IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.

 

	MORGAN STANLEY SENIOR FUNDING, INC.
	By:	/s/ Kevin D. Emerson
		Name:  Kevin D. Emerson
		Title:    Vice President

 

 

	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
	By:	/s/ Laurance J. Bressler
		Name:  Laurance J. Bressler
		Title:    Senior Vice President & Manager

 

 

	CF INDUSTRIES HOLDINGS, INC.
	By:	/s/ Randall W. Selgrad
		Name:  Randall W. Selgrad
		Title:    Vice President and Treasurer
	CF INDUSTRIES, INC.
	By:	/s/ Randall W. Selgrad
		Name:  Randall W. Selgrad
		Title:    Vice President and Treasurer

 

 

Exhibit A

 

 

 

 

BRIDGE LOAN AGREEMENT

 

 

among

 

 

CF INDUSTRIES HOLDINGS, INC.,

 

CF INDUSTRIES, INC.,

 

VARIOUS LENDERS,

 

and

 

MORGAN STANLEY SENIOR FUNDING, INC.,

as ADMINISTRATIVE AGENT and COLLATERAL AGENT

 

 

 

Dated as of April 5, 2010

 

 

 

MORGAN STANLEY SENIOR FUNDING, INC.,
as LEAD ARRANGER and BOOK RUNNER

 

 

 

 

TABLE OF CONTENTS

 

			Page
SECTION 1.	Definitions and Accounting Terms		1
1.01.	Defined Terms		1
1.02.	Other Definitional Provisions		36
SECTION 2.	Amount and Terms of Credit		37
2.01.	The Commitments		37
2.02.	Minimum Amount of Each Borrowing		38
2.03.	Notice of Borrowing		38
2.04.	Disbursement of Funds		38
2.05.	Notes		39
2.06.	[Intentionally Omitted]		40
2.07.	Pro Rata Borrowings		40
2.08.	Interest		40
2.09.	[Intentionally Omitted]		40
2.10.	Increased Costs, Illegality, etc		41
2.11.	Compensation		42
2.12.	Change of Lending Office		42
2.13.	Replacement of Lenders		42
SECTION 3.	[Intentionally Omitted]		43
SECTION 4.	Commitment Commission; Fees; Reductions and Increases of Commitments		43
4.01.	Fees		43
4.02.	[Intentionally Omitted]		43
4.03.	Mandatory Reduction of Commitments		43
SECTION 5.	Prepayments; Payments; Taxes		44
5.01.	Voluntary Prepayments		44
5.02.	Mandatory Repayments		45
5.03.	Method and Place of Payment		46
5.04.	Net Payments		46
SECTION 6.	Conditions Precedent to Credit Events on the Initial Borrowing Date		49
6.01.	Effective Date; Notices; Notes		49
6.02.	Representations and Warranties		50
6.03.	Officer’s Certificate		50
6.04.	Opinions of Counsel		50
6.05.	Company Documents; Proceedings; etc		51
6.06.	Consummation of the Borrower Refinancing		51
6.07.	Exchange Offer Funding Date Material Adverse Change		52

 

 

			Page
6.08.	Patriot Act		52
6.09.	Blocked Amounts		52
6.10.	Guaranty and Collateral Agreement		52
6.11.	Regulation U		53
6.12.	Solvency Certificate		54
6.13.	Fees, etc.		54
6.14.	Consummation of the Exchange Offer; Etc.		54
6.15.	Merger Agreement		54
6.16.	Facilities Under the First Lien Credit Agreement		55
6.17.	Intercreditor Agreement		55
6.18.	Mortgage; Title Insurance; Survey; Landlord Waivers; etc.		55
SECTION 7.	Conditions Precedent to Credit Events after the Initial Borrowing Date		57
7.01.	Initial Borrowing		57
7.02.	Notice of Borrowing		57
7.03.	Consummation of the Exchange Offer		57
7.04.	Merger Agreement		57
7.05.	Officer’s Certificate		57
7.06.	Margin Regulations		58
7.07.	Blocked Amounts		58
SECTION 8.	[Intentionally Omitted]		59
SECTION 9.	Representations, Warranties and Agreements		59
9.01.	Organization; Powers		59
9.02.	Authorization; Enforceability		59
9.03.	Governmental Approvals; No Conflicts		60
9.04.	Financial Condition; No Material Adverse Change		60
9.05.	Properties		61
9.06.	Litigation and Environmental Matters		61
9.07.	Compliance with Laws and Agreements		61
9.08.	Investment Company Status		62
9.09.	Taxes		62
9.10.	ERISA		62
9.11.	Disclosure		62
9.12.	Material Agreements		62
9.13.	Solvency		62
9.14.	Reportable Transaction		63
9.15.	Capitalization and Subsidiaries		63
9.16.	Common Enterprise		63
9.17.	Labor Disputes		63
9.18.	Use of Proceeds		63
9.19.	Margin Regulations		64
9.20.	Security Documents		64
9.21.	Intellectual Property, etc.		65
9.22.	Representations and Warranties in Merger Agreement		65

 

 

			Page
SECTION 10.	Affirmative Covenants		65
10.01.	Financial Statements and Other Information		65
10.02.	Notices of Material Events		68
10.03.	Existence; Conduct of Business		69
10.04.	Payment of Obligations		69
10.05.	Maintenance of Properties and Intellectual Property Rights		70
10.06.	Books and Records; Inspection Rights; Annual Lender Meetings		70
10.07.	Compliance with Laws		70
10.08.	Use of Proceeds		70
10.09.	Insurance		70
10.10.	Additional Collateral; Further Assurances; Etc		71
10.11.	[Intentionally Omitted.]		74
10.12.	Ratings		74
10.13.	Merger; Target Refinancing		74
10.14.	Securities Demand		75
10.15.	Exchange Notes; Exchange Notes Indentures; Etc		76
SECTION 11.	Negative Covenants		79
11.01.	Indebtedness		79
11.02.	Liens		84
11.03.	Fundamental Changes		87
11.04.	Investments, Loans, Advances, Guarantees and Acquisitions		89
11.05.	Interest Rate Protection Agreements or Other Hedging Agreements		93
11.06.	Restricted Payments		94
11.07.	Transactions with Affiliates		96
11.08.	Restrictive Agreements		96
11.09.	[Intentionally Omitted.]		97
11.10.	Capital Expenditures		97
11.11.	Interest Coverage Ratio		99
11.12.	Total Leverage Ratio		100
11.13.	Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements		100
11.14.	Holdings		101
11.15.	Limitation on Issuance of Equity Interests		101
11.16.	Accounting Changes; Fiscal Year		101
SECTION 12.	Events of Default		101
SECTION 13.	The Administrative Agent; Lead Arranger; Etc		104
13.01.	Appointment		104
13.02.	Nature of Duties		105
13.03.	Lack of Reliance on the Administrative Agent		105
13.04.	Certain Rights of the Administrative Agent		106
13.05.	Reliance		106
13.06.	Indemnification		106
13.07.	The Administrative Agent in its Individual Capacity		106

 

 

			Page
13.08.	Holders		107
13.09.	Resignation by the Administrative Agent		107
13.10.	Collateral Matters		108
13.11.	Delivery of Information		109
SECTION 14.	Miscellaneous		109
14.01.	Payment of Expenses, etc		109
14.02.	Right of Setoff		110
14.03.	Notices		111
14.04.	Benefit of Agreement; Assignments; Participations		111
14.05.	No Waiver; Remedies Cumulative		113
14.06.	Payments Pro Rata		114
14.07.	Calculations; Computations		114
14.08.	GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL		115
14.09.	Counterparts		116
14.10.	Effectiveness		116
14.11.	Headings Descriptive		117
14.12.	Amendment or Waiver; etc		117
14.13.	Survival		119
14.14.	Domicile of Loans		119
14.15.	Register		119
14.16.	Confidentiality		120
14.17.	Patriot Act		120
14.18.	OTHER LIENS ON COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC		121
14.19.	Interest Rate Limitation		121
14.20.	Regulation U		122
SECTION 15.	Holdings Guaranty		122
15.01.	Guaranty		122
15.02.	Bankruptcy		123
15.03.	Nature of Liability		123
15.04.	Independent Obligation		123
15.05.	Authorization		124
15.06.	Reliance		124
15.07.	Subordination		125
15.08.	Waiver		125
15.09.	Payments		127

 

 

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

 

W   I T N E S S E T H :

 

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

 

NOW, THEREFORE, IT IS AGREED:

 

SECTION 1.           Definitions and Accounting Terms .

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“ Adjusted Consolidated Working Capital ” shall mean, at any time, Consolidated Current Assets (but excluding therefrom all cash and Permitted Investments) less Consolidated

 

 

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

 

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

 

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

 

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

 

“ Aggregate R/C Exposure ” shall mean “Aggregate R/C Exposure” as defined in the First Lien Credit Agreement.

 

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

 

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

 

“ Asset Sale ” shall mean any sale, transfer or other disposition by Holdings or any of its Subsidiaries to any Person (including by way of redemption by such Person) other than to Holdings or a Wholly-Owned Subsidiary of Holdings of any asset (including, without limitation, any capital stock or other securities of, or Equity Interests in, another Person), but excluding (x) sales of assets pursuant to Section 11.03 (other than clauses (i), (ii), (iii)(1) and (2), (iv), (v), (vii)(A), (viii), (ix), (xi), (xiv) and (xv) thereof) and (y) any other sale, transfer or disposition (for

 

2

 

such purpose, treating any series of related sales, transfers or dispositions as a single such transaction) that generates Net Sale Proceeds of less than $10,000,000.

 

“ Assignment and Assumption Agreement ” shall mean an Assignment and Assumption Agreement substantially in the form of Exhibit K (appropriately completed).

 

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

 

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

 

“ B-1 Conversion Date ” shall mean the “B-1 Conversion Date” as defined in the First Lien Credit Agreement.

 

“ B-2 Blocked Amount ” shall mean, at any time, the lesser of the Total B-2 Term Loan Commitment (as defined in the First Lien Credit Agreement) and the Term Loan Blocked Amount, each as in effect at such time.

 

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

 

“ Blackout Period ” shall have the meaning provided in Section 10.15(e).

 

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

 

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

 

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

 

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

 

3

 

“ Borrowing ” shall mean the borrowing from all the Lenders having Commitments on a given date.

 

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

 

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

 

“ Bridge Loan Documents ” shall mean this Agreement, the Guaranty and Collateral Agreement, the Foreign Pledge Agreements, the Intercreditor Agreement (at any time while in effect in accordance with its terms) and, after the execution and delivery thereof pursuant to the terms of this Agreement, each Note and each other Security Document.

 

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

 

“ Cap Rate ” shall mean 12.5% per annum.  It is understood that total interest on the Loans may exceed the Cap Rate to the extent provided in Section 2.08(c).

 

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

 

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

 

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

 

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

 

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

 

4

 

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

 

“ Clearance Notice ” shall have the meaning provided in Section 10.15(e).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

5

 

 

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

 

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

 

“ Consolidated EBITDA ” shall mean, with reference to any period, Consolidated Net Income for such period plus, without duplication and to the extent deducted from revenues in determining such Consolidated Net Income, the sum of (a) the aggregate amount of Consolidated Interest Expense for such period, (b) the aggregate amount of expense for taxes paid or accrued for such period (including payments to Affiliated Cooperatives under the NOL Agreement), (c) all amounts attributable to depreciation and depletion for such period, (d) all amortization and other non-cash charges and (e) all customary up-front fees and expenses incurred in connection with any Acquisition, any Asset Sale, any issuance of Equity Interests by Holdings or any issuance or incurrence of Indebtedness by Holdings or its Subsidiaries and the amortization of any deferred financing charges, in each case for such period, minus the sum of (i) all non-cash gains included in Consolidated Net Income for such period and (ii) all amounts (except as expressly contemplated by clause (e) above) which constituted non-cash charges in prior periods (and which were or would have been deducted in determining Consolidated Net Income in a prior period) and which were actually paid in cash during the period for which Consolidated EBITDA is being determined, all calculated for the Holdings and its Subsidiaries on a consolidated basis. To the extent the net income of any Subsidiary is excluded from Consolidated Net Income in accordance with the proviso to the definition of Consolidated Net Income, then add-backs and deductions in determining Consolidated EBITDA, to the extent relating to such Subsidiary, shall be limited to the same extent.  Notwithstanding anything to the contrary contained above, if any Fiscal Quarter shown on Schedule 1.01D (which includes the Fiscal Quarter ended March 31, 2009 and each Fiscal Quarter ended thereafter through the Fiscal Quarter ended September 30, 2011) will be included in the respective Test Period for which Consolidated EBITDA is being determined, then there shall be added to Consolidated EBITDA for such period the respective amount set forth opposite such Fiscal Quarter in Schedule 1.01D (which amounts represent restructuring charges and anticipated future cost savings and synergies related to the Terra Acquisition which will not yet have been actually realized).

 

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

 

“ Consolidated Interest Expense ” shall mean, with reference to any period, accrued interest expense of Holdings and its Subsidiaries calculated on a consolidated basis for such period determined in accordance with GAAP excluding amortization of financing fees.  To the extent any Test Period includes (i) the Fiscal Quarter ended March 31, 2009, the Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be $75.8 million, (ii) the Fiscal

 

6

 

Quarter ended June 30, 2009, the Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be $75.8 million, (iii) the Fiscal Quarter ended September 30, 2009, the Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be $75.8 million, (iv) the Fiscal Quarter ended December 31, 2009, the Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be $75.8 million, (v) the Fiscal Quarter ended March 31, 2010, the Consolidated Interest Expense for such Fiscal Quarter shall be deemed to be $81.7 million and (vi) the period commencing on April 1, 2010 and ended on the Merger Closing Date, Consolidated Interest Expense for such portion of such Fiscal Quarter occurring prior to the Merger Closing Date shall be deemed to be (x) $82.4 million, multiplied by (y) a fraction the numerator of which is the number of days in such Test Period occurring on or after April 1, 2010 and prior to the Merger Closing Date and the denominator of which is 90; provided that if on or prior to September 30, 2010 the Borrower repays outstanding Indebtedness in aggregate principal amount of at least $500,000,000 with Net Cash Proceeds (for their purpose, ignoring the proviso to the definition of Net Cash Proceeds) from one or more issuances of Equity Interests (other than Disqualified Equity Interests) of Holdings and/or proceeds of Permitted Refinancing Indebtedness, then for purposes of all calculations to be made on or after September 30, 2010 (or, in the case of calculations required to be made before that date on a Pro Forma Basis, giving effect to the issuances which have actually been made through the date of determination), Consolidated Interest Expense for all portions of any Test Period occurring prior to September 30, 2010 (or, if earlier, the last date prior to September 30, 2010 upon which Indebtedness has been repaid with proceeds of issuances of Equity Interests or Permitted Refinancing Indebtedness as described above) shall be determined by using a revised annualized Consolidated Interest Expense amount (as determined by the Borrower with the agreement of the Administrative Agent), which shall give pro forma effect to all incurrences and repayments of Indebtedness on or prior to September 30, 2010 (or on or prior to the date of determination in the case of determinations before such date being made on a Pro Forma Basis) and shall be based upon the weighted average interest rates applicable to the Indebtedness which remains outstanding (including newly incurred Indebtedness), with such annualized amount multiplied in each case by a fraction the numerator of which is the number of days in the respective Test Period occurring prior to the Qualified Equity Trigger Date and the denominator of which is 365.

 

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

 

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

 

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

 

“ Credit Event ” shall mean the making of any Initial Loan.

 

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

 

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

 

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

 

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

 

“ Demand Failure Date ” shall have the meaning provided in Section 10.14.

 

“ Demand Notice ” shall have the meaning provided in Section 10.14.

 

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

 

“ Description of Exchange Notes ” shall mean the description of the terms and conditions of the proposed Exchange Notes due 2017 of the Borrower, substantially in the form of Schedule 1.01E .

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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insurance or Indebtedness, (3) payments of First Lien Loans and/or other obligations under the First Lien Credit Documents, provided that repayments of First Lien Loans shall be deducted in determining Excess Cash Flow to the extent such repayments were (x) required as a result of scheduled mandatory repayments or (y) made as a voluntary prepayment with internally generated funds (but in the case of a voluntary prepayment of revolving loans or swingline loans, only to the extent accompanied by a voluntary reduction of the related revolving loan commitments in an amount equal to such prepayment) and (4) repayments of Indebtedness incurred or at any time outstanding pursuant to Section 11.01(ii) or any Permitted Refinancing Indebtedness incurred in respect thereof (or in respect of previously incurred Permitted Refinancing Indebtedness to the extent such Indebtedness (or a previous refinancing) constituted a refinancing of Indebtedness pursuant to said Section 11.01(ii))) and (iii) the increase, if any, in Adjusted Consolidated Working Capital from the first day to the last day of such period.

 

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

 

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

 

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

 

“ Exchange ” shall mean any exchange of Loans for a like principal of amount of Exchange Notes, it being understood and agreed that (i) the first Exchange may not occur sooner than the Initial Maturity Date (although notice thereof may be provided beforehand as contemplated by Section 10.15(a)) and shall only occur if Extended Loans are made on such date (or would be made on such date if the Exchange did not occur concurrently therewith), (ii) each Exchange shall be made on the basis that Exchange Notes in principal amount equal to the principal of Loans being exchanged shall be issued to the respective exchanging Lenders and (iii) each Exchange shall be made with the concurrent payment, in cash, of all accrued and unpaid interest, and all fees and other expenses, then owing (whether or not same would otherwise be then payable under this Agreement) to such Lender with respect to its Loans being Exchanged at such time.

 

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

 

“ Exchange Notes ” shall mean the securities issued under the Exchange Note Indenture received in Exchange for Loans.

 

“ Exchange Notes Indenture ” shall mean the indenture to be entered into relating to the Exchange Notes, having terms and conditions substantially as set forth in the Description of Exchange Notes (with such changes to cure any ambiguity, omission, defect or inconsistency and such changes with respect to the trustee provisions as may be reasonably be requested by the person appointed to act as trustee thereunder as the Lead Arranger and the Borrower shall approve), as the same may be amended, modified, or supplemented. !

 

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

 

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

 

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

 

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and its subsidiaries, taken as a whole, are materially disproportionately affected thereby as compared with other participants in the industries in which the Target and its subsidiaries operate (in which case the incremental disproportionate impact or impacts may be deemed either alone or in combination to constitute, or be taken into account in determining whether there has been, or is reasonably likely to be, an Exchange Offer Funding Date Material Adverse Effect).

 

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

 

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

 

“ Excluded Subsidiary ” shall mean each of Terra Nitrogen, CFL, TNCLP and Terra Nitrogen GP Inc. and each of their respective subsidiaries; provided that the Borrower may at any time designate any Excluded Subsidiary as no longer being an Excluded Subsidiary so long as no Default or Event of Default exists after giving effect to such designation, in which case (x) such Person shall thereafter constitute a Subsidiary (and not an Excluded Subsidiary) for all purposes of this Agreement and the other Credit Documents, (y) all Equity Interests in such Person shall be pledged pursuant to the Guaranty and Collateral Agreement (to the extent required for Equity Interests of a Subsidiary which is not an Excluded Subsidiary) and (z) such Person, if a Wholly-Owned Domestic Subsidiary shall be required to take all actions required under Section 10.10 which are required of a Wholly-Owned Domestic Subsidiary which is not an Excluded Subsidiary, an Inactive Subsidiary or an Agreed Non-Guarantor Subsidiary (in each case within the time periods specified therein).

 

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

 

“ Existing Letters of Credit ” shall mean “Existing Letters of Credit” as defined in the First Lien Credit Agreement.

 

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

 

“ Extended Notes ” shall have the meaning provided in Section 2.05(a).

 

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

 

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

 

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“ Final Maturity Date ” shall mean April 5, 2017.

 

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

 

“ First Lien Agent ” shall mean Morgan Stanley Senior Funding, Inc., as administrative agent or collateral agent, as the case may be, under the First Lien Credit Agreement or any other First Lien Credit Document, and any successor agent or agents in such capacities.

 

“ First Lien Basis ” shall mean the securing of First Lien Indebtedness on a first priority basis in accordance with the terms of the Intercreditor Agreement.

 

“ First Lien Collateral ” shall mean all property (whether real or personal) with respect to which any security interest has been granted (or reported to be granted) to secure First Lien Indebtedness, including, without limitation, all Collateral under, and as defined in, the First Lien Credit Agreement.  All First Lien Collateral has also constitute Collateral hereunder, except as otherwise expressly permitted in accordance with Section 10.15 hereof.

 

“ First Lien Credit Agreement ” shall mean the Credit Agreement, dated as of the date hereof, by and among Holdings, the Borrower, the lenders from time to time party thereto and the First Lien Agent, as it may be amended, supplemented or modified, from time to time in accordance with the terms hereof and thereof.

 

“ First Lien Credit Agreement Security Documents ” shall mean all Security Documents under and as defined in the First Lien Credit Agreement.

 

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

 

“ First Lien Indebtedness ” shall mean and include (w) any Indebtedness incurred pursuant to Section 11.01(i)(A) if incurred under the First Lien Credit Agreement or otherwise pursuant to an agreement which is secured by the First Lien Collateral on a pari passu basis with other First Lien Indebtedness and has become subject to the Intercreditor Agreement by way of joinder thereto, (x) all Indebtedness and other obligations pursuant to the First Lien Credit Agreement in accordance with Section 11.01(i)(B), (y) any Interest Rate Protection Agreements, Other Hedging Agreements or Cash Management Agreements secured in accordance with the terms of the First Lien Credit Documents and (z) any Permitted Refinancing Indebtedness secured by First Lien Collateral on a First Priority Basis and incurred in respect of Indebtedness described in preceding clause (x), or which refinanced any Permitted Refinancing Indebtedness constituting First Lien Indebtedness originally incurred as described in this clause (z) or a subsequent refinancing thereof with Permitted Refinancing Indebtedness.

 

“ First Lien Lead Arrangers ” shall mean, collectively, Morgan Stanley Senior Funding, Inc. and The Bank of Tokyo-Mitsubishi UFJ, Ltd, in their capacities as Joint Lead Arrangers and Bookrunners pursuant to the First Lien Credit Agreement.

 

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“ First Lien Loans ” shall mean the “Loans” under, and as defined in, the First Lien Credit Agreement.

 

“ First Lien Secured Creditors ” shall mean the “Secured Creditors” as defined in the First Lien Credit Agreement or any equivalent term used to describe secured parties thereunder.

 

“ First Lien Term Loans ” shall mean all “Term Loans” under, and as defined in, the First Lien Credit Agreement.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“ Guarantee ” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary

 

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obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.  The amount of any Guarantee obligation of any guarantor shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee obligation is made and (ii) the maximum amount for which such guarantor may be liable pursuant to the terms of the instrument embodying such Guarantee obligation, unless such primary obligation and the maximum amount or which such guarantor may be liable are not stated or determinable, in which case the amount of such Guarantee obligation shall be such guarantor’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

 

“ Guaranteed Creditors ” shall mean and include each of the Administrative Agent, the Collateral Agent and the Lenders.

 

“ Guaranteed Obligations ” shall mean the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of the principal and interest on each Note issued by, and all Loans made to, the Borrower under this Agreement, together with all the other obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due), indebtedness and liabilities (including, without limitation, indemnities, fees and interest (including any interest accruing after the commencement of any bankruptcy, insolvency, receivership or similar proceeding at the rate provided for herein, whether or not such interest is an allowed claim in any such proceeding) thereon) of the Borrower and each other Credit Party to the Lenders, the Administrative Agent and the Collateral Agent now existing or hereafter incurred under, arising out of or in connection with this Agreement (or referred to in Section 4.01 hereof) and each other Bridge Loan Document to which the Borrower or such Credit Party is a party and the due performance and compliance by the Borrower with all the terms, conditions and agreements contained in the Bridge Loan Agreement and in each such other Bridge Loan Document.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“ Indebtedness ” shall mean, of any Person, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind (other than deposits or advances in the ordinary course of business), (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) the principal portion of all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) obligations under any liquidated earn-out, (l) obligations of such Person to purchase securities or other property arising out of or in connection with the sale of the same securities or property or any other Off-Balance Sheet Liability and (m) the

 

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aggregate liquidation preference of all Disqualified Equity Interests of such Person.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.  In the avoidance of doubt, “Indebtedness” shall not include obligations or liabilities under operating leases.

 

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

 

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

 

“ Initial Borrowing Date ” shall mean the date occurring on or after the Effective Date on which the initial Borrowing of Initial Loans occurs.

 

“ Initial Loan ” shall have the meaning provided in Section 2.01(a).

 

“ Initial Maturity Date ” shall mean April 5, 2011; provided that if the Merger Closing Date does not occur on or prior to October 15, 2010, the Initial Maturity Date shall be October 15, 2010.

 

“ Initial Notes ” shall have the meaning provided in Section 2.05(a).

 

“ Intercreditor Agreement ” shall mean an intercreditor agreement in the form of Exhibit I as entered into on or prior to the Initial Borrowing Date pursuant to Section 6.17, as same may be amended, modified, restated and/or supplemented from time to time.

 

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

 

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

 

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

 

“ Interest Period ” shall mean the period beginning on the Initial Borrowing Date and ended on the last day of the first Fiscal Quarter ended thereafter, and each subsequent period beginning on the last day of a Fiscal Quarter and ended on the last day of the next fixed Fiscal Quarter.

 

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

 

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

 

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

 

“ Lead Arranger ” shall mean Morgan Stanley Senior Funding, Inc., in its capacity as Lead Arranger and Bookrunner, and any successor thereto.

 

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

 

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

 

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

 

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

 

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

 

“ Lender Default ” shall mean, as to any Lender, (i) the wrongful refusal (which has not been retracted) of such Lender or the wrongful failure of such Lender to make available its portion of any Borrowing (ii) such Lender having been deemed insolvent or having become the subject of a bankruptcy or insolvency proceeding or a takeover by a regulatory authority, or (iii) such Lender having notified the Administrative Agent and/or any Credit Party in writing (x) that it does not intend to comply with its obligations under Section 2.01(a) in circumstances where such non-compliance would constitute a breach of such Lender’s obligations under such Section or (y) of the events described in preceding clause (ii).

 

“ LIBO Rate ” means, with respect to any Loan for any Interest Period, the greater at any time of (a) (x) the rate per annum appearing on Page BBAM 1 on the Bloomberg Service (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity of three months or (y) if the rate referred to in clause (x) is not available at such time for any reason, then the rate at which dollar deposits of $5,000,000 with a maturity of three months are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days before the beginning of such Interest Period and (b) 2.00% per annum.

 

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

 

“ Loan ” shall mean each Initial Loan and each Extended Loan.

 

“ Loan Proportionate Amount ” shall mean, with respect to any Net Cash Proceeds, a percentage of such Net Cash Proceeds equal to a fraction the numerator of which is the aggregate principal amount of Loans then outstanding and the denominator of which is the aggregate principal amount of all Second Lien Indebtedness then outstanding (including the Loans)  which requires a repayment (or offer to repay) same with such Net Cash Proceeds.

 

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

 

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

 

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

 

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

 

“ Maturity Date ” shall mean the Initial Maturity Date or the Final Maturity Date, as the case may be.

 

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

 

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

 

“ Merger Agreement ” shall mean that certain Agreement and Plan of Merger, dated as of March 12, 2010, by and between Holdings, Mergersub and Target, as amended, waived or otherwise modified from time to time but without any modifications, waivers or amendments thereof or any consents thereunder that are materially adverse to the Lenders (including, without limitation, any of the foregoing that results in an increase in the aggregate

 

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consideration (except for any increase to the extent consisting solely of additional shares of common stock of Holdings) or the allowance of any additional permitted dividends) unless consented to by the Lead Arranger.

 

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

 

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

 

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

 

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

 

“ Minimum Borrowing Amount ” shall mean for Initial Loans, $5,000,000 (or, if less, the remaining Total Commitment).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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“ Net Cash Proceeds ” means, if in connection with (a) an Asset Sale, the Net Sale Proceeds therefrom, (b) a Recovery Event, the cash proceeds received net of (without duplication) (i) reasonable costs, fees and expenses incurred and payable by Holdings or its respective Subsidiary in connection therewith (in each case, paid to non-Affiliates), (ii) the principal amount of Indebtedness under the First Lien Credit Agreement or any other Indebtedness (other than any Second Lien Indebtedness) that is secured by a senior Lien on such asset, in each case to the extent that such Indebtedness is required to be (and is) repaid in connection with such Recovery Event, (iii) federal, state, provincial, foreign and local Taxes and other Taxes paid or reasonably estimated to be payable in connection with such Recovery Event or (c) an equity issuance or the issuance or incurrence of Indebtedness, cash proceeds received net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees, costs, commissions, premiums, fees and expenses incurred in connection therewith (in each case, paid to non-Affiliates).

 

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

 

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

 

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

 

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

 

“ Non-Defaulting Lender ” shall mean and include each Lender other than a Defaulting Lender.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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“ Other Lender ” shall have the meaning provided in Section 10.15(a).

 

“ Other Lender Notice ” shall have the meaning provided in Section 10.15(a).

 

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

 

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

 

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

 

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

 

“ Permitted Encumbrances ” means:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(k)           Liens granted pursuant to any First Lien Credit Document or in respect of Permitted Refinancing Indebtedness incurred in respect thereof (or in respect of a previous issue of such Permitted Refinancing Indebtedness) (all of which shall be subject to the terms and conditions of the Intercreditor Agreement).

 

“ Permitted Investments ” means:

 

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

 

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

 

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

 

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

 

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

 

(f)       marketable general obligations of a state or municipality of the United States or a province or municipality of Canada, or any political subdivision of any of the foregoing, unconditionally secured by the full faith and credit of such state, municipality,

 

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province or political subdivision and marketable corporate debt securities having an A credit rating or better by S&P or Moody’s Investors Service or, in the case of such obligations of a province or a political subdivision of Canada, an equivalent rating from Dominion Bond Rating Service; and

 

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

 

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

 

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

 

“ Permitted Refinancing Indebtedness ” shall mean, with respect to Holdings, the Borrower or any of their respective Subsidiaries, any refinancing, replacement, refunding, renewal or extension of any Indebtedness, in whole or in part, of such Person from time to time; provided that (a) the principal amount (or accreted value, if applicable) thereof does not, or in the case of any revolving facility, the commitments thereunder do not, exceed the principal amount (or accreted value, if applicable) or in the case of any revolving facility, the commitments thereunder (so long as such commitments could have been fully drawn with no violation of this Agreement), of the Indebtedness so modified, refinanced, replaced, refunded, renewed or extended (the “ Refinanced Debt ”) except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, replacement, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder (so long as such commitments could have been fully drawn with no violation of this Agreement), (b) the Indebtedness resulting from such refinancing, replacement, refunding, renewal or extension (the “ Refinancing Debt ”) has a final maturity date the same as or later than the final maturity date of, and, other than in the case of a revolving facility, has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Refinanced Debt, (c) to the extent such Refinanced Debt is subordinated in right of payment to the Obligations, such Refinancing Debt is subordinated in right of payment to the Obligations on terms, when taken as a whole, in all material respects at least as favorable to the Lenders as those contained in the documentation governing the Refinanced Debt, (d) if the Refinanced Debt is secured, the Refinancing Debt shall be unsecured or secured only by assets (including the same after-acquired assets) that secured (or are required to secure) such Refinanced Debt; provided that (x) if the Refinanced Debt consists of Indebtedness described in Section 11.01(i)(B) or 11.01(ii) or Refinancing Debt previously incurred in respect thereof (or in respect of any Refinancing Debt which has successively refinanced Indebtedness originally incurred under Section 11.01(i)(B) or 11.01(ii)), such Refinancing Debt may be secured by the First Lien Collateral (but only if the Refinanced Debt was so secured) on a First Lien Basis (if the Refinanced Debt was so secured) or by the Collateral on a Second Lien Basis (if the Refinanced Debt was secured on either a First Lien Basis or Second Lien Basis), and in each such case the respective Refinancing Debt must be subject to the terms of the Intercreditor Agreement (whether as First Lien Indebtedness or Second Lien Indebtedness) pursuant to arrangements (including a joinder agreement) reasonably satisfactory to the Administrative  Agent and may be secured by (and only by) any First Lien

 

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Collateral or Collateral, as the case may be, on the terms provided in the Intercreditor Agreement and (y) if the Refinanced Debt consists of Indebtedness described in Section 11.01(ii) or Refinancing Debt previously incurred in respect thereof (or in respect of any Refinancing Debt which has successively refinanced Indebtedness originally incurred under Section 11.01(ii)) and is to be secured, such Refinancing Debt may be secured by the Collateral (but only if the Refinanced Debt was so secured) on a Second Lien Basis (if the Refinanced Debt was secured on a Second Lien Basis) and in each case the respective Refinancing Debt must be subject to the terms of the Intercreditor Agreement pursuant to arrangements (including a joinder agreement) reasonably satisfactory to the Administrative Agent and may be secured by (and only by) any Collateral which also secures the Obligations on the terms provided for Second Lien Indebtedness in the Intercreditor Agreement, (f) the terms and conditions (including, if applicable, as to collateral, covenants and events of default but excluding as to interest rate, redemption premium, and other pricing provisions) of any such Refinancing Debt, taken as a whole, are not materially less favorable to the Credit Parties or the Lenders than the terms and conditions of the Refinanced Debt and (g) neither the direct obligors nor the guarantors of any Permitted Refinancing Indebtedness may be different (except in each case if less extensive; provided that after-acquired or created Subsidiaries, and Subsidiaries that cease to qualify for exceptions contained in such Refinanced Debt that entitled such Subsidiaries to not become guarantors thereunder, may be required to become guarantors on substantially the same terms as applied to the respective Refinanced Debt) than those which apply to the relevant Refinanced Debt.

 

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

 

“ Permitted Second Lien Notes ” shall mean secured Indebtedness incurred by the Borrower or Holdings and issued under an indenture or similar governing instrument in a registered public offering or a Rule 144A or other private placement transaction or other transaction not subject to registration under the Securities Act in the form of one or more series of second lien secured notes; provided that (i) such Indebtedness may only be secured by Collateral on a Second Lien Basis, and shall not be secured by any property or assets of Holdings, the Borrower or any of their respective Subsidiaries other than the Collateral; (ii) such Indebtedness does not mature or have scheduled amortization or other required payments of principal prior to the Final Maturity Date, (iii) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (iv) such Indebtedness is not guaranteed by any Person other than the Credit Parties, (v) such Indebtedness and the indenture or other governing instrument applicable thereto does not contain covenants, events of default, or other terms and conditions that, when taken as a whole, are materially more restrictive to the Credit Parties than the terms of this Agreement (it being understood that the limitations on indebtedness covenant contained therein may take into account permanent repayments of Indebtedness which have occurred after the Effective Date), and (vi) the holders of such Indebtedness pursuant to the

 

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indenture or other instrument governing such Indebtedness (or a trustee, agent or other representative on their behalf) shall have become party to the Intercreditor Agreement.

 

“ Permitted Unsecured Notes ” shall mean senior unsecured or unsecured subordinated Indebtedness incurred by the Borrower or Holdings and issued under an indenture or similar governing instrument in a registered public offering or a Rule 144A or other private placement transaction or other transaction not subject to registration under the Securities Act in the form of one or more series of senior unsecured or unsecured subordinated notes; provided that (i) such Indebtedness does not mature or have scheduled amortization or other required payments of principal prior to the date that is one year after the Final Maturity Date, (ii) such Indebtedness is not guaranteed by any Person other than the Credit Parties, (iii) such Indebtedness and the indenture or other governing instrument applicable thereto does not contain covenants, events of default, or other terms and conditions that, when taken as a whole, are materially more restrictive to the Credit Parties than the terms of this Agreement (it being understood that the limitations on indebtedness covenant contained therein may take into account permanent repayments of Indebtedness which have occurred after the Effective Date) and (iv) such Indebtedness is not secured by any Lien on any property or assets of Holdings, the Borrower or any of their respective Subsidiaries.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“ Registration Rights Agreement ” shall have the meaning provided in Section 10.15(c).

 

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

 

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

 

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

 

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

 

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

 

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

 

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“ Requesting Bridge Lenders ” at any time shall mean Lenders holding at least $50,000,000 aggregate principal amount of Initial Loans or Extended Loans.

 

“ Requesting Bridge Lenders Exchange Request ” shall have the meaning provided in Section 10.15(a).

 

“ Required Lenders ” shall mean, at any time, Non-Defaulting Lenders the sum of whose outstanding Commitments at such time and outstanding principal of Loans at such time represents at least a majority of the sum of all outstanding Loans and Commitments of Non-Defaulting Lenders.

 

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

 

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

 

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

 

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

 

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

 

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

 

“ Second Lien Basis ” shall mean the securing of Second Lien Indebtedness on a junior and subordinated basis to the securing of First Lien Indebtedness, in accordance with the terms of the Intercreditor Agreement.

 

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“ Second Lien Indebtedness ” shall mean and include (x) the Loans and (y) any Permitted Refinancing Indebtedness secured by Collateral on a Second Lien Basis and incurred in respect of Indebtedness described in preceding clause (x) (or in respect of a previous issue of Permitted Refinancing Indebtedness originally incurred in respect thereof), in each case so long as the respective Indebtedness is provided to be secured on a Second Lien Basis.

 

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

 

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

 

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

 

“ Secured Obligations ” shall mean all Obligations and all other Secured Obligations under, and as defined in, the Security Documents.

 

“ Securities ” shall have the meaning provided in Section 10.14.

 

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

 

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

 

“ Securities Offering ” shall have the meaning provided in Section 10.14.

 

“ Security Document ” shall mean and include each of the Guaranty and Collateral Agreement, the Foreign Pledge Agreements (if any), each Mortgage and, after the execution and delivery thereof, each Additional Security Document and any other documents granting a Lien upon the assets or property of a Credit Party as security for payment of the Obligations.

 

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

 

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

 

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

 

“ Spread ” shall mean 8.00%; provided that if the Loans are not repaid in full within 30 days following the Initial Borrowing Date, the Spread otherwise in effect will increase by 1.00% on the first day of the immediately succeeding 30 day period and shall thereafter increase by an additional 1.00% at the beginning of each 30 day period thereafter.

 

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

 

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

 

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

 

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

 

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

 

“ Suspension Notice ” shall have the meaning provided in Section 10.15(e).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“ Term Loan ” shall mean the “Term Loan” as defined in the First Lien Credit Agreement.

 

“ Term Loan Blocked Amount ” shall mean, at any time of determination, the lesser of (x) the Blocked Amount at such time and (y) the  total unfunded Term Loan Commitments (as defined in the First Lien Credit Agreement) less $100,000,000.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“ Total Yield Cap ” means, as at any date of a Securities Offering pursuant to a Demand Notice, a rate equal to the sum of (x) 12.50% plus (y) the number of basis points per annum, if any, but not to exceed 100 basis points, by which the all-in yield to worst implied by the opening bid level of the Merrill Lynch US High Yield Master II Index (or its on-the-run successor) has increased between March 10, 2010 and the respective date of the consummation of a Securities Offering pursuant to a Demand Notice (for purposes of determining such implied spread, using the OID equivalent applicable to such index (or its successor) to equate to an interest rate spread in a manner satisfactory to the Lead Arranger), plus (z) 100 basis points if Holdings shall not have received a corporate rating of at least BB- from S&P and a corporate family rating of at least Ba3 from Moody’s, in each case with at least stable outlook.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(b)                  As used herein and in the other Bridge Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms not defined in Section 1.01 shall have the respective meanings given to them under GAAP, (ii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word “incur” shall be construed to mean incur, create, issue, assume or become liable in respect of (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) unless the context otherwise requires, the words “asset” and

 

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“property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Equity Interests, securities, revenues, accounts, leasehold interests and contract rights, (v) the word “will” shall be construed to have the same meaning and effect as the word “shall”, and (vi) unless the context otherwise requires, any reference herein (A) to any Person shall be construed to include such Person’s successors and assigns and (B) to Holdings, the Borrower or any other Credit Party shall be construed to include Holdings, the Borrower or such Credit Party as debtor and debtor-in-possession and any receiver or trustee for Holdings, the Borrower or any other Credit Party, as the case may be, in any insolvency or liquidation proceeding.

 

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

 

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

 

SECTION 2.                                 Amount and Terms of Credit .

 

2.01.                        The Commitments .  (a)  Subject to and upon the terms and conditions set forth herein, each Lender with a Commitment severally agrees to make, at par and any time and from time to time on or after the Initial Borrowing Date and on or prior to the Merger Closing Date, a loan or loans (each, an “ Initial Loan ” and, collectively, the “ Initial Loans ”) to the Borrower, which Initial Loans (i) shall be denominated in Dollars and (ii) shall not be incurred on any date occurring prior to the Merger Closing Date if, after giving effect to the making of the respective Initial Loans and the related reductions to the Total Commitment pursuant to Section 4.03(b)(x), the Bridge Loan Blocked Amount would exceed the then remaining Total Commitment.

 

(b)                  Each Lender agrees that, if the Initial Loans have not been repaid in full prior to the Initial Maturity Date, on such Initial Maturity Date the then outstanding principal amount of each of its Initial Loans shall be automatically converted into an extended loan to the Borrower (each, an “ Extended Loan ” and, collectively, the “ Extended Loans ”) in an aggregate principal amount equal to the then outstanding principal amount of such Initial Loan or Initial Loans; provided that the extension as contemplated in this clause (b) shall not occur and all Initial Loans shall be required to be paid in full on the Initial Maturity Date, if (i) there then exists any Default or Event of Default under Section 12(h) or 12(i), (ii) there exists at such time any Event of Default hereunder or the maturity of the Initial Loans has theretofore been accelerated as a result of the occurrence of one or more Events of Default or (iii) the Merger Closing Date did not occur on or prior to October 15, 2010.  It is understood and agreed that Loans may also, at the option of the Lenders as provided in Section 10.15, be required to be Exchanged for Exchange Notes in accordance with the requirements of Section 10.15.  All Extended Loans and Exchange Notes shall be denominated in Dollars.

 

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(c)                   Once repaid, Loans incurred hereunder may not be reborrowed.

 

2.02.                        Minimum Amount of Each Borrowing .  The aggregate principal amount of each Borrowing of Loans shall not be less than the Minimum Borrowing Amount.  More than one Borrowing may occur on the same date, but at no time shall there be outstanding more than 10 Borrowings.

 

2.03.                        Notice of Borrowing .  (a)  Whenever the Borrower desires to incur Initial Loans hereunder, the Borrower shall give the Administrative Agent at the Notice Office at least three Business Days’ (or, in the case of the Initial Borrowing Date, same Business Day’s) prior notice of each Initial Loan to be incurred hereunder, provided that any such notice shall be deemed to have been given on a certain day only if given before 11:00 A.M. (New York City time) on such day.  Each such notice (each, a “ Notice of Borrowing ”), except as otherwise expressly provided in Section 2.10, shall be irrevocable and shall be in writing, or by telephone promptly confirmed in writing, in the form of Exhibit A or another form acceptable to the Administrative Agent, appropriately completed to specify:  (i) the aggregate principal amount of the Initial Loans to be incurred pursuant to such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), and (iii) in the case of a Borrowing of Initial Loans prior to the Merger Closing Date, detailed calculations of the Blocked Amount (with a breakdown to show the B-1 Blocked Amount, the B-2 Blocked Amount and the Term Loan Blocked Amount).  The Administrative Agent shall promptly give each Lender notice of such proposed Borrowing, of such Lender’s proportionate share thereof and of the other matters required by the immediately preceding sentence to be specified in the Notice of Borrowing.

 

(b)                  [Intentionally Omitted].

 

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

 

2.04.                        Disbursement of Funds .  No later than 12:00 P.M.  (New York City time) on the date specified in each Notice of Borrowing (or, in the case of the Initial Borrowing Date as permitted pursuant to Section 2.03, no later than 4:00 P.M. (New York City time)), each Lender with a Commitment will make available its pro rata portion (determined in accordance with Section 2.07) of each such Borrowing requested to be made on such date.  All such amounts will be made available in Dollars and in immediately available funds at the Payment Office, and the Administrative Agent will make available to the Borrower at the Payment Office, or to such other account as the Borrower may specify in writing prior to the date of such Borrowing, the aggregate of the amounts so made available by the Lenders.  Unless the Administrative Agent shall have been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make available to the Administrative Agent such Lender’s portion of any Borrowing to be made on such date, the Administrative Agent may assume that such Lender has made such

 

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amount available to the Administrative Agent on such date of Borrowing and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower a corresponding amount.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall pay on demand such corresponding amount to the Administrative Agent.  The Administrative Agent also shall be entitled to recover on demand from such Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower until the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if recovered from such Lender, the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to such Loans for each day thereafter and (ii) if recovered from the Borrower, the rate of interest applicable to the respective Borrowing, as determined pursuant to Section 2.08. Nothing in this Section 2.04 shall be deemed to relieve any Lender from its obligation to make Loans hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any failure by such Lender to make Loans hereunder.

 

2.05.                        Notes .  (a)  The Borrower’s obligation to pay the principal of, and interest on, the Loans made by each Lender shall be evidenced in the Register maintained by the Administrative Agent pursuant to Section 14.15 and shall, if requested by such Lender, also be evidenced by a promissory note duly executed and delivered by the Borrower.  To the extent requested by any Lender, the Borrower shall execute and deliver to such Lender an Initial Note dated the Initial Borrowing Date, substantially in the form of Exhibit B-1 hereto to evidence the Initial Loans made by such Lender to Borrower and with appropriate insertions (the “ Initial Notes ”).  Unless converted to an Exchange Note or if the conditions to extension specified in Section 2.01(b) were not satisfied on the Initial Maturity Date (in which case the Initial Notes shall mature and be payable in cash on such date) and to the extent requested by any Lender, the Borrower shall execute and deliver to such Lender an Extended Note dated the Initial Maturity Date substantially in the form of Exhibit B-2 hereto to evidence the Extended Loan made on such date, in the principal amount of the Initial Notes of Borrower held by such Lender on such date and with other appropriate insertions (collectively, the “ Extended Notes ” and, together with the Initial Notes, the “ Notes ”).

 

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

 

(c)                   Notwithstanding anything to the contrary contained above in this Section 2.05 or elsewhere in this Agreement, Notes shall only be delivered to Lenders which at any time specifically request the delivery of such Notes.  No failure of any Lender to request or obtain a Note evidencing its Loans to the Borrower shall affect or in any manner impair the obligations of the Borrower to pay the Loans (and all related Obligations) incurred by the Borrower which would otherwise be evidenced thereby in accordance with the requirements of this Agreement,

 

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and shall not in any way affect the security or guaranties therefor provided pursuant to the various Bridge Loan Documents.  Any Lender which does not have a Note evidencing its outstanding Loans shall in no event be required to make the notations otherwise described in preceding clause (b).  At any time when any Lender requests the delivery of a Note to evidence any of its Loans, the Borrower shall promptly execute and deliver to the respective Lender the requested Note in the appropriate amount or amounts to evidence such Loans.

 

2.06.                        [Intentionally Omitted].

 

2.07.                        Pro Rata Borrowings .  All Borrowings of Initial Loans under this Agreement shall be incurred from the Lenders pro rata on the basis of their Commitments.  It is understood that no Lender shall be responsible for any default by any other Lender of its obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.

 

2.08.                        Interest .  (a)  [Intentionally Omitted].

 

(b)                  The Borrower agrees to pay interest (x) in respect of the unpaid principal amount of each Initial Loan from the date of Borrowing thereof until the maturity thereof (whether by acceleration or otherwise) at a rate per annum which shall, during each Interest Period, be equal to the sum of the relevant Spread as in effect from time to time during such Interest Period plus the Eurodollar Rate for such Interest Period; provided that the per annum interest rate on the Initial Loans shall not exceed the Cap Rate; and (y) in respect of the unpaid principal amount of each Extended Loan from the Initial Maturity Date until the maturity thereof (whether by acceleration or otherwise) at a rate per annum which shall be equal to the Cap Rate.

 

(c)                   Overdue principal and, to the extent permitted by law, overdue interest in respect of each Loan shall, in each case, bear interest at a rate per annum equal to the rate which is 2% in excess of the rate otherwise then applicable to such Loan and all other overdue amounts payable hereunder.  Without limiting the foregoing, if any Initial Loans remain outstanding after the Initial Maturity Date (i.e., if one or more of the conditions to conversion into Extended Loans set forth in Section 2.01(b) are not satisfied), same will at all times thereafter accrue interest at the rate described in the immediately preceding sentence.  Interest that accrues under this Section 2.08(c) shall be payable on demand.

 

(d)                  Accrued (and theretofore unpaid) interest shall be payable, in respect of each Loan, (w) quarterly in arrears on each Quarterly Payment Date, (x) in arrears on the Initial Maturity Date, (y) on the date of any repayment or prepayment of principal of any Loans (on the amount repaid or prepaid) and (z) at maturity (whether by acceleration or otherwise) and, after such maturity, on demand.

 

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

 

2.09.                        [Intentionally Omitted].

 

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

 

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

 

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

 

then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the Borrower and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders).  Thereafter, until the Administrative Agent notifies the Borrower that the circumstances giving rise to such notice no longer exist, the affected Borrowing shall bear interest at such rate per annum determined in accordance with Section 2.08, except that, for each affected Lender, its cost of funds (as determined by it) shall be used in lieu of the Eurodollar Rate as a component of determining the applicable interest rate.

 

(b)                  Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.10 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 180-days prior to the date that such Lender notifies the Borrower of the circumstances giving rise to such increased costs or

 

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reductions and of such Lender’s intention to claim compensation therefor; provided further that if the circumstances giving rise to such increased costs or reductions are retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

 

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

 

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

 

2.13.                        Replacement of Lenders .  (x)  If any Lender becomes a Defaulting Lender, (y) upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c) or Section 5.04 with respect to any Lender which results in such Lender charging to the Borrower increased costs or other compensation in excess of those being generally charged by the other Lenders or (z) in the case of a refusal by a Lender to consent to a proposed change, waiver, discharge or termination with respect to this Agreement which has been approved by the Required Lenders as (and to the extent) provided in Section 14.12(b), the Borrower shall have the right, in accordance with Section 14.04(b), if no Default or Event of Default then exists or would exist after giving effect to such replacement, to replace such Lender (the “ Replaced Lender ”) with one or more other Eligible Transferees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the “ Replacement Lender ”) and each of which shall be reasonably acceptable to the Administrative Agent; provided that:

 

(a)                   at the time of any replacement pursuant to this Section 2.13, the Replacement Lender shall enter into one or more Assignment and Assumption Agreements pursuant to Section 14.04(b) (and with all fees payable pursuant to said Section 14.04(b) to be

 

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paid by the Replacement Lender and/or the Borrower (as may be agreed to at such time by and among the Borrower and the Replacement Lender)) pursuant to which the Replacement Lender shall acquire all of the Commitments and outstanding Loans of the Replaced Lender, and in connection therewith, shall pay to  the Replaced Lender in respect thereof an amount equal to the sum of an amount equal to the principal of, and all accrued interest on, all outstanding Loans of such Replaced Lender; and

 

(b)                  all obligations of the Borrower then owing to the Replaced Lender (other than those specifically described in clause (a) above in respect of which the assignment purchase price has been, or is concurrently being, paid, but including all amounts, if any, owing under Section 2.11.

 

Upon receipt by the Replaced Lender of all amounts required to be paid to it pursuant to this Section 2.13, the Administrative Agent shall be entitled (but not obligated) and authorized to execute an Assignment and Assumption Agreement on behalf of such Replaced Lender, and any such Assignment and Assumption Agreement so executed by the Administrative Agent, the Replacement Lender and the Borrower shall be effective for purposes of this Section 2.13 and Section 14.04.  Upon the execution of the respective Assignment and Assumption Agreement, the payment of amounts referred to in clauses (a) and (b) above, recordation of the assignment on the Register by the Administrative Agent pursuant to Section 14.15 and, if so requested by the Replacement Lender, delivery to the Replacement Lender of the appropriate Note or Notes executed by the Borrower, the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.10, 2.11, 5.04, 13.06, 14.01 and 14.06), which shall survive as to such Replaced Lender.

 

SECTION 3.                                 [Intentionally Omitted] .

 

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

 

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

 

4.02.                        [Intentionally Omitted].

 

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

 

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

 

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(c)                   [Intentionally Omitted.]

 

(d)                  In addition to any other mandatory commitment reductions pursuant to this Section 4.03, on the date of each issuance of Permitted Notes pursuant to Section 11.01(ii), the Total Commitment shall be reduced by the aggregate principal amount of Permitted Notes so issued.

 

(e)                   [Intentionally Omitted].

 

(f)                     In addition to any other mandatory commitment reductions pursuant to this Section 4.03, the Total Commitment shall be permanently reduced from time to time to the extent required by Section 5.02(g)(ii).

 

(g)                  [Intentionally Omitted].

 

(h)                  Each reduction to, or termination of, the Total Commitment pursuant to this Section 4.03 shall be applied to proportionately reduce or terminate, as the case may be, the Commitment of each Lender with a Commitment.

 

SECTION 5.                                 Prepayments; Payments; Taxes .

 

5.01.                        Voluntary Prepayments . (a)  The Borrower shall have the right to prepay the Loans, without premium or penalty, in whole or in part at any time and from time to time on the following terms and conditions:  (i) the Borrower shall give the Administrative Agent prior to 12:00 Noon (New York City time) at the Notice Office at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay Loans, which notice shall specify the amount of such prepayment and the specific Borrowing or Borrowings pursuant to which such Loans were made, and which notice the Administrative Agent shall promptly transmit to each of the Lenders; (ii) each partial prepayment of Loans pursuant to this Section 5.01(a) shall be in an aggregate principal amount of at least $1,000,000 (or such lesser amount as is acceptable to the Administrative Agent in any given case), (iii) each prepayment pursuant to this Section 5.01(a) in respect of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans; and (iv) each prepayment of Loans pursuant to this Section 5.01(a) shall be applied to the then outstanding Loans on a pro rata basis.  Notwithstanding anything to the contrary contained herein, voluntary prepayments of Loans may not be made on or prior to the Merger Closing Date without the prior written consent of the Lead Arranger and the First Lien Lead Arrangers.  Each notice given pursuant to this Section 5.01(a) shall be irrevocable; provided that a notice of prepayment of Loans may state that the respective notice is conditioned upon the effectiveness of an issuance of Equity Interests by Holdings or one or more issues of Indebtedness, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.

 

(b)                  In the event of certain refusals by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders as (and to the extent) provided in Section 14.12(b), the Borrower may, upon five Business Days’ prior written notice to the Administrative Agent at the Notice Office (which notice the Administrative Agent shall promptly transmit to each of the

 

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Lenders), repay all Loans of such Lender (including all amounts, if any, owing pursuant to Section 2.11), together with accrued and unpaid interest, Fees and all other amounts then owing to such Lender in accordance with, and subject to the requirements of, said Section 14.12(b), so long as the consents, if any, required by Section 14.12(b) in connection with the repayment pursuant to this clause (b) shall have been obtained.

 

5.02.                        Mandatory Repayments .  (a) [Intentionally Omitted].

 

(b)                  (i) With respect to the Initial Loans, on the Initial Maturity Date, the Borrower shall be required to repay in full the entire principal amount of Initial Loans then outstanding if such Initial Loans have not been converted on such date into Extended Loans pursuant to Section 2.01(b) (and/or, if the conditions to extension contained in Section 2.01(b) have been satisfied, concurrently exchanged for Exchange Notes in accordance with Section 10.15) and (ii) with respect to the Extended Loans, if any, on the Final Maturity Date, the Borrower shall be required to repay in full the entire principal amount of Extended Loans then outstanding.

 

(c)                   In addition to any other mandatory repayments pursuant to this Section 5.02, on each date on or after the Initial Borrowing Date upon which Holdings or any of its Subsidiaries receives any cash proceeds from any issuance or incurrence by Holdings or any of its Subsidiaries of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 11.01 except that, (x) Permitted Refinancing Indebtedness incurred in respect of the Loans and (y) without duplication of preceding clause (x), any issuance of Permitted Notes (except in each case shall not be excluded pursuant to this parenthetical), an amount equal to 100% of the Net Cash Proceeds of the respective incurrence of Indebtedness shall be applied on such date in accordance with the requirements of Section 5.02(g).

 

(d)                  In addition to any other mandatory repayments pursuant to this Section 5.02, on each date on or after the Effective Date upon which Holdings or any of its Subsidiaries receives any cash proceeds from any Asset Sale or Recovery Event, an amount equal to 100% of the Net Cash Proceeds therefrom shall be applied on such date in accordance with the requirements of Section 5.02(g); provided , however , that such Net Cash Proceeds shall not be required to be so applied on such date so long as no Event of Default then exists and such Net Cash Proceeds shall be used to purchase assets  used or to be used in the businesses permitted pursuant to Section 11.03(b) within 540 days following the date of such Asset Sale or Recovery Event, and provided further , that if all or any portion of such Net Cash Proceeds not required to be so applied as provided above in this Section 5.02(d) are not so reinvested within such 540-day period (or such earlier date, if any, as Holdings or the relevant Subsidiary determines not to reinvest the Net Cash Proceeds from such Asset Sale or Recovery Event as set forth above), such remaining portion shall be applied on the last day of such period (or such earlier date, as the case may be) as provided above in this Section 5.02(d) without regard to the preceding proviso.  Notwithstanding anything to the contrary contained above in this clause (d), if there are one or more other issues of Second Lien Indebtedness then outstanding which require the payment (or offer to repay) such Second Lien Indebtedness with such Net Cash Proceeds, then the Borrower shall only be required to apply the Loan Proportionate Amount of such Net Cash Proceeds in accordance with this Section 5.02(d); provided further that if any portion of such Net Cash Proceeds is not actually applied to repay other outstanding Second Lien Indebtedness (whether

 

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the holders thereof have declined to participate in an offer to purchase or otherwise), then within 5 Business Days after it is determined that such amount will not be so applied, the respective amount shall be applied in accordance with this Section 5.02(d) (determined without regard to this sentence).

 

(e)                   [Intentionally Omitted].

 

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

 

(g)                  Each amount required to be applied pursuant to Sections 5.02(c), (d) and (f) in accordance with this Section 5.02(g) shall be applied (i)  first , if on or prior to the Merger Closing Date, to reduce (on a dollar for dollar basis) the Total Commitment, and (ii)  second , to repay the outstanding principal amount of Loans, except that amounts to be applied pursuant to Section 5.02(c) shall first be applied as required by preceding clause (ii) and only after all such Loans have been repaid in full shall same be applied as required by preceding clause (i).  The amount of each principal repayment of outstanding principal of Term Loans made as required by Sections 5.02(c), (d), (f) and (i) shall be applied pro   rata to the then outstanding Loans of the Lenders.

 

(h)                  [Intentionally Omitted].

 

(i)                      In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Loans shall be mandatorily repaid in full on the date on which a Change of Control occurs.

 

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

 

5.04.                        Net Payments .  (a)  All payments made by the Credit Parties hereunder and under any Bridge Loan Document will be made without setoff, counterclaim or other defense.  Except as provided in Section 5.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax imposed on or measured by the net income or net profits of the Administrative Agent or any Lender, as the case may be, pursuant to the laws of the

 

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

 

(b)                  Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes (a “ Foreign Lender ”) agrees to deliver to the Borrower and the Administrative Agent on or prior to the Effective Date,

 

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

 

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

 

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

 

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

 

6.01.                        Effective Date; Notices; Notes .  On or prior to the Initial Borrowing Date, (i) the Effective Date shall have occurred as provided in Section 14.10, (ii) the Borrower shall have requested the making of one or more Loans (in amounts determined by it and consistent with the provisions of this Agreement) on the Initial Borrowing Date, and the Administrative Agent shall have received the appropriate Notices of Borrowing meeting the relevant requirements of Section 2.03(a) and (iii) the appropriate Notes executed by the Borrower shall have been delivered to the Administrative Agent for the account of each Lender that has requested a Note in the amount, maturity and as otherwise provided herein.

 

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

 

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

 

6.04.                        Opinions of Counsel .  On the Initial Borrowing Date, the Administrative Agent shall have received (i) from Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the Credit Parties, an opinion addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Initial Borrowing Date in the form of Exhibit E, (ii) from local counsel in each state (other than New York and Delaware) in which a Credit Party is organized, an opinion in form and substance reasonably satisfactory to the Administrative Agent and addressed to the Administrative Agent, the Collateral Agent and each of the Lenders, dated the Initial Borrowing Date and covering such matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request, and (iii) from local counsel in each state in which an Original Mortgaged Property is located and with respect to which a Mortgage has then been executed (subject to Section 6.10(b)), an opinion in form and substance reasonably satisfactory to the Collateral Agent addressed to the Collateral Agent in its capacity as such, and each of the Lenders, dated the Initial Borrowing Date and covering such matters incident to the

 

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transactions contemplated herein as the Collateral Agent may reasonably request including but not limited to the enforceability of each Mortgage in such state.

 

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

 

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

 

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

 

(b)                  On the Initial Borrowing Date and concurrently with the incurrence of Loans on such date, all security interests in respect of, and Liens securing, the Indebtedness under the Existing Credit Agreement created pursuant to the security documentation relating to the Existing Credi