Unassociated Document


    
      
        EXECUTION
COPY


      

    

    
      

      

    

     

    $275,000,000

     

    SENIOR
SECURED REVOLVING FACILITY CREDIT AGREEMENT

     

    Dated as
of November 10, 2010

    among

    CHEMTURA
CORPORATION and

    the
Subsidiary Borrowers referenced herein,

    as Borrowers

    and

    BANK OF
AMERICA, N.A.

    as Administrative Agent and
Swing Line Lender

    and

    WELLS
FARGO CAPITAL FINANCE, LLC

    as Syndication Agent

    and

    CITIBANK,
N.A.

    BARCLAYS
BANK PLC

    GOLDMAN
SACHS LENDING PARTNERS LLC

    as Co-Documentation
Agents

    and

    WELLS
FARGO BANK, N.A.

    as Initial Issuing Bank

    and

    THE
INITIAL LENDERS AND THE OTHER LENDERS PARTY HERETO


    
       

        
          

        

      

      


    

    MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED

    WELLS
FARGO CAPITAL FINANCE, LLC

    and

    CITIGROUP
GLOBAL MARKETS INC.

    as Joint Lead Arrangers

     

      
        

      

    

    


    MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED

    WELLS
FARGO CAPITAL FINANCE, LLC

    CITIGROUP
GLOBAL MARKETS INC.

    BARCLAYS
CAPITAL

    and

    GOLDMAN
SACHS LENDING PARTNERS LLC

    as Joint
Bookrunners

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    TABLE OF CONTENTS


     

    
      	 	 	
              Page

            	 
	
              ARTICLE
      I

            	 	 	 
	
              DEFINITIONS
      AND ACCOUNTING TERMS

            	 	 	 
	
              Section 1.01 Certain Defined Terms

            	 	 	2	 
	
              Section
      1.02 Computation of Time Periods; Other Definitional
      Provisions

            	 	 	43	 
	
              Section
      1.03 Accounting Terms

            	 	 	43	 
	
              Section
      1.04 Terms Generally

            	 	 	43	 
	
              ARTICLE
      II

            	 	 	 	 
	 
      	 	 	 	 
	
              AMOUNTS
      AND TERMS OF THE ADVANCES

            	 	 	 	 
	
              AND
      THE LETTERS OF CREDIT

            	 	 	 	 
	
              Section
      2.01 The Advances

            	 	 	44	 
	
              Section
      2.02 Making the Advances

            	 	 	44	 
	
              Section
      2.03 Issuance of and Drawings and Reimbursement Under Letters of
      Credit

            	 	 	46	 
	
              Section
      2.04 Swing Line Advances

            	 	 	52	 
	
              Section
      2.05 Repayment of Advances

            	 	 	54	 
	
              Section
      2.06 Termination, Reduction or Automatic Increase of
      Commitments

            	 	 	54	 
	
              Section
      2.07 Prepayments

            	 	 	55	 
	
              Section
      2.08 Interest

            	 	 	57	 
	
              Section
      2.09 Fees

            	 	 	58	 
	
              Section
      2.10 Conversion of Advances

            	 	 	58	 
	
              Section
      2.11 Increased Costs, Etc

            	 	 	59	 
	
              Section
      2.12 Payments and Computations

            	 	 	60	 
	
              Section
      2.13 Taxes

            	 	 	61	 
	
              Section
      2.14 Sharing of Payments, Etc

            	 	 	64	 
	
              Section
      2.15 Use of Proceeds

            	 	 	65	 
	
              Section
      2.16 Defaulting Lenders

            	 	 	65	 
	
              Section
      2.17 Evidence of Debt

            	 	 	66	 
	
              Section
      2.18 Replacement of Certain Lenders

            	 	 	67	 
	
              Section
      2.19 Commitment Increase

            	 	 	67	 
	
              Section
      2.20 Nature and Extent of Each Borrower’s Liability

            	 	 	68	 
	
              ARTICLE
      III

            	 	 	 	 
	 
      	 	 	 	 
	
              CONDITIONS
      TO EFFECTIVENESS

            	 	 	 	 
	
              Section
      3.01 Conditions Precedent to Effectiveness

            	 	 	70	 
	
              Section
      3.02 Conditions Precedent to Each Borrowing and Each Issuance of a Letter
      of Credit

            	 	 	76	 
	
              Section
      3.03 Determinations Under Sections 3.01 and 3.03

            	 	 	77	 


    

     

    
      
         

      

      
        i

        
          

        

      

      
         

      

    

     

    
      	
              ARTICLE
      IV

            	 	 	 	 
	 
      	 	 	 	 
	
              REPRESENTATIONS
      AND WARRANTIES

            	 	 	 	 
	
              Section
      4.01 Representations and Warranties of the Loan Parties

            	 	 	77	 
	
              ARTICLE
      V

            	 	 	 	 
	 
      	 	 	 	 
	
              COVENANTS
      OF THE LOAN PARTIES

            	 	 	 	 
	
              Section
      5.01 Affirmative Covenants

            	 	 	82	 
	
              Section
      5.02 Negative Covenants

            	 	 	86	 
	
              Section
      5.03 Reporting Requirements

            	 	 	96	 
	
              Section
      5.04 Financial Covenant

            	 	 	99	 
	
              ARTICLE
      VI

            	 	 	 	 
	 
      	 	 	 	 
	
              EVENTS
      OF DEFAULT

            	 	 	 	 
	
              Section
      6.01 Events of Default

            	 	 	100	 
	
              Section
      6.02 Actions in Respect of the Letters of Credit upon
    Default

            	 	 	102	 
	
              ARTICLE
      VII

            	 	 	 	 
	 
      	 	 	 	 
	
              THE
      AGENTS

            	 	 	 	 
	
              Section
      7.01 Appointment and Authority

            	 	 	102	 
	
              Section
      7.02 Rights as a Lender

            	 	 	103	 
	
              Section
      7.03 Exculpatory Provisions

            	 	 	103	 
	
              Section
      7.04 Reliance by Administrative Agent

            	 	 	104	 
	
              Section
      7.05 Delegation of Duties

            	 	 	104	 
	
              Section
      7.06 Resignation of Administrative Agent

            	 	 	104	 
	
              Section
      7.07 Non-Reliance on Administrative Agent and Other Lender
      Parties

            	 	 	105	 
	
              Section
      7.08 No Other Duties, etc

            	 	 	105	 
	
              Section
      7.09 Administrative Agent May File Proofs of Claim

            	 	 	106	 
	
              Section
      7.10 Collateral and Guaranty Matters

            	 	 	106	 


    

     

    
      
         

      

      
        ii

        
          

        

      

      
         

      

    

     

    
      	
              ARTICLE
      VIII

            	 	 	 	 
	 
      	 	 	 	 
	
              [INTENTIONALLY
      OMITTED]

            	 	 	 	 
	 	 	 	 	 
	
              ARTICLE
      IX

            	 	 	 	 
	 
      	 	 	 	 
	
              [INTENTIONALLY
      OMITTED]

            	 	 	 	 
	 	 	 	 	 
	
              ARTICLE
      X

            	 	 	 	 
	 
      	 	 	 	 
	
              MISCELLANEOUS

            	 	 	 	 
	
              Section
      10.01 Amendments, Etc.

            	 	 	107	 
	
              Section
      10.02 Notices, Posting of Approved Electronic Communications,
      Etc

            	 	 	109	 
	
              Section
      10.03 No Waiver; Remedies

            	 	 	111	 
	
              Section
      10.04 Costs, Fees and Expenses

            	 	 	111	 
	
              Section
      10.05 Right of Set-off

            	 	 	113	 
	
              Section
      10.06 Binding Effect

            	 	 	113	 
	
              Section
      10.07 Successors and Assigns

            	 	 	113	 
	
              Section
      10.08 Execution in Counterparts; Integration

            	 	 	117	 
	
              Section
      10.09 Survival of Representations and Warranties

            	 	 	117	 
	
              Section
      10.10 Severability

            	 	 	118	 
	
              Section
      10.11 Confidentiality and Related Matters

            	 	 	118	 
	
              Section
      10.12 Treatment of Information

            	 	 	119	 
	
              Section
      10.13 Patriot Act Notice.

            	 	 	119	 
	
              Section
      10.14 Jurisdiction, Etc

            	 	 	119	 
	
              Section
      10.15 Governing Law

            	 	 	120	 
	
              Section
      10.16 Waiver of Jury Trial

            	 	 	120	 
	
              Section
      10.17 No Advisory or Fiduciary Relationship

            	 	 	120	 
	
              Section
      10.18 Release of Guarantees and Collateral

            	 	 	121	 


    

    


    
      
         

      

      
        iii

        
          

        

      

      
         

      

    

     

    SCHEDULES

     

    
      
        	
                Schedule
      I

              	
                -

              	
                Commitments
      and Applicable Lending Offices

              
	
                Schedule
      II

              	
                -

              	
                Designated
      Account Debtors

              
	
                Schedule
      III

              	
                -

              	
                Form
      of Invoices

              
	
                Schedule
      IV

              	
                -

              	
                Existing
      Letters of Credit

              
	
                Schedule
      1.01A

              	
                -

              	
                Fixed
      Charge Coverage Ratio Components

              
	
                Schedule
      1.01B

              	
                -

              	
                Subsidiary
      Borrowers

              
	
                Schedule
      1.01C

              	
                -

              	
                Guarantors

              
	
                Schedule
      4.01(a)

              	
                -

              	
                Equity
      Investments; Subsidiaries

              
	
                Schedule
      4.01(b)

              	
                -

              	
                Loan
      Parties

              
	
                Schedule
      4.01(i)

              	
                -

              	
                Disclosures

              
	
                Schedule
      4.01(m)

              	
                -

              	
                Environmental
      Liabilities

              
	
                Schedule
      4.01(t)

              	
                -

              	
                Surviving
      Debt and Effective Date Debt

              
	
                Schedule
      4.01(u)

              	
                -

              	
                Liens

              
	
                Schedule
      5.01(m)

              	
                -

              	
                Listed
      Subsidiaries

              
	
                Schedule
      5.02(r)

              	
                -

              	
                Exempt
      Accounts

              
	
                Schedule
      10.02

              	
                -

              	
                Administrative
      Agent’s Office, Certain Addresses for
Notices

              


      

    

    


    EXHIBITS

    


    
      	
              Exhibit
      A

            	
              -

            	
              Form
      of Revolving Credit Note

            
	
              Exhibit
      B-1

            	
              -

            	
              Form
      of Notice of Borrowing

            
	
              Exhibit
      B-2

            	
              -

            	
              Form
      of Swing Line Advance Notice

            
	
              Exhibit
      C

            	
              -

            	
              Form
      of Assignment and Acceptance

            
	
              Exhibit
      D

            	
              -

            	
              Form
      of Intercreditor Agreement

            
	
              Exhibit
      E

            	
              -

            	
              Form
      of Borrowing Base Certificate

            
	
              Exhibit
      F

            	
              -

            	
              Form
      of Security Agreement

            
	
              Exhibit G

            	
              -

            	
              Form
      of Guaranty

            
	
              Exhibit
      H

            	
              -

            	
              Form
      of Opinion of Counsel

            


    

     

    
      
         

      

      
        iv

        
          

        

      

      
         

      

    

    


    SENIOR
SECURED REVOLVING FACILITY CREDIT AGREEMENT


     

    SENIOR
SECURED REVOLVING FACILITY CREDIT AGREEMENT (this “Agreement”) dated as
of November 10, 2010 among CHEMTURA CORPORATION, a Delaware corporation (the
“Company”) and
each of the Subsidiary Borrowers (as hereinafter defined) (each, including the
Company, a “Borrower”, and
collectively, the “Borrowers”), the
Initial Lenders (as hereinafter defined) and the other banks, financial
institutions and other institutional lenders party hereto (each, a “Lender”, and together
with the Initial Lenders and any other person that becomes a Lender hereunder
pursuant to Section 10.07, the “Lenders”), WELLS
FARGO BANK, N.A., as the initial issuing bank (in such capacity, the “Initial Issuing
Bank”), BANK OF AMERICA, N.A. (“Bank of America”), as
administrative and collateral agent (or any successor appointed pursuant to
Article VII, the “Administrative
Agent”) for the Lender Parties and the other Secured Parties (each as
hereinafter defined) and as Swing Line Lender (as hereinafter defined), WELLS
FARGO CAPITAL FINANCE, LLC (“Wells Fargo”), as
syndication agent, CITIBANK. N.A. (“Citibank”), BARCLAYS
BANK PLC (“Barclays
Bank”) and GOLDMAN SACHS LENDING PARTNERS LLC (“GS”), as
co-documentation agents, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
(“MLPF&S”),
Wells Fargo and CITIGROUP GLOBAL MARKETS INC. (“CGMI”), as joint lead
arrangers (the “Lead
Arrangers”), and MLPF&S, Wells Fargo, CGMI, BARCLAYS CAPITAL, the
investment banking division of Barclays Bank (“Barclays Capital”),
and GS, as joint bookrunners (the “Bookrunners”).

     

    PRELIMINARY
STATEMENTS

     

    (1) On March
18, 2009 (the “Petition Date”), the
Borrowers and the Guarantors (and certain other debtor Subsidiaries) filed
voluntary petitions in the United States Bankruptcy Court for the Southern
District of New York for relief, and commenced proceedings (the “Cases”) under chapter
11 of the U.S. Bankruptcy Code (11 U.S.C. §§ 101 et seq.; the “Bankruptcy Code”) and
have continued in the possession of their assets and in the management of their
businesses pursuant to sections 1107 and 1108 of the Bankruptcy
Code.

     

    (2) The
Company and the Company’s debtor Subsidiaries are party to that certain Amended
and Restated Senior Secured Superpriority Debtor-in-Possession Credit Agreement,
dated as of February 3, 2010 (as amended, supplemented or otherwise modified
prior to the Effective Date, the “Existing DIP
Agreement”), among the Borrowers, the Guarantors and certain other
Subsidiaries of the Company, as guarantors, the lenders party thereto, Citibank,
as the initial issuing bank and as administrative agent, and the other agents
party thereto.  The Existing DIP Agreement will be refinanced as part
of the Transactions (as defined below).

     

    (3) On
November 3, 2010, the Company and the Company’s debtor Subsidiaries obtained an
order of the Bankruptcy Court confirming a Chapter 11 plan of reorganization
under the Bankruptcy Code filed by the Company with the Bankruptcy Court, and in
connection therewith intends to substantially consummate the Plan on the date
hereof.

     

    (4) In
connection with the transactions contemplated hereby and the reorganization of
the Borrowers pursuant to the Plan, (a) the Company has issued $455,000,000
aggregate principal amount of 7.875% senior notes due 2018 (the “Senior Notes”), the
proceeds of which have been funded into escrow, and (b) entered into a term loan
credit facility in an aggregate principal amount not
exceeding  $295,000,000, the proceeds of which have been funded into
escrow (these transactions, together with all other transactions contemplated by
the Confirmation Order and by this Agreement to occur on the Effective Date,
being collectively referred to as the “Transactions”).  The
proceeds of the Senior Notes and the Term Facility will be released from escrow
concurrently with the effectiveness of the Facilities under this
Agreement.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (5) The
parties hereto hereby wish to enter into an asset-based revolving credit
facility in an initial principal amount not exceeding $275,000,000, on the terms
and conditions set forth in this Agreement, the proceeds of which would be used
by the Borrowers to refinance Obligations outstanding under the Existing DIP
Agreement and for working capital and other general corporate purposes and
activities to the extent not prohibited by this Agreement or the other Loan
Documents.

     

    NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:

     

    ARTICLE
I


     

    DEFINITIONS
AND ACCOUNTING TERMS

     

    Section
1.01 Certain 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 Debtor”
means, with respect to any Account, the Person obligated on such
Account.

     

    “Accounts” has the
meaning set forth in the UCC.

     

    “Activities” has the
meaning specified in Section 7.02(b).

     

    “Administrative Agent”
has the meaning specified in the recital of parties to this
Agreement.

     

    “Administrative Agent’s
Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 10.02, or such other address or account as the
Administrative Agent may from time to time notify to the Borrowers and the
Lenders.

     

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

     

    “Advance” means a
Revolving Credit Advance, a Letter of Credit Advance or a Swing Line
Advance.

     

    “Affected Lender” has
the meaning specified in Section 2.18.

     

    “Affiliate” means, as
to any Person, any other Person that, directly or indirectly, controls, is
controlled by or is under common control with such Person or is a director or
officer of such Person.  For purposes of this definition, the term
“control” (including the terms "controlling", “controlled by” and “under common
control with”) of a Person means the possession, direct or indirect, of the
power to vote 10% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of Voting Stock, by contract or otherwise.

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    “Agents” means,
collectively, (i) the Administrative Agent, (ii) MLPF&S, CGMI and Wells
Fargo in their capacities as Lead Arrangers, and (iii) MLPF&S, CGMI, Wells
Fargo, Barclays Capital and GS in their capacities as Bookrunners.

     

    “Agent Parties” has
the meaning specified in Section 10.02(c).

     

    “Agreement Value”
means, for each Hedge Agreement, on any date of determination, an amount
determined by the Administrative Agent equal to:  (a) in the case of a
Hedge Agreement documented pursuant to the Master Agreement (Multicurrency-Cross
Border) published by the International Swap and Derivatives Association, Inc.
(the “Master
Agreement”), the amount, if any, that would be payable by any Loan Party
or any of its Subsidiaries to its counterparty to such Hedge Agreement, as if
(i) such Hedge Agreement were being terminated early on such date of
determination, (ii) such Loan Party or Subsidiary were the sole “Affected
Party,” and (iii) the Administrative Agent were the sole party determining such
payment amount (with the Administrative Agent reasonably making such
determination pursuant to the provisions of the form of Master Agreement); (b)
in the case of a Hedge Agreement traded on an exchange, the mark-to-market value
of such Hedge Agreement, which will be the unrealized loss on such Hedge
Agreement to the Loan Party or Subsidiary of a Loan Party party to such Hedge
Agreement reasonably determined by the Administrative Agent based on the
settlement price of such Hedge Agreement on such date of determination; or (c)
in all other cases, the mark-to-market value of such Hedge Agreement, which will
be the unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary
of a Loan Party party to such Hedge Agreement reasonably determined by the
Administrative Agent as the amount, if any, by which (i) the present value of
the future cash flows to be paid by such Loan Party or Subsidiary exceeds (ii)
the present value of the future cash flows to be received by such Loan Party or
Subsidiary pursuant to such Hedge Agreement; capitalized terms used and not
otherwise defined in this definition or this Agreement shall have the respective
meanings set forth in the above described Master Agreement or any other document
governing such Hedge Agreement.

     

    “Albemarle Settlement and
Cross License” means, collectively, (a) the mutual release by the
Company and Great Lakes Chemical Corporation (“GLCC”), on the one
hand, and Albemarle Corporation, on the other hand, of claims and counterclaims
raised or that could be raised (i) in Albemarle Corporation v. Great Lakes
Chemical Corporation, Civil Action Nos. 02-505-JVP-DLD and
02-506-JVP-DLD, consolidated, pending on the Effective Date in the United States
District Court for the Middle District of Louisiana; (ii) in Albemarle Corporation v. Chemtura
Corporation and Great Lakes Chemical Corporation, Civil Action No.
05-1239-JJB-SCR, pending on the Effective Date in the United States District
Court for the Middle District of Louisiana; and (iii) in Chemtura Corporation v. Albemarle
Corporation, Civil Action No. 3:09cv143-JRS, pending on the Effective
Date in the United States District Court for the Eastern District of Virginia,
(iv) in controversies relating to the Company’s and GLCC’s concerns that
former employees of the Company or GLCC made available to Albemarle certain of
the Company’s and/or GLCC’s trade secrets, confidential information and/or
know-how, and/or (v) under U.S. Patent Numbers 4,719096, 4,725,425,
4,978518, 5,008,477, 5,030,778, 5,053,447, 5,077,334, 5,124,496, 5,302,768,
5,387,636, 5,457,248 and 6,958,423; and (b) the grant by the Company and/or
GLCC to Albemarle Corporation of a nonexclusive, fully paid-up, royalty-free,
irrevocable, world-wide license to manufacture, use, sell, offer for sale and
import FM 2100 or any other products under the claims of U.S. Patent Number
5,457,248 and its respective foreign counterparts and continuations, including
reissue patents, reexamined patents, as well as all of the applications to which
this patent claims priority, the patents claiming priority from it, including
continuation applications, continuation-in-part applications, CPA and RCE
applications, divisional applications, and any patent that issues from a patent
application that is subject to this clause (b), in consideration of the
grant by Albemarle Corporation of certain licenses to the Company and GLCC with
respect to certain of Albemarle Corporation’s intellectual property, in each
case on substantially the terms set forth in the Settlement and Cross-License
Agreement signed on December 24, 2009 among Albemarle Corporation, the Company
and GLCC.

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

     

    “Applicable Lending
Office” means, with respect to each Lender Party, such Lender Party’s
Domestic Lending Office in the case of a Base Rate Advance and such Lender
Party’s Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.

     

    “Applicable Margin”
means, in the case of a Eurodollar Rate Advance or a Base Rate Advance
outstanding on any date of determination, the applicable percentage per annum
set forth below opposite Average Excess Availability, which shall for purposes
of this definition be determined by reference to (i) for any such date during
the fiscal quarter in which the Effective Date occurs or during the first full
fiscal quarter commencing after the Effective Date, Average Excess Availability
as of the Effective Date (after giving effect to all Transactions contemplated
to occur on the Effective Date) and (ii) for any such date during each
subsequent fiscal quarter, Average Excess Availability for the immediately
preceding fiscal quarter:

     

    
      	      
              Average Excess
      Availability

            	 	      
              Eurodollar
Rate
      Advances

            	 	 	      
              Base Rate
    
Advances

            	 
	
              <$100
      million

            	 	 	3.25	%	 	 	2.25	%
	
              $100
      million to $200 million

            	 	 	3.00	%	 	 	2.00	%
	
              >$200
      million

            	 	 	2.75	%	 	 	1.75	%


    

     

    “Appropriate Lender”
means, at any time, with respect to (a) the Revolving Credit Facility, a Lender
that has a Commitment or Advances outstanding, in each case with respect to or
under such Facility at such time, (b) the Letter of Credit Sublimit, (i) any
Issuing Bank, and (ii) if the Revolving Credit Lenders have made Letter of
Credit Advances pursuant to Section 2.03(c) that are outstanding at such time,
each such Revolving Credit Lender, and (c) the Swing Line Sublimit, (i) the
Swing Line Lender and (ii) if any Swing Line Advances are outstanding pursuant
to Section 2.04(a), the Lenders.

     

    “Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.

     

    “Asset Sale Cap”
means, as of any date of determination, an amount equal to the greater of (i)
$300,000,000 and (ii) 10.0% of Consolidated Net Tangible Assets.

     

    “Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender
Party and an Eligible Assignee, and accepted by the Administrative Agent, in
accordance with Section 10.07 and in substantially the form of
Exhibit C hereto.

     

    “Attributable
Indebtedness” means, on any date, (a) in respect of any Capitalized Lease
of any Person, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease or similar payments under the relevant lease or other applicable
agreement or instrument that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease or other
agreement or instrument were accounted for as a Capitalized Lease and (c) all
Synthetic Debt of such Person.

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

     

    “Available Amount” of
any Letter of Credit means, at any time, the maximum amount available to be
drawn under such Letter of Credit at such time (assuming compliance at such time
with all conditions to drawing).

     

    “Availability” means,
at any time, (a) the lesser of (i) the Borrowing Base at such time (based on the
most recent Borrowing Base Certificate), and (ii) the aggregate Commitments at
such time minus (b) the
sum of (i) the Advances outstanding at such time plus (ii) the aggregate
Available Amount of all Letters of Credit outstanding at such
time.  Availability at any time shall be determined by reference to
the most recent Borrowing Base Certificate delivered to the Administrative Agent
pursuant to Section 5.03(o) and the amount described in clause (b) above at such
time.

     

    “Average Excess
Availability” means, for any period, the average amount of Availability
for each day during such period.

     

    “Bank of America” has
the meaning specified in the recital of parties to this Agreement.

     

    “Bank Product
Reserves” means all reserves which the Administrative Agent from time to
time establishes in its reasonable judgment for the Obligations under the
Secured Cash Management Agreements then outstanding.

     

    “Bankruptcy Code” has
the meaning specified in the Preliminary Statements.

     

    “Bankruptcy Court”
means the United States Bankruptcy Court for the Southern District of New York
having jurisdiction over the Cases or any other court having jurisdiction over
the Cases, including, to the extent of the withdrawal of any reference under 28
U.S.C. § 157, the United States District Court for the Southern District of New
York.

     

    “Barclays Bank” has
the meaning specified in the recital of parties to this Agreement.

     

    “Barclays Capital” has
the meaning specified in the recital of parties to this Agreement.

     

    “Base Rate” means for
any day a fluctuating rate per annum equal to the highest of (a) the Federal
Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate,” and
(c) the Eurodollar Rate, plus 1.00%.  The “prime rate” is a rate set
by Bank of America based upon various factors including Bank of America’s costs
and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate.  Any change in such prime rate announced by
Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.

     

    “Base Rate Advance”
means an Advance that bears interest based on the Base Rate.

     

    “BBA LIBOR” has the
meaning specified in the definition of “Eurodollar Base Rate”.

     

    “Bookrunners” has the
meaning specified in the recital of parties to this Agreement.

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

     

    “Borrower” and “Borrowers” has the
meaning specified in the recital of parties to this Agreement; provided, that, upon
the request of the Company from time to time, additional wholly-owned domestic
Subsidiaries of the Company that own assets eligible to be included in the
Borrowing Base may be added as Borrowers hereunder, effective upon the execution
and delivery to the Administrative Agent (i) by the relevant additional
Subsidiary Borrower of Notes replacing the outstanding Notes or amendments or
joinders to the outstanding Notes (in each case to the extent Notes have been
issued under Section 2.17) and appropriate joinder agreements to this Agreement
(and if applicable, to the Collateral Documents, the Guaranty and the
Intercreditor Agreement) and (ii) by the Guarantors of their reaffirmation of
each Guaranty, in each case in customary form reasonably satisfactory to the
Administrative Agent, and any other Collateral Documents and other documents
that such Subsidiary Borrower would be required to deliver pursuant to Section
5.01(m) hereof if it were becoming a Guarantor (with such modifications thereto
as are reasonably necessary to accommodate the relevant Subsidiary Borrower
becoming a Borrower and not a Guarantor).

     

    “Borrower Materials”
has the meaning specified in Section 10.12.

     

    “Borrower’s Account”
means the account of the Company maintained by the Company and specified in
writing to the Administrative Agent from time to time.

     

    “Borrowing” means a
Revolving Credit Borrowing or a Swing Line Borrowing, as the context may
require.

     

     

    “Borrowing Base” means
(i) 85% of the value of Eligible Receivables, plus (ii) the lesser of (A)
85% of the Net Orderly Liquidation Value Percentage of Eligible Inventory and
(B) 75% of the cost of Eligible Inventory, minus (iv)
Reserves.

     

    “Borrowing Base
Certificate” means a certificate in substantially the form of Exhibit E
hereto (with such changes therein as may be required in accordance with the
terms of this Agreement by the Administrative Agent to reflect the components
of, and reserves against, the Borrowing Base as provided for hereunder from time
to time), executed and certified as accurate and complete by a Responsible
Officer of the Company or by the controller of the Company, which shall include
detailed calculations as to the Borrowing Base as reasonably requested by the
Administrative Agent.

     

    “Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks are
authorized to close under the Laws of, or are in fact closed in, the state where
the Administrative Agent’s Office is located and, if such day relates to any
Eurodollar Rate Loan, means any such day that is also a London Banking
Day.

     

    “Canadian Debtor”
means Chemtura Canada Co./Cie, a company organized under the laws of Ontario,
Canada.

     

    “Capital Expenditures”
means, for any Person for any period, the sum (without duplication) of all
expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance sheet of
such Person.  For purposes of this definition, the purchase price of
equipment that is purchased simultaneously with the trade in of existing
equipment or with insurance proceeds shall be included in Capital Expenditures
only to the extent of the gross amount of such purchase price less the credit
granted by the seller of such equipment for the equipment being traded in at
such time or the amount of such proceeds, as the case may be.

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

     

    “Capitalized Leases”
means all leases that have been or should be, in accordance with GAAP, recorded
as capitalized leases.

     

    “Cases” has the
meaning specified in the Preliminary Statements.

     

    “Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the Issuing Banks or Swing Line Lender and the Lenders, as collateral
for the L/C Obligations, Obligations in respect of
Swing Line Advances, or obligations of Lenders to fund participations in respect
of either thereof (as the context may require), cash or deposit account balances
in an amount not less than 103% of the face amount of such L/C Obligations,
pursuant to customary documentation in form and substance reasonably
satisfactory to (a) the Administrative Agent and (b) the Issuing Banks or the
Swing Line Lender (as applicable).  Derivatives of such term have
corresponding meanings.

     

    “Cash Dominion Period”
means (a) the period commencing on any date that is the third consecutive day
that Availability is less than the greater of (i) $40,000,000 and (ii) 15% of
the aggregate amount of Revolving Credit Commitments then in effect and
continuing until the date when Availability has been, for 45 consecutive days
including such date, equal to or greater than the greater of (i) $40,000,000 and
(ii) 15% of the aggregate amount of Revolving  Credit Commitments then
in effect and (b) any period during which an Event of Default shall have
occurred and be continuing.

     

    “Cash Equivalents”
means any of the following, to the extent having a maturity of not greater than
12 months from the date of issuance thereof:  (a) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States,
(b) certificates of deposit of or time deposits with any commercial bank
that is a Lender Party or a member of the Federal Reserve System that issues (or
the parent of which issues) commercial paper rated as described in
clause (c), is organized under the laws of the United States or any state
thereof and has combined capital and surplus of at least $1,000,000,000,
(c) commercial paper in an aggregate amount of no more than $25,000 per
issuer outstanding at any time, issued by any corporation organized under the
laws of any state of the United States and rated at least “Prime-1” (or the then
equivalent grade) by Moody’s or “A-1” (or the then equivalent grade) by S&P,
and (d) Investments, classified in accordance with GAAP, as current assets
of the Company or any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which are
administered by financial institutions that have the highest rating obtainable
from either Moody’s or S&P.

     

    “Cash Management
Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic
funds transfer and other cash management arrangements.

     

    “Cash Management Bank”
means any Person that, at the time it enters into a Cash Management Agreement,
is a Lender Party, an Affiliate of a Lender Party, a Lead Arrangers or an
Affiliate of a Lead Arranger, in its capacity as a party to such Cash Management
Agreement.

     

    “CFC” means an entity
that is classified as a controlled foreign corporation under Section 957 of the
Internal Revenue Code.

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

     

    “CFH” means Crompton
Financial Holdings.

     

    “CGMI” has the meaning
specified in the recital of parties to this Agreement.

     

    “Change of Control”
means and shall be deemed to have occurred if (a) any Person or two or more
Persons acting in concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting Stock of the
Company (or other securities convertible into such Voting Stock) representing
35% or more (in the case of a single Person) or 50% or more (in the case of two
or more Persons acting in concert) of the combined voting power of all Voting
Stock of the Company; or (b) after the second anniversary of the date of this
Agreement, individuals who as of the date of such second anniversary were
directors of the Company, together with each individual on the board of
directors of the Company who was either (x) elected or appointed by a majority
of those members of the board of directors of the Company who were members at
the time of such election or appointment or (y) nominated for election or
appointment by a majority of those members of the board of directors of the
Company who were members at the time of such nomination, shall cease for any
reason to constitute a majority of the board of directors of the
Company.

     

    “Citibank” has the
meaning specified in the recital of parties to this Agreement.

     

    “Collateral” means all
“Collateral” referred to in the Collateral Documents and all other property of
the Loan Parties that is or is purported to be subject to any Lien in favor of
the Administrative Agent for the benefit of the Secured Parties.

     

    “Collateral Access
Agreement” means any landlord waiver, mortgagee waiver, bailee letter, or
any similar acknowledgment or agreement of any warehouseman or processor that
owns or is in possession of property where any Inventory is stored or located,
pursuant to which a Person shall waive or subordinate its rights and claims as
landlord, mortgagee, bailee, warehouseman or processor in any Inventory of a
Loan Party and grant access to the Administrative Agent for the repossession and
sale of such Inventory, in each case in form and substance substantially
identical to the collateral access agreements obtained in connection with the
Existing DIP Agreement (with changes thereto to reflect Bank of America as the
Administrative Agent).

     

    “Collateral Documents”
means, collectively, the Security Agreement, the Intellectual Property Security
Agreement, the Mortgages and any other agreement that creates or purports to
create a Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.

     

    “Commitment” means a
Revolving Credit Commitment or a Letter of Credit Commitment.

     

    “Commitment Increase”
has the meaning specified in Section 2.19.

     

    “Commitment Increase
Lender” has the meaning specified in Section 2.19.

     

    “Commitment Letter”
means the commitment letter dated as of August 11, 2010 among the Company and
the Bookrunners.

     

    “Company” has the
meaning specified in the recital of parties to this Agreement.

     

    
      
         

      

      
        8

        
          

        

      

      
         

      

    

     

    “Confirmation Order”
has the meaning specified in Section 3.01(b).

     

    “Consolidated” refers
to the consolidation of accounts in accordance with GAAP.

     

    “Consolidated Net
Income” of a
Person (the “Specified
Person”) for any period means the aggregate of the net income (loss) of
the Specified Person and its Subsidiaries for such period, on a Consolidated
basis, determined in accordance with GAAP; provided that:

     

    (1)           the
net income (loss) of any Person that is not a Subsidiary of the Specified Person
or that is accounted for by the equity method of accounting will be included
only to the extent of the amount of dividends or distributions paid in cash (or
to the extent converted into cash) to the Specified Person or a Subsidiary
thereof (subject, in the case of dividends or distributions paid to a
Subsidiary, to the limitations contained in clause (2) below);

     

    (2)           [Intentionally
Omitted];

     

    (3)           any
gain or loss, together with any related provision for taxes on such gain or loss
less all fees and expenses or charges relating thereto, realized in connection
with: (a) any sale of assets outside the ordinary course of business of the
Specified Person; or (b) the disposition of any securities by the Specified
Person or a Subsidiary thereof or the extinguishment of any Debt of the
Specified Person or any Subsidiary thereof, will be excluded;

     

    (4)           any
extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss (less all costs and expenses if incurred in
connection with the Cases, the Senior Notes, this Revolving Credit Facility or
the Term Facility), will be excluded;

     

    (5)           any
non-cash compensation expense realized for grants of performance shares, stock
options or other rights to officers, directors and employees of the Specified
Person and any Subsidiary thereof will be excluded; provided that such shares,
options or other rights can be redeemed at the option of the holder only for
Equity Interests (other than Redeemable Equity Interests) of the Specified
Person;

     

    (6)           the
cumulative effect of a change in accounting principles will be
excluded;

     

    (7)           (a)
any restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Effective Date and (b) any restoration to or deduction
from income for changes in estimates related to the post-emergence settlement of
prepetition claims obligations in relation with Chapter 11 of the Bankruptcy
Code following the Effective Date, in each case, will be excluded;

     

    (8)           any
charges or credits relating to any purchase accounting adjustments or to the
adoption of fresh-start accounting principles will be excluded;

     

    (9)           to
the extent the related loss is not added back in calculating such Consolidated
Net Income, proceeds of business interruption insurance policies to the extent
of such related loss will be excluded;

     

    (10)           fees
and expenses related to a Foreign Asset Based Financing or any asset-based
revolving credit agreement incurred in reliance on Section 5.02(b)(vi) or
5.02(b)(xi) and secured by Liens on inventory and/or accounts receivable (and
related assets) of the relevant Foreign Subsidiaries will be
excluded;

     

    
      
         

      

      
        9

        
          

        

      

      
         

      

    

     

    (11)           any
net after-tax gains attributable to the termination of any employee pension
benefit plan will be excluded;

     

    (12)           (a)
any non-cash net after-tax income or loss from operating results of discontinued
operations as defined by GAAP and (b) any net after-tax gains or losses from
sales of discontinued operations, in each case will be excluded;

     

    (13)           any
net after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of Debt, Obligations in
respect of Hedge Agreements or other derivative instruments entered into in
relation with the Debt extinguished will be excluded;

     

    (14)           any
gain or loss for such period from currency translation gains or losses or net
gains or losses related to currency remeasurements of Debt (including any net
loss or gain resulting from Obligations in respect of Hedge Agreements for
currency exchange risk entered into in relation with Debt) will be
excluded;

     

    (15)           any
non-cash impairment charges or asset write-downs or write-offs, in each case
pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP
will be excluded; and

     

    (16)           any
increase in amortization or depreciation or other non-cash charges or the impact
of write-off of deferred revenues resulting from the application of SOP 90-7 in
relation to all transactions arising out of a plan of reorganization in any of
the Cases and emergence from Chapter 11 of the Bankruptcy Code shall be
excluded.

     

    “Consolidated Net Tangible
Assets” means, as of any date, the total assets of the Company and its
Subsidiaries less goodwill and intangibles (other than intangibles arising from,
or relating to, intellectual property, licenses or permits (including, but not
limited to, emissions rights) of the Company and its Subsidiaries), in each case
calculated on a consolidated basis in accordance with GAAP, as set forth on the
consolidated balance sheet of the Company as of the end of the most recent
fiscal year or quarter in respect of which financial statements have been
furnished to the Administrative Agent pursuant to Section 5.03 prior to
such date; provided that in the
event that the Company or any of its Subsidiaries has assumed or acquired any
assets in connection with the acquisition by the Company and its Subsidiaries of
another Person subsequent to such balance sheet date but prior to the event as a
result of which the calculation of Consolidated Net Tangible Assets is being
made, then Consolidated Net Tangible Assets shall be calculated giving pro forma
effect to such assumption or acquisition of assets, as if the same had occurred
on such balance sheet date.

     

    “Contract” means an
agreement between any Borrower and an Account Debtor in any written form
acceptable to such Borrower, or in the case of any open account agreement as
evidenced by one of the forms of invoices set forth in Schedule III hereto or
otherwise approved by the Administrative Agent from time to time (which approval
shall not be unreasonably withheld), pursuant to or under which such Account
Debtor shall be obligated to pay for goods or services from time to
time.

     

    
      
         

      

      
        10

        
          

        

      

      
         

      

    

     

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

     

    “Conversion”, “Convert” and “Converted” each
refers to the conversion of Advances from one Type to Advances of the other
Type.

     

    “Conyers Fire
Settlement” means the settlement of certain claims against Bio-Lab, Inc.
(“BioLab”) and
GLCC relating to a fire that occurred at BioLab’s Plant 14 finished goods
warehouse in Conyers, Georgia on May 25 and May 26, 2004, pursuant to which
settlement such claims against the Company and its Subsidiaries will be
dismissed and released in consideration of BioLab and GLCC establishing, in an
escrow account with Citibank or another escrow agent mutually agreed upon by the
parties, a $7,000,000 settlement fund for the payment of such claims in
accordance with the settlement agreement therefor approved by the Bankruptcy
Court.

     

    “Debt” of any Person
means, without duplication, (a) the outstanding principal amount of all
indebtedness of such Person for borrowed money (including Obligations
hereunder), (b) all Obligations of such Person for the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business not overdue by more than 90 days), (c) all Obligations of
such Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (d) all Obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Attributable Indebtedness in respect of
Capitalized Leases and Synthetic Lease Obligations of such Person and all
Synthetic Debt of such Person, (f) all Obligations of such Person arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments, (g) all Obligations of such
Person to purchase, redeem, retire, defease or otherwise make any payment in
respect of any Equity Interests in such Person or any other Person or any
warrants, rights or options to acquire such Equity Interests, valued, in the
case of Redeemable Preferred Interests, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, (h) all
Obligations of such Person in respect of Hedge Agreements, valued at the
Agreement Value thereof, (i) all Guarantee Obligations of such Person, and (j)
all indebtedness and other payment Obligations referred to in clauses (a)
through (i) above of another Person secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by) any Lien
on property (including, without limitation, accounts and contract rights) owned
by such Person, even though such Person has not assumed or become liable for the
payment of such indebtedness or other payment Obligations.

     

    “Debtor Relief Law”
means the Bankruptcy Code and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief laws of the
United States or any other applicable jurisdiction from time to time in effect
and affecting the rights of creditors generally.

     

    “Default” means any
Event of Default or any event that would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.

     

    
      
         

      

      
        11

        
          

        

      

      
         

      

    

     

    “Defaulting Lender”
means, subject to Section 2.16(b), any Lender that, as determined by the
Administrative Agent in good faith, (a) has failed to perform any of its funding
obligations hereunder, including in respect of its Advances or participations in
respect of Letters of Credit or Swing Line Advances, within three Business Days
of the date required to be funded by it hereunder,  (b) has notified
the Borrowers or the Administrative Agent that it does not intend to comply with
its funding obligations or has made a public statement to that effect with
respect to its funding obligations hereunder or under other agreements in which
it commits to extend credit, (c) has failed, within three Business Days after
request by the Administrative Agent, to confirm in a manner satisfactory to the
Administrative Agent that it will comply with its funding obligations, or (d)
has, or has a direct or indirect parent company that has, (i) become the subject
of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator,
trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or a custodian
appointed for it, or (iii) taken any action in furtherance of, or indicated its
consent to, approval of or acquiescence in any such proceeding or appointment;
provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority.

     

    “Designated Litigation
Liabilities” means liabilities for litigation matters the liabilities for
which have been estimated or determined under and in accordance with the Plan
and/or Disclosure Statement.

     

    “Disclosure Statement”
means that certain disclosure statement dated as of August 4, 2010 and filed
with the Bankruptcy Court with respect to the Cases, as amended, supplemented,
amended and restated or otherwise modified from time to time.

     

    “Dodd-Frank Act” means
the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203,
H.R. 4173) signed into law on July 21, 2010, as amended from time to
time.

     

    “Domestic Lending
Office” means, with respect to any Lender Party, the office of such
Lender Party specified as its “Domestic Lending Office” opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender Party, as the case may be, or such other office of such Lender
Party as such Lender Party may from time to time specify to the Borrowers and
the Administrative Agent.

     

    “EBITDA” means, for
any Person for any period, Consolidated Net Income of such Person plus (a)
without duplication, to the extent included in the calculation of Consolidated
Net Income of such Person for such period in accordance with GAAP, the sum of
(i) provision for taxes based on income or profits of such Person and its
Subsidiaries, plus (ii) Fixed Charges (as defined in the Term Facility Credit
Agreement in effect as of the date hereof), (iii) depreciation, (iv)
amortization, and (v) other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an amortization of a prepaid cash
expense that was paid in a prior period) minus (b) the sum of (i) non-cash items
increasing such Consolidated Net Income for such period, other than the accrual
of revenue in the ordinary course of business, and (ii) any cash expense paid in
such period that had been accrued or reserved for as a non-cash expense (for
expenses in any future period) and added back in the calculation of EBITDA in a
prior period, except to the extent that such expense decreased Consolidated Net
Income for such period in accordance with GAAP, plus (c) items reducing
Consolidated Net Income of such Person confirmed by the chief financial officer
of the Company in a certificate delivered to the Administrative Agent to be
directly related to restructuring (including but not limited to facility closure
and severance expense), asset impairments or other extraordinary items and fees
(including professional fees) and expenses, in each case incurred through the
end of the Company’s fiscal quarter ended March 31, 2011 in connection with the
Cases and/or the Company’s emergence from Chapter 11 of the Bankruptcy Code
pursuant to the Plan and/or the financings expressly contemplated by the Plan
and/or the Disclosure Statement, plus (d) charges for legal and other expenses
in connection with Designated Litigation Liabilities in an aggregate amount not
to exceed $15,000,000, in the case of each of the foregoing clauses (a) through
(d), for such Person and its Subsidiaries on a Consolidated basis in accordance
with GAAP.  Except for purposes of the definition of “Excess Cash
Flow”, EBITDA shall be calculated on a Pro Forma Basis.  For purposes
of calculating EBITDA for any month that ends prior to the Effective Date,
EBITDA for each such month set forth in Schedule 1.01A hereto shall be deemed to
be the amount set forth opposite such month in Schedule 1.01A.

     

    
      
         

      

      
        12

        
          

        

      

      
         

      

    

     

    “Effective Date” has
the meaning specified in Section 3.01.

     

    “Effective Date Debt”
has the meaning specified in Section 5.02(b).

     

    “Eligible Assignee”
means (i) a Lender Party; (ii) an Affiliate of a Lender Party; (iii) an Approved
Fund; and (iv) any other Person (other than an individual) approved by (w) the
Administrative Agent, (x) each Issuing Bank, (y) the Swing Line Lender and (z)
unless an Event of Default has occurred and is continuing, the Company (such
approval not to be unreasonably withheld or delayed, and provided that if the
Company shall not grant or deny any such approval in writing within 10 days of
any request therefor, such approval shall be deemed to have been given); provided, however, that neither
any Loan Party nor any Affiliate of a Loan Party shall qualify as an Eligible
Assignee under this definition.

     

    “Eligible
Inventory” means, at the time of
any determination thereof, without duplication, the Inventory Value of the
Borrowers at such time that is not ineligible for inclusion in the calculation
of the Borrowing Base pursuant to any of clauses (a) through (m)
below.  No Inventory shall be deemed Eligible Inventory if, without
duplication:

     

    (a) a
Borrower does not have good, valid and unencumbered title thereto, subject only
to Liens granted to the Administrative Agent for the benefit of the Secured
Parties under the Loan Documents, Permitted Liens and Liens that are subject to
the Intercreditor Agreement; or

     

    (b) it is not
located in the United States; or

     

    (c) it is
either (i) not located on property owned by a Borrower or (ii) located at a
third party processor or (except in the case of consigned Inventory, which is
covered by clause (f) below) in another location not owned by a Borrower (it
being understood that the Company will provide its best estimate of the value of
such Inventory to be agreed to by the Administrative Agent and reflected in the
Borrowing Base Certificate), and either (A) is not covered by a Collateral
Access Agreement, (B) a Rent Reserve has not been taken with respect to such
Inventory or, in the case of any third party processor, a Reserve has not been
taken by the Administrative Agent in the exercise of its reasonable discretion
or (C) is not subject to an enforceable agreement in form and substance
reasonably satisfactory to the Administrative Agent pursuant to which the
relevant Borrower has validly assigned its access rights to such Inventory and
property to the Administrative Agent; provided, however, that no
Inventory of a Person that is not a Borrower as of the Effective Date but
becomes a Borrower after the Effective Date shall be deemed ineligible solely
pursuant to this clause (c) during the 40-day period following the later of (x)
the date such Person becomes a Borrower and (y) such later date as the
Administrative Agent may reasonably determine (it being understood that such
later date shall not be more than 20 days after the end of such 40-day period);
provided, further, however, that during
the 60-day period following the Effective Date (or such later date as the
Administrative Agent reasonably determines), no Inventory of a Person at any
location shall be deemed ineligible pursuant to this clause (c) so long as a
Rent Reserve is taken with respect to such location (and such Rent Reserve shall
be taken with respect to such location if the Borrower shall so notify the
Administrative Agent) in an amount equal to the “Rent Reserve” taken under the
Existing DIP Agreement with respect to such location immediately prior to the
Effective Date; or

     

    
      
         

      

      
        13

        
          

        

      

      
         

      

    

     

    (d) it is
operating supplies, labels, packaging or shipping materials, cartons, repair
parts, labels or miscellaneous spare parts, nonproductive stores inventory and
other such materials, in each case not considered used for sale in the ordinary
course of business of the Borrowers by the Administrative Agent in its
reasonable discretion from time to time; or

     

    (e) it is not
subject to a valid and perfected first priority Lien in favor of the
Administrative Agent subject only to Permitted Liens (it being understood that
Eligible Inventory may be subject to a second priority Lien securing the Term
Facility in accordance with the Intercreditor Agreement); or

     

    (f) it has
been sold or is consigned at a customer, supplier or contractor location but
still accounted for in the Borrowers’ inventory balance; or

     

    (g) it is in
transit (unless it is in transit from one location within the United States of a
Borrower to another location of a Borrower within the United States and as to
which a Reserve has been taken by the Administrative Agent in the exercise of
its reasonable discretion); or

     

    (h) it is
obsolete, slow-moving, nonconforming or unmerchantable or is identified as a
write-off, overstock or excess by a Borrower, or does not otherwise conform to
the representations and warranties contained in this Agreement and the other
Loan Documents applicable to Inventory; or

     

    (i) it is
Inventory used as a sample or prototype, display or display item;
or

     

    (j) and to
the extent any portion of Inventory Value thereof is attributable to
intercompany profit among Borrowers or their Affiliates; or

     

    (k) it is
damaged, defective or marked for return to vendor, has been deemed by a Loan
Party to require rework or is being held for quality control purposes;
or

     

    (l) it does
not meet all material applicable standards imposed by any Governmental Authority
having regulatory authority over it; or

     

    (m) in the
case it is owned by a Person that is not a Borrower as of the Effective Date but
becomes a Borrower after the Effective Date, as to which the Administrative
Agent shall not have completed its due diligence investigation in scope, and
with results, satisfactory to the Administrative Agent (the Administrative Agent
hereby agrees to use its commercially reasonable efforts to complete its due
diligence investigation of any such Person on or prior to the date such Person
becomes a Borrower; provided the Administrative Agent is given all diligence
information on a timely basis pursuant to Section 5.01(n)(iv)).

     

    
      
         

      

      
        14

        
          

        

      

      
         

      

    

     

    “Eligible Receivables”
means, at the time of any determination thereof, each Account that satisfies the
following criteria: such Account (i) has been invoiced to, and represents the
bona fide amounts due to a Borrower from, the purchaser of goods or services, in
each case originated in the ordinary course of business of such Borrower and
(ii) is not ineligible for inclusion in the calculation of the Borrowing Base
pursuant to any of clauses (a) through (w) below.  In determining the
amount to be so included, the face amount of an Account shall be reduced by,
without duplication, to the extent not reflected in such face amount, (A) the
amount of all accrued and actual discounts, claims, credits or credits pending,
promotional program allowances, price adjustments, finance charges or other
allowances (including any amount that a Borrower may be obligated to rebate to a
customer pursuant to the terms of any written agreement or understanding), (B)
the aggregate amount of all limits and deductions provided for in this
definition and elsewhere in this Agreement, if any, and (C) the aggregate amount
of all cash received in respect of such Account but not yet applied by a
Borrower to reduce the amount of such Account.  No Account shall be an
Eligible Receivable if, without duplication:

     

    (a) any
representation or warranty contained in this Agreement or any other Loan
Document with respect to such specific Account is not true and correct with
respect to such Account; or

     

    (b) the
Account Debtor on such Account has disputed liability or made any claim with
respect to such Account or any other Account due from such Account Debtor to any
Borrower but only to the extent of such dispute or claim; or

     

    (c) the
Account Debtor in respect of such Account or any of its Affiliates is also a
supplier to any Borrower; provided that such
Account shall be ineligible pursuant to this clause (c) only to the extent of an
amount equal to the aggregate amount of accounts payable or other indebtedness
owing by the Borrowers to such Account Debtor or any of its Affiliates as at
such date, unless the Account Debtor has executed a satisfactory no-offset
letter; or

     

    (d) the
transaction represented by such Account is to an Account Debtor which, if a
natural person, is not a resident of the United States or, if not a natural
person, is organized under the laws of a jurisdiction outside the United States
or has its chief executive office outside the United States, unless (i) such
Account is backed by a letter of credit in customary and reasonable form from an
issuer reasonably deemed creditworthy by the Administrative Agent, which letter
of credit is reasonably acceptable to the Administrative Agent in its reasonable
discretion and such letter of credit names the Administrative Agent as the
beneficiary or the issuer of such letter of credit has consented to the
assignment of the proceeds thereof to the Administrative Agent, (ii) such
Account Debtor is, if a natural person, a resident of Canada or the United
Kingdom or, if not a natural person, is organized under the laws of the United
Kingdom, Canada or a province of Canada and has its chief executive office in
the United Kingdom or Canada, as applicable, and such Account is denominated in
U.S. Dollars, (iii) such Account Debtor is listed on Schedule II or (iv) such
Account is backed by insurance reasonably acceptable to the Administrative Agent
and the relevant insurance policy names the Administrative Agent as additional
insured and loss payee; provided that if the
Account Debtor is located in a jurisdiction outside the United States, the
United Kingdom or Canada, this clause (d) shall not apply with respect to
Accounts to the extent that such Accounts are denominated in U.S. Dollars and
arise from sales of inventory shipped from the United States and the face amount
thereof does not exceed 10% of the face amount of all Eligible Receivables;
or

     

    
      
         

      

      
        15

        
          

        

      

      
         

      

    

     

    (e) the sale
to the Account Debtor on such Account is on a bill-and-hold, guaranteed sale,
sale-and-return, sale-on-approval or consignment basis; or

     

    (f) such
Account is not subject to a valid and perfected first priority Lien in favor of
the Administrative Agent for the benefit of the Secured Parties; or

     

    (g) such
Account is subject to any deduction, offset, counterclaim, return privilege or
other conditions; or

     

    (h) the
Account Debtor on such Account is located in any State of the United States
requiring the holder of such Account, as a precondition to commencing or
maintaining any action in the courts of such State either to (i) receive a
certificate of authorization to do business in such State or be in good standing
in such State or (ii) file a Notice of Business Activities Report with the
appropriate office or agency of such State, in each case unless the holder of
such Account has received such a certificate of authority to do business, is in
good standing or, as the case may be, has duly filed such a notice in such
State; or

     

    (i) the
Account Debtor on such Account is a Governmental Authority, unless the
applicable Borrower has assigned its rights to payment of such Account to the
Administrative Agent pursuant to the Assignment of Claims Act of 1940, as
amended, in the case of a federal Governmental Authority, and pursuant to
applicable law, if any, in the case of any other Governmental Authority, and
such assignment has been accepted and acknowledged by the appropriate government
officers; or

     

    (j) 50% or
more of the face amount of the Accounts of the Account Debtor are not, or are
determined by the Administrative Agent not to be, Eligible Receivables as a
result of the provisions of clause (o) below; or

     

    (k) the
payment obligation represented by such Account is denominated in a currency
other than U.S. Dollars; or

     

    (l) such
Account is not evidenced by an invoice or other writing in form acceptable to
the Administrative Agent, in its sole discretion; or

     

    (m)  any
Borrower, in order to be entitled to collect such Account, is required to
deliver any additional goods or merchandise to, perform any additional service
for, or perform or incur any additional obligation to, the Person to whom or to
which it was made; or

     

    (n) the total
Accounts of the Account Debtor on such Account to the Borrowers (taken as a
whole) represent (a) if such Account Debtor has an Investment Grade Rating, more
than 15% of the face amount of the Eligible Receivables of the Borrowers (taken
as a whole) at such time, or (b) if such Account Debtor does not have an
Investment Grade Rating, more than 5% of the face amount of the Eligible
Receivables of the Borrowers (taken as a whole) at such time, but in each case
only to the extent of such excess; or

     

    
      
         

      

      
        16

        
          

        

      

      
         

      

    

     

    (o) such
Account (or any portion thereof) remains unpaid for more than (x) 60 days from
the original payment due date, or (y) 90 days from the original invoice date
thereof, except that for purposes of clause (y) above, in the case of an Account
that is a Long Term Account, such Account shall be an Eligible Receivable for
the period commencing with the day that is 180 days prior to the original
payment due date for such Account until the day that is 60 days after the
original payment due date for such Account, notwithstanding that such Account
remains unpaid for more than 90 days from the original invoice date thereof;
provided that
the total Long Term Accounts that represent (A) on any day in the month of
January, February, March, April, May or June, more than 35%, (B) on any day in
the month of July, more than 20%, (C) on any day in the month of August,
September or October, more than 10% or (D) on any day in the month of November
or December, more than 15%, in each case, of the face amount of the Eligible
Receivables of the Account Debtors (taken as a whole) at such time, shall not be
Eligible Receivables to the extent of such excess); or

     

    (p) the
Account Debtor on such Account has (i) filed a petition for bankruptcy or any
other relief under any Debtor Relief Law, (ii) made an assignment for the
benefit of creditors, (iii) had filed against it any petition or other
application for relief under any Debtor Relief Law, (iv) failed, suspended
business operations, become insolvent, called a meeting of its creditors for the
purpose of obtaining any financial concession or accommodation or (v) had or
suffered a receiver or a trustee to be appointed for all or a significant
portion of its assets or affairs; or

     

    (q) such
Account is not payable into a deposit account maintained with the Administrative
Agent or which is the subject of an account control agreement described in
Section 5.01(k); provided that no such
Account shall be deemed ineligible pursuant to this clause (q) solely because it
is not payable into a deposit account meeting the foregoing requirements until
such time as the Borrowers are required to have obtained control agreements with
respect to such deposit account under Section 5.01(k); or

     

    (r) such
Account does not arise under a Contract which has been duly authorized and
which, together with such Account, is in full force and effect and constitutes
the legal, valid and binding obligation of the Account Debtor of such Account
enforceable against such Account Debtor in accordance with its terms;
or

     

    (s) such
Account, together with the Contract related thereto, contravenes in any material
respect any laws, rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to usury, consumer protection,
truth in lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy) or with respect to
which any party to the Contract related thereto is in violation of any such law,
rule or regulation in any material respect; or

     

    (t) the
inventory giving rise to such Account has not been sent to the Account Debtor or
the services giving rise to such Account have not yet been rendered to the
Account Debtor; or

     

    
      
         

      

      
        17

        
          

        

      

      
         

      

    

     

    (u) the sale
to such Account Debtor on such Account is not a final sale; or

     

    (v) such
Account relates to inventory not yet shipped or services not yet rendered;
or

     

    (w) in the
case such Account is owned by a Person that is not a Borrower as of the
Effective Date but becomes a Borrower after the Effective Date, as to which the
Administrative Agent shall not have completed its due diligence investigation in
scope, and with results, satisfactory to the Administrative Agent (the
Administrative Agent hereby agrees to use its commercially reasonable efforts to
complete its due diligence investigation of any such Person on or prior to the
date such Person becomes a Borrower; provided the Administrative Agent is given
all diligence information on a timely basis pursuant to Section
5.01(n)(iv)).

     

    For the
avoidance of doubt, it is acknowledged and agreed that any calculation of
ineligibility made pursuant to more than one clause above shall be made without
duplication.

     

    “EMU” means the
economic and monetary union as contemplated in the Treaty on European
Union.

     

    “Environmental Action”
means any action, suit, written demand, demand letter, claim, notice of
noncompliance or violation, written notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating to any
Environmental Law, any Environmental Permit, or Hazardous Material, or arising
from alleged injury or threatened injury to public or employee health and
safety, as such relates to exposure to Hazardous Material, or to pollution or
protection of the environment, including, without limitation, (a) by any
governmental or regulatory authority for enforcement, cleanup, removal, response
or remedial action and (b) by any governmental or regulatory authority or
third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.

     

    “Environmental Law”
means any applicable federal, state, local or foreign statute, law, ordinance,
rule, regulation, code, order, writ, judgment, injunction or decree, or legally
binding judicial or agency interpretation, relating to pollution or protection
of the environment, public or employee health and safety, as such relates to
exposure to Hazardous Material, or natural resources, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.

     

    “Environmental Permit”
means any permit, approval, identification number, license or other
authorization required under any Environmental Law.

     

    “Equity Interests”
means, with respect to any Person, shares of capital stock of (or other
ownership or profit interests in) such Person, warrants, options or other rights
for the purchase or other acquisition from such Person of shares of capital
stock of (or other ownership or profit interests in) such Person, securities
convertible into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person (including,
without limitation, partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are authorized on any date of determination.

     

    “ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and the regulations promulgated and rulings issued thereunder.

     

    
      
         

      

      
        18

        
          

        

      

      
         

      

    

     

    “ERISA Affiliate”
means any Person that for purposes of Title IV of ERISA is a member of the
controlled group of any Loan Party, or under common control with any Loan Party,
within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and
Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions
relating to Section 412 of the Internal Revenue Code).

     

    “ERISA Event” means
(a) the occurrence of a reportable event, within the meaning of Section 4043 of
ERISA, with respect to any ERISA Plan (other than any such event with respect to
which the notice requirement has been waived pursuant to applicable regulations
in effect as of the date hereof); (b) the application by a Loan Party or any
ERISA Affiliate for a minimum funding waiver with respect to an ERISA Plan; (c)
the provision by the administrator of any ERISA Plan of a notice of intent to
terminate such ERISA Plan, pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of any Loan Party or
any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a
Lien under Section 302(f) of ERISA on the assets of any Loan Party or ERISA
Affiliate shall have been met with respect to any ERISA Plan; (g) the adoption
of an amendment to an ERISA Plan requiring the provision of security by any Loan
Party or ERISA Affiliate to such ERISA Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate an ERISA Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, such ERISA Plan.

     

    “ERISA Plan” means a
Single Employer Plan or a Multiple Employer Plan.

     

    “Estimation/Settlement
Orders” has the meaning specified in Section 3.01(b).

     

    “Euro”, “€” and “EUR” means the single
currency of participating member states of the EMU.

     

    “Eurodollar Base Rate”
has the meaning specified in the definition of Eurodollar Rate.

     

    “Eurodollar Lending
Office” means, with respect to any Lender Party, the office of such
Lender Party specified as its “Eurodollar Lending Office” opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender Party, as the case may be, or such other office of such Lender
Party as such Lender Party may from time to time specify to the Borrowers and
the Administrative Agent.

     

    “Eurodollar Rate”
means:

     

    (a) for
any Interest Period with respect to a Eurodollar Rate Advance, a rate per annum
equal to the rate per annum determined by the Administrative Agent pursuant to
the following formula:

     

    
      	
              Eurodollar
      Rate  =

            	 	
                               Eurodollar
      Base Rate

            	 
	 	 	      
              1.00
      – Eurodollar Rate Reserve Percentage

            	 


    

     

    where,

     

    
      
         

      

      
        19

        
          

        

      

      
         

      

    

     

    “Eurodollar Base Rate”
means, for such Interest Period, the rate per annum equal to the British Bankers
Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or such other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two London Banking Days prior to
the commencement of such Interest Period, for Dollar deposits (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period.  If such rate is not available at such time for any reason,
then the “Eurodollar Base Rate” for such Interest Period shall be the rate per
annum determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Advance being made, continued
or converted by Bank of America and with a term equivalent to such Interest
Period would be offered by Bank of America’s London Branch to major banks in the
London interbank Eurodollar market at their request at approximately 11:00 a.m.
(London time) two London Banking Days prior to the commencement of such Interest
Period; and

     

    (b)           for
any interest calculation with respect to a Base Rate Loan on any date, a rate
per annum determined by the Administrative Agent pursuant to the following
formula:

    
       

      
        	
                Eurodollar
      Rate  =

              	 	
                                 Eurodollar
      Base Rate

              	 
	 	 	      
                1.00
      – Eurodollar Rate Reserve Percentage

              	 


      

       

    

    where,

     

    “Eurodollar Base Rate”
means the rate per annum equal to (i) BBA LIBOR, as published by Reuters (or
such other commercially available source providing quotations of BBA LIBOR as
may be designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two London Banking Days prior to such
date, for Dollar deposits with a term of one month commencing on such date or,
(ii) if such rate is not available at such time for any reason, the rate per
annum determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on such date in same day funds in the approximate amount of
the Base Rate Advance being made, continued or converted and with a term equal
to one month would be offered by Bank of America’s London Branch to major banks
in the London interbank Eurodollar market at their request at approximately
11:00 a.m. (London time), two London Banking Days prior to such
sale.

     

    “Eurodollar Rate
Advance” means an Advance that bears interest at a rate based on clause
(a) of the definition of “Eurodollar Rate.”

     

    “Eurodollar Rate Reserve
Percentage” means, for any day during any Interest Period, the reserve
percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations
issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”).  The Eurodollar Rate for each outstanding Eurodollar
Rate Advance shall be adjusted automatically as of the effective date of any
change in the Eurodollar Rate Reserve Percentage.

     

    “Events of Default”
has the meaning specified in Section 6.01.

     

    
      
         

      

      
        20

        
          

        

      

      
         

      

    

     

    “Excluded Accounts”
means payroll accounts, trust accounts, escrow accounts or security deposits
established pursuant to statutory obligations or for the payment of taxes or
holding funds in trust for third parties not affiliated with the Company in the
ordinary course of business or in connection with acquisitions, investments or
dispositions permitted under this Agreement, deposits in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and
other types of social security, and reserve accounts expressly contemplated
under the Plan and/or Disclosure Statement (including, but not limited to
reserves expressly contemplated under the Plan and/or Disclosure Statement for
diacetyl claims and environmental claims), and escrow accounts established
pursuant to contractual obligations to third parties not affiliated with the
Company for casualty payments and insurance proceeds, or deposit accounts
holding deposits below $1,000,000.

     

    “Excluded Subsidiary”
means (a) any Foreign Subsidiary, (b) any Subsidiary of the Company that is not
a Foreign Subsidiary if substantially all of its assets consist of Equity
Interests of one or more direct or indirect Foreign Subsidiaries, (c) any
Receivables Entity, and (d) any wholly owned Subsidiary of the Company that is
not a Foreign Subsidiary but that is a Subsidiary of a Foreign
Subsidiary.

     

    “Exempt Account” means
each of the deposit accounts listed on Schedule 5.02(r) and each other deposit
account that is opened after the Effective Date for similar operating or
disbursement purposes and not for purposes of collecting payments on
Accounts.

     

    “Existing DIP
Agreement” has the meaning specified in the Preliminary
Statements.

     

    “Existing Letter of
Credit” means each “Letter of Credit” (as defined in the Existing DIP
Agreement) issued under the Existing DIP Agreement and outstanding on the
Effective Date (each of which that is outstanding as of the date hereof is set
forth on Schedule IV).

     

    “Extraordinary
Receipt” means any proceeds of property or casualty insurance (in any
event excluding proceeds of business interruption insurance to the extent such
proceeds constitute compensation for lost earnings) and condemnation awards in
respect of any Revolving Facility Collateral (and payments in lieu
thereof).

     

    “Extraordinary Receipts
Proceeds” has the meaning specified in Section 2.06(b)(i).

     

    “Facility” means the
Revolving Credit Facility and/or the Letter of Credit Sublimit and/or the Swing
Line Sublimit.

     

    “Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate (rounded upward, if necessary,
to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on
such transactions as determined by the Administrative Agent.

     

    
      
         

      

      
        21

        
          

        

      

      
         

      

    

     

    “Fee Letters” means
each of (i) the fee letter dated August 11, 2010 between the Company and Bank of
America and (ii) the fee letter dated August 11, 2010 among the Company and the
Bookrunners.

     

    “Fiscal Year” means a
fiscal year of the Company and its Subsidiaries ending on December
31.

     

    “Fitch” means Fitch
Ratings Ltd.

     

    “Fixed Charge Coverage
Ratio” means, at any time, the ratio, determined on a Consolidated basis
for the Company and its Subsidiaries for the most recently ended period of
twelve fiscal months, of (a) EBITDA for such period minus Capital Expenditures
made (other than those funded by the issuance of Debt (it being understood such
Debt does not include Debt borrowed under this Agreement) or equity) during such
period minus taxes paid in cash during such period (to the extent added back to
net income in the calculation of EBITDA for such period), to (b) the sum of (i)
Interest Expense paid in cash during such period (minus the sum of (A) total
cash interest income and (B) net payments received with respect to interest rate
Hedge Agreements, in each case for such period) plus (ii) scheduled principal
payments (it being understood that scheduled principal payments shall not
include mandatory prepayments required as a result of an event other than the
occurrence of a certain date) made on borrowed money plus (iii) declared or paid
dividends or other distributions, or repurchases, redemption or other
acquisition or retirement for value, in each case to the extent paid (or
declared for payment) in cash with respect to capital stock (except that this
clause (iii) shall not include such payments made or declared (1) to the Company
or its Subsidiaries or (2) by a Subsidiary of the Company to a person other than
the Company or its Subsidiaries if such payment or declaration is made ratably
to holders of the relevant class of capital stock of the relevant Subsidiary),
plus (iv) to the extent not deducted from Consolidated net income to determine
EBITDA during such period, amounts paid during such period with respect to any
(A) environmental liabilities, and (B) pension and other post employment benefit
liabilities. Notwithstanding anything herein to the contrary, (A) the amounts
described in clauses (i), (ii), (iii) and (iv) of the preceding sentence shall
not include amounts paid as contemplated under and in accordance with the Plan
and/or Disclosure Statement, (B) the initial contribution (and the payments made
to fund such contribution) made by any Foreign Subsidiary to its pension plan on
or after the Effective Date in an aggregate amount not in excess of $25 million
shall be deemed to be contemplated under (and made in accordance with) the Plan
and the Disclosure Statement, (C) the Fixed Charge Coverage Ratio shall be
calculated on a Pro Forma Basis, and (D) for purposes of calculating the Fixed
Charge Coverage Ratio for any portion of the relevant 12-month period that
occurs prior to the Effective Date, the amounts described in clauses (i), (ii),
(iii) and (iv) of the preceding sentence for each month set forth in Schedule
1.01A hereto shall be deemed to be the amount set forth opposite such month in
Schedule 1.01A.

     

    “Fixed Charge and Liquidity
Conditions” means, on any date of determination of whether the Fixed
Charge and Liquidity Conditions are satisfied with respect to a particular
transaction, that (i) immediately after giving effect to such transaction, on a
Pro Forma Basis, the Fixed Charge Coverage Ratio shall be no less than 1.10:1.00
and (ii) both the Average Excess Availability for the 30 day period ending on
such date of determination and the Availability on such date of determination
shall not be less than the greater of $40,000,000 and 20% of the aggregate
Revolving Credit Commitments then in effect.

     

    
      
         

      

      
        22

        
          

        

      

      
         

      

    

     

    “Foreign Subsidiary”
means, at any time, any of the direct or indirect Subsidiaries of the Company
that are organized outside of the laws of the United States or any state or
political subdivision thereof at such time.

     

    “Foreign Asset Based
Financing” means any asset-based financing (including receivables and/or
and inventory based financing), factoring arrangements or other securitization
programs, in each case entered into by Foreign Subsidiaries; provided that
Foreign Asset Based Financing Obligations shall be considered Debt, and the
“principal amount” of a Foreign Asset Based Financing that is not indebtedness
for borrowed money shall mean the amount invested by investors that are not
Affiliates of the Company and paid to the Company or its Subsidiaries, as
reduced by the aggregate amounts received by such investors from the payment of
receivables and applied to reduce such invested amounts.

     

    “Fronting Exposure”
means, at any time there is a Defaulting Lender, (a) with respect to the Issuing
Banks, such Defaulting Lender’s Pro Rata Share of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof and (b) with respect to the
Swing Line Lender, such Defaulting Lender’s Pro Rata Share of Swing Line
Advances other than Swing Line Advances as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof.

     

    “Fund” means any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its activities.

     

    “GAAP” has the meaning
specified in Section 1.03.

     

    “Governmental
Authority” means any nation, sovereign or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
including any central bank.

     

    “Granting Lender” has
the meaning specified in Section 10.07(k).

     

    “GS” has the meaning
specified in the recital of parties to this Agreement.

     

    “Guarantee Obligation”
means, with respect to any Person, any Obligation or arrangement of such Person
to guarantee or intended to guarantee any Debt (“primary obligations”) of any
other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, (a) the direct or indirect guarantee,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to make
take-or-pay or similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement or (c) any Obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (A) for the purchase or payment of any such primary
obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, assets, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof.  The amount of any
Guarantee Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made (or, if less, the maximum amount of such primary obligation
for which such Person may be liable pursuant to the terms of the instrument
evidencing such Guarantee Obligation) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder), as determined by such Person in good
faith.

     

    
      
         

      

      
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    “Guarantor” means (i)
those Subsidiaries of the Company that enter into the Guaranty on the Effective
Date, which Subsidiaries are listed on Schedule 1.01C annexed hereto, and are
the same as the guarantors under the Senior Notes and the Term Facility, and
(ii) each direct Subsidiary of any Loan Party to the extent that such direct
Subsidiary (A) is a Material Subsidiary formed or acquired after the Effective
Date and required to execute and deliver a counterpart to the Guaranty pursuant
to Section 5.01(m) or (B) otherwise has delivered a counterpart to the Guaranty
and remains a guarantor thereunder in accordance with the terms
thereof.

     

    “Guaranty” means a
guaranty substantially in the form attached hereto as Exhibit G, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms.

     

    “Guaranty Supplement”
has the meaning set forth in the Guaranty.

     

    “Hazardous Materials”
means (a) petroleum or petroleum products, by-products or breakdown
products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls, toxic mold and radon gas and (b) any other chemicals, materials
or substances designated, classified or regulated as hazardous, toxic or words
of similar import under any Environmental Law.

     

    “Hedge Agreements”
means interest rate swap, cap or collar agreements, interest rate future or
option contracts, currency swap agreements, currency future or option contracts
and other hedging agreements.

     

    “Honor Date” has the
meaning specified in Section 2.03(c).

     

    “Immaterial
Subsidiary” means any Subsidiary of the Company meeting any one of the
following conditions that has been designated by the Company as an Immaterial
Subsidiary in a writing delivered to the Administrative Agent (which designation
may be rescinded by the Company’s delivery of written notice of such rescission
to the Administrative Agent): (a) the consolidated total assets of such
Subsidiary determined as of the end of the fiscal year of the Company most
recently ended for which financial statements are required to be delivered under
Section 5.03 does not exceed $5 million, or (b) the EBITDA of such Subsidiary
does not exceed $5 million, for the period of four consecutive quarters of the
Company most recently ended for which financial statements are required to be
delivered pursuant to Section 5.03; provided that, at any
time or from time to time, Subsidiaries shall not be designated as Immaterial
Subsidiaries to the extent that the Immaterial Subsidiaries would represent, in
the aggregate, (a) 5% or more of the consolidated total assets of the Company at
the end of the most recently ended fiscal year of the Company or (b) 5% or more
of the EBITDA of the Company for the most recently ended fiscal year, in each
case, based upon the most recent financial statements required to be delivered
pursuant to Section 5.03; provided, further, that, if the
most recent financial statements required to be delivered pursuant to Section
5.03 for any fiscal quarter indicate that, by reason of subsequent changes
following the designation of any one or more Subsidiaries as an Immaterial
Subsidiary, the foregoing requirements of this definition would not be complied
with (other than as a result of an impairment charge), individually or in the
aggregate, then the Company shall use commercially reasonable efforts to
promptly (but in any event within 180 days after the delivery of such financial
statements) rescind such designations as are necessary so as to comply with such
requirements and, in connection therewith, shall comply with the requirements of
Section 5.01(m) (provided that any failure to comply with the requirements of
Section 5.01(m) that are applicable as a result of such a rescission shall not
constitute a Default or Event of Default hereunder until the expiration of such
180-day period, provided that such efforts are used).

     

    
      
         

      

      
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    “Incremental
Amendment” has the meaning specified in Section 2.19.

     

    “Indemnitees” has the
meaning specified in Section 10.04(b).

     

    “Information” has the
meaning specified in Section 10.11.

     

    “Initial Extension of
Credit” means the earlier to occur of the initial Borrowing and the
initial issuance of a Letter of Credit hereunder.

     

    “Initial Issuing Bank”
has the meaning specified in the recital of parties to this
Agreement.

     

    “Initial Lenders”
means the banks, financial institutions and other institutional lenders listed
on the signature pages hereof as the Initial Lenders, which shall consist of the
Bookrunners and/or their Affiliates; provided that any
such bank, financial institution or other institutional lender shall cease to be
an Initial Lender on any date on which it ceases to have a
Commitment.

     

    “Initial Pledged Debt”
has the meaning specified in the Security Agreement.

     

    “Initial Pledged
Equity” has the meaning specified in the Security Agreement.

     

    “Insolvency
Proceeding” means any case or proceeding commenced by or against a Person
under any state, federal or foreign law for, or any agreement of such Person to,
(a) the entry of an order for relief under the Bankruptcy Code, or any other
insolvency, debtor relief or debt adjustment law; (b) the appointment of a
receiver, trustee, liquidator, administrator, conservator or other custodian for
such Person or any part of its property; or (c) an assignment or trust mortgage
for the benefit of creditors.

     

    “Intellectual Property
Security Agreement” means the intellectual property security agreement
dated as of the date hereof in substantially the form of Exhibit A to the
Security Agreement, together with each other security agreement supplement
delivered pursuant to Section 5.01(m).

     

    “Intercreditor
Agreement” means the Intercreditor Agreement dated as of the Effective
Date among the Borrowers, the initial Guarantors, the Administrative Agent, the
Collateral Agent, and the administrative agent and collateral agent under the
Term Loan Facility, in substantially the form of Exhibit D attached
hereto.

     

    “Interest Expense”
means, for any period, the sum for such period of (a) interest on, and
amortization of debt discount in respect of, Debt of the Company and its
Subsidiaries and (b) amortization of discount of receivables or other assets of
the Company and its Subsidiaries that are subject to factoring or securitization
programs.  Interest Expense shall be calculated on a Pro Forma
Basis.

     

    
      
         

      

      
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    “Interest Period”
means, as to each Eurodollar Rate Advance, the period commencing on the date
such Eurodollar Rate Advance is disbursed or Converted to or continued as a
Eurodollar Rate Advance and ending on the date one, two, three or six months
thereafter, as selected by the Borrowers in their Notice of Borrowing, provided
that:

     

    (a) any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day;

     

    (b) any
Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and

     

    (c) no
Interest Period shall extend beyond the Maturity Date.

     

    “Internal Revenue
Code” means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated and rulings issued
thereunder.

     

    “Inventory” has the
meaning specified in the UCC.

     

    “Inventory Value”
means with respect to any Inventory of a Borrower at the time of any
determination thereof, (a) the lower of market value and standard cost
determined on a first-in-first-out basis and carried on the general ledger or
inventory system of such Borrower stated on a basis consistent with its current
and historical accounting practices, in U.S. Dollars, determined in accordance
with the standard cost method of accounting less, (b) without
duplication, (i) any markup on Inventory from an affiliate and (ii) in the event
variances under the standard cost method are expensed, a reserve reasonably
determined by the Administrative Agent as appropriate in order to adjust the
standard cost of Eligible Inventory to approximate actual cost.

     

    “Investment” means,
with respect to any Person, (a) any direct or indirect purchase or other
acquisition (whether for cash, securities, property, services or otherwise) by
such Person of, or of a beneficial interest in, any Equity Interests or Debt of
any other Person, (b) any direct or indirect purchase or other acquisition
(whether for cash, securities, property, services or otherwise) by such Person
of all or substantially all of the property and assets of any other Person or of
any division, branch or other unit of operation of any other Person, (c) any
direct or indirect loan, advance, other extension of credit or capital
contribution by such Person to, or any other investment by such Person in, any
other Person (including, without limitation, any arrangement pursuant to which
the investor incurs indebtedness of the types referred to in clause (i) or
(j) of the definition of “Debt” set forth in
this Section 1.01 in respect of such other Person) and (d) any agreement
irrevocably binding such Person to make any Investment prior to the Stated
Maturity Date.  The amount of any Investment outstanding at any time
shall be the original cost of such Investment plus the cost of all additions
made thereto, without adjustment for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, but
deducting therefrom the amount of any cash repayments or distributions received
on account of such Investment by the Person making such Investment.

     

    “Investment Grade
Rating” with respect to a Person means that the Public Debt Rating of
such Person is at least BBB- by S&P and Baa3 by Moody’s and such rating
shall not be accompanied by either, in the case of S&P, a negative outlook,
creditwatch negative or the equivalent thereof, or in the case of Moody’s, a
negative outlook, a review for possible downgrade or the equivalent thereof (or,
if such Person does not have a Public Debt Rating from S&P and Moody’s, the
Public Debt Rating of such Person is at least BBB- by Fitch, and such rating
shall not be accompanied by a negative watch or the equivalent
thereof).

     

    
      
         

      

      
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    “ISP” means, with
respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice, Inc. (or
such later version thereof as may be in effect at the time of
issuance).

     

    “Issuance” or “issuance” means, with
respect to any Letter of Credit, the issuance (or the deemed issuance under
Section 2.03(a) in the case of any Existing Letter of Credit), amendment,
renewal or extension of such Letter of Credit. “issue”, “issues” and “issued”
have correlative meanings.

     

    “Issuing Bank” means
each Initial Issuing Bank (including any that issued an Existing Letter of
Credit), and any other Revolving Credit Lender approved as an Issuing Bank by
the Administrative Agent and any Eligible Assignee to which a Letter of Credit
Commitment hereunder has been assigned pursuant to Section 7.09 or
10.07.

     

    “Joint Venture” means
a joint venture formed by the Company or any Subsidiary of the Company and a
Person that is not an Affiliate of the Company or any Subsidiary of the
Company.

     

    “L/C Cash Collateral
Account” means the account established by the Borrowers in the name of
the Administrative Agent and under the sole and exclusive control of the
Administrative Agent that shall be used solely for the purposes set forth
herein.

     

    “L/C Obligations”
means, as at any date of determination, the aggregate Available Amount of all
outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all Letter of Credit Advances.

     

    “Lead Arrangers” has
the meaning specified in the recital of parties to this Agreement.

     

    “Lender Party” means
any Lender or any Issuing Bank.

     

    “Lenders” has the
meaning specified in the recital of parties to this Agreement  and, as
the context requires, includes the Swing Line Lender.

     

    “Letter of Credit”
means any letter of credit issued (or deemed issued in the case of any Existing
Letter of Credit) under Section 2.03.

     

    “Letter of Credit
Advance” means an advance made by any Issuing Bank or Revolving Credit
Lender pursuant to Section 2.03(c).

     

    “Letter of Credit
Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the
applicable Issuing Bank.

     

    “Letter of Credit
Commitment” means with respect to any Issuing Bank, at any time, the
obligation of such Issuing Bank to issue Letters of Credit pursuant to the terms
and conditions of this Agreement in the dollar amount (a) set forth
opposite such Issuing Bank’s name on Schedule I hereto under the caption
“Letter of Credit Commitment” or (b) if such Issuing Bank has entered into one
or more Assignment and Acceptances, set forth for such Issuing Bank in the
Register maintained by the Administrative Agent pursuant to
Section 10.07(d) as such Issuing Bank’s Letter of Credit Commitment, in
each case as the amount of such obligation may be reduced at or prior to such
time pursuant to Section 2.06.

     

    
      
         

      

      
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    “Letter of Credit Expiration
Date” means as of any date of determination, the day that is 5 Business
Days prior to the Maturity Date.

     

    “Letter of Credit
Sublimit” means an amount equal to the lesser of (a) the aggregate
amount of the Issuing Banks’ Letter of Credit Commitments at such time and
(b) $125,000,000 as such amount may be reduced from time to time pursuant
to Section 2.06. The Letter of Credit Sublimit is part of, and not in addition
to, the Revolving Credit Commitments.

     

    “Lien” means any lien,
security interest or other charge or encumbrance of any kind, or any other type
of preferential arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.

     

    “Listed Subsidiary”
has the meaning specified in Section 5.01(m).

     

    “Listed Subsidiary
Date” has the meaning specified in Section 5.01(m).

     

    “Loan Documents” means
(i) this Agreement, (ii) the Notes, if any, (iii) the Guaranty, (iv)
the Collateral Documents, (v) the Intercreditor Agreement, (vi) the Fee Letters,
(vii) solely for purposes of the Collateral Documents, each Secured Cash
Management Agreement, (viii) each Letter of Credit Application and (ix) any
other document, agreement or instrument executed and delivered by a Loan Party
in connection with the Facilities, in each case as amended, supplemented or
otherwise modified from time to time in accordance with the terms
thereof.

     

    “Loan Parties” means,
collectively, the Borrowers and the Guarantors.

     

    “London Banking Day”
means any day on which dealings in Dollar deposits are conducted by and between
banks in the London interbank eurodollar market.

     

    “Long Term Account”
means an Account that relates to a Contract (a) which has an original payment
due date that is more than 90 days after the invoice date specified in such
Contract and (b) pursuant to or under which the Account Debtor is obligated to
pay for crop protection goods or services or consumer goods or services
(including pool and spa treatment products and household cleaning
products).

     

    “Lyondell Property
Purchase” means the purchase, in the approximate amount of $3,600,000, of
certain real property (located in Lake Charles, Louisiana), equipment and
related assets from Lyondell Chemical Company in resolution of existing disputes
related to such property.

     

    “Margin Stock” has the
meaning specified in Regulation U.

     

    “Material Adverse
Change” means a material adverse change, or any event or occurrence which
could reasonably be expected to result in a material adverse change, in (a) the
business, condition (financial or otherwise), operations, performance,
properties, contingent liabilities, material agreements or prospects of the
Borrowers, the Guarantors and their respective Subsidiaries, taken as a whole
(it being understood that (i) matters disclosed prior to the date hereof in
connection with the Cases, and (ii) to the extent consistent with the disclosure
described in clause (i), the continuation and prosecution of the Cases, and the
filing, solicitation of approvals and negotiation of the Plan for the Cases,
shall not constitute such a change), (b) the rights and remedies of the
Administrative Agent or any Lender Party under any Loan Document and (c) the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party.

     

    
      
         

      

      
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    “Material Adverse
Effect” means a material adverse effect on (a) the business, condition
(financial or otherwise), operations, performance, properties, contingent
liabilities, material agreements or prospects of the Borrowers, the Guarantors
and their respective Subsidiaries, taken as a whole (it being understood that
(i) matters disclosed prior to the date hereof in connection with the Cases, and
(ii) to the extent consistent with the disclosure described in clause (i), the
continuation and prosecution of the Cases, and the filing, solicitation of
approvals and negotiation of the Plan for the Cases, shall not be deemed to have
such an effect),  (b) the rights and remedies of the Administrative
Agent or any Lender Party under any Loan Document and (c) the ability of any
Loan Party to perform its obligations under any Loan Document to which it is a
party.

     

    “Material Real
Property” means any real property owned or leased by any Loan Party
reasonably determined by the Administrative Agent to be material (it being
understood and agreed that no real property held on the date hereof is Material
Real Property unless it was already designated as such pursuant to the Existing
DIP Agreement).

     

    “Material Subsidiary”
means, on any date of determination, any Subsidiary of the Company that, on such
date, is not an Immaterial Subsidiary.

     

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

     

    “MLPF&S” has the
meaning specified in the recital of parties to this Agreement.

     

    “MNPI” has the meaning
specified in Section 10.12.

     

    “Moody’s” means
Moody’s Investor Services, Inc.

     

    “Mortgage Policies”
has the meaning specified in Section 3.01(f)(vi)(C)

     

    “Mortgages” has the
meaning specified in Section 3.01(f)(vi)(A).

     

    “Multiemployer Plan”
means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to
which any Loan Party or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.

     

    “Multiple Employer
Plan” means a single employer plan, as defined in Section 4001(a)(15) of
ERISA, that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and at least one Person that is not a Loan Party or an ERISA Affiliate
or (b) was so maintained and in respect of which any Loan Party or any ERISA
Affiliate would reasonably be expected to have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be
terminated.

     

    
      
         

      

      
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    “Net Cash Proceeds”
means, (a) with respect to any sale or other disposition of ownership of any
asset of any Borrower constituting Revolving Facility Collateral consummated
after the Effective Date (other than any sale or other disposition of assets
pursuant to Section 5.02(h)(i), (ii), (iii), (v), (vi), (vii), (viii), (ix),
(xi), (xiii), (xiv), (xv), (xvi), (xvii), (xviii), (xix), (xx); or (xxi)) or any
single sale or other disposition (or series of related sales or other
dispositions) of assets for cash proceeds of less than $50,000), the excess, if
any, of (i) the sum of cash and Cash Equivalents received in connection with
such sale or other disposition (including any cash or Cash Equivalents received
by way of deferred payment pursuant to, or by monetization of, a note receivable
or otherwise, but only as and when so received) over (ii) the sum of (A) the
amount required to be paid in respect of any Debt permitted hereunder (other
than Debt under the Loan Documents) that is secured by a lien permitted under
Section 5.02(a) on such asset and that is required to be repaid in connection
with such sale or other disposition thereof, (B) the reasonable and customary
out-of-pocket costs, fees, commissions, premiums and expenses incurred by such
Borrower or its Subsidiaries, (C) federal, state, provincial, foreign and local
taxes reasonably estimated (on a Consolidated basis) to be actually payable
within the current or the immediately succeeding tax year as a result of such
sale or other disposition, and (D) a reasonable reserve (which reserve shall be
deposited into an escrow account with the Administrative Agent) for any purchase
price adjustment or any indemnification payments (fixed and contingent) or other
liabilities attributable to the seller’s obligations to the purchaser undertaken
by such Borrower or any of its Subsidiaries in connection with such sale or
other disposition (but excluding any purchase price adjustment or any indemnity
which, by its terms, will not under any circumstances be made prior to the
Maturity Date); and

     

    (b) with
respect to any Extraordinary Receipt of any Borrower after the Effective Date
that is not otherwise included in clause (a) above, the excess, if any, of (i)
the sum of the cash and Cash Equivalents received in connection therewith over
(ii) the sum of (A) the amount required to be paid in respect of any Debt
permitted hereunder (other than Debt under the Loan Documents) that is secured
by a lien permitted under Section 5.02(a) on the assets giving rise to such
Extraordinary Receipt and that is required to be repaid in connection with such
Extraordinary Receipt, (B) the amount required to be paid with such
Extraordinary Receipt under the terms of any contractual obligations permitted
hereunder then in effect, (C) the reasonable and customary out-of-pocket costs,
fees, commissions, premiums and expenses incurred by such Borrower or its
Subsidiaries, and (D) federal, state, provincial, foreign and local taxes
reasonably estimated (on a Consolidated basis) to be actually payable within the
current or the immediately succeeding tax year as a result of such Extraordinary
Receipt.

     

    “Net Orderly Liquidation
Value Percentage” means, with respect to Inventory at any time, the
quotient (expressed as a percentage) of (a) the Net Orderly Liquidation Value of
all Inventory owned by the Borrowers divided by (b) the gross
inventory cost of such Inventory, determined on the basis of the then most
recently conducted third party appraisal in form and substance, and performed by
an independent appraisal firm, reasonably satisfactory to the Administrative
Agent.

     

    “Net Orderly Liquidation
Value” means, with respect to Inventory, the orderly liquidation value
with respect to such Inventory, net of expenses estimated to be incurred in
connection with such liquidation, based on the most recent third party appraisal
in form and substance, and by an independent appraisal firm, reasonably
satisfactory to the Administrative Agent.

     

    “Non-Consenting
Lender” means, in the event that the Required Lenders have agreed to any
consent, waiver or amendment pursuant to Section 10.01 that requires the consent
of one or more Lenders in addition to the Required Lenders (other than in the
case of any consent, waiver or amendment that solely requires the consent of the
Required Lenders), any Lender whose agreement is necessary for the effectiveness
of such consent, waiver or amendment but who does not so agree.

     

    
      
         

      

      
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    “Non-Loan Party” means
any Subsidiary of a Loan Party that is not a Loan Party.

     

    “Note” means a
Revolving Credit Note.

     

    “Notice of Borrowing”
has the meaning specified in Section 2.02(a).

     

    “Obligation” means,
with respect to any Person, any payment, performance or other obligation of such
Person of any kind, including, without limitation, any liability of such Person
on any claim, whether or not the right of any creditor to payment in respect of
such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured, and
whether or not such claim is discharged, stayed or otherwise affected by any
proceeding under any Debtor Relief Law.  Without limiting the
generality of the foregoing, the Obligations of the Loan Parties under the Loan
Documents include (a) the obligation to pay principal, interest, Letter of
Credit commissions, charges, expenses, fees, reasonable attorneys’ fees and
disbursements, indemnities and other amounts payable by any Loan Party under any
Loan Document and (b) the obligation of any Loan Party to reimburse any
amount in respect of any of the foregoing that any Lender Party, in its sole
discretion, may elect to pay or advance on behalf of such Loan
Party.

     

    “Other Taxes” has the
meaning specified in Section 2.13(b).

     

    “Outstanding Amount”
means (a) with respect to Revolving Credit Advances or Swing Line Advances on
any date, the aggregate outstanding principal amount thereof after giving effect
to any borrowings and prepayments or repayments of Revolving Credit Advances or
Swing Line Advances, as the case may be, occurring on such date; and (b) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any Letter of Credit Advance occurring on
such date and any other changes in the aggregate amount of the L/C Obligations
as of such date, including as a result of any reimbursements of outstanding
unpaid drawings under any Letters of Credit or any reductions in the Available
Amount of any Letter of Credit taking effect on such date.

     

    “Patriot Act” means
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law
October 26, 2001, as amended from time to time.

     

    “PBGC” means the
Pension Benefit Guaranty Corporation (or any successor).

     

    “Permitted Acquired
Debt” means Debt of a Person existing at the time that such Person
becomes a Subsidiary of the Company pursuant to an Investment permitted
hereunder, which Debt is existing at the time such Person becomes a Subsidiary
of the Company (other than Debt incurred solely in contemplation of such
Person’s becoming a Subsidiary of the Company).

     

    “Permitted Discretion”
means the Administrative Agent’s determination based upon such credit and
collateral considerations as it may deem appropriate, in its sole discretion
acting in a commercially reasonable manner and in accordance with its customary
business practices.

     

    
      
         

      

      
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    “Permitted Lien” means
such of the following as to which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced (or if commenced, shall have
been stayed):  (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section 5.01(d)
hereof; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’,
workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary
course of business securing obligations that individually or together with all
other Permitted Liens outstanding on any date of determination do not materially
and adversely affect the use of the property to which they relate; (c) pledges
or deposits in the ordinary course of business to secure obligations under
workers’ compensation laws or similar legislation or to secure public or
statutory obligations; (d) deposits to secure the performance of bids, trade
contracts and leases (other than Debt), statutory obligations, surety bonds
(other than bonds related to judgments or litigation), performance bonds and
other obligations of a like nature incurred in the ordinary course of business;
(e) Liens securing judgments for the payment of money not constituting a Default
under Section 6.01(f) or securing appeal or other surety bonds related to such
judgments; (f) any banker's Lien or right of offset on moneys of the Company or
any of its Subsidiaries in favor of any lender or holder of its commercial paper
deposited with such lender or holder in the ordinary course of business; (g)
interest of lessees in property owned by the Company or any of its Subsidiaries
where such interests are created in the ordinary course of their respective
leasing activities and are not created directly or indirectly in connection with
the borrowing of money or the securing of Debt by the Company or any of its
Subsidiaries; (h) Liens in favor of customs or revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods; (i) Liens arising from or related to precautionary UCC or
like personal property security financing statements regarding operating leases
(if any) entered into by the Company and its Subsidiaries in the ordinary course
of business; (j) licenses, sublicenses, leases and subleases, to the extent that
such would be an encumbrance, in each case entered into in the ordinary course
of business and not materially interfering with the business of the Company or
any of its Subsidiaries; (k) easements, restrictions (including zoning
restrictions), rights of way and other encumbrances on title to real property
that do not render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present purposes;
(l) pledges of or Liens on raw materials or on manufactured products as security
for any drafts or bills of exchange drawn in connection with the importation of
such raw materials or manufactured products; (m) Liens arising out of
conditional sale, title retention, consignment or similar arrangements for sale
of goods (including under Article 2 of the Uniform Commercial Code) and Liens
that are contractual rights of set-off relating to purchase orders and other
similar agreements entered into by the Company or any of its Subsidiaries; (n)
Liens on insurance policies and the proceeds thereof securing the financing of
the premiums with respect thereto incurred in the ordinary course of business;
(o) Liens solely on any cash earnest money deposits made by the Company or any
of its Subsidiaries in connection with any letter of intent or purchase
agreement permitted under this Agreement; (p) Liens (A) of a collection bank
arising under Section 4-210 of the Uniform Commercial Code on items in the
course of collection and (B) attaching to commodity trading accounts or other
commodities brokerage accounts incurred in the ordinary course of business and
consistent with past practice; (q) Liens consisting of escrow arrangements with
respect to escrow accounts, to the extent such escrow accounts hold deposits by
any proposed buyer in connection with any sale or disposition of assets
permitted under this Agreement; (r) Liens consisting of an agreement to sell or
otherwise dispose of any property in each case solely to the extent such sale or
disposition would have been permitted on the date of the creation of such Lien;
and (s) any netting or set-off arrangements entered into by the Company or any
Subsidiary of the Company in the ordinary course of its banking arrangements
(including, for the avoidance of doubt, cash pooling arrangements) for the
purposes of netting debit and credit balances of the Company or any Subsidiary
of the Company.

     

    
      
         

      

      
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    “Permitted Refinancing
Debt” means any Debt of the Company or any Subsidiary thereof issued in
exchange for, or the net cash proceeds of which are used to extend, refinance,
renew, replace, defease or refund, other Debt of the Company or any Subsidiary
thereof (other than Debt owed to the Company or to any Subsidiary of the
Company); provided that:

     

    (1) the
amount of such Permitted Refinancing Debt does not exceed the amount of the Debt
so extended, refinanced, renewed, replaced, defeased or refunded (plus all
accrued and unpaid interest thereon and the amount of any reasonably determined
premium necessary to accomplish such refinancing and such reasonable expenses
incurred in connection therewith);

     

    (2) such
Permitted Refinancing Debt has a final maturity date equal to or later than the
final maturity date of, and has a weighted average life to maturity equal to or
greater than the weighted average life to maturity of, the Debt being extended,
refinanced, renewed, replaced, defeased or refunded;

     

    (3) if
the Debt being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to any of the Obligations under the Loan
Documents, such Permitted Refinancing Debt is subordinated in right of payment
to such Obligations on terms at least as favorable, taken as a whole, to the
Lenders as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;

     

    (4) if
the Debt being extended, refinanced, renewed, replaced, defeased or refunded
ranks equally in right of payment with any of the Obligations under the Loan
Documents, such Permitted Refinancing Debt ranks equally in right of payment
with, or is subordinated in right of payment to, such Obligations;
and

     

    (5) such
Debt is incurred by either (a) the Subsidiary that is the obligor on the Debt
being extended, refinanced, renewed, replaced, defeased or refunded or (b) a
Loan Party.

     

    “Person” means an
individual, partnership, corporation (including a business trust), limited
liability company, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.

     

    “Plan” has the meaning
specified in Section 3.01(b).

     

    “Plan Documents” has
the meaning specified in Section 3.01(b).

     

    “Platform” has the
meaning specified in Section 10.12.

     

    “PMC Settlement” means
the settlement of certain claims relating to the asset purchase agreement (the
“PMC APA”)
entered into by the Company and PMC Biogenix, Inc. (“PMC”) prior to the
Petition Date, pursuant to which the Company sold its oleochemicals business and
certain related assets to PMC, pursuant to which settlement (i) the value of a
subordinated unsecured promissory note in the original principal amount of
$10,000,000 owed by PMC to the Company shall be fixed (the “PMC Note Value”);
(ii) the amount of PMC’s claim for amounts due and owing by Great Lakes Chemical
Corporation (“GLCC”) to PMC in
connection with certain products sold and delivered on various dates prior to
the Petition Date by PMC to GLCC (the “GLCC Trade
Receivables”) shall be fixed at $7,782; (iii) the amount of PMC’s claim
for amounts due and owing by the Company to PMC in connection with certain
products sold and delivered on various dates prior to the Petition Date by PMC
to the Company (the “Chemtura Trade
Receivables”) shall be fixed; (iv) the amount of the Company’s claims for
amounts due and owing by PMC to the Company in connection with the parties’
ongoing business relationship (the “Chemtura Trade
Payables”) shall be fixed; (v) PMC’s claims against the Company specified
in the proof of claim (No. 392) filed in the Cases on account of alleged
breaches of representations and warranties under the PMC APA, for rejection of
the PMC APA and for prepetition and postpetition interest allegedly arising from
the PMC APA shall be deemed an allowed unsecured claim in the amount of
$5,500,000 (the “Initial PMC Allowed Chemtura
Claim”); (vi) the PMC APA shall be deemed rejected under and pursuant to
section 365(a) of the Bankruptcy Code; (vii) the amount of the Initial PMC
Allowed Chemtura Claim shall be set off against the PMC Note Value, resulting in
a net obligation of PMC to the Company of $3,209,810 for which PMC shall issue a
new subordinated unsecured promissory note in like principal amount; (viii) the
amount of the GLCC Trade Receivables shall be allowed as a general unsecured
claim against GLCC; (ix) the amount of the Chemtura Trade Receivables shall be
set off against the amount of the Chemtura Trade Payables, resulting in net
obligation of the Company to PMC of $70,777.26, to be allowed against the
Company as an administrative expense priority claim; (x) the subordinated
secured promissory note in the original principal amount of $5,000,000 owed by
PMC to the Company as of the Petition Date shall remain in full force and
effect; and (xi) PMC and the Company shall execute a mutual
release.

     

    
      
         

      

      
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    “Preferred Interests”
means, with respect to any Person, Equity Interests issued by such Person that
are entitled to a preference or priority over any other Equity Interests issued
by such Person upon any distribution of such Person’s property and assets,
whether by dividend or upon liquidation.

     

    “Pro Forma Basis”
means, in connection with the calculation of EBITDA, clause (b) of the
definition of Fixed Charge Coverage Ratio (for purposes of this definition,
“Fixed Charges”) or Interest Expense (each, a “Specified Metric”),
that:

     

    (1) in
the event that the Company or any Subsidiary incurs, repays, repurchases or
redeems any Debt or issues, repurchases or redeems Redeemable Equity Interests
or Preferred Interests subsequent to the commencement of the period for which
any Specified Metric is being calculated but on or prior to the date on which
the event for which the calculation of such Specified Metric is made (the “Calculation Date”),
then such Specified Metric will be calculated giving pro forma effect to such
incurrence, repayment, repurchase or redemption of Debt, or such issuance,
repurchase or redemption of Redeemable Equity Interests or Preferred Interests,
and the use of the proceeds therefrom as if the same had occurred at the
beginning of such period;

     

    (2)
acquisitions and dispositions of business entities or property and assets
constituting a division or line of business of any Person that have been made by
the Company or any Subsidiary (or by any Person that has subsequently become a
Subsidiary or has subsequently merged or consolidated with or into the Company
or any Subsidiary), including through mergers or consolidations, in each case,
during the 12-month reference period or subsequent to such reference period and
on or prior to the Calculation Date will be given pro forma effect as if they
had occurred on the first day of the 12-month reference period, and EBITDA for
such reference period will be calculated on a pro forma basis, but without
giving effect to clause (3) of the proviso set forth in the definition of
“Consolidated Net Income”;

     

    (3) any
EBITDA attributable to discontinued operations, as determined in accordance with
GAAP, will be excluded;

     

    (4) any
Fixed Charges or Interest Expense attributable to discontinued operations, as
determined in accordance with GAAP, will be excluded, but only to the extent
that the obligations giving rise to such Fixed Charges or Interest Expense, as
the case may be, will not be obligations of the Company or any Subsidiary
following the Calculation Date;

     

    
      
         

      

      
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    (5)
whenever pro forma effect is to be given to an acquisition or disposition, the
amount of EBITDA relating thereto and the amount of Fixed Charges or Interest
Expense associated with any Debt incurred in connection therewith, unless
otherwise specified, the pro forma calculations will be made in compliance with
Article 11 of Regulation S-X under the Securities Act, as determined in good
faith by a responsible financial or accounting officer of the Company provided
that, pro forma calculations may include operating expense reductions and other
operating improvements or synergies for such period resulting from such
transaction (as determined in accordance with GAAP) for which pro forma effect
is being given that have been realized, including but not limited to (a)
reduction in personnel expenses, (b) reduction of costs related to
administrative functions, (c) reduction of costs related to leased or owned
properties and (d) reductions from the consolidation of operations and
streamlining of corporate overhead;

     

    (6) Fixed
Charges or Interest Expense attributable to interest on any Debt (whether
existing or being incurred) computed on a pro forma basis and bearing a floating
interest rate will be computed as if the rate in effect on the Calculation Date
(taking into account any interest rate option, swap, cap or similar agreement
applicable to such Debt if such agreement has a remaining term in excess of 12
months or, if shorter, at least equal to the remaining term of such Debt) had
been the applicable rate for the entire period; and

     

    (7) Fixed
Charges or Interest Expense attributable to interest on any Debt incurred under
a revolving credit facility computed on a pro forma basis will be calculated
based on the average daily balance of such Debt for the four fiscal quarters
subject to the pro forma calculation to the extent that such Debt was incurred
solely for working capital purposes.

     

    “Pro Rata Share” of
any amount means, with respect to any Lender at any time, the product of such
amount times a
fraction the numerator of which is the amount of such Lender’s Commitment (or,
if the Commitments shall have been terminated pursuant to Section 2.06 or 6.01,
such Lender’s Commitment as in effect immediately prior to such termination)
under the applicable Facility or Facilities at such time and the denominator of
which is the amount of such Facility or Facilities at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.06 or 6.01, the
amount of such Facility or Facilities as in effect immediately prior to such
termination).

     

    “Protective Advances”
has the meaning specified in Section 2.01(c).

     

    “Public Debt Rating”
means, with respect to any Person, as of any date, the rating that has been most
recently announced by either S&P, Moody’s or Fitch, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by such
Person or, if any such rating agency shall have issued more than one such
rating, the lowest such rating issued by such rating agency for such debt of
such Person.  For purposes of the foregoing, (a) if any rating
established by S&P, Moody's or Fitch shall be changed, such change shall be
effective as of the date on which such change is first announced publicly by the
rating agency making such change; and (b) if S&P, Moody's or Fitch shall
change the basis on which ratings are established, each reference to the Public
Debt Rating announced by S&P, Moody's or Fitch, as the case may be, shall
refer to the then equivalent rating by S&P, Moody's or Fitch, as the case
may be.

     

    “Public Lender” has
the meaning specified in Section 10.12.

     

    
      
         

      

      
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    “Purchase Money Note”
means a promissory note of a Receivables Entity evidencing a line of credit,
which may be irrevocable, from the Company or any Subsidiary of the Company to a
Receivables Entity in connection with a Foreign Asset Based Financing, which
note is intended to finance that portion of the purchase price that is not paid
in cash or a contribution of equity and which is customary in a Foreign Asset
Based Financing as determined in good faith by the Company.

     

    “Receivables Assets”
means any accounts receivable and any assets related thereto, including, without
limitation, all collateral securing such accounts receivable and assets and all
contracts and contract rights including rights to returned or repossessed goods,
all insurance policies, security deposits, indemnities, checks or other
negotiable instruments relating to debtor(s) obligations, and all guarantees or
other supporting obligations (within the meaning of the New York Uniform
Commercial Code Section 9-102(a)(77)) (including Obligations under Hedge
Agreements), in respect of such accounts receivable and assets and all proceeds
of the foregoing and other assets which are customarily transferred, or in
respect of which security interests are customarily granted, in connection with
asset securitization transactions involving Receivables Assets.

     

    “Receivables Entity”
means a Subsidiary of the Company or another Person formed for the purposes of
engaging in a Foreign Asset Based Financing or which is regularly engaged in
receivables financings and to which any Foreign Subsidiary transfers Receivables
Assets, and which is designated by the Board of Directors of such Foreign
Subsidiary (as provided below) to be a Receivables Entity (a) no portion of the
Debt or any other Obligations (contingent or otherwise) of which (1) is
guaranteed by the Company or any Subsidiary of the Company (excluding guarantees
of Obligations (other than the principal of, and interest on, Debt) pursuant to
Standard Receivables Undertakings), (2) is recourse to or obligates the Company
or any Subsidiary of the Company (other than the Receivables Entity) in any way
other than pursuant to Standard Receivables Undertakings or (3) subjects any
property or asset of the Company or any Subsidiary of the Company (other than
Receivables Assets and related assets as provided in the definition of “Foreign
Asset Based Financing”), directly or indirectly, contingently or otherwise, to
the satisfaction thereof other than pursuant to Standard Receivables
Undertakings, (b) with which neither the Company nor any Subsidiary of the
Company has any material contract, agreement, arrangement or understanding
(other than on terms which the Company reasonably believes to be no less
favorable to the Company or such Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Company) other than fees
payable in the ordinary course of business in connection with servicing
Receivables Assets, and (c) with which neither the Company nor any Subsidiary of
the Company has any obligation to maintain or preserve such entity’s financial
condition or cause such entity to achieve certain levels of operating results;
provided that any such designation by the Board of Directors of such Foreign
Subsidiary is evidenced to the Administrative Agent by delivery to the
Administrative Agent of a certified copy of a resolution of the Board of
Directors of such Foreign Subsidiary giving effect to such designation, together
with a certificate signed by a Responsible Officer of the Company certifying
that such designation complied with the foregoing conditions.

     

    “Receivables Fees”
means all yield, interest, distributions or other payments made directly or by
means of discounts with respect to any interest issued or sold in connection
with, and other fees paid to a Person that is not a Receivables Entity in
connection with, any Foreign Asset Based Financing.

     

    “Receivables Repurchase
Obligation” means any obligation of a seller of Receivables Assets in a
Foreign Asset Based Financing to repurchase Receivables Assets arising as a
result of a breach of a Standard Receivables Undertaking, including as a result
of a Receivables Asset or portion thereof becoming subject to any asserted
defense, dispute, off set or counterclaim of any kind as a result of any action
taken by, any failure to take action by or any other event relating to the
seller.

     

    
      
         

      

      
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    “Redeemable” means,
with respect to any Equity Interest, Debt or other right or Obligation, any such
right or Obligation that (a) the issuer has undertaken to redeem at a fixed
or determinable date or dates at any time prior to the date that is six months
after the Maturity Date, whether by operation of a sinking fund or otherwise, or
upon the occurrence of a condition not solely within the control of the issuer
(other than a change of control, so long as any rights of the holders thereof
upon the occurrence of a change of control shall be subject to the prior
repayment in full of the Advances and all other Obligations that are accrued and
payable under the Loan Documents) or (b) is redeemable at the option of the
holder at any time prior to the date that is six months after the Maturity
Date.

     

    “Register” has the
meaning specified in Section 10.07(d).

     

    “Regulation U” means
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time.

     

    “Related Parties”
means, with respect to any Person, such Person’s Affiliates and such Person’s
and such Person’s Affiliates’ respective administrators, trustees, partners,
directors, officers, employees, agents, fund managers and advisors.

     

    “Related Security”
means, with respect to any Account, (a) all of the applicable Borrower’s right,
title and interest in and to the goods (including returned or repossessed
goods), if any, relating to the sale which gave rise to such Account, (b) all
other security interests or Liens and property subject thereto from time to time
purporting to secure payment of such Account, whether pursuant to the obligation
giving rise to such Account or otherwise, (c) all guarantees and other
agreements or arrangements of whatever character from time to time supporting or
securing payment of such Account whether pursuant to the obligation giving rise
to such Account or otherwise, (d) all records relating to the foregoing and (e)
all proceeds of the foregoing.

     

    “Rent Reserve” means,
with respect to any plant, warehouse distribution center or other operating
facility where any Inventory subject to landlords’ Liens or other Liens arising
by operation of law is located and a Collateral Access Agreement has not been
duly executed and delivered by the lessor or bailee at such location, a reserve
equal to three (3) month’s rent at such plant, warehouse distribution center, or
other operating facility, and such other reserve amounts that may be determined
by the Administrative Agent in its reasonable discretion.

     

    “Required Lenders”
means, at any time, Lenders owed or holding at least a majority in interest of
the sum of (a) the aggregate principal amount of the Advances outstanding at
such time (with the aggregate amount of each Lender’s risk participation and
funded participation in Swing Line Advances being deemed owned or held by such
Lender for purposes of this definition), (b) the aggregate Available Amount of
all Letters of Credit outstanding at such time (with the aggregate amount of
each Lender’s risk participation in outstanding Letters of Credit being deemed
owned or held by such Lender for purposes of this definition) and (c) the
aggregate Unused Revolving Credit Commitments at such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time, there shall be excluded from
the determination of Required Lenders at such time (i) the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (ii) such Lender’s Pro Rata Share of the aggregate
Available Amount of all Letters of Credit outstanding at such time and
(iii) the Unused Revolving Credit Commitment of such Lender at such
time.

     

    
      
         

      

      
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    “Reserves” means, at
any time of determination, (a) Bank Product Reserves, (b) Rent Reserves, and (c)
such other reserves as determined from time to time in the Permitted Discretion
of the Administrative Agent to preserve and protect the value of the
Collateral.

     

    “Responsible Officer”
means the chief executive officer, president, any executive vice president,
chief financial officer, principal accounting officer, controller, chief
restructuring officer or treasurer of a Loan Party.  Any document
delivered hereunder or under any other Loan Document that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.

     

    “Restricted Payment”
has the meaning specified in Section 5.02(e).

     

    “Revolving Credit
Advance” has the meaning specified in Section 2.01(a).

     

    “Revolving Credit
Borrowing” means a borrowing consisting of
simultaneous  Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.

     

    “Revolving Credit
Commitment” means, with respect to any Lender at any time, the amount set
forth for such time opposite such Lender’s name on Schedule I hereto under
the caption “ Revolving Credit Commitment” or, if such Lender has entered into
one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 10.07(d) as
such Lender’s “ Revolving Credit Commitment”, as such amount may be reduced at
or prior to such time pursuant to Section 2.06 or as increased pursuant to
a Commitment Increase in accordance with Section 2.19.  The aggregate
principal amount of the Revolving Credit Commitments shall be $275,000,000 as of
the Effective Date.

     

    “Revolving Credit
Facility” means, at any time, the aggregate amount of the Lenders’
Revolving Credit Commitments at such time.

     

    “Revolving Credit
Lender” means any Lender that has a Revolving Credit
Commitment.

     

    “Revolving Credit
Note” means a promissory note of the Borrowers payable to the order of
any Revolving Credit Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the Borrowers to such Lender resulting
from the Revolving Credit Advances or Swing Line Advances made by such
Lender.

     

    “Revolving Facility
Collateral” means all of the existing and future Inventory and Accounts
of the Loan Parties, together with all related general intangibles, contract
rights under agreements relating to Inventory and Accounts, documents relating
to Inventory, supporting obligations and letter-of-credit rights relating to
Inventory and Accounts, instruments representing payments for Inventory and
Accounts; money, cash, Cash Equivalents, securities and other property held by
the Administrative Agent or any Lender; deposit accounts, credits and balances
which contain proceeds of or collections on Inventory and Accounts; books,
records and other property related to or referring to any of the foregoing; and
all proceeds of any of the foregoing, including, proceeds of any insurance
policies and claims against third parties with respect to the foregoing, all as
more fully described in the Security Agreement and the Intercreditor
Agreement.

     

    
      
         

      

      
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    “S&P” means
Standard & Poor’s, a division of The Mc-Graw Hill Companies,
Inc.

     

    “SEC” means the
Securities and Exchange Commission or any governmental authority succeeding to
any of its principal functions.

     

    “Secured Cash Management
Agreement” means any Cash Management Agreement permitted under Article V
that is entered into by and between any Loan Party and any Cash Management Bank
and designated in a writing delivered by the Company, in its sole discretion, to
the Administrative Agent as a “Secured Cash Management Agreement”, in each case
solely to the extent that (a) the obligations in respect of such Cash Management
Agreement are not cash collateralized or otherwise secured (other than pursuant
to the Collateral Documents) and (b) the aggregate principal amount of
Obligations under all Secured Cash Management Agreements that are secured under
the Loan Documents shall not exceed $10,000,000 at any time
outstanding.

     

    “Secured Obligation”
has the meaning specified in the Security Agreement.

     

    “Secured Parties”
means, collectively, the Administrative Agent, the Lender Parties and the Cash
Management Banks.

     

    “Security Agreement”
means the pledge and security agreement in substantially the form of Exhibit F,
together with each other security agreement supplement delivered pursuant to
Section 5.01(m).

     

    “Senior Notes” has the
meaning specified in the Preliminary Statements.

     

    “Senior Notes
Indenture” means the Indenture, dated as of August 27, 2010, between the
Company, the guarantors named therein, and U.S. Bank National Association, as
trustee, under which the Senior Notes are issued, as amended, supplemented,
amended and restated, modified, replaced or refinanced to the extent permitted
by the terms hereof.

     

    “Settlement Agreement”
has the meaning specified in Section 3.01(b).

     

    “Settlement Motion”
has the meaning specified in Section 3.01(b).

     

    “Settlement Order” has
the meaning specified in Section 3.01(b).

     

    “Single Employer Plan”
means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that
(a) is maintained for employees of any Loan Party or any ERISA Affiliate and is
not a Multiple Employer Plan or (b) was so maintained and in respect of which
any Loan Party or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.

     

    “Solvent” and “Solvency” mean, with
respect to the Loan Parties on a particular date, that on such date (a) the fair
value of the property of the Loan Parties, taken as a whole, is greater than the
total amount of debt, including, without limitation, contingent liabilities, of
the Loan Parties, taken as a whole, (b) the present fair salable value of the
assets of the Loan Parties and their Subsidiaries, taken as a whole, is not less
than the amount that will be required to pay the probable liability of the Loan
Parties, taken as a whole, on their debts as they become absolute and matured,
(c) the Loan Parties do not intend to, and do not believe that they will, incur
debts beyond their collective ability to pay such debts as such debts mature and
(d) the Loan Parties do not have unreasonably small capital to conduct their
business as currently conducted and as currently contemplated to be
conducted.  For purposes of the foregoing, the amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.

     

    
      
         

      

      
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    “SPC” has the meaning
specified in Section 10.07(k).

     

    “Specified Credit
Agreement” means any agreement to provide foreign working capital
facilities or foreign vendor financing facilities in an aggregate principal
amount at any one time outstanding not to exceed $25,000,000 or the foreign
currency equivalent thereof.

     

    “Specified Credit
Bank” means any Person that, at the time it enters into a Specified
Credit Agreement, is a “Lender”, an Affiliate of a “Lender”, a “Lead Arranger”,
or an Affiliate of a “Lead Arranger” in each case, as such terms are defined in
the Term Facility Credit Agreement, and in each case in its capacity as a party
to such Specified Credit Agreement.

     

    “Specified Default”
means any Event of Default under Section 6.01(a), 6.01(b) (but only with
respect to a representation made in a Borrowing Base Certificate or a
certificate of an officer accompanying any financial statement), or 6.01(l), or
consisting of a failure to comply with Section 5.01(e)(ii), 5.01(e)(iii),
5.01(e)(iv), 5.01(k) or 5.03(o).

     

    “Standard Receivables
Undertakings” means representations, warranties, covenants, indemnities
and guarantees of performance entered into by the Company or any Subsidiary of
the Company which are customary in a Foreign Asset Based Financing, including,
without limitation, those relating to the servicing of the assets of a
Receivables Entity, it being understood that any Receivables Repurchase
Obligation shall be deemed a Standard Receivables Undertaking.

     

    “Subsidiary” of any
Person means any corporation, partnership, joint venture, limited liability
company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in such
trust or estate is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries or by one
or more of such Person’s other Subsidiaries.  Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Company.

     

    “Subsidiary Borrowers”
means the Subsidiaries of the Company set forth on Schedule 1.01B hereto, and
any Subsidiary of the Company that becomes a Borrower.

     

    “Supermajority
Lenders” means, at any time, Lenders owed or holding 75% or more in
interest of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time (with the aggregate amount of each Lender’s risk
participation and funded participation in Swing Line Advances being deemed owned
or held by such Lender for purposes of this definition), (b) the aggregate
Available Amount of all Letters of Credit outstanding at such time (with the
aggregate amount of each Lender’s risk participation in outstanding Letters of
Credit being deemed owned or held by such Lender for purposes of this
definition) and (c) the aggregate Unused Revolving Credit Commitments at
such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time, there shall be excluded from
the determination of Supermajority Lenders at such time (i) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as a
Lender) and outstanding at such time, (ii) such Lender’s Pro Rata Share of the
aggregate Available Amount of all Letters of Credit outstanding at such time and
(iii) the Unused Revolving Credit Commitment of such Lender at such
time.

     

    
      
         

      

      
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    “Surviving Debt” means
Debt of each Loan Party and its Subsidiaries outstanding immediately before and
after the Effective Date (but excluding, for the avoidance of doubt, Debt under
the Senior Notes and the Term Facility).

     

    “Swing Line Advance”
has the meaning specified in Section 2.04(a).

     

    “Swing Line Advance
Notice” means a notice of a Swing Line Borrowing pursuant to Section
2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B-2.

     

    “Swing Line Borrowing”
means a borrowing of a Swing Line Advance pursuant to Section 2.04.

     

    “Swing Line Lender”
means Bank of America in its capacity as provider of Swing Line Advances, or any
successor swing line lender hereunder.

     

    “Swing Line Sublimit”
means an amount equal to the lesser of (a) $30,000,000 and (b) the Revolving
Credit Facility.  The Swing Line Sublimit is part of, and not in
addition to, the Revolving Credit Facility.

     

    “Synthetic Debt”
means, with respect to any Person as of any date of determination thereof, all
Obligations of such Person in respect of transactions entered into by such
Person that are intended to function primarily as a borrowing of funds
(including, without limitation, any minority interest transactions that function
primarily as a borrowing) but are not otherwise included in the definition of
“Debt” or as a liability on the consolidated balance sheet of such Person and
its Subsidiaries in accordance with GAAP.

     

    “Synthetic Lease
Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property (including sale and leaseback
transactions), in each case, creating obligations that do not appear on the
balance sheet of such Person but which, upon the application of any Debtor
Relief Laws to such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).

     

    “Taxes” has the
meaning specified in Section 2.13(a).

     

    “Term Facility” means
the term loan credit facility entered into on August 27, 2010  in the
initial principal amount of $295 million (subject to subsequent commitment
increases), as amended, supplemented, amended and restated, modified, replaced
or refinanced from time to time (subject to any restrictions on such amendments,
supplements, modifications, replacements or refinancings set forth herein and in
the Intercreditor Agreement, and provided that any such amendment, supplement,
amendment and restatement, modification, replacement or refinancing that
constitutes Debt issued in exchange for, or the net cash proceeds of which are
used to extend, refinance, renew, replace, defease or refund the Term Facility
complies with the definition of “Permitted Refinancing Debt”, provided that for
purposes of clause (1) of such definition, the amount of the Debt being
extended, refinanced, renewed, replaced, defeased or refunded shall be deemed to
be $420,000,000).

     

    
      
         

      

      
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    “Term Facility
Collateral” means all tangible and intangible assets of the Loan Parties
(other than any assets comprising Revolving Facility Collateral), including,
without limitation, real property, equipment, Intellectual Property, Equity
Interests of their direct Subsidiaries (including 100% of the non-Voting Stock
of their respective Foreign Subsidiaries and no more than (to the extent the
pledge of any greater percentage would result in material adverse tax
consequences to the Loan Parties) 65% of the Voting Stock of their respective
Foreign Subsidiaries that are CFCs and entities that are treated as partnerships
or disregarded entities for United States federal income tax purposes and whose
assets are solely capital stock of CFCs) and other investment
property.

     

    “Term Facility Credit
Agreement” means Senior Secured Term Facility Credit Agreement, dated as
of August 27, 2010, among the Company, the Loan Parties, the lenders party
thereto and Bank of America, as administrative agent, to govern the Term
Facility, as such agreement may thereafter be amended, supplemented, amended and
restated, modified, replaced or refinanced from time to time (subject to any
restrictions on such amendments, supplements, amendments and restatements,
modifications, replacements or refinancings set forth herein and in the
Intercreditor Agreement, and provided that any such amendment, supplement,
amendment and restatement, modification, replacement or refinancing that
constitutes Debt issued in exchange for, or the net cash proceeds of which are
used to extend, refinance, renew, replace, defease or refund, the Term Facility
complies with the definition of “Permitted Refinancing Debt”, provided that for
purposes of clause (1) of such definition, the amount of the Debt being
extended, refinanced, renewed, replaced, defeased or refunded shall be deemed to
be $420,000,000).

     

    “Termination Date”
means the earliest to occur of (i) the Maturity Date and (ii) the date
of termination in whole of the Commitments pursuant to Section 2.06 or
6.01.

     

    “Testing Period” means
the period (a) commencing on

     

    (x) when
such term is used in Section 5.04, any date on which Availability is less than
the greater of (i) $34 million and (ii) 12.5% of the aggregate Revolving Credit
Commitments then in effect, or

     

    (y) when
such term is used in Section 5.03, any date that is the fifth consecutive day
that Availability is less than the greater of (i) $34 million and (ii) 12.5% of
the aggregate Revolving Credit Commitments then in effect, and

     

    (b)
continuing until the date when Availability has been, for 45 consecutive days
including such date, equal to or greater than the greater of (i) $34 million and
(ii) 12.5% of the aggregate Revolving Credit Commitments then in
effect.

     

    “Transactions” has the
meaning specified in the Preliminary Statements hereto.

     

    “Type” refers to the
distinction between Advances bearing interest at the Base Rate and Advances
bearing interest at the Eurodollar Rate.

     

    
      
         

      

      
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    “UCC” means the
Uniform Commercial Code as in effect, from time to time, in the State of New
York; provided
that, if perfection or the effect of perfection or non-perfection or the
priority of any 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.

     

    “Unreimbursed Amount”
has the meaning specified in Section 2.03(c)(i).

     

    “Unused Revolving Credit
Commitment” means, with respect to any Lender at any time, (a) such
Lender’s Revolving Credit Commitment at such time minus (b) the
sum of (i) the aggregate principal amount of all Revolving Credit Advances,
Letter of Credit Advances and Swing Line Advances made by such Lender (in its
capacity as a Lender (as opposed to the capacity of the Issuing Bank or Swing
Line Lender)) and outstanding at such time, plus (ii) such
Lender’s Pro Rata Share of (A) the aggregate Available Amount of all
Letters of Credit outstanding at such time, (B) the aggregate principal
amount of all Letter of Credit Advances made by the Issuing Banks pursuant to
Section 2.03(c) and outstanding at such time and (C) the aggregate
principal amount of all Swing Line Advances made by the Swing Line Lender
pursuant to Section 2.04(a) and outstanding (i.e., not yet reimbursed by the
Lenders) at such time; provided that for
purposes of Section 2.09(a), Swing Line Advances shall be excluded from the
determination of Unused Revolving Credit Commitment (i.e., not deducted),
whether pursuant to clause b(i) or b(ii)(C) above.

     

    “Voting Stock” means
capital stock issued by a corporation, or equivalent interests in any other
Person, the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by
the happening of such a contingency.

     

    “Wells Fargo” has the
meaning specified in the recital of parties to this Agreement.

     

    “Withdrawal Liability”
has the meaning specified in Part 1 of Subtitle E of Title IV of
ERISA.

     

    Section
1.02 Computation of Time
Periods; Other
Definitional Provisions.  In
this Agreement in the computation of periods of time from a specified date to a
later specified date, the word “from” means “from and including” and the words
“to” and “until” each mean “to but excluding”.  Unless the context
requires otherwise, (a) any definition of or reference to any agreement,
instrument or other document in any Loan Document 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 or in any other Loan
Document) and (b) any reference to any law shall include all statutory and
regulatory provisions consolidating, amending, replacing or interpreting such
law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented
from time to time.

     

    Section
1.03 Accounting
Terms.  All
accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred to in
Section 4.01(f) (“GAAP”).

     

    Section
1.04 Terms
Generally.  When
any Reserve is to be established or a change in any amount, percentage, reserve,
eligibility criteria or other item in the definitions of the terms “Bank Product
Reserves”, “Borrowing Base”, “Eligible Inventory”, “Eligible Receivables”, “Rent
Reserve” and “Reserves” is to be determined in each case in the Administrative
Agent’s “reasonable discretion” or “Permitted Discretion”, such Reserve shall be
implemented or such change shall become effective on the second Business Day
after the date of delivery of a written notice thereof to the Borrowers, or
immediately, without prior written notice, during the continuance of an Event of
Default.

     

    
      
         

      

      
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    ARTICLE
II

     

    AMOUNTS
AND TERMS OF THE ADVANCES

    AND
THE LETTERS OF CREDIT

     

    Section
2.01 The
Advances.  (a)  The Revolving Credit
Advances.  Each Revolving Credit Lender severally agrees, on
the terms and conditions hereinafter set forth, to make advances (each, a “Revolving Credit
Advance”) to the Borrowers from time to time on any Business Day during
the period from the Effective Date until the Termination Date in an amount for
each such Advance not to exceed the lesser of (A) such Revolving Credit Lender’s
Revolving Credit Commitment at such time and (B) such Revolving Credit Lender’s
Pro Rata Share of Availability at such time; provided that the
aggregate amount of Advances that may be made at any time shall not exceed the
Availability at such time.

     

    (b) Borrowings.  Each
Borrowing shall be in a principal amount of $1,000,000 or an integral multiple
of $1,000,000 in excess thereof (other than (x) a Borrowing the proceeds of
which shall be used solely to repay or prepay in full outstanding Letter of
Credit Advances and (y) a Borrowing in an amount equal to the aggregate unused
principal amount of the Commitments under any Facility) and shall consist of
Advances made simultaneously by the Lenders under the applicable Facility
ratably according to the Lenders’ Commitments under such
Facility.  Within the limits of each Lender’s Unused Revolving Credit
Commitment in effect from time to time, the Borrowers may borrow under Section
2.01(a), prepay pursuant to Section 2.07, and reborrow under Section
2.01(a).

     

    (c) Protective
Advances.  The Administrative Agent shall be authorized, in its
discretion, at any time that an Event of Default has occurred and is continuing,
and without regard to whether any conditions in Article III are satisfied, to
make Base Rate Advances (“Protective Advances”)
(a) of up to an aggregate amount of $20,000,000 outstanding at any time
(provided that the sum of all Revolving Credit Advances, Swing Line Advances,
L/C Obligations and Protective Advances do not exceed the aggregate Revolving
Credit Commitments), if the Administrative Agent deems such Protective Advances
necessary or desirable to preserve or protect Collateral, or to enhance the
collectibility or repayment of Obligations under the Loan Documents; or (b) to
pay any other amounts chargeable to any Loan Party under any Loan Documents,
including costs, fees and expenses to the extent due and
payable.  Each Lender shall participate in each Protective Advance in
an amount equal to its Pro Rata Share thereof.  The Required Lenders
may at any time revoke the Administrative Agent’s authority to make further
Protective Advances by written notice to the Administrative
Agent.  Absent such revocation, the Administrative Agent’s
determination that funding of a Protective Advance is appropriate shall be
conclusive, provided, that the
aggregate outstanding principal amount of Protective Advances shall not, at any
one time, exceed the lesser of $20,000,000 and 7.5% of the Revolving Credit
Facility at such time.

     

    Section
2.02 Making the
Advances.  (a) Except
as otherwise provided in Section 2.02(b), or 2.03, each Borrowing (other
than a Swing Line Borrowing) shall be made on notice, given not later than
11:00 A.M. (New York City time) on the third Business Day prior to the
date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or the first Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
by the Borrowers to the Administrative Agent, which shall give to each Lender
prompt notice thereof by telex or telecopier.  Each such notice of a
Borrowing (a “Notice
of Borrowing”) shall be by telephone, confirmed promptly in writing, or
telex or telecopier, in substantially the form of Exhibit B-1 hereto, specifying
therein the requested (i) date of such Borrowing, (ii) the Facility under
which such Borrowing is to be made, (iii) Type of Advances comprising such
Borrowing, (iv) aggregate amount of such Borrowing and (v) in the case
of a Borrowing consisting of Eurodollar Rate Advances, initial Interest Period
for each such Advance.  Each Lender shall, before 11:00 A.M.
(New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent’s Office, in same day funds, such Lender’s ratable portion
of such Borrowing in accordance with the respective Commitments of such Lender
and the other Lenders.  After the Administrative Agent’s receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the
Borrowers by crediting the Borrower’s Account or such other account as the
Borrowers shall request; provided, however, that, in the
case of Revolving Credit Advances, the Administrative Agent shall first apply
such funds to prepay ratably the aggregate principal amount of any Letter of
Credit Advances outstanding on the date of such Borrowing, plus interest accrued
and unpaid thereon to and as of such date.

     

    
      
         

      

      
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    (b) Anything
in subsection (a) above to the contrary notwithstanding, (i) the
Borrowers may not select Eurodollar Rate Advances for the initial Borrowing
hereunder or for any Borrowing if the aggregate amount of such Borrowing is less
than $1,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.10 or
2.11,  and (ii) the Revolving Credit Advances may not be
outstanding as part of more than 15 separate Borrowings.

     

    (c) Each
Notice of Borrowing shall be irrevocable and binding on the
Borrowers.  In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrowers shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any
loss (excluding loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such
date.

     

    (d) Unless
the Administrative Agent shall have received notice from any Lender prior to the
date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrowers on such date a
corresponding amount.  If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrowers severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest thereon,
for each day from the date such amount is made available to the Borrowers until
the date such amount is repaid or paid to the Administrative Agent, at
(i) in the case of the Borrowers, the interest rate applicable at such time
under Section 2.08 to Advances comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate.  If such Lender shall
pay to the Administrative Agent such corresponding amount, such amount so paid
shall constitute such Lender’s Advance as part of such Borrowing for all
purposes of this Agreement.

     

    (e) The
failure of any Lender to make the Advance to be made by it shall not relieve any
other Lender of its obligation, if any, hereunder to make its Advance or make
available on the date of such Borrowing, but no Lender shall be responsible for
the failure of any other Lender to make the Advance to be made by
it.

     

    (f) If any
Lender makes available to the Administrative Agent funds for any Advance to be
made by such Lender as provided in the foregoing provisions of this Section
2.02, and such funds are not made available to the Borrowers by the
Administrative Agent because the conditions to the applicable Borrowing are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.

     

    
      
         

      

      
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    Section
2.03 Issuance of and Drawings and
Reimbursement Under Letters of Credit.

     

    (a)  The Letter of Credit
Commitment.

     

    (i) The
Lenders (including each Lender that issued any Existing Letter of Credit) and
the Borrowers agree that effective as of the Effective Date, the Existing
Letters of Credit shall be deemed to have been issued and maintained under, and
to be governed by the terms and conditions of, this Agreement as Letters of
Credit.  Subject to the terms and conditions set forth herein, (A)
each Issuing Bank agrees, in reliance upon the agreements of the other Revolving
Credit Lenders set forth in this Section 2.03, (1) from time to time on any
Business Day during the period from the Effective Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of any
Borrower or any of their Subsidiaries, and to amend Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor
drafts under the Letters of Credit; and (B) the Revolving Credit Lenders
severally agree to participate in Letters of Credit issued for the account of
any Borrower or any of its Subsidiaries; provided that the
Issuing Banks shall not be obligated to issue any Letter of Credit, and no
Revolving Credit Lender shall be obligated to participate in any Letter of
Credit, if as of the date of such issuance, (x) the Available Amount for
all Letters of Credit issued by such Issuing Bank would exceed the lesser of the
Letter of Credit Sublimit at such time and such Issuing Bank’s Letter of Credit
Commitment at such time, (y) the Available Amount of such Letter of Credit
would exceed the aggregate Unused Revolving Credit Commitments or (z) the
Available Amount of such Letter of Credit would exceed the Availability at such
time.  Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed.

     

    (ii) No
Issuing Bank shall be under any obligation to issue any Letter of Credit, and no
Revolving Credit Lender shall be obligated to participate in any Letter of
Credit, if:  (A) any order, judgment or decree of any
governmental authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Bank from issuing such Letter of Credit, or any law
applicable to such Issuing Bank or any request or directive (whether or not
having the force of law) from any governmental authority with jurisdiction over
such Issuing Bank shall prohibit, or request that such Issuing Bank refrain
from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Bank any unreimbursed loss, cost or
expense which such Issuing Bank in good faith deems materially adverse to it;
(B) the expiry date of such requested Letter of Credit would occur more than
twelve months after the Letter of Credit Expiration Date, unless all the
Revolving Credit Lenders have approved such expiry date; (C) the issuance
of such Letter of Credit would violate one or more policies of such Issuing
Bank; or (D) such Letter of Credit is in an initial amount less than
$100,000 (unless such Issuing Bank agrees otherwise), or is to be denominated in
a currency other than U.S. dollars.

     

    (iii) No
Issuing Bank shall be under any obligation to amend any Letter of Credit if (A)
such Issuing Bank would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms hereof, or (B) the beneficiary of
such Letter of Credit does not accept the proposed amendment to such Letter of
Credit.

     

    
      
         

      

      
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    (iv) [Reserved]

     

    (v) In
addition to the other conditions precedent herein set forth, if any Lender
becomes, and during the period it remains a Defaulting Lender, no Issuing Bank
shall be required to issue any Letter of Credit or to amend any outstanding
Letter of Credit to increase the face amount thereof, alter the drawing terms
thereunder or extend the expiry date thereof, unless such Issuing Bank is
satisfied that any exposure that would result therefrom is eliminated or fully
covered by the Revolving Credit Commitments of the non-Defaulting Lenders or by
Cash Collateralization or a combination thereof reasonably satisfactory to such
Issuing Bank.

     

    (b) Procedures for Issuance and
Amendment of Letters of Credit.

     

    (i) Each
Letter of Credit (other than with respect to deemed issuance of Existing Letters
of Credit) shall be issued or amended, as the case may be, upon the request of
the Borrowers delivered to the applicable Issuing Bank (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the
Company.  Such Letter of Credit Application must be received by the
applicable Issuing Bank and the Administrative Agent not later than 11:00 A.M.
(New York City time) at least two Business Days (or such later date and time as
such Issuing Bank may agree in a particular instance in its sole discretion)
prior to the proposed issuance date or date of amendment, as the case may
be.  In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
reasonably satisfactory to the applicable Issuing Bank: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business Day);
(B) the amount thereof; (C) the expiry date thereof; (D) the name and address of
the beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G) such
other matters as such Issuing Bank may reasonably require.  In the
case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the applicable Issuing Bank (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other matters as
such Issuing Bank may reasonably require.

     

    (ii) Promptly
after receipt of any Letter of Credit Application for a Letter of Credit, the
applicable Issuing Bank will confirm with the Administrative Agent (by telephone
or in writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrowers and, if not, such Issuing Bank will
provide the Administrative Agent with a copy thereof.  Upon receipt by
such Issuing Bank of confirmation from the Administrative Agent that the
requested issuance or amendment is permitted in accordance with the terms
hereof, then, subject to the terms and conditions hereof, such Issuing Bank
shall, on the requested date, issue a Letter of Credit for the account of the
Borrowers or enter into the applicable amendment, as the case may be, in each
case in accordance with such Issuing Bank’s usual and customary business
practices.  Immediately upon the issuance of each Letter of Credit,
each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from such Issuing Bank a risk participation in such Letter
of Credit in an amount equal to the product of such Lender’s Pro Rata Share in
respect of the Revolving Credit Facility times the amount of
such Letter of Credit.

     

    (iii) Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the applicable Issuing Bank will also deliver to the Borrowers and the
Administrative Agent a true and complete copy of such Letter of Credit or
amendment.

     

    
      
         

      

      
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    (c) Drawings and Reimbursements;
Funding of Participations.

     

    (i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the applicable Issuing Bank shall notify the
Borrowers and the Administrative Agent thereof.  Not later than 11:00
A.M. (New York City time) on the Business Day following the date of any payment
by the applicable Issuing Bank under a Letter of Credit, so long as the
Borrowers have received notice of such drawing by 10:00 A.M. (New York City
time) on such following Business Day (each such date, an “Honor Date”), the
Borrowers shall reimburse such Issuing Bank through the Administrative Agent in
an amount equal to the amount of such drawing (together with interest thereon at
the rate set forth in Section 2.08 for Revolving Credit Advances bearing
interest at the Base Rate).  If the Borrowers fail to so reimburse the
applicable Issuing Bank by such time, the Administrative Agent shall promptly
notify each Revolving Credit Lender of the  Honor Date, the amount of
the unreimbursed drawing (the “Unreimbursed
Amount”), and the amount of such Revolving Credit Lender’s Pro Rata Share
thereof.  In such event, the Borrowers shall be deemed to have
requested a Borrowing to be disbursed on the Honor Date in an amount equal to
the  Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of Borrowings, but subject to
the amount of the Unused Revolving Credit Commitments and the conditions set
forth in Section 3.02 (other than the delivery of a Notice of
Borrowing).  Any notice given by an Issuing Bank or the Administrative
Agent pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.

     

    (ii) Each
Revolving Credit Lender (including a Revolving Credit Lender acting as Issuing
Bank) shall upon any notice pursuant to Section 2.03(c)(i) make funds available
to the Administrative Agent for the account of the applicable Issuing Bank at
the Administrative Agent’s Office in an amount equal to its Pro Rata Share of
the  Unreimbursed Amount not later than 1:00 P.M. (New York City time)
on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving
Credit Lender that so makes funds available shall be deemed to have made a
Letter of Credit Advance to the Borrowers in such amount.  The
Administrative Agent shall remit the funds so received to the applicable Issuing
Bank.

     

    (iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing
because the conditions set forth in Section 3.02 cannot be satisfied or for any
other reason, the  Borrowers shall be deemed to have incurred from the
applicable Issuing Bank a Letter of Credit Advance in the amount of the
Unreimbursed Amount that is not so refinanced, which Letter of Credit Advance
shall be due and payable on demand (together with interest) and shall bear
interest at the rate described in Section 2.08(b) for Revolving Credit Advances
bearing interest based upon the Base Rate.  In such event, each
Revolving Credit Lender’s payment to the Administrative Agent for the account of
the applicable Issuing Bank pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such Letter of Credit Advance and
shall constitute a Letter of Credit Advance from such Revolving Credit Lender in
satisfaction of its participation obligation under this Section
2.03.

     

    (iv) Until
each Revolving Credit Lender funds its Revolving Credit Advance or Letter of
Credit Advance pursuant to this Section 2.03(c) to reimburse the applicable
Issuing Bank for any amount drawn under any Letter of Credit, interest in
respect of such Revolving Credit Lender’s Pro Rata Share of such amount shall be
solely for the account of such Issuing Bank.

     

    
      
         

      

      
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    (v) Each
Revolving Credit Lender’s obligation to make Letter of Credit Advances to
reimburse the applicable Issuing Bank for amounts drawn under Letters of Credit,
as contemplated by this Section 2.03(c), shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender may have against such Issuing Bank, the Borrowers or any other Person for
any reason whatsoever; (B) the occurrence or continuance of a Default, or (C)
any other occurrence, event or condition, whether or not similar to any of the
foregoing.  No such making of a Letter of Credit Advance shall relieve
or otherwise impair the obligation of the Borrowers to reimburse the applicable
Issuing Bank for the amount of any payment made by such Issuing Bank under any
Letter of Credit, together with interest as provided herein.

     

    (vi) If any
Revolving Credit Lender fails to make available to the Administrative Agent for
the account of the applicable Issuing Bank any amount required to be paid by
such Revolving Credit Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii), such Issuing Bank
shall be entitled to recover from such Revolving Credit Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to such Issuing Bank at a rate per annum equal to the
Federal Funds Rate from time to time in effect.  A certificate of the
applicable Issuing Bank submitted to any Revolving Credit Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error.

     

    (d) Repayment of
Participations.

     

    (i) At any
time after any Issuing Bank has made a payment under any Letter of Credit and
has received from any Revolving Credit Lender such Revolving Credit Lender’s
Letter of Credit Advance in respect of such payment in accordance with Section
2.03(c), if the Administrative Agent receives for the account of the applicable
Issuing Bank any payment in respect of the related  Unreimbursed
Amount or interest thereon (whether directly from the Borrowers or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Revolving Credit Lender
its Pro Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Credit
Lender’s Letter of Credit Advance was outstanding) in the same funds as those
received by the Administrative Agent.

     

    (ii) If any
payment received by the Administrative Agent for the account of the applicable
Issuing Bank pursuant to Section 2.03(c)(i) is required to be returned under any
circumstances (including pursuant to any settlement entered into by such Issuing
Bank in its discretion), each Revolving Credit Lender shall pay to the
Administrative Agent for the account of such Issuing Bank its Pro Rata Share
thereof on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such Revolving Credit
Lender, at a rate per annum equal to the Federal Funds Rate from time to time in
effect.

     

    (e) Obligations
Absolute. The obligation of the
Borrowers to reimburse any Issuing Bank for each drawing under each Letter of
Credit and to repay each Letter of Credit Advance shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the
following:

     

    (i) any lack
of validity or enforceability of such Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;

     

    (ii) the
existence of any claim, counterclaim, set-off, defense or other right that any
Borrower may have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), such Issuing Bank or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;

     

    
      
         

      

      
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    (iii) any
draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;

     

    (iv) any
payment by the Issuing Bank under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by such Issuing Bank under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law; or

     

    (v) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrowers.

     

    The
Borrowers shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrowers’ instructions or other irregularity, the
Borrowers will promptly notify the applicable Issuing Bank.  The
Borrowers shall be conclusively deemed to have waived any such claim against the
applicable Issuing Bank and its correspondents unless such notice is given as
aforesaid.

     

    (f) Role of Issuing
Bank. Each
Revolving Credit Lender and the Borrowers agree that, in paying any drawing
under a Letter of Credit, no Issuing Bank shall have any responsibility to
obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the
validity or accuracy of any such document or the authority of the Person
executing or delivering any such document.  None of the Issuing Banks,
any of their Related Parties nor any of the respective correspondents,
participants or assignees of any Issuing Bank shall be liable to any Revolving
Credit Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Revolving Credit Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter
of Credit or Letter of Credit Application therefor.  The Borrowers
hereby assume all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrowers from
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement.  None of the Issuing
Banks, any of their Related Parties, nor any of the respective correspondents,
participants or assignees of any Issuing Bank, shall be liable or responsible
for any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrowers may have
a claim against an Issuing Bank, any of its Related Parties, any of their
respective correspondents, participants or assignees of such Issuing Bank or of
their Related Parties, and they may be liable to the Borrowers, to the extent,
but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrowers which the Borrowers prove were caused by such
Issuing Bank’s, any such Related Party’s, or any of such respective
correspondents, participants or assignees of such Issuing Bank or of any such
Related Party’s willful misconduct or gross negligence or such Issuing Bank’s
willful failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit.  In furtherance and
not in limitation of the foregoing, the applicable Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and such Issuing Bank shall not be responsible for the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason.

     

    
      
         

      

      
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    (g) Cash
Collateral.  (i) Certain Credit Support
Events.  Upon the request of the Administrative Agent or any
Issuing Bank (A) if such Issuing Bank has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in a Letter of
Credit Advance, or (B) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrowers shall, in each
case, immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations.  At any time that there shall exist a Defaulting Lender,
promptly upon the request of the Administrative Agent, any Issuing Bank or the
Swing Line Lender, the Borrowers shall deliver to the Administrative Agent Cash
Collateral in an amount sufficient to cover all Fronting Exposure (after giving
effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting
Lender) or make other arrangements satisfactory to the Administrative Agent and
the respective Issuing Bank, in their reasonable discretion.

     

    (ii)           Grant of Security
Interest.  All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America.  The
Borrowers, and to the extent provided by any Lender, such Lender, hereby grants
to (and subjects to the control of) the Administrative Agent, for the benefit of
the Administrative Agent, the Issuing Banks and the Lenders (including the Swing
Line Lender), and agrees to maintain, a first priority security interest in all
such cash, deposit accounts and all balances therein, and all other property so
provided as collateral pursuant hereto, and in all proceeds of the foregoing,
all as security for the obligations to which such Cash Collateral may be applied
pursuant to clause (iii) below.  If at any time the Administrative
Agent determines that Cash Collateral is subject to any right or claim of any
Person other than the Administrative Agent as herein provided, or that the total
amount of such Cash Collateral is less than 103% of the applicable Fronting
Exposure, the Company or the relevant Defaulting Lender will, promptly upon
demand by the Administrative Agent, pay or provide to the Administrative Agent
additional Cash Collateral in an amount sufficient to eliminate such
deficiency.

    


    (iii)           Application.  Notwithstanding
anything to the contrary contained in this Agreement, Cash Collateral provided
under any of this Section 2.03(g) or Sections 2.07, 2.16, 5.01(j) or 6.02 in
respect of Letters of Credit or Swing Line Advances shall be held and applied to
the satisfaction of the specific L/C Obligations, Swing Line Advances,
obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and
other obligations for which the Cash Collateral was so provided, prior to any
other application of such property as may be provided for herein.

    


    (iv)           Release.  Cash
Collateral (or the appropriate portion thereof) provided to reduce Fronting
Exposure or other obligations shall be released promptly following (A) the
elimination of the applicable Fronting Exposure or other obligations giving rise
thereto (including by the termination of Defaulting Lender status of the
applicable Lender (or, as appropriate, its assignee following compliance with
Section 10.07(a))) or (ii) the Administrative Agent’s good faith determination
that there exists excess Cash Collateral; provided, however, (x) that
Cash Collateral furnished by or on behalf of a Loan Party shall not be released
during the continuance of a Default or Event of Default, and (y) the Person
providing Cash Collateral and the Issuing Banks or the Swing Line Lender, as
applicable, may agree that Cash Collateral shall not be released but instead
held to support future anticipated Fronting Exposure or other
obligations.

     

    
      
         

      

      
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    (h) Applicability of ISP and
UCP. Unless
otherwise expressly agreed by the applicable Issuing Bank and the Borrowers when
a Letter of Credit is issued, (i) the rules of the ISP shall apply to each
standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice
for Documentary Credits, as most recently published by the International Chamber
of Commerce at the time of issuance shall apply to each commercial Letter of
Credit.

     

    (i) Conflict with Letter of
Credit Application.  In the event of any conflict between the
terms hereof and the terms of any Letter of Credit Application, the terms hereof
shall control.

     

    Section
2.04 Swing Line
Advances.  (a)  The Swing
Line.  Subject to the terms and conditions set forth herein,
the Swing Line Lender, in reliance upon the agreements of the other Lenders set
forth in this Section 2.04,  may in its sole discretion make advances
(each such advance, a “Swing Line Advance”)
to the Borrowers from time to time on any Business Day during the period from
the Effective Date to the Termination Date in an aggregate amount not to exceed
at any time outstanding the amount of the Swing Line Sublimit, notwithstanding
the fact that such Swing Line Advances, when aggregated with the Pro Rata Share
of the Outstanding Amount of Revolving Credit Advances and L/C Obligations of
the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s
Revolving Credit Commitment; provided, however, that after
giving effect to any Swing Line Advance, (i) the aggregate Outstanding Amount of
all Advances and all L/C Obligations shall not exceed the Revolving Credit
Facility at such time, and (ii) the aggregate Outstanding Amount of the
Revolving Credit Advances of any Revolving Credit Lender at such time, plus such Revolving
Credit Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations
at such time, plus such Revolving
Credit Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line
Advances at such time shall not exceed such Lender’s Revolving Credit
Commitment, and provided further that the
Borrowers shall not use the proceeds of any Swing Line Advance to refinance any
outstanding Swing Line Advance.  Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrowers may borrow under
this Section 2.04, prepay under Section 2.06, and reborrow under this Section
2.04.  Each Swing Line Advance shall be a Base Rate
Advance.  Immediately upon the making of a Swing Line Advance, each
Revolving Credit Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Advance in an amount equal to such Revolving
Credit Lender’s Pro Rata Share of such Swing Line Advance.

     

    (b) Borrowing
Procedures.  Each Swing Line Borrowing shall be made upon the
Borrowers’ irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone.  Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day.  Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Advance Notice, appropriately
completed and signed by a Responsible Officer of any
Borrower.  Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Advance Notice, the Swing Line Lender will confirm with
the Administrative Agent (by telephone or in writing) that the Administrative
Agent has also received such Swing Line Advance Notice and, if not, the Swing
Line Lender will notify the Administrative Agent (by telephone or in writing) of
the contents thereof.  Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Revolving Credit Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Advance as a result of the limitations set forth in the
first proviso to the first sentence of Section 2.04(a), or (B) that one or more
of the applicable conditions specified in Article III is not then satisfied,
then, subject to the terms and conditions hereof, the Swing Line Lender will,
not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Advance Notice, make the amount of its Swing Line Advance available to such
Borrower.

     

    
      
         

      

      
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    (c) Refinancing of Swing Line
Advances.  (i)  The Swing Line Lender at any time in
its sole discretion may request, on behalf of the Borrowers (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf), that
each Revolving Credit Lender make a Base Rate Advance in an amount equal to such
Lender’s Pro Rata Share of the amount of Swing Line Advances then
outstanding.  Such request shall be made in writing (which written
request shall be deemed to be a Notice of Borrowing for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to the minimum
and multiples specified therein for the principal amount of Base Rate Advances,
but subject to the Unused Revolving Credit Commitments and the conditions set
forth in Section 3.02.  The Swing Line Lender shall furnish the
Borrowers with a copy of the applicable Notice of Borrowing promptly after
delivering such notice to the Administrative Agent.  Each Revolving
Credit Lender shall make an amount equal to its Pro Rata Share of the amount
specified in such Notice of Borrowing available to the Administrative Agent in
immediately available funds (and the Administrative Agent may apply Cash
Collateral available with respect to the applicable Swing Line Advance) for the
account of the Swing Line Lender at the Administrative Agent’s Office not later
than 1:00 p.m. on the day specified in such Notice of Borrowing, whereupon,
subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes funds
available shall be deemed to have made a Base Rate Advance to the Borrowers in
such amount.  The Administrative Agent shall remit the funds so
received to the Swing Line Lender.

     

    (ii) If for
any reason any Swing Line Advance cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base
Rate Advances submitted by the Swing Line Lender as set forth herein shall be
deemed to be a request by the Swing Line Lender that each of the Revolving
Credit Lenders fund its risk participation in the relevant Swing Line Advance
and each Revolving Credit Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.

     

    (iii) If any
Revolving Credit Lender fails to make available to the Administrative Agent for
the account of the Swing Line Lender any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time
specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the Swing
Line Lender at a rate per annum equal to the greater of the Federal Funds Rate
and a rate determined by the Swing Line Lender in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in connection with the
foregoing.  If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Advance included
in the relevant Revolving Credit Borrowing or funded participation in the
relevant Swing Line Advance, as the case may be.  A certificate of the
Swing Line Lender submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (iii) shall be conclusive
absent manifest error.

     

    (iv) Each
Revolving Credit Lender’s obligation to make Revolving Credit Advances or to
purchase and fund risk participations in Swing Line Advances pursuant to this
Section 2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line Lender, any
Borrower or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Revolving Credit Lender’s obligation to make Revolving Credit Advances pursuant
to this Section 2.04(c) is subject to the conditions set forth in Section
3.02.  No such funding of risk participations shall relieve or
otherwise impair the obligation of the Borrowers to repay Swing Line Advances,
together with interest as provided herein.

     

    
      
         

      

      
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    (d) Repayment of
Participations.  (i)  At any time after any Revolving
Credit  Lender has purchased and funded a risk participation in a
Swing Line Advance, if the Swing Line Lender receives any payment on account of
such Swing Line Advance, the Swing Line Lender will distribute to such Revolving
Credit Lender its Pro Rata Share thereof in the same funds as those received by
the Swing Line Lender.

     

    (ii) If any
payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Advance is required to be returned by the Swing Line Lender under
any circumstances (including pursuant to any settlement entered into by the
Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to
the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the Federal Funds
Rate.  The Administrative Agent will make such demand upon the request
of the Swing Line Lender.  The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations under the Loan
Documents and the termination of this Agreement.

     

    (e) Interest for Account of
Swing Line Lender.  The Swing Line Lender shall be responsible
for invoicing the Borrowers for interest on the Swing Line
Advances.  Until each Revolving Credit Lender funds its Base Rate
Advance or risk participation pursuant to this Section 2.04 to refinance such
Revolving Credit Lender’s Pro Rata Share of any Swing Line Advance, interest in
respect of such Pro Rata Share shall be solely for the account of the Swing Line
Lender.

     

    (f) Payments Directly to Swing
Line Lender.  The Borrowers shall make all payments of
principal and interest in respect of the Swing Line Advances directly to the
Swing Line Lender to such account of the Swing Line Lender as it shall notify
the Borrowers from time to time.

     

    Section
2.05 Repayment of
Advances.  (a)
[Intentionally
Omitted].

     

    (b) Revolving Credit
Advances.  The Borrowers shall repay to the Administrative
Agent for the ratable account of the Revolving Credit Lenders on the Termination
Date the aggregate outstanding principal amount of the Revolving Credit Advances
then outstanding.

     

    (c) Letter of Credit
Advances.  The Borrowers shall repay to the Administrative
Agent for the account of the Issuing Banks and each Revolving Credit Lender that
has made a Letter of Credit Advance the outstanding principal amount of each
Letter of Credit Advance made by each of them on the earlier of (i) the
date of demand therefor and (ii) the Termination Date.

     

    (d) Swing Line
Advances.  The Borrower shall repay each Swing Line Advance on
the earlier of (i) the date five Business Days after such Advance is made and
(ii) the Termination Date.

     

    Section
2.06 Termination, Reduction or
Automatic Increase of Commitments.  (a)  Optional.  The
Borrowers may, upon at least three Business Days’ notice to the Administrative
Agent, terminate in whole or reduce in part the unused portions of the Revolving
Credit Facility, the Letter of Credit Sublimit or the Swing Line Sublimit (which
shall be applied to the Unused Revolving Credit Commitments (it being understood
that such “unused” portion of any such Commitments shall include any portion
that becomes unused as a result of any repayment occurring concurrently with
such Commitment reduction or termination), as applicable); provided, however, that each
partial reduction shall be in an aggregate amount of $10,000,000 or an integral
multiple of $5,000,000 in excess thereof.

     

    
      
         

      

      
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    (b) Mandatory.  The
Letter of Credit Sublimit or the Swing Line Sublimit shall be automatically and
permanently reduced from time to time on the date of each reduction in the
Revolving Credit Facility by the amount, if any, by which the amount of the
Letter of Credit Sublimit or Swing Line Sublimit, as the case may be, exceeds
the Revolving Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.

     

    (c) Application of Commitment
Reductions.  Upon each reduction of the Revolving Credit
Facility pursuant to this Section 2.06, the Revolving Credit Commitment of
each of the Revolving Credit Lenders shall be reduced by such Revolving Credit
Lender’s Pro Rata Share of the amount by which the Revolving Credit Facility is
reduced in accordance with the Lenders’ respective Revolving Credit
Commitments.

     

    Section
2.07 Prepayments.  (a)  Optional.  (i) The
Borrowers may, upon at least three Business Days’ notice in the case of
Eurodollar Rate Advances and one Business Day’s notice in the case of Base Rate
Advances, in each case to the Administrative Agent received not later than 11:00
A.M. (New York City time) stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrowers shall,
prepay the outstanding aggregate principal amount of Revolving Credit Advances
and Letter of Credit Advances, in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal
amount prepaid and any additional amounts required pursuant to Section 10.04(d);
provided, however, that each
partial prepayment shall be in the case of Revolving Credit Advances in an
aggregate principal amount of $2,500,000 or an integral multiple of $1,000,000
in excess thereof or, if less, the aggregate outstanding principal amount of any
Advance.  Any prepayment of Advances pursuant to this Section 2.07(a)
shall be applied to any one or more of the Revolving Credit Facility or the
Letter of Credit Advances as directed by the Borrowers.

     

    (ii) The
Borrowers may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Advances in whole or in part without premium or penalty; provided that (A)
such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such
prepayment shall be in a minimum principal amount of $100,000.  Each
such notice shall specify the date and amount of such prepayment.  If
such notice is given by any Borrower, the Borrowers shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the
date specified therein.

     

    (b) Mandatory.

     

    (i) The
Borrowers shall, on the Business Day following the date of receipt of any Net
Cash Proceeds by any Loan Party or any of its Subsidiaries, prepay an aggregate
principal amount of the Advances equal to such Net Cash Proceeds; provided, however, that (A) the
Borrowers shall not be required to make any prepayment hereunder with Net Cash
Proceeds unless and until the aggregate amount of all such Net Cash Proceeds
(excluding Net Cash Proceeds from Extraordinary Receipts) that have not
theretofore been applied to prepay the Advances pursuant to this Section
2.07(b)(i) exceeds $5,000,000 (at such time the Borrowers shall be required to
make a prepayment hereunder with all such excess Net Cash Proceeds except to the
extent such prepayment is not required under clause (B), (C), (D) or (E) of this
proviso), (B) to the extent the aggregate amount of all Net Cash Proceeds
(excluding Net Cash Proceeds from Extraordinary Receipts) received by the Loan
Parties and their Subsidiaries shall exceed $10,000,000, only 75% of such excess
amount of Net Cash Proceeds received shall be required to be applied to
prepayment hereunder, (C) in the case of Net Cash Proceeds that are
Extraordinary Receipts in respect of any casualty or condemnation event (“Extraordinary Receipts
Proceeds”), to the extent such Extraordinary Receipts Proceeds are used
to repair, restore or replace the assets that are the subject of such event in
substantially the same location promptly after the receipt of such Extraordinary
Receipts Proceeds by a Loan Party or any of its Subsidiaries, no such
Extraordinary Receipts Proceeds shall be required to be applied to any
prepayment hereunder, (D) in the case of Extraordinary Receipts Proceeds
received with respect to a casualty or condemnation event in respect of
Inventory, no such Extraordinary Receipts Proceeds shall be required to be
applied to any prepayment hereunder and (E) in the case of Extraordinary
Receipts Proceeds on account of the claims subject to the Conyers Fire
Settlement, no such Extraordinary Receipts Proceeds shall be required to be
applied to any prepayment hereunder to the extent that such Extraordinary
Receipts Proceeds shall be used to pay or reimburse the Loan Parties and their
Subsidiaries for funding the settlement fund described in the definition of
“Conyers Fire Settlement” and/or for legal fees and expenses incurred in
connection therewith.  Each such prepayment shall be applied first ratably to the
outstanding Revolving Credit Facility as set forth in clause (iv) below, and
second, if
required under Section 2.03(g), deposited in the L/C Cash Collateral Account, in
each case without any reduction of any Commitments.

     

    
      
         

      

      
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    (ii) The
Borrowers shall, on each Business Day, if applicable, prepay, in each case
without any reduction of any Commitments, an aggregate principal amount of the
Revolving Credit Advances, the Letter of Credit Advances or the Swing Line
Advances or deposit an amount in the L/C Collateral Account in an amount equal
to the amount by which (A) the sum of (x) the Revolving Credit Advances,
the Letter of Credit Advances and the Swing Line Advances then outstanding plus (y) the
aggregate Available Amount of all Letters of Credit then outstanding exceeds
(B) the lesser of (x) the sum of the aggregate Revolving Credit Commitments
and (y) the Borrowing Base.

     

    (iii) The
Borrowers shall, on each Business Day, if applicable, pay to the Administrative
Agent for deposit in the L/C Cash Collateral Account an amount sufficient to
cause the aggregate amount on deposit in such L/C Cash Collateral Account to
equal the amount by which the aggregate Available Amount of all Letters of
Credit then outstanding exceeds the Letter of Credit Sublimit on such Business
Day.

     

    (iv) Prepayments
of the Revolving Credit Facility made pursuant to clauses (i) and (ii) above and
(v) below shall be first applied ratably
to prepay Letter of Credit Advances and the Swing Line Advances then
outstanding, if any, until such Advances are paid in full, second applied
ratably to prepay Revolving Credit Advances then outstanding, if any, until such
Advances are paid in full and third, if required
under Section 2.03(g), deposited in the L/C Cash Collateral Account, in each
case without any reduction of any Commitments; and, in the case of any
prepayment of the Revolving Credit Facility pursuant to clause (i) above, the
amount remaining, if any, from the Revolving Credit Facility’s ratable portion
of such Net Cash Proceeds after the prepayment of the Letter of Credit Advances,
the Swing Line Advances and the Revolving Credit Advances then outstanding and
any required Cash Collateralization of Letters of Credit then outstanding may be
retained by the Borrowers for use in their business and
operations.  Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Cash Collateral Account, such funds shall be applied
to reimburse the applicable Issuing Bank or Revolving Credit Lenders, as
applicable.

     

    (v) If at the
end of any Business Day the amount of unrestricted cash and Cash Equivalents
held by the Loan Parties (other than cash and Cash Equivalents held in (x)
collection, lockbox and disbursement accounts in the ordinary course of
collections and disbursements, and (y) payroll accounts, trust accounts, escrow
accounts or security deposits established pursuant to statutory obligations or
for the payment of taxes or holding funds in trust for third parties not
affiliated with the Company in the ordinary course of business or in connection
with acquisitions, investments or dispositions permitted under this Agreement,
deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, and
reserve accounts expressly contemplated under the Plan and/or the Disclosure
Statement (including, but not limited to reserves expressly contemplated under
the Plan and/or Disclosure Statement for diacetyl claims and environmental
claims), and escrow accounts established pursuant to contractual obligations to
third parties not affiliated with the Company for casualty payments and
insurance proceeds) shall exceed $20 million in the aggregate, mandatory
prepayments of the Revolving Credit Advances (and Cash Collateralization of
outstanding Letters of Credit) shall be required on the following Business Day
in an amount necessary to eliminate such excess (net of the Loan Parties’
permitted known cash uses (for example, Senior Note and Term Facility interest
payments and trade accounts payable) on the date of such prepayment and for the
2 Business Days thereafter).

     

    
      
         

      

      
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    (vi) All
prepayments under this subsection (b) shall be made together with accrued
interest to the date of such prepayment on the principal amount prepaid and any
additional amounts required pursuant to Section 10.04(d).

     

    Section
2.08 Interest.  (a)  Scheduled
Interest.  The Borrowers shall pay interest on each Revolving
Credit Advance or Swing Line Advance owing to each Lender from the date of such
Revolving Credit Advance or Swing Line Advance, respectively, until such
principal amount shall be paid in full, at the following rates per
annum:

     

    (i) Base Rate
Advances.  During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (A) the Base Rate in
effect from time to time plus (B) the
Applicable Margin in effect from time to time, payable in arrears monthly on the
last Business Day of each month during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.

     

    (ii) Eurodollar Rate
Advances.  During such periods as such Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the sum of (A) the Eurodollar Rate for such Interest
Period for such Advance plus (B) the
Applicable Margin in effect on the first day of such Interest Period, payable in
arrears on the last day of such Interest Period (and, if such Interest Period
has a duration of six months, also on the date falling three months from the
first day of such Interest Period) and on the date such Eurodollar Rate Advance
shall be Converted or paid in full.

     

    (b) Default
Interest.  Upon the occurrence and during the continuance of an
Event of Default the Borrowers shall pay interest on (i) the unpaid
principal amount of each Revolving Credit Advance and Swing Line Advance owing
to each Lender (whether or not due), payable in arrears on the dates referred to
in clause (a) above and on demand, at a rate per annum equal at all times
to 2% per annum above the rate per annum required to be paid on such Advance
pursuant to clause (a) and (ii) to the fullest extent permitted by
law, the amount of any interest, fee or other amount payable hereunder that is
not paid when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount shall be paid
in full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on Advances pursuant to clause
(a)(i) above.

     

    (c) Notice of Interest
Rate.  Promptly after receipt of a Notice of Borrowing pursuant
to Section 2.02(a), the Administrative Agent shall give notice to the Borrowers
and each Lender of the interest rate determined by the Administrative Agent for
purposes of clause (a) above.

     

    
      
         

      

      
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    Section
2.09 Fees.
(a)  Commitment
Fees.  The Borrowers shall pay to the Administrative Agent for
the account of the Revolving Credit Lenders a commitment fee, from the Effective
Date in the case of each such Initial Lender and (if such date is later than the
Effective Date) from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other such
Lender until the Termination Date, payable in arrears monthly on the first day
of each month ending after the Effective Date and on the Termination Date, at
the rate of 0.50% per annum on the average daily unused portion of the Unused
Revolving Credit Commitment of such Lender; provided, however, that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.

     

    (a) Letter of Credit Fees,
Etc.

     

    (i) The
Borrowers shall pay to the Administrative Agent for the account of each
Revolving Credit Lender a commission, payable in arrears on the first Business
Day of each month, on the earliest to occur of the full drawing, expiration,
termination or cancellation of any such Letter of Credit and on the Termination
Date, on such Revolving Credit Lender’s Pro Rata Share of the average daily
aggregate Available Amount during such month of all Letters of Credit
outstanding from time to time  during such month at a rate per annum
equal to the Applicable Margin for Eurodollar Rate Advances under the Revolving
Credit Facility; provided, however, that no such
commission shall accrue on any of the Revolving Credit Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting
Lender.

     

    (ii) The
Borrowers shall pay to each Issuing Bank, for its own account, (A) a
fronting fee, payable in arrears on the first Business Day of each month and on
the Termination Date, on the average daily Available Amount during such month of
all Letters of Credit issued by such Issuing Bank, at the rate of 0.125% per
annum and (B) the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of such Issuing
Bank.

     

    (b) Initial Lender
Fees.  The Borrowers shall pay to the Administrative Agent and
the Bookrunners (or their respective Affiliates) such other fees as may be from
time to time agreed among the Company, the Administrative Agent and the
Bookrunners (or their respective Affiliates).

     

    Section
2.10 Conversion of
Advances.  (a)  Optional.  The
Borrowers may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion (or the Business Day prior to
the date of the proposed Conversion, in the case of a Conversion of a Eurodollar
Rate Advance to a Base Rate Advance) and subject to the provisions of Section
2.11, Convert all or any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising
part of the same Borrowing shall be made ratably among the Lenders in accordance
with their Commitments.  Each such notice of Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion,
(ii) the Advances to be Converted and (iii) if such Conversion is into
Eurodollar Rate Advances, the duration of the initial Interest Period for such
Advances.  Each notice of Conversion shall be irrevocable and binding
on the Borrowers.  Notwithstanding anything to the contrary herein, a
Swing Line Advance may not be Converted to a Eurodollar Rate
Advance.

     

    
      
         

      

      
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    (a) Mandatory.

     

    (i) On the
date on which the aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $5,000,000, such Advances shall, at the end of the
applicable Interest Period, automatically Convert into Base Rate
Advances.

     

    (ii) If the
Borrowers shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the
definition of “Interest Period” in Section 1.01, the Administrative Agent
will forthwith so notify the Borrowers and the Lenders, whereupon each such
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance.

     

    (iii) Upon the
occurrence and during the continuance of any Event of Default, (x) each
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.

     

    Section
2.11 Increased Costs,
Etc.  (a)  If,
due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender Party of agreeing to make or of making, funding or
maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or
maintaining or participating in Letters of Credit or of agreeing to make or of
making or maintaining Letter of Credit Advances (excluding, for purposes of this
Section 2.11, any such increased costs resulting from (x) Taxes or
Other Taxes (as to which Section 2.13 shall govern) and (y) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender Party is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrowers shall from time to time, upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender Party additional
amounts sufficient to compensate such Lender Party for such increased
cost.  A certificate as to the amount of such increased cost,
submitted to the Borrowers by such Lender Party, shall be conclusive and binding
for all purposes, absent manifest error.

     

    (b) If any
Lender Party determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender Party or any
corporation controlling such Lender Party and that the amount of such capital is
increased by or based upon the existence of such Lender Party’s commitment to
lend or to issue or participate in Letters of Credit hereunder and other
commitments of such type or the issuance or maintenance of or participation in
the Letters of Credit (or similar contingent obligations), then, upon demand by
such Lender Party or such corporation (with a copy of such demand to the
Administrative Agent), the Borrowers shall pay to the Administrative Agent for
the account of such Lender Party, from time to time as specified by such Lender
Party, additional amounts sufficient to compensate such Lender Party in the
light of such circumstances, to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party’s commitment to lend or to issue or participate in Letters of
Credit hereunder or to the issuance or maintenance of or participation in any
Letters of Credit.  A certificate as to such amounts submitted to the
Borrowers by such Lender Party shall be conclusive and binding for all purposes,
absent manifest error.

     

    
      
         

      

      
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    (c) If, with
respect to any Eurodollar Rate Advances, the Required Lenders notify the
Administrative Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Lenders of making, funding
or maintaining their Eurodollar Rate Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrowers and the Lenders,
whereupon (i) each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrowers that such Lenders have
determined that the circumstances causing such suspension no longer
exist.

     

    (d) Notwithstanding
any other provision of this Agreement, if the introduction of or any change in
or in the interpretation of any law or regulation shall make it unlawful, or any
central bank or other governmental authority shall assert that it is unlawful,
for any Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances hereunder, then, on notice thereof and demand therefor
by such Lender to the Borrowers through the Administrative Agent, (i) each
Eurodollar Rate Advance will automatically, upon such demand, Convert into a
Base Rate Advance and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrowers that such Lender has determined
that the circumstances causing such suspension no longer exist.

     

    (e) For
purposes of this Section 2.11, the Dodd-Frank Act and any and all rules,
regulations, orders, requests, guidelines and directives adopted, promulgated or
implemented in connection therewith are deemed to have been introduced and
adopted after the date of this Agreement.

     

    Section
2.12 Payments and
Computations.  (a)  The
Borrowers shall make each payment hereunder and under the Notes, without
condition or deduction for any counterclaim, defense, recoupment or set-off
(except as otherwise provided in Section 2.16), not later than 11:00 A.M. (New
York, New York time) on the day when due in U.S. dollars to the Administrative
Agent at the Administrative Agent’s Office in same day funds.  The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrowers is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective Obligations then payable to such Lender Parties
(except as set forth in the second sentence of Section 2.05(b)) and (ii) if
such payment by the Borrowers is in respect of any Obligation then payable
hereunder to one Lender Party, to such Lender Party for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement.  Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 10.07(d), from and after the effective date of such
Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender Party assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.

     

    (b) If the
Administrative Agent receives funds for application to the Obligations under the
Loan Documents under circumstances for which the Loan Documents do not specify
the Advances to which, or the manner in which, such funds are to be applied, the
Administrative Agent may, but shall not be obligated to, elect to distribute
such funds to each Lender Party ratably in accordance with such Lender Party’s
proportionate share of the principal amount of all outstanding Advances and the
Available Amount of all Letters of Credit then outstanding, in repayment or
prepayment of such of the outstanding Advances or other Obligations under the
Loan Documents owed to such Lender Party, and for application to such principal
installments, as the Administrative Agent shall direct.

     

    
      
         

      

      
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    (c) The
Borrowers hereby authorize each Lender Party, if and to the extent payment owed
to such Lender Party is not made when due hereunder or, in the case of a Lender,
under the Note held by such Lender, to charge from time to time against any or
all of the Borrowers’ accounts with such Lender Party any amount so due (subject
to the limitations on the exercise of remedies upon an Event of Default set
forth in Article VI hereof).  Each of the Lender Parties hereby agrees
to notify the Borrowers promptly after any such setoff and application shall be
made by such Lender Party; provided, however, that the
failure to give such notice shall not affect the validity of such
charge.

     

    (d) All
computations of interest based on the Base Rate shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of fees and Letter of Credit commissions shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable.  Each determination by the Administrative Agent of an
interest rate, fee or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.

     

    (e) Whenever
any payment hereunder or under the Notes shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or commitment fee, as the case may be; provided, however, that, if
such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.

     

    (f) Unless
the Administrative Agent shall have received notice from the Borrowers prior to
the date on which any payment is due to any Lender Party hereunder that the
Borrowers will not make such payment in full, the Administrative Agent may
assume that the Borrowers have made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each such Lender Party on such due date
an amount equal to the amount then due such Lender Party.  If and to
the extent the Borrowers shall not have so made such payment in full to the
Administrative Agent, each such Lender Party shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender Party in
immediately available funds together with interest thereon, for each day from
the date such amount is distributed to such Lender Party until the date such
Lender Party repays such amount to the Administrative Agent, at the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.

     

    Section
2.13 Taxes.  (a)  Any
and all payments by any Loan Party to or for the account of any Lender Party or
any Agent hereunder or under any other Loan Document shall be made, in
accordance with Section 2.12 or the applicable provisions of such other Loan
Document, if any, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding, in the case of each Lender
Party and each Agent, taxes that are imposed on its overall net income by the
United States and taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction
under the laws of which such Lender Party or such Agent, as the case may be, is
organized or any political subdivision thereof and any United States federal
withholding tax that would not have been imposed but for a failure by such
Lender Party or such Agent (or any financial institution through which any
payment is made to such Lender Party or such Agent) to comply with the
applicable requirements of Sections 1471 through 1474 of the Internal Revenue
Code and, in the case of each Lender Party, taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction of such Lender Party’s Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under any other Loan Document being hereinafter referred to as
“Taxes”).  If
any Loan Party shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any other Loan Document to any Lender
Party or any Agent, (i) the sum payable by such Loan Party shall be increased as
may be necessary so that after such Loan Party and the Administrative Agent have
made all required deductions (including deductions applicable to additional sums
payable under this Section 2.13) such Lender Party or such Agent, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party shall make all such deductions and
(iii) such Loan Party shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable
law.

     

    
      
         

      

      
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    (b) In
addition, the Borrowers shall pay any present or future stamp, documentary,
excise, property, intangible, mortgage recording or similar taxes, charges or
levies that arise from any payment made by any Loan Party hereunder or under any
other Loan Documents or from the execution, delivery or registration of,
performance under, or otherwise with respect to, this Agreement or the other
Loan Documents (hereinafter referred to as “Other
Taxes”).

    (c) The
Borrowers shall indemnify each Lender Party and each Agent for and hold them
harmless against the full amount of Taxes and Other Taxes, including Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 2.13, imposed on or paid by such Lender Party or such Agent (as the
case may be) and any liability (including penalties, additions to tax, interest
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally imposed or asserted.  A
certificate as to the amount of any such taxes or liability delivered to the
Borrowers by a Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.  This indemnification shall be made
within 30 days from the date such Lender Party or such Agent (as the case may
be) makes written demand therefor.

     

    (d) Within 30
days after the date of any payment of Taxes, the appropriate Loan Party shall
furnish to the Administrative Agent, at its address referred to in
Section 10.02, the original or a certified copy of a receipt evidencing
such payment, to the extent such a receipt is issued therefor, or other written
proof of payment thereof that is reasonably satisfactory to the Administrative
Agent.  In the case of any payment hereunder or under the other Loan
Documents by or on behalf of a Loan Party through an account or branch outside
the United States or by or on behalf of a Loan Party by a payor that is not a
United States person, if such Loan Party determines that no Taxes are payable in
respect thereof, such Loan Party shall furnish, or shall cause such payor to
furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes.  For purposes of subsections (d) and (e) of this Section
2.13, the terms “United States” and
“United States
person” shall have the meanings specified in Section 7701 of the Internal
Revenue Code.

     

    
      
         

      

      
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    (e) Each
Lender Party organized under the laws of a jurisdiction outside the United
States shall, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender Party and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender Party in the
case of each other Lender Party, and from time to time thereafter as reasonably
requested in writing by the Borrowers (but only so long thereafter as such
Lender Party remains lawfully able to do so), provide each of the Administrative
Agent and Borrowers with whichever of the following is applicable: (i) two
executed originals of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party, (ii)
two executed originals of Internal Revenue Service Form W-8ECI, (iii) two
executed originals of Internal Revenue Service Form W-8IMY and all required
supporting documentation, (iv) in the case of a Lender Party claiming the
benefits of the exemption for portfolio interest under section 881(c) of the
Internal Revenue Code, (x) a certificate to the effect that such Lender Party is
not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal
Revenue Code, (B) a “10 percent shareholder” of any Loan Party within the
meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a
“controlled foreign corporation” described in section 881(c)(3)(C) of the
Internal Revenue Code and (y) two executed originals of Internal Revenue Service
Form W-8BEN, or (v) two executed originals of any other form prescribed by
applicable laws as a basis for claiming exemption from or a reduction in United
States federal withholding tax together with such supplementary documentation as
may be prescribed by applicable laws to permit the Administrative Agent to
determine the withholding or deduction required to be made.  If the
forms provided by a Lender Party at the time such Lender Party first becomes a
party to this Agreement indicate a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; provided, however, that if, at
the effective date of the Assignment and Acceptance pursuant to which a Lender
Party becomes a party to this Agreement, the Lender Party assignor was entitled
to payments under subsection (a) of this Section 2.13 in respect of United
States withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender Party
assignee on such date.  Each Lender Party that is a “United States
person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code
shall deliver to the Company and the Administrative Agent two executed originals
of Internal Revenue Service Form W-9 or such other documentation or information
prescribed by applicable Laws or reasonably requested by the Borrowers or the
Administrative Agent if necessary to enable the Borrowers or the Administrative
Agent, as the case may be, to determine whether or not such Lender Party is
subject to backup withholding or information reporting
requirements.  If any form or document referred to in this subsection
(e) requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8ECI, or the related certificate described
above, that the applicable Lender Party reasonably considers to be confidential,
such Lender Party shall give notice thereof to the Borrowers and shall not be
obligated to include in such form or document such confidential
information.

     

    (f) For any
period with respect to which a Lender Party has failed to provide the Borrowers
with the appropriate form, certificate or other document described in
subsection (e) above (other than if such failure is
due to a change in law, or in the interpretation or application thereof,
occurring after the date on which a form, certificate or other document
originally was required to be provided or if such form, certificate or other
document otherwise is not required under subsection (e) above), such Lender
Party shall not be entitled to indemnification under subsection (a) or (c)
of this Section 2.13 with respect to Taxes imposed by the United States by
reason of such failure; provided that should a Lender
Party become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Loan Parties shall take
such steps as such Lender Party shall reasonably request to assist such Lender
Party to recover such taxes.

     

    (g) Unless
required by applicable laws, at no time shall the Administrative Agent have any
obligation to file for or otherwise pursue on behalf of a Lender Party, or have
any obligation to pay to any Lender Party, any refund of Taxes withheld or
deducted from funds paid for the account of such Lender Party. If the
Administrative Agent or any Lender Party determines, in its sole discretion,
that it has received a refund of any Taxes or Other Taxes as to which it has
been indemnified by a Loan Party or with respect to which a Loan Party has paid
additional amounts pursuant to this Section, it shall pay to such Loan Party an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by such Loan Party under this Section with respect
to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent or such Lender Party
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Loan Parties, upon the
request of the Administrative Agent or such Lender Party, agree to repay the
amount paid over to such Loan Party (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender Party in the event the Administrative Agent or such Lender
Party is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Administrative Agent or any
Lender Party to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to any Person.

     

    
      
         

      

      
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    (h) Any
Lender Party claiming any additional amounts pursuant to this Section 2.13 shall
use its reasonable efforts (consistent with its internal policies and
requirements of law) to change the jurisdiction of its lending office if such a
change (i) is necessary to reduce any such additional amounts and (ii) would
not, in the sole determination of such Lender Party, be disadvantageous to such
Lender Party.

     

    Section
2.14 Sharing of Payments,
Etc.  If
any Lender Party shall obtain at any time any payment, whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise (other
than pursuant to Section 2.11, 2.13, 10.04 or 10.07), (a) on account of
Obligations due and payable to such Lender Party hereunder and under the Notes
at such time in excess of its ratable share (according to the proportion of
(i) the amount of such Obligations due and payable to such Lender Party at
such time (other than pursuant to Section 2.11, 2.13, 10.04 or 10.07) to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the Notes at such time) of payments on account of
the Obligations due and payable to all Lender Parties hereunder and under the
Notes at such time obtained by all the Lender Parties at such time or
(b) on account of Obligations owing (but not due and payable) to such
Lender Party hereunder and under the Notes at such time (other than pursuant to
Section 2.11, 2.13, 10.04 or 10.07) in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender
Party at such time (other than pursuant to Section 2.11, 2.13, 10.04 or 10.07)
to (ii) the aggregate amount of the Obligations owing (but not due and
payable) to all Lender Parties hereunder and under the Notes at such time) of
payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such participations in the Obligations under the Loan
Documents due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that, if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lender Party, such purchase from each other Lender Party shall be
rescinded and such other Lender Party shall repay to the purchasing Lender Party
the purchase price to the extent of such Lender Party’s ratable share (according
to the proportion of (i) the purchase price paid to such Lender Party to
(ii) the aggregate purchase price paid to all Lender Parties) of such
recovery together with an amount equal to such Lender Party’s ratable share
(according to the proportion of (i) the amount of such other Lender Party’s
required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so
recovered.  The Borrowers agree that any Lender Party so purchasing a
participation from another Lender Party pursuant to this Section 2.14 may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender Party were the direct creditor of the Borrowers in the amount of
such participation.

     

    
      
         

      

      
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    Section
2.15 Use of
Proceeds.  The
proceeds of the Revolving Credit Advances shall only be utilized (i) to
refinance the Obligations outstanding under the Existing DIP Agreement, (ii) to
pay fees, costs and expenses in connection with such refinancing and the
Transactions and (iii) to provide financing for working capital, letters of
credit, capital expenditures and other general corporate purposes of the
Borrowers and the Guarantors, including but not limited to investments in other
Subsidiaries to the extent not prohibited under this Agreement or to Cash
Collateralize the Fronting Exposure with respect to Defaulting
Lenders.

     

    Section
2.16 Defaulting
Lenders.  (a)  Adjustments.  Notwithstanding
anything to the contrary contained in this Agreement, if any Lender becomes a
Defaulting Lender, then, until such time as that Lender is no longer a
Defaulting Lender, to the extent permitted by applicable Law:

     

    (i) Waivers and
Amendments.  That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in Section 10.01.

     

    (ii) Reallocation of
Payments.  Any payment of principal, interest, fees or other
amounts received by the Administrative Agent for the account of that Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI or
otherwise, and including any amounts made available to the Administrative Agent
by that Defaulting Lender pursuant to Section 10.05), shall be applied at such
time or times as may be determined by the Administrative Agent as
follows:  first, to the payment of any
amounts owing by that Defaulting Lender to the Administrative Agent hereunder;
second, to the payment
on a pro rata basis of any amounts owing by that Defaulting Lender to any
Issuing Bank or the Swing Line Lender hereunder; third, if so determined by
the Administrative Agent or requested by any Issuing Bank or the Swing Line
Lender, to be held as Cash Collateral for future funding obligations of that
Defaulting Lender of any participation in any Letter of Credit or Swing Line
Advance; fourth, as the
Borrowers may request (so long as no Default or Event of Default has occurred
and is continuing), to the funding of any Advance in respect of which that
Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth, if so determined by
the Administrative Agent and the Borrowers, to be held in a non-interest bearing
deposit account and released in order to satisfy obligations of that Defaulting
Lender to fund Advances under this Agreement; sixth, to the payment of any
amounts owing to the Lenders, the Issuing Banks or the Swing Line Lender as a
result of any judgment of a court of competent jurisdiction obtained by any by
any Lender, any Issuing Bank or the Swing Line Lender against that Defaulting
Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; seventh, so long as no
Default or Event of Default has occurred and is continuing, to the payment of
any amounts owing to the Borrowers as a result of any judgment of a court of
competent jurisdiction obtained by the Borrowers against that Defaulting Lender
as a result of that Defaulting Lender’s breach of its obligations under this
Agreement; and eighth,
to that Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Advances in respect of which that Defaulting Lender has not fully
funded its appropriate share and (y) such Advances were made at a time when the
conditions set forth in Section 3.01 were satisfied or waived, such payment
shall be applied solely to pay the Advances of all non-Defaulting Lenders on a
pro rata basis prior to being applied to the payment of any Advances of that
Defaulting Lender.  Any payments, prepayments or other amounts paid or
payable to a Defaulting Lender that are applied (or held) to pay amounts owed by
a Defaulting Lender or to post Cash Collateral pursuant to this Section
2.16(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender,
and each Lender irrevocably consents hereto.

     

    
      
         

      

      
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    (iii) Certain
Fees.  That Defaulting Lender shall not be entitled to receive
any commitment fee or letter of credit fee pursuant to Sections 2.09(a) and (b),
respectively,  for any period during which that Lender is a Defaulting
Lender (and the Borrowers shall not be required to pay any such fee that
otherwise would have been required to have been paid to that Defaulting
Lender).

     

    (iv) Reallocation of Pro Rata
Share to Reduce Fronting Exposure.  During any period in which
there is a Defaulting Lender, for purposes of computing the amount of the
obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Advances pursuant to Sections
2.03 and 2.04, the “Pro Rata Share” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender;
provided, that,
(A) each such reallocation shall be given effect only if, at the date the
applicable Lender becomes a Defaulting Lender, no Default or Event of Default
has occurred and is continuing; and (B) the aggregate obligation of each
non-Defaulting Lender to acquire, refinance or fund participations in Letters of
Credit and Swing Line Advances shall not exceed the positive difference, if any,
of (1) the Commitment of that non-Defaulting Lender minus (2) the
aggregate Outstanding Amount of the Advances of that Lender.

     

    (b) Defaulting Lender
Cure.  If the Borrowers, the Administrative Agent, the Issuing
Banks and the Swing Line Lender agree in writing in their sole discretion that a
Defaulting Lender should no longer be deemed to be a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the
effective date specified in such notice and subject to any conditions set forth
therein (which may include arrangements with respect to the release of any Cash
Collateral held pursuant to Section 2.16(a)(ii) to pay amounts owed by such
Defaulting Lender or to pay to such Defaulting Lender), that Lender will, to the
extent applicable, purchase that portion of outstanding Advances of the other
Lenders or take such other actions as the Administrative Agent may determine to
be necessary to cause the Advances and funded and unfunded participations in
Letters of Credit and Swing Line Advances to be held on a pro rata basis by the
Lenders in accordance with their Pro Rata Share, whereupon that Lender will
cease to be a Defaulting Lender; provided that no
adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrowers while that Lender was a Defaulting Lender;
and provided, further, that except to the extent otherwise expressly agreed by
the affected parties, no change hereunder from Defaulting Lender to Lender will
constitute a waiver or release of any claim of any party hereunder arising from
that Lender’s having been a Defaulting Lender.

     

    Section
2.17 Evidence of
Debt.  (a)  The
Advances made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the
ordinary course of business.  The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Advances made by the Lenders to the Borrowers and the
interest and payments thereon.  Any failure to so record or any error
in doing so shall not, however, limit or otherwise affect the obligation of the
Borrowers hereunder to pay any amount owing with respect to the Obligations
hereunder.  In the event of any conflict between the accounts and
records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest
error.  Upon the request of any Lender made through the Administrative
Agent, the Borrowers shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Advances in
addition to such accounts or records.  Each Lender may attach
schedules to its Note and endorse thereon the date, amount and maturity of its
Advances and payments with respect thereto.

     

    (b) In
addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit and Swing Line Advances.  In
the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.

     

    
      
         

      

      
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    Section
2.18 Replacement of Certain
Lenders.  In
the event a Lender shall have (a) become a Defaulting Lender under Section 2.16,
(b) requested compensation from the Borrowers under Section 2.13 with respect to
Taxes or Other Taxes or with respect to increased costs or capital or under
Section 2.11 or other additional costs incurred by such Lender which, in any
case, are not being incurred generally by the other Lenders, (c) delivered a
notice pursuant to Section 2.11(d) claiming that such Lender is unable to extend
Eurodollar Rate Advances to the Borrowers for reasons not generally applicable
to the other Lenders or (d) become a Non-Consenting Lender (in each case, an
“Affected
Lender”), then, in any case, the Borrowers or the Administrative Agent
may make written demand on such Affected Lender (with a copy to the
Administrative Agent in the case of a demand by the Borrowers and a copy to the
Borrowers in the case of a demand by the Administrative Agent) for the Affected
Lender to assign, and such Affected Lender shall assign pursuant to one or more
duly executed Assignments and Acceptances within 5 Business Days after the date
of such demand, to one or more financial institutions that the Borrowers or the
Administrative Agent, as the case may be, shall have engaged for such purpose,
all of such Affected Lender’s rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, its Commitment, all
Advances owing to it, all of its participation interests in existing Letters of
Credit, and its obligation to participate in additional Letters of Credit
hereunder), in accordance with Section 10.07.  The Administrative
Agent is authorized to execute one or more of such Assignments and Acceptances
as attorney-in-fact for any Affected Lender failing to execute and deliver the
same within 5 Business Days after the date of such demand.  Further,
with respect to such assignment, the Affected Lender shall have concurrently
received, in cash, all amounts due and owing to the Affected Lender hereunder or
under any other Loan Document; provided that upon such Affected Lender’s
replacement, such Affected Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.11 and 10.04, as well as
to any fees accrued for its account hereunder and not yet paid, and shall
continue to be obligated under Section 7.09 with respect to losses, obligations,
liabilities, damages, penalties, actions, judgments, costs, expenses or
disbursements for matters which occurred prior to the date the Affected Lender
is replaced.

     

    Section
2.19 Commitment
Increase.  (a)  The
Borrowers may at any time or from time to time after the Effective Date (but no
more than twice in any calendar year), by notice to the Administrative Agent
(whereupon the Administrative Agent shall promptly deliver a copy to each of the
Lenders), request one or more increases in the amount of the Commitments (each
such increase, a “Commitment
Increase”); provided that upon
the effectiveness of any Incremental Amendment (as defined below), no Default or
Event of Default shall have occurred and be continuing and each Commitment
Increase shall be in an aggregate principal amount that is not less than
$25,000,000 (provided that such amount may be less than $25,000,000 if such
amount represents all remaining availability under the limit set forth in the
next sentence).  Notwithstanding anything to the contrary herein, the
aggregate amount of the Commitment Increases shall not exceed
$125,000,000.  Each notice from the Borrowers pursuant to this Section
2.19 shall set forth the requested amount of the relevant Commitment
Increase.  Commitment Increases may be provided by any existing Lender
(it being understood that no existing Lender will have an obligation to provide
a portion of any Commitment Increase) or by any other Eligible Assignee
(provided that any required approval of such Eligible Assignee by the
Administrative Agent shall not be unreasonably withheld or delayed, and the
commitment of any such Eligible Assignee to the relevant Commitment Increase is
at least $5,000,000).  Commitments in respect of Commitment Increases
shall become Commitments (or in the case of a Commitment Increase to be provided
by an existing Lender, an increase in such Lender’s applicable Commitment) under
this Agreement pursuant to an amendment (an “Incremental
Amendment”) to Schedule I (with a joinder agreement in the case of any
Eligible Assignee providing any portion of such Commitment
Increases),  executed by the Administrative Agent, each Lender and
Eligible Assignee that is in each case agreeing to provide any portion of the
relevant Commitment Increase, and the Borrowers.  Any such Incremental
Amendment may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or
appropriate (including any increase in the Applicable Margin and the fees set
out in Sections 2.09), provided that any such increase shall apply to and be for
the benefit of all the Lenders), in the reasonable opinion of the Administrative
Agent and the Borrowers, to effect the provisions of this Section
2.19.  The effectiveness of any Incremental Amendment shall be subject
to the satisfaction on the date thereof of each of the conditions set forth in
Section 3.02 (it being understood that all references to “the date of such
Borrowing, issuance or renewal” or similar language in such Section 3.02 shall
be deemed to refer to in such instance to the effective date of such Incremental
Amendment).  The Borrowers may use Commitment Increases for any
purpose not prohibited by this Agreement.

     

    
      
         

      

      
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    (b)           Upon
each increase in the Commitments pursuant to this Section 2.19, (x) each Lender
immediately prior to such increase will automatically and without further act be
deemed to have assigned to each Lender providing a portion of the Commitment
Increase (each a “Commitment Increase
Lender”) in respect of such increase, and each such Commitment Increase
Lender will automatically and without further act be deemed to have assumed, a
portion of such Lender’s participations hereunder in outstanding Letters of
Credit such that, after giving effect to each such deemed assignment and
assumption of participations, the percentage of the aggregate outstanding
participations hereunder in Letters of Credit held by each Lender (including
each such Commitment Increase Lender) will equal the percentage of the aggregate
Commitments of all Lenders represented by such Lender’s Commitment and (y) if,
on the date of such increase, there are any Advances outstanding, portions of
such Advances shall on the date of the effectiveness of such Commitment Increase
be prepaid with the proceeds of additional Advances made by the Commitment
Increase Lenders (such that after giving effect to such prepayment, the
percentage of the Advances held by each Lender will equal the percentage of the
aggregate Commitments of all Lenders represented by such Lender’s Commitment
after giving effect to such Commitment Increase), which prepayment shall be
accompanied by accrued interest on the Loans being prepaid and any costs
incurred by any Lender in accordance with Section 10.04(d).  The
Administrative Agent and the Lenders hereby agree that the minimum borrowing,
pro rata borrowing and pro rata payment requirements contained elsewhere in this
Agreement shall not apply to the transactions effected pursuant to the
immediately preceding sentence. Except as permitted under Section 2.19(a) with
respect to any increase in Applicable Margin and fees, the terms and conditions
of such Commitment Increases (including pricing and maturity date) shall be
identical to those applicable to the Commitments immediately prior to the
effectiveness of such Commitment Increases, and the applicable commitments to
the relevant Commitment Increase shall, upon the effectiveness of the relevant
Commitment Increase, constitute Commitments hereunder. This Section 2.19 shall
supersede any provisions in Section 2.14 or 10.01 to the contrary.

     

    Section
2.20 Nature and Extent of Each
Borrower’s Liability.  (a)  Joint and Several
Liability.  Each Borrower agrees that it is jointly and
severally liable for, and absolutely and unconditionally guarantees to the
Administrative Agent and the Lenders the prompt payment and performance of, all
Obligations under the Loan Documents.  Each Borrower agrees that its
guaranty obligations hereunder constitute a continuing guaranty of payment and
not of collection, that such guaranty obligations shall not be discharged until
the latest of (i) the payment in full in cash of all Obligations under the Loan
Documents and (ii) the Termination Date, and that such guaranty obligations are
absolute and unconditional, irrespective of (A) the validity
or  enforceability of any Loan Document or any Obligations thereunder;
(B) the absence of any action to enforce this Agreement (including this Section
2.20) or any other Loan Document, or any waiver, consent or indulgence of any
kind by the Administrative Agent or any Lender with respect thereto; (C) the
existence, value or condition of, or failure to perfect a Lien or to preserve
rights against, any security or guaranty for the Obligations under the Loan
Documents or any action, or the absence of any action, by the Administrative
Agent or any Lender in respect thereof (including the release of any security or
guaranty); (D) the insolvency of any Loan Party; (E) any election by the
Administrative Agent or any Lender in an Insolvency Proceeding for the
application of Section 1111(b)(2) of the Bankruptcy Code; (F) any borrowing or
grant of a Lien by any other Borrower, as debtor-in-possession under Section 364
of the Bankruptcy Code or otherwise; (G) the disallowance of any claims of the
Administrative Agent or any Lender against any Loan Party for the repayment of
any Obligations under the Loan Documents under Section 502 of the Bankruptcy
Code or otherwise; or (H) any other action or circumstances that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
except the payment in full in cash of the Obligations under the Loan
Documents.

     

    
      
         

      

      
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    (b)           Waivers.  (i)  Each
Borrower expressly waives all rights that it may have now or in the future under
any statute, at common law, in equity or otherwise, to compel the Administrative
Agent or the Lenders to marshal assets or to proceed against any Loan Party,
other Person or security for the payment or performance of any Obligations under
the Loan Documents before, or as a condition to, proceeding against such
Borrower.  Each Borrower in its capacity as a guarantor waives all
defenses available to a surety, guarantor or accommodation co-obligor other than
the payment in full in cash of all Obligations under the Loan
Documents.  It is agreed among each Borrower, the Administrative Agent
and the Lenders that the provisions of this Section 2.20 are of the essence of
the transaction contemplated by the Loan Documents and that, but for such
provisions, the Administrative Agent and the Lenders would decline to make
Revolving Credit Advances and issue Letters of Credit.  Each Borrower
acknowledges that its guaranty pursuant to this Section 2.20 is necessary to the
conduct and promotion of its business, and can be expected to benefit such
business.

     

    (ii)           At
any time an Event of Default shall have occurred and be continuing, the
Administrative Agent and the Lenders may, in their discretion, pursue such
rights and remedies as they deem appropriate, including realization upon
Collateral by judicial foreclosure or non-judicial sale or enforcement, without
affecting any rights and remedies under this Section 2.20.  If, in
taking any action in connection with the exercise of any rights or remedies, the
Administrative Agent or any Lender shall forfeit any other rights or remedies,
including the right to enter a deficiency judgment against any Borrower or other
Person, whether because of any applicable laws pertaining to “election of
remedies” or otherwise, each Borrower consents to such action and waives any
claim based upon it, even if the action may result in loss of any rights of
subrogation that any Borrower might otherwise have had.  Any election
of remedies that results in denial or impairment of the right of the
Administrative Agent or any Lender to seek a deficiency judgment against any
Borrower shall not impair any other Borrower’s obligation to pay the full amount
of the Obligations under the Loan Documents.  Each Borrower waives all
rights and defenses arising out of an election of remedies, such as nonjudicial
foreclosure with respect to any security for the Obligations under the Loan
Documents, even though that election of remedies destroys such Borrower’s rights
of subrogation against any other Person.  The Administrative Agent may
bid all or a portion of the Obligations under the Loan Documents at any
foreclosure or trustee’s sale or at any private sale, and the amount of such bid
need not be paid by the Administrative Agent but shall be credited against the
Obligations under the Loan Documents.  The amount of the successful
bid at any such sale, whether the Administrative Agent or any other Person is
the successful bidder, shall be conclusively deemed to be the fair market value
of the Collateral acquired pursuant to such sale, and, after application of the
proceeds of such sale and/or, if applicable, the amount of such credit bid to
payment of the Obligations under the Loan Documents, the difference between such
bid amount and the remaining balance of the Obligations under the Loan Documents
shall be conclusively deemed to be the amount of the Obligations under the Loan
Documents guaranteed under this Section 2.20, notwithstanding that any present
or future law or court decision may have the effect of reducing the amount of
any deficiency claim to which the Administrative Agent or any Lender might
otherwise be entitled but for such bidding at any such sale.

     

    
      
         

      

      
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    (c)           Extent of Liability;
Contribution.  (i)  Notwithstanding anything herein
to the contrary, each Borrower’s liability under this Section 2.20 shall be
limited to the greater of (i) all amounts for which such Borrower is primarily
liable, as described below, and (ii) such Borrower’s Allocable
Amount.

     

    (ii)           If
any Borrower makes a payment under this Section 2.20 of any Obligations under
the Loan Documents (other than amounts for which such Borrower is primarily
liable) (a “Guarantor
Payment”) that, taking into account all other Guarantor Payments
previously or concurrently made by any other Borrower, exceeds the amount that
such Borrower would otherwise have paid if each Borrower had paid the aggregate
Obligations under the Loan Documents satisfied by such Guarantor Payments in the
same proportion that such Borrower’s Allocable Amount bore to the total
Allocable Amounts of all Borrowers, then such Borrower shall be entitled to
receive contribution and indemnification payments from, and to be reimbursed by,
each other Borrower for the amount of such excess, pro rata based upon their
respective Allocable Amounts in effect immediately prior to such Guarantor
Payment.  The “Allocable Amount” for
any Borrower shall be the maximum amount that could then be recovered from such
Borrower under this Section 2.20 without rendering such payment voidable under
Section 548 of the Bankruptcy Code or under any applicable state fraudulent
transfer or conveyance act, or similar statute or common law.

     

    (iii)           Nothing
contained in this Section 2.20 shall limit the liability of any Borrower to pay
Revolving Credit Advances made directly or indirectly to that Borrower
(including Revolving Credit Advances advanced to any other Borrower and then
re-loaned or otherwise transferred to, or for the benefit of, such Borrower),
L/C Obligations relating to Letters of Credit issued to support such Borrower’s
business, and all accrued interest, fees, expenses and other related Obligations
under the Loan Documents, with respect thereto, for which such Borrower shall be
primarily liable for all purposes hereunder.

     

    ARTICLE
III

     

    CONDITIONS
TO EFFECTIVENESS

     

    Section
3.01 Conditions Precedent to
Effectiveness.  The
initial obligation of the Revolving Credit Lenders to make Revolving Credit
Advances, and the obligation of any Issuing Bank to issue the initial Letter of
Credit are, in each case, subject to the satisfaction or waiver of the following
conditions precedent (the first date on which all such conditions shall have
been satisfied or waived being the “Effective
Date”):

     

    (a) The
Administrative Agent shall have received on or before the Effective Date the
following, each dated such day (unless otherwise specified) and (except for the
Notes) in sufficient copies for each Initial Lender:

     

    (i) Executed
counterparts of this Agreement and the Guaranty.

     

    (ii) The Notes
payable to the order of the Lenders to the extent requested in accordance with
Section 2.17(a).

     

    
      
         

      

      
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    (iii) Certified
copies of the resolutions of the boards of directors of each of the Borrowers
and each Guarantor (as constituted immediately prior to the Effective Date) in
customary form approving the execution and delivery of this
Agreement.

     

    (iv) A copy of
the charter or other constitutive document of each of the Borrowers and each
Guarantor and each amendment thereto, certified (as of a date reasonably near
the Effective Date), if applicable, by the Secretary of State of the
jurisdiction of its incorporation or organization, as the case may be, thereof
as being a true and correct copy thereof.

     

    (v) A
certificate of each of the Borrowers and each Guarantor signed on behalf of each
such Borrower and each such Guarantor, respectively, by its President or a Vice
President and its Secretary or any Assistant Secretary, dated the Effective Date
(the statements made in which certificate shall be true on and as of the
Effective Date), in customary form, certifying as to (A) the accuracy and
completeness as of the Effective Date of the charter of each such Borrower or
such Guarantor delivered in connection with this Agreement and the absence of
any changes thereto (other than those, if any, occurring on the Effective Date
upon effectiveness of, and as contemplated by, the Plan); (B) the accuracy and
completeness of the bylaws (or equivalent organizational document) delivered in
connection with this Agreement of each such Borrower or such Guarantor as in
effect on the date on which the resolutions of the board of directors (or
persons performing similar functions) of such Person referred to in
Section 3.01(a)(ii) were adopted and the absence of any changes thereto;
and (C) the absence of any proceeding known to be pending or threatened in
writing for the dissolution, liquidation or other termination of the existence
of any Borrower or any Guarantor, except as set forth in the Plan.

     

    (vi) A
certificate of the Secretary or an Assistant Secretary of each of the Borrowers
and each Guarantor, in customary form, certifying the names and true signatures
of the officers of each such Borrower and such Guarantor, respectively,
authorized to sign this Agreement and the other documents to be delivered
hereunder to which it is a party.

     

    (vii) A
certificate (in form and substance reasonably satisfactory to the Administrative
Agent) of the Chief Financial Officer of the Company attesting to the Solvency
of the Loan Parties, taken as a whole, immediately after giving effect to the
Transactions.

     

    (viii) A
certificate of a Responsible Officer of the Company, in customary form,
certifying that the conditions specified in Sections 3.01(f)(i) and Sections
3.02(i)(A) and (B) have been satisfied.

     

    (ix) The
following:  (A) reasonably satisfactory evidence that certificates
representing the Initial Pledged Equity, accompanied by undated stock powers,
duly executed in blank, and such instruments evidencing the Initial Pledged
Debt, duly indorsed in blank, as the Loan Parties may be able to deliver using
their reasonable best efforts, have been delivered to the administrative agent
under the Term Facility (B) proper financing statements (Form UCC-1 or a
comparable form) under the UCC of all jurisdictions that the Administrative
Agent may deem necessary or desirable in order to perfect and protect the Liens
and security interest created or purported to be created under the Security
Agreement, covering the Collateral described therein, in each case completed in
a manner reasonably satisfactory to the Administrative Agent, and (C) evidence
of insurance (to the extent required to be maintained pursuant to this
Agreement) as reasonably requested by the Administrative Agent.

     

    
      
         

      

      
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    (x) (A) The
Security Agreement, duly executed by each Loan Party, together with evidence
that all actions that the Administrative Agent may deem reasonably necessary or
desirable in order to perfect and protect the first priority Liens and security
interests in the Revolving Facility Collateral and the second priority Liens and
security interests in the Term Facility Collateral, in each case created under
the Security Agreement, have been taken or will be taken in accordance with the
terms of the Loan Documents, (B) the Intellectual Property Security Agreement,
duly executed by each Loan Party having Intellectual Property covered thereby as
of the Effective Date, together with evidence that all actions that the
Administrative Agent may deem reasonably necessary or desirable in order to
perfect and protect the second priority Liens and security interests created
under the Intellectual Property Security Agreement in the United States have
been taken or will be taken in accordance with the terms of the Loan Documents,
(C) the Deposit Account Control Agreements and Securities Account Control
Agreements, in each case referred to in the Security Agreement and duly executed
by the appropriate parties and (D) the Intercreditor Agreement, duly executed by
the parties thereto; provided, however, that if the
Company is unable to deliver one or more of the items described in clause (C)
above after the exercise of commercially reasonable efforts, delivery of such
undelivered items shall not be a condition precedent under this Section 3.01,
and the Company hereby agrees to deliver such items to the Administrative Agent
within 45 days after the Effective Date; provided further that in each
case, the Administrative Agent may, in its reasonable discretion, grant
extensions of such time period.

     

    (xi) Certified
copies of UCC, United States Patent and Trademark Office and United States
Copyright Office, tax and judgment lien searches or equivalent reports or
searches, each of a recent date listing financing statements, lien notices or
comparable documents that name any Loan Party as debtor and that are filed in
those state and county jurisdictions, as applicable, in which any Loan Party is
organized or maintains its principal place of business, none of which encumber
the Collateral covered or intended to be covered by the Collateral Documents
(other than Liens to be satisfied or discharged on the Effective Date pursuant
to the Plan or Permitted Liens and other Liens permitted under Section
5.02(a)).

     

    (xii) (A)
audited annual financial statements of the Company and its Subsidiaries, on a
Consolidated basis, for the year ended December 31, 2009; (B) interim unaudited
monthly and quarterly financial statements of the Company and its Subsidiaries
since December 31, 2009 through the most recently ended fiscal month ending at
least 30 days prior to the Effective Date (or in the case of quarterly financial
statements, through the most recently ended fiscal quarter ending at least 45
days prior to the Effective Date); and (C) the Company’s business plan which
shall include a financial forecast on a monthly basis for the first twelve
months following the funding date of the Term Loan Credit Agreement and on an
annual basis thereafter through the year 2014, prepared by the Company’s
management.

     

    (xiii) A Notice
of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit
Applications for each Letter of Credit (other than Existing Letters of Credit)
to be issued, on the Effective Date.

     

    
      
         

      

      
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    (xiv) A
favorable opinion of Kirkland & Ellis LLP, counsel to the Loan Parties, in
substantially the form of Exhibit H hereto.

     

    (b) Confirmation
Order.  The Bankruptcy Court shall have entered a final order
(the “Confirmation
Order”) confirming a Chapter 11 plan of reorganization for the Debtors
(as amended, supplemented or modified, or with any of the terms or conditions
thereof waived, in each case as described below, the “Plan”) in accordance
with Section 1129 of the Bankruptcy Code, which plan shall be substantially as
set forth in the plan dated July 20, 2010 (together with all exhibits and other
attachments thereto, as such plan and any of the foregoing shall be amended,
modified or supplemented from time to time or any of the terms or conditions
thereof waived (with the consent of the Initial Lenders with respect to any
amendment, modification, supplement or waiver that is adverse in any material
respect to the Initial Lenders (it being understood that any amendment,
modification, supplement or waiver that would result in an aggregate increase of
more than $75 million in (w) Debt of or reinstated liquidated claims against the
Company and its Subsidiaries and/or (x) Restricted Payments by the Company and
its Subsidiaries and/or (y) amounts (without duplication of amounts in clause
(w)) secured by liens on assets of the Company and its Subsidiaries or (z)
investments or loans by the Company and its Subsidiaries, in each case from the
respective amounts therefor contemplated under the Plan and/or Disclosure
Statement, each as in effect on the date of the Commitment Letter, shall be
deemed (solely for purposes of this sentence) adverse in a material respect to
the Initial Lenders), as reasonably determined by the Initial Lenders), the
“Plan
Documents”), or otherwise reasonably satisfactory to the Initial
Lenders.  The Confirmation Order shall approve the transactions
contemplated by Revolving Credit Facility, shall be in full force and effect and
shall not have been stayed, reversed or vacated, or otherwise amended or
modified in any manner that is materially adverse to the rights or interests of
the Lenders (unless otherwise reasonably satisfactory to the Initial
Lenders).  The Plan shall have, or contemporaneous with the
effectiveness of the Revolving Credit Facility and the Initial Extension of
Credit hereunder will, become effective.  Further, either (i) the
settlement of certain diacetyl claims as set forth in the settlement agreement
(the “Settlement
Agreement”), a copy of which is annexed to the motion filed with the
Bankruptcy Court on July 29, 2010 (the “Settlement Motion”),
shall have been approved, without material modification (it being understood
that modifications contemplated under and in accordance with Section 3.3 of the
Settlement Agreement are not material), by an order of the Bankruptcy Court (the
“Settlement
Order”) and both (x) the Settlement Agreement shall remain in full force
and effect, without a right of the Company to terminate the Settlement Agreement
in accordance with Section 4.2 thereof and (y) the Settlement Order shall not be
reversed, vacated or stayed or (ii) claims that were the subject of the
Settlement Agreement in an amount and number such that (if such amount and
number of claimants had accepted the Settlement Agreement) the Company would not
have had the right to terminate the Settlement Agreement in accordance with
Section 4.2 thereof, shall have been (A) estimated, for purposes of creating a
cash reserve that will provide the sole source of recovery for such estimated
claims, and/or (B) settled pursuant to settlement agreements in full force and
effect, with such settlements and estimates described in clauses (A) and (B)
being in an aggregate cash amount substantially consistent with (or less than)
the aggregate settlement amount set forth in the Settlement Agreement and in
each case being approved pursuant to one or more orders of the Bankruptcy Court
(collectively, the “Estimation/Settlement
Orders”), and  such Estimation/Settlement Orders shall not be
reversed, vacated or stayed.

     

    
      
         

      

      
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    (c) Other
Indebtedness.  The Lenders shall have received reasonably
satisfactory evidence that the obligations of the Company and each of its other
debtor Subsidiaries with respect to the Existing DIP Agreement have been
satisfied and discharged and any collateral in respect thereof released, except
that letters of credit issued under the Existing DIP Agreement that are
supported by cash or letters of credit issued under the Facilities may remain
outstanding.  Concurrently with the consummation of the Plan, all
pre-existing Debt of the Company and its Subsidiaries (other than Debt permitted
to remain outstanding under the Plan and the Loan Documents) shall have been
repaid, repurchased, discharged or otherwise satisfied in full, all commitments
relating thereto shall have been terminated, and all Liens or security interests
related thereto shall have been terminated or released.  In addition,
the Agents shall have received evidence that the Company has received the net
cash proceeds from the issuance of at least $750 million in principal amount of
Term Loans and/or the Senior Notes.  (A) Neither the Term Loans nor
the Senior Notes shall have been amended or modified after the date of funding
thereof into escrow if such amendment or modification shall cause the Term Loans
or the Senior Notes to (i) have a stated maturity date earlier or a weighted
average life to maturity shorter than six months after the Termination Date or
(ii) have any direct restriction on any specific payment of the Revolving Credit
Facility or impose any other direct restriction on the Company or any of its
Subsidiaries that by its express terms conflicts with any express term or
provision set forth in the Loan Documents and (B) the priority of any lien on
the Revolving Facility Collateral securing the Term Loans or Senior Notes shall
be subject to the Intercreditor Agreement.  The terms of the Term
Loans, taken as a whole, solely in the event and to the extent such terms are
amended or modified after the date of funding thereof into escrow, shall be
substantially consistent with those set forth on the term sheet attached to the
engagement letter dated as of the date of the Commitment Letter among the
Company and the joint book runners or their affiliates, except to the extent
failure to be substantially consistent is not materially adverse to the
interests of the Lenders.  The terms of each of the Senior Notes and
the Term Loans shall not have been amended or modified after the date of funding
thereof into escrow if such amendment or modification shall cause the Term Loans
or the Senior Notes to contain any financial covenant with such maximum or
minimum level for any period that (i) is materially adverse to the interests of
the Lenders or (ii) does not take into account drawings under the Revolving
Credit Facility and the forecasts delivered by the Company pursuant to Section
3.01 (a)(xii)(C) above.

     

    (d) Payment of
Fees.  All costs, fees and expenses (including, without
limitation, legal fees and expenses, title premiums, survey charges and
recording taxes and fees) and other compensation contemplated by the Commitment
Letter and the Fee Letters and payable to the Agents and/or the Lenders shall
have been paid to the extent due.

     

    (e) Minimum
Availability.  Availability after giving effect to all
Borrowings and issuances of Letters of Credit on the Effective Date, and to all
other Transactions contemplated in Section 3.01(b) above to occur on the
Effective Date, shall be no less than $150 million.

     

    (f) Others.

    (i) Since
December 31, 2009, there shall not have occurred a Material Adverse Change, or
any event or occurrence which would reasonably be expected to result in a
Material Adverse Change.  There shall exist no action, suit,
investigation, litigation or proceeding pending in any court or before any
arbitrator or governmental instrumentality that (i) could reasonably be expected
to result in a Material Adverse Change or (ii) restrains, prevents or imposes or
can reasonably be expected to impose conditions materially adverse to the
Lenders upon the Revolving Credit Facility or any of the other material
transactions contemplated hereby.

     

    (ii) The
Administrative Agent shall have received a field exam and audit with respect to
Inventory and Receivables and an appraisal with respect to Inventory of the
Borrowers performed by the Administrative Agent working in conjunction with the
administrative agent under the Existing DIP Agreement.

     

    
      
         

      

      
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    (iii) All
material governmental and third party consents and approvals necessary in
connection with the Facilities and the Transactions shall have been obtained
(without the imposition of any adverse conditions that are not reasonably
acceptable to the Lenders) and shall remain in effect.

     

    (iv) The
Administrative Agent shall have received, to the extent requested no later than
3 Business Days prior to the Effective Date, all documentation and other
information required by regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations, including the Patriot
Act.

     

    (v) Subject
to the terms of the Intercreditor Agreement, the Administrative Agent shall have
received endorsements naming the Administrative Agent, on behalf of the Lenders,
as an additional insured and loss payee under all insurance policies to be
maintained with respect to the properties of the Borrowers, the Guarantors and
their respective Subsidiaries forming part of the Collateral.

     

    (vi) The
Administrative Agent shall have received, with respect to each Material Real
Property, each of the following, in form and substance reasonably satisfactory
to the Administrative Agent (it being agreed that for purposes of this Section
3.01(f)(vi), the form and substance of any document or instrument received
substantially in the form delivered pursuant to the Term Loan Credit Agreement
shall be deemed reasonably satisfactory to the Administrative
Agent):

     

    (A)           deeds
of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and
leasehold deeds of trust, in form and substance substantially consistent with
the corresponding documents delivered pursuant to the Existing DIP Agreement
(together with each other mortgage delivered pursuant to Section 5.01(l), in
each case as amended, the “Mortgages”), duly
executed by the appropriate Loan Party, together with:

     

    (B)           evidence
that counterparts of the Mortgages have been duly executed, acknowledged and
delivered and are in form suitable for filing or recording in all filing or
recording offices that the Administrative Agent may deem necessary or desirable
in order to create a valid second and subsisting Lien on the property described
therein in favor of the Administrative Agent for the benefit of the Secured
Parties and that all filing, documentary, stamp, intangible and recording taxes
and fees have been paid;

     

    (C)           fully
paid American Land Title Association Lender’s Extended Coverage title insurance
policies (the “Mortgage Policies”),
with endorsements and in amounts reasonably acceptable to the Administrative
Agent, issued by title insurers reasonably acceptable to the Administrative
Agent, insuring the Mortgages to be valid second and subsisting Liens on the
property described therein, free and clear of all defects and encumbrances,
excepting only Liens permitted under Section 5.02(a);

     

    (D)           American
Land Title Association/American Congress on Surveying and Mapping form surveys,
for which all necessary fees (where applicable) have been paid, and dated or
rectified to the reasonable satisfaction of the Administrative Agent no more
than 30 days before the Effective Date, certified (or, in the case of existing
surveys, recertified) to the Administrative Agent and the issuer of the Mortgage
Policies in a manner reasonably satisfactory to the Administrative Agent by a
land surveyor duly registered and licensed in the States in which the property
described in such surveys is located and reasonably acceptable to the
Administrative Agent;

     

    
      
         

      

      
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    (E)           a
favorable opinion of Kirkland & Ellis LLP, counsel to the Loan Parties (and
if applicable, a favorable opinion of in-house counsel or local counsel to the
Loan Parties), as to corporate formalities and as to such other matters as the
Administrative Agent may reasonably request, in customary form and in substance
reasonably satisfactory to the Administrative Agent;

     

    (F)           opinions
of local counsel for the Loan Parties in states in which the Material Real
Properties are located with respect to the enforceability and perfection of the
Mortgages and any related fixture filings in customary form and in substance
reasonably satisfactory to the Administrative Agent;

     

    (G)           evidence
that all other action that the Administrative Agent may reasonably deem
necessary or desirable in order to create valid second and subsisting Liens on
the property described in the Mortgages has been taken; and

     

    (H)           evidence
of insurance required by the terms of the Mortgages;

     

    provided, however,
that if the Company is unable to deliver one or more of the items described in
Section 3.01(f)(vi) above after the exercise of commercially reasonable efforts,
delivery of such undelivered items shall not be a condition precedent under this
Section 3.01, and the Company hereby agrees to deliver such items to the
Administrative Agent within 45 days after the Effective Date; provided further that
in each case, the Administrative Agent may, in its reasonable discretion, grant
extensions of such time period.

     

    Section
3.02 Conditions Precedent to Each
Borrowing and Each Issuance of a Letter of
Credit.  Each
of (a) the obligation of each Appropriate Lender to make an Advance (other than
a Letter of Credit Advance to be made by the Issuing Banks or a Lender pursuant
to Section 2.03(c)) on the occasion of each Borrowing, and (b) the obligation of
the Issuing Banks to issue a Letter of Credit (other than an Existing Letter of
Credit) or to renew a Letter of Credit, shall be subject to the further
conditions precedent that on the date of such Borrowing, issuance or
renewal:

     

    (i) the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing, Swing Line Advance Notice or Letter of Credit Application
and the acceptance by the Borrowers of the proceeds of such Borrowing or the
issuance or renewal of such Letter of Credit, as the case may be, shall
constitute a representation and warranty by the Borrowers that both on the date
of such notice and on the date of such Borrowing, issuance or renewal such
statements are true):

     

    (A) the
representations and warranties contained in each Loan Document, are correct in
all material respects (provided that any representation and warranty that is
qualified as to “materiality”, “Material Adverse Effect” or similar language
shall be true and correct in all respects) on and as of such date, immediately
before and immediately after giving effect to such Borrowing, issuance or
renewal and to the application of the proceeds therefrom, as though made on and
as of such date, other than any such representations or warranties that, by
their terms, refer to a specific date other than the date of such Borrowing,
issuance or renewal, in which case such representations or warranties were true
and correct in all material respects (provided that any representation and
warranty that is qualified as to “materiality”, “Material Adverse Effect” or
similar language were true and correct in all respects) as of such specific
date; and

     

    
      
         

      

      
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    (B) no event
has occurred and is continuing, or would result from such Borrowing, issuance or
renewal or from the application of the proceeds, if any, therefrom, that
constitutes a Default; and

     

    (ii) the
Lenders shall have received the Borrowing Base Certificate most recently
required to be delivered pursuant to Section 5.03(o).

     

    Section
3.03 Determinations Under
Sections 3.01
and 3.03.  For
purposes of determining compliance with the conditions specified in
Section 3.01, each Lender Party that is an Initial Lender shall be deemed
to have consented to, approved or accepted or to be satisfied with each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to one or more of the Lender Parties that are Initial
Lenders unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice from
such Lender Party prior to the Effective Date specifying its objection thereto,
and if a Borrowing occurs on the Effective Date, such Lender Party that is an
Initial Lender shall not have made available to the Administrative Agent such
Lender Party’s ratable portion of such Borrowing.

     

    ARTICLE
IV


     

    REPRESENTATIONS
AND WARRANTIES

     

    Section
4.01 Representations and
Warranties of the Loan Parties. Each
Loan Party represents and warrants as follows:

     

    (a) Each Loan
Party and each of its Subsidiaries (i) is a corporation, limited liability
company or limited partnership, as applicable, duly organized or formed, validly
existing and in good standing (or its equivalent) under the laws of the
jurisdiction of its incorporation or formation, except where the failure to be
so duly organized, validly existing or in good standing in the case of a Foreign
Subsidiary has not had, or would not reasonably be expected to have, a Material
Adverse Effect, (ii) is duly qualified and in good standing (to the extent
applicable with respect to the subject jurisdiction) as a foreign corporation or
company in each other jurisdiction in which it owns or leases property or in
which the conduct of its business requires it to so qualify or be licensed
except where the failure to so qualify or be licensed would
not  reasonably be expected to have a Material Adverse Effect, and
(iii) has all requisite power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease and operate
its properties and to carry on its business as now conducted and as proposed to
be conducted, except where the failure to have such power or authority,
individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Effect.  All of the outstanding capital stock of
each Loan Party (other than the Company) has been validly issued, is fully paid
and non-assessable and is owned by the Persons listed on Schedule 4.01(a) hereto
in the percentages specified on Schedule 4.01(a) hereto free and clear of
all Liens, except those created under the Collateral Documents or otherwise
permitted under Section 5.02(a) hereof.

     

    
      
         

      

      
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    (b) Set forth
on Schedule 4.01(a) hereto is a complete and accurate list of all
Subsidiaries of the Company, showing as of the Effective Date (as to each such
Subsidiary) the jurisdiction of its incorporation or organization, as the case
may be, and the percentage of the Equity Interests owned (directly or
indirectly) by the Company or its Subsidiaries.  Set forth on Schedule
4.01(b) hereto is a complete and accurate list of all Loan Parties, showing as
of the Effective Date (as to each Loan Party) its U.S. taxpayer identification
number.  The copy of the charter of each Loan Party and each amendment
thereto provided pursuant to Section 3.01(a)(iii) is a true and correct copy of
each such document as of the Effective Date, each of which is valid and in full
force and effect.

     

    (c) The
execution, delivery and performance by each Borrower of this Agreement and the
Notes and by each Loan Party of each other Loan Document to which it is or is to
be a party, and the consummation of each aspect of the transactions contemplated
hereby, including the Transactions, are within such Loan Party’s constitutive
powers, have been duly authorized by all necessary constitutive action, and do
not (i) contravene such Loan Party’s constitutive documents,
(ii) violate any law (including, without limitation, the Securities
Exchange Act of 1934), rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree, determination or award applicable to
such Loan Party, (iii) conflict with or result in the breach of, or
constitute a default under, any contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument binding on or affecting any Loan Party
or (iv) except for the Liens created or to be created under the Loan
Documents, result in or require the creation or imposition of any Lien upon or
with respect to any of the properties of any Loan Party or any of its
Subsidiaries except, in each case referred to in clauses (ii) and (iii), to the
extent that such violation, conflict, breach or default would not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.

     

    (d) No
authorization, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any third party is required for
(i) the due execution, delivery, recordation, filing or performance by the
Borrowers of this Agreement or the Notes or by any Loan Party of any other Loan
Document to which it is or is to be a party, or for the consummation of each
aspect of the transactions contemplated hereby, (ii) the grant by any Loan
Party of the Liens granted by it pursuant to the Collateral Documents,
(iii) the perfection or maintenance of the Liens created under the
Collateral Documents or (iv) the exercise by the Administrative Agent or
any Lender Party of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents, except for those
authorizations, approvals, actions, notices and filings which have been duly
obtained, taken, given, waived or made and are in full force and effect, and
those the failure to obtain which would not reasonably be expected to have a
Material Adverse Effect.

     

    (e) This
Agreement has been, and each of the Notes, if any, and each other Loan Document
when delivered hereunder will have been, duly executed and delivered by each
Loan Party party thereto.  This Agreement is, and each of the Notes
and each other Loan Document when delivered hereunder will be, the legal, valid
and binding obligation of each Loan Party party thereto, enforceable against
such Loan Party in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors rights generally or by equitable principles relating to
enforceability and the effect of foreign laws, rules and regulations as they
relate to Pledged Equity in Foreign Subsidiaries.

     

    (f) The
Consolidated balance sheet of the Company and its Subsidiaries as at December
31, 2009, and the related Consolidated statements of income and cash flows of
the Company and its Subsidiaries for the Fiscal Year then ended, which have been
furnished to each Lender Party, present fairly in all material respects the
financial condition and results of operations of the Company and its
Subsidiaries as of such date and for such period, all in accordance with GAAP
consistently applied.  Since December 31, 2009, there has not occurred
a Material Adverse Change.

     

    
      
         

      

      
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    (g) All
projected Consolidated balance sheets, income statements and cash flow
statements of the Company and its Subsidiaries delivered to the Lender Parties
pursuant to Section 5.03 were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such projections, it being
understood that projections are subject to significant uncertainties and
contingencies many of which are beyond the Company’s control, and that no
guarantees can be given that the forecasts will be realized and that any
differences from the projections may be material.

     

    (h) The
information, exhibits and reports furnished by or on behalf of the Borrowers to
the Administrative Agent or any Lender in connection with the negotiation and
syndication of the Loan Documents or pursuant to the terms of the Loan
Documents, taken as a whole, did not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements, taken as
a whole, made therein not misleading in any material respect in light of the
circumstances under which such statements were made.

     

    (i) Except as
set forth on Schedule 4.01(i), there is no action, suit, investigation,
litigation or proceeding affecting the Company or any of its Subsidiaries,
including any Environmental Action, pending before any arbitrator or
governmental instrumentality that (i) would reasonably be expected to
result in a Material Adverse Change or (ii) purports to adversely affect
the legality, validity or enforceability of this Agreement, any Note or any
other Loan Document.

     

    (j) No
Borrower is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock, and no proceeds of any Advance or any
drawing under any Letter of Credit will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock.

     

    (k) The
Company and each of its Subsidiaries owns, or is licensed to use, all
Intellectual Property necessary for the conduct of its business as currently
conducted except for those the failure to own or license which would not
reasonably be expected to have a Material Adverse Effect.  No claim
has been asserted and is pending by any Person challenging or questioning the
use of any such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does the Company or any Subsidiary know of any
valid basis for any such claim, except, in either case, for such claims that in
the aggregate would not reasonably be expected to have a Material Adverse
Effect.  The use of such Intellectual Property by the Company and its
Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.

     

    (l) (i)  Other
than the filing of the Cases, no ERISA Event has occurred or is reasonably
expected to occur that has resulted in or is reasonably expected to result in a
liability of any Loan Party or any ERISA Affiliate that in the aggregate would
reasonably be expected to have a Material Adverse Effect.

     

    
      
         

      

      
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    (ii)           Neither
any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to
incur any Withdrawal Liability to any Multiemployer Plan that in the aggregate
would reasonably be expected to result in a Material Adverse
Effect.

    


    (iii)           Neither
any Loan Party nor any ERISA Affiliate (A) has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and (B) no such
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA, that, in the case of (A) or
(B) above and in the aggregate is reasonably expected to result in a liability
to a Loan Party or an ERISA Affiliate in excess of $15,000,000.

    


    (m) Except as
set forth on Schedule 4.01(m) or as would not reasonably be expected to result
in a Material Adverse Effect, (i) the operations and currently owned, leased or
operated properties of the Company and each of its Subsidiaries comply in all
material respects with all applicable Environmental Laws and Environmental
Permits, (ii) all material past non-compliance with Environmental Laws and
Environmental Permits has been resolved, and (iii) to the knowledge of the
Company and each of its Subsidiaries, no circumstances exist that could be
reasonably likely to (A) form the basis of an Environmental Action against the
Company or any of its Subsidiaries or (B) cause any currently owned, leased or
operated property to be subject to any restrictions on ownership, occupancy, use
or transferability under any applicable Environmental Law.

     

    (n) Except to
the extent failure to do so is permitted by Chapter 11 of the Bankruptcy Code,
each Loan Party and each of its Subsidiaries and Affiliates has filed, has
caused to be filed or has been included in all material tax returns (Federal,
state, local and foreign) required to be filed and has paid all Federal and
material taxes shown thereon to be due, together with applicable interest and
penalties except for those which are being contested in good faith by
appropriate proceedings diligently prosecuted and for which adequate reserves
have been provided in accordance with GAAP.

     

    (o) Except as
would not reasonably be expected to result in, individually or in the aggregate,
a Material Adverse Effect, neither the business nor the properties of any Loan
Party or any of its Subsidiaries are affected by any unfair labor practices
complaint, union representation campaigns, strike, lockout or other labor
dispute.

     

    (p) Other
than as a result of the filing of the Cases, each Loan Party and each of its
Subsidiaries is in compliance with all contracts and agreements to which it is a
party, except such non-compliances as have not had, and would not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.

     

    (q) The
Collateral Documents (to the extent required hereby and thereby) create a valid
security interest in the Collateral having the priority set forth in the Loan
Documents (subject to Liens and security interests permitted under the Loan
Documents) securing the payment of the Secured Obligations, and all UCC
financing statements and filings of security agreements in the U.S. Patent and
Trademark Office and U.S. Copyright Office, as applicable, in appropriate form,
required to perfect (subject to Liens and security interests permitted under the
Loan Documents) such security interest, to the extent such security interests
can be perfected by the filing thereof, have been duly filed or provided to the
Administrative Agent for filing.  The Loan Parties are the legal and
beneficial owners of the Collateral free and clear of any Lien, except for (i)
the Liens and security interests created or permitted under the Loan Documents
and (ii) defects in legal title to Intellectual Property that do not materially
adversely affect the use of such property for its present purposes.

     

    
      
         

      

      
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    (r) Neither
any Loan Party nor any of its Subsidiaries is an “investment company”, or an
“affiliated person” of, or “promoter” or “principal underwriter” for, an
“investment company”, as such terms are defined in the Investment Company Act of
1940, as amended.  Neither the making of any Advances, nor the
issuance of any Letters of Credit, nor the application of the proceeds or
repayment thereof by any Borrower, nor the consummation of the other
transactions contemplated by the Loan Documents, nor the consummation of the
Transactions, will violate any provision of any such Act or any rule, regulation
or order of the Securities and Exchange Commission thereunder.

     

    (s) [Intentionally
Omitted]

     

    (t) Set forth
on Schedule 4.01(t) hereto is a complete and accurate list as of the Effective
Date of all Surviving Debt that is Debt for borrowed money (other than Surviving
Debt in an aggregate amount not exceeding $5,000,000), showing as of the
Effective Date the obligor and the principal amount outstanding thereunder, the
maturity date thereof and the amortization schedule therefor.

     

    (u) Set forth
on Schedule 4.01(u) hereto is a complete and accurate list as of the Effective
Date of all Liens on the property or assets of any Loan Party or any of its
Subsidiaries securing any Debt for borrowed money (other than Debt in an
aggregate amount not exceeding $5,000,000), showing as of the Effective Date the
lienholder thereof, the principal amount of the obligations secured thereby and
the property or assets of such Loan Party or such Subsidiary subject
thereto.

     

    (v) As of the
Effective Date, (A) the Confirmation Order has not been stayed, reversed or
vacated, or otherwise amended or modified in any manner that is materially
adverse to the rights or interests of the Lenders (unless otherwise reasonably
satisfactory to the Administrative Agent), and (B) after the date of the
Commitment Letter, the Plan has not been amended, modified or supplemented, nor
have any of the terms or conditions thereof been waived, in any manner that is
adverse in any material respect to the Initial Lenders, (except where the
consent of the Initial Lenders has been obtained to such amendment,
modification, supplement or waiver if and solely to the extent such consent is
required to satisfy the closing condition set forth in Section 3.01(b), it being
understood that what is deemed adverse in a material respect to Initial Lenders
shall be determined giving effect to the provisions of Section 3.01(b)); provided that for all
purposes (including for purposes of Section 3.02) the representation and
warranty contained in this clause (v) is made solely on the Effective
Date.

    (w) The Loan
Parties and their Subsidiaries, taken as a whole, after giving effect to the
Effective Date and the consummation of the Plan, are Solvent.

     

    
      
         

      

      
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    ARTICLE
V


     

    COVENANTS
OF THE LOAN PARTIES

     

    Section
5.01 Affirmative
Covenants.  So
long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding and not Cash Collateralized or any Lender Party shall have any
Commitment hereunder, each Loan Party will:

     

    (a) Corporate
Existence.  Preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its corporate existence, material rights
(charter and statutory) and material franchises; provided, however, that the
Company and its Subsidiaries may consummate any transaction permitted under
Section 5.02(h) or (l) and provided further that neither
the Company nor any of its Subsidiaries shall be required to preserve any right
or franchise, or the existence of any Subsidiary that is not a Loan Party, if
the board of directors (or similar governing body) of the Company or such
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any material respect
to the Company, such Subsidiary or the Lender Parties.

     

    (b) Compliance with
Laws.  Comply, and cause each of its Subsidiaries to comply
with all applicable laws, rules, regulations and orders material to the business
of the Company and its Subsidiaries, such compliance to include, without
limitation, compliance with ERISA, applicable Environmental Laws and the Patriot
Act, except in each case where noncompliance would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.

     

    (c) Insurance.  Maintain,
and cause each of its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Company or such
Subsidiary operates; provided, however, that the
Company and its Subsidiaries may self-insure to the same extent as other
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Company or such Subsidiary operates and to the
extent consistent with prudent business practice.

     

    (d) Obligations and
Taxes.  Pay all its material obligations promptly and in
accordance with their terms, except where failure to do so would not reasonably
be expected to have a Material Adverse Effect, and pay and discharge and cause
each of its Subsidiaries to pay and discharge promptly all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property before the same shall become in
default, as well as all lawful claims for labor, materials and supplies or
otherwise which, if unpaid, would become a Lien or charge upon such properties
or any part thereof; provided, however, that the
Company and each Guarantor shall not be required to pay and discharge or to
cause to be paid and discharged any such obligation, tax, assessment, charge,
levy or claim so long as the validity or amount thereof shall be contested in
good faith by appropriate proceedings, in each case, if the Company and the
Guarantors shall have set aside on their books adequate reserves therefor in
conformity with GAAP.

     

    
      
         

      

      
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    (e) Access to Books and
Records.

     

    (i) Maintain
or cause to be maintained at all times books and records in accordance with GAAP
of the financial operations of the Borrowers and the Guarantors; and, upon
reasonable advance notice, provide the Lender Parties and their representatives
(coordinated by the Administrative Agent) access to all such books and records
during regular business hours (provided that so long as no Event of Default has
occurred and is continuing, such visits shall be limited to, and the Borrowers
shall not be required to pay the expenses of the Lender Parties for more than,
one visit per calendar year), in order that the Lender Parties (coordinated by
the Administrative Agent) may examine and make abstracts from such books,
accounts, records and other papers for the purpose of verifying the accuracy of
the various reports delivered by the Borrowers or the Guarantors to any Agent or
the Lenders pursuant to this Agreement or for otherwise ascertaining compliance
with this Agreement and to discuss the affairs, finances and condition of the
Borrowers and the Guarantors with the officers and independent accountants of
the Borrowers.

     

    (ii) Grant the
Lender Parties (coordinated by the Administrative Agent) reasonable access to
and the right to inspect all reports, audits and other internal information of
the Borrowers and the Guarantors relating to environmental matters upon
reasonable written notice (provided that so long as no Event of Default has
occurred and is continuing, such inspections shall be limited to, and the
Borrowers shall not be required to pay the expenses of the Lender for more than,
one inspection per calendar year).

     

    (iii) At any
reasonable time during regular business hours, upon reasonable notice, permit
the Initial Lenders and/or any representatives designated by the Initial Lenders
(including any consultants, accountants, lawyers and appraisers retained by the
Initial Lenders), in each case coordinated by the Administrative Agent, to visit
the properties of the Borrowers and the Guarantors (provided that so long as no
Event of Default has occurred and is continuing, such visits shall be limited to
one visit per calendar year) to conduct evaluations, appraisals, environmental
compliance reviews and ongoing maintenance and monitoring in connection with the
Borrowers’ computation of the Borrowing Base and the assets included in the
Borrowing Base and such other assets and properties of the Borrowers or their
Subsidiaries as the Initial Lenders may require, and to monitor, examine and
audit the Collateral and all related systems.

     

    (iv) Permit
third-party appraisals of Inventory and field audits and examinations of
Receivables and Inventory; provided that such
third-party appraisals may be conducted (A) at the reasonable request of the
Administrative Agent, at any time during the continuance of an Event of Default,
(B) except as otherwise provided in clause (A) above, if  Availability
shall have become and continue to be less than the greater of (x) $40,000,000
and (y) 15% of the aggregate Revolving Credit Commitments then outstanding at
such time, no more than three times per calendar year (provided that no such
field audit and examination and appraisal shall be required under this clause
(B) unless 120 days have elapsed since the most recent field audit and
examination and appraisal conducted by the Administrative Agent and/or a third
party and Availability continues to be less than the minimum amount described in
this clause (B)) and (C) except as otherwise provided in clauses (A) and (B)
above, no more than twice per calendar year.

     

    (f) Use of
Proceeds.  Use the proceeds of the Advances solely for the
purposes, and subject to the restrictions, set forth in Section
2.15.

     

    (g) [Intentionally
Omitted].

     

    
      
         

      

      
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    (h) [Intentionally
Omitted].

     

    (i) [Intentionally
Omitted].

     

    (j) Cash
Dominion.  During any Cash Dominion Period, any and all
balances in each lockbox and deposit account subject to an account control
agreement pursuant to Section 5.01(k) or Section 3.01(a)(x) (other than any
Exempt Account) shall be transferred to the Administrative Agent’s Office on a
daily basis to the extent necessary (and will thereupon be applied) to repay any
outstanding Revolving Credit Advance and to Cash Collateralize any L/C
Obligations.  Whether or not reporting by the Borrowers with respect
to Availability is otherwise required on any particular day, the Borrowers may
elect to deliver a certificate and supporting information as to Availability in
the event a Cash Dominion Period has commenced.

     

    (k) Account Control
Agreements.  With respect to all lockboxes and deposit accounts
(including all Exempt Accounts, but excluding Excluded Accounts and those (for
so long as Bank of America, N.A. is the Administrative Agent hereunder)
maintained with Bank of America, N.A.) (i) of each Person that is a Non-Loan
Party as of the Effective Date but becomes a Loan Party after the Effective
Date, obtain and deliver to the Administrative Agent, no later than 30 days
following the date such Person becomes a Loan Party (or such later date as the
Administrative Agent may reasonably determine), account control agreements in
form and substance reasonably satisfactory to the Administrative Agent and (ii)
of each other Loan Party, obtain and deliver to the Administrative Agent, no
later than 45 days following the Effective Date (or such later date as the
Administrative Agent may reasonably determine), account control agreements in
form and substance reasonably satisfactory to the Administrative Agent, and
maintain such account control agreements in form and substance reasonably
satisfactory to the Administrative Agent.

     

    (l) Mortgages.  With
respect to any Material Real Property acquired by any Loan Party after the
Effective Date or owned by any Person that is a Non-Loan Party as of the
Effective Date but becomes a Loan Party after the Effective Date, obtain and
deliver to the Administrative Agent, no later than 60 days following the date of
such acquisition or the date on which such Person becomes a Loan Party (or such
later date as the administrative agent under the Term Facility may reasonably
determine), as applicable, duly executed Mortgages suitable for recording with
respect to such Material Real Property and such other documents required to be
furnished pursuant to Section 3.01(f)(vi).  Notwithstanding anything
to the contrary in this Section 5.01(l), with respect to any leased Material
Real Property with respect to which a Loan Party is the lessee, (i) such Loan
Party shall use commercially reasonable efforts to obtain (x) (1) a memorandum
of lease in recordable form with respect to such leasehold interest, executed
and acknowledged by the lessor of such leasehold interest, or (2) evidence that
the applicable lease with respect to such leasehold interest or a memorandum
thereof has been recorded in all places necessary, in the Administrative Agent’s
reasonable judgment, to give constructive notice to third-party purchasers of
such leasehold interest, and (y) any lessor consent or approval of such Mortgage
as may be required pursuant to the terms of the applicable lease with respect to
such leasehold interest, and (ii) if such Loan Party shall fail to obtain the
documents referred to in clauses (x) or (y) above with respect to any such
leasehold interest, after using commercially reasonable efforts to do so, such
Loan Party shall have no further obligation to comply with this Section 5.01(l)
with respect to the applicable leasehold interest.

     

    (m) Covenant to Guarantee
Obligations and Give Security.  (i) Upon the formation or
acquisition of any Material Subsidiary that is a wholly-owned direct Subsidiary
(other than an Excluded Subsidiary) of any Loan Party, (ii) if any Subsidiary
listed on Schedule 5.01(m) hereto (each, a “Listed Subsidiary”)
shall not have been liquidated, dissolved or merged into any Guarantor in
accordance with the Plan prior to the date (the “Listed Subsidiary
Date”) that is 90 days after the Effective Date, or (iii) if any
Subsidiary of the Company provides a guaranty of the Senior Notes or the Term
Facility at a time when such Subsidiary is not already a Guarantor or a
Borrower, or if the designation of any Subsidiary of the Company as an
Immaterial Subsidiary is subsequently rescinded in accordance with the
definition of “Immaterial Subsidiary” (the date on which such guarantee is
provided, or on which such designation is rescinded, each being a “Relevant Date”), then
in each case the Company shall, at the Company’s expense:

     

    
      
         

      

      
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    (A) within 10
days after (x) such formation or acquisition (in the case of clause (i) above),
(y) the Listed Subsidiary Date (in the case of clause (ii) above), or (z) the
Relevant Date (in the case of clause (iii) above), cause such Subsidiary to duly
execute and deliver to the Administrative Agent a Guaranty Supplement
guaranteeing the other Loan Parties’ obligations under the Loan
Documents,

     

    (B) within 15
days after (x) such formation or acquisition (in the case of clause (i) above),
(y) the Listed Subsidiary Date (in the case of clause (ii) above), or (z) the
Relevant Date (in the case of clause (iii) above), cause such Subsidiary to duly
execute and deliver to the Administrative Agent a Security Agreement Supplement
and an IP Security Agreement Supplement (to the extent such Subsidiary owns
registered Intellectual Property) in form and substance reasonably satisfactory
to the Administrative Agent, securing payment of all the Obligations of such
Subsidiary under the Loan Documents and constituting Liens on all the Collateral
owned by such Subsidiary,

     

    (C) [Intentionally
Omitted],

     

    (D) within 60
days after (x) such formation or acquisition (in the case of clause (i) above),
(y) after the Listed Subsidiary Date (in the case of clause (ii) above), or (z)
the Relevant Date (in the case of clause (iii) above), deliver to the
Administrative Agent, upon the reasonable request of the Administrative Agent in
its sole discretion, a signed copy of a customary favorable opinion, addressed
to the Administrative Agent and the other Secured Parties, of counsel for the
Loan Parties reasonably acceptable to the Administrative Agent as to the matters
contained in clauses (A) and (B) above.

     

    (n) Further
Assurances.

     

    (i) Promptly
upon reasonable request by any Agent, or any Lender Party through the
Administrative Agent, correct, and cause each of its Subsidiaries promptly to
correct, any material defect or error that may be discovered in any Loan
Document or in the execution, acknowledgment, filing or recordation thereof
(except to the extent such correction requires consent of one or more third
parties that cannot be obtained after commercially reasonable
efforts).

     

    (ii) Promptly
upon reasonable request by any Agent, or any Lender Party through the
Administrative Agent, except with respect to real properties that are not
Material Real Properties, do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register any and all such further acts, deeds,
conveyances, pledge agreements, mortgages, deeds of trust, trust deeds,
assignments, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and other
instruments as any Agent, or any Lender Party through the Administrative Agent,
may reasonably require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) to the fullest extent
permitted by applicable law, subject any Loan Party’s Collateral to the Liens
now or hereafter required to be covered by any of the Collateral Documents,
(C) perfect and maintain the validity, effectiveness and priority of any of
the Collateral Documents and any of the Liens required to be created thereunder
and (D) assure, convey, grant, assign, transfer, preserve, protect and
confirm more effectively unto the Secured Parties the rights granted or now or
hereafter intended to be granted to the Secured Parties under any Loan Document
or under any other instrument executed in connection with any Loan Document to
which any Loan Party or any of its Subsidiaries is or is to be a party, and
cause each of its Subsidiaries to do so (but in any event subject to the terms,
provisions and limitations set forth therein).

     

    
      
         

      

      
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    (iii) Use
commercially reasonable efforts to cause to be delivered promptly to the
Administrative Agent copies of Collateral Access Agreements duly signed by all
parties thereto with respect to all Inventory of Borrowers located at a third
party processor or in a location not owned by a Loan Party.

     

    (iv) Use
commercially reasonable efforts to deliver information reasonably requested by
the Administrative Agent with respect to the business or assets of any
additional Subsidiary Borrower on a timely basis so that the Administrative
Agent may complete its due diligence investigation thereof as described in the
definitions of “Eligible Inventory” and “Eligible Receivables”.

     

    (o) Maintenance of Properties,
Etc.  Except as otherwise permitted under Sections 5.02(h) and
(l), maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its material properties that are used or useful in the conduct
of its business in good working order and condition, ordinary wear and tear,
casualty and condemnation excepted.

     

    (p) Quarterly Conference
Call.  The
Company shall host one conference call or meeting with the Lenders, if requested
by the Administrative Agent, during each calendar quarter at a time mutually
agreed by the Company and the Administrative Agent and upon reasonable advance
notice to the Administrative Agent.

     

    Section
5.02 Negative
Covenants.  So
long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding and not Cash Collateralized or any Lender Party shall have any
Commitment hereunder, no Loan Party will, at any time:

     

    (a) Liens.  Incur,
create, assume or suffer to exist any Lien on any asset of the Borrowers or any
of their Subsidiaries now owned or hereafter acquired by any of the Borrowers or
the Guarantors, other than: (i) Liens listed on Schedule 4.01(u), Liens
outstanding on the Effective Date as permitted under the Existing DIP Agreement
as in effect immediately prior to the Effective Date (as modified by any
amendments, modifications or waivers thereto (other than those that in the
reasonable judgment of the Administrative Agent are adverse to the interests of
the Lenders in more than a de minimis respect), Liens (with the priority set out
in the Intercreditor Agreement) securing Debt under the Term Facility (and
Obligations under certain credit facilities, cash management agreements and
Hedge Agreements secured by the Liens securing the Term Facility) and any
refinancing or replacement thereof permitted hereunder, and Liens securing
Permitted Refinancing Debt issued in exchange for, or the net cash proceeds of
which are used to extend, refinance, renew, replace, defease or refund Effective
Date Debt (as defined below), to the extent that such Liens extend solely to the
property securing the Effective Date Debt being so exchanged, extended,
refinanced, renewed, replaced, defeased or refunded; (ii) Permitted Liens; (iii)
Liens on assets of Foreign Subsidiaries to secure Debt permitted by Section
5.02(b)(vi); (iv) Liens in favor of the Administrative Agent and the Secured
Parties granted under the Loan Documents; (v) Liens in connection with Debt
permitted to be incurred pursuant to Section 5.02(b)(vii) so long as such Liens
extend solely to the property (and improvements and proceeds of such property)
acquired with the proceeds of such Debt or subject to the applicable Capitalized
Lease and so long as the assets subject to such Lien do not include any assets
included in the calculation of the Borrowing Base); (vi) Liens on assets of
Foreign Subsidiaries securing Debt permitted under Section 5.02(b)(x); (vii)
Liens (A) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection and (B) attaching to
commodity trading accounts or other commodities brokerage accounts incurred in
the ordinary course of business and consistent with past practice; (viii) Liens
upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of documentary letters of credit,
Liens on documents of title in respect of documentary letters of credit or
banker’s acceptances issues or credit for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;
(ix) Liens granted by a Non-Loan Party in favor of any Loan Party;
(x) Liens pursuant to the Albemarle Settlement and Cross License;
(xi) Liens consisting of escrow arrangements with respect to escrow
accounts, to the extent such escrow accounts hold deposits in connection with
any acquisition, Investment, sale or disposition of assets permitted under this
Agreement;  (xii) Liens on assets (not including any assets included
in the calculation of the Borrowing Base) of the Company and its Subsidiaries
securing Debt permitted under Sections 5.02(b)(xi) and/or (if limited to the
assets acquired pursuant to, and not incurred in contemplation of, the Permitted
Acquisition to which such Debt relates) 5.02(b)(xiii); (xiii) Liens on assets
(not including any assets included in the calculation of the Borrowing Base) of
any Foreign Subsidiary securing obligations to its pension plan or other similar
obligations of up to $60,000,000 at any time outstanding; (xiv) Liens on
assets (not including any assets included in the calculation of the Borrowing
Base) securing obligations of the Company and its Subsidiaries (other than
Foreign Subsidiaries) in an aggregate amount not to exceed $25,000,000 at any
time outstanding; (xv) Liens securing Debt incurred in reliance on Section
5.02(b)(xii); and (xvi) Liens on assets (not including any assets included in
the calculation of the Borrowing Base) or Equity Interests of Joint Ventures
securing Debt permitted under Section 5.02(b)(xiv).

     

    
      
         

      

      
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    (b) Debt.  Contract,
create, incur, assume or suffer to exist any Debt, or permit any of its
Subsidiaries to contract, create, incur, assume or suffer to exist any Debt,
except for (i) Debt under this Agreement and the other Loan Documents; (ii)(A)
Surviving Debt, Debt and leases (including any operating leases recharacterized
as capital leases) outstanding on the Effective Date that are in each case
permitted under the Existing DIP Agreement as in effect immediately prior to the
Effective Date (as modified by amendments, modifications or waivers thereto
(other than those that in the reasonable judgment of the Administrative Agent
are adverse to the interests of the Lenders in more than a de minimis respect))
and (in the case of the Loan Parties) contemplated under (and remaining
outstanding on the Effective Date in accordance with) the Plan and/or the
Disclosure Statement (such Debt and leases, together with Surviving Debt, the
"Effective Date
Debt"), Debt under the Term Facility in an aggregate principal amount not
to exceed $420,000,000 at any time outstanding, and Debt under the Senior Notes
in an aggregate principal amount not to exceed $455,000,000 at any time
outstanding, and (B) any Permitted Refinancing Debt refunding, replacing or
refinancing, in whole or in part, any Effective Date Debt or any such Debt under
the Term Facility or the Senior Notes; provided that the
terms of any such extending, refunding, replacing or refinancing Debt, and of
any agreement entered into and of any instrument issued in connection therewith,
are otherwise permitted by the Loan Documents and such refunding or refinancing
complies with Section 5.02(j); (iii) Debt arising from Investments among the
Company and its Subsidiaries that are permitted hereunder; (iv) Debt in respect
of customary overdraft protection and netting services and related liabilities
arising from treasury, depository and cash management services in the ordinary
course of business; (v) Debt consisting of Guarantee Obligations permitted by
Section 5.02(c); (vi) Debt of Foreign Subsidiaries owing to third parties in an
aggregate principal amount not in excess of $50,000,000 (or the foreign currency
equivalent) at any time outstanding; (vii) Debt constituting mortgage financing,
purchase money debt and Capitalized Lease obligations (not otherwise included in
subclause (ii) above) in an aggregate amount outstanding at any time not in
excess of $30,000,000; (viii) (A) Debt in respect of Hedge Agreements entered
into in the ordinary course of business to protect against fluctuations in
interest rates, foreign exchange rates and commodity prices and (B) Debt
outstanding under Cash Management Agreements; (ix) Debt which may be deemed to
exist pursuant to any surety bonds, appeal bonds or similar obligations or
guarantees or letters of credit, in each case incurred in connection with any
judgment not constituting an Event of Default or arising from agreements
providing for indemnification, adjustment of purchase price, earn-outs or
similar obligations, surety, performance, bid or appeal bonds and other similar
types of performance and completion guarantees securing any obligations of the
Company or any Subsidiary pursuant to such agreements, in any case incurred or
assumed in connection with the disposition or acquisition of any business,
assets or Equity Interests held by a Subsidiary (other than guarantees of Debt
incurred by any Person acquiring all or any portion of such business, assets or
Equity Interests held by a Subsidiary for the purpose of financing such
acquisition), so long as the amount does not exceed the gross proceeds actually
received by the Company or any Subsidiary in connection with such disposition;
(x) Debt of Foreign Subsidiaries arising under any Foreign Asset Based
Financing, in an aggregate principal amount for all such Foreign Asset Based
Financings not to exceed $250,000,000 (or the foreign currency equivalent) at
any time outstanding; (xi) Debt not otherwise permitted hereunder in an
aggregate principal amount not to exceed $25,000,000 at any time outstanding;
(xii) Debt under Specified Credit Agreements not in excess of $25,000,000 at any
one time outstanding; (xiii) Permitted Acquired Debt and Permitted Refinancing
Debt refunding, replacing or refinancing, in whole or in part, such Permitted
Acquired Debt, provided, that the aggregate amount of Debt under this clause
(xiii) shall not exceed $100,000,000 at any time outstanding; (xiv) Debt
incurred on behalf of Joint Ventures of the Company or any Subsidiary not to
exceed, at any one time outstanding, together with any Guarantee Obligations
incurred in reliance on Section 5.02(c)(vii), the greater of $50,000,000 and
2.0% of Consolidated Net Tangible Assets (as measured at the time of incurrence
of such Debt); (xv) Debt constituting guarantees permitted under Section
5.02(c)(vi); (xvi) an aggregate of up to $25,000,000 of Debt at any one time
outstanding constituting obligations with respect to letters of credit issued,
or surety bonds incurred, in the ordinary course of business, including letters
of credit in respect of workers’ compensation claims, or other Debt with respect
to reimbursement obligations regarding workers’ compensation claims, health,
disability or other benefits to employees or former employees or their families
or property, casualty or liability insurance or self-insurance or similar
requirements, and letters of credit in connection with the maintenance of, or
pursuant to the requirements of, environmental or other permits or licenses from
governmental authorities, or other Debt with respect to reimbursement-type
obligations regarding workers’ compensation claims; provided that, upon the
drawing of such letters of credit or the incurrence of such Debt, such
obligations are reimbursed within 30 Business Days following such drawing or
incurrence; (xvii) Debt arising in connection with endorsement of instruments
for deposit in the ordinary course of business; (xviii) Debt consisting of
take-or-pay obligations contained in supply agreements relating to products,
services or commodities of a type that the Company or any of its Subsidiaries
uses or sells in the ordinary course of business; (xix) Debt consisting of the
financing of insurance premiums; (xx) Debt consisting of guarantees incurred in
the ordinary course of business under repurchase agreements or similar
agreements in connection with the financing of sales of goods in the ordinary
course of business; (xxi) customer deposits and advance payments received in the
ordinary course of business from customers for goods purchased in the ordinary
course of business; (xxii) Debt issued by the Company or a Subsidiary of the
Company to future, current or former employees, directors and consultants
thereof, or their respective estates, spouses or former spouses, in each case to
finance the purchase or redemption of Equity Interests of the Company to the
extent described in Section 5.02(e)(iii); and (xxiii) Debt not in excess of
$60,000,000 at any time outstanding of Foreign Subsidiaries and/or Joint
Ventures to the extent such Debt is supported by one or more Letters of
Credit.

     

    
      
         

      

      
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    (c) Guarantees and Other
Liabilities.  Contract, create, incur, assume or permit to
exist, or permit any Subsidiary to contract, create, assume or permit to exist,
any Guarantee Obligations, except (i) Guarantee Obligations of a Loan Party in
respect of Debt or other obligations of the Company or a Subsidiary of the
Company, if such Debt or other obligations are then permitted under this
Agreement, (ii) by endorsement of negotiable instruments for deposit or
collection in the ordinary course of business, (iii) Guarantee Obligations
constituting Investments of the Company and its Subsidiaries permitted
hereunder, (iv) (A) to the extent constituting Guarantee Obligations, Letters of
Credit issued to support Foreign Subsidiaries and other Non-Loan Parties so long
as such Guarantee Obligations and all other Investments in Foreign Subsidiaries
and other Non-Loan Parties under Section 5.02(g)(xii) do not exceed $60,000,000
in the aggregate at any time outstanding and (B) any other support arrangements
supporting Debt permitted under Section 5.02(b)(x) that are in form and
substance reasonably satisfactory to the Required Lenders, (v) any Guarantee
Obligation or guaranty of Debt or other obligations of any Non-Loan Party by
another Non-Loan Party, (vi) guarantees by the Company (which shall not be
secured by assets of the Company) of contribution obligations existing on the
Effective Date of Foreign Subsidiaries to pension plans of such Foreign
Subsidiaries not to exceed $25,000,000 at any one time outstanding, (vii)
guarantees of Debt of Joint Ventures of the Company or any Subsidiary so long as
such Guarantee Obligations, if the amounts thereof were Investments under
Section 5.02(g), would be permitted Investments under Section 5.02(g); (viii)
the Guaranty; (ix) Guarantee Obligations outstanding on the Effective Date that
are in each case permitted under the Existing DIP Agreement that is in effect on
the Effective Date (as modified by amendments, modifications or waivers thereto
(other than those that in the reasonable judgment of the Administrative Agent
are adverse to the interests of the Lenders in more than a de minimis respect));
(x) Guarantee Obligations in respect of Debt incurred in reliance on Section
5.02(b)(xii); and (xi) Guarantee Obligations in respect of (or constituting)
Debt incurred or assumed in reliance on Section 5.02(b)(viii),
5.02(b)(xiii), or 5.02(b)(xx).

     

    (d) [Intentionally
Omitted].

     

    
      
         

      

      
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    (e) Dividends; Capital
Stock.  Declare or pay, directly or indirectly, any dividends
or make any other distribution, redemption, repurchase or payment, whether in
cash, property, securities or a combination thereof, with respect to (whether by
reduction of capital or otherwise) any shares of capital stock (or any options,
warrants, rights or other equity securities or agreements relating to any
capital stock) of the Company, or set apart any sum for the aforesaid purposes
(any such dividend, distribution, redemption, repurchase or payment declared,
paid or made, or sum set apart therefor, a “Restricted Payment”)
except for (i) Restricted Payments made on or after the Effective Date in
accordance with the Plan and/or the Disclosure Statement; (ii) Restricted
Payments made when (A) no Default or Event of Default shall have occurred and is
continuing or would result immediately therefrom and (B) the Fixed Charge and
Liquidity Conditions with respect thereto are satisfied on the date such
Restricted Payment is made; provided that solely
for purposes of this clause (B), a non-recurring discretionary payment of
dividends, if any, that has been made under Section 5.02(e)(v) shall be excluded
from the calculation of Fixed Charge Coverage Ratio in determining whether the
Fixed Charge and Liquidity Conditions are satisfied; (iii) the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Company (and any direct or indirect parent thereof) held by any future,
current or former employee, director, officer or consultant of the Company (or
any Subsidiary) (or their respective spouses and/or estates) pursuant to the
terms of any employee equity subscription agreement, stock option agreement or
similar agreement; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests in any calendar year
will not exceed $5,000,000 (with unused amounts in any calendar year being
carried over to the next two succeeding calendar years); (iv) the declaration
and payment of dividends by the Company to any direct or indirect parent company
of the Company that owns 100% of the Company’s common stock in aggregate amounts
not to exceed the aggregate amount required for such parent company to pay, in
each case without duplication: (A) franchise taxes and other fees, taxes and
expenses required to maintain the corporate existence of the Company and its
Subsidiaries; (B) foreign, federal, state and local income taxes, to the extent
such income taxes are attributable to the income of the Company and its
Subsidiaries, provided that in each case the amount of such payments in any
fiscal year does not exceed the amount that the Company and its Subsidiaries
would be required to pay in respect of foreign, federal, state and local taxes
for such fiscal year were the Company, and Subsidiaries to pay such taxes
separately from any such parent company; (C) customary salary, bonus,
indemnification obligations and other benefits payable to officers, directors
and employees or former officers, directors or employees of such parent company
to the extent such salaries, bonuses, indemnification obligations and other
benefits are attributable to the ownership or operation of the Company and its
Subsidiaries; (D) general corporate overhead expenses of such parent company to
the extent such expenses are attributable to the ownership or operation of the
Company and its Subsidiaries; (E) fees and expenses incurred by such parent
company in connection with any unsuccessful equity issuances or incurrences of
Debt to the extent the net proceeds thereof were intended to be contributed to
the Company; and (F) taxes with respect to income of any such parent company
derived from funding made available to the Company and its Subsidiaries by such
parent company; (v) the payment of dividends on the Company’s common stock in an
annual amount not to exceed 6.0% of the net cash proceeds received by or
contributed to the Company from any public offering of common stock, other than
public offerings (provided that such dividends are provided substantially
contemporaneously with such offering) with respect to the Company’s common stock
registered on Form S-8 (or any successor form); (vi) the payment of dividends by
the Company consisting solely of shares of the Company’s common stock or other
Equity Interests of the Company (other than Redeemable Equity Interests); (vii)
the payment of any dividend by a Subsidiary of the Company to the holders of its
Equity Interests (on a pro rata basis, subject to any preferential arrangements
in existence at the time of, and not entered into in contemplation of, such
dividend); (viii) the repurchase of Equity Interests deemed to occur upon the
exercise of options or warrants to the extent that such Equity Interests
represent all or a portion of the exercise price thereof and applicable
withholding taxes, if any; (ix) payments of cash, dividends, distributions,
advances or other Restricted Payments by the Company or any of its Subsidiaries
to allow the payment of cash in lieu of the issuance of fractional shares upon
(A) the exercise of options or warrants or (B) the conversion or exchange of
Equity Interests of any such Person; (x) any Restricted Payment made in
connection with the transactions arising out of the Plan; (xi) the declaration
and payment of dividends or distributions to holders of any class or series of
Redeemable Equity Interests of the Company or any Subsidiary issued in
accordance with Section 5.02(b); and (xii) purchases of Receivables Assets
pursuant to a Receivables Repurchase Obligation in connection with a Foreign
Asset Based Financing and the payment or distribution of Receivables
Fees.

     

    
      
         

      

      
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    (f) Transactions with
Affiliates.  Enter into or permit any of its Subsidiaries to
enter into any transaction with any Affiliate, other than on terms and
conditions at least as favorable to the Company or such Subsidiary as would
reasonably be obtained at that time in a comparable arm’s-length transaction
with a Person other than an Affiliate, except for the following: (i) any
transaction between any Loan Party and any other Loan Party or between any
Non-Loan Party and any other Non-Loan Party; (ii) any transaction between any
Loan Party and any Non-Loan Party that is at least as favorable to such Loan
Party as would reasonably be obtained at that time in a comparable arm’s-length
transaction with a Person other than an Affiliate; (iii) any transaction
expressly permitted pursuant to the terms of the Loan Documents, including,
without limitation, Investments permitted under Section 5.02(g);
(iv) customary fees and other benefits to officers, directors, managers and
employees of the Company and its Subsidiaries; (v) reasonable and customary
employment and severance arrangements with officers and employees of the Company
and its Subsidiaries in the ordinary course of business; (vi) transactions
pursuant to contractual obligations or arrangements in existence on the
Effective Date; or (vii) any transaction with a Receivables Entity effected as
part of a Foreign Asset Based Financing and otherwise in compliance with the
terms of this Agreement on fair and reasonable terms that are not materially
less favorable to the Company or the relevant Subsidiary than those that would
have been obtained in a comparable arm’s-length transaction by the Company or
such Subsidiary with a Person that is not an Affiliate of the Company or any
Subsidiary (as determined in good faith by the Company).

     

    
      
         

      

      
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    (g) Investments.  Make
or hold, or permit any of its Subsidiaries to make, any Investment in any
Person, except for (i) Investments outstanding on the Effective Date that are in
each case permitted under the Existing DIP Agreement as in effect immediately
prior to the Effective Date (as modified by amendments, modifications or waivers
thereto (other than those that in the reasonable judgment of the Administrative
Agent are adverse to the interests of the Lenders in more than a de minimis
respect)); (ii) Investments in Cash Equivalents (and other customary cash
equivalents acceptable to the Administrative Agent in its reasonable discretion)
and Investments by Foreign Subsidiaries in securities and deposits similar in
nature to Cash Equivalents and customary in the applicable jurisdiction; (iii)
Investments not to exceed $35,000,000 (subject to reduction pursuant to the
proviso in Section 5.02(j)(ii)) at any time outstanding; (iv) Investments or
intercompany loans or advances made on or after the Effective Date (A) by any
Loan Party to or in any other Loan Party, (B) by any Non-Loan Party to or in any
Loan Party or (C) by any Non-Loan Party to or in any other Non-Loan Party; (v)
investments (A) received in satisfaction or partial satisfaction thereof from
financially troubled account debtors or in connection with the settlement of
delinquent accounts and disputes with customers and suppliers, or (B)
received  in settlement of debts created in the ordinary course of
business and owing to any Borrower or any Subsidiary or in satisfaction of
judgments; (vi) Investments (A) in the form of deposits, prepayments and
other credits to suppliers made in the ordinary course of business consistent
with past practices, (B) in the form of extensions of trade credit in the
ordinary course of business, or (C) in the form of prepaid expenses and
deposits to other Persons in the ordinary course of business; (vii) Investments
made in any Person to the extent such investment represents the non-cash portion
of consideration received for an asset disposition permitted under the terms of
the Loan Documents; (viii) investments constituting guaranties permitted
pursuant to Section 5.02(c)(i), (ii), (iv), (v), (vi), (vii), (viii), (ix), (x)
or (xi) above; (ix) loans and advances to employees, directors and officers of
the Company and its Subsidiaries (A) required by applicable employment laws or
(B) otherwise in the ordinary course of business for travel, business, related
entertainment, relocation, as part of a recruitment or retention plan and
related expenses in an aggregate principal amount at any time outstanding not to
exceed $10,000,000 (provided that the aggregate amount thereof consisting of
loans or advances for travel, business, related entertainment and related
expenses shall not exceed $5,000,000 at any time outstanding); (x) Hedge
Agreements, Cash Management Agreements and Specified Credit Agreements entered
into in the ordinary course of business and otherwise permitted under this
Agreement; (xi) Investments by any Foreign Subsidiary through the licensing,
contribution or transactions that economically result in a contribution in kind
of intellectual property rights pursuant to joint venture arrangements, in each
case in the ordinary course of business and consistent with past practice;
provided that, in the case of this clause (xi), in the event any Non-Loan Party
becomes a Loan Party, all such Investments made by such Person and outstanding
on the date such Person becomes a Loan Party shall continue to be permitted
under this Section 5.02(g)(xi); (xii) any Investment made if (A) the Fixed
Charge and Liquidity Conditions with respect thereto are satisfied on the date
such Investment is made and (B) no Default has occurred and is continuing
immediately before or immediately after giving effect thereto; (xiii)
Investments made by the Company or any of its Subsidiaries in joint ventures
that are not Subsidiaries in an aggregate amount not to exceed $5,000,000 at any
time outstanding (with unfunded guarantees not counting against such dollar
limitation), it being understood that funding and reimbursement arrangements
with respect to the Rubicon LLC joint venture that are consistent with past
practices shall not be deemed loans or investments subject to limitation under
this Section 5.02(g); (xiv) the Lyondell Property Purchase; (xv) Investments
consisting of guarantees by the Company or Non-Loan Parties of loan obligations
of the Gulf Stabilizers Industries, Ltd. joint venture in an aggregate amount
not to exceed $12,000,000 at any time outstanding; (xvi) Investments
consisting of (A) equity investments by Chemtura Organometallics GmbH or
other Non-Loan Parties and (B) guarantee or other credit support
obligations by Chemtura Organometallics GmbH, other Non-Loan Parties or Loan
Parties (including letters of credit issued for the account of such Persons), in
each case in or for the benefit of a joint venture for a manufacturing facility
in Saudi Arabia, so long as the aggregate amount of Investments pursuant to this
clause (xvi) shall not exceed $20,000,000 at any time outstanding; (xvii)
Investments by any Loan Party to Canadian Debtor consisting of intercompany
advances not to exceed $30,000,000 in the aggregate at any time outstanding,
provided that a portion of such advances shall be applied to repay in full the
intercompany obligations owed by Canadian Debtor to CFH; and (xviii) any
Investment by the Company or a Subsidiary of the Company in (x) a Receivables
Entity or (y) any other Person (in the case of an Investment by a Receivables
Entity or by the Company or any of its Subsidiaries in connection with a
European securitization transaction) in connection with a Foreign Asset Based
Financing, including Investments of funds held in accounts permitted or required
by the arrangement governing such Foreign Asset Based Financing or any related
Debt; provided that such Investment is in the form of a Purchase Money Note,
contribution of additional Receivables Assets, Cash Equivalents or Equity
Interests (other than Redeemable Equity Interests) of the Company.

     

    
      
         

      

      
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    (h) Disposition of
Assets.  Sell or otherwise dispose of, or permit any of its
Subsidiaries to sell or otherwise dispose of, any assets (including, without
limitation, the Equity Interests in any Subsidiary) except (i) sales or other
dispositions of inventory in the ordinary course of its business; (ii) in a
transaction authorized by Section 5.02(l); (iii) in transactions between or
among the Loan Parties or between or among the Non-Loan Parties; (iv)
dispositions of obsolete or worn-out tools, equipment or other property no
longer used or useful in business and sales or other dispositions of
intellectual property determined to be uneconomical, negligible or obsolete; (v)
licenses and sub-licenses of intellectual property incurred in the ordinary
course of business or to customers on a non-exclusive basis for the purpose of
ensuring supply of product; (vi) dispositions made in the ordinary course of
business in connection with any Investment permitted under Section 5.02(g)(ii),
(v) or (vi) above; (vii) leases of real property; (viii) equity issuances by any
Subsidiary to the Company or any other Subsidiary to the extent such equity
issuance constitutes an Investment permitted under Section 5.02(g)(iv) above;
(ix) transfers of Receivables Assets or any interest therein by any Foreign
Subsidiary in connection with any Foreign Asset Based Financing incurred under
Section 5.02(b)(vi) or (x) or (xi) above; (x) other sales, leases, transfers or
dispositions of assets for fair value in an aggregate amount of all such sales,
leases transfers or dispositions made in reliance on this clause (x) not to
exceed the Asset Sale Cap as measured at the time of such sale, lease, transfer
or disposition so long as (A) in the case of any such sale or other disposition,
not less than 75% of the consideration is cash and (B) no Default or Event of
Default has occurred and is continuing immediately before or after giving effect
to any such sale, lease, transfer or other disposition; (xi) transfers or
dispositions of property that is the subject of a casualty event; (xii) sales,
leases, transfers or other dispositions of assets provided that the aggregate
fair value of all such sales or dispositions effected in reliance on this clause
(xii) shall not exceed $25,000,000; (xiii) sales or dispositions of property in
the ordinary course of business to the extent that (A) such property is
exchanged for credit against the purchase price of similar replacement property
in substantially the same location or (B) the proceeds of such sale or
disposition are promptly applied to the purchase price of such replacement
property; provided that, in
each case, the proceeds of such sale or disposition are retained and applied by
the entity making the sale or disposition to purchase such replacement property;
(xiv) dispositions of cash and property and issuance of Equity Interests solely
to consummate Investments permitted under Section 5.02(g)(iv), (ix), (x), (xi),
(xii), (xiii), (xiv), (xv), (xvi) or (xviii); (xv) dispositions of property made
or deemed made solely because Liens permitted under Section 5.02(a) on such
property are granted; (xvi) sales or dispositions pursuant to the Albemarle
Settlement and Cross License; (xvii) the sale or disposition of equity
securities of Persons that are not Subsidiaries held by the Company and its
Subsidiaries as of the Effective Date for cash consideration not exceeding
$500,000; (xviii) dispositions pursuant to the PMC Settlement or in accordance
with the Plan; (xix) netting by the Company or any Subsidiary of intercompany
loans, advances and accounts receivable (and interest receivable on such loans,
advances and receivables) that are held by the Company or such Subsidiary, as
applicable, against intercompany loans, advances and accounts payable (and
interest payable with respect to such loans, advances and payables) owed by the
Company or such Subsidiary, as applicable, and dispositions thereof to
accomplish such netting, and dispositions of intercompany loans, advances,
accounts receivable and accounts payable (and of interest receivable on, and
interest payable with respect to, such loans, advances, receivables and
payables) in accordance with the Plan and/or the Disclosure Statement; (xx)
Restricted Payments made in accordance with Section 5.02(e); and (xxi)
dispositions of cash or Cash Equivalents in the ordinary course in any
transaction otherwise permitted hereunder.

     

    
      
         

      

      
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    (i) Nature of
Business.  Engage, or permit any of its Subsidiaries to engage
in any material line of business other than businesses in which they are engaged
in on the Effective Date or which are substantially related thereto or are
reasonable extensions thereof, it being understood that transactions permitted
by Sections 5.02(a), 5.02(b), 5.02(c), 5.02(d), 5.02(e), 5.02(f), 5.02(g),
5.02(h) and 5.02(l) and (for the avoidance of doubt) the discontinuance of a
particular line or lines of business shall not constitute a breach of this
Section 5.02(i).

     

    (j) Limitation on Prepayments,
Redemption and Repurchase of Debt.  Make, or permit any other
Loan Party to make, any payment or prepayment or redemption or acquisition for
value (including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying when
due) or any cancellation or other retirement of any Debt for borrowed money of
any Loan Party or any intercompany loan or advance (other than ordinary course
accounts payable for goods and services and interest payable thereon) owed by
any Loan Party to a Non-Loan Party, either prior to the scheduled maturity
thereof or (if such Debt for borrowed money, intercompany loan or advance is
stated to be payable on demand or has no scheduled maturity) upon demand, in any
manner other than the refinancing thereof with Permitted Refinancing Debt (provided that, for
the avoidance of doubt, nothing in this Section 5.02(j) shall be construed to
prohibit the incurrence of additional Debt contemporaneously with such
refinancing if the incurrence of additional Debt is permitted under Section
5.02(b)); provided that (i)
nothing in this Section 5.02(j) shall be construed to prohibit (A) any Loan
Party from paying, prepaying, redeeming, acquiring, cancelling or retiring (or
netting against intercompany loans, advances and accounts receivable (and
interest receivables on such loans, advances and receivables)) (1) accounts
payable or (2) Debt or intercompany loans or advances owed to any other
Loan Party, or (B) any Non-Loan Party with respect to any of its Debt, or
(C) any Loan Party from paying, prepaying, redeeming, acquiring, cancelling
or retiring (or netting against intercompany loans, advances and accounts
receivable (and interest receivables on such loans, advances and receivables)) )
Debt or intercompany loans or advances owed to any Non-Loan Party or Joint
Venture unless a Default has occurred and is continuing; provided that
notwithstanding the occurrence and continuance of a Default, any Loan Party may
pay, prepay, redeem, acquire, cancel or retire (or net against intercompany
loans, advances and accounts receivable (and interest receivables on such loans,
advances and receivables)) such Debt or intercompany loans or advances in the
ordinary course of the Loan Parties’ management of their intercompany
receivables and payables, (ii) the Loan Parties may make any prepayment or
redemption or acquisition for value or any cancellation or other retirement of
Debt or other obligations of the Company or any Loan Party not to exceed in the
aggregate $10,000,000, and notwithstanding the occurrence and continuance of a
Default, the Loan Parties may make any prepayment or redemption or acquisition
for value or any cancellation or other retirement of any Debt of a Loan Party or
intercompany loans or advances owed by any Loan Parties to any Non-Loan Parties
not to exceed in the aggregate $35,000,000 (provided that any
portion of such amount utilized for such repayment and not re-loaned or
re-advanced to Loan Parties shall count against the $35,000,000 of Investments
permitted under Section 5.02(g)(iii)), (iii) nothing in this Section 5.02(j)
shall be construed to prohibit (A) the issuance of any Letter of Credit to
support any Debt or other obligations of the Company or any Loan Party (and the
drawing or reimbursement of any such Letter of Credit), to the extent the
issuance of such Letter of Credit is otherwise permitted under this Agreement,
(B) the Lyondell Property Purchase, or (C) the PMC Settlement, (iv) the
Borrowers may (A) prepay the obligations under the Loan Documents, and (B) make
mandatory prepayments required under the Term Facility in connection with any
sale, transfer or other disposition of ownership of any asset of the Borrowers
or the receipt of any proceeds of property or casualty insurance and
condemnation awards (and payments in lieu thereof), (v) each Loan Party may make
any such prepayment, redemption, acquisition, cancellation or other retirement
if (A) the Fixed Charge and Liquidity Conditions with respect thereto are
satisfied on the date of such transaction and (B) no Default has occurred and is
continuing immediately before or immediately after giving effect thereto, and
(vi) the Company and its Subsidiaries may make any prepayment or redemption or
acquisition for value or any cancellation or other retirement of Debt or other
obligations in accordance with the Plan and/or the Disclosure
Statement.  In addition, no Loan Party shall permit any of its
Subsidiaries to make any payment, redemption or acquisition on behalf of such
Loan Party which such Loan Party is prohibited from making under the provisions
of this subsection (j).

     

    
      
         

      

      
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    (k) [Intentionally
Omitted].

     

    (l) Mergers.  Merge
into or consolidate with any Person or permit any Person to merge into it, or
permit any of its Subsidiaries to merge into or consolidate with any Person or
permit any Person to merge into it, except (i) for mergers or consolidations
constituting permitted Investments under Section 5.02(g) or dispositions
(including dispositions of equity by means of a merger or consolidation)
permitted pursuant to Section 5.02(h) (other than Section 5.02(h)(ii)); (ii)
mergers, consolidations, liquidations or dissolutions (A) by any Loan Party
(other than the Company) with or into any other Loan Party or any Non-Loan Party
(provided that the surviving entity is a Loan Party or becomes a Loan Party in
accordance with Section 5.01(m)) or (B) by any Non-Loan Party with or into any
other Non-Loan Party or into any Loan Party (provided in the latter case that
the surviving entity is a Loan Party or becomes a Loan Party in accordance with
Section 5.01(m)); provided that, in the
case of any such merger or consolidation under this clause (ii) involving a
wholly owned Subsidiary of the Company that is a Loan Party, the Person formed
by or surviving such merger or consolidation shall be a wholly owned Subsidiary
of the Company that is a Loan Party; and provided further that in the
case of any such merger or consolidation under this clause (ii)(x) to which the
Company is a party, the Person formed by such merger or consolidation shall be
the Company and (y) to which a Loan Party (other than the Company) is a party
(other than a merger or consolidation made in accordance with subclause (B)
above), the Person formed by such merger or consolidation shall be a Loan Party;
(iii) the dissolution, liquidation or winding up of any Subsidiary of the
Company, provided that such
dissolution, liquidation or winding up would not reasonably be expected to have
a Material Adverse Effect and the assets of the Subsidiary so dissolved,
liquidated or wound-up are distributed to the Company or to a Loan Party or, in
the case of any dissolution, liquidation or winding up of a Non-Loan Party, to
the Persons holding the Equity Interests of such Subsidiary; (iv) mergers,
liquidations, dissolutions and consolidations contemplated under (and
consummated in accordance with) the Plan and/or the Disclosure Statement; and
(v) any other merger or consolidation if (A) the Fixed Charge and Liquidity
Conditions with respect thereto are satisfied on the date such merger or
consolidation is consummated, (B) no Default has occurred and is continuing
immediately before or immediately after giving effect thereto and (C) in the
case of a merger or consolidation of any Loan Party (other than the Company) the
surviving entity shall be a Loan Party and in the case of a merger or
consolidation of the Company, the Company shall be the surviving
entity.

     

    (m) Amendments of Constitutive
Documents, Etc.  Amend, or permit any other Loan Party to
amend, its constitutive documents or any document evidencing Debt for borrowed
money of any Loan Party in an aggregate principal amount exceeding $20,000,000,
except for: (i) in the case of constitutive documents or Debt other than the
Term Facility and the Senior Notes, amendments that would not reasonably be
expected to materially adversely affect the interests of the Lenders and (ii) in
the case of any document evidencing Debt under the Term Facility or the Senior
Notes, amendments that (A) do not provide for an earlier final scheduled
maturity date or scheduled amortization that would by its terms result in a
shorter weighted average life to maturity of such Debt, (B) do not result in the
principal amount of such Debt (excluding any accrual of interest) exceeding the
applicable amount permitted under Section 5.02(b)(ii), (C) do not by their terms
result in such Debt ranking senior in right of payment to the Obligations under
the Loan Documents, (D) do not by their terms contravene any of the requirements
contained in the definition of Permitted Refinancing Debt, mutatis mutandis (as if such
amendments result in a replacement of such Debt with the Permitted Refinancing
Debt thereof), (E) do not by their terms result in any additional direct
restriction on any specific payment of the Revolving Credit Facility or
imposition of any other additional direct restriction on the Company or any of
its Subsidiaries that by its express terms conflicts with any express term or
provision set forth in the Loan Documents or contravention of the Intercreditor
Agreement and (F) do not result in such Debt containing any financial covenant
with such maximum or minimum level for any period that (x) is materially adverse
to the interests of the Lenders or (y) does not take into account drawings under
the Revolving Credit Facility and the most recent applicable forecasts delivered
by the Company pursuant to Section 3.01(a)(xii)(C) or 5.03(e).

     

    (n) Accounting
Changes.  Without the consent of the Administrative Agent (not
to be unreasonably withheld or delayed), make or permit any changes in (i)
accounting policies or reporting practices, except as permitted or required by
generally accepted accounting principles, or (ii) its Fiscal Year, it being
understood that the application of fresh start accounting shall not be
restricted.

     

    
      
         

      

      
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    (o) Payment Restrictions
Affecting Subsidiaries.  Directly or indirectly, enter into or
allow to exist, or allow any Subsidiary to enter into or allow to exist, any
agreement or arrangement prohibiting or conditioning the ability of the Company
or any such Subsidiary to (i) create or assume any Lien upon any of its property
or assets, (ii) pay dividends to, or repay or prepay any Debt owed to, any Loan
Party, (iii) make loans or advances to, or other investments in, any Loan Party,
or (iv) transfer any of its assets to any Loan Party, other than (A) any such
agreement with or in favor of the Administrative Agent or the Lenders; (B) in
connection with (1) any agreement evidencing any Liens (or the underlying
obligations secured by such Liens) permitted pursuant to Section 5.02(a)(iii),
(iv), (v), (vi), (vii), (viii), (xi), (xii), (xv) or (xvi) (so long as
(x) in the case of agreements evidencing Liens (or the underlying
obligations secured by such Liens) permitted under Section 5.02(a)(iii) or
(xii), such prohibitions or conditions are customary for such Liens and the
obligations they secure and (y) in the case of agreements evidencing Liens (or
the underlying obligations secured by such Liens) permitted under Section
5.02(a)(v), (vi), (vii), (viii), (xi) or (xvi), such prohibitions or conditions
relate solely to the assets that are the subject of such Liens or in the case of
clause (vi), the assets of Foreign Subsidiaries) or (2) any Debt permitted to be
incurred under Sections 5.02(b)(ii), (vi), (vii), (viii), (x), (xi), (xii),
(xiii) or (xiv) above (so long as in the case of agreements evidencing Debt
permitted under Section 5.02(b)(ii)(B), (vii), (x), (xi) or (xiv), such
prohibitions or conditions are limited to the assets securing such Debt or in
the case of clause (x), the assets of Foreign Subsidiaries); (C) any agreement
setting forth customary restrictions on the subletting, assignment or transfer
of any property or asset that is a lease, license, conveyance or contract of
similar property or assets; (D) any restriction or encumbrance imposed pursuant
to an agreement that has been entered into by the Company or any Subsidiary for
the disposition of any of its property or assets so long as such disposition is
otherwise permitted under the Loan Documents; (E) any such agreement imposed in
connection with consignment agreements entered into in the ordinary course of
business; (F) any agreement in existence on the Effective Date; (G) any
agreement in existence at the time a Subsidiary is acquired so long as such
agreement was not entered into in contemplation of such acquisition; (H)
restrictions on cash or other deposits imposed by customers under contracts
entered into in the ordinary course of business; (I) customary provisions
restricting assignment of any agreement entered into in the ordinary course of
business; and (J) the definitive agreements entered into with respect to the
Senior Notes and the Term Facility.

     

    (p) Sales and Lease
Backs.  Enter into, or permit any of its Subsidiaries to enter
into, any arrangement whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter lease such property or other property that it intends
to use for substantially the same purpose or purposes as the property sold or
transferred (a “Sale and Leaseback Transaction”) unless (a) such Sale and
Leaseback Transaction is consummated for fair value as determined at the time of
consummation in good faith by (i) the Company or such Subsidiary and (ii) in the
case of any Sale and Leaseback Transaction (or series of related Sale and
Leaseback Transactions) the aggregate proceeds of which exceed $25.0 million,
the board of directors of the Company or such Subsidiary (which such
determination may take into account any retained interest or other Investment of
the Company or such Subsidiary in connection with, and any other material
economic terms of, such Sale and Leaseback Transaction); (b) the sale of such
property is permitted by Section 5.02(h)(x); (c) the Net Cash Proceeds of the
sale of such property are applied as and to the extent required by Section
2.07(b)(i); and (d) the incurrence of any Attributable Indebtedness in respect
thereof is permitted under Section 5.02(b); provided, this
Section 5.02(p) shall not apply to Sale and Leaseback Transactions (i) between
Loan Parties or (ii) between Non-Loan Parties.

     

    (q) Speculative
Transactions.  Engage, or permit any of its Subsidiaries to
engage, in any interest rate, commodity, hedge, currency or future contract or
similar speculative transaction, except for hedge transactions for the sole
purpose of risk management of fluctuations in interest rates, exchange rates and
commodity prices in the normal course of business and consistent with industry
practice.

     

    
      
         

      

      
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    (r) Exempt Accounts.  Deposit or permit
to be deposited into any Exempt Account or Excluded Account, or allow any of its
Subsidiaries to deposit or permit to be deposited into any Exempt Account or
Excluded Account, the proceeds of any Revolving Facility Collateral (to the
extent when such proceeds are first received by the Company or any of its
Subsidiaries, such proceeds are paid for sales of Inventory of the Loan Parties
or collections of Accounts of the Loan Parties or related general intangibles
and contract rights); provided that (i) so
long as a Cash Dominion Period is not in effect, the Company and its
Subsidiaries may transfer funds from any other account that is not an Exempt
Account or Excluded Account into an Exempt Account or Excluded Account, which
funds may contain proceeds of Revolving Facility Collateral, (ii) any such
proceeds of such Revolving Facility Collateral that have been deposited in an
Exempt Account or Excluded Account without causing a breach of this Section
5.02(r) shall immediately after such deposit cease to be subject to the
restrictions of this Section 5.02(r) for all purposes, and (iii) if any such
proceeds of such Revolving Facility Collateral are deposited in or transferred
to any Exempt Account or Excluded Account (other than pursuant to clause (i)
above and other than such proceeds which have ceased to be subject to the
provisions of this Section 5.02(r)), the Borrowers shall promptly transfer, or
cause to be transferred, such proceeds into a lockbox or deposit account other
than an Exempt Account or an Excluded Account, and the Loan Parties shall not be
deemed in breach of this Section 5.02(r) if the Borrowers comply with their
obligation under this clause (iii).

     

    Section
5.03 Reporting
Requirements.  So
long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding and not Cash Collateralized or any Lender Party shall have any
Commitment hereunder, the Borrowers will furnish to the Administrative
Agent:

     

    (a) Default
Notice.  As soon as possible and in any event within (i) three
Business Days after any Loan Party or any Responsible Officer thereof has
knowledge of the occurrence of each Default, (ii) five Business Days after any
Loan Party or any Responsible Officer thereof has knowledge of the occurrence of
any event, development or occurrence that has had a Material Adverse Effect or
(ii) 30 days after any Loan Party or any Responsible Officer thereof has
knowledge of the occurrence of any event, development or occurrence that would
reasonably be expected to have a Material Adverse Effect continuing on the date
of such statement, a statement of a Responsible Officer (or person performing
similar functions) of the Company setting forth details of such Default or other
event and the action that the Company has taken and proposes to take with
respect thereto.

    (b) Monthly
Financials.  As soon as available and in any event within 30
days after the end of each of the first two months of each fiscal quarter, a
Consolidated balance sheet of the Company and its Subsidiaries as of the end of
such month, and Consolidated statement of income of the Company and its
Subsidiaries for the period commencing at the end of the previous month and
ending with the end of such month, all in reasonable detail and duly certified
by a Responsible Officer of the Company as presenting fairly in all material
respects the financial condition and results of operations of the Company and
its Subsidiaries as of such date and for such period (subject to quarterly
adjustments and not being prepared in accordance with GAAP where noted in such
financial statements).

     

    
      
         

      

      
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    (c) Quarterly
Financials.  As soon as available and in any event
within 45 days (or, if the Confirmation Order shall have been entered by
the Bankruptcy Court on or prior to September 16, 2010, 90 days with respect to
the third quarter of the Fiscal Year ending December 31, 2010) after the end of
each of the first three quarters of each Fiscal Year, a Consolidated
balance sheet of the Company and its Subsidiaries as of the end of such quarter,
and Consolidated statements of income and cash flows of the Company and its
Subsidiaries for the period commencing at the end of the previous quarter and
ending with the end of such quarter, and Consolidated statements of income cash
flows of the Company and its Subsidiaries for the period commencing at the end
of the previous Fiscal Year and ending with the end of such quarter, setting
forth, in each case in comparative form,  the corresponding figures
for the forecast delivered pursuant to Section 3.01(a)(xii) and the
corresponding figures for the corresponding period of the immediately preceding
Fiscal Year, all in reasonable detail and duly certified (subject to normal
year-end audit adjustments) by a Responsible Officer of the Company as having
been prepared in accordance with GAAP, together with a certificate of said
officer stating that no Default has occurred and is continuing or, if a Default
has occurred and is continuing, a statement as to the nature thereof and the
action that the Company has taken and proposes to take with respect thereto,
together with a schedule in form reasonably satisfactory to the Administrative
Agent of the computations that would be used (if such fiscal quarter ended
during a Testing Period) in determining, as of the end of such fiscal quarter,
compliance with the covenant contained in Section 5.04; provided that, in the
event of any change in GAAP used in the preparation of such financial
statements, the Company shall also provide, if necessary for the determination
of compliance with Section 5.04 and a Testing Period has commenced and is
continuing, a statement of reconciliation conforming such financial statements
to GAAP.

     

    (d) Annual
Financials.  As soon as available and in any event no later
than 90 days (or 105 days with respect to the Fiscal Year ending December 31,
2010) following the end of the Fiscal Year, a copy of the annual audit report
for such Fiscal Year, including therein a Consolidated balance sheet of the
Company and its Subsidiaries as of the end of such Fiscal Year and Consolidated
statements of income and cash flows of the Company and its Subsidiaries for such
Fiscal Year, in each case accompanied by (A) an opinion of independent public
accountants of recognized national standing reasonably acceptable to the
Administrative Agent and (B) a certificate of a Responsible Officer of the
Company stating that no Default has occurred and is continuing or, if a Default
has occurred and is continuing, a statement as to the nature thereof and the
action that the Company has taken and proposes to take with respect thereto,
together with (if such Fiscal Year ended during a Testing Period) a schedule in
form reasonably satisfactory to the Administrative Agent of the computations
used in determining, as of the end of such Fiscal Year, compliance with the
covenant contained in Section 5.04; provided that, in the
event of any change in GAAP used in the preparation of such financial
statements, the Company shall also provide, if necessary for the determination
of compliance with Section 5.04 and a Testing Period has commenced and is
continuing, a statement of reconciliation conforming such financial statements
to GAAP; provided further that in the
event the Company’s accountants have not yet completed the procedures required
to issue an opinion at the time delivery of such opinion would be required under
preceding clause (A), the requirement to deliver the annual audit report
(and the aforementioned financial statements) at such time shall be deemed
satisfied by delivery at such time of a complete draft of the Company’s Form
10-K and delivery of such opinion not later than 120 days following the end of
such Fiscal Year.

     

    (e) Budget.  No
later than 45 days after the beginning of each Fiscal Year, the budget for such
Fiscal Year and each subsequent Fiscal Year through the Maturity Date, showing
projected Consolidated balance sheets, income statements and cash flow
statements of the Company and its Subsidiaries on an annual basis.

     

    
      
         

      

      
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    (f) Fixed Charge Coverage
Ratio.  No later than 30 days after the end of each calendar
month (or in the case of (x) the last calendar month of any of the first three
quarters of a Fiscal Year, no later than 45 days after the end of such calendar
month and (y) the last calendar month of a Fiscal Year, no later than 60 days
after the end of such calendar month), a certificate by a Responsible Officer of
the Company certifying whether the Company would be in compliance with the
covenant in Section 5.04 if such covenant were applicable at such time for such
calendar month, together with a schedule in form and substance reasonably
satisfactory to the Administrative Agent of the computations used in making such
determination, such certificate to be required whether or not the Testing Period
applies; provided, that in the
case of any such certificate delivered with respect to any of the first 2 months
of any quarter or with respect to the last calendar month of a Fiscal Year, (i)
such certification shall be made subject to quarterly (and/or annual, as the
case may be) adjustments and not being prepared in accordance with GAAP where
noted in such certificate and (ii) whether or not a Testing Period has
commenced, the Company may submit an updated certificate with a recalculation of
the Fixed Charge Coverage Ratio in accordance with GAAP without being subject to
quarter end adjustments.

     

    (g) ERISA Events and ERISA
Reports.  Promptly and in any event within 10 Business Days
after any Loan Party or any ERISA Affiliate knows or has reason to know that any
ERISA Event has occurred, a statement of a Responsible Officer of the Company
describing such ERISA Event and the action, if any, that such Loan Party or the
applicable ERISA Affiliate has taken and proposes to take with respect thereto,
on the date any records, documents or other information must be furnished to the
PBGC with respect to any ERISA Plan pursuant to Section 4010 of ERISA, a copy of
such records, documents and information.

     

    (h) Plan
Terminations.  Promptly and in any event within two Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of
each notice from the PBGC stating its intention to terminate any ERISA Plan or
to have a trustee appointed to administer any ERISA Plan.

     

    (i) Actuarial
Reports.  Promptly and in any event within 20 Business Days
after receipt thereof by any Loan Party or any ERISA Affiliate, a copy of the
annual actuarial valuation report for each Single Employer Plan with respect to
any plan year with respect to which the funding target attainment percentage (as
defined in Section 303(d)(2) of ERISA) is less than 90%.

     

    (j) Multiemployer Plan
Notices.  Promptly and in any event within five Business Days
after receipt thereof by any Loan Party or any ERISA Affiliate from the sponsor
of a Multiemployer Plan, copies of each notice concerning (i) the imposition of
Withdrawal Liability upon a Loan Party or ERISA Affiliate by any such
Multiemployer Plan, (ii) the reorganization or termination, within the meaning
of Title IV of ERISA, of any such Multiemployer Plan or (iii) the amount of
liability that will be incurred, or that may be incurred, by such Loan Party or
any ERISA Affiliate in connection with any event described in clause (i) or (ii)
above.

     

    (k) Litigation.  Promptly
after the commencement thereof, notice of each unstayed action, suit,
investigation, litigation and proceeding before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting any Loan Party or any of its Subsidiaries that (i) would be
reasonably likely to have a Material Adverse Effect or (ii) purports to
affect the legality, validity or enforceability of this Agreement, any Note, any
other Loan Document or the consummation of the transactions contemplated
hereby.

     

    (l) Securities
Reports.  Promptly after the sending or filing thereof, copies
of all proxy statements, financial statements and reports that the Company sends
to its public stockholders, copies of all regular, periodic and special reports,
and all registration statements, that the Company files with the Securities and
Exchange Commission or any governmental authority that may be substituted
therefor, or with any national securities exchange and copies of all private
placement or offering memoranda pursuant to which securities of any Loan Party
that are exempt from registration under the Securities Act are proposed to be
issued and sold thereby; provided that such
documents may be made available by posting on the Company’s
website.

     

    
      
         

      

      
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    (m) Environmental
Conditions.  As soon as practicable after the assertion or
receipt thereof, written notice of any Environmental Action against or of any
non-compliance by any Loan Party or any of its Subsidiaries with any applicable
Environmental Law or Environmental Permit that would reasonably be expected to
(i) have a Material Adverse Effect or (ii) cause any of its real property
to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that would reasonably be expected to
have a Material Adverse Effect.

     

    (n) Other
Information.  Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries as any Lender Party
(through the Administrative Agent) or the Administrative Agent may from time to
time reasonably request.

     

    (o) Borrowing Base
Certificate.  A Borrowing Base Certificate substantially in the
form of Exhibit E as of the date required to be delivered or so requested, in
each case with supporting documentation, which shall be furnished to the
Lenders:  (i) as soon as available and in any event prior to the
Initial Extension of Credit to be made on the Effective Date, (ii) after the
Effective Date, (A) if a Testing Period or Specified Default has commenced and
is continuing, on or before Wednesday (or if such day is not a Business Day, the
immediately succeeding Business Day) of each calendar week, which weekly
Borrowing Base Certificate shall reflect the Inventory and Eligible Receivables
updated as of the end of the immediately preceding Friday, and (B) if no Testing
Period or Specified Default has commenced and is continuing, on or before the
10th Business Day of each calendar month, which monthly Borrowing Base
Certificate shall reflect the Eligible Receivables and Eligible Inventory
updated as of the end of the immediately preceding calendar month; provided that
notwithstanding anything herein to the contrary, the Company shall be permitted
upon notice of such election to the Administrative Agent to deliver an updated
Borrowing Base Certificate more frequently than monthly (as specified in such
notice) (provided that in such case, the Company shall, for the immediately
following 90 days, deliver an updated Borrowing Base Certificate with the same
frequency as the frequency specified in such notice), (iii) if there is any sale
pursuant to Section 5.02(h)(x) or any casualty or condemnation event with
respect to any Inventory or Accounts of the Borrowers, in any such case for an
amount exceeding $25,000,000 in any single such transaction or event, as soon as
practicable after such sale or casualty or condemnation event, and (iv) if
reasonably requested by the Administrative Agent at any time when the
Administrative Agent reasonably believes that the then existing Borrowing Base
Certificate is materially inaccurate, as soon as reasonably available after such
time or such request, in each case with supporting documentation as the
Administrative Agent may reasonably request.

     

    Section
5.04 Financial
Covenant.  So
long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding and not Cash Collateralized or any Lender Party shall have any
Commitment hereunder, the Company will, at all times during any Testing Period,
maintain a Fixed Charge Coverage Ratio of not less than 1.1:1.0.

     

    
      
         

      

      
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    ARTICLE
VI


     

    EVENTS
OF DEFAULT

     

    Section
6.01 Events of
Default.  If
any of the following events (“Events of Default”)
shall occur and be continuing:

     

    (a) a
Borrower shall fail to pay any principal of any Advance or any unreimbursed
drawing with respect to any Letter of Credit when the same shall become due and
payable or any Loan Party shall fail to make any payment of interest on any
Advance or any other payment under any Loan Document within three business days
after the same becomes due and payable; or

     

    (b) any
representation or warranty made by any Loan Party (or any of its officers acting
in his/her capacity as such and on behalf of a Loan Party) under or in
connection with any Loan Document shall prove to have been incorrect in any
material respect when made or deemed made; or

     

    (c) any Loan
Party shall fail to perform or observe (i) any term, covenant or agreement
contained in Section 2.15, 5.01(a) (with respect to the Loan Parties), 5.01(c),
5.01(f), 5.02, 5.03(o) or 5.04 or (ii) any term, covenant or agreement contained
in Section 5.03 (other than subsection (o) thereof)  if such failure
shall remain unremedied for 10 Business Days; or

     

    (d) any Loan
Party shall fail to perform any other term, covenant or agreement contained in
any Loan Document on its part to be performed or observed if such failure shall
remain unremedied for 30 days; or

     

    (e) (i) any
Loan Party or any of its Subsidiaries shall fail to pay any principal of,
premium or interest on or any other amount payable in respect of one or more
items of Debt of the Loan Parties and their Subsidiaries (excluding Debt
outstanding hereunder) that is outstanding in an aggregate principal or notional
amount (or, in the case of any Hedge Agreement, an Agreement Value) of at least
$20,000,000 when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable cure or grace period, if any,
specified in the agreements or instruments relating to all such Debt; or
(ii) any other event shall occur or condition shall exist under the
agreements or instruments relating to one or more items of Debt of the Loan
Parties and their Subsidiaries (excluding Debt outstanding hereunder) that is
outstanding in an aggregate principal or notional amount of at least
$20,000,000, and such other event or condition shall continue after the
applicable cure or grace period, if any, specified in all such agreements or
instruments, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt or otherwise to cause, or
to permit the holder thereof to cause, such Debt to mature, provided that in the
case that such other event or condition shall be a breach of the financial
covenant contained in the Term Facility Credit Agreement that shall not have
resulted in the acceleration of the Debt under the Term Facility Credit
Agreement, such other event or condition shall have continued for 15 days after
the end of the cure or grace period specified in the Term Facility Credit
Agreement as being applicable to such breach; or (iii) one or more items of Debt
of the Loan Parties and their Subsidiaries (excluding Debt outstanding
hereunder) that is outstanding in an aggregate principal or notional amount (or,
in the case of any Hedge Agreement, an Agreement Value) of at least $20,000,000
shall be declared to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled or required prepayment or redemption),
purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated maturity
thereof; or

     

    
      
         

      

      
        100

        
          

        

      

      
         

      

    

     

    (f) there is
rendered against any Loan Party or any of its Subsidiaries one or more final,
non-appealable judgments or orders for the payment of money in excess of
$20,000,000 (to the extent not covered by independent third-party insurance as
to which the insurer has been notified of the potential claim and does not
dispute coverage or by reserves established as contemplated under, and in
accordance with, the Plan and/or the Disclosure Statement) in the aggregate at
any time and (A) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and such proceedings are not stayed or
vacated, or (B) there shall be any period of 30 consecutive days during which
such judgment or order has not been vacated, discharged or bonded or a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or

     

    (g) [Intentionally
omitted]

     

    (h) any
Collateral Document after delivery thereof pursuant to Article III shall for any
reason (other than pursuant to the terms thereof or as a result of an action or
inaction of the Administrative Agent, the Collateral Agent or any Lender, to the
extent that such action or inaction relates to the perfection or non-perfection
of Collateral) cease to create a valid and perfected Lien on and security
interest in the Collateral purported to be covered thereby and to the extent
required therein; or

     

    (i) the
Company or any Loan Party shall incur, or shall be reasonably likely to incur
liability as a result of one or more of the following:  (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal of the
Company or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan, except, in each case, (a)
any liability that is reasonably expected to be treated as a general unsecured
claim in the Cases and would not reasonably be expected to result in a Material
Adverse Effect and (b) other liabilities not greater than $20,000,000 in the
aggregate; or

     

    (j) any Loan
Party shall challenge the validity of any Loan Document or the applicability or
enforceability of any Loan Document or shall seek to void, avoid, limit, or
otherwise adversely affect the security interest created by or in any Loan
Document or any payment made pursuant thereto; or

     

    (k) a Change
of Control shall occur; or

     

    (l) any
Borrower or any Material Subsidiary shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against any Borrower or any Material
Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or other similar
official for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding shall
remain undismissed or unstayed for a period of 30 days or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or any substantial part of its property) shall
occur; or any Borrower or any Material Subsidiary shall take any corporate
action to authorize any of the actions set forth above in this subsection
(l);

     

    
      
         

      

      
        101

        
          

        

      

      
         

      

       

    

    then, and
in any such event, the Administrative Agent (i) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the obligation of each Lender to make Advances (other than Letter of
Credit Advances by the Issuing Banks or a Lender pursuant to Section 2.03(c))
and of the Issuing Banks to issue Letters of Credit to be terminated, whereupon
the same shall forthwith terminate, (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrowers, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrowers,
and (iii) shall at the request, or may with the consent, of the Required Lenders
(A) set-off amounts in the L/C Cash Collateral Account, or any other accounts of
the Loan Parties and apply such amounts to the Obligations of the Loan Parties
that are due and payable hereunder and under the other Loan Documents, and (B)
exercise any and all remedies against the Collateral under this Agreement, the
Loan Documents, and applicable law available to the Agents and the Lenders;
provided,
however, that, upon the occurrence of an actual or deemed entry of an order for
relief with respect to any Borrower under the Bankruptcy Code, (x) the
Commitments of each Lender Party and the obligation of each Lender Party to make
Advances (other than Letter of Credit Advances by the Issuing Banks or a Lender
pursuant to Section 2.03(c)) and of the Issuing Bank to issue Letters of Credit
shall automatically be terminated and (y) the Advances, all such interest and
all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by each Borrower.

     

    Section
6.02 Actions in Respect of the
Letters of Credit upon Default.  If
any Event of Default shall have occurred and be continuing, the Administrative
Agent may, or shall at the request of the Required Lenders, irrespective of
whether it is taking any of the actions described in Section 6.01 or
otherwise, make demand upon the Borrowers to, and forthwith upon such demand the
Borrowers will, pay to the Administrative Agent on behalf of the Lender Parties
in same day funds at the Administrative Agent’s Office, for deposit in the L/C
Cash Collateral Account, an amount equal to 103% of the aggregate Available
Amount of all Letters of Credit then outstanding.  If at any time the
Administrative Agent determines that any funds held in the L/C Cash Collateral
Account are subject to any right or claim of any Person other than the
Administrative Agent and the Lender Parties or that the total amount of such
funds is less than the aggregate Available Amount of all Letters of Credit, the
Borrowers will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to 103% of the excess of (a) such
aggregate Available Amount over (b) the total amount of funds, if any, then
held in the L/C Cash Collateral Account that the Administrative Agent determines
to be free and clear of any such right and claim.

     

    ARTICLE
VII


     

    THE
AGENTS

     

    Section
7.01 Appointment and Authority.  (a)  Each
of the Lender Parties hereby irrevocably appoints Bank of America to act on its
behalf as the Administrative Agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.  The provisions of this Article are solely for the
benefit of the Administrative Agent and the Lender Parties, and neither any
Borrower nor any other Loan Party shall have rights as a third party beneficiary
of any of such provisions.

     

    
      
         

      

      
        102

        
          

        

      

      
         

      

    

     

    (b) The
Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lender Parties and Lead Arrangers (including in its
capacities as a potential Cash Management Bank) hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of such Lender Party or
Lead Arranger for purposes of acquiring, holding and enforcing any and all Liens
on Collateral granted by any of the Loan Parties to secure any of the Secured
Obligations, together with such powers and discretion as are reasonably
incidental thereto.  In this connection, the Administrative Agent, as
“collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed
by the Administrative Agent pursuant to Section 7.05 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the
Collateral Documents, or for exercising any rights and remedies thereunder at
the direction of the Administrative Agent), shall be entitled to the benefits of
all provisions of this Article VII and Article X (including Section 10.04(c), as
though such co agents, sub-agents and attorneys-in-fact were the “collateral
agent” under the Loan Documents) as if set forth in full herein with respect
thereto.

     

    Section
7.02 Rights as a
Lender.  The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity.  Such Person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Company or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.

     

    Section
7.03 Exculpatory
Provisions.  The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents.  Without
limiting the generality of the foregoing, the Administrative Agent:

     

    (a) shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;

     

    (b) shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan
Document or applicable law; and

     

    (c) shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Company or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or
any of its Affiliates in any capacity.

     

    The
Administrative Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 6.01 and 10.01) or (ii) in the absence of
its own gross negligence or willful misconduct.  The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
notice describing such Default is given to the Administrative Agent by the
Company or a Lender Party.

     

    
      
         

      

      
        103

        
          

        

      

      
         

      

    

     

    The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or the creation, perfection or priority
of any Lien purported to be created by the Collateral Documents, (v) the value
or the sufficiency of any Collateral, or (v) the satisfaction of any condition
set forth in Article III or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative
Agent.

     

    Section
7.04 Reliance by Administrative
Agent.  The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person.  The Administrative Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying
thereon.  In determining compliance with any condition hereunder to
the making of an Advance, or the issuance of a Letter of Credit, that by its
terms must be fulfilled to the satisfaction of a Lender or Issuing Bank, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or Issuing Bank unless the Administrative Agent shall have received
notice to the contrary from such Lender or Issuing Bank prior to the making of
such Advance or the issuance of such Letter of Credit.  The
Administrative Agent may consult with legal counsel (who may be counsel for the
Company), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.

     

    Section
7.05 Delegation of
Duties.  The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any
one or more sub-agents appointed by the Administrative Agent.  The
Administrative Agent and any such sub agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related
Parties.  The exculpatory provisions of this Article shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and
any such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.

     

    Section
7.06 Resignation of
Administrative Agent.  The
Administrative Agent may at any time give prior written notice of its
resignation to the Lender Parties and the Company.  Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in
consultation with the Company, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States; provided that such successor shall comply with the
requirements of Section 2.12(e) prior to becoming the successor under this
Agreement, and the Required Lenders shall not appoint a foreign agent as
successor if such appointment would, upon the effectiveness of such appointment,
result in a tax gross-up or indemnification payment under this
Agreement.  If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lender Parties appoint a
successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Company and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (a) the retiring Administrative Agent shall be discharged from its duties
and obligations as Administrative Agent hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders under any of the Loan Documents,
the retiring Administrative Agent shall continue to hold such collateral
security as nominee until such time as a successor Administrative Agent is
appointed) and (b) all payments, communications and determinations provided to
be made by, to or through the Administrative Agent shall instead be made by or
to each Lender Party directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this
Section.  Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations as Administrative Agent
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section).  The fees payable by the Company
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such
successor.  After the retiring Administrative Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article VII
and Section 10.04 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative Agent.

     

    
      
         

      

      
        104

        
          

        

      

      
         

      

    

     

    Any
resignation by Bank of America as Administrative Agent pursuant to this Section
shall also constitute its resignation as Swing Line Lender and, if Bank of
America shall have become an Issuing Bank, its resignation as an Issuing
Bank.  Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (i) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
Swing Line Lender and, if applicable, Issuing Bank, (ii) the retiring Swing Line
Lender and, if applicable, Issuing Bank shall be discharged from all of its
duties and obligations as Swing Line Lender and Issuing Bank, as the case may
be, hereunder or under the other Loan Documents, and (iii) the successor Issuing
Bank shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or make other arrangements
satisfactory to the retiring Issuing Bank to effectively assume the obligations
of the retiring Issuing Bank with respect to such Letters of
Credit.

     

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

     

    Section
7.08 No Other Duties,
etc.  Anything
herein to the contrary notwithstanding, none of the Bookrunners, Lead Arrangers,
the Syndication Agent or the Co-Documentation Agents listed on the cover page
hereof shall have any powers, duties or responsibilities under this Agreement or
any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent or as a Lender or Issuing Bank hereunder.

     

    
      
         

      

      
        105

        
          

        

      

      
         

      

    

     

    Section
7.09 Administrative Agent May
File Proofs of Claim.  In
case of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Advance or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
any Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:

     

    (a) to file
and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Advances, L/C Obligations and all other Obligations
hereunder and under the other Loan Documents that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to have the
claims of the Lender Parties and the Administrative Agent (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Lender Parties and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lender Parties and the Administrative
Agent under Sections 2.09 and 10.04) allowed in such judicial proceeding;
and

     

    (b) to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;

    and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender Party to make such payments to the Administrative Agent and, if the
Administrative Agent shall consent to the making of such payments directly to
the Lender Parties, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.

     

    Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender Party any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations under the Loan Documents or the rights of any Lender Party to
authorize the Administrative Agent to vote in respect of the claim of any Lender
or in any such proceeding.

     

    Section
7.10 Collateral and Guaranty
Matters.  Each
of the Lender Parties and Lead Arrangers (including in its capacities as a
potential Cash Management Bank) irrevocably authorize the Administrative Agent,
at its option and in its discretion,

     

    (a) to
release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Commitments and payment in
full of all Secured Obligations (other than (A) contingent indemnification
obligations and (B) obligations and liabilities under Secured Cash Management
Agreements, as to which arrangements reasonably satisfactory to the applicable
Cash Management Bank shall have been made) and the expiration or termination of
all Letters of Credit (other than Letters of Credit as to which other
arrangements satisfactory to the Administrative Agent and the applicable Issuing
Bank shall have been made), (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan Document,
or (iii) if approved, authorized or ratified in writing in accordance with
Section 10.01;

     

    (b) to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder or if
such Person is merged, liquidated, dissolved or consolidated into another
Guarantor or its assets are sold as permitted under the terms of the Loan
Documents and, in the case of such liquidation, dissolution or sale the assets
of such Person or the proceeds thereof, as applicable, are distributed to (x)
the Company or (y) the Subsidiary of the Company holding all of the Equity
Interests of such Person or into which such Person is dissolved or liquidated;
and

     

    
      
         

      

      
        106

        
          

        

      

      
         

      

    

     

    (c) to
subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is
permitted by Section 5.02(a).

     

    Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
7.10.  In each case as specified in this Section 7.10, the
Administrative Agent will, at the Company’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request
to evidence the release of such item of Collateral from the assignment and
security interest granted under the Collateral Documents or to subordinate its
interest in such item, or to release such Guarantor from its obligations under
the Guaranty, in each case in accordance with the terms of the Loan Documents
and this Section 7.10.

     

    ARTICLE
VIII


     

    [INTENTIONALLY
OMITTED]


     

    ARTICLE
IX


     

    [INTENTIONALLY
OMITTED]


     

    ARTICLE
X


     

    MISCELLANEOUS

     

    Section
10.01 Amendments, Etc.
No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by any Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrowers or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such
amendment, waiver or consent shall:

     

    (a) waive any
condition set forth in Section 3.01 without the written consent of each Initial
Lender;

     

    (b) extend or
increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 2.06 or Section 6.01) without the written consent of such
Lender  (it being understood that a waiver of any condition precedent
in Article III or the waiver of any Default, Event of Default or mandatory
prepayment shall not constitute an increase of any Commitment of a
Lender);

     

    
      
         

      

      
        107

        
          

        

      

      
         

      

    

     

    (c) postpone
any date fixed by this Agreement or any other Loan Document for any payment (but
not any prepayment) of principal, interest (other than any default interest
payable pursuant to Section 2.08), fees or other amounts due to the Lenders (or
any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly adversely affected thereby;

     

    (d) reduce
the principal of, or the rate of interest specified herein on, any Advance, or
any fees or other amounts payable hereunder or under any other Loan Document (it
being understood that any waiver of default interest payable pursuant to Section
2.08, any waiver of a Default or Event of Default and/or any modification or
amendment of defined terms used in the definition of Applicable Margin, shall
not constitute a decrease in the rate of interest or fees for this purpose) or
alter the pro rata sharing of payments required hereunder, whether by
modification of Section 2.12 or 2.14 or otherwise, without the written consent
of each Lender directly adversely affected thereby;

     

    (e) change
the definition of “Required Lenders,” “Supermajority Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or grant any consent
hereunder, in each case in a manner that would have the direct effect of
reducing the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or grant any consent hereunder, without
the written consent of each Lender;

     

    (f) release
one or more Guarantors (or otherwise limit such Guarantors’ liability with
respect to the Obligations owing to the Agents and the Lender Parties under the
Guaranties) if such release or limitation is in respect of all or substantially
all of the value of the Guaranties to the Lender Parties, or release all or
substantially all of the Collateral, in each case without the written consent of
each Lender;

     

    (g) amend,
modify or waive the provisions of Section 5.04 without the consent of the
Supermajority Lenders; and

     

    (h) change
the definition of any of “Availability”, “Bank Product Reserves”, “Borrowing
Base”, “Eligible Inventory”, “Eligible Receivables”, or “Reserves”, in each case
in a manner adverse to the Lenders, without the written consent of the
Supermajority Lenders;

     

    and provided further that (i) no
amendment, waiver or consent shall, unless in writing and signed by the Issuing
Banks, in addition to the Lenders required above, by its terms adversely affect
the rights or duties of the Issuing Banks under this Agreement or any Letter of
Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Lenders required above, adversely
affect the rights or duties of the Swing Line Lender under this Agreement; (iii)
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, by its terms
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document.  Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder (and any amendment, waiver or consent
which by its terms requires the consent of all Lenders or each affected Lender
may be effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender (it being understood that a waiver
of any condition precedent in Article III or the waiver of any Default, Event of
Default or mandatory prepayment shall not constitute an increase of any
Commitment of a Lender); and (iv) Schedule 1.01A may be supplemented by the
Company to add the applicable numbers with respect to the month of September of
2010 solely with the written approval (not to be unreasonably withheld) of the
Administrative Agent.  For the avoidance of doubt, Schedule I may be
modified from time to time and technical and conforming modifications to the
Loan Documents may be made to the extent necessary to effectuate any Commitment
Increase or Incremental Amendment pursuant to Section 2.19, in each case with
the prior written consent of Administrative Agent, the Loan Parties and each
Lender or Eligible Assignee participating in such Commitment Increase pursuant
to documentation reasonably satisfactory to Administrative Agent without the
consent of any other Lender or any Issuing Bank.

     

    
      
         

      

      
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    Section
10.02 Notices, Posting of Approved
Electronic Communications, Etc.  (a)  Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in subsection (b) below), all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:

     

    (i)           if
to any Borrower or any other Loan Party, or to the Administrative Agent or Swing
Line Lender, to the address, telecopier number, electronic mail address or
telephone number specified for such Person on Schedule 10.02; and

     

    (ii)           if
to any other Lender Party, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire
(including, as appropriate, notices delivered solely to the Person designated by
a Lender Party on its Administrative Questionnaire then in effect for the
delivery of notices that may contain material non-public information relating to
the Company).

     

    Notices
and other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices and other communications sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the
next business day for the recipient).  Notices and other
communications delivered through electronic communications to the extent
provided in subsection (b) below shall be effective as provided in such
subsection (b).

    


    (b) Electronic
Communications.  Notices and other communications to the Lender
Parties hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent,  provided that the foregoing
shall not apply to notices to any Lender Party pursuant to Article II if such
Lender has notified the Administrative Agent that it is incapable of receiving
notices under such Article by electronic communication.  The
Administrative Agent or any Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.

     

    Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.

     

    
      
         

      

      
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    (c) The
Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER
CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent
or any of its Related Parties (collectively, the “Agent Parties”) have
any liability to any Borrower, any other Loan Party, any Lender Party or any
other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of any Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses
are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to any Borrower, any other Loan
Party, any Lender Party or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual
damages).

     

    (d) Change of Address,
Etc.  Each of the Borrowers, the other Loan Parties, the
Administrative Agent and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by
notice to the other parties hereto.  Each other Lender Party may
change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the Borrowers, the Administrative Agent
the Issuing Banks and the Swing Line Lender.  In addition, each Lender
agrees to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices
and other communications may be sent and (ii) accurate wire instructions for
such Lender.  Furthermore, each Public Lender agrees to cause at least
one individual at or on behalf of such Public Lender to at all times have
selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its
delegate, in accordance with such Public Lender’s compliance procedures and
applicable Law, including United States Federal and state securities Laws, to
make reference to Borrower Materials that are not made available through the
“Public Side Information” portion of the Platform and that may contain material
non-public information with respect to the Borrowers or their securities for
purposes of United States Federal or state securities laws.

     

    (e) Reliance by Administrative
Agent and Lender Parties.  The Administrative Agent and the
Lender Parties shall be entitled to rely and act upon any notices (including
telephonic Notices of Borrowing and Swing Line Advance Notices) purportedly
given by or on behalf of any Borrower even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The Borrowers
shall, jointly and severally, indemnify the Administrative Agent, each Lender
Party and the Related Parties of each of them from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of any Borrower. All telephonic notices to and
other telephonic communications with the Administrative Agent may be recorded by
the Administrative Agent, and each of the parties hereto hereby consents to such
recording.

     

    
      
         

      

      
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    Section
10.03 No Waiver;
Remedies.  No
failure on the part of any Lender Party or the Administrative Agent to exercise,
and no delay in exercising, any right hereunder or under any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right.  The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.

     

    Section
10.04 Costs, Fees and
Expenses.  (a)  Each
Borrower agrees (i) to pay or reimburse the Administrative Agent and the Lead
Arrangers for all reasonable and documented out-of-pocket costs and expenses
incurred by such Persons (including, without limitation, third-party appraisal
costs, per diem costs and other charges of field examiners and other employees
in connection with matters relating to the Collateral and reasonable attorneys’
fees and expenses (it being agreed that reasonable fees and expenses of not more
than one counsel for the Administrative Agent and all of the Lead Arrangers
(with one additional counsel if there is a conflict between or among the
Administrative Agent and the Lead Arrangers in the opinion of counsel) shall be
payable or reimbursable under the preceding provisions of this sentence,
together with reasonable fees and expenses of special and local counsel, in each
case reasonably retained by the Lead Arrangers jointly)) in connection with (A)
the preparation, negotiation and execution of the Loan Documents; (B) the
syndication and funding of the Advances and the issuance of any Letters of
Credit; (C) the creation, perfection or protection of the liens under the Loan
Documents (including all search, filing and recording fees); and (D) the
on-going administration of the Loan Documents (including the preparation,
negotiation and execution of any amendments, consents, waivers, assignments,
restatements or supplements thereto) (provided that the Lead Arrangers shall not
in their capacities as such be entitled to any such payments or reimbursements
pursuant to this subclause (D)), and (ii) to pay or reimburse the Administrative
Agent and each of the Lender Parties for all documented out-of-pocket costs and
expenses, including reasonable attorneys’ fees and expenses, incurred by the
Administrative Agent or such Lender Parties in connection with (A) the
enforcement of the Loan Documents; (B) any refinancing or restructuring of the
Facilities in the nature of a “work-out” or any insolvency or bankruptcy
proceeding; and (C) any legal proceeding relating to or arising out of the
Facilities or the other transactions contemplated by the Loan
Documents.  All amounts due under this Section 10.04(a) shall be
payable within ten Business Days after demand therefor.  The
agreements in this Section shall survive the termination of the Commitments, the
termination or expiration of all Letters of Credit and repayment, satisfaction
or discharge of all other Obligations under the Loan Documents.

     

    
      
         

      

      
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    (b) Each
Borrower shall jointly and severally indemnify the Administrative Agent (and any
sub-agent thereof), each Lender Party and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including, without limitation, the reasonable
and documented fees and disbursements of outside counsel), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by any
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof)
and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Advance or Letter of Credit or the use or proposed use
of the proceeds therefrom (including any refusal by any Issuing Bank to honor a
demand for payment under any Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by any Borrower or any of
its Subsidiaries, or any Environmental Action relating to any Borrower or any of
its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by any
Borrower or any other Loan Party or any of the Borrowers’ or such Loan Party’s
directors, shareholders or creditors, and regardless of whether any Indemnitee
is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such
Indemnitee.  In the case of an investigation, litigation or proceeding
to which the indemnity in this paragraph applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by any Borrower, any of its directors, security holders or creditors, an
Indemnitee or any other Person or whether or not an Indemnitee is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated.  Each Borrower also agrees that no Indemnitee shall have
any liability (whether direct or indirect, in contract or tort or otherwise) to
any Borrower or any of their respective Affiliates or to its or their respective
security holders or creditors arising out of, related to or in connection with
any aspect of the transactions contemplated hereby, except to the extent such
liability is determined in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted primarily from such Indemnitee’s gross
negligence or willful misconduct.  In no event, however, shall any
Indemnitee be liable on any theory of liability for any special, indirect,
consequential or punitive damages (including without limitation, any loss of
profits, business or anticipated savings).  Notwithstanding any other
provision of this Agreement, no Indemnitee shall be liable for any damages
arising from the use by others of information or other materials obtained
through electronic telecommunications or other information transmission systems,
except to the extent such damages are determined in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted primarily from
such Indemnitee’s gross negligence or willful misconduct.  All amounts
due under this Section 10.04(b) shall be payable within ten Business Days after
demand therefor.  The agreements in this Section shall survive the
resignation of the Administrative Agent, the replacement of any Lender Party,
the termination of the Commitments, the termination or expiration of all Letters
of Credit and the repayment, satisfaction or discharge of all the other
Obligations under the Loan Documents.

     

    (c) To the
extent that the Borrowers for any reason fail to indefeasibly pay any amount
required under subsection (a) or (b) of this Section 10.04 to be paid by them to
the Administrative Agent (or any sub-agent thereof) any Related Party thereof,
each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent) or such Related Party, as the case may be, such Lender’s Pro Rata
Share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) in its capacity as such, or against
any Related Party thereof acting for the Administrative Agent (or any such
sub-agent) in connection with such capacity.  The obligations of the
Lenders under this subsection (c) are subject to the provisions of Section
2.14.

     

    
      
         

      

      
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    (d) If any
payment of principal of, or Conversion of, any Eurodollar Rate Advance is made
by any Borrower to or for the account of a Lender Party other than on the last
day of the Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.07, 2.10(b)(i) or 2.11(d), acceleration of the
maturity of the Advances pursuant to Section 6.01 or for any other reason, or if
any Borrower fails to make any payment or prepayment of an Advance for which a
notice of prepayment has been given or that is otherwise required to be made,
whether pursuant to Section 2.05, 2.07 or 6.01 or otherwise, the Borrowers
shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion or such failure to pay or prepay, as the case may be,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender Party to fund or maintain such
Advance.

     

    Section
10.05 Right of
Set-off.  If
an Event of Default shall have occurred and be continuing, each Lender Party and
each of their respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by applicable law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender Party or any such Affiliate to or for
the credit or the account of any Borrower or any other Loan Party against any
and all of the obligations of such Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender Party,
irrespective of whether or not such Lender Party shall have made any demand
under this Agreement or any other Loan Document and although such obligations of
such Borrower or such Loan Party are owed to a branch or office of such Lender
Party different from the branch or office holding such deposit or obligated on
such indebtedness; provided, that in the
event that any Defaulting Lender shall exercise any such right of setoff, (x)
all amounts so set off shall be paid over immediately to the Administrative
Agent for further application in accordance with the provisions of Section 2.16
and, pending such payment, shall be segregated by such Defaulting Lender from
its other funds and deemed held in trust for the benefit of the Administrative
Agent and the Lender Parties, and (y) the Defaulting Lender shall provide
promptly to the Administrative Agent a statement describing in reasonable detail
the Obligations under the Loan Documents owing to such Defaulting Lender as to
which it exercised such right of setoff.  The rights of each Lender
Party and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender
Party or their respective Affiliates may have.  Each Lender Party
agrees to notify the applicable Borrower and the Administrative Agent promptly
after any such setoff and application, provided that the failure to give such
notice shall not affect the validity of such setoff and
application.

     

    Section
10.06 Binding
Effect.  This
Agreement shall become effective when it shall have been executed by the
Borrowers, each Agent, the Initial Issuing Bank and the Administrative Agent
shall have been notified by each Initial Lender that such Initial Lender has
executed it and thereafter shall be binding upon and inure to the benefit of the
Borrowers, each Agent and each Lender Party and their respective successors and
assigns, except that the Borrowers shall not have the right to assign their
rights hereunder or any interest herein without the prior written consent of
each Lender Party.

     

    Section
10.07 Successors and
Assigns.  (a)  Each
Lender may assign all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment or
Commitments, the Advances owing to it and the Note or Notes held by it); provided, however, that (i) unless
otherwise agreed by the Administrative Agent each such assignment shall be of a
uniform, and not a varying, percentage of all rights and obligations under and
in respect of any or all Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of
all of a Lender’s rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to any such Eligible Assignee pursuant
to such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall be, unless the Administrative Agent shall
otherwise consent, $5,000,000 or an integral multiple of $500,000 in excess
thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes (if any) subject to such assignment
and a processing and recordation fee of $3,500, (v) to the extent any such
assignment immediately upon becoming effective shall increase amounts payable
under Section 2.11 or 2.13, the Borrowers shall not be liable for payment of
such increased amounts unless such assignment is made with the Borrowers’ prior
consent after the Borrowers have been informed of such increased amounts and
(vi) prior to such assignment, the assignor or the Administrative Agent shall
have given notice of such assignment to the Borrowers.  In connection
with any assignment of rights and obligations of any Defaulting Lender
hereunder, no such assignment shall be effective unless and until, in addition
to the other conditions thereto set forth herein, the parties to the assignment
shall make such additional payments to the Administrative Agent in an aggregate
amount sufficient, upon distribution thereof as appropriate (which may be
outright payment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with the
consent of the Borrowers and the Administrative Agent, the applicable Pro Rata
Share of Advances previously requested but not funded by the Defaulting Lender,
to each of which the applicable assignee and assignor hereby irrevocably
consent), to (x) pay and satisfy in full all payment liabilities then owed by
such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full Pro
Rata Share of all Advances and participations in Letters of Credit and Swing
Line Advances.  Notwithstanding the foregoing, in the event that any
assignment of rights and obligations of any Defaulting Lender hereunder shall
become effective under applicable Law without compliance with the provisions of
this paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance
occurs.

     

    
      
         

      

      
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    (b) Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in such Assignment and Acceptance, (i) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender or Issuing Bank, as the case may be,
hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.11, 2.13 and 10.04 to the extent any claim
thereunder relates to an event arising prior to such assignment) and be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender’s or
Issuing Bank’s rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto).

     

    (c) By
executing and delivering an Assignment and Acceptance, each Lender Party
assignor thereunder and each assignee thereunder confirm to and agree with each
other and the other parties thereto and hereto as
follows:  (i) other than as provided in such Assignment and
Acceptance, such assigning Lender Party makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any Lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon any Agent, such assigning Lender Party or any other Lender
Party and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender or Issuing Bank, as the
case may be.

     

    
      
         

      

      
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    (d) The
Administrative Agent, acting for this purpose (but only for this purpose) as the
agent of the Borrowers, shall maintain at its address referred to in
Section 10.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the “Register”).  The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers, the Agents and the Lender Parties may treat each Person whose
name is recorded in the Register as a Lender Party hereunder for all purposes of
this Agreement.  In addition, the Administrative Agent shall maintain
on the Register information regarding the designation, and revocation of
designation, of any Lender as Defaulting Lender.  The Register shall
be available for inspection by any Borrower or any Agent or any Lender Party at
any reasonable time and from time to time upon reasonable prior
notice.

     

    (e) Upon its
receipt of an Assignment and Acceptance executed by an assigning Lender Party
and an assignee, together with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Borrowers and each
other Agent.  In the case of any assignment by a Lender, within five
Business Days after its receipt of such notice and request by such Eligible
Assignee of a new Note, the Borrowers, at their own expense, shall execute and
deliver to the Administrative Agent in exchange for the surrendered Note or
Notes (if any) a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it under each Facility pursuant to such
Assignment and Acceptance and, if any assigning Lender that had a Note or Notes
prior to such assignment has retained a Commitment hereunder under such
Facility, a new Note to the order of such assigning Lender in an amount equal to
the Commitment retained by it hereunder.  Such new Note or Notes shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.

     

    (f) Each
Issuing Bank, with the written consent of the Company, may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under the
undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such
assignment shall be to an Eligible Assignee and (ii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with a processing and recordation fee of $3,500.

     

    (g) Each
Lender Party may sell participations to one or more Persons (other than any Loan
Party or any of its Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitments, the Advances owing to it and any Note or Notes held
by it); provided, however, that (i) such Lender
Party’s obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender Party shall remain the holder of any such
Note for all purposes of this Agreement, (iv) the Borrowers, the Agents and
the other Lender Parties shall continue to deal solely and directly with such
Lender Party in connection with such Lender Party’s rights and obligations under
this Agreement, (v) no participant under any such participation shall have
any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest (other than default interest) on, the Advances or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or release all or
substantially all of the value of the Collateral or of the value of the
Guaranties, (vi) the participating banks or other entities shall be entitled to
the benefit of Section 2.13 to the same extent as if they were a Lender Party
but, with respect to any particular participant, to no greater extent than the
Lender Party that sold the participation to such participant and only if such
participant agrees to comply with Section 2.13(e) as though it were a Lender
Party and (vii) to the extent any such participation immediately upon becoming
effective shall increase amounts payable under Section 2.11 or 2.13, the
Borrowers shall not be liable for payment of such increased amounts unless such
participation is made with the Borrowers’ prior consent after the Borrowers have
been informed of such increased amounts.

     

    
      
         

      

      
        115

        
          

        

      

      
         

      

    

     

    (h) Any
Lender Party may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 10.07, disclose to the
assignee or participant or proposed assignee or participant any information
relating to the Borrowers furnished to such Lender Party by or on behalf of the
Borrowers; provided, however, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Information received by it
from such Lender Party in accordance with Section 10.11 hereof.

     

    (i) Notwithstanding
any other provision set forth in this Agreement, any Lender Party may at any
time (and without the consent of the Administrative Agent or the Borrowers)
create a security interest in all or any portion of its rights under this
Agreement (including, without limitation, the Advances owing to it and any Note
or Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve
System

     

    (i) Notwithstanding
anything to the contrary contained herein, any Lender that is a fund that
invests in bank loans may create a security interest in all or any portion of
the Advances owing to it and the Note or Notes held by it to the trustee for
holders of obligations owed, or securities issued, by such fund as security for
such obligations or securities, provided, however, that unless
and until such trustee actually becomes a Lender in compliance with the other
provisions of this Section 10.07, (i) no such pledge shall release the pledging
Lender from any of its obligations under the Loan Documents and (ii) such
trustee shall not be entitled to exercise any of the rights of a Lender under
the Loan Documents even though such trustee may have acquired ownership rights
with respect to the pledged interest through foreclosure or
otherwise.

     

    (k) Notwithstanding
anything to the contrary contained herein, any Lender Party (a “Granting Lender”) may
grant to a special purpose funding vehicle organized and administered by such
Lender Party identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrowers (an “SPC”) the option to
provide all or any part of any Advance that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Advance, and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or any
part of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof.  The making of an Advance by an
SPC hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Advance were made by such Granting
Lender.  Each party hereto hereby agrees that (i) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for
which a Lender Party would be liable, (ii) no SPC shall be entitled to the
benefits of Sections 2.11 and 2.13 (or any other increased costs protection
provision) and (iii) the Granting Lender shall for all purposes, including,
without limitation, the approval of any amendment or waiver of any provision of
any Loan Document, remain the Lender Party of record hereunder.  In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior Debt of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof; provided that each Lender Party
designating any SPC hereby agrees to indemnify and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its inability
to institute such a proceeding against such SPC during such period of
forbearance.  Notwithstanding anything to the contrary contained in
this Agreement, any SPC may (i) with notice to, but without prior consent of,
the Borrowers and the Administrative Agent, assign all or any portion of its
interest in any Advance to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of
Advances to any rating agency, commercial paper dealer or provider of any surety
or guarantee or credit or liquidity enhancement to such SPC.  This
subsection (k) may not be amended without the prior written consent of each
Granting Lender, all or any part of whose Advances are being funded by the SPC
at the time of such amendment.

     

    
      
         

      

      
        116

        
          

        

      

      
         

      

       

    

    (l) Notwithstanding
anything to the contrary contained herein, if at any time Bank of America
assigns all of its Revolving Credit Commitment and Revolving Credit Loans
pursuant to Section 10.07(a), Bank of America may, (i) if Bank of America shall
have become an Issuing Bank, upon 30 days’ notice to the Borrowers and the
Lenders, resign as Issuing Bank and/or (ii) upon 30 days’ notice to the
Borrower, resign as Swing Line Lender.  In the event of any such
resignation as Issuing Bank or Swing Line Lender, the Borrowers shall be
entitled to appoint from among the Lenders a successor Issuing Bank or Swing
Line Lender hereunder; provided, however, that no
failure by the Borrowers to appoint any such successor shall affect the
resignation of Bank of America as Issuing Bank or Swing Line Lender, as the case
may be.  If Bank of America resigns as Issuing Bank, it shall retain
all the rights, powers, privileges and duties of the Issuing Bank hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as Issuing Bank and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Advances or fund
risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)).  If Bank of America resigns as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Line Advances made by it and outstanding as of the effective
date of such resignation, including the right to require the Lenders to make
Base Rate Advances or fund risk participations in outstanding Swing Line
Advances pursuant to Section 2.04(c).  Upon the appointment of a
successor Issuing Bank and/or Swing Line Lender, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring Issuing Bank or Swing Line Lender, as the case may be,
and (b) the successor Issuing Bank shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession
(and the Letters of Credit being issued in substitution shall not be considered
outstanding for purposes of determining Availability until substituted for the
relevant Letters of Credit issued by Bank of America) or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.

     

    Section
10.08 Execution in
Counterparts;
Integration.  This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement.  This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof.  Delivery of an
executed counterpart of a signature page to this Agreement by telecopier or by
electronic transmission (e.g. “.pdf” or “tiff”) shall be effective as delivery
of a manually executed counterpart of this Agreement.

     

    Section
10.09 Survival of Representations
and Warranties.  All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Advance or the issuance, extension or increase in
the amount of any Letter of Credit, and shall continue in full force and effect
as long as any Advance or any other Obligation hereunder shall remain unpaid or
unsatisfied or any Letter of Credit shall remain outstanding.

     

    
      
         

      

      
        117

        
          

        

      

      
         

      

    

     

    Section
10.10 Severability.  If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Agreement and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to
that of the illegal, invalid or unenforceable provisions.  The
invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other
jurisdiction.  Without limiting the foregoing provisions of this
Section 10.10, if and to the extent that the enforceability of any provisions in
this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief
Laws, as determined in good faith by the Administrative Agent, then such
provisions shall be deemed to be in effect only to the extent not so
limited.

     

    Section
10.11 Confidentiality and Related
Matters.  Each
of the Administrative Agent and the Lender Parties agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) on a need to know basis to its Affiliates and to its and
its Affiliates’ respective partners, directors, officers, employees, agents,
trustees, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement or any Eligible Assignee invited to
be a Lender pursuant to Section 2.19 or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrowers and their obligations, (g) with the consent of the Borrowers or
(h) to the extent such Information (i) becomes publicly available other than as
a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, any Lender Party or any of their respective Affiliates on
a nonconfidential basis from a source other than the Company; provided that in
the case of disclosure under subsection (c) of this Section 10.11, such party
subject to such requirement or request shall, to the extent permitted by
applicable law, rules and regulations,  provide the applicable Loan
Party with written notice as promptly as practicable and use commercially
reasonable efforts to cooperate with such Loan Party in such Loan Party’s
efforts, at its own expense, to obtain a protective order or other confidential
treatment.  For purposes of this Section, “Information” means
all information received from the Borrowers or any Subsidiary relating to the
Borrowers or any Subsidiary or any of their respective businesses, other than
any such information that is available to the Administrative Agent or any Lender
Party on a nonconfidential basis prior to disclosure by the Borrowers or any
Subsidiary, provided that, in the
case of information received from the Borrowers or any Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential.  Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.

     

    Each of
the Administrative Agent and the Lenders Parties acknowledges that (a) the
Information may include material non-public information concerning the Company
or a Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such
material non-public information in accordance with applicable law, including
United States Federal and state securities laws.

     

    
      
         

      

      
        118

        
          

        

      

      
         

      

    

     

    Section
10.12 Treatment of
Information.  Each
Borrower hereby acknowledges that (a) the Administrative Agent and/or the other
Lead Arrangers will make available to the Lender Parties materials and/or
information provided by or on behalf of the Borrowers hereunder (collectively,
“Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b)
certain of the Lenders (each, a “Public Lender”) may
have personnel who do not wish to receive material non-public information
(within the meaning of the U.S. federal securities law) (“MNPI”) with respect
to the Borrowers or their respective Affiliates, or the respective securities of
any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’
securities.  Each Borrower hereby agrees that it will, if so requested
by the Administrative Agent, use commercially reasonable efforts to identify
that portion of the Borrower Materials that may be distributed to the Public
Lenders and that (w) at the request of the Administrative Agent, all such
Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at
a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers
shall be deemed to have authorized the Administrative Agent, the Lead Arrangers,
and the Lender Parties to treat such Borrower Materials as not containing any
material non-public information (although it may be sensitive and proprietary)
with respect to the Company or its securities for purposes of United States
Federal and state securities laws (provided, however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth in
Section 10.11); and (y) all Borrower Materials marked “PUBLIC” are permitted to
be made available through a portion of the Platform designated “Public Side
Information”; and (z) the Administrative Agent and the Lead Arrangers shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Side Information”.

     

    Section
10.13 Patriot Act Notice.
(a)   Each
Lender Party that is subject to the Patriot Act and the Administrative Agent
(for itself and not on behalf of any Lender Party) hereby notifies the Loan
Parties that pursuant to the requirements of the Patriot Act, it is required to
obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of such Loan Party and other
information that will allow such Lender Party or the Administrative Agent, as
applicable, to identify such Loan Party in accordance with the Patriot
Act.  Each Borrower shall, promptly following a request by the
Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to
comply with its ongoing obligations under applicable “know your customer” and
anti money laundering rules and regulations, including the Patriot
Act.

     

    Section
10.14 Jurisdiction,
Etc.  (a)  Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the exclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding shall be heard and determined in any
such New York State court or, to the extent permitted by law, in such federal
court.  Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.

     

    
      
         

      

      
        119

        
          

        

      

      
         

      

    

     

    (b) Each of
the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party in any New York State or federal court.  Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.

     

    Section
10.15 Governing
Law.  This
Agreement and the Notes shall be governed by, and construed in accordance with,
the laws of the State of New York.

     

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

     

    Section
10.17 No Advisory or Fiduciary
Relationship.  In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of any
other Loan Document), each of the Loan Parties acknowledges and agrees
that:  (a)(i) the arranging and other services regarding this
Agreement provided by the Administrative Agent, the Lead Arrangers and the other
Bookrunners are arm’s-length commercial transactions between the Loan Parties,
on the one hand, and the Administrative Agent, the Lead Arrangers and the other
Bookrunners, on the other hand, (ii) each of the Loan Parties has consulted its
own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (iii) each of the Loan Parties is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (b)(i) each of the
Administrative Agent, the Lead Arrangers and the other Bookrunners is and has
been acting solely as a principal and, except as expressly agreed in writing by
the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for any Loan Party or any other Person and (ii) none
of the Administrative Agent, the Lead Arrangers or the other Bookrunners has any
obligation to any Loan Party or any of their respective Affiliates with respect
to the transactions contemplated hereby except those obligations expressly set
forth herein and in the other Loan Documents; and (c) the Administrative Agent,
the Lead Arrangers and the other Bookrunners and their respective Affiliates may
be engaged in a broad range of transactions that involve interests that differ
from those of the Loan Parties and their respective Affiliates, and none of the
Administrative Agent, the Lead Arrangers or the other Bookrunners has any
obligation to disclose any of such interests to the any Loan Party or any of
their respective Affiliates.  To the fullest extent permitted by law,
each Loan Party hereby waives and releases any claims that it may have against
each of the Administrative Agent, the Lead Arrangers and the other Bookrunners
with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.

     

    
      
         

      

      
        120

        
          

        

      

      
         

      

    

     

    Section
10.18 Release of Guarantees and
Collateral.  If
(i) any Guarantor or any of its successors in interest shall cease to be a
Subsidiary as a result of a transaction permitted hereunder or (ii) if any
Guarantor is merged, liquidated, dissolved or consolidated into another
Guarantor or its assets are sold as permitted under the terms of the Loan
Documents and, in the case of such liquidation, dissolution or sale the assets
of such Guarantor or the proceeds thereof, as applicable, are distributed in
accordance with the Loan Documents or, if the Loan Documents do not provide for
such distribution, to (x) the Company or (y) the Subsidiary of the Company
holding all of the Equity Interests of such Person or into which such Person is
dissolved or liquidated, the Administrative Agent shall execute and deliver to
the Borrowers, at the Borrowers’ expense, all documents that the Borrowers shall
reasonably request to evidence the release of such obligations of such Guarantor
under the Guaranty and the Liens securing such obligations.

     

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OF THIS PAGE INTENTIONALLY LEFT BLANK]

     

    
      
         

      

      
        121

        
          

        

      

      
         

      

    

     

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

     

    
      
        	 	
                CHEMTURA
      CORPORATION, as Borrower

              	 
	 	 	 	 
	
              	
                By:
      

              	/s/
      Stephen C. Forsyth  	 
	 	 	      
                Name: Stephen
      C. Forsyth

              	 
	 	 	      
                Title:  
      Executive Vice President and Chief 

              	 
	 	 	
                Financial
      Officer

              	 
	 	 	 	 
	 	      
                BIO-LAB,
      INC., as Borrower

              	 
	 	 	 	 
	 	      
                By:
      

              	/s/
      Robert J. Cicero 	 
	 	 	      
                Name: Robert
      J. Cicero

              	 
	 	 	      
                Title: 
      Vice President and Secretary

              	 
	 	 	 	 
	 	      
                GLCC
      LAUREL, LLC, as Borrower

              	 
	 	 	 	 
	 	      
                By:
      

              	/s/
      Robert J. Cicero	 
	 	 	Name: Robert
      J. Cicero	 
	 	 	Title: Secretary	 
	 	 	 	 
	 	
                GREAT
      LAKES CHEMICAL CORPORATION, as Borrower

              	 
	 	 	 	 
	 	      
                By:
      

              	/s/
      Robert J. Cicero	 
	 	 	      
                Name: Robert
      J. Cicero

              	 
	 	 	      
                Title:Vice
      President and Secretary

              	 


      

       

      
        
           

        

        
          [Signature
Page]

          
            

          

        

        
           

        

         

      

    

    
      
        	 	
                BANK
      OF AMERICA, N.A., as Administrative Agent,
Initial Lender and Swing
      Line Lender

              	 
	 	 	 	 
	
              	
                By:
      

              	/s/
      James G. Gilbert	 
	 	 	      
                Name: James
      G. Gilbert

              	 
	 	 	      
                Title: AVP

              	 


      

       

      
        
           

        

        
          [Signature Page]

          
            

          

        

        
           

        

      

      
         

        
          
            	 	
                          
                      WELLS
      FARGO CAPITAL FINANCE, LLC, 
as Initial
    Lender

                    

                  	 
	 	 	 	 
	
                  	
                    By:
      

                  	/s/
      Sanat S. Amladi	 
	 	 	      
                          
                      Name: Sanat
      S. Amladi

                    

                  	 
	 	 	      
                          
                      Title: Senior
      Vice President

                    

                  	 


          

        

      

    

     

    
      
         

      

      
        [Signature Page]

        
          

        

      

      
         

      

    

    
       

      
        
          	 	
                        
                          
                      CITIBANK,
      N.A., 
as Initial Lender

                    

                  

                	 
	 	 	 	 
	
                	
                  By:
      

                	/s/
      Matthew Paquin	 
	 	 	      
                        
                          
                      Name: Matthew
      Paquin

                    

                  

                	 
	 	 	      
                  Title: Vice
      President and Director

                	 


        

      

    

     

    
      
         

      

      
        [Signature Page]

        
          

        

      

      
         

      

    

    
      
         

        
          
            	 	
                          
                            
                              
                          BARCLAYS
      BANK PLC, 
as Initial
      Lender

                        

                      

                    

                  	 
	 	 	 	 
	
                  	
                    By:
      

                  	/s/
      Ann E. Sutton	 
	 	 	      
                          
                            
                              
                          Name: Ann
      E. Sutton

                        

                      

                    

                  	 
	 	 	      
                          
                      Title: Director

                    

                  	 


          

        

      

       

      
        
           

        

        
          [Signature Page]

          
            

          

        

        
           

        

      

    

    
      
         

        
          
            	 	
                          
                            
                              
                                
                            GOLMAN
      SACHS LENDING PARTNERS, LLC, 
as Initial
      Lender

                          

                        

                      

                    

                  	 
	 	 	 	 
	
                  	
                    By:
      

                  	/s/
      Alexis Maged	 
	 	 	      
                          
                            
                              
                                
                            Name: Alexis
      Maged

                          

                        

                      

                    

                  	 
	 	 	      
                          
                            
                        Title: Authorized
      Signatory

                      

                    

                  	 


          

        

      

       

      
        
           

        

        
          [Signature Page]

          
            

          

        

        
           

        

      

    

     

    
      
        
          	 	
                        
                          
                            
                              
                                
                            CIT
      Bank, as
      Lender

                          

                        

                      

                    

                  

                	 
	 	 	 	 
	
                	
                  By:
      

                	/s/
      Benjamin Haslam	 
	 	 	      
                        
                          
                            
                              
                                
                            Name: Benjamin
      Haslam

                          

                        

                      

                    

                  

                	 
	 	 	      
                        
                          
                            
                        Title: Authorized
      Signatory

                      

                    

                  

                	 


        

      

    

     

    
      
         

      

      
        [Signature Page]

        
          

        

      

      
         

      

    

    
       

      
        
          
            	 	
                          
                            
                              
                                
                                  
                                    
                                SIEMENS
      FINANCIAL SERVICES, INC., as
      Lender

                              

                            

                          

                        

                      

                    

                  	 
	 	 	 	 
	
                  	
                    By:
      

                  	
                    /s/
      Anthony Casciano

                  	 
	 	 	      
                          
                            
                              
                                
                                  
                                    
                                Name: Anthony
      Casciano

                              

                            

                          

                        

                      

                    

                  	 
	 	 	      
                          
                            
                              
                                
                            Title: Managing
      Director

                          

                        

                      

                    

                  	 
	 	 	 	 
	 	 	 	 
	 	      
                    By:
      

                  	/s/
      Douglas Maher	 
	 	 	      
                    Name: Douglas
      Maher

                  	 
	 	 	      
                    Title: Managing
      Director

                  	 


          

        

      

       

      
        
           

        

        
          [Signature Page]

          
            

          

        

        
           

           

          
            
              
                	 	
                              
                                
                                  
                                    
                                      
                                        
                                    SIEMENS
      FINANCIAL SERVICES, INC., as
      Lender

                                  

                                

                              

                            

                          

                        

                      	 
	 	 	 	 
	
                      	
                        By:
      

                      	
                        /s/
      Anthony Casciano

                      	 
	 	 	      
                              
                                
                                  
                                    
                                      
                                        
                                    Name: Anthony
      Casciano

                                  

                                

                              

                            

                          

                        

                      	 
	 	 	      
                              
                                
                                  
                                    
                                Title: Managing
      Director

                              

                            

                          

                        

                      	 


              

            

          

           

          
            
               

            

            
              [Signature Page]

              
                

              

            

            
               

            

          

        

      

    

    
       

      
        
          
            	 	
                          
                            
                              
                                
                                  
                                    
                                      
                                  SUMITOMO
      MITSUI BANKING CORPORATION, 
as
      Lender

                                

                              

                            

                          

                        

                      

                    

                  	 
	 	 	 	 
	
                  	
                    By:
      

                  	
                    /s/
      Yoshihiro Hyakutome

                  	 
	 	 	      
                          
                            
                              
                                
                                  
                                    
                                      
                                  Name: Yoshihiro
      Hyakutome

                                

                              

                            

                          

                        

                      

                    

                  	 
	 	 	      
                          
                            
                              
                                
                                  
                              Title: General
      Manager

                            

                          

                        

                      

                    

                  	 


          

        

      

       

      
        
           

        

        
          [Signature Page]

          
            

          

        

        
           

        

      

    

     

    
      
        
          	 	
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                  THE
      ROYAL BANK OF SCOTLAND PLC, 
as
      Lender

                                

                              

                            

                          

                        

                      

                    

                  

                	 
	 	 	 	 
	
                	
                  By:
      

                	
                  /s/
      Paul Chisholm

                	 
	 	 	      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                  Name: Paul
      Chisholm

                                

                              

                            

                          

                        

                      

                    

                  

                	 
	 	 	      
                        
                          
                            
                              
                                
                                  
                              Title: Vice
      President

                            

                          

                        

                      

                    

                  

                	 


        

      

    

     

    
      
         

      

      
        [Signature Page]

        
          

        

      

      
         

      

    

    
       

      
        
          
            	 	
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                      WELLS
      FARGO BANK, N.A., 
as Initial Issuing
      Bank

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  	 
	 	 	 	 
	
                  	
                    By:
      

                  	
                    /s/
      Sanat S. Amladi

                  	 
	 	 	      
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                      Name: Sanat
      S.
      Amladi

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  	 
	 	 	      
                          
                            
                              
                                
                                  
                                    
                                      
                                  Title: Vice
      President

                                

                              

                            

                          

                        

                      

                    

                  	 


          

        

      

       

      
        
           

        

        
          [Signature Page]