exv10w1






Exhibit 10.1




          AMENDMENT NO. 1, dated as of March 3, 2011 (this “Amendment”), to the Credit
Agreement dated as of March 17, 2010, among SOLUTIA, INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or entities from time to
time parties to the Credit Agreement (the “Lenders”), the Issuers and Swing Line Lender
party thereto and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent (the
“Administrative Agent”) and as collateral agent (as amended, restated, modified and
supplemented from time to time, the “Credit Agreement”); capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.




          WHEREAS, the Borrower desires to amend the Credit Agreement on the terms set forth herein;




          WHEREAS, Section 9.08(h) of the Credit Agreement provides that the Borrower and the Requisite
Lenders may amend the Credit Agreement and the other Loan Documents for certain purposes including
to add one or more additional credit facilities to be included in the Credit Agreement;




          WHEREAS, (i) each Amendment No. 1 Consenting Lender (as defined in Exhibit A) (other
than any Amendment No. 1 Consenting Lender that has indicated otherwise on its signature page to
this Amendment) has agreed, on the terms and conditions set forth herein, to have the entire
principal amount (or, if less, the amount notified to such Lender by the Deutsche Bank Securities
Inc.) of its outstanding Initial Term Loan (as defined In Exhibit A), if any, converted
into a like principal amount of a Term-1 Loan (as defined in Exhibit A) effective as of the
Amendment No. 1 Effective Date (as defined below) and (ii) the Additional Term-1 Lender has agreed
to make an additional Term-1 Loan in a principal amount equal to the principal amount of Initial
Term Loans held on the Amendment No. 1 Effective Date that are not Converted Term Loans (as defined
in Exhibit A), the proceeds of which shall be applied to repay in full such Initial Term
Loans that are not Converted Term Loans;




          NOW, THEREFORE, in consideration of the premises contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:




          Section 1. Amendment. The Credit Agreement is, effective as of the Amendment No. 1
Effective Date (as defined below), hereby amended to delete the stricken text (indicated textually
in the same manner as the following example: stricken
text) and to add the double-underlined text
(indicated textually in the same manner as the following example:
double-underlined text)
as set forth in the pages of the Credit Agreement attached as Exhibit A hereto. The
Lenders hereby also consent to such amendments to the Security Documents as are contemplated by the
Credit Agreement (as amended hereby).




          Section 2. Representations and Warranties, No Default. The Borrower hereby represents
and warrants that as of the Amendment No. 1 Effective Date, after giving effect to the amendments
set forth in this Amendment, (i) no Default or Event of Default exists and is continuing and (ii)
all representations and warranties contained in the Credit Agreement are true and correct in all
material respects on and as of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they were true and





 









 







correct in all material respects as of such earlier date (provided that
representations and warranties that are qualified by materiality are true and correct (after giving
effect to any qualification therein) in all respects on and as of the date hereof).




          Section 3. Effectiveness. Section 1 of this Amendment shall become effective on the
date (such date, if any, the “Amendment No. 1 Effective Date”) that the following
conditions have been satisfied:





     (i) Consents. The Administrative Agent shall have received executed signature
pages hereto from Lenders constituting the Requisite Lenders and each Loan Party;




     (ii) Additional Term-1 Joinder Agreement. The Administrative Agent, the
Borrower and the Additional Term-1 Lender (as defined in Exhibit A) shall have
entered into the Additional Term-1 Joinder Agreement;




     (iii) Fees. Deutsche Bank Securities Inc. shall have received all fees
required to be paid, and all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel), on or before the Amendment No. 1 Effective
Date.




     (iv) Legal Opinion. The Administrative Agent shall have received an executed
legal opinion of Kirkland & Ellis LLP, counsel to the Borrower and its Subsidiaries, which
shall cover such other matters incident to the transactions contemplated by this Amendment
as the Administrative Agent may reasonably require.




     (v) Flood Hazard Determinations and Flood Insurance. The Administrative Agent
shall have received (A) a completed “Life-of-Loan” Federal Emergency Management Agency
Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a
notice about special flood hazard area status and flood disaster assistance) (each a
“Flood Notice”) and (B) if any Mortgaged Property is located in a special flood
hazard area, a Flood Notice duly executed by the Borrowers and each Loan Party relating
thereto, together with evidence of flood insurance as required by applicable law and
otherwise in form and substance reasonably acceptable to the Administrative Agent.



          Section 4. Post-Effectiveness Covenant. Not later than 60 days after the Amendment
No. 1 Effective Date (or such later date as to which the Administrative Agent may agree), the Loan
Parties shall, with respect to the Mortgaged Properties if requested by the Administrative Agent:
(i) enter into amendments with respect to any existing Mortgages, (ii) obtain title datedown
endorsements as customary in the jurisdiction of each Mortgaged Property with respect to any
existing Title Policies, (iii) deliver customary opinions of counsel with respect to any Mortgaged
Property, in each case in form and substance reasonably acceptable to the Administrative Agent in
each case, as applicable, in order to ensure the Mortgages continue to secure all Obligations after
giving effect to this Amendment with the same priority as was the case prior to giving effect to
this Amendment and otherwise to confirm the enforceability, validity and perfection of the Liens in
favor of the Secured Parties, (iv) obtain a copy of, or certificate as to coverage under, the
insurance policies required by Section 5.04 of the Credit Agreement) and






-2-









 







the applicable provisions of the Security Documents, each of which shall be endorsed or
otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee
endorsement (as applicable) and shall name the Administrative Agent, on behalf of the Secured
Parties, as additional insured, in form and substance satisfactory to the Administrative Agent and
(v) provide such other documentation with respect to the Mortgaged Property as Administrative Agent
shall reasonably request.




          Section 5. Counterparts. This Amendment may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which when so executed and
delivered shall be deemed to be an original, but all of which when taken together shall constitute
a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by
facsimile or any other electronic transmission shall be effective as delivery of a manually
executed counterpart hereof.




          Section 6. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




          Section 7. Headings. The headings of this Amendment are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof.




          Section 8. Effect of Amendment. Except as expressly set forth herein, (i) this
Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights and remedies of the Lenders, the Administrative Agent, any other Agent or the
Issuers, in each case under the Credit Agreement or any other Loan Document, and (ii) shall not
alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other provision of either such agreement or any
other Loan Document. Each and every term, condition, obligation, covenant and agreement contained
in the Credit Agreement or any other Loan Document is hereby ratified and re-affirmed in all
respects and shall continue in full force and effect. Each Loan Party reaffirms its obligations
under the Loan Documents to which it is party and the validity of the Liens granted by it pursuant
to the Security Documents. This Amendment shall constitute a Loan Document for purposes of the
Credit Agreement and from and after the Amendment No. 1 Effective Date, all references to the
Credit Agreement in any Loan Document and all references in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, shall,
unless expressly provided otherwise, refer to the Credit Agreement as amended by this Amendment.
Each of the Loan Parties hereby consents to this Amendment and confirms that all obligations of
such Loan Party under the Loan Documents to which such Loan Party is a party shall continue to
apply to the Credit Agreement as amended hereby.









-3-









 








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




	 	 	 	 	 
	 	SOLUTIA, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Solely for purposes of Section 8 of this Amendment:


[GUARANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Amendment]








 









 











	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, 
as
Administrative Agent and a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Amendment]








 









 







The undersigned hereby consents to
Amendment No. 1:



Indicate with an “X” in the space below if
the Lender does not wish to have its Initial
Term Loans converted to Term-1 Loans on the
Amendment No. 1 Effective Date (in which case
such Initial Term Loans shall be repaid on
the Amendment No. 1 Effective Date). If you
execute this signature page and do not fill
in an “X” all of your Initial Term Loans (or
such lesser amount allocated to such Lender
by Deutsche Bank Securities Inc.) will be
converted to Term-1 Loans on the Amendment
No. 1 Effective Date.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	(Name of Institution) 	 
	 	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	[ By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:]1	 	 
	 





 




			
	1	 	If a second signature line is required.





[Signature Page to Amendment]




 











 





EXECUTION VERSIONEXHIBIT A




 





$1,150,000,000



CREDIT AGREEMENT



Dated as of March 17, 2010



and as Amended by Amendment No. 1 on March 3, 2011



among



SOLUTIA INC.,

as Borrower,



THE LENDERS REFERRED TO HEREIN,



DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Administrative Agent, Collateral Agent, Swing Line Lender and Issuer,



CITIBANK, N.A.,

HSBC SECURITIES (USA) INC.,

and

JPMORGAN CHASE BANK, N.A.

as Co-Syndication Agents,



JEFFERIES FINANCE LLC,

as Documentation Agent



and



DEUTSCHE BANK SECURITIES INC.,

JEFFERIES FINANCE LLC,

HSBC SECURITIES (USA) INC.,

CITIGROUP GLOBAL MARKETS INC.

and

J.P. MORGAN SECURITIES INC.LLC

as Joint Lead Arrangers and as Joint Bookrunners



and



DEUTSCHE BANK SECURITIES INC.,

As Sole Lead Arranger and Bookrunner for Amendment No. 1



 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I

	 
	 	 	 	 
	DEFINITIONS

	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Types of Loans and Borrowings
	 	 	45	 
	SECTION 1.03. Terms Generally; Currency Translation; Accounting Terms; GAAP
	 	 	4345	 
	SECTION 1.04. Resolution of Drafting Ambiguities
	 	 	4446	 
	SECTION 1.05. Letter of Credit Amounts
	 	 	4446	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	THE CREDITS

	 
	 	 	 	 
	SECTION 2.01. The Loans
	 	 	4446	 
	SECTION 2.02. Borrowings, Conversions and Continuations of Loans
	 	 	4547	 
	SECTION 2.03. Letters of Credit
	 	 	4649	 
	SECTION 2.04. Swing Line Loans
	 	 	5457	 
	SECTION 2.05. Prepayments and Repurchase of Loans
	 	 	5760	 
	SECTION 2.06. Repayment of Loans; Evidence of Debt
	 	 	6165	 
	SECTION 2.07. Interest Rates and Payment Dates; Default Interest
	 	 	6265	 
	SECTION 2.08. Computation of Interest and Fees
	 	 	6266	 
	SECTION 2.09. Fees
	 	 	6266	 
	SECTION 2.10. Termination or Reduction of Commitments
	 	 	6367	 
	SECTION 2.11. Inability to Determine Interest Rate; Unavailability of Deposits; Inadequacy of Interest Rate
	 	 	6367	 
	SECTION 2.12. Payments Generally; Administrative Agent’s Clawback
	 	 	6468	 
	SECTION 2.13. Illegality
	 	 	6670	 
	SECTION 2.14. Increased Costs; Reserves on Eurodollar Loans
	 	 	6670	 
	SECTION 2.15. Taxes
	 	 	6872	 
	SECTION 2.16. Compensation for Lender Losses
	 	 	7175	 
	SECTION 2.17. Change of Lending Office
	 	 	7176	 
	SECTION 2.18. Sharing of Payments by Lenders
	 	 	7276	 
	SECTION 2.19. Replacement of Lenders Under Certain Circumstances
	 	 	7277	 
	SECTION 2.20. Notice of Certain Costs
	 	 	7377	 
	SECTION 2.21. Increase in Commitments
	 	 	7377	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 
	SECTION 3.01. Organization, etc.
	 	 	7579	 
	SECTION 3.02. Due Authorization, Non-Contravention, etc.
	 	 	7680	 
	SECTION 3.03. Government Approval, Regulation, etc.
	 	 	7680	 
	SECTION
3.04. Validity, etc.
	 	 	7681	 
	SECTION 3.05. Financial Information
	 	 	7681	 
	SECTION 3.06. No Material Adverse Effect
	 	 	7781	 






-i-









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 3.07. Litigation
	 	 	7782	 
	SECTION 3.08. Compliance with Laws and Agreements
	 	 	7782	 
	SECTION 3.09. Ownership of Subsidiaries
	 	 	7782	 
	SECTION 3.10. Ownership of Properties
	 	 	7883	 
	SECTION 3.11. Intellectual Property
	 	 	7984	 
	SECTION 3.12. Taxes
	 	 	7984	 
	SECTION 3.13. Pension and Welfare Plans
	 	 	7984	 
	SECTION 3.14. Environmental
	 	 	8084	 
	SECTION 3.15. Federal Reserve Regulations
	 	 	8186	 
	SECTION 3.16. Disclosure; Accuracy of Information; Pro Forma Balance Sheets and Projected Financial Statements
	 	 	8186	 
	SECTION 3.17. Insurance
	 	 	8287	 
	SECTION 3.18. Labor Matters
	 	 	8287	 
	SECTION 3.19. Solvency
	 	 	8388	 
	SECTION 3.20. Security Documents
	 	 	8388	 
	SECTION 3.21. Anti-Terrorism Laws
	 	 	8489	 
	SECTION 3.22. Status as Senior Debt
	 	 	8590	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	CONDITIONS

	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	8590	 
	SECTION 4.02. Conditions to All Credit Extensions
	 	 	8893	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	AFFIRMATIVE COVENANTS

	 
	 	 	 	 
	SECTION 5.01. Financial Information, Reports, Notices, etc.
	 	 	8893	 
	SECTION 5.02. Compliance with Laws, etc.
	 	 	9196	 
	SECTION 5.03. Maintenance of Properties
	 	 	9196	 
	SECTION 5.04. Insurance
	 	 	9196	 
	SECTION 5.05. Books and Records; Visitation Rights; Lender Meetings
	 	 	9297	 
	SECTION 5.06. Environmental Covenant
	 	 	9297	 
	SECTION 5.07. Information Regarding Collateral
	 	 	9398	 
	SECTION 5.08. Existence; Conduct of Business
	 	 	9499	 
	SECTION 5.09. Performance of Obligations
	 	 	9499	 
	SECTION 5.10. Casualty and Condemnation
	 	 	9499	 
	SECTION 5.11. Pledge of Additional Collateral
	 	 	9499	 
	SECTION 5.12. Further Assurances
	 	 	95100	 
	SECTION 5.13. Use of Proceeds
	 	 	96101	 
	SECTION 5.14. Payment of Taxes and Claims
	 	 	96101	 
	SECTION 5.15. Additional Guarantors
	 	 	96101	 
	SECTION 5.16. Post-Closing Covenants
	 	 	96102	 
	SECTION 5.17. Designation of Subsidiaries
	 	 	98104	 






-ii-









 







	 	 	 	 	 
	 	 	Page	 
	ARTICLE VI

	 
	 	 	 	 
	NEGATIVE COVENANTS

	 
	 	 	 	 
	SECTION 6.01. Indebtedness
	 	 	99105	 
	SECTION 6.02. Liens
	 	 	102107	 
	SECTION 6.03. Fundamental Changes; Line of Business
	 	 	105111	 
	SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	106112	 
	SECTION 6.05. Asset Sales
	 	 	109115	 
	SECTION 6.06. Sale and Leaseback Transactions
	 	 	111117	 
	SECTION 6.07. Restricted Payments
	 	 	111118	 
	SECTION 6.08. Transactions with Affiliates
	 	 	112119	 
	SECTION 6.09. Restrictive Agreements
	 	 	113119	 
	SECTION 6.10. Amendments or Waivers of Certain Documents; Prepayments of Certain Indebtedness
	 	 	114121	 
	SECTION 6.11. Accounting Treatment; Fiscal Year
	 	 	115121	 
	SECTION 6.12. Fixed Charge Coverage Ratio.
	 	 	115	 
	SECTION 6.13. TotalSenior Secured Leverage Ratio
	 	 	115122	 
	SECTION 6.14. 6.13. Hedging Agreements
	 	 	116122	 
	SECTION 6.15. 6.14. Assets, Liabilities and Actions of SFC
	 	 	116122	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	EVENTS OF DEFAULT AND REMEDIES

	 
	 	 	 	 
	SECTION 7.01. Listing of Events of Default
	 	 	116123	 
	SECTION 7.02. Action if Bankruptcy
	 	 	118125	 
	SECTION 7.03. Action if Other Event of Default
	 	 	119125	 
	SECTION 7.04. Application of Funds upon Event of Default
	 	 	119125	 
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	THE AGENTS

	 
	 	 	 	 
	SECTION 8.01. Appointment and Authority
	 	 	120126	 
	SECTION 8.02. Agents Individually
	 	 	120127	 
	SECTION 8.03. Duties of Agents; Exculpatory Provisions
	 	 	121128	 
	SECTION 8.04. Reliance by Agents
	 	 	122129	 
	SECTION 8.05. Delegation of Duties
	 	 	122129	 
	SECTION 8.06. Resignation of Agents
	 	 	123129	 
	SECTION 8.07. Non-Reliance on Agents and Other Lenders
	 	 	123130	 
	SECTION
8.08. No Other Duties, etc.
	 	 	124131	 
	SECTION 8.09. Security Trust Deed
	 	 	124131	 
	SECTION 8.10. Administrative Agent May File Proofs of Claim
	 	 	124131	 
	SECTION 8.11. Collateral and Guarantee Matters
	 	 	125132	 
	SECTION 8.12. Withholding Taxes
	 	 	126133	 






-iii-









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE IX

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	126133	 
	SECTION 9.02. Survival of Agreement
	 	 	128135	 
	SECTION 9.03. Binding Effect
	 	 	129135	 
	SECTION 9.04. Successors and Assigns
	 	 	129136	 
	SECTION 9.05. Expenses; Indemnity
	 	 	132139	 
	SECTION 9.06. Right of Setoff
	 	 	133140	 
	SECTION 9.07. Applicable Law
	 	 	134141	 
	SECTION 9.08. Waivers; Amendment
	 	 	134141	 
	SECTION 9.09. Interest Rate Limitation
	 	 	137144	 
	SECTION 9.10. Entire Agreement
	 	 	137144	 
	SECTION 9.11. WAIVER OF JURY TRIAL
	 	 	137144	 
	SECTION 9.12. Severability
	 	 	137145	 
	SECTION 9.13. Counterparts
	 	 	138145	 
	SECTION 9.14. Headings
	 	 	138145	 
	SECTION 9.15. Jurisdiction; Consent to Service of Process
	 	 	138145	 
	SECTION 9.16. Confidentiality
	 	 	138146	 
	SECTION 9.17. Posting of Approved Electronic Communications
	 	 	139147	 
	SECTION 9.18. Treatment of Information
	 	 	140147	 
	SECTION 9.19. USA PATRIOT Act Notice
	 	 	142149	 
	SECTION 9.20. Intercreditor Agreement
	 	 	142149	 
	SECTION 9.21. No Fiduciary Duty
	 	 	142149	 
	SECTION 9.22. Payments Set Aside
	 	 	142150	 






	 	 	 

	EXHIBIT A

	 	Form of Administrative Questionnaire
	EXHIBIT B-1

	 	Form of Borrowing Notice
	EXHIBIT B-2

	 	Form of Swing Line Loan Notice
	EXHIBIT C

	 	Form of Assignment and Assumption
	EXHIBIT D

	 	Form of Compliance Certificate
	EXHIBIT E

	 	Form of Indemnity, Subrogation and Contribution Agreement
	EXHIBIT F-1

	 	Form of Term Note
	EXHIBIT F-2

	 	Form of Revolving Credit Note
	EXHIBIT F-3

	 	Form of Swing Line Note
	EXHIBIT G

	 	Form of Closing Certificate
	EXHIBIT H

	 	Form of Guarantee Agreement
	EXHIBIT I

	 	Form of Pledge Agreement
	EXHIBIT J

	 	Form of Security Agreement
	EXHIBIT K

	 	Form of United States Tax Compliance Certificate
	EXHIBIT L

	 	Form of Solvency Certificate
	EXHIBIT M

	 	Form of Lender Participation Notice
	EXHIBIT N

	 	Form of Letter of Credit Request
	 
	 	 
	SCHEDULE 1.01(a)

	 	Immaterial Restricted Subsidiaries
	SCHEDULE 1.01(b)

	 	Specified Asset Sales
	SCHEDULE 1.01(d)

	 	Existing Joint Ventures
	SCHEDULE 1.01(e)

	 	Existing L/Cs
	SCHEDULE 1.01(f)

	 	Specified Businesses






-iv-









 






	 	 	 

	SCHEDULE 2.01

	 	Lenders and Commitments
	SCHEDULE 3.05

	 	Financial Information
	SCHEDULE 3.09(a)

	 	Subsidiaries
	SCHEDULE 3.09(b)

	 	Securities
	SCHEDULE 3.10(b)

	 	Leased and Owned Real Property
	SCHEDULE 3.14

	 	Environmental
	SCHEDULE 3.17

	 	Insurance
	SCHEDULE 4.01(f)(i)

	 	Local and Foreign Counsel Jurisdictions (Pledged Equity Interests)
	SCHEDULE 5.16(a)

	 	Post-Closing Covenants
	SCHEDULE 5.16(b)

	 	Mortgaged Properties
	SCHEDULE 6.01(ii)

	 	Existing Indebtedness
	SCHEDULE 6.02(iv)(A)

	 	Existing Liens
	SCHEDULE 6.04

	 	Existing Investments
	SCHEDULE 6.08

	 	Transactions with Affiliates
	SCHEDULE 6.09

	 	Existing Restrictions






-v-









 





     CREDIT AGREEMENT (this “Agreement”) dated as
of March 17, 2010,2010 (as amended on March 3, 2011, this
“Agreement”), among SOLUTIA INC., a Delaware corporation (the
“Borrower”); each of the Lenders (as defined in Section 1.01); DEUTSCHE BANK
TRUST COMPANY AMERICAS (“DBTCA”), as administrative agent for the Lenders
(together with its successors in such capacity, the “Administrative Agent”), as
collateral agent for the Secured Parties (together with its successors in such capacity, the
“Collateral Agent”), as Swing Line Lender and as an Issuer; and CITIBANK, N.A.,
as an Issuer.



     The parties hereto agree as follows:



ARTICLE I




DEFINITIONS



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



     “Acceptable Discount” has the meaning assigned to such term in Section
2.05(d)(ii).



     “Acceptance Date” has the meaning assigned to such term in Section
2.05(d)(i).



     “Acquired EBITDA” shall mean, with respect to any Acquired Entity or
Business, any converted Restricted Subsidiary, any Sold Entity or Business or any converted
Unrestricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the sum of the
amounts for such period of, without duplication, (a) income from continuing operations before
income taxes and extraordinary items, (b) interest expense, (c) depreciation expense, (d)
amortization expense, including amortization of deferred financing fees, (e) non-recurring charges,
(f) non-cash charges, (g) losses on asset sales, (h) restructuring charges or reserves less the sum
of the amounts for such period, (i) non-recurring gains, (j) non-cash gains, (k) gains on asset
sales and (l) interest income, all as determined on a consolidated basis for such Pro Forma Entity
in accordance with GAAP.



     “Acquisition Consideration” means the purchase consideration for any
Permitted Acquisition and all other payments by the Borrower or any of its Restricted Subsidiaries
in exchange for, or as part of, or in connection with any Permitted Acquisition, whether paid in
cash or by exchange of Equity Interests or of assets, by the assumption of Indebtedness or
otherwise and whether payable at or prior to the consummation of such Permitted Acquisition or
deferred for payment at any future time, whether or not any such future payment is subject to the
occurrence of any contingency, and includes any and all payments representing the purchase price
and any assumptions of Indebtedness, “earn-outs” and other agreements to make any payment the
amount of which is, or the terms of payment of which are, in any respect subject to or contingent
upon the revenues, income, cash flow or profits (or the like) of any Person or business.



     “Activities” has the meaning assigned to such term in Section 8.02(b).



     “Additional Collateral” has the meaning assigned to such term in Section
5.11(a).



     “Additional Term-1 Commitment” means, with respect to the Additional Term-1 Lender,
its commitment to make a Term-1 Loan on the Amendment No. 1 Effective Date in an amount equal to
the principal amount of Initial Term Loans required to be repaid on the Amendment No. 1 Effective
Date pursuant to Section 2.05(b)(vi).



 









 





     “Additional Term-1 Joinder Agreement” means the joinder agreement, dated as of the
Amendment No. 1 Effective Date, by and among the Borrower, the Administrative Agent and the
Additional Term-1 Lender.



     “Additional Term-1 Lender” means the Person identified as such in the Additional
Term-1 Joinder Agreement.



     “Administrative Agent” has the meaning assigned to such term in the
preamble hereto.



     “Administrative Agent’s Office” means the Administrative Agent’s account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in the
form of Exhibit A or otherwise in the form supplied by the Administrative Agent.



     “Affiliate” of any Person means any other Person which, directly or
indirectly through one or more intermediaries, Controls, is Controlled by or is under common
Control with such Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan).



     “Agents’ Groups” has the meaning assigned to such term in Section 8.02(b).



     “Agents” means the Administrative Agent and the Collateral Agent.



     “Aggregate Commitments” means the Revolving Credit Commitments of all the
Revolving Credit Lenders.



     “Agreement” has the meaning assigned to such term in the preamble hereto.



     “Alternative Currency” shall mean each currency other than Dollars.



     “Amendment No. 1” means Amendment No. 1 to this Agreement, dated as of March 3,
2011, by and among the Borrower, the Administrative Agent and the Lenders party thereto.



     “Amendment No. 1 Consenting Lender” means each Lender that provided the
Administrative Agent with a counterpart to Amendment No. 1 executed by such Lender prior to the
time required by Amendment No. 1.



     “Amendment No. 1 Effective Date” has the meaning assigned to such term in Amendment
No. 1.



     “Anti-Terrorism Laws” has the meaning assigned to such term in Section
3.21(a).



     “Applicable Discount” has the meaning assigned to such term in Section
2.05(d)(ii).



     “Applicable Period” has the meaning specified in the definition of
“Applicable Rate.”



     “Applicable Rate” means a percentage per annum equal to:




     (a) with respect to Term-1 Loans, (i) until delivery
of financial statements for the Fiscal Quarter ending June 30, 2010, (A) for Eurodollar
Loans, 3.25% and (B)
for Base Rate Loans (which shall only be available under the circumstances described in
Section 2.11 and 2.13), 2.25%, and (ii)
thereafter, the percentages per annum set forth
in the table following clause (b)



2-2-

 










 







below, based upon the Total
Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 5.01(a) or (b), as
applicable: 



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Total Net	 	Term-1 Loans	 	Term-1 Loans
	Pricing	 	 	 	Leverage	 	that are	 	that are Base
	Level	 	 	 	Ratio	 	Eurodollar Loans	 	Rate Loans
	 	1	 	 	 
	 	 	>2.00:1	 	 	 	2.75%	 	 	 	1.75%	 
	 	2	 	 	 
	 	 	<2.00:1	 	 	 	2.50%	 	 	 	1.50%	 







provided that Base Rate shall only be available under the circumstances described
in Section 2.11 and 2.13; and




     (b) with respect to Revolving Credit Loans, (i) until delivery of
financial statements for the Fiscal Quarter ending June 30, 2010, (A) for Eurodollar Loans,
3.50% and (B) for Base Rate Loans, 2.50%, and (ii) thereafter,
the percentages per annum set forth in the table below, based upon the Total
Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 5.01(a) or (b), as applicable: 



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	 	 	 	 	 	 	Revolving	 	 	 	 	 	 	 	Term
	 	 	 	 	 	 	 	 	 	 	Credit	 	Revolving	 	Term	 	Loans
	 	 	 	 	 	 	Total	 	Loans that	 	Credit	 	Loans	 	that are
	 	 	 	 	 	 	Net	 	are	 	Loans that	 	that are	 	Base
	 	 	 	 	 	 	Leverage	 	Eurodollar	 	are Base	 	Eurodollar	 	Rate
	Pricing Level	 	 	 	Ratio	 	Loans	 	Rate Loans	 	Loans	 	Loans
	 	1	 	 	 
	 	 	>2.50:1	 	 	 	3.50	%	 	 	2.50	%	 	3.25%	 	2.25%
	 	2	 	 	 
	 	 	<2.50:1	 	 	 	3.25	%	 	 	2.25	%	 	3.00%	 	2.00%






     With respect to clauses (a) and (b) above, any increase or decrease in the Applicable Rate
resulting from a change in the Total Net Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is delivered pursuant to
Section 5.01(a) or (b), as applicable; provided that (x) at the option of the
Administrative Agent or Term-1 Lenders holding a majority of the then
outstanding Term-1 Loans, the Applicable Rate for Term-1
Loans shall be determined by reference to Pricing Level 1 as of the first Business Day after the
date on which a Compliance Certificate was required to have been delivered but was not delivered,
and shall continue to so apply to and including the date on which such Compliance
Certificate is so delivered (and thereafter the Applicable Rate shall be otherwise determined
in accordance with clause (a)) and (y) at the option of the Administrative Agent or Revolving
Credit Lenders holding a majority of the then outstanding Revolving Credit Commitments (excluding
for this purpose the Revolving Credit Commitments of all Defaulting Lenders), the Applicable Rate
for Revolving Credit Loans shall be determined by reference to Pricing Level 1 as of the first
Business Day after the date on which a Compliance Certificate was required to have been delivered
but was not delivered, and shall continue to so apply to and including the date on which such
Compliance Certificate is so delivered (and thereafter the Applicable Rate shall be otherwise
determined in accordance with clause (b)).



     In the event that any financial statements under Section 5.01(a) or (b) or a Compliance
Certificate is shown to be inaccurate at any time that this Agreement is in effect and any Loans or
Commitments are outstanding hereunder when such inaccuracy is discovered prior to the date on which
all Loans have been repaid and all Commitments have been terminated, and such inaccuracy, if
corrected, would have led to a




3-3-

 










 







higher Applicable Rate for any period (an “Applicable
Period”) than the Applicable Rate applied for such Applicable Period, then (i) the
Borrower shall promptly upon learning of such inaccuracy (and in no event later than five (5)
Business Days thereafter) deliver to the Administrative Agent a correct Compliance Certificate for
such Applicable Period, (ii) the Applicable Rate shall be determined by reference to the corrected
Compliance Certificate (but in no event shall the Lenders owe any amounts to the Borrower), and
(iii) the Borrower shall pay to the Administrative Agent promptly upon demand (and in no event
later than five (5) Business Days after demand) any additional interest owing as a result of such
increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by
the Administrative Agent in accordance with the terms hereof. Notwithstanding anything to the
contrary in this Agreement, any additional interest hereunder shall not be due and payable until
demand is made for such payment pursuant to clause (iii) above and accordingly, any nonpayment of
such interest as result of any such inaccuracy shall not constitute a Default or Event of Default
(whether retroactively or otherwise), and no such amounts shall be deemed overdue (and no amounts
shall accrue interest at the Default Rate), at any time prior to the date that is five (5) Business
Days following such demand.



     “Approved Electronic Communications” means each Communication that any Loan
Party is obligated to, or otherwise chooses to, provide to the Administrative Agent or the
Collateral Agent pursuant to any Loan Document or the transactions contemplated therein, including
any financial statement, financial and other report, notice, request, certificate and other
information material, provided that at the written request of the Administrative
Agent, “Approved Electronic Communications” shall not include (i) any notice of borrowing, notice
of conversion or continuation, and any other notice, demand, communication, information, document
and other material relating to a request for a new, or a conversion of an existing, Borrowing, (ii)
any notice pursuant to Section 2.05 and any other notice relating to the payment of any principal
or other amount due under any Loan Document prior to the scheduled date therefor, (iii) all notices
of any Default or Event of Default and (iv) any notice, demand, communication, information,
document and other material required to be delivered to satisfy any of the conditions set forth in
Section 4.02 or any other condition to any Borrowing hereunder.



     “Approved Electronic Platform” has the meaning assigned to such term in
Section 9.17(a).



     “Arrangers” means the entities identified as the Joint Lead Arrangers and
Joint Bookrunners on the cover of this Agreement (in their capacities as such).



     “Asset Sale” means any sale, transfer, lease (as lessor), conveyance or
other disposition (including by way of merger or consolidation and including any Sale and Leaseback
Transaction) by the Borrower or any of its Restricted Subsidiaries of any of its Property (other
than dispositions of cash and
cash equivalents in the ordinary course of its business), including any sale or issuance of
any Equity Interests of any Subsidiary; provided that any such sales, transfers,
leases, conveyances or other dispositions of Property and/or such sales or issuances of Equity
Interests (i) from a Loan Party to another Loan Party or (ii) by a Non-Guarantor Restricted
Subsidiary to any other Non-Guarantor Restricted Subsidiary shall not constitute Asset Sales under
the Loan Documents.



     “Asset Sale Cap” means, as of any date of determination, an amount equal to
5.015.0% of Consolidated Net Tangible Assets as
determined as at the end of the most recently ended Fiscal Year for which financial statements have
been delivered, or are required to have been delivered, pursuant to Sections 4.01(h) or 5.01(b) as
of the date of determination.



     “Asset Sale Prepayment Event” means any Asset Sale, except
(a) Asset Sales permitted by Section 6.05 (other than Sections 6.05(vii),
6.05(xi) and, 6.05(xv) and 6.05(xxii)
thereof) and (b) any such transaction or series of transactions which, if
otherwise constituting an Asset Sale Prepayment Event, do not generate Net Proceeds in excess of
$5.0 million (or, when taken together with all other such



4-4-

 










 







transactions, do not generate Net
Proceeds in excess of $25.0 million in the aggregate in such Fiscal Year);
provided that each Specified Asset Sale shall constitute an Asset Sale
Prepayment Event.



     “Assignment and Assumption” means an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is required by Section
9.04(b)), and accepted by the Administrative Agent in accordance with Section 9.04(b), in the form
of Exhibit C or such other form as shall be approved by the Administrative
Agent.



     “Authorized Officer” means, with respect to any Person, the chief executive
officer, chief financial officer, chief operating officer, treasurer, controller, secretary, or any
senior vice president or officer holding an equivalent position of such Person.



     “Availability Period” means the period from and including the Effective
Date to the earliest of (a) the Revolving Loan Maturity Date, (b) the date of termination in full
of the Aggregate Commitments pursuant to Section 2.10, and (c) the date of termination of the
Aggregate Commitment pursuant to Section 7.02 or Section 7.03.



     “Available Amount” means, at any time (the “Reference
Time”), an amount equal to (a) the sum, without duplication, of:




     (i) an amount equal to the greater of (x) zero and (y) 50% of cumulative Consolidated
Net Income for the period from April 1, 2010 until the last day of the then most recent
Fiscal Quarter for which financial statements pursuant to Section 5.01(a) or (b) have been
delivered prior to the Reference Time; and




     (ii) 100% of the net cash proceeds received by the Borrower from the issuance and sale
of its Equity Interests (other than Disqualified Equity Interests) from and including the
Business Day immediately following the Effective Date through and including the Reference
Time,


minus (b) the sum, without duplication, of the aggregate amount of the Available
Amount utilized following the Effective Date and prior to the Reference Time in reliance on the
Available Amount for purposes of making Investments pursuant to Sections 6.04(xiii); Restricted
Payments pursuant to
Section 6.07(vi); and prepayments, repurchases and redemptions of Subordinated Debt pursuant to
Section 6.10(b).




     “Bankruptcy Code” means the United States Bankruptcy Code.



     “Base Rate” means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1%; (b) the rate of interest in
effect for such day as publicly announced from time to time by the Administrative Agent as its
“prime rate”; (c) in the case of 

Term-1 Loans,
2.501.75% and (d) the LIBO Rate for an Interest
Period of one month beginning on such date (without regard to the minimum interest rate applicable
to Term-1 Loans thereunder). The “prime rate” is a rate set by the
Administrative Agent based upon various factors including the Administrative Agent’s costs and
desired return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by the Administrative Agent shall take effect at the opening of business on the
day specified in the public announcement of such change.



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



5-5-

 










 





     “Board of Directors” shall
meanmeans, with respect to any person, (i) in the case of any
corporation, the board of directors of such person, (ii) in the case of any limited liability
company, the board of managers of such person, (iii) in the case of any partnership, the Board of
Directors of the general partner of such person and (iv) in any other case, the functional
equivalent of the foregoing.



     “Board of Governors” means the Board of Governors of the Federal Reserve
System of the United States, or any successor thereto.



     “Borrower” has the meaning assigned to such term in the preamble to this
Agreement.



     “Borrowing” means a Loan or group of Loans to the Borrower of the same Type
and Class made (including through a conversion or continuation) by the applicable Lenders on a
single date and as to which a single Interest Period is in effect.



     “Borrowing Notice” has the meaning assigned to such term in Section
2.02(a).



     “Business Day” means a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law to close and, if
such day relates to any Eurodollar Loan, means any such day on which dealings in Dollar deposits
are conducted by and between banks in the London interbank eurodollar market.



     “Capital Expenditures” means, for any period, any and all expenditures made
by the Borrower or any of its Restricted Subsidiaries in such period for assets added to or
reflected in its property, plant and equipment accounts or other similar capital asset accounts or
comparable items or any other capital expenditures that are, or should be, set forth as “additions
to plant, property and equipment” on the financial statements of the Borrower and its Restricted
Subsidiaries prepared in accordance with GAAP, whether such asset is purchased for cash or by the
incurrence of Indebtedness, accrued as a liability or otherwise. Notwithstanding the foregoing,
Capital Expenditures shall not include, without duplication, (a) other than for purposes of
determining Excess Cash Flow, capital expenditures funded with Net Proceeds (or amounts that would
have constituted Net Proceeds but that will not constitute Net
Proceeds as a result of clause (a)(ii) of the definition thereof) reinvested in accordance
with Section 2.05(b), (b) capital expenditures in respect of the purchase price of equipment to
the extent the consideration therefor consists of any combination of equipment or other property
traded in at the time of such purchase, (c) expenditures that constitute Permitted Acquisitions or
Investments permitted under Section 6.04, (d) interest capitalized during such period and (e)
expenditures that are accounted for as capital expenditures of such Person and that actually are
paid for by a third party and for which neither the Borrower nor any Subsidiary has provided or is
required to provide or incur any consideration or obligation to such third party or any other
person.



     “Capital Lease Obligations” means all monetary obligations of the Borrower
and its Restricted Subsidiaries under any leasing or similar arrangement conveying the right to use
real or personal property, or a combination thereof, which, in accordance with GAAP, is required to
be classified and accounted for as capital leases, and the amount of such monetary obligations
shall be the capitalized amount thereof determined in accordance with GAAP (except for temporary
treatment of construction-related expenditures paid by any Person other than the Borrower or any of
its Subsidiaries under EITF 97-10, “The Effect of Lessee Involvement in Asset Construction,” which
will ultimately be treated as operating leases upon a Sale and Leaseback Transaction permitted
under this Agreement).



     “Captive Insurance Restricted Subsidiary” means any Restricted Subsidiary
that is subject to regulation as an insurance company under applicable Requirements of Law.



6-6-

 










 





     “Cash Collateral Account” means a blocked account at the Administrative
Agent in the name of the Administrative Agent and under the sole dominion and control of the
Administrative Agent, and otherwise established in a manner satisfactory to the Administrative
Agent.



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Cash Equivalents” means Permitted Investments.



     “Cash Interest Expense” means, for any period, Consolidated Interest
Expense for such period, excluding any such Consolidated Interest Expense not payable in cash (such
as, for example, amortization of discount and amortization of debt issuance costs);
provided that cash interest shall exclude any one time financing fees (including
amendment fees) paid in connection with the Transactions or any issuance or amendment of
Indebtedness (including this Agreement) or expenses in connection with any amendment of
indebtedness.



     “CERCLA” means the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. § 9601 et seq.



     “CERCLIS” means the Comprehensive Environmental Response, Compensation and
Liability Information System List.



     “Change in Law” means the occurrence, after the Effective Date, of any of
the following: (a) the adoption or taking effect of any law, rule, regulation or treaty by any
Governmental Authority applicable to any Loan Party or any Lender, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or application thereof by any
Governmental Authority applicable to any Loan Party or any Lender or (c) the making or issuance of
any request, guideline or directive (whether or not having the force of law) by any Governmental
Authority applicable to any Loan Party or any Lender.



     “Change of Control” means any one or more of the following events shall
occur and be continuing:




     (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of Voting Stock representing 35% or more (or 40%
or more in the case of any such “person” or “group” that is, on the Effective Date, the
beneficial owner (as defined above) of 25% or more of such Voting Stock) of the voting power
of the total outstanding Voting Stock of the Borrower;




     (ii) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Borrower (together with any new
directors whose election to the Board of Directors or whose nomination for election by the
shareholders of the Borrower was approved by a vote of the majority of the directors of the
Borrower then still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Directors of the Borrower then in office; or




     (iii) at any time a “Change of Control” (or any other defined term having a similar
purpose) occurs under any Material Indebtedness.



7-7-

 










 





     For purposes of this definition, a Person shall not be deemed to have beneficial ownership of
Voting Stock subject to a stock purchase agreement, merger agreement or similar agreement until the
consummation of the transactions contemplated by such agreement.



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



     “Class” (a) as to any Loan, means its status as a Revolving Credit Loan,
Swing Line Loan, Term-1 Loan or Incremental Term Loan (of a specified tranche)
and (b) with respect to any Commitment, means its status as a Revolving Credit Commitment,
aan Additional Term-1
Commitment or a commitment to make an Incremental Term Loan (of a specified tranche).



     “Closing Certificate” means a certificate substantially in the form of
Exhibit G.



     “Closing Fee” has the meaning set forth in Section 2.09(c).



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



     “Collateral” means, collectively, each Mortgaged Property and any and all
other Property of whatever kind and nature subject or purported to be subject from time to time to
a Lien under any Security Document.



     “Collateral Agent” means the Administrative Agent, acting through one or
more of its branches or Affiliates, in its capacity as collateral agent under any of the Loan
Documents, or any successor collateral agent.



     “Commitment” means, as to each Lender, its Revolving Credit
Commitment, or Term Commitment or
commitment to make an Incremental Term Loan, as applicable.



     “Commitment Fee” has the meaning assigned to such term in Section 2.09(a).



     “Communications” means each notice, demand, communication, information,
document and other material provided for hereunder or under any other Loan Document or otherwise
transmitted between the parties hereto relating this Agreement, the other Loan Documents, any Loan
Party or its Affiliates, or the transactions contemplated by this Agreement or the other Loan
Documents, including all Approved Electronic Communications.



     “Compliance Certificate” has the meaning assigned to such term in Section
5.01(a) and shall be substantially in the form of Exhibit D.



     “Consolidated Current Assets” means, as at any date of determination, the
total assets of the Borrower and its Restricted Subsidiaries which may properly be classified as
current assets on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries in
accordance with GAAP (other than cash and Cash Equivalents).



     “Consolidated Current Liabilities” means, as at any date of determination,
the total liabilities of the Borrower and its Restricted Subsidiaries which may properly be
classified as current liabilities on a consolidated balance sheet of the Borrower and its
Restricted Subsidiaries in accordance with GAAP (other than the current portion of any long term
Indebtedness (including any Loan), any revolving credit loans and Capital Lease Obligations).



8-7-

 










 





     “Consolidated EBITDA” means, for any period, the sum of Consolidated Net
Income for such period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (a) consolidated interest expense for such period, (b)
income tax expense and franchise tax expense determined on a consolidated basis in accordance with
GAAP, (c) depreciation expense determined on a consolidated basis in accordance with GAAP, (d)
amortization expense determined on a consolidated basis in accordance with GAAP, (e) amounts
attributable to minority interest, (f) any non-cash charges (including any impairment charge or
asset write-off pursuant to GAAP) (provided that if any such non-cash charge
represents an accrual or reserve for potential cash items in any future period, the cash payment in
respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent
of such cash payment, and excluding amortization of a prepaid cash item that was paid in a prior
period), (g) non-cash stock compensation expenses, including any such non-cash expenses arising
from stock options, stock grants or other equity-incentive programs, the granting of stock
appreciation rights and similar arrangements, (h) to the extent the related loss or expense is not
added back in calculating such Consolidated Net Income, proceeds of business interruption insurance
policies to the extent of such related loss or expense, (i) charges related to the extinguishment
of Indebtedness, (j) to the extent actually reimbursed, expenses incurred to the extent covered by
indemnification provisions in any agreement in connection with any Permitted Acquisition and (k) to
the extent actually covered by insurance, expenses with respect to liability or casualty events;
and minus, (i) without duplication, all non-cash items increasing such
Consolidated Net Income (excluding (x) any non-cash item to the extent that it represents an
accrual of cash receipts to be received in a subsequent period and (y) the amount attributable to
minority interests) and (ii) amounts paid in cash as dividends or other distributions to holders of
minority interests.



     Other than for purposes of calculating Excess Cash Flow, Consolidated EBITDA shall be
calculated on a Pro Forma Basis.



     For the avoidance of doubt, Consolidated EBITDA shall not be increased or decreased as a
result of any gains or income or losses associated with cancellation or extinguishment of Loans
(including any gains, income or loss from Permitted Loan Purchases).



     “Consolidated Fixed Charges” means, for any period, the sum,
without duplication, of:




     (a) Cash Interest Expense for such period (net of interest income
actually received in cash during such period);




     (b) all cash payments in respect of income taxes made during such period
(net of any cash refund in respect of income taxes for such period); 




     (c) the principal amount of all scheduled amortization payments on all
Indebtedness (including the principal component of all Capital Lease Obligations) of the
Borrower and its Restricted Subsidiaries for such period paid in cash (as determined on the
first day of the respective period); and




     (d) to the extent not included in Cash Interest Expense for such period,
all cash dividends on any series of Disqualified Equity Interests of the Borrower or any of
its Restricted Subsidiaries actually paid (without duplication) during such period (other
than dividend payments to the Borrower or any of its Restricted
Subsidiaries).



     “Consolidated Indebtedness” means, at a particular date, the aggregate
principal amount of all Indebtedness of the Borrower and its Restricted Subsidiaries of the types
described in clauses (i), (ii), (iv), (v) (to the extent of any unreimbursed drawings thereunder),
(viii) and, to the extent relating to the



9-9-

 










 







Indebtedness of the Person of a type described above,
clause (iii) or (ix) of the definition of Indebtedness determined on a consolidated basis in
accordance with GAAP at such date, plus, without duplication, the principal amount of Indebtedness
of the Borrower and its Restricted Subsidiaries constituting original issue discount.



     “Consolidated Interest Expense” means, for any period, the sum, without
duplication, of:




     (a) the interest expense of the Borrower and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP (including (i)
amortization of debt issuance costs and debt discount, (ii) the net interest related
payments, if any, under Hedging Agreements (including amortization of discounts), (iii) the
interest portion of any deferred payment obligation, (iv) accrued interest and (v)
commissions, discounts and other fees and charges incurred in respect of letters of credit
or bankers-acceptance financings);




     (b) the interest component of all Capital Lease Obligations paid or accrued during such
period;




     (c) all interest capitalized during such period; and




     (d) the product of (x) the amount of all dividends on any series of Preferred Equity
Interests of the Borrower and its Restricted Subsidiaries (other than dividends paid in
Equity Interests (other than Disqualified Equity Interests) and other than dividends paid to
the Borrower or to a Restricted Subsidiary) paid, accrued or scheduled to be paid or accrued
during such period times (y) a fraction, the numerator of which is one and the denominator
of which is one minus the then current effective consolidated Federal, state and local tax
rate of the Borrower, expressed as a decimal.



     Consolidated Interest Expense and Cash Interest Expense (other than for purposes of
calculating Excess Cash Flow) shall be calculated on a Pro Forma Basis to give effect to any
Indebtedness incurred, assumed or permanently repaid or extinguished at any time on or after the
first day of the relevant Test Period in connection with any permitted acquisitions, issuance of
Equity Interests or Equity Rights and Asset Sales as if such incurrence, assumption, repayment or
extinguishing had been effected on the first day of such Test Period.



     “Consolidated Net Income” means, for any period, the net income (or loss)
of the Borrower and its Restricted Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP consistently applied; provided that there shall not be
included in such Consolidated Net Income:




     (a) any unusual, extraordinary or non-recurring gains or losses or expenses, including,
charges or reserves associated with plant closures, business optimization and other
restructuring charges, integration costs and any severance expense and fees and gains and
losses on early retirement of Indebtedness;




     (b) costs and expenses arising from or related to the incurrence or issuance of, or
otherwise in connection with, the Refinancing, which were incurred on or prior to the first
anniversary of the Effective Date;




     (c) any fees, costs and expenses of the Borrower and its Restricted Subsidiaries
incurred as a result of Permitted Acquisitions, Investments, Asset Sales permitted hereunder
and the issuance of Equity Interests or Indebtedness or amendments of Indebtedness permitted
hereunder (whether or not consummated);



10-10-

 










 






     (d) any net income or loss of any Person if such Person is not a Restricted Subsidiary,
except Consolidated Net Income shall be increased by the amount of cash actually distributed
by such Person during such period to the Borrower or a Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a dividend or other distribution paid to a
Restricted Subsidiary, to the limitations contained in clause (e) below);




     (e) the net income of any Restricted Subsidiary to the extent that the
declaration of dividends or similar distributions by that Restricted Subsidiary of that
income is not at the time permitted, directly or indirectly, without prior approval (that
has not been obtained), pursuant to the terms of its charter or any agreement, instrument
and governmental regulation applicable to such Restricted Subsidiary or its equityholders;
(f) any gain or loss realized upon the sale or other disposition of (x) any
assets (including pursuant to Sale and Leaseback Transactions) which is not sold or
otherwise disposed of in the ordinary course of business (as determined in good faith by the
Board of Directors of Borrower) or (y) any Equity Interests of any Person;




     (gf) any net after-tax income or loss
from discontinued operations; and




     (hg) the cumulative effect of a
change in accounting principles.



     “Consolidated Net Indebtedness” means, at a particular date, (a) the
aggregate principal amount of all Funded Indebtedness of the Borrower and its Restricted
Subsidiaries determined on a
consolidated basis in accordance with GAAP at such date less (b) Unrestricted cash and
Unrestricted Cash Equivalents of the Borrower and its Restricted Subsidiaries on such date.



     “Consolidated Net Tangible Assets” means, as of any date of determination,
the total assets less the sum of (i) the goodwill, net, and other intangible assets and (ii) all
Consolidated Current Liabilities, in each case, reflected on the consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as at the end of the most recently ended Fiscal Quarter
for which financial statements have been or are required to have been delivered pursuant to
Sections 4.01(h), 5.01(a) or 5.01(b), as applicable, as of the date of determination, determined on
a consolidated basis in accordance with GAAP (and, in the case of any determination
relating to any Investment, determined on a Pro Forma Basis
includingwith respect to any Investment made after the end
of such Fiscal Quarter to include any property or assets acquired or
being acquired in connection therewith) .



     “Consolidated Senior Secured Indebtedness” means, at a particular date, the excess
of (i) Consolidated Indebtedness of Borrower and the Guarantors secured by a Lien (excluding any
Indebtedness secured by a Lien on Collateral ranking junior to the Lien securing the Obligations
and Capital Lease Obligations) on such date over (ii) the lesser of (x) $100 million and (y) the
aggregate amount of unrestricted cash and cash equivalent balances of the Borrower and its
Subsidiaries on such date.



     “Contemplated Acquisitions” means (a) the acquisition of Etimex Solar GmbH
pursuant to that certain Stock Purchase Agreement (“SPA”), dated February 28, 2010 between Solutia,
Inc., Etimex Holding GmbH, Etimex Primary Packaging GmbH (“Seller”) and Flexsys Verwaltungs-und
Beteiligungsgesellschaft mbH as may be amended or waived in any manner not materially adverse to
Lenders with Administrative Agent’s consent and (b) other acquisitions after the
Amendment No. 1 Effective Date of Persons that become (or assets acquired
by) Restricted Subsidiaries of the Borrower as a result thereof for an aggregate amount
of consideration paid by the Borrower and its Restricted Subsidiaries not to exceed $150 million.



11-11-

 










 





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



     “Converted Term Loan” means each Initial Term Loan held by an Amendment No. 1
Consenting Lender on the Amendment No. 1 Effective Date (or, if less, the amount notified to such
Lender by the Administrative Agent) immediately prior to the effectiveness of Amendment No. 1
except to the extent such Amendment No. 1 Consenting Lender has indicated on its signature page to
Amendment No. 1 that it is not electing to convert its Initial Term Loan to a Term-1
Loan.



     “Co-Syndication Agents” means the Co-Syndication Agents named on the cover
hereto.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.



     “DBTCA” means Deutsche Bank Trust Company Americas, and its successors and
assigns.



     “Debt Incurrence” has the meaning assigned to such term in Section
2.05(b)(i).



     “Debt Service” means, for any period, Cash Interest Expense for such period
net of gross interest income of the Borrower and its Restricted Subsidiaries for such period plus
scheduled principal amortization of Consolidated Indebtedness for such period.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws
of the United States or other applicable jurisdictions from time to time in effect and affecting
the rights of creditors generally.



     “Default” means any event or condition which upon notice, lapse of time or
both would constitute an Event of Default.



     “Default Rate” means when used with respect to (a) the principal amount of
any Loan, an interest rate equal to the interest rate (including any Applicable Rate) otherwise
applicable to such Loan plus 2% per annum, (b) Letter of Credit Fees, an
interest rate equal to (i) the Base Rate for Revolving Credit Loans plus (ii)
the Applicable Rate for Revolving Credit Loans that are Base Rate Loans plus
(iii) 2% per annum and (c) any other Loan Obligations, the rate that is 2% in excess of the
interest rate that is applicable to Base Rate Loans that are Revolving Credit Loans.



     “Defaulting Lender” means any Lender whose acts or failure to act, whether
directly or indirectly, cause it to meet any part of the definition of “Lender Default.”



     “Designated Noncash Consideration” means the fair market value of non-cash
consideration received by the Borrower or one of its Restricted Subsidiaries in connection with an
Asset Sale that is designated as Designated Noncash Consideration pursuant to a certificate signed
by a Financial Officer of the Borrower and delivered to the Administrative Agent, setting forth the
basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a
subsequent sale of such Designated Noncash Consideration.



     “Designation Date” has the meaning assigned to such term in Section 5.17.



12-12-

 










 





     “Destruction” means any and all damage to, or loss or destruction of, or
loss of title to, all or any portion of the Property of the Borrower or any of its Restricted
Subsidiaries.



     “Discount Range” has the meaning assigned to such term in Section
2.05(d)(i).



     “Disqualified Equity Interest” means any Equity Interest which, by its
terms (or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (i) matures or is mandatorily redeemable
pursuant to a sinking fund obligation or otherwise, (ii) is or may become redeemable or
repurchaseable at the option of the holder thereof, in whole or in part, or (iii) is convertible or
exchangeable (unless at the sole option of the issuer thereof) for Indebtedness or Equity Interests
described in this definition, in each case, prior to the 91st day following the
Term-1 Loan Maturity Date, in each case excluding redemptions or payments to
the extent they are only required be made if such redemptions or payments are not prohibited under
this Agreement (including as a result of the covenants under this agreement ceasing to apply).



     “Documentation Agent” means the Documentation Agent named on the cover
hereto.



     “Dollar Equivalent” means, as to any amount denominated in any Alternative
Currency as of any date of determination, the amount of Dollars that would be required to purchase
the amount of
such currency based upon the Spot Selling Rate as of such date, and as to any amount
denominated in Dollars, such amount in Dollars.



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



     “Domestic Lender” means any Lender that is treated, for U.S. federal income
tax purposes, as a “United States person” within the meaning of Section 7701(a)(30) of the Code.



     “Effective Date” means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.08).



     “EMU Legislation” means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified European currency.



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



     “Environmental Claim” means any accusation, allegation, notice of
violation, claim, demand, order, directive, proceeding, cost recovery action or other cause of
action by, or on behalf of, any Governmental Authority or any other Person for damages, injunctive
or equitable relief, personal injury (including sickness, disease or death), Remedial Action costs,
tangible or intangible property damage, natural resource damages, nuisance, pollution, any adverse
effect on the Environment caused by any Hazardous Material, or for fines, penalties or
restrictions, resulting from or based upon: (a) the existence, or the continuation of the
existence, of a Release or threatened Release (including sudden or non-sudden, accidental or
non-accidental Releases); (b) exposure to any Hazardous Material; (c) the presence, generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous Material; or (d) the
violation or alleged violation of, or any other potential liability arising under, any
Environmental Law or Environmental Permit.



     “Environmental Laws” means any and all applicable treaties, laws (including
common law), statutes, rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions or binding



13-13-

 










 







agreements or other Requirements of Law issued, promulgated or entered into
by any Governmental Authority, relating in any way to the protection of public health from
environmental hazards, protection of the Environment, preservation or reclamation of natural
resources, natural resource damages, occupational safety or health, the management, Release or
threatened Release of, or exposure to, any Hazardous Material, and any and all Environmental
Permits.



     “Environmental Liability” means any liability, contingent or otherwise
(including, but not limited to, any liability for damages, natural resource damage, costs of
environmental investigation, remediation and other response costs, administrative oversight costs,
fines, penalties or indemnities), of the Borrower or any of its Restricted Subsidiaries directly or
indirectly resulting from or based upon (a) the existence, or the continuation of the existence, of
a Release or threatened Release (including sudden or non-sudden, accidental or non-accidental
Releases); (b) exposure to any Hazardous Material; (c) the presence, generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Material; or (d) the violation or
alleged violation of any Environmental Law or Environmental Permit.



     “Environmental Permit” means any permit, approval, authorization,
certificate, license, registration, notification, exemption, variance, filing or permission
required by or from any Governmental Authority pursuant to any Environmental Law.



     “Equity Interests” means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a trust or other
equity ownership interests in a Person.



     “Equity Rights” means all securities convertible or exchangeable for Equity
Interests and all warrants, options or other rights to purchase or subscribe for any Equity
Interests, whether or not presently convertible, exchangeable or exercisable.



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



     “ERISA Affiliate” means any trade or business (whether or not incorporated)
that, together with the Borrower or any Restricted Subsidiary, is treated as a single employer
under Sections 414(b) or (c) of the Code, and for the purpose of Section 302 of ERISA or Section
412 of the Code, within the meaning of Section 414(b), (c), (m) or (o) of the Code.



     “ERISA Event” means (a) any “reportable event”, as defined in Section
4043(c) of ERISA or the regulations issued thereunder, with respect to a Pension Plan (other than
an event for which the 30-day notice period is waived by regulation); (b) with respect to any
Pension Plan, a failure to satisfy the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, whether or not waived, 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 to
make any required contribution to a Multiemployer Plan; (c) the filing pursuant to Section 412(c)
of the Code or Section 302(g) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Pension Plan; (d) the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the
Borrower or any Restricted Subsidiary or any ERISA Affiliate (e) the receipt by the Borrower or any
Restricted Subsidiary or ERISA Affiliate from the PBGC of any notice relating to an intention to
terminate any Pension Plan to appoint a trustee to administer any Pension Plan, or to take any
other action with respect to a Pension Plan that could reasonably be expected to result in material
liability to the Borrower or any Restricted Subsidiary or ERISA Affiliate, or the occurrence of any
event or condition which could reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the incurrence
by the Borrower or any Restricted Subsidiary or ERISA Affiliate of any liability with respect to
the withdrawal or partial



14-14-

 










 







withdrawal from any Pension Plan or Multiemployer Plan; (g) the receipt
by the Borrower or any Restricted Subsidiary or ERISA Affiliate of any notice concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected
to be, Insolvent or in Reorganization or is, or is reasonably expected to be, in endangered or
critical status within the meaning of Section 305 of ERISA; (h) the occurrence of a nonexempt
prohibited transaction (with the meaning of Section 4975 of the Code or Section 406 of ERISA) which
could result in liability to the Borrower or any Restricted Subsidiary or ERISA Affiliate; or (i) a
Pension Plan that is, or is reasonably expected to be, in an “at risk” status within the meaning of
Section 430 of the Code.



     “Euro” or “€” each mean the single currency of the
Participating Member States.



     “Eurodollar Borrowing” means a Borrowing comprised of Eurodollar Loans.



     “Eurodollar Loan” means any Loan bearing interest at a rate determined by
reference to the LIBO Rate in accordance with the provisions of Article II.



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



     “Excess Cash Flow” means, for the Borrower and its Restricted Subsidiaries,
for any Excess Cash Flow Period, (a) the sum, without duplication, of:




     (i) Consolidated EBITDA for such Excess Cash Flow Period;




     (ii) reductions to working capital of the Borrower and its Restricted Subsidiaries for
such Excess Cash Flow Period (i.e., the decrease, if any, in Consolidated
Current Assets minus Consolidated Current Liabilities from the beginning
to the end of such Excess Cash Flow Period); provided that reductions to working capital
shall be calculated without regard to (1) any change in the valuation of currency, (2) any
one-time change in working capital arising directly from Permitted Acquisitions or
other permitted Investment or from Asset Sales permitted pursuant to Section
6.05(vii), (xi) or (xv) completed by the Borrower and its Restricted Subsidiaries during
such Excess Cash Flow Period and (3) the reclassification in accordance with GAAP of assets
or liabilities, as applicable, between current and noncurrent (including, but not limited
to, with respect to discontinued operations) and (4) changes in accruals of interest and
income tax accounts;




     (iii) To the extent subtracted in determining Consolidated EBITDA, all items that did
not result from a cash payment by the Borrower or any of its Restricted Subsidiaries on a
consolidated basis during such Excess Cash Flow Period;




     (iv) to the extent any Capital Expenditures (and the corresponding delivery of
equipment), Permitted Acquisitions or other Investments referred to in clause (b)(iv) below
do not occur in the Excess Cash Flow Period of the Borrower specified in the applicable
certificate of the Borrower provided pursuant to clause (b)(iv) below, the aggregate amount
of such Capital Expenditures, Permitted Acquisitions or other Investments that were not so
made in the Excess Cash Flow Period of the Borrower specified in such certificates; and




     (v) to the extent that cash payments in respect of contributions to Pension Plans, any
Foreign Plan, other post-employment benefits and any payments made with respect to
Environmental Liability during any Excess Cash Flow Period are less than the amount of
expenses for such items subtracted in determining Consolidated EBITDA for such Excess Cash
Flow Period, the excess of such expenses over the amount of such cash payments;



15-15-

 










 




minus (b) the sum, without duplication, of:





     (i) All Taxes paid in cash by the Borrower and its Restricted Subsidiaries on a
consolidated basis during such Excess Cash Flow Period or that will be paid within six
months after the close of such Excess Cash Flow Period (provided that any amount so deducted
that will be paid after the close of such Excess Cash Flow Period shall not be deducted
again in a subsequent Excess Cash Flow Period);




     (ii) Debt Service of the Borrower and its Restricted Subsidiaries during such Excess
Cash Flow Period (except, in the case of amortization of principal in excess of 1.0% per
annum of the original principal amount borrowed, to the extent funded with the proceeds of
Indebtedness (other than revolving loans (including Revolving Credit Loans)) or the issuance
of Equity Interests);




     (iii) Capital Expenditures (except to the extent funded with the proceeds of
Indebtedness (other than revolving loans (including Revolving Credit Loans)) or the issuance
of Equity Interests) by the Borrower and its Restricted Subsidiaries on a consolidated basis
during
such Excess Cash Flow Period that are paid in cash, and (y) the aggregate consideration
paid in cash during such Excess Cash Flow Period in respect of Permitted Acquisitions and
other Investments, in each case, permitted by Section 6.04, but excluding Capital
Expenditures, Permitted Acquisitions and other such Investments made in such Excess Cash
Flow Period where a certificate in the form contemplated by the following clause (iv) was
previously delivered);




     (iv) except to the extent funded with the proceeds of Indebtedness (other than
revolving loans (including Revolving Credit Loans)) or the issuance of Equity Interests,
Capital Expenditures, Permitted Acquisitions and other Investments, in each case, permitted
by Section 6.04, that the Borrower or any Restricted Subsidiary have, during such Excess
Cash Flow Period, executed a binding written commitment to make but that are not made during
such Excess Cash Flow Period, provided that the Borrower shall deliver a
certificate to the Administrative Agent not later than 90 days after the end of such Excess
Cash Flow Period, signed by a Financial Officer of the Borrower and certifying that such
Capital Expenditures, Permitted Acquisition or other such Investments, as the case may be,
will be made in the next Excess Cash Flow Period and not from the proceeds of Indebtedness
(other than revolving loans (including Revolving Credit Loans)) or the issuance of Equity
Interests (to the extent deducted pursuant to this clause (b)(iv));




     (v) additions to working capital of the Borrower and its Restricted Subsidiaries for
such Excess Cash Flow Period (i.e., the increase, if any, in Consolidated
Current Assets minus Consolidated Current Liabilities from the beginning to the end of such
Excess Cash Flow Period); provided that any impact additions to working
capital shall be calculated without regard to (w) any change in the valuation of currency,
(x) the effects of purchase accounting and any one-time change in working capital arising
directly from Permitted Acquisitions or other permitted Investment or
from Asset Sales permitted pursuant to Section 6.05(vii), (xi) or (xv) completed by the
Borrower and its Restricted Subsidiaries during such Excess Cash Flow Period, (y) the
reclassification in accordance with GAAP of assets or liabilities between current and
noncurrent (including, but not limited to, with respect to discontinued operations) and (z)
changes in accruals of interest and income taxes;




     (vi) except to the extent funded with the proceeds of Indebtedness (other than
revolving loans (including Revolving Credit Loans)) or the issuance of Equity Interests,
dividends or distributions on, or repurchases of, Equity Interests or other Equity Rights of
the



16-16-

 










 







Borrower paid in cash by the Borrower during such Excess Cash Flow Period, in each case,
permitted by Section 6.07 (other than from the Available Amount);




     (vii) except to the extent funded with the proceeds of Indebtedness (other than
revolving loans (including Revolving Credit Loans)) or the issuance of Equity Interests, any
voluntary prepayment permitted hereunder of term Indebtedness (other than the Loans) or, to
the extent a permanent reduction of commitment is made, revolving loans (other than the
Loans) of Indebtedness during such Excess Cash Flow Period, so long as the amount of such
prepayment is not already reflected in Debt Service;




     (viii) expenses, costs or losses excluded from the calculation of Consolidated Net
Income during such Excess Cash Flow Period by operation of clauses (a), (b), (c) or (g) of
the definition thereof, to the extent paid in cash during such Excess Cash Flow Period;




     (ix) to the extent added to determine Consolidated EBITDA (but that increased
Consolidated EBITDA), all fees, costs and expenses arising from or related to the
Refinancing, which were paid in cash during such Excess Cash Flow Period;




     (x) the amount related to items that were added to or not deducted from Consolidated
Net Income in calculating Consolidated EBITDA and that are not specifically excluded from
any of the reductions to Excess Cash Flow set forth above or in clause (xi) below to the
extent such items represented a cash payment by the Borrower or any of its Restricted
Subsidiaries on a consolidated basis during such Excess Cash Flow Period; and




     (xi) to the extent not deducted as an expense in determining Consolidated EBITDA and to
the extent not funded with the proceeds of Indebtedness (other than Revolving Credit Loans)
or the issuance of Equity Interests, any contribution to any Pension Plan, any Foreign Plan,
or other post-employment benefits and any payments made with respect to any Environmental
Liability during such Excess Cash Flow Period;


provided that, to the extent otherwise included herein and without duplication,
the Net Proceeds of Asset Sales, Destructions, Takings and Debt Incurrences which are applied
towards the prepayment of Loans and/or the repair, replacement, substitution, restoration of or
reinvestment in property in accordance with Section 2.05(b) shall be excluded from the calculation
of Excess Cash Flow; and provided, further, that there shall
be excluded from the calculation of Excess Cash Flow for any Excess Cash Flow Period any amounts
attributable to any Person (other than an Unrestricted Subsidiary) that was acquired in a Permitted
Acquisition consummated during such Excess Cash Flow Period to the extent such amounts relate to
the period prior to the consummation of the relevant Permitted Acquisition.




     For the avoidance of doubt, Excess Cash Flow shall not be reduced by any Permitted Loan
Purchase or the amount of any cash consideration paid in connection therewith.



     “Excess Cash Flow Percentage” means, as of any date of determination, (i)
50% if the Total Net Leverage Ratio is greater than
3.003.50:1.00 as of such date, (ii) 25% if the
Total Net Leverage Ratio is greater than
2.503.00:1.0 but less than or equal to
3.003.50:1.00 as of such date and (iii) zero (0%)
if the Total Net Leverage Ratio is less than or equal to
2.503.00:1.00 as of such date.



     “Excess Cash Flow Period” means (i) the Fiscal Year ending on December 31,
20102011 and (ii) each Fiscal Year thereafter.



     “Exchange Act” means the Securities Exchange Act of 1934.



17-17-

 










 





     “Excluded Joint Venture” means each Restricted Joint Venture and each
Existing Joint Venture.



     “Excluded Non-U.S. Restricted Subsidiary” means any Non-U.S. Restricted
Subsidiary to the extent that such Subsidiary’s Guarantee of the Obligations would, in the good
faith judgment of the Borrower, result in adverse tax consequences to the Borrower or its
Restricted Subsidiaries.



     “Excluded Subsidiaries” means, collectively, (a) each Immaterial Restricted
Subsidiary, (b) each Unrestricted Subsidiary, (c) each Excluded Non-U.S. Restricted Subsidiary and
its Subsidiaries, (d) each Restricted Subsidiary of a Non-U.S. Restricted Subsidiary that is
organized under the laws of the United States, any State thereof or the District of Columbia, to
the extent such Subsidiary’s Guarantee of the Obligations would, in the good faith judgment of the
Borrower, result in adverse tax consequences to the Borrower or its Restricted Subsidiaries, (e)
each Captive Insurance Restricted Subsidiary, (f) each Non-Profit Restricted Subsidiary, (g) each
Non-Wholly Owned Restricted Subsidiary, to the extent that
Requirements of Law or the terms of such Person’s Organizational Documents prohibit such
Person from providing a Guarantee of the Obligations, (h) SFC, to the extent that Requirements of
Law or the terms of SFC’s Organizational Documents or the terms of the Monsanto Settlement
Agreement prohibit SFC from providing a Guarantee of the Obligations and (i) S E Investment LLC for
so long as the representation and warranty set forth in Section 3.03 would not be true and correct
if such Restricted Subsidiary was a Loan Party.



     “Executive Order” has the meaning assigned to such term in Section 3.21(a).



     “Existing Credit Agreements” means (i) that certain revolving credit
agreement, dated as of February 28, 2008, among the Borrower, as the U.S. borrower, Solutia Europe
SA/NV and Flexsys SA/NV, as European borrowers, Citibank, N.A. as administrative agent and as
collateral agent, the lenders from time to time party thereto and the other parties thereto, as
amended, restated, supplemented or modified from time to time and (ii) the term loan credit
agreement dated as of February 28, 2008, among the Borrower, Citibank, N.A. as administrative agent
and as collateral agent, the lenders from time to time party thereto and the other parties thereto,
as amended, restated, supplemented or modified from time to time.



     “Existing L/C” means outstanding letters of credit existing as of the
Effective Date, all such Existing L/Cs being listed on Schedule 1.01(e) hereto.



     “Existing Joint Venture” means each investment or Person listed on Schedule
1.01(d) hereto.



     “FAS 5” means the Statement of Financial Accounting Standards No. 5 of The
Financial Accounting Standards Board.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided that if
no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to the Administrative Agent on such day on such transactions as determined by the
Administrative Agent.



     “Financial
CovenantsCovenant” means
those covenants and agreementsthe covenant of the
Loan Parties set forth in Sections 6.12 and 6.13.Section
6.12.



18-18-

 










 





     “Financial Officer” of any corporation, partnership or other entity means
the chief financial officer, the chief executive officer, the principal accounting officer,
treasurer, assistant treasurer or controller of such corporation, partnership or other entity.



     “FIRREA” means the Federal Institutions Reform, Recovery and Enforcement
Act of 1989.



     “First Lien Intercreditor Agreement” means an agreement by and among the
Collateral Agent and any collateral agent for the holders of Refinancing Notes (an “Other
First Lien Agent”) appropriately completed and acknowledged by the Borrower and the
Guarantors providing, among other customary items (as determined by the Collateral Agent in
consultation with the Borrower), that (i) for so long as any Commitments, Loans, Letters of Credit,
or other Obligations are outstanding
under this Agreement (other than contingent obligations for which no claim has been asserted)
the Collateral Agent, on behalf of the Lenders, shall have the sole right to enforce any Lien
against any Collateral in which it has a perfected security interest (except that, to the extent
the principal amount of Refinancing Notes exceeds the principal amount of Loans and L/C Obligations
under this Agreement, such agreement may provide that such Other First Lien Agent shall instead be
subject to a 90 day standstill requirement with respect to such enforcement (which period shall be
extended if the Collateral Agent commences enforcement against the Collateral during such period or
is prohibited by any Requirement of Law from commencing such proceedings) in the event it has given
notice of an event of default under the indenture or other agreement governing Refinancing Notes
for which it is agent and (ii) distributions on account of any enforcement against the Collateral
by the Collateral Agent or the Other First Lien Agent (including any distribution on account of the
Collateral in any such proceeding pursuant to any Debtor Relief Laws) with respect to which each of
the Collateral Agent and such Other First Lien Agent have a perfected security interest shall be on
a pro rata basis (subject to customary provisions dealing with intervening Liens that are prior to
the Collateral Agent’s or such Other First Lien Agent’s security interest and the unenforceability
of any obligations purportedly secured by such Liens) based on the amount of the Obligations and
the obligations owing under the Refinancing Notes, respectively.



     “Fiscal Quarter” means any quarter of a Fiscal Year.



     “Fiscal Year” means any period of twelve consecutive calendar months which
form the basis for the Borrower’s financial statements in its Form 10-K; references to a Fiscal
Year with a number corresponding to any calendar year (e.g., the “2009
Fiscal Year”) refer to the Fiscal Year as disclosed in the Borrower’s SEC filings.



     “Fixed Charge Coverage Ratio” means, for any Test Period, the
ratio of (a) (i) Consolidated EBITDA for such Test Period minus (ii) the
aggregate amount of Capital Expenditures for such Test Period to (b) Consolidated Fixed Charges for
such Test Period.



     “Flood Insurance Laws” means, collectively, (i) the National Flood
Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the
Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue
thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any
successor statute thereto and (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in
effect or any successor statute thereto.



     “Foreign Plan” means any “defined benefit plan” (as defined in Section
3(35) of ERISA but that is not subject to ERISA) maintained or contributed to outside the United
States by any Loan Party or any Restricted Subsidiary primarily for the benefit of employees of any
Loan Party or any Restricted Subsidiary employed outside the United States.



19-19-

 











 





     “Funded Indebtedness” means, with respect to the Borrower and its
Restricted Subsidiaries, all Indebtedness of such Person for borrowed money (including, in respect
of the Borrower and its Restricted Subsidiaries, the Loans) that by its terms matures more than one
year after the date of its creation or matures within one year from such date but is renewable or
extendible, at the option of such Person, to a date more than one year after such date or arises
under a revolving credit or similar agreement that obligates the lender or lenders to extend credit
during a period of more than one year after such date, including all amounts of Funded Indebtedness
of such Person required to be paid or prepaid within one year after the date of determination.



     “GAAP” means generally accepted accounting principles in the United States
applied on a consistent basis.



     “Governmental Authority” means the government of the United States or any
other nation, or of any political subdivision thereof, whether state, provincial or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).



     “Guarantee” of or by any Person (the “guarantor”) means
any obligation, contingent or otherwise, of the guarantor under any guaranty made by, or other
agreement having the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase of) any security for the
payment thereof, (b) to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the payment thereof (including
pursuant to a “synthetic lease”), (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or other obligation, and
the term “Guaranteed” shall have a meaning correlative thereto; provided that
the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary
course of business of the Borrower and its Restricted Subsidiaries. The amount of the obligation
under any Guarantee 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 is made (including
principal, interest and fees) and (b) the maximum amount for which such guarantor may be liable
pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation
and the maximum amount for which such guarantor may be liable are not stated or determinable, in
which case the amount of the obligation under such Guarantee shall be such guarantor’s maximum
reasonably anticipated liability in respect thereof as determined by the guarantor in good faith;
irrespective, in any such case, of any amount thereof that would, in accordance with GAAP, be
required to be reflected on a balance sheet of such Person.



     “Guarantee Agreement” means the Guarantee Agreement, substantially in the
form of Exhibit H, made by the Restricted Subsidiaries party thereto.



     “Hazardous Materials” means all pollutants, contaminants, wastes,
substances, chemicals, materials and constituents, including crude oil, petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls
(“PCBs”) or PCB-containing equipment, radon or any other radioactive materials
including any source, special nuclear or by-product material, mold, fungi, or other biological
materials of any nature, which could reasonably be expected to have an adverse effect on



20-20-

 










 







human
health or the environment, or which can give rise to liability under, or are subject to regulation
pursuant to, any Environmental Law.



     “Headquarters Building” means that certain Real Property located at 575
Maryville Centre Drive, St. Louis, Missouri.



     “Hedging Agreement” means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other interest or currency
exchange rate or commodity price hedging arrangement and any swap, forward, future or derivative
transaction or option and all other similar agreements or arrangements designed to alter the risks
of any Person arising from fluctuations in interest rate, currency values or commodity prices.



     “Hedging Obligations” means obligations under or with respect to Hedging
Agreements.



     “Honor Date” has the meaning set forth in Section 2.03(c)(i).



     “Immaterial Restricted Subsidiary” means, at any date of determination, any
Restricted Subsidiary (other than any Loan Party) designated as such in writing by the Borrower to
the Administrative Agent that, together with all other Restricted Subsidiaries constituting
Immaterial Restricted Subsidiaries (i) contributed 2.5% or less of Consolidated EBITDA for the
period of four Fiscal Quarters most recently ended for which financial statements have been or are
required to have been delivered pursuant to Sections 4.01(h), 5.01(a) or 5.01(b), as applicable, as
of the date of determination and (ii) had consolidated assets representing 2.5% or less of the
consolidated total assets of the Borrower and its Subsidiaries on the last day of the most recent
Fiscal Quarter ended for which financial statements have been or are required to have been
delivered pursuant to Sections 4.01(h), 5.01(a) or 5.01(b), as applicable, as of the date of
determination. The Immaterial Restricted Subsidiaries as of the Effective Date are listed on
Schedule 1.01(a).



     “Impacted Lender” means any Revolving Credit Lender (a) that has given
verbal or written notice to the Borrower, the Administrative Agent, any Issuer or any Revolving
Credit Lender or has otherwise announced that such Revolving Credit Lender believes it will fail,
or that fails, within 3 Business Days of written request from the Administrative Agent, to confirm
in writing to the Administrative Agent that it will comply with its obligations under this
Agreement to make available its portion of any incurrence of Loans or reimbursement obligations
under Section 2.03(c), (b) with respect to which one or more Lender-Related Distress Events have
occurred or (c) that is a Defaulting Lender. A Revolving Credit Lender shall cease to be an
Impacted Lender upon and in the event that the Administrative Agent, the Issuers, the Swing Line
Lender and the Borrower have determined, in their respective sole discretion, that such Revolving
Credit Lender has adequately remedied all matters that caused such Revolving Credit Lender to
become an Impacted Lender.



     “Impermissible Qualification” means, relative to the opinion or
certification of any independent public accountant as to any financial statement of the Borrower,
any qualification or exception to such opinion or certification:




     (a) which is of a “going concern” or similar nature;




     (b) which relates to the limited scope of examination of matters relevant to such
financial statement; or




     (c) which relates to the treatment or classification of any item in such financial
statement (excluding treatment or classification changes which are the result of changes in
GAAP




21-21-

 












 






or the interpretation of GAAP) and which, as a condition to its removal, would require
an adjustment to such item the effect of which would be to cause the Borrower to be in
Default or Event of Default of any of its obligations under Sections 6.12 or
6.13.Section 6.12.



     “Increased Cost Lender” has the meaning assigned to such term in Section 2.19.



     “Incremental Facility” has the meaning assigned to such term in Section 2.21(a).



     “Incremental Term Loans” has the meaning assigned to such term in Section 2.21(a).



     “Incremental Yield” has the meaning assigned to such term in Section 2.21(b).



     “Indebtedness” of any Person means, without duplication, (i) obligations of such
Person for borrowed money or evidenced by bonds, debentures, notes and similar instruments; (ii)
all Capital Lease Obligations of such Person; (iii) all Indebtedness of others secured by any Lien
on any Property of such Person, whether or not the obligations secured thereby have been assumed;
provided that if such Indebtedness shall not have been assumed by such Person and is
otherwise non-recourse to such Person, the amount of such obligation treated as Indebtedness shall
not exceed the fair market value of such Property; (iv) all indebtedness of such Person
representing the deferred purchase price of Property or services (excluding (A) trade payables and
accrued expenses incurred in the ordinary course of business of the Borrower and its Restricted
Subsidiaries and (B) any earn-out obligation until such obligation becomes a liability on the
balance sheet of such Person in accordance with GAAP and if not paid after becoming due and
payable, unless subject to dispute); (v) all obligations of such Person for
the reimbursement of any obligor in respect of letters of credit, letters of guaranty, bankers’
acceptances and similar credit transactions; (vi) all obligations of such Person under conditional
sale or other title retention agreements relating to property purchased by such Person; (vii) all
net Hedging Obligations; (viii) all Disqualified Equity Interests of such Person; and (ix) all
Guarantees by such Person in respect of
liabilities, obligations or indebtedness of the kind described in clauses (i) through (viii).
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
(other than in the case of general partner liability) to the extent that terms of such Indebtedness
expressly provide that such Person is not liable therefor. The amount of any net Hedging
Obligations on any date shall be deemed to be the Termination Value.



     “Indemnified Taxes” has the meaning assigned to such term in Section 2.15(a).



     “Indemnity, Subrogation and Contribution Agreement” means the Indemnity, Subrogation
and Contribution Agreement, substantially in the form of Exhibit E.



     “Information” has the meaning assigned to such term in Section 9.16.



     “Information Memorandum” means the confidential information memorandum dated March 3,
2010 in the form approved by the Borrower concerning the Loan Parties and their Subsidiaries which,
at the Borrower’s request and on its behalf, was prepared in relation to this transaction and
distributed by the Arrangers to selected financial institutions before the date of this Agreement.



     “Initial Term Commitment” means, as to each Initial Term Lender, its obligation to
make an Initial Term Loan to the Borrower pursuant to Section 2.01(a)(i) in an aggregate principal
amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the
caption “Term Commitment” or in the Assignment and Assumption pursuant to which such Initial Term
Lender becomes



22-22-

 











 




a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement. The initial aggregate amount of the Initial Term Commitments on
the Closing Date was $850,000,000.




     “Initial Term Lender” means, at any time, any Lender that has an Initial Term
Commitment or an Initial Term Loan at such time.



     “Initial Term Loan” has the meaning assigned to such term in Section 2.01(a)(i) and
shall include any Incremental Term Loans borrowed prior to the effectiveness of Amendment No. 1 for
purposes of refinancing such Initial Term Loans.



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



     “Installment Payment Date” has the meaning assigned to such term in Section 2.06(c).



     “Intellectual Property” has the meaning assigned to such term in the Security
Agreement.



     “Intercompany Notes” has the meaning assigned to such term in Section 4.01(o)(B).



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date (and, with
respect to the Converted Term Loans, the Amendment No. 1 Effective Date;
provided, however, that if any Interest Period for a Eurodollar Loan exceeds three
months, the respective dates that fall every three months after the beginning of such Interest
Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing
Line Loan), the last Business Day of each March, June, September and December and the Maturity
Date.



     “Interest Period” means, for any Eurodollar Loan, the period commencing on the date
such Eurodollar Loan is disbursed or converted to or continued as a Eurodollar Loan and ending on
the date one, two, three or six months, as selected by the Borrower in its Borrowing Notice or such
other period that is twelve months or less requested by the Borrower and consented to by all
applicable Lenders; provided that:




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




     (ii) 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 the calendar month at the
end of such Interest Period; and




     (iii) no Interest Period shall extend beyond the applicable Maturity Date;
and




     (iv) the Borrower may not select an Interest Period for Term Loans other than
one month.



     “Investment” has the meaning assigned to such term in Section 6.04.



23-23-

 












 





     “Issuer” means (i) solely with respect to the Existing L/Cs, Citibank, N.A. and (ii)
with respect to any other Letter of Credit, DBTCA, in its capacity as an issuer of such Letter of
Credit hereunder, or any successor issuer of Letters of Credit hereunder; provided, that
with the consent of the applicable Revolving Credit Lender, the Borrower may designate one or more
additional Revolving Credit Lenders as Issuers hereunder. Any reference herein to “the Issuer”
shall, as the context requires, refer to the entity that is the issuer of a specified Letter of
Credit. Notwithstanding anything to the contrary contained herein, Citibank, N.A. shall not be
required to issue, amend or extend any Letter of Credit (including any Existing Letter of Credit)
hereunder unless it elects to do so in its sole discretion.



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Request, and any other document, agreement and instrument entered into by the applicable Issuer and
the Borrower (or any Restricted Subsidiary) or in favor of such Issuer and relating to any such
Letter of Credit.



     “Joint Lead Arrangers” means Deutsche Bank Securities Inc., Jefferies Finance LLC,
HSBC Securities (USA) Inc., Citigroup Global Markets Inc. and J.P. Morgan Securities
Inc.LLC



     “Joint Venture” means any Person not more than 50% of the voting Equity Interests of
which is owned by the Borrower or any Restricted Subsidiary but which is not a Wholly Owned
Restricted Subsidiary and which is engaged in a line of business permitted under Section 6.03.



     “L/C Advance” means, with respect to each Revolving Credit Lender, such Revolving
Credit Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata
Share.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a (or with a)
Revolving Credit Loan.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings, in each case, calculated using the Dollar
Equivalent at such time of all outstanding Letters of Credit denominated in an Alternative
Currency. For purposes of computing the amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with Section 1.05. For all
purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder, such Letter of Credit shall be deemed to be
“outstanding” in the amount so remaining available to be drawn.



     “Lender Affiliate” means (a) with respect to any Lender, (i) an Affiliate of such
Lender or (ii) any entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar extensions of
credit in the ordinary course and is administered or managed by a Lender or an Affiliate of such
Lender and (b) with respect to any Lender that is a fund which invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and similar extensions of credit
and is managed by the same investment advisor as such Lender or by an Affiliate of such investment
advisor.



     “Lender Appointment Period” has the meaning assigned to such term in Section 8.06.



     “Lender Default” means (a) the refusal (which may be given verbally or in writing and
has not been retracted) or failure to fund any portion of the Loans, L/C Advances or participations
in Swing Line



24-24-

 












 







Loans required to be funded by it hereunder within three Business Days of the date
required to be funded by it hereunder, unless such refusal or failure has been cured, (b) the
failure to pay over to the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within three Business Days of the date when due, unless the subject of a good
faith dispute or unless such failure has been cured, or (c) a Revolving Credit Lender has admitted
in writing that it is insolvent or such Revolving Credit Lender becomes subject to a Lender-Related
Distress Event.



     “Lender Participation Notice” has the meaning assigned to such term in Section
2.05(d)(ii).



     “Lender Parties” has the meaning assigned to such term in Section 9.21.



     “Lender-Related Distress Event” means, with respect to any Revolving Credit Lender or
any Person that directly or indirectly controls such Revolving Credit Lender (each, a
“Distressed Person”), as the case may be, a voluntary or involuntary case with respect to
such Distressed Person under any Debtor Relief Law, or a custodian, conservator, receiver or
similar official is appointed for such Distressed Person or any substantial part of such Distressed
Person’s assets, or such Distressed Person or any person that directly or indirectly controls such
Distressed Person is subject to a forced liquidation, merger, sale or other change of control
supported in whole or in part by guaranties or other support of (including without limitation the
nationalization or assumption of ownership or operating control by) the U.S. government or other
Governmental Authority, or such Distressed Person makes a general assignment for the benefit of
creditors or is otherwise adjudicated as, or determined by any Governmental Authority having
regulatory authority over such Distressed Person or its assets to be, insolvent or bankrupt;
provided that a Lender-Related Distress Event shall not be deemed to have occurred solely
by virtue of the ownership or acquisition of any Equity Interest in any Revolving Credit Lender or
any person that directly or indirectly controls such Revolving Credit Lender by a Governmental
Authority or an instrumentality thereof.



     “Lenders” means the banks, financial institutions and other institutional lenders
listed on the signature pages hereof as the initial Lenders and each Person that shall become a
Lender hereunder pursuant to Section 9.04 for so long as such initial Lender or Person, as the case
may be, shall be a party to this Agreement as a Lender (and shall include the Swing Line Lender and
each Issuer).



     “Letter of Credit” means each Existing L/C and any other letter of credit issued
hereunder.



     “Letter of Credit Expiration Date” means the day that is five Business Days prior to
the Revolving Loan Maturity Date (or, if such day is not a Business Day, the next preceding
Business Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(h).



     “Letter of Credit Request” has the meaning specified in Section 2.03(b)(i).



     “LIBO Rate” means, for any Interest Period, in the case of any Loan, the greater of
(x) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or
other commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest Period; provided that
if such rate is not available at such time for any reason, then the rate pursuant to this clause
(x) for such Interest Period shall be the rate per annum determined by the Administrative Agent to
be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Loan being made, continued or converted
with a term equivalent to such Interest Period would be offered by Deutsche Bank’s London Branch to
major banks in the London interbank eurodollar market at their



25-25-

 












 







request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest Period and (y) solely in
the case of Term-1 Loans,
1.500.75% per annum. The determination of the
LIBO Rate by the Administrative Agent shall be conclusive and binding on the Borrowers absent
manifest error.



     “Lien” means, with respect to any Property, (a) any mortgage, deed of trust, deed to
secure debt, lien, pledge, encumbrance, charge, collateral, assignment, hypothecation or security
interest in or on such Property, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to such Property, (c) in
the case of securities, any purchase option, call or similar right of a third party with respect to
such securities, (d) in the case of any investment property or deposit account, any contract or
other agreement under which any third party has “control” (as defined in the UCC) of such
investment property or deposit account and (e) any other agreement intended to give or create any
of the foregoing.



     “Loan” means an extension of credit by a Lender to the Borrower under Article II in
the form of a Revolving Credit Loan, Initial Term Loan,
Term-1 Loan, Incremental Term Loan or Swing Line Loan.



     “Loan Documents” means this Agreement, the Indemnity, Subrogation and Contribution
Agreement, the Guarantee Agreement, any Non-U.S. Guarantee Agreements, the Security Documents, each
Note, the First Lien Intercreditor Agreement, the Second Lien Intercreditor Agreement, each
Perfection Certificate and each Letter of Credit Request.



     “Loan Obligations” means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect
to any Loan or Letter of
Credit, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.



     “Loan Parties” means the Borrower and the Subsidiary Guarantors.



     “Louvain-la-Neuve Facility” means that certain office complex located at
Louvain-la-Neuve, Belgium.



     “Master Intercompany Note” means that certain master intercompany promissory note
evidencing certain intercompany Indebtedness owed to any Loan Party.



     “Material Adverse Effect” means (a) a material adverse effect on the business, assets,
operations, properties or financial condition of the Borrower and its Subsidiaries, taken as a
whole, or (b) material impairment of the ability of the Loan Parties, taken as a whole, to perform
their obligations under any Loan Document or (c) material impairment of the rights and remedies
available to the Lenders or the Collateral Agent under any Loan Document.



     “Material Non-U.S. Restricted Subsidiary” means any Non-U.S. Restricted Subsidiary
that, on a consolidated basis with its Subsidiaries, (i) contributed 5.0% or more of Consolidated
EBITDA for the period of four Fiscal Quarters most recently ended for which financial statements
have been or are required to have been delivered pursuant to Sections 4.01(h), 5.01(a) or 5.01(b),
as applicable, as of the date of determination or (ii) had consolidated assets representing 5.0% or
more of the consolidated total assets of the Borrower and its Subsidiaries on the last day of the
most recent Fiscal Quarter ended for



26-26-

 












 







which financial statements have been or are required to have
been delivered pursuant to Sections 4.01(h), 5.01(a) or 5.01(b), as applicable, as of the date of
determination.



     “Material Indebtedness” means Indebtedness (other than the Loans) and Hedging
Obligations of any one or more of the Borrower and its Restricted Subsidiaries, individually or in
an aggregate principal amount exceeding $25.0 million. For purposes of determining Material
Indebtedness, the “principal amount” of any Hedging Obligations of the Borrower or any Restricted
Subsidiary at any time shall be the Termination Value thereof at such time.



     “Material Lease” means a lease on a Mortgaged Property as of the Effective Date which
(i) affects the ability of the applicable mortgagor to conduct its business as operated on the
Mortgaged Property or to utilize the Mortgaged Property for its intended use or (ii) permits the
lessee under such lease to operate a manufacturing facility or similar business on the Mortgaged
Property (unrelated directly to the applicable mortgagor’s business).



     “Maturity Date” means the Term-1 Loan Maturity Date or the
Revolving Loan Maturity Date, as the context shall require.



     “Maximum Incremental Term Loan Facilities Amount” means, at any date of
determination, (a) the greater of (i) (x) $500,000,000 minus (y) the aggregate principal amount of
Incremental Term Loans incurred pursuant to Section 2.21(a) prior to such date and (ii) the
principal amount of Incremental Term Loans that would not cause the Senior Secured Leverage Ratio
on date of borrowing of such Incremental Term Loans to be greater than 2.25 to 1.0.



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



     “Monsanto Settlement Agreement” means the Amended and Restated Settlement Agreement,
dated as of February 28, 2008, among the Borrower, Monsanto Company and SFC.



     “Moody’s” means Moody’s Investors Service, Inc., and any successor thereto.



     “Mortgage” means an agreement (including a mortgage, deed of trust or other document
creating and evidencing a Lien on any Mortgaged Property), which shall be in form and substance
reasonably satisfactory to the Collateral Agent, with such schedules and including such provisions
as shall be necessary to conform such document to applicable local or foreign law or as shall be
customary under applicable local or foreign law.



     “Mortgaged Property” means each parcel of fee owned real property of the Loan Parties
identified on Schedule 5.16(b) and the improvements thereto with respect to which a
Mortgage is granted following the Effective Date pursuant to Section 5.11, 5.12, 5.15 or 5.16.



     “Multiemployer Plan” means a multiemployer plan within the meaning of Section
4001(a)(3) of ERISA (i) to which any Borrower or any Restricted Subsidiary or ERISA Affiliate is
then making or has an obligation to make contributions, or (ii) to which any Borrower or Restricted
Subsidiary or ERISA Affiliate has within the preceding six plan years made contributions, including
any Person which ceased to be an ERISA Affiliate during such six year period.



     “Net Proceeds” means, with respect to any Debt Incurrence, Asset Sale
Prepayment Event, Destruction or Taking, (a) the cash proceeds actually received in
respect of such event, including (i) any cash received in respect of any non-cash proceeds, but
only as and when received, and (ii) in the case of aan Asset
Sale Prepayment Event, Destruction or a Taking, sale proceeds,
insurance proceeds,



27-27-

 












 







condemnation awards and similar payments, only to the extent in
excess of $5.0 million for any individual Asset Sale Prepayment Event,
Destruction or Taking, or in excess of $25.0 million in the aggregate for all such
events (together with all Asset Sales (other than Asset Sales described in clauses
(a) and (b) of the definition of Asset Sale Prepayment Event) in such Fiscal Year)
in any Fiscal Year, net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid
by the Borrower and its Restricted Subsidiaries in connection with such event, (ii) the amount of
all taxes paid (or reasonably and in good faith estimated to be payable) by the Borrower and its
Restricted Subsidiaries in connection with such event, including any withholding taxes imposed on
the repatriation of proceeds, (iii) in the case of an Asset Sale Prepayment
Event, Destruction or Taking, the principal amount, premium or penalty, if any, interest
and other amounts on any Indebtedness for borrowed money (other than any Indebtedness pursuant to
Section 6.01(i), 6.01(iii) or 6.01(xiv)) which is secured by a Lien on the properties subject to
such Asset Sale, Destruction or Taking (so long as such Lien was permitted to encumber such
properties under the Loan Documents at the time of such Asset Sale, Destruction or Taking) and
which is repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of
such properties), (iv) the amount of any reasonable reserves established by, and reflected on the
financial statements of, the Borrower and its Restricted Subsidiaries in accordance with GAAP
(other than any taxes deducted pursuant to clause (ii) above) (x) in respect of the sale of such
assets or assets, or (y) associated with the assets that are the subject of such event and (A) that
are retained by the Borrower or any Restricted Subsidiary to fund contingent liabilities that are
directly attributable to such event and that are reasonably estimated to be payable by the Borrower
or any Restricted Subsidiary within 18 months following the date that such event occurred (other
than in the case of contingent tax liabilities, which shall be reasonably estimated to be payable
within the current or immediately succeeding tax year) or (B) that are retained by the Borrower or
any Restricted Subsidiary after such events, including pension and other post-employment benefits
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with such transaction; provided that any amount by
which such reserves are reduced for reasons other than payment of any such contingent liabilities
shall be considered “Net Proceeds” on the date of such reduction.



     “Non-Consenting Lender” has the meaning assigned to such term in Section 2.19.



     “Non-Guarantor Restricted Subsidiary” means each Restricted Subsidiary that is not a
Subsidiary Guarantor.



     “Non-Profit Subsidiaries” means any Restricted Subsidiary that is exempt from income
taxes and is organized and operated exclusively for charitable, scientific, testing for public
safety or educational purposes (within the meaning of Section 501(c)(3) of the Code or, in the case
of any Non-U.S. Restricted Subsidiary, any similar provision under the laws of the jurisdiction in
which such Non-U.S. Restricted Subsidiary is organized). As of the Effective Date, there are no
Non-Profit Subsidiaries.



     “Non-U.S. Guarantee Agreements” means one or more guarantee agreements in form and
substance reasonably satisfactory to the Collateral Agent, providing for the guarantee of the
Obligations by the Non-U.S. Restricted Subsidiaries party thereto, made by the Non-U.S. Restricted
Subsidiaries party thereto.



     “Non-U.S. Jurisdiction” means each jurisdiction of organization of a Subsidiary of the
Borrower other than the United States (or any State thereof) or the District of Columbia.



     “Non-U.S. Lender” means any Lender that is not treated, for U.S federal income tax
purposes, as a “United States person” within the meaning of Section 7701(a)(3) of the Code.



28-28-

 












 





     “Non-U.S. Pledge Agreements” means one or more pledge agreements in form and substance
reasonably satisfactory to the Collateral Agent, among the Loan Parties party thereto and the
Collateral Agent for the benefit of the Secured Parties.



     “Non-U.S. Restricted Subsidiary” means any Restricted Subsidiary that is or becomes
organized under the laws of a Non-U.S. Jurisdiction.



     “Non-U.S. Security Agreements” means one or more security agreements in form and
substance reasonably satisfactory to the Collateral Agent, among the Loan Parties party thereto and
the Collateral Agent for the benefit of the Secured Parties.



     “Non-U.S. Subsidiary” means any Subsidiary that is or becomes organized under the laws
of a Non-U.S. Jurisdiction.



     “Non-Wholly Owned Restricted Subsidiary” means each Restricted Subsidiary that is not
a Wholly Owned Restricted Subsidiary.



     “Note” means a Term Note, Revolving Credit Note or Swing Line Note, as the context may
require.



     “Obligations” means, collectively, (a) all Loan Obligations, (b) the due and punctual
payment and performance of all obligations of the Borrower and the other Loan Parties under each
Pari Passu Secured Hedging Agreement and (c) the due and punctual payment and performance of all
obligations of the Borrower and the other Loan Parties under each Pari Passu Secured Treasury
Services Agreement.



     “Offered Loans” has the meaning assigned to such term in Section 2.05(d)(ii).



     “Organizational Document” means (i) relative to each Person that is a corporation, its
charter and its by-laws (or similar documents) and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized Equity Interests, (ii) relative to each
Person that is a limited liability company, its certificate of formation and operating agreement
(or similar documents) and any other similar arrangements applicable to any membership interests or
other Equity Interests in such Person, (iii) relative to each Person that is a limited partnership,
its certificate of formation and limited partnership agreement (or similar documents) and any other
similar arrangements applicable to any partnership interests or other Equity Interests in such
Person, (iv) relative to each Person that is a general partnership, its partnership agreement (or
similar document) and any other similar arrangements applicable to any partnership interests or
other Equity Interests in such Person and (v) relative to any Person that is any other type of
legal entity, such documents as shall be the functional legal equivalent of the foregoing.



     “Other Taxes” has the meaning assigned to such term in Section 2.15(b).



     “Outstanding Amount” means (a) with respect to Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of Loans, occurring on such date and (b) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.



     “Overnight Rate” means, for any day, the greater of (a) the Federal Funds Rate and (b)
an overnight rate determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation.



29-29-

 












 





     “Pari Passu Secured Hedging Agreement” means any Hedging Agreement permitted by
Section 6.146.13 that is entered into by the
Borrower or any of its Restricted Subsidiaries with any counterparty that was a Joint Lead Arranger
and Bookrunner or an Affiliate of a Joint Lead Arranger and Bookrunner, an Agent or an Affiliate of
an Agent, or a Lender or a Lender Affiliate on the date hereof or at the time such Hedging
Agreement was entered into such Hedging Agreement if such Hedging Agreement has been designated in
writing as a “Pari Passu Secured Hedging Agreement” by the Borrower in certificate of a Financial
Officer of the Borrower delivered to the Administrative Agent.



     “Pari Passu Secured Treasury Services Agreement” means any Treasury Services Agreement
permitted by Section 6.01 that is entered into by the Borrower or any of its Restricted
Subsidiaries with any Treasury Services Bank.



     “Participant” has the meaning assigned to such term in Section 9.04(f).



     “Participating Member State” means each state so described in any EMU Legislation.



     “PATRIOT Act” has the meaning assigned to such term in Section 9.19.



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



     “Pension Plan” means a “pension plan,” as such term is defined in Section 3(2) of
ERISA, which is subject to Title IV of ERISA (other than a Multiemployer Plan) and which is
sponsored or maintained by the Borrower or any Restricted Subsidiary or any ERISA Affiliate or to
which the Borrower or any
Restricted Subsidiary or any ERISA Affiliate contributes or has an obligation to contribute,
or in the case of a multiple employer plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.



     “Perfection Certificate” means a certificate in the form of Annex II to the
Security Agreement or any other form approved by the Administrative Agent.



     “Permitted Acquisition” means any acquisition, whether by purchase, merger,
consolidation or otherwise, by the Borrower or any Restricted Subsidiary of all or substantially
all the assets of, or at least 51% of the Equity Interests in (other than directors qualifying
shares), a Person or a division, line of business or other business unit of a Person (and
any subsequent acquisition of minority equity interests of such Person) so long as:




     (a) such acquisition shall have been approved by the board of directors
of the Person (or similar governing body if such Person is not a corporation) which is the
subject of such acquisition and such Person shall not have announced that it will oppose
such acquisition;(b)




     such assets are to be used in, or such Person so
acquired is engaged in, as the case may be, a business of the type conducted by the Borrower
and its Restricted Subsidiaries on the Effective Date or in a business reasonably related or
ancillary thereto or otherwise permitted by Section 6.03(c);




     (cb) no Default or Event of Default
has occurred and is continuing or would result therefrom;




     (dc) (i) all transactions related
thereto are consummated in all material respects in accordance with applicable Requirements
of Law, (ii) (x) in the case of an acquisition of Equity Interests, the Person acquired
shall become, immediately after giving effect thereto, a Restricted Subsidiary or be merged
into the Borrower or a Restricted Subsidiary (or, in the case of any



30-30-

 












 







Person who is initially
excluded from the definition of Subsidiary as a result of clause (ii) of the final sentence
thereof, becomes a Restricted Subsidiary no later than
612 months following the date of
acquisition of such Equity Interests) and (y) in the case of an acquisition of assets or a
division, line of business or other business unit, immediately after giving effect thereto,
the Property acquired shall be conveyed to the Borrower or a Restricted Subsidiary, and, in
the case of each of the foregoing clauses (x) and (y), all actions required to be taken
under Sections 5.11, 5.12 and 5.16 shall have been taken, (iii) the aggregate amount of
consideration paid by the Borrower and the Subsidiary Guarantors (excluding any assumed
Indebtedness or other liabilities of a Person acquired in such acquisition) in respect of
Persons not becoming Subsidiary Guarantors and in assets, divisions, and lines of business
or business units not being conveyed to the Borrower or a Subsidiary Guarantor (calculated
net of acquired cash and Cash Equivalents that are transferred to the Borrower or a
Subsidiary Guarantor in connection therewith) shall not exceed the sum of (1) $300.0 million
plus (2) the amount of proceeds of unsecured Permitted
Other Debt and the proceeds from any borrowings of Incremental Term Loans, in each case,
that are incurred following the Effective Date (and that are not applied to refinance other
Indebtedness or to make an Investment in reliance on Section 6.04(iii)(z)(2)), (iv)
immediately after giving effect thereto, the Borrower and its Restricted Subsidiaries are in
compliance, on a Pro Forma Basis, with the covenant contained in Section 6.12 recomputed as
at the date of the last ended Test Period, as if such acquisition (and any related
incurrence or repayment of Indebtedness) had occurred on the first day of the relevant Test
Period, (v) immediately after giving effect thereto, the Borrower and its Restricted
Subsidiaries are in compliance, on a Pro Forma Basis, with the
covenant contained in Section
6.136.12 recomputed as at the date of the
last ended Test Period, as if such acquisition (and any related incurrence or repayment of
Indebtedness) had occurred on the first day of the relevant Test Period, and (vi) any
Indebtedness that is incurred, acquired or assumed in connection with such acquisition shall
be in compliance with Section 6.01; and




     (ed) in the case of any acquisition
or series of related acquisitions where the Acquisition Consideration is greater than $10.0
million in the aggregate, the Borrower has delivered to the Administrative Agent an
officers’ certificate certifying that (i) such transaction
complies with this definition (which shall have attached thereto reasonably detailed backup
data and calculations showing such compliance, including compliance with clause (d)
above) and (ii) such transaction could not reasonably be expected to result in
a Material Adverse Effect, together with all other relevant financial information for the
Person or assets to be acquired.



     “Permitted Currency” means Dollars, Sterling, Euros and any other currency permitted
by the Issuer.



     “Permitted Guarantor Factoring Transactions” means the factoring of receivables solely
for cash consideration on a non-recourse basis by the Borrower or any of its Restricted
Subsidiaries structured as a true sale to a Person that is not an Affiliate of the Borrower or any
of its Subsidiaries pursuant to a structured factoring program on fair market terms; provided that
the book value of all receivables subject to such factoring programs at any one time outstanding
shall not exceed an aggregate of $30.0 million; provided, further, however,
for the avoidance of doubt the internal factoring of receivables by Solutia Systems, Inc. with
another Loan Party shall not constitute a use of this definition.



     “Permitted Investments” means:




     (a) marketable direct obligations issued by, or unconditionally guaranteed by, the
United States Government or issued by any agency or instrumentality thereof and backed by
the



31-31-

 












 







full faith and credit of the United States of America, in each case maturing within one
year from the date of acquisition thereof;




     (b) marketable direct obligations issued by any State of the United States of America
or any political subdivision of any such State or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s;




     (c) commercial paper issued by any Person organized in the United States of America and
maturing no more than one year from the date of creation thereof and, at the time of
acquisition, having a rating of at least A-2 from S&P or at least P-2 from Moody’s;




     (d) time deposits, demand deposits, certificates of deposit, Eurodollar time deposits
or bankers’ acceptances maturing within one year from the date of acquisition thereof or
overnight bank deposits, in each case, issued by any bank organized under the laws of the
United States of America or any State thereof or the District of Columbia or any U.S. branch
of a foreign bank, in any case, having at the date of acquisition thereof combined capital
and surplus of not less than $500.0 million;




     (e) repurchase obligations with a term of not more than 90 days for underlying
securities of the types described in clause (a) above entered into with any bank meeting the
qualifications specified in clause (d) above;




     (f) with respect to any Non-U.S. Restricted Subsidiary, non-Dollar denominated (i)
certificates of deposit of, bankers acceptances of, or time deposits with, any commercial
bank having combined capital and surplus of not less than $500.0 million (or the Dollar
Equivalent thereof); which is organized and existing under the laws of the country in which
such Person maintains its chief executive office or principal place of business or is
organized provided such country is a member of the Organization for Economic Cooperation and
Development, and which has a short-term commercial paper rating of at least A-1 or the
equivalent thereof from S&P or of at least P-1 or the equivalent thereof from Moody’s (any
such bank being an “Approved Foreign Bank”) and maturing within one year of the date
of acquisition and (ii) equivalents of demand deposit accounts which are maintained with an
Approved Foreign Bank;




     (g) readily marketable obligations issued or directly and fully guaranteed or insured
by the government or any agency or instrumentality of any member nation of the European
Union (and the United Kingdom) whose legal tender is the Euro or British Pounds Sterling and
which are denominated in Euros or British Pounds Sterling or any other foreign currency
comparable in credit quality and tenor to those referred to above and customarily used by
corporations for cash management purposes in any jurisdiction outside the United States to
the extent reasonably required in connection with any business conducted by any Non-U.S.
Restricted Subsidiary organized in such jurisdiction, maturing within one year from the date
of acquisition thereof and, at the time of acquisition, having one of the two highest
ratings obtainable from either S&P or Moody’s or a comparable rating from an international
recognized rating agency; provided that the full faith and credit of any such member
nation of the European Union is pledged in support thereof;




     (h) investments in money market funds which invest substantially all their assets in
securities of the types described in clauses (a) through (g) above; and




     (i) Hedging Agreements entered into for non-speculative purposes.



32-32-

 












 





     “Permitted Lien” has the meaning assigned to such term in Section 6.02.



     “Permitted Loan Purchase” has the meaning assigned to such term in Section 2.05(d)(i).



     “Permitted Loan Purchase Amount” has the meaning assigned to such term in Section
2.05(d)(i).



     “Permitted Loan Purchase Notice” has the meaning assigned to such term in Section
2.05(d)(iii).



     “Permitted Non-Guarantor Factoring Transactions” means the factoring of receivables
solely for cash consideration on a recourse or non-recourse basis by Non-Guarantor Restricted
Subsidiaries structured as a true sale to a Person that is not an Affiliate of the Borrower or any
of its Subsidiaries pursuant to a structured factoring program on fair market terms;
provided that the book value of all receivables subject to such factoring programs at any
one time outstanding shall not exceed an aggregate of $60.0 million.



     “Permitted Other Debt” means (x) senior unsecured or senior subordinated Indebtedness
of the Borrower and the Subsidiary Guarantors and (y) Indebtedness of the Borrower and the
Subsidiary Guarantors in an amount not to exceed $300.0 million that is secured by a Lien only on
all or a portion of
the Collateral and constitutes “second lien obligations” pursuant to the terms of a Second
Lien Intercreditor Agreement; provided that, in each case, (A) such Indebtedness will not
mature prior to the date that is 91 days following the Term-1 Loan Maturity
Date (excluding a bridge loan maturity if such bridge loan will automatically convert or be
exchanged for loans or notes that do not mature prior to such date so long as no default or event
of default has occurred and is continuing thereunder (“Bridge Loan Maturity”)), (B) the
terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption,
mandatory prepayment or sinking fund obligations prior to the date that is 91 days following the
Term-1 Loan Maturity Date (other than customary offers to repurchase or
mandatory prepayment provisions, as applicable, upon a change of control, asset sale, equity
issuance, debt issuance, sale of the company, excess cash flow or casualty or condemnation
event, required “ahydo” repayments, and customary acceleration rights after an
event of default and scheduled amortization payments not in excess of 1% of the original principal
amount of any such Indebtedness during any Fiscal Year; provided that (i) in the case of
any mandatory prepayment or offer to repurchase any such Indebtedness relating to excess cash flow,
the Borrower shall first prepay the Loans in the amount required under Section 2.05(b)(iv) prior to
making any such prepayment of or offer to repurchase any such other Indebtedness, and (ii) in the
case of any mandatory prepayment of or offer to repurchase any such Indebtedness, the obligations
of the Borrower (if any) to repay or prepay the Loans in accordance with the terms hereof
(including, without limitation, as required pursuant to Section 2.05) arising from such change of
control, asset sale, equity issuance, debt issuance,
sale of the company, excess cash flow or casualty or condemnation
event shall be satisfied to the fullest extent required hereunder), (C) no Default or Event of
Default shall have occurred and be continuing or would immediately result therefrom, (D)
immediately after giving effect thereto, the Borrower and its Restricted Subsidiaries are in
compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (and
any other Indebtedness incurred since the last day of the immediately preceding Test Period), and
the application of the proceeds thereof, with the
covenantscovenant set forth in Section
6.12 and 6.13 recomputed as at the date of the last ended Test Period,
as if all such Indebtedness was incurred on the first day of the immediately preceding Test Period,
and (E) no Restricted Subsidiary shall Guarantee any such Indebtedness unless such Restricted
Subsidiary is also a Subsidiary Guarantor.



     “Permitted Purchase Option Notice” has the meaning assigned to such term in Section
2.05(d)(i).



     “Permitted Refinancing” means, with respect to any Indebtedness, any refinancing,
refunding, extension or renewal thereof; provided, however, that (i) no Default or
Event of Default shall have



33-33-

 












 







occurred and be continuing or would immediately arise therefrom, (ii)
any such refinanced, refunded, extended or renewed Indebtedness shall (a) not have a final maturity
date or Weighted Average Life to Maturity, respectively, that is shorter than the final maturity
date or Weighted Average Life to Maturity, respectively, of the Indebtedness being refinanced,
refunded, extended or renewed (excluding any Bridge Loan Maturity), (b) be at least as subordinate
to the Loans and other Obligations as the Indebtedness being refinanced, refunded, extended or
renewed (and unsecured if the refinanced, refunded, extended or renewed Indebtedness is unsecured
(except, in the case of Indebtedness permitted under Section 6.01(ii), to the extent such
Indebtedness may be secured under Section 6.02(xvi))) and (c) be in an aggregate principal amount
(or accreted value, if applicable) that does not exceed the aggregate principal amount (or accreted
value, if applicable) of the Indebtedness so refinanced, refunded, extended or renewed, plus an
amount equal to all accrued and unpaid interest thereon, plus the stated amount of any premium and
other reasonable amounts required to be paid in connection with such refinancing, refunding,
extension or renewal pursuant to the terms of the Indebtedness being refinanced, refunded, extended
or renewed, plus the amount of reasonable expenses of the Borrower or any of its Restricted
Subsidiaries incurred in connection with such refinancing, refunding, extension or renewal and
(iii) in the case of any Indebtedness of a Loan Party being refinanced, refunded, extended or
renewed, no Non-Guarantor
Restricted Subsidiary that is not already an obligor on such Indebtedness being refinanced,
refunded, extended or renewed shall become an obligor on such refinanced, refunded, extended or
renewed Indebtedness.



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



     “Pledge Agreement” means the Pledge Agreement, substantially in the form of
Exhibit I, among the Loan Parties party thereto and the Collateral Agent for the benefit of
the Secured Parties.



     “Pledged Securities” means the “Pledged Securities” (as defined in the Pledge
Agreement) and/or the Equity Interests pledged under any Non-U.S. Pledge Agreement, as applicable.



     “Preferred Equity Interests” means, with respect to any Person, any and all preferred
or preference Equity Interests (however designated) of such Person, whether or not outstanding or
issued on the Effective Date.



     “Pro Forma Adjustment” shall
meanmeans, for any Test Period that includes any of the four
consecutive fiscal quarters first ending following any permitted acquisition with respect to the
Acquired EBITDA of the applicable Acquired Entity or Business or the Consolidated EBITDA of the
Borrower affected by such acquisition, the pro forma increase or decrease in such Acquired EBITDA
or such Consolidated EBITDA, as the case may be, projected by the Borrower in good faith as a
result of reasonably identifiable and factually supportable net cost savings or additional net
costs, as the case may be, realizable during such period by combining the operations of such
Acquired Entity or Business with the operations of the Borrower and its Subsidiaries and with
respect to which all actions required to achieve such increase or decrease either have been taken
or will be taken within three months of the delivery of the applicable Pro Forma Adjustment
Certificate and such amount is set forth on the Pro Forma Adjustment Certificate, provided
that so long as such net cost savings or additional net costs will be realizable at any time during
such four-quarter period, it may be assumed, for purposes of projecting such pro forma increase or
decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that such net
cost savings or additional net costs will be realizable during the entire such period;
provided further that any such pro forma increase or decrease to such Acquired
EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for
net cost
savings or additional



34-34-

 












 







net costs actually realized during such period and already included in such
Acquired EBITDA or such Consolidated EBITDA, as the case may be.



     “Pro Forma Adjustment Certificate” means a certificate signed by a Financial Officer
of the Borrower and delivered to the Administrative Agent for delivery to the Lenders setting forth
a reasonably detailed calculation of any Pro Forma Adjustment.



     “Pro Forma Basis” means:




     (i) (x) there shall be included in determining Consolidated EBITDA for any period (A)
the Acquired EBITDA of any Person, property, business or asset acquired to the extent not
subsequently sold, transferred or otherwise disposed of by the Borrower or any Restricted
Subsidiary during or after such period (each such Person, property, business or asset
acquired and not subsequently so disposed of, an “Acquired Entity or Business”), and
any Unrestricted Subsidiary converted to a Restricted Subsidiary pursuant to Section 5.17
during or after such period, based on the actual Acquired EBITDA of such Acquired Entity or
Business or converted Subsidiary for such period (including the portion thereof occurring
prior to such acquisition) and (B) an adjustment in respect of each Acquired Entity or
Business equal to the amount of the Pro
Forma Adjustment with respect to such Acquired Entity or Business for such period
(including the portion thereof occurring prior to such acquisition) as specified in the Pro
Forma Adjustment Certificate delivered to the Lenders and the Administrative Agent and (y)
there shall be excluded in determining Consolidated EBITDA for any period the Acquired
EBITDA of any Person, property, business or asset sold, transferred or otherwise disposed
of, closed or classified as discontinued operations by the Borrower or any Subsidiary during
such period (each such Person, property, business or asset so sold or disposed of, a
“Sold Entity or Business”) and any Restricted Subsidiary converted to an
Unrestricted Subsidiary pursuant to Section 5.17 during or after such period, based on the
actual Acquired EBITDA of such Sold Entity or Business or converted Subsidiary for such
period (including the portion thereof occurring prior to such sale, transfer or
disposition);




     (ii) with respect to compliance with any test or covenant hereunder on a Pro Forma
Basis, the following shall be deemed to have occurred as of the first day of the applicable
period of measurement (a) any retirement or repayment of Indebtedness in connection with the
relevant transaction, and (b) any Indebtedness incurred or assumed by the Borrower or any of
its Restricted Subsidiaries in connection with the relevant transaction, and if such
Indebtedness has a floating or formula rate, it shall have an implied rate of interest for
the applicable period for purposes of this definition determined by utilizing the rate which
is or would be in effect with respect to such Indebtedness as at the relevant date of
determination; provided, that, any determination of Total Leverage Ratio or Total Net
Leverage Ratio on a pro forma basis shall be calculated using the amount of Consolidated
Indebtedness or Consolidated Net Indebtedness, as applicable, as of the relevant date of
determination (rather than the last day of the most recent Test Period), giving effect to
clauses (a) and (b) above.



     “Pro Rata Share” means, with respect to each Revolving Credit Lender at any time a
fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of
which is the amount of the Revolving Credit Commitment of such Lender at such time and the
denominator of which is the amount of the Aggregate Commitments at such time; provided that
if the Revolving Credit Commitments have been terminated, then the Pro Rata Share of each Lender
shall be at any time a fraction (expressed as a percentage, carried out to the ninth decimal place)
the numerator of which is the amount of Revolving



35-35-

 












 







Credit Exposure of such Lender at such time and
the denominator of which is the aggregate amount of Revolving Credit Exposure of all Lenders
outstanding at such time.



     “Projected Financial Statements” has the meaning assigned to such term in Section
3.16(b).



     “Property” or “property” means any right, title or interest in or to property
or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible and including any ownership interests of any Person.



     “Qualifying Loans” has the meaning assigned to such term in Section 2.05(d)(iii).



     “Real Property” means all right, title and interest of any Restricted Subsidiary in
and to a parcel of real property owned or leased by any Restricted Subsidiary together with, in
each case, all improvements and appurtenant fixtures, easements and other property and rights
incidental to the ownership, lease or operation thereof.



     “Refinancing” means the entering into of this Agreement, the borrowings hereunder on
the Effective Date and the repayment of all Indebtedness under the Existing Credit Agreements and
the termination of all commitments thereunder.



     “Refinancing Notes” means any debt securities or debt for borrowed money of the
Borrower or any Subsidiary Guarantor, (i) no part of the principal of which is required to be paid
(whether by way of mandatory sinking fund, mandatory redemption, mandatory prepayment or
otherwise), prior to the Term-1 Loan Maturity Date (it being understood that
any required offer to purchase such Indebtedness as a result of a change of control or asset sale
shall not violate the foregoing restriction), (ii) which is either unsecured or secured only by
Liens on Collateral (and if secured by Liens on the Collateral, is either subject to the terms of
the First Lien Intercreditor Agreement as “Additional First Lien Obligations” or subject to the
terms of the Second Lien Intercreditor Agreement as second lien obligations) and (iii) and is
otherwise on market terms as determined in good faith by the Borrower.



     “Register” has the meaning assigned to such term in Section 9.04(d).



     “Regulation D” means Regulation D of the Board of Governors as from time to time in
effect.



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



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



     “Related Parties” means, with respect to any Person, such Person’s Affiliates and such
Person’s and such Person’s Affiliates respective managers, administrators, trustees, partners,
directors, officers, employees, agents, fund managers and advisors.



     “Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating
or migrating of any Hazardous Material in, into, onto or through the Environment.



     “Remedial Action” means (a) “remedial action” as such term is defined in CERCLA, 42
USC Section 9601(24), and (b) all other actions required by any Governmental Authority or
voluntarily undertaken to: (i) clean up, remove, treat, abate or otherwise take corrective action
to address any



36-36-

 












 







Hazardous Material in the Environment; (ii) prevent the Release or threat of
Release, or minimize the further Release of any Hazardous Material so it does not migrate or
endanger or threaten to endanger public health, welfare or the Environment; or (iii) perform
studies and investigations in connection with, or as a precondition to, (i) or (ii) above.



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



     “Repricing Transaction” means the prepayment or refinancing of all or a portion of
the Term-1 Loans with the incurrence by any Loan Party of any long-term bank debt financing
incurred for the primary purpose of repaying, refinancing, substituting or replacing the Term-1
Loans and having an effective interest cost or weighted average yield (as determined by the
Administrative Agent consistent with generally accepted financial practice and, in any event,
excluding any arrangement or commitment fees in connection therewith) that is less than the
interest rate for or weighted average yield (as determined by the Administrative Agent on the same
basis) of the Term-1 Loans, including without limitation, as may be effected through any amendment
to this Agreement relating to the interest rate for, or weighted average yield of, the Term-1
Loans.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Credit Loans or Term Loans, a Borrowing Notice, (b) with respect to an
L/C
Credit Extension, a Letter of Credit Request and (c) with respect to a Swing Line Loan, a
Swing Line Loan Notice.



     “Requirement of Law” means, as to any Person, collectively, any and all requirements
of an arbitrator or a court or other Governmental Authority, including any and all laws, judgments,
orders, decrees, ordinances, rules, regulations or statutes, in each case applicable to or binding
upon such Person or any of its property or assets or to which such Person or any of its property or
assets is subject.



     “Required Revolving Lenders” shall
meanmeans Lenders having more than 50% of the Aggregate
Commitments (or, if the Aggregate Commitments have been terminated, more than 50% of the aggregate
Revolving Credit Exposure of all Revolving Credit Lenders); provided that the Revolving
Credit Commitment of, and the portion of the Revolving Credit Exposure held or deemed held by, any
Defaulting Lender shall be excluded for all purposes of making any determination of Required
Revolving Lenders.



     “Requisite Lenders” means, as of any date of determination, Lenders having more than
50% of the sum of (a) the aggregate Term Commitments (or, following the borrowing of
the Term Loans on the Effective Date, the Term Loans)Loans and
(b) Aggregate Commitments (or, if the Aggregate Commitments have been terminated, more than 50% of
the aggregate Revolving Credit Exposure of all Revolving Credit Lenders); provided that the
Revolving Credit Commitment of, and the portion of the Revolving Credit Exposure held or deemed
held by, any Defaulting Lender shall be excluded for all purposes of making any determination of
Requisite Lenders.



     “Restricted” means, when referring to cash or Cash Equivalents of the Borrower or any
of its Restricted Subsidiaries, that such cash or Cash Equivalents (a) appears (or would be
required to appear) as “restricted” on a consolidated balance sheet of the Borrower or of any such
Restricted Subsidiary (unless such appearance is related solely to Liens permitted by clause (b)
below or (b) are subject to any Lien other than a Lien in favor of the Collateral Agent for the
benefit of the Secured Parties or Liens that are subject to the First Lien Intercreditor Agreement
or the Second Intercreditor Agreement.



37-37-

 












 





     “Restricted Joint Venture” means each Joint Venture formed or otherwise acquired after
the Effective Date, the grant of any Lien on the Equity Interests of which held by any Loan Party
(a) is prohibited by provisions of any contract, agreement, instrument or indenture governing such
Equity Interests, including any Organizational Document of such Joint Venture, (b) is permitted
only with the consent of any other Person (other than a Loan Party), and such consent has not been
obtained after the applicable Loan Party has made commercially reasonable efforts to obtain such
consent, (c) is prohibited by any Requirement of Law or requires a consent not obtained of any
Governmental Authority pursuant to such Requirement of Law after the applicable Loan Party has made
commercially reasonable efforts to obtain such consent, or (d) would trigger (1) an option to
purchase such Equity Interests held by any Loan Party, (2) the termination, dissolution or
liquidation of such Joint Venture or (3) any similar right by a third party, under, any contract,
license, agreement, instrument or other document evidencing or related to such Equity Interests,
including, with limitation, any Organizational Document of such Joint Venture. Notwithstanding any
provision of any Loan Document to the contrary, the Borrower and its Subsidiaries shall not be
required to seek the consent of any Person or Governmental Authority described in this definition
if the Borrower reasonably determines that such consent or seeking such consent could trigger any
event or circumstance described under clause (d) of this definition.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests or Equity Rights in the Borrower
or any Restricted Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or
termination of any Equity Interests or Equity Rights in the Borrower or any Restricted
Subsidiary. Without limiting the foregoing, “Restricted Payments” with respect to any Person shall
also include all payments made or required to be made by such Person with respect to any stock
appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting
aside of any funds for the foregoing purposes.



     “Restricted Subsidiary” means any Subsidiary of the Borrower other than an
Unrestricted Subsidiary.



     “Restricting Information” has the meaning assigned to such term in Section 9.18(a).



     “Revolving Commitment Increase” has the meaning set forth in Section 2.21(a).



     “Revolving Commitment Increase Lender” has the meaning set forth in Section 2.21(d).



     “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type and, in the case of Eurodollar Loans, having the same Interest Period
made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).



     “Revolving Credit Commitment” means, as to each Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b), (b)
purchase participations in L/C Obligations and (c) purchase participations in Swing Line Loans, in
an aggregate principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Credit
Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in accordance with this
Agreement. The aggregate Revolving Credit Commitments of all Revolving Credit Lenders shall be
$300,000,000 on the Effective Date, as such amount may be adjusted from time to time in accordance
with the terms of this Agreement.




38-38-

 














 





     “Revolving Credit Exposure” means, as to each Revolving Credit Lender, the sum of the
outstanding principal amount of such Revolving Credit Lender’s Revolving Credit Loans and its Pro
Rata Share of the L/C Obligations and Swing Line Loans at such time.



     “Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment or Revolving Credit Exposure at such time.



     “Revolving Credit Loans” has the meaning set forth in Section 2.01(b).



     “Revolving Credit Note” means a promissory note of the Borrower payable to any
Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit F-2
hereto, evidencing the aggregate Indebtedness of the Borrower to such Revolving Credit Lender
resulting from the Revolving Credit Loans made by such Revolving Credit Lender.



     “Revolving Loan Maturity Date” means March 17, 2015; provided,
however, that if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.



     “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies,
Inc., and any successor thereto.



     “Sale and Leaseback Transaction” has the meaning assigned to such term in Section
6.06.



     “SEC” means the Securities and Exchange Commission.



     “Second Lien Intercreditor Agreement” means an agreement by and among Collateral Agent
and the collateral agent(s) for the holders of any Permitted Other Debt that is secured by Liens on
the Collateral (the “Junior Liens”), providing for the subordination of such Junior Liens
to the Liens securing the Obligations on terms determined by the Administrative Agent to be
customary for subordination agreements between similar syndicated first lien credit facilities and
junior lien debt securities; provided that the terms of such intercreditor agreement shall
not be less favorable to the Lenders with respect to the specific matters set forth below than the
following: (i) notwithstanding the time, order or method of grant, creation, attachment or
perfection of any Liens securing the Obligations and such Junior Liens, the Liens securing the
Obligations shall rank senior to any Junior Liens on the Collateral, (ii) no holder of any
obligation secured by any Junior Liens shall contest the validity or enforceability of the Liens
securing the Obligations, (iii) until the earlier of (x) payment and discharge in full of all
Obligations under this Agreement and (y) the 180th day after the collateral agent for the holders
of such Permitted Other Debt provides notice to the Collateral Agent that an event of default has
occurred and is continuing under the agreement governing such Permitted Other Debt (which period
shall be extended for any period during which the Collateral Agent has commenced pursuing remedies
against the Collateral or is legally prohibited by applicable Requirements of Law from pursuing
remedies against the Collateral), the Collateral Agent will have the sole power to exercise
remedies against the Collateral (subject to the right of the holders of obligations secured by
Junior Liens to take customary (as determined by the Administrative Agent) protective measures with
respect to the Junior Liens) and to foreclose upon and dispose of the Collateral, (iv) upon any
private or public sale of Collateral taken in connection with the exercise of remedies by the
Collateral Agent which results in the release of the Liens securing the Obligations, the Junior
Liens on such item of Collateral will be automatically released, (v) in connection with any
enforcement action with respect to the Collateral or any insolvency or liquidation proceeding
involving the Borrower or any Guarantor, all proceeds of Collateral will first be applied to the
repayment of all Obligations under this Agreement prior to being applied to the obligations secured
by such Junior Liens, (vi) if any holder of an obligation secured by Junior Liens receives any
proceeds of Collateral in contravention of the foregoing, such proceeds will be turned over to the
Collateral Agent, (vii) no holder



39-39-


 










 




of any obligation secured by Junior Liens may, without the
consent of the Lenders (a) seek relief from the automatic stay with respect to any Collateral, (b)
object to any sale of any Collateral in any insolvency or liquidation proceeding which has been
consented to by the Collateral Agent (provided that the Junior Liens attach to the proceeds
of such sale with the priority set forth in the Second Lien Intercreditor Agreement) or (c) object
to any claim of any Lenders to post-petition interest, fees or expenses on account of the Liens
securing the Obligations and (viii) no holder of obligations secured by Junior Liens shall support
any plan or reorganization in connection with any insolvency or liquidation proceeding that is in
contravention of the Second Lien Intercreditor Agreement without the consent of the Lenders.




     “Secured Parties” means each Agent, each Lender that holds Loans or has Commitments
(in its capacity as such), each counterparty (other than the Borrower or any Restricted Subsidiary)
under any Pari Passu Secured Hedging Agreements (in its capacity as such) or any Treasury Services
Bank (in its capacity as such).



     “Security Agreement” means the Security Agreement, substantially in the form of
Exhibit J, among the Loan Parties party thereto and the Collateral Agent for the benefit of
the Secured Parties.



     “Security Documents” means the Security Agreement, the Non-U.S. Security Agreements,
the Security Trust Deed, the Pledge Agreement, the Non-U.S. Pledge Agreements, the Mortgages and
each other security agreement, pledge agreement or other instrument or document executed and
delivered pursuant to Section 5.11, 5.12, 5.15 or 5.16 to secure any of the Obligations.



     “Security Trust Deed” means the Security Trust Deed, dated as of the date hereof,
among the Administrative Agent, the Collateral Agent, the Borrower and the Persons named therein as
Chargors.



     “Senior Secured Leverage Ratio” means, at any date, the ratio of (a) Consolidated
Senior Secured Indebtedness as of such date to (b) Consolidated EBITDA for the Test Period most
recently ended.



     “SFC” means SFC LLC, a Delaware limited liability company.



     “SFC Limited Liability Company Agreement” means the Limited Liability Company
Agreement of SFC in the form attached as Exhibit O to the Monsanto Settlement Agreement.



     “Small Asset Sale” means any sale or other disposition by the Borrower or any of its
Restricted Subsidiaries, of Property, that, when taken together with the fair market value of any
other Property sold or otherwise disposed of by the Borrower or any of its Restricted Subsidiaries
in any related sales or dispositions, has an aggregate fair market value of not more than
$1,000,000.



     “Specified Asset Sales” means the sale or other disposition of the Property described
on Schedule 1.01(b); provided that (i) no Event of Default has occurred and is
continuing or would immediately result therefrom and (ii) immediately after giving effect to such
sale or other disposition (and any related repayment of the Loans), the Total Net Leverage Ratio
(computed on a Pro Forma Basis as at the date of the last ended Test Period, as if such sale or
other disposition (and any related repayment of the Term Loans) had occurred on the first day of
such Test Period) would be no greater than the Total Net Leverage Ratio as at the date of the last
ended Test Period without giving effect to such transactions and, prior to the consummation
thereof, the Borrower shall deliver to the Administrative Agent a certificate of a Financial
Officer of the Borrower setting forth in reasonable detail the calculations demonstrating
compliance with the foregoing.



     “Specified Businesses” means the businesses described on Schedule 1.01(f).



40-40-


 










 





     “Spot Selling Rate” means, on any date of determination, the spot selling rate
determined in good faith by the Borrower which shall be the spot selling rate posted by Reuters on
its website for the sale of the applicable currency for Dollars at approximately 5:00 p.m., New
York City time, on the prior Business Day; provided that if such rate is not available,
such rate shall be the spot selling rate posted by the Federal Reserve Bank of New York on its
website for the sale of the applicable currency for Dollars at approximately 5:00 p.m., New York
City time, on the prior Business Day.



     “Sterling” or “£” each mean the lawful money of the United Kingdom.



     “Subordinated Debt” means Indebtedness of the Borrower or any Restricted Subsidiary
that is by its terms expressly subordinated in right of payment to the Obligations of the Borrower
or such Restricted Subsidiary, as applicable, but excluding intercompany Indebtedness.



     “Subordinated Debt Documents” means each document governing or pursuant to which is
issued any Subordinated Debt, as the same may be in effect from time to time in accordance with the
terms hereof and thereof.



     “Subsidiary” means, with respect to any Person (“parent”), (i) any
corporation, limited liability company, association or other business entity of which more than 50%
of the outstanding Equity Interests having ordinary voting power to elect a majority of the board
of directors of such corporation, limited liability company, association or other business entity
(irrespective of whether at the time any other class
or classes of Equity Interests of such corporation, limited liability company, association or
other business entity shall or might have voting power upon the occurrence of any contingency) is
at the time directly or indirectly owned by the parent; (ii) any partnership of which more than 50%
of the outstanding partnership interests having the power to act as a general partner of such
partnership (irrespective of whether at the time any partnership interests other than general
partnership interests of such partnership shall or might have voting power upon the occurrence of
any contingency) are at the time directly or indirectly owned by the parent. Unless otherwise
indicated, when used in this Agreement, the term (i) “Subsidiary” shall refer to a Subsidiary of
the Borrower and (ii) at the Borrower’s option, shall not include any Person
that becomes a Non-Wholly Owned Restricted Subsidiary of the Borrower as a result of a tender offer
for the capital stock of such Person until such time as such Person becomes a Wholly Owned
Restricted Subsidiary of the Borrower.



     “Subsidiary Guarantor” means each of the Borrower’s Restricted Subsidiaries that
Guarantees the Obligations pursuant to (a) the Guarantee Agreement or (b) a Non-U.S. Guarantee
Agreement and has not been released from such guarantees. For the avoidance of doubt, “Subsidiary
Guarantor” shall exclude each Excluded Subsidiary (other than Excluded Subsidiaries executing the
Guarantee Agreement on the Effective Date).



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means the Administrative Agent in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section
2.04(b), which, if in writing, shall be substantially in the form of Exhibit B-2.



     “Swing Line Note” means a promissory note of the Borrower payable to the Swing Line
Lender or its registered assigns, in substantially the form of Exhibit F-3 hereto,
evidencing the aggregate



41-41-


 










 




Indebtedness of the Borrower to the Swing Line Lender resulting from the
Swing Line Loans made by the Swing Line Lender.




     “Swing Line Sublimit” means an amount equal to the lesser of (a) $25,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “Taking” means any taking of any Property of the Borrower or any Restricted Subsidiary
or any portion thereof, in or by condemnation or other eminent domain proceedings pursuant to any
law, general or special, or by reason of the temporary requisition or use of any Property of the
Borrower or any Restricted Subsidiary or any portion thereof, by any Governmental Authority.



     “Tax Return” means all returns, statements, filings, attachments and other documents
or certifications required to be filed in respect of Taxes.



     “Taxes” means 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.



     “Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the
same Class and Type and, in the case of Eurodollar Loans, having the same
Interest Period made by each of the Term Lenders pursuant to Section 2.01.



     “Term Commitment” means, as to each Term Lender, its obligation to make
a Term Loan to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount not to
exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption
“Term Commitment” or in the Assignment and Assumption pursuant to which such Term Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement. The initial aggregate amount of the Term Commitments is
$850,000,000.Commitments” means, with respect to each Lender, such
Lender’s Initial Term Commitment, Additional Term-1 Commitment or commitment to make an Incremental
Term Loan.



     “Term Lender” means, at any time, any Lender that has a Term Commitment or a Term Loan
at such time.



     “Term
Loans” means the Initial Term Loans, the Term-1 Loans and the
Incremental Term Loans. 



     “Term-1 Lender” means, at any time, any Lender that has an Additional Term-1
Commitment or a Term-1 Loan at such time.



     “Term-1 Loan” has the meaning assigned to such term in Section
2.01(a)(ii).



     “Term-1
Loan Maturity Date” means March
17,August 1, 2017.



     “Term-1
Note” means a promissory note of the Borrower
payable to any Term-1 Lender or its registered assigns, in substantially the
form of Exhibit F-1 hereto (with modifications consented to by the Administrative
Agent to reflect the terms of the Term-1 Note), evidencing the aggregate Indebtedness of
the Borrower to such Term-1 Lender resulting from the
Term-1 Loans made by such Term-1 Lender.



     “Terminated Lender” has the meaning assigned to such term in Section 2.19.



42-42-


 










 





     “Termination Value” means, on any date in respect of any Hedging Agreement, after
taking into account the effect of any netting agreement relating to such Hedging Agreement, (a) if
such Hedging Agreement has been terminated as of such date, an amount equal to the termination
value determined in accordance with such Hedging Agreement and (b) if such Hedging Agreement has
not been terminated as of such date, an amount equal to the mark-to-market value for such Hedging
Agreement, which mark-to-market value shall be determined by the Administrative Agent in its
commercially reasonable judgment by reference to one or more mid-market or other readily available
quotations provided by any recognized dealer (including any Lender or an Affiliate of any Lender)
of such Hedging Agreements.



     “Test Period” means (i) for the
covenantscovenant contained in Sections
6.12 and 6.13,6.12, the four consecutive complete
Fiscal Quarters then last ended as of the date closest to each date listed under the heading “Date”
therein and (ii) for all other provisions in this Agreement, the four consecutive complete Fiscal
Quarters then last ended as of the time indicated for which financial statements are
available. Except as otherwise set forth herein, compliance with such covenants shall
be tested, as of the end of each Test Period, on the date
on which the financial statements pursuant to Sections 5.01(a) or 5.01(b) have been, or should
have been, delivered for the applicable fiscal period; provided, that for purposes of
testing compliance with any test or covenant based on a “Pro Forma Basis” under any incurrence test
hereunder following the last day of a fiscal year but prior to delivery of audited financial
statements for such fiscal year, the Borrower may use its most recent preliminary unaudited
financial statements for such fiscal year. For the avoidance of doubt, it is expressly understood
and agreed that where the permissibility of a transaction or designation hereunder depends upon
compliance with (i) the covenant contained in Section 6.12 at any date
of determination prior to the completion of the
secondfirst full Fiscal Quarter following the
Effective Date, the term “Test Period” means the period of four consecutive complete Fiscal
Quarters then last ended as of such date of determination, and for purposes of compliance with the
covenant set forth in Section 6.12, the applicable ratio specified in Section 6.12 for such Test
Period shall be the ratio set forth opposite the first date listed under the heading “Date” in
Section 6.12; and (ii) the covenant contained in Section 6.13 at any date of
determination prior to the completion of the first full Fiscal Quarter following the Effective
Date, the term “Test Period” means the period of four consecutive complete Fiscal Quarters then
last ended as of such date of determination, and for purposes of compliance with the covenant set
forth in Section 6.13, the applicable ratio specified in Section 6.13 for such Test Period shall be
the ratio set forth opposite the first date listed under the heading “Date” in Section
6.13.6.12.



     “Title Company” means Chicago Title Insurance Company and its affiliated title
insurance companies or such other title insurance or abstract company as shall be selected by the
Borrower and reasonably approved by the Administrative Agent.



     “Title Policy” has the meaning assigned to such term in Section 5.16(b)(C).



     “Total Assets” means the total assets of the Borrower and its Restricted Subsidiaries
on a consolidated basis as shown, as shown on the most recent balance sheet of the Borrower
delivered pursuant to Section 5.01(a) or (b).



     “Total Leverage Ratio” means, at any date, the ratio of (a) Consolidated Indebtedness
as of such date to (b) Consolidated EBITDA for the Test Period most recently ended.



     “Total Net Leverage Ratio” means, at any date, the ratio of (a) Consolidated Net
Indebtedness as of such date to (b) Consolidated EBITDA for the Test Period most recently ended.



     “Transferred Liability” means, in connection with any sale, transfer or other
disposition of assets by the Borrower or its Restricted Subsidiaries, any liability (i) that would
be recorded on a balance sheet



43-43-


 










 




of the Borrower or its Restricted Subsidiaries in accordance with
GAAP or identified under FAS 5, (ii) that is related to the assets sold, transferred or otherwise
disposed of by the Borrower or its Restricted Subsidiaries, (iii) that is (x) expressly assumed by
the purchaser or transferee of such assets or (y) expunged by the holder of such liability, and
(iv) with respect to which the Borrower and its Restricted Subsidiaries are fully and
unconditionally released upon consummation of such sale, transfer or other disposition.




     “Treasury Services Agreements” means, with respect to the Borrower or any of its
Restricted Subsidiaries, any direct or indirect liability, contingent or otherwise, of such Person
in respect of cash pooling services, cash management services (including treasury, depository,
overdraft (daylight and temporary), credit or debit card, electronic funds transfer and other cash
management arrangements), including obligations for the payment of fees, interest, charges,
expenses, attorneys’ fees and
disbursements in connection therewith to the extent provided for in the documents evidencing
such cash management services.



     “Treasury Services Bank” means a Joint Lead Arranger and Bookrunner, an Affiliate of a
Joint Lead Arranger and Bookrunner, an Agent, an Affiliate of an Agent, or a Lender or a Lender
Affiliate which has been designated in writing to the Borrower as a “Treasury Services Bank.”



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Loan.



     “UCC” means the Uniform Commercial Code as in effect from time to time in any
applicable state or jurisdiction.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     “Unrestricted” means, when referring to cash or Cash Equivalents of the Borrower or
any of its Restricted Subsidiaries, that such cash or Cash Equivalents are not Restricted.



     “Unrestricted Subsidiary” means any Subsidiary of the Borrower designated as an
Unrestricted Subsidiary pursuant to Section 5.17 following the Effective Date.



     “Voting Stock” of a Person means all classes of Equity Interests of such Person then
outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof.



     “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (a) the original aggregate principal amount of such
Indebtedness into (b) the sum of the total of the products obtained by multiplying (i) the amount
of each scheduled installment, sinking fund, serial maturity or other required payment of principal
including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to
the nearest one-twelfth) which will elapse between such date and the making of such payment.



     “Wholly Owned Restricted Subsidiary” means any Restricted Subsidiary that is a Wholly
Owned Subsidiary of the Borrower.



     “Wholly Owned Subsidiary” means, with respect to any Person, any corporation,
partnership or other entity of which all of the Equity Interests (other than directors’ qualifying
shares) are directly or indirectly owned or controlled by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.



44-44-


 










 





     “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of
Subtitle E of Title IV of ERISA.



     “Yield Differential” has the meaning set forth in Section 2.21(b).



     SECTION 1.02. Types of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Type
(e.g., a “Eurodollar Loan”). Borrowings also may be classified and referred to by
Type (e.g., a “Eurodollar Borrowing”).



     SECTION 1.03. Terms Generally; Currency Translation; Accounting Terms; GAAP.



     (a) The definitions of terms herein shall apply equally to both the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.” Unless the context
requires otherwise or otherwise specified in any applicable Loan Document, (a) any definition of or
reference to any Loan Document, agreement, instrument or other document herein shall be construed
as referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and
words of similar import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (e) any reference to any law or regulation herein shall refer to such law or
regulation as amended, modified or supplemented from time to time, (f) 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, securities, accounts and contract
rights and (g) “on,” when used with respect to the Mortgaged Property or any property adjacent to
the Mortgaged Property, means “on, in, under, above or about.” For purposes of this Agreement and
the other Loan Documents (including the issuance, amendment or extension of a Letter of Credit),
where the permissibility of a transaction or determinations of required actions or circumstances
depend upon compliance with, or are determined by reference to, amounts stated in Dollars, such
amounts shall be deemed to refer to Dollars or Dollar Equivalents and any requisite currency
translation shall be based on the Spot Selling Rate in effect on the Business Day immediately
preceding the date of such transaction or determination and the permissibility of actions taken
under Article VI shall not be affected by subsequent fluctuations in exchange rates (provided that
if Indebtedness is incurred to refinance or renew other Indebtedness, and such refinancing or
renewal would cause the applicable Dollar denominated limitation to be exceeded if calculated at
the Spot Selling Rate in effect on the Business Day immediately preceding the date of such
refinancing or renewal, such Dollar denominated restriction shall be deemed not to have been
exceeded so long as (x) such refinancing or renewal Indebtedness is denominated in the same
currency as such Indebtedness being refinanced or renewed and (y) the principal amount of such
refinancing or renewal Indebtedness does not exceed the principal amount of such Indebtedness being
refinanced or renewed except as permitted by the definition of Permitted Refinancing. For purposes
of this Agreement and the other Loan Documents, unless the context otherwise requires, the word
“foreign” shall refer to jurisdictions other than the United States, the States thereof and the
District of Columbia.



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     (b) Except as otherwise specified, if any payment under this Agreement or any other Loan
Document shall be due on any day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and in the case of any payment accruing interest, interest
thereon shall be paid for the period of such extension.



     (c) All terms of an accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; provided, however, that if at any time any change
in GAAP following the Effective Date would affect the computation of any financial ratio or
requirement set forth in this Agreement, and either the Borrower or the Requisite Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to
amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to the approval
of the Required Lenders); provided that, until so amended, (i) such ratio or requirement
shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.



     SECTION 1.04. Resolution of Drafting Ambiguities. The
Borrower acknowledges and agrees, on behalf of itself and the other Loan Parties, that
each of the Loan Parties was represented by counsel in connection with the execution and delivery
of the Loan Documents to which it is a party, that it and its counsel reviewed and participated in
the preparation and negotiation hereof and thereof and that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation hereof or thereof.



     SECTION 1.05. Letter of Credit Amounts. Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the stated amount of such Letter
of Credit after giving effect to all such increases, whether or not such stated amount is in effect
at such time.



ARTICLE II




THE CREDITS



     SECTION 2.01. The Loans.



     (a) The Term Borrowings.




     (i) Each Initial Term Lender severally agrees to make to
the Borrower, in one draw on the Effective Date, a loan
(aan “Initial
Term Loan”) in Dollars in an aggregate principal amount equal to such
Initial Term Lender’s Initial Term Commitment.
Initial Term Loans shall only be Eurodollar Loans, except as provided
in Section 2.11 and Section 2.13. Amounts borrowed under this Section
2.01(a)(i) and repaid or prepaid may not be reborrowed.



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     (ii) (x) The Additional Term-1 Lender agrees to make a term loan to
the Borrower in Dollars (a “Term-1 Loan”) on the Amendment No. 1 Effective Date in an amount
not to exceed the amount of the Additional Term-1 Commitment and (y) each Converted Term
Loan of each Amendment No. 1 Consenting Lender shall be converted into a Term-1 Loan of such
Lender effective as of the Amendment No. 1 Effective Date in a principal amount equal to the
principal amount of such Lender’s Converted Term Loan immediately prior to such conversion.
The Term-1 Loans shall only be Eurodollar Loans, except as set provided in Sections 2.11 and
2.13;


provided that all Term-1 Loans shall on the Amendment No. 1 Effective Date initially be
Eurodollar Loans with an Interest Period and LIBO Rate equal to the remaining Interest Period and
LIBO Rate for the Initial Term Loans immediately prior to the effectiveness of Amendment No. 1 (but
after giving effect to the amendment to clause (y) of the definition of LIBO Rate pursuant to
Amendment No. 1). Amounts borrowed under this Section 2.01(a)(ii) and repaid or prepaid may not be
reborrowed.




     (b) The Revolving Credit Borrowings. Each Revolving Credit Lender severally agrees to
make loans denominated in Dollars to the Borrower pursuant to Section 2.02 (each such loan, a
“Revolving Credit Loan”) from time to time, on any Business Day during the Availability
Period, in an aggregate principal amount not to exceed at any time outstanding the amount of such
Lender’s Revolving Credit Commitment; provided that after giving effect to any Revolving
Credit Borrowing, the Revolving Credit Exposure of any Revolving Credit Lender shall not exceed
such Lender’s Revolving Credit Commitment. Within the limits of each Lender’s Revolving Credit
Commitment, Revolving Credit Loans may be repaid and reborrowed; provided that the
Revolving Credit Loans, if any, shall be repaid in full on the Revolving Loan Maturity Date.
Revolving Credit Loans may be Base Rate Loans or Eurodollar Loans as provided herein.



     SECTION 2.02. Borrowings, Conversions and Continuations of Loans.



     (a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Revolving Credit
Loans from one Type to the other, and each continuation of Eurodollar Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent (each such notice, a “Borrowing
Notice”), which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than (i) 2:00 p.m. three (3) Business Days prior to the requested
date of any Borrowing or continuation of Eurodollar Loans or any conversion of Base Rate Loans to
Eurodollar Loans, and (ii) 11:00 a.m. on the requested date of any Borrowing of a Base Rate Loan.
Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly
by delivery to the Administrative Agent of a Borrowing Notice, appropriately completed and signed
by an Authorized Officer of the Borrower in the form of Exhibit B-1. Each Borrowing of,
conversion to or continuation of Eurodollar Loans shall be in a principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to Base Rate Loans (other than Swing Line Loans as to
which this Section 2.02 shall not apply) shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Borrowing Notice (whether telephonic or written)
shall specify (i) whether the Borrower is requesting a Term Borrowing or a Revolving Credit
Borrowing, a conversion of Revolving Credit Loans from one Type to the other, or a continuation of
Eurodollar Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case
may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be
converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If, in
connection with a Revolving Credit Borrowing, the Borrower fails to specify a Type of Loan in a
Borrowing Notice



47-47-


 










 




or fails to give a timely notice requesting a conversion or continuation then the
applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion
to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurodollar Loans. If, in connection with a Term Borrowing, the Borrower
fails to give a timely notice requesting a continuation of a Term Borrowing, such Term Borrowing
shall be continued for an additional one month Eurodollar Borrowing. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Loans in any such Borrowing Notice, but
fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one
(1) month.




     (b) Following receipt of a Borrowing Notice, the Administrative Agent shall promptly notify
each applicable Lender of the amount of its share of the applicable Borrowing, and if no timely
notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans or continuations
as Eurodollar Loans described in the preceding subsection. Each Lender shall make the amount of
its Loan available to the Administrative Agent in immediately available funds at the Administrative
Agent’s Office not later than (x) 1:00 p.m. on the Business Day specified in the applicable
Borrowing Notice in the case of a Borrowing of Eurodollar Loans or (y) 2:00 p.m. on the Business
Day specified in the applicable Borrowing Notice in the case of a Borrowing of Base Rate Loans.
Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is
the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the Administrative Agent either by
(i) crediting the account of the Borrower on the books of the Administrative Agent with the amount
of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the Borrower;
provided, however, that if, on the date the Borrowing Notice with respect to such
Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and
second, shall be made available to the Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurodollar Loan may be continued or converted only
on the last day of an Interest Period for such Eurodollar Loan unless the Borrower pays the amount
due, if any, under Section 2.16 in connection therewith. During the existence of an Event of
Default, the Administrative Agent or the Requisite Lenders may require that no Loans may be
requested as, converted to or continued as Eurodollar Loans.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Loans upon determination of such
interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Borrower and the Lenders of any change in DBTCA’s prime rate used in determining the
Base Rate promptly following the public announcement of such change.



     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than fifteen
Interest Periods in effect with respect to all Eurodollar Loans.



     (f) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of
such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the
Loan to be made by such other Lender on the date of any Borrowing.



     (g) Not later than 1:00 P.M., New York City time, on the Amendment No. 1
Effective Date, the Additional Term-1 Lender shall make available to the Administrative Agent at
the Administrative 



48-48-


 










 




Agent’s Office an amount in immediately available funds equal to the Term-1 Loan
to be made by such Additional Term-1 Lender pursuant to its Additional Term-1 Loan Commitment. The
Administrative Agent shall credit the account of the Borrower on the books of such office of the
Administrative Agent with the aggregate of the amounts made available to the Administrative Agent
by the Additional Term-1 Lender in immediately available funds.




     SECTION 2.03. Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) On the Effective Date, each Existing L/C will be deemed to be a Letter of Credit
issued under this Agreement on the Effective Date.




     (ii) Subject to the terms and conditions set forth herein, (A) each Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to
time on any Business Day during the period from the Effective Date until the Letter of
Credit Expiration Date, to issue Letters of Credit upon the request of the Borrower for the
account of the Borrower or any Restricted Subsidiary, and to amend or extend Letters of
Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of such Person and any drawings thereunder;
provided that after taking such Letter of Credit into account, (x) the Revolving
Credit Exposure of any Lender shall not exceed such Lender’s Revolving Credit Commitment and
(y) the aggregate outstanding amount of L/C Obligations shall not exceed $125,000,000. Each
request by the Borrower for the issuance, renewal or increase in the stated amount of a
Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit
Extension so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon and reimbursed.




     (iii) No Issuer shall issue any Letter of Credit, if:




     (A) the expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or last extension, unless the Required Revolving Lenders
have approved such expiry date, provided that any Letter of Credit may, at the request of
the Borrower, provide for the renewal thereof for additional periods of up to 12 months; or




     (B) the expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless the Borrower has entered into arrangements with the Issuer at
the time such Letter of Credit is issued satisfactory to the Issuer to eliminate the
Issuer’s credit risk with respect to such Letter of Credit following the Letter of Credit
Expiration Date.




     (iv) No Issuer shall be under any obligation to issue any Letter of Credit if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain such Issuer from issuing such Letter of Credit, or
any Requirement of Law applicable to such Issuer or any request or directive (whether or not
having



49-49-


 










 







the force of law) from any Governmental Authority with jurisdiction over such Issuer
shall prohibit, or request that such Issuer refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such Issuer with
respect to such Letter of Credit any restriction, reserve or capital requirement (for which
such Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or
shall impose upon such Issuer any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which , in each case, such Issuer in good faith deems
material to it;




     (B) the issuance of such Letter of Credit would violate any Requirement of Law or one
or more policies of such Issuer applicable to letters of credit generally;




     (C) such Letter of Credit is to be denominated in a currency other than a Permitted
Currency;




     (D) such Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; or




     (E) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any
Revolving Credit Lender is at such time an Impacted Lender, unless each applicable Issuer
has received (as set forth in clause (a)(viii) below) Cash Collateral or similar security
satisfactory to such Issuer (in its sole discretion) from either the Borrower or such
Impacted Lender or such Impacted Lender’s Pro Rata Share of the L/C Obligations has been
reallocated pursuant to clause (a)(viii) below in respect of such Impacted Lender’s
obligation to fund under Section 2.03(c).




     (v) No Issuer shall amend any Letter of Credit if such Issuer would not be permitted at
such time to issue such Letter of Credit in its amended form under the terms hereof.




     (vi) No Issuer shall be under any obligation to amend any Letter of Credit if (A) such
Issuer would have no obligation at such time to issue such Letter of Credit in its amended
form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.




     (vii) Each Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and such Issuer shall have all
of the benefits and immunities (A) provided to the Administrative Agent in Article VIII with
respect to any acts taken or omissions suffered by such Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term “Administrative Agent” as used in Article VIII
included such Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to such Issuer.




     (viii) In the case where any Revolving Credit Lender is at any time an Impacted Lender,
the Borrower and such Impacted Lender each agree, within one Business Day following notice
by the Administrative Agent, to cause to be deposited with the Administrative Agent for the
benefit of each applicable Issuer, Cash Collateral in the full amount of such Impacted
Lender’s Pro Rata Share of the outstanding L/C Obligations; provided that, at the
Borrower’s option, the Borrower may, by notice to the Administrative Agent, elect to
reallocate all or any part of the Impacted Lender’s Pro Rata Share of the L/C Obligations
among all Revolving Credit Lenders that are not Impacted Lenders but only to the extent (x)
the total Revolving Credit Exposure of all Revolving Credit Lenders that are not Impacted
Lenders plus such Impacted Lender’s Pro Rata Share of the L/C Obligations and any Swing Line
Loans, in each case, except to the extent Cash Collateralized, does not exceed the Aggregate
Commitments (excluding the



50-50-


 










 







Revolving Credit Commitment of any Impacted Lender except to the
extent of any outstanding Revolving Credit Loans of such Impacted Lender) and (y) the
conditions set forth in Section 4.02(b) are satisfied at such time (in which case (i) the
Revolving Credit Commitments of all Impacted Lenders shall be deemed to be zero (except to
the extent Cash Collateral has been posted in respect of any portion of such Impacted
Lender’s L/C Obligations or participations in Swing Line Loans) solely for purposes of any
determination of the Revolving Credit Lenders’ respective Pro Rata Shares of L/C Obligations
(including for purposes of all fee calculations hereunder). The Borrower and/or such
Impacted Lender hereby grant to the Administrative Agent, for the benefit of such Issuer, a
security interest in any Cash Collateral and all proceeds of the foregoing with respect to
such Impacted Lender’s participations in Letters of Credit deposited hereunder. Such Cash
Collateral shall be maintained in blocked deposit accounts at DBTCA and
may be invested in cash equivalents reasonably acceptable to the Administrative Agent
and the Borrower. If at any time the Administrative Agent determines that any funds held as
Cash Collateral under this clause (a)(viii) are subject to any right or claim of any Person
other than the Administrative Agent for the benefit of such Issuer or that the total amount
of such funds is less than such Impacted Lender’s Pro Rata Share of all L/C Obligations that
has not been reallocated as provided above, the Borrower and/or such Impacted Lender will,
promptly upon demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited as Cash Collateral, an amount equal to the excess of (I)
such Impacted Lender’s Pro Rata Share of all L/C Obligations that have not been so
reallocated over (II) the total amount of funds, if any, then held as Cash Collateral in
respect thereof under this clause (a)(viii) that the Administrative Agent determines to be
free and clear of any such right and claim. Upon the drawing of any Letter of Credit for
which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent
permitted under applicable Laws, to reimburse such Issuer. If the Lender that triggers the
Cash Collateral requirement under this clause (a)(viii) ceases to be an Impacted Lender (as
determined by the Administrative Agent and the Borrower in good faith), or if there are no
L/C Obligations outstanding in which the Impacted Lender has any participating interest, any
funds held as Cash Collateral pursuant to the foregoing provisions shall thereafter be
returned to the Borrower or the Impacted Lender, whichever provided the funds for the Cash
Collateral, and the Pro Rata Share of the L/C Obligations of each Revolving Credit Lender
shall thereafter take into account such Revolving Credit Lender’s Revolving Credit
Commitment.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon
submission by the Borrower upon request for an issuance of a Letter of Credit (a “Letter
of Credit Request”), delivered to the applicable Issuer (with a copy to the
Administrative Agent) substantially in the form of Exhibit N hereto (or, with
respect to the issuance or amendment of any Letter of Credit, such other form as such Issuer
may reasonably request), appropriately completed and signed by an Authorized Officer of the
Borrower. Such Letter of Credit Request must be received by the applicable Issuer and the
Administrative Agent not later than 3:00 p.m. at least three Business Days (or such later
date and time as the Administrative Agent and such Issuer may agree in a particular instance
in their sole discretion) prior to the proposed issuance date or date of amendment, as the
case may be. In the case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Request shall specify in form and detail reasonably satisfactory to the
applicable Issuer: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; and (E) such other matters as such Issuer may
reasonably require. In the case of a request for an amendment of any outstanding Letter of
Credit, such



51-51-


 










 







Letter of Credit Request shall specify in form and detail reasonably
satisfactory to such Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the requested amendments; and (D)
such other matters as such Issuer may reasonably require. Additionally, the Borrower shall
furnish to the applicable Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as such Issuer or the Administrative Agent may reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Request, the applicable Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Request from the Borrower and, if not,
such Issuer
will provide the Administrative Agent with a copy thereof. Unless the applicable
Issuer has received written notice from any Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof, such Issuer
shall, on the requested date, issue a Letter of Credit or enter into the applicable
amendment, as the case may be, in each case in accordance with such Issuer’s usual and
customary business practices. Immediately upon the issuance of each Letter of Credit, each
Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from such Issuer a risk participation in such Letter of Credit in an
amount equal to such Lender’s Pro Rata Share of the amount of such Letter of Credit.




     (iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, such
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, such Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than the date of any payment by such Issuer under a
Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse
such Issuer in an amount equal to the amount of such drawing (in the case of a Letter of
Credit denominated in an Alternative Currency, the Borrower shall reimburse the Issuer in
the Dollar Equivalent of such Alternative Currency as determined by the Issuer);
provided that such drawing may be reimbursed the following Business Day if the
Borrower does not receive notice thereof prior to 10:00 a.m. on such Business Day (but for
the avoidance of doubt the amount of such drawing shall bear interest at the rate applicable
to Base Rate Loans that are Revolving Credit Loans if not reimbursed on the Honor Date). If
the Borrower fails to so reimburse such Issuer by such time, upon receipt from such Issuer
of notice of such failure, the Administrative Agent shall promptly notify each Revolving
Credit Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of such Lender’s Pro Rata Share thereof. In
such event, the Borrower shall be deemed to have requested a Borrowing of Revolving Credit
Loans that are Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Commitments and the conditions set forth in Section 4.02(b) (other
than the delivery of a Borrowing Notice). Any notice given by such Issuer or the
Administrative Agent



52-52-


 










 







pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.




     (ii) Each Revolving Credit Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of such Issuer at the
Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each
Revolving Credit Lender that so makes funds available shall be deemed to have made a
Revolving Credit Loan that is a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to such Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Revolving Credit Loans because the conditions set forth in Section 4.02 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have incurred from
such Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each Revolving Credit Lender’s
payment to the Administrative Agent for the account of such Issuer pursuant to Section
2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.03.




     (iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse such Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall
be solely for the account of such Issuer.




     (v) Each Lender’s obligation to make Revolving Credit Loans or L/C Advances to
reimburse such Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against such Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or
(C) any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender’s obligation to make
Revolving Credit Loans pursuant to this Section 2.03(c) (but not L/C Advances) is subject to
the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Borrowing
Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation
of the Borrower to reimburse such Issuer for the amount of any payment made by such Issuer
under any Letter of Credit, together with interest as provided herein.




     (vi) If any Revolving Credit Lender fails to make available to the Administrative Agent
for the account of such Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
such Issuer shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to such
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by such Issuer in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by
such Issuer in connection with the foregoing. If such Lender



53-53-


 










 







pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving
Credit Loan included in the relevant Revolving Credit Borrowing or L/C Advance in respect of
the relevant L/C Borrowing, as the case may be. A certificate of such Issuer submitted to
any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations.




     (i) At any time after the applicable Issuer has made a payment under any Letter of
Credit and has received from any Revolving Credit Lender such Lender’s L/C Advance in
respect of such payment in accordance with Section 2.03(c), if the Administrative Agent
receives for the
account of such Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C Advance was
outstanding) in the same funds as those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of such Issuer
pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances
described in Section 9.22 including pursuant to any settlement entered into by such Issuer
in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for
the account of such Issuer its Pro Rata Share thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount is returned by
such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in
effect. The obligations of the Revolving Credit Lenders under this clause shall survive the
payment in full of the Loan Obligations and the termination of this Agreement.



     (e) Obligations Absolute. The obligation of the Borrower to reimburse each Issuer for
each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement regardless of any circumstances, including any of the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), such Issuer or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by any Issuer under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;
or any payment made by such Issuer under such Letter of Credit to any Person purporting to
be a trustee



54-54-


 










 







in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or




     (v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



     The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will promptly notify the applicable Issuer. The
Borrower shall be conclusively deemed to have waived any such claim against such Issuer and its
correspondents unless such notice is given as aforesaid.



     (f) Role of Issuer. Each Lender and the Borrower agree that, in paying any drawing
under a Letter of Credit, no Issuer shall have any responsibility to obtain any document (other
than any sight draft, certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the authority of the
Person executing or delivering any such document. None of any Issuer, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant or assignee of such
Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders or the Requisite Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or instrument related to any
Letter of Credit or Issuer Document. The Borrower and each Loan Party hereby assume all risks of
the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall not,
preclude the Borrower or a Loan Party, as the case may be, from pursuing such rights and remedies
as it may have against the beneficiary or transferee at law or under any other agreement. None of
any Issuer, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of such Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (iv) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the Borrower or a
Loan Party, as the case may be, may have a claim against such Issuer, and such Issuer may be liable
to the Borrower or a Loan Party, as the case may be, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the Borrower or such Loan
Party, as the case may be, which the Borrower or such Loan Party proves were caused by such
Issuer’s willful misconduct, bad faith or gross negligence as determined in a final and
non-appealable judgment of a court of competent jurisdiction or such Issuer’s willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, such Issuer may accept documents that appear on
their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and such Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason. Each Issuer shall deliver to the
Borrower copies of any documents purporting to assign or transfer a Letter of Credit issued by such
Issuer. The failure of any Issuer to deliver such documents will not relieve the Borrower of its
obligations hereunder or under the other Loan Documents.



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if any Issuer
has honored any full or partial drawing request under any Letter of Credit and such drawing has
resulted in an



55-55-


 










 




L/C Borrowing and the conditions set forth in Section 4.02(b) to a Borrowing of
Revolving Credit Loans cannot then be met, or (ii) if, as of the Letter of Credit Expiration Date,
any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations. Sections 7.02
and 7.03 set forth certain additional requirements to deliver Cash Collateral hereunder. For
purposes of this Section 2.03 and Sections 7.02 and 7.03, “Cash Collateralize” means to
pledge and deposit with or deliver to the Administrative Agent, for the benefit of the applicable
Issuer and the Revolving Credit Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance reasonably satisfactory to the
Administrative Agent and such Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the Issuers and the Revolving Credit
Lenders, a security interest in all such cash, deposit accounts and all balances therein and
all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest
bearing deposit accounts at DBTCA and may be invested in cash equivalents. Subject to the
provisions of Section 2.03(a)(viii) hereof with respect to Cash Collateral in connection with
participations in Letters of Credit held by Impacted Lenders, if at any time during which Cash
Collateral is required to be maintained in respect of L/C Obligations, the Administrative Agent
determines that any funds held as Cash Collateral are subject to any right or claim of any Person
other than the Administrative Agent or that the total amount of such funds is less than the
aggregate outstanding amount of all L/C Obligations, the Borrower will, forthwith promptly upon
demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate outstanding
amount over (y) the total amount of funds, if any, then held as Cash Collateral that the
Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing
of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be
applied, to the extent permitted under applicable Laws, to reimburse such Issuer. To the extent
that the amount of any Cash Collateral exceeds the then outstanding amount of L/C Obligations for
which such Cash Collateral has been posted and so long as no Event of Default has occurred and is
continuing, the excess shall be refunded to the Borrower.




     (h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Pro Rata Share a Letter of Credit
fee (the “Letter of Credit Fee”) for each outstanding Letter of Credit issued pursuant to
this Agreement equal to the Applicable Rate with respect to Revolving Credit Loans that are
Eurodollar Loans times the daily amount then available to be drawn under such Letter of Credit
(whether or not such amount is then in effect under such Letter of Credit if such amount increases
periodically pursuant to the terms of such Letter of Credit) on a quarterly basis in arrears;
provided that (x) if any portion of an Impacted Lender’s Pro Rata Share of any Letter of
Credit is Cash Collateralized by the Borrower or reallocated to the other Revolving Credit Lenders
pursuant to Section 2.03(a)(viii), then the Borrower shall not be required to pay a Letter of
Credit Fee with respect to such portion of such Impacted Lender’s Pro Rata Share so long as it is
Cash Collateralized by the Borrower or reallocated to the other Revolving Credit Lenders (it being
understood a reallocation shall result in an increase in the Pro Rata Shares of the other Revolving
Credit Lenders for purposes of the foregoing sentence) and (y) if any portion of an Impacted
Lender’s Pro Rata Share is not Cash Collateralized or reallocated pursuant to Section 2.03(a)(iv),
then the Letter of Credit Fee with respect to such Impacted Lender’s Pro Rata Share shall be
payable to the applicable Issuer until such Pro Rata Share is Cash Collateralized or such Lender
ceases to be an Impacted Lender. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.05. Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and
(ii) due and payable on the tenth Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand.




56-56-


 












 





     (i) Fronting Fee and Documentary and Processing Charges Payable to Issuers. The
Borrower shall pay directly to the applicable Issuer for its own account a fronting fee with
respect to each Letter of Credit issued at the request of the Borrower equal to the greater of (i)
$500 or (ii) one-quarter of one percent (0.25%) per annum, computed on the daily amount available
to be drawn under such Letter of Credit (whether or not such amount is then in effect under such
Letter of Credit) and on a quarterly basis in arrears, and due and payable on the tenth Business
Day after the end of each March, June, September and December, commencing with the first such date
to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.05. In addition, the Borrower shall pay directly to the applicable Issuer for its own
account the customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of such Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable promptly upon, but
in any event within three Business Days of, demand and are nonrefundable.



     (j) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     (k) Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the applicable
Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of any other Person inures to
the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the
businesses of such Person.



     SECTION 2.04. Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender may, in reliance upon the agreements of the other Revolving Credit Lenders set forth in
this Section 2.04, agree in its sole discretion to make loans (each such loan, a “Swing Line
Loan”) to the Borrower from time to time on any Business Day during the Availability Period in
an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the Revolving Credit
Exposure of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s
Revolving Credit Commitment; provided, however, that after giving effect to any
Swing Line Loan, the aggregate Revolving Credit Exposure of any Revolving Credit Lender shall not
exceed such Lender’s Revolving Credit Commitment, and provided, further, that the
Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this
Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing
Line Loan in an amount equal to such Lender’s Pro Rata Share of such Swing Line Loan.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 2:00 p.m. (or such later time as may be agreed by the Swing Line Lender) on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum
of $100,000,




57-57-





 







 







and (ii) the requested borrowing date, which shall be a Business Day. Each such
telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by an
Authorized Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan
Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00
p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the provisos to the first
sentence of Section 2.04, or (B) that one or more of the applicable conditions specified in Section
4.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender
will, not later than 4:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make
the amount of its Swing Line Loan available to the Borrower at its office by crediting the account
of the Borrower on the books of the Swing Line Lender in immediately available funds.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Revolving Credit Lender make a Revolving Credit Loan that
is a Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of the amount of
Swing Line Loans then outstanding (or, so long as the Revolving Credit Exposure of each
Revolving Credit Lender would not exceed its Revolving Credit Commitment as a result
thereof, such greater amount as is required to repay all outstanding Swing Line Loans).
Such request shall be made in writing (which written request shall be deemed to be a
Borrowing Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and
the conditions set forth in Section 4.02. The Swing Line Lender shall furnish the Borrower
with a copy of the applicable Borrowing Notice promptly after delivering such notice to the
Administrative Agent. Each Revolving Credit Lender shall make an amount equal to its Pro
Rata Share of the amount specified in such Borrowing Notice available to the Administrative
Agent in immediately available funds for the account of the Swing Line Lender at the
Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such
Borrowing Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds
available shall be deemed to have made a Revolving Credit Loan that is a Base Rate Loan to
the Borrower in such amount. The Administrative Agent shall remit the funds so received to
the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the Borrowing Notice submitted by
the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line
Lender that each of the Revolving Credit Lenders fund its risk participation in the relevant
Swing Line Loan and each Revolving Credit Lender’s payment to the Administrative Agent for
the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.




     (iii) If any Revolving Credit Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be paid by such Lender




58-58-




 






 







pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in
Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with
banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in connection with the foregoing.
If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid
shall constitute such Lender’s Revolving Credit Loan included in the relevant Borrowing or
funded participation in the relevant Swing Line Loan, as the case may be. A certificate of
the Swing Line Lender submitted to any Revolving Credit Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.




     (iv) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c)
shall be absolute and unconditional and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever,
(B) the occurrence or continuance of a Default or Event of Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Credit
Loans (but not to fund its risk participation) pursuant to this Section 2.04(c) is subject
to the conditions set forth in Section 4.02. No such funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Revolving Credit Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account
of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata
Share thereof (or greater share of the amount funded) in the same funds as those received by
the Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 9.22 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each Revolving Credit Lender shall
pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender. The obligations of the
Revolving Credit Lenders under this clause shall survive the payment in full of the Loan
Obligations and the termination of this Agreement.



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Revolving
Credit Lender funds its Revolving Credit Loan or risk participation pursuant to this Section 2.04
to refinance such Revolving Credit Lender’s Pro Rata Share of any Swing Line Loan, interest in
respect of such Pro Rata Share of such Swing Line Loan shall be solely for the account of the Swing
Line Lender.



59-59-



 






 





     (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



     SECTION 2.05. Prepayments and Repurchase of Loans.



     (a) Voluntary Prepayments of Loans.




     (i) The Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay Term Loans of any Class or Revolving
Credit Loans in whole or in part without premium or penalty subject to clause
(v) below; provided that (i) such notice must be received by the
Administrative Agent not later than (A) 2:00 p.m. three Business Days prior to any date of
prepayment of Eurodollar Loans and (B) 2:00 p.m. one Business Day prior to the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Loans shall be in a
principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof or, if
less than $1,000,000, the outstanding amount of such Loans; and (iii) any prepayment of Base
Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such prepayment and the
Class and Type(s) of Loans to be prepaid and, if Eurodollar Loans are to be prepaid, the
Interest Period(s) of such Loans. The Administrative Agent will promptly notify each
applicable Lender of its receipt of each such notice and the amount of such Lender’s share
of such prepayment. If such notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein. Any prepayment of a Eurodollar Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional amounts required
pursuant to Section 2.16. Each such prepayment shall be applied to prepay the Loans of the
applicable Class of the Lenders on a pro rata basis in accordance with the respective
amounts of such Class of Loans held by each Lender.




     (ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided that (i) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal
amount of $100,000 or, if less, the entire principal amount of Swing Line Loans then
outstanding. Each such notice shall specify the date and amount of such prepayment. If
such notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein.




     (iii) Notwithstanding anything to the contrary contained in this Agreement (but subject
to Section 2.16), the Borrower may rescind any notice of prepayment under Section 2.05(a)(i)
or 2.05(a)(ii) if such prepayment would have resulted from a refinancing of all outstanding
Loans or from the consummation of a transaction, which refinancing or transactions shall not
be consummated or shall otherwise be delayed.




     (iv) Voluntary prepayments of Term Loans of any Class
shall be applied to the remaining scheduled installments of principal thereof
pursuant to Section 2.05(c) in a manner determined at the discretion of the Borrower and
specified in the notice of prepayment.


 60-60-




 






 






     (v) In the event that, on or prior to the date that is six months
after the Amendment No.1 Effective Date, the Borrower (x) makes any prepayment of Term-1
Loans in connection with any Repricing Transaction, or (y) effects any amendment of this
Agreement resulting in a Repricing Transaction (without any prepayment of Term-1 Loans), the
Borrower shall pay to the Administrative Agent, for the ratable account of each of the
applicable Term-1 Lenders, (I) in the case of clause (x), a prepayment premium of 1% of the
amount of the Term-1 Loans being prepaid and (II) in the case of clause (y), a payment equal
to 1% of the aggregate amount of the applicable Term-1 Loans outstanding immediately prior
to such amendment.



     (b) Mandatory Prepayment of Loans.




     (i) If the Borrower or any of its Restricted Subsidiaries shall incur (x) any
Indebtedness pursuant to Section 6.01(iii) (other than any Permitted Refinancing of
Refinancing Notes) or (y) any other Indebtedness not permitted by Section 6.01 (each, a
“Debt Incurrence”), 100% of the Net Proceeds thereof shall be applied within three
Business Days after receipt thereof toward the prepayment of the Loans as specified in
Section 2.05(b)(v).




     (ii) If the Borrower or any of its Restricted Subsidiaries shall receive Net Proceeds
from any Asset Sale Prepayment Event, 100% of such Net Proceeds shall be applied within five
Business Days after receipt thereof toward the prepayment of the Loans in accordance with
Section 2.05(b)(v) below; provided that the Net Proceeds from Asset Sale Prepayment
Events permitted by Section 6.05 (other than Specified Asset Sales to the extent necessary
to satisfy the condition set forth in clause (ii) of the definition of Specified Asset
Sales) shall not be required to be applied toward the prepayment of the Loans as provided
herein on such date if and to the extent that (1) no Event of Default or Default under
Section 7.01(a) or under Section 7.01(i) then exists or would immediately arise therefrom
and (2) the Borrower delivers an officers’ certificate to the Administrative Agent on or
prior to or within five Business Days after the date of such Asset Sale Prepayment Event
stating that such Net Proceeds shall be reinvested or committed to be reinvested in assets
used or useful in the business of the Borrower or any Restricted Subsidiary or in Permitted
Acquisitions in each case within 365 days following the date of such Asset Sale Prepayment
Event (which certificate shall set forth the estimates of the proceeds to be so expended),
and if all or any portion of such Net Proceeds not so applied as provided herein is not so
used within such 365-day period (or if, prior to such 365th day, the Borrower or any such
Subsidiary shall have entered into a binding agreement to so use any such Net Proceeds,
within 180 days following the end of such 365-day period), such remaining portion shall be
applied toward the prepayment of the Loans on the first Business Day to occur following such
period; provided, further, if the Property subject to such Asset Sale
Prepayment Event constituted Collateral under the Security Documents, then any assets
purchased with the Net Proceeds thereof pursuant to this Section 2.05(b)(ii) shall be
mortgaged or pledged, as the case may be, to the Collateral Agent, for the benefit of the
Secured Parties, in accordance with Section 5.11; provided, further,
notwithstanding the foregoing, no notice or officer’s certificate shall be required to be
delivered in connection with any reinvestment hereunder if the
proceedsNet Proceeds of the Asset
Sale Prepayment Event do not exceed $7.5 million; provided further that,
subject to the second preceding proviso, it is hereby understood that Permitted Acquisitions
funded with Net Proceeds shall constitute a reinvestment hereunder; provided,
further that, the aggregate amount of Net Proceeds of Asset Sales made in reliance on
Section 6.05(vii) that are reinvested pursuant to clause (2) of the first proviso above
shall not exceed the Asset Sale Cap.




     (iii) If the Borrower or any of its Restricted Subsidiaries shall receive Net Proceeds
from insurance or condemnation recoveries in respect of any Destruction or any Net Proceeds
in




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respect of any Taking, 100% of the Net Proceeds thereof shall be applied within three
Business Days after receipt thereof toward the prepayment of the Loans in accordance with
Section 2.05(b)(v) below; provided, that (x) so long as no Event of Default or
Default under Section 7.01(a) or under Section 7.01(i) then exists or would arise therefrom,
such Net Proceeds shall not be required to be so applied to the extent that the Borrower has
delivered an officers’ certificate to the Administrative Agent promptly following the
receipt of such Net Proceeds stating that such proceeds shall be used to (1) repair, replace
or restore any Property in respect of which such Net Proceeds were paid or (2) reinvest in
other Property used or usable in the business of the Borrower or the Restricted
Subsidiaries, in each case within 365 days following the date of the receipt of such Net
Proceeds and (y) if all or in respect of Permitted Acquisitions any portion of such Net
Proceeds not so applied as provided herein is not so used within 365 days (or if, prior to
such 365th day, the Borrower or any such Subsidiary shall have entered into a binding
agreement to so use any such Net Proceeds, within 180 days following the end of such 365-day
period) after the date of the receipt of such Net Proceeds, such remaining portion shall be
applied on the first Business Day to occur following such period toward the prepayment of
the Loans; provided, further, if the Property subject to such Destruction or
Taking constituted Collateral under the Security Documents, then any replacement or
substitution Property purchased with the Net Proceeds thereof pursuant to this Section
2.05(b)(iii) shall be mortgaged or pledged, as the case may be, to the Collateral Agent, for
the benefit of the Secured Parties, in accordance with Section 5.11; provided,
further, notwithstanding the foregoing, no notice or officers’ certificate shall be
required to be delivered in connection with any such reinvestment hereunder if the
proceedsNet Proceeds of the
Destruction, Taking or other such events described in this clause, do not exceed $7.5
million; provided that, subject to the second preceding proviso, it is hereby
understood that any Permitted Acquisitions made with Net Proceeds shall constitute a
reinvestment hereunder.




     (iv) If there shall be Excess Cash Flow for any Excess Cash Flow Period, an amount
equal to (a) the Excess Cash Flow Percentage of such Excess Cash Flow less (b) the
sum of the aggregate amount of (x) voluntary prepayments of the
Term Loans and (y) voluntary prepayments of the Revolving Credit Loans to the extent
accompanied by permanent optional reductions of the Revolving Credit Commitments, in each
case, made pursuant to Section 2.05(a) during such Excess Cash Flow Period, shall be
applied, not later than 10 days after the date upon which the Borrower is required to
deliver its annual audit report pursuant to Section 5.01(b), toward the prepayment of the
Loans in accordance with Section 2.05(b)(v) below.




     (v) All mandatory prepayments made pursuant to this Section 2.05(b) shall be applied:
first, to the remaining scheduled amortization payments of the Term Loans
pursuant to Section 2.06(c)of each
Class, in direct order of maturity to installments payable during the 24
months following the date of prepayment; second, on a pro rata basis, to remaining
scheduled amortization payments of the Term Loans pursuant to Section
2.06(c)or each Class; third, to any
outstanding Swingline Loans; and fourth, to any outstanding Revolving Credit Loans
(but without a reduction of the Revolving Credit Commitments). Any repayment to be applied
to the Loans of a Class pursuant to this Section 2.05(b) shall be applied on a pro rata
basis to the Loans of such Class.




     (vi) The Borrower shall prepay all Initial Term Loans that are
not Converted Term Loans on the Amendment No.1 Effective Date.



     (c) Except as otherwise may be directed by the Borrower, any prepayment of Loans of any Class
pursuant to Section 2.05(a) or (b) shall be applied, first, to, any Base Rate Loans of such Class
then


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outstanding and the balance of such prepayment, if any, to the Eurodollar Loans of such Class
then outstanding in a manner so as to minimize any breakage costs.



     (d) Repurchase of Term Loans.




     (i) Notwithstanding any other provision in this Agreement or any other Loan Document,
so long as no Default or Event of Default shall have occurred and be continuing or would
result therefrom, the Borrower may at any time prepay Term Loans of any
Class (each such prepayment, a “Permitted Loan Purchase”) pursuant to
the procedures described in this Section 2.05(d). In connection with any Permitted Loan
Purchase, the Borrower will provide written notice to the Administrative Agent (each, a
“Permitted Purchase Option Notice”) that the Borrower desires to prepay Term
Loans of a specified Class in an aggregate principal amount
specified by the Borrower (each, a “Permitted Loan Purchase Amount”), which
principal amount shall be not less than $10.0 million in the aggregate, in each case at a
discount as specified below; provided that (I) after giving pro forma effect to such
prepayment, the Unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries
would exceed the outstanding amount of Swingline Loans and Revolving Credit Loans, (II)
after giving effect to each purchase the Borrower is in compliance, on a Pro Forma Basis,
with the covenantscovenant set
forth in Section 6.12 and 6.13 as at the date of the last ended
Test Period, (III) at the time of delivery of the Permitted Purchase Option Notice to the
Administrative Agent, no Default or Event of Default shall have occurred and be continuing
or would result therefrom, (IV) prior to providing a Permitted Purchase Option Notice, the
Borrower shall have discussed the same with each of S&P and Moody’s and, based upon such
discussions, shall reasonably believe that the proposed purchase of Term Loans through such
Permitted Loan Purchase shall not be deemed to be a “distressed exchange,” (V) at the time
of consummation of each Permitted Loan Purchase, neither S&P nor Moody’s shall have
announced or communicated to the Borrower that the proposed purchase of Term Loans through
such Permitted Loan Purchase shall be deemed to be a “distressed exchange,” and (VI) at the
time of each Permitted Loan Purchase, the Borrower shall have delivered to the
Administrative Agent a certificate of an Authorized Officer of the Borrower certifying as to
compliance with the preceding clauses (I) through (V). The Permitted Purchase Option Notice
shall further specify with respect to the proposed Permitted Loan Purchase: (I) the
Permitted Loan Purchase Amount, (II) a discount range selected by the Borrower with respect
to such proposed Permitted Loan Purchase equal to a percentage of par of the principal
amount of the Term Loans of the specified Class (the
“Discount Range”), which shall reflect a discount to par of at least 5%, and (III)
the date by which the Lenders are required to indicate their election to participate in such
proposed Permitted Loan Purchase, which shall be no earlier than three Business Days and no
later than five Business Days following the date of the Permitted Purchase Option Notice
(“Acceptance Date”). The failure of any Lender to indicate its election to
participate in such proposed Permitted Loan Purchase shall be deemed an express election by
such Lender to not participate in such proposed Permitted Loan Purchase.




     (ii) Upon receipt of any Permitted Purchase Option Notice, the Administrative Agent
shall promptly notify each applicable Lender thereof. On or prior to the Acceptance Date,
each Lender may (but shall not be required to) specify by written notice substantially in
the form of Exhibit M hereto (each, a “Lender Participation Notice”) to the
Administrative Agent (I) a discount to par (the “Acceptable Discount”) within the
Discount Range and (II) a principal amount (subject to rounding requirements specified by
the Administrative Agent) of Term Loans of the specified Class
held by such Lender that such Lender is willing to permit to be prepaid
pursuant to a Permitted Loan Purchase (“Offered Loans”). Based on the Acceptable
Discounts and principal amounts of Term Loans of such Class
specified by the Lenders in the applicable




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Lender Participation Notices, the Administrative
Agent, in consultation with the Borrower, will determine the clearing discount (the
“Applicable Discount”) for the Permitted Loan Purchase which will be the lowest
Acceptable Discount within the Discount Range at which the Borrower can prepay the Permitted
Loan Purchase Amount in full (determined by adding the principal amounts of Offered Loans
commencing with the Offered Loans with the highest Acceptable Discount); provided,
however, that if such Permitted Loan Purchase Amount cannot be prepaid in full at
any Acceptable Discount (determined by adding the principal amounts of Offered Loans
commencing with the Offered Loans with the highest Acceptable Discount), the Applicable
Discount shall be the highest Acceptable Discount specified by the Lenders that is within
the Discount Range specified by the Borrower. The Applicable Discount shall be applicable
for all Lenders who have offered to participate in the Permitted Loan Purchase and have
Qualifying Loans (as defined below).




     (iii) The Borrower shall make a Permitted Loan Purchase by prepaying those Term Loans
(or the respective portions thereof) of the applicable Class
offered by the Lenders that specify an Acceptable Discount that is equal to or higher than
the Applicable Discount (“Qualifying Loans”) at the Applicable Discount;
provided that (I) if the aggregate proceeds required to prepay Qualifying Loans
(disregarding any interest payable in connection with such Qualifying Loans) would exceed
the Permitted Loan Purchase Amount for such Permitted Loan Purchase, the Borrower shall
prepay such Qualifying Loans at the Applicable Discount ratably based on the respective
principal amounts of such Qualifying Loans (subject to rounding requirements specified by
the Administrative Agent) and (II) in the event that the Qualifying Loans are less than the
Permitted Loan Purchase Amount, the Borrower shall only be permitted to make a Permitted
Loan Purchase to the extent the principal amount of such Qualifying Loans equals or exceeds
$10.0 million in the aggregate. Each Permitted Loan Purchase shall be made within five
Business Days of the date of determination of the Applicable Discount, without premium or
penalty, upon irrevocable notice (each a “Permitted Loan Purchase Notice”),
delivered to the Administrative Agent no later than 2:00 p.m., New York City time, three
Business Days prior to the date of such Permitted Loan Purchase, which notice shall specify
the date and amount of the Permitted Loan Purchase and the Applicable Discount. Upon
receipt of any Permitted Loan Purchase Notice the Administrative Agent shall promptly notify
each relevant Lender thereof. If any Permitted Loan Purchase Notice is given, the Borrower
shall be obligated to prepay the Qualifying Loans subject thereto for the amount specified
in such notice from the applicable Lenders on the date specified therein, together with
accrued interest (on the par principal amount) to but not including such date on the amount
prepaid.




     (iv) To the extent not expressly provided for herein, each Permitted Loan Purchase
shall be consummated pursuant to the procedures established by the Administrative Agent
acting in its sole reasonable discretion.




     (v) Prior to the delivery of a Permitted Loan Purchase Notice, upon written notice to
the Administrative Agent, (I) the Borrower may withdraw its offer to make a Permitted Loan
Purchase pursuant to any Permitted Purchase Option Notice and (II) any Lender may withdraw
its offer to participate in a Permitted Loan Purchase pursuant to any Lender Participation
Notice.




     (vi) Any Term Loans prepaid pursuant to a Permitted Loan Purchase shall be cancelled
and shall for all purposes of this Agreement and the other Loan Documents no longer be
outstanding.



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     SECTION 2.06. Repayment of Loans; Evidence of Debt.



     (a) The Borrower shall repay to the Revolving Credit Lenders on the Revolving Loan Maturity
Date the aggregate principal amount of Revolving Credit Loans outstanding on such date.



     (b) The Borrower shall repay each Swing Line Loan on the Revolving Loan Maturity Date.



     (c) Subject to reduction as provided in Section 2.05, the Borrower shall repay to the
Term-1 Lenders on each March 31, June 30, September 30 and December 31
of each year (beginning on June 30, 2010March 31,
2011) (each such date, an “Installment Payment Date”), an amount equal to
the original principal amount of the Term-1 Loans borrowed hereunder
on the Amendment No. 1 Effective Date multiplied by 0.25% with the
remainder due and payable on the Term-1 Loan Maturity Date. Each such
repayment shall be applied on a pro rata basis to the Term-1 Loans of
each Term-1 Lender.



     (d) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business in accordance with its usual practice. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the
Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the Loan Obligations.
In the event of any conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver
to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans
in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect
thereto.



     (e) In addition to the accounts and records referred to in Section 2.06(d), each Revolving
Credit Lender and the Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swing Line Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error.



     SECTION 2.07. Interest Rates and Payment Dates; Default Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Loan of any Class
shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate
per annum equal to the LIBO Rate for such Interest Period plus the Applicable Rate with
respect to Eurodollar Loans of such Class; (ii) each Base Rate Loan of any Class (other than Swing
Line Loans) shall bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate with
respect to Base Rate Loans of such Class; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal
to the Base Rate plus the Applicable Rate with respect to Base Rate Loans that are
Revolving Credit Loans.




 65-65-




 






 





     (b) If any amount of principal of any Loan or any other amount due hereunder is not paid when
due (after giving effect to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws.



     (c) Accrued and unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.



     (d) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     SECTION 2.08. Computation of Interest and Fees.
All computations of interest for Base
Rate Loans when the Base Rate is determined by DBTCA’s “prime rate” shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of
fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall
not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it is made shall,
subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.



     SECTION 2.09. Fees.
In addition to certain fees described in Sections 2.03(h) and
(i):



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender, a commitment fee equal to 0.75% per annum times
the actual average daily amount by which the Revolving Credit Commitment of such Lender exceeds the
Outstanding Amount of such Lender’s Revolving Credit Loans and such Lender’s Pro Rata Share of the
Outstanding Amount of L/C Obligations (but excluding, for the avoidance of doubt, the Swing Line
Loans) (the “Commitment Fee”); provided,
however, that no Commitment Fee shall accrue with respect to
the Revolving Credit Commitment of a Defaulting Lender during any period that it is a Defaulting
Lender until such time as such failure has been cured (as determined by the Administrative Agent
and the Borrower). The Commitment Fees shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article IV are not met, and
shall be due and payable quarterly in arrears on each March 31, June 30, September 30 and December
31, commencing with the first such date to occur after the Effective Date, and on the last day of
the Availability Period. The Commitment Fees shall be calculated quarterly in arrears.



     (b) Other Fees.




     (i) The Borrower shall pay to the Administrative Agent for its own account fees in the
amounts and at the times otherwise agreed in writing between the Administrative Agent and
the Borrower. Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.




 66-66-



 






 






     (ii) The Borrower shall pay to the Arrangers such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.



     (c) Closing Fees. The Borrower agrees to pay on the Effective Date to each Lender
party to this Agreement on the Effective Date, as fee compensation for the funding of such Lender’s
Term Loan and making of such Lender’s Revolving Credit Commitment, a closing fee (the “Closing
Fee”) in an amount equal to (x) 2.25% of the stated principal amount of such Lender’s Revolving
Credit Commitment on the Effective Date and (y) 0.50% of the stated principal amount of such
Lender’s Term Loan made on the Effective Date. Such Closing Fee will be in all respects fully
earned, due and payable on the Effective Date and non-refundable and non-creditable thereafter.



     SECTION 2.10. Termination or Reduction of Commitments.
The Borrower may, upon notice
to the Administrative Agent, terminate the Revolving Credit Commitments, or from time to time
permanently reduce the Revolving Credit Commitments; provided that (i) any such notice
shall be received by the Administrative Agent not later than 2:00 p.m. three Business Days prior to
the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, and (iii) the Borrower
shall not terminate or reduce the Revolving Credit Commitments if, after giving effect thereto and
to any concurrent prepayments hereunder, the aggregate Revolving Credit Exposure would exceed the
Aggregate Commitments. The Administrative Agent will promptly notify the Revolving Credit Lenders
of any such notice of termination or reduction of the Revolving Credit Commitments. Any reduction
of the Aggregate Commitments shall be applied to the Revolving Credit Commitment of each Revolving
Credit Lender according to its Pro Rata Share. All fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of such termination.
Notwithstanding anything herein to the contrary, the Borrower may rescind any notice of termination
of Revolving Credit Commitments under this Section 2.10 not later than 1:00 p.m. on the Business
Day before such termination was scheduled to take place if such termination would have resulted
from a refinancing of the Aggregate Commitments, which refinancing shall not be consummated or
shall otherwise be delayed. Unless previously terminated, the Initial
Term Commitments shall terminate at 5:00 p.m., New York City time, on the Effective Date. The
Borrower may, upon notice to the Administrative Agent, terminate or permanently reduce the
Revolving Credit Commitments of any Impacted Lender in whole or in part, if no Revolving Loans are
then outstanding to the extent the aggregate remaining Revolving Credit Commitments would be at
least equal to the aggregate Revolving Credit Exposure.



     SECTION 2.11. Inability to Determine Interest Rate; Unavailability of Deposits; Inadequacy
of Interest Rate. If prior to 11:00 a.m., London time, two Business Days before the first day
of any Interest Period, including an initial Interest Period, for a requested Eurodollar Borrowing:




     (i) the Administrative Agent shall have determined in good faith (which determination
shall be conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market generally, adequate and reasonable means do not exist for
ascertaining the LIBO Rate for such Eurodollar Borrowing for such Interest Period, or




     (ii) the Administrative Agent shall have received notice from the Requisite Lenders
that the LIBO Rate determined or to be determined for such Interest Period for such
Eurodollar




 67-67-



 






 







Borrowing will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their affected Loans during such Interest Period,


then the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and
the Lenders by 12:00 noon, New York City time, on the same day. The Administrative Agent shall
give telecopy or telephonic notice to the Borrower and the Lenders promptly after the circumstances
giving rise to such notice no longer exist, and until such notice has been given, any affected
Eurodollar Loans shall not be (x) converted or continued pursuant to Section 2.02 or (y) made
pursuant to a Borrowing Notice, and shall be continued or made as Base Rate Loans, as the case may
be.




     SECTION 2.12. Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars (which, in the case of any reimbursement of a drawing under a Letter of
Credit made in an Alternative Currency, shall be the Dollar Equivalent of the Alternative Currency
in which the such Letter of Credit is denominated) and in immediately available funds not later
than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to
each Lender its share of such payment in like funds as received by wire transfer to such Lender’s
lending office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed
received on the next succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment to be made by the Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be; except that this sentence shall not
apply to payments required to be made on the Maturity Date.



     (b) Subject to Section 2.11, 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 Borrower a
corresponding amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender and the Administrative Agent has made available such amount to
the Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from
such Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent’s demand therefor the Administrative Agent shall promptly notify the Borrower
and the Borrower shall pay such corresponding amount to the Administrative Agent within one
Business Day of demand therefor. The Administrative Agent shall also be entitled to recover from
such Lender or the Borrower interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative Agent to the Borrower to
the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum
equal to (i) if paid by such Lender, the Overnight Rate or (ii) if paid by the Borrower, the
then-applicable rate of interest, calculated in accordance with Section 2.07, for the respective
Loans.



     (c) Funding by Lenders; Presumption by Administrative Agent.



 68-68-




 






 






     (i) Unless the Administrative Agent shall have received notice from a Lender prior to
the proposed date of any Borrowing of Eurodollar Loans (or, in the case of any Borrowing of
Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will
not make available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date
in accordance with Section 2.01 and Section 2.02, and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith promptly upon, but in any event within one Business Day of, demand such
corresponding amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by
such Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation,
plus any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B) in the case of a payment to
be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower
and such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount
of such interest paid by the Borrower for such period. If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute
such Lender’s Loan included in such Borrowing and the Administrative Agent shall make such
amount available to the Borrower under this Section 2.12(c)(i). Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.




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



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (c) shall be conclusive, absent manifest error.



     (d) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in Article
IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall
return such funds promptly (in like funds as received from such Lender) to such Lender, without
interest.



69-69-






 






 





     (e) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 9.05(c) are several and not joint. The failure of any Lender to make any Loan,
to fund any such participation or to make any payment under Section 9.05(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to
purchase its participation or to make its payment under Section 9.05(c).



     (f) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



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



     SECTION 2.13. Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any
Requirement of Law, or in the interpretation or application thereof, shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the commitment
of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and convert
Base Rate Loans to Eurodollar Loans shall forthwith be suspended until such time as the making or
maintaining of Eurodollar Loans shall no longer be unlawful, and (b) such Lender’s Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such Loans or within such
earlier period as required by law.



     SECTION 2.14. Increased Costs; Reserves on Eurodollar Loans.



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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
contemplated by Section 2.14(e)) or any Issuer;




     (ii) subject any Lender or any Issuer to any Tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit or any
Eurodollar Loan made by it, or change the basis of taxation of payments to such Lender or
such Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 2.15 (for the
avoidance of doubt, no duplication of the Borrower’s obligation under Section 2.15 with
respect to Indemnified Taxes or Other Taxes is intended under this clause (ii)) and the
imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or
Issuer); or



70-70-

 









 






     (iii) impose on any Lender or such Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender
or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan), or to
increase the cost to such Lender or such Issuer of participating in, issuing or maintaining any
Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or such Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
Issuer, the Borrower will pay to such Lender or Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or Issuer, as the case may be, for such additional costs
incurred or reduction suffered.




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



     (c) Certificates for Reimbursement. A certificate of a Lender or a Issuer setting forth the amount or amounts necessary to
compensate such Lender or such Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent
manifest error. The Borrower shall pay such Lender or Issuer, as the case may be, the amount shown
as due on any such certificate within ten (10) days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender or any Issuer to demand compensation pursuant to
the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or Issuer’s
right to demand such compensation, provided that the Borrower shall not be required to
compensate a Lender or a Issuer pursuant to the foregoing provisions of this Section for any
increased costs incurred or reductions suffered more than nine months prior to the date that such
Lender or Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s or Issuer’s intention to claim compensation
therefor (except that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the nine-month period referred to above shall be extended to include the period
of retroactive effect thereof).



71-71-

 









 





     (e) Reserves on Eurodollar Loans. The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or
deposits (currently known as “eurocurrency liabilities”), additional interest on the unpaid
principal amount of each Eurodollar Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is payable on such Loan,
provided the Borrower shall have received at least ten (10) days’ prior notice (with a copy
to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to
give notice ten (10) days prior to the relevant Interest Payment Date, such additional interest
shall be due and payable ten (10) days from receipt of such notice.



     SECTION 2.15. Taxes.



     (a) Unless required by applicable law (as determined in good faith by the applicable
withholding agent), any and all payments by any Loan Party under any Loan Document shall be made
free and clear of and without deduction for any and all present or future Taxes (including
reasonable expenses) arising therefrom or with respect thereto, but excluding (i) taxes imposed on
or measured by the recipient’s net income or net profits (including branch profits or similar taxes
imposed in lieu of net income taxes), and franchise taxes imposed in lieu of net income taxes, by a
jurisdiction (or political subdivision thereof) under the laws of which such Lender or Agent (as
the case may be) is organized or, in the case of a Lender, has its applicable lending office, (ii)
any U.S. federal withholding taxes imposed on amounts payable to a Lender under the Loan Documents
under laws (including any statute, treaty or regulation) in effect on the date hereof (or, in the
case of an assignee, the date of the relevant Assignment and Assumption, but not excluding U.S.
federal withholding taxes to the extent that its assignor was entitled at the date of the
Assignment and Assumption to receive additional amounts from the Borrower with respect to such U.S.
federal withholding taxes), but not excluding any U.S. federal withholding taxes payable as a
result of any change in such laws occurring after the date such Lender becomes a party hereto (or
the date of such Assignment and Assumption), and (iii) any withholding tax that is attributable to
a Lender’s failure to comply with Section 2.15(e) (such non-excluded items being called
“Indemnified Taxes”). In the event that any withholding or deduction from or in respect of
any payment under any Loan Document is required in respect of any Indemnified Taxes or Other Taxes
pursuant to any applicable law then (i) the applicable withholding agent shall make such required
withholding or deduction and pay directly to the relevant authority the full amount required to be
so withheld or deducted in accordance with applicable law, (ii) the applicable withholding agent,
if it is not the Administrative Agent, shall promptly forward to the Administrative Agent at its
address referred to in Section 9.01 documentation reasonably satisfactory to the Administrative
Agent evidencing such payment to such authority and (iii) the relevant Loan Party shall pay to the
Administrative Agent for the account of the Lenders and the Agents such additional amount or
amounts as are necessary to ensure that the net amount actually received by each Lender or Agent
(as the case may be), after making all required withholdings and deductions (including withholdings
and deductions applicable to additional sums payable under this Section 2.15), will equal the full
amount such Lender or Agent (as the case may be) would have received had no such withholding or
deduction been required.



     (b) In addition, the Borrower will, and will cause each relevant Loan Party to, pay any
present or future stamp or documentary taxes or any other excise, property, intangible, mortgage,
recording or similar Taxes, charges or similar levies of any jurisdiction, and all liabilities
(including for reasonable expenses) arising therefrom or with respect thereto, in each case arising
from any payment
made under any Loan Document or from the execution, delivery or registration of, or otherwise
with respect to, any Loan Document (collectively, “Other Taxes”).



72-72-

 









 





     (c) Without duplication of amounts paid by the Borrower under Section 2.15(a) and Section
2.15(b), the Borrower will, and will cause each other Loan Party to, jointly and severally,
indemnify each Lender and each Agent for the full amount of Indemnified Taxes and Other Taxes
(including any Indemnified Taxes and Other Taxes imposed by any jurisdiction on amounts payable
under this Section 2.15) paid by such Lender or Agent (as the case may be) and any liability
(including for reasonable and documented expenses) arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 20 days after the date such Lender or Agent (as the case may
be) makes written demand therefor. Such written demand shall set forth the amount of such
indemnification, and shall be presumed to be correct in the absence of manifest error. The
Borrower or other relevant Loan Party shall not be obligated to make a payment to any Lender or
Agent pursuant to this Section 2.15 in respect of any penalties, interest and other liabilities
attributable to any Indemnified Taxes and Other Taxes if such penalties, interest and other
liabilities are attributable to the gross negligence or willful misconduct of such Lender or Agent.
After a Lender or an Agent receives notice of the imposition of the Indemnified Taxes or Other
Taxes that are subject to this Section, such Lender or Agent will act in good faith to promptly
notify the Borrower (or other relevant Loan Party) of its obligations thereunder; provided,
that the failure to provide such notice shall not relieve the Borrower (or other relevant Loan
Party) of such party’s obligation to indemnify such Lender or Agent pursuant to this Section 2.15.
For purposes of this Section 2.15, a distribution hereunder by the Administrative Agent to or for
the account of any Lender or Agent shall be deemed a payment by the Borrower or such other relevant
Loan Party.



     As soon as practical after the date of any payment of Indemnified Taxes or Other Taxes by any
Loan Party pursuant to this Section 2.15, the Borrower will, or will cause the relevant Loan Party
to, furnish to the Administrative Agent, at its address referred to in Section 9.01, evidence of
such payment reasonably satisfactory to the Administrative Agent. If the Borrower or other
relevant Loan Party fails to remit to the Administrative Agent, for the account of the respective
Lenders and Agents, such documentary evidence, the Borrower shall indemnify the Lenders and Agents
for any incremental Taxes or other costs (including reasonable attorneys’ fees and expenses) that
may become payable by any Lender or Agent as a result of any such failure.



     (d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower, each Agent and each Lender contained in this Section
2.15 shall survive the payment in full of the Obligations and the termination of this Agreement.



     (e) Each Lender shall (x) prior to the date hereof in the case of each Lender that is a
signatory hereto (or the date of Assignment and Assumption in the case of a Person that becomes a
Lender after the date hereof) and (y) at such times as are reasonably requested by the Borrower or
the Administrative Agent, provide the Borrower and the Administrative Agent with any documentation
prescribed by law, or reasonably requested by the Borrower or the Administrative Agent, certifying
as to any entitlement of such Lender to an exemption from, or reduction in, withholding tax with
respect to any payments to be made to such Lender under the Loan Documents. Each such Lender
shall, whenever a lapse in time or change in circumstances renders such documentation obsolete or
inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent
updated or other appropriate documentation (including any new documentation reasonably requested by
the applicable withholding agent) or promptly notify the Borrower and the Administrative Agent of
its inability to do so. Unless the applicable withholding agent has received forms or other
documents satisfactory to it indicating that payments under any Loan Document to or for a Lender
are not subject to withholding tax
or are subject to such tax at a rate reduced by an applicable tax treaty, the Borrower,
Administrative Agent or other applicable withholding agent shall withhold amounts required to be
withheld by applicable law from such payments at the applicable statutory rate.



73-73-

 









 





     Without limiting the generality of the foregoing:




     (i) Each Lender that is a Domestic Lender shall deliver to the Borrower and the
Administrative Agent on or before the date on which it becomes a party to this Agreement two
properly completed and duly signed original copies of Internal Revenue Service Form W-9 (or
any successor form) certifying that such Lender is exempt from U.S. federal backup
withholding.




     (ii) Each Non-U.S. Lender shall deliver to the Borrower and the Administrative Agent on
or before the date on which it becomes a party to this Agreement (and from time to time
thereafter when required by law or upon the reasonable request of the Borrower or the
Administrative Agent) whichever of the following is applicable:




     (A) two duly completed and executed original copies of Internal Revenue Service Form
W-8BEN (or any successor forms) claiming eligibility for benefits of an income tax treaty to
which the United States of America is a party;




     (B) two duly completed and executed original copies of Internal Revenue Service Form
W-8ECI (or any successor forms);




     (C) in the case of a Lender claiming the benefits of the exemption for portfolio
interest under Section 881(c) of the Code, (x) a certificate, in substantially the form of
Exhibit K--1, or any other
form approved by the Administrative Agent and the Borrower, to the effect that such Lender
is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10
percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code,
or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and
that no payments in connection with the Loan Documents are effectively connected with such
Lender’s conduct of a U.S. trade or business and (y) two duly completed and executed
original copies of Internal Revenue Service Form W-8BEN (or any successor form);




     (D) to the extent a Lender is not the beneficial owner (for example, where the Lender
is a partnership, or is a Participant holding a participation granted by a participating
Lender), Internal Revenue Service Form W-8IMY (or any successor forms) of the Lender,
accompanied by a Form W-8ECI, W-8BEN, certificate in substantially the form of Exhibit
N-2, N-3 or N-4 (as applicable), Form W-9, Form W-8IMY (or other
successor forms) or any other required information from each beneficial owner, as applicable
(provided that, if the Lender is a partnership (and not a participating Lender) and one or
more beneficial owners are claiming the portfolio interest exemption, a certificate in
substantially the form of Exhibit N-2 shall be provided by such Lender on behalf of
such beneficial owner(s)); or




     (E) any other form prescribed by applicable requirements of U.S. federal income tax law
as a basis for claiming exemption from or a reduction in U.S. federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by applicable
requirements of law to permit the Borrower and the Administrative Agent to determine the
withholding or deduction required to be made.



     Each Lender shall, from time to time after the initial delivery by such Lender of the forms
described above, whenever a lapse in time or change in such Lender’s circumstances renders such
forms, certificates or other evidence so delivered obsolete or inaccurate, promptly (1) deliver to
the Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) renewals, amendments or additional or successor forms, properly completed and duly
executed by such Lender, together with any other certificate or statement of exemption required in
order to confirm or establish



74-74-

 









 







such Lender’s status or that such Lender is entitled to an exemption
from or reduction in U.S. federal withholding tax or (2) notify Administrative Agent and the
Borrower of its inability to deliver any such forms, certificates or other evidence.



     Notwithstanding any other provision of this clause (e), a Lender shall not be required to
deliver any form that such Lender is not legally eligible to deliver.



     Each Agent will, from time to time, provide any forms or documentation reasonably requested by
the Borrower to determine whether any amounts payable to such Agent in its own capacity are subject
to any Tax withholding (and, if so, at what rate); provided that no Agent shall be required to
provide any forms or documentation that such Agent is not legally eligible to provide.



     (f) If the Administrative Agent or a Lender determines, in its good faith discretion, that it
has received a refund in respect of any Indemnified Taxes or Other Taxes with respect to which the
Borrower has paid additional amount pursuant to this Section 2.15, it shall pay over such refund
within 30 days of its receipt thereof to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower or other relevant Loan Party under this Section
2.15 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses
(including Taxes) of such Lender or Administrative Agent and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund);
provided, that the Borrower, upon the request of such Lender or Administrative Agent,
agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the
event the Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This Section 2.15 shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to its taxes which it
deems confidential) to the Borrower or any other Person.



     (g) For purposes of this Section 2.15, “Lender” shall include any Issuer.



     SECTION 2.16. Compensation for Lender Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the
Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss,
cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Eurodollar Loan on a day other
than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Eurodollar Loan on the date or in the amount
notified by the Borrower; or



     (c) any assignment of a Eurodollar Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 2.18;



excluding any loss of anticipated profits and including any actual loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to
terminate the deposits from which such funds were obtained.



75-75-

 









 





     For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
2.16, each Lender shall be deemed to have funded each Eurodollar Loan made by it at the Eurodollar
Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such Eurodollar Loan was
in fact so funded and provided that amounts payable under this Section 2.16 shall be calculated
without regard to clause (y) of the definition of “LIBO Rate”.



     SECTION 2.17. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of
Sections 2.13, 2.14 and 2.15 with respect to such Lender, it will, if requested by the Borrower,
use commercially 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 respective lending offices to suffer no
material economic, legal or regulatory disadvantage; and provided, further, that
nothing in this Section 2.17 shall affect or postpone any of the obligations of the Borrower or the
rights of any Lender pursuant to Sections 2.13, 2.14 and 2.15.



     SECTION 2.18. Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided herein, then the
Lender receiving such greater proportion shall, unless the Lenders entitled to such payment have
waived in writing this Section 2.18 in respect of such payment, (a) notify the Administrative Agent
of such fact, and (b) purchase (for cash at face value) participations in the Loans and
subparticipations in L/C Obligations of the other Lenders, or make such other adjustments as shall
be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:



     (a) if any such participations or subparticipations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations or subparticipations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest; and



     (b) the provisions of this Section shall not be construed to apply to (i) any payment made by
the Borrower pursuant to and in accordance with the express terms of this Agreement (after giving
effect to any amendment hereto consented to by the Requisite Lenders so long as such amendment does
not provide for a distribution of proceeds from the exercise of remedies (including any such
set-off or counterclaim) following an Event of Default that is inconsistent with Section 7.04),
including without limitation Section 2.05(d) or (ii) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
subparticipations in L/C Obligations to any assignee or participant (including, if consented to by
the Requisite Lenders, any assignment to the Borrower or its Affiliates).


Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against such Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of
such participation.




76-76-

 









 








     SECTION 2.19. Replacement of Lenders Under Certain Circumstances. In the event that (a) any Lender shall have delivered a notice or certificate pursuant to
Sections 2.14 or 2.18, or the Borrower shall be required to make additional payments to any Lender
under Section 2.15 (each, an “Increased Cost Lender”) or (b) subject to the terms and
conditions of Section 9.08(f), in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions hereof described in Section
9.08(f) with respect to which the consent of the Requisite Lenders is obtained but the required
consent of such Lender is not obtained (such Lender, a “Non-Consenting Lender”); then, with
respect to each such Increased Cost Lender and each such Non-Consenting Lender (each, a
“Terminated Lender”), the Borrower shall have the right, but not the obligation, at its own
expense, upon notice to such Terminated Lender and the Administrative Agent, to replace such
Terminated Lender with an assignee (in accordance with and subject to the restrictions contained in
Section 9.04) approved by the Administrative Agent (which approval shall not be unreasonably
withheld), and such Terminated Lenders hereby agree to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.04) all its interests,
rights and obligations under this Agreement to such assignee; provided, however,
that no Terminated Lender shall be obligated to make any such assignment unless (i) such assignment
shall not conflict with any law or any rule, regulation or order of any Governmental Authority and
(ii) such assignee or the Borrower shall pay to each affected Terminated Lender in immediately
available funds on the date of such assignment the principal of and interest and fees accrued to
the date of payment on the Revolving Credit Commitment, Loans and participations in Letters of
Credit made by such Terminated Lender and all other amounts accrued for such Terminated Lender’s
account or owed to it hereunder. Each Lender agrees that, if it becomes a Terminated Lender, it
shall execute and deliver to the Administrative Agent an Assignment and Assumption to evidence such
sale and purchase and shall deliver to the Administrative Agent any Note (if the assigning Lender’s
Loans are evidenced by Notes) subject to such Assignment and Assumption; provided,
however, that the failure of any Terminated Lender to execute an Assignment and Assumption
shall not render such sale and purchase (and the corresponding assignment) invalid and such
assignment shall be recorded in the Register.



     SECTION 2.20. Notice of Certain Costs. Notwithstanding anything to the contrary contained in Sections 2.14 or 2.15 of this
Agreement, to the extent any notice required by Sections 2.14 or 2.15 is given by any Lender more
than 270 days after such Lender has actual knowledge of the occurrence of the event giving rise to
the additional cost, reduction in amounts, loss or other additional amounts described in such
Sections, such Lender shall not be entitled to compensation under Sections 2.14 or 2.15 for any
such amounts incurred or accruing prior to the 271st day prior to the giving of such notice to the
Borrower (except that, if the circumstances giving rise to such claim are retroactive, then such
270-day period referred to above shall be extended to include the period of retroactive effect
thereof).



     SECTION 2.21. Increase in Commitments.



     (a) Incremental Credit Extensions. The Borrower may at any time or from time to time
after the Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent
shall
promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches
of term loans (the “Incremental Term Loans”), or (b) one or more increases in the amount of
the Revolving Credit Commitments (each such increase, a “Revolving Commitment Increase”
together with any Incremental Term Loans, referred to herein as an “Incremental Facility”),
provided that (i) both at the time of any such request and upon the effectiveness of any
Incremental Amendment referred to below, no Default or Event



77-77-

 









 







of Default shall exist and at the time
that any such Incremental Term Loan is made (and after giving effect thereto) no Default or Event
of Default shall exist and (ii) the Borrower shall be in compliance with each of
the covenantscovenant set forth in
SectionsSection 6.12 and
6.13 determined on a Pro Forma Basis as of the last day of the most recently
completed Test Period. Each Incremental Facility shall be in an aggregate principal amount that is
not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such
amount represents all remaining availability under the limit set forth in the next sentence).
Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans
borrowed following the Amendment No. 1 Effective Date shall not exceed
$300,000,000the Maximum Incremental Term Loan Facilities
Amount and the aggregate amount of the Revolving Commitment Increase shall not exceed
$100,000,000.200,000,000.



     (b) Incremental Term Loans. The Incremental Term Loans: (i) shall rank pari passu in
right of payment and of security with the Revolving Credit Loans and the
Term-1 Loans; (ii) shall mature on such date and amortize on such schedule as
each may be agreed by the Borrower and the Lenders providing such Incremental Term Loan,
provided that no Incremental Term Loan shall mature earlier than the
Term-1 Loan Maturity Date and each Incremental Term Loan shall have a Weighted
Average Life to Maturity that is no shorter than the then remaining Weighted Average Life to
Maturity of the Term-1 Loans; (iii) except as set forth above, shall be
treated substantially the same as the Term-1 Loans (in each case, including
with respect to mandatory and voluntary prepayments); (iv) shall bear a rate of interest, OID (as
defined below) and initial fees as agreed by the Borrower and the Lenders providing such
Incremental Term Loan, provided that if the initial yield on any Incremental Term Loan (as
reasonably determined by the Administrative Agent and the Borrower to be equal to the sum of (x)
the margin above the LIBO Rate on such Incremental Term Loans, (y) if such Incremental Term Loans
are initially made at a discount or the Lenders making the same receive a fee directly or
indirectly from the Borrower or any Subsidiary for doing so but excluding any
arrangement fees not paid to the Lenders thereof generally,
underwriting, documentation and similar fees and (the amount of such discount or fee,
expressed as a percentage of the Incremental Term Loans, being referred to herein as
“OID”), the amount of such OID (based on an assumed four year weighted average life) and
(z) any minimum LIBO rate applicable to such Incremental Term Loans, the “Incremental
Yield”) exceeds the initial yield on the Term Loans-1
Loans (as adjusted by any prior increase pursuant to this subclause (b)) by more than 50
basis points (taking into account the same factors in making the determination of the yield on the
Incremental Term Loans and assuming a weighted average life of four years; the amount of such
excess above 50 basis points being referred to herein as the “Yield Differential”), then
the Applicable Rate then in effect for Term-1 Loans shall automatically be
increased by the Yield Differential, effective upon the making of the Incremental Term Loans; and
(v) except as provided in clauses (ii) and (iv) above, the terms and conditions applicable to
Incremental Term Loans shall not be materially more restrictive on the Borrower than those of the
Term-1 Loans. Subject to the limitations in this clause (b) and any
applicable limitations in Section 6.10, Incremental Term Loans may be issued in exchange for other
Indebtedness of the Borrower and its Restricted Subsidiaries.



     (c) (c) Each notice from the Borrower pursuant to this
Section shall set forth the requested amount and proposed terms of the relevant Incremental
Facility. Incremental Term
Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender
or by any other bank or other financial institution (any such other bank or other financial
institution being called an “Additional Lender”), provided that the Borrower and
the Administrative Agent and, in the case of a Revolving Commitment Increase, each Issuer and Swing
Line Lender shall have consented (such consents not to be unreasonably withheld, conditioned or
delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing
such Revolving Commitment Increases, as applicable. Commitments in respect of Incremental
Facilities shall become effective pursuant to an amendment (an “Incremental Amendment”) to
this Agreement and, as appropriate, the other Loan Documents, executed



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by the Borrower, each Lender
agreeing to provide such Incremental Facilities, if any, each Additional Lender, if any, and the
Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the
provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the
satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each
of the conditions set forth in Section 4.02 (it being understood that all references to “the date
of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the
Effective Date of such Incremental Amendment) and such other conditions as the parties thereto
shall agree.



     (d) (d) The Borrower will use the proceeds of the
Incremental Term Loans and Revolving Commitment Increases and Letters of Credit issued pursuant to
the Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender
shall be obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each
increase in the Revolving Credit Commitments pursuant to this Section, each Revolving Credit Lender
immediately prior to such increase will automatically and without further act be deemed to have
assigned to each Lender providing a portion of the Revolving Commitment Increase (each a
“Revolving Commitment Increase Lender”) in respect of such increase, and each such
Revolving Commitment Increase Lender will automatically and without further act be deemed to have
assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding
Revolving Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed
assignment and assumption of participations, the percentage of the aggregate outstanding (i)
participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swing
Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase
Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving
Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b)
if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving
Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be
prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such
increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued
interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in
accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the
minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this
Agreement shall not apply to the transactions effected pursuant to the immediately preceding
sentence.



     (e) (e) If the Borrower enters into a Replacement
Revolving Credit Facility pursuant to Section 9.08(j), the provisions of Section 2.21(a),
permitting a Revolving Commitment Increase, shall be available with respect to such Replacement
Revolving Credit Facility.



     (f) (f) Conflicting Provisions. This Section
shall supersede any provisions in Section 2.18 or Section 9.08 to the contrary.



ARTICLE III




REPRESENTATIONS AND WARRANTIES



     In order to induce the Lenders and the Administrative Agent to enter into this Agreement and
to extend credit hereunder and under the other Loan Documents, the Borrower hereby makes the
representations and warranties set forth in this Article III on and as of the Effective Date, on
the date of each Credit Extension and on and as of each other date as may be required hereunder:



     SECTION 3.01. Organization, etc.



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.(a) Each Loan Party and each of its
Restricted Subsidiaries is a corporation or other form of legal entity, duly organized or
incorporated, as the case may be, and validly existing and in good standing (to the extent such
concept is applicable in the applicable jurisdiction) under the laws of the jurisdiction of its
organization or incorporation, as the case may be, except, in the case of a Non-Guarantor
Restricted Subsidiary, to the extent the failure to be so organized or incorporated, existing and
in good standing could not reasonably be expected to have a Material Adverse Effect; (b) each Loan
Party and each of its Restricted Subsidiaries, except in the case of any Immaterial Restricted
Subsidiary, has all requisite corporate or other organizational power and authority to carry on its
business as now conducted and to own and operate its Property or hold under lease its Property
operated under lease; (c) each Loan Party and each of its Restricted Subsidiaries is duly qualified
to do business and is in good standing as a foreign corporation, foreign limited liability company,
foreign partnership (or comparable foreign qualification, if applicable, in the case of any other
form of legal entity), as the case may be, in each jurisdiction where the nature of its business
requires such qualification, except where the failure to so qualify or be in good standing,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect; (d) each Loan Party has full corporate or other organizational power and authority to, and
holds all requisite material licenses, permits and other approvals of Governmental Authorities to,
enter into and perform its obligations under each Loan Document to which it is a party; and (e)
each Loan Party and each of its Restricted Subsidiaries has full corporate or other organizational
power and authority to, and holds all requisite material licenses, permits and other approvals of
Governmental Authorities to, own or hold under lease its Property and to conduct its business as
currently conducted by it, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.




     SECTION 3.02. Due Authorization, Non-Contravention, etc.



     The execution, delivery and performance by each Loan Party of each Loan Document to which it
is a party (including the execution, delivery and performance by the Borrower of this Agreement),
the borrowing of the Loans and the use of the proceeds thereof are within each Loan Party’s
corporate, partnership or comparable powers, as the case may be, have been duly authorized by all
necessary corporate, limited liability company, partnership or comparable and, if required,
stockholder, action, as the case may be, and do not and will not:



     (a) contravene the Organizational Documents of any Loan Party or any of its respective
Restricted Subsidiaries;



     (b) contravene any material Requirement of Law;



     (c) result in any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default or event of default or an acceleration of any rights or benefits under, any
Material Indebtedness or any other indenture, agreement or other instrument binding upon any Loan
Party or any
of its respective Restricted Subsidiaries which could reasonably be expected to result in a
Material Adverse Effect; or



     (d) result in, or require the creation or imposition of, any Lien on any assets of any Loan
Party, except Liens created under the Loan Documents and Permitted Liens.



     SECTION 3.03. Government Approval, Regulation, etc.



     No consent, authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority or any other Person is required for the due execution, delivery or
performance by any Loan Party of any Loan Document (including the due execution, delivery and
performance by the



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Borrower of this Agreement), the borrowing of the Loans except such as have been
obtained or made and are in full force and effect and except the filings necessary to perfect Liens
under the Security Documents referred to in Section 3.20. No Loan Party is an “investment company”
or a company “controlled” by an “investment company,” within the meaning of, or subject to
regulation under, the Investment Company Act of 1940.



     SECTION 3.04. Validity, etc. Each Loan Document delivered on the Effective Date has been duly executed and delivered by
each Loan Party party thereto and constitutes, and each other Loan Document to which any Loan Party
is to be a party will, on the due execution and delivery thereof by such Loan Party, constitute,
the legal, valid and binding obligation of each such Loan Party enforceable in accordance with its
respective terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforceability of creditors’ rights generally and to general principles
of equity, regardless of whether considered in a proceeding in equity or at law.



     SECTION 3.05. Financial Information.



     (a) The consolidated balance sheets of the Borrower and its Subsidiaries and the related
consolidated statements of income, stockholders’ equity and cash flow, as of and for the 2007, 2008
and 2009 Fiscal Years, audited by and accompanied by the opinion of Deloitte & Touche LLP,
independent public accountants, copies of which have been furnished to the Administrative Agent,
have been prepared in accordance with GAAP except to the extent provided in the notes to said
financial statements, and present fairly in all material respects the consolidated financial
condition of the Borrower and its Subsidiaries as of the dates thereof and the results of their
operations and cash flows for the periods then ended.



     (b) The unaudited interim consolidated balance sheets of the Borrower and its Subsidiaries and
the related unaudited interim consolidated statements of income, stockholders’ equity and cash
flow, as of and for the Fiscal Quarters ended March 31, 2009, June 30, 2009 and September 30, 2009,
copies of which have been furnished to the Administrative Agent, have been prepared in accordance
with GAAP consistently applied except to the extent provided in the notes to said financial
statements, and on a basis consistent with audited financial statements referred to in Section
3.05(a), and present fairly in all material respects the consolidated financial condition of the
Borrower and its Subsidiaries as of the dates thereof and the results of their operations and cash
flows for the periods then ended (subject to normal year-end audit adjustments and the absence of
certain notes).



     (c) As of the Effective Date, except as disclosed in the financial statements referred to
above or the notes thereto or on Schedule 3.05, none of the Borrower or its Restricted Subsidiaries
has any material Indebtedness, accrued, contingent, absolute, determined, determinable or other
liabilities or unrealized losses.



     SECTION 3.06. No Material Adverse Effect. Since December 31, 2009, no event or circumstance has occurred that has had, or could
reasonably be expected to have, a Material Adverse Effect.



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     SECTION 3.07. Litigation. There is no pending or, to the knowledge of the Loan Parties, threatened, litigation,
action or proceeding affecting the Borrower or any of its Restricted Subsidiaries, or any of their
respective operations, properties, businesses or assets or the ability of the parties to consummate
the transactions contemplated hereby, (i) which has a reasonable likelihood of adverse
determination and, if determined adversely, in the case of the Borrower and its Restricted
Subsidiaries, could reasonably be expected to have a Material Adverse Effect or (ii) which purports
to affect the legality, validity or enforceability of this Agreement or any other Loan Document or
any of the other transactions contemplated hereby or thereby.



     SECTION 3.08. Compliance with Laws and Agreements. None of the Loan Parties or any of their respective Restricted Subsidiaries has violated,
is in violation of or has been given written notice of any violation of any Requirement of Law
(other than Environmental Laws, which are the subject of Section 3.14) or has violated, is in
violation of or default under, or has been given written notice of any violation of or default
under, any and all indentures, agreements and other instruments binding upon it or its property,
except, in each case, for any such violations or defaults which, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect. No Default or Event of Default
has occurred and is continuing.



     SECTION 3.09. Ownership of Subsidiaries.



     (a) As of the Effective Date, Schedule 3.09(a) sets forth the legal name and
jurisdiction of organization of, the number of each class of authorized Equity Interests of, the
number of each class of outstanding Equity Interests of, and the number of Equity Interests covered
by outstanding options, warrants, rights of conversion or purchase and similar rights in respect of
such Equity Interests of each Subsidiary of the Borrower and identifies each Subsidiary that is a
Loan Party and each Subsidiary that is an Excluded Subsidiary, in each case as of the Effective
Date. All Equity Interests of each Loan Party are duly and validly issued and are fully paid and
non-assessable (to the extent applicable), and, except as set forth on Schedule 3.09(a),
other than the Equity Interests of the Borrower, are owned by the Borrower, directly or indirectly
through Wholly Owned Restricted Subsidiaries.



     (b) As of the Effective Date, except as set forth on Schedule 3.09(b), all Equity
Interests of each Restricted Subsidiary (other than Loan Parties) are duly and validly issued and
are fully paid and non-assessable (to the extent applicable) and are owned by the Borrower or
directly or indirectly through Wholly Owned Restricted Subsidiaries. Each Loan Party is the record
and beneficial owner of, and has good and marketable title to, the Equity Interests pledged by it
under any Security Document. The Equity Interests of each Restricted Subsidiary held, directly or
indirectly, by the Borrower are owned, directly or
indirectly, by the Borrower free and clear of all Liens other than Liens permitted by Section
6.02. There are not, as of the Effective Date, any existing options, warrants, calls,
subscriptions, convertible or exchangeable securities, rights, agreements, commitments or
arrangements for any Person to acquire any Equity Interests of the Borrower or its Restricted
Subsidiaries or any other securities convertible into, exchangeable for or evidencing the right to
subscribe for any such Equity Interests, or that require the issuance or sale of any such Equity
Interests, except as set forth on Schedule 3.09(b).



     (c) Other than consents which have been obtained and are in full force and effect, as of the
Effective Date, no consent of any Person including any other general or limited partner, any other
member of a limited liability company, any other shareholder or any other trust beneficiary is
necessary in connection with the creation, perfection or first priority status of the security
interest of the Collateral Agent in any Equity Interests pledged to the Collateral Agent for the
benefit of the Secured Parties under



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the Security Documents or the exercise by the Collateral Agent
of the voting or other rights provided for in the Security Documents or the exercise of remedies in
respect thereof, the failure to obtain would reasonably be expected to cause a Material Adverse
Effect.



     SECTION 3.10. Ownership of Properties.



     (a) Each of the Borrower and its Restricted Subsidiaries has good and marketable title to (or
other similar title in jurisdictions outside the United States of America), or valid leasehold
interests in, or easements or other limited property interests in, or is licensed to use, all its
material Properties (including all Mortgaged Properties) except for minor defects in title that,
individually or in the aggregate, do not interfere with its ability to conduct its business as
currently conducted at such Property or to utilize each Property for its intended purpose. All
such Properties are free and clear of Liens, other than Permitted Liens. The property of the
Borrower and its Restricted Subsidiaries, taken as a whole, (i) is in good operating order,
condition and repair (ordinary wear and tear and casualty and condemnation excepted) in all
material respects and (ii) except as could not reasonably be expected to have a Material Adverse
Effect, constitutes all the property which is required for the business and operations of the
Borrower and its Restricted Subsidiaries as presently conducted. As of the Effective Date, except
as set forth on Schedule 3.10(a), no Loan Party is obligated under, or a party to, any
option, right of first refusal or other contractual right to purchase, acquire, sell, assign or
dispose of any material Properties. The representations and warranties set forth in this Section
3.10(a) shall not apply to Intellectual Property, the representations and warranties of which are
addressed separately in Section 3.11.



     (b) As of the Effective Date, Schedule 3.10(b) contains a true and complete list of
each parcel of Real Property owned by any Loan Party with a fair market value in excess of
$5,000,000 as of the date hereof and describes the type of interest therein held by such Loan Party
and (ii) leased, subleased or otherwise occupied or utilized by any Loan Party, as lessee, where
the aggregate annual rent, as of the Effective Date, with respect to such Property is in excess of
$100,000 (the “Leased Real Property”), as of the date hereof and describes the type of
interest therein held by such Loan Party..



     (c) As of the Effective Date, each of the Borrower and its Restricted Subsidiaries has
complied with all obligations under all leases with respect to the Leased Real Property to which it
is a party, and all such leases are in full force and effect, and no default by any Loan Party to
such leases (and to the knowledge of the applicable Loan Party, by any other party thereto) exists,
except such noncompliance, failure to be in full force and effect and defaults which could not
reasonably be expected to have a Material Adverse Effect. As of the Effective Date, each of the
Borrower and its Restricted Subsidiaries enjoys in all material respects peaceful and undisturbed
possession under all such leases.



     (d) As of the Effective Date, no Loan Party or any of its respective Restricted Subsidiaries
has received any written notice of, or has any actual knowledge of, any pending or contemplated
Taking affecting all or any portion of its Property or any sale or disposition thereof in lieu of a
Taking that would reasonably be expected to have a Material Adverse Effect. No Mortgage encumbers
improved Real Property that is located in an area that is designated a “flood hazard area” in any
Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor
agency) unless flood insurance available under the National Flood Insurance Act of 1968 has been
obtained in accordance with Section 5.04.



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     SECTION 3.11. Intellectual Property. Each of the Borrower and its Restricted Subsidiaries owns, is licensed or otherwise has the
right to use, all Intellectual Property necessary for the present conduct of its business, except
for those the failure to own or license or otherwise have the right to use, could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. No claim has been
asserted and is now pending by any Person challenging the Borrower’s or any of its Restricted
Subsidiaries’ use of any Intellectual Property, or the validity of any Intellectual Property owned
by the Borrower or its Restricted Subsidiaries, nor does the Borrower or any Restricted Subsidiary
know of any valid basis for any such claim, except for such claims that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect. The use of such
Intellectual Property by each of the Borrower and its Restricted Subsidiaries does not infringe the
rights of any Person, except for such claims and infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.



     SECTION 3.12. Taxes. Except as could not reasonably be expected to result in a Material Adverse Effect, each of
the Borrower and its Restricted Subsidiaries has (a) timely filed (subject to any applicable
extensions) all federal, state, local and foreign income and franchise Tax Returns and all other
Tax Returns required to have been filed by it and all such Tax Returns are true and correct and (b)
duly and timely paid, collected or remitted or caused to be duly and timely paid, collected or
remitted all Taxes (whether or not shown on any such Tax Return) due and payable, collectible or
remittable by it (including in the capacity of a withholding agent) and all assessments received by
it, except any such Taxes which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves have been established on the books of the Borrower or
its Restricted Subsidiary in accordance with GAAP. Except as could not reasonably be expected to
result in a Material Adverse Effect, each of the Borrower and its Restricted Subsidiaries has made
adequate provisions in accordance with GAAP for all Taxes not yet due and payable. None of the
Borrower or any of its Restricted Subsidiaries is aware of any proposed or pending Tax assessments,
deficiencies or audits that, individually or in the aggregate, could be reasonably expected to have
a Material Adverse Effect.



     SECTION 3.13. Pension and Welfare Plans.



     (a) No ERISA Event has occurred or is reasonably expected to occur which could reasonably be
expected to have a Material Adverse Effect. The Borrower and its Restricted Subsidiaries and their
ERISA Affiliates are in compliance in all respects with the presently applicable provisions of
ERISA and the Code with respect to each Pension Plan except for failures to so comply which could
not reasonably be expected to have a Material Adverse Effect.



     (b) Except as could not reasonably be expected to have a Material Adverse Effect, (i) each
Foreign Plan has been maintained in compliance with applicable Requirements of Law, and (ii)
neither the Borrower nor any of its Restricted Subsidiaries has incurred or is reasonably expected
to incur any obligation (whether direct, indirect, actual or contingent) in connection with the
termination of or withdrawal from any Foreign Plan.



     SECTION 3.14. Environmental.



84-84-

 









 





     (a) Except as set forth on Schedule 3.14 or except as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, all facilities and property
owned, leased or operated by the Borrower or any of its Restricted Subsidiaries, and all operations
conducted thereon, are in compliance with all Environmental Laws.



     (b) There are no pending or threatened (in writing):




     (i) Environmental Claims received by the Borrower or any of its Restricted
Subsidiaries, or




     (ii) written claims, complaints, notices or inquiries received by the Borrower or any
of its Restricted Subsidiaries regarding Environmental Liability,


in each case which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.




     (c) There have been no Releases of Hazardous Materials at, on, under or from any property or
facility now or, to any Loan Party’s knowledge, previously owned, leased or operated by the
Borrower or any of its Restricted Subsidiaries that, individually or in the aggregate, have had or
could reasonably be expected to have a Material Adverse Effect.



     (d) The Borrower and its Restricted Subsidiaries have obtained and are in compliance with all
Environmental Permits necessary for their operations, facilities and businesses and each is in full
force and effect, except for such Environmental Permits and except for any such failure to obtain,
comply, or maintain in effect which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.



     (e) No property now or, to any Loan Party’s knowledge previously, owned, leased or operated by
the Borrower or any of its Restricted Subsidiaries is listed or, to any Loan Party’s knowledge,
proposed (with respect to owned property only) for listing (i) on the National Priorities List
pursuant to CERCLA or (ii) on the CERCLIS or on any similar list of sites requiring investigation
or clean-up, which, in each of the foregoing cases, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.



     (f) There are no underground storage tanks, active or abandoned, including petroleum storage
tanks, surface impoundments or disposal areas, on or under any property now or, to any Loan Party’s
knowledge previously, owned or leased by the Borrower or any of its Restricted Subsidiaries that
could result in liabilities under Environmental Law which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.



     (g) Neither the Borrower nor any of its Restricted Subsidiaries has transported or arranged
for the transportation of any Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or on any similar list
or which transportation could reasonably be expected to lead to any Environmental Claim against the
Borrower or such Restricted Subsidiary which listing, proposed listing or Environmental Claim,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.



     (h) Except for Permitted Liens, no Liens have been recorded pursuant to any Environmental Law
with respect to any property or other assets currently owned or leased by the Borrower or its
Restricted Subsidiaries.



85-85-

 









 





     (i) Neither the Borrower nor any of its Restricted Subsidiaries is currently conducting any
Remedial Action pursuant to any Environmental Law, nor has any of the Loan Parties or any of their
respective Restricted Subsidiaries assumed by contract, agreement or operation of law, any Remedial
Action or other obligation under Environmental Law, the cost of which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



     (j) There are no polychlorinated biphenyls or friable asbestos present at any property or
facility owned, leased or operated by the Borrower or any of its Restricted Subsidiaries, which,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.



     (k) No Person with an indemnity or contribution obligation to the Borrower and its Restricted
Subsidiaries relating to compliance with or liability under Environmental Laws is in default with
respect to such obligation, except such defaults that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.



     (l) To the knowledge of any Loan Party, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including the release, emission, discharge,
presence or disposal of any Hazardous Substance, that could form the basis of any Environmental
Claim against the Borrower or any of its Restricted Subsidiaries or against any Person whose
liability for any Environmental Claim the Borrower or any of its Restricted Subsidiaries has
retained or assumed either contractually or by operation of law, or otherwise result in any costs
or liabilities under Environmental Law, which Environmental Claim, costs or liabilities could
reasonably be expected to have a Material Adverse Effect.



     (m) The Borrower and its Restricted Subsidiaries have made available to the Lenders
information and documents concerning compliance with or potential liability under Environmental
Laws, including those concerning the actual or suspected existence of Hazardous Material at Real
Property or facilities currently or formerly owned, operated, leased or used by the Borrower and
its Restricted Subsidiaries sufficient to enable a fair and accurate review and assessment of such
matters which, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.



     SECTION 3.15. Federal Reserve Regulations. Neither the Borrower nor any of its Restricted Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock (as defined in Regulation U). The Loans, the use of the proceeds thereof,
this Agreement, the pledge of the Pledged Securities pursuant to the Security Documents and the
other transactions contemplated hereby will not result in a violation of any provision of the
regulations of the Board of Governors, including Regulation U and Regulation X.



     SECTION 3.16. Disclosure; Accuracy of Information; Pro Forma Balance Sheets and Projected
Financial Statements.



     (a) Neither this Agreement nor any other material document, certificate or written data
furnished (taken as a whole and when furnished) to the Administrative Agent or any Lender by or on
behalf of any Loan Party in connection herewith (including the Information Memorandum and the
Projected Financial Statements) contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements contained herein and therein not (taken
as a whole and when furnished) materially misleading, in light of the circumstances under which
they were made;



86-86-

 









 







provided that to the extent this or any such document, certificate or data
(including the Information Memorandum and the Projected Financial Statements) was based upon or
constitutes a forecast, forward-looking statement or projection, the Loan Parties represent only
that they acted in good faith and utilized assumptions believed by management of the Loan Parties
to be reasonable at the time made. The Administrative Agent and the Lenders understand, however,
that forecasts, forward-looking statements and projections as to future events are subject to
significant uncertainties and contingencies which may be beyond the Borrower’s and/or its
Subsidiaries’ control and are not to be viewed as representations with respect to future
performance and no assurance is given by any of the Borrower or its Subsidiaries that the results
forecast in any such projections will be realized and that the actual results during the period or
periods covered by the forecasts, forward-looking statements or projections may differ from the
projected results and that such difference may be material.



     (b) The Borrower has heretofore furnished to the Administrative Agent pro forma consolidated
income statement projections for the Borrower and its Restricted Subsidiaries, pro forma
consolidated balance sheet projections for the Borrower and its Restricted Subsidiaries, and pro
forma consolidated cash flow projections for the Borrower and its Restricted Subsidiaries through
the 2014 Fiscal Year, which shall be prepared on a quarterly basis through the 2011 Fiscal Year and
annually thereafter (the “Projected Financial Statements”), which give effect to the
Refinancing and all Indebtedness and Liens incurred or created in connection with the Refinancing,
and have been prepared in good faith by the Borrower and based on assumptions believed by the
Borrower on the date hereof and on the Effective Date to be reasonable. Notwithstanding anything
contained herein to the contrary, it is hereby understood by the Administrative Agent and each
Lender that (i) any financial or business projections furnished to the Administrative Agent or any
Lender by the Borrower or any of its Subsidiaries under any Loan Document are subject to
significant uncertainties and contingencies, which may be beyond the Borrower’s and/or its
Subsidiaries’ control, (ii) no assurance is given by any of the Borrower or its Subsidiaries that
the results forecast in any such projections will be realized and (iii) the actual results may
differ from the forecast results set forth in such projections and such differences may be
material.



     SECTION 3.17. Insurance. Set forth on Schedule 3.17 is a summary of all material insurance policies
maintained by the Borrower and each of its Restricted Subsidiaries as of the Effective Date and
such insurance policies constitute all insurance policies required to be maintained pursuant to the
Security Documents as of the Effective Date. The material insurance policies maintained by the
Borrower and its Restricted Subsidiaries (a) are in full force and effect, and all premiums thereon
have been duly paid to the extent due and neither the Borrower nor any of its Restricted
Subsidiaries has received any notice of cancellation or material violation thereof or if otherwise
in default thereunder, and the use, occupancy and operation of the property covered thereby comply
in all material respects with all applicable provisions thereof, in each
case, as of the Effective Date, (b) are maintained with financially sound and responsible
insurance companies, and (c) cover all properties material to the business of the Borrower and its
Restricted Subsidiaries against such casualties and contingencies and of such types, and in such
amounts, as are customary in the case of similar businesses of similar size operating in the same
or similar locations.



     SECTION 3.18. Labor Matters. Except as, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, (a) there are no strikes, lockouts or slowdowns against the Borrower or
any Restricted Subsidiary pending or, to the knowledge of any Loan Party, threatened; (b) the hours
worked by and payments made to employees of the Borrower and its Restricted Subsidiaries have not
been in violation
of



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the Fair Labor Standards Act of 1938 or any other applicable Federal, state,
local or foreign law dealing with such matters; and (c) all payments due from the Borrower or any
Restricted Subsidiary, or for which any claim may be made against the Borrower or any Restricted
Subsidiary, on account of wages, have been paid or accrued as a liability on the books of the
Borrower or such Restricted Subsidiary.



     SECTION 3.19. Solvency. Immediately following the making of the Loans on the Effective Date and after giving effect
to the application of the proceeds of such Loans, and immediately after the consummation of the
Refinancing on the Effective Date, (a) the fair value of the properties of the Borrower,
individually, and the Borrower on a consolidated basis with its Restricted Subsidiaries, will
exceed its debts and liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of the Borrower, individually, and the Borrower on a consolidated
basis with its Restricted Subsidiaries, will be greater than the amount that will be required to
pay the probable liability of its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c) the Borrower,
individually, and the Borrower on a consolidated basis with its Restricted Subsidiaries, does not
intend to, and does not believe that it or its Restricted Subsidiaries (on a consolidated basis
with the Borrower) will, incur debts or liabilities beyond the ability of the Borrower
(individually) and its Restricted Subsidiaries (on a consolidated basis with the Borrower) to pay
its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured; and (d) the Borrower, individually, and the Borrower on a consolidated
basis with its Restricted Subsidiaries, will not have unreasonably small capital with which to
conduct its business in which it is engaged as such business is now conducted and is proposed to be
conducted following the Effective Date.



     SECTION 3.20. Security Documents.



     (a) The Pledge Agreement is effective to create in favor of the Collateral Agent, for the
benefit of the Secured Parties, legal, valid and enforceable security interests in the Collateral
(as defined in the Pledge Agreement) and, when such Collateral is delivered to the Collateral Agent
and appropriate filings have been made in accordance with the applicable UCC (and any such foreign
filings necessary with respect to pledge entities organized outside the United States), the Pledge
Agreement shall constitute fully perfected Liens on, and security interests in, all right, title
and interest of the pledgor thereunder in such Collateral to the extent such Liens and security
interests can be perfected by filing and by possession.



     (b) (i) The Security Agreement, each Non-U.S. Security Agreement and each Non-U.S. Pledge
Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Secured
Parties, legal, valid and enforceable security interests in the Collateral referred to therein and
(ii) when (1)
financing statements in appropriate form are filed in the offices specified on Schedule
7 to the Perfection Certificate dated the Effective Date, (2) filings in appropriate form are
filed with the United States Patent and Trademark Office and the United States Copyright Office,
(3) upon the taking of possession or control by the Collateral Agent of any such Collateral in
which a security interest may be perfected only by possession or control (which possession or
control shall be given to the Collateral Agent to the extent possession or control by the
Collateral Agent is required by the Security Agreement, such Non-U.S. Security Agreement or such
Non-U.S. Pledge Agreement, as the case may be), and (4) any necessary filings, registrations and
other actions required under local law with respect to perfection in connection with each Non-U.S.
Pledge Agreement, each of the Security Agreement, each Non-U.S. Security Agreement and each
Non-U.S. Pledge Agreement shall constitute fully perfected Liens on, and security interests in, all
right, title and interest of the grantors thereunder in such Collateral to the extent such



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Liens
and security interests can be perfected by the filing of a financing statement pursuant to the UCC
or by possession or control by the Collateral Agent, in each case prior and superior in right to
any other Person, other than with respect to Permitted Liens.



     (c) When the filings in clause (b)(ii)(2) above are made in the United States Patent and
Trademark Office and the United States Copyright Office, the Security Agreement shall constitute
fully perfected Liens on, and security interests in, all right, title and interest of the Loan
Parties in the United States in the Intellectual Property in which a security interest may be
perfected by filing, recording or registering a security agreement, financing statement or
analogous document in the United States Patent and Trademark Office or the United States Copyright
Office, as applicable (it being understood that subsequent recordings in the United States Patent
and Trademark Office and the United States Copyright Office may be necessary to perfect Liens on
Intellectual Property acquired by the Loan Parties after the Effective Date), in each case prior
and superior in right to any other Person other than with respect to Permitted Liens.



     (d) Each Mortgage executed and delivered to the Collateral Agent to secure the Obligations as
of the Effective Date is, or, to the extent any Mortgage is duly executed and delivered thereafter
by the relevant Loan Party, will be, effective to create, subject to the exceptions listed in each
title insurance policy covering each such Mortgage, in favor of the Collateral Agent, for the
benefit of the Secured Parties, legal, valid and enforceable Liens on and security interests in all
of the Loan Parties’ right, title and interest in and to the Mortgaged Properties as described
therein and the proceeds thereof, and when such Mortgages are recorded in the applicable office of
each political subdivision where each such Mortgaged Property is situated, such Mortgages shall
constitute fully perfected Liens on, and security interests in, all right, title and interest of
the Loan Parties in such Mortgaged Properties and the proceeds thereof, in each case prior and
superior in right to any other Person, other than Liens permitted by such Mortgage.



     (e) Each Security Document (other than any Mortgage) delivered pursuant to Sections 5.11,
5.12, 5.15 and 5.16 will, upon execution and delivery thereof and the filings set forth therein and
in this Section 3.20, be effective to create in favor of the Collateral Agent, for the benefit of
the Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of the
Loan Parties’ right, title and interest in and to the Collateral to the extent the actions required
by the Loan Documents are effective to create and perfect such security interests thereunder, and
(i) when all appropriate filings or recordings are made in the appropriate offices as may be
required under applicable law and (ii) upon the taking of possession or control by the Collateral
Agent of such Collateral with respect to which a security interest may be perfected only by
possession or control (which possession or control shall be given to the Collateral Agent to the
extent required by any Security Document, except as directed by the Collateral Agent or the
Administrative Agent), such Security Document will constitute fully perfected Liens on, and
security interests in, all right, title and interest of the Loan Parties in such Collateral,
in each case subject to no Liens other than Permitted Liens.



     SECTION 3.21. Anti-Terrorism Laws.



     (a) None of the Loan Parties or their respective Subsidiaries and, to the knowledge of any
Loan Party, none of their respective Affiliates is in violation of Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001 (the “Executive Order”), or the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Public Law 107 56 (collectively, “Anti-Terrorism Laws”).



89-89-

 









 





     (b) None of the Loan Parties or their respective Subsidiaries and, to the knowledge of any
Loan Party, none of their respective Affiliates or their respective brokers or other agents acting
or benefiting in any capacity in connection with the Loans is any of the following:




     (i) a Person or entity that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order;




     (ii) a Person or entity owned or controlled by, or acting for or on behalf of, any
Person or entity that is listed in the annex to, or is otherwise subject to the provisions
of, the Executive Order;




     (iii) a Person or entity with which any Lender is prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law;




     (iv) a Person or entity that commits, threatens or conspires to commit or supports
“terrorism” as defined in the Executive Order; or




     (v) a Person or entity that is named as a “specially designated national and blocked
person” on the most current list published by the U.S. Treasury Department Office of Foreign
Assets Control at its official website or any replacement website or other replacement
official publication of such list.



     (c) No Loan Party or, to the knowledge of any Loan Party, any of its brokers or other agents
acting in any capacity in connection with the Loans (i) conducts any business or engages in making
or receiving any contribution of funds, goods or services to or for the benefit of any Person
described in clause (b) above, (ii) deals in, or otherwise engages in any transaction relating to,
any property or interests in property blocked pursuant to the Executive Order, or (iii) engages in
or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or
avoiding, or the purpose of attempting to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.



     SECTION 3.22. Status as Senior Debt. The Loan Obligations constitute “Senior Debt” or “Designated Senior Indebtedness” (or any
other defined term having a similar purpose) within the meaning of all outstanding Subordinated
Debt Documents.



ARTICLE IV




CONDITIONS



     SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans on the Effective Date are subject, at the time
of the making of such Loans, to satisfaction or waiver of the following conditions on or prior to
the Effective Date:



     (a) The Administrative Agent shall have received from each party hereto a counterpart of this
Agreement signed on behalf of such party.



90-90-

 









 





     (b) The Administrative Agent shall have received (i) counterparts of the Guarantee Agreement
signed on behalf of each Loan Party party thereto, and (ii) counterparts of the Indemnity,
Subrogation and Contribution Agreement signed on behalf of each Loan Party.



     (c) The Administrative Agent shall have received from the Borrower a Closing Certificate,
dated the Effective Date and signed on behalf of the Borrower by a Financial Officer of the
Borrower.



     (d) The Administrative Agent shall have received:




     (A) a certificate of the secretary, assistant secretary or managing director (where
applicable) or other authorized officer of each Loan Party dated the Effective Date,
certifying (i) that attached thereto is a true and complete copy of each Organizational
Document of such Loan Party certified (to the extent customary in the applicable state) as
of a recent date by the Secretary of State (or equivalent Governmental Authority) of the
jurisdiction of its organization, (ii) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors and/or shareholders, as applicable, of
such Loan Party authorizing the execution, delivery and performance of the Loan Documents to
which such person is a party and, in the case of the Borrower, the borrowings hereunder, and
that such resolutions, or any other document attached thereto, have not been modified,
rescinded, amended or superseded and are in full force and effect and (iii) as to the
incumbency and specimen signature of each officer executing any Loan Document on behalf of
such Loan Party (together with a certificate of another officer as to the incumbency and
specimen signature of the secretary, assistant secretary, managing director or other
authorized officer executing the certificate in this clause (A)); and




     (B) a certificate as to the good standing (where applicable, or such other customary
functionally equivalent certificates or abstracts, to the extent available in the applicable
jurisdiction) of each Loan Party (in so-called “long-form” if available) as of a recent
date, from the Secretary of State (or other applicable Governmental Authority) of such Loan
Party’s jurisdiction of organization.



     (e) The Administrative Agent shall have received from Kirkland & Ellis LLP, special counsel to
the Loan Parties, a customary written opinion addressed to each Agent and the Lenders and dated the
Effective Date, in form reasonably satisfactory to such Agent.



     (f) [Reserved].



     (g) The Arrangers shall have received, sufficiently in advance of the Effective Date, all
documentation and other information requested by the Lenders at least two Business Days prior to
the
Effective Date in order to enable compliance with applicable “know your customer” and
anti-money laundering rules and regulations (including the PATRIOT Act), including the information
described in Section 9.19.



     (h) The Administrative Agent shall have received the audited and unaudited consolidated
balance sheets and related statements of income, stockholders’ equity and cash flows of the
Borrower described in Section 3.05.



     (i) The Collateral Agent shall have received evidence and be reasonably satisfied that the
insurance required by Section 5.04 and the Security Documents is in effect in form and substance
reasonably satisfactory to the Collateral Agent.



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     (j) The Administrative Agent shall have received Notes signed on behalf of the Borrower in
favor of each Lender that has requested a Note at least two Business Days prior to the Effective
Date.



     (k) The Administrative Agent shall have received certificates of the chief financial officer
of the Borrower, substantially in the form of Exhibit L, confirming the solvency of the
Borrower (individually and on the consolidated basis with its Restricted Subsidiaries) after giving
effect to the Refinancing.



     (l) Except as set forth on Schedule 5.16(a), the Administrative Agent shall have received
reasonably satisfactory evidence that substantially concurrently with the initial borrowings under
this Agreement all indebtedness under the Existing Credit Agreements shall be repaid, all
commitments thereunder shall have terminated and all security interests thereunder shall have been
released.



     (m) The Administrative Agent shall have received all fees payable to the Administrative Agent,
any of the Arrangers or any of the Lenders on or prior to the Effective Date and all other amounts
due and payable pursuant to the Loan Documents on or prior to the Effective Date, including
reimbursement or payment of all reasonable and invoiced out-of-pocket expenses (including
reasonable fees, charges and disbursements of Cahill Gordon & Reindel llp) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan Document.



     (n) The Administrative Agent shall have received subordination agreements in form and
substance reasonably satisfactory to it covering all Intercompany Notes or other obligations owed
by a Loan Party to a Subsidiary of the Borrower that is not a Loan Party.



     (o) Except for those items required to be delivered pursuant to Schedule 5.16(a), the
Collateral Agent shall have received (i) counterparts of the Security Agreement signed by each Loan
Party party thereto and (ii) counterparts of the Pledge Agreement signed by each Loan Party party
thereto and covering pledges of 100% of the Equity Interests held by such Loan Parties in all of
their Restricted Subsidiaries (other than Excluded Subsidiaries) and all their Non-U.S. Restricted
Subsidiaries that are Subsidiary Guarantors, 65% of the Equity Interests held by such Loan Parties
in all of their “first tier” Non-U.S. Restricted Subsidiaries (other than Excluded Subsidiaries
described in clauses (a), (b), (e), (f) and (g) of the definition thereof) and other Equity
Interests held by such Loan Parties (excluding Equity Interests in Excluded Joint Ventures held by
such Loan Parties), other than any Equity Interests of such Subsidiaries pledged pursuant to
Non-U.S. Pledge Agreements, together with the following in form and substance reasonably
satisfactory to the Collateral Agent:




     (A) to the extent certificated or in bearer form, certificates representing all Pledged
Securities (and in the case of certificates representing Equity Interests in Non-U.S.
Subsidiaries, to the extent permitted to leave the jurisdiction of formation of such
Non-U.S. Subsidiary) or
bearer form securities, together with executed and undated stock powers and/or
assignments in blank (if applicable);




     (B) all endorsements and certificates of insurance required under this Agreement;




     (C) appropriate financing statements or comparable documents authorized by (and
executed by, to the extent applicable) the appropriate entities in proper form for filing
under the provisions of the UCC and applicable domestic, local and foreign laws, rules or
regulations in each of the offices where such filing is necessary or appropriate, in the
Collateral Agent’s reasonable discretion, to grant to the Collateral Agent perfected Liens
on the Collateral, superior and prior to the rights of all third persons other than the
holders of Permitted Liens;



92-92-

 









 






     (D) evidence of the preparation for recording or filing, as applicable, of all
recordings and filings of each such Security Document and delivery and recordation, if
necessary, of such other security and other documents as may be necessary to perfect the
Liens created, or purported to be created, by such Security Documents in the United States;
and




     (E) a completed Perfection Certificate dated the Effective Date and signed by a
Financial Officer or other authorized officer of the Borrower and each other Loan Party,
together with all attachments contemplated thereby.



     SECTION 4.02. Conditions to All Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a
continuation or conversion to a Eurodollar Borrowing) is subject to the following conditions
precedent:



     (a) The representations and warranties of the Borrower and each other Loan Party contained in
Article III or any other Loan Document shall be true and correct (or, in the case of
representations and warranties not qualified as to materiality, true and correct in all material
respects) on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically relate to an earlier date, in which case they shall be
true and correct (or, in the case of representations and warranties not qualified as to
materiality, true and correct in all material respects) as of such earlier date.



     (b) No Default or Event of Default shall exist or would result from the making of such
proposed Credit Extension.



     (c) The Administrative Agent and, if applicable, the applicable Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with the requirements
hereof. Each Request for Credit Extension (other than a Borrowing Notice requesting only a
conversion of Loans to the other Type or a continuation of Eurodollar Loans for an additional
Interest Period) submitted by the Borrower shall be deemed to be a representation and warranty that
the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied on and as of the date
of the applicable Credit Extension.



ARTICLE V




AFFIRMATIVE COVENANTS



     The Borrower hereby covenants and agrees that on and after the Effective Date and until the
principal of and interest on each Loan and all fees and other amounts due and payable hereunder or
under any other Loan Document have been paid in full, all Commitments have terminated and no L/C
Obligations are outstanding (other than unasserted contingent indemnification obligations not due
and
payable or unless arrangements reasonably satisfactory to the Issuer have been made to
eliminate the Issuer’s credit risk with respect to such L/C Obligations):



     SECTION 5.01. Financial Information, Reports, Notices, etc.



     The Borrower will furnish, or will cause to be furnished, to the Administrative Agent (for
distribution to each Lender) copies of the following financial statements, reports, notices and
information:



     (a) within 45 days (or such shorter period for the filing of the Borrower’s Form 10-Q as may
be required by the SEC) after the end of each of the first three Fiscal Quarters of each Fiscal
Year commencing with the Fiscal Quarter ending March 31, 2010, a consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as of the end of such Fiscal Quarter and consolidated
statements



93-93-

 









 







of earnings, stockholders’ equity and cash flows of the Borrower and its Restricted
Subsidiaries for such Fiscal Quarter and for the same period in the prior Fiscal Year and for the
period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, certified by a Financial Officer of the Borrower as fairly presenting, in all material
respects, the financial position, results of operations and cash flows of the Borrower and its
Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in
accordance with GAAP consistently applied (subject to normal year-end audit adjustments and the
absence of notes), it being understood and agreed that the delivery of the Borrower’s Form 10-Q (as
filed with the SEC), if certified as required in this Section 5.01(a), shall satisfy the
requirements set forth in this clause to the extent such Form 10-Q includes the information
specified in this clause, together with a certificate from a Financial Officer of the Borrower on
behalf of the Borrower (a “Compliance Certificate”) containing a computation in reasonable
detail of, and showing compliance with, each of the financial
ratiosratio and restrictions contained in the
Financial CovenantsCovenant and setting forth a
calculation of the Total Net Leverage Ratio and to the effect that, in making the examination
necessary for the signing of such certificate, such Financial Officer has not become aware of any
Default or Event of Default that has occurred and is continuing, or, if such Financial Officer has
become aware of such Default or Event of Default, describing such Default or Event of Default and
the steps, if any, being taken to cure it;



     (b) within 90 days (or such shorter period as may be required for the filing of the Borrower’s
Form 10-K by the SEC) after the end of each Fiscal Year of the Borrower, commencing with the Fiscal
Year ending December 31, 2010, a copy of the annual audit report for such Fiscal Year for the
Borrower, including therein a consolidated balance sheet of the Borrower and its Restricted
Subsidiaries as of the end of such Fiscal Year and consolidated statements of earnings,
stockholders’ equity and cash flows of the Borrower and its Restricted Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion (without any Impermissible Qualification) of Deloitte
& Touche LLP or other independent public accountants of recognized national standing selected by
the Borrower and reasonably acceptable to the Administrative Agent, stating that such financial
statements fairly present, in all material respects, the consolidated financial condition, results
of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and
for the periods specified on a consolidated basis in accordance with GAAP (it being understood and
agreed that the delivery of the Borrower’s Form 10-K (as filed with the SEC) shall satisfy such
delivery requirement in this clause to the extent such Form 10-K includes the information and
opinion specified in this clause), together with a Compliance Certificate and a calculation of
Excess Cash Flow for such Fiscal Year, unless the Excess Cash Flow Percentage is 0%,
and a certificate of the accounting firm that delivered its opinion with respect to such
financial statements stating whether they obtained knowledge during the course of their examination
of such financial statements of any Event of Default under any of the
Financial CovenantsCovenant and, if in the
opinion of such accounting firm
such an Event of Default has occurred, identifying such Event of Default (which certificate
may be limited to the extent required by accounting rules or guidelines); provided that,
for any period, the Borrower shall not be required to deliver such certificate if the Borrower
certifies to the Administrative Agent that its is unable to do so following the use of commercially
reasonable efforts;



     (c) no later than February 28 of each Fiscal Year of the Borrower, commencing with the Fiscal
Year beginning January 1, 2011, a detailed consolidated budget by Fiscal Quarter for such Fiscal
Year (including a projected consolidated balance sheet and related statements of projected
operations and cash flows as of the end of and for each Fiscal Quarter during such Fiscal Year) and
the next two succeeding Fiscal Years and, promptly when available, any significant revisions of
such budgets;



     (d) promptly upon receipt thereof, copies of all final material reports submitted to the
Borrower by independent public accountants (except to the extent that would violate any
confidentiality provision not waiveable by the Borrower) in connection with each annual, interim or
special audit of the



94-94-

 









 







books of the Borrower or any of its Restricted Subsidiaries made by such
accountants, including any final management letters submitted by such accountants to management in
connection with their annual audit;



     (e) as soon as possible and in any event within five Business Days after becoming aware of the
occurrence of any Default or Event of Default, a statement of a Financial Officer of the Borrower
on behalf of the Borrower setting forth details of such Default or Event of Default and the action
(if any) which the Borrower and it Subsidiaries have taken or propose to take with respect thereto;



     (f) promptly and in any event within five Business Days after obtaining knowledge of (i) the
occurrence of any adverse development with respect to any litigation, action or proceeding that,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or
(ii) the commencement of any litigation, action or proceeding that could reasonably be expected to
have a Material Adverse Effect or that purports to affect the legality, validity or enforceability
of this Agreement or any other Loan Document or the transactions contemplated hereby or thereby,
notice thereof and, upon the request of the Administrative Agent, copies of all material
documentation relating thereto;



     (g) promptly after the sending or filing thereof, copies of all reports which the Borrower
sends to any of its security holders (in their capacity as such) or any trustee, agent or other
representative therefor, and all reports, registration statements (other than on Form S-8 or any
successor form) or other materials (including affidavits with respect to reports) which the
Borrower or any of its Subsidiaries files with the SEC or any national securities exchange;



     (h) promptly upon becoming aware of the taking of any specific actions by the Borrower or any
other Person to terminate any Pension Plan (other than a termination pursuant to Section 4041(b) of
ERISA which can be completed without the Borrower or any Restricted Subsidiary having to provide
more than $10.0 million in addition to the normal contribution required for the plan year in which
termination occurs to make such Pension Plan sufficient), or the occurrence of an ERISA Event which
would result in a Lien on the assets of the Borrower or any Restricted Subsidiary or in the
incurrence by the Borrower or any Restricted Subsidiary of any payment obligations, fine or penalty
which could reasonably be expected to have a Material Adverse Effect, notice thereof and copies of
all documentation relating thereto;



     (i) upon request by the Administrative Agent, copies of: (i) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by the Borrower or any
Restricted Subsidiary or ERISA Affiliate with the Internal Revenue Service with respect to each
Pension Plan; (ii) the most recent actuarial valuation report for each Pension Plan and each
Foreign Plan for which a report is prepared; (iii) all notices received by the Borrower or any
Restricted Subsidiary or ERISA Affiliate from
a Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event; and (iv)
such other documents or governmental reports or filings relating to any Pension Plan, Multiemployer
Plan (to the extent a Loan Party possesses such document, report or filing) or Foreign Plan as the
Administrative Agent shall reasonably request;



     (j) promptly and in any event within ten Business Days after obtaining knowledge thereof,
notice of any other development that has resulted in or could reasonably be expected to have a
Material Adverse Effect;



     (k) such other information respecting the condition or operations, financial or otherwise, of
the Borrower or any of its Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request; and




95-95-

 












 





     (l) upon becoming aware of any newly arising environmental matters, facts or conditions
affecting any property or facilities owned or operated by the Borrower or any of its Restricted
Subsidiaries, or which relate to any Environmental Liabilities of the Borrower or any of its
Restricted Subsidiaries, to the extent reflecting any matters which, in any such case, could
reasonably be expected to result in a new Environmental Liability (or an increase in an existing
Environmental Liability) in excess of $10.0 million, notify the Administrative Agent within five
Business Days after becoming aware of such environmental matters and any Remedial Actions or other
corrective actions of the Borrower or any of its Restricted Subsidiaries in respect thereof.



     Documents required to be delivered pursuant to Sections 5.01(a) and (b) may be delivered
electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on
which the Borrower posts such documents, or provides a link thereto on the website on the Internet
at the Borrower’s website address listed in Section 9.01(a); (ii) on which such documents are
posted on the Borrower’s behalf on IntraLinksTM or a substantially similar electronic platform
chosen by the Administrative Agent to be its electronic transmission system to which each Lender
and the Administrative Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); or (iii) on which such documents are available via the
EDGAR system of the SEC on the internet; provided that the Borrower shall notify (which may
be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents
and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic
mail electronic versions (i.e., soft copies) of such documents.



     SECTION 5.02. Compliance with Laws, etc. The Borrower will, and will cause each of its Restricted Subsidiaries to, comply in all
respects with all Requirements of Law, except where such noncompliance, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect, such compliance to
include, subject to the foregoing and except as permitted by Section 6.03, the maintenance and
preservation of their and their respective Restricted Subsidiaries’ existence and their
qualification as a foreign corporation, limited liability company or partnership (or comparable
foreign qualification, if applicable, in the case of any other form of legal entity).



     SECTION 5.03. Maintenance of Properties. The Borrower will, and will cause each of its Restricted Subsidiaries to, maintain,
preserve, protect and keep its material properties and assets in good repair, working order and
condition (ordinary wear and tear and loss from casualty or condemnation excepted), and make
necessary repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all
times; provided that nothing in this Section 5.03 shall prevent the Borrower from
discontinuing the operation and maintenance of any of its properties or any portion thereof or any
of those of its Restricted Subsidiaries if such discontinuance is, in the reasonable commercial
judgment of the Borrower, desirable in the conduct of its or their business and could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.



     SECTION 5.04. Insurance. The Borrower will, and will cause each of its Restricted Subsidiaries to, maintain or cause
to be maintained with financially sound and reputable insurance companies (a) insurance with
respect to their properties material to the business of the Borrower and its respective Restricted
Subsidiaries against such casualties and contingencies and of such types and in such amounts with
such deductibles as is customary in the case of similar businesses of similar size operating in the
same or similar locations (and, in any



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event, shall maintain (i) physical hazard insurance on an
“all risk” basis, (ii) commercial general liability against claims for bodily injury, death or
property damage, (iii) explosion insurance in respect of any boilers, machinery or similar
apparatus constituting Collateral, (iv) business interruption insurance, (v) worker’s compensation
insurance as may be required by any Requirement of Law, (vi) if any portion of any Mortgaged
Property is at any time located in an area identified by the Federal Emergency Management Agency
(or any successor agency) as a special flood hazard area with respect to which flood insurance has
been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect
or successor act thereto), then the Borrower shall, or shall cause each Loan Party to (i) maintain,
or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an
amount and otherwise sufficient to comply with all applicable rules and regulations promulgated
pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such
compliance in form and substance reasonably acceptable to the Administrative Agent and (vii) such
other insurance as is customary in the case of similar businesses of similar size and nature
operating in the same or similar locations) and (b) all insurance required to be maintained
pursuant to the Security Documents, and will, upon reasonable request of the Administrative Agent
or the Collateral Agent (excluding any such requests during the continuation of an Event of
Default, not more than once per year), furnish to the Administrative Agent and the Collateral Agent
(x) at reasonable intervals a certificate of insurance. Each such insurance policy shall (i)
provide that it may not be cancelled or otherwise terminated, or have the coverage thereunder
materially reduced or otherwise materially modified without at least thirty days’ prior written
notice to the Collateral Agent (and to the extent any such policy is cancelled, modified or
renewed, the Borrower shall deliver a copy of the renewal or replacement policy (or other evidence
thereof) to the Administrative Agent and the Collateral Agent, or an insurance certificate with
respect thereto, together, if requested, with evidence reasonably satisfactory to the
Administrative Agent and Collateral Agent of the payment of the premium therefor); (ii) to the
extent reasonably requested by the Collateral Agent, provide that the Collateral Agent and the
Administrative Agent are permitted to pay any premium therefor within thirty days after receipt of
any notice stating that such premium has not been paid when due; and (iii) name the Collateral
Agent, on behalf of the Secured Parties, as a mortgagee (in the case of property insurance) or an
additional insured (in the case of liability insurance) or a loss payee (in the case of property
insurance), as applicable. Notwithstanding the inclusion in any insurance policy of the provision
described in clause (ii) of the immediately preceding sentence, in the event the Borrower gives the
Collateral Agent written notice that it (or the relevant Restricted Subsidiary) does not intend to
pay any premium relating to any insurance policy when due, the Collateral Agent shall not exercise
its right to pay such premium so long as the Borrower delivers to the Collateral Agent a
replacement insurance policy or insurance certificate evidencing that such replacement policy or
certificate provides the same insurance coverage required under this Section 5.04 as the policy
being replaced by the Borrower (or the relevant Restricted Subsidiary) with no lapse in such
coverage.




     SECTION 5.05. Books and Records; Visitation Rights; Lender Meetings. The Borrower will, and will cause each of its Restricted Subsidiaries to, keep books and
records which accurately reflect its business affairs in all material respects and material
transactions and permit the Administrative Agent or its representatives, at reasonable times and
intervals and upon reasonable notice, to visit all of its offices, to discuss its financial matters
with its officers, employees and independent public accountants and, upon the reasonable request of
the Administrative Agent, to examine (and, at the expense of the Borrower, photocopy extracts from)
any of its books or other organizational records.



     SECTION 5.06. Environmental Covenant. The Borrower will, and will cause each of its Restricted Subsidiaries to:



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     (a) use and operate all of its facilities and properties in compliance with all applicable
Environmental Laws except for such noncompliance which could not reasonably be expected to have a
Material Adverse Effect and handle all Hazardous Materials in compliance with all applicable
Environmental Laws, except for any noncompliance that could not reasonably be expected to have a
Material Adverse Effect;



     (b) promptly notify the Administrative Agent in accordance with Section 5.01 and provide
copies of all written inquiries, claims, complaints or notices from any Person relating to the
environmental condition of its facilities and properties or compliance with or liability under any
Environmental Law, the subject matter of which could reasonably be expected to have a Material
Adverse Effect;



     (c) in the event of the presence of any Hazardous Material on any Mortgaged Property which is
in violation of any Environmental Law or which could reasonably be expected to result in
Environmental Liability which violation or Environmental Liability could reasonably be expected to
have a Material Adverse Effect, upon discovery thereof, take reasonable necessary steps to initiate
and expeditiously complete all response, corrective or other action to mitigate any such Material
Adverse Effect in accordance with and to the extent required by applicable Environmental Laws, and
promptly notify the Administrative Agent and keep the Administrative Agent reasonably informed of
its actions;



     (d) at the written request of the Administrative Agent or the Requisite Lenders, which request
shall specify in reasonable detail the basis therefor, provide, at the Borrower’s sole reasonable
cost and expense, an environmental site assessment report concerning any Mortgaged Property now or
hereafter owned or leased by such Loan Party or any of its respective Restricted Subsidiaries,
prepared by an environmental consulting firm reasonably acceptable to the Administrative Agent,
reasonable in scope and substance based upon the circumstances of such request; provided
that such request may be made only if there has occurred and is continuing an Event of Default; and



     (e) provide such information which the Administrative Agent may reasonably request from time
to time to evidence compliance with this Section 5.06.


If the Borrower or any Restricted Subsidiary fails to undertake the actions described in Sections
5.06(c) and 5.06(d) reasonably promptly, and in any event within 180 days after notice of such
violation was received or after such request was made, the Administrative Agent may undertake such
actions, and the Borrower will grant and hereby grants, and will cause each such Restricted
Subsidiary to grant, the Administrative Agent and the Requisite Lenders and their respective agents
reasonable access to such Mortgaged Property and the Borrower specifically grants, and will cause
each such other Restricted
Subsidiary to grant, the Administrative Agent and the Requisite Lenders a non-exclusive license,
subject to the rights of tenants, acting reasonably and cost-effectively, to perform such actions,
all at the Borrower’s sole reasonable cost and expense.




     SECTION 5.07. Information Regarding Collateral.



     (a) The Borrower will not, and will cause each of the other Loan Parties not to, effect any
change (i) in such Loan Party’s legal name, (ii) in the location of any Loan Party’s chief
executive office, its principal place of business or any office in which it maintains material
books or records relating to Collateral owned by it (including the establishment of any such new
office), (iii) in any Loan Party’s identity or organizational structure, (iv) in any Loan Party’s
Federal Taxpayer Identification Number or organizational identification number or (v) in any Loan
Party’s jurisdiction of organization (in each case,



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including by merging with or into any other
entity, reorganizing, dissolving, liquidating, reorganizing or organizing in any other
jurisdiction) unless (A) it shall have given the Administrative Agent and the Collateral Agent at
least five days’ prior written notice (or such lesser notice period as may be agreed to by the
Administrative Agent in its sole discretion) of its intention so to do, clearly describing such
change and providing such other information in connection therewith as the Collateral Agent or the
Administrative Agent may reasonably request and (B) it shall have taken all action reasonably
necessary to maintain the perfection and priority of the security interest of the Collateral Agent
for the benefit of the Secured Parties in the Collateral following such change, if applicable.




     (b) Each year, at the time of delivery of annual financial statements with respect to the
preceding Fiscal Year pursuant to Section 5.01(b), the Borrower shall deliver to the Administrative
Agent a certificate of a Financial Officer of the Borrower setting forth the information required
pursuant to Sections 1(a) and 8 of each Perfection Certificate or confirming that there has been no
change in such information since the date of such Perfection Certificate delivered on the Effective
Date or the date of the most recent certificate delivered pursuant to this Section.



     SECTION 5.08. Existence; Conduct of Business. The Borrower will, and will cause each of its Restricted Subsidiaries to, do or cause to be
done all things reasonably necessary to maintain, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents, registered
copyrights, trademarks and trade names in the normal conduct of its business, except to the extent
that the failure to do so could not reasonably be expected to have a Material Adverse Effect;
provided that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03, or any Asset Sale permitted under Sections 6.05 or 6.06.



     SECTION 5.09. Performance of Obligations. The Borrower will, and will cause each of its Restricted Subsidiaries to, perform all of
its obligations under the terms of each material mortgage, indenture, security agreement, other
debt instrument (including under all Material Indebtedness) and material contract by which it is
bound or to which it is a party except for such noncompliance as in the aggregate could not
reasonably be expected to have a Material Adverse Effect.



     SECTION 5.10. Casualty and Condemnation. The Borrower will, and will cause each of its Restricted Subsidiaries to, (a) furnish to
the Administrative Agent prompt written notice of any casualty or other insured damage to any
Collateral in an amount in excess of $7.5 million or the commencement of any action or proceeding
for the Taking of any Collateral or any part thereof in an amount in excess of $7.5 million or
interest therein under power of eminent domain or by condemnation or similar proceeding and (b)
ensure that the Net Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are applied in accordance with the applicable provisions of this
Agreement and the Security Documents.



     SECTION 5.11. Pledge of Additional Collateral. Subject to any applicable exceptions set forth in the Security Documents, within 60 days
(or such longer periods as set forth in the applicable Security Documents or as may be agreed to by
the Administrative Agent from time to time in its reasonable discretion) after the acquisition of
assets of the type that would have on the Effective Date constituted Collateral under the Security
Documents (but in any event excluding Equity Interests of Excluded Joint Ventures acquired by any
Loan Party and assets of



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 an Excluded Subsidiary) (the “Additional
Collateral”), the Borrower will, and will cause the Subsidiary Guarantors to (i) take all
action that may be required under any applicable law, or that the Collateral Agent (or the
Collateral Agent acting at the direction of the Requisite Lenders) may reasonably request
(including the authorization of appropriate financing statements and other filings under the
provisions of the UCC and other applicable domestic, local or foreign laws, rules or regulations,
in each of the offices where such filing is necessary or appropriate, or amending or, with respect
to creation or acquisition of a new Restricted Subsidiary (other than any Excluded Subsidiary)
after the Effective Date, entering into or amending (to add such acquired assets or such new
Restricted Subsidiary as a party to extent required hereunder), the Guarantee Agreement, the
Non-U.S. Guarantee Agreements and the Security Documents, or in the case of the Equity Interests of
a Non-U.S. Restricted Subsidiary that is a Subsidiary Guarantor or “first tier” Non-U.S. Restricted
Subsidiary (other than any Excluded Subsidiary described in clauses (a), (b), (e), (f) and (g) of
the definition thereof), entering into a Non-U.S. Pledge Agreement (upon the request of the
Administrative Agent) providing for the Collateral Agent to have, for the benefit of the Secured
Parties, an enforceable and perfected security interest in 65% (or such greater percentage as could
not, in the good faith judgment of the Borrower, reasonably be expected to have adverse tax
consequences to the Borrower or its Restricted Subsidiaries) of the Equity Interests in such
Subsidiary), (ii) grant to the Collateral Agent, for the benefit of the Secured Parties, perfected
Liens (subject to no Liens other than Permitted Liens) in such Additional Collateral pursuant to,
and with the priority required by, the Security Documents and this Agreement (including, to the
extent reasonably requested by the Administrative Agent, delivery of an opinion in form reasonably
acceptable to the Administrative Agent) and otherwise reasonably acceptable in form and substance
to the Collateral Agent and (iii) with respect to Mortgages, satisfy the conditions set forth in
Section 5.16(b)). Notwithstanding the foregoing or anything contained in the Security Documents,
no Loan Party shall be required to pledge the Equity Interests in (i) Solutia UK Holdings Ltd. or
(ii) Solutia Netherlands Holdings B.V or enter into a foreign law pledge agreement with respect to
the Equity Interests of Solchem Netherlands C.V or any Non-U.S Restricted Subsidiary that is not a
Material Non-U.S. Restricted Subsidiary. In the event that any Loan Party acquires a fee interest
in additional Real Property located in the United States after the Effective Date (other than Real
Property subject to a Lien permitted by Section 6.02(ii) or (vi) which prohibits the granting of a
Lien thereon to the Collateral Agent) and the fair market value of such acquired Real Property is
in excess of $5.0 million as determined in good faith by the Borrower, the Borrower shall, and
shall cause the Subsidiary Guarantors to take such actions and execute such documents as the
Collateral Agent shall require to create a new Mortgage (including satisfaction of the conditions
set forth in clause (c) of Section 5.16 (unless, with respect to any such Real Property, the
Administrative Agent determines, in its reasonable discretion, that the fees and expenses of
obtaining a Mortgage with respect to
such Real Property and the other related deliveries required by this Section 5.11 would be
disproportionate to the expected benefits to the Secured Parties of the security to be afforded
thereby).




     SECTION 5.12. Further Assurances. The Borrower will, and will cause each of its Restricted Subsidiaries to, execute any and
all further documents, financing statements, agreements and instruments, and take all such further
actions (including the authorization of filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents and, to the extent reasonably requested by
the Administrative Agent, the delivery of appropriate opinions of counsel), which may be required
under any applicable law, or which the Administrative Agent, the Collateral Agent or the Requisite
Lenders may reasonably request, to effectuate the transactions contemplated by the Loan Documents
or to grant, preserve, protect or perfect the Liens created by the Security Documents or the
validity or priority of any such Lien, all at the reasonable expense of the Loan Parties. Upon the
exercise by the Administrative Agent, the Collateral Agent or any Lender of any power, right,
privilege or remedy pursuant to any Loan Document that requires any consent, approval,
registration, qualification or authorization of any Governmental



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Authority, the Borrower will, and
will cause each of its Restricted Subsidiaries to, execute and deliver all applications,
certifications, instruments and other documents and papers that the Administrative Agent, the
Collateral Agent or such Lender may reasonably require in connection therewith. If the
Administrative Agent, the Collateral Agent or the Requisite Lenders reasonably determine that they
are required by a Requirement of Law to have additional appraisals prepared in respect of the Real
Property of any Loan Party constituting Collateral, the Borrower shall provide to the
Administrative Agent and the Collateral Agent appraisals that satisfy the applicable requirements
of the Real Estate Appraisal Reform Amendments of FIRREA (or other applicable Requirements of Law)
and are otherwise in form reasonably satisfactory to the Administrative Agent and the Collateral
Agent.




     SECTION 5.13. Use of Proceeds. On the Effective Date, the proceeds of this Agreement shall be used to consummate the
Refinancing and to pay any fees and expenses related to the Refinancing. Thereafter, the proceeds
of this Agreement shall be used for working capital including the issuance of Letters of Credit,
capital expenditures, and for general corporate purposes not in contravention of any Law or of any
Loan Document. In no event shall the proceeds of any Loan or Letter of Credit be used directly or
indirectly for purposes of acquiring or carrying any margin stock (within the meaning of Regulation
U of the FRB) in violation of Regulation U.



     SECTION 5.14. Payment of Taxes and Claims. The Borrower will, and will cause each of its Restricted Subsidiaries to, (a) pay and
discharge all material Taxes imposed upon it or upon its income or profits, or upon any Properties
belonging to it, prior to the date on which penalties attach thereto, and all lawful claims for
labor, services, materials and supplies or otherwise that, if unpaid, might become a Lien (other
than a Permitted Lien) or charge upon any Properties of the Borrower or any of its Restricted
Subsidiaries or cause a failure or forfeiture of title thereto; provided that neither the
Borrower nor any of its Restricted Subsidiaries shall be required to pay any such Tax or claim that
is being contested in good faith and by proper proceedings diligently conducted, which proceedings
have the effect of preventing the forfeiture or sale of the Property or asset that may become
subject to such Lien (other than a Permitted Lien), if it has maintained adequate reserves with
respect thereto in accordance with and to the extent required under GAAP and such failure to pay
could not reasonably be expected to have a Material Adverse Effect; and (b) timely file all
material Tax Returns required to be filed by it, and withhold, collect and remit all material Taxes
that it is required to collect, withhold or remit.



     SECTION 5.15. Additional Guarantors. In the event that any Subsidiary (other than any Excluded Subsidiary) of the Borrower
existing on the Effective Date has not previously executed the Guarantee Agreement or in the event
that any Person becomes a Subsidiary (other than any Excluded Subsidiary) of the Borrower after the
Effective Date, the Borrower will promptly notify the Administrative Agent of that fact and cause
such Subsidiary to, (i) within 30 days of becoming a Subsidiary (or ceasing to be an Excluded
Subsidiary, as applicable)(or such longer period of time as may reasonably be agreed by the
Collateral Agent), execute and deliver to the Administrative Agent a counterpart of the Guarantee
Agreement (or a Non-U.S. Guarantee Agreement, as applicable) and deliver to the Collateral Agent
counterparts of Security Documents and to take all such further actions and execute all such
further documents and instruments (including actions, documents and certificates) as may be
necessary in the reasonable opinion of the Collateral Agent to create in favor of the Collateral
Agent, for the benefit of the Secured Parties, valid and perfected Liens on all of the Property
(but specifically excluding any Real Property with a fair market value of $5.0 million or less) of
such Subsidiary described in the applicable forms of the Security



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Documents, subject to no Liens
other than Permitted Liens, and (ii) in the case of a Non-U.S. Restricted Subsidiary which is a
Subsidiary Guarantor, provide the Administrative Agent with evidence of the acceptance by a process
agent as shall be reasonably approved by the Administrative Agent of its appointment as process
agent by such Subsidiary.




     SECTION 5.16. Post-Closing Covenants.



     (a) The Borrower will, and will cause its Restricted Subsidiaries to, execute and deliver the
documents and complete the tasks set forth on Schedule 5.16(a), in each case within the
respective time periods specified on such schedule (or within such longer periods as may be agreed
to by the Administrative Agent in its sole discretion).



     (b) The Collateral Agent shall have received the following documents and instruments (or the
Borrower shall have performed each of the items below, as the case may be) in respect of each of
the Mortgaged Properties identified on Schedule 5.16(b) within 60 days of the Effective
Date (or within such longer periods as may be agreed to by the Administrative Agent in its sole
discretion):




     (A) a Mortgage encumbering each of the same in favor of the Collateral Agent, for the
benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that holds
any direct interest in such Mortgaged Property, and otherwise in form for recording in the
applicable office of each political subdivision where each such Mortgaged Property is
situated, together with such certificates, affidavits, questionnaires or returns as shall be
required in connection with the recording or filing thereof to create a lien under
applicable Requirements of Law, in favor of the Collateral Agent for the benefit of the
Secured Parties, and such financing statements and any other instruments as are contemplated
by the counsel opinions described in Section 5.16(b)(F) in respect of such Mortgages and any
other instruments necessary to grant a mortgage lien under the laws of any applicable
jurisdiction, all of which shall be in form and substance reasonably satisfactory to the
Collateral Agent, which Mortgages and financing statements and other instruments shall when
recorded be effective to create Liens on such Mortgaged Property subject to no other Liens
other than Permitted Liens;




     (B) Borrower shall have used its commercially reasonable efforts to obtain such
consents, approvals, amendments, supplements, tenant subordination agreements or other
instruments set forth on Schedule 5.16(b), in form reasonably satisfactory to the
Collateral Agent,
as necessary to consummate the transactions contemplated hereby in order for the owner
or holder of the fee interest constituting such Mortgaged Property to grant the Liens
contemplated by the Mortgages with respect to such Mortgaged Property;




     (C) with respect to each Mortgage of property located in the United States or, to the
extent reasonably requested by the Collateral Agent, any other jurisdictions, a policy of
title insurance (or marked title commitment having the effect of a title insurance policy)
insuring the Lien of such Mortgage as a valid perfected mortgage lien on the real property
and fixtures described therein in favor of the Collateral Agent for the benefit of the
Secured Parties in an amount equal to not less than 115% of the fair market value of such
real property and fixtures (which fair market value is set forth on Schedule
5.16(b)), which policies (or marked commitments having the effect of title insurance
policies) (each, a “Title Policy”) shall (v) be issued by the Title Company, (w) to
the extent necessary, include such reinsurance arrangements (with provisions for direct
access) as shall be reasonably acceptable to the Collateral Agent, (x) contain a “tie-in” or
“cluster” endorsement (if available under applicable law) (i.e., policies which



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insure against losses regardless of location or allocated value of the insured property up
to a stated maximum coverage amount), (y) have been supplemented by such endorsements as
shall be reasonably requested by the Collateral Agent (including, if available in the
applicable jurisdiction, endorsements on matters relating to usury, first loss, last dollar,
zoning, contiguity, variable rate, revolving credit, doing business, access, survey,
address, environmental lien, mortgage recording tax, subdivision, separate tax lot,
non-imputation and so-called comprehensive coverage over covenants and restrictions (but
specifically excluding creditor’s rights)) and (z) contain only such exceptions to title as
shall be reasonably acceptable to the Collateral Agent, it being understood that, in each
case, such Title Policy shall not include any standard survey exceptions;




     (D) to the extent not previously delivered to the Collateral Agent, policies or
certificates of insurance as required hereby (including, without limitation, flood insurance
policies) or by the Mortgage relating thereto, which policies or certificates shall comply
with the insurance requirements contained herein or in such Mortgage;




     (E) Customary written opinions of local counsel to the Loan Parties in each of the
jurisdictions where Mortgaged Properties are situated, which opinions (x) shall be addressed
to each Agent and the Lenders and be dated the date of the Mortgages, (y) shall cover the
enforceability of the respective Mortgages and perfections of the Liens and security
interests granted pursuant to the relevant Mortgages and such other matters incident to the
transactions contemplated herein as the Administrative Agent may reasonably request and (z)
shall be customary in form, scope and substance in the jurisdiction of the relevant counsel.




     (F) to the extent available, environmental reports, including Phase I reports, in form
and substance reasonably satisfactory to the Collateral Agent;




     (G) zoning compliance reports or other evidence reasonable satisfactory to the
Collateral Agent and which is sufficient for the Title Company to issue a zoning endorsement
for each Mortgaged Property as required by Section 5.16(b)(C);




     (H) such affidavits, certificates, information and instruments of indemnification
(including a so-called “gap” indemnification) as shall be required to induce the Title
Company to issue the Title Policy or Title Policies and endorsements contemplated in
subparagraph (C) above;




     (I) evidence acceptable to the Collateral Agent of payment by the appropriate Loan
Party of all applicable Title Policy premiums, search and examination charges, survey costs,
if any and related charges, mortgage recording taxes, fees, charges, costs and expenses
required for the recording of the Mortgages and issuance of the Title Policies referred to
in subparagraph (C) above;




     (J) copies of all Material Leases or other agreements relating to the Mortgaged
Property where the aggregate annual rent, as of the Effective Date, with respect to such
Property is in excess of $2.0 million per year; and




     (K) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood
Hazard Determination with respect to each Mortgaged Property located in the United States
(together with a notice about special flood hazard area status and flood disaster assistance
duly executed by the Borrower and each Loan Party relating thereto).



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     SECTION 5.17. Designation of Subsidiaries. The Borrower may designate any Restricted Subsidiary as an Unrestricted Subsidiary or any
Unrestricted Subsidiary as a Restricted Subsidiary upon prior written notice to the Administrative
Agent; provided that (i) immediately before and after such designation, no Default or Event
of Default shall have occurred and be continuing, (ii) immediately after giving effect to such
designation, the Borrower shall be in compliance, on a Pro Forma Basis, with the
covenantscovenant set forth in Section
6.12 and 6.13 as at the date of the last ended Test Period (it being
understood that as a condition precedent to the effectiveness of any such designation, the Borrower
shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrower
setting forth in reasonable detail the calculations demonstrating such compliance), (iii) no
Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” (or
any other defined term having a similar purpose) for the purpose of any Subordinated Debt Documents
(unless concurrently designated as an Unrestricted Subsidiary under such documents as well), (iv)
no Restricted Subsidiary may be designated an Unrestricted Subsidiary if it was previously
designated an Unrestricted Subsidiary, (v) no Restricted Subsidiary may be designated an
Unrestricted Subsidiary if it owns any Equity Interests of, or holds any Indebtedness of, any other
Restricted Subsidiary, (vi) if a Restricted Subsidiary is being designated as an Unrestricted
Subsidiary hereunder, the sum of (A) the net tangible assets of such Subsidiary as of such date of
designation (the “Designation Date”), as set forth on such Subsidiary’s most recent balance
sheet, plus (B) the aggregate amount of net tangible assets of all Unrestricted
Subsidiaries designated as Unrestricted Subsidiaries pursuant to this Section 5.17 prior to the
Designation Date (in each case measured as of the date of each such Unrestricted Subsidiary’s
designation as an Unrestricted Subsidiary) shall not exceed (i) 5.0% of Consolidated Net Tangible
Assets at such date or (ii) 5.0% of Consolidated EBITDA for the period of four Fiscal Quarters most
recently ended for which financial statements have been or are required to have been delivered
pursuant to Sections 4.01(h), 5.01(a) or 5.01(b), as applicable, as of such Designation Date, in
each case, pro forma for such designation, and (vii) the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer of the Borrower on behalf of the Borrower
certifying compliance with the provisions of this Section 5.17 setting forth in reasonable detail
the computations necessary to determine such compliance. The designation of any Subsidiary as an
Unrestricted Subsidiary after the Effective Date shall constitute an Investment by the Borrower and
its Restricted Subsidiaries, as applicable, therein at the Designation Date in an amount equal to
the net book value of the applicable parties’ investment therein. The designation of any
Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time
of designation of all Investments, Indebtedness and Liens of such Subsidiary existing at such time
and (ii) a return on any Investment by the Borrower or any Restricted Subsidiary in Unrestricted
Subsidiaries
pursuant to the preceding sentence in an amount equal to the fair market value at the date of
such designation of the Borrower’s and its Restricted Subsidiaries’ (as applicable) Investment in
such Subsidiary. On or promptly after the date of its formation, acquisition, designation or
re-designation, as applicable, each Unrestricted Subsidiary (other than an Unrestricted Subsidiary
that is a Non-U.S. Subsidiary) shall have entered into a tax sharing agreement containing terms
that, in the reasonable judgment of the Administrative Agent, provide for an appropriate allocation
of tax liabilities and benefits.



ARTICLE VI




NEGATIVE COVENANTS



     The Borrower hereby covenants and agrees that on and after the Effective Date and until the
principal of and interest on each Loan and all fees and other amounts due and payable hereunder or
under any other Loan Document have been paid in full, all Commitments have terminated and no L/C
Obligations are outstanding (other than unasserted contingent indemnification obligations not due
and



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payable or unless arrangements reasonably satisfactory to the Issuer have been made to
eliminate the Issuer’s credit risk with respect to such L/C Obligations):




     SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, create,
issue, incur, assume or permit to exist (including by way of Guarantee) any Indebtedness, except:




     (i) Indebtedness incurred and outstanding under this Agreement and the other Loan
Documents;




     (ii) Indebtedness outstanding on the Effective Date and set forth on Schedule
6.01(ii) and any Permitted Refinancing thereof;




     (iii) Indebtedness of the Borrower and the Subsidiary Guarantors in respect of
Refinancing Notes and any Permitted Refinancing thereof;




     (iv) Indebtedness of (x) Borrower to any Subsidiary of Borrower, (y) any Subsidiary
Guarantor to Borrower or any Subsidiary of Borrower, and (z) any Non-Guarantor Restricted
Subsidiary to Borrower or any Subsidiary Guarantor permitted by Section 6.04;
provided that any Indebtedness of a Loan Party to any Subsidiary that is not a Loan
Party must by its terms be subordinated to the Indebtedness incurred and outstanding under
this Agreement and the other Loans Documents;




     (v) Guarantees in respect of Indebtedness of the Borrower or any Restricted Subsidiary
otherwise permitted hereunder to the extent permitted as an Investment under Section
6.04 (other than pursuant to Section 6.04(iv); provided that
(A) if such Guaranteed Indebtedness is subordinated to the Obligations under the Loan
Documents, such Guarantee is as subordinated to the Obligations and (B) no Restricted
Subsidiary shall Guarantee any Indebtedness of the Borrower or any Subsidiary Guarantor
unless such Restricted Subsidiary is a Subsidiary Guarantor;




     (vi) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the
acquisition, lease, installation, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and purchase money Indebtedness, any
Indebtedness assumed or incurred in connection with the acquisition of any such assets or
secured by a Lien on
any such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount
thereof; provided that (A) such Indebtedness is incurred or assumed prior to or
within 270 days after such acquisition or lease or the completion of such construction,
installation or improvement, (B) the aggregate amount of such Indebtedness does not exceed
100% of the cost of such acquisition, installation, construction or improvement plus any
transaction fees and expenses related to such acquisition installations, construction or
improvements, as the case may be, and (C) the aggregate principal amount of all Indebtedness
permitted by this Section 6.01(vi) (when aggregated with all Indebtedness
outstanding under subclause (ii) below) shall not exceed $50.0 million at any one
time outstanding, and (ii) any modification, replacement, refinancing, refunding,
renewal or extension of any Indebtedness specified in subclause (i) above, provided that the
principal amount thereof does not exceed the principal amount thereof outstanding
immediately prior to such modification, replacement, refinancing, refunding, renewal or
extension except by an amount equal to any fees and expenses incurred in connection with
such modification, replacement, refinancing, refunding, renewal or extensions;



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     (vii) Indebtedness under Hedging Obligations permitted under Section
6.146.13;




     (viii) Indebtedness of the Borrower and its Restricted Subsidiaries in respect of
performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion
guarantees and similar obligations and trade related letters of
credit, bank guarantees, bankers acceptances and similar facilities in
each case issued for the account of the Borrower and its Restricted Subsidiaries in the
ordinary course of business of the Borrower and its Restricted Subsidiaries, including those
incurred to secure health, safety and environmental obligations, workers
compensation claims, health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance in the ordinary course of business of the
Borrower and its Restricted Subsidiaries (and in each case other than for an obligation for
borrowed money);




     (ix) Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary
providing for indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition or acquisition otherwise
permitted under this Agreement of any business, assets or a Subsidiary, other than
Guarantees of Indebtedness incurred by any Person (other than the Borrower or any Restricted
Subsidiaries) acquiring all or any portion of such business, assets or a Subsidiary for the
purpose of financing such acquisition;




     (x) Indebtedness of the Borrower and its Restricted Subsidiaries in respect of Treasury
Services Agreements (including Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently (except in the
case of daylight overdrafts) drawn against insufficient funds) in the ordinary course of
business of the Borrower and its Restricted Subsidiaries so long as, in the case of any cash
pooling or similar arrangements, any intercompany Investments relating thereto are otherwise
permitted under Section 6.04;




     (xi) Indebtedness of a Person existing at the time such Person becomes a Subsidiary (or
is merged into or consolidated with a Subsidiary) or Indebtedness attaching to assets that
are acquired by Borrower or a Restricted Subsidiary, in each case in connection with a
Permitted Acquisition or other Investment permitted under this Agreement, but only if such
Indebtedness
was not created or incurred in contemplation of such Person becoming a Subsidiary and
any Permitted Refinancing thereof; provided that the aggregate principal amount of
all such Indebtedness pursuant to this Section 6.01(xi) shall not exceed an aggregate of
$500.0 million at any one time outstanding;




     (xii) Indebtedness of any Non-Guarantor Restricted Subsidiary and Guarantees by any
Non-Guarantor Restricted Subsidiary in respect of such Indebtedness; provided that
(A) no Default or Event of Default shall have occurred and be continuing or would
immediately result therefrom and (B) the aggregate principal amount of all Indebtedness
pursuant to this Section 6.01(xii) shall not exceed an aggregate of
$150.0250.0 million at any one time
outstanding;




     (xiii) solely to the extent otherwise constituting Indebtedness, Permitted Guarantor
Factoring Transactions and Permitted Non-Guarantor Factoring Transactions;




     (xiv) Indebtedness of the Borrower and the Subsidiary Guarantors in respect of
Permitted Other Debt;




     (xv) Indebtedness consisting of obligations of the Borrower or its Restricted
Subsidiaries under deferred compensation or other similar arrangements incurred by such
Person



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in connection with Permitted Acquisitions or any other Investment expressly permitted
hereunder;




     (xvi) Indebtedness of any Non-Guarantor Restricted Subsidiary owing to any other
Subsidiary;




     (xvii) Indebtedness consisting of the financing of insurance premiums;




     (xviii) unsecured Indebtedness of Borrower and its Restricted Subsidiaries representing
the obligation of such Person to make payments with respect to the cancellation or
repurchase of Equity Interests and Equity Rights of current or former
officers, employees or directors (or their respective spouses, heirs,
executors, estates or similar related parties) of the
Borrower or its Subsidiaries permitted by Section 6.07;




     (xix) Indebtedness consisting of take-or-pay obligations arising under supply
agreements entered into in the ordinary course of business and not in connection with the
borrowing of money;




     (xx) Indebtedness of the Borrower and its Restricted Subsidiaries arising under Capital
Lease Obligations entered into in connection with Sale and Leaseback Transactions permitted
by Section 6.06;




     (xxi) other Indebtedness of the Borrower and its Restricted Subsidiaries in an
aggregate principal amount not to exceed $75.0(i)
$150.0 million at any one time outstanding;
and (ii) an additional $150.0 million at any one time outstanding if, on a Pro
Forma Basis after giving effect to the incurrence of such Indebtedness, the Total Leverage
Ratio would be no greater than 4.50 to 1.0;




     (xxii) intercompany notes evidencing obligations relating to Investments made pursuant
to Section 6.04(xxi) or asset dispositions made pursuant to Section 6.05(xvi) or Section
6.05(xx); provided that (A) such intercompany notes are pledged pursuant to the
Pledge Agreement in
accordance with Section 5.11 and (B) the obligations of any obligor evidenced by such
intercompany notes shall be subordinated to the Obligations on terms reasonably satisfactory
to the Administrative Agent;


provided, that if any Indebtedness meets the criteria of more than one of the types of
Indebtedness described in the clauses above, the Borrower in its sole discretion may classify such
action or event in one or more clauses (including in part under one such clause and in part under
another such clause).




     SECTION 6.02. Liens. The Borrower will not, and will not permit any of its Restricted Subsidiaries to create,
incur, assume or permit to exist any Lien on any Property or asset now owned or hereafter acquired
by them, except the following (herein collectively referred to as “Permitted Liens”):




     (i) Liens in favor of the Collateral Agent or the Administrative Agent under the
Security Documents;




     (ii) Liens securing Indebtedness permitted by Section 6.01(xi); provided that
such Liens (A) were not incurred in connection with, or in contemplation of, such
acquisition or merger and (B) do not extend to Property not subject to such Liens at the
time of such acquisition



107-107-



 







 







or merger (other than improvements thereon, accessions thereto and
proceeds thereof) or that would have been required to be subject to such Liens by
the terms thereof as in effect at the time of such acquisition or merger;




     (iii) Liens to secure the performance of statutory obligations, surety or appeal bonds
or performance bonds, self-insurance obligations and financing of insurance premiums, and
landlords’, carriers’, warehousemen’s, mechanics’, suppliers’, materialmen’s, attorney’s or
other like liens (other than any Lien imposed by ERISA), and customary Liens in favor of
customs and revenue authorities to secure payment of customs duties in connection with the
importation of goods, in any case incurred in the ordinary course of business of the
Borrower and its Restricted Subsidiaries and with respect to amounts not delinquent for more
than 30 days or being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted; provided that (A) in the case of contested amounts, a
reserve or other appropriate provision, if any, as is required by GAAP shall have been made
therefor, (B) such Liens could not reasonably be expected to have a Material Adverse Effect,
and (C) such Liens relating to surety or appeal bonds or performance bonds shall only extend
to or cover cash and Cash Equivalents;




     (iv) (A) Liens existing on the Effective Date and identified on Schedule
6.02(iv)(A) and any Lien granted as a replacement or substitute therefor;
provided that any such replacement or substitute Lien (1) except as permitted by
Section 6.01(ii), does not secure an aggregate amount of Indebtedness, if any, greater than
that secured on the Effective Date and (2) does not encumber any Property other than the
Property subject thereto on the Effective Date (other than improvements thereon, accessions
thereto and proceeds);




     (v) Liens for Taxes or governmental charges or claims or other like statutory Liens
(other than any Lien imposed by ERISA), in any case incurred in the ordinary course of
business of the Borrower and its Restricted Subsidiaries, that do not secure Indebtedness
for borrowed money and (A) that are not delinquent more than 30 days or thereafter payable
without premium or penalty or (B) are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted; provided that, if being
contested, any reserve or other appropriate provision as shall be required in conformity
with GAAP shall have been made therefor;




     (vi) Liens to secure Indebtedness (including Capital Lease Obligations and purchase
money Indebtedness) permitted by Section 6.01(vi) encumbering only the Property acquired,
installed, constructed or improved (and the procedural products thereof and accessions
thereto) with the proceeds of such Indebtedness or any refinancing, replacement,
renewal, modification or extension thereof permitted by Section 6.01(vi), provided that
individual financings of equipment provided by one lender may be cross collateralized to
other financings of equipment provided by such lender;




     (vii) (A) Liens in the form of zoning restrictions, easements, building, environmental
and other land use rules, laws and regulations which are applicable to the Real Property,
licenses, entitlements, servitudes, rights-of-way, restrictions, reservations, covenants,
conditions, utility agreements, consents, reservations, encroachments, patents, minor
imperfections of title, minor survey defects or other similar restrictions on the use of
Real Property that do not (1) secure Indebtedness (other than Indebtedness permitted under
Section 6.01) or (2) individually or in the aggregate materially impair the value or
marketability of the Real Property affected thereby or materially interfere with the
Borrower or any Restricted Subsidiary from conducting its business as currently conducted at
such Real Property or to utilize each Real Property for its intended purpose and (B) with
respect to leasehold interests in Real Property, mortgages, obligations, liens



108-108-



 







 







and other
encumbrances incurred, created, assumed or permitted to exist and arising by, through or
under a landlord or owner (other than the Borrower or any Subsidiary) of such leased
property encumbering such landlord’s or owner’s interest in such leased property;




     (viii) Liens (including in the form of pledges or deposits) securing (A) obligations
incurred in respect of workers’ compensation, unemployment insurance or other forms of
governmental insurance or benefits and other obligations of a like nature, (B) bids,
tenders, contracts (other than contracts for borrowed money) or leases to which the Borrower
or any Restricted Subsidiary is a party and (C) obligations to any utility company or other
Person in a similar line of business to that of a utility company or Governmental Authority
that is a utility company, in each case, made in the ordinary course of business of the
Borrower and its Restricted Subsidiaries for amounts (x) not yet due and payable or (y)
being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted; provided that (1) in the case of contested amounts, a reserve or other
appropriate provision, if any, as is required by GAAP shall have been made therefor, and (2)
such Liens shall in no event encumber any Collateral other than cash and Cash
Equivalents or rights, interests or receivables under or related to any such
contracts;




     (ix) Liens securing any judgments, awards, decrees or orders in circumstances not
constituting an Event of Default under Section 7.01(f);




     (x) Liens in the form of licenses, leases or subleases in respect of Real Property
granted or created by the Borrower or any Restricted Subsidiary, which licenses, leases or
subleases do not interfere, individually or in the aggregate, in any material respect with
the business of the Borrower or such Subsidiary or individually or in the aggregate
materially impair the use (for its intended purpose) or the value of the property subject
thereto, provided that, to the extent entered into after the Effective Date relating
to Mortgaged Property, such licenses, leases or subleases shall be subordinate to the Lien
granted and evidenced by the Security Documents in accordance with the provisions thereof;
and provided, further, that any such Lien shall not extend to or cover any
assets of the Borrower or any Restricted Subsidiary that is not the subject of any such
license, lease or sublease;




     (xi) Liens securing the refinancing of any Indebtedness secured by any Lien permitted
by Section 6.02(ii) or this Section 6.02(xi), in each case, without any change in the
Property subject to (or required to be subject to) such Liens and to
the extent such refinanced Indebtedness is permitted by Section 6.01(xi);




     (xii) Liens on assets of any Non-Guarantor Restricted Subsidiary securing Indebtedness
of any Non-Guarantor Restricted Subsidiary permitted by Section 6.01;




     (xiii) Liens on receivables subject to Permitted Guarantor Factoring and Permitted
Non-Guarantor Factoring Transactions securing Indebtedness in respect of such Permitted
Guarantor Factoring Transactions or Permitted Non-Guarantor Factoring Transactions permitted
by Section 6.01(xiii);




     (xiv) Liens arising from the filing of UCC financing statements (or similar filings)
solely as a precautionary measure in connection with operating leases or consignment of
goods;




     (xv) (A) bankers’ Liens, rights of setoff and other similar Liens incurred in the
ordinary course of business and existing solely with respect to cash and Cash Equivalents on
deposit in one or more accounts maintained by the Borrower and its Restricted Subsidiaries;



109-109-



 







 







provided that, unless such Liens are non-consensual and arise by operation of law,
in no case shall any such Liens secure (either directly or indirectly) the repayment of
Indebtedness; and (B) customary Liens attaching to commodity trading accounts, commodities
brokerage accounts, securities accounts and securities intermediary accounts in the ordinary
course of business;




     (xvi) Liens incurred with respect to obligations that do not in the aggregate exceed
$50.0 million at any one time outstanding;




     (xvii) Liens on goods or inventory the purchase, shipment or storage price of which is
financed by a documentary letter of credit or banker’s acceptance issued or created for the
account of the Borrower or any Restricted Subsidiary; provided that such Lien
secures only the obligations of the Borrower or such Restricted Subsidiary in respect of
such letter of credit or banker’s acceptance to the extent permitted under Section 6.01;




     (xviii) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods (including under Article 2 of the UCC) and Liens that are
contractual rights of set-off relating to purchase orders and other similar agreements
entered into by the Borrower or any of its Restricted Subsidiaries;




     (xix) Liens on insurance policies and the proceeds thereof securing the financing of
the premiums with respect thereto incurred in the ordinary course of business;




     (xx) ground leases in respect of real property on which facilities owned or leased by
the Borrower or any of its Restricted Subsidiaries are located;




     (xxi) Liens on property subject to Capital Lease Obligations entered into in connection
with Sale and Leaseback Transactions permitted by Section 6.01(xx);




     (xxii) Liens consisting of an agreement to sell or otherwise dispose of any property in
an asset sale to the extent such asset sale is (or is required to be) permitted under
Section 6.05;




     (xxiii) Liens constituting (A) licenses, sublicenses, leases or subleases
(on a non-exclusive basis with respect to any Intellectual Property)
granted in the ordinary course of business not interfering in any material
respect with the business of the Borrower or any of its Restricted Subsidiaries or
otherwise permitted under Section 6.05 and (B) customary rights reserved or
vested in any Person in the ordinary course of business by the terms of any lease, sublease,
license, sublicense, franchise, grant or permit held by Borrower or any of its Restricted
Subsidiaries or by a statutory provision, to terminate any such lease, sublease, license,
sublicense, franchise, grant or permit, or to require annual or periodic payments as a
condition to the continuance thereof;




     (xxiv) netting or set-off arrangements entered into under Indebtedness permitted by
Section 6.01(vii) where the obligations of the parties are calculated by reference to the
net exposure under such Indebtedness and pledges and deposits securing such
obligations;




     (xxv) with respect to any Restricted Subsidiary organized under the laws of Germany,
Liens created or subsisting to the extent mandatorily required under Section 8a of the
German Partial Retirement Act (Altersteilzeitgesetz) and/or Section 7d of the German
Sozialgesetzbuch IV;




110-110-



 










 






     (xxvi) Liens on the Collateral securing Refinancing Notes incurred pursuant to Section
6.01(iii) (and contemplated by the definition of “Refinancing Notes”) or securing Permitted
Other Debt incurred pursuant to Section 6.01(xiv) (and contemplated by the definition of
“Permitted Other Debt”);




     (xxvii) Liens securing intercompany notes pledged to the Collateral Agent pursuant to
the Pledge Agreement and issued by Restricted Subsidiaries of the Borrower that are not Loan
Parties ;




     (xxviii) Liens attaching to earnest money deposits (or equivalent deposits otherwise
named) made in connection with proposed acquisitions or dispositions permitted under this
agreement;




     (xxix) Liens upon specified items of inventory or other goods and proceeds of the
Borrower or an of its Subsidiaries securing such Person’s obligations in respect of bankers’
acceptances or letters of credit issued or created for the account of such person to
facilitate the purchase, shipment or storage of such inventory or other goods in the
ordinary course of business; and




     (xxx) Liens or other matters disclosed in the Title Policies approved by the Collateral
Agent in accordance with Section 5.15(c)(C).;
and




     (xxxi) Liens existing on the assets of any Person that becomes a
Restricted Subsidiary of the Borrower (or is a Restricted Subsidiary that survives a merger
with such Person in the transaction in which such Person became a Restricted Subsidiary), or
existing on assets acquired, pursuant to a Permitted Acquisition or other permitted
Investment to the extent the Liens on such assets do not secure Indebtedness and were not
entered into in contemplation of such Permitted Acquisition or Investment;


provided, however, that no Liens shall be permitted to exist, directly or
indirectly, on any Securities Collateral (as defined in the Security Agreement) other than Liens in
favor of the Collateral Agent and
Liens permitted by Sections 6.02(v), 6.02(ix), 6.02(xv), 6.02(xvi) and 6.02(xxvi);
provided, further, that if any Lien meets the criteria of more than one of the
types of Liens described in the clauses above, the Borrower in its sole discretion may classify
such action or event in one or more clauses (including in part under one such clause and in part
under another such clause).




     SECTION 6.03. Fundamental Changes; Line of Business.



     (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to merge
into or consolidate with any other Person, or permit any other Person to merge into or consolidate
with them, or liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default or Event of Default shall have occurred and be continuing, (i) any
Subsidiary may merge into, consolidate or liquidate into the Borrower in a transaction in which the
Borrower is the surviving corporation, and, in the case of a liquidation or dissolution, all assets
of such Subsidiary are distributed to the Borrower, (ii) any Subsidiary of the Borrower may merge
with or into, liquidate into or consolidate with any Restricted Subsidiary in a transaction in
which the surviving or resulting entity is a Restricted Subsidiary (provided that if any
party to such merger, liquidation or consolidation is a Subsidiary Guarantor, the surviving or
resulting entity shall be a Subsidiary Guarantor), and (iii) Permitted Acquisitions as permitted by
Section 6.04(vii) or other Investments permitted by Section 6.04



111-111-

 









 







may be consummated;
provided that in connection with each of the foregoing, the appropriate Loan Parties (if
any) shall take all actions necessary or reasonably requested by the Collateral Agent to maintain
the perfection of or perfect, as the case may be, protect and preserve the Liens on the Collateral
granted to the Collateral Agent pursuant to the Security Documents and otherwise comply with the
provisions of Sections 5.11, 5.12 and 5.15, in each case, on the terms set forth therein and to the
extent applicable.



     (b) Notwithstanding the foregoing, (i) any Restricted Subsidiary may dispose of any or all of
its assets (upon voluntary liquidation, dissolution or otherwise) to the Borrower or any Subsidiary
Guarantor, (ii) any Non-Guarantor Restricted Subsidiary may dispose of any or all of its assets
(upon voluntary liquidation, dissolution or otherwise) to the Borrower or any other Restricted
Subsidiary of the Borrower and (iii) any Immaterial Restricted Subsidiary may liquidate or
dissolve; provided that in connection with each of the foregoing, the appropriate Loan
Parties (if any) shall take all actions necessary or reasonably requested by the Collateral Agent
to maintain the perfection of or perfect, as the case may be, protect and preserve the Liens on the
Collateral granted to the Collateral Agent pursuant to the Security Documents and otherwise comply
with the provisions of Sections 5.11, 5.12 and 5.15, in each case, on the terms set forth therein
and to the extent applicable).



     (c) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, engage in any business other than businesses of the type conducted by the Borrower
and its Restricted Subsidiaries on the Effective Date and businesses substantially similar,
ancillary or reasonably related thereto; provided, that for the avoidance of doubt,
businesses related to the manufacturing, sale or distribution of high performance chemical based
products and materials is permitted under this clause (c).



     SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to purchase,
hold or acquire (including pursuant to any merger with any Person that was not a Wholly Owned
Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of Indebtedness or
other securities (including any option, warrant or other right to acquire any of the foregoing) of,
make or permit to exist any loans or advances to, or otherwise lend money to, Guarantee any
Indebtedness of, or make or permit
to exist any investment in, any other Person or provide other credit support (including the
provision of letters of credit for the account of such Person) for any Person or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of any other Person
constituting a business unit, line of business or division (each of the foregoing, an
“Investment” and collectively, “Investments”), except:




     (i) cash and Permitted Investments;




     (ii) Investments existing on the Effective Date and set forth on Schedule 6.04;
provided that to the extent any loan described on Schedule 6.04 that is
owing by a Subsidiary that is not a Loan Party to a Loan Party (the “Scheduled
Loans”) (or any additional Investments made by Loan Parties pursuant to this proviso)
has been repaid, then additional Investments may be made by Loan Parties in any Restricted
Subsidiaries that are not Loan Parties in an aggregate amount up to the amount actually
received by Loan Parties as payment in respect of such Investments; provided
further that in no event will the aggregate amount of Scheduled Loans and additional
Investments made by Loan Parties in Subsidiaries that are not Loan Parties pursuant to the
first proviso of this clause (ii) exceed the aggregate original principal amount of the
Scheduled Loans on the Effective Date;




     (iii) Investments (x) among the Loan Parties, (y) by any Non-Guarantor Restricted
Subsidiary in the Borrower or any Restricted Subsidiary and (z) by any Loan Party in any




112-112-
 









 







Non-Guarantor Restricted Subsidiary in an aggregate amount outstanding at any time pursuant
to this subclause (z) not to exceed the sum of (1) $300 million, plus (2) the amount
of proceeds of unsecured Permitted Other Debt and the proceeds from any borrowings of
Incremental Term Loans, in each case, that are incurred after the Effective Date (and that
are not applied to refinance other Indebtedness or to make an acquisition in reliance on
clause (d)(iii)(2) of the definition of Permitted Acquisition);




     (iv) Guarantees by any Non-U.S. Restricted Subsidiary that is a
Non-Guarantor Restricted Subsidiary of Indebtedness permitted by Section
6.01(xii);




     (v) Investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and trade creditors, in each
case in the ordinary course of business of the Borrower and its Restricted Subsidiaries;




     (vi) loans and advances to directors and employees of the Borrower or its Restricted
Subsidiaries in the ordinary course of business of the Borrower and its Restricted
Subsidiaries (including for travel, entertainment and relocation expenses) (other than any
loans or advances to any director or executive officer (or equivalent thereof) that would
violate any Requirement of Law in any material respect) in an aggregate principal amount
(determined without regard to any write-downs or write-offs of such loans and advances) not
to exceed $5.0 million at any one time outstanding;




     (vii) Permitted Acquisitions;




     (viii) Investments in Joint Ventures (A) constituting or consisting of a contribution
of or other transfer or distribution of the assets (other than cash, except that a de
minimis cash amount directly related to such assets may be contributed, transferred or
otherwise distributed) or capital stock of the Specified Businesses or (B) Investments in
Joint Ventures not described in clause (A) in an aggregate amount made under this clause (B)
not to exceed $100.0 million at any one time outstanding;




     (ix) mergers and consolidations and dissolutions and other transactions permitted under
Section 6.03;




     (x) Hedging Agreements permitted under Section
6.146.13;




     (xi) Investments in deposit accounts in the ordinary course of business of the Borrower
and its Restricted Subsidiaries;




     (xii) security deposits required by utility companies and other Persons in a similar
line of business to that of utility companies and Governmental Authorities that are utility
companies, in each case, made in the ordinary course of business of the Borrower and its
Restricted Subsidiaries;




     (xiii) other Investments in an aggregate amount at any time outstanding not to exceed
the sum of (A) the greater of (x) $75.0 million and (y) 3.0% of Consolidated Net Tangible
Assets at such time plus (B) the portion, if any, of the Available Amount on the date of
such election that Borrower elects to apply to this Section 6.04(xiii); provided
that (A) any such Investment held by a Loan Party shall be pledged pursuant to a Pledge
Agreement or a Non-U.S. Pledge Agreement in accordance with, and to the extent required by,
Section 5.11 and (B) any such Investment in the



113-113-
 









 







form of a loan or advance to any Loan Party
shall be subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;




     (xiv) Investments consisting of any non-cash portion or any deferred portion (including
promissory notes, equity interests and other
non-cash consideration) of the sales price received by the Borrower or any Restricted
Subsidiary in connection with any Asset Sale permitted under Section 6.05;




     (xv) advances of payroll payments to employees in the ordinary course of business;




     (xvi) Investments constituting or resulting from (i) accounts receivable arising or
acquired or (ii) trade debt granted, in each case in the ordinary course of business;




     (xvii) Investments in respect of Treasury Services Agreements permitted under Section
6.01(x);




     (xviii) Investments constituting (A) Sale and Leaseback Transactions permitted under
Section 6.06 or (B) Restricted Payments permitted under Section 6.07 or (C) resulting from
pledges or deposits permitted under Section 6.02;




     (xix) the endorsement of negotiable instruments for deposit or collection in the
ordinary course of business;




     (xx) intercompany receivables created by any distribution or other transfer by a
Subsidiary to a Loan Party of an intercompany receivable issued by a Subsidiary that is not
a Guarantor; provided that any Loan Party shall pledge any note evidencing any such
receivable that it receives as a result of such distribution or other transfer;
provided further, that no Loan Party shall transfer, or otherwise make any
payment or other Investment of, cash or cash equivalents in exchange for the receipt of such
intercompany receivables;




     (xxi) any transfer of assets pursuant to
SectionSections 6.05(vii), (xi),
(xvi), (xx) or Section
6.05(xx(xxii) in the form of an Investment;




     (xxii) the Contemplated Acquisitions;




     (xxiii) Investments of a Subsidiary acquired after the Effective Date or a Person
merged into the Borrower or any of its Subsidiaries in accordance with Section 6.03 after
the Effective Date to the extent such Investment was not made in contemplation of or in
connection with such acquisition, merger or consolidation, were in existence on the date of
such acquisition, merger or consolidation and are not a material
portionmajority of such Subsidiary’s assets; and




     (xxiv) Investments to the extent that payment for such Investment is made with Equity
Interests or Equity Rights (other than Disqualified Equity Interests) of the Borrower;


provided, however, that any intercompany Investments in the form of a loan or
advance held by a Loan Party shall be evidenced by a promissory note in form and substance
reasonably satisfactory to the Administrative Agent; provided, further, that if an
Investment meets the criteria of more than one of the types of Investments described in the clauses
above, the Borrower in its sole discretion may classify such action or event in one or more clauses
(including in part under one such clause and in part under another such clause).




114-114-
 









 








     The aggregate amount of an Investment at any one time outstanding for purposes of this Section
6.04 shall be deemed to be equal to (A) the aggregate amount of cash, together with the aggregate
fair market value of Property (net of any Transferred Liability), loaned, advanced, contributed,
transferred or otherwise invested that gives rise to such Investment (without adjustment for
subsequent increases or decreases in the value of such Investment) minus (B) the aggregate
amount of dividends, distributions or other payments received in cash in respect of such Investment
(including by way of a sale or other disposition of such Investment). In the event that a Loan
Party makes an Investment in a Non-Guarantor Restricted Subsidiary for purposes of permitting such
Non-Guarantor Restricted Subsidiary or any other Non-Guarantor Restricted Subsidiary to apply the
amounts received to make a substantially
concurrentan Investment (which may be made through any other
Non-Guarantor Restricted Subsidiary) in any other Person (that is not also a Non-Guarantor
Restricted Subsidiary), or to acquire any assets, business, division that is not owned by
a Non-Guarantor Restricted Subsidiary, the Investment by such Loan Party in such
Non-Guarantor Restricted Subsidiary shall not be included as an Investment for purposes of this
Section 6.04 to the extent the subsequent Investment by such Non-Guarantor Restricted Subsidiary
reduced amounts available to make Investments hereunder. The amount of an Investment shall not in
any event be reduced by reason of any write-off of such Investment.



     SECTION 6.05. Asset Sales. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, effect
any Asset Sale, except:




     (i) sales of inventory or the disposition of surplus, obsolete or worn out equipment
and other property or property which is no longer used, in each case in the ordinary course
of business of the Borrower and its Restricted Subsidiaries;




     (ii) sales, transfers and other dispositions of Property (A) by the Borrower or any
Restricted Subsidiary to the Borrower or any Subsidiary Guarantor or (B) by any
Non-Guarantor Restricted Subsidiary to the Borrower or any Restricted Subsidiary;
provided that in connection with the foregoing, the appropriate Loan Parties shall
take all actions necessary or reasonably requested by the Collateral Agent to maintain the
perfection of or perfect, as the case may be, protect and preserve the Liens on the
Collateral granted to the Collateral Agent pursuant to the Security Documents and otherwise
comply with the provisions of Sections 5.11, 5.12 and 5.15, in each case, on the terms set
forth therein and to the extent applicable;




     (iii) the lease or sublease of equipment or Real Property in the ordinary course of
business of the Borrower and its Restricted Subsidiaries and not constituting a Sale and
Leaseback Transaction;




     (iv) sales and dispositions of cash and Permitted Investments on ordinary business
terms;




     (v) Liens permitted by Section 6.02, mergers, consolidations, liquidations, transfer of
assets and dissolutions permitted by Section 6.03, Investments permitted by Section 6.04 and
Restricted Payments under Section 6.07;




     (vi) Small Asset Sales;




     (vii) Other sales, transfers and dispositions of assets by the Borrower or any of its
Restricted Subsidiaries (including Sale and Leaseback Transactions permitted under Section
6.06); provided that (A) immediately after giving effect to any such sale, transfer
or disposition,



115-115-
 









 







no Default or Event of Default shall have occurred and be
continuing, (B) the aggregate fair market value of all assets (net of any
Transferred Liability) sold, transferred or otherwise disposed of in reliance upon this
Section 6.05(vii) from the Effective Date through the date of such sale, transfer or other
disposition do not exceed the Asset Sale Cap (for the avoidance of doubt, any subsequent
decrease in the Asset Sale Cap shall not constitute a Default or an Event of Default with
respect to sales, transfers and dispositions previously made as permitted by this Section
6.05(vii)) and (C and (B) the Net Proceeds thereof are
applied as and to the extent required by Section 2.05(b)(ii);




     (viii) the issuance of qualifying shares of Restricted Subsidiaries to officers and
directors of such Restricted Subsidiaries to the extent required by applicable Requirements
of Law;




     (ix) Permitted Guarantor Factoring Transactions and Permitted Non-Guarantor Factoring
Transactions;




     (x) dispositions of accounts receivable in connection with the compromise, write down
or collection thereof in the ordinary course of business;




     (xi) Specified Asset Sales; provided that the Net Proceeds thereof are applied
as required by Section 2.05(b)(ii);




     (xii) transfers of property subject to a Taking or in connection with any condemnation
proceeding;




     (xiii) dispositions of the Equity Interests of or other Investments in any Joint
Venture to the extent required by the terms of customary buy/sell type arrangements entered
into in connection with the formation of such Joint Venture;




     (xiv) dispositions of property to the extent that such property is exchanged for credit
against the purchase price of similar replacement property which is concurrently purchased
pursuant to a transaction otherwise permitted hereunder, in each case under Section 1031 of
the Code;




     (xv) any transfer or disposition of the assets or capital stock of the Specified
Businesses (any which disposition may be made as part of a larger Asset Sale transaction,
the remainder of which Asset Sale transaction is permitted under the provisions of one or
more other baskets in this Section 6.05); provided that the Net Proceeds thereof are
applied as required by Section 2.05(b)(ii);




     (xvi) any transfer of assets by any Loan Party to a Restricted Subsidiary that is not a
Loan Party; provided that (x) the aggregate amount of such assets shall not exceed
(A) in the case of transfers of assets acquired after the Effective Date by any Loan Party
in a Permitted Acquisition in compliance with Section 6.04(vii), $200.0 million, and (B) in
the case of all other transfer of assets under this Section 6.05(xvi), $50.0 million and (y)
any such transfer shall be made in exchange for an intercompany note which shall be pledged
pursuant to the Pledge Agreement or a Non-U.S. Pledge Agreement in accordance with Section
5.11;




     (xvii) the abandonment, failure to maintain or renew or other disposition of
Intellectual Property in the ordinary course of business or as may be decided by the
Borrower in its



116-116-
 









 







reasonable judgment or that is no longer material to the conduct of the
business of the Borrower and its Restricted Subsidiaries;




     (xviii) licenses of Intellectual Property of the Borrower or any Subsidiary and other
similar agreements entered into in the ordinary course of business;




     (xix) any disposition of the Louvain-la-Neuve Facility;




     (xx) any sale, disposition, transfer or contribution of the Equity Interests of any
“first tier” Non-U.S. Restricted Subsidiaries to any other Non-U.S. Restricted Subsidiary;




     (xxi) voluntary terminations of Hedge Agreements; and




     (xxii) (a) any divestitures of assets in connection with any
Permitted Acquisition or other permitted Investment in order to comply with requirements of
law and (b) any divestiture of noncore assets acquired in connection with a Permitted
Acquisition or other Investment permitted by Section 6.04;


provided that all sales, transfers, leases and other dispositions permitted by Sections
6.04 (vii), (ix), (xi) and (xv) shall be made for fair value for consideration (which, for purposes
of this proviso, shall not be deemed to include any Transferred Liability (other than any liability
owed or owing to the purchaser or transferee of the assets sold, transferred or otherwise disposed
of or to any affiliates of such purchaser or transferee)) consisting of at least 75% cash and Cash
Equivalents; provided further that for purposes of this Section 6.05, (i) the
amount of any obligations or securities received in connection with such Asset Sale that are within
180 days repaid, converted or otherwise sold or otherwise disposed of for cash or Cash Equivalents
(to the extent of the cash or Cash Equivalents actually so received) shall be deemed to
be cash for purposes of such requirement and (ii) any Designated Noncash Consideration received in
such Asset Sale having an aggregate fair market value, taken together with all other Designated
Noncash Consideration received pursuant to an Asset Sale under this Section 6.05 since the
Effective Date that is at the time outstanding and held by the Borrower or any Restricted
Subsidiary, not to exceed the greater of (x) $75.0 million or (y) 2.5% of Total Assets at the time
of the receipt of such Designated Noncash Consideration shall be deemed to be cash for purposes of
such requirement (with the fair market value of each item of Designated Noncash Consideration being
measured at the time received and without giving effect to subsequent changes in value);
provided, further, that if a sale, transfer, lease or other disposition meets the
criteria of more than one of the types of Asset Sales described in the clauses above, the Borrower
in its sole discretion may classify such action or event in one or more clauses (including in part
under one such clause and in part under another such clause).




     SECTION 6.06. Sale and Leaseback Transactions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to enter into
any arrangement whereby it shall sell or transfer any Property, real or personal, used or useful in
its business, whether now owned or hereafter acquired, and thereafter lease such Property or other
Property that it intends to use for substantially the same purpose or purposes as the Property sold
or transferred (a “Sale and Leaseback Transaction”) unless (a) such Sale and Leaseback
Transaction is consummated for fair value as determined at the time of consummation in good faith
by (i) the Borrower or such Restricted Subsidiary and (ii) in the case of any Sale and Leaseback
Transaction (or series of related Sale and Leaseback Transactions) the aggregate proceeds of which
exceed $25.0 million, the board of directors of the Borrower or such Restricted Subsidiary (which
such determination may take into account any retained interest or other Investment of the Borrower
or such Restricted Subsidiary in connection with, and any other material economic terms of, such
Sale and Leaseback Transaction); (b) the sale of such Property is



117-117-
 









 







permitted by Section 6.05(vii);
and (c) except in the case of any Sale and Leaseback Transaction in respect of the Headquarters
Building, the Net Proceeds of the sale of such Property are applied as and to the extent required
by Section 2.05(b)(ii); provided, this Section 6.06 shall not apply to Sale and Leaseback
Transactions (i) between Loan Parties or (ii) between Non-Guarantor Restricted Subsidiaries.



     SECTION 6.07. Restricted Payments. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, declare or make, any Restricted Payment or incur any obligation (contingent or
otherwise) to do so, except:




     (i) any Restricted Subsidiary may declare and pay dividends to the Borrower, any other
Restricted Subsidiary or any other holder of its Equity Interests or Equity Rights ratably
with respect to its Equity Interests or additional Equity Interests (other than Disqualified
Equity Interests) of the same class of Equity Interests or Equity Rights as the dividend
being paid; provided that no such dividend or distribution shall be made by any such
Restricted Subsidiary to any Person other than the Borrower or another Restricted Subsidiary
unless ratable dividends or distributions are concurrently made to all holders of the
applicable Equity Interests;




     (ii) the Borrower may pay dividends consisting solely of shares of its common stock or
other Equity Rights or Equity Interests of the Borrower (other than Disqualified Equity
Interests);




     (iii) the Borrower and its Restricted Subsidiaries may make Restricted Payments not to
exceed $75.0 million in the aggregate since the Effective Date; provided that no
Default or Event of Default shall have occurred and is continuing or would result therefrom;




     (iv) the Borrower may purchase or redeem Equity Interests or other Equity Rights of the
Borrower (including related stock appreciation rights or similar securities) held by then
present or former directors, consultants, officers or employees of the Borrower or any of
its Subsidiaries or by any compensation plan, upon such person’s death, disability,
retirement or termination of employment under the term so such compensation plan or any
other agreement under which such shares of stock or related rights were issued for aggregate
consideration not to exceed $5.0 million in any calendar year (with unused amounts in any
calendar year being carried over to the next succeeding calendar year);




     (v) the Borrower or any of its Subsidiaries may make noncash repurchases of Equity
Interests and Equity Rights deemed to occur upon exercise of stock options if such Equity
Interests or Equity Rights represent a portion of the exercise price of such options; and




     (vi) the Borrower and its Restricted Subsidiaries may make Restricted Payments out of
the Available Amount; provided that no Default or Event of Default shall have
occurred and is continuing or would result therefrom and provided further
that after giving effect to such Restricted Payment the Borrower would be in compliance on a
Pro Forma Basis with the covenantscovenant
set forth in SectionsSection
6.12 and 6.13 as at the date of the last ended Test Period;


provided, that if a Restricted Payment meets the criteria of more than one of the types of
Restricted Payments described in the clauses above, the Borrower in its sole discretion may
classify such action or event in one or more clauses (including in part under one such clause and
in part under another such clause).




118-118-
 









 








     SECTION 6.08. Transactions with Affiliates. The Borrower will not, and will not permit any of its Restricted Subsidiaries to sell,
lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any of its Affiliates,
unless such transactions are on terms and conditions, taken as a whole, not less favorable to the
Borrower or such Restricted Subsidiary in any material respect than could be obtained on an
arm’s-length basis from unrelated third parties, except:




     (i) loans, advances and other transactions between or among, or Investments in, the
Borrower, any Restricted Subsidiary or any Joint Venture (regardless of the form of legal
entity) in which the Borrower or any Restricted Subsidiary has invested (and which Joint
Venture would not be an Affiliate of the Borrower but for the Borrower’s or a Subsidiary’s
ownership of Equity Interests in such Joint Venture) to the extent not otherwise prohibited
by this Article VI;




     (ii) reasonable and customary fees and compensation, benefits and incentive
arrangements paid or provided to, and any reasonable and customary indemnity provided on
behalf of, officers, directors or employees of the Borrower or any Restricted Subsidiary, as
determined in good faith by the Borrower or such Restricted Subsidiary;




     (iii) loans and advances to employees of the Borrower or any Subsidiary Guarantor
permitted by Section 6.04(vi); and




     (iv) transactions permitted by Section 6.07;




     (v) the payment of fees and indemnities to directors, officers, employees and
consultants of the Borrower and its Subsidiaries in the ordinary course of business;




     (vi) transactions pursuant to agreements in existence on the Effective Date and set
forth on Schedule 6.08 or any amendment to such agreement that is not materially
less favorable to the Borrower or such Restricted Subsidiary;




     (vii) any employment agreements entered into by Borrower or any of its Restricted
Subsidiaries in the ordinary course; and




     (viii) issuance of Equity Interest and Equity Rights of the Borrower (other than
Disqualified Equity Interests).



     SECTION 6.09. Restrictive Agreements. The Borrower will not, and will not permit any of its Restricted Subsidiaries to enter
into, incur or permit to exist any consensual agreement or other consensual arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of any Loan Party to create,
incur or permit to exist any Lien upon any of its Property, or (b) the ability of any Restricted
Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or
to make or repay loans or advances to the Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Restricted Subsidiary or to transfer property to the
Borrower or any of its Restricted Subsidiaries; provided that the foregoing shall not apply
to:




     (i) conditions or restrictions imposed by law, rule, regulation or order, the Loan
Documents, or by any indentures, agreements, notes, instruments and other documents
governing



119-119-
 









 







Indebtedness permitted to be incurred under this Agreement so long as the
conditions and restrictions imposed pursuant to such Indebtedness are no more restrictive,
taken as a whole, than those conditions or restrictions contained in the Loan Documents;




     (ii) clause (a) shall not apply to assets encumbered by Permitted Liens as long as such
restriction applies only to the asset encumbered by such Permitted Lien;




     (iii) restrictions and conditions existing on the Effective Date not otherwise excepted
from this Section 6.09 identified on Schedule 6.09 (but shall not apply to any
amendment or modification expanding the scope of any such restriction or condition);




     (iv) any agreement in effect at the time any Person becomes a Subsidiary of the
Borrower; provided that such agreement was not entered into in contemplation of such
Person becoming a Subsidiary;




     (v) customary restrictions and conditions contained in agreements relating to the sale
of a Restricted Subsidiary (or the assets of a Restricted Subsidiary or the Borrower)
pending such sale, provided such restrictions and conditions apply only to the
Restricted Subsidiary that is to be sold (or assets to be sold) and such sale is permitted
(or is required to be permitted) hereunder;




     (vi) clause (a) shall not apply to customary provisions in leases, subleases, licenses,
sublicenses and service contracts in the ordinary course of business of the Borrower and its
Restricted Subsidiaries between the Borrower or any Restricted Subsidiary and its customers
and other contracts restricting the assignment thereof;




     (vii) without affecting the Borrower’s obligations under Sections 5.11, 5.12 and 5.15,
customary provisions in joint venture agreements entered into in connection with the
formation of such joint venture in the ordinary course of business that (x) restrict the
transfer of Equity Interests in such joint venture or (y) the case of any joint venture that
is not a Loan Party, provide for other restrictions of the type described in clauses (a) and
(b) above, solely with respect to the Equity Interests in, or property held in, such joint
venture;




     (viii) any agreement including with respect to
Indebtedness, of a Non-U.S. Restricted Subsidiary permitted pursuant to
this Agreement so long as such prohibitions or limitations are only with respect to the
properties and revenues of such Subsidiary or any Subsidiary of such Non-U.S. Restricted
Subsidiary;




     (ix) any agreement with respect to Indebtedness permitted under Section 6.01(xi), but
only if such restrictions were not created in contemplation of such Permitted Acquisition
and the restrictions only apply to the Person or assets being acquired;




     (x) covenants to maintain net worth, total assets or liquidity and similar financial
responsibility covenants under contracts with customers or suppliers in the ordinary course
of business;




     (xi) any such encumbrance or restriction consisting of customary provisions in leases
governing leasehold interests to the extent such provisions restrict the transfer of the
lease or the property leased thereunder; and




     (xii) any amendment, restatement, renewal, extension, refinancing or replacement of any
of the foregoing; provided that such amendments, restatements, renewals, extensions,



120-120-
 









 







refinancings or replacements are, in the good faith judgment of the Borrower, no more
materially restrictive with respect to such encumbrances and restrictions than those prior
to such amendment, restatement, renewal, extension, replacement or refinancing.



     SECTION 6.10. Amendments or Waivers of Certain Documents; Prepayments of Certain
Indebtedness.



     (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to amend or
otherwise change (or waive) the terms of any Organizational Document in a manner that, taken as a
whole, could reasonably be expected to materially and adversely affect the interests of the
Lenders.



     (b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to: (i) make
(or give any notice or offer in respect of) any voluntary or optional payment or mandatory
prepayment or redemption, or defeasance or acquisition for value of (including by way of depositing
with any trustee with respect thereto money or securities before such Indebtedness is due for the
purpose of paying such Indebtedness when due) or exchange of principal of, any Subordinated Debt,
other than (A) pursuant to any customary registered exchange offer therefor after a private
placement thereof, (B) any Permitted Refinancings thereof, (C) so long as no Default or Event of
Default then exists, any exchange of Equity Interests of the Borrower for any such Indebtedness,
and (D) from the Available Amount, so long as no Default or Event of Default then exists, and
provided that, in the case of this clause (D) after giving effect thereto the Borrower
would be in compliance on a Pro Forma Basis with the
covenantscovenant set forth in
SectionsSection 6.12 and
6.13 as at the date
of the last ended Test Period; or (ii) make any payment on or with respect to any Subordinated
Debt wholly among the Loan Parties in violation of the subordination provisions thereof.



     (c) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, amend or
modify, or permit the amendment or modification of, any provision of any document governing any
Permitted Other Debt or Refinancing Notes in any manner that, taken as a whole, would result in
such Indebtedness ceasing to meet the requirements set forth in the definitions of Permitted Other
Debt or Refinancing Notes, respectively.



     SECTION 6.11. Accounting Treatment; Fiscal Year. The Borrower will not, and will not permit any of its Restricted Subsidiaries to:



     (a) make or permit any material change in accounting policies or reporting practices or tax
reporting treatment which is adverse to the Lenders, except changes that are permitted by GAAP or
required by any Requirement of Law and disclosed in writing to the Administrative Agent; or



     (b) change its fiscal year-end to a date other than December 31.



     SECTION 6.12. Fixed Charge Coverage Ratio. The Borrower will not permit
the Fixed Charge Coverage Ratio for any Test Period ending on any date set forth below to be less
than the ratio set forth opposite the last day of such Test Period
below:



	 	 	 	 	 
	Date	Ratio
	March 31, 2010
	 	 	1.35:1.00	 
	June 30, 2010
	 	 	1.35:1.00	 






121-121-
 









 






	 	 	 	 	 
	Date	Ratio
	September 30, 2010
	 	 	1.35:1.00	 
	December 31, 2010
	 	 	1.35:1.00	 
	March 31, 2011
	 	 	1.55:1.00	 
	June 30, 2011
	 	 	1.55:1.00	 
	September 30, 2011
	 	 	1.55:1.00	 
	December 31, 2011
	 	 	1.55:1.00	 
	March 31, 2012 and the last day of
each Fiscal Quarter thereafter
	 	 	1.75:1.00	 






     SECTION 6.12. SECTION 6.13. TotalSenior
Secured Leverage Ratio. The Borrower will not permit the TotalSenior
Secured Leverage Ratio as of the last day of any Test Period ending on any
date set forth below to
exceed the ratio set forth opposite the last day of such Test Period below:
to exceed 3.50:1.00.



	 	 	 	 	 
	Date	Ratio
	March 31, 2010
	 	 	4.50:1.00	 
	June 30, 2010
	 	 	4.50:1.00	 
	September 30, 2010
	 	 	4.50:1.00	 
	December 31, 2010
	 	 	4.50:1.00	 
	March 31, 2011
	 	 	4.25:1.00	 
	June 30, 2011
	 	 	4.25:1.00	 
	September 30, 2011
	 	 	4.00:1.00	 
	December 31, 2011
	 	 	4.00:1.00	 
	March 31, 2012
	 	 	3.75:1.00	 
	June 30, 2012
	 	 	3.75:1.00	 
	September 30, 2012 and the last day
of each Fiscal Quarter thereafter
	 	 	3.50:1.00	 






     SECTION 6.13. SECTION 6.14. Hedging Agreements. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, enter
into any Hedging Agreement, other than (a) Hedging Agreements entered into to hedge or mitigate
risks to which the Borrower and its Restricted Subsidiaries may be exposed in the conduct of their
business or the management of their liabilities, and (b) Hedging 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 Borrower and its Restricted Subsidiaries.



     SECTION 6.14. SECTION 6.15. Assets, Liabilities and
Actions of SFC. The Borrowers will not permit SFC to own any assets (other than the Funding Co. Accounts
(as such term is defined in the Monsanto Settlement Agreement) and the funds on deposit therein),
incur any obligations (other than obligations under the Monsanto Settlement Agreement, obligations
that are necessary to fulfill such obligations and obligations in connection with the maintenance
of its existence) or take any actions in violation of the SFC Limited Liability Company Agreement.



122-122-
 









 





ARTICLE VII




EVENTS OF DEFAULT AND REMEDIES



     SECTION 7.01. Listing of Events of Default. Each of the following events or occurrences described in this Section 7.01 shall constitute
an “Event of Default”:



     (a) The Borrower or any other Loan Party shall default (i) in the payment when due of any
principal of any Loan (including on any Installment Payment Date) or any reimbursement of any L/C
Obligation, (ii) in the payment when due of any interest on any Loan or any fees payable hereunder
(and such default shall continue unremedied for a period of five Business Days), or (iii) in the
payment when due of any other previously invoiced amount (other than an amount described in clauses
(i) and (ii)) payable under this Agreement or any other Loan Document (and such default in the
payment of any such fee or other amount shall continue unremedied for a period of 20 Business
Days).



     (b) Any representation or warranty of the Borrower or any other Loan Party made or deemed to
be made hereunder or in any other Loan Document or any other writing or certificate furnished by or
on behalf of the Borrower or any other Loan Party to the Administrative Agent, the Collateral Agent
or any Lender for the purposes of or in connection with this Agreement or any such other Loan
Document is or shall be incorrect in any material respect when made or deemed made.



     (c) The Borrower or any other Loan Party shall default in the due performance and observance
of any of its obligations under Sections 5.01(e), 5.01(f) or 5.01(j), Section 5.02 (with respect to
the maintenance and preservation of the Borrower’s corporate existence) or Article VI.



     (d) The Borrower or any other Loan Party shall default in the due performance and observance
of any agreement (other than those specified in paragraphs (a) through (c) above) contained herein
or in any other Loan Document, and such default shall continue unremedied for a period of 30 days
after the earlier to occur of (i) knowledge of such default by an executive officer or Financial
Officer (or any other officer or similar official with responsibility for the administration of the
obligations of the Borrower in respect of this Agreement) of the Borrower and (ii) written notice
of such default from the Administrative Agent or any Lender to the Borrower.



     (e) A default shall occur (i) in the payment when due (subject to any applicable grace
period), whether by acceleration or otherwise, of any Material Indebtedness or (ii) in the
performance or observance of any obligation or condition with respect to any Material Indebtedness
if the effect of such default referred to in this clause (ii) is to accelerate the maturity of any
such Material Indebtedness or enable or permit (with or without the giving of notice, the lapse of
time or both) the holder or holders of any such Material Indebtedness or any trustee or agent on
its or their behalf to cause any such Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity.



     (f) Any judgment or order (or combination of judgments and orders) for the payment of money
equal to or in excess of $25.0 million (to the extent not (i) paid, (ii) covered by insurance as to
which such insurer has been notified of such judgment or order and has not denied coverage or (iii)
covered by an indemnity by a third party as to which such Person has been notified of such judgment
or order and has accepted liability for payment of such judgment or order) individually or in the
aggregate shall be rendered against the Borrower or any of its Restricted Subsidiaries (or any
combination thereof) and



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     (i) enforcement proceedings shall have been commenced by any creditor upon such
judgment or order and not stayed,




     (ii) such judgment has not been bonded pending appeal, stayed, vacated or discharged
within 60 days of entry, or




     (iii) there shall be any period (after any applicable statutory grace period) of 10
consecutive days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect.



     (g) An ERISA Event (or termination, withdrawal or event of noncompliance with applicable law
or plan terms with respect to Foreign Plans) shall have occurred that, when taken together with all
other ERISA Events and terminations, withdrawals and events of noncompliance with respect to
Foreign Plans that have occurred, could reasonably be expected to have a Material Adverse Effect.



     (h) Any Change of Control shall occur.



     (i) The Borrower or any Restricted Subsidiary (other than an Immaterial Restricted Subsidiary)
shall




     (i) fail to pay debts generally as they become due;




     (ii) apply for, consent to or acquiesce in the appointment of a trustee, receiver,
sequestrator or other custodian for the Borrower or such Restricted Subsidiary or
substantially all of its property, or make a general assignment for the benefit of
creditors;




     (iii) in the absence of such application, consent or acquiescence, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator or other custodian for the
Borrower or any Restricted Subsidiary or for a substantial part of its property, and such
trustee, receiver, sequestrator or other custodian shall not be discharged or stayed within
60 days, provided that the Borrower hereby expressly authorizes the Administrative
Agent and each Lender to appear in any court conducting any relevant proceeding during such
60-day period to preserve, protect and defend their rights under the Loan Documents;




     (iv) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect of the Borrower or any
Restricted Subsidiary (other than any dissolution or liquidation permitted under Section
6.03) and, if any such case or proceeding is not commenced by the Borrower or any Restricted
Subsidiary, such case or proceeding shall be consented to or acquiesced in by the Borrower
or any Restricted Subsidiary or shall result in the entry of an order for relief or shall
remain for 60 days undismissed and unstayed; provided that the Borrower hereby
expressly authorizes the Administrative Agent and each Lender to appear in any court
conducting any such case or proceeding during such 60-day period to preserve, protect and
defend their rights under the Loan Documents; or




     (v) take any corporate or partnership action (or comparable action, in the case of any
other form of legal entity) indicating its consent to, approval of, or acquiescence in, any
of the foregoing.



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     (j) The obligations of any Loan Party under the Guarantee Agreement or any Non-U.S. Guarantee
Agreement shall cease to be in full force and effect (except in accordance with the terms thereof)
or any such Loan Party shall repudiate its obligations thereunder.



     (k) Any Loan Document shall cease to be in full force and effect (except in accordance with
its terms) or any Lien purported to be created under any Security Document shall fail or cease to
be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any material
portion of the Collateral, with the priority required by the applicable Security Document (if and
to the extent perfection may be achieved by the taking of actions required under the Security
Documents), except to the extent such failure results from (i) the gross negligence or willful
misconduct of the Collateral Agent following the request of the Borrower to take actions with
respect to the validity and perfection of such Liens or (ii) the loss of possessory Collateral by
the Collateral Agent or the Administrative Agent, as applicable.



     SECTION 7.02. Action if Bankruptcy. If any Event of Default described in Section 7.01(i) shall occur with respect to the
Borrower, all Commitments (if not theretofore terminated) and any obligation of the Issuers to make
L/C Credit Extensions shall automatically terminate and the outstanding principal amount of all
outstanding Loans and all other Obligations shall automatically be and become immediately due and
payable, and the Borrower shall Cash Collateralize the Outstanding Amount of the L/C Obligations,
in each case without notice or demand or further act of the Administrative Agent or any Lender, all
of which are hereby waived by the Borrower.



     SECTION 7.03. Action if Other Event of Default. If any Event of Default (other than any Event of Default with respect to the Borrower
described in Section 7.01(i)) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Requisite Lenders, shall by written
notice to the Borrower and each Lender:



     (a) declare all or any portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable, whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be and become immediately due and
payable, without further notice, demand or presentment;



     (b) declare the Commitments (if not theretofore terminated) and any obligation of the Issuers
to make L/C Credit Extensions to be terminated, whereupon the Commitments and any obligation of the
Issuers to make L/C Credit Extensions shall terminate; and



     (c) if the actions described in clause (a) or (b) above have been taken, require that the
Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount
thereof).



     SECTION 7.04. Application of Funds upon Event of Default. After the exercise of remedies provided for in Section 7.03 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in Section 7.02), any amounts received on account
of the Obligations shall be applied by the Administrative Agent and the Collateral Agent in the
following order:



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     (a) First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and disbursements of external
counsel to the Administrative Agent and amounts payable under Article II) payable to the
Administrative Agent in its capacity as such and payable to the Collateral Agent in its capacity as
such;



     (b) Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest, commitment fees and Letter of Credit
Fees) payable to the Lenders and the Issuers (including fees, charges and disbursements of external
counsel to the respective Lenders and the Issuers and amounts payable under Article II), ratably
among them in proportion to the respective amounts described in this clause Second payable
to them;



     (c) Third, to payment of that portion of the Obligations constituting accrued and
unpaid Commitment Fees and Letter of Credit Fees and interest on the Loans, L/C Borrowings and
other Obligations (including obligations in the nature of interest and periodic fees under Pari
Passu Secured Hedging Agreements and Pari Passu Secured Treasury Services Agreements), ratably
among the Lenders and the Issuers and the counterparties in proportion to the respective amounts
described in this clause Third payable to them;



     (d) Fourth, pro rata (i) to payment of that portion of the Obligations
constituting unpaid principal of the Loans and L/C Borrowings and the Termination Value of Pari
Passu Secured Hedging Agreements, ratably among the Lenders, the counterparties and the Issuers in
proportion to the respective amounts described in this clause Fourth held by them and (ii)
to the Administrative Agent for the account of each applicable Issuer, to Cash Collateralize that
portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;



     (e) Fifth, to the payment of all other Obligations owing to the Secured Parties in
proportion to the respective amounts described in this clause Fifth owing to them; and



     (f) Last, the balance, if any, after all of the Obligations have been paid in full, to
the Borrower or as otherwise required by Law.



     Subject to Section 2.03(g), amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, in the order set forth above.



ARTICLE VIII




THE AGENTS



     SECTION 8.01. Appointment and Authority. Each Lender hereby irrevocably appoints DBTCA to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. Each Lender hereby irrevocably appoints DBTCA to act on its behalf as the Collateral
Agent hereunder and under the other Loan Documents and authorizes the Collateral Agent to take such
actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article



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are solely for the benefit of the Agents and the Lenders, and neither the Borrower nor any
other Loan Party shall have rights as a third party beneficiary of any of such provisions.
Additionally, each Lender authorizes the Administrative Agent and Collateral Agent to enter into
the First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement and to bind the
Lenders thereby.




     SECTION 8.02. Agents Individually.



     (a) Each Person serving as an Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent
and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as an Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not
an Agent hereunder and without any duty to account therefor to the Lenders.



     (b) Each Lender understands that the respective Persons serving as Agents, Co-Syndication
Agents, Documentation Agent and Arrangers, acting in their individual capacities, and their
respective Affiliates (collectively, the “Agents’ Groups”) are engaged in a wide range of
financial services and businesses (including investment management, financing, securities trading,
corporate and investment banking and research) (such services and businesses are collectively
referred to in this Section 8.02 as “Activities”) and may engage in the Activities with or
on behalf of one or more of the Loan Parties or their respective Affiliates. Furthermore, the
Agents’ Groups may, in undertaking the Activities, engage in trading in financial products or
undertake other investment businesses for their respective own accounts or on behalf of others
(including the Loan Parties and their Affiliates and including holding, for their respective own
accounts or on behalf of others, equity, debt and similar positions in the Borrower, another Loan
Party or their respective Affiliates), including trading in or holding long, short or derivative
positions in securities, loans or other financial products of one or more of the Loan Parties or
their Affiliates. Each Lender understands and agrees that in engaging in the Activities, the
Agents’ Groups may receive or otherwise obtain information concerning the Loan Parties or their
Affiliates (including information concerning the ability of the Loan Parties to perform their
respective Obligations hereunder and under the other Loan Documents) which information may not be
available to any of the Lenders that are not members of the Agents’ Groups. None of the members of
the Agents’ Groups shall have any duty to disclose to any Lender or use on behalf of the Lenders,
and none of the members of the Agents’ Group shall be liable for the failure to so disclose or use,
any information whatsoever about or derived from the Activities or otherwise (including any
information concerning the business, prospects, operations, property, financial and other condition
or creditworthiness of any Loan Party or any Affiliate of any Loan Party) or required to account
for any revenue or profits obtained in connection with the Activities, except that the
Administrative Agent shall deliver or otherwise make available to each Lender such documents as are
expressly required by any Loan Document to be transmitted by the Administrative Agent to the
Lenders.



     (c) Each Lender further understands that there may be situations where members of the Agents’
Groups or their respective customers (including the Loan Parties and their Affiliates) either now
have or may in the future have interests or take actions that may conflict with the interests of
any one or more of the Lenders (including the interests of the Lenders hereunder and under the
other Loan Documents). Each Lender agrees that no member of the Agents’ Groups is or shall be
required to restrict its activities as a result of the Person serving as an Agent, Co-Syndication
Agents, Documentation Agent



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or Joint Lead Arranger and Bookrunner being a member of the Agents’ Groups, and that each
member of the Agents’ Groups may undertake any Activities without further consultation with or
notification to any Lender. None of (i) this Agreement nor any other Loan Document, (ii) the
receipt by the Agents’ Groups of information (including Information) concerning the Loan Parties or
their Affiliates (including information concerning the ability of the Loan Parties to perform their
respective Obligations hereunder and under the other Loan Documents) nor (iii) any other matter
shall give rise to any fiduciary, equitable or contractual duties (including any duty of trust or
confidence) owing by any member of the Agents’ Groups to any Lender including any such duty that
would prevent or restrict the Agents’ Groups from acting on behalf of customers (including the Loan
Parties or their Affiliates) or for their respective own accounts.




     SECTION 8.03. Duties of Agents; Exculpatory Provisions.



     (a) Each Agent’s duties hereunder and under the other Loan Documents are solely ministerial
and administrative in nature and no Agent shall have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting the generality of the
foregoing, no Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, but shall be required to act or refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the written direction of the Requisite
Lenders (or such other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that no Agent shall be required to take
any action that, in its opinion or the opinion of its counsel, may expose such Agent or any of its
Affiliates to liability or that is contrary to any Loan Document or applicable law.



     (b) No member of the Agents’ Groups shall be liable to the Lenders for any action taken or not
taken by it (i) with the consent or at the request of the Requisite Lenders (or such other number
or percentage of the Lenders as shall be necessary, or as such member of the Agents’ Groups shall
believe in good faith shall be necessary, under the circumstances as provided in Sections 7.03 or
9.08) or (ii) in the absence of its own gross negligence or willful misconduct, as determined by a
final judgment of a court of competent jurisdiction. No Agent shall be deemed to have knowledge of
any Default or Event of Default or the event or events that give or may give rise to any Default or
Event of Default unless and until the Borrower or any Lender shall have given notice to such Agent
describing such Default or Event of Default and such event or events.



     (c) None of any Agent nor any member of the Agents’ Group shall be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty, representation or other information
made or supplied in or in connection with this Agreement, any other Loan Document or the
Information Memorandum, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith or the adequacy, accuracy and/or
completeness of the information contained therein, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement, instrument or
document or the perfection or priority of any Lien or security interest created or purported to be
created by the Security Documents or (v) the satisfaction of any condition set forth in Article IV
or elsewhere herein, other than (but subject to the foregoing clause (ii)) to confirm receipt of
items expressly required to be delivered to such Agent.



     (d) Nothing in this Agreement or any other Loan Document shall require any Agent or any of its
Related Parties to carry out any “know your customer” or other checks in relation to any person on



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behalf of any Lender and each Lender confirms to each Agent that it is solely responsible for
any such checks it is required to carry out and that it may not rely on any statement in relation
to such checks made by any Agent or any of its Related Parties.




     SECTION 8.04. Reliance by Agents. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper
Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making of a Loan, or the
issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a
Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender
unless an officer of the Administrative Agent responsible for the transactions contemplated hereby
shall have received notice to the contrary from such Lender prior to the making of such Loan, or
issuance of such Letter of Credit, and in the case of a Borrowing, such Lender shall not have made
available to the Administrative Agent such Lender’s ratable portion of such Borrowing. Each Agent
may consult with legal counsel (who may be counsel for the Borrower or any other Loan Party),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.



     SECTION 8.05. Delegation of Duties. Each Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more sub-agents appointed by
such Agent. Each Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. Each such sub-agent and the
Related Parties of the applicable Agent and each such sub-agent shall be entitled to the benefits
of all provisions of this Article and Section 9.05 (as though such sub-agents were the
“Administrative Agent” or the “Collateral Agent,” as the case may be, under the Loan Documents) as
if set forth in full herein with respect thereto.



     SECTION 8.06. Resignation of Agents. Each Agent may at any time give notice of its resignation to the Lenders and the Borrower.
Upon receipt of any such notice of resignation, the Requisite Lenders shall have the right, subject
to the reasonable consent of the Borrower (such consent (i) not to be unreasonably withheld or
delayed and (ii) not to be required after the occurrence and during the continuance of an Event of
Default under Section 7.01(a) or Section 7.01(i)), to appoint a successor, which shall be a bank
with an office in New York, New York, or an Affiliate of any such bank with an office in New York,
New York. If no such successor shall have been so appointed by the Requisite Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives notice of its
resignation (such 30-day period, the “Lender Appointment Period”), then the retiring Agent
may on behalf of the Lenders, appoint a successor Agent with the consent of the Borrower (to the
extent the Borrower’s consent would be required above) meeting the qualifications set forth above.
In addition and without any obligation on the part of the retiring Agent to appoint, on behalf of
the Lenders, a successor Agent, the retiring Agent may at any time upon or after the end of the
Lender Appointment Period notify the Borrower and the Lenders that no qualifying Person has
accepted appointment as successor Agent and the Effective Date of such retiring Agent’s
resignation. Upon the resignation Effective Date established in such notice and regardless of
whether a successor Agent has been appointed and accepted such appointment, the retiring Agent’s
resignation shall nonetheless become effective and (i) the retiring Agent shall be discharged from
its duties and obligations



129-129-
 









 




as Administrative Agent or Collateral Agent, as the case may be, hereunder and under the other
Loan Documents and (ii) all payments, communications and determinations provided to be made by, to
or through such Agent shall instead be made by or to each Lender directly, until such time as the
Requisite Lenders appoint a successor Agent as provided for above in this paragraph. Upon the
acceptance of a successor’s appointment as the Administrative Agent or Collateral Agent, as the
case may be, hereunder, such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be
discharged from all of its duties and obligations as an Agent hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this paragraph). The fees
payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this Article and
Section 9.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to be taken by any of
them while the retiring Agent was acting as Administrative Agent or Collateral Agent, as the case
may be.




     Any resignation by DBTCA as the Administrative Agent pursuant to this Section shall also
constitute its resignation as Issuer and Swing Line Lender. Upon the acceptance of a successor’s
appointment as the Administrative Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring Issuer and Swing Line
Lender, (b) the retiring Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements satisfactory to the retiring
Issuer to effectively assume the obligations of the retiring Issuer with respect to such Letters of
Credit.



     SECTION 8.07. Non-Reliance on Agents and Other Lenders.



     (a) Each Lender confirms to each Agent, each other Lender and each of their respective Related
Parties that it (i) possesses (individually or through its Related Parties) such knowledge and
experience in financial and business matters that it is capable, without reliance on any Agent, any
other Lender or any of their respective Related Parties, of evaluating the merits and risks
(including tax, legal, regulatory, credit, accounting and other financial matters) of (x) entering
into this Agreement, (y) making Loans and other extensions of credit hereunder and under the other
Loan Documents and (z) in taking or not taking actions hereunder and thereunder, (ii) is
financially able to bear such risks and (iii) has determined that entering into this Agreement and
making Loans and other extensions of credit hereunder and under the other Loan Documents is
suitable and appropriate for it.



     (b) Each Lender acknowledges that (i) it is solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with this Agreement and the
other Loan Documents, (ii) that it has, independently and without reliance upon any Agent, any
other Lender or any of their respective Related Parties, made its own appraisal and investigation
of all risks associated with, and its own credit analysis and decision to enter into, this
Agreement based on such documents and information, as it has deemed appropriate and (iii) it will,
independently and without reliance upon any Agent, any other Lender or any of their respective
Related Parties, continue to be solely responsible for making its own appraisal and investigation
of all risks arising under or in connection with, and its own credit analysis and decision to take
or not take action under, this Agreement and the other



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Loan Documents based on such documents and information as it shall from time to time deem
appropriate, which may include, in each case:





     (i) the financial condition, status and capitalization of the Borrower and each other
Loan Party;




     (ii) the legality, validity, effectiveness, adequacy or enforceability of this
Agreement and each other Loan Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with any Loan
Document;




     (iii) determining compliance or non-compliance with any condition hereunder to the
making of a Loan and the form and substance of all evidence delivered in connection with
establishing the satisfaction of each such condition; and




     (iv) the adequacy, accuracy and/or completeness of the Information Memorandum and any
other information delivered by any Agent, any other Lender or by any of their respective
Related Parties under or in connection with this Agreement or any other Loan Document, the
transactions contemplated hereby and thereby or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with any Loan
Document.



     SECTION 8.08. No Other Duties, etc. Anything herein to the contrary notwithstanding, none of the Persons acting as Arrangers,
Co-Syndication Agents or Documentation Agent listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, the Collateral Agent or as a Lender
hereunder.



     SECTION 8.09. Security Trust Deed. Each Lender acknowledges the terms of the Security Trust Deed and, in particular, the
terms, basis and limitation on which the Collateral Agent holds the Transaction Security (as
defined therein) and specifically agrees and accepts (i) such terms, basis and limitation; (ii)
that the Collateral Agent shall, as trustee, have only those duties, obligations and
responsibilities expressly specified in the Security Trust Deed; (iii) the limitation and exclusion
of the Collateral Agent’s liability as set out therein; and (iv) all other provisions of the
Security Trust Deed as if it were a party thereto.



     SECTION 8.10. Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the Issuers and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the Issuers and the
Administrative Agent and their respective agents and external counsel and all other amounts due the
Lenders, the Issuers and the Administrative



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Agent under Sections 2.03(h) and (i), Section 2.09 and Section 9.05) allowed in such judicial
proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and each Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the Issuers, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and external counsel, and any other amounts due
the Administrative Agent under Sections 2.09 and 9.05.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or any Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any
Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any
Issuer in any such proceeding.



     SECTION 8.11. Collateral and Guarantee Matters. The Lenders, the Issuers, the Hedging Parties and the Treasury Services Banks irrevocably
authorize the Collateral Agent to (and upon request from the Borrower, the Collateral Agent shall),



     (a) release any Lien on any property granted to or held by the Collateral Agent under any Loan
Document (i) upon termination of the Aggregate Commitments and payment in full of all Loan
Obligations (other than contingent obligations with respect to which no claim has been asserted)
and the expiration or termination of all Letters of Credit (or other arrangements having been
entered into satisfactory to the applicable Issuer to eliminate such Issuer’s credit exposure with
respect thereto), (ii) that is sold or to be sold as part of or in connection with any sale
permitted hereunder or under any other Loan Document to a Person other than Borrower or any
Subsidiary Guarantor, (iii) subject to Section 9.08, if approved, authorized or ratified in writing
by the Required Lenders, (iv) if the property subject to such Lien is owned by a Subsidiary
Guarantor, upon release of such Subsidiary Guarantor from its obligations under the Guarantee
Agreement pursuant to clause (c) below or (v) on more than 65% of the Equity Interests of a
Non-U.S. Restricted Subsidiary that is a Subsidiary Guarantor or “first tier” Non-U.S. Restricted
Subsidiary if such Lien could, in the good faith judgment of the Borrower, reasonably be expected
to have adverse tax consequences to the Borrower or its Restricted Subsidiaries;



     (b) subordinate or release any Lien on any property granted to or held by the Collateral Agent
under any Loan Document that is subject to a Lien that is permitted by Section 6.02(vi); and



     (c) release any Subsidiary Guarantor from its obligations under the Guarantee Agreement if
such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted hereunder.



     Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing
the Collateral Agent’s authority to release or subordinate its interest in particular types or
items of property, or to release any Subsidiary Guarantor from its obligations under the Guarantee
Agreement pursuant to this Section 8.11. In each case as specified in this Section 8.11, the
Administrative Agent or the Collateral Agent will (and each Lender irrevocably authorizes such
Agent to), at the Borrower’s expense, execute and deliver to the applicable Loan Party such
documents as such Loan Party may



132-132-
 









 




reasonably request to evidence the release or subordination of such item of Collateral from
the assignment and security interest granted under the Security Documents, or to evidence the
release of such Subsidiary Guarantor from its obligations under the Guarantee Agreement, in each
case in accordance with the terms of the Loan Documents and this Section 8.11.




     SECTION 8.12. Withholding Taxes



SECTION 8.13. . To the extent required by any applicable law,
the Administrative Agent may deduct or withhold from any payment to any Lender an amount equivalent
to any applicable withholding tax. If the Internal Revenue Service or any authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the appropriate form
was not delivered, was not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances that rendered the exemption from, or reduction
of, withholding tax ineffective, or for any other reason), such Lender shall indemnify and hold
harmless the Administrative Agent (to the extent that the Administrative Agent has not already been
reimbursed by the Borrower pursuant to Sections 2.14 and 2.15 and without limiting, expanding or
otherwise affecting any obligation of the Borrower to do so) fully for all amounts paid, directly
or indirectly, by the Administrative Agent as Tax or otherwise, together with all expenses
incurred, including legal expenses, allocated staff costs and any out of pocket expenses , whether
or not such Tax was correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to any Lender by
the Administrative Agent shall be conclusive absent manifest error. The agreements in this Section
8.12 shall survive the resignation and/or replacement of the Administrative Agent, any assignment
of rights by, or the replacement of, a Lender, the termination of the Agreement and the repayment,
satisfaction or discharge of all other obligations. For purposes of this Section 8.12, “Lender”
shall include any Issuer.



ARTICLE IX




MISCELLANEOUS



     SECTION 9.01. Notices.



     (a) All notices, demands, requests, consents and other communications provided for in this
Agreement shall be given in writing, or by any telecommunication device capable of creating a
written record (including electronic mail), and addressed to the party to be notified as follows:




	 	(i)	 	if to the Borrower or any other Loan Party,






	 	 	 	Solutia Inc.

575 Maryville Centre Drive

P.O. Box 66760

St. Louis, Missouri 63166-6760

(courier delivers to: 575 Maryville Centre Drive, St. Louis, Missouri 63141)

Attention of: James Tichenor and Paul Berra

Telecopier No.: 314-674-6755

E-Mail Address: jatich@solutia.com and pjberr@solutia.com

Website Address: www.solutia.com





133-133-
 









 





	 	 	 	With a copy to:
	 
	 	 	 	Kirkland & Ellis LLP

601 Lexington Avenue

New York, New York 10022

Attention of: Ashley Gregory, Esq.

Telecopier No.: 212-446-4900

E-Mail Address: ashley.gregory@kirkland.com






	 	(ii)	 	if to the Administrative Agent, the Collateral Agent or the Swing Line
Lender:





     Deutsche Bank Trust Company Americas




	 	 	 	Deutsche Bank Trust Company Americas

Attn: Erin Morrissey, Leveraged Loan Portfolio

60 Wall Street 

New York, New York 10005
	 
	 	 	 	With a copy to:
	 
	 	 	 	Deutsche Bank Trust Company Americas

Attn: Nino Recko, 

5022 Gate Parkway, Suite 200

Jacksonville, Florida 32256






     (iii) if to any Issuer or any other Lender, to it at its address (or telecopier number)
set forth in its Administrative Questionnaire,


or at such other address as shall be notified in writing (x) in the case of the Borrower and the
Administrative Agent, to the other parties and (y) in the case of all other parties, to the
Borrower and the Administrative Agent.




     (b) All notices, demands, requests, consents and other communications described in Section
9.01(a) shall be effective (i) if delivered by hand, including any overnight courier service, upon
personal delivery, (ii) if delivered by mail, when deposited in the mails, (iii) if delivered by
posting to an Approved Electronic Platform, an Internet website or a similar telecommunication
device requiring that a user have prior access to such Approved Electronic Platform, website or
other device (to the extent permitted by Section 9.17 to be delivered thereunder), when such
notice, demand, request, consent and other communication shall have been made generally available
on such Approved Electronic Platform, Internet website or similar device to the class of Person
being notified (regardless of whether any such Person must accomplish, and whether or not any such
Person shall have accomplished, any action prior to obtaining access to such items, including
registration, disclosure of contact information, compliance with a standard user agreement or
undertaking a duty of confidentiality) and such Person has been notified in respect of such posting
that a communication has been posted to the Approved Electronic Platform and (iv) if delivered by
electronic mail or any other telecommunications device, when transmitted to an
electronic mail address (or by another means of electronic delivery) as provided in Section
9.01(a); provided, however, that notices and communications to the Administrative
Agent or Issuer pursuant to Article II or Article VIII) shall not be effective until received by
the Administrative Agent or Issuer.



134-134-
 









 





     (c) Notwithstanding Sections 9.01(a) and 9.01(b) (unless the Administrative Agent or Issuer
requests that the provisions of Sections 9.01(a) and 9.01(b) be followed) and any other provision
in this Agreement or any other Loan Document providing for the delivery of any Approved Electronic
Communication by any other means, the Loan Parties shall deliver all Approved Electronic
Communications to the Administrative Agent or Issuer by properly transmitting such Approved
Electronic Communications in an electronic/soft medium in a format reasonably acceptable to the
Administrative Agent or Issuer to nino.recko@db.com and erin.morrissey@db.com or
such other electronic mail address (or similar means of electronic delivery) as the Administrative
Agent or Issuer may notify to the Borrower. Nothing in this Section 9.01(c) shall prejudice the
right of the Administrative Agent or any Lender to deliver any Approved Electronic Communication to
any Loan Party in any manner authorized in this Agreement or to request that the Borrower effect
delivery in such manner.



     (d) Reliance by Administrative Agent, Issuer and Lenders. The Administrative Agent,
the Issuers and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Borrowing Notices and Swing Line Loan Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Administrative Agent, the Issuers, each Lender and the Related Parties of each of
them from all documented losses, liabilities and reasonably, documented out of pocket costs and
expenses and documented liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower except to the extent that such losses, claims,
damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Person. All telephonic notices to and other telephonic communications with the Administrative
Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents
to such recording.



     SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and warranties made by the Loan Parties herein
and in the certificates or other instruments prepared or delivered in connection with or pursuant
to this Agreement or any other Loan Document shall be considered to have been relied upon by
Lenders hereto and shall survive the making by the Lenders of the Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default or Event of
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and so long as the Commitments have not been terminated. The provisions of Sections
2.12, 2.13, 2.14, 2.15, 2.16, 9.05 and 9.16 and Article VIII shall survive and remain in full force
and effect regardless of the consummation of the transactions contemplated hereby, the repayment of
the Loans, the termination of the Commitments or the termination of this Agreement or any provision
hereof.



     SECTION 9.03. Binding Effect. Subject to Section 4.01, this Agreement shall become effective when it shall have been
executed by the Borrower and the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof (which may be by facsimile transmission or other electronic image scan
transmission (e.g., “PDF” or “tif” via e-mail)) which, when taken together, bear the
signatures of each of



135-135-
 









 







the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors and assigns. Delivery
of an executed counterpart of a signature page of this Agreement by facsimile transmission or other
electronic image scan transmission shall be effective as delivery of a manually executed
counterpart of this Agreement.



     SECTION 9.04. Successors and Assigns.



     (a) Whenever in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the permitted successors and assigns of such party. All covenants, promises
and agreements by or on behalf of the Borrower, the Agents, the Issuers or the Lenders that are
contained in this Agreement shall bind and inure to the benefit of their respective successors and
assigns. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in Section 9.04(f) below and, solely to the extent expressly
contemplated hereby, the Related Parties of each of the Agents and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.



     (b) Each Lender may assign to one or more assignees (other than a natural person, the Borrower
or any of the Borrower’s Affiliates or Subsidiaries or a Person engaged principally in the business
of manufacture or sale of high performance chemical based products that is a competitor of the
Borrower or any of its Subsidiaries) all or a portion of its interests, rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans at the time owing
to it); provided, however, that (A) except in the case of an assignment of a Term
Loan to a Lender or a Lender Affiliate or in connection with the initial syndication of the
Term-1 Loans, the Borrower and the Administrative Agent (and, in the case of
the assignment of any Revolving Credit Commitment, each Issuer and the Swing Line Lender) must give
their prior written consent to such assignment (which consents shall not be unreasonably withheld
or delayed), (B) except in the case of an assignment to a Lender, a Lender Affiliate or a Federal
Reserve Bank or in connection with the initial syndication of the Term-1
Loans, the amount of the Commitment or 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 in the case of Term Loans, $1.0
million and in the case of Revolving Credit Commitments, $5.0 million, and in each case in
increments of $1.0 million in excess thereof (or (x) if the aggregate amount of the Commitment or
Loans of the assigning Lender is a lesser amount, the entire amount of such Commitment or Loans, or
(y) in any other case, such lesser amount as the Borrower and the Administrative Agent otherwise
agree), (C) except in the case of the assignment to an Affiliate of such Lender or an assignment
required to be made pursuant to Section 2.19, the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500 (unless waived by the Administrative Agent in its sole discretion) and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; provided, further, that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event of Default has occurred
and is continuing. Subject to acceptance and recording pursuant to paragraph (e) of this Section
9.04, from and after the effective date specified in each Assignment and Assumption, which
effective date shall be at least five Business Days after the execution thereof (unless
otherwise determined by the Administrative Agent), (I) 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 (II) 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



136-136-
 









 







an Assignment and
Assumption covering all or the remaining portion of an 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 2.13, 2.14, 2.15, 2.16 and 9.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this
paragraph 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 (f) of this Section.



     (c) By executing and delivering an Assignment and Assumption, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Loans, in each case without giving effect to
assignments thereof which have not become effective, are as set forth in such Assignment and
Assumption; (ii) except as set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any
other instrument or document furnished pursuant hereto, or the financial condition of the Borrower
or any Subsidiary or the performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Assumption; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent financial statements, if
any, delivered pursuant to Section 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such Assignment and
Assumption; (v) such assignee will independently and without reliance upon either Agent, such
assigning Lender or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (vi) such assignee appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are delegated to such Agent
by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.



     (d) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in The City of New York 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 Commitment of, and principal amount of (and interest on) the Loans and L/C Borrowings owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive absent manifest error and the Borrower, the Agents 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 (with respect to its
own interest only), at any reasonable time and from time to time upon reasonable prior notice.



     (e) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee
(unless the assignee shall already be a Lender hereunder), the processing and recordation fee
referred to in paragraph (b) above and, if required, the written consent of the Borrower, the
Administrative Agent, the Issuer and/or the Swing Line Lender to such assignment, the
Administrative Agent shall (i) accept such



137-137-
 









 







Assignment and Assumption, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the Borrower. No
assignment shall be effective unless it has been recorded in the Register as provided in this
paragraph (e).



     (f) Each Lender may without the consent of the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or any of the Borrower’s
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided, however, that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) each Participant shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.13, 2.14, 2.15 and 2.16 and the provisions of
Section 5.01 (subject to the requirements and limitations of such sections) to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section 9.04 (provided that no participant shall be entitled to receive any greater amount
pursuant to such Sections than the Lender would have been entitled to receive in respect of the
interest transferred unless either (x) such transfer to such Participant is made with the
Borrower’s prior written consent (not to be unreasonably withheld) or (y) a Default or an Event of
Default has occurred and is continuing at the time of such participation, and (iv) the Borrower,
the Agents, the Lenders and the Issuers shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement, and such Lender shall
retain the sole right (which each Lender agrees will not be limited by the terms of any
participation agreement or other agreement with a participant) to enforce the Loan Documents and to
approve any amendment, modification or waiver of any provision of the Loan Documents (other than,
without the consent of the Participant, amendments, modifications or waivers described in clauses
(i), (ii), (iii) and (iv) of Section 9.08(d) that affect such Participant). To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.06 as though
it were a Lender, provided such Participant agrees to be subject to Section 2.18 as though
it were a Lender.



     Each Lender that sells a participation shall, acting solely for this purpose as a
non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of
each Participant and the principal amounts (and related interest amount) of each participant’s
interest in the Loans or other obligations under this Agreement (the “Participant
Register”). 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.



     (g) Any Lender, without the consent of or notice to the Borrower or the Administrative Agent,
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 9.04 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. In order to facilitate such a pledge or
assignment, the Borrower shall, at the request of the assigning Lender, duly execute and deliver to
the assigning Lender a promissory note or notes evidencing the Loans made to the Borrower by the
assigning Lender hereunder.



     (h) The Borrower shall not assign or delegate any of its rights or duties hereunder without
the prior written consent of the Administrative Agent, each Issuer and each Lender, and any
attempted assignment without such consent shall be null and void.



138-138-
 









 





     SECTION 9.05. Expenses; Indemnity.



     (a) The Borrower agrees to pay (i) all reasonable and documented out-of-pocket expenses
incurred by the Administrative Agent, the Collateral Agent, each of the Arrangers and their
respective Affiliates, including the reasonable fees, charges and disbursements of Cahill Gordon &
Reindel llp, counsel for the Administrative Agent, the Collateral Agent and the Arrangers
(and appropriate foreign and local counsel in applicable foreign and local jurisdictions, but
limited to one local counsel in each such jurisdiction), in connection with the syndication of the
Loans and Commitments provided for herein, the preparation and administration of this Agreement and
the other Loan Documents or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby shall be
consummated), (ii) all reasonable out of pocket expenses incurred by each Issuer in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by any of the
Arrangers, the Administrative Agent, the Collateral Agent or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement (including its rights
under this Section), the other Loan Documents or the Loans made, including all such reasonable and
documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans, and, in connection with any such enforcement or protection, the reasonable
and documented fees, charges and disbursements of any other counsel for the Administrative Agent,
the Collateral Agent, any of the Arrangers or any Lender; provided that in the absence of
conflicts, reimbursement of legal fees and expenses shall be limited to reasonable fees, charges
and disbursements of one counsel for the Administrative Agent, the Collateral Agent, the Arrangers
and the Lenders (which counsel shall be designated by the Administrative Agent) (and any
appropriate foreign and local counsel in applicable foreign and local jurisdictions).



     (b) The Borrower agrees to indemnify the Administrative Agent, the Collateral Agent, the
Co-Syndication Agents, the Documentation Agent, each of the Arrangers, each Lender, each Affiliate
of any of the foregoing Persons and each of their respective Related Parties (each such Person
being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all
documented losses, claims, damages, liabilities and out-of-pocket expenses, including reasonable
out-of-pocket counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the execution, delivery
and enforcement of this Agreement or any other Loan Document or the Commitment Letter, Engagement
Letter or Fee Letter or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto or thereto of their respective obligations hereunder or thereunder, the
transactions contemplated hereby thereby, (ii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party thereto, or (iii) any
actual or alleged presence or Release of Hazardous Materials at, on, under or from any property
owned or operated by the Borrower or any of the Subsidiaries, or any Environmental Liability or
Environmental Claim related in any way to the Borrower or the Subsidiaries; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or expenses (A) are determined by a final judgment of a court of
competent jurisdiction to have arisen by reason of the Indemnitee’s gross negligence, bad faith or
willful misconduct or(B) arise from any action solely among Indemnitees, other than any such
actions that arise from an act or an omission of the Borrower or any Subsidiary (and
provided that withstanding the foregoing
provisions of this clause (B), the Administrative Agent, Collateral Agent, Issuer and Swing
Line Lender, each acting in such capacity, shall in any event be indemnified subject to the other
limitations set forth in this Section); and provided, further, that in the absence
of conflicts, reimbursement of reasonable legal fees, charges and disbursements in respect of any
matter for which indemnification is sought shall be



139-139-
 









 







limited to reasonable fees, charges and
disbursements of one counsel for all such Indemnitees (which counsel shall be designated by the
Administrative Agent) (and any appropriate foreign and local counsel in applicable foreign and
local jurisdictions).



     (c) To the extent that the Borrower fails to promptly pay any amount to be paid by it to any
Agent, any Issuer or the Swing Line Lender under paragraph (a) or (b) of this Section, each
Revolving Credit Lender and Term Lender severally agrees to pay to such Agent, Issuer or Swing Line
Lender, as the case may be, such Revolving Credit Lender or Term Lender’s pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount (other than syndication expenses); provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the applicable Agent, Issuer or the Swing Line Lender in its
capacity as such. For purposes hereof, a Revolving Credit Lender or
Term Lender’s “pro rata share”
shall be determined based upon its share of the sum of the total outstanding Term Loans and
Revolving Credit Commitments (or if the Aggregate Commitments have terminated, Revolving Credit
Exposure) at the time.



     (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, and no Indemnitee shall assert, and each Indemnitee hereby waives, any claim against the
Borrower or any Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any other agreement or instrument
contemplated hereby, the transactions contemplated hereby or any Loan or the use of the proceeds
thereof; provided that notwithstanding the foregoing, to the extent required by Section
9.05(b), the Borrower shall not be required to indemnify each Indemnitee for any special, indirect,
consequential or punitive damages of Persons other than any Indemnitee.



     (e) The provisions of this Section 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments and
Letters of Credit, the invalidity or unenforceability of any term or provision of this Agreement or
any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, an
Issuer or any Lender. All amounts due under this Section 9.05 shall be payable on written demand
(together with customary backup documentation supporting such reimbursement request) therefor.



     SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, Issuer and their
respective Affiliates are hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any time owing by such
Lender, Issuer or their respective Affiliates, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, to or for the credit or the account of any Loan Party upon any
amount becoming due and payable by any Loan Party hereunder or under any other Loan Document
(whether at stated maturity, by acceleration or otherwise) against any such due and payable amount
held by such Lender, Issuer or their respective Affiliates, irrespective of whether or not such
Lender, Issuer or their respective Affiliates shall have made any demand under this Agreement or
such other Loan Document. In connection with exercising its rights
pursuant to the previous sentence, a Lender, Issuer or their respective Affiliates may at any time
use any Loan Party’s credit balances with the Lender, Issuer or their respective Affiliates to
purchase at the Lender’s, Issuer’s or their respective Affiliates’ applicable spot rate of exchange
any other currency or currencies which the Lender, Issuer or their respective Affiliates considers
necessary to reduce or



140-140-
 









 







discharge any amount due by such Loan Party to the Lender, Issuer or their
respective Affiliates, and may apply that currency or those currencies in or towards payment of
those amounts. The rights of each Lender, Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender, Issuer and their respective Affiliates may have. Each Lender, Issuer or their respective
Affiliates agrees promptly to notify the Borrower and the Administrative Agent after making any
such setoff; provided that the failure to give such notice shall not affect the validity of such
setoff.



     SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.



     SECTION 9.08. Waivers; Amendment.



     (a) No failure or delay of any Agent, any Lender or any Issuer in exercising any power or
right hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Agents, the Lenders and the Issuers
hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or
remedies which they would otherwise have. No waiver of any provision of this Agreement or any
other Loan Document or consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default or Event of Default regardless of whether an Agent, any Lender or any Issuer
may have had notice or knowledge of such Default or Event of Default at the time. No notice or
demand on the Borrower in any case shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances.



     (b) Subject to Sections 9.08(c), 9.08(d), 9.08(f), 9.08(g) and 9.08(h), no amendment,
modification, termination or waiver of any provision of any Loan Document, or consent to any
departure by any Loan Party therefrom, shall in any event be effective without the written
concurrence of the Requisite Lenders (or the Administrative Agent with the written consent of the
Requisite Lenders).



     (c) After the initial Borrowings, no amendment, waiver or consent shall amend, modify
supplement or waive the conditions precedent set forth in Section 4.02 without the written consent
of the Required Revolving Lenders (it being understood that no other amendment, waiver, consent or
other modification of any term or provision of this Agreement, including any waiver of a covenant
or a Default or Event of Default, shall be deemed to be an amendment, waiver, consent or other
modification of Section 4.02 for purposes of this clause (c)).



     (d) Without the written consent of each Lender that would be directly adversely affected
thereby, no amendment, modification, termination, waiver or consent shall be effective if the
effect thereof would:




     (i) extend the scheduled final maturity of any Loan or Note or the expiration date of
any Commitment or increase the Commitment of any Lender;



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     (ii) reduce or forgive the rate of interest on any Loan or L/C Borrowing (other than
any waiver of the application of the Default Rate of interest);




     (iii) extend the time for payment of any such interest;




     (iv) reduce or forgive the principal amount of any Loan or L/C Borrowing or waive,
reduce or postpone any scheduled repayment pursuant to Section 2.06(c);




     (v) amend, modify, terminate or waive any provision of Section 9.08 (except for
technical amendments with respect to additional extensions of credit pursuant to this
Agreement contemplated by Section 2.21 or consented to by the Requisite Lenders which afford
the protections to such additional extensions of credit of the type provided to the Loans on
the Effective Date);




     (vi) except as expressly provided in the Loan Documents, release all or substantially
all of the Collateral or all or substantially all of the Subsidiary Guarantors from the
Guarantee Agreement or the Non-U.S. Guarantee Agreements, as applicable;




     (vii) consent to the assignment or transfer by any Loan Party of any of its rights and
obligations under any Loan Document;




     (viii) amend the indemnification obligations of the Lenders set forth in Section
9.05(c) or amend Sections 2.18 or 7.04 (only to the extent
relating to pro rata treatment of
Lenders); or




     (ix) increase the maximum duration of Interest Periods hereunder without the consent of
all Lenders.



     (e) No amendment, modification, termination, waiver or consent with respect to any provision
of the Loan Documents, or consent to any departure by any Loan Party therefrom, shall:




     (i) amend, modify, terminate or waive any provision of Article VIII as the same applies
to any Agent, or any other provision hereof as the same applies to the rights or obligations
of, or fees payable to, any Agent, in each case without the consent of such Agent;




     (ii) amend, modify, terminate or waive any provision of any Loan Document specifying
the percentage of Lenders required to waive, amend or modify any rights thereunder or make
any determination to grant any consent thereunder without the written consent of each
Lender;




     (iii) amend modify or waive any provision of this Agreement relating to the rights or
obligations of any Issuer without the consent of such Issuer; or




     (iv) amend, modify or waive any provision of this Agreement relating to the rights or
obligations of the Swing Line Lender without the consent of the Swing Line Lender.



     (f) If, in connection with any proposed change, waiver, discharge or termination of or to any
of the provisions of this Agreement, the consent of the Requisite Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right to either (i) replace such Non-Consenting Lender or Lenders (or, at
the option of the Borrower if the respective Lender’s consent is required with respect to less than
all Loans (or related Commitments), to replace only the Commitments and/or Loans of the respective
Non-Consenting Lender



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that gave rise to the need to obtain such Lender’s individual consent) with
one or more assignees pursuant to, and with the effect of an assignment under, Section 2.18 so long
as at the time of such replacement, each such assignee consents to the proposed change, waiver,
discharge or termination or (ii) terminate such Non-Consenting Lender’s Commitment (if such
Lender’s consent is required as a result of its Commitment) and/or repay each of the outstanding
Loans of such Lender that gave rise to the need to obtain such Lender’s consent; provided
that, unless the Commitments that are terminated and Loans that are repaid pursuant to the
preceding clause (ii) are immediately replaced in full at such time through the addition of new
Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in
each case must specifically consent thereto), then in the case of any action pursuant to the
preceding clause (ii), the Requisite Lenders (determined after giving effect to the proposed
action) shall specifically consent thereto.



     (g) Without the consent of any other Person, the Loan Parties and the Administrative Agent
and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required
by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or
enter into any new agreement or instrument, to effect the granting, perfection, protection,
expansion or enhancement of any security interest in any Collateral or additional property to
become Collateral for the benefit of the Secured Parties, or as required by local law to give
effect to, or protect any security interest for the benefit of the Secured Parties, in any property
or so that the security interests therein comply with applicable law. Notwithstanding anything to
the contrary contained in this Section 9.08, the Guarantee Agreement, the Non-U.S. Guarantee
Agreements, the Security Documents and any related documents executed by Non-U.S. Subsidiaries in
connection with this Agreement may be in a form reasonably determined by the Administrative Agent
and may, together with this Agreement, be amended and waived with the consent of the Administrative
Agent and the Collateral Agent at the request of the Borrower without the need to obtain the
consent of any other Lender if such amendment or waiver is delivered in order (i) to comply with
local Requirements of Law or advice of local counsel, (ii) to cure ambiguities or defects or (iii)
to cause such Guarantee Agreement, Non-U.S. Guarantee Agreement, Security Document or other
document to be consistent with this Agreement and the other Loan Documents.



     (h) Notwithstanding the foregoing, this Agreement and each Loan Document may be amended (or
amended and restated) with the written consent of the Requisite Lenders, the Administrative Agent
and the Borrower (a) to add one or more additional credit facilities to this Agreement and to
permit the extensions of credit from time to time outstanding thereunder and the accrued interest
and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan
Documents with the Obligations and (b) to include appropriately the Lenders holding such credit
facilities in any determination of the Requisite Lenders.



     (i) Further, notwithstanding anything to the contrary contained in this Section 9.08, if the
Administrative Agent and the Borrower shall have jointly identified an obvious error or any error
or omission of a technical nature, in each case that is immaterial (as determined by the
Administrative Agent), in any provision of the Loan Documents, then the Administrative Agent and
the Borrower shall be permitted to amend such provision and such amendment shall become effective
without any further action or consent of any other party to any Loan Document if the same is not
objected to in writing by the Requisite Lenders within five Business Days following receipt of
notice thereof.



     (j) Replacement Revolving Credit Facility. In addition, notwithstanding the
foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the
Borrower and the Lenders providing the relevant Replacement Revolving Credit Facility (as defined
below) to incur a replacement revolving credit facility (“Replacement Revolving Credit
Facility”) that permanently refinances, refunds, extends, renews or replaces all or a portion
of the Revolving Credit Commitments



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hereunder; provided that (a) the aggregate amount of
revolving commitments under such Replacement Revolving Credit Facility shall not, except as
permitted by Section 2.21, exceed, when aggregated with the amount of remaining Revolving Credit
Commitments, the amount of the Aggregate Commitments on the Effective Date, (b) the Borrower shall
be the only borrower under such Replacement Revolving Credit Facility and the Subsidiary Guarantors
shall be the only guarantors, if any, with respect thereto, (c) the maturity date of the
Replacement Revolving Credit Facility shall not be earlier than the Revolving Loan Maturity Date,
(d) the Indebtedness under such Replacement Revolving Credit Facility, if secured, is secured only
by Liens on the Collateral (and not by any other assets) granted in favor of the Collateral Agent
or another agent appointed in connection with such Replacement Revolving Credit Facility that are
subject to the terms of an intercreditor agreement that is reasonably satisfactory to the
Collateral Agent, (e) the interest rate and fees applicable to the Replacement Revolving Credit
Facility shall be determined by the Borrower and the applicable new lenders, (f) such Replacement
Revolving Credit Facility may have other terms applicable to letters of credit and swingline loans
issued thereunder and (g) all other terms of such Replacement Revolving Credit Facility shall be
substantially similar to the Revolving Commitments.



     SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate (the
“Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the
Lender holding such Loan or participation in accordance with applicable law, the rate of interest
payable in respect of such Loan or participation hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan or participation but were not payable
as a result of the operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or participations or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been received by such
Lender.



     SECTION 9.10. Entire Agreement. This Agreement and the other Loan Documents constitute the entire contract between the parties
relative to the subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan Documents;
provided that any letter agreement relating to the subject matter hereof between or among
the Borrower and any of the Agents, the Arrangers the Issuers and the Lenders shall remain
effective in accordance with its terms. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any party other than the parties hereto and
thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement or
the other Loan Documents.



     SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES



144-144-
 









 







THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.



     SECTION 9.12. Severability. In the event any one or more of the provisions contained in this Agreement or in any other Loan
Document should be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable provisions.



     SECTION 9.13. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original but all of which when taken together
shall constitute a single contract, and shall become effective as provided in Section 9.03.
Delivery of an executed signature page to this Agreement by facsimile transmission or other
electronic image scan transmission (e.g., “PDF” or “tif” via e-mail) shall be as effective
as delivery of a manually signed counterpart of this Agreement.



     SECTION 9.14. Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.



     SECTION 9.15. Jurisdiction; Consent to Service of Process.



     (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the exclusive jurisdiction of any New York State court or Federal court of the
United States of America for the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
shall be heard and determined exclusively in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right
that the Administrative Agent, the Collateral Agent or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents against the Borrower or
its properties in the courts of any jurisdiction.



     (b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or the other Loan Documents in any New York State or Federal court referred to in paragraph (a) of
this Section. Each of



145-145-
 









 







the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.



     (c) Each party to this Agreement irrevocably consents to service of process by hand or
overnight courier service, or mailed by certified or registered mail. Nothing in this Agreement or
any other Loan Document will affect the right of any party to this Agreement to serve process in
any other manner permitted by law.



     SECTION 9.16. Confidentiality. Each of the Administrative Agent, the Collateral Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Related Parties (it being understood that the Persons to whom such disclosure is made will
be informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process (it being understood that, to the extent permitted, the
Administrative Agent, the Collateral Agent or such Lender or such Issuer, as the case may be, shall
provide the Borrower with prompt notice thereof to the extent permitted by law or such legal
process), (d) to any other party hereto, (e) in connection with (i) the exercise of any remedies
hereunder or under any other Loan Document, (ii) any action or proceeding relating to this
Agreement or any other Loan Document, (iii) the enforcement of rights under this Agreement or under
any other Loan Document or (iv) any litigation or proceeding to which the Administrative Agent, the
Collateral Agent, any Issuer or any Lender or any of its respective Affiliates may be a party;
provided, however, in each case in this clause (e), the applicable Agent, Issuer or Lender or their
Affiliates, as the case may be, shall take reasonable steps to preserve the confidential nature of
the information, (f) subject to an agreement containing provisions substantially the same as those
of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (ii) any actual or
prospective direct or indirect party (or its managers, administrators, trustees, partners,
directors, officers, employees, agents, advisors and other representatives), surety, reinsurer,
guarantor or credit liquidity enhancer (or their advisors) to or in connection with any swap,
derivative or other similar transaction under which payments are to be made by reference to the
Obligations or to the Borrower and its obligations or to this Agreement or payments hereunder,
(iii) any rating agency when required by it, (iv) the CUSIP Service Bureau or any similar
organization, (g) in customary fashion to market data collectors, similar services providers to the
lending industry, and service providers to any of the Arrangers, the Agents, the Co-Syndication
Agents, the Documentation Agent and the Lenders in connection with the administration and
management of this Agreement and the other Loan Documents, (h) with the consent of the Borrower or
(i) to the extent such Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to the Administrative Agent, the Collateral Agent,
any Lender or any of their respective Affiliates on a nonconfidential basis from a source other
than any Loan Party not in violation of any written confidentiality agreement to the knowledge of
such Agent, Lender or Affiliate. For purposes of this Section, “Information” means all
non-public information received from any Loan Party or any of its respective Subsidiaries relating
to any Loan Party or any of its respective Subsidiaries or any of their respective businesses,
other than any such information that is available to the Administrative Agent, the Collateral Agent
or any Lender on a nonconfidential basis prior to disclosure by any Loan
Party or any of its respective Subsidiaries. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied with its obligation
to do so if such Person has complied with Requirements of Law or exercised commercially reasonable
care.



146-146-
 









 





     SECTION 9.17. Posting of Approved Electronic Communications.



     (a) Each of the Lenders and each Loan Party agree that the Administrative Agent may, but shall
not be obligated to, make the Approved Electronic Communications available to the Lenders by
posting such Approved Electronic Communications on IntraLinksTM or a substantially similar secured
electronic platform chosen by the Administrative Agent to be its electronic transmission system
(the “Approved Electronic Platform”).



     (b) Although the Approved Electronic Platform and its primary web portal are secured with
generally-applicable security procedures and policies implemented or modified by the Administrative
Agent from time to time (including, as of the Effective Date, a dual firewall and a User
ID/Password Authorization System) and the Approved Electronic Platform is secured through a
single-user-per-deal authorization method whereby each user may access the Approved Electronic
Platform only on a deal-by-deal basis, each of the Lenders and each Loan Party acknowledges and
agrees that the distribution of material through an electronic medium is not necessarily the most
secure method of communication and that there are confidentiality and other risks associated with
such distribution. In consideration for the convenience and other benefits afforded by such
distribution and for the other consideration provided hereunder, the receipt and sufficiency of
which is hereby acknowledged, each of the Lenders and each Loan Party hereby approves distribution
of the Approved Electronic Communications through the Approved Electronic Platform and understands
and assumes the risks of such distribution.



     (c) THE APPROVED ELECTRONIC PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS ARE PROVIDED
“AS IS” AND “AS AVAILABLE.” NONE OF THE ADMINISTRATIVE AGENT NOR ANY OTHER MEMBER OF THE AGENT’S
GROUP WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE APPROVED ELECTRONIC COMMUNICATIONS OR
THE APPROVED ELECTRONIC PLATFORM AND EACH EXPRESSLY DISCLAIMS ANY LIABILITY FOR ERRORS OR OMISSIONS
IN THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OTHER MEMBER
OF THE AGENT’S GROUP IN CONNECTION WITH THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM.



     (d) Each of the Lenders and each Loan Party agree that the Administrative Agent may, but
(except as may be required by applicable law) shall not be obligated to, store the Approved
Electronic Communications on the Approved Electronic Platform in accordance with the Administrative
Agent’s generally-applicable document retention procedures and policies.



     SECTION 9.18. Treatment of Information.



     (a) Certain of the Lenders may enter into this Agreement and take or not take action hereunder
or under the other Loan Documents on the basis of information that does not contain material
non-public information with respect to any of the Loan Parties or their securities
(“Restricting Information”). Other Lenders may enter into this Agreement and take or not
take action hereunder or



147-147-
 









 







under the other Loan Documents on the basis of information that may
contain Restricting Information. Each Lender acknowledges that United States federal and state
securities laws prohibit any person from purchasing or selling securities on the basis of material,
non-public information concerning the such issuer of such securities or, subject to certain limited
exceptions, from communicating such information to any other Person. Neither the Administrative
Agent nor any of its Related Parties shall, by making any Communications (including Restricting
Information) available to a Lender, by participating in any conversations or other interactions
with a Lender or otherwise, make or be deemed to make any statement with regard to or otherwise
warrant that any such information or Communication does or does not contain Restricting Information
nor shall the Administrative Agent or any of its Related Parties be responsible or liable in any
way for any decision a Lender may make to limit or to not limit its access to Restricting
Information. In particular, none of the Administrative Agent nor any of its Related Parties (i)
shall have, and the Administrative Agent, on behalf of itself and each of its Related Parties,
hereby disclaims, any duty to ascertain or inquire as to whether or not a Lender has or has not
limited its access to Restricting Information, such Lender’s policies or procedures regarding the
safeguarding of material, nonpublic information or such Lender’s compliance with applicable laws
related thereto or (ii) shall have, or incur, any liability to any Loan Party or Lender or any of
their respective Related Parties arising out of or relating to the Administrative Agent or any of
its Related Parties providing or not providing Restricting Information to any Lender.



     (b) Each Loan Party agrees that (i) all Communications it provides to the Administrative Agent
intended for delivery to the Lenders whether by posting to the Approved Electronic Platform or
otherwise shall be clearly and conspicuously marked “PUBLIC” if such Communications do not contain
Restricting Information which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof, (ii) by marking Communications “PUBLIC,” each Loan Party
shall be deemed to have authorized the Administrative Agent and the Lenders to treat such
Communications as either publicly available information or not material information (although, in
this latter case, such Communications may contain sensitive business information and, therefore,
remain subject to the confidentiality undertakings of Section 9.16) with respect to such Loan Party
or its securities for purposes of United States Federal and state securities laws, (iii) all
Communications marked “PUBLIC” may be delivered to all Lenders and may be made available through a
portion of the Approved Electronic Platform designated “Public Side Information,” and (iv) the
Administrative Agent shall be entitled to treat any Communications that are not marked “PUBLIC” as
Restricting Information and may post such Communications to a portion of the Approved Electronic
Platform not designated “Public Side Information.” Neither the Administrative Agent nor any of its
Affiliates shall be responsible for any statement or other designation by an Loan Party regarding
whether a Communication contains or does not contain material non-public information with respect
to any of the Loan Parties or their securities nor shall the Administrative Agent or any of its
Affiliates incur any liability to any Loan Party, any Lender or any other Person for any action
taken by the Administrative Agent or any of its Affiliates based upon such statement or
designation, including any action as a result of which Restricting Information is provided to a
Lender that may decide not to take access to Restricting Information. Nothing in this Section 9.18
shall modify or limit a Lender’s obligations under Section 9.16 with regard to Communications and
the maintenance of the confidentiality of or other treatment of Information.



     (c) Each Lender acknowledges that circumstances may arise that require it to refer to
Communications that might contain Restricting Information. Accordingly, each Lender agrees that it
will nominate at least one designee to receive Communications (including Restricting Information)
on its
behalf and identify such designee (including such designee’s contact information) on such
Lender’s Administrative Questionnaire. Each Lender agrees to notify the Administrative Agent from
time to time of such Lender’s designee’s e-mail address to which notice of the availability of
Restricting Information may be sent by electronic transmission.



148-148-
 









 





     (d) Each Lender acknowledges that Communications delivered hereunder and under the other Loan
Documents may contain Restricting Information and that such Communications are available to all
Lenders generally. Each Lender that elects not to take access to Restricting Information does so
voluntarily and, by such election, acknowledges and agrees that the Administrative Agent and other
Lenders may have access to Restricting Information that is not available to such electing Lender.
None of the Administrative Agent nor any Lender with access to Restricting Information shall have
any duty to disclose such Restricting Information to such electing Lender or to use such
Restricting Information on behalf of such electing Lender, and shall not be liable for the failure
to so disclose or use, such Restricting Information.



     (e) The provisions of the foregoing clauses of this Section 9.18 are designed to assist the
Administrative Agent, the Lenders and the Loan Parties, in complying with their respective
contractual obligations and applicable law in circumstances where certain Lenders express a desire
not to receive Restricting Information notwithstanding that certain Communications hereunder or
under the other Loan Documents or other information provided to the Lenders hereunder or thereunder
may contain Restricting Information. Neither the Administrative Agent nor any of its Related
Parties warrants or makes any other statement with respect to the adequacy of such provisions to
achieve such purpose nor does the Administrative Agent or any of its Related Parties warrant or
make any other statement to the effect that an Loan Party’s or Lender’s adherence to such
provisions will be sufficient to ensure compliance by such Loan Party or Lender with its
contractual obligations or its duties under applicable law in respect of Restricting Information
and each of the Lenders and each Loan Party assumes the risks associated therewith.



     SECTION 9.19. USA PATRIOT Act Notice. Each Lender that is subject to the PATRIOT Act and each Agent (for itself and not on behalf of
any Lender) hereby notifies the Borrower and the other Loan Parties 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 the Borrower and the other Loan Parties, which information includes the name, address
and tax identification number of the Borrower and the other Loan Parties and other information
regarding the Borrower and the other Loan Parties that will allow such Lender or Agent, as
applicable, to identify the Borrower and the other Loan Parties in accordance with the PATRIOT Act.
This notice is given in accordance with the requirements of the PATRIOT Act and is effective as to
the Lenders and the Agents.



     SECTION 9.20. Intercreditor Agreement. Notwithstanding anything to the contrary contained herein, each Lender acknowledges that the
Lien and security interest granted to the Collateral Agent pursuant to the Security Documents and
the exercise of any right or remedy by such Collateral Agent thereunder may become subject to the
provisions of the First Lien Intercreditor Agreement. In the event of any conflict between the
terms of the First Lien Intercreditor Agreement and the Security Documents, the terms of the First
Lien Intercreditor Agreement shall govern and control.



     SECTION 9.21. No Fiduciary Duty. Each Agent, the Co-Syndication Agents, the Documentation Agent, each Joint Lead Arranger and
Bookrunner, each Issuer and each Lender and their respective Affiliates (collectively, the
“Lender Parties”), may have economic interests that conflict with those of the Borrower and
its Subsidiaries. The Borrower agrees 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 the Lender Parties and the



149-149-
 









 







Borrower, its Subsidiaries, its stockholders or its other
affiliates. The Borrower acknowledges and agrees that (i) the transactions contemplated by the
Loan Documents are arm’s-length commercial transactions between the Lender Parties, on the one
hand, and the Borrower and its applicable Subsidiaries, on the other, (ii) in connection therewith
and with the process leading to such transaction each of the Lender Parties is acting solely as a
principal and not the agent or fiduciary of the Borrower or any of its Subsidiaries, or their
respective management, stockholders, creditors or any other Person, (iii) no Lender Party has
assumed an advisory or fiduciary responsibility in favor of the Borrower or any of its Subsidiaries
with respect to the transactions contemplated hereby or the process leading thereto (irrespective
of whether any Lender Party or any of its affiliates has advised or is currently advising the
Borrower or any of its Subsidiaries on other matters) or any other obligation to the Borrower
except the obligations expressly set forth in the Loan Documents and (iv) each of the Borrower and
its Subsidiaries have consulted their own legal and financial advisors to the extent they have
deemed appropriate. The Borrower further acknowledges and agrees that it and each of its
Subsidiaries is responsible for making its own independent judgment with respect to such
transactions and the process leading thereto. The Borrower agrees that it will not, and will cause
each of its Subsidiaries not to, claim that any Lender Party has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to the Borrower or any of its Subsidiaries,
in connection with such transactions or the process leading thereto.



     SECTION 9.22. Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative
Agent, any Issuer or any Lender, or the Administrative Agent, such Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, such Issuer or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such setoff had not
occurred, and (b) each Lender and each Issuer severally agrees to pay to the Administrative Agent
upon demand its applicable share (without duplication) of any amount so recovered from or repaid by
the Administrative Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.
The obligations of the Lenders and the Issuers under clause (b) of the preceding sentence
shall survive the payment in full of the Obligations and the termination of this Agreement.



[Signature Pages Follow]




150-150-
 









 








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



	 	 	 	 	 
	 	SOLUTIA INC.,

as Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-1
 









 






	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Administrative Agent, Collateral Agent, Swing Line

Lender and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-2
 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITIBANK, N.A,

as a Lender and an Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-3
 









 






	 	 	 	 	 



	 	 	 	 	 
	 	[                    ],

as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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