Exhibit 10.1


 


EXECUTION COPY


 


 




 





 


$400,000,000


 


SENIOR SECURED
SUPERPRIORITY


DEBTOR-IN-POSSESSION
CREDIT AGREEMENT


 


Dated as of March 18,
2009


 


Among


 


CHEMTURA CORPORATION, 

as Debtor and Debtor-in-Possession


as  Borrower


 


and


 


THE GUARANTORS PARTY HERETO,

as Debtors and Debtors in Possession under Chapter 11 of the Bankruptcy Code


 


and


 


CITIBANK, N.A.


as  Administrative
Agent


 


and


 


ROYAL BANK OF SCOTLAND PLC


as  Syndication
Agent


 


and


 


CITIBANK, N.A.


as  Initial
Issuing  Bank


 


THE INITIAL LENDERS AND THE
OTHER LENDERS PARTY HERETO


 




 





 


 


CITIGROUP GLOBAL MARKETS
INC.


 


as  Sole  Lead
Arranger  and  Sole  Bookrunner


 




 





 


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND ACCOUNTING TERMS

  
	
   

  	
   

  	
   

  
	
  Section 1.01
  Certain Defined Terms

  	
   

  	
  1

  
	
  Section 1.02
  Computation of Time Periods; Other Definitional Provisions

  	
   

  	
  35

  
	
  Section 1.03
  Accounting Terms

  	
   

  	
  35

  
	
  Section 1.04
  Terms Generally

  	
   

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  AMOUNTS AND TERMS OF THE ADVANCES

  
	
  AND THE LETTERS OF CREDIT

  
	
   

  	
   

  	
   

  
	
  Section 2.01
  The Advances

  	
   

  	
  36

  
	
  Section 2.02
  Making the Advances

  	
   

  	
  37

  
	
  Section 2.03
  Issuance of and Drawings and Reimbursement Under Non-rollup Letters of Credit

  	
   

  	
  38

  
	
  Section 2.04
  Repayment of Advances

  	
   

  	
  44

  
	
  Section 2.05
  Termination or Reduction of Commitments, Etc

  	
   

  	
  45

  
	
  Section 2.06
  Prepayments

  	
   

  	
  46

  
	
  Section 2.07
  Interest

  	
   

  	
  48

  
	
  Section 2.08
  Fees

  	
   

  	
  48

  
	
  Section 2.09
  Conversion of Advances

  	
   

  	
  50

  
	
  Section 2.10
  Increased Costs, Etc

  	
   

  	
  51

  
	
  Section 2.11
  Payments and Computations

  	
   

  	
  52

  
	
  Section 2.12
  Taxes

  	
   

  	
  53

  
	
  Section 2.13
  Sharing of Payments, Etc

  	
   

  	
  55

  
	
  Section 2.14
  Use of Proceeds

  	
   

  	
  55

  
	
  Section 2.15
  Defaulting Lenders

  	
   

  	
  56

  
	
  Section 2.16
  Evidence of Debt

  	
   

  	
  58

  
	
  Section 2.17
  Priority and Liens

  	
   

  	
  58

  
	
  Section 2.18
  Payment of Obligations

  	
   

  	
  59

  
	
  Section 2.19
  No Discharge: Survival of Claims

  	
   

  	
  59

  
	
  Section 2.20
  Replacement of Certain Lenders

  	
   

  	
  59

  
	
  Section 2.21
  Issuance of and Drawings and Reimbursement Under Rollup Letters of Credit

  	
   

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  
	
  CONDITIONS TO EFFECTIVENESS

  
	
   

  	
   

  	
   

  
	
  Section 3.01
  Conditions Precedent to Effectiveness

  	
   

  	
  66

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

  	
   

  	
  70

  
	
  Section 3.03
  Conditions Precedent to the Term Borrowing

  	
   

  	
  71

  



 

















 


	
  Section 3.04
  Determinations Under Sections 3.01 and 3.03

  	
   

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  	
   

  
	
  Section 4.01
  Representations and Warranties of the Loan Parties

  	
   

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  COVENANTS OF THE LOAN PARTIES

  
	
   

  	
   

  	
   

  
	
  Section 5.01
  Affirmative Covenants

  	
   

  	
  76

  
	
  Section 5.02
  Negative Covenants

  	
   

  	
  80

  
	
  Section 5.03
  Reporting Requirements

  	
   

  	
  86

  
	
  Section 5.04
  Financial Covenants

  	
   

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  
	
  EVENTS OF DEFAULT

  
	
   

  	
   

  	
   

  
	
  Section 6.01
  Events of Default

  	
   

  	
  90

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

  	
   

  	
  94

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  
	
  THE AGENTS

  
	
   

  	
   

  	
   

  
	
  Section 7.01
  Appointment and Authorization of the Agents

  	
   

  	
  94

  
	
  Section 7.02
  Administrative Agent Individually

  	
   

  	
  94

  
	
  Section 7.03
  Duties of Administrative Agent; Exculpatory Provisions

  	
   

  	
  95

  
	
  Section 7.04
  Reliance by Administrative Agent

  	
   

  	
  96

  
	
  Section 7.05
  Delegation of Duties

  	
   

  	
  96

  
	
  Section 7.06
  Resignation of Administrative Agent

  	
   

  	
  97

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

  	
   

  	
  98

  
	
  Section 7.08
  No other Duties, etc.

  	
   

  	
  99

  
	
  Section 7.09
  Indemnification of Agents

  	
   

  	
  99

  
	
  Section 7.10
  Administrative Agent May File Proofs of Claim

  	
   

  	
  99

  
	
  Section 7.11
  Collateral and Guaranty Matters

  	
   

  	
  100

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  SUBSIDIARY GUARANTY

  
	
   

  	
   

  	
   

  
	
  Section 8.01
  Subsidiary Guaranty

  	
   

  	
  100

  
	
  Section 8.02
  Guaranty Absolute

  	
   

  	
  101

  
	
  Section 8.03
  Waivers and Acknowledgments

  	
   

  	
  102

  
	
  Section 8.04
  Subrogation

  	
   

  	
  102

  



 


ii

















 


	
  Section 8.05
  Additional Guarantors

  	
   

  	
  103

  
	
  Section 8.06
  Continuing Guarantee; Assignments

  	
   

  	
  103

  
	
  Section 8.07
  No Reliance

  	
   

  	
  103

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  
	
  SECURITY

  
	
   

  	
   

  	
   

  
	
  Section 9.01
  Grant of Security

  	
   

  	
  104

  
	
  Section 9.02
  Further Assurances

  	
   

  	
  108

  
	
  Section 9.03
  Rights of Lender; Limitations on Lenders’ Obligations

  	
   

  	
  109

  
	
  Section 9.04
  Covenants of the Loan Parties with Respect to Collateral

  	
   

  	
  109

  
	
  Section 9.05
  Performance by Agent of the Loan Parties’ Obligations

  	
   

  	
  113

  
	
  Section 9.06
  The Administrative Agent’s Duties

  	
   

  	
  114

  
	
  Section 9.07
  Remedies

  	
   

  	
  114

  
	
  Section 9.08
  Modifications

  	
   

  	
  116

  
	
  Section 9.09
  Release; Termination

  	
   

  	
  117

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 10.01 Amendments, Etc.

  	
   

  	
  118

  
	
  Section 10.02
  Notices, Posting of Approved Electronic Communications, Etc

  	
   

  	
  119

  
	
  Section 10.03
  No Waiver; Remedies

  	
   

  	
  121

  
	
  Section 10.04
  Costs, Fees and Expenses

  	
   

  	
  121

  
	
  Section 10.05
  Right of Set-off

  	
   

  	
  122

  
	
  Section 10.06
  Binding Effect

  	
   

  	
  123

  
	
  Section 10.07
  Successors and Assigns

  	
   

  	
  123

  
	
  Section 10.08
  Execution in Counterparts

  	
   

  	
  126

  
	
  Section 10.09
  Confidentiality and Related Matters

  	
   

  	
  126

  
	
  Section 10.10
  Treatment of Information

  	
   

  	
  127

  
	
  Section 10.11
  Patriot Act Notice.

  	
   

  	
  129

  
	
  Section 10.12
  Jurisdiction, Etc

  	
   

  	
  129

  
	
  Section 10.13
  Governing Law

  	
   

  	
  129

  
	
  Section 10.14
  Certain Matters Relating to Rollup Revolving Credit Commitments

  	
   

  	
  129

  
	
  Section 10.15
  Waiver of Jury Trial

  	
   

  	
  130

  



 


iii

















 


SCHEDULES


 


	
  Schedule I

  	
  -

  	
  Commitments and Applicable
  Lending Offices

  	
   

  	
   

  
	
  Schedule II

  	
  -

  	
  Intellectual Property

  	
   

  	
   

  
	
  Schedule III

  	
  -

  	
  Material IP Agreements

  	
   

  	
   

  
	
  Schedule IV

  	
  -

  	
  Initial Pledged Equity

  	
   

  	
   

  
	
  Schedule V

  	
  -

  	
  Initial Pledged Debt

  	
   

  	
   

  
	
  Schedule VI

  	
  -

  	
  Designated Account Debtors

  	
   

  	
   

  
	
  Schedule VII

  	
  -

  	
  Form of Invoices

  	
   

  	
   

  
	
  Schedule VIII

  	
  -

  	
  Non-Filing Domestic
  Subsidiaries

  	
   

  	
   

  
	
  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

  	
   

  	
   

  
	
  Schedule 4.01(u)

  	
  -

  	
  Lien

  	
   

  	
   

  
	
  Schedule 5.02(g)

  	
  -

  	
  Investments in Joint
  Ventures

  	
   

  	
   

  
	
  Schedule 5.02(p)

  	
  -

  	
  Sale and Lease Backs

  	
   

  	
   

  



 


EXHIBITS


 


	
  Exhibit A-1

  	
  -

  	
  Form of Term Note

  	
   

  	
   

  
	
  Exhibit A-2

  	
  -

  	
  Form of Non-rollup
  Revolving Credit Note

  	
   

  	
   

  
	
  Exhibit A-3

  	
  -

  	
  Form of Rollup
  Revolving Credit Note

  	
   

  	
   

  
	
  Exhibit B

  	
  -

  	
  Form of Notice of Borrowing

  	
   

  	
   

  
	
  Exhibit C

  	
  -

  	
  Form of Assignment
  and Acceptance

  	
   

  	
   

  
	
  Exhibit D-1

  	
  -

  	
  Form of Opinion of
  Kirkland & Ellis LLP

  	
   

  	
   

  
	
  Exhibit E

  	
  -

  	
  Interim Order

  	
   

  	
   

  
	
  Exhibit F

  	
  -

  	
  Form of Borrowing
  Base Certificate

  	
   

  	
   

  
	
  Exhibit G

  	
  -

  	
  Form of IP Security
  Agreement Supplement

  	
   

  	
   

  
	
  Exhibit H

  	
  -

  	
  Form of Guaranty
  Supplement

  	
   

  	
   

  



 


iv

















 


SENIOR SECURED SUPERPRIORITY

DEBTOR-IN-POSSESSION CREDIT AGREEMENT


 


SENIOR SECURED SUPERPRIORITY DEBTOR-IN-POSSESSION
CREDIT AGREEMENT (this “Agreement”) dated as of March 18, 2009
among CHEMTURA CORPORATION, a Delaware corporation and a debtor and
debtor-in-possession in a case pending under chapter 11 of the Bankruptcy Code
(as hereinafter defined) (the “Borrower”), and each of the direct and
indirect Subsidiaries of the Borrower signatory hereto (each, a “Guarantor”,
and together with any person that becomes a Guarantor hereunder pursuant to Section 8.05,
the “Guarantors”), each of which is a debtor and debtor-in-possession in
a case pending under chapter 11 of the Bankruptcy Code, 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”), CITIBANK, N.A. (“Citibank”),
as the initial issuing bank (in such capacity, the “Initial Issuing Bank”),
Citibank, as administrative 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), ROYAL BANK OF SCOTLAND PLC (“RBS”),
as syndication agent (the “Syndication Agent”) and CITIGROUP GLOBAL
MARKETS INC., as sole lead arranger and sole bookrunner (the “Lead Arranger”).


 


PRELIMINARY STATEMENTS


 


(1)           On March 18, 2009 (the “Petition Date”), the
Borrower and the Guarantors filed voluntary petitions in the United States
Bankruptcy Court for the Southern District of New York (the “Bankruptcy
Court”) 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 Borrower has requested that the Agents and the Lender
Parties (each as hereinafter defined) enter into term, revolving credit and
letter of credit facilities (collectively, the “Facilities”) in an
aggregate principal amount not to exceed $400,000,000.  The Lender Parties have agreed to enter into
the Facilities on the terms and conditions of this Agreement.


 


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 Collateral” has the meaning
specified in Section 9.01(f).


 


“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 Account” means the
account of the Administrative Agent maintained by the Administrative Agent with
Citibank and identified to the Borrower and the Lender Parties from time to
time.


 


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


 


“Advance” means a Term Advance, a Rollup
Revolving Credit Advance, a Non-rollup Revolving Credit Advance, a Rollup
Letter of Credit Advance or a Non-rollup Letter of Credit Advance.


 


“Affected Lender” has the meaning specified
in Section 2.20.


 


“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.


 


“After-Acquired Intellectual Property” has
the meaning specified in Section 9.04(g)(v).


 


“Agent’s Group” has the meaning specified in Section 7.02(b).


 


“Agents” means the Administrative Agent and
the Lead Arranger.


 


“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; 


 


2

















 


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.


 


“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 (a) in respect
of the Term Facility, 7.5% per annum, in the case of Eurodollar Advances, and
6.5% per annum, in the case of Base Rate Advances, (b) in respect of the
Non-rollup Revolving Credit Facility, 7.5% per annum, in the case of Eurodollar
Rate Advances, and 6.5% per annum, in the case of Base Rate Advances and (c) in
respect of the Rollup Revolving Credit Facility, 3.5% per annum, in the case of
Eurodollar Rate Advances, and 2.5% per annum, in the case of Base Rate
Advances; provided that during any Specified Interest Accrual Period,
the Applicable Margin stated herein for each Facility shall be increased by
2.5% per annum.


 


“Appropriate Lender” means, at any time, with
respect to (a) the Non-rollup Revolving Credit Facility, the Rollup
Revolving Credit Facility or the Term Facility, a Lender that has a Commitment
or Advances outstanding, in each case with respect to or under such Facility at
such time, and (b) the Letter of Credit Sublimit, (i) any Issuing
Bank, (ii) if the Non-rollup Revolving Credit Lenders have made Non-rollup
Letter of Credit Advances pursuant to Section 2.03(c) that are
outstanding at such time, each such Non-rollup Revolving Credit Lender and (iii) if
the Rollup Revolving Credit Lenders have made Rollup Letter of Credit Advances
pursuant to Section 2.21(c) that are outstanding at such time, each
such Rollup Revolving Credit Lender.


 


“Approved Electronic Communications” means
each Communication that any Loan Party is obligated to, or otherwise chooses
to, provide to the Administrative Agent pursuant to any Loan Document or the
transactions contemplated therein, including any financial statement, financial
and other report, notice, request, certificate and other information material;
provided, however, that, solely with respect to delivery of any such
Communication by any Loan Party to the Administrative Agent and without
limiting or otherwise affecting either the Administrative Agent’s right to
effect delivery of such Communication by posting such Communication to the
Approved Electronic Platform or the protections afforded hereby to the
Administrative Agent in connection with any such posting, “Approved Electronic
Communication” shall exclude (i) any Notice of Borrowing, Letter of Credit
Application, notice of Conversion or continuation, and any other notice,
demand, communication, information, document and other material relating to a
request for a new, or a conversion of an existing, Borrowing, (ii) any
notice pursuant to Section 2.06 and any other notice relating to the
payment of any principal or other amount due under any Loan Document prior to
the scheduled date therefor, (iii) all notices of any Default or Event of
Default and (iv) any notice, demand, communication, information, document
and other material required to be delivered to satisfy any of the conditions
set forth in Article III or any other condition to any Borrowing or other
extension of credit hereunder or any condition precedent to the effectiveness
of this Agreement.


 


“Approved Electronic Platform” has the
meaning specified in Section 10.02(d).


 


“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.


 


3
















 


“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.


 


“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(p).


 


“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 and
the Secured Hedge Agreements then outstanding.


 


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


 


“Bankruptcy Court” has the meaning specified
in the Preliminary Statements and means the United States District Court for
the Southern District of New York when such court is exercising direct
jurisdiction over the Cases.


 


“Base Rate” means the
higher of (a) 4% per annum and (b) a fluctuating interest rate per
annum in effect from time to time, which rate per annum shall at all times be
equal to the higher of (i) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as Citibank’s base rate
and (ii) 1⁄2 of 1% per annum above the Federal Funds Rate.


 


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


 


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


 


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


 


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


 


“Borrowing Base” means:


 


(a) prior to the Final Term Advance Date,
$190,000,000; and


 


(b) on or after the Final Term Advance Date, (i) 80%
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, plus (iii) $125,000,000, minus
(iv) Reserves.


 


“Borrowing Base Certificate” means a
certificate in substantially the form of Exhibit F hereto (with such changes
therein as may be required in accordance with the terms of this 


 


4

















 


Agreement by the
Administrative Agent or the Initial Lenders 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 Borrower or by the controller of the Borrower, which shall include
detailed calculations as to the Borrowing Base as reasonably requested by the
Administrative Agent or the Initial Lenders.


 


“Budget Variance Report” means a report, in
each case certified by a Responsible Officer of the Borrower, in form
reasonably satisfactory to the Initial Lenders, delivered in accordance with Section 5.03(e),
showing actual cash flows and the aggregate maximum amount of utilization of
the Commitments for each such week as of the end of the week immediately
preceding the week during which such Budget Variance Report is delivered and
the variance (as a percentage) of such amounts from the corresponding
anticipated amounts therefor set forth in the DIP Budget.


 


“Business Day” means a day of the year on
which banks are not required or authorized by law to close in New York
City and, if the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings are carried on in the London interbank market.


 


“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.


 


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


 


“Carve-Out” means (i) all fees required
to be paid to the Clerk of the Bankruptcy Court and to the Office of the United
States Trustee under Section 1930(a) of title 28 of the United States
Code, (ii) Professional Fees that are incurred prior to an Event of
Default, and invoiced and payable under sections 330 and 331 of the Bankruptcy
Code, whether prior to or after an Event of Default (the “Pre-Trigger
Pipeline Claims”) (but only to the extent that such fees are payable
pursuant to an order of the Bankruptcy Court), and (iii) without
duplication of the amounts described in clause (ii) above, Professional
Fees in an aggregate amount not to exceed $8,000,000 (the “Carve-Out Cap”)
incurred after the occurrence and during the continuance of an Event of Default
(but only to the extent such fees are payable pursuant to an order of the
Bankruptcy Court); provided, however (to the extent allowed by
the Bankruptcy Court), that the Borrower and each Guarantor shall be permitted
to pay the Pre-Trigger Pipeline Claims, and the Carve-Out Cap shall not be
reduced by the amount of any compensation and reimbursement of expenses
incurred prior to the occurrence of an Event of Default (to the extent allowed
by the Bankruptcy Court), whether paid prior to or after an Event of Default,
or any fees, expenses, indemnities or other amounts paid to the Administrative
Agent or the Lenders and their respective attorneys and agents under this
Agreement or otherwise; and provided  further that nothing herein
shall be construed to impair the ability of any party to object to any of the
fees, expenses, reimbursement or compensation described above in accordance with
the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, The Local
Bankruptcy Rules for the Southern District of New York, 


 


5

















 


Guidelines for Reviewing
Applications for Compensation & Reimbursement of Expenses Filed Under
11 U.S.C. Section 330, and any applicable order of the Bankruptcy Court.


 


“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 and the Non-rollup Revolving Credit Lenders or Rollup Revolving
Credit Lenders, as applicable, as collateral for the L/C Obligations, cash or
deposit account balances in an amount not less than 105% of the face amount of
such L/C Obligations, pursuant to customary documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Issuing Banks.  Derivatives of such term have corresponding
meanings.


 


“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 Borrower 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 and which are approved by the Bankruptcy Court.


 


“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 or an
Affiliate of a Lender Party, in its capacity as a party to such Cash Management
Agreement.


 


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


 


“Change of Control” means and shall be deemed
to have occurred upon the occurrence of any of the following events:  (i) 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 Borrower (or other securities convertible into such Voting Stock)
representing 35% or more of the combined voting power of all Voting Stock of
the Borrower; or (ii) after the date of this Agreement, individuals who as
of the date of this Agreement were directors of the Borrower, together with
each individual on the board of directors of the Borrower who was either (x) elected
or appointed by a majority of those members of the board of directors of the
Borrower who were members at the time of such election or appointment or (y) nominated
for election or appointment 


 


6

















 


by a majority of those
members of the board of directors of the Borrower 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 Borrower.


 


“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 reasonably satisfactory to the Agent.


 


“Collateral Documents” means, collectively,
the provisions of Article IX of this 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 Term Commitment, a
Rollup Revolving Credit Commitment, a Non-rollup Revolving Credit Commitment or
a Letter of Credit Commitment.


 


“Committee” means the unsecured creditors’
committee appointed in the Cases.


 


“Communications” means each notice, demand,
communication, information, document and other material provided for hereunder
or under any other Loan Document or otherwise transmitted between the parties
hereto relating this Agreement, the other Loan Documents, any Loan Party or its
Affiliates, or the transactions contemplated by this Agreement or the other
Loan Documents including, without limitation, all Approved Electronic
Communications.


 


“Computer Software” has the meaning specified
in Section 9.01(g)(iv).


 


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


 


“Contract” means an agreement between any
Loan Party and an Account Debtor in any written form acceptable to such Loan
Party, or in the case of any open account agreement as evidenced by one of the
forms of invoices set forth in Schedule VII 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.


 


“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.


 


7

















 


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


 


“Copyrights” has the meaning specified in Section 9.01(g)(iii).


 


“Debt” of any Person means, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
Obligations of such Person for the deferred purchase price of property or
services (other than trade payables not overdue by more than 90 days incurred
in the ordinary course of such Person’s business), (c) all Obligations of
such Person evidenced by notes, bonds, debentures 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 Obligations of such Person as lessee
under Capitalized Leases, (f) all Obligations of such Person under
acceptance, letter of credit or similar facilities, (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 and Synthetic Debt 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.


 


“Defaulted Advance” means, with respect to
any Lender at any time, the portion of any Advance required to be made by such
Lender to the Borrower pursuant to Section 2.01, 2.02, 2.03 or 2.21 at or
prior to such time which has not been made by such Lender or by the
Administrative Agent for the account of such Lender pursuant to Section 2.02(e) as
of such time.  In the event that a
portion of a Defaulted Advance shall be deemed made pursuant to Section 2.15(a),
the remaining portion of such Defaulted Advance shall be considered a Defaulted
Advance originally required to be made pursuant to Section 2.01 on the
same date as the Defaulted Advance so deemed made in part.


 


“Defaulted Amount” means, with respect to any
Lender Party at any time, any amount required to be paid by such Lender Party
to the Administrative Agent or any other Lender Party hereunder or under any
other Loan Document at or prior to such time which has not been so paid as of
such time, including, without limitation, any amount required to be paid by
such Lender Party to (a) any Issuing Bank pursuant to Section 2.03(d) to
purchase a portion of a Non-rollup Letter of Credit Advance made by such
Issuing Bank, (b) the Administrative Agent pursuant to 


 


8

















 


Section 2.02(e) to
reimburse the Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (c) any other
Lender Party pursuant to Section 2.13 to purchase any participation in
Advances owing to such other Lender Party, (d) the Administrative Agent or
any Issuing Bank pursuant to Section 7.07 to reimburse the Administrative
Agent or such Issuing Bank for such Lender Party’s ratable share of any amount
required to be paid by the Lender Parties to the Administrative Agent or such
Issuing Bank as provided therein and (e) any Issuing Bank pursuant to Section 2.21(d) to
purchase a portion of a Rollup Letter of Credit Advance made by such Issuing
Bank.  In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the
remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in part.


 


“Defaulting Lender” means, at any time, a
Lender Party as to which the Administrative Agent has notified the Borrower
that (a) such Lender Party has failed for two or more Business Days to comply
with its obligations under this Agreement to make an Advance or make a payment
to an Issuing Bank in respect of an Unreimbursed mount (each a “funding
obligation”), (b) such Lender Party has notified the Administrative
Agent, or has stated publicly, that it will not comply with any such funding
obligation hereunder, or has defaulted on its funding obligations under any
other loan agreement or credit agreement or other similar/other financing
agreement, (c) such Lender Party has, for two or more Business Days,
failed to confirm in writing to the Administrative Agent, in response to a
written request of the Administrative Agent, that it will comply with its
funding obligations hereunder, or (d) a Lender Insolvency Event has
occurred and is continuing with respect to such Lender Party.  Any determination that a Lender Party is a
Defaulting Lender under any of clauses (a) through (d) above (to the
extent such a determination is contemplated in the preceding sentence in order
for the relevant Lender Party to be considered a Defaulting Lender pursuant to
such clause) will be made by the Administrative Agent in its sole discretion
acting in good faith.


 


“Designated Litigation Liabilities” means all
criminal and civil judgments rendered against, and all civil and criminal
settlements entered into by, the Borrower and any of its Subsidiaries in
connection with the antitrust investigations and related matters described
under the heading “Antitrust Investigation and Related Matters” set forth in
the Borrower’s Form 10-K filed with the SEC in respect of the Borrower’s
fiscal year ended December 31, 2008 and all costs and expenses related
thereto.


 


“DIP Budget” means, at any time, collectively
(a) the forecast delivered pursuant to Section 3.01(a)(ix) detailing
the Borrower’s anticipated weekly cash receipts and disbursements and
anticipated weekly cash flow projections, on a Consolidated basis for the
Borrower and its Subsidiaries, and setting forth the anticipated aggregate
maximum amount of utilization of the Commitments for each such week, together
with a written set of assumptions supporting such projections, for the thirteen
week period commencing with the week in which the Petition Date occurs and (b) the
most recent supplement to such forecast, and all intervening supplements to
such forecast, delivered in accordance with Section 5.03(f).


 


“DIP Financing Orders” means the Interim
Order and the Final Order.


 


“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 


 


9

















 


may be, or such other office
of such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.


 


“EBITDA” means, for any Person for any
period, (a) net income (or net loss) plus (b) without
duplication, to the extent included in the calculation of net income of such
Person for such period in accordance with GAAP, the sum of (i) Interest
Expense, (ii) income tax expense, (iii) depreciation expense, (iv) amortization
expense, (v) non-cash charges related to restructuring, asset impairment
or other extraordinary items and costs and expenses and legal and other advisor
fees and expenses incurred in connection with the Cases and any related plan of
reorganization, and fees and expenses incurred in connection with European
Receivables Financing, (vi) charges for legal and other expenses in
connection with Designated Litigation Liabilities in an aggregate amount not to
exceed $40,000,000, (vii) the amount of all Designated Litigation
Liabilities incurred for such period in excess of $1,000,000 in the aggregate
to the extent that the same were deducted in arriving at net income (or net
loss) for such period, (viii) any losses from sales of assets other than
in the ordinary course of business, (ix) the amount of all fees, expenses
and premiums incurred in connection with obtaining and attempting to obtain
debtor-in-possession financing and receivables financing expense, including but
not limited to fees, expenses and premiums incurred in connection with the
execution and delivery of this Agreement and (x) non-cash expenses in
respect of employees’ compensation payable in Equity Interests, minus (c) without duplication, (i) cash payments
for non-cash restructuring charges reserved in a prior period to the extent a
charge or expense for such payments was included in EBITDA for a prior period
pursuant to clause (b) above and (ii) to the extent included in the
calculation of net income of such Person for such period in accordance with
GAAP, any gains from sales of assets other than in the ordinary course of
business and any other extraordinary gains. 
For the purposes of calculating EBITDA for any period, if during such
period the Borrower or any of its Subsidiaries shall have made an acquisition,
EBITDA for such period shall be calculated after giving pro forma effect
thereto as if such acquisition occurred on the first day of such period.


 


“Effective Date” means the date on which this
Agreement became effective pursuant to Section 3.01.


 


“Eligible Assignee” means with respect to any
Facility (other than the Letter of Credit Facility), (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 (x) the Administrative
Agent and (y) in the case of an assignment of a Non-rollup Revolving
Credit Commitment, each Issuing Bank; 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 Loan Parties 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 Loan Party 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 and Permitted Liens; or


 


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


 


10

















 


(c)           it is either (i) not
located on property owned by a Loan Party 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 Loan Party (it being
understood that the Borrower 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 Loan Party has validly assigned its access rights to such
Inventory and property to the Administrative Agent; or


 


(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 Loan Parties 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; or


 


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


 


(g)           it is in transit
(unless it is in transit from one location within the United States of a Loan
Party to another location of a Loan Party 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 Loan Party, 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 Loan Parties 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)          as to which the
Administrative Agent shall not have completed its due diligence investigation
in scope, and with results, satisfactory to the Administrative Agent.


 


“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 


 


11

















 


fide
amounts due to a Loan Party from, the purchaser of goods or services, in each
case originated in the ordinary course of business of such Loan Party and (ii) is
not ineligible for inclusion in the calculation of the Borrowing Base pursuant
to any of clauses (a) through (v) 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 Loan Party 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 Loan Party 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 Loan Party 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 Loan
Party; 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 Loan Parties 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 VI 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


 


12

















 


(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 Loan Party 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 Agent, in
its sole discretion; or


 


(m)  any Loan Party, 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 Loan Parties (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 Loan Parties (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 Loan Parties (taken as a whole) at such time, but in each
case only to the extent of such excess; or


 


(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 


 


13

















 


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); 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


 


(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.


 


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.


 


14
















 


“Environmental Action” means any action,
suit, written demand, demand letter, claim, notice of noncompliance or
violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to any
Environmental Law, any Environmental Permit, any Hazardous Material, or arising
from alleged injury or threat to public or employee health or safety, as such
relates to exposure to Hazardous Material, or to the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
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 judicial or agency
interpretation, relating to pollution or protection of the environment, public
or employee health or 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.


 


“Equipment” has the meaning specified in the
UCC.


 


“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.


 


“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),
(c), (m) or (o) of the Internal Revenue Code.


 


“ERISA Event” means (a) (i) the
occurrence of a reportable event, within the meaning of Section 4043 of
ERISA, with respect to any ERISA Plan unless the 30-day notice requirement with
respect to such event has been waived by the PBGC or (ii) the requirements
of subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of an ERISA Plan, and
an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of
ERISA is reasonably expected to occur with respect to such ERISA Plan within
the following 30 days; (b) the application 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 


 


15

















 


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 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 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.


 


“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 Borrower and the Administrative Agent.


 


“Eurodollar Rate” means, for any Interest
Period with respect to a Eurodollar Rate Advance, a rate per annum equal to the
higher of (a) 3% per annum and (b) 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,


 


“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 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 Business 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 and such other
commercially available alternative 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 Citibank and with a term equivalent to such
Interest Period would be offered by Citibank’s London Branch to major banks in
the London interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period.


 


“Eurodollar Rate Advance” means an Advance
that bears interest as provided in Section 2.07(a)(ii).


 


16

















 


“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.


 


“European Receivables Financing” means (a) (i) the
non-recourse factoring agreements in effect as of the date hereof between
Mediofactoring Spa and the Foreign Subsidiaries named therein, and (ii) the
non-recourse factoring agreement to be entered into after the date hereof
between Mediofactoring Spa and Chemtura Sales France SA, each as referred to in
the letter agreement dated February 25, 2009 between the Borrower and
Mediofactoring Spa and in effect as of the date hereof (as such agreements may
hereafter be amended, restated, supplemented or otherwise modified (or in the
case of the agreement described in clause (a)(ii), entered into), so long as
the terms thereof (other than Permitted Modifications) are not less favorable
to the Borrower, the Subsidiaries and the Lenders than as in effect on the date
hereof (or, in the case of the agreement described in clause (a)(ii), than the
agreements described in clause (a)(i)), and (b) any other receivables
factoring or any receivables securitization financing for Foreign Subsidiaries,
in each case (covered by this clause (b)) on terms acceptable to the Required
Lenders.


 


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


 


“Existing Credit Agreement” means the Amended
and Restated Credit Agreement, dated as of July 1, 2005 and amended and
restated as of July 31, 2007, among the Borrower, Citibank, as
administrative agent and the other lenders signatory thereto from time to time.


 


“Existing Receivables Facility” means the
sale and securitization of certain Accounts of the Borrower and certain of its
Subsidiaries pursuant to the (a) Receivables Sale Agreement, dated as of January 23,
2009, among the Borrower, Great Lakes Chemical Corporation, GLCC Laurel, LLC,
Biolab, Inc. and Chemtura Receivables LLC, and (b) Receivables
Purchase Agreement, dated as January 23, 2009, among Chemtura Receivables
LLC, the Borrower, Citicorp USA, Inc., Citigroup Global Markets Inc., The
Royal Bank of Scotland PLC and the other purchasers party thereto from time to
time.


 


“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 equipment and fixed
assets (and payments in lieu thereof).


 


“Facility” means the Term Facility, the
Rollup Revolving Credit Facility, the Non-rollup Revolving Credit Facility or
the Letter of Credit Sublimit.


 


“Federal Funds Rate” means, for any period, a
fluctuating interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average
of the quotations for such day for such transactions received 


 


17

















 


by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.


 


“Fee Letter” means the fee letter dated March 5,
2009 between the Borrower and the Lead Arranger.


 


“Final Order” has the meaning specified in Section 3.02(b)(i)(C).


 


“Final Term Advance Date” means the date on
which the Term Advances are made pursuant to Section 2.01(a)(ii).


 


“First Day Orders” means all orders entered
by the Bankruptcy Court on, or within five days of, the Petition Date or based
on motions filed on or about the Petition Date.


 


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


 


“Fitch” means Fitch Ratings Ltd.


 


“Flow-Through Entity” has the meaning
specified in Section 9.01(e)(iii).


 


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


 


“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 business.


 


“GAAP” has the meaning specified in Section 1.03.


 


“General Intangibles” has the meaning
specified in the UCC.


 


“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).


 


“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 


 


18

















 


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.


 


“Guaranteed Obligations” has the meaning
specified in Section 8.01.


 


“Guarantor” has the meaning specified in the
recital of parties to this Agreement, but in any event shall exclude Non-Filing
Domestic Subsidiaries.


 


“Guaranty” has the meaning specified in Section 8.01.


 


“Guaranty Supplement” has the meaning
specified in Section 8.05.


 


“Hazardous Materials” means (a) petroleum
or petroleum products, by-products or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated biphenyls, 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.


 


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


 


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


 


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


 


“Information” has the meaning specified in Section 10.09.


 


“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; 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.


 


19

















 


“Initial Pledged Debt” means Debt in
existence on the Petition Date which is evidenced by a promissory note payable
to a Loan Party by a third party with a principal face amount in excess of
$100,000 as listed opposite such Loan Party’s name on and as otherwise
described in Schedule V hereto.


 


“Initial Pledged Equity” means the shares of
stock and other Equity Interests in any Subsidiary of a Loan Party as set forth
opposite each Loan Party’s name on and as otherwise described in
Schedule IV hereto.


 


“Intellectual Property” has the meaning
specified in Section 9.01(g).


 


“Intellectual Property Security Agreement”
has the meaning specified in Section 3.01(a)(vii).


 


“Interest Expense” means the sum of (a) interest
on, and amortization of debt discount in respect of, Debt of the Borrower and
its Subsidiaries and (b) amortization of discount of receivables or other
assets of the Borrower and its Subsidiaries that are subject to factoring or
securitization programs.  For the
purposes of calculating Interest Expense for any period, if during such period
the Borrower or any of its Subsidiaries shall have made an acquisition,
Interest Expense for such period shall be calculated after giving pro forma
effect thereto as if such acquisition occurred on the first day of such period.


 


“Interest Period” means, for each Eurodollar
Rate Advance comprising part of the same Borrowing, the period commencing on
the date of such Eurodollar Rate Advance or the date of the Conversion of any
Base Rate Advance into such Eurodollar Rate Advance, and ending on the last day
of the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below.  The duration of each such Interest Period
shall be one, two or three months, as the Borrower may, upon notice received by
the Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:


 


(a)           the Borrower may not select any
Interest Period with respect to any Eurodollar Rate Advance under a Facility
that ends after the Stated Maturity Date;


 


(b)           Interest Periods
commencing on the same date for Eurodollar Rate Advances comprising part of the
same Borrowing shall be of the same duration;


 


(c)           whenever the last
day of any Interest Period would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and


 


(d)           whenever the first
day of any Interest Period occurs on a day of an initial calendar month for
which there is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month.


 


20

















 


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


 


“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 Loan Party 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 Loan Party
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.


 


“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).


 


“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).


 


“Issuing Bank” means each Initial Issuing
Bank and any other Non-rollup 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.


 


“L/C Cash Collateral Account” means the account established by
the Borrower 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 Non-rollup L/C
Obligations or Rollup L/C Obligations.


 


21

















 


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


 


“Lender Insolvency Event” means that (a) a
Lender Party or its Parent Company is insolvent, or is generally unable to pay
its debts as they become due, or admits in writing its inability to pay its
debts as they become due, or makes a general assignment for the benefit of its
creditors, or (b) such Lender Party or its Parent Company is the subject
of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding,
or a receiver, trustee, conservator, intervenor or sequestrator or the like has
been appointed for such Lender Party or its Parent Company, or such Lender
Party or its Parent Company has taken any action in furtherance of or
indicating its consent to or acquiescence in any such proceeding or
appointment.


 


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


 


“Lender Party Appointment Period” has the
meaning specified in Section 7.06(a).


 


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


 


“Letter of Credit” means a Non-rollup Letter
of Credit or Rollup Letter of Credit.


 


“Letter of Credit Advance” means a Non-rollup
Letter of Credit Advance or Rollup Letter of Credit Advance.


 


“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 (a) the dollar amount 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 2.05.


 


“Letter of Credit Expiration Date” means the
day that is 10 Business Days prior to the Stated Maturity Date, or such later
date as the applicable Issuing Bank may, in its sole discretion, specify.


 


“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) $50,000,000 as such
amount may be reduced from time to time pursuant to Section 2.05.  The Letter of Credit Sublimit is part of, and
not in addition to, the Non-rollup Revolving Credit Commitments and the Rollup
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.


 


22

















 


“Loan Documents” means (i) this
Agreement, (ii) the Notes, if any, (iii) the DIP Financing Orders, (iv) the
Collateral Documents, (v) the Fee Letter, (vi) solely for purposes of
the Collateral Documents, each Secured Hedge Agreement and Secured Cash
Management Agreement and (vii) 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
Borrower and the Guarantors.


 


“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).


 


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


 


“Material Adverse Change” means any event or
occurrence which has resulted in or would reasonably be expected to result in
any material adverse change in the business, condition (financial or
otherwise), operations, performance, properties, contingent liabilities,
material agreements or prospects of the Borrower and each Guarantor, individually,
and the Borrower, the Guarantors and their respective Subsidiaries, taken as a
whole.


 


“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 Borrower and each Guarantor, individually, and
the Borrower, the Guarantors and their respective Subsidiaries, taken as a
whole, (b) the rights and remedies of the Administrative Agent or any
Lender Party under any Loan Document or (c) the ability of any Loan Party
to perform its Obligations under any Loan Document to which it is or is to be a
party.


 


“Material Contract” means, with respect to
any Person, each contract evidencing such Person’s Debt for borrowed money in
an aggregate principal amount exceeding $10,000,000.


 


“Material Real Property” means any real
property owned or leased by any Loan Party reasonably determined by the
Administrative Agent to be material.


 


“Material Subsidiary” means, on any date of
determination, (a) any Subsidiary of the Borrower that, on such date, has (i) assets
with a fair value equal to or in excess of $3,000,000, or (ii) annual net
income in excess of $3,000,000 or (b) any other Subsidiary designated by
the Borrower as a Material Subsidiary; provided that in no event shall
all Subsidiaries of the Borrower that are not Material Subsidiaries have (A) assets
with an aggregate book value in excess of $10,000,000, (B) aggregate
annual net income in excess of $10,000,000 or (C) liabilities in an
aggregate amount in excess of $10,000,000.


 


“Maturity Date” means the earlier of (a) the
Stated Maturity Date and (b) the effective date of a Reorganization Plan.


 


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


 


23
















 


“Mortgages” means, collectively, the deeds of
trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust
executed by the Loan Parties in favor of the Administrative Agent in form and
substance reasonably satisfactory to the Administrative Agent.


 


“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 other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event such
plan has been or were to be terminated.


 


“Net Cash Proceeds” means, (a) with
respect to any sale, lease, transfer or other disposition of any asset of the
Borrower or any Guarantor consummated after the Petition Date (other than any
sale, lease, transfer or other disposition of assets pursuant to Section 5.02(h)(i),
(ii), (iii), (v), (vi), (vii), (viii) or (ix) or any single sale,
lease, transfer or other disposition (or series of related sales, leases,
transfers 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, lease, transfer 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,
lease, transfer or other disposition thereof, (B) the reasonable and
customary out-of-pocket costs, fees, commissions, premiums and expenses
incurred by the 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, lease, transfer of 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 the
Borrower or any of its Subsidiaries in connection with such sale, lease,
transfer 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 Stated Maturity Date); and


 


(b) with respect to any Extraordinary Receipt
of the Borrower or any Guarantor after the Petition Date that is not otherwise
included in clauses (a) above, the excess, if any, of (i) the sum of
the cash and Cash Equivalents received in connection therewith in respect of an
event that occurred after the Petition Date 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 the Borrower or its Subsidiaries, and (D) federal, state,
provincial, foreign and local taxes reasonably estimated (on a Consolidated 


 


24

















 


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 Borrower and the Guarantors 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 Supermajority 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 Supermajority Lenders or (other than in the case of any
consent, waiver or amendment that solely requires the consent of the
Supermajority Lenders) the Required Lenders, any Lender whose agreement is
necessary for the effectiveness of such consent, waiver or amendment but who
does not so agree.


 


“Non-Defaulting Lender” means, at any time, a
Lender Party that is not a Defaulting Lender or a Potential Defaulting Lender.


 


“Non-Filing Domestic Subsidiary” means
Chemtura Receivables LLC and each other direct or indirect Subsidiary of the
Borrower that is organized under the laws of the United States or any state or
other political subdivision thereof that is not a guarantor under the Pre-Petition
Document and is not a party to a Case. 
As of the Effective Date, except as listed on Schedule VIII, Chemtura
Receivables LLC is the only Non-Filing Domestic Subsidiary.


 


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


 


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


 


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


 


“Non-rollup Letter of Credit” means any
letter of credit issued under Section 2.03.


 


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


 


“Non-rollup Reduction Amount” has the meaning
specified in Section 2.06(b)(iv).


 


“Non-rollup Revolving Credit Advance” has the
meaning specified in Section 2.01(b).


 


“Non-rollup 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 


 


25

















 


the caption “Non-rollup
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 “Non-rollup Revolving Credit Commitment”, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.  The aggregate principal amount of the
Non-rollup Revolving Credit Commitments shall be (a) $25,000,000 as of the
Effective Date and (b) increased to an amount not in excess of $63,532,482
as of the Final Term Advance Date in accordance with Section 2.05(b).


 


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


 


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


 


“Non-rollup Revolving Credit Note” means a
promissory note of the Borrower payable to the order of any Non-rollup
Revolving Credit Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from the
Non-rollup Revolving Credit Advances made by such Lender.


 


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


 


“Note” means a Term Note, a Rollup Revolving
Credit Note or a Non-rollup 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 2.12(b).


 


“Outstanding Amount” means (a) with
respect to Advances on any date, the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
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.


 


26

















 


“Outstanding Financing Amount” means, at any
time, with respect to any European Receivables Financing, the aggregate cash
amount invested by investors that are not Affiliates of the Borrower and paid
to the Foreign Subsidiaries of the Borrower pursuant to such European
Receivables Financing, as reduced by the aggregate amounts received by such
investors from the collection or payment of receivables in connection therewith
and applied to reduce such invested amount.


 


“Parent Company” means, with respect to a
Lender Party, the bank holding company (as defined in Federal Reserve Board
Regulation Y), if any, of such Lender Party, and/or any Person owning,
beneficially or of record, directly or indirectly, a majority of the shares of
such Lender Party.


 


“Patents” has the meaning specified in Section 9.01(g)(i).


 


“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.


 


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


 


“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.


 


“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(b) 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 (i) are not overdue for a period of more than 30 days and
(ii) 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 (or the payment of money not constituting a Default under Section 9.01(g) or
securing appeal or other surety bonds related to such judgments; (e) any
banker’s Lien or right of offset on moneys of the Borrower 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; (f) interest
of lessees in property owned by the Borrower 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 Borrower or any of its Subsidiaries;
(g) 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; (h) Liens arising from or related to precautionary UCC or like
personal property security financing statements regarding operating leases (if
any) entered into by the Borrower and its Subsidiaries in the ordinary course
of business; (i) 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 Borrower 


 


27

















 


or any of its Subsidiaries,
and (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.


 


“Permitted Modifications” means the
modifications to the non-recourse factoring agreements in effect as of the date
hereof between Mediofactoring Spa and the Foreign Subsidiaries named therein,
as referred to in the letter agreement dated February 25, 2009 between the
Borrower and Mediofactoring Spa, as in effect as of the date hereof (a) to
implement full “with notification” provisions, (b) to reduce to 60 days
the maximum payment term for receivables to which the factor’s risk assumption
applies under section 6.1 of the general conditions to such factoring
agreements, (c) to increase the interest spread to a rate not in excess of
4.0% per annum and (d) to impose additional factoring fees of not more
than 1.0% of the amount of factored invoices.


 


“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.


 


“Petition Date” has the meaning specified in
Preliminary Statement (1).


 


“Pledged Collateral” means, collectively, (a) the
Initial Pledged Equity, (b) the Initial Pledged Debt, (c) Pledged
Equity which is Equity Interests in any domestic Subsidiary of a Loan Party
(other than the Initial Pledged Equity) acquired after the Petition Date, (d) Pledged
Debt (other than the Initial Pledged Debt) which has a face principal amount in
excess of $100,000 and which arises after the Petition Date and (e) any
Pledged Investment Property (other than an Equity Interest), subject in the
case of each of the foregoing to the limitations and exclusions set forth in
this Agreement.


 


“Pledged Debt” has the meaning specified in Section 9.01(e)(iv).


 


“Pledged Equity” has the meaning specified in
Section 9.01(e)(iii).


 


“Pledged Investment Property” has the meaning
specified in Section 9.01(e)(v).


 


“Potential Defaulting Lender” means, at any
time, a Lender Party directly or indirectly Controlled by a Person as to which
an event of the kind referred to in the definition of “Lender Insolvency Event”
has occurred and is continuing in respect of such Person.  Any determination that a Lender Party is a
Potential Defaulting Lender (to the extent the preceding sentence contemplates
such a determination in order for the relevant Lender Party to be considered a
Potential Defaulting Lender) will be made by the Administrative Agent in its
sole discretion acting in good faith.


 


“Pre-Petition Agent” means Citibank in its
capacity as agent under the Pre-Petition Security Agreement.


 


“Pre-Petition Collateral” means the “Collateral”
as defined in the Pre-Petition Security Agreement.


 


“Pre-Petition Debt” means Debt of the Loan
Parties outstanding and unpaid on the Effective Date.


 


28

















 


“Pre-Petition Document” means the “Credit
Agreement” as defined in the Pre-Petition Security Agreement.


 


“Pre-Petition Secured Creditors” means the
Persons from time to time holding Pre-Petition Secured Indebtedness.


 


“Pre-Petition Secured Indebtedness” means all
indebtedness and other Obligations of the Borrower and the Guarantors that are
secured pursuant to the Pre-Petition Security Agreement.


 


“Pre-Petition Security Agreement” means the
Second Amended and Restated Pledge and Security Agreement dated as of December 30,
2008 from the Borrower and the other grantors referred to therein to Citibank,
as agent.


 


“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 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 2.05 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 2.05
or 6.01, the amount of such Facility or Facilities as in effect immediately
prior to such termination).


 


“Professional Fees” means the fees and
expenses of any and all professional Persons, retained by the Borrower or the
Committee.


 


“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.


 


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


 


“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, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the control
of the issuer or (b) is redeemable at the option of the holder.


 


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


 


29

















 


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


 


“Related Contracts” has the meaning specified
in Section 9.01(c).


 


“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 Loan Party’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.


 


“Reorganization Plan” means a chapter 11 plan
of reorganization in any of the Cases of the Borrower or a Guarantor.


 


“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, (b) the
aggregate Available Amount of all Letters of Credit outstanding at such time, (c) the
aggregate Unused Term Commitments at such time, (d) the aggregate Unused
Non-rollup Revolving Credit Commitments at such time and (e) the aggregate
Unused Rollup 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, (iii) the Unused Term Commitment of such Lender
at such time, (iv) the Unused Non-rollup Revolving Credit Commitment of
such Lender at such time and (v) the Unused Rollup Revolving Credit
Commitment of such Lender at such time. 
For purposes of this definition, (A) the aggregate principal amount
of Non-rollup Letter of Credit Advances owing to the Issuing Banks and the
Available Amount of each Non-rollup Letter of Credit shall be considered to be
owed to the Lenders ratably in accordance with their respective Non-rollup
Revolving Credit Commitments and (B) the aggregate principal amount of
Rollup Letter of Credit Advances owing to the Issuing Banks and the Available
Amount of each Rollup Letter of Credit shall be considered to be owed to the
Lenders ratably in accordance with their respective Rollup Revolving Credit
Commitments.


 


“Reserves” means, at any time of determination, (a) Bank
Product Reserves, (b) Rent Reserves, (c) the Carve-Out and (d) such
other reserves as determined from time to time in the 


 


30

















 


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.


 


“Restricting Information” has the meaning
specified in Section 10.10.


 


“Rollup Honor Date” has the meaning specified
in Section 2.21(c).


 


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


 


“Rollup Letter of Credit” means any letter of
credit issued under Section 2.21.


 


“Rollup Letter of Credit Advance” means an
advance made by any Issuing Bank or Rollup Revolving Credit Lender pursuant to Section 2.21(c).


 


“Rollup Reduction Amount” has the meaning
specified in Section 2.06(b)(v).


 


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


 


“Rollup 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 “Rollup
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 “Rollup Revolving Credit Commitment”, in each case as such amount
may be reduced at or prior to such time pursuant to Section 2.05.  As of the Effective Date, the aggregate
principal amount of the Rollup Revolving Credit Commitments is $86,467,518.


 


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


 


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


 


“Rollup Revolving Credit Note” means a
promissory note of the Borrower payable to the order of any Rollup Revolving
Credit Lender, in substantially the form of Exhibit A-3 hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from the
Rollup Revolving Credit Advances made by such Lender.


 


“Rollup Unreimbursed Amount” has the meaning
specified in Section 2.21(c)(i).


 


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


 


31

















 


“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 after the Petition
Date, in each case solely to the extent that the obligations in respect of such
Cash Management Agreement are not cash collateralized or otherwise secured
(other than pursuant to the Collateral Documents); provided that the
aggregate principal or notional amount of Obligations (in terms of Agreement
Value in the case of Secured Hedge Agreements) under all Secured Cash
Management Agreements and Secured Hedge Agreements shall not exceed $10,000,000
at any time outstanding.


 


“Secured Hedge Agreement” means any Hedge
Agreement permitted under Article V that is entered into by and between
any Loan Party and any Hedge Bank after the Petition Date, in each case solely
to the extent that the obligations in respect of such Hedge Agreement are not
cash collateralized or otherwise secured (other than pursuant to the Collateral
Documents); provided that the aggregate principal or notional amount of
Obligations (in terms of Agreement Value in the case of Secured Hedge
Agreements) under all Secured Cash Management Agreements and Secured Hedge
Agreements shall not exceed $10,000,000 at any time outstanding.


 


“Secured Obligation” has the meaning
specified in Section 9.01.


 


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


 


“Security Collateral” has the meaning
specified in Section 9.01(e).


 


“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 no Person
other than the Loan Parties and the ERISA Affiliates 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.


 


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


 


“Specified Interest Accrual Period” means any
period of time commencing (whether before or after the Effective Date) at such
time that the aggregate Outstanding Financing Amount under all European
Receivables Financings plus, if any other financing for Foreign Subsidiaries on
terms acceptable to the Required Lenders is in effect, the aggregate principal
amount thereof, shall be less than 40,000,000 Euros and ending at such time
thereafter that either (a) the aggregate Outstanding Financing Amount
under all European Receivables Financings (then in effect) plus the aggregate
principal amount of such other financing shall equal or exceed 40,000,000 Euros
or (b) the Borrower shall have implemented European Receivables Financings
and/or alternative arrangements with respect to financing the operations of the
Subsidiaries of the Borrower in Europe that are, in the aggregate, reasonably
acceptable to the Administrative Agent or the Required Lenders.


 


“Stated Maturity Date” means the date that is
364 days following the
Effective Date.


 


“Subagent” has the meaning specified in Section 9.06(b).


 


32

















 


“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 Borrower.


 


“Superpriority Claim” means a claim against
the Borrower or a Guarantor in any of the Cases that is a superpriority
administrative expense claim having priority over any or all administrative
expenses and other claims of the kind specified in, or otherwise arising or
ordered under, any sections of the Bankruptcy Code (including, without
limitation, sections 105, 326, 328, 330, 331, 503(b), 507(a), 507(b), 546(c) and/or
726 thereof), whether or not such claim or expenses may become secured by a
judgment Lien or other non-consensual Lien, levy or attachment.


 


“Supermajority Lenders” means, at any time,
Lenders owed or holding at least 662/3% in interest of the sum of (a) the aggregate principal amount of
the Advances outstanding at such time, (b) the aggregate Available Amount
of all Letters of Credit outstanding at such time, (c) the aggregate
Unused Term Commitments at such time, (d) the aggregate Unused Non-rollup
Revolving Credit Commitments at such time and (e) the aggregate Unused
Rollup 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, (iii) the Unused Term Commitment of such Lender at such time, (iv) the
Unused Non-rollup Revolving Credit Commitment of such Lender at such time and (iv) the
Unused Rollup Revolving Credit Commitment of such Lender at such time.  For purposes of this definition, (A) the
aggregate principal amount of Non-rollup Letter of Credit Advances owing to the
Issuing Banks and the Available Amount of each Non-rollup Letter of Credit
shall be considered to be owed to the Lenders ratably in accordance with their
respective Non-rollup Revolving Credit Commitments and (B) the aggregate
principal amount of Rollup Letter of Credit Advances owing to the Issuing Banks
and the Available Amount of each Rollup Letter of Credit shall be considered to
be owed to the Lenders ratably in accordance with their respective Rollup
Revolving Credit Commitments.


 


“Surviving Debt” means Debt of each Loan
Party and its Subsidiaries outstanding immediately before and after giving
effect to the Initial Extension of Credit.


 


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


 


“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.


 


33

















 


“Taxes” has the meaning specified in Section 2.12(a).


 


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


 


“Term Commitment” means, with respect to any
Term Lender at any time, the amount set forth opposite such Lender’s name on
Schedule I hereto under the caption “Term 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 “Term Commitment”, in each case as such amount may be reduced at
or prior to such time pursuant to Section 2.05.  Before giving effect to any Term Advances,
the aggregate principal amount of the Term Commitments shall be $250,000,000 as
of the Effective Date.


 


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


 


“Term Lender” means any Lender that has a
Term Commitment.


 


“Term Note” means a promissory note of the
Borrower payable to the order of any Term Lender, in substantially the form of Exhibit A-1
hereto, evidencing the indebtedness of the Borrower to such Lender resulting
from the Term Advance made by such Lender.


 


“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 2.05 or 6.01.


 


“Testing Period” means for any calendar week
(the “subject week”) with respect to which compliance with Section 5.04(c) is
being calculated, the period commencing with the first day of the first
calendar week of the DIP Budget and ending with the last day of such subject
week.


 


“Trade Secrets” has the meaning specified in Section 9.01(g)(v).


 


“Trademarks” has the meaning specified in Section 9.01(g)(ii).


 


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


 


“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” means a Non-rollup
Unreimbursed Amount or Rollup Unreimbursed Amount.


 


“Unrolled Pre-Petition Secured Indebtedness”
means Pre-Petition Secured Indebtedness that shall not be refinanced with the
proceeds of the Rollup Revolving Credit Advances pursuant to the Final Order.


 


“Unused Non-rollup Revolving Credit Commitment”
means, with respect to any Lender at any time, (a) such Lender’s
Non-rollup Revolving Credit Commitment at such time minus  


 


34

















 


(b) the sum of (i) the
aggregate principal amount of all Non-rollup Revolving Credit Advances and
Non-rollup Letter of Credit Advances made by such Lender (in its capacity as a
Lender) and outstanding at such time, plus (ii) such Lender’s Pro
Rata Share of (A) the aggregate Available Amount of all Non-rollup Letters
of Credit outstanding at such time and (B) the aggregate principal amount
of all Non-rollup Letter of Credit Advances made by the Issuing Banks pursuant
to Section 2.03(c) and outstanding at such time.


 


“Unused Rollup Revolving Credit Commitment”
means, with respect to any Lender at any time, (a) such Lender’s Rollup
Revolving Credit Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Rollup Revolving Credit Advances and Rollup
Letter of Credit Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time, plus (ii) such Lender’s Pro Rata Share of
(A) the aggregate Available Amount of all Rollup Letters of Credit
outstanding at such time and (B) the aggregate principal amount of all
Rollup Letter of Credit Advances made by the Issuing Banks pursuant to Section 2.21(c) and
outstanding at such time.


 


“Unused Term Commitment” means, with respect
to any Term Lender at any time (a) such Lender’s aggregate Term
Commitments at such time minus (b) the aggregate principal amount
of all Term Advances made by such Lender (in its capacity as a Lender).


 


“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.


 


“Withdrawal Liability” has the meaning
specified in Part I 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.  (a) 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 Borrower (a “Borrowing Base Change Notice”), or immediately, without
prior written notice, during the continuance of an Event of Default.


 


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(b)                                 Nothing in this Agreement or
any other Loan Document (other than the DIP Financing Orders) shall be
construed as limiting the amount of Pre-Petition Secured Indebtedness or shall
prejudice the right of the Administrative Agent or any Lender Party to contest
such amount.


 


ARTICLE II



AMOUNTS AND TERMS OF THE ADVANCES

AND THE LETTERS OF CREDIT


 


Section 2.01  The Advances.  (a)  The Term Advances.  Each Term Lender severally agrees, on the
terms and conditions hereinafter set forth, to (i) make a single advance
to the Borrower (together with any outstanding Non-rollup Revolving Credit
Advance converted pursuant to the second proviso to this sentence, “Term
Advances”) on the Effective Date in an amount not to exceed the lesser of (x) such
Lender’s Pro Rata Share of $165,000,000, (y) such Lenders’ Term Commitment
at such time and (z) such Lender’s Pro Rata Share of Availability at such
time, and (ii) make a single advance to the Borrower on any Business Day
within two Business Days after the entry of the Final Order, in an amount not
to exceed the lesser of (x) such Lender’s Pro Rata Share of the amount of (1) $250,000,000
minus (2) the aggregate Term
Advances made on the Effective Date, (y) such Lender’s Term Commitment at
such time and (z) such 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 (without double-counting Non-rollup Revolving Credit
Advances that are to be converted into Term Advances); provided  further
that to the extent a Lender holds both an Unused Term Commitment and any
outstanding Non-rollup Revolving Credit Advance immediately prior to the time
when the Term Advance is required to be made under Section 2.01(a)(ii), (A) on
the Final Term Advance Date, such outstanding Non-rollup Revolving Credit
Advance shall be automatically converted into a Term Advance of such Lender in
the same Type and in the case of an Eurodollar Rate Advance, with the same
continued Interest Period (and the Borrower shall be deemed to have requested
such Term Advance on the Final Term Advance Date in such Type and with such
Interest Period) and (B) the amount so converted shall be deemed to
constitute for all purposes a Term Advance (such that the amount of the single
advance that such Term Lender is obligated to make on the Final Term Advance
Date shall be reduced by such amount). 
Amounts borrowed under this Section 2.01(a) and repaid or
prepaid may not be reborrowed.


 


(b)                                 The Revolving Credit Advances.  (i) Each Non-rollup Revolving Credit
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each, a “Non-rollup Revolving Credit Advance”) to the
Borrower 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 Non-rollup Revolving Credit Lender’s
Non-rollup Revolving Credit Commitment at such time and (B) such
Non-rollup 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.


 


(ii) Each Rollup Revolving Credit Lender severally agrees, on the
terms and conditions hereinafter set forth, to make advances (each, a “Rollup
Revolving Credit Advance”) to the Borrower from time to time on any
Business Day during the period from the Final Term Advance Date until the
Termination Date in an amount for each such Advance not to exceed the lesser of
(A) such Rollup Revolver Credit Lender’s Rollup Revolving Credit
Commitment at such time and (B) such Rollup 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.


 


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(c)                                  Borrowings.  Each Borrowing shall be in a principal amount
of $5,000,000 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
Non-rollup Revolving Credit Commitment in effect from time to time, the
Borrower may borrow under Section 2.01(b)(i), prepay pursuant to Section 2.06,
and reborrow under Section 2.01(b). 
Within the limits of each Lender’s Unused Rollup Revolving Credit
Commitment in effect from time to time, the Borrower may borrow under Section 2.01(b)(ii),
prepay pursuant to Section 2.06, and reborrow under Section 2.01(b).


 


Section 2.02  Making the Advances.  (a)   Except as otherwise
provided in Section 2.02(b), 2.03 or 2.21, each Borrowing shall be made on
notice, given not later than 11:00 A.M. (New York City time) (or
(5:30 P.M. (New York City time) in the case of any Base Rate Advance in
the Initial Extension of Credit)) 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
Borrower 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 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 Account, 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 Borrower by
crediting the Borrower’s Account or such other account as the Borrower shall
request; provided,  however,
that, in the case of Non-rollup 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.


 


(b)                                 Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower 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 $5,000,000 or if the obligation of the
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.09
or 2.10, (ii) the Non-rollup Revolving Credit Advances may not be
outstanding as part of more than 15 separate Borrowings and (iii) the
Rollup 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 Borrower.  In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower 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 


 


37

















 


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 Borrower 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 Borrower 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
Borrower until the date such amount is repaid or paid to the Administrative
Agent, at (i) in the case of the Borrower, the interest rate applicable at
such time under Section 2.07 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.


 


Section 2.03  Issuance of and Drawings and Reimbursement
Under Non-rollup Letters of Credit.


 


(a)  The Letter of Credit
Commitment.


 


(i)                                     Subject to the
terms and conditions set forth herein, (A) each Issuing Bank agrees, in
reliance upon the agreements of the other Non-rollup 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 Non-rollup Letters of Credit for the account of the
Borrower or any of its Subsidiaries, and to amend Non-rollup Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to
honor drafts under the Non-rollup Letters of Credit; and (B) the
Non-rollup Revolving Credit Lenders severally agree to participate in
Non-rollup Letters of Credit issued for the account of the Borrower or any of
its Subsidiaries; provided that the Issuing Banks shall not be obligated
to issue any Non-rollup Letter of Credit, and no Non-rollup Revolving Credit
Lender shall be obligated to participate in any Non-rollup 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 Non-rollup
Letter of Credit would exceed the aggregate Unused Non-rollup Revolving Credit
Commitments or (z) the Available Amount of such Non-rollup Letter of
Credit would exceed the Availability at such time.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Non-rollup
Letters of Credit shall be fully revolving, and accordingly the Borrower may,
during the foregoing period, obtain Non-rollup Letters of Credit to replace
Non-rollup 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 Non-rollup 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 Non-rollup 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 


 


38

















 


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 Non-rollup 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 material to it; (B) the expiry
date of such requested Non-rollup Letter of Credit would occur after the Letter
of Credit Expiration Date, unless all the Non-rollup Revolving Credit Lenders
have approved such expiry date; (C) the issuance of such Non-rollup Letter
of Credit would violate one or more policies of such Issuing Bank; or (D) such
Non-rollup 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 Non-rollup Letter of Credit if (A) such
Issuing Bank would have no obligation at such time to issue such Non-rollup
Letter of Credit in its amended form under the terms hereof, or (B) the
beneficiary of such Non-rollup Letter of Credit does not accept the proposed
amendment to such Non-rollup Letter of Credit.


 


(iv)                              Non-rollup
Letters of Credit may be issued for the account of a Subsidiary that is not a
Loan Party so long as such Subsidiary is primarily liable for its reimbursement
obligations thereunder pursuant to a separate reimbursement agreement entered
into between such Subsidiary and the applicable Issuing Bank, to the extent
practicable (in the Issuing Bank’s sole discretion).


 


(v)                                 In addition to
the other conditions precedent herein set forth, if any Non-rollup Lender
becomes, and during the period it remains, a Defaulting Lender or a Potential
Defaulting Lender, no Issuing Bank shall be required to issue any Non-rollup
Letter of Credit or to amend any outstanding Non-rollup 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
Non-rollup 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 Non-rollup Letters
of Credit.


 


(i)                                     Each Non-rollup
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower 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 Borrower.  Such Letter of Credit Application must be
received by the applicable Issuing Bank and the Administrative Agent not later
than 11:00 a.m. 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 Non-rollup 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
Non-rollup 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 Non-rollup Letter of Credit, such Letter of Credit
Application shall specify in form and detail reasonably satisfactory to the
applicable Issuing Bank (A) the Non-rollup 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.


 


39

















 


(ii)                                  Promptly after
receipt of any Letter of Credit Application for a Non-rollup 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 Borrower 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 Non-rollup Letter of Credit for the account of the Borrower 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 Non-rollup 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 Non-rollup Letter of Credit in an amount equal to
the product of such Lender’s Pro Rata Share in respect of the Non-rollup
Revolving Credit Facility times the amount of such Non-rollup Letter of
Credit.


 


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


 


(c)                                  Drawings and Reimbursements; Funding of Participations.


 


(i)                                     Upon receipt
from the beneficiary of any Non-rollup Letter of Credit of any notice of a
drawing under such Non-rollup Letter of Credit, the applicable Issuing Bank
shall notify the Borrower and the Administrative Agent thereof.  Not later than 11:00 a.m. on the
Business Day following the date of any payment by the applicable Issuing Bank under
a Non-rollup Letter of Credit, so long as the Borrower has received notice of
such drawing by 10:00 a.m. on such following Business Day (each such date,
an “Non-rollup Honor Date”), the Borrower 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 2.07
for Non-rollup Revolving Credit Advances bearing interest at the Base
Rate).  If the Borrower fails to so
reimburse the applicable Issuing Bank by such time, the Administrative Agent
shall promptly notify each Non-rollup Revolving Credit Lender of the Non-rollup
Honor Date, the amount of the unreimbursed drawing (the “Non-rollup
Unreimbursed Amount”), and the amount of such Non-rollup Revolving Credit
Lender’s Pro Rata Share thereof.  In such
event, the Borrower shall be deemed to have requested a Borrowing to be
disbursed on the Non-rollup Honor Date in an amount equal to the Non-rollup
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
Non-rollup 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 Non-rollup
Revolving Credit Lender (including a Non-rollup 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 Non-rollup Unreimbursed Amount not later than 1:00 p.m.
on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each
Non-rollup Revolving Credit Lender that so makes funds available shall be
deemed to have made a Non-rollup Letter of Credit Advance to the Borrower in
such amount.  The Administrative Agent
shall remit the funds so received to the applicable Issuing Bank.


 


40

















 


(iii)                               With respect to
any Non-rollup 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 Borrower shall be deemed to have incurred from the
applicable Issuing Bank a Non-rollup Letter of Credit Advance in the amount of
the Non-rollup Unreimbursed Amount that is not so refinanced, which Non-rollup
Letter of Credit Advance shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate.  In such event, each Non-rollup 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 Non-rollup Letter of
Credit Advance and shall constitute a Non-rollup Letter of Credit Advance from
such Non-rollup Revolving Credit Lender in satisfaction of its participation
obligation under this Section 2.03.


 


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


 


(v)                                 Each Non-rollup
Revolving Credit Lender’s obligation to make Non-rollup Letter of Credit
Advances to reimburse the applicable Issuing Bank for amounts drawn under
Non-rollup 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 Non-rollup Revolving Credit Lender may have against
such Issuing Bank, the 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.  No such making of a Non-rollup Letter of
Credit Advance shall relieve or otherwise impair the obligation of the Borrower
to reimburse the applicable Issuing Bank for the amount of any payment made by
such Issuing Bank under any Non-rollup Letter of Credit, together with interest
as provided herein.


 


(vi)                              If any
Non-rollup 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 Non-rollup 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 Non-rollup 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 the 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 Non-rollup
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 Non-rollup Letter of Credit
and has received from any Non-rollup Revolving Credit Lender such Non-rollup
Revolving Credit Lender’s Non-rollup 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 Non-rollup Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Non-rollup 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 Non-rollup Revolving Credit Lender’s
Non-rollup Letter of Credit Advance was outstanding) in the same funds as those
received by the Administrative Agent.


 


41

















 


(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 Non-rollup 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
Non-rollup 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 Borrower to reimburse any Issuing Bank for each drawing under
each Non-rollup Letter of Credit and to repay each Non-rollup 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 Non-rollup 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 the Borrower
may have at any time against any beneficiary or any transferee of such
Non-rollup 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 Non-rollup Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;


 


(iii)                               any draft,
demand, certificate or other document presented under such Non-rollup 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 Non-rollup Letter of Credit;


 


(iv)                              any payment by
the Issuing Bank under such Non-rollup Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such
Non-rollup Letter of Credit; or any payment made by such Issuing Bank under
such Non-rollup 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 Non-rollup 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 Borrower.


 


The Borrower shall promptly examine a copy of each
Non-rollup Letter of Credit and each amendment thereto that is delivered to it
and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will promptly notify the
applicable Issuing Bank.  The Borrower
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
Non-rollup Revolving Credit Lender and the Borrower agree that, in paying any
drawing under a Non-rollup 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 Non-rollup Letter of Credit) or to
ascertain or inquire as to the validity or 


 


42

















 


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 Non-rollup Revolving
Credit Lender for (i) any action taken or omitted in connection herewith
at the request or with the approval of the Non-rollup 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 Non-rollup Letter of Credit or Letter of Credit
Application therefor.  The Borrower
hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Non-rollup Letter of Credit; provided,
however, that this assumption is not intended to, and shall not,
preclude the Borrower 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 Borrower 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 Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves 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 Non-rollup
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 Non-rollup 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 Non-rollup 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.


 


(g)                                 Cash Collateral; Defaulting Lenders.  (i) Upon the
request of the Administrative Agent, if, as of the Letter of Credit Expiration
Date, any Non-rollup Letter of Credit may for any reason remain outstanding and
partially or wholly undrawn, the Borrower shall immediately Cash Collateralize
the then Outstanding Amount of all Non-rollup L/C Obligations (in an amount
equal to 105% of such Outstanding Amount determined as of the date of such
Non-rollup Letter of Credit Advance or the Letter of Credit Expiration Date, as
the case may be).  The Borrower hereby
grants to the Administrative Agent, for the benefit of the Issuing Banks and
the Non-rollup Revolving Credit Lenders, a security interest in all such cash,
deposit accounts and all balances therein and all proceeds of the
foregoing.  Such cash collateral shall be
maintained in the L/C Cash Collateral Account.


 


(ii)                                  If any Lender
becomes, and during the period it remains, a Defaulting Lender or a Potential
Defaulting Lender, if any Non-rollup Letter of Credit is at the time
outstanding, the Issuing Bank that issued such Non-rollup Letter of Credit may,
by notice to the Borrower and such Defaulting Lender or Potential Defaulting
Lender through the Administrative Agent, require the Borrower to Cash
Collateralize the obligations of the Borrower to such Issuing Bank in respect
of such Non-rollup Letter of Credit in amount equal to 105% of the aggregate
amount of the Obligations (contingent or otherwise) of such Defaulting Lender
or Potential Defaulting Lender in respect of such Non-rollup Letter of Credit,
and the Borrower shall thereupon either Cash Collateralize such obligations or
make other arrangements satisfactory to the Administrative Agent, and to such
Issuing Bank, in their sole discretion to protect them against the risk of
non-payment by such Defaulting Lender or Potential Defaulting Lender.


 


43

















 


(iii)                               In furtherance
of the foregoing, if any Lender becomes, and during the period it remains, a
Defaulting Lender or a Potential Defaulting Lender, each Issuing Bank is hereby
authorized by the Borrower (which authorization is irrevocable and coupled with
an interest) to give, in its discretion, through the Administrative Agent,
Notices of Borrowing pursuant to Section 2.02 in such amounts and in such
times as may be required to (A) reimburse an outstanding Non-rollup
Unreimbursed Amount and/or (B) Cash Collateralize the Obligations of the
Borrower in respect of outstanding Non-rollup Letters of Credit in an amount
equal to 105% of the aggregate amount of the Obligations (contingent or
otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect
of such Non-rollup Letters of Credit.


 


(h)                                 Applicability of ISP and UCP.  Unless
otherwise expressly agreed by the applicable Issuing Bank and the Borrower when
a Non-rollup Letter of Credit is issued, (i) the rules of the ISP
shall apply to each standby Non-rollup 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 Non-rollup 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  Repayment of Advances.  (a) Term Advances.  The Borrower shall repay to the
Administrative Agent for the ratable account of the Term Lenders on the
Termination Date the aggregate outstanding principal amount of the Term
Advances then outstanding together with exit fees then due and payable under Section 2.08(e).


 


(b)                                 Non-rollup Revolving Credit Advances.  The Borrower shall
repay to the Administrative Agent for the ratable account of the Non-rollup
Revolving Credit Lenders on the Termination Date the aggregate outstanding
principal amount of the Non-rollup Revolving Credit Advances then
outstanding.  In addition, on the Final
Term Advance Date, the Borrower shall repay to the Administrative Agent for the
ratable account of the Non-rollup Revolving Credit Lenders (other than those that
are converting their Non-rollup Revolving Credit Advances into Term Advances
pursuant to Section 2.01(a)) a principal amount of the Non-rollup
Revolving Credit Advances owing to such Non-rollup Revolving Credit Lenders
then outstanding such that after giving effect to such repayment, the amount of
Non-rollup Revolving Credit Advances held by all Non-rollup Revolving Credit
Lenders shall be ratable in accordance with their respective Non-rollup
Revolving Credit Commitments.


 


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


 


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


 


(e)                                  Rollup Letter of Credit Advances.  The Borrower shall
repay to the Administrative Agent for the account of the Issuing Banks and each
Rollup Revolving Credit Lender that has made a Rollup Letter of Credit Advance
the outstanding principal amount of each Rollup Letter of 


 


44

















 


Credit Advance made by each of
them on the earlier of (i) the date of demand therefor and (ii) the
Termination Date.


 


Section 2.05  Termination, Reduction or Automatic
Increase of Commitments.  (a)  Optional.  The Borrower may, upon at least three
Business Days’ notice to the Administrative Agent, terminate in whole or reduce
in part the unused portions of the Letter of Credit Sublimit or of the other
Commitments (which shall be applied ratably to the Unused Term Commitments,
Unused Non-rollup Revolving Credit Commitments and the Unused Rollup 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)); 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.


 


(b)                                 Mandatory.


 


(i)                                     Upon the making
of the Term Advances pursuant to Section 2.01(a)(ii), the Term Commitments
shall be automatically and permanently reduced to zero.


 


(ii)                                  The Non-rollup
Revolving Credit Facility and the Rollup Revolving Credit Facility shall be
automatically and permanently reduced on each date on which prepayment thereof
is required to be made pursuant to Section 2.06(b)(i), by an amount equal
to the Non-rollup Reduction Amount or the Rollup Reduction Amount, as
applicable.


 


(iii)                               The Letter of Credit
Sublimit shall be automatically and permanently reduced from time to time on
the date of each reduction in the Non-rollup Revolving Credit Facility and the
Rollup Revolving Credit Facility by the amount, if any, by which the amount of
the Letter of Credit Sublimit exceeds the sum of the Non-rollup Revolving
Credit Facility and the Rollup Revolving Credit Facility after giving effect to
such reduction of the Non-rollup Revolving Credit Facility and the Rollup
Revolving Credit Facility.


 


(c)                                  Application of Commitment Reductions.  Upon each reduction
of the Rollup Revolving Credit Facility pursuant to this Section 2.05, the
Rollup Revolving Credit Commitment of each of the Rollup Revolving Credit
Lenders shall be reduced by such Rollup Revolving Credit Lender’s Pro Rata
Share of the amount by which the Rollup Revolving Credit Facility is reduced in
accordance with the Lenders’ respective Non-rollup Revolving Credit
Commitments.  Upon each reduction of the
Non-rollup Revolving Credit Facility pursuant to this Section 2.05, the
Non-rollup Revolving Credit Commitment of each of the Non-rollup Revolving
Credit Lenders shall be reduced by such Non-rollup Revolving Credit Lender’s
Pro Rata Share of the amount by which the Non-rollup Revolving Credit Facility
is reduced in accordance with the Lenders’ respective Non-rollup Revolving
Credit Commitments; provided that this sentence shall not apply to any
repayment of Non-rollup Revolving Credit Advances on the Final Term Advance
Date pursuant to the second sentence of Section 2.04(b).


 


(d)                                 Rollup
Revolving Credit Commitments.  Any reduction or termination of Rollup
Revolving Credit Commitments pursuant to this Section 2.05 shall be made
together with the payment of exit fees then due and payable under Section 2.08(c).


 


(e)                                  Non-rollup
Revolving Credit Commitments.  Any reduction or termination of Non-rollup
Revolving Credit Commitments pursuant to this Section 2.05 shall be made
together with the payment of exit fees then due and payable under Section 2.08(e).


 


45
















 


(f)                                    Term
Commitments.  Any
reduction or termination of Term Commitments pursuant to Section 2.05(a) above
shall be made together with the payment of exit fees then due and payable under
Section 2.08(e).


 


(g)                                 Increase of
Non-rollup Revolving Credit Commitments.  Upon the making of the Term Advances pursuant
to Section 2.01(a)(ii), the Non-rollup Revolving Credit Commitments shall
be automatically and permanently increased to an amount equal to $63,532,482 in
accordance with Schedule I.


 


Section 2.06  Prepayments.  (a)  Optional.  The Borrower 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, New
York time) stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the
outstanding aggregate principal amount of Advances, in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
aggregate principal amount prepaid; provided, however, that each
partial prepayment shall be (i) in the case of Term Advances, in an
aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof or, if less, the aggregate outstanding principal amount of
any Advance and (ii) in the case of Non-rollup Revolving Credit Advances
and in the case of Rollup Revolving Credit Advances, in an aggregate principal
amount of $1,000,000 or an integral multiple of $500,000 in excess thereof or,
if less, the aggregate outstanding principal amount of any Advance.  Any prepayment of Advances pursuant to this Section 2.06(a) shall
be applied to any one or more of the Facilities as directed by the Borrower.


 


(b)                                 Mandatory.


 


(i)                                     The Borrower
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 Borrower 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 2.06(b)(i) exceeds $5,000,000 (at
such time the Borrower 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) or (D) 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 any amount 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, and (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. 
Each such prepayment shall be applied first ratably to the
outstanding Term Advances, second ratably to the outstanding Non-rollup
Revolving Credit Facility as set forth in clause (iv) below and the Rollup
Revolving Credit Facility as set forth in clause (v) below, and third,
if required under Section 2.03(g) or 2.21(g), deposited in the L/C
Cash Collateral Account.


 


46

















 


(ii)                                  The Borrower
shall, on each Business Day, if applicable, prepay an aggregate principal
amount of the Non-rollup Revolving Credit Advances, the Rollup Revolving Credit
Advances, the Non-rollup Letter of Credit Advances or the Rollup Letter of
Credit 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 Non-rollup
Revolving Credit Advances, the Rollup Revolving Credit Advances, the Non-rollup
Letter of Credit Advances and the Rollup Letter of Credit 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 Non-rollup Revolving Credit Commitments and the Rollup Revolving
Credit Commitments and (y) (1) the Borrowing Base minus (2) the aggregate principal
amount of the Term Advances then outstanding.


 


(iii)                               The Borrower
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 Non-rollup Revolving Credit Facility made pursuant to clauses (i) and (ii) above
shall be first applied to prepay Non-rollup Letter of Credit Advances
then outstanding, if any, until such Advances are paid in full, second
applied ratably to prepay Non-rollup 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; and, in the case of any prepayment of the Non-rollup Revolving Credit
Facility pursuant to clause (i) above, the amount remaining, if any, from
the Non-rollup Revolving Credit Facility’s ratable portion of such Net Cash
Proceeds after the prepayment of the Non-rollup Letter of Credit Advances and
the Non-rollup Revolving Credit Advances then outstanding and any required Cash
Collateralization of Non-rollup Letters of Credit then outstanding (the sum of
such prepayment amounts, cash collateralization amounts and remaining amounts
being referred to herein as the “Non-rollup Reduction Amount”) may be
retained by the Borrower for use in its business and operations.  Upon the drawing of any Non-rollup 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 Non-rollup
Revolving Credit Lenders, as applicable.


 


(v)                                 Prepayments of
the Rollup Revolving Credit Facility made pursuant to clauses (i) and (ii) above
shall be first applied to prepay Rollup Letter of Credit Advances then
outstanding, if any, until such Advances are paid in full, second
applied ratably to prepay Rollup Revolving Credit Advances then outstanding, if
any, until such Advances are paid in full and third, if required under Section 2.21(g),
deposited in the L/C Cash Collateral Account; and, in the case of any
prepayment of the Rollup Revolving Credit Facility pursuant to clause (i) above,
the amount remaining, if any, from the Rollup Revolving Credit Facility’s
ratable portion of such Net Cash Proceeds after the prepayment of the Rollup
Letter of Credit Advances and the Rollup Revolving Credit Advances then
outstanding and any required Cash Collateralization of Rollup Letters of Credit
then outstanding (the sum of such prepayment amounts, cash collateralization
amounts and remaining amounts being referred to herein as the “Rollup
Reduction Amount”) may be retained by the Borrower for use in its business
and operations.  Upon the drawing of any
Rollup 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 Rollup Revolving Credit Lenders, as applicable.


 


(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.


 


(vii)                           All prepayments
of Term Advances under this Section 2.06 shall be made together with the
payment of exit fees then due and payable under Section 2.08(e).


 


47

















 


Section 2.07  Interest.  (a)  Scheduled Interest.  The Borrower shall pay interest on each Term
Advance, each Non-rollup Revolving Credit Advance and each Rollup Revolving
Credit Advance owing to each Lender from the date of such Term Advance,
Non-rollup Revolving Credit Advance and Rollup Revolving Credit Advance 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 first
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 Business Day of such Interest Period and, if such
Interest Period has a duration of more than one month, on the first Business
Day of each month that occurs during such Interest Period every month 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 Borrower shall pay interest on (i) the
unpaid principal amount of each 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 Borrower and each Lender of the interest rate determined by the
Administrative Agent for purposes of clause (a) above.


 


Section 2.08  Fees. (a)  Commitment
Fees.  (i) The Borrower shall
pay to the Administrative Agent for the account of the Non-rollup Revolving
Credit Lenders a commitment fee, from the date hereof in the case of each such
Initial Lender and 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 on the Effective Date,
thereafter monthly on the first day of each month and on the Termination Date,
at the rate of 1.5% per annum on the average daily unused portion of the Unused
Non-rollup 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.


 


(ii) The Borrower shall pay to the
Administrative Agent for the account of the Rollup Revolving Credit Lenders a
commitment fee, from the Final Term Advance Date in the case of each such
Initial Lender and (if such date is later than the Final Term Advance Date) 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 on the Effective Date, thereafter monthly on the first
day of each month and on the Termination Date, at the rate of 1.5% per annum on
the average daily 


 


48

















 


unused portion of the Unused
Rollup 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.


 


(b)                                 Letter of Credit Fees, Etc.


 


(i)                                     The Borrower
shall pay to the Administrative Agent for the account of each Non-rollup 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 Non-rollup Letter of Credit and on the
Termination Date, on such Non-rollup Revolving Credit Lender’s Pro Rata
Share of the average daily aggregate Available Amount during such month of all
Non-rollup 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 Non-rollup Revolving Credit Facility; provided, however,
that no such commission shall accrue on any of the Non-rollup Revolving Credit
Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting
Lender.


 


(ii)                                  The Borrower
shall pay to the Administrative Agent for the account of each Rollup 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 Rollup Letter of Credit and on the Termination
Date, on such Rollup Revolving Credit Lender’s Pro Rata Share of the
average daily aggregate Available Amount during such month of all Rollup
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
Rollup Revolving Credit Facility; provided, however, that no such
commission shall accrue on any of the Rollup Revolving Credit Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.


 


(iii)                               The Borrower
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 0.25% per annum and (B) the
customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of such Issuing Bank.


 


(c)                                  Exit Fees for Rollup Revolving Credit Lenders.  (i) Concurrently
with any reduction or termination of any amount of the Rollup Revolving Credit
Commitments pursuant to Section 2.05, the Borrower shall pay to the Administrative
Agent for the account of the Rollup Revolving Credit Lenders an exit fee equal
to 2% of such amount so reduced or terminated and (ii) without duplication
of the fees in clause (i), immediately upon the substantial consummation of a
Reorganization Plan in any of the Cases, the Borrower shall pay to the
Administrative Agent for the account of the Rollup Revolving Credit Lenders an
exit fee equal to 2% of the aggregate outstanding principal amount of the
Rollup Revolving Credit Advances; provided that the aggregate amount of
exit fees payable under this Section 2.08(c) shall not exceed 2% of
the aggregate principal amount of Rollup Revolving Credit Advances used to
prepay the Pre-Petition Secured Indebtedness.


 


(d)                                 Initial Lender Fees.  The Borrower shall pay to the Administrative
Agent for the account of the Initial Lenders (or their respective Affiliates) (i) that
are Term Lenders an upfront fee equal to 3% of such Lenders’ Term Commitments
on the Effective Date, (ii) that are Non-rollup Revolving Credit Lenders
an upfront fee equal to 3% of such Lenders’ Non-rollup Revolving Credit
Commitments on the Effective Date and (iii) such other fees as may be from
time to time agreed among the Borrower and the Initial Lenders (or their
respective Affiliates).


 


49

















 


(e)                                  Exit Fees for Term Lenders and Non-rollup Revolving Credit
Lenders.  (i)(x) Concurrently
with any reduction or termination of any amount of the Non-rollup Revolving
Credit Commitments pursuant to Section 2.05, the Borrower shall pay to the
Administrative Agent for the account of the Non-rollup Revolving Credit Lenders
an exit fee equal to 3% of such amount so reduced or terminated and (y) without
duplication of the fees in clause (x), immediately upon the substantial
consummation of a Reorganization Plan in any of the Cases, the Borrower shall
pay to the Administrative Agent for the account of the Non-rollup Revolving
Credit Lenders an exit fee equal to 3% of the aggregate outstanding principal amount
of the Non-rollup Revolving Credit Advances.


 


(ii)                                  (x) Concurrently with
any repayment or prepayment of any amount of the Term Advances pursuant to
Sections 2.04(a) or 2.06 or any reduction or termination of Term
Commitments under Section 2.05(a), the Borrower shall pay to the
Administrative Agent for the account of the Term Lenders an exit fee equal to
3% of such amount so repaid or prepaid and (y) without duplication of the
fees in clause (x), immediately upon the substantial consummation of a Reorganization
Plan in any of the Cases, the Borrower shall pay to the Administrative Agent
for the account of the Term Lenders an exit fee equal to 3% of the aggregate
outstanding principal amount of the Term Advances.


 


Section 2.09 
Conversion of Advances.   (a)   Optional.  The Borrower 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 2.10, 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(c),
no Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(c) 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 Borrower.


 


(b)                                 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 Borrower
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 Borrower 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.


 


50

















 


Section 2.10  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 2.10, any such
increased costs resulting from (x) Taxes or Other Taxes (as to which Section 2.12
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 Borrower 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 Borrower 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 Borrower 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 Borrower by such Lender Party shall be conclusive and binding for all purposes,
absent manifest error.


 


(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 Borrower 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 Borrower
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 Borrower
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 


 


51

















 


Administrative
Agent shall notify the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist.


 


Section 2.11  Payments and Computations.  (a)  The Borrower shall make each
payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.15),
not later than 11:00 A.M. (New York, New York time) on the day when due
(or, in the case of payments made by a Guarantor pursuant to Section 8.01,
on the date of demand therefor) in U.S. dollars to the Administrative Agent at
the Administrative Agent’s Account in same day funds.  The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by the
Borrower 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 2.04(b)) and (ii) if such payment by the
Borrower 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 owed to such Lender Party, and for application to
such principal installments, as the Administrative Agent shall direct.


 


(c)                                  The Borrower hereby authorizes 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 Borrower’s 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 and in the Interim
Order or Final Order, as applicable). 
Each of the Lender Parties hereby agrees to notify the Borrower 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.


 


52

















 


(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 Borrower prior to the date on which any payment is due to any Lender
Party hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has 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 Borrower
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 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 Federal Funds Rate.


 


Section 2.12  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 2.11 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, 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 2.12)
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.


 


(b)                                 In addition, each Loan Party 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 such 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 Loan Parties shall indemnify each Lender Party and each
Agent for and hold them harmless against the full amount of Taxes and Other
Taxes, and for the full amount of taxes of any kind imposed or asserted by any
jurisdiction on amounts payable under this Section 2.12, 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.  This
indemnification 


 


53

















 


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 2.12, the terms “United States” and “United
States person” shall have the meanings specified in Section 7701 of
the Internal Revenue Code.


 


(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 Borrower (but only so long thereafter
as such Lender Party remains lawfully able to do so), provide each of the
Administrative Agent and Borrower with two original Internal Revenue Service
Forms W-8BEN or W-8ECI, (in the case of a Lender Party that has certified
in writing to the Administrative Agent that it is not (i) a “bank” (within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code), (ii) a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Internal Revenue Code) of any Loan Party or (iii) a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code), Internal Revenue Service Form W-8BEN,) as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender Party is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the other Loan Documents or, in the case of a Lender Party that
has certified that it is not a “bank” as described above, certifying that such
Lender Party is a foreign corporation, partnership, estate or trust.  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 2.12
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.  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 Borrower 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 Borrower with the appropriate form, certificate or other
document described in subsection (e) above 


 


54

















 


(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 2.12
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.


 


Section 2.13 
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 2.10, 2.12, 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 2.10, 2.12,
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 2.10, 2.12, 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 2.10,
2.12, 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 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 Borrower agrees that any Lender Party so
purchasing a participation from another Lender Party pursuant to this Section 2.13
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 Borrower in the amount of
such participation.  Notwithstanding the
foregoing, this Section 2.13 shall not apply to the repayment of any
Non-rollup Revolving Credit Advances pursuant to the second sentence of Section 2.04(b).


 


Section 2.14 
Use of Proceeds.  The
proceeds of (a) the Non-rollup Revolving Credit Advances and the
Non-rollup Letters of Credit shall only be utilized (i) to refinance the
Existing Receivables Facility, (ii) to pay costs and expenses in
connection with such refinancing and the Cases, and (iii) to provide
financing for working capital, letters of credit, capital expenditures and
other general corporate purposes of the Borrower and the Guarantors, including
but not limited to Investments in other Subsidiaries of the Loan Parties to the
extent not prohibited under this Agreement and the refinancing of the
Pre-Petition Secured Indebtedness, (b) the Term Advances shall only be
utilized (i) to refinance the Existing Receivables Facility, (ii) to
pay costs and expenses in connection with such refinancing and the Cases, (iii) to
repay or convert Non-rollup Revolving Credit Advances and (iv) for other
general corporate 


 


55

















 


purposes of the Borrower and
the Guarantors, including but not limited to Investments in other Subsidiaries
of the Loan Parties to the extent not prohibited under this Agreement and the
refinancing of the Pre-Petition Secured Indebtedness and (c) the Rollup
Revolving Credit Advances and the Rollup Letters of Credit shall only be
utilized (i) to refinance the Pre-Petition Secured Indebtedness and (ii) for
other general corporate purposes of the Loan Parties, including but not limited
to Investments in other Subsidiaries of the Loan Parties to the extent not
prohibited under this Agreement.


 


Section 2.15 
Defaulting Lenders.  (a)  In
the event that, at any time, (i) any Lender Party shall be a Defaulting
Lender, (ii) such Defaulting Lender shall owe a Defaulted Advance to the
Borrower and (iii) the Borrower shall be required to make any payment
hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower may, so long as no Default shall occur or
be continuing at such time and to the fullest extent permitted by applicable
law, set off and otherwise apply the Obligation of the Borrower to make such
payment to or for the account of such Defaulting Lender against the obligation
of such Defaulting Lender to make such Defaulted Advance.  In the event that, on any date, the Borrower
shall so set off and otherwise apply its obligation to make any such payment
against the obligation of such Defaulting Lender to make any such Defaulted
Advance on or prior to such date, the amount so set off and otherwise applied
by the Borrower shall constitute for all purposes of this Agreement and the
other Loan Documents an Advance by such Defaulting Lender made on the date
under the Facility pursuant to which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01.  Such Advance shall be considered, for all
purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising such
Borrowing shall be Eurodollar Rate Advances on the date such Advance is deemed
to be made pursuant to this subsection (a). 
The Borrower shall notify the Administrative Agent at any time the
Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (A) the name of the Defaulting Lender and
the Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). 
Any portion of such payment otherwise required to be made by the
Borrower to or for the account of such Defaulting Lender which is paid by the
Borrower, after giving effect to the amount set off and otherwise applied by
the Borrower pursuant to this subsection (a), shall be applied by the
Administrative Agent as specified in subsection (b) or (c) of
this Section 2.15.


 


(b)                                 In the event that, at any time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Amount to the Administrative Agent or any of the other Lender Parties
and (iii) the Borrower shall make any payment hereunder or under any other
Loan Document to the Administrative Agent for the account of such Defaulting
Lender, then the Administrative Agent may, on its behalf or on behalf of such
other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by the Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. 
In the event that the Administrative Agent shall so apply any such
amount to the payment of any such Defaulted Amount on any date, the amount so
applied by the Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date.  Any such
amount so applied by the Administrative Agent shall be retained by the
Administrative Agent or distributed by the Administrative Agent to such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent and such
other Lender Parties and, if the amount of such payment made by the Borrower
shall at such time be insufficient to pay all Defaulted Amounts owing at such
time to the Administrative Agent and the other Lender Parties, in the following
order of priority:


 


(i)                                     first, to the
Administrative Agent for any Defaulted Amount then owing to the Administrative
Agent in its capacity as Administrative Agent; and


 


56
















 


(ii)                                  second, to the
Issuing Banks for any Defaulted Amounts then owing to them, in their capacities
as such, ratably in accordance with such respective Defaulted Amounts then
owing to the Issuing Banks; and


 


(iii)                               third, to any other
Lender Parties for any Defaulted Amounts then owing to such other Lender
Parties, ratably in accordance with such respective Defaulted Amounts then
owing to such other Lender Parties.


 


Any portion of such amount paid by the
Borrower for the account of such Defaulting Lender remaining, after giving
effect to the amount applied by the Administrative Agent pursuant to this
subsection (b), shall be applied by the Administrative Agent as specified
in subsection (c) of this Section 2.15.


 


(c)                                  In the event that, at any time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, the
Administrative Agent or any other Lender Party shall be required to pay or
distribute any amount hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then the Borrower or such other Lender Party
shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it.  Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the
Administrative Agent in an account with Citibank, in the name and under the
control of the Administrative Agent, but subject to the provisions of this
subsection (c).  The terms
applicable to such account, including the rate of interest payable with respect
to the credit balance of such account from time to time, shall be Citibank’s
standard terms applicable to escrow accounts maintained with it.  Any interest credited to such account from
time to time shall be held by the Administrative Agent in escrow under, and
applied by the Administrative Agent from time to time in accordance with the
provisions of, this subsection (c). 
The Administrative Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to the Administrative Agent or any other Lender
Party, as and when such Advances or amounts are required to be made or paid
and, if the amount so held in escrow shall at any time be insufficient to make
and pay all such Advances and amounts required to be made or paid at such time,
in the following order of priority:


 


(i)                                     first, to the
Administrative Agent for any amount then due and payable by such Defaulting
Lender to the Administrative Agent hereunder in its capacity as Administrative
Agent;


 


(ii)                                  second, to the
Issuing Banks for any amounts then due and payable to them hereunder, in their
capacities as such, by such Defaulting Lender, ratably in accordance with such
respective amounts then due and payable to the Issuing Banks;


 


(iii)                               third, to any other
Lender Parties for any amount then due and payable by such Defaulting Lender to
such other Lender Parties hereunder, ratably in accordance with such respective
amounts then due and payable to such other Lender Parties; and


 


(iv)                              fourth, to the
Borrower for any Advance then required to be made by such Defaulting Lender
pursuant to a Commitment of such Defaulting Lender.


 


(x) In the event that any Lender Party
that is a Defaulting Lender shall, at any time, cease to be a Defaulting
Lender, and (y) at any time after all principal, interest and other
outstanding amounts under the Loan Documents are repaid on or after the
Termination Date, any funds held by the Administrative Agent 


 


57

















 


in escrow at such time with respect to such
Lender Party shall be distributed by the Administrative Agent to such Lender
Party and applied by such Lender Party to the Obligations owing to such Lender
Party at such time under this Agreement and the other Loan Documents ratably in
accordance with the respective amounts of such Obligations outstanding at such
time; provided that no adjustments will be made retroactively with
respect to fees accrued or payments made by or on behalf of the Borrower while
such 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 or Potential Defaulting Lender to
Non-Defaulting Lender will constitute a waiver or release of any claim of any
party hereunder arising from such Lender’s having been a Defaulting Lender or
Potential Defaulting Lender.


 


(d)                                 The rights and remedies against a Defaulting Lender under
this Section 2.15 are in addition to other rights and remedies that the
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and that the Administrative Agent or any Lender Party may have against
such Defaulting Lender with respect to any Defaulted Amount.


 


Section 2.16  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 Borrower 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 Borrower hereunder to pay any amount
owing with respect to the Obligations. 
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 Borrower 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.  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.


 


Section 2.17  Priority and Liens.  (a) 
Each of the Borrower and each Guarantor hereby covenants, represents and
warrants that, upon entry of the Interim Order, the Obligations of the Borrower
and such Guarantor hereunder and under the Loan Documents:  (i) pursuant to section 364(c)(1) of
the Bankruptcy Code, shall at all times constitute an allowed Superpriority
Claim; (ii) pursuant to section 364(c)(2) of the Bankruptcy Code,
shall at all times be secured by a perfected first priority Lien on all
unencumbered tangible and intangible property of the Borrower and such
Guarantor and on all cash maintained in the L/C Cash Collateral Account and any
investments of the funds contained therein, including any such property that is
subject to valid and perfected Liens in existence on the Petition Date, which
Liens are thereafter released or otherwise extinguished in connection with the
satisfaction of the obligations secured by such Liens (excluding any avoidance
actions under the Bankruptcy Code or the proceeds therefrom); (iii) pursuant
to section 364(c)(3) of the Bankruptcy Code, shall be secured by a
perfected Lien upon all real, personal and mixed property of the Borrower and
such Guarantor that is subject to valid and perfected Liens in existence on the
Petition Date, junior to such valid and perfected Liens (other than Liens
securing the Pre-Petition Secured Indebtedness) and (iv) pursuant to
section 364(d)(1), shall be secured by a perfected priming Lien upon all
tangible and intangible property of the Borrower and such Guarantor that
presently secure the Pre-Petition Secured Indebtedness; provided that 


 


58

















 


the foregoing shall be subject
in all respects to the Carve-Out.  Each
of the Borrower and each Guarantor hereby covenants, represents and warrants
that, upon entry of the Final Order, the Obligations of the Borrower and such
Guarantor hereunder and under the Loan Documents:  (i) pursuant to section 364(c)(1) of
the Bankruptcy Code, shall at all times constitute an allowed Superpriority
Claim; (ii) pursuant to section 364(c)(2) of the Bankruptcy Code,
shall at all times be secured by a perfected first priority Lien on all
unencumbered tangible and intangible property of the Borrower and such
Guarantor and on all cash maintained in the L/C Cash Collateral Account and any
investments of the funds contained therein, including any such property that is
subject to valid and perfected Liens in existence on the Petition Date, which
Liens are thereafter released or otherwise extinguished in connection with the
satisfaction of the obligations secured by such Liens (excluding any avoidance
actions under the Bankruptcy Code (but including the proceeds therefrom)); (iii) pursuant
to section 364(c)(3) of the Bankruptcy Code, shall be secured by a
perfected Lien upon all real, personal and mixed property of the Borrower and
such Guarantor that is subject to valid and perfected Liens in existence on the
Petition Date, junior to such valid and perfected Liens (other than Liens
securing the Unrolled Pre-Petition Secured Indebtedness), and (iv) pursuant
to section 364(d)(1), shall be secured by a perfected priming Lien upon all
tangible and intangible property of the Borrower and such Guarantor that secure
the Unrolled Pre-Petition Secured Indebtedness; provided that the
foregoing shall be subject in all respects to the Carve-Out.


 


(c)                                  Except for the Carve-Out having priority over the
Obligations, the Superpriority Claims shall at all times be senior to the
rights of the Borrower, each Guarantor, any chapter 11 trustee and, subject to
section 726 of the Bankruptcy Code, any chapter 7 trustee, or any other
creditor (including, without limitation, post-petition counterparties and other
post-petition creditors) in the Cases or any subsequent proceedings under the
Bankruptcy Code, including, without limitation, any chapter 7 cases if any of
the Borrower’s or the Guarantor’s cases are converted to cases under chapter 7
of the Bankruptcy Code.


 


Section 2.18  Payment of Obligations.  Subject to the provisions of Section 6.01
and the DIP Financing Orders, upon the maturity (whether by acceleration or
otherwise) of any of the Obligations under this Agreement or any of the other
Loan Documents of the Borrower and the Guarantors, the Lender Parties shall be
entitled to immediate payment of such Obligations without further application
to or order of the Bankruptcy Court.


 


Section 2.19  No Discharge: Survival of Claims.  Each of the Borrower and each Guarantor agree
that (i) its Obligations under this Agreement or any of the Loan Documents
shall not be discharged by the entry of an order confirming any Reorganization
Plan (and each of the Borrower and each Guarantor, pursuant to section 1141(d)(4) of
the Bankruptcy Code hereby waives any such discharge), (ii) the Superpriority
Claim granted to the Administrative Agent and the Lender Parties pursuant to
the DIP Financing Orders and described in Section 2.17 and the Liens
granted to the Administrative Agent and the Lender Parties pursuant to the DIP
Financing Orders and described in Section 2.17 shall not be affected in
any manner by the entry of any order by the Bankruptcy Court, including an
order confirming any Reorganization Plan, and (iii) notwithstanding the
terms of any Reorganization Plan, its Obligations hereunder and under each
other Loan Document shall be repaid in full in accordance with the terms hereof
and the terms of the DIP Financing Orders and the other Loan Documents.


 


Section 2.20 
Replacement of Certain Lenders. 
In the event a Lender (“Affected Lender”) shall have (a) become
a Defaulting Lender under Section 2.15, (b) requested compensation
from the Borrowers under Section 2.12 with respect to Taxes or Other Taxes
or with respect to increased costs or capital or under Section 2.10 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 2.10(d) claiming that such Lender is unable to
extend Eurodollar Rate Advances to the Borrower for reasons not 


 


59

















 


generally applicable to the
other Lenders or (d) become a Non-Consenting Lender, then, in any case,
the Borrower 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 Borrower and a copy to the Borrower 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 Borrower 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 2.10 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 2.21  Issuance of and Drawings and Reimbursement
Under Rollup Letters of Credit.


 


(a)  The Letter of Credit
Commitment.


 


(i)                                     Subject to the
terms and conditions set forth herein, (A) each Issuing Bank agrees, in
reliance upon the agreements of the other Rollup Revolving Credit Lenders set
forth in this Section 2.21, (1) from time to time on any Business Day
during the period from the Final Term Advance Date until the Letter of Credit
Expiration Date, to issue Rollup Letters of Credit for the account of the
Borrower or any of its Subsidiaries, and to amend Rollup Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to
honor drafts under the Rollup Letters of Credit; and (B) the Rollup
Revolving Credit Lenders severally agree to participate in Rollup Letters of
Credit issued for the account of the Borrower or any of its Subsidiaries; provided
that the Issuing Banks shall not be obligated to issue any Rollup Letter of
Credit, and no Rollup Revolving Credit Lender shall be obligated to participate
in any Rollup 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 Rollup Letter of Credit would exceed the aggregate Unused Rollup
Revolving Credit Commitments or (z) the Available Amount of such Rollup
Letter of Credit would exceed the Availability at such time.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Rollup
Letters of Credit shall be fully revolving, and accordingly the Borrower may,
during the foregoing period, obtain Rollup Letters of Credit to replace Rollup
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 Rollup 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 Rollup 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 Rollup Letter of
Credit in 


 


60

















 


particular or shall impose upon such Issuing
Bank any unreimbursed loss, cost or expense which such Issuing Bank in good
faith deems material to it; (B) the expiry date of such requested Rollup
Letter of Credit would occur after the Letter of Credit Expiration Date, unless
all the Rollup Revolving Credit Lenders have approved such expiry date; (C) the
issuance of such Rollup Letter of Credit would violate one or more policies of
such Issuing Bank; or (D) such Rollup 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 Rollup Letter of Credit if (A) such
Issuing Bank would have no obligation at such time to issue such Rollup Letter
of Credit in its amended form under the terms hereof, or (B) the
beneficiary of such Rollup Letter of Credit does not accept the proposed
amendment to such Rollup Letter of Credit.


 


(iv)                              Rollup Letters
of Credit may be issued for the account of a Subsidiary that is not a Loan
Party so long as such Subsidiary is primarily liable for its reimbursement
obligations thereunder pursuant to a separate reimbursement agreement entered into
between such Subsidiary and the applicable Issuing Bank, to the extent
practicable (in the Issuing Bank’s sole discretion).


 


(v)                                 In addition to
the other conditions precedent herein set forth, if any Rollup Lender becomes,
and during the period it remains, a Defaulting Lender or a Potential Defaulting
Lender, no Issuing Bank shall be required to issue any Rollup Letter of Credit
or to amend any outstanding Rollup 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 Rollup 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 Rollup Letters of
Credit.


 


(i)                                     Each Rollup
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower 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
Borrower.  Such Letter of Credit
Application must be received by the applicable Issuing Bank and the
Administrative Agent not later than 11:00 a.m. 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 Rollup 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 Rollup 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 Rollup Letter of Credit, such Letter of Credit
Application shall specify in form and detail reasonably satisfactory to the
applicable Issuing Bank (A) the Rollup 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 Rollup 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 Borrower and, if not, such Issuing
Bank will provide the Administrative Agent with a copy thereof.  Upon 


 


61

















 


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
Rollup Letter of Credit for the account of the Borrower 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 Rollup
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 Rollup Letter of Credit in an amount equal to the product of such
Lender’s Pro Rata Share in respect of the Rollup Revolving Credit Facility times
the amount of such Rollup Letter of Credit.


 


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


 


(c)                                  Drawings and Reimbursements; Funding of Participations.


 


(i)                                     Upon receipt
from the beneficiary of any Rollup Letter of Credit of any notice of a drawing
under such Rollup Letter of Credit, the applicable Issuing Bank shall notify
the Borrower and the Administrative Agent thereof.  Not later than 11:00 a.m. on the
Business Day following the date of any payment by the applicable Issuing Bank
under a Rollup Letter of Credit, so long as the Borrower has received notice of
such drawing by 10:00 a.m. on such following Business Day (each such date,
an “Rollup Honor Date”), the Borrower 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 2.07
for Rollup Revolving Credit Advances bearing interest at the Base Rate).  If the Borrower fails to so reimburse the
applicable Issuing Bank by such time, the Administrative Agent shall promptly
notify each Rollup Revolving Credit Lender of the Rollup Honor Date, the amount
of the unreimbursed drawing (the “Rollup Unreimbursed Amount”), and the
amount of such Rollup Revolving Credit Lender’s Pro Rata Share thereof.  In such event, the Borrower shall be deemed
to have requested a Borrowing to be disbursed on the Rollup Honor Date in an
amount equal to the Rollup 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 Rollup 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 2.21(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 Rollup
Revolving Credit Lender (including a Rollup Revolving Credit Lender acting as
Issuing Bank) shall upon any notice pursuant to Section 2.21(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 Rollup Unreimbursed Amount not later than 1:00 p.m. on
the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.21(c)(iii), each Rollup
Revolving Credit Lender that so makes funds available shall be deemed to have
made a Rollup Letter of Credit Advance to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the applicable Issuing Bank.


 


(iii)                               With respect to
any Rollup 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 Borrower shall be deemed to have incurred from the
applicable Issuing Bank a Rollup Letter of Credit Advance in the amount of the
Rollup Unreimbursed Amount that is not so refinanced, which Rollup Letter of
Credit Advance shall be due and payable on demand (together with interest) and
shall bear 


 


62

















 


interest at the Default Rate.  In such event, each Rollup Revolving Credit
Lender’s payment to the Administrative Agent for the account of the applicable
Issuing Bank pursuant to Section 2.21(c)(ii) shall be deemed payment
in respect of its participation in such Rollup Letter of Credit Advance and
shall constitute a Rollup Letter of Credit Advance from such Rollup Revolving
Credit Lender in satisfaction of its participation obligation under this Section 2.21.


 


(iv)                              Until each
Rollup Revolving Credit Lender funds its Rollup Revolving Credit Advance or
Rollup Letter of Credit Advance pursuant to this Section 2.21(c) to
reimburse the applicable Issuing Bank for any amount drawn under any Rollup
Letter of Credit, interest in respect of such Rollup Revolving Credit Lender’s
Pro Rata Share of such amount shall be solely for the account of such Issuing
Bank.


 


(v)                                 Each Rollup
Revolving Credit Lender’s obligation to make Rollup Letter of Credit Advances
to reimburse the applicable Issuing Bank for amounts drawn under Rollup Letters
of Credit, as contemplated by this Section 2.21(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 Rollup
Revolving Credit Lender may have against such Issuing Bank, the 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.  No
such making of a Rollup Letter of Credit Advance shall relieve or otherwise
impair the obligation of the Borrower to reimburse the applicable Issuing Bank
for the amount of any payment made by such Issuing Bank under any Rollup Letter
of Credit, together with interest as provided herein.


 


(vi)                              If any Rollup
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 Rollup Revolving Credit Lender pursuant to the foregoing provisions of
this Section 2.21(c) by the time specified in Section 2.21(c)(ii),
such Issuing Bank shall be entitled to recover from such Rollup 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 the 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 Rollup 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 Rollup Letter of Credit and
has received from any Rollup Revolving Credit Lender such Rollup Revolving
Credit Lender’s Rollup Letter of Credit Advance in respect of such payment in
accordance with Section 2.21(c), if the Administrative Agent receives for
the account of the applicable Issuing Bank any payment in respect of the
related Rollup Unreimbursed Amount or interest thereon (whether directly from
the Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will distribute
to such Rollup 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 Rollup Revolving Credit Lender’s Rollup 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 2.21(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 Rollup Revolving Credit Lender shall pay
to the Administrative Agent for the account of such Issuing Bank its 


 


63

















 


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 Rollup 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 Borrower to reimburse any Issuing Bank for each drawing under
each Rollup Letter of Credit and to repay each Rollup 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 Rollup 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 the Borrower
may have at any time against any beneficiary or any transferee of such Rollup
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
Rollup Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;


 


(iii)                               any draft,
demand, certificate or other document presented under such Rollup 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 Rollup Letter of Credit;


 


(iv)                              any payment by
the Issuing Bank under such Rollup Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such
Rollup Letter of Credit; or any payment made by such Issuing Bank under such
Rollup 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 Rollup 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 Borrower.


 


The Borrower shall promptly examine a copy of each
Rollup Letter of Credit and each amendment thereto that is delivered to it and,
in the event of any claim of noncompliance with the Borrower’s instructions or
other irregularity, the Borrower will promptly notify the applicable Issuing
Bank.  The Borrower 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
Rollup Revolving Credit Lender and the Borrower agree that, in paying any
drawing under a Rollup 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 Rollup 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 Rollup Revolving Credit
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Rollup Revolving Credit Lenders or the 


 


64

















 


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 Rollup Letter of Credit or Letter of Credit Application therefor.  The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of
any Rollup Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower 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 2.21(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower 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 Borrower, to the extent,
but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrower which the Borrower proves 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 Rollup 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 Rollup 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 Rollup 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.


 


(g)                                 Cash Collateral; Defaulting Lenders.  (i) Upon the
request of the Administrative Agent, if, as of the Letter of Credit Expiration
Date, any Rollup Letter of Credit may for any reason remain outstanding and
partially or wholly undrawn, the Borrower shall immediately Cash Collateralize
the then Outstanding Amount of all Rollup L/C Obligations (in an amount equal
to 105% of such Outstanding Amount determined as of the date of such Rollup
Letter of Credit Advance or the Letter of Credit Expiration Date, as the case
may be).  The Borrower hereby grants to
the Administrative Agent, for the benefit of the Issuing Banks and the Rollup
Revolving Credit Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing.  Such cash collateral shall be maintained in
the L/C Cash Collateral Account.


 


(ii)                                  If any Lender
becomes, and during the period it remains, a Defaulting Lender or a Potential
Defaulting Lender, if any Rollup Letter of Credit is at the time outstanding,
the Issuing Bank that issued such Rollup Letter of Credit may, by notice to the
Borrower and such Defaulting Lender or Potential Defaulting Lender through the
Administrative Agent, require the Borrower to Cash Collateralize the
obligations of the Borrower to such Issuing Bank in respect of such Rollup
Letter of Credit in amount equal to 105% of the aggregate amount of the
Obligations (contingent or otherwise) of such Defaulting Lender or Potential
Defaulting Lender in respect of such Rollup Letter of Credit, and the Borrower
shall thereupon either Cash Collateralize such obligations or make other
arrangements satisfactory to the Administrative Agent, and to such Issuing
Bank, in their sole discretion to protect them against the risk of non-payment
by such Defaulting Lender or Potential Defaulting Lender.


 


(iii)                               In furtherance
of the foregoing, if any Lender becomes, and during the period it remains, a
Defaulting Lender or a Potential Defaulting Lender, each Issuing Bank is hereby
authorized by the Borrower (which authorization is irrevocable and coupled with
an interest) to give, in its discretion, through the Administrative Agent,
Notices of Borrowing pursuant to 


 


65

















 


Section 2.02
in such amounts and in such times as may be required to (A) reimburse an
outstanding Rollup Unreimbursed Amount and/or (B) Cash Collateralize the
Obligations of the Borrower in respect of outstanding Rollup Letters of Credit
in an amount equal to 105% of the aggregate amount of the Obligations
(contingent or otherwise) of such Defaulting Lender or Potential Defaulting
Lender in respect of such Rollup Letters of Credit.


 


(h)                                 Applicability of ISP and UCP.  Unless
otherwise expressly agreed by the applicable Issuing Bank and the Borrower when
a Rollup Letter of Credit is issued, (i) the rules of the ISP shall
apply to each standby Rollup 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 Rollup 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.


 


ARTICLE III



CONDITIONS TO EFFECTIVENESS


 


Section 3.01  Conditions Precedent to Effectiveness.  The effectiveness of this Credit Agreement,
the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i),
the initial obligation of the Non-rollup Revolving Credit Lenders to make
Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing
Bank to issue the initial Letter of Credit are, in each case, subject to the
satisfaction of the following conditions precedent:


 


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


 


(i)                                     The Notes
payable to the order of the Non-rollup Revolving Credit Lenders to the extent
requested in accordance with Section 2.16(a).


 


(ii)                                  Certified
copies of the resolutions of the boards of directors of each of the Borrower
and each Guarantor approving the execution and delivery of this Agreement.


 


(iii)                               A copy of the
charter or other constitutive document of 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.


 


(iv)                              A certificate
of each of the Borrower and each Guarantor signed on behalf of the Borrower and
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),
certifying as to (A) the accuracy and completeness of the charter of the
Borrower or such Guarantor and the absence of any changes thereto; (B) the
accuracy and completeness of the bylaws (or equivalent organizational document)
of the 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 


 


66

















 


adopted
and the absence of any changes thereto (a copy of which shall be attached to
such certificate); 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 the Borrower or any Guarantor.


 


(v)                                 A certificate
of the Secretary or an Assistant Secretary of each of the Borrower and each
Guarantor certifying the names and true signatures of the officers of the
Borrower and such Guarantor, respectively, authorized to sign this Agreement
and the other documents to be delivered hereunder.


 


(vi)                              The
following:  (A) such certificates
representing the Initial Pledged Equity of domestic entities referred to on
Schedule IV hereto, accompanied by undated stock powers, duly executed in
blank, and such instruments evidencing the Initial Pledged Debt referred to on
Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able
to deliver using their reasonable best efforts, (B) proper financing statements
(Form UCC-1 or a comparable form) under the UCC of all jurisdictions that
the Initial Lenders may deem necessary or desirable in order to perfect and
protect the Liens and security interest created or purported to be created
under Article IX hereof, covering the Collateral described in Article IX
hereof, in each case completed in a manner reasonably satisfactory to the
Lender Parties, and (C) evidence of insurance as reasonably requested by
the Initial Lenders.


 


(vii)                           An intellectual
property security agreement (as amended, supplemented or otherwise modified
from time to time in accordance with its terms, the “Intellectual Property
Security Agreement”), duly executed by each Loan Party, together with
evidence that all actions that the Initial Lenders may deem reasonably
necessary or desirable in order to perfect and protect the first 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.


 


(viii)                        A forecast
reasonably satisfactory to the Administrative Agent and the Initial Lenders
detailing the Borrower’s anticipated monthly income statement, balance sheet
and cash flow statement, each on a Consolidated basis for the Borrower and its
Subsidiaries, together with a written set of assumptions supporting such
statements, for each month during the period commencing on the Petition Date
and ending on the Stated Maturity Date and setting forth the anticipated aggregate
maximum amount of utilization of the Commitments on a monthly basis.


 


(ix)                                A DIP Budget
reasonably satisfactory to the Administrative Agent and the Initial Lenders.


 


(x)                                   Audited
Consolidated financial statements of the Borrower and its Subsidiaries as at December 31,
2008 for the Fiscal Year then ended.


 


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


 


(xii)                             A favorable
opinion of Kirkland & Ellis LLP, counsel to the Loan Parties, in
substantially the form of Exhibit D-1 hereto.


 


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(b)                                 Interim Order.  At the time of the Initial Extension of
Credit, the Initial Lenders shall have received, on or before the Effective
Date, a certified copy of an order entered by the Bankruptcy Court in
substantially the form of Exhibit E (the “Interim Order”) approving
the Loan Documents and granting the Superpriority Claim status and the Liens
described in Section 2.17, which Interim Order (i)(A) shall authorize
extensions of credit in respect of (x) the Non-rollup Revolving Credit
Facility in an aggregate amount of up to $25,000,000 and (y) the Term
Facility in an aggregate amount of up to $165,000,000, (B) shall authorize
and direct the indefeasible repayment of any Obligations under the Existing
Receivables Facility, which repayment shall not be subject to any future
challenge by any Person, (C) shall have been entered upon an application
or motion of the Borrower and each Guarantor reasonably satisfactory in form
and substance to the Initial Lenders, on such prior notice to such parties as
may in each case be reasonably satisfactory to the Initial Lenders, (D) shall
approve the payment by the Borrower of all of the fees and expenses that are
required to be paid in connection with the Facilities and (E) shall have
been entered not later than five days after the Petition Date; (ii) shall
have authorized the use by the Borrower and the Guarantors of any cash
collateral in which any Pre-Petition Secured Creditor under the Pre-Petition
Security Agreement may have an interest and shall have provided, as adequate
protection for the use of such cash collateral and the aggregate reduction in
the Pre-Petition Collateral as a consequence of the priming Liens described in Section 2.17
and the imposition of the automatic stay pursuant to section 362 of the
Bankruptcy Code, for (A) the monthly cash payment of current interest and
letter of credit fees on the Pre-Petition Secured Indebtedness at the
applicable non-default rates applicable on the Petition Date pursuant to the
Pre-Petition Document, (B) a superpriority claim as contemplated by
section 507(b) of the Bankruptcy Code, limited in amount to the diminution
in value of the Pre-Petition Collateral to the extent of the Pre-Petition
Secured Indebtedness, resulting from the sale, lease or use by the Borrower and
the Guarantors of any Pre-Petition Collateral, the priming Liens described in Section 2.17
and the imposition of the automatic stay pursuant to section 362 of the
Bankruptcy Code, immediately junior to the claims under section 364(c)(1) of
the Bankruptcy Code held by the Administrative Agent and the Lenders (without
the requirement to file any motion or pleading or to make any demand) and
subject to the payment of the Carve-Out, (C) a Lien on substantially all
of the assets of the Borrower and the Guarantors having a priority immediately
junior to the Liens granted in favor of the Administrative Agent and the
Lenders hereunder and under the other Loan Documents and (D) the payment
on a current basis of the reasonable fees and disbursements of respective
professionals (including, but not limited to, the reasonable fees and
disbursements of counsel and advisers as permitted under the Pre-Petition
Document) for the Pre-Petition Agent (including the payment on the Effective
Date or as soon thereafter as is practicable of any unpaid pre-petition fees
and expenses) and the continuation of the payment to the Pre-Petition Agent on
a current basis of the fees that are provided for under the Pre-Petition
Security Agreement; (iii) shall be in full force and effect; and (iv) shall
not have been stayed, reversed, modified or amended in any respect.


 


(c)                                  First Day Orders.  All of the First Day Orders entered by the
Bankruptcy Court at the time of commencement of the Cases shall be in form and
substance reasonably satisfactory to the Initial Lenders.


 


(d)                                 Payment of Fees.  The Borrower shall have paid all accrued fees
and expenses then due and payable of the Lead Arranger, the Administrative
Agent and the Initial Lenders.


 


(e)                                  Others.


 


(i)                                     The Initial
Lenders shall be satisfied in their reasonable judgment that, except as
authorized by the Interim Order (and without considering the Existing 


 


68

















 


Receivables
Facility for purposes of this clause (i)), there shall not occur as a result
of, and after giving effect to, the initial extension of credit under the DIP
Facility, a default (or any event which with the giving of notice or lapse of
time or both would be a default) under any of the Borrower’s, the Guarantors’
or their respective Subsidiaries’ debt instruments and other Material Contracts
which, in the case of the Borrower’s or any Guarantor’s debt instruments and
other Material Contracts, would permit the counterparty thereto to exercise
remedies thereunder after the Petition Date.


 


(ii)                                  The
Administrative Agent shall have received such field audits, asset appraisals
and such other reports as may reasonably be requested by the Administrative
Agent, to the extent the same can be delivered prior to the Initial Extension
of Credit after the exercise by the Loan Parties of commercially reasonable
efforts, in each case, in form, scope and substance reasonably satisfactory to
the Administrative Agent and the Initial Lenders.


 


(iii)                               There shall
exist no action, suit, investigation, litigation or proceeding pending or
threatened in any court or before any arbitrator or governmental
instrumentality (other than the Cases) that would not be stayed and (i) could
reasonably be expected to result in a Material Adverse Change during the term
of the Cases or (ii) restrains, prevents or imposes or could reasonably be
expected to impose materially adverse conditions upon the Facilities or the
transactions contemplated hereby.


 


(iv)                              All necessary
governmental and third party consents and approvals necessary in connection
with the Facilities and the transactions contemplated hereby shall have been
obtained (without the imposition of any adverse conditions that are not
reasonably acceptable to the Lenders) and shall remain in effect; and no law or
regulation shall be applicable in the judgment of the Initial Lenders that
restrains, prevents or imposes materially adverse conditions upon the
Facilities or the transactions contemplated hereby.


 


(v)                                 The Initial
Lenders shall have received, to the extent requested, 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.


 


(vi)                              The
Administrative Agent shall have received endorsements (to the extent such
endorsements can be delivered prior to the Initial Extension of Credit after
the exercise of the Loan Parties’ commercially reasonably efforts) 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 Borrower, the Guarantors and their respective Subsidiaries
forming part of the Collateral.


 


(vii)                           Concurrently
with the Initial Extension of Credit, the Existing Receivables Facility shall
be paid in full, all Liens securing the Existing Receivables Facility shall be
terminated, and the Accounts subject to the Existing Receivables Facility shall
be transferred to the Loan Parties.


 


(viii)                        The Borrower
shall have retained a turnaround advisory firm reasonably satisfactory to the
Administrative Agent (it being understood Alvarez & Marsal is
satisfactory to the Administrative Agent) and a chief restructuring officer
reasonably satisfactory to the Required Lenders.


 


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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) or
2.21(c)) on the occasion of each Borrowing, and (b) the obligation of the
Issuing Banks to issue a Letter of Credit (including the initial issuance of a
Letter of Credit hereunder) 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 or Letter of Credit Application and the acceptance by the Borrower 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 Borrower 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;


 


(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


 


(C)                                the Interim
Order is in full force and effect and has not been stayed, reversed, modified
or amended in any respect (except pursuant to the Final Order) without the
prior written consent of the Lenders, provided that if at the time of
the making of any Advance or the issuance of any Letter of Credit, the amount
of either of which, when added to the sum of the aggregate Advances outstanding
and the aggregate Available Amount of all Letters of Credit then outstanding,
would exceed the amount authorized by the Interim Order (collectively, the “Additional
Credit”), the Administrative Agent and each of the Lenders shall have
received a copy of an order of the Bankruptcy Court entered in the Cases, in
substantially the form of the Interim Order, with such modifications thereto as
are satisfactory to the Lenders including the modifications described in this Section 3.02(b)(i)(C) (the
“Final Order”), which, in any event, (v) shall have been entered by
the Bankruptcy Court no later than 40 days after entry of the Interim Order, (w) at
the time of the extension of any Additional Credit shall be in full force and
effect, (x) shall authorize extensions of credit in respect of the
Non-rollup Revolving Credit Facility in the aggregate amount of up to
$63,532,482, in respect of the Term Facility in the aggregate amount of up to
$250,000,000 and in respect of the Rollup Revolving Credit Facility in the
aggregate amount of up to $86,467,518, (y) shall authorize and direct the
repayment of the Pre-Petition Secured Indebtedness (other than the Unrolled
Pre-Petition Secured Indebtedness) and (z) shall not have been stayed,
reversed, modified or amended without the prior written consent of the Lenders
in any respect; and


 


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(ii)                                  the Lenders
shall have received the Borrowing Base Certificate most recently required to be
delivered pursuant to Section 5.03(p), the calculations contained in which
shall be reasonably satisfactory to the Administrative Agent.


 


Section 3.03 
Conditions Precedent to the Term Borrowing.  The obligation of each Term Lender to make a
Term Advance pursuant to Section 2.01(a)(ii) is subject to the
satisfaction of the following conditions precedent:


 


(a)                                  The Administrative Agent shall have received a Notice of
Borrowing with respect to such Borrowing as required by Section 2.02.


 


(b)                                 The Final Order shall have been entered by the Bankruptcy
Court.


 


(c)                                  The Administrative Agent shall have received such initial
field audits, asset appraisals and such other reports as may reasonably be
requested by the Administrative Agent, in each case, in form, scope and
substance reasonably satisfactory to the Administrative Agent and the Initial
Lenders.


 


(d)                                 The Borrower shall have paid to the Administrative Agent,
the Lead Arranger and the Lenders the then unpaid balance of all accrued and
unpaid fees of the Administrative Agent, the Lead Arranger and the Lenders, and
the reasonable fees and out-of-pocket expenses of counsel to the Administrative
Agent, the Lead Arranger and the Lenders as to which invoices have been issued.


 


(e)                                  The Pre-Petition Secured Indebtedness (other than Unrolled
Pre-Petition Secured Indebtedness) shall have been paid in full, all Liens
securing the Pre-Petition Secured Indebtedness (other than Liens securing the
Unrolled Pre-Petition Secured Indebtedness) shall have been terminated, and the
Pre-Petition Document in effect prior to the Petition Date shall have been
amended in form and substance reasonably satisfactory to the Administrative
Agent and the Initial Lenders.


 


(f)                                    The Administrative Agent shall have received endorsements
reasonably satisfactory to the Administrative Agent 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
Borrower, the Guarantors and their respective Subsidiaries forming part of the
Collateral.


 


(g)                                 The Borrower shall have used commercially reasonable efforts
to cause the Facilities to be rated by S&P and an additional national
rating agency.


 


(h)                                 The conditions set forth in Sections 3.01 and 3.02 shall
have been satisfied.


 


Section 3.04  Determinations Under Sections 3.01 and
3.03.  For purposes of determining
compliance with the conditions specified in Sections 3.01 and 3.03, each
Lender Party 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 the Lender Parties
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 or the Final Term Advance Date, as
applicable, specifying its objection thereto, and if a Borrowing occurs on the
Effective Date or the Final Term Advance Date, as applicable, such Lender Party
shall not have made available to the Administrative Agent such Lender Party’s
ratable portion of such Borrowing.


 


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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 duly organized,
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 could not reasonably be expected to have, a
Material Adverse Effect, (ii) is duly qualified and in good standing 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 be reasonably likely to have a Material Adverse Effect, and (iii) subject
to the entry by the Bankruptcy Court of (x) the Interim Order at any time
prior to the entry of the Final Order and (y) the Final Order at any time
thereafter, 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, could not reasonably be expected
to result in a Material Adverse Effect. 
All of the outstanding capital stock of each Loan Party (other than the
Borrower) 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.


 


(b)                                 Set forth on Schedule 4.01(a) hereto is a complete
and accurate list of all Subsidiaries of the Borrower, 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 Borrower 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 date
hereof (as to each Loan Party) the jurisdiction of its incorporation and 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)                                  Subject to the entry of the Interim Order by the Bankruptcy
Court, the execution, delivery and performance by each Loan Party of this
Agreement, the Notes and 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, 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 any of their properties to the
extent the same is enforceable after the Petition Date or (iv) except for
the Liens created under the Loan Documents, the Interim Order and the Final
Order, result in or require the creation or 


 


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imposition of any Lien upon or with
respect to any of the properties of any Loan Party or any of its Subsidiaries.


 


(d)                                 Except for the entry of the DIP Financing Orders, no
authorization, approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is
required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of this Agreement, the Notes or 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
(including the requisite priority set forth in the DIP Financing Orders, if and
to the extent perfection was achieved by the entry of the DIP Financing Orders)
or (iv) subject to the DIP Financing Orders, 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.


 


(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, subject to (x) the entry of the Interim
Order and the terms thereof at any time prior to the entry of the Final Order
and (y) the entry of the Final Order and the terms thereof at any time
thereafter, the legal, valid and binding obligation of each Loan Party thereto,
enforceable against such Loan Party in accordance with its terms and the terms
of the DIP Financing Orders, except as such enforceability may be limited by
the effect of foreign laws, rules and regulations as they relate to
Pledged Equity in Foreign Subsidiaries.


 


(f)                                    The Consolidated balance
sheet of the Borrower and its Subsidiaries as at December 31, 2008, and
the related Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the Fiscal Year then ended, which have been furnished
to each Lender Party, present fairly the financial condition and results of
operations of the Borrower and its Subsidiaries as of such date and for such period,
all in accordance with GAAP consistently applied.  Since December 31, 2008, other than the
commencement of the Cases and the matters disclosed in the Borrower’s annual
report on Form 10-K for the fiscal year ended December 31, 2008,
there has not occurred a Material Adverse Change.


 


(g)                                 The DIP Budget and all projected Consolidated balance
sheets, income statements and cash flow statements of the Borrower 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 DIP Budget or projections, as the case may be, it being
understood that projections are subject to significant uncertainties and
contingencies many of which are beyond the Borrower’s control, and that no
guarantees can be given that the forecasts will be realized.


 


(h)                                 No information, exhibit or report furnished by or on behalf
of the Borrower 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 contained any untrue statement of a material fact or
omitted 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.


 


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(i)                                     Except as set forth on Schedule 4.01(i) and the Cases,
there is no action, suit, investigation, litigation or proceeding affecting the
Borrower or any of its Subsidiaries, including any Environmental Action,
pending or threatened before any court, Governmental Authority or arbitrator
that (i) could reasonably be expected to have a Material Adverse Effect or
(ii) purports to adversely affect the legality, validity or enforceability
of this Agreement, any Note or any other Loan Document.


 


(j)                                     The Borrower is not 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 Borrower 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 could 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
such Borrower or Subsidiary know of any valid basis for any such claim, except,
in either case, for such claims that in the aggregate could not reasonably be
expected to have a Material Adverse Effect. 
The use of such Intellectual Property by the Borrower and its
Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could 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 with respect to any Plan 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 could reasonably be expected
to have a Material Adverse Effect.


 


(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
could reasonably be expected to result in a Material Adverse Effect.


 


(iii)                               Neither any
Loan Party nor any ERISA Affiliate 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 no such
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA.


 


(m)                               Except as set forth on Schedule 4.01(m) or as could not
reasonably be expected to result in a Material Adverse Effect, the operations
and properties of the Borrower and each of its Subsidiaries comply in all
material respects with all applicable Environmental Laws and Environmental
Permits, all past non-compliance with such Environmental Laws and Environmental
Permits has been resolved without ongoing obligations or costs, and no
circumstances exist that could be reasonably likely to (i) form the basis
of an Environmental Action against the Borrower or any of its Subsidiaries or
any of their properties (whether owned, leased or operated or formerly owned
leased or operated) or (ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.


 


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(n)                                 Except to the extent failure to do so is permitted by
chapter 11 of the Bankruptcy Code or pursuant to the Interim Order or the Final
Order, 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 taxes
shown thereon to be due, together with applicable interest and penalties.


 


(o)                                 Except as could 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 could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.


 


(q)                                 Upon the entry of the DIP Financing Orders, the DIP
Financing Orders and the Collateral Documents create a valid and perfected
security interest in the Collateral having the priority set forth therein
securing the payment of the Secured Obligations, and all filings and other
actions necessary or desirable, as determined in the reasonable discretion of
the Initial Lenders, to perfect and protect such security interest have been
duly taken, in each case if and to the extent perfection may be achieved by the
entry of the DIP Financing Orders.  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.


 


(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 the Borrower, nor the
consummation of the other transactions contemplated by the Loan Documents, will
violate any provision of any such Act or any rule, regulation or order of the Securities
and Exchange Commission thereunder.


 


(s)                                  As of the date hereof, the Equity Interests owned by the
Borrower or any of its Subsidiaries listed on Schedule 4.01(a) and the
Initial Pledged Debt set forth on Schedule V hereto are all Equity Interests
and Debt (other than any exception contained in the definition of “Initial
Pledged Debt”) held by or owed to any Loan Party or any of its Subsidiaries.


 


(t)                                    Set forth on Schedule 4.01(t) hereto is a complete and
accurate list of all Surviving Debt that is Debt for borrowed money (other than
Surviving Debt in an aggregate amount not exceeding $1,000,000), showing as of
the date hereof 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 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
aggregate amount not exceeding $1,000,000), showing as of the date hereof 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.


 


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(v)                                 No Non-Filing Domestic Subsidiary (other than Chemtura
Receivables LLC) is a Material Subsidiary.


 


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 Borrower and its Subsidiaries may consummate any transaction permitted
under Section 5.02(h) or (l) and provided  further
that neither the Borrower 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
Borrower or such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower, such Subsidiary or the
Lender Parties.


 


(b)                                 Compliance with Laws.  Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable laws, rules, regulations
and orders material to the business of the Borrower and its Subsidiaries, such
compliance to include, without limitation, compliance with ERISA, Environmental
Laws and the Patriot Act.


 


(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 Borrower or such Subsidiary operates; provided,
however, that the Borrower 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 Borrower or such Subsidiary
operates and to the extent consistent with prudent business practice.


 


(d)                                 Obligations and Taxes.  In accordance with the Bankruptcy Code and
subject to any required approval by an applicable order of the Bankruptcy
Court, pay all its material obligations arising after the Petition Date that
constitute administrative expenses under Section 503(b) of the
Bankruptcy Code in the Cases promptly and in accordance with their terms 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
arising, or attributed to the period, after the Petition Date, before the same
shall become in default, as well as all lawful claims for labor, materials and
supplies or otherwise arising after the Petition Date which, if unpaid, would
become a Lien or charge upon such properties or any part thereof; provided,
however, that the Borrower and each Guarantor shall not be required to
pay and discharge or to cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the (i) payment or discharge
thereof shall be stayed by section 362(a)(8) of the Bankruptcy Code, or (ii) the
validity or amount thereof shall be contested in good faith by appropriate
proceedings, in each case, if the Borrower and the 


 


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Guarantors shall have set aside on
their books adequate reserves therefor in conformity with GAAP.


 


(e)                                  Access to Books and Records.


 


(i)                                     Maintain or
cause to be maintained at all times proper books and records in accordance with
GAAP of the financial operations of the Borrower 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, the Borrower shall not be required to pay the
expenses of the Lender Parties for more than one visit per calendar quarter), 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 Borrower 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 Borrower and the Guarantors
with the officers and independent accountants of the Borrower.


 


(ii)                                  Grant the
Lender Parties (coordinated by the Administrative Agent) access to and the
right to inspect all reports, audits and other internal information of the
Borrower and the Guarantors relating to environmental matters upon reasonable
notice.


 


(iii)                               At any
reasonable time and from time to 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 Borrower and the
Guarantors to conduct evaluations, appraisals, environmental assessments and
ongoing maintenance and monitoring in connection with the Borrower’s
computation of the Borrowing Base and the assets included in the Borrowing Base
and such other assets and properties of the Borrower or its 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; provided that such third-party
appraisals may be conducted (i) no more than twice per year (excluding the
appraisals conducted prior to the Final Term Advance Date) or (ii) at any
time (x) upon the occurrence and continuance of an Event of Default or (y) after
the Final Term Advance Date, the Availability shall have been less than
$75,000,000.


 


(f)                                    Use of Proceeds.  Use the proceeds of the Advances solely for
the purposes, and subject to the restrictions, set forth in Section 2.14.


 


(g)                                 Restructuring Advisor; Financial Advisor.  Retain at all times
(i) a restructuring advisor and (ii) a financial advisor that, in
each case, has substantial experience and expertise advising chapter 11
debtors-in-possession in large and complex bankruptcy cases (it being
understood that Alvarez & Marsal and Lazard are advisors described in
this clause (g)); provided that any failure to comply with this Section 5.01(g) shall
not be deemed to have occurred so long as the Loan Parties shall have filed a
motion with the Bankruptcy Court to retain a replacement advisor within 10 days
of such failure.


 


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(h)                                 Priority.  Acknowledge pursuant to section 364(c)(1) of
the Bankruptcy Code, the Obligations of the Loan Parties hereunder and under
the other Loan Documents constitute allowed Superpriority Claims.


 


(i)                                     Validity of Loan Documents.  Use its commercially reasonable efforts to
object to any application made on behalf of any Loan Party or by any Person to
the validity of any Loan Document or the applicability or enforceability of any
Loan Document or which seeks to void, avoid, limit, or otherwise adversely
affect the security interest created by or in any Loan Document or any payment
made pursuant thereto.


 


(j)                                     Cash Management System.  Maintain with the Administrative Agent an
account or accounts (i) to be used by the Borrower and the Guarantors as
their principal concentration accounts and (ii) into which shall be swept
or deposited, on each Business Day, all cash of the Borrower and the Guarantors
in all of the operating and other bank accounts of the Borrower and the
Guarantors (other than the accounts described in the proviso to Section 5.01(k))
maintained at any institution other than Citibank; provided that this
clause (ii) shall not apply to accounts in which the aggregate amount on
deposit for all such accounts is less than $500,000.


 


(k)                                  Account Control Agreements.  With respect to all lockboxes and deposit
accounts of each Loan Party (other than those (for so long as Citibank is the
Administrative Agent hereunder) maintained with Citibank), obtain and deliver
to the Administrative Agent, no later than 10 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; provided, however, that this Section 5.01(k) shall
not apply to (i) payroll accounts, trust accounts, employee benefits
accounts and tax escrow accounts, in each case maintained in the ordinary
course of business, and (ii) deposit accounts to the extent the aggregate
amount on deposit in each such deposit account does not exceed $100,000 at any
time and the aggregate amount on deposit in all such deposit accounts does not
exceed $500,000  at any time.


 


(l)                                     Mortgages.  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), duly executed Mortgages
suitable for recording with respect to all Material Real Property and such
other documents, including a policy or policies of title insurance issued by a
nationally recognized title insurance company, together with such endorsements,
coinsurance and reinsurance as may be reasonably requested by the
Administrative Agent, insuring the Mortgages as valid first Liens on such real
property, free of Liens other than those permitted under Section 5.02(a),
together with such surveys, abstracts, appraisals and legal opinions required
to be furnished pursuant to the terms of the Mortgages or as reasonably
requested by the Administrative Agent.


 


(m)                               Additional Guarantors.  Cause each Subsidiary that hereafter becomes
party to a Case to execute a Guaranty Supplement within 10 days of becoming
party thereto; provided, however, that notwithstanding the
foregoing, no Subsidiary will be required to become or remain a Guarantor or
provide or maintain a Lien on any of its assets as security for any of the
Obligations (A) if such Subsidiary is not a wholly-owned Subsidiary; or (B) to
the extent doing so would (1) result in any material adverse tax
consequences or (2) be prohibited by any applicable law.


 


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(n)                                 Further Assurances.


 


(i)                                     Promptly upon
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.


 


(ii)                                  Promptly upon
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 properties, assets, rights or
interests 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.


 


(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 located at a third party
processor or in a location not owned by a Loan Party.


 


(iv)                              Cause to be
delivered promptly to the Administrative Agent no later than 30 days following
the Effective Date (or such later date as the Initial Lenders may reasonably
determine) (A) such field audits, asset appraisals and such other reports
as may reasonably be requested by the Administrative Agent, in each case, in
form, scope and substance satisfactory to the Administrative Agent, (B) 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 Borrower, the Guarantors and their respective
Subsidiaries forming part of the Collateral, (C) favorable opinions of
local counsel to Guarantors that are reasonably determined by the
Administrative Agent to be material, with respect to customary matters, in form
and substance reasonably satisfactory to the Administrative Agent and (D) information
(with details reasonably satisfactory to the Administrative Agent) setting
forth, with respect to any percentage of any Voting Foreign Stock owned by any
Loan Party that is not pledged under this Agreement to the Administrative Agent
on behalf of the Secured Parties, the material adverse tax consequences that
would result to the Borrower if such percentage of such Voting Foreign Stock
were so pledged under this Agreement.


 


(o)                                 Maintenance of Properties, Etc.  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 


 


79

















 


conduct of its business in good working
order and condition, ordinary wear and tear, casualty and condemnation
excepted.


 


(p)                                 Ratings.  Cause the Facilities to be rated by S&P
and an additional national rating agency no later than 15 days after the entry
of the Final Order by the Bankruptcy Court and thereafter at all times maintain
ratings of the Facilities by S&P and an additional national rating agency.


 


(r)                                    Monthly Conference Call.  Unless otherwise agreed by the Administrative
Agent, the Borrower shall host one or more conference calls or meetings with
the Lenders during each calendar month at times mutually agreed by the Borrower
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 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 Borrower or any of its Subsidiaries now owned or
hereafter acquired by any of the Borrower or the Guarantors, other than: (i) Liens
listed on Schedule 4.01(u); (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; (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;
and (ix) Liens granted by a Non-Loan Party in favor of any Loan Party.


 


(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) Surviving Debt and any Debt
extending the maturity of, or refunding or refinancing, in whole or in part,
any Surviving Debt; provided that the terms of any such extending,
refunding or refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are otherwise permitted by the Loan
Documents; provided  further that the principal amount of such
Surviving Debt shall not be increased above the principal amount thereof
(together with fees and expenses in connection with such extension, refunding
or refinancing) outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension, refunding or
refinancing; and provided  further that the terms relating to
principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such extending,
refunding or refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lender Parties than the terms of
any agreement or instrument governing the Surviving Debt being 


 


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extended, refunded or refinanced and
the interest rate applicable to any such extending, refunding or refinancing
Debt does not exceed the then applicable market interest rate; (iii) Debt
arising from Investments among the Borrower 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 outstanding
principal amount not in excess of $10,000,000
at any time outstanding; (vii) Debt (other than Debt of Foreign
Subsidiaries) constituting purchase money debt and Capitalized Lease
obligations (not otherwise included in subclause (ii) above) in an
aggregate outstanding amount not in excess of $10,000,000; (viii) (A) Debt
(other than Debt of Foreign Subsidiaries) 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
(other than Debt of Foreign Subsidiaries) arising on and after the Petition
Date under the Cash Management Agreements, provided that the aggregate
amount of Debt under this clause (viii) shall not exceed $10,000,000 at
any time outstanding; (ix) Debt which may be deemed to exist pursuant to
any surety bonds, appeal bonds or similar obligations incurred in connection
with any judgment not constituting an Event of Default; (x) Debt of
Foreign Subsidiaries arising under any European Receivables Financing or any
other receivables factoring or other securitization programs, in an aggregate
principal amount for all such financings not to exceed €100,000,000 at any time
outstanding (for purposes of this clause (x), the “principal amount” of a
receivables factoring or other securitization program shall mean the amount
invested by investors that are not Affiliates of the Borrower and paid to the
Borrower 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); and (xi) Debt not otherwise permitted hereunder in an
aggregate outstanding principal amount of $5,000,000.


 


(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) for any
guaranty of Debt or other obligations of the Borrower or any Guarantor if the
Borrower or such Guarantor could have incurred such Debt or obligations 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 Borrower and its Subsidiaries
permitted hereunder and (iv) (A) Guarantee Obligations under the
letter agreement dated February 25, 2009 between the Borrower and
Mediofactoring Spa in effect as of the date hereof (as such agreement may
hereafter be amended, restated, supplemented or otherwise modified, so long as
the terms thereof are not less favorable to the Borrower and the Lenders than
as in effect on the date hereof (except that the Permitted Modifications of the
primary obligations (as defined in the definition of “Guaranteed Obligations”)
guaranteed under such letter agreement are permitted) 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.


 


(d)                                 Chapter 11 Claims.  In respect of any Loan Party, incur, create,
assume, suffer to exist or permit any other Superpriority Claim that is pari
passu with or senior to the claims of the Agents and the Secured Parties
against the Borrower and the Guarantors except with respect to the Carve-Out
and Liens described in clauses (A) through (D) of Section 9.08(a)(ii).


 


(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) 


 


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any shares of capital stock (or any
options, warrants, rights or other equity securities or agreements relating to
any capital stock) of the Borrower, or set apart any sum for the aforesaid
purposes.


 


(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 Borrower 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
Borrower and its Subsidiaries; (v) reasonable and customary employment and
severance arrangements with officers and employees of the Borrower and its
Subsidiaries in the ordinary course of business; or (vi) transactions
pursuant to contractual obligations or arrangements in existence on the
Petition Date.


 


(g)                                 Investments.  Make or hold, or permit any of its
Subsidiaries to make, any Investment in any Person, except for (i) Investments
described in Section 4.01(s); (ii) Investments in Cash Equivalents
(and other customary cash equivalents acceptable to the Administrative Agent in
its sole discretion) and Investments by Foreign Subsidiaries in securities and
deposits similar in nature to Cash Equivalents and customary in the applicable
jurisdiction; (iii) advances and loans existing on the Petition Date among
the Borrower and the Subsidiaries (including any refinancings or extensions
thereof but excluding any increases thereof or any further advances of any kind
in connection therewith); (iv) Investments or intercompany
loans or advances made on or after the Petition 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 (so long as any Indebtedness owing by a Loan Party to a Non-Loan Party is
subordinated in right of payment to the prior payment in full of the
Obligations on terms satisfactory to the Administrative Agent) 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 the 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) or
(iv) above; (ix) loans and advances to employees, directors
and officers of the Borrower and its Subsidiaries (i) required by
applicable employment laws or (ii) 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 outstanding not to exceed $500,000; (x) Hedge Agreements and Cash
Management 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 


 


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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) Investments in the form
of intercompany loans by any Loan Party to any Foreign Subsidiary not to exceed
$7,500,000 in the aggregate at any time outstanding; (xiii) Investments made by
the Borrower or any of its Subsidiaries in joint ventures that are not
Subsidiaries to the extent such Investments are required to be made by the
Borrower or such Subsidiary, as the case may be, under binding agreements as in
effect on the date hereof, in each case described on Schedule 5.02(g); provided
that the aggregate amount of Investments under this clause (xiii) shall not
exceed $6,000,000; and (xiv) Investments made in Chemtura Receivables LLC on
the Effective Date solely to extent necessary for the repayment on the
Effective Date of Obligations under the Existing Receivables Facility and the
receivables assets repurchased by such repayment.


 


(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 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; (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
Borrower 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 and receivables related assets or any interest therein by any
Foreign Subsidiary in connection with any factoring or similar arrangement,
subject to compliance with Sections 5.02(a)(vi) and 5.02(b)(vi) above;
(x) other sales, leases, transfers or dispositions of assets for fair
value in an aggregate amount not to exceed $10,000,000 in the period commencing
the Effective Date and ending on the Maturity Date so long as (A) in the
case of any sale or other disposition, not less than 75% of the consideration
is cash and (B) no Default or Event of Default exists immediately before
or after giving effect to any such sale, lease, transfer or other disposition;
(xi) transfers of property that is the subject of a casualty event; (xii) sales
or dispositions by the Foreign Subsidiaries of assets or other property that do
not exceed $10,000,000 in the aggregate; (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 issuance of Equity Interests solely to consummate Investments
permitted under Section 5.02(g)(iv), (ix), (xi), (xii) or (xiii); and (xv)
dispositions of property made or deemed made solely because Liens permitted
under Section 5.02(a) on such property are granted.


 


(i)                                     Nature of Business.  Engage, or permit any of its Subsidiaries to
engage in any material line of business substantially different from its
business as conducted at or prior to the Petition Date or related businesses
(except as required by the Bankruptcy Code), it being understood that
transactions permitted by Sections by 5.02(a), 5.02(b), 5.02(c), 5.02(d),
5.02(e), 5.02(f) and 5.02(g) and discontinuing operations expressly
identified as operations to be discontinued in the forecast delivered pursuant
to Section 3.01(a)(viii) or in the DIP Budget shall not constitute a
breach of the foregoing.


 


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(j)                                     Limitation on Prepayments and Cancellation of Debt and
Pre-Petition Obligations.  Except as otherwise allowed pursuant to the
Interim Order, the Final Order or any order of the Bankruptcy Court and
approved by the Required Lenders, (i) 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 Pre-Petition Debt or other pre-Petition Date obligations of the Borrower or
any Guarantor other than refinancings otherwise permitted by this Agreement, (ii) pay
any interest on any Pre-Petition Debt of the Borrower or Guarantor (whether in
cash, in kind securities or otherwise), or (iii) make any payment or
create or permit any Lien pursuant to section 361 of the Bankruptcy Code (or
pursuant to any other provision of the Bankruptcy Code authorizing adequate
protection) on property of the Loan Parties, or apply to the Court for the
authority to do any of the foregoing; provided that (x) the
Borrower may make payments for administrative expenses that are allowed and
payable under sections 330 and 331 of the Bankruptcy Code, (y) the
Borrower may prepay the obligations under the Loan Documents and make payments
permitted by the First Day Orders, and (z) the Borrower may make payments
to such other claimants and in such amounts as may be consented to by the
Initial Lenders and approved by the Bankruptcy Court.  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).


 


(k)                                  Capital Expenditures.  Make, or permit any of its Subsidiaries to
make, any Capital Expenditures that would cause the aggregate of all such
Capital Expenditures made by the Borrower and its Subsidiaries (i) to exceed
(A) $11,000,000 for the fiscal quarter ending June 30, 2009, (B) $21,000,000
for the fiscal quarter ending September 30, 2009, or (C) $24,000,000
for each subsequent fiscal quarter, or (ii) during the period from the
Effective Date to the Termination Date to exceed $75,000,000.


 


(l)                                     Mergers.  Merge into or consolidate with any Person or
permit any Person to merge into it, except (i) for mergers or
consolidation constituting permitted Investments under Section 5.02(g) or
asset dispositions permitted pursuant to Section 5.02(h), (ii) mergers,
consolidations, liquidations or dissolutions (A) by
any Loan Party (other than the Borrower) with or into any other Loan Party, or (B) by
any Non-Loan Party with or into any other Non-Loan Party; provided that,
in the case of any such merger or consolidation, the person formed by or
surviving such merger or consolidation shall be a wholly owned Subsidiary of
the Borrower, and provided  further that in the case of any such
merger or consolidation (x) to which the Borrower is a party, the Person
formed by such merger or consolidation shall be the Borrower and (y) to
which a Loan Party (other than the Borrower) is a party (other than a merger or
consolidation made in accordance with subclause (D) above), the Person
formed by such merger or consolidation shall be a Loan Party; and (iii) the
dissolution, liquidation or winding up of any Subsidiary of the Borrower, provided
that such dissolution, liquidation or winding up would not reasonably be
expected to have a Material Adverse Effect and the assets of the Person so
dissolved, liquidated or wound-up are distributed to the Borrower or to a Loan
Party or if such entity is a Foreign Subsidiary, the Persons holding the Equity
Interests of such Subsidiary.


 


(m)                               Amendments of Constitutive Documents.  Amend (i) its
constitutive documents except for amendments that could not adversely affect
the interests of the Lenders or (ii) any of the Material Contracts, except
for amendments that would not reasonably be expected to materially adversely
affect the interests of the Lenders.


 


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(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.


 


(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 Borrower 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 permitted pursuant to Section 5.02(a)(iii),
(v), (vi), (vii) or (viii) (so long as (x) in the case of
agreements evidencing Liens permitted under Section 5.02(a)(iii), such
prohibitions or conditions are customary for such Liens and the obligations
they secure and (y) in the case of agreements evidencing Liens permitted
under Section 5.02(a)(v), (vi), (vii) or (viii), such prohibitions or
conditions relate solely to the assets that are the subject of such Liens) or (2) any
Debt permitted to be incurred under Sections 5.02(b)(ii), (vi), (vii), or (viii) above
(so long as (x) in the case of agreements evidencing Debt permitted under Section 5.02(b)(vi),
such prohibitions or conditions are customary for such Debt and (y) in the
case of agreements evidencing Debt permitted under Section 5.02(b)(vii) or
(viii), such prohibitions or conditions are limited to the assets securing such
Debt); (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 Borrower 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 Petition 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; and (I) customary provisions restricting
assignment of any agreement entered into in the ordinary course of business.


 


(p)                                 Sales and Lease Backs.  Except as set forth on Schedule 5.02(p), (i) become
or remain liable as lessee or as a guarantor or other surety with respect to
any lease of any property, whether now owned or hereafter acquired (A) which
such Loan Party has sold or transferred or is to sell or transfer to any other
Person (other than another Loan Party) or (B) which such Loan Party
intends to use for substantially the same purpose as any other property which
has been or is to be sold or transferred by a Loan Party to any Person (other
than another Loan Party) in connection with such lease, or (ii) create,
incur, assume or suffer to exist any obligations as lessee under operating
leases or agreements to lease having an original term of one year or more that
would cause the direct and contingent liabilities of the Borrower and its
Subsidiaries, on a consolidated basis, in respect of all such obligations to
exceed $50,000,000 payable in any period of 12 consecutive months.


 


(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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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 Borrower will furnish to the
Administrative Agent: Default
Notice.  As soon as possible and in any event within
three Business Days after any Loan Party or any Responsible Officer thereof has
knowledge of the occurrence of each Default or within five Business Days after
any Loan Party or any Responsible Officer thereof has knowledge of the
occurrence of any event, development or occurrence reasonably likely 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
Borrower setting forth details of such Default or other event and the action
that the Borrower 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 Borrower and its Subsidiaries as of the end
of such month, and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of the
previous month and ending with the end of such month, and Consolidated
statements and cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end of
such month, setting forth (i) in comparative form the corresponding
figures for the forecast delivered pursuant to Section 3.01(a)(viii) and
(ii) in comparative form the corresponding figures for the corresponding
month of the immediately preceding Fiscal Year, all in reasonable detail and
duly certified by a Responsible Officer of the Borrower.


 


(c)                                  Quarterly Financials.  As soon as available and in any event within
40 days after the end of each of the first three quarters of each Fiscal Year
(or (x) in respect of the fiscal quarter ending March 31, 2009,
within 60 days after the end of each such quarter  or (y) or such earlier date as the Borrower may be
required by the SEC to deliver its Form 10-Q), a Consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such quarter, and
Consolidated statements of income and cash flows of the Borrower 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 Borrower 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
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 Borrower 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 Borrower has taken
and proposes to take with respect thereto, together with a schedule in form
reasonably satisfactory to the Initial Lenders of the computations used in
determining, as of the end of such fiscal quarter, compliance with the
covenants contained in Sections 5.02(k) and 5.04; provided
that, in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Sections 5.02(k) and 5.04, 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 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 Borrower and its Subsidiaries as of the end of such Fiscal Year
and Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for such Fiscal Year, in each case accompanied by (A) an
opinion of independent public accountants of recognized national standing
acceptable to the Initial Lenders and (B) a 


 


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certificate of a Responsible Officer of
the Borrower 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 Borrower has taken and proposes to take with respect
thereto, together with a schedule in form reasonably satisfactory to the
Initial Lenders of the computations used in determining, as of the end of such
Fiscal Year, compliance with the covenants contained in Sections 5.02(k) and
5.04; provided that, in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.02(k) and
5.04, a statement of reconciliation conforming such financial statements to GAAP.


 


(e)                                  Budget Variance Report.  No later than the last Business Day of each
calendar week (commencing with the calendar week starting immediately after the
Effective Date), a Budget Variance Report as of the end of the immediately
preceding calendar week.


 


(f)                                    DIP Budget Supplement.  No later than the last Business Day of each
calendar month, and on any other date on which the Borrower may deliver the
same to the Bankruptcy Court, a supplement to the DIP Budget setting forth on a
weekly basis for the next thirteen weeks (commencing with the immediately
succeeding calendar week) an updated forecast of the information contained in
the DIP Budget for such period and a written set of supporting assumptions, all
in form and substance reasonably satisfactory to the Required Lenders.


 


(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 with respect to an
ERISA Plan, a statement of a Responsible Officer of the Borrower describing
such ERISA Event and the action, if any, that such Loan Party or such 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 upon receipt thereof by any Loan
Party or any ERISA Affiliate, a copy of the annual actuarial valuation report
for each Plan the funded current liability percentage (as defined in Section 302(d)(8) of
ERISA) of which is less than 90% or the unfunded current liability of which
exceeds $5,000,000.


 


(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 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 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) could be reasonably likely to have a Material
Adverse 


 


87

















 


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
Borrower sends to its public stockholders, copies of all regular, periodic and
special reports, and all registration statements, that the Borrower 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 Borrower’s website.


 


(m)                               Environmental Conditions.  Promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any non-compliance by
any Loan Party or any of its Subsidiaries with any 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)                                 Bankruptcy Pleadings, Etc.  Within five days after the same is available,
copies of all pleadings, motions, applications, judicial information, financial
information and other documents filed by or on behalf of any of the Loan
Parties with the Bankruptcy Court in the cases, or distributed by or on behalf
of any of the Loan Parties to the Committee or any official committee appointed
in the cases and, within five days after the same are filed, providing copies
of same to the Initial Lenders and counsel for Administrative Agent; provided
that such documents may be made available (and shall be deemed made available)
by posting on a website maintained by the Borrower, and identified to the
Lenders, in connection with the Cases.


 


(o)                                 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.


 


(p)                                 Borrowing Base Certificate.  A Borrowing Base Certificate substantially in
the form of Exhibit F as of the date required to be delivered or so
requested, in each case with supporting documentation, which shall be furnished
to the Initial Lenders:  (i) as soon
as available and in any event prior to the initial Borrowing to be made after
the date of entry of the Final Order, (ii) after such initial Borrowing, (A) on
or before the last Business Day of each calendar week, which weekly Borrowing
Base Certificate shall reflect the Eligible Receivables updated as of the end
of the Business Day preceding the date of such delivery and (B) on or
before the last Business Day of each two-week period, which biweekly Borrowing
Base Certificate shall reflect the Inventory updated as of the end of the Business
Day preceding the date of such delivery, certified by a Responsible Officer; provided
that notwithstanding anything herein to the contrary, the Borrower shall be
permitted to deliver an updated Borrowing Base Certificate on any Business Day,
which Borrowing Base Certificate shall reflect the Eligible Receivables and
Inventory updated as of the end of the preceding Business Day, certified by a
Responsible Officer, and (iii) if at any time after the Final Term Advance
Date the Availability shall be less than $75,000,000, or if reasonably
requested by the Initial Lenders at any other time when the Initial Lenders
reasonably believe 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 Initial Lenders may
reasonably request.


 


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Section 5.04  Financial 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, the Borrower will:


 


(a)                                  Minimum EBITDA.  Maintain Consolidated EBITDA of the Borrower
and its Subsidiaries for the period set forth below as at the last day of each
calendar month not less than the amount set forth below for such period, as
determined for such period then ended:


 


	
  Month

  	
   

  	
  Period then Ended

  	
   

  	
  EBITDA

  	
   

  
	
  March 2009

  	
   

  	
   

  	
  1 month

  	
   

  	
  $

  	
  -15,000,000

  	
   

  
	
  April 2009

  	
   

  	
   

  	
  2 months

  	
   

  	
  $

  	
  -8,000,000

  	
   

  
	
  May 2009

  	
   

  	
   

  	
  3 months

  	
   

  	
  $

  	
  3,000,000

  	
   

  
	
  June 2009

  	
   

  	
   

  	
  4 months

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  July 2009

  	
   

  	
   

  	
  5 months

  	
   

  	
  $

  	
  53,000,000

  	
   

  
	
  August 2009

  	
   

  	
   

  	
  6 months

  	
   

  	
  $

  	
  77,000,000

  	
   

  
	
  September 2009

  	
   

  	
   

  	
  7 months

  	
   

  	
  $

  	
  93,000,000

  	
   

  
	
  October 2009

  	
   

  	
   

  	
  8 months

  	
   

  	
  $

  	
  107,000,000

  	
   

  
	
  November 2009

  	
   

  	
   

  	
  9 months

  	
   

  	
  $

  	
  125,000,000

  	
   

  
	
  December 2009

  	
   

  	
   

  	
  10 months

  	
   

  	
  $

  	
  150,000,000

  	
   

  
	
  January 2010

  	
   

  	
   

  	
  11 months

  	
   

  	
  $

  	
  171,000,000

  	
   

  
	
  February 2010

  	
   

  	
   

  	
  12 months

  	
   

  	
  $

  	
  193,000,000

  	
   

  



 


(b)                                 Minimum Availability.  Not permit Availability to be less than
$40,000,000 on any Business Day after the Final Term Advance Date.


 


(c)                                  Compliance with Budget.  Not permit variance from the DIP Budget of
actual cash flow (excluding from the calculation thereof payments for (x) purchases
of raw materials and (y) professional fees not attributable to any
litigation) of the Borrower on a Consolidated basis to exceed, for any Testing
Period for any calendar week (commencing with the week that first ends after
the 30th day following the Effective Date) (i) ending
during the period from the Effective Date until the Final Term Advance Date,
10% of the amount set forth in the DIP Budget for such non-excluded cash flows
for such Testing Period, and (ii) ending after the Final Term Advance
Date, 20% of the amount set forth in the DIP Budget for such non-excluded cash
flows for such Testing Period.


 


89

















 


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)                                  the 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
two 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) 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 2.14, 5.01(a) (with
respect to the Loan Parties), 5.01(c), 5.01(f), 5.02, 5.03 (other than
subsections (e), (f), (l) and (n) of Section 5.03) or 5.04, (ii) any
term, covenant or agreement contained in Section 5.03(e) or (f), if
such failure shall remain unremedied for one Business Day, or (iii) any
term, covenant or agreement (other than those listed in clauses (i) and (ii) above)
contained in Article V hereof, if such failure shall remain unremedied for
10 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 20 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 arising after the Petition Date
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 $10,000,000
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 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 arising after the Petition Date of the Loan Parties and
their Subsidiaries (excluding Debt outstanding hereunder) that is outstanding
in an aggregate principal or notional amount of at least $10,000,000, and such
other event or condition shall continue after the applicable 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; or (iii) one or more items of Debt arising
after the Petition Date 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 $10,000,000 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


 


90

















 


(f)                                    one or more final, non-appealable judgments or orders for
the payment of money in excess of $10,000,000 in the aggregate at any time, as
an administrative expense of the kind specified in section 503(b) of the
Bankruptcy Code shall be rendered against any Loan Party or any of its
Subsidiaries and enforcement proceedings shall have been commenced, but not
stayed, by any creditor upon such judgment or order; or


 


(g)                                 one or more nonmonetary judgments or orders shall be
rendered against any Loan Party or any of its Subsidiaries that is reasonably
likely to have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or


 


(h)                                 any provision of any Loan Document after delivery thereof
pursuant to Article III shall for any reason cease to be valid and binding
on or enforceable against any Loan Party intended to be a party to it, or any
such Loan Party shall so state in writing; or


 


(i)                                     any Collateral Document after delivery thereof pursuant to Article III
shall for any reason (other than pursuant to the terms thereof) cease to create
a valid and perfected Lien on and security interest in the Collateral purported
to be covered thereby; or


 


(j)                                     the Borrower or any of its ERISA Affiliates 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 Borrower
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 could not reasonably be expected to result in a Material
Adverse Effect and (b) other liabilities not greater than $10,000,000 in
the aggregate; or


 


(k)                                  any of the Cases concerning the Borrower or Guarantors shall
be dismissed or converted to a case under chapter 7 of the Bankruptcy Code or
any Loan Party shall file a motion or other pleading or support a motion or
other pleading filed by any other Person seeking the dismissal of any of the
Cases concerning the Borrower or Guarantors under section 1112 of the
Bankruptcy Code or otherwise; a trustee under chapter 7 or chapter 11 of the
Bankruptcy Code, a responsible officer or an examiner with enlarged powers
relating to the operation of the business (powers beyond those set forth in
section 1106(a)(3) and (4) of the Bankruptcy Code) under section 1106(b) of
the Bankruptcy Code shall be appointed in any of the Cases and such order shall
not be reversed or vacated within 30 days after the entry thereof; or any Loan
Party shall file a motion or other pleading or shall consent to a motion or
other pleading filed by any other Person seeking any of the foregoing;


 


(l)                                     the existence of any other Superpriority Claim (other than
the Carve-Out) in any of the Cases which is pari passu with
or senior to the claims of the Administrative Agent and the Lenders against the
Borrower or any Guarantor hereunder, or there shall arise or be granted any
such pari passu or senior Superpriority Claim
(other than the Carve-Out); or


 


(m)                               the Bankruptcy Court shall enter an order or orders granting
relief from the automatic stay applicable under section 362 of the Bankruptcy
Code to the holder or holders of any security interest to proceed against,
including foreclosure (or the granting of a deed in lieu of foreclosure or the
like) on, any assets of any of the Borrower or the Guarantors that have a value
in excess of $10,000,000 in the aggregate, provided that this subsection
(m) shall not apply to any order granting relief from the automatic stay
pursuant to which a creditor exercises valid setoff 


 


91

















 


rights pursuant to section 553 of the
Bankruptcy Code,  the Interim Order, the Final Order, the First Day Orders, pursuant to Section 5.02(j),
in connection with any Lien permitted pursuant to Section 5.02(a)(ii) through
(v) or in connection with any Lien in existence on the Petition Date on
cash collateral securing a performance obligation (other than indebtedness for
borrowed money); or


 


(n)                                 (i) the filing of any motion seeking an order of the
Bankruptcy Court (or any other court of competent jurisdiction) (A) reversing,
amending, staying for a period in excess of 10 days or vacating the Final
Order, (B) without the written consent of the Administrative Agent and
Lender Parties, otherwise amending, supplementing or modifying the Final Order
in a manner that is adverse to the Agents and the Lenders or (C) terminating
the use of cash collateral by the Borrower or the Guarantors pursuant to the
Final Order; provided that such event shall not constitute an Event of
Default if such motion shall be dismissed or withdrawn within 5 Business Days
of such filing and no such order is entered by the Bankruptcy Court as a result
of such filing; or any Loan Party shall file a motion or other pleading or
shall consent to a motion or other pleading filed by any other Person seeking
any of the foregoing; or


 


(ii) an
order of the Bankruptcy Court (or any other court of competent jurisdiction)
shall be entered (A) reversing, amending, staying for a period in excess
of 10 days or vacating either of the DIP Financing Orders, (B) without the
written consent of the Administrative Agent and Lender Parties, otherwise
amending, supplementing or modifying either of the DIP Financing Orders in a
manner that is adverse to the Agents and the Lenders or (C) terminating
the use of cash collateral by the Borrower or the Guarantors pursuant to the
DIP Financing Orders; or


 


(o)                                 default in any material respect shall be made by the
Borrower or any Guarantor in the due observance or performance of any term or
condition contained in any DIP Financing Order; or


 


(p)                                 a final non-appealable order of the Bankruptcy Court shall
be entered that provides for the recovery from any portions of the Collateral
of any costs or expenses of preserving or disposing of such Collateral under
section 506(c) of the Bankruptcy Code; or any Loan Party shall bring a
motion in the Cases seeking, or otherwise consent to, authority from the
Bankruptcy Court (i) to recover from any portions of the Collateral any
costs or expenses of preserving or disposing of such Collateral under section
506(c) of the Bankruptcy Code or (ii) to effect any other action or
actions adverse to the Administrative Agent or Lenders or their rights and
remedies hereunder or their interest in the Collateral, except to the extent
such action (or actions) is an integral part of a transaction expressly
permitted under this Agreement;


 


(q)                                 any Loan Party shall bring a motion in the Cases: (i) to
obtain working capital financing from any Person other than Lenders under
section 364(d) of the Bankruptcy Code; or (ii) to obtain financing
for such Loan Party from any Person other than the Lenders under section 364(c) of
the Bankruptcy Code (other than with respect to a financing used, in whole or
part, to repay in full the Obligations); or (iii) to grant any Lien other
than those permitted under Section 5.02(a) upon or affecting any
Collateral; or (iv) to use cash collateral of the Administrative Agent or
Lenders under section 363(c) of the Bankruptcy Code without the prior
written consent of the Required Lenders (as provided in Section 10.01),
except to pay the Carve-Out; or


 


(r)                                    the entry of the Final Order shall not have occurred within
40 days of the entry of the Interim Order; or


 


92

















 


(s)                                  the filing of a Reorganization Plan in any of the Cases that
does not provide for the indefeasible payment in full upon substantial
consummation of the Reorganization Plan in cash of all Obligations owed under
the Loan Documents to the Lender Parties unless otherwise agreed to by the
Lender Parties;


 


(t)                                    any Person 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; provided
that in the case that such challenge relates to the validity, applicability or
enforceability of either of the DIP Financing Orders or security interests
created by or in either of the DIP Financing Orders or any payment made
pursuant thereto, such event shall not constitute an Event of Default if such
challenge shall be dismissed or withdrawn within 5 Business Days and none of
such validity, applicability or enforceability shall be affected and no such
security interest or payment shall be adversely affected by such challenge; or


 


(u)                                 a Change of Control shall occur; or


 


(v)                                 any Non-Loan Party that is a 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 Non-Loan Party that is a 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 Non-Loan Party that is a
Material Subsidiary shall take any corporate action to authorize any of the
actions set forth above in this subsection (v);


 


then, and in any such event, without further
order of or application to the Bankruptcy Court, the Administrative Agent (i) shall
at the request, or may with the consent, of the Required Lenders, by notice to
the Borrower (with a copy to counsel for the Committee and to the United States
Trustee for the Southern District of New York), 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) or 2.21(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 Borrower (with a copy to
counsel for the Committee and to the United States Trustee for the Southern
District of New York), declare the Notes, all interest thereon and all other
amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Notes, 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 Borrower, and (iii) shall at the request, or may
with the consent, of the Required Lenders, by five days’ notice to the Borrower
and subject to the Interim Order or the Final Order, as applicable, (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 hereunder
and under the other Loan Documents, and (B) exercise any and all remedies
against the Collateral under this Agreement, the Loan Documents, the DIP
Financing Orders, and applicable law available to the Agents and the Lenders.


 


93
















 


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 Borrower to, and forthwith upon such demand the Borrower will,
pay to the Administrative Agent on behalf of the Lender Parties in same day
funds at the Administrative Agent’s office designated in such demand, for
deposit in the L/C Cash Collateral Account, an amount equal to 105% 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 Borrower 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 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 Authorization of the
Agents.  (a)  Each Lender Party
hereby irrevocably appoints Citibank 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 the Borrower nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions.


 


(b)                                 Each Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith, and each Issuing Bank shall have all of the benefits and immunities (i) provided
to each Agent in this Article VII with respect to any acts taken or
omissions suffered by such Issuing Bank in connection with Letters of Credit
issued by it or proposed to be issued by it and the applications and agreements
for letters of credit pertaining to such Letters of Credit as fully as if the
term “Agent” as used in this Article VII included such Issuing Bank with
respect to such acts or omissions, and (ii) as additionally provided
herein with respect to such Issuing Bank.


 


Section 7.02  Administrative Agent Individually.  (a)  The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender Party as any other Lender Party and may exercise the same
as though it were not the Administrative Agent and the term “Lender Party” or “Lender
Parties” 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 Borrower 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 Lender Parties.


 


(b)                                 Each Lender Party understands that the Person serving as
Administrative Agent, acting in its individual capacity, and its Affiliates
(collectively, the “Agent’s Group”) are engaged in a wide range of
financial services and businesses (including investment management, financing,
securities trading, corporate and investment banking and research) (such
services and businesses are collectively referred to in this Section 7.02
as “Activities”) and may engage in the Activities with or on behalf of
one 


 


94

















 


or
more of the Loan Parties or their respective Affiliates.  Furthermore, the Agent’s Group may, in
undertaking the Activities, engage in trading in financial products or
undertake other investment businesses for its own account or on behalf of
others (including the Loan Parties and their Affiliates and including holding,
for its own account or on behalf of others, equity, debt and similar positions
in the Borrower, another Loan Party or their respective Affiliates), including
trading in or holding long, short or derivative positions in securities, loans
or other financial products of one or more of the Loan Parties or their
Affiliates.  Each Lender Party
understands and agrees that in engaging in the Activities, the Agent’s Group
may receive or otherwise obtain information concerning the Loan Parties or
their Affiliates (including information concerning the ability of the Loan
Parties to perform their respective Obligations hereunder and under the other
Loan Documents) which information may not be available to any of the Lender
Parties that are not members of the Agent’s Group.  None of the Administrative Agent nor any
member of the Agent’s Group shall have any duty to disclose to any Lender Party
or use on behalf of the Lender Parties, and shall not be liable for the failure
to so disclose or use, any information whatsoever about or derived from the
Activities or otherwise (including any information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any Loan Party or any Affiliate of any Loan Party) or to
account for any revenue or profits obtained in connection with the Activities,
except that the Administrative Agent shall deliver or otherwise make available
to each Lender Party such documents as are expressly required by any Loan
Document to be transmitted by the Administrative Agent to the Lender Parties.


 


(c)                                  Each Lender Party further understands that there may be
situations where members of the Agent’s Group or their respective customers
(including the Loan Parties and their Affiliates) either now have or may in the
future have interests or take actions that may conflict with the interests of
any one or more of the Lender Parties (including the interests of the Lender
Parties hereunder and under the other Loan Documents).  Each Lender Party agrees that no member of
the Agent’s Group is or shall be required to restrict its activities as a
result of the Person serving as Administrative Agent being a member of the
Agent’s Group, and that each member of the Agent’s Group may undertake any
Activities without further consultation with or notification to any Lender
Party.  None of (i) this Agreement
nor any other Loan Document, (ii) the receipt by the Agent’s Group of
information (including Information) concerning the Loan Parties or their
Affiliates (including information concerning the ability of the Loan Parties to
perform their respective Obligations hereunder and under the other Loan
Documents) nor (iii) any other matter shall give rise to any fiduciary,
equitable or contractual duties (including without limitation any duty of trust
or confidence) owing by the Administrative Agent or any member of the Agent’s
Group to any Lender Party including any such duty that would prevent or
restrict the Agent’s Group from acting on behalf of customers (including the
Loan Parties or their Affiliates) or for its own account.


 


Section 7.03  Duties of Administrative Agent;
Exculpatory Provisions.  (a) 
The Administrative Agent’s duties hereunder and under the other Loan Documents
are solely ministerial and administrative in nature and 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 shall not have any duty to take any discretionary action or exercise any
discretionary powers, but shall be required to act or refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
written direction of 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 or any of its Affiliates to liability or that is
contrary to any Loan Document or applicable law.


 


(b)                                 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 


 


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Lenders
as shall be necessary, or as the Administrative Agent shall believe in good
faith shall be necessary, under the circumstances as provided in Section 6.01,
6.02 or 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 or the event or events
that give or may give rise to any Default unless and until the Borrower or any
Lender Party shall have given notice to the Administrative Agent describing
such Default and such event or events.


 


(c)                                  Neither the Administrative Agent nor any member of the Agent’s
Group shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty, representation or other information made or supplied in or
in connection with this Agreement any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith or the adequacy, accuracy
and/or completeness of the information contained therein, (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
perfection or priority of any Lien or security interest created or purported to
be created by the Collateral Documents or (v) the satisfaction of any
condition set forth in Article III or elsewhere herein, other than (but
subject to the foregoing clause (ii)) to confirm receipt of items expressly
required to be delivered to the Administrative Agent.


 


(d)                                 Nothing in this Agreement or any other Loan Document shall
require the Administrative Agent or any of its Related Parties to carry out any
“know your customer” or other checks in relation to any person on behalf of any
Lender Party and each Lender Party confirms to the Administrative Agent that it
is solely responsible for any such checks it is required to carry out and that
it may not rely on any statement in relation to such checks made by the
Administrative Agent or any of its Related Parties.


 


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 Party, the Administrative Agent may presume that such condition is satisfactory
to such Lender Party unless an officer of the Administrative Agent responsible
for the transactions contemplated hereby shall have received notice to the
contrary from such Lender Party prior to the making of such Advance or the
issuance of such Letter of Credit, and in the case of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party’s ratable portion of such Borrowing. 
The Administrative Agent may consult with legal counsel (who may be
counsel for the Borrower or any other Loan Party), 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.  Each such sub agent and the Related Parties
of the Administrative Agent and each such sub agent shall be entitled to the
benefits of all provisions of this 


 


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Article VII and Section 10.04
(as though such sub-agents were the “Administrative Agent” under the Loan
Documents) as if set forth in full herein with respect thereto.


 


Section 7.06  Resignation of Administrative Agent.  (a)  The Administrative Agent may at any
time give 30 days’ prior written notice of its resignation to the Lender
Parties and the Borrower.  Upon receipt
of any such notice of resignation, the Required Lenders shall have the right,
in consultation with the Borrower, 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; provided  further that, so long as
there has been no Event of Default, the Required Lenders shall not appoint a
foreign agent as successor if such appointment would result in a tax gross-up
or indemnification payment under this Agreement unless (i) the Required
Lenders determine, in their reasonable discretion, that such appointment is
necessary to avoid material adverse economic, legal or regulatory consequences,
(ii) the appointment is at the request of the Borrowers’ Agent or (iii) the
appointment is required by law.  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 (such 30-day period, the “Lender Party
Appointment Period”), then the retiring Administrative Agent may on behalf
of the Lender Parties, appoint a successor Administrative Agent meeting the
qualifications set forth above.  In
addition and without any obligation on the part of the retiring Administrative
Agent to appoint, on behalf of the Lender Parties, a successor Administrative
Agent, the retiring Administrative Agent may at any time upon or after the end
of the Lender Party Appointment Period notify the Borrower and the Lender
Parties that no qualifying Person has accepted appointment as successor
Administrative Agent and the effective date of such retiring Administrative Agent’s
resignation.  Upon the resignation
effective date established in such notice and regardless of whether a successor
Administrative Agent has been appointed and accepted such appointment, the
retiring Administrative Agent’s resignation shall nonetheless become effective
in accordance with such notice and (i) 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 (ii) 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 paragraph. 
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 as Administrative Agent 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 paragraph). 
The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. 
After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article 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.


 


(b)                                 Any resignation pursuant to this Section by a Person
acting as Administrative Agent shall, unless such Person shall notify the
Borrower and the Lender Parties otherwise, also act to relieve such Person and
its Affiliates of any obligation to issue new or extend existing Letters of
Credit where such issuance or extension is to occur on or after the effective date
of such resignation.  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 Issuing 


 


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Bank, (ii) the
retiring Issuing Bank shall be discharged from all of their respective duties
and obligations 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 arrangement satisfactory to the retiring Issuing Bank to effectively
assume the obligations of the retiring Issuing Bank with respect to such Letters
of Credit.


 


(c)                                  In addition to the foregoing, if a Lender becomes, and
during the period it remains, a Defaulting Lender or a Potential Defaulting
Lender, any Issuing Bank may, upon prior written notice to the Borrower and the
Administrative Agent, resign as Issuing Bank, effective at the close of
business New York time on a date specified in such notice; provided that
such resignation by such Issuing Bank will have no effect on the validity or
enforceability of any Letter of Credit issued by such Issuing Bank then
outstanding or on the obligations of the Borrower or any Lender under this
Agreement with respect to any such outstanding Letter of Credit or otherwise to
such Issuing Bank.


 


Section 7.07  Non-Reliance on Administrative Agent and
Other Lender Parties.  (a)  Each
Lender Party confirms to the Administrative Agent, each other Lender Party and
each of their respective Related Parties that it (i) possesses
(individually or through its Related Parties) such knowledge and experience in
financial and business matters that it is capable, without reliance on the
Administrative Agent, any other Lender Party or any of their respective Related
Parties, of evaluating the merits and risks (including tax, legal, regulatory,
credit, accounting and other financial matters) of (x) entering into this
Agreement, (y) making Advances and other extensions of credit hereunder
and under the other Loan Documents and (z) in taking or not taking actions
hereunder and thereunder, (ii) is financially able to bear such risks and (iii) has
determined that entering into this Agreement and making Advances and other
extensions of credit hereunder and under the other Loan Documents is suitable
and appropriate for it.


 


(b)                                 Each Lender Party acknowledges that (i) it is solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with this Agreement and the other Loan
Documents, (ii) that it has, independently and without reliance upon the
Administrative Agent, any other Lender Party or any of their respective Related
Parties, made its own appraisal and investigation of all risks associated with,
and its own credit analysis and decision to enter into, this Agreement based on
such documents and information, as it has deemed appropriate and (iii) it
will, independently and without reliance upon the Administrative Agent, any
other Lender Party or any of their respective Related Parties, continue to be
solely responsible for making its own appraisal and investigation of all risks
arising under or in connection with, and its own credit analysis and decision
to take or not take action under, this Agreement and the other Loan Documents
based on such documents and information as it shall from time to time deem
appropriate, which may include, in each case:


 


(A)                              the financial condition,
status and capitalization of the Borrower and each other Loan Party;


 


(B)                                the legality, validity,
effectiveness, adequacy or enforceability of this Agreement and each other Loan
Document and any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Loan Document;


 


(C)                                determining compliance or
non-compliance with any condition hereunder to the making of an Advance, or the
issuance of a Letter of Credit and the form and substance of all evidence
delivered in connection with establishing the satisfaction of each such
condition; and


 


(D)                               the adequacy, accuracy
and/or completeness of any information delivered by the Administrative Agent,
any other Lender Party or by any of their respective Related Parties under or
in connection with this Agreement or any other Loan Document, the transactions
contemplated hereby and 


 


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thereby or any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Loan Document.


 


Section 7.08  No other Duties, etc.  Anything herein to the contrary
notwithstanding, none of the Persons acting as Bookrunner or Arrangers 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 Party
hereunder.


 


Section 7.09  Indemnification of Agents.  Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand each Agent and
each of its Related Parties (to the extent not reimbursed by or on behalf of
any Loan Party and without limiting the obligation of any Loan Party to do so),
pro rata, and hold harmless each Agent and each Agent’s Related Parties from
and against any and all Indemnified Liabilities incurred by it; provided,
however, that no Lender shall be liable for the payment to any Agent or
any of its Related Parties of any portion of such Indemnified Liabilities to
the extent determined in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted primarily from such Agent’s or such Related
Party’s own gross negligence or willful misconduct; provided, however,
that no action taken in accordance with the directions of the Required Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section.  Without
limitation of the foregoing, each Lender shall reimburse each Agent upon demand
for its ratable share of any costs or out-of-pocket expenses (including all
reasonable fees and expenses of counsel for the Agent) incurred by any Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein, to the extent that such Agent
is not reimbursed for such expenses by or on behalf of the Borrower.  The undertaking in this Section shall
survive termination of the Commitments, the payment of all other Obligations
and the resignation of each of the Agents. 
In the case of an investigation, litigation or other proceeding to which
the indemnity in this Section 7.09 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is
brought by any Lender Party, its directors, shareholders or creditors and
whether or not the transactions contemplated hereby are consummated.


 


Section 7.10  Administrative Agent May File Proofs
of Claim.  In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent (irrespective of whether the principal
of any Advance shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether any Agent shall have made
any demand on the 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 and all
other Obligations 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 Lenders and
the Agents (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Agents and their respective
agents and counsel and all other amounts due the Lenders and the Agents under
Sections 2.08 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 to make such payments
to the Administrative 


 


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Agent and, in the event that the
Administrative Agent shall consent to the making of such payments directly to
the Lenders, 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 to
the Administrative Agent under Sections 2.08 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 any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender
or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.


 


Section 7.11  Collateral and Guaranty Matters.  The Lenders 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 Obligations (other than contingent
indemnification obligations) and the expiration or termination of all Letters
of Credit, (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) subject
to Section 10.01, if approved, authorized or ratified in writing by the
Required Lenders;


 


(b)                                 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);


 


(c)                                  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 all of such Person’s assets are sold or liquidated as
permitted under the terms of the Loan Documents and the proceeds thereof are
distributed to the Borrower; and


 


(d)                                 to acquire, hold and enforce any and all Liens on Collateral
granted by and of the Loan Parties to secure any of the Secured Obligations,
together with such other powers and discretion as are reasonably incidental
thereto.


 


Upon request by the Administrative Agent at any
time, the Required Lenders (acting on behalf of all the Lenders) will confirm
in writing that the Administrative Agent’s authority to release Liens or
subordinate the interests of the Secured Parties in particular types or items
of property, or to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 7.11.


 


ARTICLE VIII



SUBSIDIARY GUARANTY


 


Section 8.01  Subsidiary Guaranty.  Each Guarantor, jointly and severally,
unconditionally and irrevocably guarantees (the undertaking by each Guarantor
under this Article VIII being the “Guaranty”) the punctual payment
when due, whether at scheduled maturity or at a date fixed for prepayment or by
acceleration, demand or otherwise, of all of the Obligations of each of the
other Loan Parties now or hereafter existing under or in respect of the Loan
Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premium, fees, indemnification payments, contract
causes of action, costs, expenses or otherwise (such Obligations being the “Guaranteed
Obligations”), and agrees to pay any and all expenses 


 


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(including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any of the other Secured Parties solely in enforcing
any rights under this Guaranty.  Without
limiting the generality of the foregoing, each Guarantor’s liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by any of the other Loan Parties to the Administrative Agent or
any of the other Secured Parties under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.


 


Section 8.02  Guaranty Absolute.  Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any other Secured Party with respect thereto.  The Obligations of each Guarantor under this
Guaranty are independent of the Guaranteed Obligations or any other Obligations
of any Loan Party under the Loan Documents, and a separate action or actions
may be brought and prosecuted against such Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against any other Loan Party or
whether any other Loan Party is joined in any such action or actions.  The liability of each Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of, and
such Guarantor hereby irrevocably waives any defenses it may now or hereafter
have in any way relating to, any and all of the following:


 


(a)                                  any lack of validity or enforceability of any Loan Document
or any other agreement or instrument relating thereto;


 


(b)                                 any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents, or any other amendment
or waiver of or any consent to departure from any Loan Document, including,
without limitation, any increase in the Guaranteed Obligations resulting from
the extension of additional credit to any Loan Party or any of its Subsidiaries
or otherwise;


 


(c)                                  any taking, exchange, release or nonperfection of any
Collateral, or any taking, release or amendment or waiver of or consent to
departure from any Subsidiary Guaranty or any other guaranty, for all or any of
the Guaranteed Obligations;


 


(d)                                 any manner of application of Collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or
other disposition of any Collateral for all or any of the Guaranteed
Obligations or any other Obligations of any Loan Party under the Loan
Documents, or any other property and assets of any other Loan Party or any of
its Subsidiaries;


 


(e)                                  any change, restructuring or termination of the corporate
structure or existence of any other Loan Party or any of its Subsidiaries;


 


(f)                                    any failure of the Administrative Agent or any other Secured
Party to disclose to any Loan Party any information relating to the financial
condition, operations, properties or prospects of any other Loan Party now or
hereafter known to the Administrative Agent or such other Secured Party, as the
case may be (such Guarantor waiving any duty on the part of the Secured Parties
to disclose such information);


 


(g)                                 the failure of any other Person to execute this Guaranty or
any other guarantee or agreement of the release or reduction of the liability
of any of the other Loan Parties or any other guarantor or surety with respect
to the Guaranteed Obligations; or


 


101
















 


(h)                                 any other circumstance (including, without limitation, any
statute of limitations or any existence of or reliance on any representation by
the Administrative Agent or any other Secured Party) that might otherwise
constitute a defense available to, or a discharge of, such Guarantor, any other
Loan Party or any other guarantor or surety other than payment in full in cash
of the Guaranteed Obligations.


 


This Guaranty shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned by the
Administrative Agent or any other Secured Party or by any other Person upon the
insolvency, bankruptcy or reorganization of any other Loan Party or otherwise,
all as though such payment had not been made.


 


Section 8.03  Waivers and Acknowledgments.  (a)  Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty, and any requirement that the Administrative
Agent or any other Secured Party protect, secure, perfect or insure any Lien or
any property or assets subject thereto or exhaust any right or take any action
against any other Loan Party or any other Person or any Collateral.


 


(b)                                 Each Guarantor hereby unconditionally waives any right to
revoke this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations, whether existing now or in
the future.


 


(c)                                  Each Guarantor hereby unconditionally and irrevocably waives
(i) any defense arising by reason of any claim or defense based upon an
election of remedies by the Secured Parties which in any manner impairs,
reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such
Guarantor or other rights to proceed against any of the other Loan Parties, any
other guarantor or any other Person or any Collateral, and (ii) any
defense based on any right of setoff or counterclaim against or in respect of
such Guarantor’s obligations hereunder.


 


(d)                                 Each Guarantor acknowledges that the Administrative Agent
may, without notice to or demand upon such Guarantor and without affecting the
liability of the such Guarantor under this Guaranty, foreclose under any
Mortgage by nonjudicial sale, and such Guarantor hereby waives any defense to
the recovery by the Administrative Agent and the other Secured Parties against
such Guarantor of any deficiency after such nonjudicial sale and any defense or
benefits that may be afforded by applicable law.


 


(e)                                  Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in Section 8.02 and this Section 8.03
are knowingly made in contemplation of such benefits.


 


Section 8.04  Subrogation.  Each Guarantor hereby
unconditionally and irrevocably agrees not to exercise any rights that it may
now have or may hereafter acquire against any other Loan Party or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of its Obligations under this Guaranty or under any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or any other
Secured Party against such other Loan Party or any other insider guarantor or
any Collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from such other Loan Party or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy 


 


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or right, until such time as
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, all of the Letters of Credit and
all Secured Hedge Agreements shall have expired or been terminated and the
Commitments shall have expired or terminated.  If any amount shall be paid to any Guarantor
in violation of the immediately preceding sentence at any time prior to the
latest of (a) the payment in full in cash of all of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the
latest date of expiration or termination of all Letters of Credit and all
Secured Hedge Agreements, and (c) the Termination Date, such amount shall
be held in trust for the benefit of the Administrative Agent and the other
Secured Parties and shall forthwith be paid to the Administrative Agent to be
credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter
arising.  If (i) any Guarantor shall
pay to the Administrative Agent all or any part of the Guaranteed Obligations, (ii) all
of the Guaranteed Obligations and all other amounts payable under this Guaranty
shall have been paid in full in cash, (iii) all Letters of Credit and all
Secured Hedge Agreements and Secured Cash Management Agreements shall have
expired or been terminated, and (iv) the Termination Date shall have
occurred, the Administrative Agent and the other Secured Parties will, at such
Guarantor’s request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer of subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from the payment made by such
Guarantor. 


 


Section 8.05  Additional Guarantors.  Upon the execution and delivery by any Person
of a guaranty joinder agreement in substantially the form of Exhibit H
hereto (each, a “Guaranty Supplement”), (i) such Person shall be
referred to as an “Additional Guarantor” and shall become and be a Guarantor
hereunder, and each reference in this Guaranty to a “Guarantor” shall also mean
and be a reference to such Additional Guarantor, and each reference in any
other Loan Document to a “Guarantor” shall also mean and be a reference to such
Additional Guarantor, and (ii) each reference herein to “this Guaranty”, “hereunder”,
“hereof” or words of like import referring to this Guaranty, and each reference
in any other Loan Document to the “Guaranty”, “thereunder”, “thereof” or words
of like import referring to this Guaranty, shall include each such duly
executed and delivered Guaranty Supplement.


 


Section 8.06  Continuing Guarantee; Assignments.  This Guaranty is a continuing guaranty and
shall (a) remain in full force and effect until the latest of (i) the
payment in full in cash of all of the Guaranteed Obligations and all other
amounts payable under this Guaranty, (ii) the latest date of expiration or
termination of all Letters of Credit and all Secured Hedge Agreements (or the
date on which such obligations shall have been Cash Collateralized in the case
of Letters of Credit or cash collateralized in a manner reasonably satisfactory
to each applicable Hedge Bank in the case of Secured Hedge Agreements), and (iii) the
Termination Date, (b) be binding upon each Guarantor and its successors
and assigns and (c) inure to the benefit of, and be enforceable by, the
Administrative Agent and the other Secured Parties and their respective
successors, transferees and assigns. 
Without limiting the generality of clause (c) of the
immediately preceding sentence, any Lender Party may assign or otherwise
transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitment or
Commitments, the Advances owing to it and the Notes held by it) to any other
Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender Party under this Article VIII
or otherwise, in each case as provided in Section 10.07.


 


Section 8.07  No Reliance.  Each Guarantor has, independently and without
reliance upon any Agent or any Lender Party and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty and each other Loan Document to which it
is or is to be a party, and such Guarantor has established adequate means of obtaining
from each other Loan Party on a continuing basis information pertaining to, and
is now and on a


 


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continuing basis will be
completely familiar with, the business, condition (financial or otherwise),
operations, performance, properties and prospects of such other Loan Party.


 


ARTICLE IX



SECURITY


 


Section 9.01  Grant of Security.  To induce the Lenders to make the Advances,
and the Issuing Banks to issue Letters of Credit, each Loan Party hereby grants
to the Administrative Agent, for itself and for the ratable benefit of the
Secured Parties, as security for the full and prompt payment when due (whether
at stated maturity, by acceleration or otherwise) of the Obligations of such
Loan Party under the Loan Documents, all Obligations of such Loan Party under
Secured Hedge Agreements and all Secured Cash Management Agreements, and each
agreement or instrument delivered by any Loan Party pursuant to any of the
foregoing (whether direct or indirect, absolute or contingent, and whether for
principal, reimbursement obligations, interest, fees, premiums, penalties,
indemnifications, contract causes of action, costs, expenses or otherwise)
(collectively, the “Secured Obligations”) a continuing first priority
Lien and security interest (but subject to the DIP Financing Orders) in
accordance with subsections 364(c)(2) and (3) and 364(d)(1) of
the Bankruptcy Code in and to all Collateral of such Loan Party.  “Collateral” means, except as otherwise
specified in the DIP Financing Orders, all of the property and assets of each
Loan Party and its estate, real and personal, tangible and intangible, whether
now owned or hereafter acquired or arising and regardless of where located,
including but not limited to:


 


(a)                                  all Equipment;


 


(b)                                 all Inventory;


 


(c)                                  all Accounts (and any and all such supporting obligations,
security agreements, mortgages, Liens, leases, letters of credit and other
contracts being the “Related Contracts”);


 


(d)                                 all General Intangibles;


 


(e)                                  the following (the “Security Collateral”):


 


(i)                                     the Initial
Pledged Equity and the certificates, if any, representing the Initial Pledged
Equity, and all dividends, distributions, return of capital, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Initial Pledged
Equity and all subscription warrants, rights or options issued thereon or with
respect thereto;


 


(ii)                                  the Initial
Pledged Debt and the instruments, if any, evidencing the Initial Pledged Debt,
and all interest, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Initial Pledged Debt;


 


(iii)                               all additional
shares of stock and other Equity Interests from time to time acquired by such
Loan Party in any manner (such shares and other Equity Interests, together with
the Initial Pledged Equity, being the “Pledged Equity”), and the
certificates, if any, representing such additional shares or other Equity
Interests, and all dividends, distributions, return of capital, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
shares or other Equity Interests and all subscription warrants, rights or
options 


 


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issued
thereon or with respect thereto; provided that solely to the extent and
only for so long as the pledge by any Loan Party of more than 66% of the Voting
Foreign Stock in a CFC under this Agreement to the Administrative Agent on
behalf of the Secured Parties would result in material adverse tax consequences
to the Borrower, no Loan Party shall be required to pledge any Equity Interests
in any CFC (or any Equity Interests in any entity that is treated as a
partnership or a disregarded entity for United States federal income tax
purposes and in each case whose assets are solely Equity Interests in CFCs (a “Flow-Through
Entity”) that own directly or indirectly through one or more other
Flow-Through Entities, Equity Interests in any CFCs) owned or otherwise held by
such Loan Party which, when aggregated with all of the other Equity Interests
in such CFC (or Flow-Through Entity) pledged by any Loan Party, would result
(or would be deemed to result for United States federal income tax purposes) in
more than 66% of the total combined voting power of all classes of stock in a
CFC entitled to vote (within the meaning of Treasury Regulation Section 1.956-2(c)(2) promulgated
under the Internal Revenue Code) (the “Voting Foreign Stock”) (on a
fully diluted basis) being pledged to the Administrative Agent, on behalf of
the Secured Parties, under this Agreement (although all of the shares of stock
in a Foreign Subsidiary not entitled to vote (within the meaning of Treasury
Regulation Section 1.956-2(c)(2) promulgated under the Internal
Revenue Code) (the “Non-Voting Foreign Stock”) shall be pledged by each
of the Loan Parties that owns or otherwise holds any such Non-Voting Foreign
Stock therein); provided  further that, if, as a result of any
change in the tax laws of the United States of America after the date of this
Agreement or in any other circumstance, the pledge by such Loan Party of any
additional shares of stock in any such Foreign Subsidiary to the Administrative
Agent, on behalf of the Secured Parties, under this Agreement would not result
in material adverse tax consequences to the Borrower, then, promptly after the
change in such laws or circumstance, all such additional shares of stock shall
be so pledged under this Agreement;


 


(iv)                              all additional
indebtedness from time to time owed to such Loan Party (such indebtedness,
together with the Initial Pledged Debt, being the “Pledged Debt”) and
the instruments, if any, evidencing such indebtedness, and all interest, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
indebtedness; and


 


(v)                                 all other
investment property (including, without limitation, all (A) securities,
whether certificated or uncertificated, (B) security entitlements, (C) securities
accounts, (D) commodity contracts and (E) commodity accounts) in
which such Loan Party has now, or acquires from time to time hereafter, any
right, title or interest in any manner, and the certificates or instruments, if
any, representing or evidencing such investment property, and all dividends,
distributions, return of capital, interest, distributions, value, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
investment property and all subscription warrants, rights or options issued
thereon or with respect thereto (the “Pledged Investment Property”);


 


(f)                                    the following (collectively, the “Account Collateral”):


 


(i)                                     all deposit and
other bank accounts and all funds and financial assets from time to time
credited thereto (including, without limitation, all Cash Equivalents), all
interest, dividends, distributions, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or 


 


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all
of such funds and financial assets, and all certificates and instruments, if
any, from time to time representing or evidencing such accounts;


 


(ii)                                  all promissory
notes, certificates of deposit, deposit accounts, checks and other instruments
from time to time delivered to or otherwise possessed by the Administrative
Agent for or on behalf of such Loan Party, including, without limitation, those
delivered or possessed in substitution for or in addition to any or all of the
then existing Account Collateral; and


 


(iii)                               all interest,
dividends, distributions, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the then existing Account Collateral;


 


(g)                                 the following (collectively, the “Intellectual Property”):


 


(i)                                     all patents,
patent applications, utility models and statutory invention registrations, all
inventions claimed or disclosed therein and all improvements thereto (“Patents”);


 


(ii)                                  all trademarks,
service marks, domain names, trade dress, logos, designs, slogans, trade names,
business names, corporate names and other source identifiers, whether
registered or unregistered (provided that no security interest shall be granted
in United States intent-to-use trademark applications to the extent that, and
solely during the period in which, the grant of a security interest therein
would impair the validity or enforceability of such intent-to-use trademark
applications under applicable federal law), together, in each case, with the
goodwill symbolized thereby (“Trademarks”);


 


(iii)                               all copyrights,
including, without limitation, copyrights in Computer Software, internet web
sites and the content thereof, whether registered or unregistered (“Copyrights”);


 


(iv)                              all computer
software, programs and databases (including, without limitation, source code,
object code and all related applications and data files), firmware and
documentation and materials relating thereto, together with any and all
maintenance rights, service rights, programming rights, hosting rights, test
rights, improvement rights, renewal rights and indemnification rights and any
substitutions, replacements, improvements, error corrections, updates and new
versions of any of the foregoing (“Computer Software”);


 


(v)                                 all
confidential and proprietary information, including, without limitation,
know-how, trade secrets, manufacturing and production processes and techniques,
inventions, research and development information, databases and data,
including, without limitation, technical data, financial, marketing and
business data, pricing and cost information, business and marketing plans and
customer and supplier lists and information (collectively, “Trade Secrets”),
and all other intellectual, industrial and intangible property of any type,
including, without limitation, industrial designs and mask works;


 


(vi)                              all
registrations and applications for registration for any of the foregoing, including,
without limitation, those registrations and applications for registration set
forth in Schedule II hereto (as such Schedule II may be supplemented from time
to time by 


 


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supplements
to the IP Security Agreement, each such supplement being substantially in the
form of Exhibit G hereto (an “IP Security Agreement Supplement”),
executed by such Loan Party to the Administrative Agent from time to time),
together with all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations thereof;


 


(vii)                           all tangible
embodiments of the foregoing, all rights in the foregoing provided by
international treaties or conventions, all rights corresponding thereto
throughout the world and all other rights of any kind whatsoever of such Loan
Party accruing thereunder or pertaining thereto;


 


(viii)                        any and all
claims for damages and injunctive relief for past, present and future
infringement, dilution, misappropriation, violation, misuse or breach with
respect to any of the foregoing, with the right, but not the obligation, to sue
for and collect, or otherwise recover, such damages; and


 


(ix)                                all agreements,
permits, consents, orders and franchises relating to the license, development,
use or disclosure of any of the foregoing to which such Loan Party, now or
hereafter, is a party or a beneficiary, including, without limitation, the
material and key agreements not entered into in the ordinary course of business
set forth in Schedule III hereto (such scheduled agreements, the “IP Agreements”);


 


(h)                                 all of the right, title and interest of the Loan Parties in
all real property the title to which is held by the Loan Parties, or the
possession of which is held by the Loan Parties pursuant to leasehold interest,
and in all such leasehold interests, together in each case with all of the
right, title and interest of the Loan Parties in and to all buildings,
improvements, and fixtures related thereto, any lease or sublease thereof, all
general intangibles relating thereto and all proceeds thereof (collectively,
the “Real Property Collateral”);


 


(i)                                     all books and records (including, without limitation,
customer lists, credit files, printouts and other computer output materials and
records) of such Loan Party pertaining to any of the Collateral; and


 


(j)                                     all proceeds of, collateral for, income, royalties and other
payments now or hereafter due and payable with respect to, and supporting
obligations relating to, any and all of the Collateral (including, without
limitation, proceeds, collateral and supporting obligations that constitute
property of the types described in clauses (a) through (i) of
this Section 9.01 and this clause (k)) and, to the extent not
otherwise included, all (A) payments under insurance (whether or not the
Administrative Agent is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral, (B) tort claims, including, without limitation,
all commercial tort claims and (C) cash;


 


provided that
Collateral shall not include any rights or interests of a Grantor in any joint
venture if, under applicable law or the terms of the applicable contract with
respect thereto, the valid grant of a security interest or other Lien therein
hereunder is prohibited and such prohibition has not been or is not waived or
the consent of each other party to such contract has not been or is not
otherwise obtained or under applicable law such prohibition cannot be waived, provided
further that the foregoing exclusion shall in no way be construed (i) to
apply if any such prohibition is ineffective or unenforceable under the UCC
(including Sections 9-406, 9-407, 9-408 or 9-409), by any order of the
Bankruptcy Court or any other applicable law or (ii) so as to limit,
impair or otherwise affects the Administrative Agent’s unconditional 


 


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continuing
security interest in and Lien upon any rights or interests of any Grantor in or
to monies due or to become due under any such contract.


 


Section 9.02  Further Assurances.  (a)   Each Loan
Party agrees that from time to time, at the expense of such Loan Party, such
Loan Party will promptly execute and deliver, or otherwise authenticate, all
further instruments and documents, and take all further action that may be
necessary or desirable, or that any Agent may reasonably request, in order to
perfect and protect any pledge or security interest granted or purported to be
granted by such Loan Party hereunder or to enable such Agent to exercise and
enforce its rights and remedies hereunder with respect to any Collateral of
such Loan Party.  Without limiting the
generality of the foregoing, each Loan Party will promptly with respect to
Collateral of such Loan Party:  (i) if
any such Collateral shall be evidenced by a promissory note or other instrument
or chattel paper, deliver and pledge to such Agent hereunder such note or
instrument or chattel paper duly indorsed and accompanied by duly executed
instruments of transfer or assignment, all in form and substance reasonably
satisfactory to such Agent; (ii) execute or authenticate and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as any Agent may
reasonably request, in order to perfect and preserve the security interest
granted or purported to be granted by such Loan Party hereunder; (iii) deliver
to such Agent for benefit of the Secured Parties certificates representing
Pledged Collateral that constitutes certificated securities, accompanied by
undated stock or bond powers executed in blank; (iv) take all action
necessary to ensure that such Agent has control of Pledged Collateral and of
Collateral consisting of deposit accounts, electronic chattel paper,
letter-of-credit rights and transferable records as provided in Sections 9-104,
9-105, 9-106 and 9-107 of the UCC and in Section 16 of the Uniform
Electronics Transactions Act, as in effect in the jurisdiction governing such
transferable record; (v) take all necessary action to ensure that such
Agent’s security interest is noted on any certificate of ownership related to
any Collateral evidenced by a certificate of ownership; (vi) cause such
Agent to be the beneficiary under all letters of credit that constitute
Collateral, with the exclusive right to make all draws under such letters of
credit, and with all rights of a transferee under Section 5-114(e) of
the UCC; and (vii) deliver to such Agent evidence that all other action
that such Agent may deem reasonably necessary or desirable in order to perfect
and protect the security interest created by such Loan Party under this
Agreement has been taken.


 


(b)                                 Each Loan Party hereby authorizes each Agent to file one or
more financing or continuation statements, and amendments thereto, including,
without limitation, one or more financing statements indicating that such
financing statements cover all assets or all personal property (or words of similar
effect) of such Loan Party, in each case without the signature of such Loan
Party, and regardless of whether any particular asset described in such
financing statements falls within the scope of the UCC or the granting clause
of this Agreement.  A photocopy or other
reproduction of this Agreement or any financing statement covering the
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law.  Each Loan Party
ratifies its authorization for each Agent to have filed such financing
statements, continuation statements or amendments filed prior to the date
hereof.


 


(c)                                  Each Loan Party will furnish to each Agent from time to time
statements and schedules further identifying and describing the Collateral of
such Loan Party and such other reports in connection with such Collateral as
such Agent may reasonably request, all in reasonable detail.


 


(d)                                 Notwithstanding subsections (a) and (b) of this Section 9.02,
or any failure on the part of any Loan Party or any Agent to take any of the
actions set forth in such subsections, the Liens and security interests granted
herein shall be deemed valid, enforceable and perfected by entry of the Interim
Order and the Final Order, as applicable if and to the extent perfection may be
achieved by the entry of the DIP Financing Orders.  No financing statement, notice of Lien,
mortgage, deed of trust or similar instrument in any jurisdiction or filing
office need be filed or any other action taken in order to validate 


 


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and
perfect the Liens and security interests granted by or pursuant to this
Agreement, the Interim Order or the Final Order.


 


Section 9.03  Rights of Lender; Limitations on Lenders’
Obligations.  (a)   Subject to each Loan Party’s rights and duties under the
Bankruptcy Code (including section 365 of the Bankruptcy Code), and anything
herein to the contrary notwithstanding, (i) each Loan Party shall remain
liable under the contracts and agreements included in such Loan Party’s
Collateral to the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (ii) the exercise by the Administrative Agent of any of the
rights hereunder shall not release any Loan Party from any of its duties or
obligations under the contracts and agreements included in the Collateral and (iii) no
Secured Party shall have any obligation or liability under the contracts and
agreements included in the Collateral by reason of this Agreement or any other
Loan Document, nor shall any Secured Party be obligated to perform any of the
obligations or duties of any Loan Party thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.


 


(b)                                 Except as otherwise provided in this subsection (b), each
Loan Party will continue to collect, at its own expense, all amounts due or to
become due such Loan Party under the Accounts and Related Contracts.  In connection with such collections, such
Loan Party may take (and at the Administrative Agent’s reasonable direction,
will take) such action as such Loan Party or the Administrative Agent may
reasonably deem necessary or advisable to enforce collection of the Accounts
and Related Contracts; provided, however, that, subject to any
requirement of notice provided in the DIP Financing Orders or in Section 6.01,
the Administrative Agent shall have the right at any time, upon the occurrence
and during the continuance of an Event of Default, to notify the obligors under
any Accounts and Related Contracts of the assignment of such Accounts and
Related Contracts to the Administrative Agent and to direct such obligors to
make payment of all amounts due or to become due to such Loan Party thereunder
directly to the Administrative Agent and, upon such notification and at the
expense of such Loan Party, to enforce collection of any such Accounts and
Related Contracts, to adjust, settle or compromise the amount or payment
thereof, in the same manner and to the same extent as such Loan Party might
have done, and to otherwise exercise all rights with respect to such Accounts
and Related Contracts, including, without limitation, those set forth in Section 9-607
of the UCC.  Upon and during the exercise
by the Administrative Agent on behalf of the Lenders of any of the remedies
described in the proviso of the immediately preceding sentence, (i) any
and all amounts and proceeds (including, without limitation, instruments)
received by such Loan Party in respect of the Accounts and Related Contracts of
such Loan Party shall be received in trust for the benefit of the
Administrative Agent hereunder, shall be segregated from other funds of such
Loan Party and shall be forthwith paid over to the Administrative Agent in the
same form as so received (with any necessary endorsement) to be deposited in a
collateral account maintained with the Administrative Agent and applied as
provided in Section 9.07(b) and (ii) such Loan Party will not
adjust, settle or compromise the amount or payment of any Account or amount due
on any Related Contract, release wholly or partly any obligor thereof, or allow
any credit or discount thereon.  No Loan
Party will permit or consent to the subordination of its right to payment under
any of the Accounts and Related Contracts to any other indebtedness or
obligations of the obligor thereof.


 


(c)                                  Each Initial Lender shall have the right to make test
verification of the Accounts (other than Accounts that any Loan Party is
required to maintain as “classified”) in any manner and through any medium that
it considers advisable in its reasonable discretion, and each Loan Party agrees
to furnish all such assistance and information as any Initial Lender may
reasonably require in connection therewith.


 


Section 9.04  Covenants of the Loan Parties with Respect
to Collateral.  Each Loan Party
hereby covenants and agrees with the Administrative Agent that from and after
the date of this Agreement 


 


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and until the Secured
Obligations (other than contingent indemnification obligations which are not
then due and payable) are fully satisfied or Cash Collateralized:


 


(a)                                  Delivery and Control of Pledged Collateral.


 


(i)                                     All
certificates or instruments representing or evidencing Pledged Collateral shall
be delivered to and held by or on behalf of the Administrative Agent pursuant
hereto, and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance reasonably satisfactory to the Administrative
Agent.  In addition, the Administrative
Agent shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments
of smaller or larger denominations.


 


(ii)                                  With respect to
any Pledged Collateral in which any Loan Party has any right, title or interest
and that constitutes an uncertificated security, such Loan Party will cause the
issuer thereof either (i) to register the Administrative Agent as the
registered owner of such security or (ii) to agree in an authenticated
record with such Loan Party and the Administrative Agent that such issuer will
comply with instructions with respect to such security originated by the
Administrative Agent without further consent of such Loan Party, such
authenticated record to be in form and substance reasonably satisfactory to the
Administrative Agent.  With respect to
any Pledged Collateral in which any Loan Party has any right, title or interest
and that is not an uncertificated security, such Loan Party will notify each
such issuer of Pledged Equity that such Pledged Equity is subject to the
security interest granted hereunder.


 


(iii)                               Except as
provided in Section 9.07, such Loan Party shall be entitled to receive all
cash dividends paid in respect of the Pledged Collateral (other than
liquidating or distributing dividends). 
Any sums paid upon or in respect of any of the Pledged Equity upon the
liquidation or dissolution of any issuer of any of the Initial Pledged Equity,
any distribution of capital made on or in respect of any of the Initial Pledged
Equity or any property distributed upon or with respect to any of the Initial
Pledged Equity pursuant to the recapitalization or reclassification of the
capital of any issuer of Initial Pledged Equity or pursuant to the
reorganization thereof shall be delivered to the Administrative Agent to hold
as collateral for the Secured Obligations.


 


(iv)                              Except as
provided in Section 9.07, such Loan Party will be entitled to exercise all
voting, consent and corporate rights with respect to Pledged Equity; provided,
however, that no vote shall be cast, consent given or right exercised or
other action taken by such Loan Party which would materially impair the Pledged
Collateral or which would be inconsistent in any material respect with or
result in any violation of any provision of this Agreement or any other Loan
Document or, without prior notice to the Administrative Agent, to enable or
take any other action to permit any issuer of Pledged Equity to issue any stock
or other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of any issuer of Pledged Equity other
than issuances, transfers and grants to a Loan Party.


 


(v)                                 Such Loan Party
shall not grant control over any investment property to any Person other than
the Administrative Agent, except to the extent permitted pursuant to this
Agreement.


 


(vi)                              In the case of
each Loan Party which is an issuer of Pledged Equity, such Loan Party agrees to
be bound by the terms of this Agreement relating to the Pledged Equity issued
by it and will comply with such terms insofar as such terms are applicable to
it.


 


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(b)                                 Maintenance of Records.  Such Loan Party will keep and maintain, at
its own cost and expense, reasonably satisfactory and complete records of the
Collateral, in all material respects, including, without limitation, a record
of all payments received and all credits granted with respect to the Collateral
and all other material dealings concerning the Collateral.  For the Administrative Agent’s further
security, each Loan Party agrees that the Administrative Agent shall have a
property interest in all of such Loan Party’s books and records pertaining to
the Collateral and, upon the occurrence and during the continuation of an Event
of Default, such Loan Party shall deliver and turn over any such books and
records to the Administrative Agent or to its representatives at any time on
demand of the Administrative Agent.


 


(c)                                  Indemnification With Respect to Collateral.  In any suit,
proceeding or action brought by the Administrative Agent relating to any
Collateral for any sum owing thereunder or to enforce any provision of any
Collateral, such Loan Party will save, indemnify and keep the Secured Parties
harmless from and against all reasonable and documented out-of-pocket expense,
loss or damage suffered by the Secured Parties by reason of any defense,
setoff, counterclaim, recoupment or reduction of liability whatsoever of the
obligor thereunder, arising out of a breach by such Loan Party of any
obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to, or in favor of, such obligor or its successors
from such Loan Party, and all such obligations of such Loan Party shall be and
remain enforceable against and only against such Loan Party and shall not be
enforceable against the Administrative Agent.


 


(d)                                 Limitation on
Liens on Collateral.  Such Loan Party will not create, permit or suffer to exist,
and will defend the Collateral against and take such other action as is
necessary to remove, any Lien on the Collateral except Liens permitted under Section 5.02(a) and
will defend the right, title and interest of the Administrative Agent in and to
all of such Loan Party’s rights under the Collateral against the claims and
demands of all Persons whomsoever other than claims or demands arising out of
Liens permitted under Section 5.02(a).


 


(e)                                  Limitations on Modifications of Eligible Receivable.  Such Loan Party
will not, without the Administrative Agent’s prior written consent, grant any
extension of the time of payment under or in respect of any of the Eligible
Receivable or Related Contracts, compromise, compound or settle the same for
less than the full amount thereof, release, wholly or partly, any Person liable
for the payment thereof, or allow any credit or discount whatsoever thereon
other than any of the foregoing which are done in the ordinary course of
business, consistent with past practices, and trade discounts granted in the
ordinary course of business of such Loan Party.


 


(f)                                    Notices.  Such Loan Party will advise the
Administrative Agent promptly after it obtains knowledge thereof, in reasonable
detail, (i) of any Lien asserted against any of the Collateral other than
Liens permitted under Section 5.02(a), and (ii) of the occurrence of
any other event which would result in a Material Adverse Effect.


 


(g)                                 As to Intellectual Property.


 


(i)                                     Unless such
Loan Party shall have previously determined that such Intellectual Property is
no longer desirable in the conduct of such Loan Party’s business and that the
loss thereof would not be reasonably likely to have a Material Adverse Effect,
with respect to each item of Intellectual Property owned by such Loan Party and
that is the subject of a patent, registration or application therefor, each
Loan Party agrees to take, at its expense, all commercially reasonable steps,
including, without limitation, in the U.S. Patent and Trademark Office, the
U.S. Copyright Office and any other United 


 


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States
governmental authority, to (A) maintain the validity and enforceability of
such Intellectual Property and maintain such Intellectual Property in full
force and effect, and (B) pursue the registration and maintenance of each
patent, trademark registration, or copyright registration or application
therefor, now or hereafter included in such Intellectual Property owned by such
Loan Party, including, without limitation, to the extent determined by such
Loan Party to be desirable, the payment of required fees and taxes, the filing
of responses to office actions issued by the U.S. Patent and Trademark Office,
the U.S. Copyright Office or other governmental authorities, the filing of
applications for renewal or extension, the filing of affidavits under Sections
8 and 15 of the U.S. Trademark Act, the filing of divisional, continuation,
continuation-in-part, reissue and renewal applications or extensions, the
payment of maintenance fees and the participation in interference,
reexamination, opposition, cancellation, infringement and misappropriation
proceedings, in each case as applicable. 
Except to the extent permitted pursuant to this Agreement, no Loan Party
shall, without the written consent of the Administrative Agent, abandon any
patented or registered Intellectual Property owned by such Loan Party, or
abandon any right to file an application for patent, trademark, or copyright,
unless such Loan Party shall have previously determined that the pursuit or
maintenance of such Intellectual Property is no longer desirable in the conduct
of such Loan Party’s business and that the loss thereof would not be reasonably
likely to have a Material Adverse Effect, in which case, such Loan Party will
give notice quarterly of any such abandonment to the Administrative Agent.


 


(ii)                                  If the result
of such abandonment, invalidity, unenforceability or any other action is
reasonably likely to have a Material Adverse Effect, each Loan Party agrees
promptly to notify the Administrative Agent if such Loan Party becomes aware (A) that
any item of the Intellectual Property it owns may have become abandoned, placed
in the public domain, invalid or unenforceable, or of any adverse determination
or development regarding such Loan Party’s ownership of any of the Intellectual
Property or its right to register the same or to keep and maintain and enforce
the same, or (B) of any adverse determination or the institution of any
proceeding (including, without limitation, the institution of any proceeding in
the U.S. Patent and Trademark Office or any court) regarding any item of
Intellectual Property owned by such Loan Party.


 


(iii)                               In the event
that any Loan Party becomes aware that any item of the Intellectual Property
owned by such Loan Party is being infringed or misappropriated by a third party,
and such infringement or misappropriation is reasonably likely to result in a
Material Adverse Effect, such Loan Party shall promptly notify the
Administrative Agent and shall take such actions, at its expense, as such Loan
Party or the Administrative Agent deems reasonable and appropriate under the
circumstances to protect or enforce such Intellectual Property, including,
without limitation, suing for infringement or misappropriation and for an
injunction against such infringement or misappropriation.


 


(iv)                              Each Loan Party
shall take all steps which it or the Administrative Agent deems reasonable and
appropriate under the circumstances to preserve and protect each item of
Intellectual Property owned by such Loan Party, including, without limitation,
maintaining the quality of any and all products or services used or provided in
connection with any of the Trademarks owned by such Loan Party, substantially
consistent with the quality of the products and services as of the date hereof,
and taking all steps necessary to ensure that all licensed users of any of the
Trademarks owned by such Party use such consistent standards of quality.


 


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(v)                                 Each Loan Party
agrees that should it obtain a material ownership interest in any item of the
type set forth in Section 9.01(g) that is not on the date hereof a
part of the Intellectual Property (“After-Acquired Intellectual Property”)
(i) the provisions of this Agreement shall automatically apply thereto,
and (ii) any such After-Acquired Intellectual Property and, in the case of
trademarks, the goodwill symbolized thereby, shall automatically become part of
the Intellectual Property subject to the terms and conditions of this Agreement
with respect thereto.  At the end of each
quarter, each Loan Party shall give prompt written notice to the Administrative
Agent identifying the After-Acquired Intellectual Property that is the subject
of patents or registrations or applications for registration thereof (other
than patent applications the disclosure of which shall not be required until a
patent is issued) acquired during such quarter, and such Loan Party shall
execute and deliver to the Administrative Agent with such written notice, or
otherwise authenticate, an IP Security Agreement Supplement covering such
After-Acquired Intellectual Property and any newly issued patents, which IP
Security Agreement Supplement may be recorded by the Administrative Agent with
the U.S. Patent and Trademark Office, the U.S. Copyright Office and any other
governmental authorities necessary to perfect the security interest hereunder
in such After-Acquired Intellectual Property.


 


Section 9.05 
Performance by Agent of the Loan Parties’ Obligations.


 


(a)                                  Administrative Agent
Appointed Attorney-in-Fact.  Each Loan Party hereby irrevocably appoints
the Administrative Agent such Loan Party’s attorney-in-fact, with full
authority in the place and stead of such Loan Party and in the name of such
Loan Party or otherwise, from time to time following the occurrence and during
the continuance of an Event of Default, in the Administrative Agent’s
discretion, to take any action and to execute any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Agreement, including, without limitation:


 


(i)                                     to obtain and
adjust insurance required to be paid to the Administrative Agent pursuant to
this Agreement,


 


(ii)                                  to ask for,
demand, collect, sue for, recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Collateral,


 


(iii)                               to receive,
indorse and collect any drafts or other instruments, documents and chattel
paper, in connection with clause (i) or (ii) above, and


 


(iv)                              to file any
claims or take any action or institute any proceedings that the Administrative
Agent may deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the Administrative Agent with
respect to any of the Collateral.


 


(b)                                 Administrative Agent May Perform.  If any Loan Party
fails to perform any agreement contained herein related to the Lien and
security interest granted hereunder in the Collateral, the Administrative Agent
may, as the Administrative Agent deems reasonably necessary to protect the
security interest granted hereunder in the Collateral or to protect the value
thereof, but without any obligation to do so and without notice, itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by such
Loan Party under Section 10.04.


 


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(c)                                  Performance of such Loan Party’s agreements as permitted
under this Section 9.05 shall in no way constitute a violation of the
automatic stay provided by section 362 of the Bankruptcy Code and each Loan
Party hereby waives applicability thereof. 
Moreover, the Administrative Agent shall in no way be responsible for
the payment of any costs incurred in connection with preserving or disposing of
Collateral pursuant to section 506(c) of the Bankruptcy Code and the
Collateral may not be charged for the incurrence of any such cost.


 


Section 9.06  The Administrative Agent’s Duties.  (a)  The powers conferred on the
Administrative Agent hereunder are solely to protect the Secured Parties’
interest in the Collateral and shall not impose any duty upon it to exercise
any such powers.  Except for the safe
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Administrative Agent shall have no duty
as to any Collateral, as to ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relative to
any Collateral, whether or not any Secured Party has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Collateral.  The Administrative Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of any Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which it accords its own property.


 


(b)                                 Anything contained herein to the contrary notwithstanding,
the Administrative Agent may from time to time, when the Administrative Agent
deems it to be necessary, appoint one or more subagents (each a “Subagent”)
for the Administrative Agent hereunder with respect to all or any part of the
Collateral.  In the event that the
Administrative Agent so appoints any Subagent with respect to any Collateral, (i) the
assignment and pledge of such Collateral and the security interest granted in
such Collateral by each Loan Party hereunder shall be deemed for purposes of
this Security Agreement to have been made to such Subagent, in addition to the
Administrative Agent, for the ratable benefit of the Secured Parties, as security
for the Secured Obligations of such Loan Party, (ii) such Subagent shall
automatically be vested, in addition to the Administrative Agent, with all
rights, powers, privileges, interests and remedies of the Administrative Agent
hereunder with respect to such Collateral, and (iii) the term “Administrative
Agent,” when used herein in relation to any rights, powers, privileges,
interests and remedies of the Administrative Agent with respect to such
Collateral, shall include such Subagent; provided, however, that
no such Subagent shall be authorized to take any action with respect to any
such Collateral unless and except to the extent expressly authorized in writing
by the Administrative Agent.


 


Section 9.07  Remedies.  If any Event of Default shall have occurred
and be continuing, at the written request, or with the written consent, of the
Required Lenders, by five days’ prior written notice to the Borrower and
subject to the Interim Order or the Final Order, as applicable:


 


(a)                                  Subject to and in accordance with the DIP Financing Orders,
the Administrative Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to it,
all the rights and remedies of a secured party upon default under the UCC
(whether or not the UCC applies to the affected Collateral) and also may:  (i) require each Loan Party to, and each
Loan Party hereby agrees that it will at its expense and upon request of the
Administrative Agent forthwith, assemble all or part of the Collateral as
directed by the Administrative Agent and make it available to the
Administrative Agent at a place and time to be designated by the Administrative
Agent that is reasonably convenient to both parties; (ii) without notice
except as specified below or in the DIP Financing Orders, sell the Collateral
or any part thereof in one or more parcels at public or private sale, at any of
the Administrative Agent’s offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable; (iii) occupy any premises owned or leased by any
of the Loan Parties where the Collateral or any part thereof 


 


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is assembled or located for a
reasonable period in order to effectuate its rights and remedies hereunder or
under law, without obligation to such Loan Party in respect of such occupation;
and (iv) exercise any and all rights and remedies of any of the Loan
Parties under or in connection with the Collateral, or otherwise in respect of
the Collateral, including, without limitation, (A) any and all rights of
such Loan Party to demand or otherwise require payment of any amount under, or
performance of any provision of, the Accounts, the Related Contracts and the
other Collateral, (B) withdraw, or cause or direct the withdrawal, of all
funds with respect to the Account Collateral and (C) exercise all other
rights and remedies with respect to the Accounts, the Related Contracts and the
other Collateral, including, without limitation, those set forth in Section 9-607
of the UCC.  Each Loan Party agrees that,
to the extent notice of sale shall be required by law, at least 5 days’ notice
to such Loan Party of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification.  The Administrative Agent
shall not be obligated to make any sale of Collateral regardless of notice of
sale having been given.  The
Administrative Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.


 


(b)                                 Any cash held by or on behalf of the Administrative Agent
and all cash proceeds received by or on behalf of the Administrative Agent in
respect of any sale of, collection from, or other realization upon all or any
part of the Collateral may, subject to the DIP Financing Orders and in the
discretion of the Administrative Agent, be held by the Administrative Agent as
collateral for, and/or then or at any time thereafter applied (after payment of
any amounts payable to the Administrative Agent pursuant to Section 9.08)
in whole or in part by the Administrative Agent for the ratable benefit of the
Secured Parties against, all or any part of the Secured Obligations, in the
following manner:


 


(i)                                     first, paid ratably
to each Agent for any amounts then owing to such Agent pursuant to Section 10.04
or otherwise under the Loan Documents;


 


(ii)                                  second: ratably (1) paid to the Lenders for any
amounts then owing to them, in their capacities as such, in respect of the
Obligations under the Facilities ratably in accordance with such respective
amounts then owing to such Lenders, (2) paid to each Cash Management Bank
or Hedge Bank in respect of Secured Cash Management Agreements and Secured
Hedge Agreements in an aggregate amount for all such obligations not to exceed
the Bank Product Reserves and (3) deposited as Collateral in the L/C Cash
Collateral Account up to an amount equal to 105% of the aggregate Available
Amount of all outstanding Letters of Credit, provided that in the event
that any such Letter of Credit is drawn, the Administrative Agent shall pay to
the Issuing Bank that issued such Letter of Credit the amount held in the L/C
Cash Collateral Account in respect of such Letter of Credit, provided  further
that, to the extent that any such Letter of Credit shall expire or terminate
undrawn and as a result thereof the amount of the Collateral in the L/C Cash
Collateral Account shall exceed 105% of the aggregate Available Amount of all
then outstanding Letters of Credit, such excess amount of such Collateral shall
be applied in accordance with the remaining order of priority set out in this Section 9.07(b);
and


 


(iii)                               third: ratably to each Hedge Bank and Cash Management
Bank, to the extent not included in clause (ii) above, in respect of all
remaining Obligations under Secured Hedge Agreements and Secured Cash Management
Agreements.


 


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(c)                                  After the occurrence and during the continuance of an Event
of Default, all payments received by any Loan Party under or in connection with
the Collateral shall be received in trust for the benefit of the Administrative
Agent, and shall be segregated from other funds of such Loan Party and shall be
forthwith paid over to the Administrative Agent in the same form as so received
(with any necessary endorsement).


 


(d)                                 After the occurrence and during the continuance of an Event
of Default, the Administrative Agent may, without notice to any Loan Party
except as required by law or by the DIP Financing Orders and at any time or
from time to time, charge, set off and otherwise apply all or any part of the
Secured Obligations against any funds held with respect to the Account
Collateral or in any other deposit account.


 


(e)                                  In the event of any sale or other disposition of any of the
Intellectual Property owned by any Loan Party, the goodwill symbolized by any
Trademarks subject to such sale or other disposition shall be included therein,
and such Loan Party shall supply to the Administrative Agent or its designee
such Loan Party’s know-how and expertise, and documents and things relating to
any Intellectual Property owned by such Loan Party and subject to such sale or
other disposition, and such Loan Party’s customer lists and other records and
documents relating to such Intellectual Property and to the manufacture,
distribution, advertising and sale of products and services of such Loan Party.


 


(f)                                    The Administrative Agent is authorized, in connection with
any sale of the Pledged Collateral pursuant to this Section 9.07, to
deliver or otherwise disclose to any prospective purchaser of the Pledged
Collateral any information in its possession relating to such Pledged
Collateral.


 


(g)                                 To the extent that any rights and remedies under this Section 9.07
would otherwise be in violation of the automatic stay of section 362 of the
Bankruptcy Code, such stay shall be deemed modified, as set forth in the
Interim Order or Final Order, as applicable, to the extent necessary to permit
the Administrative Agent to exercise such rights and remedies.


 


Section 9.08  Modifications.  (a)  Upon
and following entry of the Final Order, the Liens, lien priority,
administrative priorities and other rights and remedies granted to the
Administrative Agent for the benefit of the Lenders pursuant to this Agreement
and the DIP Financing Orders (specifically, including, but not limited to, the
existence, perfection and priority of the Liens provided herein and therein and
the administrative priority provided herein and therein) shall not be modified,
altered or impaired in any manner by any other financing or extension of credit
or incurrence of Debt by any of the Loan Parties (pursuant to section 364 of
the Bankruptcy Code or otherwise), or by any dismissal or conversion of any of
the Cases, or by any other act or omission whatsoever (other than in connection
with any disposition permitted hereunder). 
Without limitation, notwithstanding any such order, financing,
extension, incurrence, dismissal, conversion, act or omission:


 


(i)                                     except for the
Carve-Out having priority over the Secured Obligations, no costs or expenses of
administration which have been or may be incurred in any of the Cases or any
conversion of the same or in any other proceedings related thereto, and no
priority claims, are or will be prior to or on a parity with any claim of the
Administrative Agent or the Lenders against the Loan Parties in respect of any
Obligation;


 


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(ii)                                  the Liens and
security interests granted herein and in the DIP Financing Orders shall
constitute valid and perfected first priority Liens and security interests (if
and to the extent perfection may be achieved by the entry of the DIP Financing
Orders) (subject only to (A) the Carve-Out, (B) Permitted Liens in
existence on the Petition Date, (C) Liens permitted under section 5.02(a)(v) and
in existence on the Petition Date and (D) only to the extent such
post-petition perfection is expressly permitted by the Bankruptcy Code, valid,
nonavoidable and enforceable Liens existing as of the Petition Date, but
perfected after the Petition Date, in accordance with subsections 364(c)(2) and
(3) and 364(d) of the Bankruptcy Code), and shall be prior to all
other Liens and security interests (other than those set forth in sub-clauses (A) through
(D) herein), now existing or hereafter arising, in favor of any other
creditor or any other Person whatsoever; and


 


(iii)                               the Liens and
security interests granted hereunder shall continue valid and perfected without
the necessity that financing statements be filed or that any other action be
taken under applicable nonbankruptcy law (if and to the extent perfection may
be achieved by the entry of the DIP Financing Orders).


 


(b)                                 Notwithstanding any failure on the part of any Loan Party or
the Administrative Agent or the Lenders to perfect, maintain, protect or enforce
the Liens and security interests in the Collateral granted hereunder, the
Interim Order and the Final Order (when entered) shall automatically, and
without further action by any Person, perfect such Liens and security interests
against the Collateral (if and to the extent perfection may be achieved by the
entry of the DIP Financing Orders).


 


Section 9.09  Release; Termination.  (a)  Upon any sale, lease, transfer
or other disposition of any item of Collateral of any Loan Party in accordance
with the terms of the Loan Documents (other than sales of Inventory in the
ordinary course of business), the Administrative Agent will, at such Loan Party’s
expense, execute and deliver to such Loan Party such documents as such Loan
Party shall reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted hereby; provided,
however, that (i) at the time of such request and such release no
Default shall have occurred and be continuing, (ii) such Loan Party shall
have delivered to the Administrative Agent, at least 5 Business Days prior to
the date of the proposed release, a written request for release describing the
item of Collateral and the terms of the sale, lease, transfer or other
disposition in reasonable detail, including, without limitation, the price
thereof and any expenses in connection therewith, together with a form of
release for execution by the Administrative Agent and a certificate of such
Loan Party to the effect that the transaction is in compliance with the Loan
Documents and as to such other matters as the Administrative Agent may
reasonably request, and (iii) the Borrower shall comply with Section 2.06
with respect to such sale, lease, transfer or other disposition.


 


(b)                                 Upon the latest of (i) the payment in full in cash of
the Secured Obligations (other than contingent indemnification obligations
which are not then due and payable; provided that in the case of any
such obligations as to which the Administrative Agent or any Lender Party has
made a claim which has not been satisfied, such obligations have been cash
collateralized in an amount sufficient in the reasonable judgment of the
Administrative Agent or such Lender Party to satisfy such claim), (ii) the
Termination Date and (iii) the termination or expiration of all Letters of
Credit, the pledge and security interest granted hereby shall terminate and all
rights to the Collateral shall revert to the applicable Loan Party.  Upon any such termination, the Administrative
Agent will, at the applicable Loan Party’s expense, execute and deliver to such
Loan Party such documents as such Loan Party shall reasonably request to
evidence such termination.


 


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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 the Borrower or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders (or the
Initial Lenders, as applicable) and the Borrower 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 or 3.03
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 2.05 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);


 


(c)                                  postpone any date fixed by this Agreement or any other Loan
Document for any payment (but not any prepayment) of principal, interest, 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 2.07 or any waiver of a Default or
Event of Default and any amendment or waiver of the applicability of a
Specified Interest Accrual Event, 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 2.11 or 2.13 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 or release the
Superpriority Claim of the Lenders, in each case without the written consent of
each Lender; and


 


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


 


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(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


 


(i)                                     amend, modify or waive the provisions of (A) Section 6.01(n) or
(t) relating to the Rollup Revolving Credit Facility (including, without
limitation, the use of any proceeds of the Rollup Revolving Credit Advances) or
(B) Section 6.01(r) without the consent of each Lender adversely
affected thereby;


 


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, 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; and (ii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, 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, 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).


 


Section 10.02  Notices, Posting of Approved Electronic
Communications, Etc.  (a) All
notices, demands, requests, consents and other communications provided for in
this Agreement shall be given in writing, or by any telecommunication device
capable of creating a written record (including electronic mail), and addressed
to the party to be notified as follows:


 


(i)                                     if to the Borrower or any
other Loan Party, Chemtura Corporation, at 199 Benson Road, Middlebury, CT
06749, Attention: Chief Financial Officer, Telecopier number: (203) 573-2214,
E-mail Address: stephen.forsyth@chemtura.com, with a copy to Kirkland &
Ellis LLP, counsel to the Loan Parties, at its address at 153 E 53rd Street, New York, New York 10022, Attention:
Yongjin Im, Telecopier number: (212) 446-6460, E-Mail Address: yim@kirkland.com


 


(ii)                                  if to the Administrative
Agent, Citibank, N.A., Two Penns Way, New Castle, 19720, Attention: Bank Loan
Syndications Department, Telecopier number (212) 994-0961, E-Mail Address:
oploanswebadmin@citigroup.com


 


(iii)                               if to any Issuing Bank or
any other Lender Party, to it at its address (or telecopier number) set forth
in its Administrative Questionnaire,


 


or
at such other address as shall be notified in writing (x) in the case of
the Borrower and the Administrative Agent, to the other parties and (y) in
the case of all other parties, to the Borrower and the Administrative Agent.


 


(b)                                 All notices, demands, requests, consents and other
communications described in Section 10.02(a) shall be effective (i) if
delivered by hand, including any overnight courier service, upon personal
delivery, (ii) if delivered by mail, when deposited in the mails, (iii) if
delivered by posting to an Approved Electronic Platform, an Internet website or
a similar telecommunication device requiring that a user have prior access to
such Approved Electronic Platform, website or other device (to the extent
permitted by this Section 10.2 to be delivered thereunder), when such
notice, demand, request, consent and other communication shall have been made
generally available on such Approved Electronic Platform, Internet website or
similar device to the class of Person being notified (regardless of whether 


 


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any
such Person must accomplish, and whether or not any such Person shall have
accomplished, any action prior to obtaining access to such items, including
registration, disclosure of contact information, compliance with a standard
user agreement or undertaking a duty of confidentiality) and such Person has
been notified in respect of such posting that a communication has been posted
to the Approved Electronic Platform and (iv) if delivered by electronic
mail or any other telecommunications device, when transmitted to an electronic
mail address (or by another means of electronic delivery) as provided in Section 10.02(a);
provided, however, that notices and communications to the
Administrative Agent pursuant to Article II, III or VII shall not be
effective until received by the Administrative Agent.


 


(c)                                  Notwithstanding Sections 10.02(a) and (b) (unless
the Administrative Agent requests that the provisions of Sections 10.02(a) and
(b) be followed) and any other provision in this Agreement or any other
Loan Document providing for the delivery of any Approved Electronic
Communication by any other means, the Loan Parties shall deliver all Approved
Electronic Communications to the Administrative Agent by properly transmitting
such Approved Electronic Communications in an electronic/soft medium in a
format acceptable to the Administrative Agent to oploanswebadmin@citigroup.com
or such other electronic mail address (or similar means of electronic delivery)
as the Administrative Agent may notify to the Borrower.  Nothing in this Section 10.02(c) shall
prejudice the right of the Administrative Agent or any Lender Party to deliver
any Approved Electronic Communication to any Loan Party in any manner
authorized in this Agreement or to request that the Borrower effect delivery in
such manner.


 


(d)                                 Each of the Lender Parties and each Loan Party agree that
the Administrative Agent may, but shall not be obligated to, make the Approved
Electronic Communications available to the Lender Parties by posting such
Approved Electronic Communications on IntraLinksTM or a substantially similar
electronic platform chosen by the Administrative Agent to be its electronic
transmission system (the “Approved Electronic Platform”).


 


(e)                                  Although the Approved Electronic Platform and its primary
web portal are secured with generally-applicable security procedures and
policies implemented or modified by the Administrative Agent from time to time
(including, as of the Closing Date, a dual firewall and a User ID/Password
Authorization System) and the Approved Electronic Platform is secured through a
single-user-per-deal authorization method whereby each user may access the
Approved Electronic Platform only on a deal-by-deal basis, each of the Lender
Parties and each Loan Party acknowledges and agrees that the distribution of
material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution.  In consideration for the convenience and
other benefits afforded by such distribution and for the other consideration
provided hereunder, the receipt and sufficiency of which is hereby
acknowledged, each of the Lender Parties and each Loan Party hereby approves
distribution of the Approved Electronic Communications through the Approved
Electronic Platform and understands and assumes the risks of such distribution.


 


(f)                                    THE APPROVED ELECTRONIC PLATFORM AND THE APPROVED
ELECTRONIC COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”.  NONE OF THE ADMINISTRATIVE AGENT NOR ANY
OTHER MEMBER OF THE AGENT’S GROUP WARRANT THE ACCURACY, ADEQUACY OR
COMPLETENESS OF THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM AND EACH EXPRESSLY DISCLAIMS ANY LIABILITY FOR ERRORS
OR OMISSIONS IN THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM.  NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, 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
THE AGENT PARTIES 


 


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IN
CONNECTION WITH THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM.


 


(g)                                 Each of the Lender Parties and each Loan Party agree that
the Administrative Agent may, but (except as may be required by applicable law)
shall not be obligated to, store the Approved Electronic Communications on the
Approved Electronic Platform in accordance with the Administrative Agent’s
generally-applicable document retention procedures and policies.


 


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)  The Borrower agrees (i) to pay or reimburse the Administrative
Agent and the Lenders for all reasonable and documented costs and expenses
incurred in connection with the development, preparation, negotiation and
execution of this Agreement (which shall be deemed to include any predecessor
transaction contemplated to be entered into with the Administrative Agent or
any of the Lenders) and the other Loan Documents and any amendment, waiver,
consent or other modification of the provisions hereof and thereof (whether or
not the transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby (including the monitoring of, and participation in, all aspects of the
Cases), including all reasonable fees and expenses of outside counsel for the
Administrative Agent and the reasonable fees and expenses of one outside
counsel for all Lenders as a group, and (ii) to pay or reimburse the
Lenders (including, without limitation, Citibank in its capacity as
Administrative Agent) for all out-of-pocket costs and expenses incurred in
connection with the ongoing maintenance and monitoring of Availability and
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or the other Loan Documents (including all such costs and
expenses incurred during any “workout” or restructuring in respect of the
Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law), including all reasonable fees and expenses of counsel for
the Lenders (including, without limitation, Citibank in its capacity as
Administrative Agent).  The foregoing
fees, costs and expenses shall include all search, filing, recording, title
insurance, collateral review, monitoring, and appraisal charges and fees and
taxes related thereto, and other reasonable out-of-pocket expenses incurred by
the Initial Lenders and the cost of independent public accountants and other
outside experts retained jointly by the Initial Lenders.  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 and repayment of all other
Obligations.


 


(b)                                 Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify and hold harmless each Agent, each
Agent’s Related Parties, each Lender and their respective Affiliates,
directors, officers, employees, counsel, agents, advisors, attorneys-in-fact
and representatives (collectively the “Indemnitees”) from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable and documented fees and expenses of outside
counsel), joint or several that may be incurred by, or asserted or awarded
against any Indemnitee, in each case arising out of or in connection with or
relating to any investigation, litigation or proceeding or the preparation of
any defense with respect thereto arising out of or in connection with (i) the
execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (ii) any Commitment, Advance or Letter
of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by an Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such 


 


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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 currently or formerly owned or operated by the Borrower or any other
Loan Party, or any Liability related in any way to the Borrower or any other
Loan Party in respect of Environmental Laws, 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 (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”), in all cases, whether or not caused by or arising, in whole
or in part, out of the negligence of the Indemnitee; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
claim, damage, loss, liability or expense is determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted primarily
from the gross negligence or willful misconduct of such Indemnitee.  In the case of an investigation, litigation
or other proceeding to which the indemnity in this Section 10.04(b) applies,
such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by the Borrower or any of its Subsidiaries, any
security holders or creditors of the foregoing an Indemnitee or any other
Person, or an Indemnitee is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated.  No Indemnitee shall have any liability
(whether direct or indirect, in contract, tort or otherwise) to the Borrower or
any of its Subsidiaries for or in connection with 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
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).  No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement.  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, the termination of the Commitments and the repayment, satisfaction or
discharge of all the other Obligations.


 


(c)                                  If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the 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 2.06,
2.09(b)(i) or 2.10(d), acceleration of the maturity of the Notes pursuant
to Section 6.01 or for any other reason, or if the 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 2.04,
2.06 or 6.01 or otherwise, the Borrower shall, 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 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.  Subject to the
DIP Financing Orders and the last sentence of Section 6.01, upon (a) the
occurrence and during the continuance of any Event of Default and (b) the
making of the request or the granting of the consent specified by Section 6.01
to authorize the Administrative Agent to declare the Notes due and payable
pursuant to the provisions of Section 6.01, each Lender Party and each of
its respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and otherwise apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and 


 


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all of the Obligations of
the Borrower now or hereafter existing under this Agreement and the Note or
Notes (if any) held by such Lender Party, irrespective of whether such Lender
Party shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. 
Each Lender Party agrees promptly to notify the Borrower after any such
set-off and application; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and
application.  The rights of each Lender
Party and its respective Affiliates under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender Party and its respective Affiliates may have.


 


Section 10.06  Binding Effect.  This Agreement shall become effective when it
shall have been executed by the Borrower, the Guarantors, 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 Borrower, each Agent and
each Lender Party and their respective successors and assigns, except that the Borrower
shall not have the right to assign its 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 such Eligible
Assignee pursuant to such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $5,000,000 under each Facility for which a Commitment is being
assigned, (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 2.10 or 2.12, the Borrower shall not be liable for payment
of such increased amounts unless such assignment is made with the Borrower’s
prior consent after the Borrower has 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 Borrower.


 


(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 2.10, 2.12 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 


 


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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.


 


(d)                                 The Administrative Agent, acting for this purpose (but only
for this purpose) as the agent of the Borrower, 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
Borrower, 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.  The Register shall be available for
inspection by the 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 Borrower and each other Agent. 
In the case of any assignment by a Lender, within five Business Days
after its receipt of such notice, the Borrower, at its 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-1,
A-2 or A-3 hereto, as the case may be.


 


(f)                                    Each Issuing Bank 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 


 


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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 Borrower, 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 2.12 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 2.12(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 2.10 or 2.12, the Borrower shall
not be liable for payment of such increased amounts unless such participation
is made with the Borrower’s prior consent after the Borrower has been informed
of such increased amounts.


 


(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 Borrower furnished to such Lender Party by or on
behalf of the Borrower; 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 10.09 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 Borrower) 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


 


(j)                                     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.


 


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(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 Borrower (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 2.10 and 2.12 (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 Borrower 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.


 


Section 10.08  Execution in Counterparts.  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.  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  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 Related
Parties (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, any action or proceeding relating
to this Agreement or any other Loan Document, the enforcement of rights
hereunder or thereunder or any litigation or proceeding to which the
Administrative Agent or any Lender Party or any of its respective Affiliates
may be a party, (f) subject to an agreement containing 


 


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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, (ii) any actual or prospective party (or its managers,
administrators, trustees, partners, directors, officers, employees, agents,
advisors and other representatives) surety, reinsurer, guarantor or credit
liquidity enhancer (or their advisors) to or in connection with any swap,
derivative or other similar transaction under which payments are to be made by
reference to the Obligations under the Loan Documents or to the Borrower and
its obligations or to this Agreement or payments hereunder, (iii) to any
rating agency when required by it, (iv) the CUSIP Service Bureau or any
similar organization, (g) with the consent of the Borrower or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent, any Lender Party or any of their respective Affiliates on
a nonconfidential basis from a source other than an Loan Party; provided
that in the case of disclosure under subsections (b) (excluding disclosure
to any bank regulatory authority) and (c) of this Section 10.09, such
party subject to such requirement or request shall, to the extent permitted by
law, provide the applicable Loan Party written notice of such requirement and
cooperate with such Loan Party to obtain a protective order or other
confidential treatment.  For purposes of
this Section, “Information” means all information received from an Loan
Party or any of its respective Subsidiaries relating to an Loan Party or any of
its respective Subsidiaries 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 any Loan Party
or any of its respective Subsidiaries. 
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.


 


Section 10.10  Treatment of Information.  (a)  Certain of the Lenders may
enter into this Agreement and take or not take action hereunder or under the
other Loan Documents on the basis of information that does not contain material
non-public information with respect to any of the Loan Parties or their
securities (“Restricting Information”). 
Other Lenders may enter into this Agreement and take or not take action
hereunder or under the other Loan Documents on the basis of information that
may contain Restricting Information. 
Each Lender Party acknowledges that United States federal and state
securities laws prohibit any person from purchasing or selling securities on
the basis of material, non-public information concerning the such issuer of
such securities or, subject to certain limited exceptions, from communicating
such information to any other Person. 
Neither the Administrative Agent nor any of its Related Parties shall,
by making any Communications (including Restricting Information) available to a
Lender Party, by participating in any conversations or other interactions with
a Lender Party or otherwise, make or be deemed to make any statement with
regard to or otherwise warrant that any such information or Communication does
or does not contain Restricting Information nor shall the Administrative Agent
or any of its Related Parties be responsible or liable in any way for any
decision a Lender Party may make to limit or to not limit its access to
Restricting Information.  In particular,
none of the Administrative Agent nor any of its Related Parties (i) shall
have, and the Administrative Agent, on behalf of itself and each of its Related
Parties, hereby disclaims, any duty to ascertain or inquire as to whether or
not a Lender Party has or has not limited its access to Restricting
Information, such Lender Party’s policies or procedures regarding the
safeguarding of material, nonpublic information or such Lender Party’s
compliance with applicable laws related thereto or (ii) shall have, or
incur, any liability to any Loan Party or Lender Party or any of their
respective Related Parties arising out of or relating to the Administrative
Agent or any of its Related Parties providing or not providing Restricting
Information to any Lender Party.


 


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(b)                                 Each Loan Party agrees that (i) all Communications it
provides to the Administrative Agent intended for delivery to the Lender
Parties whether by posting to the Approved Electronic Platform or otherwise
shall be clearly and conspicuously marked “PUBLIC” if such Communications do
not contain Restricting Information which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof, (ii) by
marking Communications “PUBLIC,” each Loan Party shall be deemed to have
authorized the Administrative Agent and the Lender Parties to treat such
Communications as either publicly available information or not material
information (although, in this latter case, such Communications may contain
sensitive business information and, therefore, remain subject to the
confidentiality undertakings of Section 10.09) with respect to such Loan
Party or its securities for purposes of United States Federal and state
securities laws, (iii) all Communications marked “PUBLIC” may be delivered
to all Lender Parties and may be made available through a portion of the
Approved Electronic Platform designated “Public Side Information,” and (iv) the
Administrative Agent shall be entitled to treat any Communications that are not
marked “PUBLIC” as Restricting Information and may post such Communications to
a portion of the Approved Electronic Platform not designated “Public Side
Information.”  Neither the Administrative
Agent nor any of its Affiliates shall be responsible for any statement or other
designation by an Loan Party regarding whether a Communication contains or does
not contain material non-public information with respect to any of the Loan
Parties or their securities nor shall the Administrative Agent or any of its
Affiliates incur any liability to any Loan Party, any Lender Party or any other
Person for any action taken by the Administrative Agent or any of its
Affiliates based upon such statement or designation, including any action as a
result of which Restricting Information is provided to a Lender Party that may
decide not to take access to Restricting Information.  Nothing in this Section 10.10 shall
modify or limit a Lender Party’s obligations under Section 10.09 with
regard to Communications and the maintenance of the confidentiality of or other
treatment of Information.


 


(c)                                  Each Lender Party acknowledges that circumstances may arise
that require it to refer to Communications that might contain Restricting
Information.  Accordingly, each Lender
Party agrees that it will nominate at least one designee to receive
Communications (including Restricting Information) on its behalf and identify
such designee (including such designee’s contact information) on such Lender
Party’s Administrative Questionnaire. 
Each Lender Party agrees to notify the Administrative Agent from time to
time of such Lender Party’s designee’s e-mail address to which notice of the
availability of Restricting Information may be sent by electronic transmission.


 


(d)                                 Each Lender Party acknowledges that Communications delivered
hereunder and under the other Loan Documents may contain Restricting
Information and that such Communications are available to all Lender Parties
generally.  Each Lender Party that elects
not to take access to Restricting Information does so voluntarily and, by such
election, acknowledges and agrees that the Administrative Agent and other Lender
Parties may have access to Restricting Information that is not available to
such electing Lender Party.  None of the
Administrative Agent nor any Lender Party with access to Restricting
Information shall have any duty to disclose such Restricting Information to
such electing Lender Party or to use such Restricting Information on behalf of
such electing Lender Party, and shall not be liable for the failure to so
disclose or use, such Restricting Information.


 


(e)                                  The provisions of the foregoing clauses of this Section 10.10
are designed to assist the Administrative Agent, the Lender Parties and the
Loan Parties, in complying with their respective contractual obligations and
applicable law in circumstances where certain Lender Parties express a desire
not to receive Restricting Information notwithstanding that certain
Communications hereunder or under the other Loan Documents or other information
provided to the Lender Parties hereunder or thereunder may contain Restricting
Information.  Neither the Administrative
Agent nor any of its Related Parties warrants or makes any other statement with
respect to the adequacy of such provisions to achieve such purpose nor does the
Administrative Agent or any of its Related Parties 


 


128

















 


warrant
or make any other statement to the effect that an Loan Party’s or Lender Party’s
adherence to such provisions will be sufficient to ensure compliance by such
Loan Party or Lender Party with its contractual obligations or its duties under
applicable law in respect of Restricting Information and each of the Lender
Parties and each Loan Party assumes the risks associated therewith.


 


Section 10.11  Patriot Act Notice.  Each Lender Party and each 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 such Agent, as applicable, to
identify such Loan Party in accordance with the Patriot Act.  The Borrower shall, and shall cause each of
its Subsidiaries to, provide the extent commercially reasonable, such
information and take such actions as are reasonably requested by any Agents or
any Lender Party in order to assist the Agents and the Lender Parties in
maintaining compliance with the Patriot Act.


 


Section 10.12  Jurisdiction, Etc.  (a)  Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of the Bankruptcy Court and, if the Bankruptcy
Court does not have (or abstains from) jurisdiction, to the nonexclusive jurisdiction
of any New York State court or federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or 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 may 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.  Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan Documents
in the courts of any jurisdiction.


 


(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 10.13  Governing Law.  This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of
New York and, to the extent applicable, the Bankruptcy Code.


 


Section 10.14 
Certain Matters Relating to Rollup Revolving Credit Commitments.  Each Rollup Revolving Credit Lender that is
party to this Agreement represents and warrants on the date hereof that its
ratable share (expressed as a percentage of the aggregate Rollup Revolving
Credit Commitments) of the aggregate Rollup Revolving Credit Commitments held
by all Rollup Revolving Credit Lenders as of the date hereof equals its ratable
share (expressed as a percentage of the aggregate principal amount of
Pre-Petition Secured Indebtedness) of the aggregate principal amount of
Pre-Petition Secured Indebtedness held of record by all Rollup Revolving Credit
Lenders as of the date hereof.


 


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129

















 


Section 10.15  Waiver of Jury Trial. 
Each of the Guarantors, the Borrower, the Agents and the Lender Parties
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to any of the Loan Documents, the Advances or the actions of the
Administrative Agent or any Lender Party in the negotiation, administration,
performance or enforcement thereof.


 


 


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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, a debtor and a

  
	
   

  	
  debtor-in-possession, as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  A & M
  CLEANING PRODUCTS, LLC

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AQUA CLEAR
  INDUSTRIES, LLC

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ASCK, INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ASEPSIS, INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BIOLAB COMPANY
  STORE, LLC

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  BIOLAB FRANCHISE
  COMPANY, LLC

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BIOLAB TEXTILE
  ADDITIVES, LLC

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BIO-LAB, INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CNK CHEMICAL
  REALTY CORPORATION

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CROMPTON COLORS
  INCORPORATED

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 

















 


	
   

  	
  CROMPTON HOLDING
  CORPORATION

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CROMPTON
  MONOCHEM, INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GLCC LAUREL, LLC

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GREAT LAKES
  CHEMICAL CORPORATION

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GREAT LAKES
  CHEMICAL GLOBAL, INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  GT SEED
  TREATMENT, INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HOMECARE LABS,
  INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ISCI, INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KEM
  MANUFACTURING CORPORATION

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LAUREL
  INDUSTRIES HOLDINGS, INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  MONOCHEM, INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NAUGATUCK
  TREATMENT COMPANY

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RECREATIONAL
  WATER PRODUCTS, INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UNIROYAL
  CHEMICAL COMPANY LIMITED (DELAWARE)

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WEBER CITY ROAD
  LLC

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  WRL OF INDIANA,
  INC.

  
	
   

  	
  As a debtor and a debtor-in-possession, and as a
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  CITIBANK, N.A., as

  
	
   

  	
  Administrative Agent, Initial Lender and Initial
  Issuing Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  ROYAL BANK OF SCOTLAND PLC, as

  
	
   

  	
  Syndication Agent and Initial Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: