EX-10.1



 





Exhibit 10.1




EXECUTION VERSION




 





CREDIT AGREEMENT




Dated as of April 2, 2007




among




CELANESE HOLDINGS LLC,




CELANESE US HOLDINGS LLC




and




THE OTHER SUBSIDIARY BORROWERS,




THE LENDERS PARTY HERETO,




DEUTSCHE BANK AG, NEW YORK BRANCH,

as Administrative Agent and Collateral Agent,




MERRILL LYNCH, PIERCE,

FENNER & SMITH INCORPORATED

and

DEUTSCHE BANK SECURITIES INC.,

as Joint Lead Arrangers,




MERRILL LYNCH, PIERCE,

FENNER & SMITH INCORPORATED

and

DEUTSCHE BANK SECURITIES INC.,

as Joint Book Runners,




MERRILL LYNCH CAPITAL CORPORATION,

as Syndication Agent,




and




ABN AMRO BANK N.V.,

BANK OF AMERICA, N.A.,

CITIBANK NA,

and

JP MORGAN CHASE BANK NA,

as Co-Documentation Agents




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 
	 	 	 	 	 	 
	DEFINITIONS

	 
	 	 	 	 	 	 
	SECTION 1.01
	 	Defined Terms	 	 	2	 
	SECTION 1.02
	 	Terms Generally	 	 	52	 
	SECTION 1.03
	 	Exchange Rates	 	 	53	 
	SECTION 1.04
	 	Effectuation of Transaction	 	 	53	 
	SECTION 1.05
	 	Additional Alternative Currencies	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 	 	 
	THE CREDITS

	 
	 	 	 	 	 	 
	SECTION 2.01
	 	Commitments	 	 	54	 
	SECTION 2.02(A)
	 	Loans and Borrowings	 	 	55	 
	SECTION 2.02(B)
	 	Credit-Linked Deposit	 	 	56	 
	SECTION 2.03
	 	Requests for Borrowings	 	 	58	 
	SECTION 2.04
	 	Swingline Loans	 	 	59	 
	SECTION 2.05
	 	Letters of Credit	 	 	61	 
	SECTION 2.06
	 	Funding of Borrowings	 	 	68	 
	SECTION 2.07
	 	Interest Elections	 	 	69	 
	SECTION 2.08
	 	Termination and Reduction of Commitments	 	 	70	 
	SECTION 2.09
	 	Repayment of Loans; Evidence of Debt, etc.	 	 	71	 
	SECTION 2.10
	 	Repayment of Term Loans	 	 	73	 
	SECTION 2.11
	 	Prepayments, etc.	 	 	74	 
	SECTION 2.12
	 	Fees	 	 	75	 
	SECTION 2.13
	 	Interest	 	 	76	 
	SECTION 2.14
	 	Alternate Rate of Interest	 	 	77	 
	SECTION 2.15
	 	Increased Costs	 	 	78	 
	SECTION 2.16
	 	Break Funding Payments	 	 	79	 
	SECTION 2.17
	 	Taxes	 	 	80	 
	SECTION 2.18
	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	 	81	 
	SECTION 2.19
	 	Mitigation Obligations; Replacement of Lenders	 	 	83	 
	SECTION 2.20
	 	Revolving Borrowers	 	 	84	 
	SECTION 2.21
	 	Additional Reserve Costs	 	 	85	 
	SECTION 2.22
	 	Illegality	 	 	85	 
	SECTION 2.23
	 	New Commitments	 	 	86	 






-i-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE III

	 
	 	 	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 	 	 
	SECTION 3.01
	 	Organization; Powers	 	 	88	 
	SECTION 3.02
	 	Authorization	 	 	89	 
	SECTION 3.03
	 	Enforceability	 	 	89	 
	SECTION 3.04
	 	Governmental Approvals	 	 	89	 
	SECTION 3.05
	 	Financial Statements	 	 	90	 
	SECTION 3.06
	 	No Material Adverse Effect	 	 	90	 
	SECTION 3.07
	 	Title to Properties; Possession Under Leases	 	 	90	 
	SECTION 3.08
	 	Subsidiaries	 	 	91	 
	SECTION 3.09
	 	Litigation; Compliance with Laws	 	 	91	 
	SECTION 3.10
	 	Federal Reserve Regulations	 	 	92	 
	SECTION 3.11
	 	Investment Company Act	 	 	92	 
	SECTION 3.12
	 	Use of Proceeds	 	 	92	 
	SECTION 3.13
	 	Tax Returns	 	 	92	 
	SECTION 3.14
	 	No Material Misstatements	 	 	93	 
	SECTION 3.15
	 	Employee Benefit Plans	 	 	93	 
	SECTION 3.16
	 	Environmental Matters	 	 	94	 
	SECTION 3.17
	 	Security Documents	 	 	95	 
	SECTION 3.18
	 	Location of Real Property and Leased Premises	 	 	96	 
	SECTION 3.19
	 	Solvency	 	 	96	 
	SECTION 3.20
	 	Labor Matters	 	 	97	 
	SECTION 3.21
	 	Insurance	 	 	97	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 	 	 
	CONDITIONS OF LENDING

	 
	 	 	 	 	 	 
	SECTION 4.01
	 	All Credit Events	 	 	97	 
	SECTION 4.02
	 	First Credit Event	 	 	98	 
	SECTION 4.03
	 	Credit Events Relating to Revolving Borrowers	 	 	100	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 
	 	 	 	 	 	 
	AFFIRMATIVE COVENANTS

	 
	 	 	 	 	 	 
	SECTION 5.01
	 	Existence; Businesses and Properties	 	 	101	 
	SECTION 5.02
	 	Insurance	 	 	102	 
	SECTION 5.03
	 	Taxes	 	 	103	 
	SECTION 5.04
	 	Financial Statements, Reports, etc.	 	 	103	 
	SECTION 5.05
	 	Litigation and Other Notices	 	 	106	 
	SECTION 5.06
	 	Compliance with Laws	 	 	106	 
	SECTION 5.07
	 	Maintaining Records; Access to Properties and Inspections	 	 	107	 
	SECTION 5.08
	 	Use of Proceeds	 	 	107	 
	SECTION 5.09
	 	Compliance with Environmental Laws	 	 	107	 






-ii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 5.10
	 	Further Assurances; Additional Mortgages	 	 	107	 
	SECTION 5.11
	 	Fiscal Year; Accounting	 	 	109	 
	SECTION 5.12
	 	Interest Rate Protection Agreements	 	 	109	 
	SECTION 5.13
	 	Post-Closing Matters	 	 	109	 
	ARTICLE VI

	 
	 	 	 	 	 	 
	NEGATIVE COVENANTS

	 
	 	 	 	 	 	 
	SECTION 6.01
	 	Indebtedness	 	 	110	 
	SECTION 6.02
	 	Liens	 	 	113	 
	SECTION 6.03
	 	Sale and Lease-Back Transactions	 	 	116	 
	SECTION 6.04
	 	Investments, Loans and Advances	 	 	117	 
	SECTION 6.05
	 	Mergers, Consolidations, Sales of Assets and Acquisitions	 	 	119	 
	SECTION 6.06
	 	Dividends and Distributions	 	 	122	 
	SECTION 6.07
	 	Transactions with Affiliates	 	 	124	 
	SECTION 6.08
	 	Business of Holdings and the Subsidiaries	 	 	125	 
	SECTION 6.09
	 	Limitation on Modifications and Prepayments	 	 	125	 
	SECTION 6.10
	 	First Lien Senior Secured Leverage Ratio	 	 	127	 
	SECTION 6.11
	 	Swap Agreements	 	 	127	 
	SECTION 6.12
	 	No Other “Designated Senior Indebtedness	 	 	127	 
	SECTION 6.13
	 	Limitation on the Lenders’ Control over Certain Foreign Entities	 	 	127	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 	 	 
	EVENTS OF DEFAULT

	 
	 	 	 	 	 	 
	SECTION 7.01
	 	Events of Default	 	 	128	 
	SECTION 7.02
	 	Holdings’ Right to Cure	 	 	132	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 	 	 
	THE AGENTS

	 
	 	 	 	 	 	 
	SECTION 8.01
	 	Appointment	 	 	133	 
	SECTION 8.02
	 	Nature of Duties	 	 	134	 
	SECTION 8.03
	 	Resignation by the Agents	 	 	135	 
	SECTION 8.04
	 	The Administrative Agent in Its Individual Capacity	 	 	135	 
	SECTION 8.05
	 	Indemnification	 	 	135	 
	SECTION 8.06
	 	Lack of Reliance on Agents	 	 	136	 
	SECTION 8.07
	 	Designation of Affiliates for Loans Denominated in Euros	 	 	136	 
	SECTION 8.08
	 	No Other Duties, Etc.	 	 	136	 






-iii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE IX

	 
	 	 	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 	 	 
	SECTION 9.01
	 	Notices	 	 	136	 
	SECTION 9.02
	 	Survival of Agreement	 	 	137	 
	SECTION 9.03
	 	Binding Effect	 	 	137	 
	SECTION 9.04
	 	Successors and Assigns	 	 	138	 
	SECTION 9.05
	 	Expenses; Indemnity	 	 	141	 
	SECTION 9.06
	 	Right of Set-off	 	 	143	 
	SECTION 9.07
	 	Applicable Law	 	 	143	 
	SECTION 9.08
	 	Waivers; Amendment	 	 	143	 
	SECTION 9.09
	 	Interest Rate Limitation	 	 	146	 
	SECTION 9.10
	 	Entire Agreement	 	 	146	 
	SECTION 9.11
	 	WAIVER OF JURY TRIAL	 	 	146	 
	SECTION 9.12
	 	Severability	 	 	146	 
	SECTION 9.13
	 	Counterparts	 	 	147	 
	SECTION 9.14
	 	Headings	 	 	147	 
	SECTION 9.15
	 	Jurisdiction; Consent to Service of Process	 	 	147	 
	SECTION 9.16
	 	Confidentiality	 	 	147	 
	SECTION 9.17
	 	Conversion of Currencies	 	 	148	 
	SECTION 9.18
	 	Release of Liens and Guarantees	 	 	148	 
	SECTION 9.19
	 	Parallel Debt	 	 	149	 
	 
	 	 	 	 	 	 
	ARTICLE X

	 
	 	 	 	 	 	 
	COLLECTION ALLOCATION MECHANISM

	 
	 	 	 	 	 	 
	SECTION 10.01
	 	Implementation of CAM	 	 	149	 
	SECTION 10.02
	 	Letters of Credit	 	 	151	 
	SECTION 10.03
	 	USA PATRIOT Act	 	 	152	 







-iv-









 








Exhibits and Schedules




	 	 	 
	Exhibit A
	 	Form of Assignment and Acceptance
	Exhibit B-1
	 	Form of Borrowing Request
	Exhibit B-2
	 	Form of Request To Issue
	Exhibit C
	 	Form of Swingline Borrowing Request
	Exhibit D
	 	[Reserved]
	Exhibit E
	 	Form of Real Property Officers’ Certificate
	Exhibit F
	 	Form of Subordinated Intercompany Debt
	Exhibit G-1
	 	Form of Revolving Borrower Agreement
	Exhibit G-2
	 	Form of Revolving Borrower Termination
	Exhibit H
	 	Reserve Costs for Mandatory Costs Rate
	Exhibit I
	 	Form of Solvency Certificate
	Exhibit J
	 	Form of U.S. Collateral Agreement
	 
	 	 
	Schedule 1.01(a)
	 	Collateral and Guarantee Requirements
	Schedule 1.01(b)
	 	Designated Asset Sales
	Schedule 1.01(c)
	 	Existing Excluded Subsidiaries
	Schedule 2.01
	 	Commitments
	Schedule 2.04
	 	Swingline Commitments
	Schedule 2.05(a)
	 	Letters of Credit
	Schedule 3.01
	 	Organization
	Schedule 3.04
	 	Governmental Approvals
	Schedule 3.08(a)
	 	Subsidiaries
	Schedule 3.08(b)
	 	Subscriptions
	Schedule 3.09
	 	Litigation
	Schedule 3.13
	 	Taxes
	Schedule 3.16
	 	Environmental
	Schedule 3.20
	 	Labor Matters
	Schedule 3.21
	 	Insurance
	Schedule 4.02(b)
	 	Local/Foreign Counsel Opinion
	Schedule 5.13
	 	Post-Closing Matters
	Schedule 6.01(a)
	 	Indebtedness (other than under Letters of Credit)
	Schedule 6.01(b)
	 	Indebtedness under Letters of Credit
	Schedule 6.02(a)
	 	Liens
	Schedule 6.04(j)
	 	Existing Investment Commitments
	Schedule 6.04(u)
	 	Subsidiaries to be transferred under Finco
	Schedule 6.07
	 	Transactions with Affiliates






-v-









 





          CREDIT AGREEMENT dated as of April 2, 2007 (this “Agreement”), among CELANESE HOLDINGS
LLC, a Delaware limited liability company (“Holdings”), CELANESE US HOLDINGS LLC, a
Delaware limited liability company (the “Company”), CELANESE AMERICAS CORPORATION, a
Delaware corporation (“CAC”), certain other subsidiaries of the Company from time to time
party hereto as a borrower, the LENDERS party hereto from time to time, DEUTSCHE BANK AG, NEW YORK
BRANCH (“DBNY”), as administrative agent (in such capacity, the “Administrative
Agent”), and as collateral agent (in such capacity, the “Collateral Agent”), MERRILL
LYNCH CAPITAL CORPORATION (“MLCC”), as syndication agent (in such capacity, the
“Syndication Agent”), ABN AMRO BANK N.V., BANK OF AMERICA, N.A., CITIBANK NA and JP MORGAN
CHASE BANK NA, as co-documentation agents (in such capacity, the “Documentation Agents”),
and DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH, as Deposit Bank (in such capacity, the “Deposit
Bank”).



WITNESSETH :




          WHEREAS, Holdings, the Company, CAC and certain lenders are parties to a Credit Agreement,
dated as of April 6, 2004 and amended and restated as of January 26, 2005 (as in effect immediately
prior to the date hereof, the “Existing Credit Agreement”);



          WHEREAS, (a) Crystal US Holdings 3 L.L.C. and Crystal US Sub 3 Corp. have made an offer to
purchase for cash any and all of their outstanding 10% Senior Discount Notes due 2014 and 101/2%
Senior Discount Notes due 2014 (collectively, the “Senior Discount Notes”) and (b) the
Company has made an offer to purchase for cash any and all of its
outstanding (x) 95/8%% Senior
Subordinated Notes due 2014 (the “Dollar Senior Subordinated
Notes”) and (y) 10
3/8% Senior
Subordinated Notes due 2014 (the “Euro Senior Subordinated Notes” and, together with the
Dollar Senior Subordinated Notes, the “Senior Subordinated Notes”), in each case from the
holders thereof (the “Debt Tender Offer”);



          WHEREAS, Celanese Corporation (“Parent”), through its newly formed indirect Wholly
Owned Subsidiary Celanese International Holdings Luxembourg S.à r.l. (“Finco”), has made an
offer to purchase for cash up to $400.0 million of the outstanding Class A common stock of Parent
from the public holders thereof pursuant to a tender offer and separately from investment funds
associated with Blackstone (together, the “Equity Tender Offer”);



          WHEREAS, Finco intends to exchange the Equity Interests purchased in the Equity Tender Offer
or otherwise with an indirect subsidiary (or subsidiaries) of Parent in exchange for Equity
Interests of certain wholly owned indirect subsidiaries of Parent, with such subsidiaries becoming
subsidiaries of Finco (the “Reorganization”);



          WHEREAS, Holdings, the Company and CAC have requested the Lenders to extend credit in the form
of (a) Dollar Term Loans on the Effective Date, in an aggregate principal amount not in excess of
$2,280.0 million, (b) Euro Term Loans on the Effective Date, in an aggregate principal amount not
in excess of €400.0 million, (c) Revolving Facility Loans from time to time on and after the
Effective Date and to and including the Revolving Facility Maturity Date, in an aggregate principal
amount at any time outstanding not in excess of the Dollar Equivalent of $650.0 million, and (d) CL
Credit Events during the CL Availability Period,
in an



 









 







aggregate principal amount at any time outstanding not in excess of the Dollar
Equivalent of $228.0 million;



          WHEREAS, the proceeds of the Loans are to be used in accordance with Section 5.08;



          WHEREAS, the Guarantor Subsidiaries are willing to guarantee all of the Obligations; and



          WHEREAS, the Loan Parties have agreed to secure all of their obligations under the Loan
Documents by granting to the Collateral Agent for the benefit of Lenders and the other Secured
Parties a security interest in and lien upon certain of their and their Subsidiaries’ existing and
after-acquired personal and real property;



          NOW, THEREFORE, the Lenders are willing to extend such credit to Borrowers on the terms and
subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:



ARTICLE I




DEFINITIONS




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



          “ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.



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



          “ABR Loan” shall mean any ABR Term Loan, ABR Revolving Loan, ABR CL Loan or Swingline
Dollar Loan.



          “ABR Revolving Borrowing” shall mean a Borrowing comprised of ABR Revolving Loans.



          “ABR Revolving Loan” shall mean any Revolving Facility Loan denominated in Dollars
bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II.



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



          “Additional Dollar Term Loans” shall mean any New Term Loans which are not added to
the then outstanding Original Dollar Term Loans as contemplated by Section 2.23
because such New Term Loans have a different Applicable Margin or repayment schedule than that
applicable to the Original Dollar Term Loans.



-2-









 





          “Additional Euro Term Loans” shall mean any New Term Loans which are not added to the
then outstanding Original Euro Term Loans as contemplated by Section 2.23 because such New Term
Loans have a different Applicable Margin or repayment schedule than that applicable to the Original
Euro Term Loans.



          “Additional Mortgage” shall have the meaning assigned to such term in Section 5.10(c).



          “Adjusted LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing or the
Credit-Linked Deposits for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to five decimal places (e.g., 4.12345%) in the case of Eurocurrency Borrowings
in Dollars and three decimal places (e.g., 4.123%) in the case of Eurocurrency Borrowings
in Euros) equal to the result of dividing (a) the LIBO Rate in effect for such Interest Period by
(b) 1.00 minus the Statutory Reserves applicable to such Eurocurrency Borrowing, if any.



          “Administrative Agent” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.



          “Administrative Agent Fees” shall have the meaning assigned to such term in Section
2.12(c).



          “Affiliate” shall mean, when used 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.



          “Agents” shall mean DBNY, MLCC, ABN AMRO Bank N.V., Bank of America, N.A., Citibank NA
and JP Morgan Chase Bank NA.



          “Agreement” shall have the meaning assigned to such term in the introductory paragraph
of this Agreement.



          “Agreement Currency” shall have the meaning assigned to such term in Section 9.17(b).



          “Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greater
of (a) the Prime Rate and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. If for any reason the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate,
including the failure of the Federal Reserve Bank of New York to publish rates or the inability of
the Administrative Agent to obtain quotations in accordance with the terms thereof, the Alternate
Base Rate shall be determined without regard to clause (b) of the preceding sentence until the
circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.



-3-









 





          “Alternate Pledge Agreement” shall mean a pledge agreement in form and substance
reasonably satisfactory to the Administrative Agent and the Company effecting the pledge under
local law of not in excess of 65% of the issued and outstanding Equity Interests of a Foreign
Subsidiary in support of the Obligations of the Domestic Subsidiary Loan Party which is the owner
of such Equity Interests.



          “Alternative Currency” shall mean each of Sterling, Canadian Dollars and each other
currency (other than Dollars and Euro) that is approved in accordance with Section 1.05.



          “Alternative Currency Equivalent” shall mean, on any date of determination (a) with
respect to any amount in any Alternative Currency, such amount in the applicable currency, (b) with
respect to any amount in Dollars, the equivalent in applicable Alternative Currency of such amount,
determined by the Administrative Agent or L/C Lender, as applicable, pursuant to Section 1.03(b)
using the Exchange Rate with respect to such currency at the time in effect under the provisions of
such Section and (c) with respect to any amount in Euro, the equivalent in applicable Alternative
Currency of such amount, determined by the Administrative Agent or L/C Lender, as applicable,
pursuant to Section 1.03(b) using the Exchange Rate with respect to such currency at the time in
effect under the provisions of such Section



          “Alternative Currency Letter of Credit” shall mean a Letter of Credit denominated in
any Alternative Currency.



          “Applicable CL Margin” shall mean, at any time, (a) until delivery of financial
statements for the first full fiscal quarter commencing on or after the Effective Date, 1.75% per
annum, and (b) thereafter, the applicable percentage per annum set forth in the grid included in
the proviso to the definition of “Applicable Margin”.



          “Applicable Creditor” shall have the meaning assigned to such term in Section 9.17(b).



          “Applicable Margin” shall mean with respect to (A) any CL Loan, the Applicable CL
Margin, (B)(i) any Term Loan that is a Eurocurrency Loan, (x) 1.75% per annum if a Dollar Term Loan
and (y) 1.75% per annum if a Euro Term Loan and (ii) any Term Loan that is an ABR Loan, 0.75% per
annum and (C) any Loan that is a Revolving Facility Loan, the rate set forth below corresponding to
Topco’s or Holdings’, as applicable, corporate family rating from Moody’s and Holdings’ corporate
credit rating from S&P as of the most recent Calculation Date (for purposes of the table below, “/”
shall mean “and” and all ratings assume a stable or better outlook):



	 	 	 	 	 	 	 	 	 
	 	 	Eurocurrency	 	 
	Ratings	 	Loans	 	ABR Loans
	>Ba2/BB
	 	 	1.00	%	 	 	0	%
	  Ba2/BB
	 	 	1.25	%	 	 	0.25	%
	<Ba2/BB
	 	 	1.50	%	 	 	0.50	%






-4-









 





provided that with respect to CL Loans, Term Loans that are Eurocurrency Loans and Term
Loans that are ABR Loans, after delivery of financial statements for the first full fiscal quarter
commencing on or after the Effective Date, the Applicable Margin with respect to CL Loans, Term
Loans that are Eurocurrency Loans and Term Loans that are ABR Loans shall be the following
percentages per annum, based upon the Total Net Leverage Ratio as set forth in the most recent
compliance certificate received by the Administrative Agent pursuant to Section 5.04(c):




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Term Loans that	 	 
	Total Net Leverage	 	 	 	 	 	are Eurocurrency	 	Term Loans that
	Ratio
	 	CL Loans	 	Loans	 	areABR Loans
	>2.25: 1.0
	 	 	1.75	%	 	 	1.75	%	 	 	0.75	%
	£2.25: 1.0
	 	 	1.50	%	 	 	1.50	%	 	 	0.50	%






     For the purposes of the pricing grid set forth above, changes in the Applicable Margin
resulting from changes in the Total Net Leverage Ratio shall become effective on the date (the
“Adjustment Date”) that is three Business Days after the date on which financial statements
are delivered to the Lenders pursuant to Section 5.04, commencing with the delivery of such
financial statements for the first full fiscal quarter of Holdings commencing after the Effective
Date, and shall remain in effect until the next change to be effected pursuant to this paragraph.
If any financial statements referred to above are not delivered within the time periods specified
in Section 5.04, then, at the option of the Administrative Agent or the Required Lenders, until the
date that is three Business Days after the date on which such financial statements are delivered,
the highest pricing level shall apply as of the first Business Day after the date on which such
financial statements were to have been delivered but were not delivered.



          “Applicant Party” shall mean, with respect to a Letter of Credit, the Loan Party for
whose account such Letter of Credit is being issued (with all CL Letters of Credit to be issued for
the account of the applicable CL Borrower).



          “Approved Fund” shall mean 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 and that is administered, managed or advised by a Lender, an
Affiliate of a Lender or an entity (including an investment advisor) or an Affiliate of such
entity that administers, manages or advises a Lender.



          “Asset Acquisition” shall mean any Permitted Business Acquisition, the aggregate
consideration for which exceeds $15.0 million.



          “Asset Disposition” shall mean any sale, transfer or other disposition by Holdings or
any Subsidiary to any Person other than Holdings or any Subsidiary to the extent otherwise
permitted hereunder of any asset or group of related assets (other than inventory or other assets



-5-









 







sold, transferred or otherwise disposed of in the ordinary course of business) in one or a series
of related transactions, the Net Proceeds from which exceed $35.0 million.



          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee, and accepted by the Administrative Agent and the Company (if required by
such assignment and acceptance), substantially in the form of Exhibit A or such other form
as shall be approved by the Administrative Agent.



          “Available Amount” shall mean, on any date of determination, an amount equal to (a)
50% of Consolidated Net Income of Holdings for the period commencing on the first day of the fiscal
quarter in which the Effective Date occurs and ending on the last day of the then most recent
fiscal quarter or fiscal year, as applicable, for which financial statements required to be
delivered pursuant to Section 5.04(a) or Section 5.04(b), and the related certificate required to
be delivered pursuant to Section 5.04(c), have been received by the Administrative Agent (or, in
the case that Consolidated Net Income for such period is a deficit, minus 100% of such deficit),
plus (b) the aggregate net cash proceeds and the fair market value, as determined in good
faith by the board of directors of Holdings, of property and marketable securities received by
Holdings after the Effective Date (x) from the issue or sale (other than to Holdings or any
Subsidiary or to an employee stock ownership plan or trust established by the Company or any
Subsidiary) of Equity Interests of Holdings or any Parent Company so long as such net proceeds are
simultaneously contributed to the equity of Holdings (other than Disqualified Stock and Permitted
Cure Securities), and/or (y) from contributions (other than from Holdings or any Subsidiary) to the
capital of Holdings (other than contributions in the form of Disqualified Stock and other than
Permitted Cure Securities), plus (c) the amount by which the aggregate principal amount (or
accreted value, if less) of Indebtedness of Holdings or any Subsidiary is reduced on Holdings’
consolidated balance sheet upon the conversion or exchange after the Effective Date of that
Indebtedness for Equity Interests (other than Disqualified Stock) of Holdings, plus the net cash
proceeds received by Holdings at the time of such conversion or exchange, if any, less the amount
of any cash, or the fair market value of any property (other than such Equity Interests),
distributed by Holdings upon such conversion or exchange, plus (d) 100% of the aggregate
net cash proceeds received by Holdings or a Subsidiary on or after the Effective Date from (i)
Investments permitted by clause (II) of the proviso to Section 6.04(b), whether through interest
payments, principal payments, dividends or other distributions and payments, or the sale or other
disposition (other than to Holdings or a Subsidiary) thereof made by Holdings and its Subsidiaries
and (ii) a cash dividend from, or the sale (other than to Holdings or a Subsidiary) of the Equity
Interests of, an Unrestricted Subsidiary, in each case to the extent not otherwise included in
Consolidated Net Income of Holdings for such period, plus (e) in the event of any
Subsidiary Redesignation, the fair market value, as determined in good faith by the board of
directors of Holdings, of the Investments of Holdings and the Subsidiaries in such Unrestricted
Subsidiary (or of the assets transferred or conveyed, as applicable) at the time, plus (f)
$200.0 million, minus (g) the aggregate amount of any Investments made pursuant to clause
(II) of the proviso to Section 6.04(b) or Section 6.04(l)(ii), minus (h) the aggregate
amount of any dividends declared pursuant to Section 6.06(e), minus (i) the aggregate
amount of any payments of principal made pursuant to
Section 6.09(b)(I).



-6-









 





          “Available Revolving Unused Commitment” shall mean, with respect to a Revolving
Facility Lender at any time, an amount equal to the amount by which (a) the Revolving Facility
Commitment of such Revolving Facility Lender at such time exceeds (b) the Revolving Facility Credit
Exposure of such Revolving Facility Lender at such time.



          “Blackstone” shall mean The Blackstone Group and its affiliates or any other
investment vehicle controlled by any of them.



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



          “Borrower” shall mean and include (i) the Company, as the sole borrower under the Term
Loan Facility, a CL Borrower and a Revolving Borrower, (ii) CAC as a CL Borrower and as a Revolving
Borrower and (iii) each other subsidiary that is designated as a Revolving Borrower.



          “Borrower Representative” shall mean the Company.



          “Borrowing” shall mean a group of Loans of a single Type under a single Facility and
made on a single date and, in the case of Eurocurrency Loans, as to which a single Interest Period
is in effect.



          “Borrowing Minimum” shall mean (a) in the case of a CL Borrowing, a Term Borrowing
and/or a Revolving Facility Borrowing denominated in Dollars, $5.0 million, (b) in the case of a
Term Borrowing or Revolving Facility Borrowing denominated in Euros, €3.0 million, (c) in the
case of a Swingline Dollar Borrowing, $500,000 and (d) in the case of a Swingline Euro Borrowing,
€500,000.



          “Borrowing Multiple” shall mean (a) in the case of a CL Borrowing, a Term Borrowing or
a Revolving Facility Borrowing denominated in Dollars, $1.0 million, (b) in the case of a Term
Borrowing or Revolving Facility Borrowing denominated in Euros, €600,000, (c) in the case of a
Swingline Dollar Borrowing, $500,000 and (d) in the case of a Swingline Euro Borrowing,
€500,000.



          “Borrowing Request” shall mean a request by a Borrower in accordance with the terms of
Section 2.03 and substantially in the form of Exhibit B-1.



          “Business Day” shall mean 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;
provided that (a) when used in connection with a Eurocurrency Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in deposits in the
applicable currency in the London interbank market, (b) when used in connection with a Loan
denominated in Euros, the term “Business Day” shall also exclude any day on which the TARGET
payment system is not open for the settlement of payments in Euros and (c) when used in connection
with a Letter of Credit denominated in an Alternative Currency, the term “Business Day” shall also
exclude any day on which banks are closed for foreign exchange business in the principal financial
center of the country of such currency.



-7-









 





          “CAC” shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.



          “CAG” shall mean Celanese AG, a company organized under the laws of Germany.



          “Calculation Date” shall mean (a) the last Business Day of each calendar month, (b)
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 with respect to any
Revolving Facility Loan denominated in Euros, (ii) the issuance of a Euro Letter of Credit (iii)
the issuance of an Alternative Currency Letter of Credit or (iv) a request for a Swingline Euro
Borrowing and (c) if an Event of Default under Section 7.01(b) or (c) has occurred and is
continuing, any Business Day as determined by the Administrative Agent in its sole discretion.



          “CAM” shall mean the mechanism for the allocation and exchange of interests in the
Loans, participations in Letters of Credit and collections thereunder established under Article X.



          “CAM Exchange” shall mean the exchange of the Lenders’ interests provided for in
Section 10.01.



          “CAM Exchange Date” shall mean the first date after the Effective Date on which there
shall occur (a) any event described in paragraph (h) or (i) (other than clause (vii) thereof) of
Section 7.01 with respect to any Borrower or (b) an acceleration of Loans pursuant to Section 7.01.



          “CAM Percentage” shall mean, as to each Lender, a fraction, expressed as a decimal, of
which (a) the numerator shall be the sum of (i) the Dollar Equivalent, determined using the
Exchange Rates calculated as of the CAM Exchange Date, of the aggregate Obligations owed to such
Lender, (ii) the Revolving L/C Exposure, if any, of such Lender (less unreimbursed L/C
Disbursements included therein), (iii) the CL L/C Exposure, if any, of such Lender (less
unreimbursed L/C Disbursements included therein) and (iv) the Swingline Exposure, if any, of such
Lender, in each case immediately prior to the CAM Exchange Date, and (b) the denominator shall be
the sum of (i) the Dollar Equivalent, determined using the Exchange Rates calculated as of the CAM
Exchange Date, of the aggregate Obligations owed to all the Lenders, (ii) the aggregate Revolving
L/C Exposure of all the Lenders (less unreimbursed L/C Disbursements included therein) and (iii)
the aggregate CL L/C Exposure of all the Lenders (less unreimbursed L/C Disbursements included
therein), in each case immediately prior to the CAM
Exchange Date; provided that, for purposes of clause (a) above, the Obligations owed
to a Swingline Lender will be deemed not to include any Swingline Loans except to the extent
provided in clause (a)(iv) above.



          “Canadian Dollars” or “C$” shall mean lawful money of Canada.



          “Capital Expenditures” shall mean, for any Person in respect of any period, the
aggregate of all expenditures incurred by such Person during such period that, in accordance with
US GAAP, are or should be included in “additions to property, plant or equipment” or similar items
reflected in the statement of cash flows of such Person.



-8-









 





          “Capital Lease Obligations” of any Person shall mean 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 US GAAP and, for purposes
hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with US GAAP.



          “Captive Insurance Subsidiaries” shall mean Celwood Insurance Company and Elwood
Insurance Limited, and any successor to either thereof to the extent such successor constitutes a
Subsidiary.



          “Cash Interest Expense” shall mean, with respect to Holdings and the Subsidiaries on a
consolidated basis for any period, Interest Expense for such period, less the sum of (a)
pay-in-kind Interest Expense or other noncash Interest Expense (including as a result of the
effects of purchase accounting), (b) to the extent included in Interest Expense, write-offs of or
the amortization of any financing fees paid by, or on behalf of, Holdings or any Subsidiary,
including such fees paid in connection with the Transaction and prepayment premiums and costs paid
in connection with the Transaction, (c) write-offs of or the amortization of debt discounts, if
any, or fees in respect of Swap Agreements and (d) cash interest income of Holdings and its
Subsidiaries for such period; provided that Cash Interest Expense shall exclude any
financing fees paid in connection with the Transaction (or any refinancing of any Indebtedness
incurred in connection therewith to the extent that such financing fees are paid with the proceeds
from such refinancing Indebtedness) or any amendment of this Agreement or upon entering into a
Permitted Receivables Financing.



          A “Change in Control” shall be deemed to occur if:




     (a) at any time, (i) Parent shall fail to own, directly or indirectly, beneficially and
of record, 100% of the issued and outstanding Equity Interests of Holdings, (ii) Holdings
shall fail to own, directly or indirectly, beneficially and of record, 100% of the issued
and outstanding Equity Interests of the Company or (iii) a majority of the seats (other than
vacant seats) on the board of directors of Holdings shall at any time be occupied by Persons
who were neither (A) nominated by the board of directors of Holdings or a Parent Company,
(B) appointed by directors so nominated nor (C) appointed by a Parent Company; or




     (b) any Person or group (within the meaning of Rule 13d-5 of the Exchange Act as in
effect on the Effective Date) shall own beneficially (within the meaning of such Rule),
directly or indirectly, in the aggregate Equity Interests representing 35% or more of the
aggregate ordinary voting power represented by the issued and outstanding Equity Interests
of Parent.



     “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the
Effective Date, (b) any change in law, rule or regulation or in the official interpretation or
application thereof by any Governmental Authority after the Effective Date or (c) compliance by any
Lender or Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender’s or Issuing Bank’s holding company, if any) with any written request,



-9-









 







guideline
or directive (whether or not having the force of law) of any Governmental Authority made or issued
after the Effective Date.



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



          “CL Availability Period” shall mean the period from and including the Effective Date
to but excluding the Revolving Facility Maturity Date and in the case of each CL Loan, CL Credit
Event and CL Letter of Credit, the date of termination of the Total Credit-Linked Commitment.



          “CL Borrower” shall mean either CAC or the Company (whomsoever of the two is
designated in the applicable Borrowing Request or Request to Issue).



          “CL Borrowing” shall mean a Borrowing comprised of CL Loans.



          “CL Credit Event” shall mean and include (i) the incurrence of a CL Loan and (ii) the
issuance of a CL Letter of Credit.



          “CL Exposure” shall mean at any time the sum of (a) the aggregate outstanding
principal amount of all CL Loans at such time plus (b) the CL L/C Exposure of all CL Lenders at
such time. The CL Exposure of any CL Lender at any time shall mean its CL Percentage of the
aggregate CL Exposure at such time.



          “CL Facility” shall mean the Credit-Linked Commitments and the CL Loans made hereunder
and the CL Letters of Credit issued hereunder.



          “CL Facility Fee” shall have the meaning provided in Section 2.12(b).



          “CL Interest Payment Date” shall mean (i) in the case of the first CL Interest Payment
Date, the last day of the third Interest Period applicable to Credit-Linked Deposits occurring
after the Effective Date and (ii) the last day of every third Interest Period applicable to
Credit-Linked Deposits to occur thereafter.



          “CL L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount
of all CL Letters of Credit denominated in Dollars outstanding at such time, (b) the Dollar
Equivalent of the aggregate undrawn amount of all CL Letters of Credit denominated in
Euros or Alternative Currencies outstanding at such time, (c) the aggregate principal amount
of all Dollar L/C Disbursements made in respect of CL Letters of Credit that have not yet been
reimbursed at such time and (d) the Dollar Equivalent of the aggregate principal amount of all Euro
and Alternative Currency L/C Disbursements made in respect of CL Letters of Credit that have not
yet been reimbursed at such time. The CL L/C Exposure of any CL Lender at any time shall mean its
CL Percentage of the aggregate CL L/C Exposure at such time.



          “CL Lender” shall mean each Lender having a Credit-Linked Commitment (or, to the
extent terminated, an outstanding Credit-Linked Deposit).



-10-









 





          “CL Letter of Credit” shall mean each Letter of Credit designated as such in
Schedule 2.05(a), in the relevant Request to Issue or as provided in Section 2.05.



          “CL Loan” shall mean a Loan made by a CL Lender pursuant to Section 2.01(c). Each CL
Loan shall be denominated in Dollars and shall be a Eurocurrency Loan or an ABR Loan.



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



          “CL Reserve Account” shall have the meaning assigned to such term in Section 10.02(a).



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



          “Collateral” shall mean all the “Collateral” as defined in any Security Document and
shall also include the Mortgaged Properties and any other property subject or purported to be
subject from time to time to a Lien under any Security Document.



          “Collateral Agent” shall have the meaning given such term in the introductory
paragraph of this Agreement.



          “Collateral and Guarantee Requirements” shall mean the requirements that:




     (a) on the Effective Date, the Collateral Agent shall have received from the Borrowers
and each Domestic Subsidiary Loan Party, a counterpart of the U.S. Collateral Agreement duly
executed and delivered on behalf of such Person;




     (b) on the Effective Date or as otherwise provided in the U.S. Collateral Agreement,
the Collateral Agent shall have received (I) a pledge of all the issued and outstanding
Equity Interests of each Domestic Subsidiary (that is not a Quasi-Foreign
Subsidiary) owned on the Effective Date directly by or on behalf of Holdings, Company
or any Domestic Subsidiary Loan Party and (II) a pledge of 65% of the outstanding voting
Equity Interests and 100% of the non-voting Equity Interests of each “first tier” Foreign
Subsidiary and Quasi-Foreign Subsidiary owned on the Effective Date directly by Holdings,
Company or a Domestic Subsidiary Loan Party, such pledge to be made pursuant to an Alternate
Pledge Agreement for any material Foreign Subsidiary organized in a jurisdiction the laws of
which prohibit, or require additional actions for the enforcement of, the pledge of the
Equity Interests under the U.S. Collateral Agreement, if the Collateral Agent reasonably
requests;



-11-









 






     (c) in the case of any Person that is a Foreign Revolving Borrower, the Collateral
Agent shall have received, unless it has waived such requirement for such Foreign Revolving
Borrower (for reasons of cost, legal limitations or such other matters as deemed appropriate
by the Administrative Agent), a counterpart of a Foreign Pledge Agreement by the direct
parent company of such Foreign Revolving Borrower with respect to all of the Equity
Interests owned by such parent company in such Foreign Revolving Borrower, provided
that the Equity Interests of a Foreign Revolving Borrower shall not have to be so pledged if
such pledge would result in materially adverse tax or legal consequences to Holdings and its
Subsidiaries (as determined by Holdings in good faith);




     (d) in the case of any Person that becomes a Domestic Subsidiary Loan Party after the
Effective Date, the Collateral Agent shall have received (i) a Supplement to the U.S.
Collateral Agreement duly executed and delivered on behalf of such Person and (ii) if such
Person owns Equity Interests of a Foreign Subsidiary organized in a jurisdiction that, as a
result the law of any such jurisdiction, cannot be pledged, or require additional actions
for the enforcement, under local applicable law to the Collateral Agent under the U.S.
Collateral Agreement, if the Collateral Agent reasonably requests, a counterpart of an
Alternate Pledge Agreement with respect to such Equity Interests (provided that in
no event shall more than 65% of the issued and outstanding voting Equity Interests of any
Foreign Subsidiary or Quasi-Foreign Subsidiary, including pursuant to a U.S. Collateral
Agreement, be pledged to secure Obligations of Domestic Loan Parties), duly executed and
delivered on behalf of such Subsidiary;




     (e) all the Equity Interests that are acquired by a Loan Party (other than a Foreign
Revolving Borrower) after the Effective Date shall be pledged pursuant to the U.S.
Collateral Agreement or the Holdings Agreement, as the case may be, or, to the extent
representing Equity Interests in a Foreign Revolving Borrower, a Foreign Pledge Agreement,
as applicable (provided that in no event shall more than 65% of the issued and
outstanding voting Equity Interests of any Foreign Subsidiary or Quasi-Foreign Subsidiary,
including pursuant to a U.S. Collateral Agreement, be pledged to secure Obligations of
Domestic Loan Parties);




     (f) the Collateral Agent shall have received all certificates or other instruments (if
any) representing all Equity Interests required to be pledged pursuant to any of the
foregoing paragraphs, together with stock powers or other instruments of
transfer with respect thereto endorsed in blank, in each case to the extent reasonably
requested by counsel to the Lenders, or such other action shall have been taken as required
under applicable law to perfect a security interest in such Equity Interests as reasonably
requested by counsel to the Lenders;




     (g) all Indebtedness of Holdings and each Subsidiary having an aggregate principal
amount that has a Dollar Equivalent in excess of $10.0 million (other than intercompany
current liabilities incurred in the ordinary course) that is owing to any Domestic Loan
Party shall be evidenced by a promissory note or an instrument and shall have been pledged
pursuant to the U.S. Collateral Agreement, and the Collateral Agent shall have



-12-









 







received all
such promissory notes or instruments, together with note powers or other instruments of
transfer with respect thereto endorsed in blank;




     (h) all documents and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Collateral Agent to be executed,
filed, registered or recorded to create the Liens intended to be created by the Security
Documents (in each case, including any supplements thereto) and perfect such Liens to the
extent required by, and with the priority required by, the Security Documents, shall have
been executed, filed, registered or recorded or delivered to the Collateral Agent for
filing, registration or the recording concurrently with, or promptly following, the
execution and delivery of each such Security Document, subject to the exceptions and
exclusions set forth in the Security Documents;




     (i) the Collateral Agent shall have received, (i) counterparts to each Mortgage with
respect to each Mortgaged Property subject thereto duly executed and delivered by the record
owner of such Mortgaged Property, (ii) policy or policies of title insurance, paid for by
CAC, issued by a nationally recognized title insurance company insuring (subject to such
survey exceptions for the Mortgaged Properties as the Collateral Agent may agree) the Lien
of each Mortgage as a valid first Lien on the Mortgaged Property described therein, free of
any other Liens except as permitted by Section 6.02, together with such endorsements,
coinsurance and reinsurance as the Collateral Agent may reasonably request, (iii) except for
any Mortgaged Property with respect to which the Collateral Agent shall not require such a
survey and, otherwise only to the extent required to obtain the title policy insurance
referred to in clause (ii) above, a survey of each Mortgaged Property subject to a Mortgage
(and all improvements thereon) which is (1) dated (or redated) not earlier than six months
prior to the date of delivery thereof unless there shall have occurred within six months
prior to such date of delivery any exterior construction on the site of such Mortgaged
Property, in which event such survey shall be dated (or redated) after the completion of
such construction or if such construction shall not have been completed as of such date of
delivery, not earlier than 20 days prior to such date of delivery, (2) certified by the
surveyor (in a manner reasonably acceptable to the Administrative Agent) to the
Administrative Agent, the Collateral Agent and the title insurance company insuring the
Mortgage, (3) complying in all respects with the minimum detail requirements of the American
Land Title Association as such requirements are in effect on the date of preparation of such
survey and (4) sufficient for such title insurance company to remove all standard survey
exceptions from the title
insurance policy relating to such Mortgaged Property or otherwise reasonably acceptable
to the Collateral Agent, (iv) with respect to each Mortgaged Property, each Loan Party shall
have made notifications, registrations and filings to the extent required by and in
accordance with Governmental Real Property Disclosure Requirements applicable to such
Mortgaged Property, (v) such legal opinions and other documents as the Collateral Agent may
reasonably request with respect to any such Mortgage or Mortgaged Property, (vi) a completed
Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each
Mortgaged Property and (vii) a Real Property Officer’s Certificate with respect to each
Mortgaged Property subject to a Mortgage; and



-13-









 






     (j) each Loan Party shall have obtained all material consents and approvals required to
be obtained by it in connection with (A) the execution, delivery and performance of all
Security Documents (or supplements thereto) to which it is a party and (B) the granting by
it of the Liens under each Security Document to which it is party.



          “Commitments” shall mean (a) with respect to any Lender, such Lender’s commitment to
make Term Loans under Section 2.01(a), Revolving Facility Commitment and/or Credit-Linked
Commitment and (b) with respect to any Swingline Lender, its Swingline Dollar Commitment or
Swingline Euro Commitment, as applicable.



          “Company” shall have the meaning assigned to that term in the introductory paragraph
of this Agreement.



          “Confidential Information Memorandum” shall mean the Confidential Information
Memorandum dated March 2007 provided to prospective Lenders in connection with this Agreement, as
modified or supplemented.



          “Consolidated Debt” at any date shall mean the sum of (without duplication) (i) all
Indebtedness consisting of Capital Lease Obligations, Indebtedness for borrowed money and
Indebtedness in respect of the deferred purchase price of property or services (and not including
any indebtedness under letters of credit (x) to the extent undrawn or (y) if drawn, to the extent
reimbursed within 10 Business Days after such drawing) of Holdings and its Subsidiaries determined
on a consolidated basis on such date plus (ii) any Receivables Net Investment.



          “Consolidated First Lien Senior Secured Debt” at any date shall mean any Consolidated
Debt secured by a Lien that is not contractually subordinated to any other Lien securing any
Consolidated Debt, excluding, however, up to $120,395,000 aggregate principal amount of conditional
or installment sale industrial revenue and pollution control bonds of the Subsidiaries existing on
the Effective Date (to the extent outstanding at the time of determination).



          “Consolidated Net Debt” at any date shall mean (A) Consolidated Debt on such date less
(B) unrestricted cash or marketable securities (determined in accordance with US GAAP) of Holdings
and its Subsidiaries on such date.



          “Consolidated Net Income” shall mean, with respect to any Person for any period, the
aggregate of the Net Income of such Person and its subsidiaries for such period, on a consolidated
basis; provided, however, that




     (i) any net after-tax extraordinary, special (to the extent reflected as a separate
line item on a consolidated income statement prepared in accordance with US GAAP on a basis
consistent with historical practices), unusual or non-recurring gain or loss (less all fees
and expenses relating thereto) or income or expense or charge including, without limitation,
any severance expense, and fees, expenses or charges related to any offering of Equity
Interests of Holdings, any Investment, acquisition or Indebtedness permitted to be incurred
hereunder (in each case, whether or not successful), including all fees, expenses, charges,
prepayment premiums or other costs or change in control payments related to the Transaction
(including, without limitation, all Transaction Costs), in each



-14-









 







case shall be excluded;
provided that each non-recurring item will be identified in reasonable detail in the
compliance certificate delivered pursuant to Section 5.04(c),




     (ii) any net after-tax income or loss from discontinued operations and any net
after-tax gain or loss on disposal of discontinued operations shall be excluded,




     (iii) any net after-tax gain or loss (less all fees and expenses or charges relating
thereto) attributable to business dispositions or asset dispositions other than in the
ordinary course of business (as determined in good faith by Holdings) shall be excluded,




     (iv) any net after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be excluded,




     (v) (A) the Net Income for such period of any Person that is not a subsidiary of such
Person, or that is accounted for by the equity method of accounting, shall be included only
to the extent of the amount of dividends or distributions or other payments in respect of
equity paid in cash (or to the extent converted into cash) to such Person or a subsidiary
thereof in respect of such period, but excluding any such dividend, distribution or payment
in respect of equity that funds a JV Reinvestment, and (B) the Net Income for such period
shall include any dividend, distribution or other payment in respect of equity in cash
received from any Person in excess of the amounts included in clause (A), but excluding any
such dividend, distribution or payment that funds a JV Reinvestment,




     (vi) the Net Income for such period of any subsidiary of such Person shall be excluded
to the extent that the declaration or payment of dividends or similar distributions by such
subsidiary of its Net Income is not at the date of determination permitted without any prior
governmental approval (which has not been obtained) or, directly or indirectly, by the
operation of the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule, or governmental regulation applicable to that subsidiary or its stockholders,
unless such restriction with respect to the payment of dividends or in similar distributions
has been legally waived (provided that the net loss of any such subsidiary shall be
included), provided that such Net Income shall be
included to the extent (and only to the extent) such subsidiary may (without violation of
law or binding contractual arrangements) make loans and/or advances to its parent
corporation (which corporation may in turn dividend, loan and/or advance the proceeds of
such loans or advances to its parent corporation and so on for all parents until reaching
the Company) and/or to the Company,




     (vii) Consolidated Net Income for such period shall not include the cumulative effect
of a change in accounting principles during such period,




     (viii) an amount equal to the amount of Tax Distributions actually made to the direct
or indirect holders of its Equity Interests in respect of the net taxable income allocated
by such Person to such holders for such period to the extent funded by the Company shall be
included as though such amounts had been paid as income taxes directly by such Person,



-15-









 






     (ix) any increase in amortization or depreciation or any one-time noncash charges (such
as purchased in-process research and development or capitalized manufacturing profit in
inventory) resulting from purchase accounting in connection with any acquisition that is
consummated prior to or after the Effective Date shall be excluded, and




     (x) net after-tax income or loss attributable to the Fraport Transaction shall be
excluded, including, but not limited to, any gain or loss recognized on the sale of the land
and costs incurred to (a) prematurely terminate leasing arrangements at the existing
Kelsterbach site, (b) certify products produced at the new manufacturing facility for
existing customers, (c) train new employees, (d) run the new and existing manufacturing
facilities in parallel, (e) move offices and laboratories from the existing facilities to
the new facilities and (f) retain existing employees.



          “Consolidated Total Assets” shall mean, as of any date, the total assets of Holdings
and its consolidated Subsidiaries, determined in accordance with US GAAP, as set forth on the
consolidated balance sheet of Holdings as of such date.



          “Control” shall mean 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 ownership of
voting securities, by contract or otherwise, and “Controlling” and “Controlled”
shall have meanings correlative thereto.



          “Credit Event” shall have the meaning assigned to such term in Article IV.



          “Credit-Linked Commitment” shall mean, for each CL Lender, the Dollar Equivalent on
the Effective Date of the amount set forth opposite such Lender’s name on Schedule 2.01
directly below the column entitled “Credit-Linked Commitment” or in the Assignment and Acceptance
pursuant to which such CL Lender shall have assumed its Credit-Linked Commitment, as applicable, as
the same may be (x) reduced from time to time pursuant to Section 2.08(d) and (y) reduced or
increased from time to time as a result of assignments by or to such Lender pursuant to Section
9.04.



          “Credit-Linked Deposit” shall mean, as to each CL Lender, the cash deposit made by
such CL Lender pursuant to Section 2.02(B)(a), as such deposit may be (x) reduced from time to time
pursuant to the terms of this Agreement and (y) reduced or increased from time to time pursuant to
assignments by or to such CL Lender pursuant to Section 9.04(b). The initial amount of each CL
Lender’s Credit-Linked Deposit shall be equal to the amount of its Credit-Linked Commitment on the
Effective Date or on the date that such Person becomes a CL Lender pursuant to Section 9.04(b).



          “Credit-Linked Deposit Account” shall mean the account of, and established by, the
Deposit Bank under its sole and exclusive control and maintained at the office of the Deposit Bank,
and designated as the “Celanese Credit-Linked Deposit Account” that shall be used solely for the
purposes set forth in Sections 2.05(e) and 2.06(a).



          “Credit-Linked Deposit Cost Amount” shall mean, at any time, an amount (expressed in
basis points) determined by the Deposit Bank in consultation with the Company based



-16-









 







on the term on
which the Credit-Linked Deposits are invested from time to time and representing the Deposit Bank’s
administrative cost for investing the Credit-Linked Deposits and any reserve costs attributable
thereto.



          “Cure Amount” shall have the meaning assigned to such term in Section 7.02.



          “Cure Right” shall have the meaning assigned to such term in Section 7.02.



          “DBNY” shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.



          “DBSI” shall mean Deutsche Bank Securities Inc.



          “Debt Tender Offer” shall have the meaning assigned to such term in the recitals to
this Agreement.



          “Default” shall mean any event or condition that upon notice, lapse of time or both
would constitute an Event of Default.



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



          “Deposit Bank” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.



          “Designated Asset Sales” shall mean those proposed asset sales of the Company set
forth on Schedule 1.01(b).



          “Designation Investment Value” shall have the meaning assigned to such term in the
definition of “Unrestricted Subsidiary” in this Section 1.01.



          “Disqualified Stock” shall mean, with respect to any Person, any Equity Interests of
such Person which, by their terms (or by the terms of any security into which they are
convertible or for which they are putable or exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable (other than as a result of a Change in Control or a
sale of all or substantially all of such Person’s assets), pursuant to a sinking fund obligation or
otherwise, or is redeemable in whole or in part, in each case prior to the date 91 days after the
Term Loan Maturity Date; provided, however, that if such Equity Interests are
issued to any plan for the benefit of employees of any Parent Company or its Subsidiaries or by any
such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely
because it may be required to be repurchased by the Parent Company or its Subsidiaries in order to
satisfy applicable statutory or regulatory obligations.



          “Documentation Agents” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.



          “Dollar Equivalent” shall mean, on any date of determination (a) with respect to any
amount in Dollars, such amount, (b) with respect to any amount in Euros, the equivalent in



-17-









 







Dollars
of such amount, determined by the Administrative Agent or the applicable Issuing Bank, as
applicable, pursuant to Section 1.03(a) using the Exchange Rate with respect to such currency at
the time in effect under the provisions of such Section and (c) with respect to any amount
denominated in any Alternative Currency, the equivalent in Dollars, determined by the
Administrative Agent or the applicable Issuing Bank, as the case may be, pursuant to Section
1.03(a) on the basis of the Exchange Rate (determined in respect of the most recent Calculation
Date) for the purchase of Dollars with respect to such Alternative Currency at the time in effect
under the provisions of such Section.



          “Dollar Letter of Credit” shall mean a Letter of Credit denominated in Dollars.



          “Dollar Senior Subordinated Notes” shall have the meaning assigned to such term in the
recitals to this Agreement.



          “Dollar Term Loan” shall mean (x) each Original Dollar Term Loan and (y) each
Additional Dollar Term Loan.



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



          “Domestic Loan Parties” shall mean at any time Holdings, the Company and each Domestic
Subsidiary Loan Party.



          “Domestic Subsidiary” of any Person shall mean a Subsidiary of such Person that is not
(a) a Foreign Subsidiary or (b) a subsidiary of a Foreign Subsidiary.



          “Domestic Subsidiary Loan Party” shall mean each Guarantor Subsidiary.



          “Domestic Swingline Borrower” shall mean each Revolving Borrower that is not a Foreign
Subsidiary that has been designated to the Administrative Agent in writing by the Company as a
Domestic Swingline Borrower, provided that (x) its Maximum Credit Limit will remain
unchanged and (y) there shall not be more than two Domestic Swingline Borrowers at
any time and provided, further, that the Company may revoke any such
designation as to any such Person at a time when no Swingline Loans are outstanding to such Person.



          “EBITDA” shall mean, with respect to Holdings and the Subsidiaries on a consolidated
basis for any period, the Consolidated Net Income of Holdings and the Subsidiaries for such period
plus (a) the sum of (in each case without duplication and to the extent the respective
amounts described in subclauses (i) through (xi) of this clause (a) reduced such Consolidated Net
Income for the respective period for which EBITDA is being determined):




     (i) provision for Taxes based on income, profits or capital of Holdings and the
Subsidiaries for such period, including, without limitation, state, franchise and similar
taxes (such as the Texas franchise tax and Michigan single business tax) (including any Tax
Distribution taken into account in calculating Consolidated Net Income),



-18-









 






     (ii) Interest Expense of Holdings and the Subsidiaries for such period (net of interest
income for such period of Holdings and its Subsidiaries other than the cash interest income
of the Captive Insurance Subsidiaries),




     (iii) depreciation and amortization expenses of Holdings and the Subsidiaries for such
period,




     (iv) restructuring charges; provided that each non-recurring item will be
identified in reasonable detail in the compliance certificate delivered pursuant to Section
5.04 (c),




     (v) any other noncash charges (but excluding any such charge which requires an accrual
of, or a cash reserve for, anticipated cash charges for any future period); provided
that, for purposes of this subclause (v) of this clause (a), any noncash charges or losses
shall be treated as cash charges or losses in any subsequent period during which cash
disbursements attributable thereto are made,




     (vi) the minority interest expense consisting of the subsidiary income attributable to
minority equity interests of third parties in any non-Wholly Owned Subsidiary in such period
or any prior period, except to the extent of dividends declared or paid on Equity Interests
held by third parties,




     (vii) the noncash portion of “straight-line” rent expense,




     (viii) the amount of any expense to the extent a corresponding amount is received in
cash by any Loan Party from a Person other than Holdings or any Subsidiary of Holdings under
any agreement providing for reimbursement of any such expense provided such reimbursement
payment has not been included in determining EBITDA (it being understood that if the amounts
received in cash under any such agreement in any period exceed the amount of expense in
respect of such period, such excess amounts received may be carried forward and applied
against expense in future periods),




     (ix) turnaround costs and expenses to the extent treated as, and included in computing
for the period expended, Capital Expenditures,




     (x) transaction and similar fees payable to Blackstone as permitted by Section 6.07,
and




     (xi) any net losses resulting from currency Swap Agreements entered into in the
ordinary course of business relating to intercompany loans among or between Holdings and/or
any of its Subsidiaries to the extent that the nominal amount of the related Swap Agreement
does not exceed the principal amount of the related intercompany loan;




minus (b) the sum of (in each case without duplication and to the extent the
respective amounts described in subclauses (i) to (iv) of this clause (b) increased such
Consolidated Net Income for the respective period for which EBITDA is being determined):



-19-









 






          (i) the minority interest income consisting of subsidiary losses attributable
to the minority equity interests of third parties in any non-Wholly Owned
Subsidiary,




          (ii) noncash items increasing Consolidated Net Income of Holdings and the
Subsidiaries for such period (but excluding any such items (A) in respect of which
cash was received in a prior period or will be received in a future period or (B)
which represent the reversal of any accrual of, or cash reserve for, anticipated
cash charges in any prior period),




          (iii) the cash portion of “straight-line” rent expense which exceeds the amount
expensed in respect of such rent expense, and




          (iv) any net gains resulting from currency Swap Agreements entered into in the
ordinary course of business relating to intercompany loans among or between Holdings
and/or any of its Subsidiaries to the extent that the nominal amount of the related
Swap Agreement does not exceed the principal amount of the related intercompany
loan.



          “Effective Date” shall mean the date that any Loan is first made or Letter of Credit
first issued under this Agreement.



          “EMU Legislation” shall mean the legislative measures of the European Union for the
introduction of, changeover to or operation of the Euro in one or more member states of the
European Union.



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



          “Environmental Laws” shall mean all applicable laws (including common law), rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions, or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating in any way to the
protection of the Environment, preservation or reclamation of natural resources, the generation,
management, Release or threatened Release of, or exposure to, any Hazardous Material or to health
and safety matters (to the extent relating to the Environment or exposure to Hazardous Materials).



          “Equity Interests” of any Person shall mean any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of or interests in (however
designated) equity of such Person, including any preferred stock, convertible preferred equity
certificate (whether or not equity under local law), any limited or general partnership interest
and any limited liability company membership interest.



          “Equity Tender Offer” shall have the meaning assigned to such term in the recitals to
this Agreement.



-20-









 





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



          “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with Holdings, the Company or a Subsidiary, 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” shall mean (a) any Reportable Event; (b) with respect to a Plan, the
failure to satisfy the minimum funding standard of Section 412 of the Code or Section 302 of ERISA,
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA (or Section 412(c) of the Code and Section 302(c) of ERISA, as amended by the Pension
Protection Act of 2006) of an application for a waiver of the minimum funding standard with respect
to any Plan, the failure to make by its due date a required installment under Section 412(m) of the
Code (or Section 430(j) of the Code, as amended by the Pension Protection Act of 2006) with respect
to any Plan or the failure to make any required contribution to a Multiemployer Plan; (d) the
incurrence by Holdings, the Company, a Subsidiary or any ERISA Affiliate of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by Holdings, the
Company, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan under
Section 4042 of ERISA; (f) the incurrence by Holdings, the Company, a Subsidiary or any ERISA
Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by Holdings, the Company, a Subsidiary or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from Holdings, the Company, a
Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.



          “Euro” or “€” shall mean the single currency of the European Union as
constituted by the treaty establishing the European Community being the Treaty of Rome, as amended
from time to time and as referred to in the EMU Legislation.



          “Euro Equivalent” shall mean, on any date of determination, (a) with respect to any
amount in Euros, such amount, (b) with respect to any amount in Dollars, the equivalent in Euros of
such amount, determined by the Administrative Agent or the applicable Issuing Bank, as applicable,
pursuant to Section 1.03(a) using the Exchange Rate with respect to such currency of the time in
effect under the provisions of such Section and (c) with respect to any amount denominated in any
Alternative Currency, the equivalent in Euros, determined by the Administrative Agent or the
applicable Issuing Bank, as the case may be, pursuant to Section 1.03(a) on the basis of the
Exchange Rate (determined in respect of the most recent Calculation Date) for the purchase of Euros
with respect to such Alternative Currency at the time in effect under the provisions of such
Section.



          “Euro Letter of Credit” shall mean a Letter of Credit denominated in Euros.



          “Euro Senior Subordinated Notes” shall have the meaning assigned to such term in the
recitals to this Agreement.



-21-









 





          “Euro Term Loan” shall mean each Term Loan denominated in Euros.



          “Eurocurrency Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.



          “Eurocurrency CL Loan” shall mean any CL Loan bearing interest at a rate determined by
reference to the Adjusted LIBO Rate in accordance with Article II.



          “Eurocurrency Loan” shall mean any Eurocurrency Term Loan, Eurocurrency Revolving Loan
or Eurocurrency CL Loan.



          “Eurocurrency Revolving Borrowing” shall mean a Borrowing comprised of Eurocurrency
Revolving Loans.



          “Eurocurrency Revolving Loan” shall mean any Revolving Facility Loan bearing interest
at a rate determined by reference to the Adjusted LIBO Rate in accordance with the provisions of
Article II.



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



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



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



          “Exchange Rate” shall mean on any day, for purposes of determining the Dollar
Equivalent, Euro Equivalent or Alternative Currency Equivalent of any other currency, the rate
at which such other currency may be exchanged into Dollars, Euros or any Alternative Currency
(as applicable), as set forth in the Wall Street Journal published on such date for such currency.
In the event that such rate does not appear in such copy of the Wall Street Journal, 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 Company, 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 10:00 a.m.,
Local Time, on such date for the purchase of Dollars, Euros or any Alternative Currency (as
applicable) 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, the Administrative Agent may, in
consultation with the Company, use any reasonable method it deems appropriate to determine such
rate, and such determination shall be prima facie evidence thereof.



          “Excluded Indebtedness” shall mean all Indebtedness permitted to be incurred under
Section 6.01 (other than Section 6.01(o)).



          “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of



-22-









 







any obligation of
a Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income 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,
(b) any branch profits tax or any similar tax that is imposed by any jurisdiction described in
clause (a) above and (c) in the case of a Lender (other than an assignee pursuant to a request by a
Borrower under Section 2.19(b)), any withholding tax imposed by the United States (other than a
withholding tax levied upon any amounts payable to such Lender in respect of any interest in any
Loan acquired by such Lender pursuant to Section 10.01) that is in effect and would apply to
amounts payable hereunder to such Lender at the time such Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Lender’s failure to comply with
Section 2.17(e) with respect to such Loans except to the extent that such Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from a Borrower with respect to any withholding tax pursuant to Section
2.17(a).



          “Existing Credit Agreement” shall have the meaning assigned to such term in the
recitals to this Agreement.



          “Existing Excluded Subsidiary” shall mean each Subsidiary listed on Schedule
1.01(c); so long as the representation and warranty in Section 3.08(c) remains true with
respect to such Subsidiary.



          “Existing Letter of Credit” shall mean each letter of credit or bank guaranty
previously issued for the account of the Company or any of its subsidiaries by a Person that is on
the Effective Date an L/C Lender (or an Affiliate of such Person) to the extent such letter of
credit or bank guaranty (a) was outstanding on the Effective Date and (b) is listed on Schedule
2.05(a).



          “Facility” shall mean the respective facility and commitments utilized in making Loans
and credit extensions hereunder, it being understood that as of the Effective Date, there are three
Facilities, i.e., the Term Loan Facility, the Revolving Facility and the CL Facility.



          “Federal Funds Effective Rate” shall mean, for any day, the weighted average (rounded
upward, 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 which is a Business Day, the average (rounded upward, if necessary, to the
next 1/100 of 1%) of the quotations for the day of such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.



          “Fee Letters” shall mean that certain Fee Letter dated March 7, 2007 by and among the
Company and the Joint Book Runners and the Administrative Agent’s Fee Letter referred to in Section
2.12(c).



          “Fees” shall mean the RF Commitment Fees, the L/C Participation Fees, the CL Facility
Fee, the Issuing Bank Fees and the Administrative Agent Fees.



-23-









 





          “Financial Officer” of any Person shall mean the Chief Financial Officer, principal
accounting officer, Treasurer, Assistant Treasurer or Controller of such Person.



          “Financial Performance Covenant” shall mean the covenant of Holdings set forth in
Section 6.10.



          “Finco” shall have the meaning assigned to such term in the recitals to this
Agreement.



          “First Lien Senior Secured Leverage Ratio” shall mean, on any date, the ratio of (a)
Consolidated First Lien Senior Secured Debt as of such date to (b) EBITDA for the relevant Test
Period; provided that if any Asset Disposition, any Asset Acquisition (or any similar
transaction or transactions that require a waiver or consent by the Required Lenders under Section
6.04 or 6.05), any Investment the aggregate amount of which exceeds $15.0 million or incurrence or
repayment of Indebtedness (excluding normal fluctuations in revolving Indebtedness incurred for
working capital purposes and excluding any Indebtedness permitted to be incurred by Section 6.01
(other than Section 6.01(1)) and incurred on (but not prior to) the date of determination) has
occurred, or any part of the business of Holdings and its Subsidiaries is designated as a
discontinued operation to the extent the aggregate fair market value of all such designations
exceeds $15.0 million, or any Subsidiary has been designated as an Unrestricted Subsidiary or any
Subsidiary Redesignation has occurred, in each case during the relevant Test Period or in the case
of any Asset Acquisition, after the last day of the Test Period and on or prior to the date as of
which such ratio is being calculated (the period from the first day of the Test Period to and
including such date of determination being the “Calculation Period”), Consolidated First
Lien Senior Secured Debt and EBITDA shall be determined for the respective Test Period on a Pro
Forma Basis for such occurrences and designations.



          “Fixed Charge Coverage Ratio” shall mean, on any date, the ratio of (a) EBITDA for the
relevant Test Period to (b) the Fixed Charges of Holdings for such period; provided that if
any Asset Disposition or any Asset Acquisition (or any similar transaction or transactions that
require a waiver or consent by the Required Lenders under Section 6.04 or 6.05), any Investment the
aggregate amount of which exceeds $15.0 million or incurrence or repayment of Indebtedness
(excluding normal fluctuations in revolving Indebtedness incurred for working capital purposes and
excluding any Indebtedness permitted to be incurred by Section 6.01 (other than Section 6.01(1))
and incurred on (but not prior to) the date of determination) has occurred, or any part of the
business of Holdings and its Subsidiaries is designated as a discontinued operation to the extent
the aggregate fair market value of all such designations exceeds $15.0 million, or any Subsidiary
has been designated as an Unrestricted Subsidiary or any Subsidiary Redesignation has occurred, in
each case during the relevant Test Period, EBITDA and Cash Interest Expense shall be determined for
the respective Test Period on a Pro Forma Basis for such occurrences and designations.



          “Fixed Charges” shall mean, with respect to Holdings for any period, the sum of,
without duplication:




     (1) Cash Interest Expense of Holdings for such period,



-24-









 






     (2) all cash dividends paid during such period on any series of preferred stock of any
Subsidiary of Holdings (other than a Guarantor Subsidiary and net of items eliminated in
consolidation), and




     (3) all dividends paid during such period (excluding items eliminated in consolidation)
on any series of Disqualified Stock of Holdings or any Subsidiary.



          “Foreign Lender” shall mean any Lender that is organized under the laws of a
jurisdiction other than the United States of America. 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 Pledge Agreement” shall mean a pledge agreement with respect to the Pledged
Collateral that constitutes Equity Interests of a Foreign Revolving Borrower, in form and substance
reasonably satisfactory to the Collateral Agent, that will secure Obligations of such Foreign
Revolving Borrower.



          “Foreign Revolving Borrower” shall mean each Revolving Borrower that is a Foreign
Subsidiary.



          “Foreign Subsidiary” shall mean 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.



          “Foreign Subsidiary Loan Party” shall mean at any time each Foreign Revolving Borrower
and the Foreign Subsidiary (if any) that is the direct parent thereof to the extent it has pledged
the Equity Interests of such Revolving Borrower to secure its Revolving Facility Loans.



          “Foreign Swingline Borrower” shall mean each Foreign Revolving Borrower that has been
designated to the Administrative Agent in writing by the Company as a Foreign Swingline Borrower,
provided that (x) its Maximum Credit Limit will remain unchanged and (y) there shall not be
more than two Foreign Swingline Borrowers at any time and, provided, further, that
the Company may revoke any such designation as to any Person at a time when no Swingline Loans are
outstanding to such Person.



          “Fraport Transactions” shall mean (i) the relocation of a plant owned by Ticona GmbH,
a Subsidiary, located in Kelsterbach, Germany, in connection with a settlement reached with Fraport
AG, a German company that operates the airport in Frankfurt, Germany, to relocate such plant, and
the payment to Ticona in connection with such settlement of a total of €650 million for the
costs associated with the transition of the business from the current location and closure of the
Kelsterbach plant, as further described in the current report on Form 8-K filed by the Parent with
the SEC on November 29, 2006 and the exhibits thereto, and (ii) the activities of Holdings and its
Subsidiaries in connection with the transactions described in clause (i), including the selection
of a new site, building of new production facilities and transition of business activities.



-25-









 





          “Governmental Authority” shall mean any federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory or legislative body.



          “Governmental Real Property Disclosure Requirements” shall mean any Requirement of Law
of any Governmental Authority requiring notification of the buyer, lessee, mortgagee, assignee or
other transferee of any real property, facility, establishment or business, or notification,
registration or filing to or with any Governmental Authority, in connection with the sale, lease,
mortgage, assignment or other transfer (including any transfer of control) of any real property,
facility, establishment or business, of the actual or threatened presence or Release in or into the
Environment, or the use, disposal or handling of Hazardous Material on, at, under or near the real
property, facility, establishment or business to be sold leased, mortgaged, assigned or
transferred.



          “Guarantee” of or by any Person (the “guarantor”) shall mean (a) any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to
take-or-pay or otherwise) or to purchase (or to advance or supply funds for the purchase of) any
security for the payment of such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such Indebtedness or
other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, (iv) entered into for the purpose of assuring
in any other manner the holders of such Indebtedness or other obligation of the payment thereof or
to protect such holders against loss in respect thereof (in whole or in part) or (v) as an account
party in
respect of any letter of credit or letter of guaranty issued to support such Indebtedness or
other obligation of another Person, or (b) any Lien on any property of the guarantor securing any
Indebtedness (or any existing right, contingent or otherwise, of the holder of Indebtedness to be
secured by such a Lien) of any other Person, whether or not such Indebtedness or other obligation
is assumed by the guarantor; provided, however, that the term “Guarantee” shall not
include endorsements for collection or deposit, in either case in the ordinary course of business,
or customary and reasonable indemnity obligations. The amount of any Guarantee obligation of any
guarantor shall be deemed to be an amount equal to the stated or determinable amount of the
Indebtedness in respect of which such Guarantee is made or, if not stated or determinable, such
guarantor’s maximum reasonably anticipated liability in respect thereof as determined by the
Company in good faith. The term “guarantee” as a verb shall have a corresponding meaning.



          “Guarantor Subsidiary” shall mean each Domestic Subsidiary of the Company, with an
exception for Celwood Insurance Company (a Captive Insurance Subsidiary), each Existing Excluded
Subsidiary and any Special Purpose Receivables Subsidiary and with such other exceptions as are
satisfactory to the Administrative Agent.



-26-









 





          “Hazardous Materials” shall mean all pollutants, contaminants, wastes, chemicals,
materials, substances and constituents, including, without limitation, explosive or radioactive
substances or petroleum or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls or radon gas, of any nature subject to regulation or which can give rise
to liability under any Environmental Law.



          “Holdings” shall have the meaning assigned to such term in the introductory paragraph
of this Agreement.



          “Increased Amount Date” shall have the meaning assigned to such term in Section 2.23.



          “Incurrence Ratios” shall mean (i) a First Lien Senior Secured Leverage Ratio of less
than 4.50 to 1.00 and (ii) a Fixed Charge Coverage Ratio of greater than 2.00 to 1.00.



          “Indebtedness” of any Person shall mean, 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 under conditional sale or other
title retention agreements relating to property purchased by such Person (provided that
where the rights, remedies and recourse of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property, only the lesser of the amount of
such obligation and the fair market value of such property shall constitute Indebtedness), (d) all
obligations of such Person issued or assumed as the deferred purchase price of property or services
(not including any contingent earn-out payments or fixed earn-out payments unless not paid when
due, and other than trade liabilities, current accounts, and intercompany liabilities and other
similar obligations (but not any refinancings, extensions, renewals or replacements thereof)
maturing within 365 days after the incurrence thereof and reimbursement obligations in respect of
trade letters of credit obtained in the ordinary course of business with expiration dates not in
excess of 365 days from the date of issuance (x) to the extent undrawn or (y) if drawn, to the
extent repaid in full within 10 Business Days of any such drawing), (e) all Guarantees by such
Person of Indebtedness of others, (f) all Capital Lease Obligations of such Person, (g) all
payments that such Person would have to make in the event of an early termination, on the date
Indebtedness of such Person is being determined, in respect of outstanding Swap Agreements, (h)
except as provided in clause (d) above, the principal component of all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit and (i) the principal
component of all obligations of such Person in respect of bankers’ acceptances. The Indebtedness
of any Person (x) shall include the Indebtedness of any partnership in which such Person is a
general partner, other than to the extent that the instrument or agreement evidencing such
Indebtedness expressly limits the liability of such Person in respect thereof, and (y) shall
exclude any Indebtedness of a third party that is not an Affiliate of Holdings or any of its
Subsidiaries and that is attributable to supply or lease arrangements as a result of consolidation
under FIN 46 or attributable to take-or-pay contracts that are accounted for in a manner similar to
a capital lease under EITF 01-8 in either case so long as (i) such supply or lease arrangements or
such take-or-pay contracts are entered into in the ordinary course of business, (ii) the board of
directors of Holdings or the applicable Subsidiary has approved any such supply or lease
arrangement or any such take-or-pay contract and (iii) notwithstanding anything to the contrary
contained in the definition



-27-









 







of EBITDA, the related expense under any such supply or lease
arrangement or under any such take-or-pay contract is treated as an operating expense that reduces
EBITDA.



          “Indemnified Taxes” shall mean all Taxes other than Excluded Taxes.



          “Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).



          “Installment Date” shall have the meaning assigned to such term in Section 2.10(a).



          “Intercreditor Agreement” shall mean an intercreditor agreement entered into in
connection with a Permitted Receivables Financing in form and substance reasonably satisfactory to
the Administrative Agent.



          “Interest Election Request” shall mean a request by a Borrower to convert or continue
a Term Borrowing, Revolving Borrowing or CL Borrowing in accordance with Section 2.07.



          “Interest Expense” shall mean, with respect to any Person for any period, the sum of
(a) net interest expense of such Person for such period on a consolidated basis, including (i) the
amortization of debt discounts, (ii) the amortization of all fees (including fees with respect to
Swap Agreements) payable in connection with the incurrence of Indebtedness to the extent included
in interest expense, (iii) the portion of any payments or accruals with respect to Capital Lease
Obligations allocable to interest expense and (iv) commissions, discounts, yield and other fees and
charges incurred in connection with any Permitted Receivables Financing which are payable to any
Person other than Holdings, the Company or a Subsidiary Loan Party and (b) capitalized interest
expense of such Person during such period, excluding, however, (A) amortization or write-off of
Indebtedness issuance costs, commissions, fees and expenses and prepayment premiums and costs, (B)
customary commitment, administrative and transaction fees and charges, and (C) termination costs or
termination payments in respect of Swap Agreements
and Permitted Receivables Financings. For purposes of the foregoing, (x) gross interest
expense shall be determined after giving effect to any net payments made or received and costs
incurred by Holdings and the Subsidiaries with respect to Swap Agreements and (y) Interest Expense
shall exclude any interest expense on Indebtedness of a third party that is not an Affiliate of
Holdings or any of its Subsidiaries and that is attributable to supply or lease arrangements as a
result of consolidation under FIN 46 or attributable to take-or-pay contracts that are accounted
for in a manner similar to a capital lease under EITF 01-8 in either case so long as the underlying
obligations under any such supply or lease arrangement or under any such take-or-pay contract are
not treated as Indebtedness as provided in clause (y) of the second sentence of the definition of
Indebtedness.



          “Interest Payment Date” shall mean (a) 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 that would have been an Interest Payment Date had successive Interest Periods of three months’
duration been applicable to such Borrowing and, in addition, the date of any refinancing or
conversion of such Borrowing with or to a Borrowing of a different Type, (b) with



-28-









 







respect to any
ABR Loan, the last day of each of the following months: March, June, September and December, (c)
with respect to any Swingline Dollar Loan, the day that such Swingline Dollar Loan is required to
be repaid pursuant to Sections 2.09(a) and (d) with respect to any Swingline Euro Loan, the last
day of the Interest Period applicable to such Swingline Euro Loan or any day otherwise agreed to by
the Swingline Euro Lenders.



          “Interest Period” shall mean (a) as to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day
(or, if there is no numerically corresponding day, on the last day) in the calendar month that is
1, 2, 3 or 6 months thereafter (or (x) such shorter period as to which the Administrative Agent may
agree in its sole discretion or (y) in the case of Term Borrowings or Revolving Facility
Borrowings, 9 or 12 months, if at the time of the relevant Borrowing, all relevant Lenders make
interest periods of such length available), as the Borrower Representative, on behalf of the
applicable Borrower, may elect, or the date any Eurocurrency Borrowing is converted to an ABR
Borrowing in accordance with Section 2.07 or repaid or prepaid in accordance with Section 2.09,
2.10 or 2.11 and (b) as to any Swingline Euro Borrowing, the period commencing on the date of such
Borrowing and ending on the day that is designated in the notice delivered pursuant to Section 2.04
with respect to such Swingline Euro Borrowing, which shall not be later than the seventh day
thereafter; provided, however, that if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended or shortened in accordance with the
Modified Following Business Day Convention. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.



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



          “Issuing Bank” shall mean DBNY and each other Issuing Bank designated pursuant to
Section 2.05(k), in each case in its capacity as an issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section 2.05(i) and, solely with
respect to an Existing Letter of Credit (and any amendment, renewal or extension thereof in
accordance with this Agreement), the Lender that issued such Existing Letter of Credit. An Issuing
Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.



          “Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.12(b).



          “Joint Book Runners” shall mean MLPF&SI and DBSI.



          “Joint Lead Arrangers” shall mean MLPF&SI and DBSI.



          “Judgment Currency” shall have the meaning assigned to such term in Section 9.17(b).



-29-









 





          “JV Reinvestment” shall mean any investment by Company or any Subsidiary in a joint
venture to the extent funded with the proceeds of a reasonably concurrent dividend or other
distribution made by such joint venture.



          “L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank
pursuant to a Letter of Credit.



          “L/C Lender” shall mean a Lender with a Revolving Facility Commitment and/or a
Credit-Linked Commitment.



          “L/C Participation Fee” shall have the meaning assigned such term in Section 2.12(b).



          “Lender” shall mean each financial institution listed on Schedule 2.01, as
well as any Person that becomes a “Lender” hereunder pursuant to Section 9.04.



          “Lender Default” shall mean (i) the refusal (which has not been retracted) of a Lender
to make available its portion of any Borrowing, to acquire participations in a Swingline Loan
pursuant to Section 2.04 or to fund its portion of any unreimbursed payment under Section 2.05(e),
or (ii) a Lender having notified in writing the Borrower Representative and/or the Administrative
Agent that it does not intend to comply with its obligations under Section 2.04, 2.05 or 2.06.



          “Letter of Credit” shall mean any letter of credit or bank guarantee (including each
Existing Letter of Credit) issued pursuant to Section 2.05. Letters of Credit shall be either CL
Letters of Credit or RF Letters of Credit.



          “LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest
Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m.,
London time, on the Quotation Day for such Interest Period by reference to the
applicable Screen Rate, for a period equal to such Interest Period; provided that, to
the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this
definition, the “LIBO Rate” shall be the average (rounded upwards, if necessary, to five decimal
places (e.g., 4.12345%) in the case of Eurocurrency Borrowings in Dollars and three decimal
places (e.g., 4.123%) in the case of Eurocurrency Borrowings in Euros)of the respective
interest rates per annum at which deposits in the currency of such Borrowing are offered for such
Interest Period to major banks in the London interbank market by Deutsche Bank AG at approximately
11:00 a.m., London time, on the Quotation Day for such Interest Period.



          “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, encumbrance, charge or security interest in or on 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.



-30-









 





          “Loan Documents” shall mean this Agreement, the Letters of Credit, the Security
Documents, the Intercreditor Agreement and any promissory note issued under Section 2.09(e), and
solely for the purposes of Section 7.01(c) hereof, the Fee Letters.



          “Loan Participant” shall have the meaning assigned to such term in Section 9.04(c).



          “Loan Parties” shall mean Holdings, the Company and each Subsidiary Loan Party.



          “Loans” shall mean the Term Loans, the Revolving Facility Loans, the CL Loans and the
Swingline Loans (and shall include any New Term Loans and any Replacement Term Loans).



          “Local Time” shall mean (a) with respect to a Loan or Borrowing denominated in
Dollars, New York City time, (b) with respect to a Loan or Borrowing denominated in Euros, London
time, (c) with respect to Letters of Credit denominated in Sterling, London time, (d) with respect
to Letters of Credit denominated in Canadian Dollars, Toronto time and (e) with respect to Letters
of Credit denominated in any other Alternative Currency, a time to be approved by the
Administrative Agent.



          “Majority Lenders” for (i) any Facility shall mean, at any time, Lenders under such
Facility having Loans and unused Commitments representing more than 50% of the sum of all Loans
outstanding under such Facility and unused Commitments under such Facility at such time and (ii)
the Term Loan Facility, shall mean, where the amendment, waiver or modification more adversely
affects Dollar Term Loans or Euro Term Loans, Lenders holding more than 50% of all Dollar Term
Loans or Euro Term Loans, respectively.



          “Margin Stock” shall have the meaning assigned to such term in Regulation U.



          “Material Adverse Effect” shall mean the existence of events, conditions and/or
contingencies that have had or are reasonably likely to have (a) a materially adverse effect on the
business, results of operations, assets or financial condition of Holdings and the
Subsidiaries, taken as a whole, or (b) a material impairment of the validity or enforceability of,
or a material impairment of the material rights, remedies or benefits available to the Lenders, any
Issuing Bank, the Administrative Agent or the Collateral Agent under, the Loan Documents.



          “Material Indebtedness” shall mean Indebtedness of any one or more of Holdings or any
Subsidiary in an aggregate principal amount exceeding $40 million.



          “Material Subsidiary” shall mean, at any date of determination, any Subsidiary (a)
whose total assets at the last day of the Test Period ending on the last day of the most recent
fiscal period for which financial statements have been delivered pursuant to Section 5.04(a) or (b)
were equal to or greater than 2% of Consolidated Total Assets at such date or (b) whose gross
revenues for such Test Period were equal to or greater than 2% of the consolidated gross revenues
of Holdings and its consolidated Subsidiaries for such period, in each case determined in
accordance with US GAAP or (c) that is a Loan Party.



-31-









 





          “Maximum Credit Limit” shall mean, with respect to any Revolving Facility Borrower
that is a Subsidiary of the Company (other than CAC), an amount that the aggregate outstanding
principal amount (or the Dollar Equivalent thereof if not denominated in Dollars) of its Revolving
Facility Loans and Swingline Loans (if any) plus the maximum stated amount (or the Dollar
Equivalent thereof if not denominated in Dollars) of outstanding RF Letters of Credit issued for
its account may not exceed, as specified under Section 2.20.



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



          “Maximum Term Amount” shall mean at any time (i) the initial aggregate principal
amount of all Term Loans then or theretofore made pursuant to Section 2.01(a) plus (ii) the
aggregate initial principal amount of any New Term Loans made pursuant to Section 2.23.



          “MLPF&SI” shall mean Merrill Lynch, Pierce, Fenner & Smith Incorporated.



          “Modified Following Business Day Convention” shall mean, with respect to any Interest
Period that ends on a day other than a Business Day, the extension of such Interest Period to the
next succeeding Business Day unless 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.



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



          “Mortgaged Properties” shall mean the Real Properties of Loan Parties set forth on
Schedule 5.13 and such additional real property (if any) encumbered by a Mortgage pursuant
to Section 5.10.



          “Mortgages” shall mean the mortgages, deeds of trust, assignments of leases and rents
and other security documents delivered pursuant to Section 5.10 or 5.13, with respect to Mortgaged
Properties each in a form reasonably satisfactory to the Administrative Agent.



          “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3)
of ERISA to which Holdings, the Company, CAC or any ERISA Affiliate (other than one considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414) is making or accruing
an obligation to make contributions, or has within any of the preceding six plan years made or
accrued an obligation to make contributions.



          “Net Income” shall mean, with respect to any Person, the net income (loss) of such
Person, determined in accordance with US GAAP and before any reduction in respect of preferred
stock dividends.



          “Net Proceeds” shall mean:




     (a) 100% of the cash proceeds actually received by Holdings, the Company or any of
their Subsidiaries (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise and including casualty insurance settlements and condem-



-32-









 







nation
awards, but only as and when received) from any loss, damage, destruction or condemnation
of, or any sale, transfer or other disposition (including any sale and leaseback of assets
and any mortgage or lease of real property) to any Person of any property of Holdings or any
Subsidiary (other than those pursuant to Section 6.05(a) (other than clause (iii) thereof to
the extent in excess of $65.0 million in any year), (b), (c), (e), (f), (g), (i), (j) or
(k)), net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs,
title insurance premiums, and related search and recording charges, stamp taxes, transfer
taxes, deed or mortgage recording taxes, other ordinary and customary closing costs for real
property, required debt payments and required payments of other obligations relating to the
applicable asset (other than pursuant hereto), (ii) in the case of proceeds of sales from
foreign assets, voluntary prepayments of Indebtedness of foreign subsidiaries not to exceed
7.5% of Consolidated Total Assets since the Effective Date (the “Foreign Indebtedness
Voluntary Prepayment Cap”) (provided that if at any time the First Lien Senior
Secured Leverage Ratio as of the most recent fiscal year end is less than 1.75 to 1.00, the
Foreign Indebtedness Voluntary Prepayment Cap shall not apply; provided,
further, that all voluntary prepayments of foreign Indebtedness made with proceeds
from the sale of foreign assets while the Foreign Indebtedness Voluntary Prepayment Cap does
not apply shall be deemed to reduce the unused available amount under the Foreign
Indebtedness Voluntary Prepayment Cap to an amount not less than zero at all times when the
First Lien Senior Secured Leverage Ratio as of the most recent fiscal year end is equal to
or greater than 1.75 to 1.00) other customary expenses and brokerage, consultant and other
customary fees actually incurred in connection therewith, (iii) Taxes or Tax Distributions
paid or payable as a result thereof and (iv) appropriate amounts set up as a reserve against
liabilities associated with the assets or business so disposed of and retained by the
selling entity after such sale, transfer or other disposition, as reasonably determined by
Holdings, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters, liabilities related to
post-closing purchase price adjustments and liabilities related to any other indemnification
obligation associated with the assets or business so disposed of; provided that,
upon any termination of such reserve, all amounts not paid-out in connection
therewith shall be deemed to be “Net Proceeds” of such sale, transfer or other
disposition; provided that, if no Event of Default exists and Holdings shall deliver
a certificate of a Responsible Officer of Holdings to the Administrative Agent promptly
following receipt of any such proceeds setting forth Holdings’ intention to use any portion
of such proceeds to acquire, maintain, develop, construct, improve, upgrade or repair assets
useful in the business of Holdings and the Subsidiaries, or make investments pursuant to
Section 6.04(m), in each case within 12 months (24 months in the case of the Designated
Asset Sales) of such receipt, such portion of such proceeds (“Reinvestment
Proceeds”) shall not constitute Net Proceeds except to the extent not so used (or
contractually committed to be used) within such 12-month period (24 months in the case of
the Designated Asset Sales) (and, if contractually committed to be used within such 12-month
period, to the extent not so used within the 18-month period following the date of receipt
of such Net Proceeds), and provided, further, that (w) no proceeds realized
in a single transaction or series of related transactions shall constitute Net Proceeds
unless such proceeds shall exceed $10.0 million, (x) no proceeds shall constitute Net
Proceeds in any fiscal year until the aggregate amount of all such proceeds in such fiscal
year shall exceed $20.0 million, and



-33-









 





(y) cash proceeds received by Holdings, the Company or
any of their Subsidiaries in connection with the Fraport Transactions shall not constitute
Net Proceeds, and



     (b) 100% of the cash proceeds from the incurrence, issuance or sale by Holdings or any
Subsidiary of any Indebtedness (other than Excluded Indebtedness), net of all taxes and fees
(including investment banking fees), commissions, costs and other expenses, in each case
incurred in connection with such issuance or sale.


For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and
expenses payable to Holdings or the Company or any Affiliate of either of them shall be disregarded
(except for transaction and similar fees customary in type and amount paid to Blackstone).




          “New Commitment” shall have the meaning assigned to such term in Section 2.23.



          “New Commitment Joinder Agreement” shall have the meaning assigned to such term in
Section 2.23.



          “New Lender” shall have the meaning assigned to such term in Section 2.23.



          “New Revolving Facility Commitment” shall have the meaning assigned to such term in
Section 2.23.



          “New Revolving Facility Lender” shall have the meaning assigned to such term in
Section 2.23.



          “New Term Lender” shall have the meaning assigned to such term in Section 2.23.



          “New Term Loan” shall have the meaning assigned to such term in Section 2.23.



          “Non-Consenting Lender” shall have the meaning assigned to such term in Section
2.19(c).



          “Obligations” shall mean all amounts owing to the Administrative Agent or any Lender
pursuant to the terms of this Agreement or any other Loan Document.



          “Original Dollar Term Loans” shall mean each Term Loan first incurred on the Effective
Date as a Term Loan denominated in Dollars and New Term Loans denominated in Dollars that are
deemed to be Original Dollar Term Loans pursuant to Section 2.23(a).



          “Original Euro Term Loans” shall mean each Term Loan first incurred on the Effective
Date as a Term Loan denominated in Euros and New Term Loans denominated in Euros that are deemed to
be Original Euros Term Loans pursuant to Section 2.23(a).



          “Other Taxes” shall mean 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



-34-









 







made
hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, the Loan
Documents, and any and all interest and penalties related thereto.



          “Parent” shall have the meaning assigned to such term in the recitals to this
Agreement.



          “Parent Company” shall mean Parent and any subsidiary of Parent that is 100% owned by
Parent and which owns directly or indirectly 100% of the issued and outstanding Equity Interests of
Holdings.



          “Participant” shall have the meaning assigned to such term in Section 2.05(d).



          “PATRIOT Act” means the Uniting And Strengthening America By Providing Appropriate
Tools Required To Intercept And Obstruct Terrorism (USA PATRIOT Act) Act of 2001.



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



          “Perfection Certificate” shall mean a certificate in the form of Exhibit II to the
U.S. Collateral Agreement or any other form approved by the Collateral Agent.



          “Permitted Business Acquisition” shall mean any acquisition of all or any portion of
the assets of, or all the Equity Interests (other than directors’ qualifying shares and Equity
Interests required to be held by employees under applicable foreign law) in, a Person or division
or line of business of a Person (or any subsequent investment made in a Person, division or line of
business previously acquired in a Permitted Business Acquisition) if (a) such acquisition was not
preceded by, or effected pursuant to, an unsolicited or hostile offer and (b) immediately after
giving effect thereto: (i) no Event of Default shall have occurred and be continuing or would
result therefrom; (ii) all transactions related thereto shall be consummated in accordance with all
material applicable laws; and (iii) (A) to the extent applicable at such time, Holdings and the
Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such
acquisition or formation, with the Financial Performance Covenant recomputed as at the last day of
the most recently ended fiscal quarter of Holdings and the Subsidiaries included in the relevant
Reference Period, and Holdings shall have delivered to the Administrative Agent a certificate of a
Responsible Officer of Holdings to such effect, together with all relevant financial information
for such Subsidiary or assets, and (B) any acquired or newly formed Subsidiary shall not be liable
for any Indebtedness except for Indebtedness permitted by Section 6.01.



          “Permitted Cure Security” shall mean (i) any common equity security of Holdings and/or
(ii) any equity security of Holdings having no mandatory redemption, repurchase or similar
requirements prior to 91 days after the Term Loan Maturity Date, and upon which all dividends or
distributions (if any) shall be payable solely in additional shares of such equity security.



-35-









 





          “Permitted Investments” shall mean:




     (a) direct obligations of the United States of America or any member of the European
Union or any agency thereof or obligations guaranteed by the United States of America or any
member of the European Union or any agency thereof, in each case with maturities not
exceeding two years;




     (b) time deposit accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or trust company that is
organized under the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital, surplus and undivided
profits having a Dollar Equivalent that is in excess of $500.0 million and whose long-term
debt, or whose parent holding company’s long-term debt, is rated A (or such similar
equivalent rating or higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act);




     (c) repurchase obligations with a term of not more than 180 days for underlying
securities of the types described in clause (a) above entered into with a bank meeting the
qualifications described in clause (b) above;




     (d) commercial paper, maturing not more than one year after the date of acquisition,
issued by a corporation (other than an Affiliate of any Borrower) organized and in existence
under the laws of the United States of America or any foreign country recognized by the
United States of America with a rating at the time as of which any investment therein is
made of P-1 (or higher) according to Moody’s or A-1 (or higher) according to S&P;




     (e) securities with maturities of two years or less from the date of acquisition issued
or fully guaranteed by any State, commonwealth or territory of the United States of America,
or by any political subdivision or taxing authority thereof, and rated at least A by S&P or
A2 by Moody’s;




     (f) shares of mutual funds whose investment guidelines restrict 95% of such funds’
investments to those satisfying the provisions of clauses (a) through (e) above;




     (g) money market funds that (i) comply with the criteria set forth in Rule 2a-7 under
the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii)
have portfolio assets of at least $5,000.0 million;




     (h) time deposit accounts, certificates of deposit and money market deposits in an
aggregate face amount not in excess of 1/2 of 1% of the total assets of the Company and the
Subsidiaries, on a consolidated basis, as of the end of the Company’s most recently
completed fiscal year; and




     (i) in the case of the Captive Insurance Subsidiaries only, other investments
customarily held by the Captive Insurance Subsidiaries in the ordinary course of their



-36-









 






business, including without limitation pledging cash (utilizing a trust or other mechanism
if elected by the Company) as permitted by Section 6.02.



          “Permitted Receivables Documents” shall mean all documents and agreements evidencing,
relating to or otherwise governing a Permitted Receivables Financing.



          “Permitted Receivables Financing” shall mean one or more transactions pursuant to
which (i) Receivables Assets or interests therein are sold to or financed by one or more Special
Purpose Receivables Subsidiaries, and (ii) such Special Purpose Receivables Subsidiaries finance
their acquisition or maintenance of such Receivables Assets or interests therein, or the financing
thereof, by selling or borrowing against such Receivables Assets; provided that (A)
recourse to Holdings or any Subsidiary (other than Special Purpose Receivables Subsidiaries) in
connection with such transactions shall be limited to the extent customary for similar transactions
in the applicable jurisdictions (including, to the extent applicable, in a manner consistent with
the delivery of a “true sale” or “absolute transfer” opinion with respect to any transfer by
Holdings or any Subsidiary (other than a Special Purpose Receivables Subsidiary) and purchase price
percentages being reasonably satisfactory to the Administrative Agent) and (B) the aggregate
Receivables Net Investment since the Effective Date shall not exceed $200.0 million at any time.



          “Permitted Refinancing Indebtedness” shall mean any Indebtedness issued in exchange
for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund
(collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings
thereof constituting Permitted Refinancing Indebtedness); provided that (a) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced
(plus unpaid accrued interest and premium thereon and plus gross-up for prepayment premiums on the
Indebtedness being refinanced and other customary fees and expenses), (b) the average life to
maturity of such Permitted Refinancing Indebtedness is greater than or equal to the remaining
average life to maturity of the Indebtedness being Refinanced, (c) if the Indebtedness being
Refinanced is subordinated in right of payment to any portion of the Obligations under this
Agreement, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to
such portions of such Obligations on terms at least as
favorable to the Lenders in all material respects as those contained in the documentation
governing the Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness shall have
different required obligors or greater required guarantees or security, than the Indebtedness being
Refinanced (giving effect to, and permitting, customary “after acquired property” and “future
subsidiary guarantor” clauses substantially consistent with those in the Indebtedness being
Refinanced) and (e) if the Indebtedness being Refinanced is secured by any collateral that also
secures the Obligations (whether equally and ratably with, or junior to, the Secured Parties or
otherwise), such Permitted Refinancing Indebtedness may be secured by such collateral (including,
in respect of working capital facilities of Foreign Subsidiaries otherwise permitted under this
Agreement only, any collateral pursuant to after-acquired property clauses to the extent any such
collateral secured the Indebtedness being Refinanced) on terms (including relative priority) no
less favorable to the Secured Parties than those contained in the documentation governing the
Indebtedness being Refinanced.



-37-









 





          “Person” shall mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company or individual or family trusts, or any
Governmental Authority.



          “Plan” shall mean 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 and in respect of which
Holdings, the Company, any Subsidiary (including the Company) 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.



          “Pledged Collateral” shall mean “Pledged Collateral” as such term is defined in the
U.S. Collateral Agreement, and all property pledged pursuant to each Alternate Pledge Agreement and
each Foreign Pledge Agreement, as applicable.



          “Presumed Tax Rate” shall mean the highest effective marginal statutory combined U.S.
federal, state and local income tax rate prescribed for an individual residing in New York City
(taking into account (i) the deductibility of state and local income taxes for U.S. federal income
tax purposes, assuming the limitation of Section 68(a)(2) of the Code applies and taking into
account any impact of the Code, and (ii) the character (long-term or short-term capital gain,
dividend income or other ordinary income) of the applicable income).



          “Prime Rate” shall mean the rate of interest per annum announced from time to time by
DBNY as its prime rate in effect at its principal office in New York City; each change in the Prime
Rate shall be effective on the date such change is publicly announced as being effective.



          “Pro Forma Basis” shall mean, as to any Person, for any events as described in clauses
(i) and (ii) below that occur subsequent to the commencement of a period for which the financial
effect of such events is being calculated, and giving effect to the events for which such
calculation is being made, such calculation as will give pro forma effect to such events as if such
events occurred on the first day of the four consecutive fiscal quarter period ended on or before
the occurrence of such event and for which financial statements required under Section 5.04(a)
or (b) have been delivered or the period for delivery of which in compliance with Section
5.04(a) or (b) has passed (the “Reference Period”):




     (i) in making any determination of EBITDA, pro forma effect shall be given to (A) any
Asset Disposition and any Asset Acquisition (or any similar transaction or transactions that
require a waiver or consent of the Required Lenders pursuant to Section 6.04 or 6.05), in
each case that occurred during the Reference Period (or, in the case of determinations made
pursuant to the definition of the term “Asset Acquisition,” occurring during the Reference
Period or thereafter and through and including the date upon which the respective Asset
Acquisition is consummated), (B) any part of the business of Holdings and its Subsidiaries
being designated as a discontinued operation during the Reference Period where the fair
market value of all such designations exceeds $15.0 million for such period and (C) any
designation of any Subsidiary as an Unrestricted Subsidiary and any Subsidiary
Redesignation;



-38-









 






     (ii) in making any determination on a Pro Forma Basis, (x) all Indebtedness (including
Indebtedness incurred or assumed and for which the financial effect is being calculated,
whether incurred under this Agreement or otherwise, but excluding normal fluctuations in
revolving Indebtedness incurred for working capital purposes and excluding any Permitted
Indebtedness incurred on (but not prior to) the date of determination not to finance any
acquisition) incurred or permanently repaid during the Reference Period (or, in the case of
determinations made pursuant to the definition of the term “Asset Acquisition,” incurred or
permanently repaid during the Reference Period or thereafter and through and including the
date upon which the respective Asset Acquisition is consummated) shall be deemed to have
been incurred or repaid at the beginning of such period and (y) Interest Expense of such
Person attributable to interest on any Indebtedness, for which
pro forma effect is being
given as provided in preceding clause (x), bearing floating interest rates shall be computed
on a pro forma basis as if the rates that would have been in effect during the period for
which pro forma effect is being given had been actually in effect during such periods.
Interest on Indebtedness that may optionally be determined at an interest rate based upon a
factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate,
shall be deemed to have been based upon the rate actually chosen, or, if none, then based
upon such optional rate chosen as Holdings may reasonably designate in good faith; and




     (iii) in making any determination in connection with any designation of any Subsidiary
as an Unrestricted Subsidiary and any Subsidiary Redesignation, (A) any Subsidiary
Redesignation then being designated, effect shall be given to such Subsidiary Redesignation
and all other Subsidiary Redesignations after the first day of the relevant Reference Period
and on or prior to the date of the respective Subsidiary Redesignation then being
designated, collectively, and (B) any designation of a Subsidiary as an Unrestricted
Subsidiary, effect shall be given to such designation and all other designations of
Subsidiaries as Unrestricted Subsidiaries after the first day of the relevant Reference
Period and on or prior to the date of the then applicable designation of a Subsidiary as an
Unrestricted Subsidiary, collectively.



          pro forma calculations made pursuant to the definition of the term “Pro Forma Basis” shall be
determined in good faith by a Responsible Officer of the Company and (x) for any fiscal period
ending on or prior to the first anniversary of an Asset Acquisition or Asset Disposition (or any
similar transaction or transactions that require a waiver or consent of the Required Lenders under
Section 6.04 or 6.05), may include adjustments to reflect operating expense reductions and other
operating improvements or synergies reasonably expected to result from such Asset Acquisition,
Asset Disposition or other similar transaction, to the extent that the Company delivers to the
Administrative Agent (i) a certificate of a Financial Officer of the Company setting forth such
operating expense reductions and other operating improvements or synergies and (ii) information and
calculations supporting in reasonable detail such estimated operating expense reductions and other
operating improvements or synergies, and (y) for any fiscal period ending prior to the first
anniversary of the Effective Date, pro forma effect shall be given to the Transaction in
determining EBITDA so long as the required certifications described in preceding clause (x) are
specifically included in reasonable detail in the respective officer’s certificate and related
information and calculations.



-39-









 





          “Projections” shall mean the projections of Holdings and the Subsidiaries included in
the Confidential Information Memorandum and any other projections and any forward-looking
statements (including statements with respect to booked business) of such entities furnished to the
Lenders or the Administrative Agent in connection with the events described in clause (i) of the
definition of Transaction by or on behalf of Holdings, the Company or any of the Subsidiaries prior
to the Effective Date.



          “Quasi-Foreign Subsidiary” shall mean a Subsidiary (i) substantially all of whose
assets consist, directly or indirectly, of Equity Interests in Foreign Subsidiaries and which does
not conduct any other business, incur any material liabilities other than liabilities incidental to
ownership of such Equity Interests and liabilities related to its existence, incur any indebtedness
other than pursuant to the Loan Documents or hold any material assets other than such Equity
Interests or (ii) that is treated as a disregarded entity for U.S. federal income tax purposes and
that owns more than 65% of the voting Equity Interests in a Foreign Subsidiary or a Subsidiary
described in (i) above.



          “Quotation Day” shall mean, with respect to any Eurocurrency Borrowing or Swingline
Euro Borrowing and any Interest Period, 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 Borrowing
for delivery on the first day of such Interest Period, which, in the case of any Eurocurrency
Borrowing, shall be the date that is two Business Days prior to 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.



          “Real Property Officer’s Certificate” shall mean an officer’s certificate in the form
of Exhibit E hereto.



          “Receivables Assets” shall mean accounts receivable (including any bills of exchange)
and related assets and property from time to time originated, acquired or otherwise owned by
Holdings or any Subsidiary.



          “Receivables Net Investment” shall mean the aggregate cash amount paid by the lenders
to, or purchasers of Receivables Assets from, Loan Parties under any Permitted Receivables
Financing in connection with their purchase of, or the making of loans secured by, Receivables
Assets or interests therein, as the same may be reduced from time to time by collections with
respect to such Receivables Assets and the amount of such Receivables Assets that become defaulted
accounts receivable or otherwise in accordance with the terms of the Permitted Receivables
Documents; provided, however, that if all or any part of such Receivables Net
Investment shall have been reduced by application of any distribution and thereafter such
distribution is rescinded or must otherwise be returned for any reason, such Receivables Net
Investment shall be increased by the amount of such distribution, all as though such distribution
had not been made.



          “Reference Period” shall have the meaning assigned to such term in the definition of
the term “Pro Forma Basis.”



-40-









 





          “Refinance” shall have the meaning assigned to such term in the definition of the term
“Permitted Refinancing Indebtedness,” and “Refinanced” shall have a meaning correlative
thereto.



          “Refinanced Term Loans” shall have the meaning assigned to such term in Section
9.08(e).



          “Register” shall have the meaning assigned to such term in Section 9.04(b).



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



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



          “Reinvestment Proceeds” shall have the meaning assigned to such term in the definition
of “Net Proceeds.”



          “Related Parties” shall mean, 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.



          “Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, emanating or
migrating in, into, onto or through the Environment.



          “Remaining Note Amount” shall have the meaning assigned to such term in Section 5.08.



          “Remaining Notes” shall have the meaning assigned to such term in Section 5.08.



          “Remaining Present Value” shall mean, as of any date with respect to any lease, the
present value as of such date of the scheduled future lease payments with respect to such lease,
determined with a discount rate equal to a market rate of interest for such lease reasonably
determined at the time such lease was entered into.



          “Reorganization” shall have the meaning assigned to such term in the recitals to this
Agreement.



          “Replacement Term Loans” shall have the meaning assigned to such term in Section
9.08(e).



          “Reportable Event” shall mean any reportable event as defined in Section 4043(c) of
ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice
period referred to in Section 4043(c) of ERISA has been waived, with respect to a Plan (other than
a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code).



-41-









 





          “Request to Issue” shall have the meaning assigned to such term in Section 2.05(b).



          “Required Lenders” shall mean, at any time, Lenders having (a) Term Loan Exposures,
(b) Revolving Facility Credit Exposures, (c) Available Revolving Unused Commitments (if prior to
the termination thereof) and (d) Credit-Linked Commitments (or after the termination thereof, CL
Percentages of the CL Exposure) that taken together, represent more than 50% of the sum of (w) all
Term Loan Exposures, (x) all Revolving Facility Credit Exposures, (y) the total Available Revolving
Unused Commitments (if prior to the termination thereof) and (z) the Total Credit-Linked Commitment
(or after the termination thereof, the CL Exposure) at such time. The Term Loan Exposure,
Revolving Facility Credit Exposure, Available Revolving Unused Commitment and Credit-Linked
Commitment of any Defaulting Lender shall be disregarded in determining Required Lenders at any
time.



          “Requirement of Law” shall mean, as to any Person, any law, treaty, rule or regulation
or determination of an arbitrator or a court or other Governmental Authority, applicable to or
binding upon such Person or any of its property or to which such Person or any of its property is
subject.



          “Reserve Account” shall have the meaning assigned to such term in Section 10.02(a).



          “Reset Date” shall have the meaning assigned to such term in Section 1.03(a).



          “Responsible Officer” of any Person shall mean any executive officer or Financial
Officer of such Person and any other officer or similar official thereof responsible for the
administration of the obligations of such Person in respect of this Agreement.



          “Restricted Payments” shall have the meaning assigned to such term in Section 6.06.



          “Revolving Availability Period” shall mean the period from and including the Effective
Date to but excluding the earlier of the Revolving Facility Maturity Date and in the case of each
of the Revolving Facility Loans, Revolving Facility Borrowings, Swingline Dollar Loans, Swingline
Dollar Borrowings, Swingline Euro Loans and Swingline Euro Borrowings and RF Letters of Credit, the
date of termination of the Revolving Facility Commitments.



          “Revolving Borrower Agreement” shall mean a Subsidiary Borrower Agreement
substantially in the form of Exhibit G-1.



          “Revolving Borrower Termination” shall mean a Subsidiary Borrower Termination
substantially in the form of Exhibit G-2.



          “Revolving Borrowers” shall mean (x) CAC and the Company (each of which shall have a
Maximum Credit Limit at any time equal to the Dollar Equivalent of the aggregate Revolving Facility
Commitments at such time) and (y) from the date of the execution and delivery to the Administrative
Agent by it of a Revolving Borrower Agreement to but not including



-42-









 







the date of the execution and
delivery to the Administrative Agent by it of a Revolving Borrower Termination, each Subsidiary of
the Company designated as a Revolving Borrower by the Company pursuant to Section 2.20.



          “Revolving Facility” shall mean the Revolving Facility Commitments and the extensions
of credit made hereunder by the Revolving Facility Lenders.



          “Revolving Facility Borrowing” shall mean a Borrowing comprised of Revolving Facility
Loans.



          “Revolving Facility Commitment” shall mean, with respect to each Revolving Facility
Lender, the commitment of such Revolving Facility Lender to make Revolving Facility Loans pursuant
to Section 2.01, expressed as an amount representing the maximum aggregate permitted amount of such
Revolving Facility Lender’s Revolving Facility Credit Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender under Section 9.04. The aggregate amount of the
Revolving Facility Commitments on the Effective Date is $650.0 million and for each Revolving
Facility Lender is set forth opposite such Lender’s name on Schedule 2.01 in the applicable
column.



          “Revolving Facility Credit Exposure” shall mean, at any time, the sum of (a) the
aggregate principal amount of the Revolving Facility Loans denominated in Dollars outstanding at
such time, (b) the Dollar Equivalent of the aggregate principal amount of the Revolving Facility
Loans denominated in Euros outstanding at such time, (c) the Swingline Dollar Exposure at such
time, (d) the Swingline Euro Exposure at such time and (e) the Revolving L/C Exposure at such time.
The Revolving Facility Credit Exposure of any Revolving Facility Lender at any time shall be the
sum of (a) the aggregate principal amount of such Revolving Facility Lender’s Revolving Facility
Loans denominated in Dollars outstanding at such time, (b) the Dollar Equivalent of the aggregate
principal amount of Revolving Facility Lender’s Revolving Facility Loans denominated in Euros
outstanding at such time and (c) such Revolving Facility Lender’s
Revolving Facility Percentage of the Swingline Dollar Exposure, Swingline Euro Exposure and
Revolving L/C Exposure at such time.



          “Revolving Facility Lender” shall mean a Lender with a Revolving Facility Commitment
or with outstanding Revolving Facility Loans.



          “Revolving Facility Loan” shall mean a Loan made by a Revolving Facility Lender
pursuant to Section 2.01(b). Each Revolving Facility Loan denominated in Dollars shall be a
Eurocurrency Loan or an ABR Loan, and each Revolving Facility Loan denominated in Euros shall be a
Eurocurrency Loan.



          “Revolving Facility Maturity Date” shall mean the sixth anniversary of the Effective
Date.



          “Revolving Facility Percentage” shall mean, with respect to any Revolving Facility
Lender, the percentage of the total Revolving Facility Commitments represented by such Lender’s
Revolving Facility Commitment. If the Revolving Facility Commitments have termi-



-43-









 







nated or expired,
the Revolving Facility Percentages shall be determined based upon the Revolving Facility
Commitments most recently in effect, giving effect to any assignments pursuant to Section 9.04.



          “Revolving L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn
amount of all RF Letters of Credit denominated in Dollars outstanding at such time, (b) the Dollar
Equivalent of the aggregate undrawn amount of all RF Letters of Credit denominated in Euros or
Alternative Currencies outstanding at such time, (c) the aggregate principal amount of all Dollar
L/C Disbursements made in respect of RF Letters of Credit that have not yet been reimbursed at such
time and (d) the Dollar Equivalent of the aggregate principal amount of Euro L/C Disbursements and
Alternative Currency L/C Disbursements made in respect of RF Letters of Credit that have not yet
been reimbursed at such time. The Revolving L/C Exposure of any Revolving Facility Lender at any
time shall mean its Revolving Facility Percentage of the aggregate Revolving L/C Exposure at such
time.



          “RF Commitment Fee” shall have the meaning assigned to such term in Section 2.12(a).



          “RF Letter of Credit” shall mean each Letter of Credit designated as such pursuant to
Schedule 2.05(a) or the relevant Request to Issue (although any RF Letter of Credit
initially designated as such shall cease to constitute an RF Letter of Credit upon its
re-designation as a CL Letter of Credit pursuant to Section 2.05(b)).



          “RF Reserve Account” shall have the meaning assigned to such term in Section 10.02(a).



          “S&P” shall mean Standard & Poor’s Ratings Group, Inc.



          “Sale and Lease-Back Transaction” shall have the meaning assigned to such term in
Section 6.03.



          “Screen Rate” shall mean:




     (a) for Loans denominated in Dollars, the British Bankers Association Interest
Settlement Rate commonly referred to as LIBOR; and




     (b) for Loans denominated in Euros, the percentage rate per annum determined by the
Banking Federation of the European Union commonly referred to as EURIBOR,


for the applicable Interest Period displayed on the appropriate page of the Reuters screen selected
by the Administrative Agent (it being understood that such page is LIBOR 01 with respect to LIBOR
and EURIBOR 01 with respect to EURIBOR as of the date hereof). If the relevant page is replaced or
the service ceases to be available, the Administrative Agent (after consultation with the Company
and the Lenders) may specify another page or service displaying the appropriate rate.




-44-









 








          “SEC” shall mean the Securities and Exchange Commission or any successor thereto.



          “Second Lien Facility” means a senior secured credit facility providing for the making
of term loans to the Company, which credit facility may be secured by Second Priority Liens and may
be guaranteed by each Guarantor; provided that (a) the stated maturity date of the
Indebtedness under such credit facility will not be prior to the date that is 91 days after the
Maturity Date of the Term Loans, (b) such credit facility shall provide for no scheduled
amortization, payments of principal, sinking fund or similar scheduled payments (other than
regularly scheduled payments of interest), (c) such credit facility has covenant, default and
remedy provisions and provisions relating to mandatory prepayment, repurchase, redemption and
offers to purchase that, taken as a whole, are consistent with those customarily found in second
lien financings and (d) concurrently with the effectiveness of such credit facility, the Second
Lien Intercreditor Agreement shall have been entered into and shall at all times thereafter be in
full force and effect.



          “Second Lien Intercreditor Agreement” shall have the meaning given to such term in the
definition of the term “Second Priority Liens.”



          “Second Priority Liens” shall mean second priority Liens securing a Second Lien
Facility consisting solely of Indebtedness permitted to be incurred under Section 6.01(h), (i), (k)
or (l); provided that an intercreditor agreement (the “Second Lien Intercreditor
Agreement”) shall document the “silent” second lien status of the collateral package for the
second lien facility, which shall provide, among other things to be determined by the
Administrative Agent based on then current market practice and reasonably satisfactory to the
Company, that (a) at any time that the Loans or Commitments under this Agreement or any refinancing
thereof are outstanding, the agent and lenders under the second lien facility (the “Second Lien
Lenders”) will not exercise their remedies with respect to the common collateral in the case of
a non-payment default for at least 270 days, or in the case of a payment default, for at least 180
days, after delivery of notice to the Lenders under this Agreement and any other holders of a first
lien on the Collateral (the “Senior Lienholders”), (b) the Second Lien Lenders will not
object to the
value of the Senior Lienholders’ claims, or receive any proceeds of common collateral in
respect of their secured claim in a reorganization (other than reorganization securities that, if
issued and if secured, will maintain the same second lien priority in common collateral as any
secured reorganization securities received by the Lenders under this Agreement and be subject to
the Second Lien Intercreditor Agreement) until the Senior Lienholders are repaid in cash in full,
(c) the Second Lien Lenders will not object to a “debtor-in-possession” financing provided by, or
supported by, the Senior Lienholders, on market terms, (d) the Second Lien Lenders will not object
to the Senior Lienholders’ adequate protection (and the Second Lien Lenders will be entitled to
seek adequate protection themselves and will be entitled to seek a second lien on any additional
collateral given to the Senior Lienholders as adequate protection, and the Senior Lienholders will
be entitled to a first lien on any additional collateral given to the Second Lien Lenders as
adequate protection in respect of their secured claim in the common collateral), (e) the Second
Lien Intercreditor Agreement shall bind the Second Lien Lenders with respect to any refinancings of
the Senior Credit Facilities, (f) except with respect to certain customary limitations on
contesting the liens and priorities and on actions in insolvency and liquidation proceedings, the
Second Lien Lenders



-45-









 







will retain all rights and remedies available to an unsecured creditor and (g)
the second lien facility will not be granted a security interest in any collateral other than
collateral in which the Senior Lienholders are granted a first lien security interest.



          “Secured Parties” shall mean the “Secured Parties” as defined in the U.S. Collateral
Agreement.



          “Securities Act” shall mean the Securities Act of 1933, as amended.



          “Security Documents” shall mean, at any time, each of the Mortgages, the U.S.
Collateral Agreement and all Supplements thereto, the Holdings Agreement, any Foreign Pledge
Agreement then in effect, any Alternate Pledge Agreement then in effect, and each of the security
agreements, mortgages and other instruments and documents executed and delivered pursuant to any of
the foregoing or pursuant to Section 4.02, 5.10 or 5.13.



          “Senior Credit Facilities” shall mean the Term Loan Facility, Revolving Facility and
Credit-Linked Deposits provided for hereunder.



          “Senior Discount Notes” shall have the meaning assigned to such term in the recitals
to this Agreement.



          “Senior Subordinated Notes” shall have the meaning assigned to such term in the
recitals to this Agreement.



          “Special Purpose Receivables Subsidiary” shall mean a direct or indirect Subsidiary of
the Company established in connection with a Permitted Receivables Financing for the acquisition of
Receivables Assets or interests therein, and which is organized in a manner intended to reduce the
likelihood that it would be substantively consolidated with Holdings or any of the Subsidiaries
(other than Special Purpose Receivables Subsidiaries) in the event Holdings or any such Subsidiary
becomes subject to a proceeding under the U.S. Bankruptcy Code (or other insolvency law).



          “Specified Loan Party” shall mean at any time a Loan Party at such time if the
Obligations owing by it (directly or by guarantee) are unsecured by a Lien on its assets.



          “Statutory Reserves” shall mean, with respect to any currency, any reserve, liquid
asset or similar requirements established by any Governmental Authority of the United States of
America or of the jurisdiction of such currency or any jurisdiction in which Loans in such currency
are made to which banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to which interest rates
applicable to Loans in such currency are determined.



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



          “Subordinated Intercompany Debt” shall have the meaning assigned to such term in
Section 6.01(e).




-46-









 





          “subsidiary” shall mean, with respect to any Person (herein referred to as the
“parent”), any corporation, partnership, association or other business entity of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or more than 50% of the general partnership interests are, at the time
any determination is being made, directly or indirectly, owned, Controlled, or held (or that is, at
the time any determination is made, otherwise Controlled) by the parent or one or more subsidiaries
of the parent or by the parent and one or more subsidiaries of the parent.




          “Subsidiary” shall mean, unless the context otherwise requires, a subsidiary of
Holdings, it being understood that no subsidiary of Holdings properly designated as an Unrestricted
Subsidiary pursuant to the definition thereof shall constitute a Subsidiary; provided that
Estech GmbH & Co. KG and Estech Managing GmbH shall not constitute Subsidiaries.




          “Subsidiary Borrower” shall mean CAC and each other Subsidiary that is a Subsidiary
Revolving Borrower.




          “Subsidiary Loan Party” shall mean (i) each Subsidiary that is a Domestic Subsidiary
Loan Party and (ii) each Subsidiary that is a Foreign Subsidiary Loan Party.




          “Subsidiary Redesignation” shall have the meaning assigned to such term in the
definition of “Unrestricted Subsidiary.”




          “Supplement” shall have the meaning assigned to that term in the U.S. Collateral
Agreement.




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




          “Swingline Borrower” shall mean and include each Domestic Swingline Borrower and each
Foreign Swingline Borrower.




          “Swingline Borrowing Request” shall mean a request substantially in the form of
Exhibit C.




          “Swingline Dollar Borrowing” shall mean a Borrowing comprised of Swingline Dollar
Loans.




          “Swingline Dollar Commitment” shall mean, with respect to each Swingline Dollar
Lender, the commitment of such Swingline Dollar Lender to make Swingline Dollar Loans pursuant to
Section 2.04. The amount of each Swingline Dollar Lender’s Swingline Dollar Commitment on the
Effective Date is set forth on Schedule 2.04 as the same may be modified at




-47-









 







the request of the Company with the consent of any Revolving Facility Lender being added as a
Swingline Dollar Lender and the Administrative Agent. The aggregate amount of the Swingline Dollar
Commitments on the Effective Date is $200.0 million.




          “Swingline Dollar Exposure” shall mean at any time the aggregate principal amount of
all outstanding Swingline Dollar Borrowings at such time. The Swingline Dollar Exposure of any
Revolving Facility Lender at any time shall mean its Revolving Facility Percentage of the aggregate
Swingline Dollar Exposure at such time.




          “Swingline Dollar Lender” shall mean a Lender with a Swingline Dollar Commitment or
outstanding Swingline Dollar Loans.




          “Swingline Dollar Loans” shall mean the swingline loans denominated in Dollars and
made pursuant to Section 2.04.




          “Swingline Euro Borrowing” shall mean a Borrowing comprised of Swingline Euro Loans.




          “Swingline Euro Commitment” shall mean, with respect to each Swingline Euro Lender,
the commitment of such Swingline Euro Lender to make Swingline Euro Loans pursuant to Section 2.04.
The amount of each Swingline Euro Lender’s Swingline Euro Commitment on the Effective Date is set
forth on Schedule 2.04 as the same may be modified at the request of the Company with the
consent of any Revolving Facility Lender being added as a Swingline Euro Lender and the
Administrative Agent. The aggregate amount of the Swingline Euro Commitments on the Effective Date
is €75.0 million.




          “Swingline Euro Exposure” shall mean at any time the Dollar Equivalent of the
aggregate principal amount of all outstanding Swingline Euro Loans at such time. The Swingline
Euro Exposure of any Revolving Facility Lender at any time shall mean its Revolving Facility
Percentage of the aggregate Swingline Euro Exposure at such time.




          “Swingline Euro Lender” shall mean a Lender with a Swingline Euro Commitment or
outstanding Swingline Euro Loans.




          “Swingline Euro Loans” shall mean the swingline loans denominated in Euros and made to
a Foreign Swingline Borrower pursuant to Section 2.04.




          “Swingline Exposure” shall mean at any time the sum of the Swingline Dollar Exposure
and the Swingline Euro Exposure.




          “Swingline Lender” shall mean any of (i) the Swingline Dollar Lenders, in their
respective capacities as Lenders of Swingline Dollar Loans, and (ii) the Swingline Euro Lenders, in
their respective capacities as Lenders of Swingline Euro Loans.




          “Swingline Loans” shall mean the Swingline Dollar Loans and the Swingline Euro Loans.




-48-









 








          “Syndication Agent” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.




          “Tax Distribution” shall mean any distribution described in Section 6.06(b)(A)(i).




          “Taxes” shall mean any and all present or future taxes, levies, imposts, duties
(including stamp duties), deductions, charges (including ad valorem charges) or withholdings
imposed by any Governmental Authority and any and all interest and penalties related thereto.




          “Term Borrowing” shall mean a borrowing of Term Loans.




          “Term Lender” shall mean a Lender with outstanding Term Loans.




          “Term Loan” shall mean each (x) Dollar Term Loan made pursuant to Section 2.01(a) up
to an aggregate amount not to exceed $2,280.0 million, (y) Euro Term Loan made pursuant to Section
2.01(a) up to an aggregate amount not to exceed €400.0 million and (x) New Term Loan, if any,
made pursuant to Section 2.23.




          “Term Loan Exposure” shall mean, at any time, the sum of (a) the aggregate principal
amount of the Dollar Term Loans outstanding at such time and (b) the Dollar Equivalent of the
aggregate principal amount of the Euro Term Loans outstanding at such time. The Term Loan Exposure
of any Lender at any time shall be the sum of (a) the aggregate principal amount of such Lender’s
Dollar Term Loans outstanding at such time and (b) the Dollar Equivalent of the aggregate principal
amount of such Lender’s Euro Term Loans outstanding at such time.




          “Term Loan Facility” shall mean and include (i) the commitments under Section 2.01(a)
to make Term Loans on the Effective Date, and the Term Loans made pursuant thereto and (ii) the
commitments under Section 2.23 to make New Term Loans, and the New Term Loans made pursuant
thereto.




          “Term Loan Maturity Date” shall mean the seventh anniversary of the Effective Date.




          “Test Period” shall mean, on any date of determination, the period of four consecutive
fiscal quarters (taken as one accounting period) of Holdings then most recently ended for which
financial statements required pursuant to Section 5.04(a) or (b) have been delivered
(provided that if a Default exists in the delivery of financial statements as required,
then the Test Period shall include the fiscal periods in respect of which such Default exists).




          “Topco” shall mean Crystal US Holdings 3 L.L.C., a Delaware limited liability company.




          “Total Credit-Linked Commitment” shall mean, at any time, the sum of the Credit-Linked
Commitments of each of the CL Lenders at such time, which on the Effective Date shall equal
$228,000,000.




-49-









 








          “Total Net Leverage Ratio” shall mean, on any date, the ratio of (a) Consolidated Net
Debt as of such date to (b) EBITDA for the relevant Test Period; provided that if any Asset
Disposition, any Asset Acquisition (or any similar transaction or transactions that require a
waiver or consent by the Required Lenders under Section 6.04 or 6.05), any Investment the aggregate
amount of which exceeds $15.0 million or incurrence or repayment of Indebtedness (excluding normal
fluctuations in revolving Indebtedness incurred for working capital purposes and excluding any
Indebtedness permitted to be incurred by Section 6.01 (other than Section 6.01(1)) and incurred on
(but not prior to) the date of determination) has occurred, or any part of the business of Holdings
and its Subsidiaries is designated as a discontinued operation to the extent the aggregate fair
market value of all such designations exceeds $15.0 million, or any Subsidiary has been designated
as an Unrestricted Subsidiary or any Subsidiary Redesignation has occurred, in each case during the
relevant Test Period or in the case of any Asset Acquisition, after the last day of the Test Period
and on or prior to the date as of which such ratio is being calculated (the period from the first
day of the Test Period to and including such date of determination being the “Calculation
Period”), Consolidated Net Debt and EBITDA shall be determined for the respective Test Period
on a Pro Forma Basis for such occurrences and designations.




          “Total Unutilized Credit-Linked Commitment” shall mean, at any time, an amount equal
to the remainder of (x) the Total Credit-Linked Commitment then in effect less (y) the CL
Exposure at such time.




          “Transaction” shall mean (i) the refinancing of the Existing Credit Agreement, (ii)
the Debt Tender Offer, (iii) the Equity Tender Offer (and/or one or more other purchases of the
Equity Interests of Parent at any time and whether or not in connection with the Equity Tender
Offer in an aggregate amount which, when added to the amount of such purchases pursuant to the
Equity Tender Offer, does not exceed $400 million), (iv) the Reorganization, (v) the initial
borrowings under Section 2.01(a) hereof, and (vi) the payment of all prepayment premiums and costs,
fees and expenses to be paid in connection with the foregoing.




          “Transaction Costs” shall mean the out-of-pocket costs and expenses incurred by
Holdings or any Subsidiary in connection with the Transaction, the financing of the Transaction and
any refinancing of such financing (including fees paid to the Lenders).




          “Type,” when used in respect of any Loan or Borrowing, shall refer to the Rate by
reference to which interest on such Loan or on the Loans comprising such Borrowing is determined.
For purposes hereof, the term “Rate” shall include the Adjusted LIBO Rate and the Alternate
Base Rate; provided that Dollar Term Loans and Euro Term Loans shall be of a different
Type.




          “Unrestricted Subsidiary” shall mean any subsidiary designated by Holdings as an
Unrestricted Subsidiary hereunder by a written notice to the Administrative Agent; provided
that Holdings shall only be permitted to so designate a new Unrestricted Subsidiary after the
Effective Date so long as (a) no Default or Event of Default exists or would result therefrom at
such time of designation, (b) after giving effect to such designation on a Pro Forma Basis,
Holdings shall be in compliance with the Incurrence Ratios, (c) such Unrestricted Subsidiary shall
be capitalized (to the extent capitalized by Holdings or any Subsidiary) through Investments as
permitted by, and in compliance with, Section 6.04(b) or (l), with the excess, if any, of the fair
market




-50-









 







value of any assets owned by such Unrestricted Subsidiary at the time of the initial
designation thereof over the aggregate liabilities thereof at such time (each as determined in good
faith by Holdings) (the “Designation Investment Value”) to be treated as an Investment by
Holdings at the time of such designation pursuant to Section 6.04(b), and (d) such Subsidiary shall
have been designated an unrestricted subsidiary (or otherwise not subject to the covenants and
defaults) under any other Indebtedness permitted to be incurred herein and all Permitted
Refinancing Indebtedness in respect of any of the foregoing and all Disqualified Stock (other than
Indebtedness or Disqualified Stock of such Subsidiary or other Unrestricted Subsidiaries);
provided that the Company shall designate such entity as an Unrestricted Subsidiary in a
written notice to the Administrative Agent. Holdings may designate any Unrestricted Subsidiary to
be a Subsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”);
provided that (i) such Unrestricted Subsidiary, both immediately before and after giving
effect to such designation, shall be a Wholly Owned Subsidiary of Holdings, (ii) no Default or
Event of Default then exists or would occur at such time as a consequence of any such Subsidiary
Redesignation, (iii) calculations are made by Holdings of compliance with Section 6.10 for the
relevant Test Period, on a Pro Forma Basis as if the respective Subsidiary Redesignation (as well
as all other Subsidiary Redesignations theretofore consummated after the first day of such Test
Period) had occurred on the first day of such Test Period, and such calculations shall show that
such financial covenant would have been complied with if the Subsidiary Redesignation had occurred
on the first day of such period (for this purpose, if the first day of the respective Test Period
occurs prior to the Effective Date, calculated as if Section 6.10 had been applicable from the
first day of such test Period, (iv) all representations and warranties contained herein and in the
other Loan Documents shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the date of such Subsidiary
Redesignation (both before and after giving effect thereto), unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be true and correct in all
material respects as of such earlier date and (v) Holdings shall have delivered to the
Administrative Agent a certificate of a Financial Officer of Holdings certifying, to the best of
such officer’s knowledge, compliance with the requirements of preceding clauses (i) through (iv),
inclusive, and containing the calculations required by the preceding clause (iii).




          “U.S. Bankruptcy Code” shall mean Title 11 of the United States Code, as amended, or
any similar federal or state law for the relief of debtors.




          “U.S. Collateral Agreement” shall mean the Guarantee and Collateral Agreement,
substantially in the form of Exhibit J, among the Company, the Guarantor Subsidiaries and
the Collateral Agent.




          “US GAAP” shall mean generally accepted accounting principles in effect from time to
time in the United States, applied on a consistent basis, subject to the provisions of Section
1.02.




          “Wholly Owned Subsidiary” of any Person shall mean a subsidiary of such Person, all of
the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar
Equity Interests required pursuant to applicable law) are owned by such Person or another Wholly
Owned Subsidiary of such Person.




-51-









 








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




          SECTION 1.02 Terms Generally.




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




          (b) The definitions set forth or referred to in Section 1.01 shall apply equally to both the
singular and plural forms of the terms defined.




          (c) As used herein and, unless otherwise specified, in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto:





     (i) whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms;




     (ii) the words “include,” “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”;




     (iii) 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 (whether
real or personal), including cash, Equity Interests, securities, revenues, accounts,
leasehold interests and contract rights; and




     (iv) the words “hereof,” “herein” and “hereunder” and words of similar import shall
refer to this Agreement or such other Loan Document, as applicable, as a whole and not to
any particular provision hereof or thereof, and clause, subsection, Section, Article,
Schedule, Annex, Exhibit and analogous references herein or in another Loan Document are to
this Agreement or such other Loan Document, as applicable, unless otherwise specified.



          (d) Except as otherwise expressly provided herein, any reference in this Agreement to any Loan
Document or other agreement or instrument shall mean such agreement or document and all schedules,
exhibits, annexes and other materials that constitute part of such agreement or document pursuant
to the terms thereof, all as amended, restated, supplemented or otherwise modified from time to
time.




          (e) Except as otherwise expressly provided herein, all terms of an accounting or financial
nature, including consolidation of statements, shall be construed in accordance with US GAAP, as in
effect from time to time; provided that, if Holdings notifies the Administrative Agent that
Holdings requests an amendment to any provision hereof to eliminate the effect of any change
occurring after the Effective Date in US GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies Holdings that the
Required Lenders request an amendment to any provision hereof for such purpose), regardless of
whether

-52-









 








any such notice is given before or after such change in US GAAP or in the application
thereof, then such provision shall be interpreted on the basis of US 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.




          (f) For the purposes of determining compliance with Section 6.01 through Section 6.10 with
respect to any amount in a currency other than Dollars, amounts shall be deemed to equal the Dollar
Equivalent thereof determined using the Exchange Rate calculated as of the Business Day on which
such amounts were incurred or expended, as applicable.




          SECTION 1.03 Exchange Rates.




          (a) Not later than 1:00 p.m., New York City time, on each Calculation Date, the Administrative
Agent or the Issuing Bank, as applicable, shall (i) determine the Exchange Rate as of such
Calculation Date and (ii) give notice thereof to the Company. The Exchange Rates so determined
shall become effective on the first Business Day immediately following the relevant Calculation
Date (a “Reset Date”), shall remain effective until the next succeeding Reset Date, and
shall for all purposes of this Agreement (other than any other provision expressly requiring the
use of an Exchange Rate calculated as of a specified date) be the Exchange Rates employed in
converting any amounts between Dollars, Euros and any Alternative Currency.




          (b) Not later than 5:00 p.m., New York City time, on each Reset Date, the Administrative Agent
shall (i) determine the aggregate amount of the Dollar Equivalents of (x) the Euro Term Loans then
outstanding and the Term Loan Commitments (Euros) on such date, (y) the principal amounts of the
Revolving Loans and Swingline Loans denominated in Euros then outstanding (after giving effect to
any Euro Term Loans or Revolving Loans and Swingline Loans denominated in Euros made or repaid on
such date), the Revolving L/C Exposure and the CL Exposure and (z) the principal amounts of the
Letters of Credit denominated in any Alternative Currency then outstanding and (ii) notify the
Lenders, each Issuing Bank and the Company of the results of such determination.




          SECTION 1.04 Effectuation of Transaction. Each of the representations and warranties
of Holdings and the Borrowers contained in this Agreement (and all corresponding definitions) are
made after giving effect to the Transaction, unless the context otherwise requires.




          SECTION 1.05 Additional Alternative Currencies.




          (a) The Company may from time to time request that Letters of Credit be issued in a currency
other than Dollars, Euro or those currencies specifically listed in the definition
of “Alternative Currency”; provided that such requested currency is a lawful currency
that is readily available and freely transferable and convertible into Dollars. In the case of any
such request, such request shall be subject to the approval of the Administrative Agent and the
applicable Issuing Bank.




          (b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., ten
Business Days prior to the date of the desired L/C Disbursement (or such other time or date as may
be agreed by the Administrative Agent and the applicable Issuing Bank, in

-53-









 








their sole discretion).
In the case of any such request, the Administrative Agent shall promptly notify the applicable
Issuing Bank thereof. Each Issuing Bank shall notify the Administrative Agent, not later than
11:00 a.m., ten Business Days after receipt of such request whether it consents, in its sole
discretion, to the issuance of Letters of Credit in such requested currency.




          (c) Any failure by an Issuing Bank to respond to such request within the time period specified
in the preceding sentence shall be deemed to be a refusal by such Issuing Bank to permit Letters of
Credit to be issued in such requested currency. If the Administrative Agent and the applicable
Issuing Bank consent to the issuance of Letters of Credit in such requested currency, the
Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for
all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit
issuances. If the Administrative Agent shall fail to obtain consent to any request for an
additional currency under this Section 1.05, the Administrative Agent shall promptly so notify the
Company. Any specified currency of an Existing Letter of Credit that is not Dollars, Euro or one
of the Alternative Currencies specifically listed in the definition of “Alternative Currency” shall
be deemed an Alternative Currency with respect to such Existing Letter of Credit only.




ARTICLE II




THE CREDITS




          SECTION 2.01 Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees, pursuant to its applicable Commitment(s):





     (a) on the Effective Date, to make Term Loans to the Company in Dollars and/or Euros in
the respective amounts set forth opposite its name on Schedule 2.01 under the
heading “Term Loans”;




     (b) to make revolving loans to the Revolving Borrowers from time to time during the
Revolving Availability Period in an aggregate principal amount that will not result in (A)
such Lender’s Revolving Facility Credit Exposure exceeding such Lender’s Revolving Facility
Commitment or (B) the Revolving Facility Credit Exposure exceeding the total Revolving
Facility Commitments, such Revolving Facility Loans to be made in (x) Dollars if to any
Revolving Borrower other than a Foreign Subsidiary and (y) in Euros or Dollars, at the
election of the Borrower Representative, on behalf of any Borrower, if to any Foreign
Revolving Borrower, provided that the aggregate Revolving Facility
Credit Exposure with respect to any Revolving Borrower (other than the Company and CAC)
shall not exceed such Revolving Borrower’s Maximum Credit Limit; within the foregoing limits
and subject to the terms and conditions set forth herein, the Revolving Borrowers may
borrow, prepay and reborrow Revolving Facility Loans; and




     (c) to make revolving loans to a CL Borrower (as specified in the related Borrowing
Request) in Dollars from time to time during the CL Availability Period in an aggregate
amount that will not result in (A) such Lender’s CL Exposure exceeding such Lender’s
Credit-



-54-









 








Linked Commitment or (B) the CL Exposure exceeding the Total Credit-Linked
Commitment; within the foregoing limits and subject to the terms and conditions set forth
herein, the CL Borrowers may borrow, repay and reborrow CL Loans.



          SECTION 2.02(A) Loans and Borrowings.




          (a) Each Loan shall be made as part of a Borrowing consisting of Loans under the same Facility
and of the same Type made by the Lenders ratably in accordance with their respective Commitments
under the applicable Facility (or, in the case of Swingline Loans, in accordance with their
respective Swingline Dollar Commitments or Swingline Euro Commitments, as applicable);
provided, however, that Revolving Facility Loans and CL Loans shall be made by the
Revolving Facility Lenders and CL Lenders, as the case may be, ratably in accordance with their
respective Revolving Facility Percentages or CL Percentages, as the case may be, on the date such
Loans are made hereunder. 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.




          (b) Subject to Section 2.14, (i) each Borrowing denominated in Dollars (other than a Swingline
Dollar Borrowing) shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower
Representative, on behalf of any Borrower, may request in accordance herewith and (ii) each
Borrowing denominated in Euros shall be comprised entirely of Eurocurrency Loans. Each Swingline
Dollar Borrowing shall be an ABR Borrowing. Each Swingline Euro Borrowing shall be comprised
entirely of Swingline Euro Loans. Each Lender at its option may make any ABR Loan or 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 applicable
Borrower to repay such Loan in accordance with the terms of this Agreement and such Lender shall
not be entitled to any amounts payable under Section 2.15, 2.17 or 2.21 solely in respect of
increased costs resulting from such exercise and existing at the time of such exercise.




          (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 the Borrowing Multiple
and not less than the Borrowing Minimum. At the time that each ABR Revolving Borrowing is made,
such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum; provided that an ABR Revolving Borrowing
may be in an aggregate amount that is equal to the entire unused balance of the Revolving Facility Commitments or that is required to finance the
reimbursement of an L/C Disbursement as contemplated by Section 2.05(e). Each Swingline Dollar
Borrowing and Swingline Euro Borrowing shall be in an amount that is an integral multiple of the
Borrowing Multiple and not less than the Borrowing Minimum. Borrowings of more than one Type and
under more than one Facility may be outstanding at the same time; provided that there shall
not at any time be more than a total of (i) 10 Eurocurrency Borrowings under the Term Loan Facility
and (ii) 20 Eurocurrency Borrowings outstanding under the Revolving Facility and the CL Facility.




          (d) Notwithstanding any other provision of this Agreement, (i) the Borrower Representative, on
behalf of any Borrower, shall not be entitled to request, or to elect to convert


-55-









 








or continue, any
Borrowing if the Interest Period requested with respect thereto would end after the Revolving
Facility Maturity Date or Term Loan Maturity Date, as applicable, and (ii) no Euro Term Loan may be
converted into a Dollar Term Loan and no Dollar Term Loan may be converted into a Euro Term Loan.




          SECTION 2.02(B) Credit-Linked Deposit.




          (a) On the Effective Date each Lender that is a CL Lender on such date shall pay to the
Deposit Bank such CL Lender’s Credit-Linked Deposit in the amount of its Credit-Linked Commitment.
The Credit-Linked Deposits shall be held by the Deposit Bank in (or credited to) the Credit-Linked
Deposit Account, and no Person other than the Deposit Bank shall have a right of withdrawal from
the Credit-Linked Deposit Account or any other right or power with respect to the Credit-Linked
Deposits. Notwithstanding anything herein to the contrary, the funding obligation of each CL
Lender in respect of its participation in CL Credit Events shall be satisfied in full upon the
funding of its Credit-Linked Deposit. Each of the Deposit Bank, the Administrative Agent, each
Issuing Bank and each CL Lender hereby acknowledges and agrees (i) that each CL Lender is funding
its Credit-Linked Deposit to the Deposit Bank for application in the manner contemplated by
Sections 2.06(a) and/or 2.05(e), (ii) the Deposit Bank may invest the Credit-Linked Deposits in
such investments as may be determined from time to time by the Deposit Bank and (iii) the Deposit
Bank has agreed to pay to each CL Lender a return on its Credit-Linked Deposit (except (x) during
periods when such Credit-Linked Deposits are used to (I) fund CL Loans or (II) reimburse an Issuing
Lender with respect to Drawings on CL Letters of Credit or (y) as otherwise provided in Sections
2.02(B)(c) and (d)) equal at any time to the Adjusted LIBO Rate for the Interest Period in effect
for the Credit-Linked Deposits at such time less the Credit-Linked Deposit Cost Amount at such
time. Such interest will be paid to the CL Lenders by the Deposit Bank at the applicable Adjusted
LIBO Rate for an Interest Period of one month (or at an amount determined in accordance with
Section 2.02(B)(c) or (d), as applicable) less, in each case, the Credit-Linked Deposit Cost Amount
in arrears on each CL Interest Payment Date.




          (b) No Loan Party shall have any right, title or interest in or to the Credit-Linked Deposit
Account or the Credit-Linked Deposits and no obligations with respect thereto (except to repay CL
Loans and to refund portions thereof used to reimburse an Issuing Lender with respect to Drawings
on CL Letters of Credit as provided in Section 2.05(e)), it being acknowledged and agreed by the parties hereto that the funding of the Credit-Linked Deposits by
the CL Lenders, and the application of the Credit-Linked Deposits in the manner contemplated by
Section 2.05(e) constitute agreements among the Deposit Bank, the Administrative Agent, each
Issuing Bank and each CL Lender with respect to the participation in the CL Letters of Credit and
do not constitute any loan or extension of credit to any Borrower. Without limiting the generality
of the foregoing, each party hereto acknowledges and agrees that no amount on deposit at any time
in the Credit-Linked Deposit Account shall be the property of any Secured Party (other than the
Deposit Bank) or of any Loan Party or any of its Subsidiaries or Affiliates. In addition, each CL
Lender hereby grants to the Deposit Bank a security interest in, and rights of offset against, its
rights and interests in such CL Lender’s Credit-Linked Deposit, and investments thereof and
proceeds of any of the foregoing, to secure the obligations of such CL Lender hereunder. Each CL
Lender agrees that its right, title and interest with respect to the Credit-

-56-









 








Linked Deposit Account
shall be limited to the right to require its Credit-Linked Deposit to be used as expressly set
forth herein and that it will have no right to require the return of its Credit-Linked Deposit
other than as expressly provided herein (each CL Lender hereby acknowledges that its Credit-Linked
Deposit constitutes payment for its obligations under Sections 2.05(e) and 2.06(a) and that each
Issuing Bank will be issuing, amending, renewing and extending CL Letters of Credit, and the
Administrative Agent (on behalf of the respective CL Lender) will be advancing CL Loans to the
applicable CL Borrower, in each case in reliance on the availability of such CL Lender’s
Credit-Linked Deposit to discharge such CL Lender’s obligations in respect thereof).




          (c) If the Deposit Bank is not offering Dollar deposits (in the applicable amounts) in the
London interbank market, or the Deposit Bank determines that adequate and fair means do not
otherwise exist for ascertaining the Adjusted LIBO Rate for the Credit-Linked Deposits (or any part
thereof), then the Credit-Linked Deposits (or such parts, as applicable) shall be invested so as to
earn a return equal to the greater of the Federal Funds Rate and a rate determined by the Deposit
Bank in accordance with banking industry rules on interbank compensation.




          (d) If any CL Loan is repaid by the respective CL Borrower, or if any L/C Disbursement under a
CL Letter of Credit that has been funded by the CL Lenders from the Credit-Linked Deposits as
provided in Section 2.05(e) shall be reimbursed by the respective CL Borrower, on a day other than
on the last day of an Interest Period applicable to the Credit-Linked Deposits, the Administrative
Agent shall, upon receipt thereof, pay over such amounts to the Deposit Bank which will invest such
amounts in overnight or short-term cash equivalent investments until the end of the Interest Period
at the time in effect and respective CL Borrower shall pay to the Deposit Bank, upon the Deposit
Bank’s request therefor, the amount, if any, by which the interest accrued on a like amount of the
Credit-Linked Deposits at the Adjusted LIBO Rate for Term Loans for the Interest Period in effect
therefor shall exceed the interest earned through the investment of the amount so reimbursed for
the period from the date of such reimbursement through the end of the applicable Interest Period,
as determined by the Deposit Bank (such determination shall, absent manifest error, be presumed
correct and binding on all parties hereto) and set forth in the request for payment delivered to
CAC. In the event that the respective CL Borrower shall fail to pay any amount due under this
Section 2.02(B)(d), the interest payable by the Deposit Bank to the CL Lenders on their
Credit-Linked Deposits under Section
2.02 (B)(a) shall be correspondingly reduced and the CL Lenders shall without further act
succeed, ratably in accordance with their CL Percentages, to the rights of the Deposit Bank with
respect to such amount due from the respective CL Borrower. All repayments of CL Loans, and all
reimbursements of L/C Disbursements under a CL Letter of Credit that have been funded by the CL
Lenders from the Credit-Linked Deposits, in each case received by the Administrative Agent prior to
the termination of the Total Credit-Linked Commitment, shall be paid over to the Deposit Bank which
will deposit same in the Credit-Linked Deposit Account.




          (e)(i) If the Administrative Agent, any Issuing Bank and/or the Deposit Bank is enjoined from
taking any material action referred to in this Section 2.02(B), Section 2.05(e) and/or Section
2.06(a) (in respect of a CL Loan), or if the Administrative Agent, any Issuing Bank and/or the
Deposit Bank reasonably determines that, by operation of law, it may reasonably

-57-









 







be precluded from
taking any such material action, or if any Loan Party or CL Lender challenges in any legal
proceeding any of the material acknowledgements, agreements or characterizations set forth in any
of this Section 2.02(B), Section 2.05(e) and Section 2.06(a) (in respect of CL Loans), then, in any
such case (and so long as such event or condition shall be continuing), and notwithstanding
anything contained herein to the contrary, (x) the respective Issuing Bank shall not be required to
issue, renew or extend any CL Letter of Credit and (y) the Administrative Agent shall not be
required to advance any CL Loan on behalf of the affected CL Lender or CL Lenders.




          (ii) If the Deposit Bank, any Issuing Bank or the Administrative Agent is enjoined from
withdrawing amounts from the Credit-Linked Deposit Account of a CL Lender in accordance with
Section 2.05(e), or reasonably determines that it is precluded from taking such actions, (A) from
and after the date such withdrawal would have been made but for such circumstance the amounts
otherwise that would have been required to be paid to such CL Lender pursuant to Section 2.02(B)(a)
and the second sentence of Section 2.12(b) shall instead be added to the Credit-Linked Deposit
Account of such CL Lender and (B) such CL Lender shall pay to the applicable Issuing Bank interest
on the amount that should have been withdrawn at the rate equal to the interest rate otherwise
applicable for ABR CL Loans pursuant to Section 2.13(c) until such time as such withdrawal is made.




          (iii) In the event any payment of a CL Loan or L/C Reimbursement in respect of a CL Letter of
Credit shall be required to be refunded to a Borrower after the return of the Credit-Linked
Deposits to the CL Lenders as permitted hereunder, each CL Lender agrees to acquire and fund a
participation in such refunded amount equal to the lesser of its CL Percentage thereof and the
amount of its Credit-Linked Deposit that shall have been so returned. The obligations of the CL
Lenders under this clause (iii) shall survive the payment in full of the Credit-Linked Deposits and
the termination of this Agreement.




          SECTION 2.03 Requests for Borrowings. To request any Borrowing, the Borrower
Representative, on behalf of the applicable Borrower, shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurocurrency Borrowing, not later than 12:00 noon, 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, one Business Day before the date of the proposed
Borrowing; provided
any such notice of an ABR Revolving Borrowing to finance the reimbursement of an L/C
Disbursement as contemplated by Section 2.05(e) may be given not later than 11:00 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
Representative, on behalf of the applicable Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:





     (i) the Borrower requesting such Borrowing;




     (ii) whether the requested Borrowing is to be a Revolving Facility Borrowing, Term
Borrowing or CL Borrowing;



-58-









 






     (iii) the aggregate amount of the requested Borrowing (expressed in Dollars or, if
permitted to be borrowed in Euros, in Euros);




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




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




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




     (vii) the location and number of the applicable Borrower’s account to which funds are
to be disbursed.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing, unless such Borrowing is denominated in Euros, in which case such Borrowing shall be
a Eurocurrency Borrowing. If no Interest Period is specified with respect to any requested
Eurocurrency Borrowing, then the applicable Borrower shall be deemed to have selected an Interest
Period of three months’ 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 Swingline Loans.




          (a) Subject to the terms and conditions set forth herein, (i) each Swingline Dollar Lender
agrees to make Swingline Dollar Loans to any Domestic Swingline Borrower from time to time during
the Revolving Availability Period, in an aggregate principal amount at any time outstanding for all
Swingline Dollar Loans that will not result in (x) the aggregate principal amount of outstanding
Swingline Dollar Loans made by such Swingline Dollar Lender exceeding such Swingline Dollar
Lender’s Swingline Dollar Commitment or (y) the Revolving Facility Credit Exposure exceeding the total Revolving Facility Commitments and (ii) each
Swingline Euro Lender agrees to make Swingline Euro Loans to any Foreign Swingline Borrower from
time to time during the Revolving Availability Period, in an aggregate principal amount at any time
outstanding for all Swingline Euro Loans that will not result in (x) the aggregate principal amount
of outstanding Swingline Euro Loans made by such Swingline Euro Lender exceeding such Swingline
Euro Lender’s Swingline Euro Commitment or (y) the sum of the Revolving Facility Credit Exposure
exceeding the total Revolving Facility Commitments; provided that no Swingline Lender shall
be required to make a Swingline Loan to refinance an outstanding Swingline Dollar Borrowing or
Swingline Euro Borrowing. Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.




          (b) To request a Swingline Dollar Borrowing or Swingline Euro Borrowing, the Borrower
Representative, on behalf of the applicable Borrower, shall notify the Administrative Agent and the
applicable Swingline Lender of such request by telephone (confirmed by a Swingline Borrowing
Request by telecopy), not later than 11:00 a.m., Local Time, on the day of


-59-









 







a proposed Swingline
Borrowing (or in the case of a Swingline Euro Borrowing, 10:00 a.m. New York time, on the Business
Day preceding the date of the proposed Swingline Euro Borrowing). Each such notice and Swingline
Borrowing Request shall be irrevocable and shall specify (i) the Borrower requesting such
Borrowing, (ii) the requested date (which shall be a Business Day), (iii) the amount of the
requested Swingline Dollar Borrowing (expressed in Dollars) or Swingline Euro Borrowing (expressed
in Euros), as applicable, and (iv) in the case of a Swingline Euro Borrowing, the Interest Period
to be applicable thereto, which shall be a period contemplated by clause (b) of the definition of
the term “Interest Period.” The Administrative Agent shall promptly advise each Swingline Dollar
Lender (in the case of a notice relating to a Swingline Dollar Borrowing) or each Swingline Euro
Lender (in the case of a notice relating to a Swingline Euro Borrowing) of any such notice received
from the Borrower Representative on behalf of a Borrower and the amount of such Swingline Lender’s
Swingline Loan to be made as part of the requested Swingline Dollar Borrowing or Swingline Euro
Borrowing, as applicable. Each Swingline Dollar Lender shall make each Swingline Dollar Loan to be
made by it hereunder in accordance with Section 2.04(a) on the proposed date thereof by wire
transfer of immediately available funds by 3:00 p.m., Local Time, to the account of the
Administrative Agent by notice to the Swingline Dollar Lenders. The Administrative Agent will make
such Swingline Dollar Loans available to the applicable Domestic Swingline Borrower by promptly
crediting the amounts so received, in like funds, to the general deposit account of the applicable
Domestic Swingline Borrower with the Administrative Agent (or, in the case of a Swingline Dollar
Borrowing made to finance the reimbursement of an L/C Disbursement as provided in Section 2.05(e),
by remittance to the applicable Issuing Bank). Each Swingline Euro Lender shall make each
Swingline Euro Loan to be made by it hereunder in accordance with Section 2.04(a) on the proposed
date thereof by wire transfer of immediately available funds by 3:00 p.m., Local Time, to the
account of the Administrative Agent most recently designated by it for such purpose by notice to
the Swingline Euro Lenders. The Administrative Agent will make such Swingline Euro Loans available
to the applicable Foreign Swingline Borrower by (i) promptly crediting the amounts so received, in
like funds, to the general deposit account with the Administrative Agent of the applicable Foreign
Swingline Borrower most recently designated to the Administrative Agent or (ii) by wire transfer of
the amounts received in immediately available funds to the general deposit account of the applicable Foreign Swingline Borrower most recently designated to
the Administrative Agent.




          (c) A Swingline Lender may by written notice given to the Administrative Agent (and to the
other Swingline Dollar Lenders or Swingline Euro Lenders, as applicable) not later than 10:00 a.m.,
Local Time, on any Business Day require the Revolving Facility Lenders to acquire participations on
such Business Day in all or a portion of the outstanding Swingline Loans made by it. Such notice
shall specify the aggregate amount of such Swingline Loans in which the Revolving Facility Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each such Lender, specifying in such notice such Lender’s Revolving Facility Percentage
of such Swingline Loan or Loans. Each Revolving Facility Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the applicable Swingline Lender, such Revolving Facility Lender’s
Revolving Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender
acknowledges and agrees that its respective obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and uncondi-




-60-









 







tional 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 Revolving Facility Lender shall comply with
its obligation under this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.06 with respect to Loans made by such Revolving Facility Lender
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and
the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so
received by it from the Revolving Facility Lenders. The Administrative Agent shall notify the
applicable Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph
(c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative
Agent and not to the applicable Swingline Lender. Any amounts received by a Swingline Lender from
the applicable Borrower (or other party on behalf of such Borrower) in respect of a Swingline Loan
after receipt by such 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 Revolving Facility Lenders that
shall have made their payments pursuant to this paragraph and to such Swingline Lender, as their
interests may appear; provided that any such payment so remitted shall be repaid to such
Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment
is required to be refunded to the applicable Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve the applicable
Borrower of any default in the payment thereof.




          SECTION 2.05 Letters of Credit.




          (a) General. Each Existing Letter of Credit shall continue to remain outstanding as a
CL Letter of Credit or RF Letter of Credit as specified on Schedule 2.05(a) hereunder on
and after such date on the same terms as applicable to it immediately prior to such date.
In addition, subject to the terms and conditions set forth herein, the Company may request the
issuance of Dollar Letters of Credit, Euro Letters of Credit and Alternative Currency Letters of
Credit (x) in the case of RF Letters of Credit, for its own account or for the account of any of
the other Revolving Borrowers and (y) in the case of CL Letters of Credit, for the account of a CL
Borrower (as specified in the related Request to Issue), in each case in a form reasonably
acceptable to the applicable Issuing Bank, at any time and from time to time during the Revolving
Availability Period and prior to the date that is five Business Days prior to the Revolving
Facility Maturity Date. All Letters of Credit shall be issued on a sight basis only (subject to
Section 2.05(n)) and shall be denominated in Dollars, Euros or an Alternative Currency.




          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit, the Borrower Representative, on behalf of the relevant Loan
Party, shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for
doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank, with a
copy to the Administrative Agent at least two Business Days (or such shorter period agreed to by
the Issuing Bank) in advance of the requested date of issuance a request in the form of Exhibit
B-2 (a “Request to Issue”) for the issuance of a Letter of Credit, which Request to
Issue shall specify, inter alia, whether the requested Letter of Credit is to be a



-61-









 








CL Letter of
Credit or an RF Letter of Credit. If requested by the applicable Issuing Bank, the Borrower
Representative, on behalf of the relevant Loan Party, also shall submit a letter of credit
application on such Issuing Bank’s standard form in connection with any request for a Letter of
Credit and in the event of any inconsistency between the terms and conditions of this Agreement and
the terms and conditions of any such form of letter of credit application, the terms and conditions
of this Agreement shall control. An RF Letter of Credit shall be issued, amended, renewed or
extended only if after giving effect thereto (i) the Revolving L/C Exposure shall not exceed
$250,000,000, (ii) the Revolving Facility Credit Exposure shall not exceed the total Revolving
Facility Commitments and (iii) the aggregate Revolving Facility Credit Exposure with respect to any
Revolving Borrower shall not exceed the Maximum Credit Limit for such Revolving Borrower, and a CL
Letter of Credit shall be issued, amended, renewed or extended only if after giving effect thereto
the CL Exposure would not exceed the Total Credit-Linked Commitment at such time, provided
that no RF Letter of Credit shall be issued unless a CL Letter of Credit could not be issued in
lieu thereof, giving effect to the aforesaid limitations. In the event that an RF Letter of Credit
is outstanding at a time when there is availability to support the issuance of a new CL Letter of
Credit in accordance with the terms of this Agreement in a stated amount at least equal to the
stated amount of such RF Letter of Credit, the Company shall have the right, upon written notice to
the Administrative Agent and the respective Issuing Bank, to re-designate such RF Letter of Credit
as a CL Letter of Credit, in each case so long as (i) each such CL Letter of Credit may otherwise
be issued in accordance with, and will not violate, the above limitations and requirements of this
Section and (ii) the Company certifies in writing to the Administrative Agent and the respective
Issuing Bank that the conditions specified in Sections 4.01(b) and (c) are then satisfied. Upon
satisfaction of the aforesaid conditions, (x) the respective Issuing Bank shall re-designate the
affected RF Letter of Credit as a CL Letter of Credit, and (y) a new CL Letter of Credit shall be
deemed issued at such time under this Agreement. No Letter of Credit shall be issued, increased in
stated amount, or renewed or extended without the prior consent of the Administrative Agent, such
consent to be limited to the question of whether such issuance, increase, renewal or extension is
being effected on the terms and conditions of this Agreement.




          (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 (or, in the case of a trade Letter of
Credit, 30 days) prior to (A) in the case of an RF Letter of Credit, the Revolving Facility
Maturity Date, and (B) in the case of a CL Letter of Credit, the Term Loan Maturity Date;
provided that any standby Letter of Credit may provide for the automatic renewal thereof
for additional one-year periods (which, in no event, shall extend beyond the date referred to in
clause (ii) of this paragraph (c)).




          (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
applicable Issuing Bank or any Lenders, such Issuing Bank hereby grants (x) if such Letter of
Credit is a CL Letter of Credit, to each CL Lender or (y) if such Letter of Credit is an RF Letter
of Credit to each Revolving Facility Lender (and such CL Lender or Revolving Facility Lender, as
the case may be, in its capacity under this Section 2.05(d), a “Participant”) and each such
Participant hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal
to such Lender’s CL Percentage or Revolving Facility Percentage, as the case may be, as in effect

-62-









 








from time to time of the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Facility Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent in Dollars or Euros, as the case may
be, for the account of the applicable Issuing Bank, such Lender’s Revolving Facility Percentage of
each LC Disbursement made in respect of an RF Letter of Credit and, in each case, not reimbursed by
the Applicant Party on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Applicant Party for any reason. Each
Participant 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, in the case of a Revolving Facility Lender, that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.




          (e) Reimbursement. If the applicable Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the applicable Applicant Party shall reimburse such L/C Disbursement
by paying to the Administrative Agent an amount equal to such L/C Disbursement in Dollars, Euros or
an Alternative Currency, as the case may be, not later than 5:00 p.m., New York City time, on the
Business Day immediately following the date the applicable Applicant Party receives notice under
paragraph (g) of this Section of such L/C Disbursement, provided that (I) in the case of
any L/C Disbursement under an RF Letter of Credit issued for the account of a Revolving Borrower,
such Revolving Borrower may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 or 2.04 that such payment be financed (x) if a Dollar Letter of
Credit, with an ABR Revolving Borrowing or Swingline Dollar Borrowing, as applicable, (y) if a Euro
Letter of Credit, with a Swingline Euro Borrowing, or (z) if an Alternative Currency Letter of
Credit, with an ABR Revolving Borrowing or Swingline Dollar Borrowing, in the cases of clauses (x)
and (y), in an equivalent amount and in the case of clause (z), in the Dollar Equivalent of such
amount and, to the extent so financed, such Revolving Borrower’s obligation to make such payment
shall be discharged and replaced by the resulting
ABR Revolving Borrowing, Swingline Dollar Borrowing or Swingline Euro Borrowing, as the
case may be, and (II) no Applicant Party shall be entitled to reimburse the relevant Issuing Bank
for any drawings under a CL Letter of Credit which occur within the period commencing on the 91st
day prior to the Term Loan Maturity Date until after the Credit-Linked Deposits shall have been
applied as set forth below in this Section 2.05(e). If the applicable Applicant Party fails to
reimburse any L/C Disbursement under an RF Letter of Credit when due, then the Administrative Agent
shall promptly notify the applicable Issuing Bank and each relevant Participant of the applicable
L/C Disbursement, the payment then due in respect thereof and, in the case of each such
Participant, such Participant’s Revolving Facility Percentage thereof. Promptly following receipt
of such notice, each such Participant shall pay to the Administrative Agent in Dollars or Euros, as
applicable, its Revolving Facility Percentage of the payment then due from the applicable Applicant
Party, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Participants),
and the Administrative Agent shall promptly pay to the applicable Issuing Bank in Dollars, Euros or
an Alternative Currency, as applicable, the amounts so received by it from such Participants. In
the event that an Issuing Lender makes any LC Disbursement under any CL Letter of Credit issued by
it and the respective CL Borrower shall not have reimbursed

-63-









 








such amount in full to such Issuing
Lender as provided above, or an Issuing Lender makes any LC Disbursement under any CL Letter of
Credit issued by it within the period commencing on the 91st day prior to the Term Loan Maturity
Date, and in each case such Issuing Lender has notified the Administrative Agent thereof, each CL
Lender hereby irrevocably authorizes the Administrative Agent to reimburse on the date of (or if
received after 1:00 P.M. (New York time) on such date, on the Business Day following the date of)
receipt by the Administrative Agent of such notice such Issuing Lender for such amount solely by
requesting the Deposit Bank to withdraw such CL Lender’s CL Percentage of the Credit-Linked
Deposits on deposit with the Deposit Bank in the Credit-Linked Deposit Account and to pay same over
to the Administrative Agent, the Deposit Bank hereby agreeing to effect such a withdrawal and all
other withdrawals and payments requested by the Administrative Agent pursuant to the terms of this
Agreement. All reimbursements of Issuing Banks by Revolving Facility Lenders or CL Lenders
(through application of Credit-Linked Deposits) shall be made as provided herein notwithstanding
the occurrence of a CAM Exchange Date after the L/C Disbursement and prior to such reimbursement.
Promptly following receipt by the Administrative Agent of any payment from the applicable Applicant
Party pursuant to this paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Participants have made payments pursuant to this
paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their
interests may appear (it being understood and agreed that any such payment to be made pursuant to
this Section 2.05(e) to a Participant which is a CL Lender shall be made by such Issuing Lender to
the Administrative Agent for the account of such CL Lender and paid over to the Deposit Bank for
deposit in the Credit-Linked Deposit Account). Any payment made by a Revolving Facility Lender
pursuant to this paragraph to reimburse an Issuing Bank for any L/C Disbursement (other than the
funding of an ABR Revolving Loan or a Swingline Dollar Borrowing as contemplated above) shall
constitute a Loan.




          (f) Obligations Absolute. The obligation of the applicable Applicant Party to
reimburse L/C 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 applicable 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 Applicant Party’s obligations hereunder; provided
that, in each case, payment by the Issuing Bank shall not have constituted gross negligence or
willful misconduct as determined by a final and nonappealable decision of court of competent
jurisdiction. Neither the Administrative Agent, the Lenders nor any 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

-64-









 








drawing thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of such Issuing Bank; provided that the foregoing
shall not be construed to excuse the applicable Issuing Bank from liability to an Applicant Party
to the extent of any direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by each Applicant Party to the extent permitted by applicable law) suffered
by such Applicant Party that are determined by a court having jurisdiction to have been caused by
(i) such 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 or (ii) such Issuing
Bank’s refusal to issue a Letter of Credit in accordance with the terms of this Agreement. The
parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on
the part of the applicable Issuing Bank, as determined by a final and nonappealable decision of
court of competent jurisdiction, such Issuing Bank shall be deemed to have exercised care in each
such determination and each refusal to issue a Letter of Credit. 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 applicable 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 applicable Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent, the Applicant
Party and the Company (if the Company is not the Applicant Party) by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made or will make a L/C
Disbursement thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Applicant Party of its obligation to reimburse such Issuing Bank and the
Revolving Facility Lenders with respect to any such L/C Disbursement.




          (h) Interim Interest. If an Issuing Bank shall make any L/C Disbursement, then,
unless the applicable Applicant Party shall reimburse such L/C Disbursement in full on the date
such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such L/C Disbursement is made to but excluding the date that the applicable
Applicant Party reimburses such L/C Disbursement, at the rate per annum then applicable to ABR
Revolving Loans provided that, in the case of an L/C Disbursement made that is (i) a Euro
Letter of Credit, the amount of interest due with respect thereto shall (A) be payable in Euros and
(B) bear interest at a rate equal to the rate reasonably determined by the applicable Issuing Bank
to be the cost to such Issuing Bank of funding such L/C Disbursement plus the Applicable Margin
applicable to Eurocurrency Revolving Loans at such time or (ii) an Alternative Currency Letter of
Credit, the amount of interest due with respect thereto shall (A) be payable in the applicable
Alternative Currency and (B) bear interest at a rate equal to the rate reasonably determined by the
applicable Issuing Bank to be the cost to such Issuing Bank of funding such L/C Disbursement plus
the Applicable Margin applicable to Eurocurrency Revolving Loans at such time; and
provided, further, that, if such L/C Disbursement is not reimbursed by the
applicable Applicant Party when due pursuant to paragraph (e) of this Section, then Section 2.13(c)
shall apply, with the rate per annum for L/C Disbursements made in respect of a CL Letter of

-65-









 








Credit
from the date any payment is made to the Issuing Lender on behalf of the CL Lenders shall be 2% in
excess of the rate per annum then applicable to ABR Term Loans. Interest accrued pursuant to this
paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on
and after the date of payment by any Revolving Facility Lender or by or on behalf of any CL Lender
pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account
of such Revolving Facility Lender or CL Lender, as the case may be, to the extent of such payment.




          (i) Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by
written agreement among the Company, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of an Issuing Bank. At the time any such replacement shall become effective, the Company shall pay
all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12.
From and after the effective date of any such replacement, (i) the successor Issuing Bank shall
have all the rights and obligations of the replaced 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 contrequire. 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 such 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.




          (j) Cash Collateralization. If any Event of Default shall occur and be continuing,
(i) in the case of an Event of Default described in Section 7.01(h) or (i), on the Business Day or
(ii) in the case of any other Event of Default, on the fifth Business Day following the date on
which the Company receives notice from the Administrative Agent (or, if the maturity of the Loans
has been accelerated, Revolving Facility Lenders and/or CL Lenders with Revolving L/C Exposure
and/or CL Percentages representing greater than 50% of the total Revolving L/C Exposure and/or total CL Percentages), as the case may be, demanding the deposit of cash
collateral pursuant to this paragraph, the Company and, to the extent relating to CL Exposure, CAC
(on a joint and several basis with the Company) agree to deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving
Facility Lenders and/or the CL Lenders, an amount in Dollars in cash equal to the Revolving L/C
Exposure and/or CL Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the portion of such amount attributable to undrawn Euro Letters of Credit or
L/C Disbursements in Euros shall be deposited with the Administrative Agent in Euros in the actual
amounts of such undrawn Letters of Credit and L/C Disbursements; provided, further
that the portion of such amount attributable to undrawn Alternative Currency Letters of Credit or
L/C Disbursements in any Alternative Currency shall be deposited with the Administrative Agent in
the applicable Alternative Currency in the actual amounts of such undrawn Letters of Credit and L/C
Disbursements. The obligation to deposit such cash collateral shall become effective immediately
on the Business Day specified above, and such deposit shall become immediately due and payable in
Dollars, Euros or an Alternative Currency, as applicable, without demand or other notice of any
kind. The applicable Applicant Party also shall deposit cash collateral pursuant to this paragraph
as and to the extent required by Section 2.11(b). Each such deposit pursuant to

-66-









 








this paragraph or
pursuant to Section 2.11(b) shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrowers under this Section 2.05. 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 (i) for so long as an Event of Default shall be
continuing, the Administrative Agent and (ii) at any other time, the Company, in each case, in
Permitted Investments and at the risk and expense of the Company, 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 each Issuing Bank
for L/C Disbursements for which such Issuing Bank has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of the Borrowers for
the Revolving L/C Exposure and CL Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Facility Lenders and/or CL Lenders with
Revolving L/C Exposure and/or CL Percentages representing greater than 50% of the total Revolving
L/C Exposure and/or total CL Percentages), be applied to satisfy other obligations of the Borrowers
under this Agreement. If an Applicant Party is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to such Applicant Party within three Business Days after
all Events of Default have been cured or waived. If a Borrower is required to provide an amount of
cash collateral hereunder pursuant to Section 2.11(b), such amount (to the extent not applied as
aforesaid) shall be returned to such Borrower as and to the extent that, after giving effect to
such return, the Borrowers would remain in compliance with Section 2.11(b) and no Event of Default
shall have occurred and be continuing.




          (k) Additional Issuing Banks. From time to time, the Company may by notice to the
Administrative Agent designate up to two Lenders (in addition to DBNY and any Lender that is an
issuer of Existing Letters of Credit) that agree (in their sole discretion) to act in such capacity
and are reasonably satisfactory to the Administrative Agent as Issuing Banks. Each
such additional Issuing Bank shall execute a counterpart of this Agreement upon the approval
of the Administrative Agent (which approval shall not be unreasonably withheld) and shall
thereafter be an Issuing Bank hereunder for all purposes.




          (l) Reporting. Promptly upon the issuance or amendment by it of a standby Letter of
Credit, an Issuing Bank shall notify the Company and the Administrative Agent, in writing, of such
issuance or amendment and such notice shall be accompanied by a copy of such issuance or amendment.
Upon receipt of such notice, the Administrative Agent shall notify each Lender, in writing, of
such issuance or amendment, and if so requested by a Lender the Administrative Agent shall provide
such Lender with a copy of such issuance or amendment. Each Issuing Bank shall on the first
Business Day of each calendar week during which any CL Letters of Credit and/or RF Letters of
Credit issued by such Issuing Bank are outstanding provide the Administrative Agent, by facsimile,
with a report detailing the aggregated daily outstandings of each such Letter of Credit issued by
it.




          (m) Notwithstanding any other provision of this Agreement, if, after the Effective Date, any
Change in Law shall make it unlawful for an Issuing Bank to issue Letters of

-67-









 








Credit denominated in
Euros or any Alternative Currency, then by prompt written notice thereof to the L/C Borrowers and
to the Administrative Agent (which notice shall be withdrawn whenever such circumstances no longer
exist), such Issuing Bank may declare that Letters of Credit will not thereafter (for the duration
of such declaration) be issued by it in Euros or any Alternative Currency, as applicable.




          (n) Subject to the prior written consent of the Administrative Agent and the applicable
Issuing Bank (such consent not to be unreasonably withheld), documentary Letters of Credit may be
issued on a “time basis” on terms and conditions to be agreed upon by the Company, the
Administrative Agent and the applicable Issuing Bank.




          SECTION 2.06 Funding of Borrowings.




          (a) Each Lender shall make each Loan (other than CL Loans) to be made (as opposed to be
continued) by it hereunder on the proposed date thereof by wire transfer of immediately available
funds by 12:00 noon, Local Time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided that Swingline Loans
shall be made as provided in Section 2.04. Each CL Lender hereby irrevocably authorizes the
Administrative Agent to fund each CL Loan to be made by it hereunder solely by requesting the
Deposit Bank to withdraw such CL Lender’s CL Percentage of the Credit-Linked Deposits on deposit
with the Deposit Bank in the Credit-Linked Deposit Account and to pay same over to it. The
Administrative Agent will make the proceeds of funds made available to it pursuant to the two
preceding sentences available to the applicable Borrower by promptly crediting the amounts so
received, in like funds, to an account of the applicable Borrower maintained with the
Administrative Agent (i) in New York City, in the case of Loans denominated in Dollars, or (ii) in
London, in the case of Loans denominated in Euros and designated by the Borrower Representative, on
behalf of the applicable Borrower, in the applicable Borrowing Request; provided that ABR
Revolving Loans, Swingline Dollar Borrowings and Swingline Euro Borrowings made
to finance the reimbursement of an L/C Disbursement as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the applicable Issuing Bank.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Revolving Facility Loans and/or Term Loans 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 applicable Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing of Revolving Facility Loans or Term Loans available
to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree
to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding
amount (with demand to be first made on such Lender if legally possible) with interest thereon, for
each day from and including the date such amount is made available to the applicable 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 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 reasona-

-68-









 











bly determined by the Administrative Agent to be the
cost to it of funding such amount (in the case of a Borrowing denominated in Euros) or (ii) in the
case of the applicable Borrower, the interest rate applicable to ABR Loans (in the case of a
Borrowing denominated in Dollars) or 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 Euros). If
such Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.




          SECTION 2.07 Interest Elections.




          (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower Representative, on behalf of the
applicable 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
Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower
Representative, on behalf of the applicable 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 Euro Borrowings or Swingline Dollar Borrowings, which may not be converted or continued.




          (b) To make an election pursuant to this Section, the Borrower Representative, on behalf of
the applicable 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 Representative,
on behalf of such Borrower, were requesting a Borrowing of the Type
and denominated in Euros 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
Representative on behalf of the applicable Borrower.




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





     (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;



-69-









 






     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing; provided that the resulting Borrowing is required to be a Eurocurrency
Borrowing in the case of a Borrowing denominated in Euros; 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 clause (a) of 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 Representative, on behalf of the applicable Borrower, shall be
deemed to have selected an Interest Period of three months’ duration.




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




          (e) If the Borrower Representative, on behalf of the applicable Borrower, fails to deliver a
timely Interest Election Request with respect to a Eurocurrency 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 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 written request (including a request through
electronic means) of the Required Lenders, so notifies the applicable Borrower, then, so long as an
Event of Default is continuing (i) except as provided in clause (iii) below, no outstanding
Borrowing may be converted to or continued as a Eurocurrency Borrowing, (ii) unless repaid, each
Eurocurrency 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 Borrowing denominated in Euros shall be continued as a Eurocurrency Borrowing
with an Interest Period of one month’s duration.




          SECTION 2.08 Termination and Reduction of Commitments.




          (a) Unless previously terminated, the Revolving Facility Commitments shall terminate on the
Revolving Facility Maturity Date and the Credit-Linked Commitments shall terminate on the Term Loan
Maturity Date. The Term Loan Commitments shall terminate at 5:00 p.m. New York Time on the
Effective Date.




          (b) The Company (on behalf of itself and all other Revolving Borrowers) may at any time
terminate, or from time to time reduce, the Revolving Facility Commitments; provided that
(i) each such reduction shall be in an amount that is an integral multiple of $1.0 million and not
less than $5.0 million (or, if less, the remaining amount of the Revolving Facility Commitments)
and (ii) the Company shall not terminate or reduce the Revolving Facility Commitments if, after
giving effect to any concurrent prepayment of the Revolving Facility Loans in accordance with
Section 2.11, the Revolving Facility Credit Exposure would exceed the total Revolving Facility
Commitments.




-70-









 








          (c) The Company shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Facility Commitments and/or Credit-Linked Commitments under paragraph (b) or (d) 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 applicable Lenders of the contents thereof.
Each notice delivered by the Company pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Revolving Facility Commitments and/or
Credit-Linked Commitments delivered by the Company may state that such notice is conditioned upon
the effectiveness of other credit facilities, in which case such notice may be revoked by the
Company (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 Commitments shall be permanent. Each
reduction of the Commitments under any Facility shall be made ratably among the Lenders in
accordance with their respective Commitments under such Facility.




          (d) The Company (on behalf of itself and CAC) shall have the right, at any time or from time
to time, without premium or penalty to terminate the Total Unutilized Credit-Linked Commitment in
whole, or reduce it in part, in an integral multiple of $1.0 million and not less than $5.0 million
(or if less the remaining amount of the Credit-Linked Commitments) in the case of partial
reductions to the Total Unutilized Credit-Linked Commitment, provided that each such
reduction shall apply proportionately to permanently reduce the Credit-Linked Commitment of each CL
Lender. At the time of any termination or reduction of the Total Credit-Linked Commitment pursuant
to this Section 2.08(d) or on the Term Loan Maturity Date, the Administrative Agent shall request
the Deposit Bank to withdraw from the Credit-Linked Deposit Account and to pay same over to it, and
shall return to the CL Lenders (ratably in accordance with their respective CL Percentages) the CL
Lenders’ Credit-Linked Deposits in an aggregate amount equal to such reduction or the amount of
such Commitment being terminated, as the case
may be. Notwithstanding the foregoing or anything else in this Agreement to the contrary,
following the reimbursement or repayment by a Borrower for any drawing or CL Loan under the CL
Facility, in no event shall the Deposit Bank be required to return to any CL Lender any proceeds of
such CL Lender’s Credit-Linked Deposit prior to the 90th day following such reimbursement or
repayment unless the respective CL Lender shall have sufficiently indemnified the Deposit Bank (in
the sole discretion of the Deposit Bank) for any losses the Deposit Bank may incur as a result of
preference claims brought by any creditor of a Borrower with respect to the proceeds of such
reimbursement or repayment.




          SECTION 2.09 Repayment of Loans; Evidence of Debt, etc.




          (a) The Company hereby unconditionally promises to pay (i) on the Revolving Facility Maturity
Date in Euros or Dollars, as applicable, to the Administrative Agent for the account of each
Revolving Facility Lender the then unpaid principal amount of each Revolving Facility Loan made to
the Company and (ii) in Euros or Dollars, as applicable, to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Term Loan of such Lender as
provided in Section 2.10. Each CL Borrower hereby unconditionally, and jointly and severally,
promises to pay on the Term Loan Maturity Date in Dollars to the Administrative Agent for the
account of each CL Lender the then unpaid principal amount of each CL Loan of such CL Lender owing
by any CL Borrower. Each Domestic Swingline Borrower

-71-









 








hereby unconditionally promises to pay in
Dollars to each Swingline Lender the then unpaid principal amount of each Swingline Loan made to
such Borrower on the earlier of the Revolving Facility 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 five
Business Days after such Swingline Loan is made; provided that on each date that a
Revolving Facility Borrowing is made by such Borrower, then such Borrower shall repay all its
Swingline Loans then outstanding. Each Revolving Borrower hereby unconditionally promises to pay
in Dollars (or in Euros if the Revolving Facility Borrowing was made in Euros) to the
Administrative Agent for the account of each Revolving Facility Lender the then unpaid principal
amount of each Revolving Facility Loan to such Borrower on the Revolving Facility Maturity Date.
Each Foreign Swingline Borrower hereby unconditionally promises to pay in Euros to each Swingline
Euro Lender the then unpaid principal amount of each Swingline Euro Loan made by such Lender to
such Borrower on the earlier of the Revolving Facility Maturity Date and the last day of the
Interest Period applicable to such Swingline Euro Loan.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each 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 Facility and Type thereof and the Interest Period (if any)
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from each Borrower to each Lender hereunder and (iii) any amount 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 any 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 Representative, on behalf of the applicable 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) At the time of any termination of the Total Credit-Linked Commitment pursuant to Section
2.08(a) or pursuant to Article VII (but otherwise subject to the last sentence of Section 2.08(d)),
the Administrative Agent shall request the Deposit Bank to withdraw from the Credit-Linked Deposit
Account and to pay same over to it, and shall return to the CL Lenders

-72-









 








(ratably in accordance with
their respective CL Percentages), the CL Lenders’ Credit-Linked Deposits in an amount by which the
aggregate amount of the Credit-Linked Deposits at such time exceeds the aggregate CL L/C Exposure
(less unreimbursed L/C Disbursements included therein) at such time.




          SECTION 2.10 Repayment of Term Loans.




          (a) Subject to adjustment pursuant to paragraph (c) of this Section, the Company shall repay
Term Loans owed by it (such repayment to be in Dollars if made in respect of Dollar Term Loans or
in Euros if made in respect of Euro Term Loans) on (x) the three-month anniversary of the Effective
Date, and each three-month anniversary thereafter (each such date being referred to as an
“Installment Date”) and prior to the Term Loan Maturity Date in an aggregate amount equal
to 1/4 of 1% of the then Maximum Term Amount and (y) the Term Loan Maturity Date in an amount equal
to the remaining principal amount of the Term Loans owed by it.




          (b) To the extent not previously paid, all Term Loans shall be due and payable on the Term
Loan Maturity Date.




          (c) Prepayment of Term Loans pursuant to Section 2.11(c) shall be applied to reduce on a
pro rata basis (based on the amount of such amortization payments) the remaining
scheduled amortization payments in respect of the Term Loans.




          (d) Any Lender holding Term Loans may elect, on not less than two Business Days’ prior written
notice to the Administrative Agent with respect to any mandatory prepayment made pursuant to
Section 2.11(c), not to have such prepayment applied to such Lender’s Term Loans, in which case the
amount not so applied shall be retained by the Company (and applied as it elects).




          (e) Prior to any repayment of any Borrowing under any Facility hereunder, the Borrower
Representative, on behalf of the applicable Borrower, shall select the Borrowing or Borrowings
under such Facility to be repaid and shall notify the Administrative Agent by telephone (confirmed
by telecopy) of such selection not later than 2:00 p.m., Local Time, (i) in the case of an ABR
Borrowing, one Business Day before the scheduled date of such repayment and (ii) in the case of a
Eurocurrency Borrowing, three Business Days before the scheduled date of such repayment. Each
repayment of a Borrowing (x) in the case of the Revolving Facility, shall be applied to the
Revolving Facility Loans included in the repaid Borrowing such that each Revolving Facility Lender
receives its ratable share of such repayment (based upon the respective Revolving Facility Credit
Exposures of the Revolving Facility Lenders at the time of such repayment) and (y) in all other
cases, shall be applied ratably to the Loans included in the repaid Borrowing. Notwithstanding
anything to the contrary in the immediately preceding sentence, prior to any repayment of a
Swingline Dollar Borrowing or a Swingline Euro Borrowing hereunder, the applicable Swingline
Borrower shall select the Borrowing or Borrowings to be repaid and shall notify the Administrative
Agent by telephone (confirmed by telecopy) of such selection not later than 1:00 p.m., Local Time,
on the scheduled date of such repayment. Except as provided in Section 2.13(d), repayments of
Borrowings shall be accompanied by accrued interest on the amount repaid.




-73-









 








          (f) Amounts to be applied pursuant to Section 2.11(c) shall be applied, as applicable, first
to reduce outstanding ABR Loans. Any amounts remaining after each such application shall be
applied to prepay Eurodollar Term Loans. Notwithstanding the foregoing, if the amount of any
prepayment of Loans required under Section 2.11(c) shall be in excess of the amount of the ABR
Loans at the time outstanding (an “Excess Amount”), only the portion of the amount of such
prepayment as is equal to the amount of such outstanding ABR Loans shall be immediately prepaid
and, at the election of Borrower, the Excess Amount shall be either (A) deposited in an escrow
account on terms satisfactory to the Collateral Agent and applied to the prepayment of Eurodollar
Loans on the last day of the then next-expiring Interest Period for Eurodollar Loans; provided that
(i) interest in respect of such Excess Amount shall continue to accrue thereon at the rate provided
hereunder for the Loans which such Excess Amount is intended to repay until such Excess Amount
shall have been used in full to repay such Loans and (ii) at any time while a Default has occurred
and is continuing, the Administrative Agent may, and upon written direction from the Required
Lenders shall, apply any or all proceeds then on deposit to the payment of such Loans in an amount
equal to such Excess Amount; or (B) prepaid immediately, together with any amounts owing to the
Lenders under Section 2.16.




          SECTION 2.11 Prepayments, etc.




          (a) The applicable Borrower shall have the right at any time and from time to time to prepay
any Borrowing in whole or in part, without premium or penalty (but subject to Section 2.16), in an
aggregate principal amount that is an integral multiple of the Borrowing Multiple and not less than
the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in accordance
with Section 2.10(e), provided that such optional prepayments of the Term Loans shall be
applied to reduce on a pro rata basis (based on the amount of such amortization payments) the
remaining scheduled amortization payments in respect of the Term Loans.




          (b) In the event and on such occasion that the Revolving Facility Credit Exposure exceeds (x)
105% of the total Revolving Facility Commitments solely as a result of currency fluctuations or (y)
the total Revolving Facility Commitments (other than as a result of currency fluctuations), the
Borrowers under the Revolving Facility shall prepay Revolving Facility Borrowings, Swingline Dollar
Borrowings and/or Swingline Euro Borrowings (or, if no such Borrowings are outstanding, deposit
cash collateral in an account with the Administrative Agent pursuant to Section 2.05(k)) made to
such Borrowers, in an aggregate amount equal to the amount by which the Revolving Facility Credit
Exposure exceeds the total Revolving Facility Commitments.




          (c) Holdings shall cause (i) an amount equal to all Net Proceeds (rounded down to the nearest
Borrowing Multiple) promptly upon receipt thereof to be used to prepay Term Loans in accordance
with Section 2.10(c) and (ii) an amount equal to the Remaining Note Amount (rounded down to the
nearest Borrowing Multiple) to be used to prepay Term Loans in accordance with Section 2.10(c) on
the date three months after the Effective Date to the extent not previously used to redeem the
Remaining Notes.




          (d) On any day on which the aggregate CL Exposure exceeds the Total Credit-Linked Commitment
at such time, CAC and the Company on a joint and several basis agree to pay to the Administrative
Agent at the Payment Office on such day an amount of cash




-74-









 







and/or Cash Equivalents equal to the
amount of such excess, such cash and/or Cash Equivalents first, to be used to repay any outstanding
CL Loans, with any remaining cash and/or Cash Equivalents to be held as security for all
obligations of the respective CL Borrower to the Issuing Lenders and the CL Lenders hereunder in
respect of CL Letters of Credit in a cash collateral account to be established by, and under the
sole dominion and control of, the Administrative Agent.




          SECTION 2.12 Fees.




          (a) The Company (on behalf of itself and the other Revolving Borrowers) agrees to pay to each
Revolving Facility Lender (other than any Defaulting Lender), through the Administrative Agent, 10
Business Days after the last day of March, June, September and December in each year, and three
Business Days after the date on which the Revolving Facility Commitments of all the Lenders shall
be terminated as provided herein, a commitment fee (a “RF Commitment Fee”) in Dollars on
the daily amount of the Available Revolving Unused Commitment of such Lender during the preceding
quarter (or other period commencing with the Effective Date or ending with the date on which the
Revolving Facility Commitment of such
Lender shall be terminated) at a rate equal to 0.50% per annum; provided that the RF
Commitment Fee will be reduced (i) to 0.375% per annum if as of the most recent Calculation Date
Holdings demonstrates a First Lien Senior Secured Leverage Ratio not greater than 2.25:1 (but
greater than 1.75:1) and (ii) to 0.25% per annum if as of the most recent Calculation Date Holdings
demonstrates a First Lien Senior Secured Leverage Ratio not greater than 1.75:1. All RF Commitment
Fees shall be computed on the basis of the actual number of days elapsed in a year of 365 days (or
366 days in a leap year). For the purpose of calculating any Lender’s RF Commitment Fee, the
outstanding Swingline Loans during the period for which such Lender’s RF Commitment Fee is
calculated shall be deemed to be zero. The RF Commitment Fee due to each Lender shall commence to
accrue on the Effective Date and shall cease to accrue on the date on which the last of the
Revolving Facility Commitments shall be terminated as provided herein.




          (b) The Company (on behalf of itself and the other Revolving Borrowers and/or CAC) from time
to time agrees to pay (i) to each Revolving Facility Lender (other than any Defaulting Lender),
through the Administrative Agent, 10 Business Days after the last day of March, June, September and
December of each year and three Business Days after the date on which the Revolving Facility
Commitments of all the Lenders shall be terminated as provided herein, a fee (an “L/C
Participation Fee”) in Dollars on such Lender’s Revolving Facility Percentage of the daily
aggregate Revolving L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements), during the preceding quarter (or shorter period commencing with the Effective Date
or ending with the date on which the Revolving Facility Commitments shall be terminated) at the
rate per annum equal to the Applicable Margin for Eurocurrency Revolving Borrowings effective for
each day in such period, and (ii) to each Issuing Bank, for its own account, (x) 10 Business Days
after the last day of March, June, September and December of each year and three Business Days
after the date on which the Revolving Facility Commitments or Credit-Linked Commitments, as the
case may be, of all the Lenders shall be terminated as provided herein, a fronting fee in Dollars
in respect of each Letter of Credit issued by such Issuing Bank for the period from and including
the date of issuance of such Letter of Credit to and including the termination of such Letter of
Credit, computed at a rate equal to 1/8

-75-









 








of 1% per annum of the daily stated amount of such Letter
of Credit) (with the minimum annual fronting fee for each Letter of Credit to be not less than
$500) plus (y) in connection with the issuance, amendment or transfer of any such Letter of Credit
or any L/C Disbursement thereunder, such Issuing Bank’s customary documentary and processing
charges (collectively, “Issuing Bank Fees”). The Company and CAC, jointly and severally,
agree to pay to each CL Lender (based on each such CL Lender’s CL Percentage), through the
Administrative Agent, a fee (the “CL Facility Fee”) equal to the sum of (I) a rate per
annum equal to the Applicable CL Margin on the aggregate amount of such CL Lender’s CL Percentage
of the Credit-Linked Deposits from time to time and (II) a rate per annum equal to the
Credit-Linked Deposit Cost Amount as in effect from time to time on such CL Lender’s CL Percentage
of the aggregate amount of the Credit-Linked Deposits from time to time, in each case for the
period from and including the Effective Date to and including the date on which the Total
Credit-Linked Commitment has been terminated, the Credit-Linked Deposits have been returned to the
CL Lenders and all CL Letters of Credit have been terminated. Accrued CL Facility Fees shall be
due and payable quarterly in arrears on each CL Interest Payment Date and on the date on which the
Total Credit-Linked Commitment has been terminated, the Credit-Linked Deposits have been returned
to the CL Lenders and all CL Letters of Credit have been terminated. All L/C Participation Fees,
Issuing Bank Fees and CL
Facility Fees that are payable on a per annum basis shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.




          (c) The Company agrees to pay to the Administrative Agent, for the account of the
Administrative Agent, the fees set forth in the Administrative Agent’s Fee Letter dated the Closing
Date (the “Administrative Agent Fees”).




          (d) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders, except that
Issuing Bank Fees shall be paid directly to the applicable Issuing Banks. Once paid, none of the
Fees shall be refundable under any circumstances.




          SECTION 2.13 Interest.




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




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




          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any Fees or
other amount payable by the applicable Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue principal amount shall bear interest, and
each such other overdue amount shall, to the extent permitted by law, bear interest, in each case
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 (x) payable in Dollars, 2% plus
the rate applicable to CL Loans or Revolving Loans that are ABR Loans as provided in paragraph (a)
of this Section or (y) payable in Euros, 2% plus the rate otherwise appli-

-76-









 








cable to a Revolving Loan
denominated in Euros with a one-month Interest Period made on such date; provided that this
paragraph (c) shall not apply to any payment default that has been waived by the Lenders pursuant
to Section 9.08.




          (d) Accrued interest on each Loan shall be payable in arrears (i) on each Interest Payment
Date for such Loan, (ii) in the case of Revolving Facility Loans, upon termination of the Revolving
Facility Commitments, (iii) in the case of any CL Loans, upon the expiration of the CL Availability
Period or upon termination of the Total Credit-Linked Commitment and (iv) in the case of the Term
Loans, on the Term Loan Maturity Date; 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 Revolving Loan or Swingline Dollar Loan
prior to the end of the Revolving 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 or payment 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 or payment.




          (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
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, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such determination shall be prima facie
evidence thereof.




          (f) All interest paid or payable pursuant to this Section 2.13 shall be paid in the applicable
currency in which the Loan giving rise to such interest is denominated.




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





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




     (b) the Administrative Agent is advised by the Majority Lenders under a Facility that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the Borrowers and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrowers 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 Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing denominated in such currency shall be
ineffective and such Borrowing shall be converted to or continued as on the last day of


-77-









 






the
Interest Period applicable thereto (A) if such Borrowing is denominated in Dollars, an ABR
Borrowing or (B) if such Borrowing is denominated in Euros, as a Borrowing bearing interest at such
rate as the Majority Lenders under the Revolving Facility and the applicable Borrower shall agree
adequately reflects the costs to the Revolving Facility Lenders of making or maintaining their
Loans, and (ii) 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 such rate as the Majority Lenders under the
Revolving Facility shall agree adequately reflects the costs to the Revolving Facility Lenders of
making the Loans comprising such Borrowing.




          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 LIBO Rate or those
for which payment has been requested pursuant to Section 2.21) or Issuing Bank; or




     (ii) impose on any Lender or Issuing Bank or the London interbank market any other
condition affecting this Agreement, Eurocurrency Loans or Swingline Euro Loans made by such
Lender or any Letter of Credit or participation therein (except those for which payment has
been requested pursuant to Section 2.21);


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 Swingline Euro Loan (or of maintaining its obligation to make
any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing
or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise), in each case
determined to be material by such Lender, then the applicable Borrower (in the case of a Loan) or
the applicable Applicant Party (in the case of a Letter of Credit) will pay to such Lender or
Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or
Issuing Bank, as applicable, for such additional costs incurred or reduction suffered.




          (b) If any Lender or 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
Issuing Bank’s capital or on the capital of such Lender’s or 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 such Issuing Bank, to a level below
that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or such
Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company
with respect to capital adequacy) and determined to be material by such Lender, then from time to
time the applicable Borrower (in the case of a Loan) or the applicable Applicant Party (in the case
of a Letter of Credit) shall pay to such Lender or

-78-









 








such Issuing Bank, as applicable, such
additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s
or such Issuing Bank’s holding company for any such reduction suffered.




          (c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary
to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in
paragraph (a) or (b) of this Section (as well as reasonably detailed calculations thereof) shall be
delivered to the applicable Borrower (in the case of a Loan) or the applicable Applicant Party (in
the case of a Letter of Credit) and shall be prima facie evidence of the
amounts thereof. The applicable Borrower (in the case of a Loan) or the applicable Applicant
Party (in the case of a Letter of Credit) shall pay such Lender or Issuing Bank, as applicable, the
amount shown as due on any such certificate within 10 days after receipt thereof.




          (d) Promptly after any Lender or any Issuing Bank has determined that it will make a request
for increased compensation pursuant to this Section 2.15, such Lender or Issuing Bank shall notify
the applicable Borrower thereof. Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or
Issuing Bank’s right to demand such compensation; provided that a Borrower shall not be
required to compensate a Lender or an 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 Issuing Bank, as
applicable, notifies such Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or 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 or Swingline Euro 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 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 a Borrower pursuant
to Section 2.19, then, in any such event, such Borrower shall compensate each Lender for the loss,
cost and expense attributable to such event. In the case of a Eurocurrency Loan or Swingline Euro
Loan, such loss, cost or expense to any Lender shall be deemed to be the amount reasonably
determined by such Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate
that would have been applicable to such Loan, 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 a Eurocurrency Loan, 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
such period at the interest rate which such Lender would bid were it to bid, at the commencement of
such period, for deposits in Euros of a comparable amount and period from other banks in the
Eurodollar market. 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 such Borrower and
shall be prima facie evidence of the amounts thereof.




-79-









 







Such Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt thereof.




          Each CL Borrower jointly and severally agrees to compensate the Deposit Bank, upon its written
request (which request shall set forth in reasonable detail the basis for requesting such
compensation), for all losses, expenses and liabilities incurred by the Deposit Bank in connection
with (i) any withdrawals from the Credit-Linked Deposit Account pursuant to the terms
of this Agreement prior to the end of the applicable Interest Period or scheduled investment
termination date for the Credit-Linked Deposits and (ii) the termination of the Total Credit-Linked
Commitment (and the related termination of the investment of the funds held in the Credit-Linked
Deposit Account) prior to the end of any applicable Interest Period or scheduled investment
termination date for the Credit-Linked Deposits.




          SECTION 2.17 Taxes.




          (a) Any and all payments by or on account of any obligation of any Loan Party hereunder shall
be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if a Loan Party 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) each Agent, Lender or Issuing Bank, as applicable, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Loan Party shall make such
deductions and (iii) such Loan Party shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.




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




          (c) Each Loan Party shall indemnify the Agents, each Lender and each Issuing Bank, within 10
days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by such Agent, Lender or Issuing Bank, as applicable, on or with respect to any payment by or
on account of any obligation of such Loan Party hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) and any
reasonable expense 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 such Loan
Party by a Lender or an Issuing Bank, or by the Administrative Agent on its own behalf, on behalf
of another Agent or on behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest
error.




          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan
Party to a Governmental Authority, such Loan Party 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.




-80-









 








          (e) Any Lender that is entitled to an exemption from or reduction of withholding Tax under the
law of the jurisdiction in which a Borrower is located, or any treaty to which such jurisdiction is
a party, with respect to payments under this Agreement shall deliver to such Borrower (with a copy
to the Administrative Agent), to the extent such Lender is legally entitled to do so, at the time
or times prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as may reasonably be requested by such Borrower
to permit such payments to be made without such withholding tax or at a reduced rate;
provided that no Lender shall have any obligation under this paragraph (e) with respect to
any withholding Tax imposed by any jurisdiction other than the United States if in the reasonable
judgment of such Lender such compliance would subject such Lender to any material unreimbursed cost
or expense or would otherwise be disadvantageous to such Lender in any material respect.




          (f) If an Agent or a Lender determines, in good faith and in its sole discretion, that it has
received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a
Loan Party or with respect to which such Loan Party has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to such Loan Party (but only to the extent of indemnity
payments made, or additional amounts paid, by such Loan Party 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 such
Agent or such Lender (including any Taxes imposed with respect to such refund) as is determined by
the Agent or Lender in good faith and in its sole discretion and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund); provided
that such Loan Party, upon the request of such Agent or such Lender, agrees to repay as soon as
reasonably practicable the amount paid over to such Loan Party (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the
event such Agent or such Lender is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require any Agent or any Lender to make available its Tax
returns (or any other information relating to its Taxes which it deems confidential) to the Loan
Parties or any other Person.




          SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.




          (a) Unless otherwise specified, each Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or reimbursement of L/C Disbursements, or of
amounts payable under Section 2.15, 2.16, 2.17 or 2.21, or otherwise) prior to 2:00 p.m., Local
Time, on the date when due, in immediately available funds, without condition or deduction for any
defense, recoupment, 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 to the applicable account designated to the Company by the
Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the
applicable Swingline Lender as expressly provided herein and except that payments pursuant to
Sections 2.15, 2.16, 2.17, 2.21 and 9.05 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 or, in the case of
payments made prior to the Revolving Facility Maturity Date in respect of CL Loans or of L/C
Disbursements funded by CL Lenders from Credit-Linked Depos-

-81-









 








its, the Administrative Agent shall
deposit same in the Credit-Linked Deposit Account. 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, subject to Sections 2.05(e) and
2.05(k), 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. Any amount payable by the
Administrative Agent to one or more Lenders in the national currency of a member state of the
European Union that has adopted the Euro as its lawful currency shall be paid in Euros.




          (b) If at any time insufficient funds are received by and available to the Administrative
Agent from any Borrower to pay fully all amounts of principal, unreimbursed L/C Disbursements,
interest and fees then due from such Borrower hereunder, such funds shall be applied (i)
first, towards payment of interest and fees then due from such Borrower hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal and unreimbursed L/C
Disbursements then due from such Borrower hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed L/C 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 Term Loans, Revolving
Facility Loans, CL Loans or participations in L/C Disbursements or Swingline Loans resulting in
such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans,
Revolving Facility Loans, CL Loans and participations in L/C 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
Term Loans, Revolving Facility Loans, CL Loans and participations in L/C Disbursements and
Swingline Loans of other Lenders 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 Term Loans, Revolving Facility Loans, CL Loans and
participations in L/C 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 (c) shall not be
construed to apply to any payment made by a Borrower pursuant to and in accordance with the express
terms of this Agreement (including in connection with any reduction or termination of commitments
under any Facility) 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 L/C Disburse-

-82-









 








ments to any assignee
or participant, other than to such Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph (c) shall apply).




          (d) Unless the Administrative Agent shall have received notice from a Borrower prior to the
date on which any payment is due to the Administrative Agent for the account
of the Lenders or the applicable Issuing Bank hereunder that such Borrower will not make such
payment, the Administrative Agent may assume that such Borrower has made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the
applicable Issuing Bank, as applicable, the amount due. In such event, if such Borrower has not in
fact made such payment, then each of the Lenders or the applicable Issuing Bank, as applicable,
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, at
(i) 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 Euros).




          (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.




          SECTION 2.19 Mitigation Obligations; Replacement of Lenders.




          (a) If any Lender requests compensation under Section 2.15 or 2.21, or if a 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 reasonable
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.15, 2.17 or 2.21, as applicable, in the future and (ii) would not
subject such Lender to any material unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender in any material respect. Each Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation or
assignment.




          (b) If any Lender requests compensation under Section 2.15 or 2.21, or if a 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 a Lender is a Defaulting Lender, then such 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) such Lender shall

-83-









 








have received
payment of an amount equal to the outstanding principal of its Loans and participations in L/C
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 such Borrower (in the case of all other amounts)
and (ii) in the case of any such assignment resulting from a claim for compensation under Section
2.15 or 2.21 or payments required to be made pursuant to Section 2.17, such assignment will result
in a reduction in such compensation or payments. Nothing in this Section 2.19 shall be deemed to
prejudice any rights that any Borrower may have against any Lender that is a Defaulting Lender.




          (c) If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a
proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 9.08
requires the consent of all of the Lenders affected and with respect to which the Required Lenders
shall have granted their consent, then provided no Event of Default then exists, the Company shall
have the right, at its sole cost and expense, (unless such Non-Consenting Lender grants such
consent) to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign
its Loans, and its Commitments hereunder to one or more assignees reasonably acceptable to the
Administrative Agent, provided that: (a) all Obligations of Borrowers owing to such
Non-Consenting Lender being replaced (and all Credit-Linked Deposits funded by such Lender) shall
be paid in full to such Non-Consenting Lender concurrently with such assignment and (b) the
replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price
equal to the principal amount thereof plus accrued and unpaid interest thereon. In connection with
any such assignment the Company, Administrative Agent, such Non-Consenting Lender and the
replacement Lender shall otherwise comply with Section 9.04; provided that the processing
and recordation fee due and payable pursuant to 9.04(b)(ii)(C) shall be waived in connection with
any assignment pursuant to this Section 2.19(c).




          SECTION 2.20 Revolving Borrowers. The Company may designate after the Effective Date
any Domestic Subsidiary of the Company that is party to the U.S. Collateral Agreement and/or any
Foreign Subsidiary of the Company that is a Wholly Owned Subsidiary as an additional Revolving
Borrower, with a specified Maximum Credit Limit, by delivery to the Administrative Agent of a
Revolving Borrower Agreement executed by such Subsidiary and the Company at least 5 Business Days
(or 10 Business Days in the case of any Subsidiary which is not both a Domestic Subsidiary and a
Wholly Owned Subsidiary) prior to the date of such designation, a copy of which the Administrative
Agent shall promptly deliver to the Lenders. It is agreed that Grupo Celanese S.A., if and when
designated by the Company as a Revolving Borrower, will have a Maximum Credit Limit equal at any
time to the Dollar Equivalent of the aggregate Revolving Facility Commitments at such time. Each
such designation shall specify whether such Subsidiary shall be entitled to make Borrowings under
and/or request Letters of Credit under the Revolving Facility, and each such designation and
specified Maximum Credit Limit shall be subject to the consent of the Administrative Agent (which
consent shall not unreasonably be withheld). Upon the execution by the Company and delivery to the
Administrative Agent of a Revolving Borrower Termination with respect to any Revolving Borrower,
such Subsidiary shall cease to be a Revolving Borrower and a party to this Agreement as a Revolving
Borrower; provided that no Revolving Borrower Termination will become effective as to any
Revolving Borrower (other than to terminate such Revolving Borrower’s right to make further

-84-









 








Borrowings under this Agreement) at a time when any principal of or interest on any Loan to such
Revolving Borrower or any Letter of Credit for the
account of such Revolving Borrower shall be outstanding hereunder. Promptly following receipt
of any Revolving Borrower Agreement or Revolving Borrower Termination, the Administrative Agent
shall send a copy thereof to each Revolving Facility Lender. The Company shall be entitled to
designate any Foreign Subsidiary that complies with the requirements described in Section 5.10(f)
as a Revolving Borrower.




          SECTION 2.21 Additional Reserve Costs.




          (a) For so long as any Lender is required to make special deposits with the Bank of England
and/or the Financial Services Authority (or, in either case any other authority which replaced all
or any of its functions) and/or the European Central Bank or comply with reserve assets, liquidity,
cash margin or other requirements of the Bank of England and/or the Financial Services Authority
(or, in either case any other authority which replaced all or any of its functions) and/or the
European Central Bank, to maintain reserve asset ratios or to pay fees, in each case in respect of
such Lender’s Eurocurrency Loans or Swingline Euro Loans, such Lender shall be entitled to require
the applicable Borrower to pay, contemporaneously with each payment of interest on each of such
Loans, additional interest on such Loan at a percentage rate per annum equal to the Mandatory Costs
Rate calculated in accordance with the formulae and in the manner set forth in Exhibit H
hereto.




          (b) Any additional interest owed pursuant to paragraph (a) above shall be determined by the
applicable Lender, which determination shall be prima facie evidence of the amount thereof, and
notified to the applicable Borrower (with a copy to the Administrative Agent) at least 10 days
before each date on which interest is payable for the applicable Loan, and such additional interest
so notified to the applicable Borrower by such Lender shall be payable to the Administrative Agent
for the account of such Lender on each date on which interest is payable for such Loan.




          SECTION 2.22 Illegality.




          (a) If any Lender reasonably determines that it is unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make
or maintain any Euro Term Loan, any Revolving Facility Loan denominated in Euros or any Swingline
Euro Loan, then, on notice thereof by such Lender to the applicable Borrower through the
Administrative Agent, any obligations of such Lender to make or continue Euro Term Loans, Revolving
Facility Loans denominated in Euros or Swingline Euro Loans shall be suspended until such Lender
notifies the Administrative Agent and the applicable Borrower that the circumstances giving rise to
such determination no longer exist. Upon any of such notice, the applicable Borrower shall upon
demand from such Lender (with a copy to the Administrative Agent) prepay such Euro Term Loan,
Revolving Facility Loan denominated in Euros or Swingline Euro Loan. Upon any such prepayment,
such Borrower shall also pay accrued interest on the amount so prepaid.




          (b) If any Lender reasonably determines that any change in law has made it unlawful, or that
any Governmental Authority has asserted after the Effective Date that it is

-85-









 








unlawful, for any
Lender or its applicable lending office to make or maintain any Eurocurrency Loans (other than as
set forth in paragraph (a) above), then, on notice thereof by such Lender to the applicable
Borrower through the Administrative Agent, any obligations of such Lender to make or continue
Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency Borrowings shall be suspended until
such Lender notifies the Administrative Agent and the applicable Borrower that the circumstances
giving rise to such determination no longer exist. Upon the receipt of such notice, the applicable
Borrower shall upon demand from such Lender (with a copy to the Administrative Agent), either (i)
for Loans denominated in Euros (A) prepay each Loan denominated in Euros or (B) keep such Loan
denominated in Euros outstanding, in which case the Adjusted LIBO Rate with respect to such Loan
shall be deemed to be the rate determined by such Lender as the all-in-cost of funds to fund such
Loan with maturities comparable to the Interest Period applicable thereto, or (ii) for Loans
denominated in Dollars, convert all Eurocurrency Borrowings of such Lender to ABR Borrowings,
either on the last day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Borrowings to such day, or immediately, if such Lender may not lawfully
continue to maintain such Loans. Upon any such prepayment or conversion, such Borrower shall also
pay accrued interest on the amount so prepaid or converted.




          SECTION 2.23 New Commitments.




          (a) New Commitments. At any time after completion of the primary syndication (as
determined by the Lead Arrangers) and prior to the date which is 12 months prior to (i) in the case
of Revolving Facility Loans, the Revolving Facility Maturity Date and (ii) in the case of Term
Loans, the Term Loan Maturity Date, the Company may by written notice to the Administrative Agent
elect to request New Revolving Lenders to provide new Revolving Facility Commitments (the “New
Revolving Facility Commitments”) and New Term Lenders to provide Commitments to make
incremental Term Loans hereunder (“New Term Loans” and, together with the New Revolving
Facility Commitments, the “New Commitments”) in an aggregate principal amount for all such
New Commitments not to exceed the Dollar Equivalent of $500.0 million, the proceeds of which may be
used for any general corporate purposes (including any Investment, Capital Expenditure, Restricted
Payment or repayment of other Indebtedness, in each case as otherwise permitted under this
Agreement). Such notice shall specify the date (the “Increased Amount Date”) on which the
Company proposes that the such New Term Commitments take effect, which shall be a date not less
than 10 Business Days after the date on which such notice is delivered to the Administrative Agent
and prior to the date which is 12 months prior to, in the case of New Revolving Facility
Commitments, the Revolving Facility Maturity Date and, in the case of New Term Loans, the Term Loan
Maturity Date. The Company shall notify the Administrative Agent in writing of the identity of each
Lender or other financial institution reasonably acceptable to the Administrative Agent to whom
such new Revolving Facility Commitments (each, a “New Revolving Facility Lender”) and/or
Commitments for New Term Loans (each, a “New Term Lender” and, together with the New
Revolving Facility Lenders, the “New Lenders”) have been (in accordance with the prior
sentence) allocated and the amounts of such allocations; provided that any Lender requested to
provide all or a portion of such New
Commitments may elect or decline, in its sole discretion, to provide a New Commitment. New
Revolving Facility Commitments shall take effect and New Term Loans shall be made on the Increased
Amount Date; provided that (1) all such New Commitments may be made in Dollars or Euros
only, (2) all

-86-









 








such New Term Loans shall be added to, and thereafter constitute, the then
outstanding Original Dollar Term Loans or Original Euro Term Loans, as the case may be, for all
purposes hereunder, although the Company may elect to designate New Term Loans as Additional Dollar
Term Loans or Additional Euro Term Loans, as the case may be, hereunder by written notice to the
Administrative Agent to the extent that the Applicable Margin or repayment schedule for such New
Term Loans will be different than that applicable to the Original Dollar Term Loans or Original
Euro Term Loans, as the case may be, or any Additional Dollar Term Loans or Additional Euro Term
Loans, as the case may be, theretofore incurred and then outstanding, (3) no Default or Event of
Default shall exist on the Increased Amount Date before or after giving effect to such New
Commitments, (4) such New Commitments shall be evidenced by one or more joinder agreements (each, a
“New Commitment Joinder Agreement”) executed and delivered to the Administrative Agent by
each New Lender, as applicable, on terms (other than pricing) and documentation reasonably
satisfactory to the Administrative Agent, including the designated maturity date (and, if
applicable, amortization schedule) for the New Term Loans, and each shall be recorded in the
Register, each of which shall be subject to the requirements set forth in Section 2.17(e), (5) the
aggregate principal amount of all New Revolving Facility Commitments shall not exceed the Dollar
Equivalent of $250.0 million, (6) all reasonable and documented fees and expenses owing to the
Administrative Agent and the New Lenders in respect of the New Commitments shall be paid on the
Increased Amount Date and (7) immediately after giving effect to the incurrence of the New
Commitments (which shall be deemed to be outstanding for the purposes of this clause (7)), Holdings
shall (x) be in compliance with the Incurrence Ratios on a Pro Forma Basis or (y) the proceeds of
such New Term Loans or loans under New Revolving Facility Commitments shall be used to purchase,
construct or improve capital assets to be used in the business of Holdings and its Subsidiaries or
to finance acquisitions permitted under this Agreement.




     (b) On the Increased Amount Date, subject to the satisfaction of the foregoing terms and
conditions, (i) each New Revolving Facility Commitment shall be deemed for all purposes a Revolving
Facility Commitment hereunder, (ii) each New Term Loan shall be deemed for all purposes a Term Loan
hereunder, (iii) each New Revolving Facility Lender shall become a Revolving Facility Lender with
respect to the Revolving Facility Commitments and all matters relating thereto, (iv) each New Term
Lender shall become a Term Lender with respect to the Term Loans and all matters relating thereto,
(v) the New Term Loans shall have the same terms as the existing Term Loans and be made by each New
Term Lender on the Increased Amount Date; provided that (x) the Applicable Margin for any
New Term Loans designated as Additional Dollar Term Loans shall be that percentage per annum set
forth in the relevant New Commitment Joinder Agreement (or, in the case of any Additional Dollar
Term Loans extended pursuant to more than one New Commitment Joinder Agreement on the relevant
Increased Amount Date, as may be provided in the first New Term Loan Joinder Agreement executed and
delivered with respect to such Additional Dollar Term Loans), (y) the maturity date of (A) the New
Revolving Facility Commitments shall be no earlier that the Revolving Facility Maturity Date and
(B) the New Term Loans shall be no earlier than the Term Loan Maturity Date and (z) the average
life to maturity of the New Term Loans shall not be shorter than the remaining average life to
maturity of the Term Loans, and (vi) upon making the New Term Loans on the Increased Amount Date,
the new Commitments in respect thereof shall terminate. All New Commitments made on any




-87-










 




Increased
Amount Date will be made in accordance with the procedures set forth in Sections 2.02 and 2.03 and
subject to the conditions specified in Section 4.01.




          (c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Company’s
notice of the Increased Amount Date and, in respect thereof, the New Commitments and the New
Lenders in respect thereof.




          (d) In connection with the incurrence of New Term Loans pursuant to this Section 2.23, the
Lenders and the Borrowers hereby agree that, notwithstanding anything to the contrary contained in
this Agreement, the Company and the Administrative Agent may take all such actions as may be
necessary to ensure that all Lenders with outstanding Term Loans continue to participate in each
Borrowing of outstanding Term Loans (after giving effect to the incurrence of New Term Loans
pursuant to this Section 2.23) on a pro rata basis, including by adding the New
Term Loans to be so incurred to the then outstanding Borrowings of Term Loans on a pro rata basis
even though as a result thereof such New Term Loans (to the extent required to be maintained as
Eurocurrency Term Loans) may effectively have a shorter Interest Period than the then outstanding
Borrowings of Term Loans, and it is hereby agreed that the Company shall pay to such New Term
Lenders such amounts necessary, as reasonably determined by such New Term Lenders, to compensate
such New Term Lender for making such New Term Loans during an existing Interest Period (rather than
at the beginning of the respective Interest Period, based upon the rates then applicable thereto),
it being understood and agreed, however, that each incurrence of Additional Dollar Term Loans
incurred pursuant to this Section 2.23 shall be made and maintained as separate Borrowings from the
Original Dollar Term Loans and, to the extent such Additional Dollar Term Loans have a different
Applicable Margin or repayment schedule from any Additional Dollar Term Loans then outstanding,
from such then outstanding Additional Dollar Term Loans.




ARTICLE III




REPRESENTATIONS AND WARRANTIES




          Each of Holdings and the Company represents and warrants to each of the Lenders that:




          SECTION 3.01 Organization; Powers. Except as set forth on Schedule 3.01, each
of Holdings, the Company and each of the Material Subsidiaries (a) is a partnership, limited
liability company, exempted company or corporation duly organized, validly existing and in good
standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent status under the laws
of any jurisdiction of organization outside the United States) under the laws of the jurisdiction
of its organization, (b) has all requisite power and authority to own its property and to carry on
its business as now conducted, (c) is qualified to do business in each jurisdiction where such
qualification is required, except where the failure so to qualify would not reasonably be expected
to have a Material Adverse Effect, and (d) has the power and authority to execute, deliver and
perform its obligations under each of the Loan Documents and each other agreement or instrument
contemplated thereby to which it is or will be a party and, in the case of each Borrower, to borrow
and otherwise obtain credit hereunder.




-88-









 








          SECTION 3.02 Authorization. The execution, delivery and performance by Holdings, the
Company, and each of their Subsidiaries of each of the Loan Documents to which it is a party, and
the borrowings hereunder (a) have been duly authorized by all corporate, stockholder, shareholder,
limited liability company or partnership action required to be obtained by Holdings, the Company and
such Subsidiaries and (b) will not (i) violate (A) any provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation or other constitutive documents or
by-laws of Holdings, the Company or any such Subsidiary, (B) any applicable order of any court or
any rule, regulation or order of any Governmental Authority or (C) any provision of any indenture,
certificate of designation for preferred stock, agreement or other instrument to which Holdings,
the Company or any such Subsidiary is a party or by which any of them or any of their property is
or may be bound, (ii) be in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under, give rise to a right of or result in any
cancellation or acceleration of any right or obligation (including any payment) or to a loss of a
material benefit under any such indenture, certificate of designation for preferred stock,
agreement or other instrument, where any such conflict, violation, breach or default referred to in
clause (i) or (ii) of this Section 3.02, would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, or (iii) result in the creation or imposition of any Lien
upon or with respect to any material property now owned or hereafter acquired by Holdings, the
Company or any such Subsidiary, other than the Liens created by the Loan Documents.




          SECTION 3.03 Enforceability. This Agreement has been duly executed and delivered by
Holdings, the Company and CAC and constitutes, and each other Loan Document when executed and
delivered by each Loan Party that is party thereto will constitute, a legal, valid and binding
obligation of (x) in the case of this Agreement, Holdings and each Borrower or (y) in the case of
such other Loan Documents, such Loan Party, enforceable against each such Loan Party in accordance
with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (iii) implied covenants of good faith and fair dealing.




          SECTION 3.04 Governmental Approvals. No action, consent or approval of, registration
or filing with or any other action by any Governmental Authority is or will be required in
connection with the Transactions, except for (a) the filing of Uniform Commercial Code financing
statements, (b) filings with the United States Patent and Trademark Office and the United States
Copyright Office and comparable offices in foreign jurisdictions and equivalent filings in foreign
jurisdictions, (c) recordation of the Mortgages, (d) such other filings as may be required to
effect or perfect the Liens granted under the Security Documents, (e) such as have been made or
obtained and are in full force and effect, (f) such actions, consents and approvals the failure to
be obtained or made which would not reasonably be expected to have a Material Adverse Effect and
(g) filings or other actions listed on Schedule 3.04.




-89-









 








          SECTION 3.05 Financial Statements.




          (a) Holdings has heretofore furnished to the Lenders the audited consolidated balance sheet as
of December 31, 2006 and the related audited consolidated statements of income and cash flows of
Holdings and its consolidated subsidiaries for the year ended December 31, 2006, which were
prepared in accordance with US GAAP consistently applied (except as may be indicated in the notes
thereto), fairly present in all material respects the consolidated financial position of Holdings
and its consolidated subsidiaries as of the dates thereof and their consolidated results of
operations and cash flows for the period then ended.




          (b) The Company has heretofore furnished to the Lenders a pro forma consolidated balance sheet
of the Parent as of December 31, 2006 prepared giving effect to the Transaction as if the
Transaction had occurred on such date. Such pro forma consolidated balance sheet has been prepared
in good faith based on the assumptions believed by Holdings and the Company to have been reasonable
at the time made and to be reasonable as of the Effective Date (it being understood that such
assumptions are based on good faith estimates with respect to certain items and that the actual
amounts of such items on the Effective Date are subject to variation).




          SECTION 3.06 No Material Adverse Effect. Since December 31, 2006 (but after giving
effect to the Transaction) no Material Adverse Effect has occurred.




          SECTION 3.07 Title to Properties; Possession Under Leases.




          (a) Each of Holdings, the Company and the Material Subsidiaries has good and valid record fee
simple title (insurable at ordinary rates) to, or valid leasehold interests in, or easements or
other limited property interests in, all its properties (including all Mortgaged Properties),
except where the failure to have such title would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. All such properties are free and clear of Liens,
other than Liens expressly permitted by Section 6.02.




          (b) Each of Holdings, the Company and the Material Subsidiaries has complied with all
obligations under all leases to which it is a party, except where the failure to comply would not
have a Material Adverse Effect, and all such leases are in full force and effect, except leases in
respect of which the failure to be in full force and effect would not reasonably be expected to
have a Material Adverse Effect. Each of Holdings, the Company and each of the Material
Subsidiaries enjoys peaceful and undisturbed possession under all such leases, other than leases in
respect of which the failure to enjoy peaceful and undisturbed possession would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.




          (c) Each of Holdings, the Company and the Material Subsidiaries owns or possesses, or could
obtain ownership or possession of, on terms not materially adverse to it, all patents, trademarks,
service marks, trade names, copyrights, licenses and rights with respect thereto necessary for the
present conduct of its business, without any known conflict with the rights of others, and free
from any burdensome restrictions, except where such conflicts and
restrictions would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.




-90-









 








          (d) As of the Effective Date, none of Holdings, the Company and the Material Subsidiaries has
received any notice of any pending or contemplated condemnation proceeding affecting any of the
Mortgaged Properties or any sale or disposition thereof in lieu of condemnation that remains
unresolved as of the Effective Date.




          (e) None of Holdings, the Company and the Material Subsidiaries is obligated on the Effective
Date under any right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any interest therein, except as permitted under
Section 6.02 or 6.05.




          SECTION 3.08 Subsidiaries.




          (a) Schedule 3.08(a) sets forth as of the Effective Date the name and jurisdiction of
incorporation, formation or organization of each Material Subsidiary and, as to each such Material
Subsidiary, the percentage of each class of Equity Interests owned by Holdings or by any such
Material Subsidiary, subject to such changes as are reasonably satisfactory to the Administrative
Agent.




          (b) As of the Effective Date, there are no outstanding subscriptions, options, warrants,
calls, rights or other similar agreements or commitments (other than stock options granted to
employees or directors and directors’ qualifying shares) of any nature relating to any Equity
Interests of Holdings, the Company or any of the Material Subsidiaries, except as set forth on
Schedule 3.08(b).




          (c) Except to the extent, if any, specified for such Subsidiary on Schedule 1.01(c),
each Subsidiary listed on Schedule 1.01(c) owns no property other than any de
minimis assets and conducts no business other than de minimis business.




          SECTION 3.09 Litigation; Compliance with Laws.




          (a) Except as set forth on Schedule 3.09, there are no actions, suits, investigations
or proceedings at law or in equity or by or on behalf of any Governmental Authority or in
arbitration now pending or, to the knowledge of Holdings or the Company, threatened in writing
against or affecting Holdings or the Company or any of their Subsidiaries or any business, property
or rights of any such Person which, in the judgment of the Company (giving effect to all appeals),
would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
or materially adversely affect the Transaction.




          (b) None of Holdings, the Company, the Material Subsidiaries and their respective properties
is in violation of (nor will the continued operation of their material
properties as currently conducted violate) any Requirement of Law (including any zoning,
building, Environmental Law, ordinance, code or approval or any building permit) or any restriction
of record or agreement affecting any Mortgaged Property, or is in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority, where such violation or default
would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.




-91-









 








          SECTION 3.10 Federal Reserve Regulations.




          (a) None of Holdings, the Company and their Subsidiaries is engaged principally, or as one of
its important activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.




          (b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U
or Regulation X.




          SECTION 3.11 Investment Company Act. None of Holdings, the Company and their
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended.




          SECTION 3.12 Use of Proceeds. The respective Borrowers will use the proceeds of
Revolving Facility Loans, Swingline Loans and CL Loans and the issuance of Letters of Credit on or
after the Effective Date for general corporate purposes; provided that Letters of Credit
may not be issued in support of Indebtedness permitted under Section 6.01(v). The Company will use
the proceeds of Term Loans (net of a portion of such proceeds used to satisfy fees and expenses)
made to it on the Effective Date to finance the Transaction (other than the Equity Tender Offer),
provided that an amount of proceeds of the Term Loans equal to the amount not required to
be utilized to effect the purchase of the Senior Discount Notes and Senior Subordinated Notes to be
purchased in the Debt Tender Offer on the Effective Date or to cover fees and expenses in
connection with the Transaction, to the extent not greater than 10% of the aggregate amount of the
Term Loans made on the Effective Date, may be used for general corporate purposes (other than
dividends or other distributions or in violation of Section 3.10) and/or held by the Company
provided that the Company complies with the requirements of the proviso to Section 5.08 with
respect to such amounts.




          SECTION 3.13 Tax Returns. Except as set forth on Schedule 3.13:





     (a) each of Holdings, the Company and the Material Subsidiaries (i) has timely filed or
caused to be timely filed all federal, state, local and non-U.S. Tax returns required to
have been filed by it that are material to such companies taken as a whole and each such Tax
return (as amended, if applicable) is true and correct in all material respects and (ii) has
timely paid or caused to be timely paid all Taxes shown thereon to be due and payable by it
and all other Taxes or assessments, except Taxes or assessments that are being contested in
good faith by appropriate proceedings in accordance with Section 5.03 and for which
Holdings, the Company or any of the Material Subsidiaries (as the case may be) has set aside
on its books adequate reserves and except for such Taxes the failure to pay which would not
reasonably be expected to have a Material Adverse Effect;




     (b) each of Holdings, the Company and the Material Subsidiaries has paid in full or
made adequate provision (in accordance with US GAAP) for the payment of all Taxes due with
respect to all periods or portions thereof ending on or before the Effective



-92-









 






Date, which Taxes, if not paid or adequately provided for, would reasonably be expected to have a Material Adverse Effect; and




     (c) as of the Effective Date, with respect to each of Holdings, the Company and their
Material Subsidiaries, (i) there are no material audits, investigations or claims being
asserted in writing with respect to any Taxes, (ii) no presently effective waivers or
extensions of statutes of limitation with respect to Taxes have been given or requested and
(iii) no material Tax returns are being examined by, and no written notification of
intention to examine has been received from, the Internal Revenue Service or, with respect
to any material potential Tax liability, any other Taxing authority.



          SECTION 3.14 No Material Misstatements.




          (a) All written information (other than the Projections, estimates and information of a
general economic nature) (the “Information”) concerning Holdings, the Company, their
Subsidiaries, the Transaction and any other transactions contemplated hereby included in the
Confidential Information Memorandum or otherwise prepared by or on behalf of the foregoing or their
representatives and made available to any Lenders or the Administrative Agent in connection with
the Transaction or the other transactions contemplated hereby (as such information may have been
supplemented in writing prior to the Effective Date), when taken as a whole, was true and correct
in all material respects, as of the date such Information was furnished to the Lenders, or
supplemented, if applicable, and (in the case of such Information delivered prior to the Effective
Date) as of the Effective Date and did not contain any untrue statement of a material fact as of
any such date or omit to state a material fact necessary in order to make the statements contained
therein not materially misleading in light of the circumstances under which such statements were
made.




          (b) The Projections and estimates and information of a general economic nature prepared by or
on behalf of the Company or any of its representatives and that have been made available to any
Lenders or the Administrative Agent in connection with the Transaction or
the other transactions contemplated hereby (i) have been prepared in good faith based upon
assumptions believed by the Company to be reasonable as of the date thereof and as of the Effective
Date, and (ii) as of the Effective Date, have not been modified in any material respect by the
Company.




          SECTION 3.15 Employee Benefit Plans.




          (a) Each of Holdings, the Company, the Material Subsidiaries and the ERISA Affiliates is in
compliance with the applicable provisions of ERISA and the provisions of the Code relating to Plans
and the regulations and published interpretations thereunder and any similar applicable non-U.S.
law, except for such noncompliance that would not reasonably be expected to have a Material Adverse
Effect. No Reportable Event has occurred during the past five years as to which Holdings, the
Company, any of the Material Subsidiaries or any ERISA Affiliate was required to file a report with
the PBGC, other than reports that have been filed and reports the failure of which to file would
not reasonably be expected to have a Material Adverse Effect. As of the Effective Date, the excess
of the present value of all benefit liabilities under each Plan of Holdings, the Company,
the Material Subsidiaries and the ERISA Affiliates (based




-93-









 







on those assumptions used to fund such Plan),
as of the last annual valuation date applicable thereto for which a valuation is available, over
the value of the assets of such Plan would not reasonably be expected to have a Material Adverse
Effect, and the excess of the present value of all benefit liabilities of all underfunded Plans
(based on those assumptions used to fund each such Plan) as of the last annual valuation dates
applicable thereto for which valuations are available, over the value of the assets of all such
under funded Plans would not reasonably be expected to have a Material Adverse Effect. No ERISA
Event has occurred or is reasonably expected to occur that, when taken together with all other such
ERISA Events which have occurred or for which liability is reasonably expected to occur, would
reasonably be expected to result in a Material Adverse Effect. None of Holdings, the Company, the
Material Subsidiaries and the ERISA Affiliates has received any written notification that any
Multiemployer Plan is in reorganization or has been terminated within the meaning of Title IV of
ERISA, or has knowledge that any Multiemployer Plan is reasonably expected to be in reorganization
or to be terminated, where such reorganization or termination has had or would reasonably be
expected to have, through increases in the contributions required to be made to such Plan or
otherwise, a Material Adverse Effect.




          (b) Each of Holdings, the Company and the Material Subsidiaries is in compliance (i) with all
applicable provisions of law and all applicable regulations and published interpretations
thereunder with respect to any employee pension benefit plan or other employee benefit plan
governed by the laws of a jurisdiction other than the United States and (ii) with the terms of any
such plan, except, in each case, for such noncompliance that would not reasonably be expected to
have a Material Adverse Effect.




          SECTION 3.16 Environmental Matters. Except as disclosed in Schedule 3.16 and
except as to matters that would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect (i) no written notice, demand, claim, request for information, order, complaint or penalty has been
received by Holdings, the Company or any of the Material Subsidiaries relating to Holdings, the
Company or any of the Material Subsidiaries, and there are no judicial, administrative or other
actions, suits or proceedings relating to Holdings, the Company or any of the Material Subsidiaries
pending or, to the knowledge of Company, threatened which allege a violation of or liability under
any Environmental Laws, (ii) each of Holdings, the Company and the Material Subsidiaries has all
environmental permits necessary for its current operations to comply with all applicable
Environmental Laws and is, and since January 1, 2001 has been, in compliance with the terms of such
permits and with all other applicable Environmental Laws, (iii) there has been no written Phase I
or Phase II Environmental Site Assessment or similar report or evaluation or audit of compliance
with Environmental Laws conducted since January 1, 2000 by Holdings, the Company or any of the
Material Subsidiaries of any property or Facility currently owned or leased by Holdings, the
Company or any of the Material Subsidiaries which has not been made available to the Administrative
Agent prior to the date hereof, (iv) no Hazardous Material is located at, in, on or under, or is
emanating from, any property currently owned, operated or leased by Holdings, the Company or any of
the Material Subsidiaries that would reasonably be expected to give rise to any cost, liability or
obligation of Holdings, the Company or any of the Material Subsidiaries under any Environmental
Laws, and no Hazardous Material has been generated, handled, owned or controlled by Holdings, the
Company or any of the Material Subsidiaries and transported to or Released at any location in a
manner




-94-









 




that would reasonably be expected to give rise to any cost, liability or obligation of
Holdings, the Company or any of the Material Subsidiaries under any Environmental Laws, (v) there
are no acquisition agreements entered into after December 31, 2000 in which Holdings, the Company
or any of the Material Subsidiaries has expressly assumed or undertaken responsibility for any
liability or obligation of any other Person arising under or relating to Environmental Laws, which
in any such case has not been made available to the Administrative Agent prior to the Effective
Date, and (vi) neither Holdings, the Company nor any Subsidiary is financing or conducting any
investigation, response or other corrective action under any Environmental Law at any location.




          SECTION 3.17 Security Documents.




          (a) Each of the Security Documents described in Schedule 1.01(a) will as of the
Effective Date be effective to create in favor of the Collateral Agent (for the benefit of the
Secured Parties) a legal, valid and enforceable security interest in the Collateral described
therein (subject to any limitations specified therein). In the case of the Pledged Collateral
described in any of such Security Documents the security interest in which is perfected by delivery
thereof, when certificates or promissory notes, as applicable, representing such Pledged Collateral
are delivered to the Collateral Agent, and in the case of the other Collateral described in any
such Security Document (other than the Intellectual Property (as defined in the U.S. Collateral
Agreement)), when financing statements and other filings specified on Schedule 6 of the
Perfection Certificate in appropriate form are filed in the offices specified on Schedule 7
of the Perfection Certificate, the Collateral Agent (for the benefit of the Secured Parties) shall
have a fully perfected Lien on, and security interest in, all right, title and interest of the Loan
Parties in such Collateral, as security for the Obligations secured thereby, in each case prior and
superior in right to any other Person (except, in the case of Collateral other than Pledged Collateral,
Liens expressly permitted by Section 6.02 and Liens having priority by operation of law).




          (b) When the U.S. Collateral Agreement or a summary thereof is properly filed in the United
States Patent and Trademark Office and the United States Copyright Office, and, with respect to
Collateral in which a security interest cannot be perfected by such filings, upon the proper filing
of the financing statements referred to in paragraph (a) above, the Collateral Agent (for the
benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties thereunder in the Intellectual Property, in each case
prior and superior in right to any other Person except Liens expressly permitted by Section 6.02
and Liens having priority by operation of law (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on registered trademarks and patents, trademark and patent applications
and registered copyrights acquired by the grantors after the Effective Date).




          (c) Each Foreign Pledge Agreement will be effective to create in favor of the Collateral
Agent, for the benefit of the applicable Secured Parties, a legal, valid and enforceable security
interest in the Collateral described therein. In the case of the Pledged Collateral described in a
Foreign Pledge Agreement, the security interest in which is perfected by delivery thereof, when
certificates or promissory notes, as applicable, representing such Pledged Collateral are delivered
to the Collateral Agent, and, in the case of all other Collateral provided for





-95-









 







therein, when
filings or recordings are made in the appropriate offices in each relevant jurisdiction and the
other actions, if any, specified in such Foreign Pledge Agreement are taken, the Collateral Agent
(for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such Collateral, as security for
the Obligations secured thereby, in each case prior and superior in right to any other Person
(except, in the case of Collateral other than Pledged Collateral, Liens expressly permitted by
Section 6.02).




          (d) The Mortgages (including any Mortgages executed and delivered after the Effective Date
pursuant to Section 5.10 and 5.13) shall be effective to create in favor of the Collateral Agent
(for the benefit of the Secured Parties) a legal, valid and enforceable Lien on all of the Loan
Parties’ right, title and interest in and to the Mortgaged Property thereunder and the proceeds
thereof, and when such Mortgages are filed or recorded in the proper real estate filing or
recording offices, the Collateral Agent (for the benefit of the Secured Parties) shall have a fully
perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in
such Mortgaged Property and, to the extent applicable, subject to Section 9-315 of the Uniform
Commercial Code, the proceeds thereof, in each case prior and superior in right to any other
Person, other than with respect to the rights of a Person pursuant to Liens expressly permitted by
Section 6.02(a).




          SECTION 3.18 Location of Real Property and Leased Premises.




          (a) Schedule 8 to the Perfection Certificate lists completely and correctly as of the
Effective Date all real property owned by Holdings, the Company and the Domestic Subsidiary Loan
Parties having a fair market value (as determined in good faith by Holdings) in excess of $20.0
million and the addresses thereof. As of the Effective Date, Holdings, the Company and the
Domestic Subsidiaries own in fee all the real property set forth as being owned by them on such
Schedule.




          (b) Schedule 8 to the Perfection Certificate lists completely and correctly as of the
Effective Date all real property leased by Holdings, the Company and the Domestic Subsidiary Loan
Parties having a fair market value (as determined in good faith by Holdings) in excess of $20.0
million and the addresses thereof. As of the Effective Date, Holdings, the Company and the
Domestic Subsidiary Loan Parties have valid leases in all the real property set forth as being
leased by them on such Schedule.




          SECTION 3.19 Solvency.




          (a) Immediately after giving effect to the Transaction (i) the fair value of the assets of
Holdings and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts
and liabilities, direct, subordinated, contingent or otherwise, of Holdings and its Subsidiaries on
a consolidated basis; (ii) the present fair saleable value of the property of Holdings and its
Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay
the probable liability of Holdings and its Subsidiaries on a consolidated basis on their debts and
other liabilities, direct, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) Holdings and its Subsidiaries on a consolidated
basis will be able to pay their debts and liabilities, direct, subordinated, contingent or
otherwise, as such debts




-96-









 




and liabilities become absolute and matured; and (iv) Holdings and its
Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct
the businesses in which they are engaged as such businesses are now conducted and are proposed to
be conducted following the Effective Date.




          (b) Neither Holdings nor the Company intends to, and does not believe that it or any of the
Material Subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking
into account the timing and amounts of cash to be received by it or any such subsidiary and the
timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness
of any such subsidiary.




          SECTION 3.20 Labor Matters. There are no strikes pending or threatened against
Holdings, the Company or any of the Material Subsidiaries that, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect. The hours worked and payments made
to employees of Holdings, the Company and the Material Subsidiaries have not been in violation in
any material respect of the Fair Labor Standards Act or any other applicable law dealing with such
matters. All material payments due from Holdings, the Company or any of the Material Subsidiaries
or for which any claim may be made against Holdings, the Company or any of the
Material Subsidiaries, on account of wages and employee health and welfare insurance and other
benefits have been paid or accrued as a liability on the books of Holdings, the Company or such
Material Subsidiary to the extent required by US GAAP. Except as set forth on Schedule
3.20, consummation of the Transaction will not give rise to a right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement to which Holdings,
the Company or any of the Material Subsidiaries (or any predecessor) is a party or by which
Holdings, the Company or any of the Material Subsidiaries (or any predecessor) is bound, other than
collective bargaining agreements that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.




          SECTION 3.21 Insurance. Schedule 3.21 sets forth a true, complete and correct
description of all material insurance maintained by or on behalf of Holdings, the Company or the
Material Subsidiaries as of the Effective Date. As of the Effective Date, such insurance is in
full force and effect. The Company believes that the insurance maintained by or on behalf of
Holdings, the Company and the Material Subsidiaries is adequate.




ARTICLE IV




CONDITIONS OF LENDING




          SECTION 4.01 All Credit Events. The obligations of (a) the Lenders (including the
Swingline Lenders) to make Loans and (b) any Issuing Bank to issue Letters of Credit or increase
the stated amounts of Letters of Credit hereunder (each, a “Credit Event”) are subject to
the satisfaction of the following conditions:





     (a) The Administrative Agent shall have received, in the case of a Borrowing, a
Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed
given in accordance with the last paragraph of Section 2.03) or, in the case of the issuance
of a Letter of Credit, the applicable Issuing Bank and the Administrative



-97-









 






Agent shall have
received a Request to Issue such Letter of Credit as required by Section 2.05(b).




     (b) The representations and warranties set forth in Article III hereof shall be true
and correct in all material respects on and as of the date of such Borrowing or issuance or
amendment that increases the stated amount of such Letter of Credit, as applicable, with the
same effect as though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct in all material respects as of such earlier date).




     (c) At the time of and immediately after such Borrowing or issuance or amendment that
increases the stated amount of such Letter of Credit, as applicable, no Event of Default or
Default shall have occurred and be continuing.


Each Borrowing and each issuance of, or amendment that increases the stated amount of, a Letter of
Credit shall be deemed to constitute a representation and warranty by the applicable Borrower (in
the case of a Borrowing) and each Applicant Party (in the case of a Letter of Credit) on the date
of such Borrowing, issuance or amendment as applicable, as to the matters specified in paragraphs
(b) and (c) of this Section 4.01.




          SECTION 4.02 First Credit Event. Other than as specified in Section 4.03, on the
Effective Date:





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




     (b) The Administrative Agent shall have received, on behalf of itself, the Collateral
Agent, the Lenders and each Issuing Bank on the Effective Date, a favorable written opinion
of (i) Gibson, Dunn & Crutcher LLP, special counsel for Holdings and the Company, in form
and substance reasonably satisfactory to the Administrative Agent and (ii) local U.S.
counsel reasonably satisfactory to the Administrative Agent as may be reasonably requested
by the Administrative Agent in each case (A) dated the Effective Date, (B) addressed to each
Issuing Bank on the Effective Date, the Administrative Agent, the Collateral Agent and the
Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent
and covering such other matters relating to the Loan Documents and the Transaction as the
Administrative Agent shall reasonably request, and each of Holdings and the Company hereby
instructs its counsel to deliver such opinions.




     (c) The Administrative Agent shall have received in the case of each Person that is a
Loan Party on the Effective Date each of the items referred to in clauses (i), (ii), (iii)
and (iv) below:



-98-









 






          (i) a copy of the certificate or articles of incorporation, memorandum and
articles of association, partnership agreement or limited liability agreement,
including all amendments thereto, of each Loan Party, (A) in the case of a
corporation, certified as of a recent date by the Secretary of State (or other
similar official) of the jurisdiction of its organization, and a certificate as to
the good standing under the jurisdiction of its organization (to the extent such
concept or a similar concept exists under the laws of such jurisdiction) of each
such Loan Party as of a recent date from such Secretary of State (or other similar
official) or (B) in the case of a partnership or limited liability company,
certified by the manager, Secretary or Assistant Secretary or other appropriate
officer of each such Loan Party;




          (ii) a certificate of the manager, director, Secretary or Assistant Secretary
or similar officer of each Loan Party dated the Effective Date and certifying:




               (A) that attached thereto is a true and complete copy of the by-laws
(or partnership agreement, limited liability company agreement or other
equivalent governing documents) of such Loan Party as in effect on the
Effective Date and at all times since a date prior to the date of the
resolutions described in clause (B) below,




               (B) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors (or equivalent governing body) of
such Loan Party (or its managing general partner or managing member)
authorizing the execution, delivery and performance of the Loan Documents to
which such Person is a party and, in the case of a Borrower, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect on the Effective Date,




               (C) that the certificate or articles of incorporation, memorandum and
articles of association, partnership agreement or limited liability
agreement of such Loan Party have not been amended since the date of the
last amendment thereto disclosed pursuant to clause (i) above,




               (D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in connection
herewith on behalf of such Loan Party and




               (E) as to the absence of any pending proceeding for the dissolution or
liquidation of such Loan Party or, to the knowledge of such Person,
threatening the existence of such Loan Party;




          (iii) a certificate of another officer, director or attorney-in-fact as to the
incumbency and specimen signature of the Secretary or Assistant Secretary or similar
officer executing the certificate pursuant to clause (ii) above; and



-99-









 






          (iv) such other documents as the Administrative Agent shall have reasonably
requested (including, without limitation, tax identification numbers and addresses).




     (d) The Collateral and Guarantee Requirements required to be satisfied as of the
Effective Date shall have been satisfied or waived and the Administrative Agent shall have
received a completed Perfection Certificate dated the Effective Date and signed by a
Responsible Officer of each Loan Party, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code (or equivalent) filings
made with respect to each Loan Party in the jurisdictions contemplated by the Perfection
Certificates and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements (or similar
documents) are permitted by Section 6.02 or have been or will promptly be released.




     (e) The Lenders shall have received the financial statements referred to in Section
3.05(a).




     (f) The Lenders shall have received a solvency certificate substantially in the form of
Exhibit I and signed by a director or a Responsible Officer of Holdings confirming
the solvency of Holdings and its Subsidiaries on a consolidated basis after giving effect to
the Transaction.




     (g) No provision of any applicable law or regulation and no judgment, injunction, order
or decree shall prohibit the consummation of the Transaction, and all material actions by or
in respect of or material filings with any Governmental Authority required to permit the
consummation of the Transaction shall have been taken, made or obtained, except for any such
actions or filings the failure to take, make or obtain would not be material to Holdings and
its Subsidiaries, taken as a whole.




     (h) The Administrative Agent shall have received all fees payable to it, MLPF&SI or any
other Lender on or prior to the Effective Date and, to the extent invoiced prior to the
Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior
to the Effective Date, including, to the extent invoiced prior to the Effective Date in
reasonable detail, reimbursement or payment of all reasonable out-of-pocket expenses
(including reasonable fees, charges and disbursements of Cahill Gordon & Reindel
llp and any U.S. local or foreign counsel) required to be reimbursed or paid by the
Loan Parties hereunder or under any Loan Document.




     (i) The Administrative Agent shall have received evidence that the insurance required
by Section 5.02 is in effect.



          SECTION 4.03 Credit Events Relating to Revolving Borrowers. The obligations of (x)
the Lenders to make any Loans to any Revolving Borrower designated after the Effective Date in
accordance with Section 2.20 and (y) any Issuing Bank to issue Letters of Credit for the account of
any such Revolving Borrower, are subject to the satisfaction of the following conditions (which are
in addition to the conditions contained in Section 4.01):





-100-









 









     (a) With respect to the initial Loan made to or the initial Letter of Credit issued at
the request of, such Revolving Borrower, whichever comes first,




          (i) the Administrative Agent (or its counsel) shall have received a Revolving
Borrower Agreement with respect to such Revolving Borrower duly executed by all
parties thereto; and




          (ii) the Administrative Agent shall have received such documents (including
legal opinions) and certificates as the Administrative Agent or its counsel may
reasonably request relating to the formation, existence and good standing of such
Revolving Borrower, the authorization of Borrowings as they relate to such Revolving
Borrower and any other legal matters relating to such Revolving Borrower or its
Revolving Borrower Agreement, all in form and substance reasonably satisfactory to
the Administrative Agent and its counsel.




     (b) The Administrative Agent shall be reasonably satisfied that Section 5.10(f) shall
have been complied with in respect of each Foreign Subsidiary that becomes a Revolving
Borrower and that the Collateral and Guarantee Requirement shall have been satisfied or
waived with respect to such Foreign Revolving Borrower.



ARTICLE V




AFFIRMATIVE COVENANTS




          Each of Holdings and the Company covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan
Document shall have been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, each of Holdings and the Company will, and (other than Sections 5.04
and 5.05) will cause each of the Material Subsidiaries to:




          SECTION 5.01 Existence; Businesses and Properties.




          (a) Do or cause to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under Section 6.05, and except
for the conversion from one form of legal entity to another as permitted hereby, and except for the
liquidation or dissolution of Material Subsidiaries if the assets of such Material Subsidiaries to
the extent they exceed estimated liabilities are acquired by a Borrower or a Wholly Owned
Subsidiary of a Borrower in such liquidation or dissolution; provided that Subsidiaries
that are Loan Parties may not be liquidated into Subsidiaries that are not Loan Parties and
Domestic Subsidiaries may not be liquidated into Foreign Subsidiaries.




          (b) Do or cause to be done all things necessary to (i) obtain, preserve, renew, extend and
keep in full force and effect the permits, franchises, authorizations, patents, trademarks, service
marks, trade names, copyrights, licenses and rights with respect thereto necessary to the normal
conduct of its business except as otherwise provided in Section 5.01(a), (ii) comply





-101-









 








in all
material respects with all material applicable laws, rules, regulations (including any zoning,
building, ordinance, code or approval or any building permits or any restrictions of record or
agreements affecting the Mortgaged Properties) and material judgments, writs, injunctions, decrees
and orders of any Governmental Authority, whether now in effect or
hereafter enacted, and (iii) at all times maintain and preserve all property necessary to the
normal conduct of its business and keep such property in good repair, working order and condition
and from time to time make, or cause to be made, all needful and proper repairs, renewals,
additions, improvements and replacements thereto necessary in order that the business carried on in
connection therewith, if any, may be properly conducted at all times (in each case in clauses (i),
(ii) and (iii) above except as expressly permitted by this Agreement or except where the failure to
do so would not reasonably be expected to have a Material Adverse Effect).



          SECTION 5.02 Insurance.




          (a) Keep its insurable properties insured at all times by financially sound and reputable
insurers in such amounts as shall be customary for similar businesses and maintain such other
reasonable insurance (including, to the extent consistent with past practices, self-insurance), of
such types, to such extent and against such risks, as is customary with companies in the same or
similar businesses in the same general area and maintain such other insurance as may be required by
law or any Mortgage.




          (b) Cause all such property insurance policies with respect to the Mortgaged Properties to be
endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable
endorsement, in form and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent, which endorsement shall provide that, from and after the Effective Date, if the
insurance carrier shall have received written notice from the Administrative Agent or the
Collateral Agent of the occurrence of an Event of Default, the insurance carrier shall pay all
proceeds otherwise payable to any Loan Party under such policies directly to the Collateral Agent;
cause all such policies to provide that neither the Company, the Administrative Agent, the
Collateral Agent nor any other party shall be a coinsurer thereunder and to contain a “Replacement
Cost Endorsement,” without any deduction for depreciation, and such other provisions as the
Administrative Agent or the Collateral Agent may reasonably (in light of a Default or a material
development in respect of the insured Mortgaged Property) require from time to time to protect
their interests; annually deliver a certificate of an insurance broker to the Collateral Agent
evidencing such coverage.




          (c) With respect to each Mortgaged Property, if at any time the area in which the Premises (as
defined in the Mortgages) are located is designated a “flood hazard area” in any Flood Insurance
Rate Map published by the Federal Emergency Management Agency (or any successor agency), obtain
flood insurance in such reasonable total amount as the Administrative Agent or the Collateral Agent
may from time to time reasonably require, and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time
to time.




          (d) With respect to each Mortgaged Property, carry and maintain comprehensive general
liability insurance including the “broad form CGL endorsement” and coverage on a “claims-made”
occurrence basis against claims made for personal injury (including bodily injury,





-102-









 







death and
property damage) and umbrella liability insurance against any and all claims, in each case in
amounts and against such risks as are customarily maintained by
companies engaged in the same or similar industry operating in the same or similar locations
naming the Collateral Agent as an additional insured in respect of such Mortgaged Property, on
forms reasonably satisfactory to the Collateral Agent.




          (e) In connection with the covenants set forth in this Section 5.02, it is understood and
agreed that:





     (I) none of the Agents, the Lenders, the Issuing Bank and their respective agents or
employees shall be liable for any loss or damage insured by the insurance policies required
to be maintained under this Section 5.02, it being understood that (A) the Company and the
other Loan Parties shall look solely to their insurance companies or any other parties other
than the aforesaid parties for the recovery of such loss or damage and (B) such insurance
companies shall have no rights of subrogation against the Agents, the Lenders, any Issuing
Bank or their agents or employees. If, however, the insurance policies do not provide
waiver of subrogation rights against such parties, as required above, then each of Holdings,
and the Company hereby agree, to the extent permitted by law, to waive, and to cause each of
their Subsidiaries to waive, its right of recovery, if any, against the Agents, the Lenders,
any Issuing Bank and their agents and employees; and




     (II) the designation of any form, type or amount of insurance coverage by the
Administrative Agent, the Collateral Agent under this Section 5.02 shall in no event be
deemed a representation, warranty or advice by the Administrative Agent, the Collateral
Agent or the Lenders that such insurance is adequate for the purposes of the business of
Holdings, the Company and their Subsidiaries or the protection of their properties.



          SECTION 5.03 Taxes. Pay and discharge promptly when due all material Taxes,
assessments and governmental charges or levies imposed upon it or upon its income or profits or in
respect of its property, before the same shall become delinquent or in default, as well as all
material lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give
rise to a Lien upon such properties or any part thereof; provided, however, that
such payment and discharge shall not be required with respect to any such Tax, assessment, charge,
levy or claim so long as the validity or amount thereof shall be contested in good faith by
appropriate proceedings, and Holdings, the Company or the affected Subsidiary, as applicable, shall
have set aside on its books reserves in accordance with US GAAP with respect thereto.




          SECTION 5.04 Financial Statements, Reports, etc. Furnish to the Administrative Agent
(which will promptly furnish such information to the Lenders):





     (a) within 90 days after the end of each fiscal year, a consolidated balance sheet and
related consolidated statements of operations, cash flows and owners’ equity showing the
financial position of Parent and its consolidated subsidiaries as of the close of such
fiscal year and the consolidated results of their operations during such year, with
all consolidated statements audited by independent public accountants of recognized
national standing reasonably acceptable to the Administrative Agent and accompanied by an
opinion of such accountants (which shall not be qualified in any material respect) to



-103-









 






the effect that such consolidated financial statements fairly present, in all material respects,
the financial position and results of operations of Parent and its consolidated subsidiaries
on a consolidated basis in accordance with US GAAP (it being understood that the delivery by
Parent of Annual Reports on Form 10-K of Parent and its consolidated subsidiaries shall
satisfy the requirements of this Section 5.04(a) to the extent such Annual Reports include
the information specified herein);




     (b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year, a consolidated balance sheet and related consolidated statements of operations
and cash flows showing the financial position of Parent and its consolidated subsidiaries as
of the close of such fiscal quarter and the consolidated results of their operations during
such fiscal quarter and the then-elapsed portion of the fiscal year, all certified by a
Financial Officer of Parent, on behalf of Parent, as fairly presenting, in all material
respects, the financial position and results of operations of Parent and its consolidated
subsidiaries on a consolidated basis in accordance with US GAAP (subject to normal year-end
adjustments and the absence of footnotes) (it being understood that the delivery by Parent
of Quarterly Reports on Form 10-Q of Parent and its consolidated subsidiaries shall satisfy
the requirements of this Section 5.04(b) to the extent such Quarterly Reports include the
information specified herein);




     (c) (x) concurrently with any delivery of financial statements under (a) or (b) above,
(A) a certificate of a Financial Officer of Holdings (i) certifying that no Event of Default
or Default has occurred or, if such an Event of Default or Default has occurred, specifying
the nature and extent thereof and any corrective action taken or proposed to be taken with
respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenant contained in Section 6.10
and (iii) (A) a reasonably detailed consolidating balance sheet schedule setting forth the
balances of the Guarantors, the non-guarantors, any eliminations, Holdings (on a
consolidated basis) and a bridge column setting forth the differences between Holdings’
consolidated balance sheet and that of Parent, which consolidating balance sheet schedule
will be prepared in accordance with US GAAP (provided, that the schedule will not
constitute a complete US GAAP presentation as it will not include an income statement,
statement of cash flows, or footnotes) and, on an annual basis concurrently with delivery of
the certificate referred to above with respect to financial statements under (a) above,
Holdings will provide a special report audit opinion with respect to such Consolidating
Schedule from Holdings’ external auditor in accordance with American Institute of Certified
Public Accountants U.S. Auditing Standards Section 623 and (B) if the EBITDA (as defined in
Section 1.01 replacing “Holdings” with “Parent” and “Subsidiaries” with “subsidiaries” in
such definition) of Parent and its subsidiaries other than Holdings and its Subsidiaries as
of the four consecutive fiscal quarters most recently ended is at least $10.0 million
different from the EBITDA of Holdings and its Subsidiaries, a reasonably detailed
consolidating schedule setting forth the differences between and a reconciliation of
Parent’s consolidated EBITDA and
Holdings’ consolidated EBITDA (or, if such $10.0 million threshold is not met, a
representation in the certificate to such effect) and (B) a reasonably detailed break-out of
operational performance by business units for the year or quarter then ended and (y)
concurrently with any delivery of financial state-



-104-









 






ments under (a) above, if the accounting
firm is not restricted from providing such a certificate by the policies of its national
office, a certificate of the accounting firm opining on or certifying such statements
stating whether they obtained knowledge during the course of their examination of such
statements of any Default or Event of Default (which certificate may be limited to
accounting matters and disclaims responsibility for legal interpretations);




     (d) promptly after the same become publicly available, copies of all periodic and other
publicly available reports, proxy statements and, to the extent requested by the
Administrative Agent, other materials filed by Holdings, the Company or any of the
Subsidiaries with the SEC, or after an initial public offering, distributed to its
stockholders generally, as applicable;




     (e) if, as a result of any change in accounting principles and policies from those as
in effect on the Effective Date, the consolidated financial statements of Parent and the
Subsidiaries delivered pursuant to paragraph (a) or (b) above will differ in any material
respect from the consolidated financial statements that would have been delivered pursuant
to such clauses had no such change in accounting principles and policies been made, then,
together with the first delivery of financial statements pursuant to paragraph (a) and (b)
above following such change, a schedule prepared by a Financial Officer on behalf of
Holdings reconciling such changes to what the financial statements would have been without
such changes;




     (f) within 90 days after the beginning of each fiscal year, an operating budget, in
form reasonably satisfactory to the Administrative Agent prepared by Holdings for each of
the four fiscal quarters of such fiscal year prepared in reasonable detail, of Holdings and
the Subsidiaries, accompanied by the statement of a Financial Officer of Holdings to the
effect that, to the best of his knowledge, the budget is a reasonable estimate for the
period covered thereby;




     (g) upon the reasonable request of the Administrative Agent (which request shall not be
made more than once in any 12-month period), deliver updated Perfection Certificates (or, to
the extent such request relates to specified information contained in the Perfection
Certificates, such information) reflecting all changes since the date of the information
most recently received pursuant to this paragraph (g) or Section 5.10(e);




     (h) promptly, a copy of all reports submitted to the Board of Directors (or any
committee thereof) of any of Holdings, the Company or any Material Subsidiary in connection
with any interim or special audit that is material made by independent accountants of the
books of Holdings, the Company or any Subsidiary;




     (i) promptly, from time to time, such other information regarding the operations,
business affairs and financial condition of Holdings, the Company or any of
the Subsidiaries, or compliance with the terms of any Loan Document, as in each case
the Administrative Agent (including on behalf of any Lender) may reasonably request; and



-105-









 






     (j) promptly upon request by the Administrative Agent, copies of: (i) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed
with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial
valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor
or any governmental agency concerning an ERISA Event; and (iv) such other documents or
governmental reports or filings relating to any Plan or Multiemployer Plan as the
Administrative Agent shall reasonably request.


Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically to
the Administrative Agent and, if so delivered, shall be deemed to have been delivered on the date
on which such documents are posted on Holdings’ or the Company’s behalf on IntraLinks/IntraAgency
or another relevant website, if any, to which each Lender has access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent).




          SECTION 5.05 Litigation and Other Notices. Furnish to the Administrative Agent
written notice of the following promptly after any Responsible Officer of Holdings or the Company
obtains actual knowledge thereof:





     (a) any Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken with respect thereto;




     (b) the filing or commencement of, or any written threat or notice of intention of any
Person to file or commence, any action, suit or proceeding, whether at law or in equity or
by or before any Governmental Authority or in arbitration, against Holdings, the Company or
any of the Subsidiaries as to which an adverse determination is reasonably probable and
which, if adversely determined, would reasonably be expected to have a Material Adverse
Effect;




     (c) any other development specific to Holdings, the Company or any of the Subsidiaries
that is not a matter of general public knowledge and that has had, or that such Responsible
Officer has reasonably determined in good faith would reasonably be expected to have, a
Material Adverse Effect; and




     (d) the occurrence of any ERISA Event that such Responsible Officer has reasonably
determined in good faith, together with all other ERISA Events that have occurred, would
reasonably be expected to have a Material Adverse Effect.


Documents required to be delivered pursuant to this Section 5.05 may be delivered electronically to
the Administrative Agent and, if so delivered, shall be deemed to have been delivered on the date
on which such documents are received by the Administrative Agent and posted on Holdings’ or the
Company’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each
Lender and the Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent).




          SECTION 5.06 Compliance with Laws. Comply with all Requirements of Law applicable to
it or its property, except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect; provided that





-106-










 




this Section 5.06 shall not apply to Environmental Laws, which are the subject of Section
5.09, or to laws related to Taxes, which are the subject of Section 5.03.




          SECTION 5.07 Maintaining Records; Access to Properties and Inspections. Maintain all financial records in accordance with US GAAP and permit any Persons designated
by the Agents or, upon the occurrence and during the continuance of an Event of Default, any Lender
to visit and inspect the financial records and the properties of Holdings, the Company or any of
the Subsidiaries at reasonable times, upon reasonable prior notice to Holdings or the Company, and
as often as reasonably requested and to make extracts from and copies of such financial records,
and permit any Persons designated by the Agents or, upon the occurrence and during the continuance
of an Event of Default, any Lender upon reasonable prior notice to Holdings or the Company to
discuss the affairs, finances and condition of Holdings, the Company or any of the Subsidiaries
with the officers thereof and (subject to a senior officer of the respective company or a parent
thereof being present) independent accountants therefor (subject to reasonable requirements of
confidentiality, including requirements imposed by law or by contract).




          SECTION 5.08 Use of Proceeds. Use the proceeds of Loans and request issuances of Letters of Credit only in compliance
with the representation contained in Section 3.12; provided that an amount equal to the
Dollar Equivalent of the principal amount plus accrued and unpaid interest plus applicable call
premium of the aggregate principal amount of all Senior Discount Notes and Senior Subordinated
Notes not purchased in the Debt Tender Offer (collectively, the “Remaining Notes”; such
amount, the “Remaining Note Amount”) shall be used to redeem the Remaining Notes within
three months of the Effective Date or shall be used to prepay Term Loans in accordance with Section
2.11(c)(ii).




          SECTION 5.09 Compliance with Environmental Laws. Comply, and make reasonable efforts to cause all lessees and other Persons occupying its
properties to comply, with all Environmental Laws applicable to its operations and properties; and
obtain and renew all material authorizations and permits required pursuant to Environmental Law for
its operations and properties, in each case in accordance with Environmental Laws, except, in each
case with respect to this Section 5.09, to the extent the failure to do so would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.




          SECTION 5.10 Further Assurances; Additional Mortgages.




          (a) Execute any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of financing statements,
fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that
may be required under any applicable law, or that the Administrative Agent may reasonably request,
to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of
the Loan Parties and provide to the Administrative Agent, from time to time upon reasonable
request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Security Documents.




          (b) If any asset (including any real property (other than real property covered by Section
5.10(c) below) or improvements thereto or any interest therein) that has an individual


-107-









 






fair market
value in an amount having a Dollar Equivalent greater than $20.0 million is acquired by Holdings,
the Company or any Domestic Subsidiary Loan Party after the Effective Date or owned by an entity at
the time it first becomes a Domestic Subsidiary Loan Party (in each case other than assets
constituting Collateral under a Security Document that become subject to the Lien of such Security
Document upon acquisition thereof), cause such asset to be subjected to a Lien securing the
Obligations and take, and cause the Domestic Subsidiary Loan Parties to take, such actions as shall
be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens,
including actions described in paragraph (a) of this Section, all at the expense of the Loan
Parties.




          (c) Promptly (and in any event within 30 days after the acquisition thereof) grant, and cause
each of the Domestic Subsidiary Loan Parties to grant, to the Collateral Agent security interests
and mortgages in such real property of the Company or any such Domestic Subsidiary Loan Parties as
is not covered by the Mortgages, to the extent acquired after the Effective Date and having a fair
market value (as determined in good faith by Holdings) at the time of acquisition in excess of
$20.0 million pursuant to documentation substantially in the form of the Mortgages delivered to the
Collateral Agent on the Effective Date, or in such other form as is reasonably satisfactory to the
Collateral Agent (each, an “Additional Mortgage”) and constituting valid and enforceable
perfected Liens superior to and prior to the rights of all third Persons subject to no other Liens
except as are permitted by Section 6.02, at the time of perfection thereof, record or file, and
cause each such Subsidiary to record or file, the Additional Mortgage or instruments related
thereto in such manner and in such places as is required by law to establish, perfect, preserve and
protect the Liens in favor of the Collateral Agent required to be granted pursuant to the
Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and
other charges payable in connection therewith. With respect to each such Additional Mortgage, the
Company shall, unless otherwise waived by the Administrative Agent, deliver to the Collateral Agent
contemporaneously therewith a title insurance policy, a survey, an opinion of counsel, a flood
hazard determination and a Real Property Officers’ Certificate and other items meeting the
requirements of subsection (i) of the definition of the term “Collateral and Guarantee
Requirement.”




          (d) If any additional direct or indirect Subsidiary of Holdings is formed or acquired after
the Effective Date and if such Subsidiary is a Domestic Subsidiary Loan Party, within 10 Business
days after the date such Subsidiary is formed or acquired, notify the Administrative Agent and the
Lenders thereof and, within 25 Business Days after the date such Subsidiary is formed or acquired,
cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and
with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of
any Loan Party.




          (e) In the case of the Company, (i) furnish to the Collateral Agent prompt written notice of
any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s
organizational structure or jurisdiction of organization or (C) in any Loan Party’s organizational
identification number; provided that the Company shall not effect or permit any such change
unless all filings have been made, or will have been made within any statutory period, under the
Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to
continue at all times following such change to have a valid, legal and perfected se-



-108-









 







curity interest
in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the
Administrative Agent if any material portion of the Collateral is damaged or destroyed.




          (f) Prior to any Foreign Subsidiary becoming a Revolving Borrower, cause the Collateral and
Guarantee Requirement to be satisfied with respect to such Foreign Subsidiary.




          (g) The Collateral and Guarantee Requirement and the other provisions of this Section 5.10
need not be satisfied with respect to (i) any real property held by the Company or any of its
Subsidiaries as a lessee under a lease, (ii) any Equity Interests acquired after the Effective Date
in accordance with this Agreement if, and to the extent that, and for so long as (A) doing so would
violate applicable law or a contractual obligation binding on such Equity Interests and (B) such
law or obligation existed at the time of the acquisition thereof and was not created or made
binding on such Equity Interests in contemplation of or in connection with the acquisition of such
Subsidiary (provided that the foregoing clause (B) shall not apply in the case of a joint
venture, including a joint venture that is a Subsidiary) or (iii) any assets acquired after the
Effective Date, to the extent that, and for so long as, taking such actions would violate a
contractual obligation binding on such assets that existed at the time of the acquisition thereof
and was not created or made binding on such assets in contemplation or in connection with the
acquisition of such assets (except in the case of assets acquired with Indebtedness permitted
pursuant to Section 6.01(i) that is secured by a Lien permitted pursuant to Section 6.02(i)).




          SECTION 5.11 Fiscal Year; Accounting. In the case of Holdings and the Company, cause its fiscal year to end on December 31 or on
such other date as is consented to by the Administrative Agent (which consent shall not be
unreasonably withheld or delayed).




          SECTION 5.12 Interest Rate Protection Agreements. In the case of the Company, as promptly as practicable and in any event within 180 days
after the Effective Date, enter into, and for a period of not less than three years after the
Effective Date maintain in effect, one or more Swap Agreements, the effect of which is that at
least 50% of Consolidated Net Debt at such time will bear interest at a fixed or capped rate or the
interest cost in respect of which will be fixed or capped, in each case on terms and conditions
reasonably acceptable, taking into account current market conditions, to the Administrative Agent.




          SECTION 5.13 Post-Closing Matters. To the extent not executed and delivered on the Effective Date, execute and deliver the
documents and complete the tasks set forth on Schedule 5.13, in each case within the time
limits specified on such schedule.




ARTICLE VI




NEGATIVE COVENANTS




          Each of Holdings and the Company covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan
Document have been paid in full and all Letters of Credit have been canceled or have expired and
all amounts drawn thereunder have been reimbursed in full, unless



-109-









 







the Required Lenders shall
otherwise consent in writing, neither Holdings nor the Company will, or, subject to Section 6.13,
will cause or permit any of the Subsidiaries to:




          SECTION 6.01 Indebtedness. Incur, create, assume or permit to exist any Indebtedness (other than intercompany current
liabilities incurred in the ordinary course of business in connection with the cash management
operations of the Company and its subsidiaries), except:





     (a) (i) Indebtedness (other than under letters of credit) existing on the Effective
Date and set forth on Schedule 6.01(a) and any Permitted Refinancing Indebtedness
incurred to Refinance such Indebtedness and (ii) Indebtedness under letters of credit
existing on the Effective Date and set forth on Schedule 6.01(b), without giving
effect to any extension, renewal or replacement thereof;




     (b) Indebtedness created hereunder and under the other Loan Documents;




     (c) Indebtedness of Holdings and the Subsidiaries pursuant to Swap Agreements permitted
by Section 6.11;




     (d) Indebtedness owed to (including obligations in respect of letters of credit or bank
guarantees or similar instruments for the benefit of) any Person providing workers’
compensation, health, disability or other employee benefits or property, casualty or
liability insurance to Holdings or any Subsidiary, pursuant to reimbursement or
indemnification obligations to such Person, provided that upon the incurrence of
Indebtedness with respect to reimbursement obligations regarding workers’ compensation
claims, such obligations are reimbursed not later than 30 days following such incurrence;




     (e) Indebtedness of any Borrower to any Subsidiary or other Borrower and of any
Subsidiary to any Borrower or any other Subsidiary, provided that (i) Indebtedness
of any Subsidiary that is not a Domestic Subsidiary Loan Party to the Loan Parties shall be
subject to Section 6.04(b) and (ii) Indebtedness (the “Subordinated Intercompany
Debt”) of any Specified Loan Party to any Subsidiary (unless such Indebtedness shall
have been pledged in favor of the Collateral Agent by the payee Subsidiary) shall be
subordinated to the Obligations in the manner set forth in Exhibit F (it being
agreed that such subordination provisions will not restrict the repayment of any such
Subordinated Intercompany Debt other than when an Event of Default exists);




     (f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds
and completion guarantees and similar obligations, in each case provided in the ordinary
course of business, including those incurred to secure health, safety and environmental
obligations in the ordinary course of business;




     (g) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business or other cash management services in the ordinary course of business,
provided that (x) such Indebtedness (other than credit or purchase cards) is
ex-



-110-









 







tinguished within three Business Days of its incurrence and (y) such Indebtedness in
respect of credit or purchase cards is extinguished within 60 days from its incurrence;




     (h) (i) Indebtedness of a Subsidiary acquired after the Effective Date or a corporation
merged into or consolidated with the Company or any Subsidiary after the Effective Date and
Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in
each case, exists at the time of such acquisition, merger or consolidation and is not
created in contemplation of such event and where such acquisition, merger or consolidation
is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to
Refinance such Indebtedness, provided that the aggregate principal amount of such
Indebtedness at the time of, and after giving effect to, such acquisition, merger or
consolidation, such assumption or such incurrence, as applicable (together with Indebtedness
outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01 and the
Remaining Present Value of outstanding leases permitted under Section 6.03), would not
exceed 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such acquisition, merger or consolidation, such assumption or such
incurrence, as applicable, for which financial statements have been delivered pursuant to
Section 5.04;




     (i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness
incurred by Holdings or any Subsidiary prior to or within 270 days after the acquisition or
lease or completion of construction or improvement of the respective asset permitted under
this Agreement in order to finance such acquisition, construction or improvement, and any
Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that
at the time of, and after giving effect to, the incurrence thereof (together with
Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (i)
and the Remaining Present Value of leases permitted under Section 6.03) would not exceed 5%
of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the
date of such incurrence for which financial statements have been delivered pursuant to
Section 5.04;




     (j) Capital Lease Obligations incurred by the Company or any Subsidiary in respect of
any Sale and Lease-Back Transaction that is permitted under Section 6.03;




     (k) other Indebtedness of any Loan Party, in an aggregate principal amount at any time
outstanding pursuant to this paragraph (k) not in excess of $500.0 million; provided
that no Indebtedness incurred pursuant to this paragraph (k) can be in the form of a
Guarantee of Indebtedness incurred under paragraph (v) of this Section 6.01;




     (l) (i) other Indebtedness incurred by the Company or any Subsidiary; provided
that (A) at the time of the incurrence of such Indebtedness and after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing or would result
therefrom, (B) immediately after giving effect to the issuance, incurrence or assumption of
such Indebtedness, Holdings shall be in compliance with the Incurrence Ratios on a Pro Forma
Basis, (C) in the case of an incurrence by a Loan Party, the proceeds of such Indebtedness
shall be used as otherwise permitted by this Agreement and applicable law and (D) in the
case of an incurrence by Subsidiaries that are not Loan Parties,



-111-









 







the proceeds of such
Indebtedness shall only be used for Permitted Business Acquisitions, Capital Expenditures
(or other purposes described in clause (i) of this Section 6.01) or for the purposes
described in clause (h) of this Section 6.01 and (ii) Permitted Refinancing Indebtedness in
respect thereof;




     (m) Guarantees (i) by Holdings, the Company or any Domestic Subsidiary Loan Party of
any other Indebtedness of the Company or any Domestic Subsidiary Loan Party expressly
permitted to be incurred under this Agreement, (ii) by the Company or any Domestic
Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any
Subsidiary that is not a Domestic Subsidiary Loan Party to the extent permitted by Section
6.04(b), (iii) by any Foreign Subsidiary that is not a Loan Party of Indebtedness of another
Foreign Subsidiary that is not a Loan Party subject, however, to Section 6.04(b);
provided that all Foreign Subsidiaries may guarantee obligations of other Foreign
Subsidiaries under ordinary course cash management obligations, and (iv) by the Company of
Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary
course of business on ordinary business terms so long as such Indebtedness is permitted to
be incurred under Section 6.01(a), (k) or (s); provided that Guarantees by Holdings
or any Domestic Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness
of a Person that is subordinated to other Indebtedness of such Person shall be expressly
subordinated to the Obligations on terms matching the subordination provisions of the
underlying securities;




     (n) Indebtedness arising from agreements of Holdings or any Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each case, incurred
or assumed in connection with the disposition of any business, assets or a Subsidiary, other
than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or a Subsidiary for the purpose of financing such acquisition;




     (o) Indebtedness in connection with Permitted Receivables Financings; provided
that the proceeds thereof are applied in accordance with Section 2.11(c);




     (p) letters of credit issued for the account of a Subsidiary that is not a Loan Party
(and the reimbursement obligations in respect of which are not guaranteed by a Loan Party)
in support of a Captive Insurance Subsidiary’s reinsurance of insurance policies issued for
the benefit of Subsidiaries and other letters of credit or bank guarantees (other than
Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in
excess of $50.0 million;




     (q) Indebtedness supported by a Letter of Credit, in a principal amount not in excess
of the stated amount of such Letter of Credit;




     (r) Indebtedness consisting of (x) the financing of insurance premiums or (y)
take-or-pay or similar obligations contained in supply arrangements, in each case, in the
ordinary course of business;



-112-









 






     (s) all premium (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in paragraphs (a)
through (r) above;




     (t) Indebtedness incurred by Foreign Subsidiaries in a principal amount not to exceed
5% of Consolidated Total Assets outstanding at any time;




     (u) Indebtedness incurred on behalf of or representing Guarantees of Indebtedness of
joint ventures not in excess of $150.0 million plus the amount of all Guarantees permitted
by and constituting Investments under Section 6.04(q); and




     (v) Indebtedness of one or more Subsidiaries organized under the laws of the People’s
Republic of China for their own general corporate purposes in aggregate principal amount not
to exceed $400.0 million at any time outstanding, provided that such Indebtedness
(and any Guarantee thereof) is not Guaranteed by, does not receive any other credit support
from, and is non-recourse to, Holdings and its Subsidiaries other than any Subsidiary
organized under the laws of the People’s Republic of China.


Notwithstanding anything to the contrary herein, Holdings shall not be permitted to incur any
Indebtedness other than Indebtedness under Sections 6.01(b) and (m).




          For purposes of determining compliance with this Section 6.01, Holdings may reclassify any
Indebtedness incurred pursuant to one of the categories of Indebtedness permitted described in
clause (h), (i), (j), (k), (t), (u) or (v) as Indebtedness incurred pursuant to clause (l) above,
provided that before and after giving effect to such reclassification, Holdings would be in
compliance with the Incurrence Ratios on a Pro Forma Basis and such Indebtedness would otherwise
meet the criteria of Section 6.01(l), including as to obligors, use of proceeds and, in the case of
secured indebtedness, would be in compliance with Section 6.02. For the avoidance of doubt, any
Indebtedness permitted by more than one clause of this Section 6.01 may be incurred pursuant to any
such clause that would permit such Indebtedness, without also having to be considered as being
incurred under any other clause of this Section 6.01 that may apply.




          SECTION 6.02 Liens. Create, incur, assume or permit to exist any Lien on any property (including Equity
Interests or other securities of any Person, including any Subsidiary) at the time owned by it or
on any income or revenues or rights in respect of any thereof, except:





     (a) Liens on property of the Company and its Subsidiaries which Liens exist on the
Effective Date and are set forth on Schedule 6.02(a); provided that such
Liens shall secure only those obligations that they secure on the Effective Date (and
extensions, renewals and refinancings of such obligations permitted by Section 6.01(a)) and
shall not subsequently apply to any other property of Holdings or any of its Subsidiaries
(other than replacement property, accessions and improvements covered on customary terms by
the terms of the instrument or agreement governing such obligations);




     (b) any Lien created under the Loan Documents or permitted in respect of any Mortgaged
Property by the terms of the applicable Mortgage;



-113-









 






     (c) any Lien on any property or asset of the Company or any Subsidiary securing
Indebtedness or Permitted Refinancing Indebtedness permitted by Section 6.01(h);
provided that (i) such Lien does not apply to any other property of the Company or
any of the Subsidiaries not securing such Indebtedness at the date of the acquisition of
such property or asset (other than after acquired property subjected to a Lien securing
Indebtedness and other obligations incurred prior to such date and which Indebtedness and
other obligations are permitted hereunder that require a pledge of after acquired property,
it being understood that such requirement shall not be permitted to apply to any property to
which such requirement would not have applied but for such acquisition), (ii) such Lien is
not created in contemplation of or in connection with such acquisition and (iii) in the case
of a Lien securing Permitted Refinancing Indebtedness, any such Lien shall be permitted,
subject to compliance with clause (e) of the definition of the term “Permitted Refinancing
Indebtedness”;




     (d) Liens for Taxes, assessments or other governmental charges or levies not yet
delinquent or that are being contested in compliance with Section 5.03;




     (e) landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
construction or other like Liens arising in the ordinary course of business and securing
obligations that are not overdue by more than 45 days or that are being contested in good
faith by appropriate proceedings and in respect of which, if applicable, Holdings or any
Subsidiary shall have set aside on its books reserves in accordance with US GAAP;




     (f) (i) pledges and deposits made in the ordinary course of business in compliance with
the Federal Employers Liability Act or any other workers’ compensation, unemployment
insurance and other social security laws or regulations and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements in respect of such
obligations and (ii) pledges and deposits securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters of credit or
bank guarantees for the benefit of) insurance carriers providing property, casualty or
liability insurance to Holdings or any Subsidiary;




     (g) pledges and deposits to secure the performance of bids, trade contracts (other than
for Indebtedness), leases (other than Capital Lease Obligations), statutory obligations,
surety and appeal bonds, performance and return of money bonds, bids, leases, government
contracts, trade contracts, and other obligations of a like nature incurred in the ordinary
course of business, including those incurred to secure health, safety and environmental
obligations in the ordinary course of business;




     (h) zoning restrictions, easements, trackage rights, leases (other than Capital Lease
Obligations), licenses, special assessments, rights-of-way, restrictions on use of real
property and other similar encumbrances incurred in the ordinary course of business that, in
the aggregate, do not interfere in any material respect with the ordinary conduct of the
business of Holdings or any Subsidiary at the real property affected thereby;



-114-









 






     (i) purchase money security interests in equipment or other property or improvements
thereto hereafter acquired (or, in the case of improvements, constructed) by Holdings or any
Subsidiary (including the interests of vendors and lessors under conditional sale and title
retention agreements); provided that (i) such security interests secure Indebtedness
permitted by Section 6.01(i) (including any Permitted Refinancing Indebtedness in respect
thereof), (ii) such security interests are incurred, and the Indebtedness secured thereby is
created, within 270 days after such acquisition (or lease or completion of construction),
(iii) the Indebtedness secured thereby does not exceed 100% of the cost of such equipment or
other property or improvements at the time of such acquisition (or construction), including
transaction costs incurred by Holdings or any Subsidiary in connection with such acquisition
(or construction) and (iv) such security interests do not apply to any other property of
Holdings or any Subsidiary (other than to accessions to such equipment or other property or
improvements); provided, further, that individual financings of equipment
provided by a single lender may be cross-collateralized to other financings of equipment
provided solely by such lender;




     (j) Liens arising out of capitalized lease transactions permitted under Section 6.03,
so long as such Liens attach only to the property sold and being leased in such transaction
and any accessions thereto or proceeds thereof and related property;




     (k) Liens securing judgments that do not constitute an Event of Default under Section
7.01(j);




     (l) other Liens with respect to property of Holdings or any Subsidiary securing
Indebtedness in an aggregate principal amount of not more than $100.0 million at any time
outstanding;




     (m) Liens disclosed by the title insurance policies delivered pursuant to sub-section
(i) of the definition of “Collateral and Guarantee Requirement,” Section 5.13 or Section
5.10 and any replacement, extension or renewal of any such Lien; provided that such
replacement, extension or renewal Lien shall not cover any property other than the property
that was subject to such Lien prior to such replacement, extension or renewal;
provided, further, that the Indebtedness and other obligations secured by
such replacement, extension or renewal Lien are permitted by this Agreement;




     (n) Liens in respect of Permitted Receivables Financings;




     (o) any interest or title of a lessor under any leases or subleases entered into by
Holdings or any Subsidiary in the ordinary course of business;




     (p) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness,
(ii) relating to pooled deposit or sweep accounts of Holdings or any Subsidiary to permit
satisfaction of overdraft or similar obligations incurred in the ordinary course of business
of Holdings and the Subsidiaries or (iii) relating to purchase orders and other agreements
entered into with customers of Holdings or any Subsidiary in the ordinary course of
business;



-115-









 






     (q) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights;




     (r) Liens securing obligations in respect of trade-related letters of credit permitted
under Section 6.01(f) or (q) and covering the goods (or the documents of title in respect of
such goods) financed by such letters of credit and the proceeds and products thereof;




     (s) licenses of intellectual property granted in a manner consistent with past
practice;




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




     (u) Liens on the assets of a Foreign Subsidiary or any other Subsidiary that is not a
Guarantor Subsidiary that do not constitute Collateral and which secure Indebtedness or
other obligations of such Subsidiary (or of another Foreign Subsidiary or Subsidiary that is
not a Guarantor Subsidiary) that are permitted to be incurred under this Agreement;




     (v) Liens upon specific items of inventory or other goods and proceeds of Holdings or
any of the Subsidiaries securing such Person’s obligations in respect of bankers’
acceptances issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or other goods;




     (w) Liens solely on any cash earnest money deposits made by Holdings or any of the
Subsidiaries in connection with any letter of intent or purchase agreement permitted
hereunder;




     (x) Liens on the assets of one or more Subsidiaries organized under the laws of the
People’s Republic of China securing Indebtedness permitted under Section 6.01(v);




     (y) Second Priority Liens securing a Second Lien Facility; and




     (z) Liens on cash and cash equivalents of Captive Insurance Subsidiaries.


Notwithstanding the foregoing, no Liens shall be permitted to exist, directly or indirectly, on
Pledged Collateral, other than Liens in favor of the Collateral Agent and Liens permitted by
Section 6.02(b), (c), (d), (e), (k), (q) or (y) or Liens on the Equity Interests of Special Purpose
Receivables Subsidiaries to the extent required in connection with Permitted Receivables
Financings.




          SECTION 6.03 Sale and Lease-Back Transactions. Enter into any arrangement, directly or indirectly, with any Person whereby it shall sell
or transfer any property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property being sold or transferred (a
“Sale and Lease-Back Transaction”)

-116-









 








other than as permitted by Section 6.05(n)(iii);
provided that a Sale and Lease-Back Transaction shall be permitted so long as at the time
the lease in connection therewith is entered into, and after giving effect to the entering into of
such Lease, the Remaining Present Value of such lease (together with Indebtedness outstanding
pursuant to paragraphs (h) and (i) of Section 6.01 and the Remaining Present Value of outstanding
leases previously entered into under this Section 6.03) would not exceed 5% of Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the date such lease is entered into
for which financial statements have been delivered pursuant to Section 5.04.




          SECTION 6.04 Investments, Loans and Advances. Purchase or acquire (including pursuant to any merger with a Person that is not a Wholly
Owned Subsidiary immediately prior to such merger) any Equity Interests, evidences of Indebtedness
or other securities of, make or permit to exist any loans or advances (other than intercompany
current liabilities incurred in the ordinary course of business in connection with the cash
management operations of Holdings and the Subsidiaries) to or Guarantees of the obligations of, or
make any investment in (each, an “Investment”), any other Person, except:





     (a) Guarantees by the Borrowers or any Subsidiary of operating leases (other than
Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in
each case entered into by any Borrower or any Subsidiary in the ordinary course of business;




     (b) (i) Investments (other than intercompany loans and Guarantees) by the Company or
any Subsidiary in the Company or any Subsidiary; (ii) intercompany loans from the Company or
any Subsidiary to the Company or any Subsidiary; (iii) Guarantees by the Company or any
Subsidiary of obligations otherwise expressly permitted hereunder of the Company or any
Subsidiary; and (iv) the designation of a Person as an Unrestricted Subsidiary;
provided that (1) the sum, without duplication, of (A) such Investments (valued at
the time of the making thereof and without giving effect to any write-downs or write-offs
thereof but subtracting therefrom the amount of returns (including dividends, interest and
other distributions in respect thereof), repayments and proceeds previously received in
respect of such Investments and subtracting the Designated Investment Value of any
subsidiary of Holdings that ceases to be an Unrestricted Subsidiary pursuant to a Subsidiary
Redesignation) after the Effective Date by the Loan Parties pursuant to clause (i) in
Subsidiaries that are not Domestic Subsidiary Loan Parties or pursuant to clause (iv) by
designation of a Person as an Unrestricted Subsidiary (with the value of the Investment
therein for such purpose being the Designated Investment Value), plus (B) the
aggregate outstanding amount of intercompany loans made after the Effective Date by the Loan
Parties to Subsidiaries that are not Domestic Subsidiary Loan Parties pursuant to clause
(ii), plus (C) the aggregate outstanding amount of Guarantees of Indebtedness made
after the Effective Date by the Loan Parties of Subsidiaries that are not Domestic
Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate amount equal
to (I) $400.0 million, plus (II) the portion, if any, of the Available Amount on the
date of such election that Holdings elects to apply to this Section 6.04(b), plus
(III) (y) up to $200.0 million of Revolving Facility Loans so long as any Investments made
with such Revolving Facility Loans are made in the form of intercompany loans



-117-









 







and notes
evidencing such intercompany loans are pledged to the Collateral Agent in accordance with
the requirements of Section 5.10, minus (z) the aggregate amount of all acquisitions
made pursuant to Section 6.05 by any Loan Party in which the Person acquired does not become
a Guarantor Subsidiary or the assets acquired are held by a Subsidiary that is not a Loan
Party and (2) no Guarantees (other than by one or more Subsidiaries organized under the laws
of the People’s Republic of China) may be given under this clause (b) in respect of
Indebtedness permitted under Section 6.01(v);




     (c) Permitted Investments and investments that were Permitted Investments when made;




     (d) Investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with or judgments against, customers and
suppliers, in each case in the ordinary course of business;




     (e) Investments of a Subsidiary acquired after the Effective Date or of a corporation
merged into the Company or merged into or consolidated with a Subsidiary in accordance with
Section 6.05 after the Effective Date to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger or consolidation and were in
existence on the date of such acquisition, merger or consolidation;




     (f) Investments arising out of the receipt by Holdings or any Subsidiary of noncash
consideration for the sale of assets permitted under Section 6.05;




     (g) (i) loans and advances to employees of Parent or any of its subsidiaries in the
ordinary course of business not to exceed $30.0 million in the aggregate at any time
outstanding (calculated without regard to write-downs or write-offs thereof) and (ii)
advances of payroll payments and expenses to employees in the ordinary course of business;




     (h) accounts receivable arising and trade credit granted in the ordinary course of
business and any securities received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss and any prepayments and other credits to suppliers made in the ordinary course
of business;




     (i) Swap Agreements permitted pursuant to Section 6.11;




     (j) Investments existing on the Effective Date and Investments made pursuant to binding
commitments in effect on the Effective Date, to the extent such binding commitments are set
forth on Schedule 6.04(j);




     (k) Investments resulting from pledges and deposits referred to in Sections 6.02(f) and
(g);




     (l) other Investments by Holdings or any Subsidiary in an aggregate amount outstanding
(valued at the time of the making thereof, and without giving effect to any



-118-









 







write-downs or
write-offs thereof net of returns, repayments and proceeds received of such Investments made
pursuant to this clause after the Effective Date) not to exceed (i) $250.0 million,
plus (ii) the portion, if any, of the Available Amount on the date such election is
made that the Company elects to apply to this paragraph (l);




     (m) Investments constituting Permitted Business Acquisitions; provided that the
aggregate net outstanding amount of all such Investments (net of returns, repayments and
proceeds received in respect of such Investments) made after the Effective Date and when
Holdings is not in compliance with the Incurrence Ratios on a Pro Forma Basis shall not
exceed $100.0 million, at all times when Holdings is not in compliance with the Incurrence
Ratios on a Pro Forma Basis; provided, further, that Investments by Loan
Parties constituting Permitted Business Acquisitions where the acquired business does not
become a Guarantor shall be limited as set forth in the proviso to Section 6.04(b);




     (n) additional Investments may be made from time to time to the extent made with
proceeds of Equity Interests (excluding proceeds received as a result of the exercise of
Cure Rights pursuant to Section 7.02) of Holdings, which proceeds or Investments in turn are
contributed (as common equity) to the Company;




     (o) Investments arising as a result of Permitted Receivables Financings;




     (p) Investments (including by the transfer of assets) in joint ventures existing on the
Effective Date in an aggregate amount (with assets transferred valued at the fair market
value thereof) for all such Investments made after the Effective Date not to exceed $250.0
million net of returns, repayments and proceeds received of such joint ventures after the
Effective Date;




     (q) JV Reinvestments;




     (r) the Transaction;




     (s) intercompany loans by Holdings or any of its Subsidiaries to Holdings, Parent or
Topco in order to permit Holdings and/or any of the Parent Companies to make payments
permitted by Sections 6.07(b) and (c);




     (t) Guarantees permitted under Section 6.01(u); and




     (u) the transfer of the direct ownership of the Foreign Subsidiaries listed on Schedule
6.04(u), or their assets, to Finco or a direct subsidiary thereof.



          SECTION 6.05 Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other Person, or permit any other Person to merge into
or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in
a series of transactions) all or any part of its assets (whether now owned or hereafter acquired),
or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any
Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or substan-

-119-









 








tially all of the assets, or a division of, any other Person, except
that this Section shall not prohibit:





     (a) (i) the purchase and sale of inventory in the ordinary course of business by
Holdings or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course
of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out
equipment or other property in the ordinary course of business by Holdings or any
Subsidiary, (iv) leases and subleases in the ordinary course of business by Holdings or any
Subsidiary or (v) the sale of Permitted Investments in the ordinary course of business;




     (b) if at the time thereof and immediately after giving effect thereto no Event of
Default shall have occurred and be continuing, (i) the merger of any Subsidiary into a
Borrower in a transaction in which such Borrower is the surviving corporation, (ii) the
merger or consolidation of any Subsidiary into or with any Subsidiary Loan Party in a
transaction in which the surviving or resulting entity is a Subsidiary Loan Party (which
shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall
be a Domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no Person other
than a Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger or
consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other
Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or dissolution or
change in form of entity of any Subsidiary (other than a Borrower) if Holdings determines in
good faith that such liquidation or dissolution is in the best interests of Holdings and is
not materially disadvantageous to the Lenders;




     (c) sales, transfers, leases, issuances or other dispositions to Holdings or a
Subsidiary (upon voluntary liquidation or otherwise); provided that any sales,
transfers, leases, issuances or other dispositions by a Loan Party to a Subsidiary that is
not a Loan Party shall be made in compliance with Section 6.07; provided,
further, that the aggregate gross proceeds of any sales, transfers, leases,
issuances or other dispositions by a Loan Party to a Subsidiary that is not a Domestic
Subsidiary Loan Party in reliance upon this paragraph (c) (other than any thereof made by a
Foreign Subsidiary Loan Party to another Foreign Subsidiary Loan Party) and the aggregate
gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph
(h) below shall not exceed, in any fiscal year of Holdings, 7.5% of Consolidated Total
Assets as of the end of the immediately preceding fiscal year; provided that for any
given fiscal year this 7.5% limitation may be increased by no more than 50% of the unused
amount for the previous fiscal year and, in the event of any such carryover, assets sales in
such fiscal year will be deducted first from the carried over amount;




     (d) Sale and Lease-Back Transactions permitted by Section 6.03;




     (e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and
dividends and distributions permitted by Section 6.06;




     (f) the purchase and sale or other transfer (including by capital contribution) of
Receivables Assets pursuant to Permitted Receivables Financings;



-120-









 






     (g) the sale of defaulted receivables in the ordinary course of business and not as
part of an accounts receivables financing transaction;




     (h) sales, transfers, leases, issuances (to the extent of all of the Equity Interests
in a Person then owned by Holdings and its Subsidiaries) or other dispositions not otherwise
permitted by this Section 6.05; provided that the aggregate gross proceeds
(including noncash proceeds) of any or all such sales, transfers, leases, issuances or
dispositions made in reliance upon this paragraph (h) and in reliance upon the second
proviso to paragraph (c) above shall not exceed, in any fiscal year of Holdings, 7.5% of
Consolidated Total Assets as of the end of the immediately preceding fiscal year;
provided, further, that for any given fiscal year this 7.5% limitation may
be increased by no more than 50% of the unused amount for the previous fiscal year and, in
the event of any such carryover, assets sales in such fiscal year will be deducted first
from the carried over amount; provided, further, that the Net Proceeds
thereof are applied in accordance with Section 2.11(c);




     (i) any merger or consolidation in connection with a Permitted Business Acquisition,
provided that following any such merger or consolidation (i) involving a Borrower,
such Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary Loan Party,
the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly
Owned Subsidiary and (iii) involving a Foreign Subsidiary Loan Party, the surviving or
resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary;
provided, further, that (1) mergers or consolidations in connection with a
Permitted Business Acquisition where the acquired Person does not become a Guarantor or the
assets acquired are not owned by a Loan Party shall be subject to the limitation set forth
in the proviso to Section 6.04(b), and (2) all mergers and consolidations pursuant to this
Section 6.05(i) shall be subject to the provisos to Sections 6.04(m) and (o);




     (j) licensing and cross-licensing arrangements involving any technology or other
intellectual property of the Company or any Subsidiary in the ordinary course of business;




     (k) sales, leases or other dispositions of inventory of Holdings and its Subsidiaries
determined by the management of Holdings or the Company to be no longer useful or necessary
in the operation of the business of Holdings or any of the Subsidiaries;




     (l) the sale of the performance products business of Nutrinova; provided that
the Net Proceeds of such sale are applied in accordance with Section 2.11(c);




     (m) the Designated Asset Sales; provided that the Net Proceeds of such sales
are applied in accordance with Section 2.11(c); and




     (n) (i) the Fraport Transaction, (ii) the sale-leaseback of facilities acquired or
constructed in replacement of the facilities transferred in connection with the Fraport
Transaction and (iii) the sale of receivables generated pursuant to the Fraport Transaction.



-121-









 




Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no action shall be
permitted which results in a Change of Control under clause (a) of the definition thereof, (ii) the
Company shall at all times own directly (or to the extent all direct and indirect owners of the
Equity Interests of CAC (other than the Company) are Domestic Subsidiary Loan Parties, indirectly)
100% of the Equity Interests of CAC, (iii) neither Holdings nor any Subsidiary that owns Equity
Interests in any Borrower or in any other Subsidiary that directly owns Equity Interests in any
Borrower shall sell, dispose of, grant a Lien on or otherwise transfer such Equity Interests in
such Borrower or in such Subsidiary, as applicable, (iv) each Foreign Subsidiary that is a
Revolving Borrower shall be a Wholly Owned Subsidiary, (v) no sale, transfer, lease, issuance or
other disposition shall be permitted by this Section 6.05 (other than sales, transfers, leases,
issuances or other dispositions to Loan Parties pursuant to paragraph (c) hereof and purchases,
sales or transfers pursuant to paragraph (f) or (to the extent made to Holdings or a Wholly Owned
Subsidiary) (j) hereof) unless such disposition is for fair market value, (vi) no sale, transfer or
other disposition of assets shall be permitted by paragraph (a), (d) or (l) of this Section 6.05
unless such disposition is for at least 75% cash consideration and (vii) no sale, transfer or other
disposition of assets in excess of $10.0 million shall be permitted by paragraph (h) of this
Section 6.05 unless such disposition is for at least 75% cash consideration; provided that
for purposes of clauses (vi) and (vii), the amount of any secured Indebtedness or other
Indebtedness of a Subsidiary that is not a Loan Party (as shown on Holdings’ or such Subsidiary’s
most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that
is assumed by the transferee of any such assets shall be deemed cash.




          SECTION 6.06 Dividends and Distributions. Declare or pay, directly or indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any of its Equity Interests (other than dividends and distributions on Equity
Interests payable solely by the issuance of additional shares of Equity Interests of the Person
paying such dividends or distributions), or directly or indirectly redeem, purchase, retire or
otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of any
class of its Equity Interests or set aside any amount for any such purpose (the foregoing,
collectively, “Restricted Payments”); provided, however, that:





     (a) any subsidiary of the Company may declare and make Restricted Payments to the
Company or to any Wholly Owned Subsidiary of the Company (or, in the case of non-Wholly
Owned Subsidiaries, to the Company or any subsidiary that is a direct or indirect parent of
such subsidiary and to each other owner of Equity Interests of such subsidiary on a pro rata
basis (or more favorable basis from the perspective of the Company or such subsidiary) based
on their relative ownership interests);




     (b) the Company may declare and make Restricted Payments to Holdings (and Holdings may
pay the amounts so received to Topco and/or through Topco to the Parent) (A) in respect of
(i) overhead, tax liabilities of Parent Companies and Holdings (in the case of income tax
liabilities in an amount not in excess of the portion of such tax liabilities attributable
to Holdings and its consolidated subsidiaries (including such tax liabilities arising as a
result of receipt of such distributions to pay tax liabilities) and in the case of other tax
liabilities to the extent attributable to Holdings and its consolidated subsidiar-



-122-









 







ies or the
existence of such Parent Companies), legal, accounting and other professional fees and
expenses, (ii) compensation and incentive payments, (iii) fees and expenses related to the
Transaction, any equity offering of Holdings or any of the Parent Companies or any
investment or acquisition by Holdings and its Subsidiaries permitted hereunder (whether or
not successful) and (iv) other fees and expenses in connection with the maintenance of its
existence and its ownership of the Company, and (B) in order to permit Holdings and/or any
of the Parent Companies to make payments permitted by Sections 6.06(e), 6.07(b) and (c);




     (c) the Company may declare and make Restricted Payments to Holdings (and Holdings may
pay the amounts so received to Parent (through Topco)), the proceeds of which are used to
purchase or redeem Equity Interests of Parent (including related stock appreciation rights
or similar securities) held by then present or former directors, consultants, officers or
employees of Parent or any of its Subsidiaries or by any Plan upon such Person’s death,
disability, retirement or termination of employment or under the terms of any such Plan or
any other agreement under which such Equity Interests or related rights were issued;
provided that the aggregate amount of such Restricted Payments under this paragraph
(c) shall not exceed in any fiscal year $15.0 million plus the amount of net proceeds (x)
received by Parent during such calendar year from sales of Equity Interests of Parent to
directors, consultants, officers or employees of Parent or any of its Subsidiaries in
connection with permitted employee compensation and incentive arrangements, which, if not
used in any year, may be carried forward to any subsequent calendar year and (y) of any
key-man life insurance policies recorded during such calendar year;




     (d) noncash repurchases of Equity Interests deemed to occur upon exercise of stock
options if such Equity Interests represent a portion of the exercise price of such options
shall be permitted;




     (e) the Company may, at any time when no Default or Event of Default exists, declare
and make Restricted Payments to the extent the aggregate amount of Restricted Payments
declared and made in a fiscal quarter do not exceed an amount equal to the portion, if any,
of the Available Amount on the date of such election that Holdings elects to apply to this
Section 6.06(e); provided that the Company may elect to not declare and make a
Restricted Payment permitted by this clause (e) in any fiscal quarter in whole or in part
but instead to declare and make the deferred portion of such permitted Restricted Payment
during a future fiscal quarter, provided further that any Restricted Payment
not declared and made in any fiscal quarter must be declared and made no later than the
third succeeding fiscal quarter following such fiscal quarter and if not so declared and
made by such time then such deferred Restricted Payment may no longer be declared and made
pursuant to this clause (e); and




     (f) the Company and Holdings may make Restricted Payments necessary to consummate the
Transaction (including one or more share repurchases referred to in the parenthetical to
clause (iii) of the definition of “Transaction” in Section 1.01).



-123-









 





          SECTION 6.07 Transactions with Affiliates.




          (a) Sell or transfer any property to, or purchase or acquire any property from, or otherwise
engage in any other transaction with any Person that, immediately prior to such transaction, is an
Affiliate of Holdings, unless such transaction is (i) otherwise permitted (or required) under this
Agreement (including in connection with any Permitted Receivables Financing) or (ii) upon terms no
less favorable to Holdings or such Subsidiary, as applicable, than would be obtained in a
comparable arm’s-length transaction with a Person that is not an Affiliate; provided that
this clause (ii) shall not apply to the indemnification of directors of Parent and its subsidiaries
in accordance with customary practice.




          (b) The foregoing paragraph (a) shall not prohibit, to the extent otherwise permitted under
this Agreement,





     (i) any issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock options and
stock ownership plans approved by the Board of Directors of Holdings,




     (ii) loans or advances to employees of Parent or any of its subsidiaries in accordance
with Section 6.04(g),




     (iii) transactions among the Borrowers and any Subsidiaries and transactions among
Subsidiaries otherwise permitted by this Agreement,




     (iv) the payment of fees, compensation and incentive payments and indemnities to
directors, officers and employees of Parent or any of its subsidiaries in the ordinary
course of business,




     (v) transactions pursuant to permitted agreements in existence on the Effective Date
and set forth on Schedule 6.07 or any amendment thereto to the extent such amendment
is not adverse to the Lenders in any material respect,




     (vi) any employment agreements entered into by Holdings or any of the Subsidiaries in
the ordinary course of business,




     (vii) dividends, redemptions and repurchases permitted under Section 6.06,




     (viii) any purchase by a Parent Company of Equity Interests of Holdings or any
contribution by Holdings to, or purchase by Holdings of, the equity capital of the Company;
provided that any Equity Interests of the Company purchased by Holdings shall be
pledged to the Collateral Agent on behalf of the Lenders pursuant to the U.S. Collateral
Agreement,




     (ix) transactions with Subsidiaries for the purchase or sale of goods, products, parts
and services entered into in the ordinary course of business in a manner consistent with
past practice,



-124-









 






     (x) any transaction in respect of which Holdings delivers to the Administrative Agent
(for delivery to the Lenders) a letter addressed to the board of directors of Holdings from
an accounting, appraisal or investment banking firm, in each case of nationally recognized
standing that is (A) in the good faith determination of Holdings qualified to render such
letter and (B) reasonably satisfactory to the Administrative Agent, which letter states that
such transaction is on terms that are no less favorable to Holdings or such Subsidiary, as
applicable, than would be obtained in a comparable arm’s-length transaction with a Person
that is not an Affiliate,




     (xi) subject to paragraph (c) below, the payment of all fees, expenses, bonuses and
awards related to the Transaction,




     (xii) transactions pursuant to any Permitted Receivables Financings,




     (xiii) transactions with joint ventures for the purchase or sale of chemicals,
equipment and services entered into in the ordinary course of business and in a manner
consistent with past practice, and




     (xiv) transaction or similar fees and board fees in each case payable to Blackstone.



          SECTION 6.08 Business of Holdings and the Subsidiaries. Notwithstanding any other provisions hereof, engage at any time in any business or business
activity other than:





     (x) in the case of the Company and any Subsidiary, (i) any business or business
activity conducted by it on the Effective Date and any business or business activities
incidental or related thereto, or any business or activity that is reasonably similar
thereto or a reasonable extension, development or expansion thereof or ancillary thereto,
including the consummation of the Transaction and (ii) performance of its obligations under
and in connection with the Loan Documents, or




     (y) in the case of Holdings, (i) ownership of the Equity Interests in the Company,
together with activities directly related thereto, (ii) performance of its obligations under
and in connection with the Loan Documents and other Indebtedness permitted under Section
6.01, (iii) actions incidental to the consummation of the Transaction, (iv) the Guarantees
permitted pursuant to Section 6.01(m), (v) actions required by law to maintain its
existence, (vi) the holding of cash in amounts reasonably required to pay for its own costs
and expenses, (vii) owing and paying legal, registered office and auditing fees and (viii)
the issuance of common Equity Interests.



          SECTION 6.09 Limitation on Modifications and Prepayments.




          (a) Amend or modify in any manner materially adverse to the Lenders, or grant any waiver or
release under or terminate in any manner (if such granting or termination shall be materially
adverse to the Lenders), the articles or certificate of incorporation or by-laws or partnership
agreement or limited liability company operating agreement of Holdings, the Company or any other
Loan Party (it being agreed that the conversion of a corporation into a

-125-









 








limited liability company
or vice versa is not materially adverse to the Lenders; provided that the provisions hereof
and of the other Loan Documents with respect thereto are complied with).




          (b) Make (or give any notice in respect of) any voluntary or optional payment or prepayment on
or redemption or acquisition for value (including, without limitation, by way of depositing with
the trustee with respect thereto money or securities before due for the purposes of paying when
due) of any subordinated indebtedness permitted to be incurred under Section 6.01 or indebtedness
under a Second Lien Facility permitted to be incurred under Section 6.01 except (I) for any
payments made with the portion, if any, of the Available Amount on the date of such election that
Holdings elects to apply to this Section 6.09(b) or (II) any such payments made with the proceeds
of Permitted Refinancing Indebtedness.




          (c) Amend or modify, or permit the amendment or modification of, any instrument governing
subordinated indebtedness permitted to be incurred under Section 6.01 or indebtedness under a
Second Lien Facility permitted to be incurred under Section 6.01 or any Permitted Receivables
Document in any manner that would cause the terms of such Indebtedness to not be permitted under
Section 6.01 if it were a new incurrence or that, in the case of a Permitted Receivables Document,
would cause such financing not to be a Permitted Receivables Financing.




          (d) Permit any Subsidiary to enter into any agreement or instrument that by its terms
restricts (i) the payment of dividends or distributions or the making of cash advances by such
Subsidiary to Holdings or any Subsidiary that is a direct or indirect parent of such Subsidiary or
(ii) the granting of Liens by such Subsidiary pursuant to the Security Documents, in each case
other than those arising under any Loan Document, except, in each case, restrictions existing by
reason of:





     (A) restrictions imposed by applicable law;




     (B) restrictions contained in any Permitted Receivables Document with respect to any
Special Purpose Subsidiary;




     (C) contractual encumbrances or restrictions under any agreements related to any
permitted renewal, extension or refinancing of any Indebtedness existing on the Effective
Date that does not expand the scope of any such encumbrance or restriction;




     (D) any restriction on a Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of all or substantially all the Equity Interests or assets of a
Subsidiary pending the closing of such sale or disposition;




     (E) customary provisions in joint venture agreements and other similar agreements
applicable to joint ventures entered into in the ordinary course of business;




     (F) any restrictions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement to the extent that such restrictions apply only to the property
securing such Indebtedness;



-126-









 






     (G) customary provisions contained in leases or licenses of intellectual property and
other similar agreements entered into in the ordinary course of business;




     (H) customary provisions restricting subletting or assignment of any lease governing a
leasehold interest;




     (I) customary provisions restricting assignment of any agreement entered into in the
ordinary course of business;




     (J) customary restrictions and conditions contained in any agreement relating to the
sale of any asset permitted under Section 6.05 pending the consummation of such sale; or




     (K) any agreement in effect at the time such subsidiary becomes a Subsidiary, so long
as such agreement was not entered into in contemplation of such Person becoming a
Subsidiary.



          SECTION 6.10 First Lien Senior Secured Leverage Ratio. At any time at which there is Revolving Facility Credit Exposure, permit the First Lien
Senior Secured Leverage Ratio, calculated as of the last day of the most recent fiscal quarter for
which financial statements have been delivered to the Administrative Agent pursuant to Section
5.04, to be greater than 3.90 to 1.00 (which calculation shall be made on a Pro Forma Basis to take
into account any events described in the definition of “Pro Forma Basis” occurring during the
period of four fiscal quarters ending on the last day of such fiscal quarter).




          SECTION 6.11 Swap Agreements. Enter into any Swap Agreement, other than (a) Swap Agreements required by Section 5.12 or
any Permitted Receivables Financing, (b) Swap Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which Holdings or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities and (c) Swap Agreements entered into not for
speculative purposes but 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 Holdings or any Subsidiary.




          SECTION 6.12 No Other “Designated Senior Indebtedness.” None of Holdings or any Borrower shall designate, or permit the designation of, any
Indebtedness (other than under this Agreement or the other Loan Documents) as “Designated
Senior Indebtedness” or any other similar term for the purpose of the definition of the same or
the subordination provisions contained in any indenture governing any subordinated Indebtedness
permitted to be incurred under Section 6.01.




          SECTION 6.13 Limitation on the Lenders’ Control over Certain Foreign Entities.




          (a) Subject to subsection (d) of this Section 6.13, the provisions of Section 6.05, Section
6.06, Section 6.08 and subsection (a) of Section 6.09 (the “Relevant Restrictive
Covenants”) shall only apply to a German Entity (as defined below) in the following manner:

-127-









 










     (i) such German Entity (or a parent company thereof which is a German Entity) shall
give the Administrative Agent no less than 30 Business Days’ prior written notice (the
“Intention Notice”) of the intention of such German Entity to carry out any acts or
take any steps inconsistent with the Relevant Restrictive Covenants;




     (ii) the Administrative Agent shall be entitled within 10 Business Days of receipt of
an Intention Notice to request that the relevant German Entity supply the Administrative
Agent with any further relevant information in connection with the proposed action or steps
referred to in such notice; and




     (iii) the Administrative Agent shall, if it decides that the proposed action or steps
set out in such notice would reasonably be expected to be materially prejudicial to the
interests of the Lenders under the Financing Documents, notify the relevant German Entity of
such a decision within 10 Business Days of its receipt of such a notice or receipt of
further relevant information pursuant to clause (a)(ii) above.




     (b) If:




     (i) the Administrative Agent notifies a German Entity that the proposed action or steps
set out in the relevant Intention Notice pursuant to paragraph (a) above would reasonably be
expected to be materially prejudicial to the interests of the Lenders under the Loan
Documents; and




     (ii) the relevant German Entity nevertheless proceeds to carry out such proposed
actions or steps,


the Administrative Agent shall be entitled to (and, if so instructed by the Required Lenders,
shall) exercise all or any of its rights under Section 7.01 (“Events of Default”).




          (c) For the purposes of this Section 6.16, a “German Entity” is any Person who is
incorporated in Germany or, if it is not so incorporated, has its seat or principal place of
business in Germany.




          (d) Notwithstanding the foregoing provisions of this Section 6.13 or any other provision of
this Article VI, the Reorganization shall in any event be permitted.




ARTICLE VII




EVENTS OF DEFAULT




          SECTION 7.01 Events of Default. In case of the happening of any of the following events (“Events of Default”):





     (a) any representation or warranty made or deemed made by Holdings, the Company or any
other Loan Party in any Loan Document, or any representation, warranty or certification
contained in any report, certificate, financial statement or other instrument furnished by
or on behalf of Holdings, the Company or any other Loan Party in



-128-









 







connection with or pursuant
to any Loan Document, shall prove to have been false or misleading in any material respect
when so made, deemed made or furnished by Holdings, the Company or any other Loan Party;




     (b) default shall be made in the payment of any principal of any Loan or the
reimbursement with respect to any L/C Disbursement 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 by
acceleration thereof or otherwise;




     (c) default shall be made in the payment of any interest on any Loan or on any L/C
Disbursement or in the payment of any Fee (other than an amount referred to in (b) above)
due under any Loan Document, when and as the same shall become due and payable, and such
default shall continue unremedied for a period of five Business Days;




     (d) default shall be made in the due observance or performance by Holdings, the Company
or any of the Subsidiaries of any covenant, condition or agreement contained in Section
5.01(a) (with respect to Holdings or a Borrower), 5.05(a), 5.08, 5.10(d) or in Article VI
(provided that any breach of the Financial Performance Covenant shall not, by
itself, constitute an Event of Default under the Term Facility unless such breach shall
continue unremedied for a period of 45 days after notice from the Administrative Agent to
Holdings);




     (e) default shall be made in the due observance or performance by Holdings, the Company
or any of the Subsidiaries of any covenant, condition or agreement contained in any Loan
Document (other than those specified in paragraphs (b), (c) and (d) above) and such default
shall continue unremedied for a period of 30 days after written notice thereof from the
Administrative Agent to the Company;




     (f) (i) any event or condition occurs that (A) results in any Material Indebtedness
(including, in the case of the Term Facility, the Revolving Credit Facility to the extent
constituting Material Indebtedness) becoming due prior to its scheduled maturity or (B)
enables or permits (with all applicable grace periods having expired) the holder or holders
of any Material Indebtedness (including, in the case of the Term Facility, the Revolving
Credit Facility to the extent constituting 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
(provided that any breach of the Financial Performance Covenant giving rise to an
event described in clause (B) above shall not, by itself, constitute an Event of Default
under the Term Facility unless such breach shall continue unremedied for a period of 45 days
after notice from the Administrative Agent to Holdings) or (ii) Holdings, any Borrower or
any of the Subsidiaries shall fail to pay the principal of any Material Indebtedness
(including, in the case of the Term Facility, the Revolving Credit Facility to the extent
constituting Material Indebtedness) at the stated final maturity thereof; provided
that this clause (f) shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property securing such Indebtedness if such sale or
transfer is permitted hereunder and under the documents providing for such Indebtedness;



-129-









 






     (g) there shall have occurred a Change in Control;




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of Holdings, any
Borrower or any of the Material Subsidiaries, or of a substantial part of the property of
Holdings, any Borrower or any Material Subsidiary, under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, any Borrower or any
of the Material Subsidiaries or for a substantial part of the property of Holdings, any
Borrower or any of the Material Subsidiaries, (iii) the winding-up or liquidation of
Holdings, any Borrower or any Material Subsidiary (except, in the case of any Material
Subsidiary (other than any Borrower), in a transaction permitted by Section 6.05 or 6.13) or
(iv) in the case of a Person organized under the laws of Germany, any of the actions set out
in Section 21 of the German Insolvenzordnung or to institute insolvency proceedings against
any such Person (Eröffnung des Insolvenzverfahrens), and such proceeding or petition shall
continue undismissed and unstayed for 60 consecutive days or an order or decree approving or
ordering any of the foregoing shall be entered;




     (i) Holdings, any Borrower or any Material Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking relief under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) seek, or consent to, the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or the filing of any
petition described in paragraph (h) above, (iii) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings,
any Borrower or any of the Material Subsidiaries or for a substantial part of the property
of Holdings, any Borrower or any Material Subsidiary, (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) admit in writing its inability
generally to pay its debts as they become due, or (vii) become unable or fail generally to
pay its debts as they become due;




     (j) any judgment or order for the payment of money in an aggregate amount in excess of
$40.0 million shall be rendered against Holdings, the Borrower or any Material Subsidiary
and the same shall remain undischarged for a period of 30 consecutive days during which
execution (other than any enforcement proceedings consisting of the mere obtaining and
filing of a judgment lien or obtaining of a garnishment or similar order so long as no
foreclosure, levy or similar execution process in respect of such judgment lien, or payment
over in respect of such garnishment or similar order, has commenced and is continuing, or
has been completed, in respect of any material assets or properties of Holdings, the Company
or any Material Subsidiary (collectively, “Permitted Execution Actions”)) shall not
be effectively stayed, or any action, other than a Permitted Execution Action, shall be
legally taken by a judgment creditor to attach or levy upon any material assets or
properties of Holdings, the Company or any Material Subsidiary to enforce any such judgment
or order; provided, however, that with respect to any such



-130-









 







judgment or order
that is subject to the terms of one or more settlement agreements that provide for the
obligations thereunder to be paid or performed over time, such judgment or order shall not
be deemed hereunder to be undischarged unless and until Holdings, the Borrower or the
relevant Material Subsidiary, as applicable, shall have failed to pay any amounts due and
owing thereunder (payment of which shall not have been stayed) for a period of 30
consecutive days after the respective final due dates for the payment of such amounts;




     (k) (i) a Reportable Event or Reportable Events shall have occurred with respect to any
Plan or a trustee shall be appointed by a United States district court to administer any
Plan, (ii) the PBGC shall institute proceedings (including giving notice of intent thereof)
to terminate any Plan or Plans, (iii) Holdings, the Company or any Subsidiary or any ERISA
Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such Person
does not have reasonable grounds for contesting such Withdrawal Liability or is not
contesting such Withdrawal Liability in a timely and appropriate manner, (iv) Holdings, the
Company or any Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of
a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, (v) Holdings, the Company or any
Subsidiary or any ERISA Affiliate shall engage in any “prohibited transaction” (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan or (vi) any other
similar event or condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all other such events
or conditions, if any, would reasonably be expected to have a Material Adverse Effect; or




     (l) (i) any Loan Document shall cease to be in full force and effect (other than in
accordance with any Loan Documents), or any Loan Document shall for any reason be asserted
in writing by Holdings, any Borrower or any Material Subsidiary not to be a legal, valid and
binding obligation of any party thereto, (ii) any security interest purported to be created
by any Security Document and that extends to assets material to Holdings and the
Subsidiaries on a consolidated basis shall cease to be, or shall be asserted in writing by
the Company or any other Loan Party not to be, a valid and perfected security interest
(having the priority required by this Agreement or the relevant Security Document) in the
securities, assets or properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent to maintain
possession of certificates actually delivered to it representing securities pledged under
the Security Documents or to file Uniform Commercial Code continuation statements and except
to the extent that such loss is covered by a lender’s title insurance policy and the
Administrative Agent shall be reasonably satisfied with the credit of such insurer or (iii)
the Guarantees pursuant to the Security Documents by Holdings, the Company or the Subsidiary
Loan Parties of any of the Obligations shall cease to be in full force and effect (other
than in accordance with the terms thereof), or shall be asserted in writing by Holdings or
the Company or any Subsidiary Loan Party not to be in effect or not to be legal, valid and
binding obligations;



-131-









 




then, subject to Sections 7.02 and/or 7.03, and in every such event (other than an event with
respect to a Borrower described in paragraph (h) or (i) (other than clause (vii) thereof) above),
and at any time thereafter during the continuance of such event, the Administrative Agent, at the
request of the Required Lenders, shall, by notice to the Borrowers, take any or all of the
following actions, at the same or different times (provided that, in the case of an Event
of Default described in paragraph (d) above arising solely from a breach of the Financial
Performance Covenant, the Administrative Agent shall take such actions (x) at the request of the
Majority Lenders under the Revolving Credit Facility rather than the Required Lenders and (y) only
with respect to the Revolving Credit Facility): (i) terminate forthwith the Commitments, (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon
the principal of the Loans so declared to be due and payable, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder
and under any other Loan Document, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the contrary notwithstanding
and (iii) demand cash collateral pursuant to Section 2.05(j); and in any event with respect to a
Borrower described in paragraph (h) or (i) (other than clause (vii) thereof) above, the Commitments
shall automatically terminate, the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the Borrowers accrued
hereunder and under any other Loan Document, shall automatically become due and payable and the
Administrative Agent shall be deemed to have made a demand for cash collateral to the full extent
permitted under Section 2.05(j), without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrowers, anything contained herein or in
any other Loan Document to the contrary notwithstanding.




          SECTION 7.02 Holdings’ Right to Cure.




          (a) Financial Performance Covenants. Notwithstanding anything to the contrary
contained in Section 7.01, in the event that Holdings fails to comply with the requirements of the
Financial Performance Covenant, until the expiration of the 10th day subsequent to the date the
certificate calculating such Financial Performance Covenant is required to be delivered pursuant to
Section 5.04(c), Holdings shall have the right to issue Permitted Cure Securities for cash or
otherwise receive cash contributions to the capital of Holdings, and, in each case, to contribute
any such cash to the capital of the Company (collectively, the “Cure Right”), and upon the
receipt by Company of such cash (the “Cure Amount”) pursuant to the exercise by Holdings of
such Cure Right and request to the Administrative Agent to effect such recalculation, such
Financial Performance Covenant shall be recalculated giving effect to
the following pro forma
adjustments:





     (i) EBITDA shall be increased, solely for the purpose of measuring the Financial
Performance Covenant and not for any other purpose under this Agreement, by an amount equal
to the Cure Amount; and




     (ii) if, after giving effect to the foregoing recalculations, Holdings shall then be in
compliance with the requirements of all Financial Performance Covenants, Holdings shall be
deemed to have satisfied the requirements of the Financial Performance



-132-









 







Covenant as of the
relevant date of determination with the same effect as though there had been no failure to
comply therewith at such date, and the applicable breach or default of the Financial
Performance Covenant that had occurred shall be deemed cured for this purposes of the
Agreement.



          (b) Limitation on Exercise of Cure Right. Notwithstanding anything herein to the
contrary, (a) in each four-fiscal-quarter period there shall be at least one fiscal quarter in
which the Cure Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a
period of at least four consecutive fiscal quarters during which the Cure Right is not exercised,
(c) the Cure Amount shall be no greater than the amount required for purposes of complying with the
Financial Performance Covenant, (d) in each 12 month period, the maximum aggregate Cure Amount for
all exercises shall not exceed €200 million and (e) no Indebtedness repaid with the proceeds of
Permitted Cure Securities shall be deemed repaid for purposes of calculating the ratio specified in
Section 6.10 for the period during which such Permitted Cure Securities were issued.




ARTICLE VIII




THE AGENTS




          SECTION 8.01 Appointment.




          (a) In order to expedite the transactions contemplated by this Agreement, DBNY is hereby
appointed to act as Administrative Agent (with each reference in this Article to Administrative
Agent to include DBNY in its capacity as Collateral Agent and Deutsche Bank AG, Cayman Islands
Branch, as Deposit Bank). Each of the Lenders and each assignee of any such Lender hereby
irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or
assignee and to exercise such powers as are specifically delegated to the Administrative Agent by
the terms and provisions hereof and of the other Loan Documents, together with such actions and
powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a)
to receive on behalf of the Lenders and such Issuing Bank all payments of principal of and interest
on the Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders
and such Issuing Bank hereunder, and promptly to distribute to each Lender or such Issuing Bank its
proper share of each payment so received; (b) to give notice on behalf of each of the Lenders of
any Event of Default specified in this Agreement of which the Administrative Agent has actual
knowledge acquired in connection with the performance of its duties as Administrative Agent
hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and
other materials delivered by any Borrower pursuant to this Agreement as received by the
Administrative Agent. Without limiting the generality of the foregoing, the Agents are hereby
expressly authorized to execute any and all documents (including releases and including, without
limitation, in the event of a sale of assets permitted hereunder or designation of a Subsidiary as
an Unrestricted Subsidiary permitted hereunder) with respect to the Collateral and the rights of
the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions
of this Agreement and the Security Documents. In the event that any party other than the Lenders
and the Agents shall participate in all or any

-133-









 








portion of the Collateral pursuant to the Security
Documents, all rights and remedies in respect of such Collateral shall be controlled by the
Administrative Agent. No other Agent shall have any duties or responsibilities under this
Agreement.




          (b) Neither the Agents nor any of their respective directors, officers, employees or agents
shall be liable as such for any action taken or omitted by any of them except for its or his own
gross negligence or willful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or observance by the
Borrowers or any other Loan Party of any of the terms, conditions, covenants or agreements
contained in any Loan Document. The Agents shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other
Loan Documents or other instruments or agreements. The Agents shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written instructions signed by
the Required Lenders and, except as otherwise specifically provided herein, such instructions and
any action or inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall, in
the absence of knowledge to the contrary, be entitled to rely on any instrument or document
believed by it in good faith to be genuine and correct and to have been signed or sent by the
proper Person or Persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to any Borrower or any other Loan Party or any
other party hereto on account of the failure, delay in performance or breach by, or as a result of
information provided by, any Lender or Issuing Bank of any of its obligations hereunder or to any
Lender or Issuing Bank on account of the failure of or delay in performance or breach by any other
Lender or Issuing Bank or any Borrower or any other Loan Party of any of their respective
obligations hereunder or under any other Loan Document or in connection herewith or therewith.
Each Agent may execute any and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.




          SECTION 8.02 Nature of Duties. The Lenders hereby acknowledge that no Agent shall be under any duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of this Agreement
unless it shall be requested in writing to do so by the Required Lenders. The Lenders further
acknowledge and agree that so long as an Agent shall make any determination to be made by it
hereunder or under any other Loan Document in good faith, such Agent shall have no liability in
respect of such determination to any Person. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the
Loan Documents or otherwise exist against any Agent. Each Lender recognizes and agrees that the
Joint Book Runners and the Joint Lead Arrangers shall have no duties or responsibilities under this
Agreement or any other Loan Document, or any fiduciary relationship with any Lender, and shall have
no functions, responsibilities, duties, obligations or liabilities for acting as the Joint Book
Runners or as the Joint Lead Arrangers hereunder.

-134-









 









          SECTION 8.03 Resignation by the Agents. Subject to the appointment and acceptance of a successor Administrative Agent or Deposit
Bank, as the case may be, as provided below, each of the Administrative Agent and the Deposit Bank
may resign at any time by notifying the Lenders and the Company. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor with the consent of the Company (not
to be unreasonably withheld or delayed). If no successor shall have been so appointed by the
Required Lenders and approved by the Company and shall have accepted such appointment within 45
days after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders with the consent of the Company (not to be
unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank
with an office in New York, New York and an office in London, England (or a bank having an
Affiliate with such an office) having a combined capital and surplus having a Dollar Equivalent
that is not less than $500.0 million or an Affiliate of any such bank. Upon the acceptance of any
appointment as Administrative Agent or Deposit Bank hereunder by a successor bank, such successor
shall succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent or Deposit Bank, as the case may be, and the retiring Administrative
Agent or Deposit Bank, as the case may be, shall be discharged from its duties and obligations
hereunder. After the resignation by the Administrative Agent or by the Deposit Bank hereunder, the
provisions of this Article and Section 9.05 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as Administrative Agent or
Deposit Bank, as the case may be.




          SECTION 8.04 The Administrative Agent in Its Individual Capacity. With respect to the Loans made by it hereunder, the Administrative Agent in its individual
capacity and not as Administrative Agent shall have the same rights and powers as any other Lender
and may exercise the same as though it were not the Administrative Agent, and the Administrative
Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind
of business with Holdings, any Borrower or any of the Subsidiaries or other Affiliates thereof as
if it were not the Administrative Agent.




          SECTION 8.05 Indemnification. Each Lender agrees (a) to reimburse each Agent, on demand, in the amount of its pro rata
share (based on its Commitments hereunder (or if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of its applicable outstanding Loans
or participations in L/C Disbursements, as applicable)) of any reasonable expenses incurred for the
benefit of the Lenders by such Agent, including counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed
by the Company and (b) to indemnify and hold harmless each Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such
pro rata share, from and against
any and all liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as Agent or any of them in any way relating to or arising
out of this Agreement or any other Loan Document or any action taken or omitted by it or any of
them under this Agreement or any other Loan Document, to the extent the same shall not have been
reimbursed by the Company (and without limiting its obligation to do so), provided that no
Lender shall be liable to an Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judg-

-135-









 







ments, suits, costs, expenses or disbursements determined by a
court of competent jurisdiction by final and non-appealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent or any of its directors, officers, employees
or agents.




          SECTION 8.06 Lack of Reliance on Agents. Each Lender acknowledges that it has, independently and without reliance upon any Agent and
any 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 any Agent, 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 or any other Loan
Document, any related agreement or any document furnished hereunder or thereunder.




          SECTION 8.07 Designation of Affiliates for Loans Denominated in Euros. The Administrative Agent shall be permitted from time to time to designate one of its
Affiliates to perform the duties to be performed by the Administrative Agent hereunder with respect
to Loans, Borrowings and Letters of Credit denominated in Euros. The provisions of this Article
VIII shall apply to any such Affiliate, mutatis mutandis.




          SECTION 8.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Agents listed on the cover
page hereof shall have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender
or an Issuing Bank hereunder.




ARTICLE IX




MISCELLANEOUS




          SECTION 9.01 Notices.




          (a) 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:





     (i) if to any Loan Party, to it, c/o the Company, 1601 West LBJ Freeway, Dallas, Texas
75234, attention: James E. Shields, Vice President and Treasurer (telecopy: 972-443-3095),
with a copy to Kevin Rogan, Associate General Counsel and Assistant Secretary (telecopy:
(972) 443-4801);




     (ii) if to the Administrative Agent or the Collateral Agent, to Deutsche Bank AG, New
York Branch, 60 Wall Street, New York, New York 10005, attention: Evelyn Thierry (telecopy:
(212) 797-5690) (e-mail: evelyn.thierry@db.com), if to the Deposit Bank, to Deutsche Bank
AG, Cayman Islands Branch, 60 Wall Street, New York, New York 10005, attention: Evelyn
Thierry (telecopy: (212) 797-5690) (e-mail: evelyn.thierry@db.com), with a copy to Cahill
Gordon & Reindel llp, 80 Pine Street, New York, New York 10005, attention:
Jonathan A. Schaffzin and Michael J. Ohler, Esq. (telecopy: (212) 269-5420);



-136-









 






     (iii) if to an Issuing Bank, to it at the address or telecopy number set forth
separately in writing; and




     (iv) if such notice relates to a Revolving Facility Borrowing denominated in Euros, to
the Administrative Agent.



          (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. Each of the Administrative
Agent, the Collateral Agent, the Deposit Bank and the Company (on behalf of itself and the Foreign
Subsidiary Borrowers) may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic communications pursuant to procedures approved by it; provided,
further, that approval of such procedures may be limited to particular notices or
communications.




          (c) 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 if delivered
by hand or overnight courier service, sent by telecopy or (to the extent permitted by paragraph (b)
above) electronic means or on the date five Business Days after dispatch by certified or registered
mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as
provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party
given in accordance with this Section 9.01.




          (d) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto.




          SECTION 9.02 Survival of Agreement. All covenants, agreements, representations and warranties made by the Loan Parties herein,
in the other Loan Documents and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and each Issuing Bank and shall survive the making by the
Lenders of the Loans, the execution and delivery of the Loan Documents and the issuance of the
Letters of Credit, regardless of any investigation made by such Persons or on their behalf, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or L/C Disbursement or any Fee or any other amount payable under this Agreement or any other
Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not been terminated. Without prejudice to the survival of any other agreements
contained herein, indemnification and reimbursement obligations contained herein (including
pursuant to Sections 2.15, 2.16, 2.17 and 9.05) shall survive the payment in full of the principal
and interest hereunder, the expiration of the Letters of Credit and the termination of the
Commitments or this Agreement.




          SECTION 9.03 Binding Effect. This Agreement shall become effective when it shall have been executed by Holdings, the
Company and the Administrative Agent and when the Administrative Agent shall have received copies
hereof which, when taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to


-137-









 








the benefit of Holdings, the Borrowers, each Issuing
Bank, the Administrative Agent, the Deposit Bank and each Lender and their respective permitted
successors and assigns.




          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 any Issuing Bank that issues any Letter of Credit), except that (i) other than
pursuant to a merger permitted by Section 6.05(b) or 6.05(i), no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by a 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 9.04. 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 any 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 Agents, each
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, the Loans and/or Credit-Linked Deposits at the time
owing to it) with the prior written consent (such consent not to be unreasonably withheld or
delayed) of:





     (A) the Company; provided that no consent of the Company shall be required for
an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or, if an Event of
Default under paragraph (b), (c), (h) or (i) of Section 7.01 has occurred and is continuing,
any other assignee (other than a natural person) (provided that any liability of the
Borrowers to an assignee that is an Approved Fund or Affiliate of the assigning Lender under
Section 2.15, 2.16, 2.17 or 2.21 shall be limited to the amount, if any, that would have
been payable hereunder by such Borrower in the absence of such assignment); and




     (B) the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment of (i) a Revolving Facility Commitment to an
assignee that is a Lender with a Revolving Facility Commitment, immediately prior to giving
effect to such assignment, or (ii) a Term Loan to a Lender, an Affiliate of a Lender or
Approved Fund immediately prior to giving effect to such assignment.




     (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, the amount of the commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with re-



-138-









 







spect to such
assignment is delivered to the Administrative Agent) shall not be less than (x) $5.0 million
(or the Euro Equivalent in the case of Revolving Facility Loans denominated in Euros), in
the case of Revolving Facility Commitments and Revolving Facility Loans, (y) $5.0 million in
the case of Credit-Linked Commitments and Credit-Linked Deposits and (z) $1.0 million (or
the Euro Equivalent in the case of Euro Term Loans), in the case of Term Loans, unless each
of the Company and the Administrative Agent otherwise consent; provided that no such
consent of the Company shall be required if an Event of Default under paragraph (b), (c),
(h) or (i) of Section 7.01 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, except that this
clause (B) shall not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Facilities on a non-pro rata basis;




     (C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation fee of
$3,500; provided that no such recordation fee shall be due in connection with an
assignment to an existing Lender or Affiliate of a Lender or an assignment by the
Administrative Agent;




     (D) no assignment of Revolving Facility Loans or Revolving Facility Commitments shall
be permitted to be made to an assignee that cannot make Revolving Facility Loans in Dollars
and Euros; and




     (E) no assignments of Euro Term Loans or of a commitment to make Euro Term Loans shall
be permitted to be made to an assignee that cannot hold or make Euro Term Loans.



          (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 Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender hereunder shall, to the extent of the interest assigned by such Assignment and Acceptance,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance 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 9.05). 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 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. Without the consent of the Deposit
Bank, the Credit-Linked Deposit funded by any CL Lender shall not be released in connection with
any assignment of its Credit-Linked Commitment, but shall instead be purchased by the relevant
assignee and continue to be held for application (if not already applied) pursuant to Section
2.05(e) or 2.06(a) in respect of such assignee’s obligations under the Credit-Linked Commitment
assigned to it.

-139-









 









          (iv) The Administrative Agent, acting for this purpose as an agent of the Company, shall
maintain at one of its offices a copy of each Assignment and Acceptance 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 L/C 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 Company, the Agents, each 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 Company, any 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 Acceptance executed by an assigning
Lender and an assignee, the processing and recordation fee referred to in paragraph (b) of this
Section and any written consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent acting for itself and, in any situation wherein the consent of the Company is
not required, the Company shall accept such Assignment and Acceptance and record the information
contained therein in the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.




          (c) (i) Any Lender may, without the consent of the Company, the Administrative Agent, any
Issuing Bank or any Swingline Lender, sell participations to one or more banks or other entities (a
“Loan 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 Borrowers, the Agents, each 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 (oral or written) pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and the other Loan Documents and to approve any amendment, modification or
waiver of any provision of this Agreement and the other Loan Documents; provided that (x)
such agreement or instrument may provide that such Lender will not, without the consent of the Loan
Participant, agree to any amendment, modification or waiver described in Section 9.04(a)(i) or
clause (i), (ii), (iii), (iv), (v) or (vi) of the first proviso to Section 9.08(b) that affects
such Loan Participant and (y) no other agreement (oral or written) with respect to such
participation may exist between such Lender and such Loan Participant. Subject to paragraph
(c)(ii) of this Section, each of the Borrowers agrees that each Loan 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 Loan Participant also shall be entitled to the benefits of Section 9.06 as
though it were a Lender; provided such Loan Participant agrees to be subject to Section
2.18(c) as though it were a Lender.




          (ii) A Loan Participant shall not be entitled to receive any greater payment under Section
2.15, 2.16 or 2.17 than the applicable Lender would have been entitled to receive

-140-









 








with respect to
the participation sold to such Loan Participant, unless the sale of the participation to such Loan
Participant is made with the Company’s prior written consent. A Loan Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17 to the
extent such Loan Participant fails 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 (i) any pledge or
assignment to secure obligations to a Federal Reserve Bank and (ii) in the case of any Lender that
is an Approved Fund, any pledge or assignment to any holders of obligations owed, or securities
issued, by such Lender including to any trustee for, or any other representative of, such holders,
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 Expenses; Indemnity.




          (a) The Company agrees to pay all reasonable out-of-pocket expenses (including Other Taxes)
incurred by the Administrative Agent and the Deposit Bank in connection with the preparation of
this Agreement and the other Loan Documents or the administration of this Agreement and by the
Agents in connection with the syndication of the Commitments (including expenses incurred prior to
the Effective Date in connection with due diligence and the reasonable fees, disbursements and the
charges for no more than one counsel in each jurisdiction where Collateral is located) or in
connection with any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the Transactions hereby contemplated shall be consummated) or incurred by the
Agents or any Lender in connection with the enforcement or protection of their rights in connection
with this Agreement and the other Loan Documents, in connection with the Loans made or the Letters
of Credit issued hereunder, including the reasonable fees, charges and disbursements of Cahill
Gordon & Reindel llp, counsel for the Administrative Agent and Deposit Bank, and, in
connection with any such enforcement or protection, the reasonable fees, charges and disbursements
of any other counsel (including the reasonable allocated costs of internal counsel if a Lender
elects to use internal counsel in lieu of outside counsel) for the Agents, the Joint Lead
Arrangers, any Issuing Bank or all Lenders (but no more than one such counsel for all Lenders).




          (b) The Company agrees to indemnify the Deposit Bank, the Agents, the Joint Lead Arrangers,
each Issuing Bank, each Lender and each of their respective Affiliates, directors, trustees,
officers, employees and agents (each such Person being called an “Indemnitee”) against, and
to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto and thereto of their
respective obligations thereunder or the consummation of the Transaction and the other transactions
contemplated hereby, (ii) the use of the proceeds of the Loans or the use of any Let-

-141-









 








ter of Credit
or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not 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 are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any
of its Related Parties. Subject to and without limiting the generality of the foregoing sentence,
the Company agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel
or consultant fees, charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (A) any Environmental Claim related in
any way to Holdings, the Company or any of their Subsidiaries, or (B) any actual or alleged
presence, Release or threatened Release of Hazardous Materials at, under, on or from any Mortgaged
Property or any property owned, leased or operated by any predecessor of Holdings, the Company or
any of their Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related
Parties. The provisions of this Section 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any investigation made by or
on behalf of the Deposit Bank, any Agent, any Issuing Bank or any Lender. All amounts due under
this Section 9.05 shall be payable on written demand therefor accompanied by reasonable
documentation with respect to any reimbursement, indemnification or other amount requested.




          (c) Unless an Event of Default shall have occurred and be continuing, the Company shall be
entitled to assume the defense of any action for which indemnification is sought hereunder with
counsel of its choice at its expense (in which case the Company shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by an Indemnitee except as set forth
below); provided, however, that such counsel shall be reasonably satisfactory to
each such Indemnitee. Notwithstanding the Company’s election to assume the defense of such action,
each Indemnitee shall have the right to employ separate counsel and to participate in the defense
of such action, and the Company shall bear the reasonable fees, costs and expenses of such separate
counsel, if (i) the use of counsel chosen by the Company to represent such Indemnitee would present
such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets
of, any such action include both the Company and such Indemnitee and such Indemnitee shall have
reasonably concluded that there may be legal defenses available to it that are different from or
additional to those available to the Company (in which case the Company shall not have the right to
assume the defense or such action on behalf of such Indemnitee); (iii) the Company shall not have
employed counsel reasonably satisfactory to such Indemnitee to represent it within a reasonable
time after notice of the institution of such action; or (iv) the Company shall authorize in writing
such Indemnitee to employ separate counsel at the Company’s expense. The Company will not be
liable under this Agreement for any amount paid by an Indemnitee to settle any claims or actions if
the settlement is entered into without the Company’s consent, which consent may not be withheld or
delayed unless such settlement is unrea-

-142-









 








sonable in light of such claims or actions against, and
defenses available to, such Indemnitee. Notwithstanding the foregoing, in the event an Indemnitee
releases the Borrower from its indemnification obligations hereunder, such Indemnitee may assume
the defense of any such action with respect to itself.




          (d) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall
not be duplicative with any amounts paid pursuant to Section 2.17, this Section 9.05 shall not
apply to Taxes.




          SECTION 9.06 Right of Set-off. Each Lender and each Issuing Bank is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, upon any amount becoming due and payable by a Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) after the expiration of
any cure or grace periods, to set off and apply against such amount any and all deposits (general
or special, time or demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Issuing Bank to or for the credit or the account of Holdings, the
Company or any Subsidiary, matured or unmatured, irrespective of whether or not such Lender or such
Issuing Bank shall have made any demand under this Agreement or any other Loan Document. The
rights of each Lender and each Issuing Bank under this Section 9.06 are in addition to other rights
and remedies (including other rights of set-off) that such Lender or such Issuing Bank may have.




          SECTION 9.07 Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY
SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK.




          SECTION 9.08 Waivers; Amendment.




          (a) No failure or delay of the Administrative Agent, any Issuing Bank or any Lender in
exercising any right or power hereunder or under any Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent, each Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or consent to any departure by
Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice or demand on
Holdings, any Borrower or any other Loan Party in any case shall entitle such Person to any other
or further notice or demand in similar or other circumstances.




          (b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may
be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement
or agreements in writing entered into by the Company and the Required Lenders (or, in respect of
any waiver, amendment or modification of Section 6.10, the

-143-









 








Majority Lenders under the Revolving
Facility rather than the Required Lenders) and (y) in the case of any other Loan Document, pursuant
to an agreement or agreements as provided for therein; provided, however, that no
such agreement shall





     (i) decrease or forgive the principal amount of, or extend the final maturity of, or
decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior
written consent of each Lender directly affected thereby; provided that any
amendment to the financial covenant definitions in this Agreement shall not constitute a
reduction in the rate of interest for purposes of this clause (i),




     (ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or
L/C Participation Fees or other fees of any Lender without the prior written consent of such
Lender (it being understood that waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate
Commitments shall not constitute an increase of the Commitments of any Lender),




     (iii) extend or waive any Installment Date or extend any date on which payment of
interest on any Loan or any L/C Disbursement or any fees payable hereunder are due, without
the prior written consent of each Lender directly and adversely affected thereby,




     (iv) amend or modify the provisions of Section 2.18(c) in a manner that would by its
terms alter the pro rata sharing of payments required thereby, without the prior written
consent of each Lender directly and adversely affected thereby,




     (v) amend or modify the provisions of this Section or the definition of the terms
“Required Lenders,” “Majority 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 prior written consent of each
Lender adversely affected thereby (it being understood that, with the consent of the
Required Lenders, additional extensions of credit pursuant to this Agreement may be included
in the determination of the Required Lenders on substantially the same basis as the Loans
and Commitments are included on the Effective Date),




     (vi) release all or substantially all the Collateral or release Holdings, the Company,
CAC or all or substantially all of the other Subsidiary Loan Parties from its Guarantee
under the Holdings Agreement or the U.S. Collateral Agreement, as applicable, unless, in the
case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such
Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this
Agreement, without the prior written consent of each Lender adversely affected thereby,




     (vii) effect any waiver, amendment or modification that by its terms directly adversely
affects the rights in respect of payments or collateral of Lenders participating in any
Facility differently from those of Lenders participating in other Facilities, without the
consent of the Majority Lenders participating in the adversely affected Facility (it being



-144-









 







agreed that the Required Lenders may waive, in whole or in part, any prepayment or
Commitment reduction required by Section 2.11 so long as the application of any prepayment
or Commitment reduction still required to be made is not changed); or




     (viii) convert the currency of any Loan or any Commitment, without the prior written
consent of the Lender holding such Loan or Commitment;


provided, further, that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, the Deposit Bank or an Issuing Bank hereunder
without the prior written consent of the Administrative Agent, the Deposit Bank or such Issuing
Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be
bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by
any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.




          (c) Without the consent of either Joint Lead Arranger, the Deposit Bank or any Lender, the
Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole
discretion, or shall, to the extent required by any Loan Document) enter into any amendment,
modification or waiver of any Loan Document, or enter into any new agreement or instrument, to
effect the granting, perfection, protection, expansion or enhancement of any security interest in
any Collateral or additional property to become Collateral for the benefit of the Secured Parties,
or as required by local law to give effect to, or protect any security interest for the benefit of
the Secured Parties, in any property or so that the security interests therein comply with
applicable law.




          (d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated)
with the written consent of the Required Lenders, the Administrative Agent, Holdings and the
Borrowers (a) to add one or more additional credit facilities to this Agreement and to permit the
extensions of credit from time to time outstanding thereunder and the accrued interest and fees in
respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents
with the Term Loans, the CL Loans and the Revolving Facility Loans and the accrued interest and
fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities
in any determination of the Required Lenders.




          (e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, Holdings, the Borrowers and the Lenders providing the relevant
Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans
(“Refinanced Term Loans”) with a replacement “B” term loan tranche hereunder which shall be
Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate
principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of
such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be
higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to
maturity of such Replacement Term Loans shall not be shorter than the weighted average life to
maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms
applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to
the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term
Loans, except to the extent necessary to

-145-









 








provide for covenants and other terms applicable to any
period after the latest final maturity of the Term Loans in effect immediately prior to such
refinancing.




          SECTION 9.09 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the applicable interest
rate, together with all fees and charges that are treated as interest under applicable law
(collectively, the “Charges”), as provided for herein or in any other document executed in
connection herewith, or otherwise contracted for, charged, received, taken or reserved by any
Lender or any Issuing Bank, shall exceed the maximum lawful rate (the “Maximum Rate”) that
may be contracted for, charged, taken, received or reserved by such Lender in accordance with
applicable law, the rate of interest payable hereunder, together with all Charges payable to such
Lender or such Issuing Bank, shall be limited to the Maximum Rate; provided that such
excess amount shall be paid to such Lender or such Issuing Bank on subsequent payment dates to the
extent not exceeding the legal limitation.




          SECTION 9.10 Entire Agreement. This Agreement, the other Loan Documents and the agreements regarding certain Fees referred
to herein constitute the entire contract between the parties relative to the subject matter hereof.
Any previous agreement among or representations from the parties or their Affiliates with respect
to the subject matter hereof is superseded by this Agreement and the other Loan Documents.
Notwithstanding the foregoing, the Fee Letters shall survive the execution and delivery of this
Agreement and remain in full force and effect. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement
or the other Loan Documents.




          SECTION 9.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.




          SECTION 9.12 Severability. In the event any one or more of the provisions contained in this Agreement or in any other
Loan Document should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and therein shall not in
any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

-146-









 









          SECTION 9.13 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute
an original but all of which, when taken together, shall constitute but one contract, and shall
become effective as provided in Section 9.03. Delivery of an executed counterpart to this
Agreement by facsimile transmission shall be as effective as delivery of a manually signed
original.




          SECTION 9.14 Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.




          SECTION 9.15 Jurisdiction; Consent to Service of Process.




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




          (b) Each of Holdings and each 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 or the other Loan Documents in any New York State or federal court. 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.




          SECTION 9.16 Confidentiality. Each of the Lenders, the Deposit Bank, each Issuing Bank and the Administrative Agent
agrees that it shall maintain in confidence any information relating to Holdings, the Company and
the other Loan Parties furnished to it by or on behalf of Holdings, the Company or the other Loan
Parties (other than information that (a) has become generally available to the public other than as
a result of a disclosure by such party, (b) has been independently developed by such Lender, such
Issuing Bank, the Deposit Bank or the Administrative Agent without violating this Section 9.16 or
(c) was available to such Lender, such Issuing Bank, the Deposit Bank or the Administrative Agent
from a third party having, to such Person’s knowledge, no obligations of confidentiality to
Holdings, the Company or any other Loan Party) and shall not reveal the same other than to its
directors, trustees, officers, employees and advisors with a need to know or to any Person that
approves or administers the Loans on behalf of such Lender (so long as each such Person shall have
been instructed to keep the same confidential in accordance with this Section 9.16), except: (A)
to the extent necessary to comply

-147-









 








with law or any legal process or the requirements of any
Governmental Authority, the National Association of Insurance Commissioners or of any securities
exchange on which securities of the disclosing party or any Affiliate of the disclosing party are
listed or traded, (B) as part of normal reporting or review procedures to Governmental Authorities
or the National Association of Insurance Commissioners, (C) to its parent companies, Affiliates or
auditors (so long as each such Person shall have been instructed to keep the same confidential in
accordance with this Section 9.16), (D) in order to enforce its rights under any Loan Document in a
legal proceeding, (E) to any prospective assignee of, or prospective Participant in, any of its
rights under this Agreement (so long as such Person shall have been instructed to keep the same
confidential in accordance with confidentiality provisions no less restrictive than this Section
9.16) and (F) to any direct or indirect contractual counterparty in Swap Agreements or such
contractual counterparty’s professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by confidentiality
provisions no less restrictive than this Section 9.16).




          SECTION 9.17 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 (including any Foreign
Subsidiary Borrower) 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 each 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, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrowers contained in this Section 9.17 shall
survive the termination of this Agreement and the payment of all other amounts owing hereunder.




          SECTION 9.18 Release of Liens and Guarantees. In the event that any Loan Party conveys, sells, leases, assigns, transfers or otherwise
disposes of all or any portion of any of its assets (including the Equity Interests of any
Subsidiary Loan Party (other than a Borrower)) to a Person that is not (and is not required to
become) a Loan Party in a transaction not prohibited by Section 6.05, the Administrative Agent and
the Collateral Agent shall promptly (and the Lenders hereby authorize the Administrative Agent and
the Collateral Agent to) take such action and execute any such documents as may be reasonably
requested by Holdings or the Company and at the Company’s expense to release any Liens created by
any Loan Document in

-148-









 








respect of such assets or Equity Interests, and, in the case of a disposition
of the Equity Interests of any Subsidiary Loan Party that is not a Borrower in a transaction
permitted by Section 6.05 and as a result of which such Subsidiary Loan Party would cease to be a
Subsidiary, terminate such Subsidiary Loan Party’s obligations under its Guarantee. The
Administrative Agent and the Collateral Agent agree to take such actions as are reasonably
requested by Holdings or the Company and at the Company’s expense to terminate the Liens and
security interests created by the Loan Documents when all the Obligations are paid in full and all
Letters of Credit and Commitments are terminated. Any representation, warranty or covenant
contained in any Loan Document relating to any such Equity Interests, asset or subsidiary of
Holdings shall no longer be deemed to be made once such Equity Interests or asset is so conveyed,
sold, leased, assigned, transferred or disposed of.




          SECTION 9.19 Parallel Debt.




          (a) Each of the parties hereto agrees, and each Foreign Revolving Borrower acknowledges by way
of an abstract acknowledgement of debt, that each and every obligation of each Foreign Revolving
Borrower (and any of its successors pursuant to this Agreement) under this Agreement and the other
Loan Documents shall also be owing in full to the Collateral Agent (and each of its successors
under this Agreement), and that accordingly the Collateral Agent will have its own independent
right to demand performance by each such Foreign Revolving Borrower of those obligations. The
Collateral Agent agrees with each Foreign Revolving Borrower that in case of any discharge of any
such obligation owing to the Collateral Agent or any Lender, it will, to the same extent, not make
a claim against the relevant Foreign Revolving Borrower under the aforesaid acknowledgement at any
time; provided that any such claims can be made against any such Foreign Revolving Borrower
if such discharge is made by virtue of any set off, counterclaim or similar defense invoked by any
such Foreign Revolving Borrower vis-à-vis the Collateral Agent.




          (b) Without limiting or affecting the Collateral Agent’s rights against any Foreign Revolving
Borrower (whether under this paragraph or under any other provision of the Loan Documents), the
Collateral Agent agrees with each other Lender that, except as set out in the next sentence, it
will not exercise its rights under the Acknowledgement except with the consent of the relevant
Lender. However, for the avoidance of doubt, nothing in the previous sentence shall in any way
limit the Collateral Agent’s right to act in the protection or preservation of rights under or to
enforce any Loan Document as contemplated by this Agreement and/or the relevant Loan Document (or
to do any act reasonably incidental to the foregoing).




ARTICLE X




COLLECTION ALLOCATION MECHANISM




          SECTION 10.01 Implementation of CAM.




          (a) On the CAM Exchange Date, (i) the Commitments shall automatically and without further act
be terminated as provided in Section 7.01, (ii) each Revolving Facility Lender shall immediately be
deemed to have acquired (and shall promptly make payment therefor to the Administrative Agent in
accordance with Section 2.04(c)) participations in the Swingline Euro

-149-









 








Loans (other than any
Swingline Euro Loan in respect of which Revolving Facility Lenders have funded their purchase of
participations pursuant to Section 2.04(c)) in an amount equal to such Lender’s ratable share
(based on the respective Revolving Facility Commitments of the Revolving Facility Lenders
immediately prior to the CAM Exchange Date) of each Swingline Euro Loan outstanding on such date,
(iii) each Revolving Facility Lender shall immediately be deemed to have acquired (and shall
promptly make payment therefor to the Administrative Agent in accordance with Section 2.04(c))
participations in the Swingline Dollar Loans (other than any Swingline Dollar Loan in respect of
which the Revolving Facility Lenders have funded their purchase of participations pursuant to
Section 2.04(c)) in an amount equal to such Lender’s Revolving Facility Percentage of each
Swingline Dollar Loan outstanding on such date, (iv) simultaneously with the automatic conversions
pursuant to clause (v) below, the Lenders shall automatically and without further act (and without
regard to the provisions of Section 9.04) be deemed to have exchanged interests in the Loans (other
than the Swingline Loans), Swingline Loans and undrawn Letters of Credit, such that in lieu of the
interest of each Lender in each Loan and Letter of Credit in which it shall participate as of such
date (including such Lender’s interest in the Obligations of each Loan Party in respect of each
such Loan and undrawn Letter of Credit), such Lender shall hold an interest in every one of the
Loans (other than the Swingline Loans) and a participation in every one of the Swingline Loans and
undrawn Letters of Credit (including the Obligations of each Loan Party in respect of each such
Loan and each Reserve Account established pursuant to Section 10.02 below), whether or not such
Lender shall previously have participated therein, equal to such Lender’s CAM Percentage thereof
and (v) simultaneously with the deemed exchange of interests pursuant to clause (iv) above, the
interests in the Loans to be received in such deemed exchange shall, automatically and with no
further action required, be converted into the Dollar Equivalent, determined using the Exchange
Rate calculated as of such date, of such amount and on and after such date all amounts accruing and
owed to the Lenders in respect of such Obligations shall accrue and be payable in Dollars at the
rate otherwise applicable hereunder. Each Lender and each Loan Party hereby consents and agrees to
the CAM Exchange, and each Lender agrees that the CAM Exchange shall be binding upon its successors
and assigns and any Person that acquires a participation in its interests in any Loan. Each Loan
Party agrees from time to time to execute and deliver to the Administrative Agent all such
promissory notes and other instruments and documents as the Administrative Agent shall reasonably
request to evidence and confirm the respective interests of the Lenders after giving effect to the
CAM Exchange, and each Lender agrees to surrender any promissory notes originally received by it in
connection with its Loans hereunder to the Administrative Agent against delivery of any promissory
notes evidencing its interests in the Loans so executed and delivered; provided,
however, that the failure of any Loan Party to execute or deliver or of any Lender to
accept any such promissory note, instrument or document shall not affect the validity or
effectiveness of the CAM Exchange.




          (b) As a result of the CAM Exchange, upon and after the CAM Exchange Date, each payment
received by the Administrative Agent or the Collateral Agent pursuant to any Loan Document in
respect of the Obligations, and each distribution made by the Collateral Agent pursuant to any
Security Document in respect of the Obligations, shall be distributed to the Lenders pro rata in
accordance with their respective CAM Percentages. Any direct payment received by a Lender upon or after the CAM Exchange Date, including by way of set-off, in re-

-150-









 








spect of an Obligation shall be paid
over to the Administrative Agent for distribution to the Lenders in accordance herewith.




          SECTION 10.02 Letters of Credit.




          (a) In the event that on the CAM Exchange Date any RF Letter of Credit shall be outstanding
and undrawn in whole or in part, each Revolving Facility Lender shall promptly pay over to the
Administrative Agent, in immediately available funds, an amount in Dollars equal to such Lender’s
Revolving Facility Percentage of such undrawn face amount, together with interest thereon from the
CAM Exchange Date to the date on which such amount shall be paid to the Administrative Agent at the
rate that would be applicable at the time to an ABR Revolving Loan in a principal amount equal to
such undrawn face amount or unreimbursed drawing, as applicable. The Administrative Agent shall
establish a separate account (each, an “RF Reserve Account”) or accounts for each Lender
for the amounts received with respect to each such RF Letter of Credit pursuant to the preceding
sentence. On the CAM Exchange Date, the Administrative Agent shall request the Deposit Bank to
withdraw all amounts remaining in the Credit-Linked Deposit Account (after giving effect to
withdrawals therefrom made pursuant to Section 2.08(d)) less the aggregate amount (if any) equal to
all unreimbursed L/C Disbursements made in respect of CL Letters of Credit not yet founded by
application of Credit-Linked Deposits as contemplated by Section 2.05(e) and deposit same in a new
separate account maintained with the Administrative Agent (each a “CL Reserve Account” and
together with the RF Reserve Account, the “Reserve Accounts”) or accounts for such Lender.
The Administrative Agent shall deposit in each Lender’s RF Reserve Account or CL Reserve Account,
as the case may be, such Lender’s CAM Percentage of the amounts received from the Revolving
Facility Lenders or the Credit-Linked Deposit Account, as the case may be, as provided above. The
Administrative Agent shall have sole dominion and control over each Reserve Account, and the
amounts deposited in each Reserve Account shall be held in such Reserve Account until withdrawn as
provided in paragraph (b), (c), (d) or (e) below. The Administrative Agent shall maintain records
enabling it to determine the amounts paid over to it and deposited in the Reserve Accounts in
respect of each Letter of Credit and the amounts on deposit in respect of each Letter of Credit
attributable to each Lender’s CAM Percentage. The amounts held in each Lender’s RF Reserve Account
or CL Reserve Account, as the case may be, shall be held as a reserve against the Revolving L/C
Exposures or CL L/C Exposures, as the case may be, shall be the property of such Lender, shall not
constitute Loans to or give rise to any claim of or against any Loan Party and shall not give rise
to any obligation on the part of any Borrower to pay interest to such Lender, it being agreed that
the reimbursement obligations in respect of Letters of Credit shall arise only at such times as
drawings are made thereunder, as provided in Section 2.05.




          (b) In the event that after the CAM Exchange Date any drawing shall be made in respect of a
Letter of Credit, the Administrative Agent shall, at the request of the applicable Issuing Bank
withdraw from the RF Reserve Account or CL Reserve Account, as applicable, of each Lender any
amounts, up to the amount of such Lender’s CAM Percentage of such drawing or payment, deposited in
respect of such Letter of Credit and remaining on deposit and deliver such amounts, to such Issuing
Bank in satisfaction of the reimbursement obligations of the respective Lenders under Section
2.05(d) (but not of the Applicant Party under Section 2.05(e)). In the event that any Revolving
Facility Lender shall default on its obligation to pay over any

-151-









 








amount to the Administrative Agent
as provided in this Section 10.02, the applicable Issuing Bank shall have a claim against such
Revolving Facility Lender to the same extent as if such Lender had defaulted on its obligations
under Section 2.05(d), but shall have no claim against any other Lender in respect of such
defaulted amount, notwithstanding the exchange of interests in the applicable Borrower’s
reimbursement obligations pursuant to Section 10.01. Each other Lender shall have a claim against
such defaulting Revolving Facility Lender for any damages sustained by it as a result of such
default, including, in the event that such RF Letter of Credit shall expire undrawn, its CAM
Percentage of the defaulted amount.




          (c) In the event that after the CAM Exchange Date any Letter of Credit shall expire undrawn,
the Administrative Agent shall withdraw from the RF Reserve Account or CL Reserve Account, as
applicable, of each Lender the amount remaining on deposit therein in respect of such Letter of
Credit and distribute such amount to such Lender.




          (d) With the prior written approval of the Administrative Agent and the respective Issuing
Bank (not to be unreasonably withheld), any Lender may withdraw the amount held in its RF Reserve
Account or CL Reserve Account in respect of the undrawn amount of any Letter of Credit. Any Lender
making such a withdrawal shall be unconditionally obligated, in the event there shall subsequently
be a drawing under such Letter of Credit to pay over to the Administrative Agent, for the account
of the Issuing Bank on demand, its CAM Percentage of such drawing or payment.




          (e) Pending the withdrawal by any Lender of any amounts from either of its Reserve Accounts as
contemplated by the above paragraphs, the Administrative Agent will, at the direction of such
Lender and subject to such rules as the Administrative Agent may prescribe for the avoidance of
inconvenience, invest such amounts in Permitted Investments. Each Lender that has not withdrawn
all of the amounts in its Reserve Accounts as provided in paragraph (d) above shall have the right,
at intervals reasonably specified by the Administrative Agent, to withdraw the earnings on
investments so made by the Administrative Agent with amounts remaining in its Reserve Accounts and
to retain such earnings for its own account.




          SECTION 10.03 USA PATRIOT Act. Each Lender hereby notifies Company that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is required to obtain, verify
and record information that identifies Loan Parties, which information includes the name and
address of each Loan Party and other information that will allow such Lender to identify such Loan
Party in accordance with the Act.

-152-









 








          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 written above.




	 	 	 	 	 
	 	CELANESE HOLDINGS LLC

 	 
	 	By:  	/s/ James E. Shields
 	 
	 	 	James E. Shields 	 
	 	 	Vice President and Treasurer 	 
	 
	 	CELANESE US HOLDINGS LLC

 	 
	 	By:  	/s/ James E. Shields
 	 
	 	 	James E. Shields 	 
	 	 	Vice President and Treasurer 	 
	 
	 	CELANESE AMERICAS CORPORATION

 	 
	 	By:  	/s/ James E. Shields
 	 
	 	 	James E. Shields 	 
	 	 	Vice President and Treasurer 	 
	 




S-1









 






	 	 	 	 	 
	 	DEUTSCHE BANK AG, NEW YORK BRANCH,

as Administrative Agent, Issuing Bank and Lender

 	 
	 	By:  	/s/ Evelyn Thierry
 	 
	 	 	Evelyn Thierry 	 
	 	 	Vice President 	 
	 
	 	 	 
	 	By:  	     /s/ Omayra Laucella
 	 
	 	 	Omayra Laucella 	 
	 	 	Vice President 	 
	 
	 	DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH,

as Deposit Bank

 	 
	 	By:  	/s/ Evelyn Thierry
 	 
	 	 	Evelyn Thierry 	 
	 	 	Vice President 	 
	 
	 	 	 
	 	By:  	     /s/ Omayra Laucella
 	 
	 	 	Omayra Laucella 	 
	 	 	Vice President 	 
	 
	 	MERRILL LYNCH CAPITAL CORPORATION, as 

Syndication Agent and Lender

 	 
	 	By:  	/s/ Don Burkitt
 	 
	 	 	Don Burkitt 	 
	 	 	Vice President 	 
	 




S-2









 





	 	 	 	 	 
	 	ABN AMRO Bank N.V., as Lender

 	 
	 	By:  	/s/ George Dugan
 	 
	 	 	George Dugan 	 
	 	 	Managing Director 	 
	 
	 	 	 
	 	By:  	     /s/ Ivan L. Lustig
 	 
	 	 	Ivan L. Lustig 	 
	 	 	Managing Director 	 
	 
	 	BANK OF AMERICA NA, as Lender

 	 
	 	By:  	/s/ Colleen M. Briscoe
 	 
	 	 	Colleen M. Briscoe 	 
	 	 	Senior Vice President 	 
	 
	 	CITIBANK N.A., as Lender

 	 
	 	By:  	/s/ Adeel Kheraj
 	 
	 	 	Adeel Kheraj 	 
	 	 	Vice President 	 
	 
	 	JP MORGAN CHASE BANK NA, as Lender

 	 
	 	By:  	/s/ Linda Meyer
 	 
	 	 	Linda Meyer 	 
	 	 	Vice President 	 
	 
	 	THE BANK OF NOVA SCOTIA, as Lender

 	 
	 	By:  	/s/ Gregory E. George
 	 
	 	 	Gregory E. George 	 
	 	 	Managing Director 	 
	 
	 	BARCLAYS BANK PLC, as Lender

 	 
	 	By:  	/s/ Nicholas Bell
 	 
	 	 	Nicholas Bell 	 
	 	 	Director 	 
	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Lender

 	 
	 	By:  	/s/ David Dodd
 	 
	 	 	David Dodd 	 
	 	 	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	 	 
	 	By:  	     /s/ Denise L. Alvarez
 	 
	 	 	Denise L. Alvarez 	 
	 	 	Associate 	 
	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P., as Lender

 	 
	 	By:  	/s/ Mark Walton
 	 
	 	 	Mark Walton 	 
	 	 	Authorized Signatory 	 
	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION, as Lender

 	 
	 	By:  	/s/ Michael Bieber
 	 
	 	 	Michael Bieber 	 
	 	 	Vice President 	 
	 
	 	MIZUHO CORPORATE BANK, LTD., as Lender

 	 
	 	By:  	/s/ Leon Mo
 	 
	 	 	Leon Mo 	 
	 	 	Senior Vice President 	 
	 
	 	THE ROYAL BANK OF SCOTLAND PLC, as Lender

 	 
	 	By:  	/s/ L. Peter Yetman
 	 
	 	 	L. Peter Yetman 	 
	 	 	SVP 	 
	 
	 	US BANK NATIONAL ASSOCIATION, as Lender

 	 
	 	By:  	/s/ Kevin S. McFadden
 	 
	 	 	Kevin S. McFadden 	 
	 	 	Vice President 	 
	 
	 	UNITED OVERSEAS BANK LIMITED, NEW YORK AGENCY, as Lender

 	 
	 	By:  	/s/ George Lim
 	 
	 	 	George Lim 	 
	 	 	SVP and GM 	 
	 
	 	 	 
	 	By:  	     /s/ Mario Sheng
 	 
	 	 	Mario Sheng 	 
	 	 	AVP 	 
	 




 









 





	 	 	 	 	 
	 	BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, as Lender

 	 
	 	By:  	/s/ Thomas Taylor
 	 
	 	 	Thomas Taylor 	 
	 	 	Director 	 
	 
	 	 	 
	 	By:  	     /s/ Jack Wesolek
 	 
	 	 	Jack Wesolek 	 
	 	 	Director 	 
	 
	 	CAISSE DE DEPOT ET PLACEMENT DU QUEBEC, as Lender

 	 
	 	By:  	/s/ Pierre Lambert
 	 
	 	 	Pierre Lambert 	 
	 	 	Manager 	 
	 
	 	 	 
	 	By:  	     /s/ Diane C. Favreau
 	 
	 	 	Diane C. Favreau 	 
	 	 	Vice President 	 
	 
	 	BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY, as Lender

 	 
	 	By:  	/s/ Charles Stewart
 	 
	 	 	Charles Stewart 	 
	 	 	Vice President 	 
	 
	 	LANDESBANK BADEN-WUERTTEMBERG NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH, as Lender

 	 
	 	By:  	/s/ Karen Richard
 	 
	 	 	Karen Richard 	 
	 	 	Vice President, Head of Corporate Desk 	 
	 
	 	 	 
	 	By:  	     /s/ Annette Hirschle
 	 
	 	 	Annette Hirschle 	 
	 	 	Senior Risk Manager 	 
	 
	 	SUMITOMO MITSUI BANKING CORPORATION, as Lender

 	 
	 	By:  	/s/ Leo Pagarigan
 	 
	 	 	Leo Pagarigan 	 
	 	 	Joint General Manager 	 
	 
	 	THE NORTHERN TRUST COMPANY, as Lender

 	 
	 	By:  	/s/ Peter J. Hallan
 	 
	 	 	Peter J. Hallan 	 
	 	 	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES., as Lender

 	 
	 	By:  	/s/ Edward C. A. Forsberg, Jr.
 	 
	 	 	Edward C. A. Forsberg, Jr. 	 
	 	 	Senior Vice President and Manager 	 
	 
	 	 	 
	 	By:  	     /s/ Peter Wesemeier
 	 
	 	 	Peter Wesemeir 	 
	 	 	Asst. Treasurer 	 
	 
	 	NATIONAL CITY BANK, as Lender

 	 
	 	By:  	/s/ Daniel R. Raynor
 	 
	 	 	Daniel R. Raynor 	 
	 	 	Vice President 	 
	 
	 	BAYERISCHE LANDESBANK, NEW YORK BRANCH, as Lender

 	 
	 	By:  	/s/ Catherine Schilling
 	 
	 	 	Catherine Schilling 	 
	 	 	Vice President 	 
	 
	 	 	 
	 	By:  	     /s/ Donna M. Quilty
 	 
	 	 	Donna M. Quilty 	 
	 	 	Vice President 	 
	 
	 	DBS BANK LTD., as Lender

 	 
	 	By:  	/s/ Andrew Ko
 	 
	 	 	Andrew Ko 	 
	 	 	General Manager 	 
	 
	 	FIRST INDIANA BANK, as Lender

 	 
	 	By:  	/s/ Jimmy D. Gray, Jr.
 	 
	 	 	Jimmy D. Gray, Jr. 	 
	 	 	Vice President