EXHIBIT
10.2


$74,000,000
  CREDIT
AGREEMENT
 Dated as
of May 5, 2009
  among
  FLEXSYS
VERKAUF GMBH,
  as
Borrower,
  FLEXSYS
VERWALTUNGS- UND BETEILIGUNGSGESELLSCHAFT MBH,
  as
Holdings Guarantor,
  THE
LENDERS REFERRED TO HEREIN,
  and
  JEFFERIES
FINANCE LLC,
  as Sole
Lead Arranger, Sole Bookrunner and Administrative Agent.







TABLE OF
CONTENTS


PageARTICLE I
                          DEFINITIONS
                          1SECTION
      1.01
                          Defined
      Terms
                          1SECTION
      1.02
                          Types
      of Loans and Borrowings
                          21SECTION
      1.03
                          Terms
      Generally; Currency Translation; Accounting Terms; GAAP
                          21SECTION
      1.04
                          Resolution
      of Drafting Ambiguities
                          23ARTICLE II
                          THE LOANS
                          23SECTION
      2.01
                          Commitments
                          23SECTION
      2.02
                          Procedure
      for Borrowing
                          23SECTION
      2.03
                          Conversion
      and Continuation Options for Loans
                          24SECTION
      2.04
                          Optional
      and Mandatory Prepayments of Loans; Repayments of Loans
                          24SECTION
      2.05
                          Repayment
      of Loans; Evidence of Debt
                          26SECTION
      2.06
                          Interest
      Rates and Payment Dates; Default Interest
                          26SECTION
      2.07
                          Computation
      of Interest
                          27SECTION
      2.08
                          Agent
      Fees
                          27SECTION
      2.09
                          Termination
      of Commitments
                          27SECTION
      2.10
                          Inability
      to Determine Interest Rate; Unavailability of Deposits; Inadequacy of
      Interest Rate
                          27SECTION
      2.11
                          Pro
      Rata Treatment and Payments
                          28SECTION
      2.12
                          Illegality
                          28SECTION
      2.13
                          Requirements
      of Law
                          29SECTION
      2.14
                          Taxes
                          29SECTION
      2.15
                          Indemnity
                          32SECTION
      2.16
                          Change
      of Lending Office
                          33SECTION
      2.17
                          Sharing
      of Setoffs
                          33SECTION
      2.18
                          Assignment
      of Commitments Under Certain Circumstances
                          33SECTION
      2.19
                          Notice
      of Certain Costs
                          34ARTICLE III
                          REPRESENTATION AND
    WARRANTIES
                          34SECTION
      3.01
                          Organization,
      etc.
                          34SECTION
      3.02
                          Due
      Authorization, Non-Contravention, etc.
                          35SECTION
      3.03
                          Government
      Approval, Regulation, etc.
                          35SECTION
      3.04
                          Validity,
      etc.
                          35SECTION
      3.05
                          Financial
      Information
                          35SECTION
      3.06
                          No
      Material Adverse Effect
                          36SECTION
      3.07
                          Litigation
                          36SECTION
      3.08
                          Compliance
      with Laws and Agreements; No Defaults
                          36SECTION
      3.09
                          Ownership
      of Subsidiaries
                          36SECTION
      3.10
                          Ownership
      of Properties
                          37SECTION
      3.11
                          Intellectual
      Property
                          37SECTION
      3.12
                          Taxes
                          38SECTION
      3.13
                          Environmental
                          38SECTION
      3.14
                          Federal
      Reserve Regulations
                          39SECTION
      3.15
                          Disclosure;
      Accuracy of Information; Pro Forma Balance Sheets and Projected Financial
      Statements
                          39SECTION
      3.16
                          Insurance
                          40SECTION
      3.17
                          Labor
      Matters
                          40SECTION
      3.18
                          Solvency
                          41SECTION
      3.19
                          Use
      of Proceeds
                          41SECTION
      3.20
                          Anti-Terrorism
      Laws
                          41SECTION
      3.21
                          Legal
      Form; No Filing
                          42SECTION
      3.22
                          Pari
      Passu Ranking; Liens
                          42
 
  
 
 
 ARTICLE IV
                        CONDITIONS
                        42SECTION
      4.01
                        Effective
      Date
                        42ARTICLE V
                        AFFIRMATIVE COVENANTS
                        45SECTION
      5.01
                        Financial
      Information, Reports, Notices, etc.
                        45SECTION
      5.02
                        Compliance
      with Laws, etc.
                        47SECTION
      5.03
                        Maintenance
      of Properties
                        47SECTION
      5.04
                        Insurance
                        47SECTION
      5.05
                        Books
      and Records; Visitation Rights; Lender Meetings
                        47SECTION
      5.06
                        Environmental
      Covenant
                        48SECTION
      5.07
                        Existence;
      Conduct of Business
                        48SECTION
      5.08
                        Performance
      of Oblligations
                        48SECTION
      5.09
                        Use
      of Proceeds
                        48SECTION
      5.10
                        Payment
      of Taxes and Claims
                        48SECTION
      5.11
                        Additional
      Guarantors
                        49SECTION
      5.12
                        Pension
      Plans
                        49SECTION
      5.13
                        Maintenance
      of Corporate Separateness
                        49ARTICLE VI
                        NEGATIVE COVENANTS
                        50SECTION
      6.01
                        Indebtedness
                        50SECTION
      6.02
                        Liens
                        51SECTION
      6.03
                        Fundamental
      Changes; Line of Business
                        53SECTION
      6.04
                        Investments,
      Loans, Advances, Guarantees and Acquisitions
                        54SECTION
      6.05
                        Asset
      Sales
                        56SECTION
      6.06
                        Sale
      and Leaseback Transactions
                        56SECTION
      6.07
                        Restricted
      Payments
                        57SECTION
      6.08
                        Transactions
      with Affiliates
                        57SECTION
      6.09
                        Restrictive
      Agreements
                        58SECTION
      6.10
                        Amendments
      or Waivers of Certain Documents; Prepayments of Certain
      Indebtedness
                        58SECTION
      6.11
                        Accounting
      Treatment; Fiscal Year
                        59SECTION
      6.12
                        Fixed
      Charge Coverage Ratio
                        59SECTION
      6.13
                        Total
      Leverage Ratio
                        59SECTION
      6.14
                        Capital
      Expenditures
                        60SECTION
      6.15
                        Maximum
      Trade Payables
                        60SECTION
      6.16
                        Hedging
      Agreements
                        60SECTION
      6.17
                        Limitation
      on Issuances and Sales of Equity Interests of Subsidiaries and Preferred
      Equity Interests
                        60ARTICLE VII
                        EVENTS OF DEFAULT
                        60SECTION
      7.01
                        Listing
      of Events of Default
                        60SECTION
      7.02
                        Action
      if Bankruptcy
                        63SECTION
      7.03
                        Action
      if Other Event of Default
                        63
 
 
 
 
 
   ARTICLE VIII
                    THE ADMINISTRATIVE AGENT
                    63SECTION
      8.01
                    Appointment
      and Authority
                    63SECTION
      8.02
                    The
      Administrative Agent and its Affiliates
                    63SECTION
      8.03
                    Duties
      of Administrative Agent; Exculpatory Provisions
                    64SECTION
      8.04
                    Reliance
      by Administrative Agent
                    66SECTION
      8.05
                    Delegation
      of Duties
                    66SECTION
      8.06
                    Resignation
      of Administrative Agent
                    66SECTION
      8.07
                    Non-Reliance
      on Administrative Agent and Other Lenders
                    67ARTICLE IX
                    MISCELLANEOUS
                    68SECTION
      9.01
                    Notices
                    68SECTION
      9.02
                    Survival
      of Agreement
                    69SECTION
      9.03
                    Binding
      Effect
                    70SECTION
      9.04
                    Successors
      and Assigns
                    70SECTION
      9.05
                    Expenses;
      Indemnity
                    72SECTION
      9.06
                    Right
      of Setoff
                    74SECTION
      9.07
                    Applicable
      Law
                    74SECTION
      9.08
                    Waivers;
      Amendment
                    74SECTION
      9.09
                    Interest
      Rate Limitation
                    76SECTION
      9.10
                    Entire
      Agreement
                    77SECTION
      9.11
                    WAIVER
      OF JURY TRIAL
                    77SECTION
      9.12
                    Severability
                    77SECTION
      9.13
                    Counterparts
                    77SECTION
      9.14
                    Headings
                    77SECTION
      9.15
                    Jurisdiction;
      Consent to Service of Process
                    78SECTION
      9.16
                    Confidentiality
                    78SECTION
      9.17
                    Posting
      of Approved Electronic Communications
                    79SECTION
      9.18
                    Treatment
      of Information
                    80SECTION
      9.19
                    USA
      PATRIOT Act Notice
                    81SECTION
      9.20
                    No
      Fiduciary Duty
                    82SECTION
      9.21
                    Judgment
      Currency
                    82










EXHIBIT
      A
            Form
      of Administrative Questionnaire


EXHIBIT
      B
            Form
      of Borrowing Request


EXHIBIT
      C
            Form
      of Assignment and Assumption


EXHIBIT
      D
            Form
      of Compliance Certificate


EXHIBIT
      E-1
            Form
      of Opinion of Kirkland & Ellis
LLP


EXHIBIT
      E-2
            Form
      of Opinion of Allen & Overy LLP


EXHIBIT
      F
            Form
      of Note


EXHIBIT
      G
            Form
      of Closing Certificate


EXHIBIT
      H
            Form
      of Holdings Guarantee Agreement


EXHIBIT
      I
            Form
      of Solvency Certificate





SCHEDULE
      2.01
            Lenders
      and Commitments


SCHEDULE
      3.05
            Financial
      Information


SCHEDULE
      3.09(a)
            Subsidiaries


SCHEDULE
      3.09(b)
            Securities


SCHEDULE
      3.10(a)
            Options,
      Rights of First Refusal, Etc.


SCHEDULE
      3.16
              InsuranceSCHEDULE
      6.01(ii)(A)
              Existing
      IndebtednessSCHEDULE
      6.01(ii)(B)
              Existing
      Indebtedness








SCHEDULE
      6.02(ii)
            Existing
      Liens


SCHEDULE
      6.04
            Existing
      Investments


SCHEDULE
      6.09
            Existing
      Restrictions


SCHEDULE
      6.10(d)
            Material
      Agreements


iv






CREDIT AGREEMENT (this
“Agreement”)
dated as of May 5, 2009, among Flexsys Verkauf GmbH, a limited liability company
organized under the laws of the Federal Republic of Germany (the “Borrower”); Flexsys
Verwaltungs- und Beteiligungsgesellschaft mbH, a limited liability company
organized under the laws of the Federal Republic of Germany (the “Holdings Guarantor”);
each of the Lenders (as defined in Section 1.01); and Jefferies Finance LLC, as
sole lead arranger (in such capacity, the “Arranger”), as sole
bookrunner (in such capacity, the “Bookrunner”) and as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).




The
parties hereto agree as follows:




ARTICLE
I









DEFINITIONS




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




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




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




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




“Adjusted LIBO Rate”
means, with respect to any Interest Period for any Eurodollar Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing (a) the
LIBO Rate by (b)(i) a percentage equal to 100% minus (ii) the reserve percentage
applicable two Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the LIBO Rate is determined) having
a term equal to such Interest Period.




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




“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 Pension Plan); provided, however, that for
purposes of Section 6.08, the term “Affiliate” shall also include (i) any Person
that directly or indirectly owns more than 10% of Equity Interests having
ordinary voting power for the election of directors (or Persons performing
similar functions) of the Person specified or (ii) any Person that is an
executive officer or director of the Person specified.




“Agent Fees” has the
meaning assigned to such term in Section 2.08(a).




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




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







“Alternate Base Rate”
means, with respect to any day, a fluctuating interest rate per annum as shall
be in effect from time to time, which rate per annum shall be equal at all times
to the highest of the following:




(a)           the
“U.S. Prime Lending Rate” as most recently published in the Wall Street
Journal;




(b)           the
sum of (i) the Federal Funds Rate as in effect on such day plus (ii)
0.50%;




(c)           the
sum of (i) the Adjusted LIBO Rate for such day as if the Interest Period then in
effect was one day plus (ii) 1.00%;
and




(d)           4.50%
per annum.




“Anti-Terrorism Laws”
has the meaning assigned to such term in Section 3.20(a).




“Applicable Margin”
means, for any day, (a) 7.50% per annum, in the case of ABR Loans, and
(b) 8.50% per annum, in the case of Eurodollar Loans.




“Approved Electronic
Communications” means each Communication that any Loan Party is obligated
to, or otherwise chooses to, provide to the Administrative 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, however, that, solely
with respect to delivery of any such Communication by any Loan Party to the
Administrative Agent and without limiting or otherwise affecting either the
Administrative Agent’s right to effect delivery of such Communication by posting
such Communication to the Approved Electronic Platform or the protections
afforded hereby to the Administrative Agent in connection with any such posting,
“Approved Electronic Communication” shall exclude (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 2.04 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
Article IV or any other condition to any Borrowing hereunder or any condition
precedent to the effectiveness of this Agreement.




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




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




“Asset Sale” means any
direct or indirect sale, transfer, lease (as lessor), conveyance or other
disposition (including by way of merger or consolidation) by the Borrower or any
of its 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.




“Asset Sale Prepayment
Event” means any Asset Sale, except (a) Asset Sales permitted by
Section 6.05 (other than Section 6.05(vii) 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 $500,000 (or,
when taken together with all other such transactions (and any Destructions and
Takings in such Fiscal Year), do not generate Net Proceeds in excess of $500,000
in the aggregate in such Fiscal Year).







“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 the Borrower, those of its managing directors and/or
procurists whose signature and incumbency has been certified to the
Administrative Agent and the Lenders by the Borrower in a certificate dated the
Effective Date, or any successor certificate thereto.




“Base Amount” has the
meaning assigned to such term in Section 6.14(a).




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




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




“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 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 Date” means
any Business Day specified in a notice pursuant to Section 2.02 as a date
on which the Borrower requests Loans to be made hereunder.




“Borrowing Request”
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 or Frankfurt am Main, Germany are authorized or
required by law to close.




“Capital Expenditures”
means, for any period, any and all expenditures made by the Borrower or any of
its 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 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 capital expenditures
funded with Net Proceeds which represent the repair, replacement, substitution,
restoration of or reinvestment in property in accordance with Section
2.04(b).




“Capital Lease
Obligations” means all monetary obligations of the Borrower and its
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 and the stated maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease or
other arrangement prior to the first date on which such lease may be terminated
by the lessee without payment of a penalty.




“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).




“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, except that for purposes of this clause such
person or group shall be deemed to have “beneficial ownership” of all securities
that such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), 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 Parent;




(ii) since
the Effective Date, individuals who on such date constituted the board of
directors of the Parent (together with any new directors whose election to the
Board of Directors or whose nomination for election by the shareholders of the
Parent was approved by a vote of the majority of the directors of the Parent
then still in office who were either directors on such date 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 Parent then in
office;




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




(iv) Parent at
any time ceases to own, directly or indirectly, 100% of the Equity Interests of
the Holdings Guarantor or ceases to have the power to vote, or direct the voting
of, any such Equity Interests of Parent;




(v) Parent,
at any time prior to the occurrence of the Permitted Transfer, ceases to own,
directly or indirectly, 100% of the Equity Interests of Flexsys AG or ceases to
have the power to vote, or direct the voting of, any such Equity
Interests;




(vi) the
Holdings Guarantor at any time ceases to own directly 76.09% of the Equity
Interests of the Borrower or ceases to have the power to vote, or direct the
voting of, any such Equity Interests;




(vii)  Flexsys
AG at any time ceases to own directly, prior to the occurrence of the Permitted
Transfer, 23.91% of the Equity Interests of the Borrower or ceases to have the
power to vote, or direct the voting of, any such Equity Interests;
or




(viii)  after the
Permitted Transfer, Flexsys Holdings B.V. ceases to own directly 23.91% of the
Equity Interests of the Borrower or ceases to have the power to vote, or direct
the voting of, any such Equity Interests.




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.







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




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




“Commitment” means,
with respect to each Lender, the commitment, if any, of such Lender to make a
Loan hereunder on the Effective Date.  The amount of each Lender’s
Commitment is set forth on Schedule 2.01 or
in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Commitment, as applicable.  The aggregate amount of the
Lenders’ Commitments is $74.0 million.




“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 to 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 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 determined on a consolidated basis in accordance
with GAAP (it being understood and agreed that notwithstanding anything to the
contrary herein or as may be required under GAAP, Permitted Tax Distributions
actually made in cash during such period shall be deemed to constitute income
tax expense paid in cash during such period), (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) any
unusual or non-recurring 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, and excluding amortization of a prepaid
cash item that was paid in a prior period), (f) 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, (g) to the extent the related loss is not added
back in calculating such Consolidated Net Income, proceeds of business
interruption insurance policies to the extent of such related loss and (h) costs
and expenses arising from the Transactions not otherwise capitalized not to
exceed $1.0 million, which were incurred on or prior to the date that is six
months after the Effective Date; and minus, without
duplication, (i) 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) any unusual or non-recurring
gains.




Consolidated
EBITDA shall be calculated on a Pro Forma Basis to give effect any Asset Sales
consummated at any time on or after the first day of the Test Period thereof as
if each such Asset Sale had been effected on the first day of such Test
Period.




Notwithstanding
the foregoing (i) Consolidated EBITDA for the Fiscal Quarter of the Borrower and
its Subsidiaries ended September 30, 2008 shall be deemed to be $9,596,468, (ii)
Consolidated EBITDA for the Fiscal Quarter of the Borrower and its Subsidiaries
ended December 31, 2008 shall be deemed to be $10,179,931 and (iii) Consolidated
EBITDA for the Fiscal Quarter of the Borrower and its Subsidiaries ended March
31, 2009 shall be deemed to be $5,161,000.







“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 (it being
understood and agreed that notwithstanding anything to the contrary herein or as
may be required under GAAP, Permitted Tax Distributions actually made in cash
during such period shall be deemed to constitute cash payments in respect of
income taxes made during such period) (net of any cash refund in respect of
income taxes actually received during such period); and




(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 Subsidiaries for such period (as determined on the first day of
the respective period).




Notwithstanding
the foregoing, solely for purposes of calculating the Fixed Charge Coverage
Ratio, (i) Cash Interest Expense shall be deemed to be $2,220,000 for each of
the Fiscal Quarters of the Borrower and its Subsidiaries ended September 30,
2008, December 31, 2008 and March 31, 2009 and (ii) cash payments in respect of
income taxes shall be deemed to be $2,606,344 for the Fiscal Quarter of the
Borrower and its Subsidiaries ended September 30, 2008, $2,911,096 for the
Fiscal Quarter of the Borrower and its Subsidiaries ended December 31, 2008 and
$1,409,360 for the Fiscal Quarter of the Borrower and its Subsidiaries ended
March 31, 2009.




“Consolidated
Indebtedness” means, at a particular date, the aggregate stated balance
sheet amount of all Indebtedness of the Borrower and its Subsidiaries determined
on a consolidated basis in accordance with GAAP at such date (excluding PLPA
Indebtedness), plus, without duplication, the principal amount of Indebtedness
of the Borrower and its 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 Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP consistently applied
(including (i) amortization of debt issuance costs and debt discount, (ii) the
net 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; and




(c)           all
interest capitalized during such period.




Consolidated
Interest Expense and Cash Interest Expense shall be calculated on a Pro Forma
Basis to give effect to any Indebtedness incurred, assumed or permanently repaid
or extinguished during the relevant Test Period in connection with the
Transactions 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 Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP consistently applied; provided that (i)
notwithstanding anything to the contrary herein or as may be required under
GAAP, the aggregate amount of Permitted Tax Distributions actually made in cash
during such period shall be deemed to constitute income tax expense paid in cash
during such period and (ii) there shall not be included in such Consolidated Net
Income:




(a)           any
extraordinary gains or losses or expenses;




(b)           any
net income or loss of any Person if such Person is not a 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 Subsidiary as
a dividend or other distribution (subject, in the case of a dividend or other
distribution paid to a Subsidiary, to the limitations contained in clause (c)
below);




(c)           the
net income of any Subsidiary to the extent that the declaration of dividends or
similar distributions by that 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
Subsidiary or its equityholders;




(d)           any
gain or loss realized upon the sale or other disposition of (x) any assets which
is not sold or otherwise disposed of in the ordinary course of business or (y)
any Equity Interests of any Person; and




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




“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.




“CPA” means the
ACMS-Agreement (Vereinbarung
über ein Automatisches Cash-Management System (ACMS)) made between, inter
alia, the Holdings Guarantor, the Borrower and Commerzbank AG, which was
signed by Commerzbank AG on June 6, 1998, as amended.




“Debt Incurrence” has
the meaning assigned to such term in Section 2.04(b)(i).




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




“Defaulting Lender”
has the meaning assigned to such term in Section 2.11(b).




“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
Subsidiaries.




“Dollar Equivalent”
means, as to any amount denominated in any currency other than Dollars 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.







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




“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 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 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 or
shareholdings 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.




“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation
D.




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







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




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




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




“Executive Order” has
the meaning assigned to such term in Section 3.20(a).




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




“Fee Letter” means the
confidential Fee Letter, dated May 5, 2009, between the Borrower and Jefferies
Finance LLC.




“Financial Covenants”
means those covenants and agreements of the Loan Parties set forth in Sections
6.12 through 6.15, inclusive.




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




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




“Fiscal Year” means
any period of twelve consecutive calendar months ending December 31; references
to a Fiscal Year with a number corresponding to any calendar year (e.g., the “2009
Fiscal Year”) refer to the Fiscal Year ending December 31 occurring during such
calendar year.




“Flexsys AG” means a
stock corporation incorporated under the laws of Switzerland and registered with
the Trade Registry under the registration no. CH-170.3.017.176-6-Zug, having its
registered address at Bahnhofstrasse 23, CH-6301 Zug,
Switzerland‬‪.




“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.




“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 guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (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 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 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 Agreements”
means, collectively, the Holdings Guarantee Agreement and the Subsidiary
Guarantee Agreement.




“Guarantors” means,
collectively, the Holdings Guarantor and the Subsidiary Guarantors, if
any.




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




“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.




“Holdings Guarantee
Agreement” means the Holdings Guarantee Agreement, substantially in the
form of Exhibit H, made
on the Effective Date by the Holdings Guarantor.




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




“Holdings Intercompany
Loan” means the Intercompany Loan to be made by the Borrower to the
Holdings Guarantor on the Effective Date in an aggregate principal amount not
exceeding the Net Proceeds of the Loans (but in any event in an aggregate
principal amount equal to at least $62.0 million).







“Holdings Material
Indebtedness” means Indebtedness (other than (i) any intercompany
Indebtedness among the Holdings Guarantor and Parent and their Subsidiaries and
(ii) the Guarantee under the Holdings Guarantee Agreement) and Hedging
Obligations of the Holdings Guarantor, individually or in an aggregate principal
amount exceeding $5.0 million.  For purposes of determining
Holdings Material Indebtedness, the “principal amount” of any Hedging
Obligations of the Holdings Guarantor at any time shall be the Termination Value
thereof at such time.




“Increased Cost
Lender” has the meaning assigned to such term in
Section 2.18.




“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 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); (v) all obligations of such Person for the
reimbursement of any obligor in respect of letters of credit (whether drawn or
undrawn), letters of guaranty (whether drawn or undrawn), 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; and (viii) all
Guarantees by such Person in respect of liabilities, obligations or indebtedness
of the kind described in clauses (i) through (vii).  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 2.14(a).




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




“Information
Memorandum” means the confidential information memorandum dated April
2009 in the form approved by the Borrower concerning the Holdings Guarantor and
the Borrower which, at the Borrower’s request and on its behalf, was prepared in
relation to this transaction and distributed by the Arranger and the Bookrunner
to selected financial institutions before the date of this
Agreement.




“Interest Payment
Date” means, with respect to any Loan, (a) the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and (b) the
date of any refinancing of such Borrowing with a Borrowing of a different
Type.




“Interest Period”
means (a) as to any Eurodollar Borrowing, the period commencing on the date
of such Borrowing (including any date on which such Borrowing shall have been
converted from a Borrowing of a different Type) or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2 or 3 months thereafter, as the Borrower may elect; or (b) as to any ABR
Borrowing, the period commencing on the date of such Borrowing (including any
date on which such Borrowing shall have been converted from a Borrowing of a
different Type) or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as the case may be, and ending on the earliest of
(i) the next succeeding March 31, June 30, September 30 or
December 31, (ii) the Maturity Date and (iii) the date such
Borrowing is prepaid in accordance with Section 2.04 or converted in
accordance with Section 2.03; provided, however, that if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day.  Interest shall accrue from and including
the first day of an Interest Period to but excluding the last day of such
Interest Period.







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




“Judgment Currency”
shall have the meaning assigned to such term in Section 9.21.




“Judgment Currency Conversion
Date” shall have the meaning assigned to such term in
Section 9.21.




“Leased Real Property”
means each parcel of Real Property 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.




“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.




“LenderParties” has the
meaning assigned to such term in Section 9.20.




“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.




“LIBO Rate” means, as
with respect to any Interest Period for any Eurodollar Borrowing, the greater of
(x) the rate determined by the Administrative Agent to be the offered rate for
deposits in Dollars for the applicable Interest Period appearing on the Reuters
LIBOR01 Screen as of 11:00 a.m., London time, on the second full Business Day
next preceding the first day of each Interest Period.  In the event
that such rate does not appear on the Reuters LIBOR01 Screen (or otherwise on
the Reuters screen), the LIBO Rate for the purposes of this definition shall be
determined by reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Administrative Agent or,
in the absence of such availability, the LIBO Rate shall be the rate of interest
determined by the Administrative Agent to be the rate per annum at which the
Administrative Agent is offered deposits in Dollars in immediately available
funds in the London interbank market at 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period in an amount substantially
equal to its portion of the amount of such Eurodollar Borrowing for a period
equal to such Interest Period and (y) 3.50% per annum.




“Lien” means, with
respect to any Property, (a) any mortgage, deed of trust, deed to secure
debt, lien, pledge, encumbrance, charge, assignment, hypothecation or security
interest in or on such Property, or any arrangement to provide priority or
preference or any filing of any notice of lien under any applicable notice or
recording statute of any Governmental Authority, including any easement,
right-of-way or other encumbrance on title to Real Property, in each of the
foregoing cases whether voluntary or imposed by law, (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 and (d) any other agreement intended
to give or create any of the foregoing.







“Loan Documents” means
this Agreement, any Guarantee Agreement, and, solely for purposes of
Section 7.01(a), the Fee Letter.




Loan Parties




“Loans” means the
Loans made pursuant to Section 2.01(a).




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




“Material
Indebtedness” means Indebtedness (other than (i) any intercompany
Indebtedness among the Borrower and Parent and their respective Subsidiaries and
(ii) the Loans, and in the case of the Subsidiary Guarantors, the Guarantees
under the Subsidiary Guarantee Agreement) and Hedging Obligations of any one or
more of the Loan Parties and their respective Subsidiaries, individually or in
an aggregate principal amount exceeding $1.0 million.  For
purposes of determining Material Indebtedness, the “principal amount” of any
Hedging Obligations of such Loan Party or Subsidiary at any time shall be the
Termination Value thereof at such time.




“Maturity Date” means
the second anniversary of the Effective Date.




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




“Maximum Trade
Payables” means, with respect to any date of determination, the aggregate
amount of trade payables of the Loan Parties and their respective Subsidiaries
that are outstanding on such date as determined on a consolidated basis in
accordance with GAAP.




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




“Net Proceeds” means,
with respect to any Debt Incurrence, Asset Sale, 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 a Destruction or a Taking, insurance
proceeds, condemnation awards and similar payments, only to the extent in excess
of $500,000 in the aggregate for all such events 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 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 Subsidiaries in connection with
such event, including any withholding taxes imposed on the repatriation of
proceeds, (iii) in the case of an Asset Sale, Destruction or Taking, the
principal amount, premium or penalty, if any, interest and other amounts on any
Indebtedness for borrowed money 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),
and (iv) the amount of any reasonable reserves established by, and reflected on
the financial statements of, the Borrower and its Subsidiaries in accordance
with GAAP (other than any taxes deducted pursuant to clause (ii) above) (x)
associated with the assets that are the subject of such event and (y) retained
by the Borrower or any of its Subsidiaries to fund contingent liabilities that
are directly attributable to such event and that are reasonably estimated to be
payable by the Borrower or any of its Subsidiaries within six 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); 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
2.18.




“Note” means a note
substantially in the form of Exhibit F.




“Obligations” means,
collectively, the Loans and all other amounts, obligations, covenants and duties
owing by the Holdings Guarantor or any Loan Party to the Administrative Agent,
any Lender, any Affiliate of any of them or any Indemnitee, of every type and
description (whether by reason of an extension of credit, loan, guaranty,
indemnification or otherwise), present or future, arising under this Agreement
or any other Loan Document, whether direct or indirect (including those acquired
by assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired and whether or not evidenced by any note,
guaranty or other instrument or for the payment of money, including all fees,
interest (including interest accruing after the maturity of the Loans made to
the Borrower and interest accruing (or that would accrue but for the
commencement of any bankruptcy, insolvency, reorganization or like proceeding)
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding), premiums,
charges, expenses, attorneys’ fees and disbursements and other sums chargeable
to the Holdings Guarantor or any Loan Party under this Agreement or any other
Loan Document.




“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 articles of association (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 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 2.14(b).




“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.




“Parent” means Solutia
Inc., a Delaware corporation.




“Parent Entity” means
Parent and any Subsidiary of Parent (other than the Holdings Guarantor and its
Subsidiaries).







“Parent Material
Indebtedness” means Indebtedness and Hedging Obligations of any one or
more of the Parent Entities, individually or in an aggregate principal amount
exceeding $25.0 million.  For purposes of determining Parent
Material Indebtedness, the “principal amount” of any Hedging Obligations of such
Parent Entity at any time shall be the Termination Value thereof at such
time.




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




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




“Pension Plan” means
any employee benefit plan, program, policy, arrangement or agreement maintained
or contributed to by any Loan Party.




“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 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-1 from S&P or at least
P-1 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)           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 a Loan Party 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 Loan Party 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; and







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




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




“Permitted
Refinancing” means, with respect to any Indebtedness, any refinancing,
refunding, extension or renewal thereof; provided, however, that 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, (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), and
the covenants, events of default and other provisions thereof (including any
guarantees thereof) shall be, in the aggregate, no less favorable to the Lenders
than those contained in the Indebtedness being refinanced, refunded, extended or
renewed 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 Subsidiaries incurred in
connection with such refinancing, refunding, extension or renewal.




“Permitted Tax
Distributions” has the meaning assigned to such term in clause (iv) of
Section 6.07.




“Permitted Transfer”
means the sale, transfer or other disposition by Flexsys AG of all of the Equity
Interests in the Borrower that are held by it (i.e., the 23.91% of
the Equity Interests of the Borrower) to Flexsys Holdings B.V. (including a
transaction involving the dissolution, liquidation (or otherwise) or merger of
Flexsys AG into Flexsys Holdings B.V.).




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




“PLPA” means the
profit and loss pooling agreement (Beherrschungs- und
Gewinnabführungsvertrag) between the Borrower and the Holdings Guarantor
dated December 12, 2008, as amended on April 23, 2009.




“PLPA Indebtedness”
means the Indebtedness permitted under Section 6.01(xii).




“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 Basis”
means (i) on a pro forma basis in accordance with Regulation S-X under the
Exchange Act; and (ii) for purposes of calculating Consolidated EBITDA in
connection with an Investment or an Asset Sale and with respect to compliance
with any test or covenant hereunder, the following transactions in connection
therewith shall be deemed to have occurred as of the first day of the applicable
period of measurement in such covenant: (a) income statement items (whether
positive or negative) attributable to the Property or Person subject to such
transaction, (i) in the case of an Investment shall be included and (ii) in the
case of an Asset Sale of all or substantially all of the assets of or all of the
Equity Interests of any Subsidiary of the Borrower or any division or project
line of the Borrower or any of its Subsidiaries, shall be excluded, (b) any
retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by the
Borrower or any of its Subsidiaries in connection therewith and if such
Indebtedness has a floating or formula rate, 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 the
foregoing pro forma adjustments may be applied solely to the extent such
adjustments are consistent with the definition of Consolidated EBITDA and give
effect to events that are (x) directly attributable to such transaction, (y)
expected to have a continuing impact on the Borrower and its Subsidiaries and
(z) factually supportable.




“Process Agent” has
the meaning assigned to such term in Section 9.15(c).




“Projected Financial
Statements” has the meaning assigned to such term in
Section 3.15(c).




“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 Lender”
means a Lender which is beneficially entitled to interest payable to that Lender
in respect of an advance under a Loan Document and is (i) acting through a
lending office qualifying as a permanent establishment or permanent
representative in Germany provided that the Lender’s part of the Loans is
effectively connected with such permanent establishment or permanent agent or
(ii) a Treaty Lender.




“Real Property” means
all right, title and interest of any Subsidiary in and to a parcel of real
property owned or leased by any 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.




“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.




“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.




“Requisite Lenders”
means, at any time, Lenders having more than 50% of the aggregate outstanding
amount of all Loans at such time.




“Restricted Payment”
means any direct or indirect 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 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
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.




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




“RP Basket Amount”
means:




(a)  if
the Specified Restricted Payment or Specified Investment is made or proposed to
be made on or prior to June 30, 2010, 75% of the cumulative Consolidated Net
Income (or if cumulative Consolidated Net Income is a loss, minus 100% of such
loss) of the Borrower earned during the period beginning on July 1, 2009 and
ending on the last day of the Borrower’s most recent fiscal quarter ending prior
to the date the Specified Restricted Payment or Specified Investment occurs for
which financial statements are available (the “Reference Date”);
and




(b)   if
the Specified Restricted Payment or Specified Investment is made or proposed to
be made after June 30, 2010, the sum of (i) 75% of the cumulative Consolidated
Net Income (or if cumulative Consolidated Net Income is a loss, minus 100% of
such loss) of the Borrower earned during the period beginning on the first day
of the first fiscal quarter after the Effective Date and ending on the June 30,
2010 and (ii) 25% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income is a loss, minus 100% of such loss) of the Borrower
earned during the period beginning on July 1, 2010 and ending on last day of the
Borrower’s most recent fiscal quarter ending prior to the Reference
Date.




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




“Small Asset Sale”
means any sale or other disposition by the Borrower or any of its 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
Subsidiaries in any related sales or dispositions, has an aggregate fair market
value of not more than $100,000.




“Specified
Investments” has the meaning assigned to such term in clause (xiv) of
Section 6.04.







“Specified Restricted
Payments” has the meaning assigned to such term in clause (iii) of
Section 6.07.




“Spot Selling Rate”
means, on any date of determination, the spot selling rate determined by the
Administrative Agent 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.




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




“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, by
the parent and one or more other Subsidiaries of the parent, or by one or more
other Subsidiaries of 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, by the
parent and one or more other Subsidiaries of the parent, or by one or more other
Subsidiaries of the parent; or (iii) any other Person that is otherwise
Controlled by the parent, by the parent and one or more other Subsidiaries of
the parent, or by one or more other Subsidiaries of the
parent.  Unless otherwise indicated, when used in this Agreement, the
term “Subsidiary” shall refer to a Subsidiary of the Borrower.




“Subsidiary Guarantee
Agreement” means each Subsidiary Guarantee Agreement, made after the
Effective Date by one or more Subsidiary Guarantors, if any, in form and
substance to be reasonably agreed upon by each of the Borrower and the
Administrative Agent pursuant to the penultimate paragraph of Section
6.04.




“Subsidiary Guarantor”
means each of the Borrower’s Subsidiaries that Guarantees the Obligations
pursuant to the Subsidiary Guarantee Agreement and has not been released from
such guarantee.




“Taking” means any
taking of any Property of the Borrower or any 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 other Loan Party or any portion thereof, by any
Governmental Authority.




“Tax Deduction” means
a deduction or withholding for or on account of Tax from a payment under
a Loan Document.




“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.




“Terminated Lender”
has the meaning assigned to such term in Section 2.18.




“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 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 or the Administrative Agent) of such Hedging Agreements.




“Test Period” means
(i) for the covenants contained in Sections 6.12 and 6.13, 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.  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.  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
second 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.




“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.




“Trade Days Payables”
means, with respect to any date of determination, for the Loan Parties and their
respective Subsidiaries the product of (A) trade payables that are outstanding
on the last day of the Borrower’s most recent Fiscal Quarter  as
determined on a consolidated basis in accordance with GAAP; and (B) 365 days;
divided by (C) the costs of goods sold in the ordinary course of business for
the four consecutive complete Fiscal Quarters then last ended as determined on a
consolidated basis in accordance with GAAP.




“Transactions” means,
collectively, the transactions to occur on or prior to the Effective Date
pursuant to the Loan Documents, including (a) the execution, delivery and
performance of the Loan Documents and the Borrowings hereunder on the Effective
Date; (b) the extension of the Holdings Intercompany Loan, and (c) the payment
of all fees and expenses to be paid on or prior to the Effective Date and owing
in connection with the foregoing.




“Treasury Services
Agreements” means, with respect to the Borrower or any of its
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.







“Treaty Lender” means
a Lender which (a) is treated as a resident of a Treaty State for the purposes
of the Treaty; (b) does not carry on a business in Germany through a permanent
establishment with which that Lender’s participation in the Loan is effectively
connected, and (c) is entitled under the provisions of an applicable double
taxation agreement with Germany (subject to the completion of any necessary
procedural formalities) to receive any and all payments under a Loan Document
without a Tax Deduction or to be able to receive a full tax refund.





“Treaty State” means a
jurisdiction having a double taxation agreement (a “Treaty”) with Germany
which makes provision for full exemption from tax imposed by Germany on
interest.





“Type”, when used in
respect of any Loan or Borrowing, refers to the Rate by reference to which
interest on such Loan or on the Loans comprising such Borrowing is
determined.  For purposes hereof, “Rate” means the
Adjusted LIBO Rate or the Alternate Base Rate, as applicable.




“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
Subsidiary” means, with respect to any Person, any corporation,
partnership or other entity of which all of the Equity Interests (other than, in
the case of a corporation, 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.




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 and
(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. 
For purposes of this Agreement and the other Loan Documents, 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.







(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 for
purposes of determining compliance with the covenants contained in
Article VI, all accounting terms herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance with GAAP as in
effect on the Effective Date and applied on a basis consistent with the
application used in the financial statements referred to in
Section 3.05(a).




(d)  For
purposes of determining compliance with the Financial Covenants, the Dollar
amount of any item denominated in Euros shall be calculated based on the
following rates:




Date
                                                    RatioJune
      30, 2009
                                                    1.35:1.00September
      30, 2009
                                                    1.35:1.00December
      31, 2009
                                                    1.35:1.00March
      31, 2010
                                                    1.34:1.00June
      30, 2010
                                                    1.34:1.00September
      30, 2010
                                                    1.34:1.00December
      31, 2010
                                                    1.34:1.00March
      31, 2011
                                                    1.34:1.00





22




SECTION
1.04.  Resolution of Drafting
Ambiguities. Each of
the Holdings Guarantor and the Borrower (on behalf of itself and the other Loan
Parties) acknowledges and agrees, that it 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.




ARTICLE
II









THE
LOANS




SECTION
2.01.  Commitments. (a)  Subject
to the terms and conditions hereof, each Lender severally agrees to make a
single Loan in Dollars to the Borrower on the Effective Date in a principal
amount equal to such Lender’s Commitment.




(b)  The Loans
may from time to time be (i) Eurodollar Loans, (ii) ABR Loans or
(iii) a combination thereof, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.02 and
2.03.




(c)  Each Loan
shall be made on the Effective Date as part of a single Borrowing consisting of
Loans of the same Type made by the Lenders ratably in accordance with their
respective Commitments; provided that each
Loan made by a Lender hereunder shall be subject to an original issue discount
such that such Loan will result in aggregate proceeds to the Borrower in an
amount equal to 95.0% of such Lender’s Commitment, which amount shall represent
the amount of the proceeds of such Loan to be made available by such Lender
pursuant to Section 2.02.  The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender’s failure to make Loans as required.  Except as
specified in the proviso to the second preceding sentence, all references herein
to a “Loan” or “Loans”, to “principal” or the “principal amount” of any Loan or
Loans and other terms of like import shall mean 100% of the aggregate amount of
the Commitments (immediately prior to the incurrence of Loans on the Effective
Date).




(d)  Amounts
repaid or prepaid in respect of Loans may not be reborrowed.




SECTION
2.02.  Procedure for
Borrowing. (a)  The
Borrower may borrow under the Commitments by giving the Administrative Agent
notice substantially in the form of Exhibit B (a
“Borrowing
Request”), which notice must be received by the Administrative Agent
prior to (a) 2:00 p.m., New York City time, three Business Days prior to
the requested Borrowing Date, in the case of a Eurodollar Borrowing, or (b) 2:00
p.m., New York City time, on the Business Day prior to the requested
Borrowing Date, in the case of an ABR Borrowing.  The Borrowing
Request for the Borrowing shall specify (i) the amount to be borrowed,
(ii) the requested Borrowing Date (which shall be the Effective Date),
(iii) whether the Borrowing is to be of Eurodollar Loans or ABR Loans,
(iv) if the Borrowing is to be of Eurodollar Loans, the length of the
initial Interest Period therefor, and (v) the location and number of the
account or accounts to which funds are to be disbursed, which shall comply with
the requirements of this Agreement.  If no election as to the Type of
Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing.  If no Interest Period is specified with respect to any
requested Eurodollar Borrowing, then the Borrower shall be deemed to have
selected an Interest Period of one month’s duration.




(b)  The
Borrowing shall be in an aggregate principal amount equal to the aggregate
amount of the Commitments.




23


(c)  Upon
receipt of the Borrowing Request, the Administrative Agent shall promptly notify
each Lender of the aggregate amount of the Borrowing and of the amount of such
Lender’s pro
rata portion thereof, which shall be based on their respective
Commitments.  Each Lender will make the amount of its pro rata portion of
the Borrowing available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent specified in Section 9.01
prior to 10:00 a.m., New York City time, on the Borrowing Date in
funds immediately available to the Administrative Agent.  Amounts so
received by the Administrative Agent will promptly be made available to the
Borrower by the Administrative Agent depositing in the account or accounts
specified in the relevant Borrowing Request the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.




SECTION
2.03.  Conversion and Continuation
Options for Loans. (a)  The
Borrower may elect from time to time to convert (i) Eurodollar Loans to ABR
Loans, by giving the Administrative Agent prior notice of such election not
later than 2:00 p.m., New York City time, on the Business Day prior to a
requested conversion or (ii) ABR Loans to Eurodollar Loans by giving the
Administrative Agent prior notice of such election not later than 2:00 p.m., New
York City time, three Business Days prior to a requested conversion; provided that such
conversions of Eurodollar Loans may be made only on the last day of the Interest
Period with respect thereto.  Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor.  Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof.  All
or any part of the outstanding Eurodollar Loans or ABR Loans may be converted as
provided herein; provided that
(i) no Loan may be converted into a Eurodollar Loan with an Interest Period
in excess of one month when any Event of Default has occurred and is continuing,
(ii) the Borrower shall not be entitled to elect any Interest Period in
respect of any Eurodollar Loan if such Interest Period would extend beyond the
Maturity Date, and (iii) each conversion to or continuation of Eurodollar Loans
shall be in a minimum principal amount of $1.0 million or a whole multiple of
$500,000 in excess thereof.




(b)  Any
Eurodollar Loans may be continued as such upon the expiration of the then
current Interest Period with respect thereto by the Borrower giving prior notice
to the Administrative Agent, not later than 2:00 p.m., New York City time, three
Business Days prior to a requested continuation setting forth the length of the
next Interest Period to be applicable to such Loans; provided that (i) no
Eurodollar Loan with an Interest Period in excess of one month may be continued
as such when any Event of Default has occurred and is continuing, and
(ii) the Borrower shall not be entitled to elect any Interest Period in
respect of any Eurodollar Loan if such Interest Period would extend beyond the
Maturity Date; and provided,further, that if the
Borrower shall fail to give any required notice as described above in this
Section 2.03 or if such continuation is not permitted pursuant to the
preceding proviso, then such Loans shall be automatically converted to ABR Loans
on the last day of such then expiring Interest Period (in which case the
Administrative Agent shall notify the Borrower of such conversion).




(c)  In
connection with any Eurodollar Loans, there shall be no more than one Interest
Period outstanding at any time.




SECTION
2.04.  Optional and Mandatory
Prepayments of Loans; Repayments of Loans. (a)  The
Borrower may at any time and from time to time prepay the Loans (without premium
or penalty and subject to compliance with the terms of Section 2.15), in
whole or in part, upon irrevocable notice to the Administrative Agent not later
than 2:00 p.m., New York City time, (i) in the case of prepayment of
Eurodollar Loans, three Business Days before the date of prepayment and (ii) in
the case of prepayment of an ABR Loans, one Business Day before the date of
prepayment, specifying (A) the date and amount of prepayment, and
(B) whether the prepayment is of Eurodollar Loans, ABR Loans or a
combination thereof (including in the case of Eurodollar Loans, the Borrowing to
which such prepayment is to be applied and, if of a combination thereof, the
amount allocable to each) Upon receipt of any such notice of prepayment the
Administrative Agent shall promptly notify each Lender thereof.  If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest to such
date on the amount prepaid.  Partial prepayments of Loans shall be in
an aggregate principal amount of $1.0 million or a whole multiple of
$500,000 in excess thereof (or, if less, the remaining outstanding principal
amount thereof).




(b)  (i)  If
the Borrower or any of its Subsidiaries shall incur any Indebtedness (other than
as 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 in accordance with
Section 2.04(d) below.




(ii)  If the
Borrower or any of its 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 2.04(d) below; provided that the Net
Proceeds from Asset Sale Prepayment Events permitted by Section 6.05 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 non-current assets
used or useful in the business of the Borrower or any Subsidiary in each case
within 180 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 180-day period, such remaining portion shall be
applied toward the prepayment of the Loans on the first Business Day to occur
following such period as specified in this Section 2.04(b)(ii).




(iii)  If the
Borrower or any of its Subsidiaries shall receive Net Proceeds from insurance or
condemnation recoveries in respect of any Destruction or any Net Proceeds in
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 2.04(d) 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) fund the substitution of other Property
that are non-current assets used or usable in the business of the Borrower or
the Subsidiaries, in each case within 270 days following the date of the
receipt of such Net Proceeds and (y) if all or any portion of such Net
Proceeds not so applied as provided herein is not so used within 270 days
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 as specified
in this Section 2.04(b)(iii).




(iv)  If the
Borrower or any of its Subsidiaries shall receive Net Proceeds
from the sale or issuance of any Equity Interests or Equity
Rights of the Borrower (other than Equity Interests or Equity Rights issued to
the Borrower or any of its other Subsidiaries), 50% 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 2.04(d)
below.




(c)  To the
extent not previously paid, all Loans shall be due and payable in full on the
Maturity Date.




(d)  Any
prepayment of Loans pursuant to this Section 2.04 shall be applied, first,
to any ABR Loans then outstanding and the balance of such prepayment, if any, to
the Eurodollar Loans then outstanding.




SECTION
2.05.  Repayment of Loans; Evidence
of Debt. (a)  The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of the Lenders, on the Maturity Date (or such earlier date as, and
to the extent that, such Loan becomes due and payable pursuant to
Section 2.04 or Article VII), the unpaid principal amount of each Loan
held by each such Lender.  The Borrower hereby further agrees to pay
interest in immediately available funds at the office of the Administrative
Agent specified in Section 2.11 on the unpaid principal amount of the Loans
made to it from time to time from the date hereof until payment in full thereof
at the rates per annum, and on the dates, set forth in
Section 2.06.  All payments required hereunder shall be made in
Dollars.




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




(c)  The
Administrative Agent shall maintain the Register pursuant to Section 9.04, and a
subaccount for each Lender, in which Register and subaccounts (taken together)
shall be recorded (i) the amount of each such Loan, the Type of each such
Loan and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder in respect of each such Loan and
(iii) the amount of any sum received by the Administrative Agent hereunder
from the Borrower in respect of each such Loan and each Lender’s share
thereof.




(d)  The
entries made in the Register and accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.05 and the Notes maintained
pursuant to paragraph (e) of this Section 2.05 shall, to the extent
permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain such account, such
Register or such subaccount, as applicable, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable
interest) the Loans in accordance with the terms of this Agreement.




(e)  If
requested by any Lender (which request shall be made to the Administrative
Agent), the Borrower shall duly execute and deliver to such Lender a Note or
Notes, in substantially the form attached hereto as Exhibit F, with
the blanks appropriately filled, payable to such Lender and its registered
assigns, to evidence such Lender’s Loans.




SECTION
2.06.  Interest Rates and Payment
Dates; Default Interest. (a)  Each
Eurodollar Loan shall bear interest (computed on the basis of the actual number
of days elapsed over a year of 360 days) for each day during each Interest
Period with respect thereto at a rate per annum equal to the Adjusted LIBO Rate
determined for such Interest Period plus the Applicable
Margin.




(b)  Each ABR
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, or over a year of
360 days when the Alternate Base Rate is determined by reference to
clause (b), (c) or (d) of the definition of “Alternate Base Rate”) at a
rate per annum equal to the Alternate Base Rate plus the Applicable
Margin.




(c)  At any
time when an Event of Default has occurred and is continuing, and upon the
election of the Requisite Lenders, (i) the principal amount of any Loan,
(ii) any interest due and payable thereon and (iii) all other amounts
payable hereunder shall bear interest at a rate per annum which is (x) in
the case of principal of any Loan or interest that is due and payable thereon,
the rate that would otherwise be applicable to such Loan pursuant to the
foregoing provisions of this Section 2.06 plus 2.00% per annum
or (y) in the case of any other amount, the rate described in
Section 2.06(b) applicable to an ABR Loan plus 2.00% per annum,
in each case from the date of such Event of Default to (but excluding) the date
on which such Event of Default is cured to the satisfaction of the Requisite
Lenders or waived by the Requisite Lenders.







(d)  Interest
shall be payable in arrears on each Interest Payment Date and on the Maturity
Date; provided
that (i) interest accrued pursuant to paragraph (c) of this
Section shall be payable on demand and (ii) in the event of any
repayment or prepayment of any Loan, accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or
prepayment.  Interest in respect of each Loan shall accrue from and
including the first day of an Interest Period to but excluding the last day of
such Interest Period.




SECTION
2.07.  Computation of
Interest. Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error.




SECTION
2.08.  Agent
Fees. (a)  The
Borrower agrees to pay to the Administrative Agent the administrative fee set
forth in the Fee Letter (the “Agent
Fees”).




(b)  All Agent
Fees shall be paid on the dates specified in the Fee Letter, in immediately
available funds, to and for the sole account of the Administrative
Agent.  Once paid, none of the Agent Fees shall be
refundable.




SECTION
2.09.  Termination of
Commitments. Unless
previously terminated, the Commitments shall terminate upon the earlier of (x)
the funding of the Loans and (y) 5:00 p.m., New York City time, on the
Effective Date.




SECTION
2.10.  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 Adjusted 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 Adjusted LIBO Rate determined or to be determined for such Interest Period
for such Eurodollar 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 as soon as practicable 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 2.03 or (y) made pursuant to a Borrowing
Request, and shall be continued or made as ABR Loans, as the case may
be.







SECTION
2.11.  Pro Rata Treatment and
Payments .  (a)  Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on Loans which are ABR Loans shall be made pro rata according to
the respective outstanding principal amounts of such ABR Loans then held by the
Lenders.  Each payment (including each prepayment) by the Borrower on
account of principal of and interest on Loans which are Eurodollar Loans
designated by the Borrower to be applied to a particular Eurodollar Borrowing
shall be made pro
rata according to the respective outstanding principal amounts of such
Loans then held by the Lenders.  All such payments shall be made to
the Administrative Agent at the Administrative Agent’s office as set forth in
Section 9.01(a) or at such other office as the Administrative Agent shall
specify for such purpose by notice to the Borrower, except payments pursuant to
Sections 2.14, 2.15 and 9.05 shall be made directly to the Persons entitled
thereto and payments pursuant to other Loan Documents shall be made to the
Persons specified therein.  The Administrative Agent shall distribute
any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof.  If any
payment hereunder (other than payments on Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.  If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension) unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be made
on the immediately preceding Business Day.




(b)  Subject
to Section 2.10, 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 (a “Defaulting 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 immediately pay
such corresponding amount to the Administrative Agent.  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 2.06, for the respective
Loans.




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




SECTION
2.12.  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 ABR 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 ABR 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
2.13.  Requirements of
Law .  (a)  If
at any time any Lender reasonably determines that the introduction of, or any
change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order (other than any change by way of imposition or increase of
reserve requirements included in determining the Adjusted LIBO Rate) or the
compliance by such Lender with any guideline, request or directive from any
central bank or other Governmental Authority (whether or not having the force of
law), shall have the effect of increasing the cost to such Lender for agreeing
to make or making, funding or maintaining any Eurodollar Loans, then the
Borrower shall from time to time, within 20 days of written demand therefor by
such Lender (with a copy of such written demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased
cost.  A certificate as to the amount of such increased cost, showing
in reasonable detail the basis for the calculation thereof, submitted to the
Borrower and the Administrative Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.  Such Lender shall
promptly notify the Administrative Agent and the Borrower in writing of the
occurrence of any such event, such notice to state, in reasonable detail, the
reasons therefor and the additional amount required fully to compensate such
Lender for such increased cost or reduced amount.  Such additional
amounts shall be payable directly to such Lender within 20 days of the
Borrower’s receipt of such written notice, and such notice shall, in the absence
of manifest error, be conclusive and binding on the Borrower.




(b)  If any
change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any court,
central bank, regulator or other Governmental Authority after the Effective Date
affects or would affect the amount of capital required or expected to be
maintained by any Lender (or a holding company controlling such Lender) and such
Lender reasonably determines that the rate of return on its capital (or the
capital of its holding company, as the case may be) as a consequence of the
Loans made by it is reduced to a level below that which such Lender (or its
holding company) could have achieved but for the occurrence of any such
circumstance, then, in any such case upon written notice from time to time by
such Lender to the Borrower, the Borrower shall, within 20 days of the
Borrower’s receipt of such notice, pay directly to such Lender additional
amounts sufficient to compensate such Lender (or its holding company) for such
reduction in rate of return.  A statement of such Lender as to any
such additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and
binding.  In determining such amount, such Lender may use any
reasonable method of averaging and attribution that it shall deem
applicable.




SECTION
2.14.  Taxes .  (a)  Subject
to Section 2.14(f), any and all payments by the Holdings Guarantor or any Loan
Party under any Loan Document shall be made free and clear of and without
deduction or withholding for any and all Taxes, but excluding (i) Taxes imposed
on or measured by the recipient’s net income (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 the Administrative Agent (as the
case may be) is organized or, in the case of a Lender, has its applicable
lending office, and (ii) any German withholding taxes imposed on amounts payable
to such Lender under the Loan Documents under laws (including any statue, 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 German
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 German withholding taxes), but not excluding any German
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 or the date of such appointment as the case may be) (such
non-excluded Taxes 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 Taxes pursuant to any applicable law then the Holdings Guarantor or the
Borrower will, or will cause each relevant Loan Party to, (i) 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) 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) in the case of any deduction
or withholding for or on account of any Indemnified Taxes, pay to the
Administrative Agent for the account of the Lenders and the Administrative Agent
such additional amount or amounts as are necessary to ensure that the net amount
actually received by each Lender or the Administrative 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 2.14), will equal the full amount such Lender or the Administrative
Agent (as the case may be) would have received had no such withholding or
deduction been required.  Neither the Holdings Guarantor nor any
relevant Loan Party shall be required to pay additional amounts to Lender or the
Administrative Agent under this Section 2.14(a) in respect of Indemnified Taxes
imposed by Germany, if at the time the payment concerned falls due such Lender
or the Administrative Agent, as the case may be, (x) is not or has ceased to be
a Qualifying Lender with respect to that payment (unless the reason it is not or
has ceased to be a Qualifying Lender is due to a change after the date it
becomes a Lender or the Administrative Agent, as the case may be, in any law or
regulation, or in the interpretation or application thereof, or in any practice
of concession of any relevant taxing authority) to the extent that payment could
have been made without a deduction or withholding if that Lender or the
Administrative Agent, as the case may be, had been a Qualifying Lender on that
date or (y) is a Treaty Lender and the Holdings Guarantor or such Loan Party is
able to demonstrate to the satisfaction of such Lender, or the Administrative
Agent, as the case may be, (acting reasonably) that the Tax Deduction is
required as a result of the failure of such Lender or the Administrative Agent,
as the case may be, to comply with its obligations under Section
2.14(e).







(b)  In
addition, the Holdings Guarantor and 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 penalties, interest and 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”).




(c)  The
Holdings Guarantor and the Borrower will, and will cause each other Loan Party
to, jointly and severally, indemnify each Lender and the Administrative Agent,
as the case may be, 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 2.14) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including for
penalties, interest and reasonable and documented expenses) arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally asserted.  In addition, the Holdings Guarantor
and the Borrower will, and will cause each other Loan Party to, jointly and
severally, indemnify each Lender and the Administrative Agent, upon the written
request of such Lender or the Administrative Agent, for Taxes imposed on or
measured by the net income of such Person, as such Person shall reasonably
determine are or were payable by such Person, in respect of amounts payable to
such Person pursuant to this Section 2.14 taking into account the amount of
Indemnified Taxes that are (x) allowed as a deduction in determining Taxes
imposed on or measured by the net income or allowed as a credit against any
Taxes imposed on or measured by net income and (y) payable to such Person
pursuant to this Section 2.14.  This indemnification shall be made
within 20 days after the date such Lender or the Administrative 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.  Neither the Holdings
Guarantor nor any relevant Loan Party shall be obliged to make a payment to any
Lender or the Administrative Agent pursuant to this Section 2.14 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
Administrative Agent. After a Lender or the Administrative Agent receives notice
of the imposition of the Indemnified Taxes or Other Taxes that are subject to
this Section, such Lender or the Administrative Agent will act in good faith to
promptly notify the Borrower of its obligations thereunder; provided, that the
failure to provide such notice shall not relieve the Borrower of the Borrower’s
obligation to indemnify such Lender or the Administrative Agent pursuant to this
Section 2.14.  For purposes of this Section 2.14, a distribution
hereunder by the Administrative Agent to or for the account of any Lender or the
Administrative Agent shall be deemed a payment by the Holdings Guarantor or such
relevant Loan Party.







As soon
as practical after the date of any payment of Indemnified Taxes or Other Taxes
by the Holdings Guarantor or any Loan Party pursuant to this Section 2.14, the
Holdings Guarantor or the Borrower (as applicable) 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 Holdings Guarantor or the relevant
Loan Party fails to remit to the Administrative Agent, for the account of the
respective Lenders and the Administrative Agent, such documentary evidence, the
Borrower shall indemnify the Lenders and the Administrative Agent for any
incremental taxes, interest, penalties or other costs (including reasonable
attorneys’ fees and expenses) that may become payable by any Lender or the
Administrative Agent as a result of any such failure.




For the
avoidance of doubt, any amount payable by the Holdings Guarantor or any relevant
Loan Party pursuant to this Section 2.14(c) shall not be duplicative of any
amounts otherwise payable by the Holdings Guarantor or such relevant Loan Party
pursuant to Section 2.14(a) or 2.14(b).




(d)  Without
prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in this Section 2.14 shall
survive the payment in full of the Obligations and the termination of this
Agreement.




(e)  Each
Qualifying Lender and the Administrative Agent, as the case may be, agrees to
use commercially reasonable efforts (consistent with legal and regulatory
restrictions and subject to overall policy considerations of such Lender or the
Administrative Agent, as the case may be) to file any certificate or document or
to furnish to the Holdings Guarantor or the relevant Loan Party any information,
in each case, as reasonably requested by the Holdings Guarantor or the relevant
Loan Party that may be necessary to establish any available exemption from, or
reduction in the amount of, any Taxes; provided, however, that nothing in this
Section 2.14(e) shall require a Lender or the Administrative Agent to disclose
any confidential information (including, without limitation, its tax returns or
its calculations).




(f)  For any
period (or portion of a period) with respect to which any Qualifying Lender or
the Administrative Agent, as the case may be, has failed to comply with Section
2.14(e), such Lender or the Administrative Agent, as the case may be, shall not
be entitled to indemnification under Section 2.14(a) or Section 2.14(c) of any
Indemnified Taxes or Other Taxes imposed for such period (or portion of a
period) by reason of such failure.




(g)  If the
Administrative Agent or a Lender determines, in its good faith discretion, that
it has received a refund in respect of any Indemnified Tax or Other Taxes with
respect to which the Holdings Guarantor or a Loan Party has paid additional
amount pursuant to this Section 2.14, it shall pay over such refund to the
Holdings Guarantor or the relevant Loan Party (but only to the extent of
indemnity payments made, or additional amounts paid, by the Holdings Guarantor
or the relevant Loan Party under this Section 2.14 with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses 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
Holdings Guarantor or the relevant Loan Party, upon the request of such Lender
or Administrative Agent, shall repay the amount paid over to the Holdings
Guarantor or the relevant Loan Party (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 2.14 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.







(h)  VAT.




(i)  All
amounts set out or expressed in a Loan Document to be payable by any Loan Party
or the Holdings Guarantor to a Lender Party which (in whole or in part)
constitute the consideration for a supply or supplies for VAT purposes shall be
deemed to be exclusive of any VAT which is chargeable on such supply or
supplies, and accordingly, subject to paragraph (ii) below, if VAT is or becomes
chargeable on any supply made by any Lender Party to any Loan Party or the
Holdings Guarantor under a Loan Document, such Loan Party or the Holdings
Guarantor shall pay to the Lender Party (in addition to and at the same time as
paying any other consideration for such supply) an amount equal to the amount of
such VAT (and such Lender Party shall promptly provide an appropriate VAT
invoice to such Loan Party or the Holdings Guarantor).




(ii)  If VAT is
or becomes chargeable on any supply made by any Lender Party (the “Supplier”) to any
other Lender Party (the “Recipient”) under a
Loan Document, and any Loan Party or the Holdings Guarantor other than the
Recipient (the “Subject Party”) is
required by the terms of any Loan Document to pay an amount equal to the
consideration for such supply to the Supplier (rather than being required to
reimburse the Recipient in respect of that consideration), such Subject Party
shall also pay to the Supplier (in addition to and at the same time as paying
such amount) an amount equal to the amount of such VAT. The Recipient will
promptly pay to the Subject Party an amount equal to any credit or repayment
obtained by the Recipient from the relevant tax authority which the Recipient
reasonably determines is in respect of such VAT.




(iii)  Where a
Loan Document requires any Loan Party or the Holdings Guarantor to reimburse or
indemnify a Lender Party for any cost or expense, that Loan Party or the
Holdings Guarantor shall reimburse or indemnify (as the case may be) such Lender
Party for the full amount of such cost or expense, including such part thereof
as represents VAT, save to the extent that such Lender Party reasonably
determines that it or any other member of any group of which it is a member for
VAT purposes is entitled to credit or repayment in respect of such VAT from the
relevant tax authority.




SECTION
2.15.  Indemnity .  The
Borrower shall compensate each Lender, within 20 days after written demand, for
all losses, expenses and liabilities (including any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund or maintain such Lender’s Eurodollar Loans to the Borrower
but excluding any loss of the Applicable Margin on the relevant Loans) that such
Lender may sustain (a) if for any reason (other than solely by reason of such
Lender being a Defaulting Lender) a proposed Borrowing, conversion into or
continuation of Eurodollar Loans does not occur on a date specified therefor in
a Borrowing Request or any notice of conversion or continuation of any Loans
delivered by the Borrower pursuant to Sections 2.02 or 2.03 or otherwise, or a
successive Interest Period does not commence after notice therefor is given
pursuant to Section 2.03, (b) if for any reason any Eurodollar Loan is prepaid
(including mandatorily pursuant to Section 2.04) on a date that is not the last
day of the applicable Interest Period, (c) as a consequence of a required
conversion of a Eurodollar Loan to an ABR Loan as a result of any of the events
indicated in Section 2.12 or otherwise or (d) as a consequence of any failure by
the Borrower to repay Eurodollar Loans when required by the terms
hereof.  The Lender making written demand for such compensation shall
deliver to the Borrower concurrently with such written demand a written
statement as to such losses, expenses and liabilities (which shall include
calculations in reasonable detail), and such statement shall, in the absence of
manifest error, be conclusive as to the amount of compensation due to such
Lender and binding on the Borrower.







SECTION
2.16.  Change of Lending
Office .  Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.12, 2.13 or 2.14 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 2.16 shall affect or postpone any of the obligations of the
Borrower or the rights of any Lender pursuant to Sections 2.12, 2.13 and
2.14.




SECTION
2.17.  Sharing of
Setoffs .  Each
Lender agrees that if it shall, through the exercise of a right of banker’s
lien, setoff or counterclaim against the Borrower, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim received by
such Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of any Loans which at the time shall be due and payable as a result of
which the unpaid principal portion of its Loans which at the time shall be due
and payable shall be proportionately less than the unpaid principal portion of
such Loans of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such
other Lender the purchase price for, a participation in such Loans of such other
Lender, so that the aggregate unpaid principal amount of such Loans held by each
Lender shall be in the same proportion to the aggregate unpaid principal amount
of all such Loans as prior to such exercise of banker’s lien, setoff or
counterclaim or other event; provided, however, that if any
such purchase or purchases or adjustments shall be made pursuant to this
Section 2.17 and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustments restored
without interest.  The Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding a participation in a Loan deemed
to have been so purchased may exercise any and all rights of banker’s lien,
setoff or counterclaim with respect to any and all moneys owing by the Borrower
to such Lender by reason thereof as fully as if such Lender were a direct
creditor directly to the Borrower in the amount of such
participation.




SECTION
2.18.  Assignment of Commitments
Under Certain Circumstances .  In
the event that (a) any Lender shall have delivered a notice or certificate
pursuant to Section 2.12 or 2.13, or the Borrower shall be required to make
additional payments to any Lender under Section 2.14 (each, an “Increased Cost
Lender”) or (b) subject to the terms and conditions of Section
9.08(e), in connection with any proposed amendment, modification, termination,
waiver or consent with respect to any of the provisions hereof described in
Section 9.08(e) 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 accrued to
the date of payment on the Loans 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 2.19.  Notice of Certain
Costs .  Notwithstanding
anything to the contrary contained in Section 2.13 of this Agreement, to the
extent any notice required by Section 2.13 is given by any Lender more than 180
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 Section 2.13 for any such amounts incurred or accruing
prior to the 181st day prior to the giving of such notice to the
Borrower.




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 (after giving effect to the
Transactions).




SECTION
3.01.  Organization,
etc. (a)
Each of the Holdings Guarantor and each Loan Party is a corporation or other
form of legal entity, duly organized or incorporated, as the case may be, and
validly existing under the laws of the jurisdiction of its organization or
incorporation, as the case may be; (b) neither the Holdings Guarantor nor any
Loan Party is unable to pay its debts as they fall due within the meaning of
Section 17 of the German Insolvency Code (Insolvenzordnung) or is
over-indebted within the meaning of Section 19 of the German Insolvency Code
(Insolvenzordnung);
(c) each of the Holdings Guarantor and each Loan Party 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; (d) each of the Holdings Guarantor and each Loan
Party 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; (e) each of the Holdings
Guarantor and 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 (f) each of the Holdings
Guarantor and 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, own or hold under lease its Property
and to conduct its business as currently conducted by it, except in the case of
clause (c) or (e), 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 of the Holdings Guarantor and 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 and the consummation
of each of the other Transactions are within each of the Holdings Guarantor’s
and 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 the Holdings Guarantor or any Loan
Party;




(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 (i) any Material Indebtedness, (ii) any Holdings Material
Indebtedness, (iii) any Parent Material Indebtedness or (iv) any other
indenture, agreement or other instrument binding upon the Holdings Guarantor or
any Loan Party, which, in the case of any such default, event of default or
acceleration referred to in this clause (iii), 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 the
Holdings Guarantor or any Loan Party.




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 the Holdings Guarantor or any Loan
Party of any Loan Document (including the due execution, delivery and
performance by the Borrower of this Agreement), the borrowing of the Loans and
the use of the proceeds thereof and the consummation of each of the other
Transactions except such as have been obtained or made and are in full force and
effect.  None of the Holdings Guarantor or any Loan Party or any of
its respective Subsidiaries 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 the Holdings Guarantor and each Loan Party party thereto and
constitutes, and each other Loan Document to which the Holdings Guarantor or any
Loan Party is to be a party will, on the due execution and delivery thereof by
the Holdings Guarantor or such Loan Party, constitute, the legal, valid and
binding obligation of the Holdings Guarantor and 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
unaudited consolidated balance sheets of the Borrower and its Subsidiaries and
the related unaudited consolidated statements of income, as of and for the 2006,
2007 and 2008 Fiscal Years, 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 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, as of and for the Fiscal Quarter ended March 31, 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 the unaudited
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 for the
periods then ended (subject to normal year-end adjustments and the absence of
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 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, 2008, no event or circumstance has occurred that has had, or could
reasonably be expected to have, a Material Adverse Effect.




SECTION
3.07.  Litigation .  There
is no pending or, to the knowledge of the Loan Parties, threatened, litigation,
action or proceeding affecting the Holdings Guarantor or the Borrower or any of
its Subsidiaries, or any of their respective operations, properties, businesses
or assets, or any of the Loan Documents or the ability of the parties to
consummate the Transactions and the other transactions contemplated hereby, (i)
which has a reasonable likelihood of adverse determination and, if determined
adversely, in the case of the Holdings Guarantor or the Borrower and its
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 the Transactions or any of the other
transactions contemplated hereby or thereby.




SECTION
3.08.  Compliance with Laws and
Agreements; No Defaults .  None
of the Holdings Borrower or Loan Parties 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 3.13) 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 (if any) 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 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 are owned as set forth on Schedule
3.09(a).




(b)  The
Equity Interests of each Subsidiary held (if any), 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 Sections 6.02(iii) or
(vi).  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 any of its 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).







SECTION
3.10.  Ownership of
Properties .  (a)  Each
of the Loan Parties and each of their respective 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 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 each Loan Party and each
of their respective 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 Subsidiaries as presently conducted.  The use by each Loan Party
and each of their respective Subsidiaries of their material Properties and all
their respective rights with respect to the foregoing do not infringe on the
rights of any Person, except such infringements that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.  No claim has been made and remains outstanding that any Loan
Party’s use or the use by any Subsidiary of any Loan Party of any of their
respective Properties violates the rights of any third party which could
reasonably be expected to have a Material Adverse Effect.  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, each Loan Party and its respective 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 or such Subsidiary party to such leases (and to the
knowledge of the applicable Loan Party or Subsidiary, 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 Loan Party and its
respective Subsidiaries enjoys in all material respects peaceful and undisturbed
possession under all such leases.




(c)  As of the
Effective Date, no Loan Party or any of its respective Subsidiaries or the
Holdings Guarantor 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 solely with respect to the Holdings Guarantor, any Equity
Interests or Equity Rights of the Borrower) or any sale or disposition thereof
in lieu of a Taking that remains unresolved as of the Effective
Date.




SECTION
3.11.  Intellectual
Property .  Each
Loan Party and each of its respective 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 pending by any Person challenging or questioning any
Loan Party’s or any of its respective Subsidiaries’ use of any Intellectual
Property, or the validity or effectiveness of any Intellectual Property owned by
the Loan Parties or any of their respective Subsidiaries nor does any Loan Party
or any of its respective Subsidiaries 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 Loan Party and each of its respective
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
Loan Party and the Holdings Guarantor have (a) timely filed (subject to any
applicable extensions) all material federal, state, local and foreign income and
franchise Tax Returns and all other material Tax Returns required to have been
filed by it and all such Tax Returns are true and correct and accurately reflect
in all material respects all liabilities for Taxes of the Loan Party or the
Holdings Guarantor as a whole for the periods covered thereby 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 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 Subsidiary in accordance with
GAAP.  Except as could not reasonably be expected to result in a
Material Adverse Effect, each Loan Party and the Holdings Guarantor have made
adequate provision in accordance with GAAP for all Taxes not yet due and
payable.  None of the Loan Parties or the Holdings Guarantor is aware
of any proposed or pending Tax assessments, deficiencies, suits, proceedings,
claims or audits by any Governmental Authority regarding any Taxes relating to
any Loan Party or the Holdings Guarantor that could be reasonably expected to
have a Material Adverse Effect.  Except as could not be reasonably be
expected to result in a Material Adverse Effect, the Loan Parties and the
Holdings Guarantor have complied with the payroll tax, wage withholding, social
security and unemployment withholding provisions of applicable Requirements of
Law and has timely paid (subject to applicable extensions)  the
amounts withheld over to the respective Governmental Authorities.




SECTION
3.13.  Environmental .  Except
as, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect and unless disclosed to the Lenders pursuant to clause
(e) of this Section, all facilities and Property owned, leased or operated by
the Loan Parties or any of their respective Subsidiaries, and all operations
conducted thereon, are in compliance with all Environmental Laws.




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




(i)  Environmental
Claims received by any Loan Party or any of its Subsidiaries, or




(ii)  written
claims, complaints, notices or inquiries received by any Loan Party or any
Subsidiary thereof regarding Environmental Liability,




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




(b)  Each Loan
Party and its respective 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.




(c)  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 Loan Parties or any of their respective Subsidiaries.




(d)  No Loan
Party nor any Subsidiary thereof is currently conducting any Remedial Action
pursuant to any Environmental Law, nor has any of the Loan Parties or any of
their respective Subsidiaries assumed by contract, agreement or operation of
law, any remedial action or other obligation under an Environmental Law, the
cost of which, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.







(e)  There are
no polychlorinated biphenyls (“PCBs”) or friable
asbestos present at any Property or facility owned, leased or operated by the
Loan Parties or any of their respective Subsidiaries, which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect.




(f)  No Person
with an indemnity or contribution obligation to the Loan Parties or any of their
respective 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.




(g)  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 Loan Parties or any of their
respective Subsidiaries or against any Person whose liability for any
Environmental Claim the Loan Parties or any of their respective Subsidiaries
have 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.




(h)  The Loan
Parties 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 Property
or facilities currently or formerly owned, operated, leased or used by the Loan
Parties or any of their respective 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
3.14.  Federal Reserve
Regulations . (a)  .  No
Loan Party nor any Subsidiary thereof or the Holdings Guarantor 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 Transactions 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
3.15.  Disclosure; Accuracy of
Information; Pro Forma Balance Sheets and Projected Financial
Statements. (a)  There
is no fact known to any Loan Party that could reasonably be expected to have a
Material Adverse Effect that has not been disclosed herein, in the other Loan
Documents, in the Information Memorandum or in any other documents or
certificates furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.  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; 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 the Borrower’s
pro forma consolidated
balance sheet as of the Effective Date, prepared giving effect to the
Transactions as if the Transactions had occurred on such date.  Such
pro forma consolidated
balance sheet (i) was prepared in good faith by the Loan Parties on a Pro
Forma Basis based on the assumptions stated therein (which assumptions are
believed by the Loan Parties on the date hereof and on the Effective Date to be
reasonable) and is based on the best information reasonably available to the
Loan Parties as of the date of delivery thereof, (ii) accurately reflects
in all material respects all adjustments necessary to give effect to the
Transactions as if they had occurred on such date and (iii) presents fairly
in all material respects the pro forma financial
position of the Borrower and its consolidated Subsidiaries at such date,
assuming the Transactions had occurred on such date.




(c)  The
Borrower has heretofore furnished to the Administrative Agent pro forma consolidated
income statement projections for the Borrower and its Subsidiaries, pro forma consolidated
balance sheet projections for the Borrower and its Subsidiaries, and pro forma consolidated
cash flow projections for the Borrower and its Subsidiaries through the 2011
Fiscal Year, which shall be prepared on a quarterly basis through the 2009
Fiscal Year and annually thereafter (the “Projected Financial
Statements”), which give effect to the Transactions and all Indebtedness
and Liens incurred or created in connection with the Transactions, 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
3.16.  Insurance .  Set
forth on Schedule 3.16 is
a summary of all material insurance policies maintained by the Loan Parties and
their respective Subsidiaries as of the Effective Date.  The material
insurance policies maintained by the Loan Parties and their respective
Subsidiaries (a) are in full force and effect, and all premiums thereon have
been duly paid to the extent due and none of the Loan Parties nor any of their
respective 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 Loan Parties and
their respective 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
3.17.  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 Loan Parties or their respective Subsidiaries pending or, to the
knowledge of any Loan Party, threatened; (b) the hours worked by and
payments made to employees of the Loan Parties or their respective Subsidiaries
have not been in violation of any applicable law dealing with such matters; and
(c) all payments due from the Loan Parties or their respective
Subsidiaries, or for which any claim may be made against the Loan Parties or
their respective Subsidiaries, on account of wages, have been paid or accrued as
a liability on the books of the Loan Parties or their respective
Subsidiaries.  The consummation of the Transactions will not give rise
to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which the Loan Parties or their
respective Subsidiaries are bound.







SECTION
3.18.  Solvency .  (a)  Immediately
following the making of each Loan and after giving effect to the application of
the proceeds of such Loans, and immediately after the consummation of the other
Transactions, (i) the fair value of the properties of the Borrower,
individually, and the Borrower, on a consolidated basis with its Subsidiaries,
will exceed its debts and liabilities, subordinated, contingent or otherwise;
(ii) the present fair saleable value of the property of the Borrower,
individually, and the Borrower, on a consolidated basis with its 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;
(iii) the Borrower, individually, and the Borrower, on a consolidated basis with
its Subsidiaries, does not intend to, and does not believe that it or its
Subsidiaries (on a consolidated basis with the Borrower) will, incur debts or
liabilities beyond the ability of the Borrower (individually) or the Borrower
and its Subsidiaries (in each case 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 (iv) the Borrower,
individually, and the Borrower, on a consolidated basis with its 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.




(b)  Immediately
following the making of each Loan and after giving effect to the application of
the proceeds of such Loans, and immediately after the consummation of the other
Transactions, (i) the fair value of the properties of the Holdings
Guarantor, on a consolidated basis with its Subsidiaries, will exceed its debts
and liabilities, subordinated, contingent or otherwise; (ii) the present fair
saleable value of the property of the Holdings Guarantor, on a consolidated
basis with its 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; (iii) the Holdings Guarantor, on a consolidated
basis with its Subsidiaries, does not intend to, and does not believe that it or
its Subsidiaries (on a consolidated basis with the Holdings Guarantor) will,
incur debts or liabilities beyond the ability of the Holdings Guarantor and its
Subsidiaries (in each case on a consolidated basis with the Holdings Guarantor)
to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (iv) the Holdings
Guarantor, on a consolidated basis with its 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
3.19.  Use of
Proceeds .  The
Borrower will use the proceeds of the Loans on the Effective Date for general
corporate purposes, including the making of the Holdings Intercompany Loan and
to pay any and all related costs, fees and expenses.  The full amount
of the proceeds of the Holdings Intercompany Loan shall be used by the Holdings
Guarantor to make an intercompany loan to Parent.




SECTION
3.20.  Anti-Terrorism
Laws .  (a)  None
of the Loan Parties or their respective Subsidiaries or the Holdings Guarantor
and, to the knowledge of any Loan Party and the Holdings Guarantor, 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”).




(b)  None of
the Loan Parties or their respective Subsidiaries or the Holdings Guarantor and,
to the knowledge of any Loan Party and the Holdings Guarantor, 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:




41


(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 the Holdings Guarantor or, to the knowledge of any Loan Party and the
Holdings Guarantor, 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
3.21.  Legal Form; No
Filing .  The
choice of New York law as the governing law of the Loan Documents and the
jurisdiction clause contained in such Documents are valid and binding and will
be upheld and given effect to by the courts of Germany.  No Taxes are
required to be paid and no notarization is required for the legality, validity,
enforceability or admissibility into evidence of this Agreement, any Note or any
other Loan Document.




SECTION
3.22.  Pari Passu Ranking;
Liens .  This
Agreement, the Notes, the Guarantee Agreements and the Obligations evidenced
hereby and thereby are and will at all times constitute direct and unconditional
general obligations of each Loan Party and will at all times rank in right of
payment and otherwise at least pari passu with all other
unsubordinated Indebtedness of each Loan Party that is not secured by a Lien
permitted under Section 6.02, whether now existing or hereafter outstanding,
except for obligations mandatorily preferred by law applying to the Loan Parties
generally.




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.







(b)  The
Administrative Agent shall have received counterparts of the Holdings Guarantee
Agreement.




(c)  The
Administrative Agent shall have received from the Borrower a Closing
Certificate, substantially in the form of Exhibit G, 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)  With
respect to each Loan Party and the Holdings Guarantor, a certified copy of the
articles of association, a certified copy of the extracts from the relevant
Commercial Register (beglaubigte
Handelsregisterauszüge) and a certified copy of the list of its
shareholders, each dated not earlier than fourteen (14) days prior to the
Effective Date.




(B)  A copy of
any necessary resolutions by the shareholders of each Loan Party and the
Holdings Guarantor (i) approving the execution, delivery and performance of the
Loan Documents to which it is party and the terms and conditions thereof, (ii)
authorizing a named person or persons to sign each such Loan Document and any
other documents to be delivered by the Holdings Guarantor or such Loan Party
pursuant thereto and (iii) in the case of each Loan Party (other than the
Borrower), authorizing the Borrower to act as its agent in connection with the
Loan Documents (if required).




(C)  A
certificate of a duly authorized signatory of each Loan Party and the Holdings
Guarantor dated the Effective Date (i) certifying that each copy document
relating to it specified in paragraphs (A) and (B) above is true, complete
and have not been modified, rescinded, amended or superseded and are in full
force and effect as of the Effective Date, (ii) setting out the names and
specimen signatures of the persons authorized to sign, on behalf of such Loan
Party, each Loan Document to which such Loan Party or the Holdings Guarantor is
or is to be party and any documents to be delivered by such Loan Party or the
Holdings Guarantor pursuant thereto and (iii) confirming that the entry into the
Loan Documents to which it is a party and, in case of the Borrower, utilization
in full of the Loans, would not contravene its articles of association and/or
breach any restriction of its borrowing power or its power to give
guarantees




(e)  The
Administrative Agent shall have received from each of (i) Kirkland & Ellis
LLP, special New York counsel to the Loan Parties and the Holdings Guarantor,
and (ii) Allen & Overy LLP, special German counsel to the Loan Parties and
the Holdings Guarantor, a customary written opinion substantially in the form of
Exhibit E-1 and
Exhibit E-2
attached hereto, respectively, in each case, addressed to the Administrative
Agent and the Lenders and dated the Effective Date.




(f)  The
Arranger and the Bookrunner 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.




(g)  The
Administrative Agent shall have received the unaudited consolidated balance
sheets and related statements of income of the Borrower described in
Section 3.05.







(h)  The
Administrative Agent shall have received evidence of insurance in form and
substance reasonably satisfactory to the Administrative Agent.




(i)  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 four Business Days
prior to the Effective Date.




(j)  The
Administrative Agent shall have received certificates of the chief financial
officer of the Borrower (i) substantially in the form of Exhibit I,
confirming the solvency of the Borrower (individually and on a consolidated
basis with its Subsidiaries) after giving effect to the Transactions and (ii)
confirming that, after giving effect to the Transactions on a Pro Forma Basis,
the Total Leverage Ratio as of the last day of the most recent Test Period was
not greater than 2.10:1.00, in each case, together with such other supporting
schedules and other evidence as may be reasonably requested by the
Administrative Agent.




(k)  The
Administrative Agent shall have received (i) the pro forma consolidated
balance sheet referred to in Section 3.15(b), together with the certificate
of the chief financial officer of the Borrower certifying as to clauses
(i)-(iii) of Section 3.15(b) and (ii) the Projected Financial
Statements.




(l)  After
giving effect to the Transactions, the Borrower and its Subsidiaries shall have
no outstanding indebtedness other than the Loans under this
Agreement.




(m)  All
approvals of Governmental Authorities and third parties necessary to consummate
the Transactions shall have been obtained and shall be in full force and effect
and there shall be no judicial or regulatory action by a Governmental Authority,
actual or threatened, that could reasonably be expected to restrain, prevent or
impose materially burdensome conditions on the Transactions or the other
transactions contemplated hereby.  The Administrative Agent shall be
reasonably satisfied that the Borrower, its Subsidiaries and the Transactions
shall be in full compliance with all material Requirements of Law, including
Regulation U and Regulation X, and shall have received reasonably satisfactory
evidence of such compliance reasonably requested by the Administrative
Agent.




(n)  On or
prior to the Effective Date, the Administrative Agent shall have received (i)
all fees payable to the Administrative Agent, the Arranger, the Bookrunner, any
Lender and any of their respective Affiliates under the Fee Letter and (ii) 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 White & Case LLP) required to be reimbursed or paid by any
Loan Party hereunder or under any other Loan Document.




(o)  The
Administrative Agent shall have received a notice of such Borrowing as required
by Section 2.02.




(p)  The
representations and warranties set forth in Article III hereof and in the
other Loan Documents shall be true and correct (or true and correct in all
material respects if not otherwise qualified by materiality or by a Material
Adverse Effect) with the same effect as if then made (unless expressly stated to
relate to an earlier date, in which case such representations and warranties
shall be true and correct (or true and correct in all material respects if not
otherwise qualified by materiality or by a Material Adverse Effect) as of such
earlier date).







(q)  At the
time of and immediately after such Borrowing, no Default or Event of Default
shall have occurred and be continuing.




(r)  The
Administrative Agent shall have received evidence of the acceptance by the
Process Agent in form and substance reasonably satisfactory to the
Administrative Agent.




The
submission of the Borrowing Request and the Borrowing shall be deemed to
constitute a representation and warranty by the Loan Parties on the date of such
Borrowing, as to the matters specified in paragraphs (p) and (q) of this
Section 4.01.




ARTICLE
V









AFFIRMATIVE
COVENANTS




Each Loan
Party 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
(other than unasserted contingent indemnification obligations not due and
payable):




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 the Lenders copies of the following financial
statements, reports, notices and information:




(a)  within 45
days after the end of each of the first three Fiscal Quarters of each Fiscal
Year, a consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such Fiscal Quarter and consolidated statements of earnings and cash
flows of the Borrower and its 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 Subsidiaries as of the dates and for the periods
specified on a consolidated basis in accordance with GAAP consistently applied,
and on a basis consistent with the financial statements referred to in Section
5.01(b) (subject to normal year-end adjustments and the absence of notes),
together with (i) 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 ratios and restrictions contained
in the Financial Covenants 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 and (ii) management’s discussion and analysis of the
important operational and financial developments during such Fiscal Quarter (in
form and detail consistent with the presentation thereof set forth at page 31 of
the Information Memorandum);




(b)  within 90
days after the end of each Fiscal Year of the Borrower, a copy of  a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such Fiscal Year and consolidated statements of earnings and cash flows of the
Borrower and its Subsidiaries for such Fiscal Year, 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
Subsidiaries as of the dates and for the periods specified on a consolidated
basis in accordance with GAAP consistently applied, together with (i) a
Compliance Certificate containing a computation in reasonable detail of, and
showing compliance with, each of the financial ratios and restrictions contained
in the Financial Covenants 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 and (ii) management’s discussion and analysis of the
important operational and financial developments during such Fiscal Year (in
form and detail consistent with the presentation thereof set forth at page 31 of
the Information Memorandum);




(c)  no later
than February 28 of each Fiscal Year of the Borrower, 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 promptly when available, any significant revisions of such
budgets;




(d)  promptly
upon receipt thereof, copies of all final material reports submitted to the
Borrower, the Holdings Guarantor or any Parent Entity by independent public
accountants (except to the extent that would violate any confidentiality
provision not waivable by the Borrower, the Holdings Guarantor or any Parent
Entity) in connection with each annual, interim or special audit made by such
accountants (including any final management letters submitted by such
accountants to management in connection with their annual audit) of the books of
(i) the Borrower or any of its Subsidiaries or (ii) to the extent any such
reports relate to the Borrower or any of its Subsidiaries or the Holdings
Guarantor;




(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 its
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
and in any event within five 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;




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




(i)  upon
becoming aware of any newly arising environmental matters, facts or conditions
affecting any Property or facilities owned or operated by any Loan Party or any
of its Subsidiaries, or which relate to any Environmental Liabilities of any
Loan Party or any of its 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 $500,000, promptly notify the Administrative Agent of such matters and
any Remedial Actions or other corrective actions of any Loan Party or any of its
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) or (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); providedthat 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. Each
Loan Party and the Holdings Guarantor will, and the Borrower will cause each of
its 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 the Borrower’s 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 .  Each
Loan Party will, and will cause each of its 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 any Loan Party from discontinuing the
operation and maintenance of any of its properties or any portion thereof or any
of those of its Subsidiaries if such discontinuance is, in the reasonable
commercial judgment of such Loan Party, 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. Each
Loan Party will, and will cause each of its Subsidiaries to, maintain or cause
to be maintained with financially sound and reputable insurance companies
insurance with respect to their properties material to its business 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 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 or machinery,
(iv) business interruption insurance, (v) worker’s compensation
insurance as may be required by any Requirement of Law, and (vi) 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, and will, upon
reasonable request of the Administrative Agent (excluding any such requests
during the continuation of an Event of Default, not more than once per year),
furnish to the Administrative Agent (x) at reasonable intervals a certificate of
an Authorized Officer of the respective Loan Party setting forth the nature and
extent of all insurance maintained by the Borrower and its respective
Subsidiaries in accordance with this Section and (y) a report of a reputable
insurance broker with respect to the insurance maintained by the Borrower and
its respective Subsidiaries and such supplemental reports with respect thereto
as the Administrative Agent may from time to time reasonably
request.




SECTION
5.05.  Books and Records;
Visitation Rights; Lender Meetings .  Each
Loan Party will, and will cause each of its 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.  Upon written request by the Administrative Agent or the
Requisite Lenders, the Borrower shall give a presentation in each Fiscal Year to
the Lenders (within 30 days after the Borrower has delivered, or should have
delivered, its financial statements pursuant to Section 5.01(b)) about the
business, financial performance and prospects of the Borrower and its
Subsidiaries, and such other matters as any Lender may (through the
Administrative Agent) reasonably request.








SECTION
5.06.  Environmental
Covenant .  Each
Loan Party will, and will cause each of its Subsidiaries to:




(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 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 which could reasonably be expected to have a Material
Adverse Effect; and




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




SECTION
5.07.  Existence; Conduct of
Business .  Each
Loan Party and the Holdings Guarantor will, and the Borrower will cause each of
its Subsidiaries to, do or cause to be done all things reasonably necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges, franchises, patents, copyrights,
trademarks and trade names 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
Section 6.05.




SECTION
5.08.  Performance of
Obligations .  Each
Loan Party and the Holdings Guarantor will, and the Borrower will cause each of
its Subsidiaries to, perform all of its obligations under the terms of each
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
5.09.  Use of
Proceeds .  Each
Loan Party and the Holdings Guarantor covenants and agrees that the proceeds of
the Loans on the Effective Date will be used as set forth in Section
3.19.




SECTION
5.10.  Payment of Taxes and
Claims. Each
Loan Party and the Holdings Guarantor will (a) pay and discharge all material
Taxes imposed upon it or upon its income or profits, or upon any Properties
belonging to it, in each case on a timely basis, 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
Loan Parties or the Holdings Guarantor or cause a failure or forfeiture of title
thereto; provided that none of
the Loan Parties or the Holdings Guarantor 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 and correctly file all material Tax Returns required to
be filed by it (taking into account any permission to extend the filing period),
and withhold, collect and remit all Taxes that it is required to collect,
withhold or remit.







SECTION
5.11.  Additional
Guarantors .  In
the event that any Person becomes a 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, execute and deliver to the Administrative Agent a counterpart of an
applicable Subsidiary Guarantee Agreement, and (ii) 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
5.12.  Pension
Plans .  Except
as could not reasonably expected to have a Material Adverse Effect, the Borrower
shall ensure that all Pension Plans maintained by (or for the benefit of) it or
any of its Subsidiaries and/or any of its or their employees are (i) maintained
and operated in accordance with all applicable laws from time to time and (ii)
funded in accordance with the governing rules of such schemes and all laws
applicable thereto with any shortfall in funding being rectified in accordance
with governing procedures and applicable laws.




SECTION
5.13.  Maintenance of Corporate
Separateness .  (a)  The
Borrower will maintain its separate existence and identity and will take
reasonable steps to make it apparent to third parties that the Borrower is an
entity with assets and liabilities distinct from those of any other person and
will observe customary corporate formalities, including the holding of regular
board of directors’ and shareholders’ meetings or action by directors or
shareholders without a meeting and the maintenance of corporate offices and
records.




(b)  Not in
limitation of the generality of the foregoing, the Borrower agrees as
follows:




(i)  the
Borrower will not commingle its assets with those of any other Person and shall
take all reasonable steps to maintain its assets in a manner that facilitates
their identification and segregation from those of any other
Person;




(ii)  the
Borrower shall take all reasonable steps to prevent any of its funds from at any
time being pooled with any funds of any other Person;




(iii)  the
Borrower will conduct its business in its own name and from an office separate
from that of any Parent Entity;




(iv)  the
Borrower will maintain separate corporate records and books of account from
those of any other Person;




(v)  the
Borrower will maintain separate financial statements from those of any other
Person; provided, however, financial information about the Borrower may be
contained in consolidated financial statements issued by Parent;




(vi)  the
Borrower will pay its own liabilities, including the salaries of its own
employees, consultants and agents, from its own funds and bank
accounts;




(vii)  the
Borrower will compensate any Parent Entity at market rates for any services that
such Parent Entity actually renders to the Borrower; and




(viii)  the
Borrower shall not maintain joint bank accounts or other depository accounts to
which any Parent Entity has access, except for the CPA, provided that the
Borrower’s participation in such CPA is terminated within four weeks (or such
longer period as may be consented to by the Administrative Agent) after the date
of this Agreement.




Notwithstanding
anything to the contrary, this Section 5.13 shall not prohibit, and is subject
to, the CPA, PLPA and intercompany netting arrangements entered into in the
ordinary course of business and consistent with past practice.




ARTICLE
VI









NEGATIVE
COVENANTS




Each Loan
Party 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
(other than unasserted contingent indemnification obligations not due and
payable):




SECTION
6.01.  Indebtedness .  Each
Loan Party will not, and will not permit any of its Subsidiaries to, directly or
indirectly, 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
(A) (1) outstanding on the Effective Date and set forth on Schedule 6.01(ii)(A)
and (2) any Permitted Refinancing thereof and (B) outstanding on the Effective
Date and set forth on Schedule
6.01(ii)(B);




(iii)  Indebtedness
permitted by Section 6.04(iii);




(iv)  Guarantees
in respect of Indebtedness otherwise permitted hereunder to the extent permitted
as an Investment under Section 6.04; provided that if such
Guaranteed Indebtedness is subordinated to the Obligations under the Loan
Documents, such Guarantee is as subordinated to the Obligations;




(v)  Indebtedness
of any Loan Party and any Subsidiary thereof in respect of performance bonds,
bid bonds, appeal bonds, surety bonds, performance and completion guarantees and
similar obligations and trade-related letters of credit, in each case issued for
the account of such Loan Party and its Subsidiaries in the ordinary course of
business of such Loan Party and its Subsidiaries including those incurred to
secure health, safety and environmental obligations in the ordinary course of
business of such Loan Party and its Subsidiaries (and in each case other than
for an obligation for borrowed money);




(vi)  Indebtedness
arising from agreements of any Loan Party and any Subsidiary thereof providing
for indemnification, adjustment of purchase price or similar obligations, in
each case, incurred or assumed in connection with the disposition otherwise
permitted under this Agreement of any business, assets or a Subsidiary, other
than Guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or a Subsidiary for the purpose of financing
such acquisition;




(vii)  Indebtedness
of any Loan Party and any Subsidiary thereof 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 such Loan Party and such 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(iii);




(viii)  Indebtedness
consisting of obligations of any Loan Party or any Subsidiary thereof under
deferred compensation or other similar arrangements incurred by such Person in
connection with an Investment expressly permitted hereunder;




(ix)  Indebtedness
consisting of the financing of insurance premiums;




(x)  unsecured
Indebtedness of any Loan Party or any Subsidiary thereof representing the
obligation of such Person to make payments with respect to the cancellation or
repurchase of Equity Interests and Equity Rights of officers, employees or
directors (or their estates) of such Loan Party or Subsidiary permitted by
Section 6.07;




(xi)  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;




(xii)  Indebtedness
(“PLPA
Indebtedness”) of the Borrower owing to the Holdings Guarantor under any
loan agreement resulting from a novation of the Holdings Guarantor’s claim for
profit transfer under the PLPA into shareholder loans to the Borrower; provided that any
such Indebtedness shall be subordinated to the Obligations on terms reasonably
satisfactory to the Administrative Agent; and




(xiii)  other
Indebtedness incurred by the Loan Parties in the ordinary course of business in
an aggregate principal amount not to exceed $500,000 at any one time
outstanding; provided, however, that for
purposes of determining compliance with this clause (xiii), the maximum amount
of Indebtedness that may be incurred pursuant to this clause shall not be deemed
to be exceeded, with respect to any such outstanding Indebtedness, due solely to
the result of fluctuations in the exchange rates of currencies.




SECTION
6.02.  Liens .  Each
Loan Party will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien on any Property or
asset now owned or hereafter acquired by them, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except the following (herein collectively referred to as “Permitted
Liens”):




(i)  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, 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 any Loan Party and its respective 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;




(ii)  Liens
existing on the Effective Date and identified on Schedule
6.02(ii);




(iii)  Liens for
Taxes or governmental charges or claims or other like statutory Liens, in any
case incurred in the ordinary course of business of any Loan Party and its
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;




(iv)  (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, 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 of the Real Property affected thereby or materially interfere with any
Loan Party or any Subsidiary thereof 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 and other encumbrances incurred,
created, assumed or permitted to exist and arising by, through or under a
landlord or owner (other than any Loan Party or any Subsidiary thereof) of such
leased property encumbering such landlord’s or owner’s interest in such leased
property;




(v)  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 any Loan Party or any Subsidiary thereof 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 any Loan Party and any
Subsidiary thereof 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 in the
case of contested amounts, a reserve or other appropriate provision, if any, as
is required by GAAP shall have been made therefor;




(vi)  Liens
securing any judgments, awards, decrees or orders in circumstances not
constituting an Event of Default under Section 7.01(f);




(vii)  Liens in
the form of licenses, leases or subleases in respect of Real Property granted or
created by any Loan Party or any Subsidiary thereof, which licenses, leases or
subleases do not interfere, individually or in the aggregate, in any material
respect with the business of such Loan Party 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;




(viii)  Liens
arising from the filings made solely as a precautionary measure in connection
with operating leases or consignment of goods;




(ix)  (A)
bankers’ Liens (including Liens arising under the general business conditions of
a German credit institution with which any Loan Party maintains a banking
relationship), 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 any Loan Party and its
Subsidiaries; 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 (other than Indebtedness under the Loan Documents); and (B)
customary Liens attaching to commodity trading accounts, commodities brokerage
accounts, securities accounts and securities intermediary accounts in the
ordinary course of business;




(x)  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 any Loan Party or any Subsidiary thereof; provided that such
Lien secures only the obligations of any Loan Party or any such Subsidiary in
respect of such letter of credit or banker’s acceptance to the extent permitted
under Section 6.01;




(xi)  Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods and Liens that are contractual rights of set-off
relating to purchase orders and other similar agreements entered into by any
Loan Party or any of its Subsidiaries;




(xii)  Liens on
insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto incurred in the ordinary course of
business;




(xiii)  ground
leases in respect of real property on which facilities owned or leased by any
Loan Party or any of its Subsidiaries are located;




(xiv)  Liens
consisting of an agreement to sell or otherwise dispose of any property in an
Asset Sale permitted under Section 6.05, in each case solely to the extent such
Asset Sale would have been permitted on the date of the creation of such
Lien;




(xv)  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 any
Loan Party or any of its Subsidiaries, (B) other agreements entered into in the
ordinary course of business in connection with an asset sale permitted under the
Loan Documents or (C) 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 any Loan Party or any of its
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; and




(xvi)  with
respect to any Loan Party or any Subsidiary thereof 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 7e of the German Sozialgesetzbuch IV.




SECTION
6.03.  Fundamental Changes; Line of
Business .  (a)  Each
Loan Party will not, and will not permit any of its Subsidiaries to, directly or
indirectly, 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 shall have occurred and be continuing, (i) any Wholly Owned
Subsidiary may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation and (ii) any Subsidiary of the Borrower may merge
with or into or consolidate with any Subsidiary in a transaction in which the
surviving or resulting entity is a Wholly Owned Subsidiary, in each case, on the
terms set forth therein and to the extent applicable.







(b)  Notwithstanding
the foregoing, any Subsidiary may dispose of any or all of its assets (upon
voluntary liquidation, dissolution or otherwise) to the Borrower or any other
Loan Party (other than the Holdings Guarantor).




(c)  Each Loan
Party will not, and will not permit any of its Subsidiaries to, directly or
indirectly, engage in any business other than businesses of the type conducted
by the Loan Parties and their Subsidiaries on the Effective Date and businesses
substantially similar, ancillary or reasonably related thereto.




SECTION
6.04.  Investments, Loans,
Advances, Guarantees and Acquisitions .  Each
Loan Party will not, and will not permit any of its Subsidiaries to, directly or
indirectly, purchase, hold or acquire (including pursuant to any merger with any
Person that was not a Wholly Owned 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;




(iii)  Investments
(A) by any Loan Party in the Borrower or any other Loan Party that is a
Wholly Owned Subsidiary of the Borrower, (B) by the Borrower or any Subsidiary
arising under the PLPA and (C) consisting of the Holding Intercompany Loan;
provided that
any such Investment in the form of a loan or advance to any Loan Party shall be
subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;




(iv)  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
Subsidiaries;




(v)  loans and
advances to directors and employees of any Loan Party or its Subsidiaries in the
ordinary course of business of such Loan Party and its 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 $500,000 at any one time outstanding;
provided, however, that for
purposes of determining compliance with this clause (v), the maximum amount of
such loans and advances that may be made pursuant to this clause shall not be
deemed to be exceeded, with respect to any such outstanding loans and advances,
due solely to the result of fluctuations in the exchange rates of
currencies;




(vi)  mergers
and consolidations and dissolutions and other transactions permitted under
Section 6.03;




(vii)  [INTENTIONALLY
OMITTED]




(viii)  Investments
in deposit accounts in the ordinary course of business of the Borrower and its
Subsidiaries;




(ix)  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 Subsidiaries;




(x)  Investments
consisting of any deferred portion (including promissory notes and non-cash
consideration) of the sales price received by any Loan Party or any Subsidiary
thereof in connection with any Asset Sale permitted under Section
6.05;




(xi)  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;




(xii)  Investments
in respect of Treasury Services Agreements permitted under Section
6.01(vii);




(xiii)  the
endorsement of negotiable instruments for deposit or collection in the ordinary
course of business; and




(xiv)  other
Investments (collectively, the “Specified
Investments”); provided that (1) no
Default has occurred and is continuing or would result therefrom and (2) the
aggregate amount of such Specified Investments, when taken together with all
other Specified Investments made in reliance on this clause (xiv) and all
Specified Restricted Payments made in reliance on Section 6.07(iii) since the
Effective Date, shall not exceed the RP Basket Amount; provided, however, that for
purposes of determining compliance with this clause (xiv), the maximum amount of
such Specified Investments that may be made pursuant to this clause shall not be
deemed to be exceeded following the making thereof (so long as each such
Specified Investment could have been made at the time thereof), due solely to
the result of fluctuations in the exchange rates of currencies.




Notwithstanding
anything to the contrary in this Section 6.04 or any other Section of this
Agreement, the Borrower shall not create any direct or indirect Subsidiary or
otherwise acquire any Person that shall become a direct or indirect Subsidiary
of the Borrower unless, prior to such creation or acquisition, a form of
Subsidiary Guarantee Agreement that is to be executed by any such Subsidiary
pursuant to Section 5.11 has been reasonably agreed upon by each of the Borrower
and the Administrative Agent, which form shall, among others, include such
specific provisions regarding limitations on the guarantee(s) to be contained
therein as may be appropriate under the law of the jurisdiction of such
Subsidiary Guarantor(s).




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, 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).  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 .  Each
Loan Party will not, and will not permit any of its Subsidiaries to, effect any
Asset Sale, except:




(i)  (A) sales
of inventory in the ordinary course of business of the Loan Parties and their
respective Subsidiaries and (B) the disposition in the ordinary course of
business of the Loan Parties and their respective Subsidiaries (including the
abandonment of immaterial intellectual property) of surplus, obsolete or worn
out equipment and other property or property which is no longer used, provided that the
aggregate amount of cash and non-cash proceeds received from all property sold
in reliance on this sub-clause (B) shall not exceed $500,000 during the term of
this Agreement (for this purpose, using the fair market value of property other
than cash); provided, however, that for
purposes of determining compliance with this sub-clause (B), the maximum amount
of all property that may be sold pursuant to this sub-clause shall not be deemed
to be exceeded following the sale thereof (so long as each such sale could have
been made at the time thereof), due solely to the result of fluctuations in the
exchange rates of currencies;




(ii)  sales,
transfers and other dispositions of Property by any Loan Party or any Subsidiary
thereof to another Loan Party;




(iii)  the lease
or sublease of Real Property in the ordinary course of business of any Loan
Party and its Subsidiaries;




(iv)  sales and
dispositions of Permitted Investments on ordinary business terms;




(v)  Liens
permitted by Section 6.02, mergers, consolidations, liquidations and
dissolutions permitted by Section 6.03 and Investments permitted by Section
6.04;




(vi)  Small
Asset Sales;




(vii)  sales,
transfers and dispositions of assets not otherwise permitted under this Section;
provided that
(A) immediately after giving effect to any such sale, transfer or disposition,
no Default or Event of Default shall have occurred and be continuing and (B) the
Net Proceeds thereof are applied as and to the extent required by
Section 2.04(b)(ii);




(viii)  the
issuance of qualifying shares of Subsidiaries of Loan Parties to officers and
directors of such Subsidiaries to the extent required by applicable Requirements
of Law;




(ix)  dispositions
of accounts receivable in connection with compromise, write down or collection
thereof in the ordinary course of business; and




(x)  transfers
of property subject to a Taking or in connection with any condemnation
proceeding upon receipt of the Net Proceeds of such Taking or condemnation
proceeding;




provided that all
sales, transfers, leases and other dispositions permitted hereby shall be made
for fair market value and, in the case of sales, transfers, leases and other
dispositions permitted by Section 6.05(vii), for consideration consisting of at
least 75% cash and Cash Equivalents.




SECTION
6.06.  Sale and Leaseback
Transactions .  Each
Loan Party will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into any arrangement, directly or indirectly, 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.







SECTION
6.07.  Restricted
Payments .  Each
Loan Party will not, and will not permit any of its Subsidiaries to, directly or
indirectly, declare or make, any Restricted Payment or incur any obligation
(contingent or otherwise) to do so, except:




(i)  any
Subsidiary of the Borrower may declare and pay dividends to the Borrower or any
other Subsidiary of the Borrower ratably with respect to its Equity Interests or
additional Equity Interests of the same class of Equity Interests as the
dividend being paid;




(ii)  the
Borrower may pay dividends consisting solely of shares of its common stock or
additional shares of the same class of shares as the dividend being paid or
other Equity Interests;




(iii)  each Loan
Party and its Subsidiaries may make other Restricted Payments (collectively, the
“Specified Restricted
Payments”); provided that (1) no
Default has occurred and is continuing or would result therefrom and (2) the
aggregate amount of such Specified Restricted Payments, when taken together with
all other Specified Restricted Payments made in reliance on this clause (iii)
and all Specified Investments made in reliance on Section 6.04(xiv) since the
Effective Date, shall not exceed the RP Basket Amount; provided, however, that for
purposes of determining compliance with this clause (iii), the maximum amount of
such Specified Restricted Payments that may be made pursuant to this clause
shall not be deemed to be exceeded following the making thereof (so long as each
such Specified Restricted Payment could have been made at the time thereof), due
solely to the result of fluctuations in the exchange rates of currencies;
and




(iv)  Restricted
Payments to the Holdings Guarantor for the purpose of paying the actual amount
of income and franchise taxes related to the Borrower and its Subsidiaries
(collectively, the “Permitted Tax
Distributions”).




SECTION
6.08.  Transactions with
Affiliates .  Each
Loan Party will not, and will not permit any of its Subsidiaries to, directly or
indirectly, 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 in the ordinary course of business of the Loan
Parties and their respective Subsidiaries and are on terms and conditions not
less favorable to the Loan Parties and their respective Subsidiaries than could
be obtained on an arm’s-length basis from unrelated third parties,
except:




(i)  loans,
advances and other transactions between or among the Loan Parties;




(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 any Loan Party or any Subsidiary thereof, as
determined in good faith by such Loan Party or such Subsidiary;




(iii)  loans and
advances to employees of any Loan Parties or any Subsidiary thereof permitted by
Section 6.04(v);




(iv)  transactions
permitted by Section 6.07;




(v)  intercompany
netting arrangements in the ordinary course of business and consistent with past
practice;




(vi)  issuances
of Equity Interests and Equity Rights; and




(vii)  transactions
pursuant to the CPA or any agreements set forth in Schedule
6.10(d).




SECTION
6.09.  Restrictive
Agreements .  Each
Loan Party will not, and will not permit any of its respective Subsidiaries to,
directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon the
ability of any 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 Loan
Parties or to Guarantee Indebtedness of the Loan Parties or to transfer property
to the Loan Parties; provided that the
foregoing shall not apply to:




(i)  conditions
or restrictions imposed by law or by any Loan Document;




(ii)  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); and




(iii)  customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary (or the assets of a Subsidiary or the Borrower) pending such sale,
provided such
restrictions and conditions apply only to the Subsidiary that is to be sold (or
whose assets are to be sold) and such sale is permitted hereunder.




SECTION
6.10.  Amendments or Waivers of
Certain Documents; Prepayments of Certain Indebtedness .  (a)  Each
Loan Party will not, and will not permit any of its Subsidiaries to, directly or
indirectly, 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)  Each Loan
Party will not, and will not permit any of its 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 or (C) so long
as no Default then exists, any exchange of Equity Interests of the Borrower for
any such Indebtedness 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)  Each Loan
Party will not, and will not permit any of its Subsidiaries to, amend or modify,
or permit the amendment or modification of, any provision of any document
governing any Material Indebtedness (other than Indebtedness under the Loan
Documents) in any manner that, taken as a whole, could reasonably be expected to
materially and adversely affect the interests of the Lenders.




(d)  Each Loan
Party will not, and will not permit any of its Subsidiaries to, amend, waive or
otherwise modify, or permit the amendment, waiver or other modification of, any
provision of any document governing any agreements listed on Schedule 6.10(d)
hereto in any manner that, taken as a whole, could reasonably be expected to
materially and adversely affect the interests of the Lenders (it being
understood and agreed that this clause (d) shall not prohibit the release of any
Loan Party or any of its Subsidiaries from the CPA in accordance with its
terms).







SECTION
6.11.  Accounting Treatment; Fiscal
Year .  Each
Loan Party will not, and will not permit any of its 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 or change its first Fiscal
Quarter, second Fiscal Quarter or third Fiscal Quarter to a date other than
March 31, June 30 or September 30, respectively.




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
                                    RatioJune
      30, 2009
                                    1.50:1.00September
      30, 2009
                                    1.50:1.00December
      31, 2009
                                    1.50:1.00March
      31, 2010
                                    1.50:1.00June
      30, 2010
                                    1.60:1.00September
      30, 2010
                                    1.60:1.00December
      31, 2010
                                    1.60:1.00March
      31, 2011
                                    1.60:1.00





SECTION
6.13.  Total Leverage
Ratio .  The
Borrower will not permit the Total 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:




Date
                                                    RatioJune
      30, 2009
                                                    2.90:1.00September
      30, 2009
                                                    2.90:1.00December
      31, 2009
                                                    2.90:1.00March
      31, 2010
                                                    2.90:1.00June
      30, 2010
                                                    2.80:1.00September
      30, 2010
                                                    2.80:1.00December
      31, 2010
                                                    2.80:1.00March
      31, 2011
                                                    2.80:1.00








SECTION
6.14.  Capital
Expenditures .  The
Borrower will not, and will not permit any of its Subsidiaries to, make or
commit to make any Capital Expenditures, except that:




(a)  during
each period of four Fiscal Quarters of the Borrower and its Subsidiaries ending
on the date set forth below (taken as one accounting period), the Borrower and
its Subsidiaries may make or commit to make Capital Expenditures not exceeding
the amount set forth (the “Base Amount”)
opposite such period below:




Four Fiscal Quarter Period
      Ending:
                          Amount:March
      31, 2010
                          $3.5
      millionMarch
      31, 2011
                          $3.5
      million





(b)  (i) The
Base Amount applicable to the period of four Fiscal Quarters ending March 31,
2011 may be increased by carrying over to such period any portion of the Base
Amount not spent in the period of four Fiscal Quarters ending March 31, 2010 and
(ii) an amount equal to not more than 50% of the Base Amount for the period of
four Fiscal Quarters ending March 31, 2011 may be carried back to the period of
four Fiscal Quarters ending March 31, 2010 and utilized to make such Capital
Expenditures in such period (it being understood and agreed that the portion of
any so carried-back Base Amount actually utilized in such period shall be
deducted from the Base Amount for the period of Four Fiscal Quarters ending
March 31, 2011).




SECTION
6.15.  Maximum Trade
Payables .  The
Holdings Guarantor and the Borrower shall not permit the Maximum Trade Payables
at any time to exceed $4.0 million, unless Trade Days Payables are less than 45
days.




SECTION
6.16.  Hedging
Agreements .  Each
Loan Party will not, and will not permit any of its Subsidiaries to, enter into
any Hedging Agreement.




SECTION
6.17.  Limitation on Issuances and
Sales of Equity Interests of Subsidiaries and Preferred Equity
Interests .  Each
of the Loan Parties will not (i) permit or cause any of its respective
Subsidiaries to issue or sell any Equity Interests (other than to the Borrower
or to a Wholly-Owned Subsidiary of the Borrower) or permit any Person (other
than the Borrower or a Wholly-Owned Subsidiary of the Borrower) to own or hold
any Equity Interests of any Subsidiary of the Loan Parties (other than as
required by applicable law); provided, however, that this
provision shall not prohibit the sale of all of the Equity Interests of a
Subsidiary in compliance with the provisions of Section 6.05(vii) and (ii)
issue, or permit or cause any of its respective Subsidiaries to issue, any
Preferred Equity Interests.




ARTICLE
VII









EVENTS OF
DEFAULT




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, (ii) in the payment when due of any fee
described in Section 2.08 or of any interest on any Loan (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 amounts
described in clauses (i) and (ii)) payable under this Agreement or any
other Loan Document (and such default in the payment of any such other amount
shall continue unremedied for a period of 20 Business Days).




(b)  Any
representation or warranty of the Borrower, any other Loan Party or the Holdings
Guarantor 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, any
other Loan Party or the Holdings Guarantor to the Administrative 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, any other Loan Party or the Holdings Guarantor shall default in the
due performance and observance of any of its obligations under Sections 5.01(e),
5.01(f) or 5.01(g), Section 5.02 (with respect to the maintenance and
preservation of the Borrower’s corporate existence), Section 5.11 or
Article VI.




(d)  The
Borrower, any other Loan Party or the Holdings Guarantor 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)  (i) A
default shall occur (A) in the payment when due (subject to any applicable
grace period), whether by acceleration or otherwise, of any Material
Indebtedness or Holdings Material Indebtedness or (B) in the performance or
observance of any obligation or condition with respect to any Material
Indebtedness or Holdings Material Indebtedness if the effect of such default
referred to in this subclause (B) is to accelerate the maturity of any
such Material Indebtedness or Holdings 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 Holdings Material Indebtedness or
any trustee or agent on its or their behalf to cause any such Material
Indebtedness or Holdings Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity or (ii) a default shall occur in the due performance by any party to
any agreement identified on Item A of Schedule 6.10(d) of any of the covenants
contained in Section 5 of any such agreement and such default shall continue
unremedied for a period of 15 days.




(f)  Any
judgment or order (or combination of judgments and orders) for the payment of
money equal to or in excess of (x) $1.0 million with respect to the
Borrower or any of its Subsidiaries or (y) $5.0 million with respect to the
Holdings Guarantor (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 Subsidiaries (or
any combination thereof) or the Holdings Guarantor and




(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)  A
termination, withdrawal or event of noncompliance with applicable law or plan
terms with respect to Pension Plans, shall have occurred that when taken
together with all other terminations, withdrawals and events of noncompliance
with respect to Pension Plans that have occurred, could reasonably be expected
to have a Material Adverse Effect.




(h)  Any
Change of Control shall occur.




(i)  Any Loan
Party or any Subsidiary thereof or the Holdings Guarantor shall




(i)  (x)
become unable to pay its debts as they fall due within the meaning of Section 17
of the German Insolvency Code (Insolvenzordnung) or be
over-indebted within the meaning of Section 19 of the German Insolvency Code
(Insolvenzordnung) or
(y) otherwise become insolvent or generally fail to pay debts as they become
due;




(ii)  apply
for, consent to or acquiesce in the appointment of a trustee, receiver,
sequestrator or other custodian for such Loan Party or such Subsidiary or the
Holdings Guarantor 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 such
Loan Party or such Subsidiary or the Holdings Guarantor 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 each
Loan Party and the Holdings Guarantor hereby expressly authorize 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 any Loan
Party or any Subsidiary thereof or the Holdings Guarantor (other than any
dissolution or liquidation permitted under Section 6.03) and, if any such case
or proceeding is not commenced by any Loan Party or any Subsidiary thereof or
the Holdings Guarantor, such case or proceeding shall be consented to or
acquiesced in by any Loan Party or any Subsidiary thereof or the Holdings
Guarantor or shall result in the entry of an order for relief or shall remain
for 60 days undismissed and unstayed; provided that each
Loan Party and the Holdings Guarantor hereby expressly authorize 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.




(j)  The
obligations of any Loan Party under either Guarantee Agreement shall cease to be
in full force and effect (except in accordance with the terms thereof) or any
such Loan Party or the Holdings Guarantor shall repudiate its obligations
thereunder.




(k)  Any Loan
Document shall cease to be in full force and effect (except in accordance with
its terms).




SECTION
7.02.  Action if
Bankruptcy .  If
any Event of Default described in Section 7.01(i) shall occur, the
Commitments (if not theretofore terminated) 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,
without notice or demand, 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 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
declare all or any portion of the outstanding principal amount of the Loans and
other Obligations to be due and payable and/or the Commitments (if not
theretofore terminated) to be terminated, 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 and/or, as the case may be, the Commitments shall
terminate.




ARTICLE
VIII









THE ADMINISTRATIVE
AGENT




SECTION
8.01.  Appointment and
Authority . Each
Lender hereby irrevocably appoints Jefferies Finance LLC 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 expressly set forth in this Agreement and the other
Loan Documents or otherwise delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.  The provisions of this Article are solely for the
benefit of the Administrative Agent and its Affiliates and the Lenders and any
Lender Affiliate, and none of the Borrower, any other Loan Party or the Holdings
Guarantor shall have rights as a third party beneficiary of any of such
provisions.




SECTION
8.02.  The Administrative Agent and
its Affiliates. (a)  Each
Person serving as the Administrative 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 the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity.  Such Person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor to, or in
any other advisory capacity for, and generally engage in any kind of business
with, the Loan Parties or any Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.




(b)           Each
Lender understands that each Person serving as the Administrative Agent, the
Arranger and the Bookrunner acting in their individual capacities, their
respective Affiliates and any of their respective directors, officers, agents or
employees (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 Affiliates.  Furthermore, the Agents’ Groups may, in undertaking
the Activities, engage in trading in financial products or undertake other
investment businesses for their own accounts or on behalf of others (including
the Loan Parties and their Affiliates and including the holding, for their own
accounts or on behalf of others, of equity, debt and similar positions in the
Borrower or other Loan Party, or their 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 and the Holdings Guarantor 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’ Groups 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 be
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 the Administrative Agent, Arranger or Bookrunner 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 and
the Holdings Guarantor 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 own accounts.




SECTION
8.03.  Duties of Administrative
Agent; Exculpatory Provisions .  (a)  The
Administrative Agent’s duties hereunder and under the other Loan Documents are
solely ministerial and administrative in nature and the Administrative Agent
shall not have any duties or obligations except those expressly set forth herein
and in the other Loan Documents.  Each Lender hereby acknowledges that
the Administrative Agent shall not have by reason of this Agreement assumed a
fiduciary relationship in respect of any Lender and that the Administrative
Agent is merely acting as the contractual representative of such Lender with
only the duties expressly set forth in this Agreement and the Loan
Documents.  In performing its functions and duties under this
Agreement, the Administrative Agent shall act solely in its capacity as such on
behalf of the applicable Lenders and shall not assume, or be deemed to have
assumed, any obligation toward, or relationship of agency or trust with or for
any Loan Party or any Guarantor.  Each such Lender agrees that it will
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, which claims such Lender
hereby waives.  Without limiting the generality of the foregoing, the
Administrative Agent shall not 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, including Lenders holding
certain Types of Loans, provided, however,
that the Administrative Agent shall not be required to take any action that, in
its opinion or the opinion of its counsel, may expose the Administrative Agent
or any of its Affiliates to liability (including hourly administration fees and
out-of-pocket costs and expenses) or that is contrary to any Loan Document or
applicable law, unless the Administrative Agent is indemnified to its
satisfaction by the Lenders on whose behalf it is acting in such capacity on a
pro rata basis against any and all liability and expense which it may incur by
reason of taking or continuing to take any such action.  If the
Administrative Agent seeks the consent or approval of the Requisite Lenders (or
a greater or lesser number of Lenders (including Lenders holding only certain
Types of Loans) as required in this Agreement), with respect to any action
hereunder, the Administrative Agent shall send written notice that the Requisite
Lenders (or such greater or lesser number of Lenders (including Lenders holding
only certain Types of Loans) as required hereunder) have instructed the
Administrative Agent to act or refrain from acting pursuant hereto.







(b)  No member
of the Agents’ Groups shall be liable to the Lenders for any action taken or
omitted to be taken by it under or in connection with this Agreement or the
other Loan Documents, except to the extent such action or inaction is determined
by a final judgment by a court of competent jurisdiction to have arisen from the
gross negligence or willful misconduct of such member.  The
Administrative Agent shall not be deemed to have knowledge of any Default or the
event or events that give or may give rise to any Default unless and until the
Loan Parties, the Holdings Guarantor or any Lender shall have given written
notice to such Administrative Agent stating the such notice is a “Notice of
Default” and describing such Default and such event or events.




(c)  Neither
the Administrative Agent nor any member of the Agents’ Groups 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, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement, any other Loan 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 the Administrative Agent.




(d)  Without
limitation of the generality of the foregoing, the Administrative Agent: (i) may
treat each Lender party hereto as the holder of Obligations until the
Administrative Agent receives written notice of the assignment or transfer of
such Lender’s portion of the Obligations; (ii) makes no warranties or
representations to any Lender; (iii) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or the other Loan Documents on the part of the Loan
Parties or the Holdings Guarantor, to inspect the property (including the books
and records) of the Loan Parties or any of their respective Subsidiaries or the
Holdings Guarantor, to monitor the financial condition of any Loan Party or any
of their respective Subsidiaries or the Holdings Guarantor or to ascertain the
existence or possible existence or continuation of any Default or Event of
Default; (iv) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (v) shall not be liable to any Lender for
any action taken, or inaction, by the Administrative Agent upon the instructions
of the Requisite Lenders or refraining to take any action pending such
instructions; (vi) shall not be liable for any apportionment or distributions of
payments made by it in good faith pursuant to Section 2.11; (vii) shall incur no
liability under or in respect of this Agreement or the other Loan Documents by
acting upon any notice, consent, certificate, message or other instrument or
writing (which may be by telephone (with prompt written confirmation
thereafter), facsimile, telegram, cable, telex or email) believed in good faith
by it to be genuine and signed,  sent or otherwise authenticated by
the proper party or parties; (viii) may assume that no Default or Event of
Default has occurred and is continuing, unless the officer employed by the
Administrative Agent to administer this matter has actual knowledge of the
Default or Event of Default, has received written notice from the Loan Parties
or the Holdings Guarantor or the Loan Parties’ independent certified public
accountants, if any, stating the nature of the Default or Event of Default, or
has received written notice from a Lender stating the nature of the Default or
Event of Default and that such Lender considers the Default or Event of Default
to have occurred and to be continuing, (ix) shall have no implied duties to the
Lenders on whose behalf it acts as Administrative Agent or any other obligation
to such Lenders to take any action hereunder except for any action specifically
provided by this Agreement or Loan Documents to be taken by the Administrative
Agent; and (x) shall have no duty to disclose to any Lender information that is
furnished by any Loan Party or the Holdings Guarantor to the Administrative
Agent in its individual capacity. In the event any apportionment or distribution
described in clause (vi) above is determined to have been made in error, the
sole recourse of any Person to whom payment was due but not made shall be to
recover from the recipients of such payments any payment in excess of the amount
to which they are determined to have been entitled.







(e)  Nothing
in this Agreement or any other Loan Document shall require any Administrative
Agent or any of its Related Parties to carry out any “know your customer” or
other checks in relation to any person on behalf of any Lender and each Lender
confirms to each Administrative 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 the Administrative Agent or any of its Related
Parties.




SECTION
8.04.  Reliance by Administrative
Agent .  The
Administrative 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.  The Administrative 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 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, 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.  The Administrative Agent may consult with legal counsel
(who may be counsel for the Borrower, any other Loan Party or the Holdings
Guarantor), independent public accountants and other experts selected by it, and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of any such counsel, accountants or
experts.




SECTION
8.05.  Delegation of
Duties .  The
Administrative 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 Administrative Agent.  The
Administrative Agent and any such sub-agent may perform any and all of their
respective duties and exercise their respective rights and powers by or through
their respective Related Parties.  Each such sub-agent and the Related
Parties of the Administrative 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”, under the Loan Documents) as if set
forth in full herein with respect thereto.




SECTION
8.06.  Resignation of
Administrative Agent The
Administrative 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 Lender or a bank or trust
company with an office in New York, New York, or an Affiliate of any such Lender
or such bank or trust company 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 10 days after
the retiring Administrative Agent gives notice of its resignation (such 10-day
period, the “Lender
Appointment Period”), then the retiring Administrative Agent may on
behalf of the Lenders, appoint a successor Administrative Agent meeting the
qualifications set forth above.  In addition and without any
obligation on the part of the retiring Administrative Agent to appoint, on
behalf of the Lenders, a successor Administrative Agent, the retiring
Administrative 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 Administrative Agent and the effective
date of such retiring Administrative Agent’s resignation.  Upon the
resignation effective date established in such notice and regardless of whether
a successor Administrative Agent has been appointed and accepted such
appointment, the retiring Administrative Agent’s resignation shall nonetheless
become effective and (i) the retiring Administrative Agent shall be discharged
from its duties and obligations as Administrative Agent, hereunder and under the
other Loan Documents and (ii) all payments, communications and determinations
provided to be made by, to or through the retiring Administrative Agent shall
instead be made by or to each Lender directly, until such time as the Requisite
Lenders appoint a successor Administrative Agent as provided for above in this
paragraph.  Upon the acceptance of a successor’s appointment as the
Administrative Agent, hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations as an Administrative 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 Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor.  After the retiring Administrative 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
Administrative 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 Administrative Agent was acting as Administrative Agent.







SECTION
8.07.  Non-Reliance on
Administrative Agent and Other Lenders .
(a)  Each Lender confirms to the Administrative 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 the
Administrative 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 the Administrative 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 the Administrative 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 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, each other Loan
Party and the Holdings Guarantor;




(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 the Administrative 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.




(c)  Neither
any other Lender nor the Administrative Agent shall have any duty or
responsibility, either initially or on an ongoing basis, to provide any Lender
with any credit, financial condition or other similar information regarding any
Loan Party, any of their respective Subsidiaries or the Holdings
Guarantor.




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, any other Loan Party or the Holdings Guarantor,





Flexsys
Verkauf GmbH


Groβe
Drakenburgerstraβe 93-97


Postfach
1440


D-31582
Nienburg/Weser


Germany


Attention
of: Jürgen Wnuck, Managing Director


Telecopier
No.:  +49 5021 988-380





With a
copy to (for informational purposes only):





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.:  314-674-2721









Jefferies Finance LLC


520
Madison Avenue


New York,
New York 10022


Attention:  Account
Officer – Flexsys Verkauf GmbH


Telecopy
No.:  (212) 284-3444








(iii)           if
to 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 9.17to 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 pursuant to Article IIor Article VIII) shall
not be effective until received by the Administrative Agent.




(c)  Notwithstanding
Sections 9.01(a) and 9.01(b) (unless the Administrative Agent 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 by
properly transmitting such Approved Electronic Communications in an
electronic/soft medium in a format reasonably acceptable to the Administrative
Agent to jhess@jefferies.com or such other electronic mail address (or similar
means of electronic delivery) as the Administrative Agent 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 or the Holdings Guarantor in any manner
authorized in this Agreement or to request that the Borrower effect delivery in
such manner.




SECTION
9.02.  Survival of
Agreement .  All
covenants, agreements, representations and warranties made by the Loan Parties
and the Holdings Guarantor 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,
9.05, 9.16 and 9.21 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, the Holdings Guarantor, the Arranger, the
Bookrunner 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 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.




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 Administrative Agent 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 Administrative Agent 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 any 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 (i)
except in the case of an assignment to a Lender or a Lender Affiliate or in
connection with the initial syndication of the Commitments and Loans, the
Borrower and the Administrative Agent must give their prior written consent to
such assignment (which consents shall not be unreasonably withheld or delayed),
(ii) 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
Commitments and 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 $1.0 million and increments of $1.0
million in excess thereof (or (A) 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 (B) in any other case, such lesser amount as the
Borrower and the Administrative Agent otherwise agree), (iii) except in the
case of the assignment to an Affiliate of such Lender or an assignment required
to be made pursuant to Section 2.18, 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 (provided
that only one such fee shall be payable in the event of contemporaneous
assignments to two or more Lender Affiliates by a Lender or by two or more
Lender Affiliates to a Lender and such fee shall not be payable by the Borrower)
and (iv) 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), (A) 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 (B) the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all 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 2.12,
2.13, 2.14, 2.15 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, any Subsidiary or the Holdings Guarantor or the performance or
observance by any of the Borrower, any Subsidiary or the Holdings Guarantor 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 the
Administrative 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 the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative 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 owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”).  With
respect to any Lender, the transfer of the Commitments of such Lender and the
rights to the principal of, and interest on, any Loan made pursuant to such
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans.  Except to the extent inconsistent with
Section 2.05(d), the entries in the Register shall be conclusive and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be available for inspection by the
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 and the Administrative Agent to
such assignment, the Administrative Agent shall (i) accept such 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 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 2.12, 2.13, 2.14 and 2.15 and the provisions of Section 5.01
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 Loan
Parties, the Holdings Guarantor, the Administrative Agent and the Lenders 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(c) 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 2.17 as though it
were a Lender.




(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)  Neither
the Borrower nor the Holdings Guarantor shall assign or delegate any of its
rights or duties hereunder without the prior written consent of the
Administrative Agent and each Lender, and any attempted assignment without such
consent shall be null and void.




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, each of the Arranger, the
Bookrunner and their respective Affiliates, including the reasonable fees,
charges and disbursements of White & Case LLP, counsel for the
Administrative Agent, the Arranger and the Bookrunner (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 hereby contemplated shall be
consummated), and (ii) all reasonable and documented out-of-pocket expenses
incurred by any of the Arranger, the Bookrunner, the Administrative 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 or any of the
Arranger, the Bookrunner 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 Arranger, the Bookrunner 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 Arranger, the
Bookrunner, 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 losses, claims, damages,
liabilities and out-of-pocket expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the
execution, 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 thereby, the performance by the parties hereto or
thereto of their respective obligations thereunder, the Transactions or the
other transactions contemplated 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, any of the Subsidiaries or the Holdings Guarantor, or
any Environmental Liability or Environmental Claim related in any way to the
Borrower, the Subsidiaries or the Holdings Guarantor; 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, any Subsidiary or the Holdings Guarantor
(and provided
that withstanding the foregoing provisions of this clause (B), the
Administrative Agent, 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 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
the Administrative Agent, or either of the Arranger or the Bookrunner under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent, the Arranger or the Bookrunner, as the case may be,
such 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, the Arranger and the Bookrunner in its capacity as such.  For
purposes hereof, a Lender’s “pro rata share” shall
be determined based upon its share of the sum of the total outstanding Loans and
unused Commitments 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 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 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, 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 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 and its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender or its 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 or the Holdings Guarantor
upon any amount becoming due and payable by any Loan Party or the Holdings
Guarantor hereunder or under any other Loan Document (whether at stated
maturity, by acceleration or otherwise) against any amount held by such Lender
or its Affiliates, irrespective of whether or not such Lender or its 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 or its Affiliates may at any time use any Loan
Party’s or the Holdings Guarantor’s credit balances with the Lender or its
Affiliates to purchase at the Lender’s or its Affiliates’ applicable spot rate
of exchange any other currency or currencies which the Lender or its Affiliates
considers necessary to reduce or discharge any amount due by such Loan Party or
the Holdings Guarantor to the Lender or its Affiliates, and may apply that
currency or those currencies in or towards payment of those
amounts.  The rights of each Lender or its Affiliates under this
Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender or its Affiliates may have.  Each
Lender or its 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 the Administrative Agent or any Lender 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 Administrative Agent
and the Lenders 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 any Loan Party or the Holdings Guarantor
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 the Administrative Agent, any Lender may have had notice
or knowledge of such Default or Event of Default at the time.  No
notice or demand on any Loan Party or the Holdings Guarantor in any case shall
entitle such Loan Party or the Holdings Guarantor 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) and 9.08(g), no amendment, modification,
termination or waiver of any provision of any Loan Document, or consent to any
departure by any Loan Party or the Holdings Guarantor 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)  Without
the written consent of each Lender that would be directly adversely affected
thereby (whose consent shall be sufficient therefor without the consent of the
Requisite Lenders), 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;




(ii)  reduce or
forgive the rate of interest on any Loan (other than any waiver of any increase
in the interest rate applicable to any Loan pursuant to Section
2.06(c));




(iii)  extend
the time for payment of any such interest;




(iv)  reduce or
forgive the principal amount of any Loan or waive, reduce or postpone any
scheduled repayment pursuant to Section 2.04(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 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 any Guarantor from any
Guarantee Agreement;





(vii)  consent
to the assignment or transfer by any Loan Party or the Holdings Guarantor of any
of its rights and obligations under any Loan Document; or




(viii)  amend the
indemnification obligations of the Lenders set forth in Section 9.05(c) or amend
Sections 2.02(c), 2.11(a) or 2.17 (only to the extent relating to pro rata
treatment of Lenders).




(d)  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
or the Holdings Guarantor therefrom, shall:




(i)  increase
any Commitment of any Lender over the amount thereof then in effect without the
consent of such Lender; provided no
amendment, modification, termination, waiver or consent with respect to any
condition precedent, covenant, Default or Event of Default shall constitute an
increase in any Commitment of any Lender;




(ii)  amend,
modify, terminate or waive any provision of Article VIII as the same applies to
the Administrative Agent, or any other provision hereof as the same applies to
the rights or obligations of, or fees payable to, the Administrative Agent, in
each case without the consent of the Administrative Agent;




(iii)  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; or




(iv)  increase
the maximum duration of Interest Periods hereunder without the consent of all
Lenders.




(e)  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 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.




(f)  Notwithstanding
anything to the contrary contained in this Section 9.08, the Guarantee
Agreements and any related documents executed 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 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 Agreements
or other document to be consistent with this Agreement and the other Loan
Documents.




(g)  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.




(h)  Further,
notwithstanding anything to the contrary contained in 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.




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 Administrative Agent, the Arranger and Bookrunner 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 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 nonexclusive 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 may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal
court.  Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Agreement shall affect any right that the
Administrative 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 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 of
the Loan Parties and the Holdings Guarantor hereby appoints CT Corporation
System (the “Process
Agent”) with an office on the Effective Date of 111 Eighth Avenue, New
York, New York 10011, as its agent to receive on behalf of it service of copies
of the summons and complaint and any other process which may be served in any
such action or proceeding.  Such service may be made by mailing by
certified mail a copy of such process to such Loan Party or the Holdings
Guarantor in care of the Process Agent at the Process Agent’s above address,
with a copy to such Loan Party or the Holdings Guarantor at its address
specified herein and each such Loan Party and the Holdings Guarantor hereby
authorize and direct the Process Agent to receive such service on their
behalf.  As an alternative method of service, each of the Loan Parties
and the Holdings Guarantor also irrevocably consents to the service of any and
all process in any such action or proceeding by the mailing by certified mail of
copies of such process to it and its subsidiaries specified
herein.  Each of the Loan Parties and the Holdings Guarantor 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 manner
provided by law.




(d)  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 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 or such Lender, 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 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 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
Arranger and Bookrunner, the Administrative 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, any Lender or any of their respective Affiliates on a nonconfidential
basis from a source other than any Loan Party or the Holdings Guarantor not in
violation of any written confidentiality agreement to the knowledge of the
Administrative Agent, Lender or Affiliate.  For purposes of this
Section, “Information” means
all non-public information received from any Loan Party, any of its Subsidiaries
or the Holdings Guarantor relating to any Loan Party, any of its Subsidiaries or
the Holdings Guarantor or any of their respective businesses, other than any
such information that is available to the Administrative Agent or any Lender on
a nonconfidential basis prior to disclosure by any Loan Party, any of its
Subsidiaries or the Holdings Guarantor.  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.







SECTION
9.17.  Posting of Approved
Electronic Communications .  (a)  Each
of the Lenders, each Loan Party and the Holdings Guarantor 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, each Loan Party and the Holdings
Guarantor 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, each Loan Party and the Holdings Guarantor 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 OF ITS AFFILIATES 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 OF ITS AFFILIATES IN
CONNECTION WITH THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM.







(d)  Each of
the Lenders, each Loan Party and the Holdings Guarantor 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, the Holdings Guarantor or their respective securities (“Restricting
Information”).  Other 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 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, the Holdings Guarantor, any 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 and the Holdings Guarantor 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 and the Holdings Guarantor 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, the Holdings Guarantor or their 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 a Loan Party or the Holdings Guarantor
regarding whether a Communication contains or does not contain material
non-public information with respect to any of the Loan Parties, the Holdings
Guarantor or their securities nor shall the Administrative Agent or any of its
Affiliates incur any liability to any Loan Party, the Holdings Guarantor, 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.




(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, the Loan Parties and the Holdings
Guarantor, 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 a
Loan Party’s, the Holdings Guarantor’s or Lender’s adherence to such provisions
will be sufficient to ensure compliance by such Loan Party, the Holdings
Guarantor or such Lender with its contractual obligations or its duties under
applicable law in respect of Restricting Information and each of the Lenders,
each Loan Party and the Holdings Guarantor assumes the risks associated
therewith.




SECTION
9.19.  USA PATRIOT Act
Notice (a)  .  Each
Lender that is subject to the PATRIOT Act and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrower, the other
Loan Parties and the Holdings Guarantor 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,
the other Loan Parties and the Holdings Guarantor, which information includes
the name, address and tax identification number of the Borrower, the other Loan
Parties and the Holdings Guarantor and other information regarding the Borrower,
the other Loan Parties and the Holdings Guarantor that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrower, the other
Loan Parties and the Holdings Guarantor 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 Administrative
Agent.




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SECTION
9.20.  No Fiduciary
Duty .
(a)  .  The
Administrative Agent, the Arranger, the Bookrunner, each Lender and their
respective Affiliates (collectively, the “Lender Parties”), may
have economic interests that conflict with those of the Borrower, its
Subsidiaries and the Holdings Guarantor.  The Borrower and the
Holdings Guarantor agree that nothing in the Loan Documents or otherwise will be
deemed to create an advisory, fiduciary or agency relationship or fiduciary or
other implied duty between any of the Lender Parties and the Borrower, its
Subsidiaries, its stockholders or its other affiliates.  The Borrower
and the Holdings Guarantor acknowledge and agree 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, its applicable
Subsidiaries and the Holdings Guarantor, 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, any of its Subsidiaries or the Holdings Guarantor, 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,
any of its Subsidiaries or the Holdings Guarantor 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, any of its Subsidiaries or the Holdings Guarantor on
other matters) or any other obligation to the Borrower, any of its Subsidiaries
or the Holdings Guarantor except the obligations expressly set forth in the Loan
Documents and (iv) each of the Borrower, its Subsidiaries and the Holdings
Guarantor have consulted their own legal and financial advisors to the extent
they have deemed appropriate.  Each of the Borrower and the Holdings
Guarantor further acknowledges and agrees that it and each of the Borrower’s
Subsidiaries is responsible for making its own independent judgment with respect
to such transactions and the process leading thereto.  Each of the
Borrower and the Holdings Guarantor agrees that it will not, and the Borrower
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, any of its Subsidiaries or the Holdings Guarantor,
in connection with such transactions or the process leading
thereto.




SECTION
9.21.  Judgment
Currency .  (a)  The
Loan Parties’ and the Holdings Guarantors’ obligations hereunder and under the
other Loan Documents to make payments in Dollars shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than Dollars, except to the extent that such
tender or recovery results in the effective receipt by the Administrative Agent
or the respective Lender of the full amount of Dollars expressed to be payable
to the Administrative Agent or such Lender under this Agreement or the other
Loan Documents.  If, for the purpose of obtaining or enforcing
judgment against any Loan Party or the Holdings Guarantor in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than Dollars (such other currency being hereinafter referred to as the “Judgment Currency”)
an amount due in Dollars, the conversion shall be made at the Dollar Equivalent
determined as of the Business Day immediately preceding the day on which the
judgment is given (such Business Day being hereinafter referred to as the “Judgment Currency Conversion
Date”).




(b)  If there
is a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, the Loan
Parties and the Holdings Guarantor shall pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of Dollars which could have been purchased with the amount of
Judgment Currency stipulated in the judgment or judicial award at the rate of
exchange prevailing on the Judgment Currency Conversion Date.




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(c)  For
purposes of determining the Dollar Equivalent or any other rate of exchange for
this Section 9.21,
such amounts shall include any premium and costs payable in connection with the
purchase of Dollars.




[Signature
Pages Follow]




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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.
  
   FLEXSYS VERKAUF GMBH, as
Borrower
 
 By: 
      /s/ Jürgen
      Wnack
 Name: 
Jürgen
Wnack
 Title: 
Geschaftsfuhrer
 
 
 FLEXSYS VERWALTUNGS- UND
BETEILIGUNGSGESELLSCHAFT MBH, as Holdings
Guarantor
 
 
 By: 
      /s/ Jürgen
      Wnack
 Name: 
Jürgen
Wnack
 Title: 
Geschaftsfuhrer
 
  
 JEFFERIES FINANCE LLC,as Administrative Agent,
Arranger and Bookrunner
 
  By: 
      /s/ E. J.
    Hess
 Name: 
E. J. Hess
 Title: 
Managing Director

















JEFFERIES
FINANCE LLC, as Lender




By: /s/ E. H.
  Hess
 Name: 
E. J. Hess
 Title: 
Managing Director