exv4w1






Exhibit 4.1




EXECUTION VERSION




      




REVOLVING CREDIT AGREEMENT




dated as of




September 2, 2010




among




CORN PRODUCTS INTERNATIONAL, INC.,




The Lenders Party Hereto,




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent,




BANK OF MONTREAL,

as Syndication Agent




and




BANK OF AMERICA, N.A. and

CITIBANK, N.A.,

as Co-Documentation Agents




 






J.P. MORGAN SECURITIES LLC,

as Sole Bookrunner and Sole Lead Arranger




      




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I Definitions
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	18	 
	SECTION 1.03. Terms Generally
	 	 	18	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	19	 
	SECTION 1.05. Foreign Currency Calculations
	 	 	19	 
	 
	 	 	 	 
	ARTICLE II The Credits
	 	 	20	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	20	 
	SECTION 2.02. Loans and Borrowings
	 	 	20	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	21	 
	SECTION 2.04. [Intentionally Omitted]
	 	 	22	 
	SECTION 2.05. Swingline Loans
	 	 	22	 
	SECTION 2.06. Letters of Credit
	 	 	23	 
	SECTION 2.07. Funding of Borrowings
	 	 	27	 
	SECTION 2.08. Interest Elections
	 	 	28	 
	SECTION 2.09. Termination, Reduction and Increase of Commitments
	 	 	29	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt
	 	 	31	 
	SECTION 2.11. Prepayment of Loans
	 	 	32	 
	SECTION 2.12. Fees
	 	 	32	 
	SECTION 2.13. Interest
	 	 	33	 
	SECTION 2.14. Alternate Rate of Interest; Illegality
	 	 	34	 
	SECTION 2.15. Increased Costs
	 	 	35	 
	SECTION 2.16. Break Funding Payments
	 	 	36	 
	SECTION 2.17. Taxes
	 	 	37	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	39	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	41	 
	SECTION 2.20. Defaulting Lenders
	 	 	42	 
	 
	 	 	 	 
	ARTICLE III Representations and Warranties
	 	 	43	 
	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	43	 
	SECTION 3.02. Authorization; Enforceability
	 	 	44	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	44	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	44	 
	SECTION 3.05. Properties
	 	 	44	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	45	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	45	 
	SECTION 3.08. Investment Company Status
	 	 	45	 
	SECTION 3.09. Taxes
	 	 	45	 
	SECTION 3.10. ERISA
	 	 	45	 






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	 	 	Page	 
	SECTION 3.11. Disclosure
	 	 	46	 
	SECTION 3.12. Regulation U
	 	 	46	 
	SECTION 3.13. Labor Relations
	 	 	46	 
	SECTION 3.14. OFAC
	 	 	46	 
	SECTION 3.15. Patriot Act/Anti-Terrorism Controls
	 	 	47	 
	 
	 	 	 	 
	ARTICLE IV Conditions
	 	 	47	 
	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	47	 
	SECTION 4.02. Each Credit Event
	 	 	48	 
	 
	 	 	 	 
	ARTICLE V Affirmative Covenants
	 	 	49	 
	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	49	 
	SECTION 5.02. Notices of Material Events
	 	 	51	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	51	 
	SECTION 5.04. Payment of Obligations
	 	 	51	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	52	 
	SECTION 5.06. Books and Records; Inspection Rights
	 	 	52	 
	SECTION 5.07. Compliance with Laws
	 	 	52	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	52	 
	 
	 	 	 	 
	ARTICLE VI Negative Covenants
	 	 	53	 
	 
	 	 	 	 
	SECTION 6.01. Indebtedness
	 	 	53	 
	SECTION 6.02. Liens
	 	 	54	 
	SECTION 6.03. Fundamental Changes; Asset Sales; Change in Nature of Business
	 	 	55	 
	SECTION 6.04. Restricted Payments
	 	 	56	 
	SECTION 6.05. Transactions with Affiliates
	 	 	56	 
	SECTION 6.06. Restrictive Agreements
	 	 	56	 
	SECTION 6.07. Maximum Leverage Ratio
	 	 	57	 
	SECTION 6.08. Minimum Interest Coverage Ratio
	 	 	57	 
	 
	 	 	 	 
	ARTICLE VII Events of Default
	 	 	57	 
	 
	 	 	 	 
	ARTICLE VIII The Administrative Agent
	 	 	59	 
	 
	 	 	 	 
	ARTICLE IX Miscellaneous
	 	 	61	 
	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	61	 
	SECTION 9.02. Waivers; Amendments
	 	 	62	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	64	 
	SECTION 9.04. Successors and Assigns
	 	 	65	 
	SECTION 9.05. Survival
	 	 	68	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	68	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 9.07. Severability
	 	 	69	 
	SECTION 9.08. Right of Setoff
	 	 	69	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	69	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	70	 
	SECTION 9.11. Headings
	 	 	70	 
	SECTION 9.12. Confidentiality
	 	 	70	 
	SECTION 9.13. Interest Rate Limitation
	 	 	71	 
	SECTION 9.14. USA PATRIOT Act
	 	 	71	 
	SECTION 9.15. Conversion of Currencies
	 	 	72	 
	 
	 	 	 	 
	SCHEDULES:
	 	 	 	 
	 
	 	 	 	 
	Schedule 1.01 — Pricing Schedule
	 	 	 	 
	Schedule 2.01 — Commitments
	 	 	 	 
	Schedule 6.01 — Existing Borrower Indebtedness
	 	 	 	 
	Schedule 6.02 — Existing Liens
	 	 	 	 
	Schedule 6.06 — Existing Restrictions
	 	 	 	 
	 
	 	 	 	 
	EXHIBITS:
	 	 	 	 
	 
	 	 	 	 
	Exhibit A — Form of Assignment and Assumption
	 	 	 	 
	Exhibit B — Mandatory Cost
	 	 	 	 






iii









 






          CREDIT AGREEMENT dated as of September 2, 2010, among CORN PRODUCTS INTERNATIONAL, INC., the
LENDERS party hereto from time to time and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as
Administrative Agent.




          The parties hereto agree as follows:




ARTICLE I




Definitions



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




          “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.




          “Acquisition” means the acquisition by the Borrower and/or one or more of its
Subsidiaries of the specialty starch business (the “Business”) of Akzo Nobel N.V. (the
“Seller”), which Business is comprised of certain assets of the Seller and its subsidiaries
(including equity interests in certain of the Seller’s subsidiaries), for an aggregate cash
purchase price of approximately $1,300,000,000.




          “Acquisition Agreement” means the International Share and Business Sale Agreement
between the Borrower and the Seller dated June 19, 2010.




          “Act” has the meaning set forth in Section 9.14.




          “Adjusted Eurocurrency Rate” means, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum equal to the sum of (a) (i) the Eurocurrency Rate for
such Interest Period multiplied by (ii) the Statutory Reserve Rate plus (b), if applicable,
in the case of Eurocurrency Loans by a Lender from its office or branch in the United Kingdom, the
Mandatory Cost.




          “Administrative Agent” means JPMorgan, in its capacity as administrative agent for the
Lenders hereunder.




          “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.




          “Advance” means any Loan or any Letter of Credit.




          “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.




          “Agreement” means this Credit Agreement, as amended, restated, modified or
supplemented from time to time.







1









 








          “Agreement Currency” shall have the meaning assigned to such term in Section
9.15(b).




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted Eurocurrency Rate for a one month Interest Period on
such day (or if such day is not a Business Day, the immediately preceding Business Day)
plus 1%, provided that, for the avoidance of doubt, the Adjusted Eurocurrency Rate
for any Business Day shall be based on the rate appearing on the Reuters Screen LIBOR01 Page 1 (or
on any successor or substitute page of such page) at approximately 11:00 a.m. London time on such
day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds
Effective Rate or the Adjusted Eurocurrency Rate shall be effective from and including the
effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted
Eurocurrency Rate, respectively.




          “Applicable Creditor” shall have the meaning assigned to such term in Section
9.15(b).




          “Applicable Lending Installation” is defined in Section 2.02(e).




          “Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment; provided that in the case of
Section 2.20 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the
percentage of the total Commitments (disregarding any Defaulting Lender’s Commitment) represented
by such Lender’s Commitment. If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in effect, giving effect
to any assignments and to any Lender’s status as a Defaulting Lender at the time of determination.




          “Applicable Rate” means, for any day, with respect to any Eurocurrency Loan or ABR
Loan or with respect to the commitment fees payable hereunder, the applicable rate per annum set
forth on Schedule 1.01 under the caption “Eurocurrency Spread”, “ABR Spread” or “Commitment
Fee Rate”, as the case may be, based upon the Leverage Ratio.




          “Approved Fund” has the meaning assigned to such term in Section 9.04.




          “Asset Disposition” means any sale, transfer or other disposition of any asset of the
Borrower or any Subsidiary (including any Equity Interests in any Subsidiaries, whether existing as
of the date hereof or newly issued and any assets disposed of pursuant to any Sale and Leaseback
Transaction) in a single transaction or in a series of related transactions for aggregate
consideration of $25,000,000 or more (other than (a) the sale of inventory in the ordinary course
of business or the sale, transfer or other disposition in the ordinary course of business of
property determined to be obsolete or no longer useful, (b) the sale, transfer or other disposition
of cash or cash equivalent investments, (c) the sale, transfer or other disposition of accounts
receivable originated by the Borrower or any Subsidiary that are subject to a Permitted
Securitization or in connection with the compromise, settlement or collection thereof and (d)
sales, transfers or other dispositions (including loans or advances) among the Borrower and its
Subsidiaries).







2









 








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




          “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.




          “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts
or agreements made by such Person.




          “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.




          “Borrowed Debt” of any Person means the sum of (a) all obligations of such Person for
borrowed money and obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, plus (b) all Receivables Transaction Attributed Indebtedness of such
Person, plus (c) all obligations, contingent or otherwise, of such Person in respect of
letters of credit, letters of guaranty, bankers’ acceptances or similar extensions of credit,
plus (d) all Capital Lease Obligations of such Person, plus (e) any monetary
obligation of such Person under a synthetic, off-balance sheet or tax retention lease or any other
monetary obligation arising under a similar transaction, plus (f) all Guarantees by such
Person of Borrowed Debt of others.




          “Borrower” means Corn Products International, Inc., a Delaware corporation.




          “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in
effect or (b) a Swingline Loan.




          “Borrowing Request” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03.




          “Business” has the meaning set forth in the definition of Acquisition.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;






3









 







provided that (a) with respect to notices and determinations in connection with, and
payments of principal and interest on, Eurocurrency Loans or Letters of Credit denominated in a
Foreign Currency, such day is also a day (i) open for general business in the principal financial
center of the relevant jurisdiction and (ii) open for general business in London and (b) with
respect to notices and determinations in connection with, and payments of principal and interest
on, Loans denominated in Euros, such day is also a day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer System (T) (or, if such clearing system ceases to be
operative, such other clearing system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for settlement of payment in Euros.




          “Canadian Dollars” and “Cdn$” mean the lawful currency of Canada.




          “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.




          “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of Equity Interests representing more than 30% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Borrower (i) by
Persons who were neither (A) nominated by the board of directors of the Borrower nor (B) appointed
by a majority of directors so nominated or (ii) by Persons who were so nominated or appointed in
anticipation of or in connection with a merger or consolidation of the Borrower; or (c) the
acquisition of direct or indirect Control of the Borrower by any Person or group.




          “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any
lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any)
with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement; provided,
however, that for purposes of this Agreement, the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, guidelines or directives in connection therewith
are deemed to have gone into effect and adopted the day after the date of this Agreement.




          “Charges” has the meaning set forth in Section 9.13.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.







4









 








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




          “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced or increased from time to time pursuant
to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Commitment
is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such
Lender shall have assumed its Commitment, as applicable. The initial aggregate amount of the
Lenders’ Commitment is $1,000,000,000.




          “Consolidated EBITDA” means, for any period, an amount equal to consolidated net
income (or net loss) of the Borrower and its Subsidiaries plus, to the extent deducted in
determining consolidated net income (or net loss) for such period, the sum of (a) net interest
expense, (b) income tax expense, (c) depreciation expense, (d) amortization expense, (e)
non-recurring, non-cash charges and non-cash restructuring charges, (f) net income attributable to
non-controlling interests and (g) fees and expenses incurred in connection with the Acquisition or
the financing thereof, minus, to the extent included in determining consolidated net income
(or net loss) for such period, the sum of (y) net loss attributable to non-controlling interests
and (z) non-recurring, non-cash gains and non-cash restructuring gains, in each case determined in
accordance with GAAP by reference to the consolidated financial statements of the Borrower required
to be delivered pursuant to the Credit Documents. If the Borrower or a Subsidiary consummates or
has consummated an acquisition or a disposition at any time since the commencement of such period
but on or prior to the applicable date of determination, then, for the purposes of calculating the
financial covenants set forth in Sections 6.07 and 6.08 for the applicable period,
Consolidated EBITDA for such period shall be adjusted on a pro forma basis to give effect to such
acquisition or disposition as though such acquisition or disposition had been consummated as of the
first day of such period; provided that, with respect to any acquisition, such pro forma
adjustments (including any pro rated amounts necessary to give effect to such acquisition for all
of such period) shall, with respect to the acquired entity or business, be based on the financial
information (such as internal monthly reports) available to (and in good faith relied upon by) the
Borrower. Notwithstanding anything to the contrary contained herein, Consolidated EBITDA (adjusted
for the Acquisition on a pro forma basis) shall be deemed to be (in each case, without regard to
the final publicly reported financial information of the Borrower) (i) $149,000,000 for the fiscal
quarter ended September 30, 2009 (ii) $185,000,000 for the fiscal quarter ended December 31, 2009,
(iii) $150,000,000 for the fiscal quarter ended March 31, 2010, (iv) $203,000,000 for the fiscal
quarter ended June 30, 2010 and (v) if the closing of the Acquisition shall occur during the fiscal
quarter ending December 31, 2010, for the fiscal quarter ended September 30, 2010, an amount
calculated by the Borrower in a manner consistent with the calculation of the deemed adjusted
Consolidated EBITDA amounts set forth in clauses (i) — (iv) above and reasonably acceptable to the
Administrative Agent.




          “Consolidated Net Assets” means, as of the date of any determination thereof, total
assets of the Borrower and its Subsidiaries calculated in accordance with GAAP on a consolidated
basis as of such date minus goodwill of the Borrower and its Subsidiaries as of such date.







5









 








          “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. “Controlling” and “Controlled” have meanings
correlative thereto.




          “Credit Documents” means this Agreement and, after the execution and delivery thereof
pursuant to the terms of this Agreement, each promissory note, if any, delivered pursuant to
Section 2.10(e).




          “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” means any Lender that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans or participations in
Letters of Credit or Swingline Loans or (ii) pay over to any Specified Party any other amount
required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies
the Administrative Agent in writing that such failure is the result of such Lender’s good faith
determination that a condition precedent to funding (specifically identified and including the
particular default, if any) has not been satisfied, (b) has notified the Borrower or any Specified
Party in writing, or has made a public statement to the effect, that it does not intend or expect
to comply with any of its funding obligations under this Agreement (unless such writing or public
statement indicates that such position is based on such Lender’s good faith determination that a
condition precedent (specifically identified and including the particular default, if any) to
funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in
which it commits to extend credit, (c) has failed, within three Business Days after reasonable
request by a Specified Party, acting in good faith, to provide a certification in writing from an
authorized officer of such Lender that it will comply with its obligations (and is financially able
to meet such obligations) to fund prospective Loans and participations in then outstanding Letters
of Credit and Swingline Loans, provided that such Lender shall cease to be a Defaulting
Lender pursuant to this clause (c) upon such Specified Party’s receipt of such certification in
form and substance reasonably satisfactory to it and the Administrative Agent, or (d) has become
the subject of a Bankruptcy Event at a time it has an unfunded Commitment.




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




          “Dollar Equivalent” means, on any date of determination (a) with respect to any amount
in Dollars, such amount, and (b) with respect to any amount in any Foreign Currency, the equivalent
in Dollars of such amount, determined by the Administrative Agent pursuant to Section 1.05
using the Exchange Rate with respect to such Foreign Currency at the time in effect under the
provisions of such Section.




          “Effective Date” means the date on which the conditions specified in Section
4.01 are satisfied (or waived in accordance with Section 9.02).




          “Electronic Delivery” has the meaning set forth in Section 5.01.







6









 








          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments or binding agreements issued, promulgated or entered into by or with any
Governmental Authority, relating to the environment, 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 generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure 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, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.




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




          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.




          “ERISA Event” means (a) any Plan shall fail to satisfy the minimum funding standards
of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension
of any amortization period is sought or granted under section 412 of the Code, (b) a notice of
intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or
the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a
trustee to administer any Plan or the PBGC shall have notified the Borrower or any ERISA Affiliate
that a Plan may become a subject of such proceedings, (c) the Borrower or any ERISA Affiliate shall
have incurred, or is reasonably expected to incur, any liability pursuant to Title I or Title IV of
ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans or (d)
the Borrower or any ERISA Affiliate withdraws from any Multiemployer Plan.




          “Euro” or “€” means the single currency unit of the Participating Member
States.




          “Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted Eurocurrency Rate.




          “Eurocurrency Rate” means, (a) with respect to any Eurocurrency Borrowing denominated
in Dollars or any Foreign Currency other than Euro for any Interest Period, the rate per annum
determined by the Administrative Agent at 11:00 a.m., London time, on the Quotation






7









 







Day for such Interest Period by reference to the British Bankers’ Association Interest
Settlement Rates for deposits in the currency of such Borrowing (as reflected on the applicable
Reuters Screen LIBOR01 Page 1 (or on any successor or substitute page of such page)), for a period
equal to such Interest Period and (b) with respect to any Eurocurrency Borrowing denominated in
Euros for any Interest Period, the rate appearing on the Reuters Screen EURIBOR01 Page (it being
understood that this rate is the Euro interbank offered rate (known as the “EURIBOR Rate”)
sponsored by the Banking Federation of the European Union and the Financial Markets Association) at
11:00 a.m., Brussels time, on the Quotation Day for such Interest Period, as the rate for deposits
in Euros with a maturity comparable to such Interest Period. To the extent that an interest rate
is not ascertainable pursuant to the foregoing provisions of this definition, the “Eurocurrency
Rate” shall be the average (rounded upward, if necessary, to the next 1/100 of 1%) determined by
the Administrative Agent of the respective interest rates per annum reported to the Administrative
Agent by JPMorgan and each other Lender selected by the Administrative Agent (JPMorgan and each
such other Lender, the “Reference Lenders”) as the rate at which each Reference Lender
offers to place deposits in the currency of such Borrowing for such Interest Period to first-class
banks in the London interbank market at approximately 11:00 a.m., London time, on the Quotation Day
for such Interest Period.




          “Event of Default” has the meaning assigned to such term in Article VII.




          “Exchange Rate” means on any day, for purposes of determining the Dollar Equivalent of
any currency other than Dollars, the rate at which such currency may be exchanged into Dollars at
11:00 a.m. Local Time on such day on the Reuters Currency pages, if available, for such currency.
In the event that such rate does not appear on any Reuters Currency pages, the Exchange Rate shall
be determined by reference to such other publicly available service for displaying exchange rates
as may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange
of the Administrative Agent in the market where its foreign currency exchange operations in respect
of such currency are then being conducted, at or about such time as the Administrative Agent shall
elect after determining that such rates shall be the basis for determining the Exchange Rate, on
such date for the purchase of Dollars for delivery two Business Days later; provided that
if at the time of any such determination, for any reason, no such spot rate is being quoted, after
consultation with the Borrower, the Administrative Agent may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be conclusive absent manifest
error.




          “Exchange Rate Date” means, if on such date any outstanding Loan or Letter of Credit
is (or any Loan or Letter of Credit that has been requested at such time would be) denominated in a
currency other than Dollars, each of:




          (a) the last Business Day of each fiscal quarter of the Borrower,




          (b) if an Event of Default has occurred and is continuing, any Business Day designated as an
Exchange Rate Date by the Administrative Agent in its sole discretion, and




          (c) each date (with such date to be reasonably determined by the Administrative Agent) that is
on or about the date of (i) a Borrowing Request or an Interest Election Request






8









 







with respect to any Revolving Borrowing or (ii) each request for the issuance, amendment,
renewal or extension of any Letter of Credit.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located or by any other jurisdiction as a result of a present or
former connection between such recipient and such jurisdiction (other than any such connection
arising as a result of such recipient having executed, delivered or performed its obligations or
received a payment under, or enforced, any of the Credit Documents), (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other jurisdiction in
which the Borrower is organized or in which its principal office is located, (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
2.19(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender’s failure to comply with Section 2.17(e), except to
the extent that such Foreign 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
Borrowers with respect to such withholding tax pursuant to Section 2.17(a), (d) backup
withholding that is required to be withheld from amounts payable to any Lender that has failed to
comply with Section 2.17(e) (other than backup withholding imposed as a result of a Change
in Law) and (e) Taxes imposed under FATCA.




          “Existing Credit Agreement” means that certain Revolving Credit Agreement dated April
26, 2006 among the Borrower, Canada Starch Operating Company Inc., SunTrust Bank, as administrative
agent, and the lenders party thereto.




          “Farm Credit System” means a federally chartered network of borrower-owned lending
institutions comprised of cooperatives and related service organizations.




          “FATCA” means Sections 1471 through 1474 of the Code and any regulations or official
interpretations thereof (including any Revenue Ruling, Revenue Procedure, Notice or similar
guidance issued by the U.S. Internal Revenue Service thereunder as a precondition to relief or
exemption from Taxes under such provisions).




          “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.







9









 








          “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.




          “Foreign Currency” means (a) with respect to any Revolving Loan, Euros, Sterling,
Canadian Dollars and any other currency other than Dollars acceptable to the Administrative Agent
and each of the Lenders that is freely available, freely transferable and freely convertible into
Dollars and in which dealings in deposits are carried on in the London interbank market and (b)
with respect to any Letter of Credit, any currency other than Dollars acceptable to the
Administrative Agent that is freely available, freely transferable and freely convertible into
Dollars, and agreed to by the Issuing Bank issuing such Letter of Credit.




          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is organized. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.




          “Foreign Subsidiary” means any Subsidiary that is incorporated or organized under the
laws of any jurisdiction other than the United States of America, any State thereof or the District
of Columbia.




          “GAAP” means generally accepted accounting principles in the United States of America.




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




          “Guarantee” of or by any Person (the “guarantor”) means any direct or indirect
liability, contingent or otherwise, of the guarantor with respect to any Indebtedness or other
obligation of another Person (the “primary obligor”), including, without limitation, any
such obligation directly or indirectly guaranteed by the guarantor, or in respect of which the
guarantor is otherwise directly or indirectly liable, including, without limitation, any such
obligation in effect guaranteed by the guarantor through any agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise), or to maintain the solvency or any balance
sheet or other financial condition of the primary obligor of such obligation. The amount of any
Guarantee made by any guarantor shall be deemed to be the lower of (a) an amount equal to the
stated or determinable amount of the primary obligation in respect of which such Guarantee is made
and (b) the maximum amount for which such guarantor may be liable pursuant to the terms of the
instrument embodying such Guarantee, unless (in the case of a primary obligation that is not
Indebtedness) such primary obligation and the maximum amount for which such guarantor may be liable
are not stated or determinable, in which case the amount of such Guarantee shall be such
guarantor’s maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.







10









 








          “Hazardous Materials” means all petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, radon gas and any other
chemicals, materials or substances designated, classified or regulated as being “hazardous” or
“toxic,” or words of similar import, under any Environmental Law.




          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (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 trade payables
incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, provided that to the extent recourse is limited to recovery
against a specific asset, the amount of such Indebtedness shall be the lesser of (X) the amount of
any such Lien and (Y) the fair market value of such asset, (g) all Guarantees by such Person of
Indebtedness of others, (h) 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) all Receivables Transaction Attributed Indebtedness of such Person, (l)
all net obligations of such Person under any Swap Agreement and (m) any monetary obligation of such
Person under a synthetic, off-balance sheet or tax retention lease or any other monetary obligation
arising under a similar transaction.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Information Memorandum” means the Confidential Information Memorandum dated July 2010
relating to the Borrower and the Transactions.




          “Interest Coverage Ratio” means as of the end of any fiscal quarter of the Borrower,
the ratio of Consolidated EBITDA to net interest expense of all Indebtedness of the Borrower and
its Subsidiaries, in each case for the period of the four fiscal quarters then ended, computed on a
consolidated basis for the Borrower and its Subsidiaries.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.08.




          “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months’ duration after the first day of such Interest Period and (c) with
respect to any Swingline Loan, the day that such Loan is required to be repaid.







11









 








          “Interest Period” means with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months (or, to the extent available to all Lenders,
nine or twelve months) thereafter, as the Borrower may elect; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a Eurocurrency Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurocurrency Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.




          “Issuing Bank” means JPMorgan, in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section 2.06(i). The Issuing
Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.




          “JPMEL” means J.P. Morgan Europe Limited and its successors.




          “JPMorgan” means JPMorgan Chase Bank, National Association, a national banking
association, and its successors.




          “Judgment Currency” shall have the meaning assigned to such term in Section
9.15(b).




          “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.




          “Lead Arranger” means J.P. Morgan Securities LLC, as Sole Lead Arranger and Sole Lead
Bookrunner.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that
shall have become a party hereto pursuant to an Assignment and Assumption or pursuant to
Section 2.09(d), other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the
Swingline Lender.




          “Letter of Credit” means any letter of credit issued pursuant to this Agreement.







12









 








          “Leverage Ratio” means, as of any Measurement Date, the ratio of Net Borrowed Debt as
of such Measurement Date to Consolidated EBITDA for the most recently completed four fiscal
quarters of the Borrower, computed on a consolidated basis for the Borrower and its Subsidiaries.




          “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.




          “Loans” means, as applicable, each of the loans made by the Lenders to the Borrower
pursuant to this Agreement and all such loans collectively.




          “Local Time” means (a) with respect to a Loan, Borrowing or Letter of Credit
denominated in Dollars funded or issued through an office of the Administrative Agent located in
the United States, New York City time and (b) with respect to all other Loans, Borrowings or
Letters of Credit, London time (unless otherwise agreed by the Administrative Agent and the
Borrower).




          “Mandatory Cost” means the rate described and calculated in accordance with
Exhibit B hereto.




          “Material Acquisition” means the acquisition (by purchase, merger or otherwise) by the
Borrower or any of its Subsidiaries of (a) the assets constituting a business, division, facility,
product line or line of business of any Person not already a Subsidiary or (b) more than 50% of the
capital stock of any such Person, in each case under clauses (a) or (b), for aggregate
consideration in excess of $250,000,000.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations or condition (financial or otherwise) of the Borrower and the Subsidiaries taken as a
whole, (b) the ability of the Borrower to perform its obligations under this Agreement or the other
Credit Documents or (c) the rights or remedies of the Administrative Agent or the Lenders under
this Agreement or any other Credit Document.




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




          “Material Subsidiary” means a Subsidiary which either (a) has 5% or more of the assets
(valued at the greater of book or fair market value) of the Borrower and its Subsidiaries
determined on a consolidated basis as of the fiscal quarter end next preceding the date of
determination or (b) is responsible for 5% or more of consolidated net sales of the Borrower and






13









 







its Subsidiaries for the four quarter period ending on the fiscal quarter end next preceding
the date of determination.




          “Maturity Date” means September 2, 2013.




          “Maximum Rate” has the meaning set forth in Section 9.13.




          “Measurement Date” means (a) the last day of each fiscal quarter of the Borrower and
(b) the date of any Material Acquisition.




          “Moody’s” means Moody’s Investors Service, Inc.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




          “Net Borrowed Debt” means (a) Borrowed Debt of the Borrower and its Subsidiaries, on a
consolidated basis, calculated in accordance with GAAP minus (b) an amount (not less than
zero) equal to (i) the amount of cash on the consolidated balance sheet of the Borrower minus (ii)
$50,000,000.




          “Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.




          “Parent” means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.




          “Participant” has the meaning set forth in Section 9.04.




          “Participating Member State” means any member state of the European Communities that
adopts or has adopted the Euro as its lawful currency in accordance with the legislation of the
European Community relating to the Economic and Monetary Union.




          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




          “Permitted Encumbrances” means:




          (a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance
with Section 5.04;




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, 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 30 days or are being contested in compliance with Section 5.04;







14









 








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




          (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;




          (e) judgment liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII; and




          (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Borrower or any Subsidiary;



provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




          “Permitted Securitization” means any receivables financing program or programs
providing for the sale of accounts receivable and related rights by the Borrower or its
Subsidiaries to an SPC for cash and/or other customary consideration for fair value in transactions
intending to be sales, which SPC shall finance the purchase of such assets by the sale, transfer,
conveyance, lien or pledge of such assets to one or more limited purpose financing companies,
special purpose entities and/or other financial institutions, in each case pursuant to
documentation in form and substance reasonably satisfactory to the Administrative Agent,
provided that the Receivables Transaction Attributable Indebtedness associated with all
such programs shall at no time aggregate in excess of $100,000,000.




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




          “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.




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan as its prime rate in effect at its office located at 270 Park Avenue, New York, New
York; each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.




          “Quotation Day” means, with respect to any Eurocurrency Borrowing and any Interest
Period, (i) in Dollars, Canadian Dollars and Euros, two Business Days prior to the commencement of
such Interest Period, (ii) in Sterling, on the first day of such Interest Period and (iii) in any
other Foreign Currency, the day on which it is market practice in the relevant interbank market for
prime banks to give quotations for deposits in the currency of such






15









 







Borrowing for delivery on the first day of such Interest Period. If such quotations would
normally be given by prime banks on more than one day, the Quotation Day will be the last of such
days.




          “Receivables Transaction Attributed Indebtedness” means the amount of obligations
outstanding under any Permitted Securitization that on any date of determination would be
characterized as principal if such Permitted Securitization were structured as a secured lending
transaction rather than as a purchase.




          “Reference Quarter” has the meaning set forth in Section 4.01 (c).




          “Register” has the meaning set forth in Section 9.04.




          “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.




          “Required Lenders” means, subject to Section 2.20(b), Lenders having Revolving
Credit Exposures and unused Commitments representing more than 50% of the sum of the total
Revolving Credit Exposures and unused Commitments at such time.




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




          “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.




          “Revolving Loan” means a Loan made pursuant to Section 2.01.




          “S&P” means Standard & Poor’s.




          “Sale and Leaseback Transaction” means any sale or other transfer of property by any
Person with the intent to lease such property as lessee.




          “Seller” has the meaning set forth in the definition of Acquisition.




          “SPC” means a special purpose, bankruptcy-remote Person formed for the sole and
exclusive purpose of engaging in activities in connection with the purchase, sale and financing of
accounts receivable and related rights and assets in connection with and pursuant to a Permitted
Securitization and reasonably related corporate maintenance and similar activities.




          “Specified Party” means the Administrative Agent or any Lender.





16











 




          “Statutory Reserve Rate” 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 Board to which the Administrative
Agent is subject, with respect to the Adjusted Eurocurrency Rate, for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D. Eurocurrency Loans shall 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 Rate
shall be adjusted automatically on and as of the effective date of any change in any reserve
percentage.


          “Sterling” or “£” means the lawful currency of the United Kingdom of Great
Britain and Northern Ireland.


          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, partnership, joint venture, limited liability company, trust or estate of which (or in
which) more than 50% of (a) the issued and outstanding capital stock or other Equity Interests
having ordinary voting power to elect a majority of the board of directors, board of managers or
persons performing similar functions of such entity (irrespective of whether at the time capital
stock or other Equity Interests of any other class or classes of such entity shall or might have
voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of
such partnership, joint venture or limited liability company or (c) the beneficial interest in such
trust or estate is at the time directly or indirectly owned or controlled by the parent, by the
parent and one or more of its other subsidiaries or by one or more of the parent’s other
subsidiaries.


          “Subsidiary” means any subsidiary of the Borrower.


          “Substantial Portion” means, with respect to the property of the Borrower and its
Subsidiaries, property which (a) represents more than 20% of the consolidated assets of the
Borrower and its Subsidiaries as would be shown in the consolidated financial statements (to the
extent available, and otherwise the financial information) of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the last day of the month preceding the
month in which such determination is made, or (b) is responsible for more than 20% of the
consolidated net sales of the Borrower and its Subsidiaries as reflected in the financial
statements or information referred to in clause (a) above for such twelve month period;
provided that, in each case under clauses (a) and (b), any calculation of consolidated
assets or consolidated net sales shall be adjusted on a pro forma basis to give effect to any
acquisition by the Borrower or any Subsidiary during any applicable twelve-month period as though
such acquisition had been consummated as of the first day of such period.


          “Swap Agreement” means any interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option contracts and other
similar agreements.



17









 







          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.


          “Swingline Lender” means JPMorgan, in its capacity as lender of Swingline Loans
hereunder.


          “Swingline Loan” means a Loan made pursuant to Section 2.05.


          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.


          “Transactions” means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of
Credit hereunder.


          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted Eurocurrency Rate or the Alternate Base Rate.


          “Wholly-Owned Subsidiary” of a Person means (a) any subsidiary all of the outstanding
voting securities of which shall at the time be owned or controlled, directly or indirectly, by
such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (b) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled (other than in the case
of Foreign Subsidiaries, director’s qualifying shares and/or other nominal amounts of shares
required to be held by Persons other than the Borrower and its Subsidiaries under applicable law).


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


          SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) 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), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”,



18









 








and words of similar import, shall be construed to refer to this Agreement in its entirety and
not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules
to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.



          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.


          SECTION 1.05. Foreign Currency Calculations. (a) For purposes of determining the
Dollar Equivalent of any Advance denominated in a Foreign Currency or any related amount, the
Administrative Agent shall determine the Exchange Rate as of the applicable Exchange Rate Date with
respect to each Foreign Currency in which any requested or outstanding Advance is denominated and
shall apply such Exchange Rate to determine such amount (in each case after giving effect to any
Advance to be made or repaid on or prior to the applicable date for such calculation).


          (b) For purposes of (i) determining the amount of Indebtedness incurred, outstanding or
proposed to be incurred or outstanding under Section 6.01 (but excluding, for the avoidance
of doubt, any calculation of Consolidated Net Assets), (ii) determining the amount of obligations
secured by Liens incurred, outstanding or proposed to be incurred or outstanding under Section
6.02, (iii) determining the restrictive agreements which are in respect of Indebtedness for
borrowed money in excess of $5,000,000 under Section 6.06 or (iv) determining the amount of
Material Indebtedness or judgments outstanding under paragraphs (f), (g) or (k) of Article
VII, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies
other than dollars shall be translated into dollars at the Exchange Rate; provided that no
Default shall arise as a result of any limitation set forth in dollars in Section 6.01,
6.02, or 6.06 being exceeded solely as a result of changes in Exchange Rates from
those rates applicable at the time or times Indebtedness, Liens or restrictive agreements were
initially consummated or acquired in reliance on the exceptions under such Sections. Such Exchange
Rates shall be determined in good faith by the Borrower.



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ARTICLE II




The Credits


          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein,
each Lender agrees to make Revolving Loans denominated in Dollars and Foreign Currencies to the
Borrower from time to time during the Availability Period in an aggregate principal amount that
will not result in (a) such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment
or (b) the sum of the total Revolving Credit Exposures exceeding the total Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Loans.


          SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part of
a Borrowing consisting of Revolving Loans of the same Type made by the Lenders ratably in
accordance with their respective Commitments. The failure of any Lender to make any Loan required
to be made by it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be responsible for any other
Lender’s failure to make Loans as required hereby.


          (b) Subject to Section 2.14, (i) each Revolving Borrowing denominated in Dollars shall
be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may request in accordance
herewith and (ii) each Revolving Borrowing denominated in a Foreign Currency shall be comprised
entirely of Eurocurrency Loans. Each Swingline Loan shall be an ABR Loan. Each Lender at its
option may make any Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall not affect
the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.


          (c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 (or if such Borrowing is (i) in Canadian Dollars, an integral multiple of
Cdn$1,000,000 and not less than Cdn$5,000,000, (ii) in Sterling, an integral multiple of £500,000
and not less than £3,000,000, (iii) in Euros, an integral multiple of €750,000 and not less than
€4,000,000 and (iv) in any other Foreign Currency, 1,000,000 and 5,000,000 units, respectively, of
such Foreign Currency). At the time that each ABR Revolving Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $500,000 and not less than
$1,000,000; provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.06(e). Each Swingline
Loan shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000;
provided that a Swingline Loan may be in an aggregate amount that is equal to the entire
unused balance of the total Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e); provided, further, that
notwithstanding the foregoing, in no event shall the aggregate principal amount of outstanding
Swingline Loans exceed $25,000,000. Borrowings of more than one Type and Class may be outstanding
at the same time; provided that there shall not at any time be more than a total of twelve
Eurocurrency Revolving Borrowings outstanding. Notwithstanding the



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foregoing, Loans which are not denominated in Dollars, Canadian Dollars, Sterling or Euro may
be made in amounts and increments in the applicable Foreign Currency satisfactory to the
Administrative Agent.



          (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.


          (e) Notwithstanding any other provision of this Agreement, each Lender at its option may make
any ABR Loan or Eurocurrency Loan by causing any domestic or foreign office, branch or Affiliate of
such Lender that has been designated by such Lender to the Administrative Agent and the Borrower
(an “Applicable Lending Installation”) to make such Loan (so long as such designation does
not result in any increased costs to the Borrower pursuant to Sections 2.14, 2.15
and 2.16 that would not have otherwise been applicable with respect to such Lender or any
such increased costs are waived by such Lender). All terms of this Agreement shall apply to any
such Applicable Lending Installation of such Lender and the Loans and any Notes issued hereunder
shall be deemed held by each Lender for the benefit of any such Applicable Lending Installation.
Each Lender may, by written notice to the Administrative Agent and the Borrower, designate
replacement or additional Applicable Lending Installations through which Loans will be made by it
and for whose account Loan payments are to be made. The making of any Loan by a foreign Applicable
Lending Installation or the replacement or addition of any foreign Applicable Lending Installation
with respect to an existing Loan shall be treated as an assignment (other than pursuant to
Section 2.19(b)) to a Foreign Lender for purposes of the definition of Excluded Taxes and
Section 2.17.


          SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing
(other than a Swingline Loan), the Borrower shall notify the Administrative Agent of such request
by telephone (a) in the case of a Eurocurrency Borrowing, not later than 1:00 p.m., Local Time,
three Business Days before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 12:00 noon, Local Time, on the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.06(e) may be given not later than 10:00
a.m., Local Time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:




     (i) the aggregate amount of the requested Borrowing;




     (ii) the currency (which may be Dollars or a Foreign Currency) in which such Borrowing
is to be denominated (and, in the case of a Borrowing denominated in Dollars, whether it is
to be funded out of the United States or London; provided that the only Borrowing in
Dollars which may be funded out of London is a single Eurocurrency Borrowing which the
Borrower certifies in writing to the Administrative Agent is to be used to fund the
Acquisition);



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     (iii) the date of such Borrowing, which shall be a Business Day;




     (iv) in the case of a Borrowing denominated in Dollars, whether such Borrowing is to be
an ABR Borrowing or a Eurocurrency Borrowing;




     (v) in the case of a Eurocurrency Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and




     (vi) the location and number of the account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.07.



If no election as to the Type of such Revolving Borrowing is specified, then the requested
Revolving Borrowing shall be an ABR Borrowing, unless such Revolving Borrowing is denominated in a
Foreign Currency, in which case such Revolving Borrowing shall be a Eurocurrency Borrowing. If no
Interest Period is specified with respect to any requested Eurocurrency Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made
as part of the requested Borrowing.



          SECTION 2.04. [Intentionally Omitted]


          SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Dollar-denominated Swingline Loans to the Borrower from
time to time during the Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline
Loans exceeding $25,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the
total Commitments; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.


          (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 2:00 p.m., Local Time, on the day of a
proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the requested
date (which shall be a Business Day) and (ii) the amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. Each Swingline Loan shall be an ABR Loan. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general deposit account of the
Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to the
Issuing Bank) by 3:00 p.m., Local Time, on the requested date of such Swingline Loan.


          (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., Local Time, on any Business Day require the Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such



22









 








notice shall specify the aggregate amount of Swingline Loans in which Lenders will
participate, and such amount of Swingline Loans shall bear interest at the Alternate Base Rate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph
is absolute and unconditional and shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.07 with respect to
Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis,
to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender
from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made
their payments pursuant to this paragraph and to the Swingline Lender, as their interests may
appear; provided that any such payment so remitted shall be repaid to the Swingline Lender
or to the Administrative Agent, as applicable, if and to the extent such payment is required to be
refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.



          SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own
account, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
time and from time to time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.


          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal
or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal
or extension (which shall be a Business Day), the date



23









 








on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend, renew or extend such Letter of
Credit. If requested by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank’s standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or extension
(i) the Dollar Equivalent of LC Exposure shall not exceed $50,000,000 and (ii) the sum of the total
Revolving Credit Exposures shall not exceed the total Commitments.



          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Maturity Date;
provided that a Letter of Credit may expire after the date referred to in clause (ii) above
(but not after the date referred to in clause (i) above) so long as not later than five Business
Days prior to the Maturity Date, the Company has cash collateralized such Letter of Credit in
accordance with Section 2.06(j); provided, further, that, subject to
satisfaction of conditions applicable to renewals of Letters of Credit herein, any Letter of Credit
with a one-year tenor may provide for the automatic renewal thereof for additional one-year
periods.


          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.


          (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon, Local Time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., Local Time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than 12:00 noon, Local
Time (or 3:00 p.m. Local Time in the event that the Borrower is reimbursing such LC Disbursements
with proceeds of a Swingline Loan), on (i) the Business Day that the



24









 








Borrower receives such notice, if such notice is received prior to 10:00 a.m., Local Time, on
the day of receipt, or (ii) the Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time on the day of receipt;
provided that the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.05 that such payment be financed with
an ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the extent so
financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to make such payment
when due, such amount, if denominated in Foreign Currency, shall be converted to Dollars and shall
bear interest at the Alternate Base Rate and the Administrative Agent shall notify each Lender of
the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such
Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Lender
shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such
Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank
the amounts so received by it from the Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank
as their interests may appear. Any payment made by a Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans
or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.



          (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Bank;
provided that nothing in this clause (f) shall be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the extent permitted



25









 








by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s failure to
exercise care when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of
gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a
court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the generality thereof,
the parties agree that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.



          (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Lenders with respect to any such LC Disbursement.


          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Bank, except that interest accrued on and after the date of
payment by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall
be for the account of such Lender to the extent of such payment.


          (i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b). From and after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with
respect to Letters of Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the replacement
of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.



26









 







          (j) Cash Collateralization. If (i) any Event of Default shall occur and be
continuing, within one Business Day of the day that the Borrower receives notice from the
Administrative Agent or the Required Lenders demanding the deposit of cash collateral pursuant to
this paragraph or (ii) as of the date five (5) Business Days prior to the Maturity Date, any Letter
of Credit remains outstanding, in either case, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders,
an amount in cash equal to 105% of the Dollar Equivalent of the LC Exposure as of such date plus
any accrued and unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in clause (h) or (i) of Article VII. Any such
deposit shall be held by the Administrative Agent as collateral for the payment and performance of
the obligations of the Borrower under this Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which investments shall be made
at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations
of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been
accelerated, be applied to satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder (i) as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after the date upon which no Event of Default
has occurred and is continuing or (ii) as a result of the expiration of a Letter of Credit
extending past the Maturity Date, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after the surrender or expiration of such
Letter of Credit.


          SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately available funds by (i)
12:00 noon, Local Time, in the case of a Eurocurrency Borrowing or (ii) 2:00 p.m., Local Time, in
the case of an ABR Borrowing, in either case to the account of the Administrative Agent or JPMEL
most recently designated by it for such purpose by notice to the Lenders; provided that
Swingline Loans shall be made as provided in Section 2.05. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the amounts so received (or, as
applicable, wire transferring the amounts so received), in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City (or, in the case of Loans
denominated in a Foreign Currency, in like funds to the account of the Borrower in such other
location as may be designated by the Administrative Agent) and designated by the Borrower in the
applicable Borrowing Request or to such other account as the Borrower may request and as may be
acceptable to the Administrative Agent (it being understood that the notary account designated for
payment of the purchase price under and in accordance with the terms of the Acquisition Agreement
as in effect on the date hereof shall be deemed acceptable to the Administrative Agent);
provided, however, that the Administrative Agent may elect when the Borrower has
requested funding to such notary account to credit an



27









 








account of the Borrower maintained at the Administrative Agent; provided
further, that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the Issuing
Bank.



          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, (x) the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation (in the case of a Borrowing denominated in
Dollars) or (y) the rate reasonably determined by the Administrative Agent to be the cost to it of
funding such amount (in the case of a Borrowing denominated in a Foreign Currency) or (ii) in the
case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount
to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.


          SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving
Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type, in the case of
Borrowings denominated in Dollars, or to continue such Borrowing and, in the case of a Eurocurrency
Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which may not be
converted or continued.


          (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type and
denominated in the Foreign Currency resulting from such election to be made on the effective date
of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by the Borrower.


          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:



28









 









     (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing; and




     (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.



If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.



          (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.


          (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurocurrency Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing (unless such Borrowing is denominated in a Foreign
Currency, in which case such Borrowing shall be continued as a Eurocurrency Borrowing with an
Interest Period of one month’s duration commencing on the last day of such Interest Period).
Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding Revolving Borrowing
may be converted to or continued as a Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency
Revolving Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto and (iii) unless repaid, each Eurocurrency Revolving Borrowing
denominated in a Foreign Currency shall be continued as a Eurocurrency Revolving Borrowing with an
Interest Period of one month’s duration.


          SECTION 2.09. Termination, Reduction and Increase of Commitments. (a) Unless
previously terminated, the Commitment of each Lender shall terminate on the Maturity Date.


          (b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $5,000,000 and not less than $10,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the



29









 








Loans in accordance with Section 2.11, the sum of the Revolving Credit Exposures would
exceed the total Commitments.



          (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by
the Borrower may state that such 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. Any termination or reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.


          (d) On up to three occasions, the Borrower may, from time to time, at its option, seek to
increase the total Commitments by up to an aggregate amount of $250,000,000 (resulting in maximum
total Commitments of $1,250,000,000) upon at least three (3) Business Days’ prior written notice to
the Administrative Agent, which notice shall specify the amount of any such increase (the amount of
which shall not be less than $25,000,000) and shall be delivered at a time when no Default has
occurred and is continuing. After delivery of such notice, the Administrative Agent or the
Borrower, in consultation with the Administrative Agent, may offer the increase (which may be
declined by any Lender in its sole discretion) in the total Commitments on either a ratable basis
to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Lenders or
entities reasonably acceptable to the Administrative Agent and the Borrower. No increase in the
total Commitments shall become effective until the existing or new Lenders extending such
incremental Commitment amount and the Borrower shall have delivered to the Administrative Agent a
document in form reasonably satisfactory to the Administrative Agent (which shall include the
Borrower’s representation that the conditions set forth in Section 4.02 are then satisfied)
pursuant to which any such existing Lender states the amount of its Commitment increase, any such
new Lender states its Commitment amount and agrees to assume and accept the obligations and rights
of a Lender hereunder and the Borrower accepts such incremental Commitments. Upon the
effectiveness of any increase in the total Commitments pursuant hereto, (i) each Lender (new or
existing) shall be deemed to have accepted an assignment from the existing Lenders, and the
existing Lenders shall be deemed to have made an assignment to each new or existing Lender
accepting a new or increased Commitment, of an interest in each then outstanding Revolving Loan (in
each case, on the terms and conditions set forth in the Assignment and Assumption) and (ii) the
Swingline Exposure and LC Exposure of the existing and new Lenders shall be automatically adjusted
such that, after giving effect to such assignments and adjustments, all Revolving Credit Exposure
hereunder is held ratably by the Lenders in proportion to their respective Commitments.
Assignments pursuant to the preceding sentence shall be made in exchange for, and substantially
contemporaneously with the payment to the assigning Lenders of, the principal amount assigned plus
accrued and unpaid interest and commitment and Letter of Credit fees. Payments received by
assigning Lenders pursuant to this Section in respect of the principal amount of any Eurocurrency
Loan shall, for purposes of Section 2.16, be deemed prepayments of such Loan.



30









 








Any increase of the total Commitments pursuant to this Section shall be subject to receipt by
the Administrative Agent from the Borrower of such supplemental opinions, resolutions, certificates
and other documents as the Administrative Agent may reasonably request.



          SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date
and the first date after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least two Business Days after such Swingline Loan is made; provided that on
each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans then
outstanding.


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


          (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.


          (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.


          (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the
order of the payee named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).


          (f) If at any time the aggregate Revolving Credit Exposure of the Lenders exceeds the
aggregate Commitments of the Lenders, the Borrower shall immediately prepay the Revolving Loans in
the amount of such excess. To the extent that, after the prepayment of all Revolving Loans an
excess of the Revolving Credit Exposure over the aggregate Commitments still exists, the Borrower
shall promptly cash collateralize the Letters of Credit in the manner described in Section
2.06(j) in an amount sufficient to eliminate such excess.



31









 







          (g) The Administrative Agent will determine the Dollar Equivalent of the aggregate LC Exposure
and the Dollar Equivalent of each Loan on each Exchange Rate Date. If at any time the sum of such
amounts exceeds 105% of the aggregate Commitments of the Lenders, the Borrower shall immediately
prepay the Loans in the amount of such excess. To the extent that, after the prepayment of all
Loans an excess of the sum of such amounts over 105% of the aggregate Commitments still exists,
the Borrower shall promptly cash collateralize the Letters of Credit in the manner described in
Section 2.06(j) in an amount sufficient to eliminate such excess.


          SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section.


          (b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurocurrency Revolving Borrowing, not later than 1:00
p.m., Local Time, three Business Days before the date of prepayment, (ii) in the case of prepayment
of an ABR Revolving Borrowing, not later than 1:00 p.m., Local Time, one Business Day before the
date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 1:00
p.m., Local Time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or portion thereof to be
prepaid; provided that, if a notice of prepayment is given in connection with a conditional
notice of termination of the Commitments as contemplated by Section 2.09(c), then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.09(c). Promptly following receipt of any such notice relating to a Revolving
Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial
prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of
an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.13.


          SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at the Applicable Rate on the
average daily amount of the difference between the Commitment of such Lender and the Revolving
Credit Exposure of such Lender (excluding its Swingline Exposure) during the period from and
including the date hereof to but excluding the date on which such Commitment terminates. Accrued
commitment fees shall be payable in arrears on the third Business Day following the last day of
March, June, September and December of each year and on the date on which the Commitment of such
Lender terminates, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day).


          (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Rate used to determine the interest rate applicable to



32









 








Eurocurrency Revolving Loans on the average daily amount of such Lender’s LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on which such Lender’s
Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to
the Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum separately
agreed upon between the Borrower and the Issuing Bank on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Effective Date to but excluding the later of the date of termination
of the Commitments and the date on which there ceases to be any LC Exposure, as well as the Issuing
Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through
and including the last day of March, June, September and December of each year shall be payable on
the third Business Day following such last day, commencing on the first such date to occur after
the Effective Date; provided that all such fees shall be payable on the date on which the
Commitments terminate and any such fees accruing after the date on which the Commitments terminate
shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).



          (c) The Borrower agrees to pay to the Administrative Agent for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.


          (d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the Lenders. All fees due
and payable shall not be refundable under any circumstances once paid.


          SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.


          (b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted
Eurocurrency Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.


          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.



33









 







          (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan, upon the final maturity thereof and upon termination of the Commitments pursuant to
Section 2.09; provided that (i) interest accrued pursuant to paragraph (c) of this
Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date of such repayment
or prepayment and (iii) in the event of any conversion of any Eurocurrency Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.


          (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
(i) interest on Borrowings denominated in Sterling shall be computed on the basis of a year of 365
days (or 366 days in a leap year), (ii) interest on Borrowings denominated in any other Foreign
Currency for which it is required by applicable law or customary to compute interest on the basis
of a year of 365 days or, if required by applicable law or customary, 366 days in a leap year,
shall be computed on such basis and (iii) interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of
a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate or Adjusted Eurocurrency Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.


          SECTION 2.14. Alternate Rate of Interest; Illegality. (a) If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in any currency:




     (i) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted Eurocurrency Rate for such Interest Period; or




     (ii) the Administrative Agent is advised by the Required Lenders that in their
reasonable determination the Adjusted Eurocurrency Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies (as promptly as practicable after making such determination) the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any Interest Election
Request that requests the conversion of any Revolving Borrowing to, or continuation of any
Revolving Borrowing as, a Eurocurrency Borrowing denominated in such currency shall be ineffective,
(ii) such Borrowing shall be converted to or continued as on the last day of the Interest Period
applicable thereto (A) if such Borrowing is denominated in Dollars, an ABR Borrowing or (B) if such
Borrowing is denominated in a Foreign Currency, at the Borrower’s option, (1) as a Borrowing in
respect of which the rate to apply to each Lender’s participation is




34









 








an interest rate equal to the sum of (I) the Applicable Rate for Eurocurrency Loans, (II) the rate
notified to the Administrative Agent by such Lender as soon as practicable and in any event before
interest is due to be paid in respect of the applicable Interest Period, to be that which expresses
as a percentage rate per annum the cost to such Lender of funding its participation in the
applicable Borrowing from whatever source it may reasonably select and (III) the Mandatory Cost, if
any, applicable to such Lender’s participation in the applicable Borrowing or (2) as an ABR
Borrowing in the Dollar Equivalent thereof denominated in Dollars, and (iii) if any Borrowing
Request requests a Eurocurrency Borrowing in such currency, such Borrowing shall be made as an ABR
Borrowing (if such Borrowing is requested to be made in Dollars) or shall be made as a Borrowing
bearing interest at the rate described under (ii)(B)(1) above.



          (b) If any Lender determines that any applicable law, rule or regulation has made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable lending office to make, maintain or fund Eurocurrency Loans, or to determine or charge
interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, the
applicable currency in the London interbank market, then, on written notice thereof by such Lender
to the Administrative Agent and the Borrower (and confirmation that such Lender is generally
suspending such loans for similarly situated borrowers), any obligation of such Lender to make or
continue Eurocurrency Loans or to convert ABR Loans to Eurocurrency Loans shall be suspended until
such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise
to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon
demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurocurrency Loans of such Lender to ABR Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency
Rate Loans. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest
on the amount so prepaid or converted. Prior to giving any notice contemplated above, a Lender
shall designate a different lending office if such designation would avoid the need for giving such
notice and if such designation would not otherwise be disadvantageous to such Lender in its good
faith discretion.


          SECTION 2.15. Increased Costs. (a) If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted Eurocurrency Rate
or compensated for by the Mandatory Cost) or the Issuing Bank; or




     (ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter
of Credit or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining




35









 








any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.



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


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


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


          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurocurrency Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurocurrency Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(b) and
is revoked in accordance therewith) or (d) the assignment of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.19, then, in any such event, the Borrower shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case of a Eurocurrency
Loan, such



36









 








loss, cost or expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have accrued at the
Adjusted Eurocurrency Rate that would have been applicable to such Loan on the principal amount of
such Loan had such event not occurred, for the period from the date of such event to the last day
of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for the same period if the Adjusted
Eurocurrency Rate applicable to such Loan was set on the date such event occurred. A certificate
of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant
to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.



          SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or Issuing Bank (as
the case may be) receives an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.


          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.


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


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


          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty




37












 




to which such jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed
by applicable law, such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Borrower as will permit such payments to be made without withholding
or at a reduced rate. Without limiting the generality of the foregoing, to the extent legally
entitled to do so, each Foreign Lender agrees that it will deliver to the Administrative Agent and
the Borrower (or in the case of a Participant, to the Lender from which the related participation
shall have been purchased), as appropriate, two (2) duly completed copies of (i) Internal Revenue
Service Form W-8 ECI, or any successor form thereto, certifying that the payments received from the
Borrower hereunder are effectively connected with such Foreign Lender’s conduct of a trade or
business in the United States; or (ii) Internal Revenue Service Form W-8 BEN, or any successor form
thereto, certifying that such Foreign Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of withholding tax on payments of
interest; or (iii) Internal Revenue Service Form W-8 BEN, or any successor form prescribed by the
Internal Revenue Service, together with a certificate (A) establishing that the payment to the
Foreign Lender qualifies as “portfolio interest” exempt from U.S. withholding tax under Code
section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is not a bank for purposes of
Code section 881(c)(3)(A), or the obligation of the Borrower hereunder is not, with respect to such
Foreign Lender, a loan agreement entered into in the ordinary course of its trade or business,
within the meaning of that section; (2) the Foreign Lender is not a 10% shareholder of the Borrower
within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the Foreign Lender is not a
controlled foreign corporation that is related to the Borrower within the meaning of Code section
881(c)(3)(C); or (iv) such other Internal Revenue Service forms as may be applicable to the Foreign
Lender, including Internal Revenue Service Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall
deliver to the Borrower and the Administrative Agent such forms on or before the date that it
becomes a party to this Agreement (or in the case of a Participant, on or before the date such
Participant purchases the related participation).




          (f) Additionally, each Lender that is organized under the laws of a jurisdiction other than
the United States shall comply with any certification, documentation, information or other
reporting necessary to establish an exemption from withholding under FATCA and shall provide any
other documentation reasonably requested by the Borrower or the Administrative Agent sufficient for
the Administrative Agent and the Borrower to comply with their obligations under FATCA and to
determine that such Lender has complied with such applicable reporting requirements.




          (g) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other 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
2.17, it shall pay over such refund to the Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section 2.17 with
respect to the Taxes or Other 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 the Borrower (plus any penalties, interest or other charges imposed by the relevant






38









 







Governmental Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require the Administrative Agent or any Lender to
make available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.




          (h) Each Lender shall indemnify the Administrative Agent within ten (10) days after demand
therefor, for the full amount of any Excluded Taxes attributable to such Lender that are payable or
paid by the Administrative Agent, and reasonable expenses arising therefrom or with respect
thereto, whether or not such Excluded Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.
Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at
any time owing to such Lender under any Credit Document against any amount due to the
Administrative Agent under this paragraph (h). The agreements in this paragraph (h) shall survive
the resignation and/or replacement of the Administrative Agent.




          SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.15, 2.16 or 2.17, or otherwise) prior to 1:00 p.m., Local Time, on the date
when due, in immediately available funds, without set off or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.15, 2.16,
2.17 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder of (i) principal or
interest in respect of any Loan shall be made in the currency in which such Loan is denominated,
(ii) reimbursement obligations shall be made in the currency in which the Letter of Credit in
respect of which such reimbursement obligation exists is denominated or (iii) any other amount due
hereunder or under another Loan Document shall be made in Dollars. Any payment required to be made
by the Administrative Agent hereunder shall be deemed to have been made by the time required if the
Administrative Agent shall at or before such time have taken the necessary steps to make such
payment in accordance with the regulations or operating procedures of the clearing or settlement
system used by the Administrative Agent to make such payment.




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






39









 







of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.




          (c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans and participations in LC Disbursements and Swingline
Loans of other Lenders without recourse or warranty from the other Lenders except as contemplated
by Section 9.04 in respect of assignments to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.




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




          (e) If and for so long as any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b),
2.18(d) or 9.03(c), then the






40









 







Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof,
(i) apply any amounts thereafter received by the Administrative Agent pursuant to this Agreement
for the account of such Lender and for the benefit of the Administrative Agent, the Swingline
Lender or the Issuing Bank to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid, and (ii) following application of such amounts under the
foregoing clause (i), hold any remaining such amounts in a segregated account as cash collateral
for, and application to, any future funding obligations of such Lender under such Sections, in the
case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its
discretion.




          SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If (i) any Lender
requests compensation under Section 2.15 or (ii) the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.




          (b) In addition to the Borrower’s rights under Section 9.02(c), if any Lender requests
compensation under Section 2.15, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, or if any Lender becomes a Defaulting Lender, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent (and if a Commitment is being assigned, the
Issuing Bank), which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans and participations in
LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.15 or payments
required to be made pursuant to Section 2.17, such assignment will result in a reduction in
such compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.







41









 








          SECTION 2.20. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:




          (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting
Lender pursuant to Section 2.12(a);




          (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be
included in determining whether all Lenders or the Required Lenders have taken or may take any
action hereunder (including any consent to any amendment, waiver or other modification pursuant to
Section 9.02); provided that (i) a Defaulting Lender’s Commitment may not be
increased or extended without its consent and (ii) the principal amount of, or interest or fees
payable on, Loans of such Defaulting Lender may not be reduced or excused or the scheduled date of
payment postponed as to such Defaulting Lender without such Defaulting Lender’s consent;




          (c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting
Lender then:





     (i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender
shall be reallocated among the non-Defaulting Lenders in accordance with their respective
Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’
Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure
does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) no Default or
Event of Default exists at such time;




     (ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within three Business Days following notice by the
Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash
collateralize for the benefit of the Issuing Bank only the Borrower’s obligations
corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial
reallocation pursuant to clause (i) above) in accordance with the procedures set forth in
Section 2.20(c) for so long as such LC Exposure is outstanding;




     (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC
Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees
to such Defaulting Lender pursuant to Section 2.12(b)(i) with respect to such
Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is
cash collateralized;




     (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause
(i) above, then the fees payable to the Lenders pursuant to Section 2.12(a) and
Section 2.12(b)(ii) shall be adjusted in accordance with such non-Defaulting
Lenders’ Applicable Percentages; and




     (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without
prejudice to any rights or remedies of the Issuing Bank or any other Lender hereunder, all



42









 







letter of credit fees payable under Section 2.12(b)(ii) with respect to such
Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until and to the extent
that such LC Exposure is reallocated and/or cash collateralized; and



          (d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required
to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase
any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s
then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders
and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and
participating interests in any newly made Swingline Loan or any newly issued or increased Letter of
Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section
2.20(c)(i) (and such Defaulting Lender shall not participate therein).




          If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the
date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the
Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations
under one or more other agreements in which such Lender commits to extend credit, the Swingline
Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required
to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank,
as the case may be, shall have entered into arrangements with the Borrower or such Lender,
satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk
to it in respect of such Lender hereunder.




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




ARTICLE III




Representations and Warranties



          The Borrower represents and warrants to the Administrative Agent and the Lenders that:




          SECTION 3.01. Organization; Powers. Each of the Borrower and its Subsidiaries (i) is
duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to carry on its business as now conducted
and (iii) is qualified to do business in, and is in good standing in, every jurisdiction where such
qualification is required, except for failures of Subsidiaries under clauses (i) and (ii) above,
and failures of the Borrower or its Subsidiaries under clause (iii) above which, either
individually or in the aggregate for all such failures under preceding clauses (i), (ii) and (iii),
could not reasonably be expected to result in a Material Adverse Effect.







43









 








          SECTION 3.02. Authorization; Enforceability. The execution and delivery of, and the
performance of its obligations under, each Credit Document and the borrowing of the Loans are
within the Borrower’s corporate powers and have been duly authorized by all necessary corporate
and, if required, stockholder action. Each Credit Document has been duly executed and delivered by
the Borrower and each Credit Document constitutes a legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
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.




          SECTION 3.03. Governmental Approvals; No Conflicts. The execution and delivery of,
and the performance of its obligations under, each Credit Document and the borrowing of the Loans
(a) do 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, (b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any indenture, agreement
or other instrument involving an amount in excess of $1,000,000 binding upon the Borrower or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be
made by the Borrower or any of its Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.




          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2009,
reported on by KPMG LLP, independent public accountants, and (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended June 30, 2010, certified by its chief financial officer in
accordance with the requirements of the Securities and Exchange Commission. Such financial
statements present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and
for such periods in accordance with GAAP, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.




          (b) As of the Effective Date, since December 31, 2009, there has been no material adverse
change in the business, assets, operations or condition (financial or otherwise) of the Borrower
and its Subsidiaries, taken as a whole.




          SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property material to the
business of the Borrower and its Subsidiaries taken as a whole, including all such properties
reflected in the Borrower’s most recent consolidated financial statements provided to the
Administrative Agent, free and clear of all Liens other those permitted by Section 6.02.




          (b) Each of the Borrower and its Subsidiaries owns, is licensed or otherwise has the right to
use, all material trademarks, tradenames, copyrights, patents and other






44









 







intellectual property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for any such absence of
ownership, license or other right to use or such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.06. 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 the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries
(i) which could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect or (ii) that involve any Credit Document or the Transactions.




          (b) Except with respect to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) 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, (ii) has become
subject to any Environmental Liability, (iii) has received, through an executive officer of the
Borrower or any Subsidiary, notice of any claim with respect to any Environmental Liability or (iv)
knows of any basis for any Environmental Liability other than, in each case, as set forth in the
report on Form 10-K most recently filed prior to the date hereof by the Borrower with the
Securities and Exchange Commission and any reports on Form 10-Q or 8-K filed by the Borrower with
the Securities and Exchange Commission subsequent to such Form 10-K and prior to the date hereof.




          SECTION 3.07. Compliance with Laws and Agreements. Other than, in each case, as set
forth in the report on Form 10-K most recently filed prior to the date hereof by the Borrower with
the Securities and Exchange Commission and any reports on Form 10-Q or 8-K filed by the Borrower
with the Securities and Exchange Commission subsequent to such Form 10-K and prior to the date
hereof, each of the Borrower and its Subsidiaries is in compliance with (a) all laws, regulations
and orders of any Governmental Authority applicable to it or its property and (b) all indentures,
agreements and other instruments binding upon it or its property, except, in each case, where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. No Default has occurred and is continuing.




          SECTION 3.08. Investment Company Status. Neither the Borrower nor any of its
Subsidiaries is an “investment company” required to be registered under the Investment Company Act
of 1940.




          SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has filed or caused
to be filed all United States Federal income tax and other material tax returns required to have
been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a)
Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower
or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the
extent that the failure to do so could not reasonably be expected to result in a Material Adverse
Effect.




          SECTION 3.10. ERISA. No liability to the PBGC has been, or is expected by the
Borrower or any ERISA Affiliate to be, incurred with respect to any Plan by the Borrower,






45









 







any Subsidiary or any ERISA Affiliate which is, or could reasonably be expected to be,
materially adverse to the business, property or assets, condition (financial or otherwise) or
operations of the Borrower and its Subsidiaries taken as a whole. Neither the Borrower, any
Subsidiary nor any ERISA Affiliate has incurred, or presently expects to incur, any withdrawal
liability under Title IV of ERISA with respect to any Multiemployer Plan which is reasonably
expected to be materially adverse to the business, property or assets, condition (financial or
otherwise) or operations of the Borrower and its Subsidiaries taken as a whole.




          SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information Memorandum nor any of the
other reports, including, without limitation, all reports filed with the Securities and Exchange
Commission, financial statements, certificates or other written information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection with the negotiation
of this Agreement or any other Credit Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in each case in light of
the circumstances under which they were made and taken as a whole, not misleading; provided
that, with respect to any projections, estimates, forward looking statements and information of a
general economic or industry public nature, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time such
information was delivered to the Administrative Agent or any Lender.




          SECTION 3.12. Regulation U. Margin stock (as defined in Regulation U of the Board)
constitutes less than 25% of the value of those assets of the Borrower and its Subsidiaries which
are subject to any limitation on sale, pledge, or other restriction hereunder. None of the making
of any Loan or the use of the proceeds thereof, the issuance of any Letter of Credit or any other
aspect of the Transactions or the financing of the Acquisition hereunder, will violate or be
inconsistent with the provisions of Regulation T, Regulation U or Regulation X of the Board.




          SECTION 3.13. Labor Relations. There are no strikes, lockouts or other material
labor disputes or grievances against the Borrower or any of its Subsidiaries, or, to the Borrower’s
knowledge, threatened against or affecting the Borrower or any of its Subsidiaries, and no
significant unfair labor practice, charges or grievances are pending against the Borrower or any of
its Subsidiaries, or to the Borrower’s knowledge, threatened against the Borrower or any of its
Subsidiaries before any governmental authority, except, with respect to any of the foregoing, any
such matters which could not reasonably be expected to have a Material Adverse Effect.




          SECTION 3.14. OFAC. The Borrower (a) is not a person whose property or interest in
property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (b) does not engage in any dealings or
transactions prohibited by Section 2 of such executive order, or is otherwise associated with any
such person in any manner violative of Section 2, and (c) is not a person on the list of Specially
Designated Nationals and Blocked Persons or subject to the






46









 







limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign
Assets Control regulation or executive order.




          SECTION 3.15. Patriot Act/Anti-Terrorism Controls. The Borrower is in compliance, in
all material respects, with the (a) the Trading with the Enemy Act, as amended, and each of the
foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and
(b) the Act. No part of the proceeds of the Loans will be used, directly or indirectly, for any
payments to any governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.




ARTICLE IV




Conditions



          SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section
9.02):





     (a) The Administrative Agent (or its counsel) shall have received from each party
hereto and to the other Credit Documents either (i) a counterpart of this Agreement and each
other Credit Document signed on behalf of such party or (ii) written evidence satisfactory
to the Administrative Agent (which may include telecopy or email transmission of a signed
signature page of this Agreement or such other Credit Document) that such party has signed a
counterpart of this Agreement or such other Credit Document.




     (b) The Administrative Agent, the Lenders and the Lead Arranger shall have received all
fees and other amounts due and payable by the Borrower on or prior to the Effective Date,
including, to the extent invoiced at least one day prior to the Effective Date,
reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by
the Borrower hereunder.




     (c) The Lenders shall have received (i) audited consolidated financial statements of
each of the Borrower and the Business for the two most recent fiscal years ended prior to
the Effective Date as to which such financial statements are available (it being understood
that financial statements for the Business are carve-out financials that have been prepared
according to International Reporting Financial Standards) and (ii) unaudited interim
consolidated financial statements of the Borrower for the quarterly period ending March 31,
2010 and for each quarterly period ended subsequent thereto as to which such financial
statements are available as of the Effective Date (the most recent such quarterly period
being the “Reference Quarter”).



47









 






     (d) The Lenders shall have received with respect to the Borrower and its Subsidiaries
(including subsidiaries acquired in the Acquisition) projections through 2014.




     (e) All regulatory, legal and other third party approvals necessary in connection with
the Transactions shall have been obtained.




     (f) There shall not exist any action, investigation, litigation or proceeding, pending
or threatened, in any court or before any arbitrator or Governmental Authority that could
reasonably be expected to have a Material Adverse Effect on the Borrower or the
Transactions.




     (g) The Existing Credit Agreement shall have been terminated, all principal, interest
and other amounts owing thereunder shall be contemporaneously repaid in full with the
proceeds of the Loans made on the Effective Date, all related Liens thereunder shall be
released and the Administrative Agent shall have received a payoff letter in form and
substance reasonably acceptable to it from SunTrust Bank.




     (h) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by a Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.




     (i) The Administrative Agent shall have received (x) an opinion letter from Sidley
Austin LLP, counsel for the Borrower, dated as of the Effective Date and (y) an opinion
letter from Mary Ann Hynes, Vice President, General Counsel, Corporate Secretary and Chief
Compliance Officer of the Borrower, dated as of the Effective Date, in each case, in form
and substance reasonably satisfactory to the Administrative Agent and its counsel. The
Borrower hereby requests such counsel to deliver such opinion.




     (j) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the Borrower, the authorization of the Transactions and any
other legal matters relating to the Borrower, this Agreement or the Transactions, all in
form and substance reasonably satisfactory to the Administrative Agent and its counsel.


The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section
9.02) at or prior to 3:00 p.m., New York City time, on December 18, 2010 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall terminate at such time).




          SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:







48









 









     (a) The representations and warranties of the Borrower set forth in the Credit
Documents shall be true and correct in all material respects on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable (except any such representation or warranty that expressly relates to or is
made expressly as of a specific earlier date, in which case such representation or warranty
shall be true and correct in all material respects with respect to or as of such specific
earlier date).




     (b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.


Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V




Affirmative Covenants



          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:




          SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish
to the Administrative Agent and each Lender:





     (a) within 90 days after the end of each fiscal year of the Borrower, its audited
consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by KPMG LLP or other
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 the Borrower and
its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;




     (b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, its consolidated balance sheet and related 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, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a consolidated



49









 







basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments
and the absence of footnotes;




     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.07 and 6.08;




     (d) promptly after the sending or filing thereof, copies of all periodic and other
reports, proxy statements, registration statements and prospectuses 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 distributed by the Borrower
to its shareholders generally, as the case may be, or proxy statements, registration
statements and prospectuses filed by the Borrower or any Subsidiary with any national
securities exchange;




     (e) at least three (3) Business Days prior to the consummation of any Material
Acquisition, a certificate of a Financial Officer of the Borrower in form and substance
reasonably satisfactory to the Administrative Agent setting forth reasonably detailed
calculations demonstrating pro-forma compliance with Section 6.07 immediately after
giving effect to such Material Acquisition (based on pro-forma Net Borrowed Debt immediately
after giving effect to such Material Acquisition and pro-forma Consolidated EBITDA as of the
end of the most recent fiscal quarter for which financial statements have been delivered or
are required to have been delivered pursuant to Section 5.01 for the four fiscal
quarters then ended), which calculations may, as to the entity or business to be acquired,
be based on information provided to the Borrower or its Subsidiaries and relied on in good
faith; and




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



     Notwithstanding anything to the contrary herein, (i) delivery within the 90-day period
specified in clause (a) above of copies of the Annual Report on Form 10-K of the Borrower for each
applicable annual period (including all financial statement exhibits and financial statements
incorporated by reference therein) prepared in compliance with the requirements therefor and filed
with the Securities and Exchange Commission shall be deemed to satisfy the requirements of
Section 5.01(a); provided, that the Borrower shall be deemed to have made such
delivery of any Form 10-K if it shall have made such Form 10-K available on “EDGAR” within such
90-day period (such delivery being referred to as “Electronic Delivery”), (ii) delivery
within the 45-day period specified in clause (b) above of copies of the Quarterly Report on Form
10-Q of the Borrower for each applicable quarterly period (including all financial statement
exhibits and financial statements incorporated by reference therein) prepared in compliance with
the requirements therefor and filed with the Securities and Exchange Commission shall be deemed to
satisfy the requirements of Section 5.01(b); provided, that the Borrower shall be
deemed to



50









 




have made such delivery of any Form 10-Q if it shall have made Electronic Delivery thereof
within such 45-day period, (iii) the Borrower shall be deemed to have made delivery of any reports,
statements and other materials specified in clause (d) above if it shall have made Electronic
Delivery thereof promptly after the sending or filing thereof and (iv) the Borrower shall be deemed
to have made delivery of any of the items set forth in this Section 5.01 to each Lender
upon delivery to the Administrative Agent for posting to “Intralinks” or any other electronic
distribution site.




          SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender written notice of the following as soon as possible and in any
event no later than five days after obtaining knowledge thereof:





     (a) the occurrence of any Default;




     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate
thereof that, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;




     (c) 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 a Material Adverse
Effect; and




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


Each notice delivered under this Section 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.




          SECTION 5.03. Existence; Conduct of Business. The Borrower 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; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03
or any winding up, liquidation or dissolution of any inactive Subsidiaries; provided,
further, that neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right or franchise if the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of the business of
the Borrower or such Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower, such Subsidiary or the Lenders.




          SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could
reasonably be expected to result in a Material Adverse Effect before the same shall become
delinquent or in default, except where the validity or amount thereof is being contested in good
faith by appropriate proceedings and either (a) the Borrower or such Subsidiary has set aside on






51









 







its books adequate reserves with respect thereto in accordance with GAAP or (b) the failure to
make payment pending such contest could not reasonably be expected to result in a Material Adverse
Effect.




          SECTION 5.05. Maintenance of Properties; Insurance. The Borrower 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 (provided
that this clause (a) shall not prevent the Borrower or any Subsidiary from discontinuing the
operation and the maintenance of any of its properties if such discontinuance is desirable in the
conduct of its business and such discontinuance could not, individually or in the aggregate,
reasonably be expected have a Material Adverse Effect), and (b) maintain, with responsible and
reputable insurance companies, insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating in the same or similar
locations.




          SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in which full and
correct entries are made of all financial transactions in relation to its business and activities
in accordance with GAAP or the accounting standard applicable in the jurisdiction where such books
and records are kept. The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice
and at the Administrative Agent’s or such Lender’s expense if no Default or Event of Default exists
and at the Borrower’s expense if a Default or an Event of Default exists, 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, all at such reasonable times
and as often as reasonably requested; provided that so long as no Default or Event of
Default has occurred and is continuing, no more than two (2) such visits or inspections shall be
permitted in any calendar year pursuant to this Section; provided, further, that
any Information (as defined in Section 9.12) provided to any Person in connection with any
such visit or inspection shall be subject to the provisions of Section 9.12, such Person
shall have been made aware of the provisions of Section 9.12.




          SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, including, without limitation, all Environmental Laws, except
where the failure to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.




          SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used only for general corporate purposes, including to finance the Acquisition and pay fees and
expenses related to the Acquisition and any financings (including under the Credit Documents)
related thereto. No part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the Board, including
Regulations T, U and X. Letters of Credit will be issued only to support general corporate
purposes.







52









 








ARTICLE VI




Negative Covenants



          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have
expired or been terminated and all LC Disbursements have been reimbursed, the Borrower covenants
and agrees with the Lenders that:




          SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:





     (a) Indebtedness under the Credit Documents;




     (b) Indebtedness of the Borrower existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof;




     (c) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the
Borrower or any other Subsidiary;




     (d) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary
of Indebtedness of the Borrower or any other Subsidiary;




     (e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, 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, and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that such Indebtedness is incurred
prior to or within 90 days after such acquisition or the completion of such construction or
improvement;




     (f) Obligations under (i) Swap Agreements entered into to hedge or mitigate risks to
which the Borrower or any Subsidiary has actual exposure (other than those in respect of
Equity Interests of the Borrower or any of its Subsidiaries) or (ii) Swap Agreements entered
into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary;




     (g) Indebtedness of the Borrower or any Subsidiary which constitutes Receivables
Transaction Attributed Indebtedness in an aggregate principal amount not exceeding
$100,000,000 at any time outstanding;




     (h) Indebtedness of any Person which becomes a Subsidiary after the date hereof
existing prior to the acquisition thereof or of its parent by the Borrower or any Subsidiary
and extensions, renewals and replacements of any such Indebtedness that do



53









 







not increase the outstanding principal amount thereof; provided that (i) such
Indebtedness is not incurred in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case may be and (ii) neither the Borrower nor any
Subsidiary shall be liable for such Indebtedness; and




     (i) other Indebtedness of the Borrower or any Subsidiary (including Indebtedness
arising under notional pooling cash management arrangements to the extent not matched by
cash deposits of the Borrower or any Subsidiary) so long as, both before and after giving
effect to the incurrence of such Indebtedness, the Borrower is in pro-forma compliance with
Section 6.07.


Notwithstanding the foregoing, the Borrower will not permit the aggregate principal amount of
Borrowed Debt of the Borrower’s Subsidiaries outstanding at any time and incurred or permitted
pursuant to clauses (e), (g), (h) and (i) of this Section 6.01 to exceed an amount equal to
15% of the Consolidated Net Assets of the Borrower and its Subsidiaries (determined by reference to
the most recent consolidated financial statements of the Borrower delivered pursuant to Section
5.01).




          SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:





     (a) Permitted Encumbrances;




     (b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
date hereof and set forth in Schedule 6.02; provided that (i) such Lien
shall not apply to any other property or asset of the Borrower or any Subsidiary and (ii)
such Lien shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the outstanding principal
amount thereof;




     (c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary 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 Borrower or any 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;




     (d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower
or any Subsidiary; provided that (i) such Liens, in the case of Liens on assets of
Subsidiaries, secure Indebtedness of Subsidiaries permitted by clause (d) of Section
6.01, (ii) such Liens and the Indebtedness secured thereby are incurred prior to or
within 90



54









 







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 fixed or capital assets and (iv) such Liens shall not apply
to any other property or assets of the Borrower or any Subsidiary;




     (e) Liens upon assets of an SPC granted in connection with a Permitted Securitization
(including customary backup Liens granted by the transferor in accounts receivable and
related rights or assets transferred to an SPC);




     (f) Liens on the property or assets of any Subsidiary securing Indebtedness owing to
the Borrower or any Wholly-Owned Subsidiary;




     (g) customary Liens and setoff rights securing obligations in respect of notional
pooling cash management arrangements; and




     (h) other Liens securing obligations at no time exceeding $100,000,000 in aggregate
principal amount.



          SECTION 6.03. Fundamental Changes; Asset Sales; Change in Nature of Business. (a)
The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it, except that, if at
the time thereof and immediately after giving effect thereto no Default shall have occurred and be
continuing, (i) any Subsidiary may merge or consolidate with or into any other Subsidiary, (ii) any
Subsidiary may merge into the Borrower and (iii) the Borrower and any Subsidiary may merge or
consolidate with or into any other Person; provided that in the case of any such merger or
consolidation of the Borrower with or into another Person (such that the Borrower is not the
surviving corporation), the Person with or into which the Borrower is merged or consolidated shall
(A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof
and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder pursuant
to an agreement or instrument satisfactory in form and substance to the Administrative Agent (and
shall thereafter be the Borrower hereunder) and (B) be a corporation organized under the laws of
the United States of America or any State thereof; provided, further, that this
Section 6.03(a) shall not prohibit a Subsidiary from entering into a merger as a means of
effecting an Asset Disposition permitted under Section 6.03(b).




          (b) The Borrower will not, nor will it permit any Subsidiary to, make any Asset Disposition
except for (i) Asset Dispositions expressly permitted by Section 6.04, and (ii) other Asset
Dispositions of property that, together with all other property of the Borrower and its
Subsidiaries previously leased, sold or disposed of in Asset Dispositions made pursuant to this
Section 6.03(b)(ii) during the twelve-month period ending with the month in which any such
lease, sale or other disposition occurs, do not constitute a Substantial Portion of the property of
the Borrower and its Subsidiaries.




          (c) The Borrower will not, and will not permit any of its Subsidiaries to, make any material
change in the nature of the business of such Person and its Subsidiaries taken as a whole as
conducted on the date of this Agreement (but after giving effect to the Acquisition);






55









 







provided, however, that this Section 6.03(c) shall not prohibit the
sale, transfer, winding up, liquidation or dissolution of a Subsidiary permitted under Section
5.03 or 6.03(b).




          SECTION 6.04. Restricted Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare, pay or make, or agree to declare, pay or make, directly or
indirectly, any Restricted Payment, except (a) the Borrower may declare and pay dividends with
respect to its Equity Interests payable solely in additional shares of its common stock, (b)
Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the
Borrower 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 and (d) the
Borrower may make other Restricted Payments so long as both immediately before and immediately
after giving effect to such Restricted Payments (i) no Default exists and (ii) the Borrower shall
be in pro forma compliance with Sections 6.07 and 6.08.




          SECTION 6.05. Transactions with Affiliates. The Borrower will not, and will not
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 less favorable to the Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among
the Borrower and its Subsidiaries not involving any other Affiliate, (c) any Restricted Payment
permitted by Section 6.04 and (d) notional pooling cash management arrangements extended in
the ordinary course of business.




          SECTION 6.06. Restrictive Agreements. The Borrower will not, and will not 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 the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Subsidiary 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 or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by this Agreement, (ii) the foregoing shall not apply to restrictions and conditions
existing on the date hereof identified on Schedule 6.06 (but shall apply to any extension
or renewal of, or any amendment or modification expanding 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 of a Subsidiary pending such sale, provided that such
restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) 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, (v)
clause (a) of the foregoing shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof and (vi) the foregoing shall not apply to restrictions and
conditions which (A) are not in agreements in respect of Indebtedness for borrowed money in excess
of $5,000,000 for each such agreement and (B) are existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset






56









 







of the Business or any Person that becomes a Subsidiary after the date hereof but prior to the
time such Person becomes a Subsidiary.




          SECTION 6.07. Maximum Leverage Ratio. The Borrower will not, as of any Measurement
Date, permit the Leverage Ratio to exceed (a) during the period commencing on the date hereof and
ending on (and including) the last day of the fiscal quarter during which the second anniversary of
the date of this Agreement occurs, 3.25:1.00 and (b) thereafter, 3.00:1.00.




          SECTION 6.08. Minimum Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than
3.50:1.00.




ARTICLE VII




Events of Default



          If any of the following events (“Events of Default”) shall occur:





     (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement or any cash collateral amount due pursuant to
Section 2.06(j) 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 Article) payable under this
Agreement, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five days;




     (c) any representation or warranty made or deemed made by or on behalf of the Borrower
or any Subsidiary in writing in connection with this Agreement or any Credit Document or any
amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any
report, certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver hereunder,
shall prove to have been incorrect in any material respect when made or deemed made;




     (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the Borrower’s existence)
or 5.08 or in Article VI;




     (e) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);



57









 






     (f) the Borrower 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 (subject to any applicable grace period);




     (g) any event or condition occurs (other than the voluntary sale or transfer of the
property or assets securing such Material Indebtedness) that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with
or without the giving of notice, the lapse of time or both) the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity;




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or
any Material 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 the Borrower or any Material 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) the Borrower or any Material 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 Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Material 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) the Borrower or any Material 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 shall be rendered against the Borrower, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30 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 the Borrower or any Subsidiary to
enforce any such judgment;



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     (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect; or




     (m) a Change in Control shall occur;


then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, 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 the Borrower
described in clause (h) or (i) of this Article, 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.




ARTICLE VIII




The Administrative Agent



          Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.




          The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except as expressly
set forth herein, the Administrative Agent shall not






59









 







have any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent
shall not be liable for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge
of any Default unless and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with this Agreement, (ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the Administrative Agent.




          The Administrative Agent, acting in good faith, shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing believed by it to be genuine and to have been signed or sent
by the proper Person. The Administrative Agent, acting in good faith, also may rely upon any
statement made to it orally or by telephone and believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.




          The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.




          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor agent, which successor agent shall, unless a Default shall have
occurred and be continuing, be subject to the approval of the Borrower, which approval shall not be
unreasonably withheld. If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and
the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon






60









 







the acceptance of its appointment as Administrative Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent’s resignation hereunder,
the provisions of this Article and Section 9.03 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting as Administrative
Agent.




          Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.




          The Administrative Agent shall be permitted from time to time to designate one of its
Affiliates (and hereby designates JPMEL) to perform the duties to be performed by the
Administrative Agent hereunder with respect to Loans, Borrowings and Letters of Credit denominated
in a Foreign Currency or funded through such Affiliate. The provisions of this Article VIII shall
apply to (and the rights and duties of the Administrative Agent hereunder in respect of such Loans
and Borrowings, including, without limitation, the rights of the Administrative Agent under
Section 2.07(b), shall inure to the benefit of and otherwise be applicable to) any such
Affiliate mutatis mutandis.




          No Lender identified in this Agreement as a “Co-Documentation Agent” or a “Syndication Agent”
shall have any right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the foregoing, none of such
Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender
hereby makes the same acknowledgments with respect to such Lenders as it makes with respect to the
Administrative Agent in this Article VIII.




ARTICLE IX




Miscellaneous



          SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:







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     (i) if to the Borrower, to it at Corn Products International, Inc., 5 Westbrook
Corporate Center, Westchester, Illinois 60154, Attention of Kimberly A. Hunter, Treasurer
(Telecopy No. (708) 551-2630), with a copy to Corn Products International, Inc., 5 Westbrook
Corporate Center, Westchester, Illinois 60154, Attention of Mary Ann Hynes, Vice President,
General Counsel, Corporate Secretary and Chief Compliance Officer (Telecopy No. (708)
551-2801);




     (ii) if to the Administrative Agent, to JPMorgan Chase Bank, National Association, Loan
and Agency Services Group, 10 South Dearborn Street, Floor 7, Chicago, Illinois 60603,
Attention of Hiral Patel (Telecopy No. (312) 385-7096);




     (iii) if to the Administrative Agent for Eurocurrency Loans in Foreign Currencies and
for Eurocurrency Loans in Dollars funded through JPMEL, to J.P. Morgan Europe Limited, 125
London Wall, London EC2Y-5AJ, Attention of The Manager, Loans and Agency, Telecopy No.
+44(0) 207 777 2360);




     (iv) if to the Issuing Bank, to JPMorgan Chase Bank, National Association, Loan and
Agency Services Group, 10 South Dearborn Street, Floor 7, Chicago, Illinois 60603, Attention
of Hiral Patel (Telecopy No. (312) 385-7096);




     (v) if to the Swingline Lender, to JPMorgan Chase Bank, National Association, Loan and
Agency Services Group, 10 South Dearborn Street, Floor 7, Chicago, Illinois 60603, Attention
of Hiral Patel (Telecopy No. (312) 385-7096); and




     (vi) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.



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




          (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.




          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No






62









 







waiver of any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the generality of the foregoing, the making of a
Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice
or knowledge of such Default at the time.




          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each Lender, or (v) change any
of the provisions of this Section or the definition of “Required Lenders” or any other provision
hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall (i) amend, modify or
waive Section 2.20 without the prior written consent of the Administrative Agent or (ii)
amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Issuing
Bank or the Swingline Lender hereunder without the prior written consent of the Administrative
Agent, the Issuing Bank or the Swingline Lender, as the case may be.




          (c) If, in connection with any proposed amendment, waiver or consent requiring the consent of
“each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is
obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent
is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then
the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement,
provided that, concurrently with such replacement, (i) another bank or other entity which
is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such
date, to purchase for cash at par the Loans and other Obligations due to the Non-Consenting Lender
pursuant to an Assignment and Assumption and to become a Lender for all purposes under this
Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such
date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the
Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement
(1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by
the Borrower hereunder to and including the date of termination, including without limitation
payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an
amount, if any, equal to the payment which would have been due to such Non-Consenting Lender on the
day of such replacement under






63









 







Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date
rather than sold to the replacement Lender.




          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of outside counsel for the
Administrative Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement or any other Credit Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and
documented out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent,
the Issuing Bank or any Lender, including the fees, charges and disbursements of any outside
counsel for the Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.




          (b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and disbursements of any
outside counsel for any Indemnitee, without duplication of amounts paid pursuant to Section
2.17, incurred by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of the Transactions or any other transactions contemplated hereby,
including, without limitation, the Acquisition, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit (subject to Section 2.06(f)), (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses result from the gross negligence, bad faith or
willful misconduct of such Indemnitee.




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is






64









 







sought) of such unpaid amount; provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline Lender in its capacity as such.




          (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof. No
Lender shall, by virtue of this Agreement, have or be deemed to have a fiduciary relationship with,
or owe any fiduciary duties to, the Borrower or any of its Affiliates.




          (e) All amounts due under this Section shall be payable not later than ten (10) Business Days
after written demand (accompanied by reasonably detailed invoices) therefor.




          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.




          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:





          (A) the Borrower, provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of
Default has occurred and is continuing, any other assignee;




          (B) the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of any Commitment to an assignee that is a Lender
with a Commitment immediately prior to giving effect to such assignment; and




          (C) the Issuing Bank.



65









 





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





          (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the Borrower shall be required
if an Event of Default has occurred and is continuing;




          (B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement;




          (C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500; and




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



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the
following meaning:




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





     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.15, 2.16,
2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall
be



66









 







treated for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (c) of this Section.




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




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section, any written consent to such assignment
required by paragraph (b) of this Section and, if such assignee is a Foreign Lender,
compliance by such Person with Section 2.17(e), the Administrative Agent shall
accept such Assignment and Assumption and record the information contained therein in the
Register; provided that if either the assigning Lender or the assignee shall have
failed to make any payment required to be made by it pursuant to Section 2.05(c),
2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the
Administrative Agent shall have no obligation to accept such Assignment and Assumption and
record the information therein in the Register unless and until such payment shall have been
made in full, together with all accrued interest thereon. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as provided in
this paragraph.



          (c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver described in the first proviso to Section 9.02(b) that affects such Participant
and provided further that any Participant that is a member of the Farm Credit
System that has purchased a participation in any Loan of CoBank, ACB in the minimum






67









 







aggregate amount of $5,000,000 on the Effective Date shall be entitled to vote (and the voting
rights of the selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as if
such Participant were a Lender, on any matter requiring or allowing such selling Lender to provide
or withhold its consent, or otherwise vote on any proposed action. Subject to paragraph (c)(ii) of
this Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to Section
2.18(c) as though it were a Lender.





     (ii) A Participant shall not be entitled to receive any greater payment under
Section 2.15 or 2.17 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.17 unless the Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the Borrower, to comply
with Section 2.17(e) as though it were a Lender.



          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having
jurisdiction over such Lender, and this Section shall not apply to any such pledge or assignment of
a security interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.




          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16,
2.17 and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof.




          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to fees payable to the






68









 







Administrative Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging
(including in a pdf or similar file format) shall be effective as delivery of a manually executed
counterpart of this Agreement.




          SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.




          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.




          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a)This
Agreement shall be construed in accordance with and governed by the law of the State of New York.




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in the courts of any
jurisdiction.







69









 








          (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by law.




          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.




          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.




          SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and the Lenders 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 for reasons
reasonably related to this Agreement or the Lender’s internal procedures relating to credit
facilities (it being understood that the Persons to whom such disclosure is made will be informed
of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process, (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 the enforcement of rights hereunder, (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 Borrower and its 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 (ii) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis from a source
other than the Borrower. For the purposes of this Section, “Information” means all
information






70









 







received from the Borrower relating to the Borrower or its business, the Business, the
Acquisition or the Seller, other than any such information that is available to the Administrative
Agent, the Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the
Borrower. 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.




          EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT
TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS
RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.




          ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS AFFILIATES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH
LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.




          SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.




          SECTION 9.14. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,






71









 







2001)) (the “Act”) hereby notifies the Borrower that pursuant to the requirements of
the Act, it is required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with the Act.




          SECTION 9.15. Conversion of Currencies. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal banking procedures
in the relevant jurisdiction the first currency could be purchased with such other currency on the
Business Day immediately preceding the day on which final judgment is given.




          (b) The obligations of the Borrower in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than the
currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be
discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement
Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement Currency, the Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss and if the amount of the Agreement Currency so purchased exceeds the sum
originally due to the Applicable Creditor in the Agreement Currency, the Applicable Creditor agrees
to remit such excess to the Borrower. The obligations of the Borrower contained in this
Section 9.15 shall survive the termination of this Agreement and the payment of all other
amounts owing hereunder.




[signature pages follow]




72









 





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




	 	 	 	 	 
	 	CORN PRODUCTS INTERNATIONAL, INC.

 	 
	 	By  	       /s/ Cheryl K. Beebe
 	 
	 	 	Name:  	Cheryl K. Beebe 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 
	 	 	 
	 	By  	       /s/ Kimberly A. Hunter
 	 
	 	 	Name:  	Kimberly A. Hunter 	 
	 	 	Title:  	Corporate Treasurer 	 
	 
	 	JPMORGAN CHASE BANK, NATIONAL 

ASSOCIATION, individually and as 

Administrative Agent

 	 
	 	By  	/s/ Dana J. Moran
 	 
	 	 	Name:  	Dana J. Moran 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement





 









 








	 	 	 	 	 
	 	Bank of America, N.A.

 	 
	 	By  	/s/ Adam Feit
 	 
	 	 	Name:  	Adam Feit 	 
	 	 	Title:  	Vice President 	 
	 
	 	Citibank, N.A.

 	 
	 	By  	/s/ Robert Kane
 	 
	 	 	Name:  	Robert Kane 	 
	 	 	Title:  	Vice President 	 
	 
	 	Bank of Montreal

 	 
	 	By  	/s/ Philip A. Langheim
 	 
	 	 	Name:  	Philip A. Langheim 	 
	 	 	Title:  	Managing Director 	 
	 
	 	CoBank, ACB

 	 
	 	By  	/s/ Alan V. Schuler
 	 
	 	 	Name:  	Alan V. Schuler 	 
	 	 	Title:  	Vice President 	 
	 
	 	AgFirst Farm Credit Bank

 	 
	 	By  	/s/ Neda K. Beal
 	 
	 	 	Name:  	Neda K. Beal 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement





 









 





	 	 	 	 	 
	 	BANCO BILBAO VIZCAYA ARGENTINA, S.A., 

NEW YORK BRANCH

 	 
	 	By  	/s/ Michael D'Anna
 	 
	 	 	Name:  	Michael D'Anna 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By  	                        /s/ Guilherme Gobbo
 	 
	 	 	Name:  	Guilherme Gobbo 	 
	 	 	Title:  	Vice President 	 
	 
	 	FIFTH THIRD BANK

 	 
	 	By  	/s/ Joseph A. Wemhoff
 	 
	 	 	Name:  	Joseph A. Wemhoff 	 
	 	 	Title:  	Vice President 	 
	 
	 	ING CAPITAL LLC

 	 
	 	By  	/s/ Daniel W. Lamprecht
 	 
	 	 	Name:  	Daniel W. Lamprect 	 
	 	 	Title:  	Managing Director 	 
	 
	 	LLOYDS TSB BANK, PLC

 	 
	 	By  	/s/ Windsor R. Davies
 	 
	 	 	Name:  	Windsor R. Davies 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By  	                     /s/ Candi Obrentz
 	 
	 	 	Name:  	Candi Obrentz 	 
	 	 	Title:  	Vice President 	 
	 
	 	Mizuho Corporate Bank (USA)

 	 
	 	By  	/s/ Leon Mo
 	 
	 	 	Name:  	Leon Mo 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Revolving Credit Agreement





 









 








	 	 	 	 	 
	 	PNC Bank, National Association

 	 
	 	By  	/s/ John R. Hinard
 	 
	 	 	Name:  	John R. Hinard 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	COOPERATIVE CENTRALE RAIFFEISEN-

BOERENLEENBANK, B.A., “RABOBANK 

NEDERLAND” NEW YORK BRANCH

 	 
	 	By  	/s/ Brett Delfino
 	 
	 	 	Name:  	Brett Delfino 	 
	 	 	Title:  	Executive Director 	 
	 
	 	 	 
	 	By  	                         /s/ Peter Glawe
 	 
	 	 	Name:  	Peter Glawe 	 
	 	 	Title:  	Vice President 	 
	 
	 	U.S. Bank National Association

 	 
	 	By  	/s/ Kathleen D. Schurr
 	 
	 	 	Name:  	Kathleen D. Schurr 	 
	 	 	Title:  	Vice President 	 
	 
	 	Wells Fargo Bank, N.A.

 	 
	 	By  	/s/ Daniel Van Aken
 	 
	 	 	Name:  	Daniel Van Aken 	 
	 	 	Title:  	Vice President 	 
	 
	 	Bank of China, New York Branch

 	 
	 	By  	/s/ William W. Smith
 	 
	 	 	Name:  	William W. Smith 	 
	 	 	Title:  	Chief Lending Officer 	 
	 



Signature Page to Revolving Credit Agreement




 









 








	 	 	 	 	 
	 	BRANCH BANKING AND TRUST COMPANY

 	 
	 	By  	/s/ Kenneth M. Blackwell
 	 
	 	 	Name:  	Kenneth M. Blackwell 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Comerica Bank

 	 
	 	By  	/s/ Brandon Welling
 	 
	 	 	Name:  	Brandon Welling 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 	GreenStone Farm Credit Services, ACA/FLCA

 	 
	 	By  	/s/ Curtis Flammini
 	 
	 	 	Name:  	Curtis Flammini 	 
	 	 	Title:  	Vice President 	 
	 
	 	HSBC BANK USA, N.A.

 	 
	 	By  	/s/ Graeme Robertson
 	 
	 	 	Name:  	Graeme Robertson 	 
	 	 	Title:  	Vice President 	 
	 
	 	SCOTIABANC INC.

 	 
	 	By  	                        /s/ J.F. Todd
 	 
	 	 	Name:  	J.F. Todd 	 
	 	 	Title:  	Managing Director 	 
	 
	 	The Governor and Company of the Bank of Ireland

 	 
	 	By  	/s/ Orla Jones
 	 
	 	 	Name:  	Orla Jones 	 
	 	 	Title:  	Authorised Signatory 	 
	 
	 	 	 
	 	By  	                        /s/ David Rafferty
 	 
	 	 	Name:  	David Rafferty 	 
	 	 	Title:  	Authorised Signatory 	 
	 



Signature Page to Revolving Credit Agreement





 









 





	 	 	 	 	 
	 	The Northern Trust Company

 	 
	 	By  	/s/ Keith L. Burson
 	 
	 	 	Name:  	Keith L. Burson 	 
	 	 	Title:  	Vice President 	 
	 
	 	THE BANK OF NEW YORK MELLON

 	 
	 	By  	/s/ John T. Smathers
 	 
	 	 	Name:  	John T. Smathers 	 
	 	 	Title:  	First Vice President 	 
	 
	 	Bank of China, Los Angeles Branch

 	 
	 	By  	/s/ Feng Chang
 	 
	 	 	Name:  	Feng Chang 	 
	 	 	Title:  	FVP and Branch Manager 	 
	 



Signature Page to Revolving Credit Agreement








 









 








Schedule 1.01




PRICING SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Level I	 	Level II	 	Level III
	Applicable Rate	 	Status	 	Status	 	Status
	Eurocurrency Spread
	 	 	2.00	%	 	 	2.25	%	 	 	2.50	%
	ABR Spread
	 	 	1.00	%	 	 	1.25	%	 	 	1.50	%
	Commitment Fee Rate
	 	 	0.30	%	 	 	0.35	%	 	 	0.40	%






          For the purposes of this Schedule, the following terms have the following meanings, subject to
the final paragraph of this Schedule:




          “Financials” means the annual or quarterly financial statements of the Borrower delivered
pursuant to Section 5.01 of this Agreement.




          “Level I Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Leverage Ratio is less than 2.00 to 1.00.




          “Level II Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not qualified for Level I
Status and (ii) the Leverage Ratio is less than 3.00 to 1.00.




          “Level III Status” exists at any date if the Borrower has not qualified for Level I Status or
Level II Status.




          “Status” means Level I Status, Level II Status or Level III Status.




          The Applicable Rate shall be determined in accordance with the foregoing table based on the
Borrower’s Status as reflected in the then most recent Financials. Adjustments, if any, to the
Applicable Rate shall be effective five Business Days after the Administrative Agent has received
the applicable Financials. If the Borrower fails to deliver the Financials to the Administrative
Agent at the time required pursuant to the Credit Agreement, then the Applicable Rate shall be the
highest Applicable Rate set forth in the foregoing table until five Business Days after such
Financials are so delivered. Until adjusted following delivery of Financials for the fiscal
quarter ending December 31, 2010, Level II Status shall be deemed to exist.







 









 








Schedule 2.01




Commitments




	 	 	 	 	 

	JPMorgan Chase Bank, National Association
	 	$	56,000,000	 
	Bank of America, N.A.
	 	$	45,000,000	 
	Citibank, N.A.
	 	$	45,000,000	 
	Bank of Montreal
	 	$	42,000,000	 
	CoBank, ACB
	 	$	177,000,0000	 
	AgFirst Farm Credit Bank
	 	$	42,000,000	 
	BBVA S.A.
	 	$	42,000,000	 
	Fifth Third Bank
	 	$	42,000,000	 
	ING Capital LLC
	 	$	42,000,000	 
	Lloyds TSB Bank plc
	 	$	42,000,000	 
	Mizuho Corporate Bank (USA)
	 	$	42,000,000	 
	PNC Bank, National Association
	 	$	42,000,000	 
	Rabobank International
	 	$	42,000,000	 
	U.S. Bank National Association
	 	$	42,000,000	 
	Wells Fargo Bank, N.A.
	 	$	42,000,000	 
	Branch Banking and Trust Company
	 	$	25,000,000	 
	Comerica Bank
	 	$	25,000,000	 
	Greenstone Farm Credit Services, ACA/FLCA
	 	$	25,000,000	 
	HSBC Bank USA National Association
	 	$	25,000,000	 
	Scotiabanc Inc.
	 	$	25,000,000	 
	The Governor and Company of The Bank of Ireland
	 	$	25,000,000	 
	The Northern Trust Company
	 	$	25,000,000	 
	Bank of China, New York Branch
	 	$	16,500,000	 
	The Bank of New York Mellon
	 	$	15,000,000	 
	Bank of China, Los Angeles Branch
	 	$	8,500,000	 
	 
	 	 	 	 
	TOTAL
	 	$	1,000,000,000	 







 











 





SCHEDULE 6.01




Existing Borrower Indebtedness


Private Shelf Agreement dated as of March 25, 2010 by and between Corn Products International, Inc.
and Prudential Investment Management, Inc. and the senior promissory notes thereunder in an
aggregate principal amount of $200 million (the “Private Shelf Agreement”)



$200 million 6.000% Senior Notes due 2017 and $100 million 6.625% Senior Notes due 2037 outstanding
under the Indenture Agreement dated as of August 18, 1999 between Corn Products International, Inc.
and The Bank of New York Mellon, as Trustee, as amended and supplemented (the “Senior Notes
Indenture”)



Term Loan Credit Agreement, dated as of September 2, 2010 by and among Corn Products International,
Inc., the Lenders party thereto from time to time and JPMorgan Chase Bank, National Association, as
Administrative Agent (the “Term Loan Credit Agreement”)



$0.09 million capital lease maturing 2012 between Corn Products International, Inc. and Union Tank
Car Company



Letters of Credit issued by SunTrust Bank




	 	 	 	 	 	 	 	 	 	 	 	 	 
	LC Number	 	Issue Date	 	Expiry Date	 	Amount
	F840307
	 	December 2002	 	December 2010	 	$2.75 million
	F848706
	 	July 2006	 	July 2011	 	$0.50 million
	F851830
	 	February 2008	 	April 2011	 	$0.10 million






 









 






SCHEDULE 6.02




Existing Liens


None





 









 








SCHEDULE 6.06




Existing Restrictions


Private Shelf Agreement



Senior Notes Indenture



Term Loan Credit Agreement







 









 








EXHIBIT A




ASSIGNMENT AND ASSUMPTION




          This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.




          For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.





	1.	 	Assignor:                                                                              
                        
	 
	2.	 	Assignee:                                                                          
                            

                                      [and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	3.	 	Borrower:                      Corn Products International, Inc.
	 
	4.	 	Administrative Agent: JPMorgan Chase Bank, National Association, as the administrative agent under the Credit Agreement
	 
	5.	 	Credit Agreement: The $1,000,000,000 Revolving Credit Agreement dated as of _______, 2010 among Corn
Products International, Inc., the Lenders parties thereto, JPMorgan Chase Bank, National Association, as Administrative Agent, and the other agents
parties thereto










 




			
	1	 	Select as applicable.





 









 












	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 
	Aggregate Amount of	 	Amount of	 	 	 	 
	Commitment/Loans for	 	Commitment/Loans	 	 	Percentage Assigned of	 
	all Lenders	 	Assigned	 	 	Commitment/Loans2	 
	$
	 	$	 	 	 	 	%	 
	$
	 	$	 	 	 	 	%	 
	$
	 	$	 	 	 	 	%	 





Effective Date:                           , 20      [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more Credit Contacts to whom all syndicate-level
information (which may contain material non-public information about the Borrower and its related
parties or their respective securities) will be made available and who may receive such information
in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and
state securities laws.



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR




[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	Title: 	 
	 	 	 
	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	Title: 	 
	 	 	 
	 





 




			
	2	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.




 









 









[Consented to and]3 Accepted:




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, 
as
Administrative Agent




	 	 	 	 
	 	 
	By 	 	 
	Title: 	 
	 	 
	 


[Consented to:]4



[NAME OF RELEVANT PARTY]




	 	 	 	 
	 	 
	By 	 	 
	Title: 	 
	 	 	 
	 





 




			
	3	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	4	 	To be added only if the consent of the
Borrower and/or other parties (e.g. Swingline Lender, Issuing Bank) is required
by the terms of the Credit Agreement.




 









 










ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Credit Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Credit Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Credit Document.




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Credit Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be performed by it as a
Lender.




          2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.







 









 








          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.






 









 








EXHIBIT B




MANDATORY COST





	1.	 	The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with:






	 	 	 	(a) the requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its
functions); or
	 
	 	 	 	(b) the requirements of the European Central Bank.






	2.	 	On the first day of each Interest Period (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost
Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per annum.






	3.	 	The Additional Cost Rate for any Lender lending from a Facility Office in a Participating
Member State will be the percentage notified by that Lender to the Administrative Agent. This
percentage will be certified by such Lender in its notice to the Administrative Agent to be
its reasonable determination of the cost (expressed as a percentage of such Lender’s
participation in all Loans made from such Facility Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of Loans made from that Facility
Office.






	4.	 	The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Administrative Agent as follows:






	 	(a)	 	in relation to any Loan in Sterling (if applicable):
	 
	 	 	 	AB+C(B-D)+E x 0.01 per cent per annum






	 	100	 	- (A+C)






	 	(b)	 	in relation to any Loan in any currency other than Sterling:






	 	 	 	E x 0.01            per cent per annum
	 
	 	 	 	300




Where:





 









 









	“A”	 	is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
	 
	“B”	 	is the percentage rate of interest (excluding the Applicable Rate, the
Mandatory Cost and, if applicable, the additional rate of interest
specified in Section 2.13(c)) payable for the relevant Interest Period
on such Loan.
	 
	“C”	 	is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
	 
	“D”	 	is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.
	 
	“E”	 	is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Administrative Agent as being the
average of the most recent rates of charge supplied by the Reference
Banks to the Administrative Agent pursuant to paragraph 7 below and
expressed in pounds per £1,000,000.
	 
	5.	 	For the purposes of this Schedule:
	 
	 	 	“Eligible Liabilities” and “Special Deposits” have the meanings given to them from time to
time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England.
	 
	 	 	“Facility Office” means the office or offices notified by a Lender to the Administrative
Agent in writing on or before the date it becomes a Lender (or, following that date, by not
less than five Business Days’ written notice) as the office or offices through which it will
perform its obligations under this Agreement relating to the relevant Loans.
	 
	 	 	“Fees Rules” means the rules on periodic fees contained in the Financial Services Authority
Manual or such other law or regulation as may be in force from time to time in respect of
the payment of fees for the acceptance of deposits.
	 
	 	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under the activity group A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees
Rules but taking into account any applicable discount rate).
	 
	 	 	“Reference Banks” means the principal London office of JPMorgan Chase Bank, National
Association.
	 
	 	 	“Tariff Base” has the meaning given to it in, and will be calculated in accordance
with, the Fees Rules.




 









 












	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5% will be included in the formula as 5 and not as 0.05). A negative result
obtained by subtracting D from B shall be taken as zero. The resulting figures shall be
rounded to four decimal places.






	7.	 	If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative Agent, the
rate of charge payable by such Reference Bank to the Financial Services Authority pursuant to
the Fees Rules in respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by such Reference Bank as being the average of the Fee Tariffs
applicable to such Reference Bank for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of such Reference Bank.






	8.	 	Each Lender shall supply any information required by the Administrative Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without limitation, each Lender
shall supply the following information in writing on or prior to the date on which it becomes
a Lender:






	 	(a)	 	the jurisdiction of its Facility Office; and
	 
	 	(b)	 	any other information that the Administrative Agent may reasonably require for such purpose.






	 	 	Each Lender shall promptly notify the Administrative Agent in writing of any change to the
information provided by it pursuant to this paragraph.






	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Administrative Agent
based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Administrative Agent to the contrary, each
Lender’s obligations in relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a lending office in the
same jurisdiction as its Facility Office.






	10.	 	The Administrative Agent shall have no liability to any Person if such determination results
in an Additional Cost Rate which over- or under-compensates any Lender and shall be entitled
to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs
3, 7 and 8 above is true and correct in all respects.






	11.	 	The Administrative Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based
on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7
and 8 above.




 









 












	12.	 	Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall,
in the absence of manifest error, be conclusive and binding on all parties hereto.






	13.	 	The Administrative Agent may from time to time, after consultation with the Borrower and the
relevant Lenders, determine and notify to all parties any amendments which are required to be
made to this Schedule in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other authority which replaces
all or any of its functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all parties hereto.