary at the time it becomes a Restricted Subsidiary and that were not
entered into in contemplation of its becoming a Restricted Subsidiary, (v) restrictions imposed by
any agreement relating to secured obligations that apply only to the property securing such
obligations and (vi) restrictions of the type referred to in clauses (a) and (b) above with respect
to Indebtedness of any Restricted Subsidiary permitted pursuant to Section 7.2(A)(f), so long as
such restrictions do not apply at times when the applicable Group Member is in compliance with
certain financial covenants or tests in the applicable documentation for such Indebtedness and no
default exists thereunder.


 


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7.14 Lines of Business. Enter into, to any material extent, any business, either
directly or through any Restricted Subsidiary, except for those businesses in which the Company and
its Restricted Subsidiaries are engaged on the date of this Agreement or that are reasonably
related thereto or otherwise related to the energy business.



SECTION 8. EVENTS OF DEFAULT





If any of the following events shall occur and be continuing:




(a) any Borrower shall fail to pay any principal of any Loan or Reimbursement
Obligation when due in accordance with the terms hereof; or any Borrower shall fail to pay
any interest on any Loan or Reimbursement Obligation, or any other amount payable hereunder
or under any other Loan Document, within five days after any such interest or other amount
becomes due in accordance with the terms hereof; or




(b) any representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document or that is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been inaccurate in any material respect on
or as of the date made or deemed made; or




(c) any Loan Party shall default in the observance or performance of any agreement
contained in clause (i) of Section 6.4(a) (with respect to the Company only), Section 6.7(a)
or Section 7 of this Agreement; or




(d) any Loan Party shall default in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section), and such default shall continue unremedied for a period of
30 days after notice to the Company from the Administrative Agent or the Required Lenders;
or




(e) (A) any Group Member shall (i) default in making any payment of any principal of
any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the
scheduled or original due date with respect thereto; or (ii) default in making any payment
of any interest on any such Indebtedness; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, in each of clauses (ii) and (iii) beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was created, the
effect of which default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required (or, in the case of any such
Indebtedness constituting a Guarantee Obligation, the taking of enforcement action against
the underlying obligor), such Indebtedness to become due prior to its stated maturity or (in
the case of any such Indebtedness constituting a Guarantee Obligation)
to become payable; or



 


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(B) any Person (other than a Group Member) shall (i) default in making any payment of any
principal of any Indebtedness covered by a Guarantee Obligation of a Group Member on the
scheduled or original due date with respect thereto; or (ii) default in making any payment
of any interest on any such Indebtedness; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, in each of clauses (ii) and (iii) beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was created, the
effect of which default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such Indebtedness to become
due prior to its stated maturity or to become payable; provided, that a default,
event or condition described in clause (A)(i), (A)(ii), (A)(iii), (B)(i), (B)(ii) or
(B)(iii) of this paragraph (e) shall not at any time constitute an Event of Default unless,
at such time, one or more defaults, events or conditions of the type described in clauses
(A)(i), (A)(ii), (A)(iii), (B)(i), (B)(ii) or (B)(iii) of this paragraph (e) shall have
occurred and be continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $20,000,000, provided that this paragraph (e) shall
not apply to Indebtedness that becomes due, or under which a default occurs, as a result of
the voluntary sale or transfer of property or assets if such sale or transfer is permitted
hereunder and such Indebtedness is paid by or on behalf of the relevant obligor; or




(f) (i) any Group Member shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or any
substantial part of its assets; or (ii) there shall be commenced against any Group Member
any case, proceeding or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed or undischarged for a period of 60 days; or (iii) there shall be
commenced against any Group Member any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any such relief
that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) any Group Member shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) any Group Member shall generally not, or shall
be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or (vi) or any Group Member
shall make a general assignment for the benefit of its creditors; or




(g) (i) an ERISA Event shall have occurred, (ii) a trustee shall be appointed by a
United States district court to administer any Pension Plan, (iii) the PBGC shall institute
proceedings to terminate any Pension Plan(s), (iv) any Group Member or any of their
respective ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan
that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and
such entity does not have reasonable grounds for contesting such Withdrawal Liability or is
not contesting such Withdrawal Liability in a timely and appropriate manner; or (v) any
other event or condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (v) above, such event or condition, together with all other such events
or conditions, if any, could reasonably be expected to result in a Material Adverse Effect;
or


 


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(h) one or more judgments or decrees shall be entered against any Group Member involving in
the aggregate a liability (not paid and to the extent not fully covered by insurance as to
which the relevant insurance company has been notified and has not denied coverage) of
$20,000,000 or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or




(i) any of the Security Documents shall cease, for any reason, to be in full force and
effect, or any Loan Party shall so assert, or any Lien with respect to any Collateral
consisting of Collateral (other than Pledged Stock) having an aggregate value in excess of
$10,000,000 created by any of the Security Documents shall cease to be enforceable and of
the same effect and priority purported to be created thereby, in each case, except as
permitted by the terms of the Loan Documents; or




(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall
cease, for any reason, to be in full force and effect or any Loan Party or any Affiliate of
any Loan Party shall so assert, in each case, except as permitted by the terms of the Loan
Documents; or




(k) (i) 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 (the “Exchange Act”)), excluding the Walton
Interests, shall become, or obtain rights (whether by means or warrants, options or
otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or indirectly, of more than 35% of the outstanding common stock
of the Company or (ii) the Company shall cease to be the beneficial owner, directly or
indirectly, of 100% of the Capital Stock of each other Loan Party, other than pursuant to a
Disposition permitted by Section 7.5;



then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Company or any other Borrower with outstanding
Loans, automatically the Revolving Commitments shall immediately terminate and the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and the other Loan
Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of Default, either or
both of the following actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Company declare the Revolving Commitments to be terminated forthwith,
whereupon the Revolving Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the
Company, declare the Loans (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented the documents
required thereunder) to be due and payable forthwith, whereupon the same shall immediately become
due and payable. With respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this paragraph, the applicable
Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent
an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay
other obligations of the Borrowers hereunder and under the other Loan Documents. After all such
Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Borrowers hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash collateral account shall
be returned to the Borrowers (or such other Person as may be lawfully entitled thereto). Except as
expressly provided above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived by each Borrower.


 


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SECTION 9. THE AGENTS




9.1 Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents,
and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take
such action on its behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Administrative Agent.



9.2 Delegation of Duties. The Administrative Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.



9.3 Exculpatory Provisions. Neither any Agent nor any of their respective officers,
directors, employees, agents, advisors, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from its or
such Person’s own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer thereof contained
in this Agreement or any other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agents under or in connection with,
this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of
any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Agents
shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the properties, books or records of any Loan Party.



9.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy or email message, statement, order or other
document or conversation believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal counsel (including
counsel to the Borrowers), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for
all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by
this Agreement, all Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the Loans.


 


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9.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has
received notice from a Lender or the Company referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a “notice of default”. In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.



9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that
neither the Agents nor any of their respective officers, directors, employees, agents, advisors,
attorneys-in-fact or affiliates have made any representations or warranties to it and that no act
by any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate
of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any
Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal of and investigation
into the business, operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will, independently and without reliance
upon any Agent or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their affiliates.
Except for notices, reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan
Party or any affiliate of a Loan Party that may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, advisors, attorneys-in-fact or
affiliates.



9.7 Indemnification. The Lenders agree to indemnify each Agent and its officers,
directors, employees, affiliates, agents, advisors and controlling persons (each, an “Agent
Indemnitee”) (to the extent not reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to do so), ratably according to their respective Revolving Percentage
in effect on the date on which indemnification is sought under this Section (or, if indemnification
is sought after the date upon which the Revolving Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Revolving Percentage immediately
prior to such date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against such Agent Indemnitee in any way relating to or arising out of, the Revolving
Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby or any action
taken or omitted by such Agent Indemnitee under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Agent Indemnitee’s gross negligence or willful misconduct.
The agreements in this Section shall survive the payment of the Loans and all other amounts payable
hereunder.


 


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9.8 Agent in Its Individual Capacity. Each Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of business with any Loan Party as though
such Agent were not an Agent. With respect to its Loans made or renewed by it and with respect to
any Letter of Credit issued or participated in by it, each Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as
though it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.



9.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 15 days’ notice to the Lenders and the Company. If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of
Default under Section 8(a) or Section 8(f) with respect to any Borrower shall have occurred and be
continuing) be subject to approval by the Company (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties
of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent
effective upon such appointment and approval, and the former Administrative Agent’s rights, powers
and duties as Administrative Agent shall be terminated, without any other or further act or deed on
the part of such former Administrative Agent or any of the parties to this Agreement or any holders
of the Loans. If no successor agent has accepted appointment as Administrative Agent by the date
that is 15 days following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Lenders
shall assume and perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided for above. After any
retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section
9 and of Section 10.5 shall continue to inure to its benefit.



9.10 Documentation Agent and Syndication Agent. Neither the Documentation Agents nor
the Syndication Agent shall have any duties or responsibilities hereunder in its capacity as such.


 


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SECTION 10. MISCELLANEOUS




10.1 Amendments and Waivers. Neither this Agreement, any other Loan Document, nor any
terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 10.1 or as provided in Section 2.3. The Required Lenders and each Loan
Party party to the relevant Loan Document may, or, with the written consent of the Required
Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from
time to time, (a) enter into written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or
thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative
Agent, as the case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) forgive the principal amount or extend the final scheduled date of maturity
of any Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in
connection with the waiver of applicability of any post-default increase in interest rates (which
waiver shall be effective with the consent of the Required Lenders) and (y) that any amendment or
modification of defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or extend
the scheduled date of any payment thereof, or increase the amount or extend the expiration date of
any Lender’s Revolving Commitment, in each case without the written consent of each Lender directly
affected thereby, provided that in the event of increases to the Total Revolving Commitment
pursuant to Section 2.3, only the consent of the Lenders committing to such increase shall be
required; (ii) eliminate or reduce the voting rights of any Lender under this Section 10.1 without
the written consent of such Lender; (iii) reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by the Borrowers of any of their rights and
obligations under this Agreement and the other Loan Documents, release all or substantially all of
the Collateral or release the Company or release all or substantially all of the
Subsidiary Guarantors from their obligations under the Guarantee and Collateral Agreement or
the Foreign Collateral Agreements, in each case without the written consent of all Lenders; (iv)
change Section 2.15(b) in a manner that would alter the pro rata sharing of payments required
thereby without the written consent of all Lenders (except such changes in connection with an
amendment, waiver or modification (A) that provides for a rate of interest for consenting Lenders
that is different than the rate of interest for non-consenting Lenders, or provides for accrued
interest to be paid pro rata to Lenders in accordance with the amount of interest owed to such
Lenders, (B) to permit the Company or any of its Affiliates to purchase, redeem, exchange or prepay
the Loans or (C) relating to the application of the provisions of this Agreement with respect to a
Defaulting Lender); (v) amend, modify or waive any provision of Section 9 or any other provision of
any Loan Document that affects the Administrative Agent without the written consent of the
Administrative Agent; (vi) amend, modify or waive any provision of Section 2.4 or 2.5 without the
written consent of the Swingline Lender; or (vii) amend, modify or waive any provision of Section 3
without the written consent of each Issuing Lender affected thereby. Any such waiver and any such
amendment, supplement or modification shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan
Parties, the Lenders and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.



Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with
the written consent of the Required Lenders, the Administrative Agent and the Borrowers (a) to add
one or more additional credit facilities to this Agreement or to increase the aggregate Revolving
Commitments by adding one or more lenders or increasing the Revolving Commitments of one or more
Lenders that have agreed to such increase, and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the
benefits of this Agreement and the other Loan Documents with the Revolving Extensions of Credit and
the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders
holding such credit facilities in any determination of the Required Lenders.


 


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Notwithstanding anything in this Agreement or any other Loan Document to the contrary, the
Administrative Agent is hereby expressly authorized by each Lender to execute and deliver any
waivers, amendments and other modifications of the German Security Documents in connection with and
in furtherance of the European Restructuring, in each case without the consent of or any other
action by any Lender, and each Lender hereby agrees to be bound by any such waiver, amendment or
other modification with the same force and effect, and to the same extent, as if such Lender were a
party thereto.



10.2 Notices. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered, or three Business
Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received (or, if delivered or received after the regular business hours of the recipient, on the
following Business Day), addressed as follows in the case of the Company and the other Borrowers
and the Administrative Agent, and as set forth in an administrative questionnaire delivered to the
Administrative Agent in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:



	 	 	 
	Borrowers:

	 	First Solar, Inc.
	 

	 	350 West Washington Street, 
Suite 600
	 

	 	Tempe, Arizona 85281
	 

	 	Attention: David Brady
	 

	 	Telecopy: (602) 414-9462
	 

	 	Telephone: (602) 414-9362
	 
	 	 
	 

	 	First Solar, Inc.
	 

	 	350 West Washington Street, 
Suite 600
	 

	 	Tempe, Arizona 85281
	 

	 	Attention: Peter Bartolino, Esq.
	 

	 	Telecopy: (602) 414-9423
	 

	 	Telephone: (602) 414-9323
	 
	 	 
	Administrative Agent in
respect of ABR Loans
and JPMorgan Chase
Bank, N.A.
as Issuing Lender:

	 	JPMorgan Chase Bank, N.A.

10 South Dearborn, 7th Floor

Chicago, IL 60603

Attention: Creston Wren
	 

	 	Telecopy: (312) 385-7097
	 

	 	Telephone: (312) 385-7016
	 
	 	 
	 

	 	JPMorgan Chase Bank, N.A.
	 

	 	201 North Central Avenue, 
Floor 21
	 

	 	Phoenix, AZ 85004
	 

	 	Attention: Mark Chambers
	 

	 	Telecopy: (602) 221-1502
	 

	 	Telephone: (602) 221-2290
	 
	 	 
	Administrative Agent in
respect of Eurocurrency
Loans:

	 	J.P. Morgan Europe Limited

125 London Wall

London
	 

	 	EC2Y 5AJ
	 

	 	Attention: Lucy Chick
	 

	 	Telecopy: +44 20 7777 2940
	 

	 	Telephone: +44 20 7777 2360






provided that any notice, request or demand to or upon the Administrative Agent or the
Lenders shall not be effective until received.


 


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



10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent
or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.



10.4 Survival of Representations and Warranties. All representations and warranties
made hereunder, in the other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans and other extensions of credit hereunder.



10.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or reimburse the
Administrative Agent for all its reasonable costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions contemplated hereby and
thereby, including the reasonable fees and disbursements of one domestic counsel and one counsel in
each foreign jurisdiction of the Borrowers to the Administrative Agent and filing and recording
fees and expenses, with statements with respect to the foregoing to be submitted to the Company
prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from time to
time thereafter on a quarterly basis or such other periodic basis as the Administrative Agent shall
deem appropriate, (b) to pay or reimburse each Lender and the Administrative Agent for all its
costs and expenses incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents, including the fees and
disbursements of counsel to each Lender and of counsel to the Administrative Agent, (c) to pay,
indemnify, and hold each Lender and the Administrative Agent harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and similar Taxes, if any, that may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, agents and advisors (each, an “Indemnitee”)
harmless from and against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, and suits of any kind or nature whatsoever arising out of the execution,
delivery, enforcement, performance and administration of this Agreement, the other Loan Documents
and any such other documents, including any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable
to the operations of any Group Member or any of the Properties and the reasonable fees and expenses
of legal counsel in connection with claims, actions or proceedings relating to the foregoing (all
the foregoing in this clause (d), collectively, the “Indemnified Liabilities”),
provided, that the Company shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities to the extent such Indemnified Liabilities resulted from the
gross negligence or willful misconduct of such Indemnitee or any of its affiliates or their
respective officers, directors or employees. Without limiting the foregoing, and to the extent
permitted by applicable law and to the extent relating to Indemnified Liabilities (other than those
covered by the proviso to the preceding sentence), the Company agrees not to assert and to cause
its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive,
all rights for contribution or any other rights of recovery with respect to all claims, demands,
penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or otherwise against any
Indemnitee. All amounts due under this Section 10.5 shall be payable promptly after written demand
therefor. Statements payable by the Company pursuant to this Section 10.5 shall be submitted to
David Brady (Telephone No. (602) 414-9362) (Telecopy No. (602) 414-9462), at the address of the
Company set forth in Section 10.2, or to such other Person or address as may be hereafter
designated by the Company in a written notice to the Administrative Agent. The agreements in this
Section 10.5 shall survive repayment of the Loans and all other amounts payable hereunder. This
Section 10.5 shall not apply with respect to any Taxes other than as provided in paragraph (c) or
any Taxes that represent losses or damages arising from any non-Tax claim.


 


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10.6 Successors and Assigns; Participations and Assignments. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any affiliate of the Issuing Lender that issues
any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by such Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section.



(b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may (and,
within five days after notice by the Company to a Lender in accordance with Section 2.20, shall)
assign to one or more Eligible Assignees (each, an “Assignee”) all or a portion of its
rights and obligations under this Agreement (including all or a portion of its Revolving
Commitments and the Loans at the time owing to it) with the prior written consent of:




(A) the Company (such consent not to be unreasonably withheld), provided that
no consent of the Company shall be required for an assignment to a Lender, an affiliate of a
Lender, an Approved Fund (as defined below) or, if an Event of Default under Section 8(a) or
(f) has occurred and is continuing, any other Person; and




(B) the Administrative Agent and each Issuing Lender (each such consent not to be
unreasonably withheld), provided that no consent of the Administrative Agent or the
Issuing Lenders shall be required for an assignment to a Lender, an affiliate of a Lender or
an Approved Fund.




(ii) Assignments shall be subject to the following additional conditions:




(A) except in the case of an assignment to a Lender, an affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Revolving Commitments and Loans, the amount of the Revolving Commitments and Loans of the
assigning Lender subject to each such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000 in the case of a Revolving Commitment (and the
corresponding ratable portion of the Loans) unless each of the Company and the
Administrative Agent otherwise consent, provided that (1) no such consent of the
Company shall be required if an Event of Default under Section 8(a) or (f) has occurred and
is continuing and (2) such amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;


 


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(B) any assignment of all or any part of the Revolving Commitment of any Lender shall
include a ratable assignment of its Loans, and vice versa;




(C)(1) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500
and (2) the assigning Lender shall have paid in full any amounts owing by it to the
Administrative Agent;




(D) the Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire in which the Assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material non-public
information about the Company and its Affiliates and their related parties or their
respective securities) will be made available and who may receive such information in
accordance with the assignee’s compliance procedures and applicable laws, including Federal
and state securities laws; and




(E) without the prior written consent of the Administrative Agent, no assignment shall
be
made to a prospective Assignee that bears a relationship to the Borrower described in
Section 108(e)(4) of the Code.



For the purposes of this Section 10.6, “Approved Fund” means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an affiliate of a Lender or (c) an entity or an affiliate of an entity
that administers or manages a Lender.



(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from
and after the effective date specified in each Assignment and Assumption the Assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.16, 2.17, 2.18 and 10.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.6 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.



(iv) The Administrative Agent, acting for this purpose as an agent of the Company, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Revolving
Commitments of, and principal amount of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Company, each other Borrower, the Administrative Agent, each
Issuing Lender and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by the
Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.


 


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(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment required by paragraph (b)
of this Section, the Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in this paragraph.



(c)(i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Revolving Commitments and the Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations, (C) without the
prior written consent of the Administrative Agent, no participation shall be sold to a prospective
Participant that bears a relationship to the Borrower described in Section 108(e)(4) of the Code
and (D) the Borrower, the Administrative Agent, the Issuing Lenders and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for
the indemnity under Section 2.17(d) with respect to any payments made by such Lender to its
Participant(s). Any agreement pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver that (1) requires the consent of each Lender directly
affected thereby pursuant to the proviso to the second sentence of Section 10.1 and (2) directly
affects such Participant. Subject to paragraph (c)(ii) of this Section, each Borrower agrees that
each Participant shall be entitled to the benefits of (and the limitations of) Sections 2.16, 2.17
and 2.18 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.7(b) as though it were a Lender, provided such
Participant shall be subject to Section 10.7(a) as though it were a Lender. Each Lender that sells
a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a
register on which it enters the name and address of each Participant and the principal amounts (and
stated interest) of each participant’s interest in the Loans or other obligations under this
Agreement (the “Participant Register”); provided that no Lender shall have any
obligation to disclose all or any portion of the Participant Register to any Person (including the
identity of any Participant or any information relating to a Participant’s interest in any
Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) except to
the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of
Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States
Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest
error, and such Lender shall treat each person whose name is recorded in the Participant Register
as the owner of such participation for all purposes of this Agreement notwithstanding any notice to
the contrary.



(ii) A Participant shall not be entitled to receive any greater payment under Section 2.16 or
2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent (not to be unreasonably withheld or delayed),
provided that the Participant shall be subject to the provisions of Sections 2.15, 2.19 and 2.20 as
if it were an assignee under this Section 10.6.


 


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(d)  Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security
interest shall release a Lender from any of its obligations hereunder or substitute any such
pledgee or Assignee for such Lender as a party hereto.



(e) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(d) above.



(f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have funded hereunder to its designating Lender without the consent of the Company or the
Administrative Agent and without regard to the limitations set forth in Section 10.6(b). Each
Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute
against a Conduit Lender or join any other Person in instituting against a Conduit Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however, that each
Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.



10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement, any other
Loan Document or a court order expressly provides for payments to be allocated to a particular
Lender, if any Lender (a “Benefitted Lender”) shall receive any payment of all or part of
the Obligations owing to it (other than in connection with an assignment made pursuant to Section
10.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender, such Benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such portion of the
Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits
of any such collateral, as shall be necessary to cause such Benefitted Lender to share the excess
payment or benefits of such collateral ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.



(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without notice to the Borrowers, any such notice being expressly waived by each
Borrower to the extent permitted by applicable law, upon the Obligations becoming due and payable
at the stated maturity or by acceleration, to apply to the payment of such Obligations, by setoff
or otherwise, any and all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such
Lender, any affiliate thereof or any of their respective branches or agencies to or for the credit
or the account of the Borrowers. Each Lender agrees promptly to notify the applicable Borrower and
the Administrative Agent after any such application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such application.


 


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10.8 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page of this
Agreement by email or facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Company and the Administrative Agent.



10.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



10.10 Integration. This Agreement and the other Loan Documents represent the entire
agreement of the Borrowers, the Administrative Agent and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.



10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.



10.12 Submission To Jurisdiction; Waivers. Each Borrower hereby irrevocably and
unconditionally:




(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;




(b) consents that any such action or proceeding may be brought in such courts and waives
any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;




(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to each Borrower, as the case may be at its address set forth in
Section 10.2 or at such other address of which the Administrative Agent shall have been
notified pursuant thereto;




(d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and




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


 


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10.13 Acknowledgements. Each Borrower hereby acknowledges that:




(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with
the Borrowers arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between Administrative Agent and Lenders, on one hand, and
the Borrowers, on the other hand, in connection herewith or therewith is solely that of
debtor and creditor; and




(c) no joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or among the
Borrowers and the Lenders.



10.14 Releases of Guarantees and Liens. (a) Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably
authorized by each Lender (without requirement of notice to or consent of any Lender except as
expressly required by Section 10.1) to take any action reasonably requested by the Company having
the effect of releasing any Collateral or Guarantee Obligations (i) in connection with consummation
of any transaction not prohibited by any Loan Document or that has been consented to in accordance
with Section 10.1 (including release of Liens on Collateral Disposed of or release of Guarantee
Obligations of, and Collateral owned by, any Restricted Subsidiary that ceases to be a Restricted
Subsidiary or in connection with the European Restructuring) or (ii) under the circumstances
described in paragraph (b) below.



(b) At such time as the Loans, the Reimbursement Obligations and the other obligations under
the Loan Documents (other than obligations under or in respect of Swap Agreements or obligations in
respect of indemnities or expense reimbursement obligations for which no amount is claimed owing at
the time) shall have been paid in full, the Revolving Commitments have been terminated and no
Letters of Credit shall be outstanding (other than those Letters of Credit to which the applicable
Issuing Lender has agreed to an alternate arrangement), the Collateral shall be released from the
Liens created by the Security Documents, and the Security Documents and all obligations (other than
those expressly stated to survive such termination) of the Administrative Agent and each Loan Party
under the Security Documents shall terminate, all without delivery of any instrument or performance
of any act by any Person.



10.15 Confidentiality. Each of the Administrative Agent and each Lender agrees to keep
confidential all non-public information provided to it by any Loan Party, the Administrative Agent
or any Lender pursuant to or in connection with this Agreement in accordance with the customary
procedures of such agent or such Lender; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such information (a) to the Administrative
Agent, any other Lender or any affiliate thereof, (b) subject to an agreement to comply with the
provisions of this Section, to any actual or prospective
Transferee or any direct or indirect counterparty to any Swap Agreement or other derivatives (or
any professional advisor to such counterparty), (c) on a confidential basis, to its employees,
directors, agents, attorneys, accountants and other professional advisors or those of any of its
affiliates, (d) upon the request or demand of any Governmental Authority, (e) in response to any
order of any court or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any litigation or
similar proceeding (after giving notice to the Company), (g) that has been publicly disclosed, (h)
on a confidential basis, to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to information about a
Lender’s investment portfolio in connection with ratings issued with respect to such Lender, or (i)
in connection with the exercise of any remedy hereunder or under any other Loan Document, or (j) if
agreed by the Company in its sole discretion, to any other Person.


 


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Each Lender acknowledges that information furnished to it pursuant to this Agreement or the
other Loan Documents may include material non-public information concerning the Borrowers and their
Affiliates and their related parties or their respective securities, and confirms that it has
developed compliance procedures regarding the use of material non-public information and that it
will handle such material non-public information in accordance with those procedures and applicable
law, including Federal and state securities laws.



All information, including requests for waivers and amendments, furnished by the Borrowers or
the Administrative Agent pursuant to, or in the course of administering, this Agreement or the
other Loan Documents will be syndicate-level information, which may contain material non-public
information about the Borrowers and their Affiliates and their related parties or their respective
securities. Accordingly, each Lender represents to the Borrowers and the Administrative Agent that
it has identified in its administrative questionnaire a credit contact who may receive information
that may contain material non-public information in accordance with its compliance procedures and
applicable law, including Federal and state securities laws.



10.16 WAIVERS OF JURY TRIAL. EACH BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.



10.17 No Fiduciary Duty. The Borrowers agree that nothing in the Loan Documents or
otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or
other implied duty between any Lender, on the one hand, and the Borrowers, their stockholders or
their affiliates, on the other. The Loan Parties acknowledge and agree that (i) the transactions
contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and
thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the
Borrowers, on the other, and (ii) in connection therewith and with the process leading thereto, (x)
no Lender has assumed an advisory or fiduciary responsibility in favor of the Borrowers, their
stockholders or their affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective
of whether any Lender has advised, is currently advising or will advise the Borrowers, their
stockholders or their Affiliates on other matters) or any other obligation to the Borrowers except
the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as
principal and not as the agent or fiduciary of the Borrowers, their management, stockholders,
creditors or any other Person. The Borrowers acknowledge and agree that the Borrowers have
consulted their own legal and financial advisors to the extent they deemed appropriate and that
they
are responsible for making their own independent judgment with respect to such transactions
and the process leading thereto. The Borrowers agree that it will not claim that any Lender has
rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the
Borrowers, in connection with such transaction or the process leading thereto.


 


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10.18 USA Patriot Act. Each Lender hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies
each Borrower, which information includes the name and address of the Borrowers and other
information that will allow such Lender to identify the Borrowers in accordance with the Patriot
Act.



10.19 Consent to Amendment and Restatement. Upon the Closing Date, this Agreement
shall amend and restate the Existing Credit Agreement. All commitments of the Existing Lenders
under the Existing Credit Agreement shall be terminated upon effectiveness of this Agreement in
accordance with Section 5.1. The Lenders party hereto comprising the “Required Lenders” under the
Existing Credit Agreement acknowledge and agree that (i) the Existing Agreement is hereby amended
and restated, effective as of the Closing Date, as provided for herein, and (ii) prior notice by
the Borrowers of (a) prepayment of the Loans under the Existing Credit Agreement and (b)
termination of the Revolving Commitments under the Existing Credit Agreement, is hereby waived.


 


76









 





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



	 	 	 	 	 
	 	FIRST SOLAR, INC.

 	 
	 	By:  	/s/ David Brady
 	 
	 	 	Name:  	David Brady 	 
	 	 	Title:  	Treasurer 	 



	 	 	 	 	 
	 	FIRST SOLAR MANUFACTURING GmbH

 	 
	 	By:  	/s/ David Brady
 	 
	 	 	Name:  	David Brady 	 
	 	 	Title:  	Authorized Officer (Prokurist) 	 



[Signature Page to Credit Agreement]




 


 









 





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

 	 
	 	By:  	/s/ R. Mark Chambers
 	 
	 	 	Name:  	R. Mark Chambers 	 
	 	 	Title:  	Senior Vice President 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Documentation Agent and
as a Lender

 	 
	 	By:  	/s/ David R. Barney
 	 
	 	 	Name:  	David R. Barney 	 
	 	 	Title:  	Senior Vice President 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC, as a Documentation
Agent and as a Lender

 	 
	 	By:  	/s/ Emily Freedman
 	 
	 	 	Name:  	Emily Freedman 	 
	 	 	Title:  	Vice President 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Syndication
Agent and as a Lender

 	 
	 	By:  	/s/ Ari Bruger
 	 
	 	 	Name:  	Ari Bruger 	 
	 	 	Title:  	Vice President 	 



	 	 	 	 	 
	 	By:  	                                              /s/ Kevin Buddhdew
 	 
	 	 	Name:  	Kevin Buddhdew 	 
	 	 	Title:  	Associate 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	CITIBANK, N.A., as a Lender

 	 
	 	By:  	/s/ Rob T. Jokhai
 	 
	 	 	Name:  	Rob T. Jokhai 	 
	 	 	Title:  	Director 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK NEW
YORK BRANCH, as a Lender

 	 
	 	By:  	/s/ David Cagle
 	 
	 	 	Name:  	David Cagle 	 
	 	 	Title:  	Managing Director 	 



	 	 	 	 	 
	 	By:  	                                              /s/ Brian Myers
 	 
	 	 	Name:  	Brian Myers 	 
	 	 	Title:  	Managing Director 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender

 	 
	 	By:  	                                               /s/ Heidi Sandquist
 	 
	 	 	Name:  	Heidi Sandquist 	 
	 	 	Title:  	Director 	 



	 	 	 	 	 
	 	By:  	                                              /s/ Ming K. Chu
 	 
	 	 	Name:  	Ming K. Chu 	 
	 	 	Title:  	Vice President 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	HSBC Bank USA, National Association, as a Lender

 	 
	 	By:  	                                               /s/ Steven F. Larsen
 	 
	 	 	Name:  	Steven F. Larsen 	 
	 	 	Title:  	First Vice President 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	ROYAL BANK OF CANADA, as a Lender

 	 
	 	By:  	                                               /s/ Meredith Majesty
 	 
	 	 	Name:  	Meredith Majesty 	 
	 	 	Title:  	Authorized Signatory 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	Société Generale, as a Lender

 	 
	 	By:  	                                               /s/ Yao Wang
 	 
	 	 	Name:  	Yao Wang 	 
	 	 	Title:  	Vice President 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	WELLS FARGO, N.A., as a Lender

 	 
	 	By:  	/s/ Kyle J. Button
 	 
	 	 	Name:  	Kyle J. Button 	 
	 	 	Title:  	Relationship Manager 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	GOLDMAN SACHS BANK 9EUROPE0 PLC, as a Lender

 	 
	 	By:  	                                               /s/ Mark Walton
 	 
	 	 	Name:  	Mark Walton 	 
	 	 	Title:  	Authorized Signatory 	 



[Signature Page to Credit Agreement]




 


 









 





	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A., as a Lender

 	 
	 	By:  	                                               /s/ Ryan Vetsch
 	 
	 	 	Name:  	Ryan Vetsch 	 
	 	 	Title:  	Authorized Signatory 	 



[Signature Page to Credit Agreement]