Exhibit
10.1


 


EXECUTION VERSION


 




 





 


 


CREDIT AGREEMENT


 


 


among


 


 


CF INDUSTRIES HOLDINGS, INC.,


 


CF INDUSTRIES, INC.,


 


VARIOUS LENDERS,


 


and


 


MORGAN STANLEY SENIOR FUNDING, INC.,


as ADMINISTRATIVE AGENT and COLLATERAL AGENT


 


 






 


Dated as of April 5, 2010


 






 


 


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

as JOINT LEAD ARRANGERS and BOOK RUNNERS


 


 


MORGAN STANLEY MUFG LOAN PARTNERS, LLC,

as GLOBAL COORDINATOR


 


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  Definitions and
  Accounting Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.01.

  	
  Defined Terms

  	
   

  	
  1

  
	
  1.02.

  	
  Other
  Definitional Provisions

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Amount and Terms
  of Credit

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  2.01.

  	
  The Commitments

  	
   

  	
  44

  
	
  2.02.

  	
  Minimum Amount
  of Each Borrowing

  	
   

  	
  47

  
	
  2.03.

  	
  Notice of
  Borrowing

  	
   

  	
  47

  
	
  2.04.

  	
  Disbursement of
  Funds

  	
   

  	
  48

  
	
  2.05.

  	
  Notes

  	
   

  	
  49

  
	
  2.06.

  	
  Conversions

  	
   

  	
  50

  
	
  2.07.

  	
  Pro Rata
  Borrowings

  	
   

  	
  51

  
	
  2.08.

  	
  Interest

  	
   

  	
  51

  
	
  2.09.

  	
  Interest Periods

  	
   

  	
  52

  
	
  2.10.

  	
  Increased Costs,
  Illegality, etc.

  	
   

  	
  53

  
	
  2.11.

  	
  Compensation

  	
   

  	
  55

  
	
  2.12.

  	
  Change of
  Lending Office

  	
   

  	
  55

  
	
  2.13.

  	
  Replacement of
  Lenders

  	
   

  	
  55

  
	
  2.14.

  	
  Reverse Dutch
  Auction Repurchases

  	
   

  	
  57

  
	
  2.15.

  	
  Open Market
  Purchases

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  Letters of
  Credit

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  3.01.

  	
  Letters of
  Credit

  	
   

  	
  60

  
	
  3.02.

  	
  Maximum Letter
  of Credit Outstandings; Final Maturities

  	
   

  	
  61

  
	
  3.03.

  	
  Letter of Credit
  Requests; Minimum Stated Amount

  	
   

  	
  62

  
	
  3.04.

  	
  Letter of Credit
  Participations

  	
   

  	
  62

  
	
  3.05.

  	
  Agreement to
  Repay Letter of Credit Drawings

  	
   

  	
  64

  
	
  3.06.

  	
  Increased Costs

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Commitment
  Commission; Fees; Reductions and Increases of Commitments

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  4.01.

  	
  Fees

  	
   

  	
  66

  
	
  4.02.

  	
  Voluntary
  Termination of Unutilized Revolving Loan Commitments

  	
   

  	
  68

  
	
  4.03.

  	
  Mandatory
  Reduction or Conversion of Commitments

  	
   

  	
  69

  
	
  4.04.

  	
  Increases to
  Total Revolving Loan Commitment

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Prepayments;
  Payments; Taxes

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  5.01.

  	
  Voluntary
  Prepayments

  	
   

  	
  71

  
	
  5.02.

  	
  Mandatory
  Repayments

  	
   

  	
  72

  
	
  5.03.

  	
  Method and Place
  of Payment

  	
   

  	
  75

  
	
  5.04.

  	
  Net Payments

  	
   

  	
  75

  



 


i

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  Conditions
  Precedent to Credit Events on the Initial Borrowing Date

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  6.01.

  	
  Effective Date;
  Notices; Notes

  	
   

  	
  78

  
	
  6.02.

  	
  Representations
  and Warranties

  	
   

  	
  79

  
	
  6.03.

  	
  Officer’s
  Certificate

  	
   

  	
  79

  
	
  6.04.

  	
  Opinions of
  Counsel

  	
   

  	
  79

  
	
  6.05.

  	
  Company
  Documents; Proceedings; etc.

  	
   

  	
  80

  
	
  6.06.

  	
  Consummation of
  the Borrower Refinancing

  	
   

  	
  80

  
	
  6.07.

  	
  Exchange Offer
  Funding Date Material Adverse Change

  	
   

  	
  81

  
	
  6.08.

  	
  Patriot Act

  	
   

  	
  81

  
	
  6.09.

  	
  Blocked Amounts

  	
   

  	
  81

  
	
  6.10.

  	
  Guaranty and
  Collateral Agreement

  	
   

  	
  81

  
	
  6.11.

  	
  Regulation U

  	
   

  	
  82

  
	
  6.12.

  	
  Solvency
  Certificate

  	
   

  	
  83

  
	
  6.13.

  	
  Fees, etc.

  	
   

  	
  83

  
	
  6.14.

  	
  Consummation of
  the Exchange Offer; Etc.

  	
   

  	
  83

  
	
  6.15.

  	
  Merger Agreement

  	
   

  	
  83

  
	
  6.16.

  	
  Bridge
  Facility/Permitted Notes

  	
   

  	
  84

  
	
  6.17.

  	
  Intercreditor
  Agreement

  	
   

  	
  84

  
	
  6.18.

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

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

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

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
  7.01.

  	
  Initial
  Borrowing

  	
   

  	
  86

  
	
  7.02.

  	
  Notice of
  Borrowing; Letter of Credit Request

  	
   

  	
  86

  
	
  7.03.

  	
  Consummation of
  the Exchange Offer

  	
   

  	
  86

  
	
  7.04.

  	
  Merger Agreement

  	
   

  	
  86

  
	
  7.05.

  	
  Officer’s
  Certificate

  	
   

  	
  87

  
	
  7.06.

  	
  Margin
  Regulations

  	
   

  	
  87

  
	
  7.07.

  	
  Blocked Amounts

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  Conditions
  Precedent to Credit Events After the Merger Closing Date

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  
	
  8.01.

  	
  Consummation of
  the Merger

  	
   

  	
  88

  
	
  8.02.

  	
  Notice of
  Borrowing; Letter of Credit Request

  	
   

  	
  88

  
	
  8.03.

  	
  Representations
  and Warranties

  	
   

  	
  88

  
	
  8.04.

  	
  No Default

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  Representations,
  Warranties and Agreements

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  
	
  9.01.

  	
  Organization;
  Powers

  	
   

  	
  90

  
	
  9.02.

  	
  Authorization;
  Enforceability

  	
   

  	
  90

  
	
  9.03.

  	
  Governmental
  Approvals; No Conflicts

  	
   

  	
  90

  
	
  9.04.

  	
  Financial
  Condition; No Material Adverse Change

  	
   

  	
  90

  
	
  9.05.

  	
  Properties

  	
   

  	
  91

  
	
  9.06.

  	
  Litigation and
  Environmental Matters

  	
   

  	
  92

  
	
  9.07.

  	
  Compliance with
  Laws and Agreements

  	
   

  	
  92

  
	
  9.08.

  	
  Investment
  Company Status

  	
   

  	
  92

  



 


ii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  9.09.

  	
  Taxes

  	
   

  	
  92

  
	
  9.10.

  	
  ERISA

  	
   

  	
  92

  
	
  9.11.

  	
  Disclosure

  	
   

  	
  92

  
	
  9.12.

  	
  Material
  Agreements

  	
   

  	
  93

  
	
  9.13.

  	
  Solvency

  	
   

  	
  93

  
	
  9.14.

  	
  Reportable
  Transaction

  	
   

  	
  93

  
	
  9.15.

  	
  Capitalization
  and Subsidiaries

  	
   

  	
  93

  
	
  9.16.

  	
  Common
  Enterprise

  	
   

  	
  93

  
	
  9.17.

  	
  Labor Disputes

  	
   

  	
  94

  
	
  9.18.

  	
  Use of Proceeds
  and Letters of Credit

  	
   

  	
  94

  
	
  9.19.

  	
  Margin
  Regulations

  	
   

  	
  94

  
	
  9.20.

  	
  Security
  Documents

  	
   

  	
  94

  
	
  9.21.

  	
  Intellectual
  Property, etc.

  	
   

  	
  95

  
	
  9.22.

  	
  Representations
  and Warranties in Merger Agreement

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  Affirmative
  Covenants

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  
	
  10.01.

  	
  Financial
  Statements and Other Information

  	
   

  	
  96

  
	
  10.02.

  	
  Notices of
  Material Events

  	
   

  	
  99

  
	
  10.03.

  	
  Existence;
  Conduct of Business

  	
   

  	
  100

  
	
  10.04.

  	
  Payment of
  Obligations

  	
   

  	
  100

  
	
  10.05.

  	
  Maintenance of
  Properties and Intellectual Property Rights

  	
   

  	
  100

  
	
  10.06.

  	
  Books and
  Records; Inspection Rights; Annual Lender Meetings

  	
   

  	
  100

  
	
  10.07.

  	
  Compliance with
  Laws

  	
   

  	
  101

  
	
  10.08.

  	
  Use of Proceeds
  and Letters of Credit

  	
   

  	
  101

  
	
  10.09.

  	
  Insurance

  	
   

  	
  102

  
	
  10.10.

  	
  Additional
  Collateral; Further Assurances; Etc.

  	
   

  	
  102

  
	
  10.11.

  	
  [Intentionally
  Omitted.]

  	
   

  	
  106

  
	
  10.12.

  	
  Ratings

  	
   

  	
  106

  
	
  10.13.

  	
  Merger; Target
  Refinancing

  	
   

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  Negative
  Covenants

  	
   

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  11.01.

  	
  Indebtedness

  	
   

  	
  106

  
	
  11.02.

  	
  Liens

  	
   

  	
  112

  
	
  11.03.

  	
  Fundamental
  Changes

  	
   

  	
  116

  
	
  11.04.

  	
  Investments,
  Loans, Advances, Guarantees and Acquisitions

  	
   

  	
  118

  
	
  11.05.

  	
  Interest Rate
  Protection Agreements or Other Hedging Agreements

  	
   

  	
  122

  
	
  11.06.

  	
  Restricted
  Payments

  	
   

  	
  122

  
	
  11.07.

  	
  Transactions
  with Affiliates

  	
   

  	
  124

  
	
  11.08.

  	
  Restrictive
  Agreements

  	
   

  	
  125

  
	
  11.09.

  	
  Prepayments,
  Commitment Reductions and Amendments of Specified Indebtedness

  	
   

  	
  126

  
	
  11.10.

  	
  Capital
  Expenditures

  	
   

  	
  127

  
	
  11.11.

  	
  Interest
  Coverage Ratio

  	
   

  	
  128

  
	
  11.12.

  	
  Total Leverage
  Ratio

  	
   

  	
  129

  
	
  11.13.

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

  	
   

  	
  129

  



 


iii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  11.14.

  	
  Holdings

  	
   

  	
  130

  
	
  11.15.

  	
  Limitation on
  Issuance of Equity Interests

  	
   

  	
  130

  
	
  11.16.

  	
  Accounting
  Changes; Fiscal Year

  	
   

  	
  130

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  Events of
  Default

  	
   

  	
  131

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  The
  Administrative Agent; Lead Arrangers; Etc.

  	
   

  	
  134

  
	
   

  	
   

  	
   

  	
   

  
	
  13.01.

  	
  Appointment

  	
   

  	
  134

  
	
  13.02.

  	
  Nature of Duties

  	
   

  	
  134

  
	
  13.03.

  	
  Lack of Reliance
  on the Administrative Agent

  	
   

  	
  135

  
	
  13.04.

  	
  Certain Rights
  of the Administrative Agent

  	
   

  	
  135

  
	
  13.05.

  	
  Reliance

  	
   

  	
  135

  
	
  13.06.

  	
  Indemnification

  	
   

  	
  135

  
	
  13.07.

  	
  The
  Administrative Agent in its Individual Capacity

  	
   

  	
  136

  
	
  13.08.

  	
  Holders

  	
   

  	
  136

  
	
  13.09.

  	
  Resignation by
  the Administrative Agent

  	
   

  	
  136

  
	
  13.10.

  	
  Collateral
  Matters

  	
   

  	
  137

  
	
  13.11.

  	
  Delivery of
  Information

  	
   

  	
  138

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
  Miscellaneous

  	
   

  	
  138

  
	
   

  	
   

  	
   

  	
   

  
	
  14.01.

  	
  Payment of
  Expenses, etc.

  	
   

  	
  138

  
	
  14.02.

  	
  Right of Setoff

  	
   

  	
  140

  
	
  14.03.

  	
  Notices

  	
   

  	
  140

  
	
  14.04.

  	
  Benefit of
  Agreement; Assignments; Participations

  	
   

  	
  141

  
	
  14.05.

  	
  No Waiver;
  Remedies Cumulative

  	
   

  	
  143

  
	
  14.06.

  	
  Payments Pro
  Rata

  	
   

  	
  144

  
	
  14.07.

  	
  Calculations;
  Computations

  	
   

  	
  145

  
	
  14.08.

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

  	
   

  	
  146

  
	
  14.09.

  	
  Counterparts

  	
   

  	
  146

  
	
  14.10.

  	
  Effectiveness

  	
   

  	
  147

  
	
  14.11.

  	
  Headings
  Descriptive

  	
   

  	
  147

  
	
  14.12.

  	
  Amendment or
  Waiver; etc.

  	
   

  	
  150

  
	
  14.13.

  	
  Survival

  	
   

  	
  150

  
	
  14.14.

  	
  Domicile of
  Loans

  	
   

  	
  150

  
	
  14.15.

  	
  Register

  	
   

  	
  151

  
	
  14.16.

  	
  Confidentiality

  	
   

  	
  152

  
	
  14.17.

  	
  Patriot Act

  	
   

  	
  152

  
	
  14.18.

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

  	
   

  	
  152

  
	
  14.19.

  	
  Interest Rate
  Limitation

  	
   

  	
  152

  
	
  14.20.

  	
  Regulation U

  	
   

  	
  153

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 15.

  	
  Holdings
  Guaranty

  	
   

  	
  153

  
	
   

  	
   

  	
   

  	
   

  
	
  15.01.

  	
  Guaranty

  	
   

  	
  153

  
	
  15.02.

  	
  Bankruptcy

  	
   

  	
  154

  



 


iv

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  15.03.

  	
  Nature of
  Liability

  	
   

  	
  154

  
	
  15.04.

  	
  Independent
  Obligation

  	
   

  	
  154

  
	
  15.05.

  	
  Authorization

  	
   

  	
  155

  
	
  15.06.

  	
  Reliance

  	
   

  	
  156

  
	
  15.07.

  	
  Subordination

  	
   

  	
  156

  
	
  15.08.

  	
  Waiver

  	
   

  	
  156

  
	
  15.09.

  	
  Payments

  	
   

  	
  158

  



 


v

















 


	
  SCHEDULE 1.01A

  	
   

  	
  Commitments

  
	
  SCHEDULE 1.01B

  	
   

  	
  Transaction
  Summary

  
	
  SCHEDULE 1.01C

  	
   

  	
  Affiliated
  Cooperatives

  
	
  SCHEDULE 1.01D

  	
   

  	
  Agreed Upon
  EBITDA Add-backs for Terra Acquisition

  
	
  SCHEDULE 1.01E

  	
   

  	
  Inactive
  Subsidiaries

  
	
  SCHEDULE 2.14

  	
   

  	
  Reverse Dutch
  Auction Procedures

  
	
  SCHEDULE 6.18

  	
   

  	
  Mortgages and
  Leaseholds

  
	
  SCHEDULE 9.05(a)

  	
   

  	
  Real Property of
  Credit Parties (excluding Target and Subsidiaries)

  
	
  SCHEDULE 9.05(b)

  	
   

  	
  Real Property of
  Target and Subsidiaries expected to Become Credit Parties

  
	
  SCHEDULE 9.12

  	
   

  	
  Material
  Agreements

  
	
  SCHEDULE 9.15

  	
   

  	
  Capitalization
  and Subsidiaries

  
	
  SCHEDULE 9.17

  	
   

  	
  Labor Disputes

  
	
  SCHEDULE 11.01

  	
   

  	
  Existing
  Indebtedness

  
	
  SCHEDULE
  11.02(v)

  	
   

  	
  Existing Liens

  
	
  SCHEDULE 11.04

  	
   

  	
  Existing
  Investments

  
	
  SCHEDULE 11.07

  	
   

  	
  Affiliate
  Transactions

  
	
  SCHEDULE 11.08

  	
   

  	
  Existing
  Restrictions

  
	
  SCHEDULE 14.03

  	
   

  	
  Lender Addresses

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A-1

  	
   

  	
  Form of
  Notice of Borrowing

  
	
  EXHIBIT A-2

  	
   

  	
  Form of
  Notice of Conversion/Continuation

  
	
  EXHIBIT B-1

  	
   

  	
  Form of B-1
  Term Note

  
	
  EXHIBIT B-2

  	
   

  	
  Form of B-2
  Term Note

  
	
  EXHIBIT B-3

  	
   

  	
  Form of
  Revolving Note

  
	
  EXHIBIT B-4

  	
   

  	
  Form of
  Swingline Note

  
	
  EXHIBIT C

  	
   

  	
  Form of
  Letter of Credit Request

  
	
  EXHIBIT D

  	
   

  	
  Form of
  Section 5.04(b)(ii) Certificate

  
	
  EXHIBIT E

  	
   

  	
  Form of
  Opinion of Skadden, Arps, Slate, Meagher & Flom, counsel to the
  Credit Parties

  
	
  EXHIBIT F-1

  	
   

  	
  Form of
  Officers’ Certificate

  
	
  EXHIBIT F-2

  	
   

  	
  Form of
  Joint Secretary’s Certificate

  
	
  EXHIBIT G

  	
   

  	
  Form of
  Guaranty and Collateral Agreement

  
	
  EXHIBIT H

  	
   

  	
  Form of
  Solvency Certificate

  
	
  EXHIBIT I

  	
   

  	
  Form of
  Intercreditor Agreement

  
	
  EXHIBIT J

  	
   

  	
  Form of
  Compliance Certificate

  
	
  EXHIBIT K

  	
   

  	
  Form of
  Assignment and Assumption Agreement

  
	
  EXHIBIT L

  	
   

  	
  Form of Mortgages

  
	
  EXHIBIT
  M

  	
   

  	
  Form of
  Joinder Agreement

  



 


vi

















 


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


 


W  I  T  N  E  S
S  E  T  H:


 


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


 


NOW, THEREFORE, IT IS
AGREED:


 


SECTION 1.                                Definitions and Accounting Terms.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


With respect to Revolving
Loans and Swingline Loans only, from and after each day of delivery of any
certificate delivered in accordance with the first sentence of the following
paragraph indicating an entitlement to different margins for Revolving Loans
and Swingline Loans than that described in the immediately preceding sentence
(each, a “Start Date”) to and including the applicable End Date
described below, the Applicable Margins for Revolving Loans and Swingline Loans
(hereinafter, the “Adjustable Applicable Margins”) shall be those set
forth below opposite the Total Leverage Ratio indicated to have been achieved
in any certificate delivered in accordance with the following sentence:


 


	
  Total Leverage Ratio

  	
   

  	
  Revolving/Swingline

  Loans Maintained as

  Base Rate Loans

  	
   

  	
  Revolving

  Loans Maintained as

  Eurodollar Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than 1.75 to 1.0

  	
   

  	
  Revolver Initial Applicable Margins

  	
   

  	
  Revolver Initial Applicable Margins

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal to or less than 1.75 to 1.0 but greater than
  1.50 to 1.0

  	
   

  	
  1.75%

  	
   

  	
  2.75%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  1.50%

  	
   

  	
  2.50%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal to or less than 1.00 to 1.0

  	
   

  	
  1.25%

  	
   

  	
  2.25%

  	
   

  



 


The Total Leverage Ratio
used in a determination of Adjustable Applicable Margins shall be determined
based on the delivery of a certificate of the Borrower (each, a “Quarterly
Pricing Certificate”) by a Financial Officer of the Borrower to the
Administrative Agent, within 45 days (or 90 days in the case of the last Fiscal
Quarter in any Fiscal Year) after the last day of any Fiscal Quarter of
Holdings, which certificate shall set forth the calculation of the Total
Leverage Ratio as at the last day of the Test Period ended immediately prior to
the relevant Start Date and the Adjustable Applicable Margins which shall be
thereafter applicable 


 


3

















 


(until same are
changed or cease to apply in accordance with the following sentences).  The Adjustable Applicable Margins so
determined shall apply, except as set forth in the succeeding sentence, from
the relevant Start Date to the earlier of (x) the date on which the next
Quarterly Pricing Certificate is delivered to the Administrative Agent or (y) the
date which is 45 days (or 90 days in the case of the last Fiscal Quarter in any
Fiscal Year) following the last day of the Test Period in which the previous
Start Date occurred (such earlier date, the “End Date”), at which time,
if no Quarterly Pricing Certificate has been delivered to the Administrative
Agent indicating an entitlement to new Adjustable Applicable Margins (and thus
commencing a new Start Date), the Adjustable Applicable Margins shall be the
Revolver Initial Applicable Margins. Notwithstanding anything to the contrary
contained above in this definition, the Adjustable Applicable Margins shall be
the Revolver Initial Applicable Margins (x) at all times during which
there shall exist any Default or any Event of Default and (y) at all times
prior to the date of delivery of the financial statements pursuant to Section 10.01(b) for
the fiscal quarter of Holdings ended June 30, 2010.


 


Notwithstanding anything
to the contrary contained above in this definition or elsewhere in this
Agreement, if it is subsequently determined that the Total Leverage Ratio set
forth in any Quarterly Pricing Certificate delivered for any period is
inaccurate for any reason and the result thereof is that the Lenders received
interest or fees for any period based on an Applicable Margin that is less than
that which would have been applicable had the Total Leverage Ratio been
accurately determined, then, for all purposes of this Agreement, the “Applicable
Margin” for any day occurring within the period covered by such Quarterly
Pricing Certificate shall retroactively be deemed to be the relevant percentage
as based upon the accurately determined Total Leverage Ratio for such period,
and any shortfall in the interest or fees theretofore paid by the Borrower for
the relevant period pursuant to Sections 2.08(a) and (b) and 4.01(b) as
a result of the miscalculation of the Total Leverage Ratio shall be deemed to
be (and shall be) due and payable under the relevant provisions of Section 2.08(a) or
(b) or Section 4.01(b), as applicable, at the time the interest or
fees for such period were required to be paid pursuant to said Section on
the same basis as if the Total Leverage Ratio had been accurately set forth in
such Quarterly Pricing Certificate (and shall remain due and payable until paid
in full, together with all amounts owing under Section 2.08(d), in
accordance with the terms of this Agreement).


 


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


 


“Asset
Sale” shall mean any sale, transfer or other disposition by Holdings or any
of its Subsidiaries to any Person (including by way of redemption by such
Person) other than to Holdings or a Wholly-Owned Subsidiary of Holdings of any
asset (including, without limitation, any capital stock or other securities of,
or Equity Interests in, another Person), but excluding (x) sales of assets
pursuant to Section 11.03 (other than clauses (i), (ii), (iii)(1) and
(2), (iv), (v), (vii)(A), (viii), (ix), (xi), (xiv) and (xv) thereof) and (y) any
other sale, transfer or disposition (for such purpose, treating any series of
related sales, transfers or dispositions as a single such transaction) that
generates Net Sale Proceeds of less than $10,000,000.


 


“Assignment
and Assumption Agreement” shall mean an Assignment and Assumption Agreement
substantially in the form of Exhibit K (appropriately completed) or
in such other form as may be satisfactory to the Administrative Agent.


 


4

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“B-1 Term Loan
Commitment” shall mean, for each Lender, the amount set forth opposite such
Lender’s name in Schedule 1.01A directly below the column entitled “B-1
Term Loan Commitment,” as the same may be (x) reduced or terminated from
time to time pursuant to Sections 4.02, 4.03 and/or 12, as applicable, (y) adjusted
from time to time as a result of assignments to or from, and purchases from,
such Lender pursuant to Sections 2.13, 2.14, 2.15 or 14.04(b) or (z) increased
on the B-1 Conversion Date as a result of conversions of B-2 Term Loan
Commitments of such Lender as provided in Section 4.03(h).


 


5

















 


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


 


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


 


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


 


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


 


“B-2 Term Loan
Commitment” shall mean, for each Lender, the amount set forth opposite such
Lender’s name in Schedule 1.01A directly below the column entitled “B-2
Term Loan Commitment,” as the same may be (x) reduced or terminated from
time to time pursuant to Sections 4.02, 4.03 and/or 12, as applicable, or (y) adjusted
from time to time as a result of assignments to or from, and purchases from,
such Lender pursuant to Section 2.13, 2.14, 2.15 or 14.04(b).


 


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


 


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


 


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


 


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


 


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


 


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


 


6

















 


the Merger
Agreement at such time (the “Acquisition Blocked Amount”) and (y) the
Target Notes Blocked Amount.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


7
















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


“change of control”
(as such term or any words of similar import are defined under any Material
Indebtedness) shall occur.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Consolidated
EBITDA” shall mean, with reference to any period, Consolidated Net Income
for such period plus, without duplication and to the extent deducted from
revenues in determining such Consolidated Net Income, the sum of (a) the
aggregate amount of Consolidated 


 


9

















 


Interest Expense for such
period, (b) the aggregate amount of expense for taxes paid or accrued for
such period (including payments to Affiliated Cooperatives under the NOL
Agreement), (c) all amounts attributable to depreciation and depletion for
such period, (d) all amortization and other non-cash charges and (e) all
customary up-front fees and expenses incurred in connection with any
Acquisition, any Asset Sale, any issuance of Equity Interests by Holdings or
any issuance or incurrence of Indebtedness by Holdings or its Subsidiaries and
the amortization of any deferred financing charges, in each case for such
period, minus the sum of (i) all non-cash gains included in Consolidated
Net Income for such period and (ii) all amounts (except as expressly
contemplated by clause (e) above) which constituted non-cash charges in
prior periods (and which were or would have been deducted in determining
Consolidated Net Income in a prior period) and which were actually paid in cash
during the period for which Consolidated EBITDA is being determined, all
calculated for the Holdings and its Subsidiaries on a consolidated basis. To
the extent the net income of any Subsidiary is excluded from Consolidated Net
Income in accordance with the proviso to the definition of Consolidated Net
Income, then add-backs and deductions in determining Consolidated EBITDA, to
the extent relating to such Subsidiary, shall be limited to the same
extent.  Notwithstanding anything to the
contrary contained above, if any Fiscal Quarter shown on Schedule 1.01D
(which includes the Fiscal Quarter ended March 31, 2009 and each Fiscal
Quarter ended thereafter through the Fiscal Quarter ended September 30,
2011) will be included in the respective Test Period for which Consolidated
EBITDA is being determined, then there shall be added to Consolidated EBITDA
for such period the respective amount set forth opposite such Fiscal Quarter in
Schedule 1.01D (which amounts represent restructuring charges and
anticipated future cost savings and synergies related to the Terra Acquisition
which will not yet have been actually realized).


 


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


 


“Consolidated
Interest Expense” shall mean, with reference to any period, accrued
interest expense of Holdings and its Subsidiaries calculated on a consolidated
basis for such period determined in accordance with GAAP excluding amortization
of financing fees.  To the extent any
Test Period includes (i) the Fiscal Quarter ended March 31, 2009, the
Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be
$75.8 million, (ii) the Fiscal Quarter ended June 30, 2009, the
Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be
$75.8 million, (iii) the Fiscal Quarter ended September 30, 2009, the
Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be
$75.8 million, (iv) the Fiscal Quarter ended December 31, 2009, the
Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be
$75.8 million, (v) the Fiscal Quarter ended March 31, 2010, the
Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be
$81.7 million and (vi) the period commencing on April 1, 2010 and
ended on the Merger Closing Date, Consolidated Interest Expense for such
portion of such Fiscal Quarter occurring prior to the Merger Closing Date shall
be deemed to be (x) $82.4 million, multiplied by (y) a fraction the
numerator of which is the number of days in such Test Period occurring on or
after April 1, 2010 and prior to the Merger Closing Date and the
denominator of which is 90; provided that if on or 


 


10

















 


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


 


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


 


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


 


“Control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise, provided that being
an officer or director of a Person shall not, in and of itself, be deemed “Control”
of such Person.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Credit
Documents” shall mean this Agreement, the Guaranty and Collateral
Agreement, the Foreign Pledge Agreements, the Intercreditor Agreement  (at any time while in 


 


11

















 


effect in accordance with
its terms) and, after the execution and delivery thereof pursuant to the terms
of this Agreement, each Note and each other Security Document.


 


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


 


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


 


“Cumulative Retained
Excess Cash Flow Amount” shall mean, at any date, an amount, not less than
zero, determined on a cumulative basis equal to (x) the amount of Excess
Cash Flow for all Excess Cash Payment Periods ending after the Initial
Borrowing Date which is not (and, in the case of any Excess Cash Payment Period
where the respective required date of prepayment has not yet occurred pursuant
to Section 5.02(e), will not on such date of required prepayment be)
required to be applied in accordance with Section 5.02(e) minus (y) the sum of (i) the aggregate amount of Section 11.04(viii) Investments
made on or prior to such date pursuant to sub-clause (x) of Section 11.04(viii)(3) (determined
without regard to any write-downs or write-offs thereof and treating the
maximum amount of any Guarantee as an investment, but reducing the amount of
such investments by any return of capital and principal repayments actually
received in respect of Section 11.04(viii) Investments previously
made pursuant to said sub-clause (x) (and treating any reduction of a
Guarantee provided pursuant to said sub-clause (x) without a corresponding
payment having been made thereunder as a return of principal), (ii) the
aggregate amount of all Restricted Payments made on or prior to such date
pursuant to sub-clause (y) of Section 11.06(xiv)(2) and (iii) the
aggregate amount of all Capital Expenditures made on or prior to such date
pursuant to sub-clause (y) of Section 11.10(f)(2).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


12

















 


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


 


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


 


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


 


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


 


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


 


“Environmental Laws”
means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions or binding agreements issued, promulgated or entered
into by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to health and safety matters.


 


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


 


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


 


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


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with
the Borrower, is treated as a single employer under Section 414(b) or
(c) of the 


 


13

















 


Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.


 


“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA
or the regulations issued thereunder with respect to a Plan (other than an
event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412
of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.


 


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


 


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


 


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


 


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


 


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


 


14

















 


proceeds of asset sales,
sales or issuances of Equity Interests, insurance or Indebtedness, (3) payments
of Loans and/or other Obligations, provided that repayments of Loans
shall be deducted in determining Excess Cash Flow to the extent such repayments
were (x) required as a result of a Scheduled Term Loan Repayment pursuant
to Section 5.02(b) or (y) made as a voluntary prepayment
pursuant to Section 5.01 with internally generated funds (but in the case
of a voluntary prepayment of Revolving Loans or Swingline Loans, only to the
extent accompanied by a voluntary reduction to the Total Revolving Loan
Commitment in an amount equal to such prepayment) and (4) repayments of
Indebtedness incurred or at any time outstanding pursuant to Section 11.01(ii) or
any Permitted Refinancing Indebtedness incurred in respect thereof (or in
respect of previously incurred Permitted Refinancing Indebtedness to the extent
such Indebtedness (or a previous refinancing) constituted a refinancing of
Indebtedness pursuant to said Section 11.01(ii))) and (iii) the
increase, if any, in Adjusted Consolidated Working Capital from the first day
to the last day of such period.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Exchange Offer
Funding Date Material Adverse Effect” shall mean any change, development,
event, occurrence, effect or state of facts that, individually or in the
aggregate with all such other changes, developments, events, occurrences,
effects or states of facts is, or is 


 


15

















 


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


 


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


 


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


 


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


 


16

















 


under Section 10.10
which are required of a Wholly-Owned Domestic Subsidiary which is not an
Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor
Subsidiary (in each case within the time periods specified therein).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


17
















 


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


 


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


 


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


 


“Guarantee” of or
by any Person (the “guarantor”) means any obligation, contingent or otherwise,
of the guarantor guaranteeing any Indebtedness or other obligation of any other
Person (the “primary obligor”) in any manner, whether directly or indirectly,
and including any obligation of the guarantor, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply
funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account
party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided, that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course
of business.  The amount of any Guarantee
obligation of any guarantor shall be deemed to be the lower of (i) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee obligation is made and (ii) the maximum
amount for which such guarantor may be liable pursuant to the terms of the
instrument embodying such Guarantee obligation, unless such primary obligation
and the maximum amount or which such guarantor may be liable are not stated or
determinable, in which case the amount of such Guarantee obligation shall be
such guarantor’s maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.


 


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


 


“Guaranteed
Obligations” shall mean (i) the full and prompt payment when due (whether
at the stated maturity, by acceleration or otherwise) of the principal and
interest on each Note issued by, and all Loans made to, the Borrower under this
Agreement and all reimbursement obligations and Unpaid Drawings with respect to
Letters of Credit, together with all the other obligations (including
obligations which, but for the automatic stay under Section


 


18

















 


362(a) of the
Bankruptcy Code, would become due), indebtedness and liabilities (including,
without limitation, indemnities, fees and interest (including any interest
accruing after the commencement of any bankruptcy, insolvency, receivership or
similar proceeding at the rate provided for herein, whether or not such
interest is an allowed claim in any such proceeding) thereon) of the Borrower
and each other Credit Party to the Lenders, the Issuing Lenders, the
Administrative Agent and the Collateral Agent now existing or hereafter
incurred under, arising out of or in connection with this Agreement (or
referred to in Section 4.01 hereof) and each other Credit Document to
which the Borrower or such Credit Party is a party and the due performance and
compliance by the Borrower with all the terms, conditions and agreements
contained in the Credit Agreement and in each such other Credit Document, (ii) the
full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations (including obligations which, but
for the automatic stay under Section 362(a) of the Bankruptcy Code,
would become due), liabilities and indebtedness (including any interest
accruing after the commencement of any bankruptcy, insolvency, receivership or
similar proceeding at the rate provided for herein, whether or not such interest
is an allowed claim in any such proceeding) of the Borrower and/or one or more
other Guaranteed Parties owing under any Interest Rate Protection Agreement or
Other Hedging Agreement entered into by the Borrower and/or one or more other
Guaranteed Parties with any Lender or any affiliate thereof (even if such
Lender subsequently ceases to be a Lender under this Agreement for any reason)
so long as such Lender or affiliate participates in such Interest Rate
Protection Agreement or Other Hedging Agreement and their subsequent assigns,
if any, whether now in existence or hereafter arising, and the due performance
and compliance with all terms, conditions and agreements contained therein and (iii) the
full and prompt payment when due of all obligations (including obligations
which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness (including any
interest, fees and/or expenses accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for in the respective Cash Management Agreement, whether or not such interest,
fees and/or expenses are an allowed claim in any such proceeding) of the
Borrower or any other Guaranteed Party owing to any Guaranteed Creditor under
any Cash Management Agreement, in each case so long as such obligations,
liabilities and indebtedness under such Cash Management Agreement were incurred
in the ordinary course of business (but specifically excluding any such obligation
intentionally created by a Lender or such affiliate thereof by allowing
financing to the Borrower or any other Guaranteed Party in the form of an
overdraft outside the ordinary course of business).


 


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


 


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


 


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


 


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


 


19

















 


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


 


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


 


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


 


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


 


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


 


“Incremental
Revolving Loan Commitments” shall have the meaning provided in Section 4.04.


 


“Indebtedness”
shall mean, of any Person, without duplication, (a) all obligations of
such Person for borrowed money or with respect to deposits or advances of any
kind (other than deposits or advances in the ordinary course of business), (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding accounts payable
incurred in the ordinary course of business), (f) all Indebtedness of


 


20

















 


others secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) the principal
portion of all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) obligations
under any liquidated earn-out, (l) obligations of such Person to purchase
securities or other property arising out of or in connection with the sale of
the same securities or property or any other Off-Balance Sheet Liability and (m) the
aggregate liquidation preference of all Disqualified Equity Interests of such
Person.  The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership
in which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person’s ownership interest in or other relationship
with such entity, except to the extent the terms of such Indebtedness provide
that such Person is not liable therefor. 
In the avoidance of doubt, “Indebtedness” shall not include obligations
or liabilities under operating leases.


 


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


 


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


 


“Initial Borrowing
Date” shall mean the date occurring on or after the Effective Date on which
the initial Borrowing of Term Loans occurs (it being understood that Credit
Events utilizing the Total Revolving Loan Commitment may also occur on such
date).


 


“Intercreditor
Agreement” shall mean an intercreditor agreement in the form of Exhibit I
as entered into on or prior to the Initial Borrowing Date pursuant to Section 6.17,
as same may be amended, modified, restated and/or supplemented from time to
time; provided that, if the Intercreditor Agreement is terminated in accordance
with its terms and is thereafter replaced by an intercreditor agreement in
substantially the form of Exhibit I as contemplated in clause (v) of Section 14.12(c) (with
such changes as are deemed reasonably necessary or desirable by the Administrative
Agent, in each case so long as no such changes are adverse in any material
respect to the Lenders, taken as a whole), then any such successor
intercreditor agreement as then in effect (and as amended, modified, restated
and/or supplemented from time to time in accordance with its terms) shall be
deemed to constitute the Intercreditor Agreement hereunder.


 


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


 


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


 


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


 


21

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Lead Arrangers”
shall mean, collectively, Morgan Stanley Senior Funding, Inc. and The Bank
of Tokyo-Mitsubishi UFJ, Ltd, in their capacities as Joint Lead Arrangers and
Bookrunners, and any successor thereto.


 


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


 


22

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


23

















 


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


 


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


 


“LIBO Rate” means,
with respect to any Eurodollar Loan for any Interest Period, the greater at any
time of (a) (x) the rate per annum appearing on Page BBAM 1 on
the Bloomberg Service (or on any successor or substitute page of such
service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of such
service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Eurodollar Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period or (y) if the rate referred to in clause (x) is
not available at such time for any reason, then the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period
are offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days before the beginning of such
Interest Period and (b) 1.50% per annum.


 


“Lien” means, with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such
asset, and (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset.


 


“Loan” shall mean
each Term Loan, each Revolving Loan and each Swingline Loan.


 


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


 


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


 


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


 


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


 


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


 


24

















 


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


 


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


 


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


 


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


 


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


 


“Merger Agreement”
shall mean that certain Agreement and Plan of Merger, dated as of March 12,
2010, by and between Holdings, Mergersub and Target, as amended, waived or
otherwise modified from time to time but without any modifications, waivers or
amendments thereof or any consents thereunder that are materially adverse to
the Lenders (including, without limitation, any of the foregoing that results
in an increase in the aggregate consideration (except for any increase to the
extent consisting solely of additional shares of common stock of Holdings) or
the allowance of any additional permitted dividends) unless consented to by the
Lead Arrangers.


 


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


 


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


 


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


 


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


 


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


 


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


 


25

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Net
Cash Proceeds” means, if in connection with (a) an Asset Sale, the Net
Sale Proceeds therefrom, (b) a Recovery Event, the cash proceeds received
net of (without duplication) (i) reasonable costs, fees and expenses
incurred and payable by Holdings or its respective Subsidiary in connection
therewith (in each case, paid to non-Affiliates), (ii) the principal
amount of any Indebtedness (other than Indebtedness under the Credit Documents
and the Second Lien Indebtedness) that is secured by a senior Lien on such
asset and that is required to be (and is) repaid in connection with such
Recovery Event, (iii) federal, state, provincial, foreign and local Taxes
and other Taxes paid or reasonably estimated to be payable in connection with
such Recovery Event or (c) an equity issuance or the issuance or
incurrence of Indebtedness, cash proceeds received net of attorneys’ fees,
investment banking fees, accountants’ fees, underwriting discounts and
commissions and other customary fees, costs, commissions, premiums, fees and
expenses incurred in connection therewith (in each case, paid to
non-Affiliates); provided that in the case of any equity issuance of
Holdings, the cash proceeds received shall also be net of any amounts applied
to repay outstanding principal of Bridge Loans or, if the Merger Closing Date
has not already occurred, to reduce commitments (on a dollar for dollar basis)
pursuant to the Bridge Loan Agreement.


 


26

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


27






 












 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


28

















 


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


 


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


 


“Permitted
Encumbrances” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


29

















 


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


 


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


 


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


 


“Permitted Investments”
means:


 


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


 


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


 


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


 


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


 


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


 


(f)            marketable general obligations of a
state or municipality of the United States or a province or municipality of
Canada, or any political subdivision of any of the foregoing, unconditionally
secured by the full faith and credit of such state, municipality, province or
political subdivision and marketable corporate debt securities having an A
credit rating or better by S&P or Moody’s Investors Service or, in the case
of such obligations of a province or a political subdivision of Canada, an
equivalent rating from  Dominion Bond
Rating Service; and


 


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


 


30

















 


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


 


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


 


“Permitted
Refinancing Indebtedness” shall mean, with respect to Holdings, the
Borrower or any of their respective Subsidiaries, any refinancing, replacement,
refunding, renewal or extension of any Indebtedness, in whole or in part, of
such Person from time to time; provided that (a) the principal
amount (or accreted value, if applicable) thereof does not, or in the case of
any revolving facility, the commitments thereunder do not, exceed the principal
amount (or accreted value, if applicable) or in the case of any revolving
facility, the commitments thereunder (so long as such commitments could have
been fully drawn with no violation of this Agreement), of the Indebtedness so
modified, refinanced, replaced, refunded, renewed or extended (the “Refinanced
Debt”) except by an amount equal to unpaid accrued interest and premium
thereon plus other reasonable amounts paid, and fees and expenses reasonably
incurred, in connection with such modification, refinancing, replacement,
refunding, renewal or extension and by an amount equal to any existing
commitments unutilized thereunder (so long as such commitments could have been
fully drawn with no violation of this Agreement), (b) the Indebtedness
resulting from such refinancing, replacement, refunding, renewal or extension
(the “Refinancing Debt”) has a final maturity date the same as or later
than the final maturity date of, and, other than in the case of a revolving
facility, has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Refinanced Debt, (c) to the
extent such Refinanced Debt is subordinated in right of payment to the
Obligations, such Refinancing Debt is subordinated in right of payment to the
Obligations on terms, when taken as a whole, in all material respects at least
as favorable to the Lenders as those contained in the documentation governing
the Refinanced Debt, (d) if the Refinanced Debt is secured, the
Refinancing Debt shall be unsecured or secured only by assets (including the
same after-acquired assets) that secured 
(or are required to secure) such Refinanced Debt; provided that
if the Refinanced Debt consists of Indebtedness described in Section 11.01(i)(B) or
11.01(ii) or Refinancing Debt previously incurred in respect thereof (or
in respect of any Refinancing Debt which has successively refinanced
Indebtedness originally incurred under Section 11.01(i)(B) or
11.01(ii)), such Refinancing Debt must be subject to the terms of the
Intercreditor Agreement pursuant to arrangements (including a joinder
agreement) reasonably satisfactory to the Administrative Agent and may be
secured by (and only by) any Collateral which also secures the Obligations on
the terms provided in the Intercreditor Agreement for Second-Lien Obligations
(as defined therein), (e) the terms and conditions (including, if
applicable, as to collateral, covenants and events of default but excluding as
to interest rate, redemption premium, and other pricing provisions) of any such
Refinancing Debt, taken as a whole, are not materially less favorable to the
Credit Parties or the Lenders than the terms and conditions of the Refinanced
Debt and (f) neither the direct obligors nor the guarantors of any
Permitted Refinancing Indebtedness may be different (except in each case if
less extensive; provided that after-acquired or created Subsidiaries, and
Subsidiaries that cease to qualify for exceptions contained in such Refinanced
Debt that entitled such Subsidiaries to not become guarantors thereunder, may
be required to become guarantors on substantially the same terms as applied to
the respective Refinanced Debt) than those which apply to the relevant
Refinanced Debt.  Notwithstanding
anything to the contrary contained above, in instances where the Refinanced
Debt is this Agreement, (x) if the respective Permitted Refinancing
Indebtedness is incurred before the 


 


31

















 


Merger Closing Date, the
respective aggregate principal amount of Permitted Refinancing Indebtedness
shall be permitted to replace Term Loan Commitments hereunder, in each case in
accordance with the relevant requirements hereof and (y) Permitted
Refinancing Indebtedness shall, as contemplated by the proviso to Section 11.01(i) and
subject to compliance with Section 5.02(g), be permitted to refinance
Revolving Loan Commitments or certain unaccessed amounts with respect to
Incremental Revolving Loan Commitments, in each case as more fully provided
therein.


 


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


 


“Permitted Second Lien
Notes” shall mean secured Indebtedness incurred by the Borrower or Holdings
and issued under an indenture or similar governing instrument in a registered
public offering or a Rule 144A or other private placement transaction or
other transaction not subject to registration under the Securities Act in the form of one or
more series of second lien secured notes; provided  that (i) such Indebtedness may only
be secured by Collateral on a second lien, subordinated basis to the Secured
Obligations, and shall not be secured by any property or assets of Holdings,
the Borrower or any of their respective Subsidiaries other than the Collateral;
(ii) such Indebtedness does not mature or have scheduled
amortization or other required payments of principal prior to the date that is
one year after the latest Maturity Date (in each case, determined without
regard to the provisos to the component defined terms used in the definition of
Maturity Date) hereunder at the time such Indebtedness is incurred, (iii) the
security agreements relating to such Indebtedness are substantially the same as
the Security Documents (with such differences as are reasonably satisfactory to
the Administrative Agent), (iv) such Indebtedness is not guaranteed by any
Person other than the Credit Parties, (v) such Indebtedness and the
indenture or other governing instrument applicable thereto does not contain
covenants, events of default, or other terms and conditions that, when taken as
a whole, are materially more restrictive to the Credit Parties than the terms
of this Agreement (it being understood that the limitations on indebtedness
covenant contained therein may take into account permanent repayments of
Indebtedness which have occurred after the Effective Date), and (vi) the
holders of such Indebtedness pursuant to the indenture or other instrument
governing such Indebtedness (or a trustee, agent or other representative on
their behalf) shall have become party to the Intercreditor Agreement.


 


“Permitted
Unsecured Notes” shall mean senior unsecured or unsecured subordinated
Indebtedness incurred by the Borrower or Holdings and issued under an indenture
or similar governing instrument in a registered public offering or a Rule 144A
or other private placement transaction or other transaction not subject to
registration under the Securities Act in the form of one or more series of
senior unsecured or unsecured subordinated notes; provided that (i) such
Indebtedness does not mature or have scheduled amortization or other required
payments of principal prior to the date that is one year after the latest
Maturity Date (in each case, determined without regard to the provisos to the
component defined terms used in the definition of Maturity Date) hereunder at the
time such Indebtedness is incurred, (ii) such 


 


32

















 


Indebtedness is not
guaranteed by any Person other than the Credit Parties, (iii) such
Indebtedness and the indenture or other governing instrument applicable thereto
does not contain covenants, events of default, or other terms and conditions
that, when taken as a whole, are materially more restrictive to the Credit
Parties than the terms of this Agreement (it being understood that the
limitations on indebtedness covenant contained therein may take into account
permanent repayments of Indebtedness which have occurred after the Effective
Date) and (iv) such Indebtedness is not secured by any Lien on any
property or assets of Holdings, the Borrower or any of their respective
Subsidiaries.


 


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


 


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


 


“Plan” means any
employee pension benefit plan (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302
of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or,
if such plan were terminated, would under Section 4069 of ERISA be deemed
to be) an “employer” as defined in Section 3(5) of ERISA.


 


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


 


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


 


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


 


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


 


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


 


33

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


34

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


35

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


36

















 


Sections 4.02,
4.03 and/or 12, as applicable, (y) adjusted from time to time as a result
of assignments to or from such Lender pursuant to Section 2.13 or 14.04(b) or
(z) increased from time to time pursuant to Section 4.04 (it being
understood that each Incremental Revolving Loan Commitment provided pursuant to
said Section 4.04 shall constitute a Revolving Loan Commitment, and shall
increase any existing Revolving Loan Commitment of the respective Lender
providing same by the amount thereof. 
Upon the provision of any Incremental Revolving Loan Commitments
pursuant to Section 4.04, the Administrative Agent shall revise Schedule
1.01A to reflect the revised Revolving Loan Commitments.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


37
















 


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


 


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


 


“Secured
Obligations” shall mean all Obligations and all other Secured Obligations
under, and as defined in, the Security Documents.  For the avoidance of doubt, it is understood
and agreed that Interest Rate Protection Agreements, Other Hedging Agreements
and Cash Management Agreements, to the extent secured by the Security
Documents, shall not be secured prior to the Merger Closing Date.


 


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


 


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


 


“Security Document”
shall mean and include each of the Guaranty and Collateral Agreement, the
Foreign Pledge Agreements (if any), each Mortgage and, after the execution and
delivery thereof, each Additional Security Document and any other documents
granting a Lien upon the assets or property of a Credit Party as security for
payment of the Obligations; provided,
that any cash collateral or other agreements entered into pursuant to the
Back-Stop Arrangements shall constitute “Security Documents” solely for
purposes of (x) Sections 9.03 and clause (k) of the definition
of Permitted Encumbrances and (y) the term “Credit Documents” as used in Sections 11.01(i), 11.08 and 14.01.


 


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


 


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


 


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


 


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


 


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


 


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


 


38

















 


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


 


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


 


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


 


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


 


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


 


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


 


39

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Term
Loan” shall mean each B-1 Term Loan and each B-2 Term Loan.


 


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


 


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


 


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


 


40

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


41

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


42

















 


the Uniform
Commercial Code as in effect from time to time in such other jurisdiction for
purposes of the provisions hereof relating to such perfection, effect of
perfection or non-perfection or priority.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


43

















 


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


 


(b)           As used herein and in the other
Credit Documents, and any certificate or other document made or delivered
pursuant hereto or thereto, (i) accounting terms not defined in Section 1.01
shall have the respective meanings given to them under GAAP, (ii) the
words “include”, “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”, (iii) the word “incur” shall be construed
to mean incur, create, issue, assume or become liable in respect of (and the
words “incurred” and “incurrence” shall have correlative meanings), (iv) unless
the context otherwise requires, the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, Equity Interests,
securities, revenues, accounts, leasehold interests and contract rights, (v) the
word “will” shall be construed to have the same meaning and effect as the word “shall”,
and (vi) unless the context otherwise requires, any reference herein (A) to
any Person shall be construed to include such Person’s successors and assigns
and (B) to Holdings, the Borrower or any other Credit Party shall be
construed to include Holdings, the Borrower or such Credit Party as debtor and
debtor-in-possession and any receiver or trustee for Holdings, the Borrower or
any other Credit Party, as the case may be, in any insolvency or liquidation
proceeding.


 


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


 


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


 


SECTION 2.           Amount and Terms of Credit.


 


2.01.        The Commitments.  (a)  (i)   Subject
to and upon the terms and conditions set forth herein, each Lender with a B-1
Term Loan Commitment severally agrees to make, at par and any time and from
time to time on or after the Initial Borrowing Date and on or prior to the
Merger Closing Date, a term loan or term loans (each, together with any term
loan resulting from the B-1 Conversion, a “B-1 Term Loan” and,
collectively, the “B-1 Term Loans”) to the Borrower, which B-1 Term
Loans (x) shall be denominated in Dollars, (y) except as hereinafter
provided, shall, at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or Eurodollar Loans, provided
that (A) except as otherwise specifically provided in Section 2.10(b),
all B-1 Term Loans comprising the same Borrowing shall at all times be of the
same Type and (B) all B-1 Term Loans made on the Initial Borrowing Date
shall be incurred as Base Rate Loans, and (z) shall not be incurred on any
date occurring prior to the Merger Closing Date if, after giving effect to the
making of the respective B-1 Term Loans and the related reductions to the Total
B-1 Term Loan Commitment pursuant to Section 4.03(b)(x), the B-1 Blocked
Amount would exceed the then remaining Total B-1 Term Loan


 


44

















 


Commitment.  On the Initial Borrowing Date, the Borrower
shall be required to borrow $100,000,000 of B-1 Term Loans, but may borrow such
larger principal amount as is permitted hereunder.  Once repaid, B-1 Term Loans incurred
hereunder may not be reborrowed.


 


(ii)           Subject to and upon the terms and
conditions set forth herein, each Lender with a B-2 Term Loan Commitment
severally agrees to make, at par and any time and from time to time on or after
the Initial Borrowing Date and on or prior to the earlier of (A) the B-1
Conversion Date and  (B) the Merger
Closing Date, a term loan or term loans (each, a “B-2 Term Loan” and,
collectively, the “B-2 Term Loans”) to the Borrower, which B-2 Term
Loans (v) shall be denominated in Dollars, (w) may not be made until
such time as (or if concurrently therewith) B-1 Term Loans are incurred in such
amounts so that the Total B-1 Term Loan Commitment is reduced to $0, (x) except
as hereinafter provided, shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided
that (A) except as otherwise specifically provided in Section 2.10(b),
all B-2 Term Loans comprising the same Borrowing shall at all times be of the
same Type and (B) all B-2 Term Loans made on the Initial Borrowing Date
shall be incurred as Base Rate Loans, (y) shall not be incurred on any
date occurring prior to the Merger Closing Date if, after giving effect to the
making of the respective B-2 Term Loans and the related reductions to the Total
B-2 Term Loan Commitment pursuant to Section 4.03(b)(y), the B-2 Blocked
Amount would exceed the then remaining Total Term Loan Commitment and (z) shall
be automatically converted on the B-1 Conversion Date into B-1 Term Loans of
such Lender hereunder in an aggregate principal amount equal to the outstanding
B-2 Term Loans of such Lender on such date. 
Once repaid, B-2 Term Loans incurred hereunder may not be reborrowed.


 


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


 


(b)           Subject to and upon the terms and
conditions set forth herein, each Lender with a Revolving Loan Commitment
severally agrees to make, at any time and from time to time on or after the
Initial Borrowing Date and prior to the Revolving Loan Maturity Date, a
revolving loan or revolving loans (each, a “Revolving Loan” and,
collectively, the “Revolving Loans”) to the Borrower, which Revolving
Loans (i) shall be denominated in Dollars, (ii) shall, at the option
of the Borrower, be incurred and maintained as, and/or converted into, Base
Rate


 


45

















 


Loans or Eurodollar
Loans, provided that (A) except as otherwise specifically provided
in Section 2.10(b), all Revolving Loans comprising the same Borrowing
shall at all times be of the same Type, and (B) all Revolving Loans made
on the Initial Borrowing Date shall be incurred as Base Rate Loans, (iii) may
be repaid and reborrowed in accordance with the provisions hereof, and (iv) shall
not exceed for any such Lender at any time outstanding that aggregate principal
amount which, when added to the product of (x) such Lender’s RL Percentage
and (y) the sum of (I) the aggregate amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (II) the aggregate principal amount of
all Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Revolving Loan
Commitment of such Lender at such time.


 


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


 


(d)           On any Business Day, the Swingline
Lender may, in its sole discretion, give notice to the Borrower (unless a
Default or Event of Default then exists under Section 12(h) or 12(i))
and the RL Lenders that the Swingline Lender’s outstanding Swingline Loans
shall be funded with one or more Borrowings of Revolving Loans (provided
that such notice shall be deemed to have been automatically given upon the
occurrence of a Default or an Event of Default under Section 12(h) or
12(i) or upon the exercise of any of the remedies provided in the last
paragraph of Section 12), in which case one or more Borrowings of
Revolving Loans constituting Base Rate Loans (each such Borrowing, a “Mandatory
Borrowing”) shall be made


 


46
















 


on the immediately
succeeding Business Day by all RL Lenders pro  rata based on each
such RL Lender’s RL Percentage (determined before giving effect to any
termination of the Revolving Loan Commitments pursuant to the last paragraph of
Section 12, if applicable) and the proceeds thereof shall be applied
directly by the Swingline Lender to repay the Swingline Lender for such
outstanding Swingline Loans.  Each RL
Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s
notice pursuant to each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the date specified in writing by the
Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing
may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether
any conditions specified in Sections 6, 7 and 8 are then satisfied, (iii) whether
a Default or an Event of Default then exists, (iv) the date of such
Mandatory Borrowing, and (v) the amount of the Total Revolving Loan
Commitment at such time.  In the event
that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each RL Lender hereby agrees that it shall forthwith purchase
(as of the date the Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and
prior to such purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause the RL Lenders to
share in such Swingline Loans ratably based upon their respective RL
Percentages (determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to the last paragraph of Section 12), provided
that (x) all interest payable on the Swingline Loans shall be for the
account of the Swingline Lender until the date as of which the respective
participation is required to be purchased and, to the extent attributable to
the purchased participation, shall be payable to the participant from and after
such date and (y) at the time any purchase of participations pursuant to
this sentence is actually made, the purchasing RL Lender shall be required to
pay the Swingline Lender interest on the principal amount of participation
purchased for each day from and including the day upon which the Mandatory
Borrowing would otherwise have occurred to but excluding the date of payment
for such participation, at the overnight Federal Funds Rate for the first three
days and at the interest rate otherwise applicable to Revolving Loans
maintained as Base Rate Loans hereunder for each day thereafter.


 


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


 


2.03.        Notice of Borrowing.  (a)  Whenever the Borrower desires
to incur (x) Eurodollar Loans hereunder, the Borrower shall give the Administrative
Agent at the Notice Office at least three Business Days’ prior notice of each
Eurodollar Loan to be incurred hereunder and (y) Base Rate Loans hereunder
(excluding Swingline Loans and Revolving Loans made pursuant to a Mandatory
Borrowing), the Borrower shall give the Administrative Agent at the Notice
Office at least one Business Day’s (or, in the case of the Initial Borrowing
Date, same Business Day’s) prior notice of each Base Rate Loan to be incurred
hereunder, provided that (in each case) any such notice shall be deemed
to have been given on a certain day only if given before 11:00 A.M. (New
York City time) on such day.  Each such
notice (each, a “Notice of


 


47

















 


Borrowing”), except as otherwise expressly
provided in Section 2.10, shall be irrevocable and shall be in writing, or
by telephone promptly confirmed in writing, in the form of Exhibit A-1
or another form acceptable to the Administrative Agent, appropriately completed
to specify:  (i) the aggregate
principal amount of the Loans to be incurred pursuant to such Borrowing, (ii) the
date of such Borrowing (which shall be a Business Day), (iii) whether the
Loans being incurred pursuant to such Borrowing shall constitute B-1 Term
Loans, B-2 Term Loans or Revolving Loans, it being understood that the
incurrence of B-2 Term Loans shall be subject to the restrictions contained in
sub-clause (w) of Section 2.01(a)(ii), (iv) whether the Loans
being incurred pursuant to such Borrowing are to be initially maintained as
Base Rate Loans or, to the extent permitted hereunder, Eurodollar Loans and, if
Eurodollar Loans, the initial Interest Period to be applicable thereto, and (v) in
the case of a Borrowing of Term Loans prior to the Merger Closing Date, detailed
calculations of the Blocked Amount (with a breakdown to show the B-1 Blocked
Amount, the B-2 Blocked Amount and the Bridge Loan Blocked Amount).  The Administrative Agent shall promptly give
each Lender which is required to make Loans of any Tranche specified in the
respective Notice of Borrowing, notice of such proposed Borrowing, of such
Lender’s proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.


 


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


 


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


 


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


 


2.04.        Disbursement of Funds.  No later than 12:00 P.M. (New York City
time) on the date specified in each Notice of Borrowing (or (x) in the
case of Swingline Loans or any Loans made on same day’s notice on the Initial
Borrowing Date as permitted pursuant to Section 2.03, no later than 4:00 P.M.
(New York City time) on the date specified pursuant to Section


 


48

















 


2.03(b)(i) or
(y) in the case of Mandatory Borrowings, no later than 1:00 P.M. (New
York City time) on the date specified in Section 2.01(d)), each Lender
with a Commitment of the respective Tranche will make available its pro  rata
portion (determined in accordance with Section 2.07) of each such
Borrowing requested to be made on such date (or in the case of Swingline Loans,
the Swingline Lender will make available the full amount thereof).  All such amounts will be made available in
Dollars and in immediately available funds at the Payment Office, and the Administrative
Agent will, except in the case of Revolving Loans made pursuant to a Mandatory
Borrowing, make available to the Borrower at the Payment Office, or to such
other account as the Borrower may specify in writing prior to the date of such
Borrowing, the aggregate of the amounts so made available by the Lenders; provided
that, if, on the date of a Borrowing of Revolving Loans (other than a Mandatory
Borrowing), there are Unpaid Drawings or Swingline Loans then outstanding, then
the proceeds of such Borrowing shall be applied, first, to the payment
in full of any such Unpaid Drawings with respect to Letters of Credit, second,
to the payment in full of any such Swingline Loans, and third, to the
Borrower as otherwise provided above. 
Unless the Administrative Agent shall have been notified by any Lender
prior to the date of Borrowing that such Lender does not intend to make
available to the Administrative Agent such Lender’s portion of any Borrowing to
be made on such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such date of
Borrowing and the Administrative Agent may (but shall not be obligated to), in
reliance upon such assumption, make available to the Borrower a corresponding amount.  If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from
such Lender.  If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the Borrower and the
Borrower shall pay on demand such corresponding amount to the Administrative
Agent.  The Administrative Agent also
shall be entitled to recover on demand from such Lender or the Borrower, as the
case may be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Administrative
Agent to the Borrower until the date such corresponding amount is recovered by
the Administrative Agent, at a rate per annum equal to (i) if recovered
from such Lender, the overnight Federal Funds Rate for the first three days and
at the interest rate otherwise applicable to such Loans for each day thereafter
and (ii) if recovered from the Borrower, the rate of interest applicable
to the respective Borrowing, as determined pursuant to Section 2.08.  Nothing in this Section 2.04 shall be
deemed to relieve any Lender from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any failure by such Lender to make Loans hereunder.


 


2.05.        Notes.  (a)  The Borrower’s obligation to pay
the principal of, and interest on, the Loans made by each Lender shall be
evidenced in the Register maintained by the Administrative Agent pursuant to Section 14.15
and shall, if requested by such Lender, also be evidenced (i) in the case
of B-1 Term Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-1, with blanks
appropriately completed in conformity herewith (each, a “B-1 Term Note”
and, collectively, the “B-1 Term Notes”), (ii) in the case of B-2
Term Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-2, with blanks appropriately
completed in conformity herewith (each, a “B-2 Term Note” and,
collectively, the “B-2 Term Notes”), (iii) in the case of Revolving
Loans, by a promissory note duly executed and delivered by the Borrower


 


49

















 


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


 


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


 


(c)           Notwithstanding anything to the
contrary contained above in this Section 2.05 or elsewhere in this
Agreement, Notes shall only be delivered to Lenders which at any time
specifically request the delivery of such Notes.  No failure of any Lender to request or obtain
a Note evidencing its Loans to the Borrower shall affect or in any manner
impair the obligations of the Borrower to pay the Loans (and all related
Obligations) incurred by the Borrower which would otherwise be evidenced
thereby in accordance with the requirements of this Agreement, and shall not in
any way affect the security or guaranties therefor provided pursuant to the
various Credit Documents.  Any Lender
which does not have a Note evidencing its outstanding Loans shall in no event
be required to make the notations otherwise described in preceding clause
(b).  At any time when any Lender
requests the delivery of a Note to evidence any of its Loans, the Borrower
shall promptly execute and deliver to the respective Lender the requested Note
in the appropriate amount or amounts to evidence such Loans.


 


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


 


50

















 


into Base Rate
Loans, one Business Day’s prior notice (each, a “Notice of
Conversion/Continuation”), in each case in the form of Exhibit A-2
or another form acceptable to the Administrative Agent, appropriately completed
to specify the Loans to be so converted, the Borrowing or Borrowings pursuant
to which such Loans were incurred and, if to be converted into Eurodollar
Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall give each
Lender prompt notice of any such proposed conversion affecting any of its
Loans.


 


2.07.        Pro Rata Borrowings.  All Borrowings of B-1 Term Loans, B-2 Term
Loans and Revolving Loans under this Agreement shall be incurred from the
Lenders pro  rata on the basis of their B-1 Term Loan Commitments,
B-2 Term Loan Commitments or Revolving Loan Commitments, as the case may be, provided
that (x) all Mandatory Borrowings shall be incurred from the RL Lenders pro
rata on the basis of their RL Percentages and (y) the B-1
Conversion shall occur in accordance with the relevant provisions of this
Agreement.  It is understood that no
Lender shall be responsible for any default by any other Lender of its
obligation to make Loans hereunder and that each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the failure
of any other Lender to make its Loans hereunder.


 


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


 


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


 


(c)           Overdue principal and, to the extent
permitted by law, overdue interest in respect of each Loan shall, in each case,
bear interest at a rate per annum equal to the rate which is 2% in excess of
the rate otherwise then applicable to such Loan and all other overdue amounts
payable hereunder and under any other Credit Document shall bear interest at a
rate per annum equal to the rate which is 2% in excess of the rate applicable
to Revolving Loans that are maintained as Base Rate Loans from time to
time.  Interest that accrues under this Section 2.08(c) shall
be payable on demand.


 


(d)           Accrued (and theretofore unpaid)
interest shall be payable (i) in respect of each Base Rate Loan, (x) quarterly
in arrears on each Quarterly Payment Date, (y) on the date of any
repayment or prepayment in full of all outstanding Base Rate Loans of any
Tranche, and (z) at maturity (whether by acceleration or otherwise) and,
after such maturity, on demand, and (ii) in respect of each Eurodollar
Loan, (x) on the last day of each Interest Period applicable thereto


 


51

















 


and, in the case of an Interest
Period in excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period, and (y) on the date
of any repayment or prepayment (on the amount repaid or prepaid), at maturity
(whether by acceleration or otherwise) and, after such maturity, on
demand.  In addition, accrued and unpaid
interest with respect to B-2 Term Loans shall be due and payable upon the
occurrence of the B-1 Conversion.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(vi)          no
Interest Period in respect of any Borrowing of any Tranche of Loans shall be
selected which extends beyond the Maturity Date (determined without regard


 


52

















 


to the provisos to the component defined terms used in the definition
of Maturity Date) for such Tranche of Loans;


 


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


 


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


 


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


 


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


 


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


 


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


 


53

















 


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


 


then, and in any such
event, such Lender (or the Administrative Agent, in the case of clause (i) above)
shall promptly give notice (by telephone promptly confirmed in writing) to the
Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders).  Thereafter (x) in the case of clause (i)(A) above,
Eurodollar Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion/Continuation given
by the Borrower with respect to Eurodollar Loans which have not yet been
incurred (including by way of conversion) shall be deemed rescinded by the
Borrower, (y) in the case of clause (i)(B) or (ii) above, the
Borrower agrees to pay to each affected Lender, upon such affected Lender’s
written request therefor, such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Lender shall determine in good faith) as shall be required to compensate such
Lender for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Lender,
showing in reasonable detail the basis for the calculation thereof, submitted
to the Borrower by such Lender shall, absent manifest error, be final and
conclusive and binding on all the parties hereto) and (z) in the case of
clause (iii) above, the Borrower shall take one of the actions specified
in Section 2.10(b) as promptly as possible and, in any event, within
the time period required by law.


 


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


 


(c)           If any Lender determines that after
the Effective Date the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by the NAIC or any Governmental
Authority, central bank or comparable agency, will have the effect of
increasing the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender based on the existence of
such Lender’s Commitments hereunder or its obligations hereunder, then the
Borrower agrees to pay to such Lender, upon its written demand therefor, such
additional amounts as shall be required to compensate such Lender or such other
corporation for the increased cost to such Lender or such other corporation or
the reduction in the rate of return to


 


54

















 


such Lender or such other
corporation as a result of such increase of capital.  In determining such additional amounts, each
Lender will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable, provided that such Lender’s
determination of compensation owing under this Section 2.10(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto.  Each Lender, upon determining
that any additional amounts will be payable pursuant to this Section 2.10(c),
will give prompt written notice thereof to the Borrower, which notice shall
show in reasonable detail the basis for calculation of such additional amounts.


 


(d)           Failure or delay on the part of any
Lender to demand compensation pursuant to this Section 2.10 shall not
constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this
Section for any increased costs or reductions incurred more than 180-days
prior to the date that such Lender notifies the Borrower of the circumstances
giving rise to such increased costs or reductions and of such Lender’s
intention to claim compensation therefor; provided further that if the
circumstances giving rise to such increased costs or reductions are
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.


 


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


 


2.12.        Change of Lending Office.  Each Lender agrees that on the occurrence of
any event giving rise to the operation of Section 2.10(a)(ii) or
(iii), Section 2.10(c), Section 3.06 or Section 5.04 with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans or Letters of Credit affected by such
event, provided that such designation is made on such terms that such
Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of such Section. 
Nothing in this Section 2.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in
Sections 2.10, 3.06 and 5.04.


 


2.13.        Replacement of Lenders.  (x)  If any Lender becomes a Defaulting
Lender, (y) upon the occurrence of any event giving rise to the operation
of Section 2.10(a)(ii) or (iii),


 


55

















 


Section 2.10(c),
Section 3.06 or Section 5.04 with respect to any Lender which results
in such Lender charging to the Borrower increased costs or other compensation
in excess of those being generally charged by the other Lenders or (z) in
the case of a refusal by a Lender to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been approved
by the Required Lenders as (and to the extent) provided in Section 14.12(b),
the Borrower shall have the right, in accordance with Section 14.04(b), if
no Default or Event of Default then exists or would exist after giving effect
to such replacement, to replace such Lender (the “Replaced Lender”) with
one or more other Eligible Transferees, none of whom shall constitute a
Defaulting Lender at the time of such replacement (collectively, the “Replacement
Lender”) and each of which shall be reasonably acceptable to the
Administrative Agent or (i) in the case of a replacement as provided in Section 14.12(b) where
the consent of the respective Lender is required with respect to less than all
Tranches of its Loans or Commitments, to replace the Commitments and/or
outstanding Loans (it being understood that if there are both outstanding
Commitments and Loans of a given Tranche, all such Commitments and Loans must
be replaced) of such Lender in respect of each Tranche where the consent of
such Lender would otherwise be individually required, with identical
Commitments and/or Loans of the respective Tranche provided by the Replacement
Lender or (ii) in case of replacements as described in clauses (x) and/or
(y) above, at the option of the Borrower, to replace the respective Lender
with respect to a given Tranche of its Loans and related Commitments (if any),
rather than to replace the respective Lender with respect to all Tranches; provided
that:


 


(a)           at the time of any replacement
pursuant to this Section 2.13, the Replacement Lender shall enter into one
or more Assignment and Assumption Agreements pursuant to Section 14.04(b) (and
with all fees payable pursuant to said Section 14.04(b) to be paid by
the Replacement Lender and/or the Borrower (as may be agreed to at such time by
and among the Borrower and the Replacement Lender)) pursuant to which the
Replacement Lender shall acquire all of the Commitments and outstanding Loans
(or, in the case of the replacement of only (a) the Revolving Loan
Commitment, the Revolving Loan Commitment and outstanding Revolving Loans and
participations in Letter of Credit Outstandings and/or (b) the outstanding
Term Loans and/or Term Loan Commitments of a given Tranche, the outstanding
Term Loans and Term Loan Commitments of such Tranche of the Lender being replaced)
of, and in each case (except for the replacement of only outstanding Term Loans
and/or Term Loan Commitments of the respective Lender) all participations in
Letters of Credit by, the Replaced Lender and, in connection therewith, shall
pay to (x) the Replaced Lender in respect thereof an amount equal to the
sum of (A) an amount equal to the principal of, and all accrued interest
on, all outstanding Loans of the respective Replaced Lender under each Tranche
with respect to which such Replaced Lender is being replaced, (B) an
amount equal to all Unpaid Drawings (unless there are no Unpaid Drawings with
respect to the Tranche being replaced) that have been funded by (and not
reimbursed to) such Replaced Lender, together with all then unpaid interest
with respect thereto at such time and (C) an amount equal to all accrued,
but theretofore unpaid, Fees owing to the Replaced Lender (but only with
respect to the relevant Tranche or Tranches, in the case of the replacement of
less than all Tranches of Loans then held by the respective Replaced Lender)
pursuant to Section 4.01, (y) except in the case of the replacement
of only outstanding Term Loans and/or Term Loan Commitments of a Replaced
Lender, each Issuing Lender an amount equal to such Replaced Lender’s RL Percentage
of any


 


56

















 


Unpaid Drawing relating to Letters of Credit issued by
such Issuing Lender (which at such time remains an Unpaid Drawing) to the
extent such amount was not theretofore funded by such Replaced Lender and (z) in
the case of any replacement of Revolving Loan Commitments, the Swingline Lender
an amount equal to such Replaced Lender’s RL Percentage of any Mandatory
Borrowing to the extent such amount was not theretofore funded by such Replaced
Lender to the Swingline Lender; and


 


(b)           all obligations of the Borrower then
owing to the Replaced Lender (other than those (a) specifically described
in clause (a) above in respect of which the assignment purchase price has
been, or is concurrently being, paid, but including all amounts, if any, owing
under Section 2.11 or (b) relating to any Tranche of Loans and/or
Commitments of the respective Replaced Lender which will remain outstanding
after giving effect to the respective replacement) shall be paid in full to
such Replaced Lender concurrently with such replacement.


 


Upon receipt by the
Replaced Lender of all amounts required to be paid to it pursuant to this Section 2.13,
the Administrative Agent shall be entitled (but not obligated) and authorized
to execute an Assignment and Assumption Agreement on behalf of such Replaced
Lender, and any such Assignment and Assumption Agreement so executed by the
Administrative Agent, the Replacement Lender and the Borrower shall be
effective for purposes of this Section 2.13 and Section 14.04.  Upon the execution of the respective
Assignment and Assumption Agreement, the payment of amounts referred to in
clauses (a) and (b) above, recordation of the assignment on the
Register by the Administrative Agent pursuant to Section 14.15 and, if so
requested by the Replacement Lender, delivery to the Replacement Lender of the
appropriate Note or Notes executed by the Borrower, (x) the Replacement
Lender shall become a Lender hereunder and, unless the respective Replaced Lender
continues to have outstanding Term Loans, a Term Loan Commitment and/or a
Revolving Loan Commitment hereunder, the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 2.10,
2.11, 3.06, 5.04, 13.06, 14.01 and 14.06), which shall survive as to such
Replaced Lender and (y) except in the case of the replacement of only
outstanding Term Loans and/or Term Loan Commitments pursuant to this Section 2.13,
the RL Percentages of the Lenders shall be automatically adjusted at such time
to give effect to such replacement.


 


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


 


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


 


57
















 


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


 


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


 


(iv)                              after giving effect to any purchase of
Term Loans pursuant to this Section 2.14, the sum of (x) the Total
Unutilized Revolving Loan Commitment and (y) the aggregate amount of all
Unrestricted cash and unrestricted Permitted Investments of the Borrower and
the other Credit Parties, shall not be less than $200,000,000;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(xii)                             at the time of each purchase of Term Loans through an
Auction, the Borrower shall have delivered to the Auction Manager an officer’s
certificate of an 


 


58

















 


Authorized Officer certifying as to compliance with preceding clauses (vi) through
(viii).


 


(b)                                 The Borrower must terminate an Auction if
it fails to satisfy one or more of the conditions set forth above which are
required to be met at the time which otherwise would have been the time of
purchase of Term Loans pursuant to the respective Auction.  If the Borrower commences any Auction (and
all relevant requirements set forth above which are required to be satisfied at
the time of the commencement of the respective Auction have in fact been
satisfied), and if at such time of commencement the Borrower reasonably
believes that all required conditions set forth above which are required to be
satisfied at the time of the purchase of Term Loans pursuant to such Auction
shall be satisfied, then the Borrower shall have no liability to any Lender for
any termination of the respective Auction as a result of its failure to satisfy
one or more of the conditions set forth above which are required to be met at
the time which otherwise would have been the time of purchase of Term Loans
pursuant to the respective Auction, and any such failure shall not result in any
Default or Event of Default hereunder. 
With respect to all purchases of Term Loans made by the Borrower
pursuant to this Section 2.14, (x) the Borrower shall pay on the
settlement date of each such purchase all accrued and unpaid interest (except
to the extent otherwise set forth in the relevant offering documents), if any,
on the purchased Term Loans up to the settlement date of such purchase and (y) such
purchases (and the payments made by the Borrower and the cancellation of the
purchased Term Loans, in each case in connection therewith) shall not
constitute voluntary or mandatory payments or prepayments for purposes of
Sections 5.01, 5.02 or 14.06.


 


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


 


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


 


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


 


59

















 


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


 


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


 


(iv)                              at the time of each purchase of Term
Loans pursuant to this Section 2.15, (A) Holdings’ corporate
rating by S&P shall not be less than BB- (with a stable outlook) and (B) Holdings’
corporate family rating by Moody’s shall not be less than Ba3 (with a stable
outlook); and


 


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


 


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


 


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


 


SECTION 3.                                Letters of Credit.


 


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


 


60

















 


York
(unless the laws of another jurisdiction is agreed to by the respective Issuing
Lender) and governed under The International Standby Practices (ISP98).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3.04.                        Letter of Credit Participations.  (a)  Immediately
upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing
Lender shall be deemed to have sold and transferred to each RL Lender, and each
such RL Lender (in its capacity under this Section 3.04, a “Participant”)
shall be deemed irrevocably and unconditionally to have purchased and received
from such Issuing Lender, without recourse or warranty, an undivided interest
and participation, 


 


62

















 


to
the extent of such Participant’s RL Percentage, in such Letter of Credit, each
drawing or payment made thereunder and the obligations of the Borrower under
this Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto.  Upon any change in
the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13
or 14.04(b), it is hereby agreed that, with respect to all outstanding Letters
of Credit and Unpaid Drawings relating thereto, there shall be an automatic
adjustment to the participations pursuant to this Section 3.04 to reflect
the new RL Percentages of the assignor and assignee Lender, as the case may be.


 


(b)                                 In determining whether to pay under any
Letter of Credit, no Issuing Lender shall have any obligation relative to the
other Lenders other than to confirm that any documents required to be delivered
under such Letter of Credit appear to have been delivered and that they appear
to substantially comply on their face with the requirements of such Letter of
Credit.  Any action taken or omitted to
be taken by an Issuing Lender under or in connection with any Letter of Credit
issued by it shall not create for such Issuing Lender any resulting liability
to the Borrower, any other Credit Party, any Lender or any other Person unless
such action is taken or omitted to be taken with gross negligence, bad faith or
willful misconduct on the part of such Issuing Lender (as determined by a court
of competent jurisdiction in a final and non-appealable decision).


 


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


 


(d)                                 Whenever an Issuing Lender receives a
payment of a reimbursement obligation as to which it has received any payments
from the Participants pursuant to clause (c) above, such Issuing Lender
shall pay to each such Participant which has paid its RL Percentage thereof, in
Dollars and in same day funds, an amount equal to such Participant’s 


 


63

















 


share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.


 


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


 


(f)                                    The obligations of the Participants to
make payments to each Issuing Lender with respect to Letters of Credit shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:


 


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


 


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


 


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


 


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


 


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


 


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


 


64

















 


to
the Base Rate as in effect from time to time plus the Applicable Margin
as in effect from time to time for Revolving Loans that are maintained as Base
Rate Loans; provided, however, to the extent such amounts are not
reimbursed prior to 12:00 Noon (New York City time) on the third Business Day
following the receipt by the Borrower of notice of such payment or disbursement
or following the occurrence of a Default or an Event of Default under Section 12(h) or
12(i), interest shall thereafter accrue on the amounts so paid or disbursed by
such Issuing Lender (and until reimbursed by the Borrower) at a rate per annum
equal to the Base Rate as in effect from time to time plus the Applicable
Margin for Revolving Loans that are maintained as Base Rate Loans as in effect
from time to time plus 2%, with such interest to be payable on
demand.  Each Issuing Lender shall give
the Borrower prompt written notice of each Drawing under any Letter of Credit
issued by it, provided that the failure to give any such notice shall in
no way affect, impair or diminish the Borrower’s obligation to repay such
drawing and interest thereon as provided herein.


 


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


 


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


 


65

















 


such
Issuing Lender or such Participant to the Administrative Agent), setting forth
in reasonable detail the basis for the calculation of such additional amount or
amounts necessary to compensate such Issuing Lender or such Participant.  The certificate required to be delivered pursuant
to this Section 3.06 shall, absent manifest error, be final and conclusive
and binding on the Borrower.  Failure or
delay on the part of any Lender to demand compensation pursuant to this Section 3.06
shall not constitute a waiver of such Lender’s right to demand such
compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 180-days prior to the date that such Lender
notifies the Borrower of the circumstances giving rise to such increased costs
or reductions and of such Lender’s intention to claim compensation therefore; provided
further that if the circumstances giving rise to such increased costs or
reductions are retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.


 


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


 


4.01.                        Fees.  (a)   The
Borrower agrees to pay to the Administrative Agent for distribution to each
Non-Defaulting RL Lender a commitment commission (the “Commitment Commission”)
for the period from and including the Effective Date to and including the
Revolving Loan Maturity Date (or such earlier date on which the Total Revolving
Loan Commitment has been terminated) computed at a rate per annum equal to 3⁄4 of
1% of the Unutilized Revolving Loan Commitment of such Non-Defaulting RL Lender
as in effect from time to time (the “Commitment Commission Rate”);
provided that from and after any Start Date where the respective Quarterly
Pricing Certificate sets forth a Total Leverage Ratio of less than or equal to
1.50 to 1.0 and is delivered in accordance with the requirements set forth in
the definition of “Applicable Margin”, the Commitment Commission Rate shall be
equal to 1/2 of 1% of the Unutilized Revolving Loan Commitment of such
Non-Defaulting RL Lender as in effect from time to time from the relevant Start
Date to the earlier of (x) the date on which the next Quarterly Pricing
Certificate is delivered to the Administrative Agent or (y) the date which
is 45 days (or 90 days in the case of the last Fiscal Quarter in any Fiscal
Year) following the last day of the Test Period in which the previous Start
Date occurred, at which time, if no Quarterly Pricing Certificate has been
delivered to the Administrative Agent (and thus commencing a new Start Date) or
if the respective Quarterly Pricing Certificate does not set forth a Total
Leverage Ratio of less than or equal to 1.50 to 1.00, the Commitment Commission
Rate shall be 3⁄4 of 1% of the Unutilized Revolving Loan Commitment of such
Non-Defaulting RL Lender as in effect from time to time (unless and until such
future Start Date upon which the Borrower is entitled to a lesser percentage as
set forth above in this proviso). 
Accrued Commitment Commission shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on the Revolving 


 


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Loan
Maturity Date (or such earlier date on which the Total Revolving Loan
Commitment is terminated).


 


Notwithstanding anything
to the contrary contained above or elsewhere in this Agreement, if it is
subsequently determined that the Total Leverage Ratio set forth in any
Quarterly Pricing Certificate delivered for any period is inaccurate for any
reason and the result thereof is that the Lenders received a Commitment
Commission based on an Commitment Commission Rate that is less than that which
would have been applicable had the Total Leverage Ratio been accurately
determined, then, for all purposes of this Agreement, the Commitment Commission
Rate for any day occurring within the period covered by such Quarterly Pricing
Certificate shall retroactively be deemed to be the relevant percentage as based
upon the accurately determined Total Leverage Ratio for such period, and any
shortfall in the Commitment Commission theretofore paid by the Borrower for the
relevant period pursuant to Sections 4.01(a) as a result of the
miscalculation of the Total Leverage Ratio shall be deemed to be (and shall be)
due and payable under the relevant provisions of Section 4.01(a), at the
time the Commitment Commission was required to be paid pursuant to said Section on
the same basis as if the Total Leverage Ratio had been accurately set forth in
such Quarterly Pricing Certificate (and shall remain due and payable until paid
in full, together with all amounts owing under Section 4.01(a), in
accordance with the terms of this Agreement).


 


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


 


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


 


(d)                                 The Borrower agrees to pay to each
Issuing Lender, for its own account, upon each payment under, issuance of, or
amendment to, any Letter of Credit issued by it, such amount as shall at the
time of such event be the administrative charge and the reasonable expenses
which such Issuing Lender is generally imposing in connection with such occurrence
with respect to letters of credit.


 


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


 


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


 


4.02.                        Voluntary Termination of Unutilized
Revolving Loan Commitments.  (a) 
Upon at least three Business Days’ prior written notice to the Administrative
Agent at the Notice Office (which notice the Administrative Agent shall
promptly transmit to each of the Lenders), the Borrower shall have the right,
at any time or from time to time after the Merger Closing Date, without premium
or penalty to terminate the Total Unutilized Revolving Loan Commitment in
whole, or reduce it in part, pursuant to this Section 4.02(a), in an
integral multiple of $1,000,000 in the case of partial reductions to the Total
Unutilized Revolving Loan Commitment, provided that each such reduction
shall apply proportionately to permanently reduce the Revolving Loan Commitment
of each RL Lender.  Each notice given
pursuant to this Section 4.02(a) shall be irrevocable; provided that
a notice of a termination of the Total Revolving Loan Commitment pursuant to
this Section 4.02(a), given in conjunction with a notice of the prepayment
in full of all Loans pursuant to Section 5.01(a), may state that the
respective notice is conditioned upon the effectiveness of other credit facilities,
in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.


 


(b)                                 In the event of certain refusals by a
Lender to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Lenders as (and to the extent) provided in Section 14.12(b), the
Borrower shall have the right, subject to obtaining the consents required by Section 14.12(b),
upon five Business Days’ prior written notice to the Administrative Agent at
the Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), to terminate the entire Revolving Loan Commitment
of such Lender, so long as all Loans, together with accrued and unpaid
interest, Fees and all other amounts, owing to such Lender (including all
amounts, if any, owing pursuant to Section 2.11 but excluding the payment
of amounts owing in respect of Loans of any Tranche maintained by such Lender,
if such Loans are not being repaid pursuant to Section 14.12(b)) are
repaid concurrently with the effectiveness of such termination pursuant to Section 5.01(b) (at
which time Schedule 1.01A shall be deemed modified to reflect such
changed amounts) and such Lender’s RL Percentage of all outstanding Letters of
Credit is cash collateralized in a manner satisfactory to the Administrative
Agent and the respective Issuing Lenders, and at such time, unless the respective
Lender continues to have outstanding Term Loans hereunder, such Lender shall no
longer constitute a “Lender” for purposes of this Agreement, except with
respect to indemnification provisions under this 


 


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Agreement (including,
without limitation, Sections 2.10, 2.11, 3.06, 5.04, 13.06, 14.01 and 14.06),
which shall survive as to such repaid Lender.


 


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


 


(b)                                 In addition to any other mandatory
commitment reductions pursuant to this Section 4.03, (x) the Total B-1
Term Loan Commitment shall be reduced on each B-1 Term Loan Borrowing Date
(immediately after giving effect to the borrowing of B-1 Term Loans on such
date) by the aggregate principal amount of B-1 Term Loans borrowed on such
date, (y) the Total B-2 Term Loan Commitment shall be reduced on each B-2
Term Loan Borrowing Date (immediately after giving effect to the borrowing of
B-2 Term Loans on such date) by the aggregate principal amount of B-2 Term
Loans borrowed on such date, and (z) the Total Term Loan Commitment (and
the Term Loan Commitments of each Lender) shall terminate in its entirety on
the Merger Closing Date (after giving effect to the incurrence of Term Loans on
such date).


 


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


 


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


 


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


 


(f)                                    In addition to any other mandatory
commitment reductions pursuant to this Section 4.03, if on any date on or
after the Effective Date and on or prior to the Merger 


 


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


 


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


 


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


 


4.04.                        Increases to Total Revolving Loan
Commitment.  At any time or from time to time on or prior
to the 90th day after the Initial Borrowing Date (or such later date as may be
consented to by the Lead Arrangers in their sole discretion), but only with the
consent of the Lead Arrangers (which may be granted or withheld by them in their
sole discretion), the Borrower shall have the right, without the consent of any
other Lender, to obtain additional Revolving Loan Commitments (collectively
the, “Incremental Revolving Loan Commitment”) from one or more Lenders
(or Persons which with the consent of the Lead Arrangers become Lenders)
pursuant to a joinder agreement hereto reasonably satisfactory to the
Administrative Agent, it being understood and agreed that no Lender shall have
any obligation whatsoever to provide any Incremental Revolving Loan Commitment
pursuant to this Section 4.04 or otherwise.  The aggregate amount of Incremental Revolving
Loan Commitments provided pursuant to this Section 4.04 shall in no event
exceed $200,000,000 (as such amount may be reduced from time to time pursuant
to Section 11.01(i)).  On the date
of the effectiveness of any Incremental Revolving Loan Commitment there shall
occur such borrowings and repayments of outstanding Revolving Loans (which
shall be subject to Section 2.11 to the extent applicable) as are needed
so that each RL Lender shares ratably (based on their revised RL Percentages)
in all then outstanding Borrowings, and the participations in outstanding
Letters of Credit shall be automatically adjusted so that the RL Lenders share
therein in accordance with their respective RL Percentages.  The terms of all Incremental Revolving Loan
Commitments (and the extensions of credit pursuant thereto) shall be the same
as the existing Revolving Loan Commitments (and related extensions of credit); provided
that (x) up-front fees may be payable as agreed by the Borrower to obtain
such Incremental Revolving Loan Commitments and (y) the Borrower may agree
to compensate the Lenders providing Incremental Revolving Loan Commitments for
such amounts as are reasonably determined by them to constitute costs (or
losses) incurred by them as a result of the requirement to fund their Initial
Revolving Loans during existing Interest Periods as opposed to funding same on
the first day of an Interest Period.  


 


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The joinder
documentation with respect to Incremental Revolving Loan Commitments and the
addition of any new Lenders (or the increase of the respective Revolving Loan
Commitments of any Existing Lender which agrees in its sole discretion to
provide same) shall be in form and substance satisfactory to the Administrative
Agent, and shall not require the consent of any other party hereto other than
the Borrower.


 


SECTION 5.                                Prepayments; Payments; Taxes.


 


5.01.                        Voluntary Prepayments. (a)  The Borrower shall have
the right to prepay the Loans, without premium or penalty, in whole or in part
at any time and from time to time on the following terms and conditions:  (i) the Borrower shall give the
Administrative Agent prior to 12:00 Noon (New York City time) at the Notice
Office (x) at least one Business Day’s prior written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay Base Rate Loans
(or same day notice in the case of a prepayment of Swingline Loans) and (y) at
least three Business Days’ prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Eurodollar Loans, which notice
(in each case) shall specify whether B-1 Term Loans, B-2 Term Loans, Revolving
Loans or Swingline Loans shall be prepaid, the amount of such prepayment and
the Types of Loans to be prepaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings pursuant to which such Eurodollar Loans were
made, and which notice the Administrative Agent shall, except in the case of a
prepayment of Swingline Loans, promptly transmit to each of the Lenders; (ii) (x) each
partial prepayment of Term Loans pursuant to this Section 5.01(a) shall
be in an aggregate principal amount of at least $1,000,000 (or such lesser
amount as is acceptable to the Administrative Agent in any given case), (y) each
partial prepayment of Revolving Loans pursuant to this Section 5.01(a) shall
be in an aggregate principal amount of at least $500,000 (or such lesser amount
as is acceptable to the Administrative Agent) and (z) each partial
prepayment of Swingline Loans pursuant to this Section 5.01(a) shall
be in an aggregate principal amount of at least $100,000 (or such lesser amount
as is acceptable to the Administrative Agent in any given case), provided
that if any partial prepayment of Eurodollar Loans made pursuant to any
Borrowing shall reduce the outstanding principal amount of Eurodollar Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount applicable thereto, then such Borrowing may not be continued as a
Borrowing of Eurodollar Loans (and same shall automatically be converted into a
Borrowing of Base Rate Loans at the end of the Interest Period then applicable
thereto unless otherwise repaid at or prior to the end of the Interest Period
then in effect) and any election of an Interest Period with respect thereto
given by the Borrower shall have no force or effect; (iii) each prepayment
pursuant to this Section 5.01(a) in respect of any Loans made
pursuant to a Borrowing shall be applied pro  rata among such
Loans, provided that at the Borrower’s election in connection with any
prepayment of Revolving Loans pursuant to this Section 5.01(a), such
prepayment shall not, so long as no Default or Event of Default then exists, be
applied to any Revolving Loan of a Defaulting Lender; (iv) each prepayment
of Term Loans pursuant to this Section 5.01(a) shall be applied to
the then outstanding Term Loans on a pro  rata basis; provided
that if any voluntary repayment of Term Loans is made before the B-1 Conversion
Date with the Net Cash Proceeds of one or more issuances of Equity Interests by
Holdings, then such voluntary prepayment shall be applied (A) first, to
then outstanding B-2 Term Loans until same are repaid in full and (B) second,
to the extent in excess thereof, to then outstanding B-1 Term Loans; and (v) each
prepayment of Term Loans pursuant to this Section 5.01(a) shall be
applied to reduce any Scheduled Term Loan Repayment (or any combination of 


 


71

















 


Scheduled
Term Loan Repayments), in each case in aggregate amount equal to the principal
amount of the respective prepayment of Term Loans, at the direction of the
Borrower in its sole discretion; provided that any amount applied to the
prepayment of B-2 Term Loans pursuant to the proviso to preceding clause (iv) shall
be applied to reduce the then remaining Scheduled Term Loan Repayments on a pro
rata basis (based upon the then remaining principal amount of each such
Scheduled Term Loan Repayment after giving effect to all prior reductions
thereto).  Notwithstanding anything to
the contrary contained herein, voluntary prepayments of Term Loans may not be
made on or prior to the Merger Closing Date without the prior written consent
of the Lead Arrangers and the Bridge Lead Arranger.  Each notice given pursuant to this Section 5.01(a) shall
be irrevocable; provided that a notice of the prepayment in full of all Loans
pursuant to Section 5.01(a), given in conjunction with a notice of the
termination of the Total Revolving Loan Commitment pursuant to Section 4.02(a),
or a notice of prepayment of Term Loans, may state that the respective notice
is conditioned upon the effectiveness of an issuance of Equity Interests by
Holdings or one or more issues of Indebtedness, in which case such notice may
be revoked by the Borrower (by notice to the Administrative Agent on or prior
to the specified effective date) if such condition is not satisfied.


 


(b)                                 In the event of certain refusals by a
Lender to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Lenders as (and to the extent) provided in Section 14.12(b), the
Borrower may, upon five Business Days’ prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Lenders), repay all Loans of such
Lender (including all amounts, if any, owing pursuant to Section 2.11),
together with accrued and unpaid interest, Fees and all other amounts then
owing to such Lender (or owing to such Lender with respect to each Tranche
which gave rise to the need to obtain such Lender’s individual consent) in
accordance with, and subject to the requirements of, said Section 14.12(b),
so long as (A) in the case of the repayment of Revolving Loans of any
Lender pursuant to this clause (b), (x) the Revolving Loan Commitment of
such Lender is terminated concurrently with such repayment pursuant to Section 4.02(b) (at
which time Schedule 1.01A shall be deemed modified to reflect the
changed Revolving Loan Commitments) and (y) such Lender’s RL Percentage of
all outstanding Letters of Credit is cash collateralized in a manner
satisfactory to the Administrative Agent and the respective Issuing Lenders and
(B) the consents, if any, required by Section 14.12(b) in
connection with the repayment pursuant to this clause (b) shall have been
obtained.  Each prepayment of Term Loans
pursuant to this Section 5.01(b) shall reduce the then remaining
Scheduled Term Loan Repayments of the Term Loans on a pro  rata
basis (based upon the then remaining principal amount of each such Scheduled
Term Loan Repayment of the respective Tranche after giving effect to all prior
reductions thereto).


 


5.02.                        Mandatory Repayments.  (a) On
any day on which the sum of (I) the aggregate outstanding principal amount
of all Revolving Loans (after giving effect to all other repayments thereof on
such date), (II) the aggregate outstanding principal amount of all
Swingline Loans (after giving effect to all other repayments thereof on such
date) and (III) the aggregate amount of all Letter of Credit Outstandings,
exceeds the Total Revolving Loan Commitment at such time, the Borrower shall
prepay on such day the principal of Swingline Loans and, after all Swingline
Loans have been repaid in full or if no Swingline Loans are outstanding,
Revolving Loans, in an amount equal to such excess.  If, after giving effect to the 


 


72

















 


prepayment
of all outstanding Swingline Loans and Revolving Loans, the aggregate amount of
the Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment
at such time, the Borrower shall pay to the Administrative Agent at the Payment
Office on such day an amount of cash and/or Permitted Investments equal to the
amount of such excess (up to a maximum amount equal to the Letter of Credit
Outstandings at such time), such cash and/or Permitted Investments to be held
as security for all Obligations of the Borrower to the Issuing Lenders and the
Lenders hereunder in a cash collateral account to be established by the
Administrative Agent.


 


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


 


(c)                                  In addition to any other mandatory
repayments pursuant to this Section 5.02, on each date on or after the
Initial Borrowing Date upon which Holdings or any of its Subsidiaries receives
any cash proceeds from any issuance or incurrence by Holdings or any of its
Subsidiaries of Indebtedness (other than Indebtedness permitted to be incurred
pursuant to Section 11.01, except that Indebtedness incurred pursuant to
clause (B) of Section 11.01(i) shall not be excluded pursuant to
this parenthetical), an amount equal to 100% of the Net Cash Proceeds of the
respective incurrence of Indebtedness shall be applied on such date in
accordance with the requirements of Sections 5.02(g) and (h).


 


(d)                                 In addition to any other mandatory
repayments pursuant to this Section 5.02, on each date on or after the
Effective Date upon which Holdings or any of its Subsidiaries receives any cash
proceeds from any Asset Sale or Recovery Event, an amount equal to 100% of the
Net Cash Proceeds therefrom shall be applied on such date in accordance with
the requirements of Sections 5.02(g) and (h); provided, however,
that such Net Cash Proceeds shall not be required to be so applied on such date
so long as no Event of Default then exists and such Net Cash Proceeds shall be
used to purchase assets used or to be used in the businesses permitted pursuant
to Section 11.03(b) within 540 days following the date of such Asset
Sale or Recovery Event, and provided further, that if all or any portion
of such Net Cash Proceeds not required to be so applied as provided above in
this Section 5.02(d) are not so reinvested within such 540-day period
(or such earlier date, if any, as Holdings or the relevant Subsidiary
determines not to reinvest the Net Cash Proceeds from such Asset Sale or
Recovery Event as set forth above), such 


 


73

















 


remaining portion shall
be applied on the last day of such period (or such earlier date, as the case
may be) as provided above in this Section 5.02(d) without regard to
the preceding proviso.


 


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


 


(f)                                    In addition to any other mandatory
repayments pursuant to this Section 5.02, on each date on or after the
Effective Date and on or prior to the Merger Closing Date upon which Holdings
receives any cash proceeds from the sale or issuance of its Equity Interests,
an amount equal to 100% of the Net Cash Proceeds of such sale or issuance of
Equity Interests shall be applied on such date as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.03(g) and
(h).


 


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


 


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


 


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


 


(j)                                     If any RL Lender becomes a Defaulting
Lender at any time that any Letter of Credit issued by any Issuing Lender is
outstanding, the Borrower shall enter into the applicable Letter of Credit
Back-Stop Arrangements with such Issuing Lender no later than 10 Business Days
after the date such RL Lender becomes a Defaulting Lender.


 


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


 


5.04.                        Net Payments.  (a)  All
payments made by the Credit Parties hereunder and under any Credit Document
will be made without setoff, counterclaim or other defense.  Except as provided in Section 5.04(b),
all such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or 


 


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


 


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(b)           Each Lender that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
for U.S. Federal income tax purposes (a “Foreign Lender”) agrees to
deliver to the Borrower and the Administrative Agent on or prior to the Effective
Date, (i) two accurate and complete original signed copies of Internal
Revenue Service Form W-8ECI, Form W-8IMY or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or successor
forms) certifying to such Lender’s entitlement as of such date to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Lender is not
a “bank” within the meaning of Section 881(c)(3)(A) of the Code and
cannot deliver either Internal Revenue Service Form W-8ECI, Form W-8IMY
or Form W-8BEN (with respect to a complete exemption under an income tax
treaty) (or any successor forms) pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit D (any such
certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two
accurate and complete original signed copies of Internal Revenue Service Form W-8BEN
(with respect to the portfolio interest exemption) (or successor form)
certifying to such Lender’s entitlement as of such date to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. 
A Lender that is an assignee or transferee of an interest under this Agreement
pursuant to Section 2.13 or 14.04(b) (unless the respective Lender
was already a Lender hereunder immediately prior to such assignment or
transfer) agrees to deliver to the Borrower and the Administrative Agent on the
date of such assignment or transfer two accurate and complete original signed
copies of Internal Revenue Service Form W-8ECI, Form W-8IMY, Form W-8BEN
(with respect to the benefits of any income tax treaty), or Form W-8BEN
(with respect to the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate,
as the case may be, and such other forms as may be required in order to
establish the entitlement of such Lender to an exemption from or reduction in
United States withholding tax with respect to payments under this Agreement and
any Note, or such Lender shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or
Certificate, in which case such Lender shall not be required to deliver any
such Form or Certificate pursuant to this Section 5.04(b).  In addition, each Lender agrees that from
time to time after the Effective Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, such Lender will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI, Form W-8IMY or Form W-8BEN
(with respect to the benefits of any income tax treaty), or Form W-8BEN
(with respect to the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate,
as the case may be, and such other forms, certifications and other information
as may be required in order to confirm or establish the entitlement of the
Administrative Agent or such Lender to a continued exemption from or reduction
in United States withholding tax with respect to payments under this Agreement
and any Note, and the Administrative Agent or such Lender, as the case may be,
shall immediately notify the Borrower and the Administrative Agent (as
applicable) of its inability to deliver any such Form or Certificate, in
which case the Administrative Agent or such Lender, as the case may be, shall
not be required to deliver any such Form or Certificate pursuant to this Section 5.04(b) if
it is not legally permitted to deliver such forms as a result of a change in
law after the Effective Date. 
Notwithstanding anything to the contrary contained in Section 5.04(a),
but subject to Section 14.04(b) and the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is required
to do so by law, to deduct or withhold income or similar taxes imposed by the
United States (or any political


 


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


 


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


 


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


 


6.01.        Effective Date; Notices; Notes.  On
or prior to the Initial Borrowing Date, (i) the Effective Date shall have
occurred as provided in Section 14.10, (ii) the Borrower shall have requested
the making of one or more Term Loans (in amounts determined by it and
consistent with the provisions of this Agreement) on the Initial Borrowing Date
(together with any Revolving Loans, Swingline Loans and/or Letters of Credit
requested by it on such date),


 


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and the
Administrative Agent shall have received the appropriate Notices of Borrowing,
Swingline Loan notices and/or Letter of Credit Requests, meeting the relevant
requirements of Section 2.03(a), 2.03(b)(i) and/or 3.03(a), as
appropriate, and (iii) the appropriate Notes executed by the Borrower
shall have been delivered to the Administrative Agent for the account of each
Lender or Swingline Lender that has requested a Note, in each case in the
amount, maturity and as otherwise provided herein.


 


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


 


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


 


6.04.        Opinions of Counsel.  On
the Initial Borrowing Date, the Administrative Agent shall have received (i) from
Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the
Credit Parties, an opinion addressed to the Administrative Agent, the
Collateral Agent and each of the Lenders and dated the Initial Borrowing Date
in the form of Exhibit E, (ii) from local counsel in each
state (other than New York and Delaware) in which a Credit Party is organized,
an opinion in form and substance reasonably satisfactory to the Administrative
Agent and


 


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addressed to the
Administrative Agent, the Collateral Agent and each of the Lenders, dated the
Initial Borrowing Date and covering such matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request, and (iii) from
local counsel in each state in which an Original Mortgaged Property is located
and with respect to which a Mortgage has then been executed (subject to Section 6.10(b)),
an opinion in form and substance reasonably satisfactory to the Collateral
Agent addressed to the Collateral Agent in its capacity as such, and each of
the Lenders, dated the Initial Borrowing Date and covering such matters
incident to the transactions contemplated herein as the Collateral Agent may
reasonably request including but not limited to the enforceability of each
Mortgage in such state.


 


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


 


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


 


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


 


(b)           On the Initial Borrowing Date and concurrently
with the incurrence of Loans on such date, all security interests in respect
of, and Liens securing, the Indebtedness under the Existing Credit Agreement
created pursuant to the security documentation relating to the Existing Credit
Agreement shall have been terminated and released, and the Administrative Agent
shall have received all such releases as may have been reasonably requested by
the Administrative Agent, which releases shall be in form and substance
reasonably satisfactory to the Administrative Agent.  Without limiting the foregoing, there shall
have been delivered to the Administrative Agent (x) proper termination
statements (Form UCC-3 or the appropriate equivalent) for filing under the
UCC or equivalent statute or regulation of each jurisdiction where a financing
statement or application for registration (Form UCC-1 or the appropriate
equivalent) was filed with respect to Holdings or any of its Subsidiaries in
connection with the security interests created with respect to the Existing Credit
Agreement, (y) terminations of any


 


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security interest in any patents, trademarks,
copyrights, or similar interests of Holdings or any of its Subsidiaries on
which filings have been made (or assurances relating thereto reasonably
satisfactory to the Administrative Agent) and (z) terminations of all
mortgages, leasehold mortgages, hypothecs and deeds of trust created with
respect to property of Holdings or any of its Subsidiaries (or assurances
relating thereto reasonably satisfactory to the Administrative Agent), in each
case, to secure the obligations under the Existing Credit Agreement, all of
which shall be in form and substance reasonably satisfactory to the
Administrative Agent.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


81

















 


Guaranty and
Collateral Agreement in such GCA Collateral a security interest in which may be
perfected by such a filing;


 


(ii)      to the extent required
by the Guaranty and Collateral Agreement, (x) any certificates
representing Pledged Stock (as defined in the Guaranty and Collateral
Agreement), together with executed and undated endorsements of transfer and (y) any
promissory notes, together with executed and undated allonges; and


 


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


 


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


 


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


 


6.11.        Regulation U.  On the Initial Borrowing Date, the Borrower
shall have delivered to each Lender a duly completed and executed (by the
Borrower) Form FR U-1 or FR G-3, as applicable, referred to in Regulation
U.  On the Initial Borrowing Date, each
Lender shall be able in good faith to complete said Form FR U-1 or FR
G-3, as applicable, showing that


 


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


 


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


 


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


 


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


 


6.15.        Merger Agreement.  Prior to the Initial Borrowing Date,
Holdings, Mergersub and Target shall have entered into the Merger Agreement,
which shall remain in full force and effect. 
There shall have been no modifications, waivers or amendments to the
Merger Agreement, as originally executed on March 12, 2010, or any
consents thereunder which are


 


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inconsistent with
the definition of Merger Agreement contained herein.  On or prior to the Initial Borrowing Date,
the Administrative Agent shall have received a true and correct copy of the
Merger Agreement, certified as such by an Authorized Officer of Holdings.  In addition, the Administrative Agent shall
have received copies of all modifications, waivers or amendments with respect
to the Merger Agreement (if any) entered into after the original execution and
delivery of a Merger Agreement, in each case in a form which enables the
Administrative Agent to specifically review the respective amendments,
modifications and waivers, in each case certified as such by an Authorized
Officer of the Borrower (or such officer shall have certified there have been
no amendments, modifications or waivers), and certifying that same meets the
requirements of the definition of Merger Agreement contained herein.


 


6.16.        Bridge Facility/Permitted Notes.  Unless $1,750,000,000 of gross cash proceeds
shall have been received pursuant to the issuance of Permitted Notes on or
prior to the Initial Borrowing Date, the Bridge Loan Documents shall have been
executed and delivered, and the Borrower shall have the benefit of commitments
to lend gross cash proceeds thereunder of not less than $1,750,000,000 less the
principal amount of any Permitted Notes theretofore issued (or such lesser
amount determined by the Borrower to be sufficient to consummate the
Transaction).


 


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


 


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


 


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


 


(ii)      with respect to each
Original Mortgaged Property, a Mortgage Policy, or unconditional commitment
therefor, issued by the Title Insurance Company, in an insured amount equal to
either 100% of the reasonably estimated fair market value of such Original
Mortgaged Property or an allocated loan amount, in Collateral Agent’s
reasonable discretion, and insuring the Collateral Agent that the Mortgage on
each such Mortgaged Property is a valid and enforceable mortgage lien on such
Mortgaged Property, free and clear of all defects and encumbrances except
Permitted Encumbrances, with each such Mortgage Policy (1) to be in form
and substance reasonably satisfactory to the Collateral Agent, (2) to
include, to the extent available in the applicable jurisdiction, supplemental
endorsements (including, without limitation, endorsements relating to future
advances under this Agreement and the Loans, usury, first loss, tax parcel,
subdivision, zoning, contiguity, variable rate, doing business,


 


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public road
access, survey, environmental lien, mortgage tax and so-called comprehensive
coverage over covenants and restrictions and for any other matters that the
Collateral Agent in its discretion may reasonably request), (3) to exclude
the “standard” title exceptions, and (4) to provide for affirmative
insurance and such reinsurance or coinsurance as the Collateral Agent in its
discretion may reasonably request;


 


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


 


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


 


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


 


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


 


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


 


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current Flood
Insurance Rate Map published by FEMA.


 


Notwithstanding
anything to the contrary contained above or elsewhere in this Agreement or any
other Credit Documents, (i) the provisions of this Section 6 shall be
subject to the last three paragraphs of Section 8 hereof, (ii) from
time to time, if it comes to the knowledge of the Borrower that any of the
Owned Real Property or Leased Real Property of Target or any of its
Subsidiaries listed on Schedule 6.18 was owned by an Excluded Subsidiary as of
the Initial Borrowing Date, the Borrower shall notify the Administrative Agent
of same and such Owned Real Property and/or Leased Real Property shall
automatically be deemed removed from Schedule 6.18 effective as of the date
hereof and (iii) if it comes to the knowledge of the Borrower within five
Business Days of the Initial Borrowing Date that any of the Leased Real
Property listed on Schedule 6.18 is leased by CFL then such Leased Real
Property shall automatically be deemed removed from Schedule 6.18.


 


SECTION 7.           Conditions Precedent to Credit
Events after the Initial Borrowing Date and On or Prior to the Merger Closing
Date.  The obligation of each Lender
to make Loans (other than pursuant to any B-1 Conversion or Mandatory
Borrowings), and the obligation of each Issuing Lender to issue Letters of
Credit, on any date occurring after the Initial Borrowing Date and on or prior
to the Merger Closing Date, is subject, at the time of each such Credit Event
(except as hereinafter indicated), to the satisfaction of the following
conditions:


 


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


 


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


 


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


 


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


 


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


 


(b)           The Administrative Agent shall have
received copies of all modifications, waivers or amendments with respect to the
Merger Agreement (if any) entered after the original execution and delivery of
the Merger Agreement, in each case in a form which enables the Administrative
Agent to specifically review the respective amendments, modifications and
waivers, in each case certified as such by an Authorized Officer of the
Borrower (or such officer


 


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shall certify that there have been no amendments,
modifications or waivers with respect to the Merger Agreement), and certifying
that same meet the requirements of the definition of Merger Agreement contained
herein.


 


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


 


7.05.        Officer’s Certificate.  In
the case of any such Credit Event relating to the Borrowing of a Term Loan
occurring prior to the Merger Closing Date, at the time of such Credit Event,
the Administrative Agent shall have received a certificate signed on behalf of
the Borrower by an Authorized Officer of the Borrower, certifying on behalf of
the Borrower that (A) all the proceeds of the Term Loans received on the
date of such Credit Event will be used solely (x) to make Top-Off
Purchases (with the consideration per share not to exceed that payable pursuant
to the Exchange Offer) or (y) to make loans to Target to enable it or
Target Sub to purchase Target Existing Notes as required in accordance with the
provisions of clause (vi) of the Transaction Summary, in each case after
using any cash and Permitted Investments (for this purpose, excluding any (x) auction
rate securities which would otherwise be included in cash equivalents and (y) up
to $136 million of cash for the purpose of paying RCRA obligations of the
Borrower and its Subsidiaries) available for such purpose of (A) the
Borrower and its Subsidiaries other than Target and its subsidiaries (less a
reserve of $200 million) and (B) Target and its subsidiaries (other than
Terra Nitrogen) with respect to clause (y) only above (less a reserve of
$50 million) and (B) either (i) no Permitted Notes have been issued
between March 10, 2010 and the date of such Credit Event, and no equity of
Holdings (excluding equity issued directly as consideration pursuant to the
Exchange Offer) has been issued between March 10, 2010 and the date of
such Credit Event or (ii) all net proceeds of any Permitted Notes issued
between March 10, 2010 and the date of such Credit Event and any equity of
Holdings (excluding equity issued directly as consideration pursuant to the
Exchange Offer) issued between March 10, 2010 and the date of such Credit
Event have been used for the purposes described in clause (A) above prior
to such Credit Event and, if preceding clause (ii) is applicable, such
certificate shall specify the aggregate amounts of such net proceeds and any
related commitment reductions pursuant to this Agreement or the Bridge Loan
Agreement.  In the event any proceeds are
to be used for the purposes described in preceding clause (A)(y), the
requirements contained in the proviso to the first sentence of clause (vi) of
the Transaction Summary shall be required to be met to the reasonable
satisfaction of the Lead Arrangers.


 


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


 


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


 


87
















 


Events on such date and (z) the aggregate
principal amount of all Bridge Loans (and any Permitted Second Lien Notes)
which will be outstanding after giving effect to any additional borrowings
thereof on such date, shall comply with the collateral valuation requirements
of Regulation U.


 


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


 


7.07.        Blocked Amounts.  If the respective Credit Event is to occur
before the Merger Closing Date, the Borrower shall have furnished the
Administrative Agent reasonably detailed calculations of the Blocked Amount on
such date (after giving effect to any Credit Events and the payments to be made
with the proceeds thereof on such date), showing the allocation thereof to the
Bridge Loan Blocked Amount, the B-1 Blocked Amount and the B-2 Blocked Amount,
and shall certify that none of the Total B-1 Term Loan Commitment (after any
reductions thereto on such date), the Total B-2 Term Loan Commitment (after any
reductions thereto on such date), or the unutilized commitments under the
Bridge Loan Agreement after giving effect to any reductions thereto on such
date shall equal or exceed the B-1 Blocked Amount, the B-2 Blocked Amount or
the Bridge Loan Blocked Amount, as the case may be.


 


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


 


SECTION 8.           Conditions Precedent to Credit
Events After the Merger Closing Date. 
The obligation of each Lender to make Loans (other than pursuant to any
B-1 Conversion or Mandatory Borrowings) after the Merger Closing Date, and the
obligation of each Issuing Lender to issue Letters of Credit after the Merger
Closing Date, is subject, at the time of each such Credit Event, to the
satisfaction of the following conditions:


 


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


 


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


 


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


 


8.03.        Representations and Warranties.  At the time of each such Credit Event and
also after giving effect thereto all representations and warranties contained
herein and in the other Credit Documents shall be true and correct in all
material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it 


 


88

















 


being understood
and agreed that (x) any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date and (y) any representation
or warranty that is qualified as to “materiality,” “Material Adverse Effect” or
similar language shall be true and correct in all respects on such date).


 


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


 


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


 


Upon the Administrative Agent’s good faith
determination that the conditions specified in Section 6, Section 7,
or in this Section 8, as the case may be, have been met or duly waived,
then the Credit Events requested at that time shall occur, regardless of any
subsequent determination that one or more of the conditions thereto had not
been met (although the occurrence of the respective Credit Event shall not
release Holdings or the Borrower from any liability for failure to satisfy one
or more of the applicable conditions contained in Section 6, 7 or 8, as the case may be).


 


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


 


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


 


89

















 


such other Credit
Event (it being understood and agreed that any such representation, warranty or
agreement which by its terms is made as of a specified date shall be required
to be true and correct in all material respects only as of such specified
date).


 


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


 


9.02.        Authorization; Enforceability.  The Transaction is within each Credit Party’s
Company powers and has been duly authorized by all necessary Company action
and, if required, stockholder action. 
This Agreement has been, and each other Credit Document when delivered
hereunder will be, duly executed and delivered by each Credit Party thereto.
This Agreement constitutes, and each other Credit Document when delivered
hereunder will constitute, a legal, valid and binding obligation of each Credit
Party thereto, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.


 


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


 


9.04.        Financial Condition; No Material
Adverse Change.  (a)  The
Borrower has heretofore furnished to the Lenders copies of (i) Holdings’
consolidated balance sheet and statements of income, stockholders equity and
cash flows as of and for the Fiscal Years ended December 31, 2009 and December 31,
2008, reported on by KPMG LLP, independent public accountants, (ii) Target’s
consolidated balance sheet and statements of income, stockholders equity and
cash flows as of and for the fiscal years ended December 31, 2009 and December 31,
2008 reported on by Deloitte & Touche LLP, independent public
accountants and (iii) pro  forma  


 


90

















 


consolidated
financial statements of the Borrower and its Subsidiaries (including the Target
and its Subsidiaries) meeting the requirements of Regulation S-X under the
Securities Act for registration statements (as if such a registration statement
for a debt issuance of the Borrower became effective on the Initial Borrowing
Date) on Form S-1 and a pro  forma consolidated statement of
income of the Borrower for the twelve-month period ending on the last day of
the most recently completed four Fiscal Quarter period ended at least 45 days
before the Merger Agreement Date, prepared after giving effect to the
Transaction as if the Transaction had occurred at the beginning of such period,
in each case, certified by its chief financial officer.  Such financial statements in clauses (i) and
(ii) present fairly, in all material respects, the consolidated financial
position and consolidated results of operations and cash flows of the Borrower
and its consolidated Subsidiaries and/or Target and its consolidated
Subsidiaries, as the case may be, as of such dates and for such periods in
accordance with GAAP.


 


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


 


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


 


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


 


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


 


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


 


9.07.        Compliance with Laws and Agreements.  Each of the Credit Parties and its
Subsidiaries is in compliance in all material respects with all statutes, laws,
regulations and orders of any Governmental Authority applicable to it or its
property, and all indentures, agreements and other instruments binding upon it
or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.  No Default or Event of Default
has occurred and is continuing.


 


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


 


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


 


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


 


9.11.        Disclosure.  To Holdings’ and the Borrower’s knowledge
after due inquiry, neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished in
writing by or on behalf of the Borrower to the 


 


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Administrative Agent or any Lender in connection with
the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contained, as of the date
furnished, any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, taken as a whole, not
materially misleading in the light of the circumstances under which they were
made; provided that, with respect to the Projections and other projected and
forward-looking information, the Borrower represents only that such information
was prepared in good faith based upon assumptions believed to be reasonable at
the time made (it being understood that no assurance has been given or will be
given that the Projections and other projections and forward-looking
information have been or will be achieved).


 


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


 


9.13.        Solvency.  Immediately after the consummation of the
transactions to occur on the date of each Credit Event and immediately
following each Credit Event, and after giving effect to any application of the
proceeds of such Credit Event, Holdings and its Subsidiaries on a consolidated
basis:  (a) own assets the fair
saleable value of which are (i) greater than the total amount of their
liabilities (including contingent liabilities) as they become absolute and
mature and (ii) greater than the amount that will be required to pay their
existing debts as they become absolute and matured considering all financing
alternatives and potential asset sales reasonably available to them, (b) have
capital that is not unreasonably small in relation to their business as
presently conducted and (c) do not intend to incur and do not believe they
will incur debts beyond their ability to pay such debts as they become due.


 


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


 


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


 


9.16.        Common Enterprise.  The Credit Parties are part of an affiliated
group.  Each Credit Party expects to
derive benefit, directly and indirectly, from (i) successful operations 


 


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of each of the
other Credit Parties and (ii) the credit extended by the Lenders to the
Borrower hereunder, both in their separate capacities and as members of the
group of companies.


 


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


 


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


 


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


 


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


 


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


 


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


 


9.20.        Security Documents.  (a)  The provisions of the Guaranty
and Collateral Agreement are effective to create in favor of the Collateral
Agent for the benefit of the Secured Creditors a legal, valid and enforceable
security interest in all right, title and interest of the Credit Parties in the
GCA Collateral described therein, and the Collateral Agent, for the benefit of
the Secured Creditors, has, or will within 5 Business Days of the Initial
Borrowing Date have, a fully 


 


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


 


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


 


Notwithstanding anything
to the contrary contained above in this Section 9.20, to the extent that
actions with respect to the Collateral are not required to be taken on the
Initial Borrowing Date pursuant to the express provisions of Section 6.10(b) hereof,
then the foregoing representations in this Section 9.20 shall be deemed
modified to the extent reasonably required so that same are not untrue as a
result of actions not required to be taken pursuant to said Section 6.10(b);
provided that with respect to any such action which was not required to
be taken pursuant to Section 6.10(b), the exception provided herein shall
cease to apply at such time as the respective action is required to be taken in
accordance with the requirements of Section 10.10 hereof.


 


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


 


9.22.        Representations and Warranties in
Merger Agreement.  On the Initial
Borrowing Date, all representations and warranties made by the Target in the
Merger Agreement 


 


95

















 


that are material
to the interests of the Lenders are true and correct, but only to the extent that
Holdings (or Mergersub) has the right (without regard to any notice
requirement) to terminate its obligations under the Merger Agreement (or would
be permitted to decline to consummate the Merger) as a result of a breach of
such representation and warranties in the Merger Agreement.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


The Borrower hereby
acknowledges that (a) the Administrative Agent and/or the Lead Arrangers
will make available to the Lenders materials and/or information provided by or
on behalf of Holdings and/or the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Holdings or any of its
Subsidiaries or their securities) (each, a “Public Lender”).  The Borrower hereby agrees that it will use
commercially reasonable efforts to identify that portion of the Borrower
Materials that may be distributed to the Public Lenders and that the Borrower
will use commercially reasonable efforts to (w) clearly and conspicuously
mark all such Borrower Materials “PUBLIC” which, at a 


 


98

















 


minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed
to have authorized the Administrative Agent, the Lead Arrangers and the Lenders
to treat such Borrower Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to the
Borrower or its securities for purposes of United States federal and state
securities laws (provided, however, that the Borrower Materials
shall be subject to Section 14.16, to the extent applicable; (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Investor”; and (z) the
Administrative Agent and the Lead Arrangers shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not designated “Public Investor.”  At the request of the Administrative Agent or
either Lead Arranger, the Borrower shall promptly review any Borrower Materials
as may be requested in order to determine whether same may be marked “PUBLIC”
and made available to Public Lenders as provided above.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


10.06.                  Books and Records; Inspection Rights; Annual Lender
Meetings.  (a) 
Each Credit Party will, and will cause each of its Subsidiaries to, keep proper
books of record 


 


100

















 


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


 


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


 


10.07.                  Compliance with Laws.  Each Credit
Party will, and will cause each of its Subsidiaries to, comply with all
statutes, laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.


 


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


 


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


 


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


 


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


 


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


 


102

















 


agreed
to by the Administrative Agent in its sole discretion; provided that
actions with respect to Target Mortgaged Properties shall be taken as required
by the following clause (c).


 


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


 


(c)                                  Within 60 days following the Merger
Closing Date (or such later date as may reasonably be agreed to by the
Administrative Agent, provided one extension of 30 days shall automatically be
granted if the applicable Credit Parties are using good faith efforts to
satisfy this covenant), Target and its Subsidiaries which are Credit Parties
(as required by preceding clause (a)) shall be required to grant Mortgages with
respect to each Target Mortgaged Property and, in connection therewith, shall
take all the actions specified in Section 6.18 as would have been required
if the requested Target Mortgaged Property were an Original Mortgaged
Property.  If (and only if) the Qualified
Equity Trigger Date does not occur on or prior to September 30, 2010, then
by November 30, 2010 (or such later date as may reasonably be agreed to by
the Administrative Agent, provided one extension of 30 days shall automatically
be granted if the applicable Credit Parties are using good faith efforts to
satisfy this covenant), the Borrower and its Subsidiaries which are Credit
Parties (as required by preceding clause (a)) shall be required to grant
Mortgages with respect to each Original Mortgage Tax State Property and, in
connection therewith, shall take all the actions specified in Section 6.18
as would have been required if the respective Original Mortgage Tax State
Property were an Original Mortgaged Property.


 


(d)                                 Holdings will, and will cause each other
Credit Party to, grant to the Collateral Agent for the benefit of the Secured
Creditors security interests and Mortgages in such Owned Real Property
(excluding the Original Mortgage Tax State Properties, which are subject to
preceding clause (c)) of Holdings and such other Credit Party as are not
covered by the original Security Documents (or otherwise covered by the actions
taken as required in preceding clauses (a) through (c)) and as may be
reasonably requested from time to time by the Administrative Agent or the
Required Lenders (collectively, the “Additional Security Documents”).  All such security interests and Mortgages
shall be granted pursuant to documentation reasonably satisfactory in form and
substance to the Collateral Agent and shall constitute valid and enforceable
perfected security interests, hypothecations and Mortgages superior to and
prior to the rights of all third Persons and enforceable against third parties
and subject to no other Liens except for Permitted Liens or, in the case of
Owned Real Property, the Permitted Encumbrances related thereto.  The Additional Security Documents or
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish and perfect the
Liens in favor of the Collateral Agent required to be granted pursuant to the
Additional Security Documents and all taxes, fees and other charges payable in
connection therewith shall have been paid in full.  Notwithstanding the foregoing, this Section 


 


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10.10(d) shall not
apply to (and Holdings and its Subsidiaries shall not be required to grant a
Mortgage in) any Owned Real Property the fair market value (as reasonably
estimated by the Borrower) or book value (whichever is higher) of which is less
than $30,000,000, except that if the aggregate fair market value or book value
(whichever is higher) of all Owned Real Property of the Credit Parties which
are not subject to Mortgages (exclusive of the Original Mortgage Tax State
Properties) is greater than $500,000,000, then the Credit Parties shall be
required to grant Mortgages in such Owned Real Properties as may be requested
by the Administrative Agent or the Required Lenders so that the aggregate value
of the non-mortgaged Owned Real Properties described above does not exceed
$500,000,000.  Furthermore, with respect
to any Owned Real Property in a Mortgage Tax State which is acquired by
Holdings or a Subsidiary thereof which is a Credit Party after the Initial
Borrowing Date and with respect to which a Mortgage would otherwise be required
to be granted above, the Administrative Agent may, in its sole discretion,
agree that a Mortgage on such Owned Real Property shall not be required if the
Administrative Agent determines that the cost of obtaining the respective Mortgage
exceeds the benefits of the security interests in the respective Owned Real
Property (given the other Collateral at such time for the Obligations).


 


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


 


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


 


(g)                                 Holdings and the Borrower agree that each
action required by clauses (d) through (f) of this Section 10.10
shall be completed as soon as possible, but, except as otherwise expressly
provided in the relevant Security Document or this Agreement, in no event later
than 45 days after such action is requested to be taken by the Administrative
Agent or the Required Lenders (or such longer period as may be satisfactory to
the Administrative Agent or the Required Lenders, as the case may be); provided
that in no event will Holdings or any of its Subsidiaries be required to take
any action, other than using its commercially reasonable efforts, 


 


104

















 


to obtain consents from
third parties (who are not Subsidiaries of Holdings) with respect to its
compliance with this Section 10.10.


 


(h)                                 Within 60 days after any request by the
Administrative Agent or the Required Lenders (or such later date as may be
agreed by the Administrative Agent), with respect to any Equity Interests in
one or more Persons organized under the laws of a non-U.S. jurisdiction which
have been pledged pursuant to the Guaranty and Collateral Agreement, if the
Administrative Agent or Required Lenders reasonably determine (based on advice
of local counsel and to the extent legally permitted by the relevant applicable
foreign law) that it would be in the interests of the Secured Creditors that
the respective Credit Party or Credit Parties which own such Equity Interests
authorize, execute and deliver one or more additional pledge agreements
governed by the laws of the jurisdiction or jurisdictions in which the Person
or Persons whose Equity Interests are being pledged is (or are) organized, then
the respective Credit Party or Credit Parties shall, subject to local law
limitations, (i) so authorize, execute and deliver one or more such
additional pledge agreements (each, as amended, modified, restated and/or
supplemented from time to time, a “Foreign Pledge Agreement” and,
collectively, the “Foreign Pledge Agreements”) and (ii) take such
reasonable actions as may be necessary or desirable under local law (as advised
by local counsel) to create, maintain, effect, perfect, preserve, maintain and
protect the security interests granted (or purported to be granted) by each
such Foreign Pledge Agreement.  Each
Foreign Pledge Agreement shall (i) be prepared by local counsel reasonably
satisfactory to the Administrative Agent and (ii) be in form and substance
reasonably satisfactory to the Administrative Agent, it being understood and
agreed, however, in the case of any Foreign Pledge Agreement entered into by
Holdings or any of its Subsidiaries, the respective Credit Party shall not be
required to pledge more than 66% of the total combined voting power of all
classes of Equity Interests entitled to vote of any Foreign Subsidiary that is
a corporation (or treated as such for U.S. federal tax purposes) in support of
its obligations (x) as a Borrower under the Credit Agreement (in the case
of the Borrower) or (y) under its Guaranty in respect of the Obligations
of the Borrower (in the case of the other Credit Parties) (although 100% of the
non-voting Equity Interests, if any, of each such Foreign Subsidiary shall be
required to be pledged in support of such obligations).  Notwithstanding anything to the contrary
contained in this Section 10.10, no Foreign Subsidiary shall guarantee any
Obligation of the Borrower and no security or similar interest shall be granted
in the assets of any Foreign Subsidiary, which security or similar interest
guarantees any Obligation of the Borrower. 
In determining whether to require one or more Foreign Pledge Agreements
as permitted above, the Administrative Agent or Required Lenders, as the case
may be, shall (in their sole discretion) consider the costs of the actions
required in connection with the execution and delivery of the respective Foreign
Pledge Agreements as against the relative value of the security interests and
additional protection provided thereby.


 


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


 


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the Administrative
Agent.  In determining whether to require
one or more Foreign Pledge Agreements as permitted above, the Administrative
Agent or Required Lenders, as the case may be, shall (in their sole discretion)
consider the costs of the actions required in connection with the execution and
delivery of the respective Foreign Pledge Agreements as against the relative
value of the security interests and additional protection provided thereby.


 


10.11.                  [Intentionally Omitted.]


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


106

















 


(i)                                     Indebtedness (A) incurred pursuant
to this Agreement and the other Credit Documents and (B) Permitted
Refinancing Indebtedness incurred with respect to indebtedness theretofore
outstanding pursuant to this clause (i); provided that (x) Permitted
Refinancing Indebtedness incurred pursuant to this clause (i)(B) may only
be pursuant to one or more issues of Permitted Second Lien Notes or Permitted
Unsecured Notes and (y) if any such Permitted Refinancing Indebtedness is
incurred in respect of Revolving Loan Commitments or outstandings pursuant
thereto (which shall only be permitted in accordance with the repayment
priorities pursuant to Section 5.02(g)), there shall be required to be a
permanent reduction to the Total Revolving Loan Commitment in an amount equal
to the respective Permitted Refinancing Indebtedness (in which case Revolving
Loans or Swingline Loans then outstanding pursuant to the Revolving Loan
Commitments shall be required to be repaid with such amounts only to the extent
then outstanding) and (z) if consented to by the Lead Arrangers in their sole
discretion (and subject to the last sentence of Section 5.02(g)), if the
full $200,000,000 of potential Incremental Revolving Loan Commitments have not
been obtained in accordance with the requirements of Section 4.04,
Permitted Refinancing Indebtedness pursuant to this clause (i) may be
deemed incurred in an amount not to exceed the amount by which $200,000,000
exceeds the amount of Incremental Revolving Loan Commitments theretofore
obtained, in which case the $200,000,000 basket pursuant to Section 4.04
shall be reduced by the aggregate principal amount of Permitted Refinancing
Indebtedness so incurred and such Permitted Refinancing Indebtedness shall be
deemed to have refinanced Incremental Revolving Loan Commitments in such
amount;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


108

















 


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


 


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


 


(xv)                            Permitted Refinancing Indebtedness
incurred in respect of (and to refinance) Indebtedness theretofore outstanding
(and permitted to be outstanding) pursuant to clauses (ii), (v) and (xv)
hereof;


 


(xvi)                         after the Merger Closing Date, (A) Indebtedness of any
Person that becomes a Subsidiary after the Merger Closing Date; provided
that such Indebtedness exists at the time such Person becomes a Subsidiary and
is not created in contemplation of or in connection with such Person becoming a
Subsidiary and (B) Permitted Refinancing Indebtedness in respect of
Indebtedness theretofore outstanding pursuant to this clause (xvi); provided
that, the aggregate principal amount of Indebtedness permitted by this clause
(xvi) shall not exceed at any time outstanding an amount equal to 5% of
Consolidated Total Assets as at the last day of the most recently ended Fiscal
Quarter for which financial statements have been (or were required to be)
furnished to the Administrative Agent pursuant to Section 10.01(a) or (b) (or
prior to any such delivery, as shown on the December 31, 2009 consolidated
balance sheet of Holdings delivered pursuant to Section 9.04(a)), as the case
may be; provided that no violation of this clause (xvi) shall occur solely as a
result of any reduction in


 


109

















 


Consolidated Total Assets if at the time the respective Indebtedness
was incurred such incurrence was permitted within the limitations established
by this clause (xvi);


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(xxvi)                    Indebtedness arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business, so long as such
Indebtedness is extinguished within four Business Days of its incurrence;


 


(xxvii)                 after the Merger Closing Date and the repayment in full of all Bridge


 


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Loans (for this purpose, determined without regard to the proviso to
the definition thereof), unsecured Indebtedness incurred by Holdings or the
Borrower (and which may be Guaranteed by one or more other Credit Parties) so
long as (x) all Net Cash Proceeds therefrom are used substantially
contemporaneously with the issuance thereof to finance one or more Acquisitions
by the Borrower or one or more Wholly-Owned Subsidiaries thereof which are
Credit Parties (for this purpose determined as if the phrase “in excess of 50%
of the capital stock, partnership interests, membership interests or equity of
any Person” appearing in the definition of Acquisition instead read “100% of
the capital stock, partnership interests, membership interests or equity of any
Person (other than, in the case of a Foreign Subsidiary of the Borrower,
director’s qualifying shares and/or other nominal amount of shares required to
be held by Persons other than the Borrower and its Subsidiaries under
applicable law)”), (y) immediately after giving effect thereto (and the
respective Acquisition), for the Test Period most recently ended for which
financial statements have been (or were required to be) furnished to the
Administrative Agent pursuant to Section 10.01(a) or (b), Holdings would be in
compliance on a Pro Forma Basis with the covenants contained in Sections 11.11
and 11.12 (for this purpose, using the levels provided for September 30, 2010
for all periods prior to the time when financial statements for the Fiscal Year
ended December 31, 2010 have been (or were required to be) furnished to the
Administrative Agent), and (z) no Default or Event of Default shall exist after
giving effect to the respective issuance of Indebtedness or the respective
Acquisition or Acquisitions to be effected with the proceeds thereof;


 


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


 


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solely as a result of any reduction in Consolidated Total Assets if at
the time the respective Indebtedness was incurred such incurrence was permitted
within the limitations established by this clause (xxviii), and (z) not more
than $50,000,000 of Indebtedness may be outstanding pursuant to this clause
(xxviii) at any time prior to the later to occur of the Merger Closing Date and
the repayment in full of all Bridge Loans (for this purpose, determined without
regard to the proviso to the definition thereof); and


 


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


 


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


 


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


 


(i)                                     Permitted Encumbrances;


 


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


 


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joinder thereto) and is subject to the terms and provisions thereof;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(xxii)                        Liens not otherwise permitted under this Section 11.02
securing Indebtedness, claims and other liabilities not in excess of, in the
aggregate at any time, an amount equal to 3% of Consolidated Total Assets as of
the last day of the most recently ended Fiscal Quarter for which financial
statements have been (or were required to be) furnished to the Administrative
Agent pursuant to Section 10.01(a) or (b) (or prior to any such delivery, as
shown on the December 31, 2009 consolidated balance sheet of Holdings delivered
pursuant to Section 9.04(a)), as the case may be; provided that (x) no
violation of this clause (xxii) shall occur solely as a result of any reduction
in Consolidated Total Assets if at the time the respective Indebtedness, claim
or other liability was secured the respective Liens were permitted to be
granted within the limitations established by this clause (xxii) (although any
increase in the amount of Indebtedness, claims or other liabilities secured
shall require an independent test at the time of such increase), (y) Liens
pursuant to this clause (xxii) may be created on cash deposits and Permitted
Investments (and Excluded Deposit Accounts and Excluded Securities Accounts
which hold only such cash and Permitted Investments) so long as the sum of the
Total Unutilized Revolving Loan Commitments and the Unrestricted cash and
Permitted Investments of the Credit Parties is not less than $250 million at
the time of the creation of the respective Lien or any increase in the amount
of cash or Permitted Investments subject thereto (except as a result of
investment returns on funds previously deposited) and (z) Liens pursuant to
this clause (xxii) may apply to any assets other than cash and Permitted
Investments (and related Excluded Deposit Accounts and Excluded Securities
Accounts), except that such Liens shall not apply to any other assets which
constitute Collateral;


 


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


 


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


 


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


 


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


 


11.03.                  Fundamental Changes.  (a)  No Credit Party will, nor will it permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) any of
its assets, or any of the stock of any of its Subsidiaries (in each case,
whether now owned or hereafter acquired), or liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no
Event of Default shall have occurred and be continuing (i) any Subsidiary of
the Borrower may liquidate, dissolve, merge or consolidate into the Borrower in
a transaction in which the Borrower is the surviving corporation; provided
that any merger consideration payable to minority shareholders of any such
Subsidiary in connection with any such transaction shall be independently
justified as an investment pursuant to Section 11.04(viii); (ii) (1) any
Subsidiary Guarantor may liquidate, dissolve, merge or consolidate into any
Subsidiary Guarantor in a transaction in which the surviving entity is a
Subsidiary Guarantor, (2) any Subsidiary that is not a Subsidiary Guarantor may
liquidate, dissolve, merge or consolidate into any Subsidiary Guarantor in a
transaction in which the surviving entity is a Subsidiary Guarantor and (3) any
Subsidiary that is not a Subsidiary Guarantor may liquidate, dissolve, merge or
consolidate into any other Subsidiary that is not a Subsidiary Guarantor; (iii)
any Credit Party or any Subsidiary may sell, transfer, lease or otherwise
dispose of (1) its assets to any Credit Party (other than Holdings), (2) Inventory
and precious metals to be recovered from spent catalysts in the ordinary course
of business, (3) assets constituting property, plant and equipment that are
uneconomical, obsolete, worn out or no longer used or useful in its business or
constitute surplus and which are disposed of in the ordinary course of
business, (4) other assets (other than any disposition of property, plant and
equipment as part of a Permitted Sale and Leaseback Transaction) having a
market value not to exceed either (x) 5% of Consolidated Total Assets during
any Fiscal Year or (y) 15% of Consolidated Total Assets in the aggregate for
all periods after the Effective Date, with each determination pursuant to
preceding clause (x) or (y) to be made on the date of each sale, transfer,
lease or other disposition of assets pursuant to this clause (4) based upon
Consolidated Total Assets as shown at the last day of the most recently ended Fiscal
Quarter for which financial statements have been (or were required to be)
furnished to the Administrative Agent pursuant to Section 10.01(a) or (b) (or
prior to any such delivery, as shown on the December 31, 2009 consolidated
balance sheet of Holdings delivered pursuant to Section 9.04(a)), as the case
may be; provided that (x) no violation of this clause (4) shall occur solely as
a result of any reduction in Consolidated Total Assets if at the time the
respective disposition of assets occurred such disposition was permitted within
the limitations established by this clause (4), (y) each sale, transfer, lease
or other disposition of assets pursuant to this clause (4) shall be at fair
market value and for consideration at least 75% of which (in the good faith
determination of the Borrower) constitutes cash, except that during any Fiscal
Year asset dispositions in an aggregate


 


116

















 


amount not
exceeding $100,000,000 may be made at fair market value but without being
subject to the cash consideration requirements set forth above, and (5) sales,
transfers, leases or other dispositions of assets to one or more Foreign
Subsidiaries or Excluded Subsidiaries so long as the aggregate fair market
value of all assets so transferred (in the case of goods, net of any cash
payments therefor actually received by the respective transferor) pursuant to
this clause (5) in any Fiscal Year does not exceed $20,000,000; (iv) any
Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve; (v) the
Transaction shall be permitted; (vi) as part of any Acquisition permitted under
Section 11.04(viii), any Subsidiary of the Borrower may merge into or
consolidate with any other Person or permit any other Person to merge into or
consolidate with it in a transaction in which the survivor is a Wholly-Owned
Subsidiary of the Borrower; provided that (x) in the case of any such
merger or consolidation to which a Subsidiary Guarantor is a party, the
surviving entity in such merger or consolidation shall be (after giving effect
to such transaction) a Subsidiary Guarantor and (y) the aggregate amount of
merger consideration shall be justified as an investment pursuant to Section 11.04(viii);
(vii) bona fide sales, transfers and other dispositions in the ordinary course
of (A) Permitted Investments, and (B) Investments permitted under clauses
(vii), (xii) and (xiii) of Section 11.04; (viii) Holdings, the Borrower and
each Subsidiary may make payments and other transactions permitted by Section 11.06;
(ix) Holdings, the Borrower and each Subsidiary may lease, sublease, license or
sublicense any property, plant and equipment or intellectual property in the
ordinary course of business, including without limitation the lease of vacant
land for farming or for the exploration and production of oil, gas, sulphur and
other minerals; (x) Holdings, the Borrower and each Subsidiary may sell or
otherwise dispose of delinquent Accounts in the ordinary course of business for
purposes of collection only (and not for the purpose of any bulk sale,
securitization or financing transaction); (xi) Holdings, the Borrower and each
Subsidiary may surrender or waive contractual rights or settle, release or
surrender any contract, tort or other litigation claims in the ordinary course
of business; (xii) Holdings, the Borrower and each Subsidiary may grant Liens
permitted by Section 11.02 of this Agreement; (xiii) Holdings and its
Subsidiaries may sell, transfer or otherwise dispose of property, plant and
equipment in a Permitted Sale and Leaseback Transaction; (xiv) Holdings and its
Subsidiaries may in the ordinary course of business abandon or dispose of
intellectual property or other proprietary rights of the Borrower or any
Subsidiary that are, in the reasonable business judgment of the Borrower or any
Subsidiary, no longer practicable to maintain or useful in the conduct of the
business of the Borrower or any Subsidiary; (xv) any Subsidiary that is not a
Credit Party may sell, transfer, lease or otherwise dispose of any of its
assets to any other Subsidiary that is not a Credit Party; and (xvi) CFL and
its subsidiaries may receive from, or transfer to, the Borrower and its
Subsidiaries spare parts, equipment or goods in the ordinary course of business
consistent with past practices and, in connection therewith, may incur loans
deemed to arise as a result of such transfers to them, and may be a lender of
loans to the Borrower and its Subsidiaries which arise from time to time as a
result of transfers of such assets by them to the Borrower and its
Subsidiaries; provided that all Indebtedness of the Borrower and its
Subsidiaries arising as a result of such transfers is incurred under, and meets
the requirements of, Section 11.01(vi)(y). 
For purposes of this Section 11.03 and the definition of Asset Sale, any
issuance of Equity Interests by a Subsidiary of Holdings (to a Person other
than Holdings or a Wholly-Owned Subsidiary thereof) which, after giving effect
thereto, increases the proportional holdings of such Person in such Subsidiary
shall be deemed to be a sale of Equity Interests by Holdings or the respective
Subsidiary which directly owns Equity Interests in such Subsidiary.  In addition to the


 


117

















 


requirements contained
above, no Credit Party will, nor will it permit any of its Subsidiaries to,
sell the Equity Interests in any of its Subsidiaries unless the sale is
otherwise permitted above in this Section 11.03 and, in the case of any such
sale to any Persons other than Holdings or a Subsidiary, constitutes (x) a sale
or disposition of all Equity Interests owned by Holdings and its Subsidiaries
in such Subsidiary or (y) a sale or disposition of Equity Interests in order to
convert the respective Subsidiary to a Joint Venture; provided that in the case
of this clause (y) the aggregate fair market value of the Equity Interests of
Holdings and its Subsidiaries in the respective Subsidiary being converted into
a Joint Venture, immediately before the transaction described in this clause (y)
net of any cash consideration actually received by any Credit Party (and not
the Subsidiary being converted to a Joint Venture) at the time of, and in
connection with, said conversion, shall be deemed an investment pursuant to Section
11.04(viii) and shall only be permitted if same is allowed in accordance with
the requirements thereof.  The Net Cash
Proceeds of any sale or disposition permitted pursuant to this Section 11.03
shall be applied as, and to the extent required by, Section 5.02.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(viii)        Guarantees,
investments, loans and advances not otherwise permitted under this Section 11.04
(including (a) Guarantees, investments, loans or advances made by or to or
on behalf of any Credit Party to or by or on behalf of any Subsidiary which is
not a Subsidiary Guarantor, (b) Guarantees, investments, loans or advances
made by any Credit Party or any Subsidiary which is not a Subsidiary Guarantor
to or on behalf of any Excluded Subsidiary, (c) investments in any Joint
Venture and minority interests and (d) investments made in order to
consummate Acquisitions (other than the Terra Acquisition)); provided that (1) no
Event of Default shall have occurred and be continuing or would result
therefrom, (2) in the case of any Acquisition, (A) such Acquisition
shall only comprise a business or those assets of a business, of the type
generally conducted by the Borrower and its Subsidiaries as of the Effective
Date or a business reasonably related thereto or a reasonable extension or
expansion thereof and (B) such Acquisition shall be consensual and shall
have been approved by the board of directors or equivalent governing body of
the acquiree or the parent of the acquiree and (3) the aggregate amount of
all such Guarantees, investments, loans and advances made pursuant to this Section 11.04(viii) (collectively,
“Section 11.04(viii) Investments”) shall not exceed the
limitations set forth below:


 


(w)          the
aggregate amount of Section 11.04(viii) Investments made during any
Fiscal Year (determined without regard to any write-downs or write-offs
thereof) and treating the maximum amount of any Guarantee as an investment, but
reducing the amount of such investments made during any Fiscal Year by any
returns of capital and principal repayments actually received during such
Fiscal Year in respect of Section 11.04(viii) Investments previously
made during such Fiscal Year pursuant to this sub-clause (w) (and treating
any reduction of a Guarantee provided in such Fiscal Year without a
corresponding payment having been made thereunder as a return of principal)),
together with the aggregate amount of Restricted Payments made during such
Fiscal Year pursuant to sub-clause (x) of Section 11.06(xiv)(2) and
any Capital Expenditures made


 


119

















 


pursuant to sub-clause (x) of Section 11.10(f)(2),
shall not exceed $50,000,000, except to the extent independently justified
pursuant to following clauses (x), (y) or (z);


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(xv)         deposits
of cash with banks or other depository institutions in the


 


120

















 


ordinary course of business and not with the intent of granting security;


 


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


 


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


 


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


 


(xix)         Restricted
Payments permitted by Section 11.06;


 


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


 


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


 


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


 


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


 


(xxiv)       the
Transaction may be effected;


 


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


 


(xxvi)       so
long as no Default or Event of Default exists at the time of incurrence thereof
or would result therefrom, loans may be made by one or more Credit Parties to
CFL after the Initial Borrowing Date so long as the aggregate amount thereof at
no time outstanding (for this purpose determined without regard to any


 


121

















 


write-downs or write-offs thereof, but without prejudice to loans
otherwise permitted by this Section 11.04, including pursuant to clause
(viii)) exceeds the amount of cash dividends paid by CFL after the Initial
Borrowing Date that were actually received (by on-dividending if needed) by one
or more Credit Parties (and so long as no such dividends were counted as
returns on investments for purposes of Section 11.04(viii) or the
definition of Cumulative Retained Excess Cash Flow Amount).


 


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


 


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


 


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


 


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


 


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


 


122

















 


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


 


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


 


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


 


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


 


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


 


(viii)        Holdings’
purchase, redemption, retirement, acquisition, cancellation or termination of
any Equity Interests with the proceeds received contemporaneously from the
issue of new Equity Interests with equal or inferior voting powers,
designations, preferences and rights;


 


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


 


(x)            Holdings
or any of its Subsidiaries may make any purchase or acquisition from, or retain
any withholding on issuances to, any employee of the Borrower or any of its
Subsidiaries of Equity Interests to satisfy any applicable federal,


 


123

















 


state or local tax payments in respect of the receipt of Equity
Interests of the Borrower or any of its Subsidiaries;


 


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


 


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


 


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


 


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


 


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


 


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


 


(xv)         dividends may be paid from time to time
with respect to the preferred stock of Terra Investment Fund LLC and/or Terra
Investment Fund II LLC that was outstanding on the Effective Date in
accordance with the terms thereof as in effect on the Effective Date.


 


11.07.      Transactions with Affiliates.  No Credit Party will, nor will it permit any
of its Subsidiaries to, sell, lease or otherwise transfer any property or
assets to, or purchase, lease or otherwise acquire any property or assets from,
or otherwise engage in any other transactions with, any of its Affiliates,
except (a) in the ordinary course of business at prices and on terms and
conditions not materially less favorable to the Credit Party or such Subsidiary
than could be obtained on an arm’s-length basis from third parties not
affiliated with each other, (b)


 


124

















 


transactions
between or among a Credit Party and another Credit Party not involving any
other Affiliate, (c) any Restricted Payment permitted by Section 11.06
and investments, loans, advances and Guarantees permitted under clauses (ii),
(iii), (iv), (v), (vi), (viii), (xvii), (xix), (xx), (xxi), (xxii), (xxiii),
(xxiv), (xxv) and (xxvi) of Section 11.04, (d) any transaction
permitted by clauses (i), (ii), (iv), (v), (viii), (xv) and (xvi) of Section 11.03(a),
(e) any transaction permitted by clauses (iii)(1) and (5) of Section 11.03(a),
(f) payment of reasonable fees, expenses and compensation to officers and
directors of any Credit Party and its Subsidiaries and customary
indemnification and insurance arrangements in favor of any director or officer
of any Credit Party and its Subsidiaries, and any agreement relating to any of
the foregoing entered into in the ordinary course of business, (g) payments
made pursuant to the NOL Agreement, (h) Indebtedness owing from any Credit
Party or any of its Subsidiaries to any other Credit Party and any of it
Subsidiaries permitted under Section 11.01, (i) Indebtedness expressly
permitted pursuant to Section 11.01(vi), (x), (xi), (xii) or (xxv), (j) transactions
pursuant to the Nitrogen Servicing Agreement, (k) the entering of Interest
Rate Protection Agreements or Other Hedging Agreement with respect to Terra
Nitrogen to the extent permitted by Section 11.05(a), (l) sales and
collection of services provided during the ordinary course of business
(consistent with past practices prior to the Acquisition) provided by Target or
Terra Capital on behalf of Terra Canada and (m) any agreements in
existence and as in effect on the Effective Date (including, without
limitation, any shareholders agreements or registration rights agreements with
existing equity holders), as set forth on Schedule 11.07, as such
agreements may be renewed, replaced or otherwise modified after the Effective
Date upon terms which taken as a whole are not less favorable to the Credit
Parties and their Subsidiaries than the original terms of such agreements.


 


11.08.      Restrictive Agreements.  No Credit Party will, nor will it permit any
of its Subsidiaries to, directly or indirectly, enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of such Credit Party or any of its
Subsidiaries to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Subsidiary of a Credit Party
to pay dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Borrower or any
other Subsidiary of the Borrower or to Guarantee Indebtedness of the Borrower
or any other Subsidiary of the Borrower; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law, rule, regulation
or order or by any Credit Document, (ii) the foregoing shall not apply to
restrictions and conditions contained in the Merger Agreement, until the 50th
day after the Merger Closing Date restrictions and conditions contained in the
Target Existing Notes Indenture and in the Target Existing Notes, and other
conditions and restrictions existing on the date hereof identified on Schedule
11.08 (but shall apply to any extension, renewal, amendment or modification
expanding in any material respect the scope of any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale or other
disposition of a Subsidiary pending such sale or disposition, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold or
disposed of and such sale or disposition is permitted hereunder, (iv) the
foregoing shall not apply to restrictions and conditions imposed under any
agreement evidencing Specified Indebtedness existing on the date such agreement
is entered into and, in each case, any amendment, modification, extension,
renewal, refinancing or replacement of any such Indebtedness, provided, that
such amendment, modification, restatement, renewal, refinancing or replacement
does not expand in any material respect the scope of any such restriction or
condition contained in the agreements evidencing such Indebtedness as in effect
on


 


125

















 


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


 


11.09.      Prepayments, Commitment Reductions and
Amendments of Specified Indebtedness. 
(a)  No Credit Party shall, or shall permit any of its
Subsidiaries to, directly or indirectly, voluntarily purchase, redeem, defease
or prepay any principal of, premium, if any, interest or other amount payable
in respect of Indebtedness incurred or which at any time was permitted to be
outstanding pursuant to Section 11.01(i)(B), Section 11.01(ii) or
constituting Permitted Refinancing Indebtedness incurred in respect of the
foregoing (or incurred in respect of a previous issue of Permitted Refinancing
Indebtedness which is justified on the basis of refinancing such Indebtedness
under Section 11.01(i)(B) or 11.01(ii) or a previous issue of
Refinancing Indebtedness in relating thereto) (all such Indebtedness, the “Specified
Indebtedness”) at any time prior to its scheduled maturity or required
repayment thereof, except that Specified Indebtedness may be repaid with (x) proceeds
of Permitted Refinancing Indebtedness permitted to be incurred hereunder in
respect thereof and (y) proceeds of equity securities or equity-linked
securities issued by Holdings.


 


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


 


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


 


126

















 


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


 


	
  Fiscal Year Ending

  	
   

  	
  Amount

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  December 31, 2013

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  December 31, 2014

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  December 31, 2015

  	
   

  	
  $

  	
  350,000,000

  	
   

  



 


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


 


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


 


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


 


127
















 


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


 


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


 


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


 


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


 


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


 


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


 


	
   

  	
   

  	
  Minimum Required Ratio

  	
   

  
	
  Fiscal Quarter Ending

  	
   

  	
  A

  	
   

  	
  B

  	
   

  
	
  September 30, 2010

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  December 31, 2010

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  March 31, 2011

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  June 30, 2011

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  September 30, 2011

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  December 31, 2011

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  March 31, 2012

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  June 30, 2012

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  September 30, 2012

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  



 


 


128

















 


	
   

  	
   

  	
  Minimum Required Ratio

  	
   

  
	
  Fiscal Quarter Ending

  	
   

  	
  A

  	
   

  	
  B

  	
   

  
	
  December 31, 2012

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  March 31, 2013

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  June 30, 2013

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  September 30, 2013

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  December 31, 2013

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  March 31, 2014

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  June 30, 2014

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  September 30, 2014

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  December 31, 2014

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  
	
  March 31, 2015

  	
   

  	
  2.50:1.00

  	
   

  	
  3.00:1.00

  	
   

  



 


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


 


	
   

  	
   

  	
  Maximum Permitted Ratio

  	
   

  
	
  Fiscal Quarter Ending

  	
   

  	
  A

  	
   

  	
  B

  	
   

  
	
  September 30, 2010

  	
   

  	
  4.50:1.00

  	
   

  	
  3.50:1.00

  	
   

  
	
  December 31, 2010

  	
   

  	
  4.50:1.00

  	
   

  	
  3.50:1.00

  	
   

  
	
  March 31, 2011

  	
   

  	
  4.00:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  June 30, 2011

  	
   

  	
  4.00:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  September 30, 2011

  	
   

  	
  4.00:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  December 31, 2011

  	
   

  	
  4.00:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  March 31, 2012

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  June 30, 2012

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  September 30, 2012

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  December 31, 2012

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  March 31, 2013

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  June 30, 2013

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  September 30, 2013

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  December 31, 2013

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  March 31, 2014

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  June 30, 2014

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  September 30, 2014

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  December 31, 2014

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  
	
  March 31, 2015

  	
   

  	
  3.50:1.00

  	
   

  	
  3.25:1.00

  	
   

  



 


11.13.      Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements.  Holdings will not, and will not permit any of
its Subsidiaries to, amend, modify or


 


129

















 


change (x) its certificate or articles of
incorporation (including, without limitation, by the filing or modification of
any certificate or articles of designation), certificate of formation, limited
liability company agreement or by-laws (or the equivalent organizational
documents), as applicable, or any agreement entered into by it with respect to
its capital stock or other Equity Interests, or enter into any new agreement
with respect to its capital stock or other Equity Interests, in any manner
which could reasonably be expected to be adverse in any material respect to the
interests of the Lenders or (y) the Exchange Offer or the Merger Agreement
in any manner which could cause a failure of the applicable conditions
precedent to subsequent Credit Events to occur on or prior to the Merger
Closing Date.


 


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


 


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


 


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


 


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


 


130

















 


SECTION 12.         Events of Default.


 


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


 


(a)           the Borrower shall fail to pay any
principal of any Loan or any reimbursement obligation in respect of any Drawing
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;


 


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


 


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


 


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


 


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


 


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


 


(g)           any event or condition occurs that
results in any Material Indebtedness becoming due prior to its scheduled
maturity or that enables or permits (in each case, after giving effect to any
applicable grace or notice period) the holder or holders of any such Material
Indebtedness or any trustee or agent on its or their behalf to cause any such
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided
that (x) this clause (g) shall not apply to (i) secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness, (ii) the Target
Existing Notes becoming due and payable, or being required to be repaid or
repurchased, on or prior to the 50th day after the Merger Closing Date, so long
as repaid


 


131

















 


in full on or prior to such 50th day after the Merger
Closing Date or (iii) any event requiring the repayment of the Bridge
Loans in accordance with the terms of the Bridge Loan Documents (other than (I) an
acceleration of the maturity thereof as a result of an event of default occurring
under, and as defined, therein or (II) a prepayment as a result of a
Change of Control) and (y) until the 50th day after the Merger Closing
Date, any Excepted Defaults shall not cause a default or event of default
pursuant to this clause (g);


 


(h)           an involuntary proceeding shall be
commenced or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of a Credit Party or any Subsidiary
of any Credit Party (other than any Immaterial Subsidiary) or its debts, or of
a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Credit Party or any Subsidiary of any
Credit Party (other than any Immaterial Subsidiary) or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering
any of the foregoing shall be entered;


 


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


 


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


 


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


 


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


 


132

















 


(m)          a Change of Control shall occur;


 


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


 


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


 


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


 


then, and in every such
event (other than an event with respect to Holdings or the Borrower described
in clause (h) or (i) of this Section), the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different
times:  (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare
the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to Holdings or the Borrower described in clause (h) or (i) of
this Section, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower. Upon
the occurrence and the continuance of an Event of Default, the Administrative
Agent may, and at the request of the Required Lenders shall, (i) require
the Borrower to cash collateralize all outstanding Letters of Credit and (ii) exercise
any rights and remedies provided to the Administrative Agent under the Credit
Documents or at law or equity, including all remedies provided under the
UCC.  Notwithstanding anything to the
contrary contained above, at any time on or prior to the Merger Closing Date,
if the only Event of Default


 


133

















 


which has occurred and is
then continuing is pursuant to Section 12(c) and is solely as a
result of a material incorrectness of one or more representations or warranties
that do not constitute Specified Representations, then the remedies described
above in this Section 12 may not be exercised unless and until the earlier
to occur of (x) the first Business Day after the Merger Closing Date and (y) the
occurrence (and during the continuance) of one or more Events of Default other
than as described above in this sentence.


 


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


 


13.01.      Appointment.  The Lenders hereby irrevocably designate and
appoint MSSF as Administrative Agent and as Collateral Agent for the Lenders
and the other Secured Creditors (for purposes of this Section 13 and Section 14.01,
the term “Administrative Agent” also shall include MSSF in its capacity as
Collateral Agent pursuant to the Security Documents) to act as specified herein
and in the other Credit Documents.  MSSF
hereby accepts such appointment as Administrative Agent and Collateral Agent,
subject to its resignation rights provided herein.  Each Lender hereby irrevocably authorizes,
and each holder of any Note by the acceptance of such Note shall be deemed
irrevocably to authorize, the Administrative Agent to take such action on its
behalf under the provisions of this Agreement, the other Credit Documents and
any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent by the terms
hereof and thereof and such other powers as are reasonably incidental
thereto.  The Administrative Agent may
perform any of its respective duties hereunder by or through its officers,
directors, agents, employees or affiliates.


 


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


 


(b)           Notwithstanding any other provision
of this Agreement or any provision of any other Credit Document, each Lead
Arranger and the Global Coordinator is named as such for recognition purposes
only, and in its capacity as such shall have no powers, duties,
responsibilities or liabilities with respect to this Agreement or the other
Credit Documents or the transactions contemplated hereby and thereby; it being understood
and agreed that each Lead Arranger shall be entitled to all indemnification and
reimbursement rights as, and to the extent, provided for under Section 14.01.  Without limitation of the foregoing, the Lead
Arranger shall


 


134

















 


not, solely by reason of
this Agreement or any other Credit Documents, have any fiduciary relationship
in respect of any Lender or any other Person.


 


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


 


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


 


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


 


13.06.      Indemnification.  To the extent the Administrative Agent (or
any affiliate thereof) is not reimbursed and indemnified by the Borrower, the
Lenders will reimburse and indemnify the Administrative Agent (and any
affiliate thereof) in proportion to their respective “percentages” as used in
determining the Required Lenders (determined as if there were no


 


135

















 


Defaulting
Lenders) for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Administrative Agent (or any affiliate thereof) in performing its duties
hereunder or under any other Credit Document or in any way relating to or
arising out of this Agreement or any other Credit Document; provided
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent’s (or
such affiliate’s) gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable decision).


 


13.07.      The Administrative Agent in its
Individual Capacity.  With respect to
its obligation to make Loans, or issue or participate in Letters of Credit,
under this Agreement, the Administrative Agent shall have the rights and powers
specified herein for a “Lender” and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term “Lender,” “Majority Lenders,” “Required Lenders,” “holders
of Notes” or any similar terms shall, unless the context clearly indicates
otherwise, include the Administrative Agent in its respective individual
capacities.  The Administrative Agent and
its affiliates may accept deposits from, lend money to, and generally engage in
any kind of banking, investment banking, trust or other business with, or
provide debt financing, equity capital or other services (including financial
advisory services) to any Credit Party or any Affiliate of any Credit Party (or
any Person engaged in a similar business with any Credit Party or any Affiliate
thereof) as if they were not performing the duties specified herein, and may
accept fees and other consideration from any Credit Party or any Affiliate of any
Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.


 


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


 


13.09.      Resignation by the Administrative Agent.  (a)  The Administrative Agent may resign
from the performance of all its respective functions and duties hereunder
and/or under the other Credit Documents at any time by giving 15 Business Days’
prior written notice to the Lenders and, unless a Default or an Event of
Default under Section 12(h) or (i) then exists, the
Borrower.  Any such resignation by an
Administrative Agent hereunder shall also constitute its resignation as the
Collateral Agent an Issuing Lender and the Swingline Lender, in which case the
resigning Administrative Agent (x) shall no longer act as Collateral
Agent, except that, until a successor Administrative Agent (who shall act as
Collateral Agent) is appointed as provided below, the resigning Administrative
Agent shall continue to act as Collateral Agent for purposes of maintaining the
perfection and priority of security interests granted pursuant to the various
Security Documents, (y) shall not be required to issue any further Letters
of Credit or make any additional Swingline Loans hereunder and (z) shall
maintain all of its rights as Issuing Lender or Swingline Lender, as the case
may be, with respect to any Letters of Credit issued by it, or Swingline Loans
made by it, prior to the date of such resignation.  Such resignation shall take


 


136

















 


effect
upon the appointment of a successor Administrative Agent pursuant to clauses (b) and
(c) below or as otherwise provided below.


 


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


 


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


 


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


 


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


 


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


 


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to perfect and
maintain perfected the security interest in and liens upon the Collateral
granted pursuant to the Security Documents.


 


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


 


(c)           The Collateral Agent shall have no
obligation whatsoever to the Lenders or to any other Person to assure that the
Collateral exists or is owned by any Credit Party or is cared for, protected or
insured or that the Liens granted to the Collateral Agent herein or pursuant
hereto have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority, or to
exercise or to continue exercising at all or in any manner or under any duty of
care, disclosure or fidelity any of the rights, authorities and powers granted
or available to the Collateral Agent in this Section 13.10 or in any of
the Security Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Collateral Agent
may act in any manner it may deem appropriate, in its sole discretion, given
the Collateral Agent’s own interest in the Collateral as one of the Lenders and
that the Collateral Agent shall have no duty or liability whatsoever to the
Lenders, except for its gross negligence or willful misconduct (as determined
by a court of competent jurisdiction in a final and non-appealable decision).


 


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


 


SECTION 14.         Miscellaneous.


 


14.01.      Payment of Expenses, etc.  (a)  The Borrower hereby agrees
to:  (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable and documented out-of-pocket costs and expenses
of the Administrative Agent and the Lead Arrangers (including, without
limitation, the reasonable fees and disbursements of White & Case LLP
and, if necessary, one local counsel in any applicable jurisdiction and one
regulatory counsel) in connection with the preparation, execution, delivery and
administration of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein and any amendment,
waiver or consent relating hereto or thereto, of the


 


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Administrative
Agent, the Lead Arrangers and their respective Affiliates in connection with
its or their syndication efforts with respect to this Agreement and of the
Administrative Agent, of each Issuing Lender and the Swingline Lender in
connection with the Back-Stop Arrangements entered into by such Persons and,
after the occurrence of an Event of Default, for the period during which such
Event of Default is continuing, the Administrative Agent, each of the Issuing
Lenders and Lenders in connection with the enforcement of this Agreement and
the other Credit Documents and the documents and instruments referred to herein
and therein; provided, however, that in the absence of conflicts, reimbursement
of legal fees and disbursements shall be limited to the reasonable fees and
disbursements of one counsel (and one local counsel in each relevant
jurisdiction and one regulatory counsel, if applicable) for the Administrative
Agent, the Issuing Lenders and the Lenders, such counsel to be selected by the
Administrative Agent; (ii) pay and hold the Administrative Agent, each of
the Issuing Lenders and each of the Lenders harmless from and against any and
all present and future stamp, excise and other similar documentary taxes with
respect to the foregoing matters and save the Administrative Agent, each of the
Issuing Lenders and each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to the Administrative Agent, such Issuing Lender or
such Lender) to pay such taxes; and (iii) indemnify the Administrative
Agent, each Issuing Lender, each Lead Arranger and each Lender, and each of
their respective officers, directors, employees, and affiliates, (each, an “Indemnified
Person”) from and hold each of them harmless against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys’ and consultants’ fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not the
Administrative Agent, any Issuing Lender, any Lead Arranger or any Lender is a
party thereto and whether or not such investigation, litigation or other
proceeding is brought by or on behalf of any Credit Party) related to the
entering into and/or performance of this Agreement or any other Credit Document
or the use of any Letter of Credit or the proceeds of any Loans hereunder or
the consummation of the Transaction or any other transactions contemplated
herein or in any other Credit Document or the exercise of any of their rights
or remedies provided herein or in the other Credit Documents, or (b) the
actual or alleged presence of Hazardous Materials in the air, surface water or
groundwater or on the surface or subsurface of any Real Property at any time
owned, leased or operated by Holdings or any of its Subsidiaries, the
generation, storage, transportation, handling or disposal of Hazardous
Materials by Holdings or any of its Subsidiaries at any location, whether or
not owned, leased or operated by Holdings or any of its Subsidiaries, the
non-compliance by Holdings or any of its Subsidiaries with any Environmental
Law (including applicable permits thereunder) applicable to any Real Property,
or any Environmental Liability of Holdings, any of its Subsidiaries or any Real
Property at any time owned, leased or operated by Holdings or any of its
Subsidiaries, including, in each case, without limitation, the reasonable fees
and disbursements of counsel and other consultants incurred in connection with
any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence, bad faith or willful misconduct of the
Indemnified Person to be indemnified (as determined by a court of competent
jurisdiction in a final and non-appealable decision)).  To the extent that the undertaking to
indemnify, pay or hold harmless the Administrative Agent, any Issuing Lender,
any Lead Arranger or any Lender set forth in the


 


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preceding sentence
may be unenforceable because it is violative of any law or public policy, the
Borrower shall make the maximum contribution to the payment and satisfaction of
each of the indemnified liabilities which is permissible under applicable law.


 


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


 


14.02.      Right of Setoff.  In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent, each Issuing Lender and each Lender (with
the prior written consent of the Administrative Agent or the Required Lenders)
is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to any Credit Party or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by the Administrative Agent, such
Issuing Lender or such Lender (including, without limitation, by branches and
agencies of the Administrative Agent, such Issuing Lender or such Lender
wherever located) to or for the credit or the account of Holdings or any of its
Subsidiaries against and on account of the Obligations of the Credit Parties to
the Administrative Agent, such Issuing Lender or such Lender under this
Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Lender pursuant to Section 14.04(b),
and although said Obligations shall be contingent or unmatured.  After exercising any set off rights pursuant
to the immediately preceding sentence, the respective Lender shall promptly
notify the Administrative Agent and the Borrower of such exercise, although any
delay or failure in giving any such notice shall not affect the exercise of set
off rights as provided above and shall result in no liability for the
respective Lender.


 


14.03.      Notices.  Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including facsimile communication) and mailed, faxed or
delivered:  if to any Credit Party, at
the address specified opposite its signature below or in the other relevant
Credit Documents; if to any Lender, at its address specified on Schedule
14.03; and if to the Administrative Agent, at the Notice Office; or, as to
any Credit Party or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties hereto and,
as to each Lender, at such other address as shall be designated by such Lender
in a written notice to the Borrower and the Administrative Agent.  All such notices and communications shall,
when mailed, faxed or sent


 


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by
overnight courier, be effective when deposited in the mails, faxed (with return
receipt) or delivered to the overnight courier, as the case may be, except that
notices and communications to the Administrative Agent and the Borrower shall
not be effective until received by the Administrative Agent or the Borrower, as
the case may be.


 


14.04.      Benefit of Agreement; Assignments;
Participations.  (a)  This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto; provided,
however, neither Holdings nor the Borrower may assign or transfer any of
its rights, obligations or interest hereunder without the prior written consent
of the Lenders and, provided further, that, although any Lender may
grant participations to Eligible Transferees in its rights hereunder, (i) such
Lender shall remain a “Lender” for all purposes hereunder (and may not transfer
or assign all or any portion of its Commitments hereunder except as provided in
Sections 2.13, 14.04(b) and 14.04(c)), (ii) the participant shall not
constitute a “Lender” hereunder, (iii) such Lender shall remain the holder
of its Loans and owner of its interest in any Letter of Credit for all purposes
hereunder, and (iv) Borrowers and any Lender shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement, and, provided further, that no Lender
shall transfer or grant any participation under which the participant shall
have rights to approve any amendment to or waiver of this Agreement or any
other Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is cash collateralized pursuant to the terms hereunder or not
extended beyond the Revolving Loan Maturity Date) in which such participant is
participating, or reduce the rate or extend the time of payment of interest or
Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant’s participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default or of a mandatory reduction in the Total Commitment or a
mandatory prepayment of the Loans shall not constitute a change in the terms of
such participation, and that an increase in any Commitment (or the available
portion thereof) or Loan shall be permitted without the consent of any
participant if the participant’s participation is not increased as a result
thereof), (ii) consent to the assignment or transfer by Holdings or the
Borrower of any of its rights and obligations under this Agreement or (iii) release
all or substantially all of the Collateral under all of the Security Documents
(except as expressly provided in the Credit Documents) supporting the Loans or
Letters of Credit hereunder in which such participant is participating.  In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant’s rights against such Lender in respect of
such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation.


 


(b)           Notwithstanding the foregoing, any
Lender (or any Lender together with one or more other Lenders) may (x) assign
(but not to Holdings or any Subsidiary thereof except pursuant to clause (c) below)
all or a portion of its Term Loan Commitments and outstanding principal amount
of Term Loans and/or Revolving Loan Commitments and related outstanding
Obligations (or, if the Revolving Loan Commitments have terminated, the related
outstanding Obligations) hereunder to (i)(A) its parent company and/or any
Affiliate of such Lender which is at least 50% owned by such Lender or its
parent company or (B) to one or more other Lenders or


 


141

















 


any Affiliate of any such
other Lender which is at least 50% owned by such other Lender or its parent
company (provided that any fund that invests in loans and is managed or
advised by the same investment advisor of another fund which is a Lender (or by
an Affiliate of such investment advisor) shall be treated as an Affiliate of
such other Lender for the purposes of this sub-clause (x)(i)(B)), or (ii) in
the case of any Lender that is a fund that invests in loans, any other fund
that invests in loans and is managed or advised by the same investment advisor
as such Lender or by an Affiliate of such investment advisor or (y) assign
all, or if less than all, a portion equal to at least $1,000,000 (or such
lesser amount as the Administrative Agent and, so long as no Default under Section 12(a) and
no Event of Default then exists, the Borrower may otherwise agree) in the
aggregate in respect of the Term Loans and/or Term Loan Commitments and/or
$5,000,000 in the aggregate in respect of Revolving Loan Commitments for the
assigning Lender or assigning Lenders, (or, if the Revolving Loan Commitments
have terminated, the related outstanding Obligations) hereunder to one or more
Eligible Transferees (treating any fund that invests in loans and any other
fund that invests in loans and is managed or advised by the same investment
advisor of such fund or by an Affiliate of such investment advisor as a single
assignor or Eligible Transferee (as applicable) (if any)), each of which
assignees shall become a party to this Agreement as a Lender by execution of an
Assignment and Assumption Agreement, provided that (i) at such
time, Schedule 1.01A shall be deemed modified to reflect the Commitments
and/or outstanding Loans, as the case may be, of such new Lender and of the
existing Lenders, (ii) upon the surrender of the relevant Notes by the
assigning Lender (or, upon such assigning Lender’s indemnifying the Borrower
for any lost Note pursuant to a customary indemnification agreement) new Notes
will be issued, at the Borrower’s expense, to such new Lender and to the
assigning Lender upon the request of such new Lender or assigning Lender, such
new Notes to be in conformity with the requirements of Section 2.05 (with
appropriate modifications) to the extent needed to reflect the revised
Commitments and/or outstanding Loans, as the case may be, (iii) at any
time when both (x) B-1 Term Loan Commitments and B-1 Term Loans are
outstanding hereunder, each assignment by a given Lender pursuant to this
clause (b) shall be of a like percentage of the Total B-1 Term Loan
Commitment and then total outstanding principal amount of B-1 Term Loans and (y) B-2
Term Loan Commitments and B-2 Term Loans are outstanding hereunder, each
assignment by a given Lender pursuant to this clause (b) shall be of a
like percentage of the Total B-2 Term Loan Commitment and the then total
outstanding principal amount of B-2 Term Loans, (iv) the consent of the
Administrative Agent shall be required in connection with any such assignments
of Term Loan Commitments or Revolving Loan Commitments pursuant to clause (x) or
(y) (such consent, in any case, not to be unreasonably withheld, delayed
or conditioned), (v) so long as no Default under Sections 12(a) and
no Event of Default then exists and the Syndication Date (determined without
regard to clause (y) of the definition thereof) has theretofore occurred,
the consent of the Borrower shall be required in connection with any such
assignment of Revolving Loan Commitments pursuant to clause (x) or (y) above
(such consent, in any case, not to be unreasonably withheld, delayed or
conditioned), provided that the Borrower shall be deemed to have
consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within 5 Business Days after having received
notice thereof, and (vi) no such transfer or assignment will be effective
until recorded by the Administrative Agent on the Register pursuant to Section 14.15.  To the extent of any assignment pursuant to
this Section 14.04(b), the assigning Lender shall be relieved of its
obligations hereunder with respect to its assigned Commitments and Loans.  At the time of each assignment pursuant to
this Section 14.04(b) to a Person which is not


 


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already a Lender
hereunder, the respective assignee Lender shall, to the extent legally entitled
to do so, provide to the Borrower the appropriate Internal Revenue Service
Forms, certificates and other information (and, if applicable, a Section 5.04(b)(ii) Certificate)
described in Section 5.04(b).  To
the extent that an assignment of all or any portion of a Lender’s Commitments
and related outstanding Obligations pursuant to Section 2.13 or this Section 14.04(b) would,
at the time of such assignment, result in increased costs under Section 2.10,
3.06 or 5.04 from those being charged by the respective assigning Lender prior
to such assignment, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower, in accordance with and pursuant to the
other provisions of this Agreement, shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).


 


(c)           The Borrower shall also be entitled
to purchase (from Lenders) outstanding principal of Term Loans in accordance
with the provisions of Sections 2.14 and 2.15, which purchases shall be
evidenced by assignments (in form reasonably satisfactory to the Administrative
Agent) from the respective Lender to the Borrower.  No such assignment will be effective until
recorded by the Administrative Agent (in a manner consistent with the following
sentence) on the Register pursuant to Section 14.15.  All Loans purchased pursuant to Section 2.14
shall be immediately and automatically cancelled and retired, and the Borrower
shall in no event become a Lender hereunder. 
To the extent of any assignment to the Borrower as described in this
clause (c), the assigning Lender shall be relieved of its obligations hereunder
with respect to the assigned Term Loans.


 


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


 


(e)           Any Lender which assigns all of its
Commitments and/or Loans hereunder in accordance with Section 14.04(b) and/or
(c) shall cease to constitute a “Lender” hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation,
Sections 2.10, 2.11, 3.06, 5.04, 13.06, 14.01 and 14.06), with respect to
matters arising while it was a Lender which shall survive as to such assigning
Lender.


 


14.05.      No Waiver; Remedies Cumulative.  No failure or delay on the part of the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit
Party and the Administrative Agent, the Collateral Agent, any Issuing Lender or
any Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder.  The rights, powers and remedies herein or in
any other Credit Document expressly provided are cumulative and not exclusive
of any rights, powers or remedies which the Administrative Agent, the
Collateral Agent, any Issuing Lender or any


 


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Lender
would otherwise have.  No notice to or
demand on any Credit Party in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent, the Collateral
Agent, any Issuing Lender or any Lender to any other or further action in any
circumstances without notice or demand.


 


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


 


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


 


(c)           Notwithstanding anything to the
contrary contained herein, the provisions of the preceding Sections 14.06(a) and
(b) shall be subject to (x) the express provisions of this Agreement
which require, or permit, differing payments to be made to Non-Defaulting
Lenders as opposed to Defaulting Lenders, (y) the express provisions of
this Agreement which permit disproportionate payments with respect to various
of the Tranches as, and to the extent, provided herein, and (z) the
express provisions of Sections 2.14, 2.15, 4.02(b) and 14.12(b), which
permit disproportionate payments with respect to the Loans as, and to the
extent, provided therein.


 


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


 


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value
thereof and (ii) to the extent expressly provided herein, certain
calculations shall be made on a Pro  Forma Basis.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14.12.      Amendment or Waiver; etc.  (a)  Subject to the provisons of
following clause (c), neither this Agreement nor any other Credit Document nor
any terms hereof or thereof may be changed, waived, discharged or terminated
unless such change, waiver, discharge or termination is in writing signed by
the respective Credit Parties party hereto or thereto and the Required Lenders
(or the Administrative Agent at the direction of or with the consent of the
Required Lenders) (except that the Administrative Agent and the Borrower may enter
into any amendment of any Credit Document in order to correct any immaterial
technical error therein without the consent of the Credit Parties or the
Required Lenders), provided that no such change, waiver, discharge or
termination shall, without the consent of each Lender (other than a Defaulting
Lender), (i) release all or substantially all of (x) the Collateral
(except as expressly provided in the Credit Documents) under all the Security
Documents or (y) the guarantees under the Guaranty and Collateral
Agreement, (ii) amend, modify or waive any provision of this Section 14.12
(except for technical amendments with respect to additional extensions of
credit pursuant to this Agreement which afford the protections to such
additional extensions of credit of the type provided to the Term Loans and the
Revolving Loan Commitments on the Effective Date), (iii) reduce the “majority”
voting threshold specified in the definition of Required Lenders (it being
understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Effective Date) or (iv) consent to the assignment or transfer by Holdings
or the Borrower of any of its rights and obligations under this Agreement; provided
further, that no such change, waiver, discharge or termination shall (1) without
the consent of each Lender with Obligations being directly modified, extend the
final scheduled maturity of any Loan or Note or extend the stated expiration
date of any Letter of Credit beyond the Revolving Loan Maturity Date, or reduce
the rate or extend the time of payment of interest or Fees thereon (except in
connection with the waiver of applicability of any post-default increase in
interest rates), or reduce (or forgive) the principal amount thereof, (2) increase
the Commitments of any Lender over the amount thereof then in effect without
the consent of such Lender (it being understood that waivers or modifications
of conditions precedent, covenants, Defaults or Events of Default or of a
mandatory reduction in the Total Commitment or a mandatory repayment of Loans
shall not constitute an increase of the Commitment of any Lender, and that an
increase in the available portion of any Commitment of any Lender shall not
constitute an increase of the Commitment of such Lender), (3) without the
consent of each Issuing Lender, amend, modify or waive any provision of Section 3
or alter its rights or obligations with respect to Letters of Credit, (4) without
the consent of the Swingline Lender, alter the Swingline Lender’s rights or
obligations with respect to Swingline Loans, (5) without the consent of
the Administrative Agent, amend, modify or waive any provision of Section 13
or any other provision as same relates to the rights or obligations of the
Administrative Agent, (6) without the consent of Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of the
Collateral Agent, (7) except in cases where additional extensions of term
loans and/or revolving loans are being afforded substantially the same
treatment afforded to the Term Loans and Revolving Loans pursuant to this
Agreement on the Effective Date, without the consent of the Majority Lenders of
each Tranche which is being allocated a lesser prepayment, repayment


 


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or
commitment reduction, alter the required application of any prepayments or
repayments (or commitment reduction), as between the various Tranches, pursuant
to Section 5.02(g) (it being understood, however, that the Required
Lenders may waive, in whole or in part, any such prepayment, repayment or
commitment reduction, so long as the application, as amongst the various
Tranches, of any such prepayment, repayment or commitment reduction which is
still required to be made is not altered), (8) without the consent of the
Majority Lenders of the respective Tranche affected thereby, amend the
definition of Majority Lenders (it being understood that, with the consent of
the Required Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Majority Lenders on
substantially the same basis as the extensions of Loans and Commitments are
included on the Effective Date), (9) without the written consent of the
Majority Lenders with Revolving Loans and/or Revolving Loan Commitments, amend,
modify or waive any condition precedent set forth in Section 8 with
respect to the making of Revolving Loans, Swingline Loans or the issuance of
Letters of Credit, or (10) reduce the amount of, or extend the date of,
any Scheduled Term Loan Repayment without the consent of each TL Lender with
Obligations being directly affected thereby.


 


(b)           If, in connection with any proposed
change, waiver, discharge or termination of or to any of the provisions of this
Agreement as contemplated by clauses (i) through (iv), inclusive, of the
first proviso to Section 14.12(a), the consent of the Required Lenders is
obtained but the consent of one or more of such other Lenders whose consent is
required is not obtained, then the Borrower shall have the right, so long as
all non-consenting Lenders whose individual consent is required are treated as
described in either clause (A) or (B) below, to either (A) replace
each such non-consenting Lender or Lenders (or, at the option of the Borrower,
if the respective Lender’s consent is required with respect to less than all
Tranches of Loans (or related Commitments), to replace only the Commitments
and/or Loans of the respective non-consenting Lender in the relevant Tranche(s) which
gave rise to the need to obtain such Lender’s individual consent) with one or
more Replacement Lenders pursuant to Section 2.13 so long as at the time
of such replacement, each such Replacement Lender consents to the proposed
change, waiver, discharge or termination or (B) terminate such
non-consenting Lender’s Revolving Loan Commitment (if such Lender’s consent is
required as a result of its Revolving Loan Commitment) and/or repay each
Tranche of outstanding Loans of such Lender which gave rise to the need to
obtain such Lender’s consent and/or cash collateralize its applicable RL
Percentage of the Letter of Credit of Outstandings, in accordance with
Sections 4.02(b) and/or 5.01(b), provided that, unless the
Commitments which are terminated and Loans which are repaid pursuant to
preceding clause (B) are immediately replaced in full at such time
through the addition of new Lenders or the increase of the Commitments and/or
outstanding Loans of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause (B),
the Required Lenders (determined after giving effect to the proposed action)
shall specifically consent thereto, provided further, that the Borrower
shall not have the right to replace a Lender, terminate its Commitment or repay
its Loans solely as a result of the exercise of such Lender’s rights (and the
withholding of any required consent by such Lender) pursuant to the second
proviso to Section 14.12(a) (unless pursuant to clause (1) thereof).


 


(c)           Notwithstanding anything to contrary
contained above in this Section 14.12 or elsewhere in this Agreement or
any other Credit Document, the following modifications


 


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may be made, and actions
taken, by the Administrative Agent, in each case without the consent of any
Credit Party (except as expressly required below) or the Required Lenders or
any other group of Lenders (with all capitalized terms used in clauses (i) through
(v) below, if not otherwise defined herein, being used herein as defined
in the Intercreditor Agreement):


 


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


 


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


 


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


 


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


 


(v)           if
at any time after a termination of the Intercreditor Agreement has occurred as
permitted by preceding clause (iv), if the Borrower or Holdings wishes to incur
Specified Indebtedness which would otherwise be permitted to be secured by the
Collateral in accordance with the requirements of this Agreement and become
party to the Intercreditor Agreement as contemplated by preceding clause (i),
Administrative Agent shall, at the request of the Borrower, enter into a new
Intercreditor Agreement in substantially the form of the original Intercreditor
Agreement (with such changes as are otherwise permitted above in this clause
(c)), and may enter into same so long as,


 


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concurrently therewith, the respective Intercreditor Agreement is
executed and delivered by all Credit Parties and by the respective Second-Lien
Authorized Representative on behalf of the holders of such Specified
Indebtedness;


 


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


 


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


 


14.13.      Survival.  All indemnities set forth herein including,
without limitation, in Sections 2.10, 2.11, 3.06, 5.04, 13.06 and 14.01 shall
survive the execution, delivery and termination of this Agreement and the Notes
and the making and repayment of the Obligations.


 


14.14.      Domicile of Loans.  Each
Lender may transfer and carry its Loans at, to or for the account of any
office, Subsidiary or Affiliate of such Lender. 
Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 14.14 would, at the time
of such transfer, result in increased costs under Section 2.10, 2.11, 3.06
or 5.04 from those being charged by the respective Lender prior to such
transfer, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the
respective transfer).


 


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


 


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Assumption
Agreement or agreement pursuant to Section 14.04(c) to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Loan, or as soon thereafter as practicable, the assigning
or transferor Lender shall surrender the Note (if any) evidencing such Loan,
and thereupon (in the case of an assignment pursuant to Section 14.04(b)),
one or more new Notes in the same aggregate principal amount shall be issued to
the assigning or transferor Lender and/or the new Lender at the request of any
such Lender.  The Borrower agrees to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this Section 14.15.


 


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


 


(b)           Each of Holdings and the Borrower
hereby acknowledges and agrees that each Lender may share with any of its
affiliates, and such affiliates may share with such Lender, any information
related to Holdings or any of its Subsidiaries (including, without limitation,
any non-public customer information regarding the creditworthiness of Holdings
and its


 


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Subsidiaries), provided
such Persons shall be subject to the provisions of this Section 14.16 to
the same extent as such Lender.


 


14.17.      Patriot Act.  Each Lender subject to the Patriot Act hereby
notifies Holdings and the Borrower that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies Holdings, the Borrower and the other Credit Parties and other
information that will allow such Lender to identify Holdings, the Borrower and
the other Credit Parties in accordance with the Patriot Act.


 


14.18.      OTHER LIENS ON COLLATERAL; TERMS OF
INTERCREDITOR AGREEMENT; ETC.  (a) 
EACH LENDER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT LIENS SHALL BE CREATED ON
THE COLLATERAL PURSUANT TO THE CREDIT DOCUMENTS AND THE BRIDGE LOAN DOCUMENTS
(AND IN THE FUTURE MAY BE CREATED ON THE COLLATERAL WITH RESPECT TO ONE OR
MORE ADDITIONAL SERIES OF INDEBTEDNESS IN ACCORDANCE WITH THE TERMS HEREOF AND
THE INTERCREDITOR AGREEMENT), WHICH LIENS SHALL BE SUBJECT TO THE TERMS AND
CONDITIONS OF THE INTERCREDITOR AGREEMENT. 
IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR
AGREEMENT AND ANY OF THE CREDIT DOCUMENTS, THE PROVISIONS OF THE INTERCREDITOR
AGREEMENT SHALL GOVERN AND CONTROL.


 


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


 


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


 


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


 


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(b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.


 


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


 


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


 


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


 


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


 


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


 


SECTION 15.         Holdings Guaranty.


 


15.01.      Guaranty.  In order to induce the Administrative Agent,
the Collateral Agent, the Issuing Lenders and the Lenders to enter into this
Agreement and to extend credit hereunder, and to induce the other Guaranteed
Creditors to enter into Interest Rate Protection Agreements, Other Hedging
Agreements and Cash Management Agreements and in recognition of the direct
benefits to be received by Holdings from the proceeds of the Loans, the issuance
of the Letters of Credit and the entering into of such Interest Rate Protection
Agreements, Other Hedging Agreements and Cash Management Agreements, Holdings
hereby agrees with the Guaranteed Creditors as follows:  Holdings hereby unconditionally and irrevocably
guarantees as primary obligor and not merely as surety the full and prompt
payment when due, whether upon maturity, acceleration or otherwise, of any and
all of the Guaranteed Obligations of the Guaranteed Parties to the Guaranteed
Creditors.  If any or all of the
Guaranteed Obligations of


 


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


 


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


 


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


 


15.04.      Independent Obligation.  The obligations of Holdings hereunder are
independent of the obligations of any other guarantor, any other party or any
Guaranteed Party, and a separate action or actions may be brought and
prosecuted against Holdings whether or not action is brought against any other
guarantor, any other party or any Guaranteed Party and whether or not any other
guarantor, any other party or any Guaranteed Party be joined in any such action
or actions.  Holdings waives, to the
fullest extent permitted by law, the benefit of any


 


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statute
of limitations affecting its liability hereunder or the enforcement
thereof.  Any payment by any Guaranteed
Party or other circumstance which operates to toll any statute of limitations
as to such Guaranteed Party shall operate to toll the statute of limitations as
to Holdings.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


157

















 


limitation, any rights or defenses based upon Sections 580a, 580d or
726 of the California Code of Civil Procedure); and


 


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


 


(e)           Holdings warrants and agrees that
each of the waivers set forth above is made with full knowledge of its
significance and consequences and that if any of such waivers are determined to
be contrary to any applicable law of public policy, such waivers shall be
effective only to the maximum extent permitted by law.


 


15.09.      Payments.  All payments made by Holdings pursuant to
this Section 15 shall be made in Dollars and will be made without setoff,
counterclaim or other defense, and shall be subject to the provisions of
Sections 5.03 and 5.04.


 


*     *     *


 


158
















 


IN WITNESS WHEREOF, the
parties hereto have caused their duly authorized officers to execute and
deliver this Agreement as of the date first above written.


 


 


	
   

  	
  CF INDUSTRIES
  HOLDINGS, INC., as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen R.
  Wilson

  
	
   

  	
  Name: Stephen R.
  Wilson

  
	
   

  	
  Title: President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  CF INDUSTRIES,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen R.
  Wilson

  
	
   

  	
  Name: Stephen R.
  Wilson

  
	
   

  	
  Title: President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  MORGAN STANLEY
  SENIOR FUNDING, INC.,

  
	
   

  	
  Individually
  as a Lender and as Administrative Agent, Collateral Agent and a Lead Arranger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin
  Emerson

  
	
   

  	
  Name: Kevin
  Emerson

  
	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  TOKYO-MITSUBISHI UFJ, LTD.,

  
	
   

  	
  Individually
  as a Lender and as a Lead Arranger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ L. Bresser

  
	
   

  	
  Name: L. Bresser

  
	
   

  	
  Title: Senior
  Vice President and Manager

  



 

















 


	
   

  	
  SIGNATURE PAGE
  TO THE CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG CF
  INDUSTRIES HOLDINGS, INC., CF INDUSTRIES, INC., THE LENDERS PARTY HERETO FROM
  TIME TO TIME, MORGAN STANLEY SENIOR FUNDING, INC., AS ADMINISTRATIVE AGENT
  AND COLLATERAL AGENT

  
	
   

  	
   

  
	
   

  	
  NAME OF INSTITUTION:

   

  MORGAN STANLEY
  BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin
  Emerson

  
	
   

  	
  Name: Kevin
  Emerson

  
	
   

  	
  Title:
  Authorized Signatory