exv10w1



 





Exhibit 10.1




	 	 	 
	 

	 	 
	 






CREDIT AGREEMENT




among




WELLMAN, INC., AND

THE OTHER BORROWERS NAMED HEREIN,

Debtors and Debtors in Possession




as Borrowers,

with




WELLMAN, INC.,




as Funds Administrator,




THE LENDERS SIGNATORY HERETO

FROM TIME TO TIME,




as Lenders,




and




DEUTSCHE BANK TRUST COMPANY AMERICAS,




as Administrative Agent and Collateral Agent




DEUTSCHE BANK SECURITIES INC.,




as Lead Arranger and Bookrunner




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,




as Syndication Agent




GENERAL ELECTRIC CAPITAL CORPORATION,




LASALLE BUSINESS CREDIT, LLC,




WACHOVIA CAPITAL FINANCE CORPORATION (CENTRAL)




as Co-Documentation Agents




Dated as of February 26, 2008




	 	 	 
	 

	 	 
	 






 









 






TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS
	 	 	2	 
	1.1 General Definitions
	 	 	2	 
	1.2 Accounting Terms and Determinations
	 	 	36	 
	1.3 Other Interpretive Provisions
	 	 	36	 
	 
	 	 	 	 
	ARTICLE II LOANS
	 	 	37	 
	2.1 Commitments; Delivery of Notes
	 	 	37	 
	2.2 Borrowing Mechanics; Interim Advances
	 	 	37	 
	2.3 Settlements Among the Agent and the Lenders
	 	 	39	 
	2.4 Mandatory Payment; Mandatory Reduction of Commitments
	 	 	41	 
	2.5 Payments and Computations; Cash Management
	 	 	43	 
	2.6 Maintenance of Account
	 	 	44	 
	2.7 Statement of Account
	 	 	44	 
	2.8 Withholding and Other Taxes
	 	 	45	 
	2.9 Affected Lenders
	 	 	48	 
	2.10 Sharing of Payments
	 	 	49	 
	2.11 Superpriority Nature of Obligations; Priming Lien
	 	 	49	 
	2.12 Waiver of any Priming Rights
	 	 	51	 
	2.13 Payment of Obligations
	 	 	51	 
	2.14 No Discharge; Survival of Claims
	 	 	51	 
	 
	 	 	 	 
	ARTICLE III LETTERS OF CREDIT
	 	 	51	 
	3.1 Issuance of Letters of Credit
	 	 	51	 
	3.2 Procedure for Issuance
	 	 	52	 
	3.3 Terms of Letters of Credit
	 	 	53	 
	3.4 Lenders’ Participation
	 	 	54	 
	3.5 Maturity of Drawings; Interest Thereon
	 	 	54	 
	3.6 Payment of Amounts Drawn Under Letters of Credit
	 	 	55	 
	3.7 Nature of Issuing Bank’s Duties
	 	 	55	 
	3.8 Obligations Absolute
	 	 	55	 
	 
	 	 	 	 
	ARTICLE IV INTEREST, FEES AND EXPENSES
	 	 	56	 
	4.1 Interest on LIBOR Rate Loans
	 	 	56	 
	4.2 Interest on Prime Rate Loans
	 	 	57	 
	4.3 Notice of Continuation and Notice of Conversion
	 	 	57	 
	4.4 Interest After Event of Default
	 	 	59	 
	4.5 Fees
	 	 	59	 
	4.6 Letter of Credit Fees
	 	 	59	 
	4.7 Reimbursement of Expenses
	 	 	60	 
	4.8 Authorization to Charge Borrowers’ Accounts
	 	 	60	 
	4.9 Indemnification in Certain Events
	 	 	61	 
	4.10 Calculations and Determinations
	 	 	61	 






i 









 






	 	 	 	 	 
	 	 	Page
	ARTICLE V CONDITIONS PRECEDENT
	 	 	62	 
	5.1 Conditions to Initial Credit Event
	 	 	62	 
	5.2 Conditions to Each Credit Event
	 	 	63	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	65	 
	6.1 Organization and Qualification
	 	 	65	 
	6.2 Rights in Collateral; Priority of Liens
	 	 	66	 
	6.3 Company Power and Authority
	 	 	66	 
	6.4 No Violation
	 	 	66	 
	6.5 Consents
	 	 	67	 
	6.6 Financial Data
	 	 	67	 
	6.7 Locations of Offices, Records and Inventory
	 	 	67	 
	6.8 Fictitious Business Names
	 	 	68	 
	6.9 Subsidiaries
	 	 	68	 
	6.10 No Judgments or Litigation
	 	 	68	 
	6.11 Environmental Matters
	 	 	68	 
	6.12 Labor Matters
	 	 	69	 
	6.13 Compliance with Law
	 	 	69	 
	6.14 ERISA
	 	 	69	 
	6.15 Intellectual Property
	 	 	70	 
	6.16 Licenses and Permits
	 	 	70	 
	6.17 Title to Property
	 	 	71	 
	6.18 Governmental Regulations
	 	 	71	 
	6.19 Borrowers’ Taxes and Tax Returns
	 	 	71	 
	6.20 Status of Accounts
	 	 	72	 
	6.21 Material Contracts and Restrictions
	 	 	72	 
	6.22 Affiliate Transactions
	 	 	72	 
	6.23 Accuracy and Completeness of Information
	 	 	72	 
	6.24 Recording Taxes and Fees
	 	 	73	 
	6.25 No Adverse Change or Event
	 	 	73	 
	6.26 Perfection Certificates
	 	 	73	 
	6.27 Indebtedness
	 	 	73	 
	6.28 Insurance
	 	 	74	 
	6.29 Use of Proceeds; Margin Regulations
	 	 	74	 
	6.30 Anti-Terrorism Law
	 	 	75	 
	6.31 Accounts
	 	 	76	 
	6.32 Reorganization Matters
	 	 	76	 
	 
	 	 	 	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	77	 
	7.1 Financial Information
	 	 	77	 
	7.2 Certain Collateral
	 	 	80	 
	7.3 Corporate Existence and Compliance with Laws
	 	 	80	 
	7.4 ERISA
	 	 	80	 
	7.5 Books and Records
	 	 	81	 
	7.6 Collateral Records
	 	 	81	 
	7.7 Payment of Obligations
	 	 	82	 
	7.8 Insurance; Casualty Loss
	 	 	82	 






ii 









 






	 	 	 	 	 
	 	 	Page
	7.9 Borrower’s Taxes
	 	 	83	 
	7.10 Environmental Matters
	 	 	83	 
	7.11 Use of Proceeds
	 	 	84	 
	7.12 Fiscal Year
	 	 	84	 
	7.13 Notification of Certain Events
	 	 	84	 
	7.14 Intellectual Property
	 	 	85	 
	7.15 Maintenance of Property
	 	 	85	 
	7.16 Additional Security; Further Assurances
	 	 	85	 
	7.17 Weekly Management Calls
	 	 	86	 
	7.18 Chief Restructuring Officer
	 	 	86	 
	 
	 	 	 	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	86	 
	8.1 Cash Budget Compliance
	 	 	87	 
	8.2 Financial Covenants
	 	 	87	 
	8.3 No Additional Indebtedness
	 	 	87	 
	8.4 No Liens; Judgments
	 	 	88	 
	8.5 No Sale of Assets
	 	 	90	 
	8.6 No Corporate Changes
	 	 	90	 
	8.7 No Guaranties
	 	 	90	 
	8.8 No Restricted Payments or Payments of Pre-Petition Obligations
	 	 	90	 
	8.9 No Investments
	 	 	91	 
	8.10 No Affiliate Transactions
	 	 	91	 
	8.11 Limitation on Transactions Under ERISA
	 	 	92	 
	8.12 Amendments of Governing Documents
	 	 	92	 
	8.13 Additional Restrictive Covenants
	 	 	92	 
	8.14 New Collateral Locations
	 	 	92	 
	8.15 New Accounts
	 	 	93	 
	8.16 Limitation on Preferred Stock of Subsidiaries
	 	 	93	 
	8.17 Embargoed Person
	 	 	93	 
	8.18 No Accounting Changes
	 	 	93	 
	8.19 Insurance Subsidiary
	 	 	94	 
	8.20 Anti-Terrorism Law; Anti-Money Laundering
	 	 	94	 
	8.21 Returned Goods Under Section 546(h)
	 	 	94	 
	8.22 Chapter 11 Claims
	 	 	94	 
	8.23 Financial Advisor
	 	 	94	 
	8.24 Chief Restructuring Officer
	 	 	94	 
	 
	 	 	 	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	94	 
	9.1 Events of Default
	 	 	95	 
	9.2 Acceleration and Cash Collateralization
	 	 	99	 
	9.3 Remedies
	 	 	99	 
	9.4 Actions in Concert
	 	 	100	 
	9.5 Distributions
	 	 	101	 
	 
	 	 	 	 
	ARTICLE X THE AGENT
	 	 	101	 
	10.1 Appointment of Agent
	 	 	101	 
	10.2 Nature of Duties of Agent
	 	 	102	 






iii 









 






	 	 	 	 	 
	 	 	Page
	10.3 Lack of Reliance on the Agent
	 	 	102	 
	10.4 Certain Rights of the Agent
	 	 	102	 
	10.5 Reliance by the Agent
	 	 	103	 
	10.6 Indemnification of Agent
	 	 	103	 
	10.7 The Agent in its Individual Capacity
	 	 	103	 
	10.8 Holders of Notes
	 	 	104	 
	10.9 Successor Agent
	 	 	104	 
	10.10 Collateral Matters
	 	 	105	 
	10.11 Actions with Respect to Defaults
	 	 	106	 
	10.12 Delivery of Information
	 	 	106	 
	10.13 Other Agents
	 	 	107	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS
	 	 	107	 
	11.1 SUBMISSION TO JURISDICTION; WAIVERS
	 	 	107	 
	11.2 JURY TRIAL
	 	 	108	 
	11.3 GOVERNING LAW
	 	 	108	 
	11.4 Delays; Partial Exercise of Remedies
	 	 	108	 
	11.5 Notices
	 	 	108	 
	11.6 Assignability
	 	 	109	 
	11.7 Confidentiality
	 	 	111	 
	11.8 Indemnification
	 	 	112	 
	11.9 Entire Agreement; Successors and Assigns
	 	 	114	 
	11.10 Amendments, Etc
	 	 	114	 
	11.11 Nonliability of Agent and Lenders
	 	 	115	 
	11.12 Counterparts
	 	 	115	 
	11.13 Effectiveness
	 	 	116	 
	11.14 Severability
	 	 	116	 
	11.15 Headings Descriptive
	 	 	116	 
	11.16 Maximum Rate
	 	 	116	 
	11.17 Right of Setoff
	 	 	117	 
	11.18 Defaulting Lender
	 	 	117	 
	11.19 Rights Cumulative
	 	 	118	 
	11.20 Third Party Beneficiaries
	 	 	118	 
	11.21 Joint and Several Liability of Borrowers
	 	 	118	 
	11.22 Appointment and Authorization of Funds Administrator
	 	 	120	 
	11.23 Parties Including Trustees; Bankruptcy Court Proceedings
	 	 	121	 
	11.24 Effect of Financing Orders
	 	 	121	 
	11.25 Reservation of Rights
	 	 	121	 






iv 









 






ANNEXES




ANNEX I            Lenders; Commitments; Lending Offices




ANNEX II            Closing Document List




EXHIBITS




	 	 	 
	EXHIBIT A

	 	Form of Assignment and Assumption Agreement
	EXHIBIT B

	 	Form of Note
	EXHIBIT C

	 	Form of Notice of Borrowing
	EXHIBIT C-1

	 	Form of Notice of Continuation/Conversion
	EXHIBIT C-2

	 	Form of Letter of Credit Request
	EXHIBIT D

	 	Form of Compliance Certificate
	EXHIBIT E

	 	Form of Borrowing Base Certificate
	EXHIBIT F

	 	Account Debtor Concentrations
	EXHIBIT G

	 	Form of Final Financing Order
	EXHIBIT H

	 	[Reserved]
	EXHIBIT I

	 	Form of Interim Financing Order
	EXHIBIT J

	 	Form of Cash Report
	EXHIBIT K

	 	Form of EBITDA Report






SCHEDULES




	 	 	 
	SCHEDULE B, PART 3.1

	 	Original Letters of Credit
	SCHEDULE B, PART 6.1

	 	Jurisdictions Qualified to Do Business
	SCHEDULE B, PART 6.7

	 	Principal Places of Business; Chief Executive Offices;
	 

	 	Locations of Books and Records;
	 

	 	Other Locations of Collateral
	SCHEDULE B, PART 6.9

	 	Subsidiaries
	SCHEDULE B, PART 6.14

	 	ERISA Matters
	SCHEDULE B, PART 6.17

	 	Real Property
	SCHEDULE B, PART 6.19

	 	Tax Matters
	SCHEDULE B, PART 6.22

	 	Affiliate Transactions
	SCHEDULE B, PART 6.27

	 	Existing Indebtedness
	SCHEDULE B, PART 6.28

	 	Insurance
	SCHEDULE B, PART 6.31

	 	Bank Accounts
	SCHEDULE B, PART 8.4

	 	Existing Liens
	SCHEDULE B, PART 8.9

	 	Investments








v 









 








CREDIT AGREEMENT




     This Credit Agreement is dated as of February 26, 2008 and entered into by and among Wellman,
Inc., a Delaware corporation (“Wellman”), Prince, Inc., a Delaware corporation (“Prince”), Wellman
of Mississippi, Inc., a Delaware corporation (“Wellman Mississippi”), Carpet Recycling of Georgia,
Inc., a Georgia corporation (“Carpet”), ALG, Inc., a Delaware corporation (“ALG”), PTA Resources,
LLC, a Delaware limited liability company (“PTA Resources”) and Fiber Industries, Inc., a Delaware
corporation (“Fiber” and, together with Wellman, Prince, Wellman Mississippi, Carpet, ALG, PTA and
Resources, each individually referred to herein as a “Borrower” and collectively as “Borrowers”
with Wellman acting in its capacity as Funds Administrator for Borrowers), as debtors and debtors
in possession, each of the Lenders from time to time party hereto and Deutsche Bank Trust Company
Americas, acting in its capacity as administrative agent (the “Administrative Agent”) and
collateral agent (“Collateral Agent”) for the Lenders hereunder (in its capacities as
Administrative Agent and Collateral Agent, the “Agent”). Capitalized terms used in this Credit
Agreement shall have the meanings ascribed to them in Section 1.1.



RECITALS




          WHEREAS, on February 22, 2008 (the “Petition Date”), Borrowers and the Subsidiary Guarantors
(as defined below) filed voluntary petitions for reorganization under Chapter 11 of the Bankruptcy
Code with the United States Bankruptcy Court for the Southern District of New York (together with
such other court having jurisdiction over the Chapter 11 Cases (as hereinafter defined), the
“Bankruptcy Court”), which cases are jointly administered under Case No. 08-10595 (each, a “Chapter
11 Case” and collectively, the “Chapter 11 Cases”);



          WHEREAS, Borrowers and the Subsidiary Guarantors continue to operate their respective
businesses as debtors and debtors in possession pursuant to Sections 1107(a) and 1108 of the
Bankruptcy Code;



          WHEREAS, Borrowers have requested that Lenders provide a senior secured superpriority
revolving credit facility to Borrowers in an aggregate amount not to exceed $225,000,000 at any
time outstanding and maturing on the Facility Termination Date (as hereinafter defined);



          WHEREAS, the proceeds of the loans made hereunder, and the letters of credit issued hereunder
will be used by Borrowers and the Subsidiaries of Borrowers to pay transaction costs and expenses
related to the Chapter 11 Cases of Borrowers and the Subsidiaries of Borrowers as provided herein
or as may be agreed to by Agent and Lenders, to pay all outstanding amounts under, and replace
letters of credit outstanding under, the Pre-Petition Credit Agreement, to provide working capital,
to fund permitted capital expenditures hereunder, for other ordinary course purposes of Borrowers
and the Subsidiaries of Borrowers, and any other use permitted by Agent, in each case as and to the
extent permitted hereunder; and



 









 





          WHEREAS, the Lenders are willing to extend their commitment to make revolving credit available
to Borrowers for the purposes specified above only on the terms and subject to the conditions set
forth herein;



          WHEREAS, Borrowers have agreed to secure all of their obligations under the credit facilities
provided herein by granting to Agent, for the benefit of Agent and Lenders, a security interest in
and lien upon all of their existing and after-acquired real and personal property;



          WHEREAS, Warehouse Associates, Inc. USA, a South Carolina corporation (“Warehouse”), MRF,
Inc., a Delaware corporation (“MRF”), Josdav Inc., a Delaware corporation (“Josdav”), and MED
Resins, Inc., a Delaware corporation (“MED Resins” and together with Warehouse, MRF, Josdav, and
certain other material Domestic Subsidiaries, the “Subsidiary Guarantors”), as debtors and debtors
in possession, are willing to (a) guarantee all of the Obligations of Borrowers to Agent and
Lenders and (b) secure their respective guarantees by granting to Agent, for the benefit of Agent
and Lenders, a security interest in and lien upon all of their respective existing and
after-acquired real and personal property; and



          WHEREAS, based on the foregoing, Lenders are willing to make such credit facilities available
to Borrowers subject to the terms and condition set forth herein;



          NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the parties hereto agree as follows:



ARTICLE I




DEFINITIONS




     1.1 General Definitions. As used herein, the following terms shall have the meanings
herein specified:



     “Accounts” shall mean, with respect to any Person, all of such Person’s accounts,
whether existing now or in the future, including, without limitation, (a) all accounts receivable
of such Person or other accounts of such Person created by, or arising from or related to the sales
of goods or rendition of services made by such Person whether under its own name, under any of its
trade names, or through any of its divisions, or in the name of any other Person, (b) all unpaid
seller’s rights of such Person (including rescission, replevin, reclamation and stoppage in
transit) relating to the foregoing or arising therefrom, (c) all rights of such Person to any goods
represented by any of the foregoing, including returned or repossessed goods, (d) all reserves and
credit balances held by such Person with respect to any such accounts receivable or account debtors
and (e) all Guaranties or collateral for any of the foregoing.



     “Accumulated Funding Deficiency” shall have the meaning ascribed to such term in
Section 302 of ERISA.



     “Act of Bankruptcy” shall have the meaning ascribed to such term in the definition of
“Eligible Accounts Receivable”.



2









 





     “Acquisition” shall mean, with respect to any Credit Party, any transaction or series
of related transactions resulting in (a) the acquisition by such Credit Party of all or
substantially all of the assets of any other Person, or of any business or division of any other
Person, (b) the acquisition by such Credit Party of all of the issued and outstanding Capital
Securities of any other Person, including, without limitation, by means of a merger of such other
Person with and into such Credit Party (or a Wholly-Owned Subsidiary of such or any Credit Party
formed solely for the purpose of consummating such acquisition) or otherwise causing any Person
(other than any Person that is at such time a Credit Party) to become a Wholly-Owned Subsidiary of
such Credit Party, or (c) a merger, consolidation or any other combination of such Credit Party
with any other Person (other than any Person that is at such time a Credit Party), provided that
such Credit Party is the surviving Person.



     “Additional Security Documents” shall have the meaning ascribed to such term in
Section 7.16(c).



     “Adjusted LIBOR Rate” shall mean, for any Interest Period, the rate obtained by
dividing (a) the LIBOR Rate for such Interest Period by (b) a percentage equal to 1 minus
the stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained
against “Eurocurrency liabilities” as specified in Regulation D (or against any other category of
liabilities which includes deposits by reference to which the interest rate on LIBOR Rate Loans is
determined or any category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents).



     “Affiliate” shall mean, with respect to any Person, any Person which directly or
indirectly through one or more intermediaries Controls, is Controlled by, or is under common
Control with, such Person, or any Person who is a director or officer of such Person or any
Subsidiary of such Person; provided, however, for purposes of determining Eligible Accounts
Receivable and Eligible Inventory, the Permitted Holder shall not be deemed an Affiliate of
Borrowers.



     “Agent” shall have the meaning ascribed to such term in the preamble to this Credit
Agreement and shall include any successor Agent appointed pursuant to Section 10.9.



     “Applicable Lending Office” shall mean, with respect to each Lender, such Lender’s
LIBOR Lending Office in the case of a LIBOR Rate Loan, and such Lender’s Domestic Lending Office in
the case of a Prime Rate Loan.



     “Applicable Margin” shall mean, at any time with respect to any LIBOR Rate Loan, 2.75%
per annum, and at any time with respect to any Prime Rate Loan, 1.75% per annum.



     “Approved Secured Derivative Transaction Liabilities” shall mean Liabilities of
Borrowers to any Lender or its Affiliates in respect of Derivative Transactions outstanding on the
Petition Date and permitted pursuant to the Pre-Petition Credit Agreement which are secured by the
Collateral, provided, that in no event shall the aggregate Liabilities of Borrowers in respect of
such Derivative Transactions which constitute “Secured Obligations” (as such term is defined in the
Security Agreement) be greater than $15,000,000. Unless otherwise expressly provided to the
contrary, the amount of the obligations of any Credit Party in respect of a



3









 







Derivative Transaction shall be calculated by reference to the mark to market termination
value of the relevant Derivative Transaction as of the last day of the preceding month or as of the
day most recently requested by the Agent.



     “Asset Sale” shall mean any direct or indirect sale, issuance, conveyance, lease
(other than operating leases and subleases and licenses and sublicenses entered into in the
ordinary course of business), assignment, transfer or other disposition for value (including,
without limitation, pursuant to any amalgamation, merger or consolidation or pursuant to any Sale
and Leaseback Transaction) by any Borrower or by any Subsidiary to any Person other than any
Borrower or any Subsidiary (any such transaction, a “disposition”) of (i) any of the stock of any
of the Borrowers or any Subsidiary (other than the issuance by Wellman of Capital Securities), (ii)
substantially all of the assets of any division or line of business of any Borrower or of any
Subsidiary, or (iii) any other assets of any Borrower or of any Subsidiary other than in the
ordinary course of business; provided, however, that (i) transfers of assets under Tax Reduction
Agreements and (ii) termination of any Derivative Transactions shall not constitute an “Asset
Sale”.



     “Assignment and Assumption Agreement” shall mean an assignment and assumption
agreement substantially in the form of Exhibit A entered into by an assigning Lender and an
assignee Lender, and which has been accepted by the Agent, in accordance with Section 11.6.



     “Attributable Indebtedness” shall mean, as of the date of determination thereof,
without duplication (i) when used with respect to any Sale and Leaseback Transaction, as at the
time of determination, the present value (discounted at a rate equivalent to the applicable
Borrower’s then-current weighted average cost of funds for borrowed money as at the time of
determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in any such Sale and Leaseback Transaction
and (ii) the principal balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product to which such Person
is a party, where such transaction is considered borrowed money indebtedness for tax purposes but
is classified as an operating lease in accordance with GAAP.



     “Auditors” shall mean a nationally-recognized firm of independent certified public
accountants selected by Borrowers and satisfactory to the Agent in its sole discretion. For
purposes of this Credit Agreement, Borrowers’ current firm of independent certified public
accountants, Ernst & Young LLP, shall be deemed to be satisfactory to the Agent.



     “Availability” shall mean the result of (a) the lesser of (i) the Borrowing Base and
(ii) the Line of Credit minus (b) Total Exposure.



     “Availability Reserves” shall mean at any time (i) such amounts as Agent, in the
exercise of its Permitted Discretion, may from time to time establish against the Borrowing Base;
(ii) a reserve for the Carve-Out Reserve in the amount of $3,600,000; and (iii) rebate reserves to
the extent pro-forma dilution would exceed 5%.



     “Available Cash Surplus” shall mean at any time, an amount not less than $0 equal to
Total Cash minus Restricted Cash at such time.



4









 





     “Bankruptcy Code” shall mean Title 11 of the United States Code, as hereafter amended.



     “Bankruptcy Court” shall have the meaning ascribed to such term in the recitals to
this Credit Agreement.



     “Bankruptcy Rules” shall mean, collectively, the Federal Rules of Bankruptcy Procedure
as promulgated pursuant to 28 U.S.C. § 2075, and the local rules of the Bankruptcy Court, as the
same are in effect as of the date hereof and as may hereafter be amended.



     “Borrower” and “Borrowers” shall have the meanings ascribed to such terms in
the preamble to this Credit Agreement.



     “Borrower’s Account” and “Borrowers’ Accounts” shall have the meanings
ascribed to such terms in Section 2.6.



     “Borrower Taxes” shall have the meaning ascribed to such term in Section 6.19(b).



     “Borrowing” shall mean a borrowing consisting of Loans of the same Type advanced,
continued or converted on the same day by the Lenders or the Agent.



     “Borrowing Base” shall mean:




     (a) Subject to clause (b) below, at any time, the amount equal at such time to:




     (i) eighty five percent (85%) of the Value of Eligible Accounts Receivable of
each Borrower, plus




     (ii) the lesser of seventy percent (70%) of the Value of Eligible Inventory of
each Borrower and eighty five percent (85%) of the Net Orderly Liquidation Value of
Eligible Inventory of each Borrower;




     minus




     (iii) the net amount of all Approved Secured Derivative Transaction Liabilities
(if greater than zero);




     minus





     (iv) the amount of any Availability Reserves in effect at such time;




     minus




     (v) the Minimum Liquidity Availability in effect at such time.




     (b) The Agent at any time in the exercise of its Permitted Discretion shall be entitled
to (i) establish, eliminate, increase and decrease Availability Reserves (provided that the
reserve for the Carve-Out Reserve may not be reduced below $3,600,000 without the approval
of the Steering Committee) and (ii) impose additional restrictions (or



5









 







eliminate any such additional restrictions) to the standards of eligibility set forth
in the respective definitions of “Eligible Accounts Receivable” and “Eligible Inventory”.
Promptly after determining that any action under this clause (b) is necessary or desirable,
the Agent shall give the Funds Administrator three (3) Business Days notice of its intent to
take such action and use its reasonable best efforts to consult with the Funds Administrator
as to the need to take such action, it being understood that Agent’s failure to consult
shall not in any way restrict the Agent from taking such action or impose any liability on
the Agent as a consequence of such failure.



     “Borrowing Base Certificate” shall have the meaning ascribed to such term in Section
7.1(f).



     “Business Day” shall mean any day other than a Saturday, Sunday or legal holiday on
which commercial banks in New York, New York, are generally closed. When used in connection with
LIBOR Rate Loans, this definition will also exclude any day on which commercial banks are not open
for dealing in Dollar deposits in the London (England, U.K.) interbank market. When used in
connection with any Letter of Credit, this definition will also exclude any day on which the
applicable Issuing Bank is not open for the general conduct of its business.



     “Capital Expenditures” shall mean, of any Person for any period, the sum of (a) all
expenditures to the extent required to be included in the property, plant and equipment reflected
in the consolidated balance sheet of such Person in accordance with GAAP plus, without
duplication, (b) the entire principal amount of any debt (including obligations under capitalized
leases) assumed or incurred by such Person in connection with any such expenditures described in
the foregoing clause (a) other than any such debt owing by such Person to any other Person that is
a Subsidiary or Affiliate of such Person. Expenditures from insurance proceeds and any other
payments received or, without duplication, expected to be received (as certified to the Agent in a
certificate of a Responsible Officer of such Person) on account of any Casualty Loss applied to the
repair or replacement of the property affected by such Casualty Loss shall not constitute Capital
Expenditures; provided, that to the extent the actual amount received under any insurance claim
differs from the amount certified (and any appeal in respect of such amount received is exhausted
if undertaken), the amount deemed a Capital Expenditure shall be adjusted to reflect such
difference.



     “Capital Security” shall mean, with respect to any Person, (a) any share of capital
stock of or other unit of ownership interest in such Person and (b) any security convertible into,
or any option, warrant or other right to acquire, any share of capital stock of or other unit of
ownership interest in such Person.



     “Capitalized Lease Obligation” shall mean obligations under a lease that is required
to be capitalized for financial reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligations shall be the capitalized amount of such obligations
determined in accordance with GAAP.



     “Carve-Out Reserve” shall have the meaning ascribed to such term Section 2.11(c).



6









 





     “Cash Budget” shall mean on the date of determination, the thirteen (13) week cash
flow forecast, in form and substance reasonably satisfactory to the Steering Committee, most
recently delivered to the Agent pursuant to Section 7.1(k)(ii) either on the Closing Date or on the
first week of the then current Cash Budget Period.



     “Cash Budget Period” shall mean any of the following periods of consecutive calendar
weeks elapsed after the Closing Date: (i) the first (1st) through the fourth (4th) calendar weeks,
(ii) the fifth (5th) through eighth (8th) calendar weeks , (iii) the ninth (9th) through the
thirteenth (13th) calendar weeks, (iv) the fourteenth (14th) through the seventeenth (17th)
calendar weeks, (v) the eighteenth (18th) through the twenty-first (21st) calendar weeks, (vi) the
twenty-second (22nd) through the twenty-sixth (26th) calendar weeks, (vii) the twenty-seventh
(27th) through the thirtieth (30th) calendar weeks, (viii) the thirty-first (31st) through the
thirty-fourth (34th) calendar weeks, (ix) the thirty-fifth (35th) through the thirty-ninth (39th)
calendar weeks, (x) the fortieth (40th) through the forty-third (43rd) calendar weeks, the
forty-fourth through the forty-seventh (47th) calendar weeks, and (xi) the forty-eighth (48th)
through the fifty-second (52nd) calendar weeks, provided that if the Closing Date occurs on a day
of the week other than Monday, the initial Cash Budget Period under this Credit Agreement shall
include the days from the Effective Date to the commencement of the first calendar week after the
Effective Date.



     “Cash Equivalents” shall mean (i) marketable direct obligations issued or
unconditionally guaranteed or insured by the United States government or issued by any agency or
instrumentality thereof and backed by the full faith and credit of the United States, in each case
maturing within one year from the date of acquisition thereof; (ii) marketable direct obligations
issued by any state of the United States or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of acquisition thereof and,
at the time of acquisition, having an investment grade rating from either S&P or Moody’s; (iii)
commercial paper maturing no more than one year from the date of creation thereof and, at the time
of acquisition, rated at least A-1 by S&P or at least P-1 by Moody’s; (iv) time deposits,
certificates of deposit or bankers’ acceptances maturing within one year from the date of
acquisition thereof issued by any commercial bank organized under the laws of the United States or
any state thereof or the District of Columbia that (a) is “adequately capitalized” (as defined in
the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in
such regulations) of not less than $100,000,000; (v) repurchase agreements with respect to, and
which are fully secured by a perfected security interest in, obligations of a type described in
clause (i) or clause (ii) above and are with any commercial bank described in clause (iv) above;
(vi) shares of any mutual fund that are substantially invested in the types of investments referred
to in clauses (i) to (v) above; and (vii) demand deposit accounts maintained in the ordinary course
of business.



     “Cash Proceeds” shall mean, with respect to any Asset Sale, cash payments (including
any cash received by way of deferred payment pursuant to, or monetization of, a note receivable or
otherwise (other than the portion of such deferred payment constituting or deemed to constitute
interest, which shall be deemed not to constitute Cash Proceeds) but only as and when so received)
received from such Asset Sale.



     “Casualty Loss” shall have the meaning ascribed to such term in Section 7.8.



     “Change of Control” shall mean the occurrence of one or more of the following events:



7









 






     (i) any sale, lease, exchange or other transfer (in one transaction or a series
of related transactions) of all or substantially all of the assets of Wellman to any
Person or group of related Persons for purposes of Section 13(d) of the Exchange Act
(a “Group”), together with any Affiliates thereof (other than the Permitted Holder);




     (ii) the approval by the holders of Capital Securities of Wellman of any plan
or proposal for the liquidation or dissolution of Wellman;




     (iii) the replacement of a majority of the Board of Directors of Wellman over a
two-year period from the directors who constituted the Board of Directors of Wellman
at the beginning of such period, and such replacement shall not have been approved
by a vote of at least a majority of the Board of Directors of Wellman then still in
office who either were members of such Board of Directors at the beginning of such
period or whose election as a member of such Board of Directors was previously so
approved; or




     (iv) any Borrower ceases to be a Wholly-Owned Subsidiary of Wellman except as
otherwise permitted hereunder.



     “Chapter 11 Cases” shall have the meaning ascribed to such term in the recitals to
this Credit Agreement.



     “Chief Restructuring Officer” shall mean a chief restructuring officer retained by
Wellman, reasonably acceptable to the Agent upon terms and conditions reasonably acceptable to the
Agent and with duties and powers customary for a chief restructuring officer in a Chapter 11 case
of this type.



     “Closing Date” shall mean the date on which the initial Credit Event occurs.



     “Closing Document List” shall mean the Closing Document List attached hereto as Annex
II.



     “Code” shall mean the Internal Revenue Code of 1986, as amended, and the regulations
issued thereunder.



     “Collateral” shall mean any and all assets and rights and interests in or to property
of each Borrower and each of the other Credit Parties and each Credit Party’s bankruptcy estate,
whether real or personal, tangible or intangible, on which a Lien is granted or purported to be
granted to Agent or any Lender pursuant to the Credit Documents, including, without limitation, the
proceeds of the claims and causes of action arising under Sections 544, 545, 547, 548, 549 and 550
of the Bankruptcy Code, but not the claims and causes of action.



     “Collateral Access Agreements” shall mean any landlord waivers, mortgagee waivers,
bailee letters and any similar usage, access or acknowledgment agreements of any Person, such as a
warehouseman, processor, lienholder or lessor, in possession of any assets of any Borrower or any
other Credit Party, in each case in form and substance reasonably satisfactory to the Agent.



8









 





     “Collateral Documents” shall mean the Security Agreement, the Pledge Agreement, the
Control Agreements, the Intercreditor Agreement, the Mortgages, the Financing Orders, any
Additional Security Documents and all other contracts, instruments and other documents now or
hereafter executed and delivered in connection with this Credit Agreement, pursuant to which Liens
are granted or are purported to be granted to the Agent in the Collateral for the benefit of some
or all of the Agent, the Lenders and the Issuing Banks.



     “Commitment” of any Lender shall, subject to Section 11.18(c)(ii), mean the amount set
forth opposite such Lender’s name on Annex I, under the heading “Commitment,” as such amount may be
reduced from time to time or terminated pursuant to the terms of this Credit Agreement.



     “Common Stock” of any Person shall mean any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting or non-voting) of,
such Person’s common stock, whether outstanding on the Closing Date or issued after the Closing
Date, and includes, without limitation, all series and classes of such common stock.



     “Concentration Account” shall have the meaning ascribed to such term in Section
2.5(b)(i).



     “Consolidated Entity” shall mean Borrowers and each of Borrower’s respective
Subsidiaries.



     “Consolidated Interest Expense” shall mean the aggregate consolidated interest expense
(net of consolidated interest income) of the Consolidated Entity in respect of Indebtedness
determined on a consolidated basis in accordance with GAAP, including amortization of original
issue discount on any Indebtedness and of all fees payable in connection with the incurrence of
such Indebtedness, including, without limitation, aggregate fees payable in respect of Letters of
Credit pursuant to Section 4.6 (in each case, to the extent included in interest expense), the
interest portion of any deferred payment obligation and the interest component of any Capital Lease
Obligations.



     “Consolidated Net Income” shall mean, with respect to any Person, for any period, the
aggregate of the net income (or loss) of such Person and its Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided that (a) the net income of any
other Person in which such Person or any of its Subsidiaries has an interest (which interest does
not cause the net income of such other Person to be consolidated with the net income of such Person
and its Subsidiaries in accordance with GAAP) shall be included only to the extent of the amount of
dividends or distributions actually paid to such Person or such Subsidiary by such other Person
during such period; (b) the net income of any Subsidiary of such Person that is subject to any
Payment Restriction shall be excluded to the extent such Payment Restriction would prevent the
payment of an amount that otherwise could have been paid to such Person or to a Subsidiary of such
Person not subject to any Payment Restriction; and (c) there shall be excluded from Consolidated
Net Income:



9









 






     (i) all gains and losses realized on the purchase or other acquisition by such Person
or any of its Subsidiaries of any Securities of such Person or any of its Subsidiaries,




     (ii) all extraordinary gains and losses,




     (iii) all deferred financing costs written off or premiums paid in connection with the
early extinguishment of any Indebtedness, in each case, incurred by Wellman or any of its
Subsidiaries in connection with the Financing Transactions,




     (iv) income or loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period whether or not such operations were
classified as discontinued),




     (v) in the case of a successor to the referent Person by consolidation or merger or as
transferee of the referent Person’s assets, any earnings of such successor prior to such
consolidation, merger or transfer of assets, and




     (vi) the cumulative effect of a change in accounting principles.



     “Consolidated Non-cash Charges” shall mean, with respect to any Person, for any
period, the aggregate depreciation, amortization and other non-cash expenses of such Person and its
Subsidiaries reducing Consolidated Net Income of such Person and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such charges constituting
an extraordinary item or loss or any such charge to the extent that it requires an accrual of or a
reserve for cash charges for any future period).



     “Consummation Date” shall mean the earlier of the effective date or substantial
consummation of any Reorganization Plan.



     “Continuation” shall have the meaning ascribed to such term in Section 4.3(a).



     “Control” shall mean, with respect to any Person, the possession, directly or
indirectly, of the power to (a) vote ten percent (10%) or more of the securities having ordinary
voting power for the election of directors or managers of such Person or (b) direct or cause the
direction of management and policies of a business, whether through the ownership of voting
securities, by contract or otherwise either alone or in conjunction with others or any group. The
words “Controlling” and “Controlled” have correlative meanings.



     “Control Agreement” shall mean an agreement in writing, in form and substance
reasonably satisfactory to Agent, by and among Agent, the applicable Credit Party and any financial
institution, securities intermediary, commodity intermediary or other Person who has custody,
control or possession of any receipts on Accounts, deposits or investment property of such Credit
Party, pursuant to which such financial institution, securities intermediary, commodity
intermediary or such other Person acknowledges that such financial institution, securities
intermediary, commodity intermediary or other Person has custody, control or possession of such
receipts, deposits or investment property on behalf of Agent, that it will comply with entitlement
orders originated by Agent with respect to such receipts, deposits or



10









 







investment property, or other instructions of Agent, or (as the case may be) apply any amounts
distributed on account of such assets as directed by Agent, in each case, without the further
consent of such Credit Party and including such other terms and conditions as Agent may reasonably
require.



     “Convert,” “Conversion” and “Converted” each shall refer to a
conversion of Loans of one Type into Loans of another Type pursuant to Section 4.3.



     “Covered Taxes” shall have the meaning ascribed to such term in Section 2.8(a).



     “Credit Agreement” shall mean this credit agreement, dated as of the Closing Date, as
the same may be modified, amended, extended, restated, amended and restated or supplemented from
time to time.



     “Credit Documents” shall mean, collectively, this Credit Agreement, the Notes, Letters
of Credit, each L/C Application, each of the Collateral Documents, each Subsidiary Guaranty, the
Fee Letter and all other documents, agreements, instruments, opinions and certificates now or
hereafter executed and delivered in connection herewith or therewith, as the same may be modified,
amended, extended, restated, amended and restated or supplemented from time to time.



     “Credit Event” shall mean (a) the making of a Loan and/or (b) the issuance of any
Letter of Credit.



     “Credit Party” or “Credit Parties” shall mean, individually or collectively as
the context requires, each Borrower and each other Subsidiary party to the Credit Documents.



     “DBTCo.” shall mean Deutsche Bank Trust Company Americas, a New York banking
corporation, acting in its individual capacity, and its successors and assigns.



     “Default” shall mean an event, condition or default which with the giving of notice,
the passage of time or both would (if not cured, waived or otherwise remedied during such time) be
an Event of Default.



     “Defaulting Lender” shall have the meaning ascribed to such term in Section 11.18(b).



     “Depository Accounts” shall have the meaning ascribed to such term in Section
2.5(b)(i).



     “Derivative Transaction” shall mean (a) an interest-rate transaction, including an
interest-rate swap, basis swap, forward rate agreement, interest rate option (including a cap,
collar, and floor), and any other instrument linked to interest rates that gives rise to similar
credit risks (including when-issued securities and forward deposits accepted), (b) an exchange-rate
transaction (other than a spot-rate exchange), including a cross-currency interest-rate swap, a
forward foreign-exchange contract, a currency option, and any other instrument linked to exchange
rates that gives rise to similar credit risks, (c) an equity derivative transaction that gives rise
to a contingent cash payment obligation (other than as a result of customary provisions in any
convertible note documents or an event which would constitute a Change of Control),



11









 







including an equity-linked swap, an equity-linked option, a forward equity-linked contract,
and any other instrument linked to equities that gives rise to similar credit risk and (d) a
commodity (including precious metal) derivative transaction, including a commodity-linked swap, a
commodity-linked option, a forward commodity-linked contract, and any other instrument linked to
commodities that gives rise to similar credit risks.



     “Disqualified Capital Securities” shall mean any Capital Securities which, by its
terms (or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (other than an event which would constitute a
Change of Control), (i) matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, or is redeemable at the sole option of the holder thereof, in whole or in part, on a
date on or prior to one year after the Facility Termination Date in each case, other than a
maturity or redemption that entitles the holder of such Capital Security to receive Wellman Common
Stock as sole consideration upon maturity or redemption, or (ii) is convertible into or
exchangeable for (whether at the option of the issuer or the holder thereof) (a) debt securities or
(b) any Capital Securities referred to in clause (i) above, in each case at any time on a date on
or prior to one year after the Facility Termination Date; provided that only the portion of Capital
Securities which so matures or is mandatorily redeemable, is so convertible or exchangeable or is
so redeemable at the option of the holder thereof prior to such date shall be deemed to be
Disqualified Capital Securities.



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



     “Domestic Lending Office” shall mean, with respect to any Lender, the office of such
Lender specified as its “Domestic Lending Office” opposite its name on Annex I, as such annex may
be amended from time to time, or in the relevant Assignment and Assumption Agreement.



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



     “EBITDA” shall mean, with respect to any Person, for any period, the result (without
duplication) of:



     (1) Consolidated Net Income; plus



     (2) to the extent Consolidated Net Income has been reduced thereby:



          (a) all income taxes of such Person and its Subsidiaries paid or accrued in accordance with
GAAP for such period (other than income taxes attributable to extraordinary gains or losses or
non-recurring and non-operational charges or gains other than restructuring charges);



          (b) Consolidated Interest Expense;



          (c) Consolidated Non-cash Charges; and



12









 





          (d) non-recurring fees, cash charges and other cash expenses made or incurred in connection
with the Transaction;


in each case as determined on a consolidated basis for such Person and its Subsidiaries in
accordance with GAAP.




     “Effective Date” shall mean, as applied to an L/C Notice of Drawing, the Business Day
on which the Agent receives such L/C Notice of Drawing if such notice is received by it not later
than 11:00 A.M. (New York City time) on such day and, if received after such time, the next
succeeding Business Day.



     “Eligible Accounts Receivable” shall mean Accounts of a Borrower payable in Dollars.
In determining the amount to be so included, the face amount of such Accounts shall exclude any
such Accounts that the Agent determines in its Permitted Discretion to be ineligible pursuant to
the definition of the term “Borrowing Base” set forth herein. Unless otherwise approved in writing
by the Agent, no Account of any Borrower shall be deemed to be an Eligible Account Receivable (but
without duplication) if:



          (a) it arises out of a sale made by such Borrower to an Affiliate of such or any other
Borrower; or



          (b) the Account is unpaid more than (i) 60 days after the original payment due date and/or
(ii) 90 days after the original invoice date unless such Account is subject to credit insurance
issued by an insurer and on terms and in an amount reasonably acceptable to Agent or is guaranteed
or supported by a guarantor or support provider reasonably acceptable to the Agent on terms and
conditions acceptable to the Agent; or



          (c) it is from the same account debtor (or any Affiliate thereof) and fifty percent (50%) or
more, in face amount, of all Accounts from such account debtor (and any Affiliate thereof) are
ineligible pursuant to clause (b) above; or



          (d) the Account, when aggregated with all other Accounts of such account debtor (and any
Affiliate thereof), exceeds (i) in the case of any Account, the account debtor of which is listed
on Exhibit F hereto (as such Exhibit may be modified from time to time at the request of Borrowers
and with the approval of the Agent), twenty percent (20%), and (ii) in all other cases, fifteen
percent (15%), in face value of all Accounts of Borrowers combined then outstanding, to the extent
of such excess, provided that Accounts insured in a manner satisfactory to the Agent, guaranteed by
a guarantor reasonably acceptable to the Agent or supported or secured by an irrevocable letter of
credit in form and substance satisfactory to the Agent, issued by a financial institution
satisfactory to the Agent, in each case, duly transferred, assigned or pledged to the Agent
(together with sufficient documentation to permit direct draws by or direct payments to the Agent),
shall be excluded for the purposes of such calculation to the extent of the face amount of such
letter of credit or, in the case of insurance or guarantees, as determined by the Agent in its sole
discretion; or



          (e) (i) the account debtor is also a creditor of such Borrower, (ii) the account debtor has
disputed its liability on, or the account debtor has made any claim with respect to, such Account
or any other Account due from such account debtor to such Borrower, which has



13









 







not been resolved or (iii) the Account otherwise is or may reasonably be expected to become
subject to any right of setoff by the account debtor; provided that any Account deemed ineligible
pursuant to this clause (e) shall only be ineligible to the extent of the amount owed by such
Borrower to the account debtor, the amount of such dispute or claim, or the amount of such setoff,
as applicable; or



          (f) the account debtor has commenced a voluntary case under the federal bankruptcy laws, as
now constituted or hereafter amended, or made an assignment for the benefit of creditors, or if a
decree or order for relief has been entered by a court having jurisdiction over the account debtor
in an involuntary case under the federal bankruptcy laws, as now constituted or hereafter amended,
or if any other petition or other application for relief under the federal bankruptcy laws has been
filed by or against the account debtor, or if the account debtor has filed a certificate of
dissolution under applicable state law or shall be liquidated, dissolved or wound-up, or shall
authorize or commence any action or proceeding for dissolution, winding-up or liquidation, or if
the account debtor has failed, suspended business, declared itself to be insolvent, is generally
not paying its debts as they become due or has consented to or suffered a receiver, trustee,
liquidator or custodian to be appointed for it or for all or a significant portion of its assets or
affairs (any such act or event an “Act of Bankruptcy”), unless the payment of Accounts from such
account debtor is secured by assets of, or guaranteed by, in either case in a manner satisfactory
to the Agent, a Person with respect to which an Act of Bankruptcy has not occurred and that is
acceptable to the Agent or, if the Account from such account debtor arises subsequent to a decree
or order for relief with respect to such account debtor under the federal bankruptcy laws, as now
or hereafter in effect, the Agent shall have determined that the timely payment and collection of
such Account will not be impaired; or



          (g) the Agent does not have a valid and perfected first priority security interest in such
Account or the Account does not otherwise conform in all material respects to the representations
and warranties contained in the Credit Agreement, any Security Agreement or any of the other
Collateral Documents unless the sale to which such Account relates is to an account debtor outside
of the United States, Canada or Puerto Rico, and (i) such account debtor has supplied such Borrower
with an irrevocable letter of credit in form and substance reasonably satisfactory to the Agent,
issued by a financial institution satisfactory to the Agent and which has been duly transferred to
the Agent, (ii) such Account is subject to credit insurance issued by an insurer and on terms and
in an amount reasonably acceptable to Agent or is guaranteed or supported by a guarantor or support
provider reasonably acceptable to the Agent on terms and conditions acceptable to the Agent or
(iii) such Account, when aggregated with all other such Accounts that are less than 120 days past
their original invoice date (except Accounts described in (i) and (ii) of this clause (g)), does
not exceed $10,000,000; or



          (h) the sale to the account debtor is on a bill-and-hold, guarantied sale, sale-and-return,
sale on approval or consignment basis or made pursuant to any other written agreement providing for
repurchase or return; or



          (i) the account debtor is the United States of America, any State or any political
subdivision, department, agency or instrumentality thereof, unless such Borrower duly assigns its
rights to payment of such Account to the Agent pursuant to the Assignment of Claims



14









 







Act of 1940 (31 U.S.C. § 3727 et seq.) or complies with any similar State or local law as
Agent shall require; or



          (j) the goods giving rise to such Account have not been shipped and delivered to and accepted
by the account debtor (with FOB plant shipments deemed to be accepted by the applicable account
debtor until Wellman or any Subsidiary has been notified of non-acceptance) or the services giving
rise to such Account have not been performed by such Borrower and accepted by the account debtor or
the Account otherwise does not represent a final sale; or



          (k) the Accounts are subject to any adverse security deposit, progress payment or other
similar advance made by or for the benefit of the applicable account debtor to the extent of such
security deposit, progress payment or other similar advance; or



          (l) the Accounts are evidenced by or arise under any instrument or chattel paper unless such
instruments or chattel paper have been pledged to Agent containing such endorsement as Agent shall
reasonably require; or



          (m) the account debtor has a presence in a State requiring the filing of Notice of Business
Activities Report or similar report in order to permit such Borrower to seek judicial enforcement
in such State of payment of such Account unless such Borrower has qualified to do business in such
State or has filed a Notice of Business Activities Report or equivalent report for the then current
year or such failure to file and inability to seek judicial enforcement is capable of being
remedied without any material delay or material cost; or



          (n) the Account consists of progress billings (such that the obligation of the account debtor
with respect to such Account is conditioned upon such Borrower’s satisfactory completion of any
further performance under the agreement giving rise thereto); or



          (o) the goods giving rise to such Account are also Inventory of such Borrower.



     “Eligible Inventory” shall mean Inventory of a Borrower that consists of raw
materials, work in process and finished goods. In determining the amount to be so included, the
amount of such Inventory shall exclude any Inventory that the Agent determines in its Permitted
Discretion to be ineligible pursuant to the definition of the term “Borrowing Base” set forth
herein. Unless otherwise approved in writing by the Agent, no Inventory of any Borrower shall be
deemed Eligible Inventory if:



          (a) the Inventory has been returned or rejected by such Borrower’s customers; or



          (b) the Inventory is not owned solely by such Borrower or such Borrower does not have good,
valid and marketable title thereto unless such Inventory is Qualified Inventory; or



          (c) the Inventory is not stored on property that is either (i) owned or leased by such or any
other Borrower or (ii) owned or leased by a warehouseman that has contracted with such Borrower to
store Inventory on such warehouseman’s property unless such Inventory is



15









 







Qualified Inventory (provided that, with respect to Inventory of any Borrower other than
Qualified Inventory, (A) stored on property leased by a Borrower, such Borrower shall have
delivered to the Agent a Collateral Access Agreement executed by the lessor of such property, (B)
stored on property owned or leased by a warehouseman, such Borrower shall have delivered to the
Agent a Collateral Access Agreement executed by such warehouseman and (C) stored on property owned
by such Borrower which is subject to a mortgage in favor of any Person other than Agent or any
Lender, such Borrower shall have delivered to the Agent a Collateral Access Agreement executed by
the mortgagee of such property or an intercreditor agreement in form and substance reasonably
satisfactory to the Agent; provided that in the case of clauses (A) and (B), the Agent may reserve
an amount equal to ninety (90) days rent from the Borrowing Base to the extent that a Collateral
Access Agreement is not delivered with respect to such property); or



          (d) the Inventory is not Qualified Inventory and is not subject to a valid and perfected first
priority security interest in favor of the Agent except, with respect to Eligible Inventory stored
at sites described in clause (c)(ii) of this definition, for Liens for normal and customary
charges; or



          (e) the Inventory is obsolete or slow moving (in each case as reasonably determined by the
Agent) or, other than Qualified Inventory, the Inventory does not otherwise conform in all material
respects to the representations and warranties contained in the Credit Agreement, the Security
Agreement or any of the other Collateral Documents; or



          (f) the Inventory was not manufactured in accordance with or does not meet all standards
imposed by all Requirements of Law or by any government agency, or department or division thereof,
having regulatory authority over such goods or their manufacture, use or sale; or



          (g) the Inventory consists of spare parts for equipment, packaging and shipping materials or
supplies used or consumed in a Borrower’s business; or



          (h) the Inventory is purchased or sold on consignment unless a consignment agreement in form
and substance satisfactory to the Agent is in place and appropriate financing statements have been
filed; or



          (i) the Inventory, other than Qualified Inventory, is located outside the United States of
America or Canada (provided that, with respect to Inventory in Canada, Agent has determined that it
has a valid and perfected first priority security interest in such Inventory); or



          (j) the Inventory is subject to a license agreement or other arrangement with a third party
which, in Agent’s determination, restricts the ability of Agent to exercise its rights under any of
the Credit Documents with respect to such Inventory unless such third party has entered into an
agreement in form and substance reasonably satisfactory to Agent permitting Agent to exercise its
rights with respect to such Inventory or Agent has otherwise agreed to allow such Inventory to be
eligible in Agent’s Permitted Discretion; or



          (k) the Inventory consists of work in process not classified as amorphous resin or mixed
xylenes; or



16









 





          (l) the Inventory has given rise to an Account.



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



     “Environmental Claim” shall mean any accusation, allegation, notice of violation,
claim, demand, abatement order or other order or direction by any Governmental Authority or any
Person for any response or corrective action, any damage, including, without limitation, personal
injury (including sickness, disease or death), tangible or intangible property damage,
investigation, remediation or other cost recovery, contribution, indemnity, consequential damages,
damage to the environment, nuisance, pollution, contamination or other adverse effects on the
Environment, or for fines or penalties, in each case arising under any Environmental Law, including
without limitation, relating to, resulting from or in connection with Hazardous Materials and
relating to any Borrower, any Subsidiaries of any Borrower or any of their respective properties or
predecessors in interest.



     “Environmental Laws” means the common law and all United States statutes, ordinances,
orders, rules, regulations, judgments or decrees relating to (i) pollution or protection of the
Environment and public health and welfare, including, without limitation, those relating to the
Release or threatened Release of Hazardous Materials, (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials, or (iii) occupational safety and health,
including, without limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Hazardous Materials Transportation Act (49
U.S.C. § 1801 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et
seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42
U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.), the Occupational Safety and
Health Act (29 U.S.C. § 651 et seq.) and the Emergency Planning and Community Right-to-Know Act (42
U.S.C. § 11001 et seq.), each as amended or supplemented, and regulations promulgated pursuant
thereto, each as in effect as of the date of determination. When used with reference to Foreign
Subsidiaries, “Environmental Laws” shall mean the statutes, ordinances, orders, rules, regulations,
judgments or decrees of the applicable foreign jurisdictions relating to the categories described
in clauses (i), (ii) and (iii) above.



     “Environmental Lien” means a Lien in favor of a Governmental Authority or other Person
for any liability, damages, costs or any other obligation under an Environmental Law.



     “Equipment” shall mean, with respect to any Person, all of such Person’s equipment,
including machinery, equipment, office equipment and supplies, computers and related equipment,
furniture, furnishings, tools, tooling, jigs, dies, fixtures, manufacturing implements, fork lifts,
trucks, trailers, motor vehicles, and other equipment.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, and all final
or temporary regulations promulgated thereunder and published, generally applicable rulings
entitled to precedential effect.



17









 





     “ERISA Affiliate” shall mean any Person required at any relevant time to be aggregated
with any Borrower or any Subsidiary of any Borrower under Sections 414(b), (c), (m) or (o) of the
Code.



     “Euros” and the sign “€” shall each mean the lawful money of the European
Union.



     “Event of Default” shall have the meaning ascribed to such term in Article 9 of this
Credit Agreement.



     “Excluded Actions” shall have the meaning ascribed to such term in Section 2.11(c).



     “Expenses” shall mean all present and future reasonable expenses incurred by or on
behalf of the Agent, in its capacity as Agent, in connection with the Credit Agreement, any other
Credit Document or otherwise, whether incurred heretofore or hereafter, which expenses shall
include, without being limited to, the cost of record searches, the reasonable fees and expenses of
attorneys (including the allocated cost of internal counsel) and paralegals, all reasonable costs
and expenses incurred by the Agent in opening bank accounts and lockboxes, depositing checks,
receiving and transferring funds, and any reasonable charges imposed on the Agent due to
insufficient funds of deposited checks and the Agent’s standard fee relating thereto, collateral
examination fees and expenses, reasonable fees and expenses of accountants, appraisers, field
examiners or other consultants, experts or advisors employed or retained by the Agent, reasonable
fees and expenses incurred by the Agent in connection with the initial assignments of the Loans,
fees and taxes relative to the filing of financing statements, costs of preparing and recording any
other Collateral Documents, all expenses and costs referred to in Article 4 of this Credit
Agreement, all other reasonable fees and expenses required to be paid pursuant to the Fee Letter
and all reasonable fees and expenses incurred in connection with releasing Collateral and the
amendment or termination of any of the Credit Documents.



     “Exposure” shall have the meaning ascribed to such term in the definition of “Majority
Lenders”.



     “Facility Termination Date” shall mean the earliest of: (i) the date that is three
hundred sixty-five (365) days after the Closing Date; (ii) such date as the Commitments shall have
been terminated or otherwise reduced to $0 pursuant to this Credit Agreement (whether pursuant to
Section 9.1 or otherwise), all Loans have been repaid, all Letters of Credit have been terminated
or have been cash collateralized at 105% and the Borrowers are entitled to a release of the
Collateral under Section 10.10; (iii) the date that is six (6) Business Days after the Petition
Date if the Interim Financing Order has not been approved by the Bankruptcy Court by such date, or
eight (8) Business Days after the Petition Date if such Financing Order has not been entered by the
Bankruptcy Court by such date; (iv) the date that is forty-five (45) days after the Petition Date
if the Final Financing Order has not been approved by the Bankruptcy Court by such date, or two (2)
Business Days after such forty-five (45) day period if the Final Financing Order has not been
entered by the Bankruptcy Court by such date, unless the Interim Financing Order has been extended
with Agent’s written consent to a date acceptable to Agent; (v) the date upon which the Interim
Financing Order expires, unless the Final Financing Order shall have been entered and become
effective on such date; (vi) the Consummation Date for any Reorganization Plan in any Chapter 11
Case; and (vii) contemporaneously with the funding of the Wellman Sale.



18









 





     “Federal Funds Rate” shall mean, 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 on such transactions received by the Agent
from three Federal Funds brokers of recognized standing selected by it.



     “Fee Letter” shall mean that certain letter agreement dated February 20, 2008 by and
among Deutsche Bank Securities Inc., the Agent and Wellman and providing for the payment of certain
fees in connection with, among other things, the Transactions.



     “Fees” shall mean the Upfront Fee, the Unused Line Fee, the Letter of Credit Fees and
the Issuing Bank Fees, and, without duplication, all fees payable by Borrowers under the Fee
Letter.



     “Final Financing Order” shall mean an order of the Bankruptcy Court entered in the
Chapter 11 Cases after a final hearing under Bankruptcy Rule 4001(c)(2) substantially in the form
of Exhibit G hereto (with such changes as are acceptable to the Agent (with approval of the
Steering Committee in its sole discretion) and Borrowers), as the same may be amended, supplemented
or otherwise modified from time to time with the express written consent or joinder of Agent (with
the approval of the Steering Committee in its sole discretion) and approved by the Bankruptcy
Court.



     “Final Financing Order Date” shall mean the date of entry of the Final Financing Order
by the Bankruptcy Court.



     “Financial Advisory Fee” shall mean the fee payable by Wellman to Lazard in connection
with closing the Wellman Sale pursuant to the existing agreement of Wellman with Lazard previously
delivered to the Agent in connection with filing the Chapter 11 Cases and as approved by the
Bankruptcy Court.



     “Financing Orders” shall mean collectively, the Interim Financing Order and the Final
Financing Order.



     “Financial Statements” shall mean the consolidated balance sheets, statements of
income, cash flows and shareholder’s equity of the Consolidated Entity for the period specified.



     “First Lien Credit Agreement” means the term loan agreement that evidences the First
Lien Credit Facility.



     “First Lien Credit Facility” shall mean the term loan credit agreement providing for
$185,000,000 in term loans entered into on February 10, 2004, between Wellman, the lenders party
thereto in their capacities as lenders thereunder and DBTCA, as administrative agent, together with
the related documents thereto (including, without limitation, any guarantee, collateral and
security agreements and/or documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified prior to the Petition
Date.



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     “First Lien Credit Facility Agent” shall mean the Administrative Agent (as defined in
the First Lien Credit Agreement).



     “Fiscal Quarter” shall mean any of the quarterly accounting periods of Borrowers,
ending on March 31, June 30, September 30 and December 31 of each year.



     “Fiscal Year” shall mean any of the annual accounting periods of Borrowers ending on
December 31 of each year.



     “Foreign Lender” shall mean any Lender or Issuing Bank organized under the laws of a
jurisdiction outside of the United States.



     “Foreign Subsidiary” shall mean each Subsidiary of a Borrower that is incorporated or
organized under the laws of and conducts substantially all of its business in any jurisdictions
other than the United States, any State thereof, the United States Virgin Islands or Puerto Rico.



     “Funding Bank” shall have the meaning ascribed to such term in Section 4.9.



     “Funds Administrator” shall mean Wellman in its capacity as borrowing agent and funds
administrator for Borrowers hereunder and under each of the other Credit Documents.



     “GAAP” shall mean generally accepted accounting principles in the United States as in
effect from time to time.



     “Governing Documents” shall mean, as to any Person, the certificate or articles of
incorporation and by-laws or other organizational or governing documents of such Person.



     “Governmental Authority” shall mean any nation 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.



     “Guarantee Obligations” shall mean, as to any Person, without duplication, any direct
or indirect obligation of such Person guaranteeing or intended to guarantee any Indebtedness,
dividend, Capitalized Lease Obligation or operating lease, any other lease or other obligation
(“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly
or indirectly, including, without limitation, any obligation of such Person, whether or not
contingent: (i) to purchase any such primary obligation or any property constituting direct or
indirect security therefor; (ii) to advance or supply funds (a) for the purchase or payment of any
such primary obligation, or (b) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor; (iii) to
purchase property, 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 owner of such primary obligation
against loss in respect thereof, provided, however, that the term Guarantee Obligations shall not
include endorsements of instruments for deposit or collection in the ordinary course of business or
guarantees in respect of trade payables of Wellman and its Subsidiaries. The amount of any
Guarantee Obligation at any time shall be deemed to be an amount equal to the lesser at such time
of (x) the stated or determinable amount of the primary obligation in respect of which such



20









 







Guarantee Obligation is made or (y) the maximum amount for which such Person may be liable
pursuant to the terms of the instrument embodying such Guarantee Obligation; or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof; provided, however,
as to any Derivative Transaction, such amount shall be calculated by reference to the mark to
market termination value of the relevant Derivative Transaction as of the last day of the preceding
month or as of the day most recently requested by the Agent.



     “Guaranty” of any Person shall mean any liability, contingent or otherwise, of such
Person (other than an endorsement for collection or deposit and standard contractual indemnities,
in each case, in the ordinary course of business) (a) to pay any liability of any other Person or
to otherwise protect, or having the practical effect of protecting, the holder of any such
Liability against loss (whether such obligation arises by virtue of such Person being a partner of
a partnership or participant in a joint venture or by agreement to pay, to keep well, to maintain
solvency, assets, level of income or other financial condition, to purchase assets, goods,
securities or services or to take or pay, or otherwise) or (b) incurred in connection with the
issuance by a third Person of a Guaranty of any liability of any other Person (whether such
obligation arises by agreement to reimburse or indemnify such third Person or otherwise). The word
“Guaranty” when used as a verb has the correlative meaning.



     “GuardWell” shall mean GuardWell Insurance Company, a Vermont corporation.



     “Hazardous Materials” shall mean any pollutant, contaminant, waste, chemical, material
or substance or constituent, including without limitation, any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable and require abatement,
transformers or other equipment that contain dielectric fluid containing polychlorinated biphenyls,
and radon gas, subject to regulation or which could give rise to liability under Environmental
Laws.



     “Highest Lawful Rate” shall mean, at any time when any Obligations shall be
outstanding hereunder, the maximum nonusurious interest rate, that then may be contracted for,
taken, reserved, charged or received on the Obligations owing under this Credit Agreement or any of
the other Credit Documents, under (a) the laws of the State of New York (or the law of any other
jurisdiction whose laws may be mandatorily applicable notwithstanding other provisions of this
Credit Agreement and the other Credit Documents) or (b) if higher, applicable federal laws, in any
case after taking into account, to the extent permitted by applicable law, any and all relevant
payments or charges under this Credit Agreement and any other Credit Documents executed in
connection herewith, and any available exemptions, exceptions and exclusions.



     “Immaterial Subsidiary” shall mean as of any date of determination, any Subsidiary of
a Borrower that, as of the most recently ended fiscal quarter, has gross assets of less than
$5,000,000.



     “Indebtedness” shall mean, with respect to any Person, without duplication




     (i) all indebtedness, obligations and liabilities of such Person for borrowed
money,



21









 






     (ii) that portion of obligations with respect to Capitalized Lease Obligations
that is properly classified as a liability on a balance sheet of such Person in
conformity with GAAP,




     (iii) notes payable and drafts accepted representing extensions of credit,
whether or not representing obligations for borrowed money, of such Person,




     (iv) any indebtedness, obligation or liability of such Person owed for all or
any part of the deferred purchase price of property or services, conditional sale
obligations and obligations under title retention agreements (excluding any such
obligations incurred under ERISA), which purchase price is (a) due more than six
months (or a longer period of up to one year, if such terms are available from
suppliers in the ordinary course of business) from the date of incurrence of the
obligation in respect thereof or (b) evidenced by a note or similar written
instrument,




     (v) all indebtedness, obligations and liabilities (other than those
constituting an operating lease) secured by any Lien on any property or asset owned
or held by that Person regardless of whether the indebtedness secured thereby shall
have been assumed by that Person or is nonrecourse to the credit of that Person,




     (vi) Guarantee Obligations of such Person,




     (vii) guarantees and other contingent obligations in respect of indebtedness
referred to in clauses (i) through (v) above,




     (viii) all Disqualified Capital Securities issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital Securities being
equal to the greater of its voluntary or involuntary liquidation preference and its
maximum fixed repurchase price, but excluding accrued dividends, if any,




     (ix) Attributable Indebtedness of such Person; and




     (x) the mark to market termination value, if any, of all Derivative
Transactions to the extent such transactions should be reflected on the balance
sheet of such Person.



     For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital
Securities which does not have a fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Capital Securities as if such Disqualified Capital Securities were
purchased on any date on which Indebtedness shall be required to be determined pursuant to this
Credit Agreement, and if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Securities, such fair market value to be determined reasonably and in good
faith by the Board of Directors of the issuer of such Disqualified Capital Securities.
Notwithstanding the foregoing, “Indebtedness” shall not include trade payables and accrued
liabilities incurred in the ordinary course of business for the purchase of goods or services which
are not secured by a Lien other than a Permitted Lien and which are not overdue by more than



22









 




180 days. Indebtedness shall not include deferred payments on intercompany sales pursuant to
appropriate transfer pricing terms and which are paid within ninety (90) days.




     “Intellectual Property” shall mean, with respect to any Person, all of such Person’s
now owned and hereafter arising or acquired: patents, patent rights, patent applications,
copyrights, works which are the subject matter of copyrights, copyright registrations, trademarks,
trade names, trade styles, trademark and service mark applications, and rights under licenses and
other rights to use any of the foregoing; all extensions, renewals, reissues, divisions,
continuations, and continuations-in-part of any of the foregoing; all rights to sue for past,
present and future infringement of any of the foregoing; inventions, trade secrets, formulae,
processes, compounds, drawings, designs, blueprints, surveys, reports, manuals, and operating
standards; goodwill (including any goodwill associated with any trademark or the license of any
trademark); customer and other lists in whatever form maintained; and trade secret rights,
copyright rights, rights in works of authorship, domain names and domain name registrations;
software and contract rights relating to software, in whatever form created or maintained.



     “Intercompany Indebtedness” shall mean any Indebtedness of a Borrower or any
Subsidiary Guarantor or Wholly-Owned Subsidiary of a Borrower that is not a Subsidiary Guarantor
that, in the case of a Borrower, is owing to any other Borrower, any Subsidiary Guarantor or
Wholly-Owned Subsidiary of a Borrower that is not a Subsidiary Guarantor and that, in the case of
any such Subsidiary, is owing to a Borrower or any Subsidiary Guarantor or Wholly-Owned Subsidiary
of a Borrower that is not a Subsidiary Guarantor; provided that if as of any date any Person other
than a Borrower or a Subsidiary Guarantor or Wholly-Owned Subsidiary of a Borrower that is not a
Subsidiary Guarantor owns or holds such Indebtedness, or holds any Lien in respect thereof, such
Indebtedness shall no longer be Intercompany Indebtedness permitted to be incurred pursuant to
Section 8.3(c).



     “Intercreditor Agreement” shall mean that certain Intercreditor Agreement, dated as of
February 10, 2004, by and among the Agent (as successor to the Agent as defined in the Pre-Petition
Credit Agreement), the First Lien Credit Facility Agent and the Second Lien Credit Facility Agent,
as such agreement may be amended, restated or otherwise modified and in effect.



     “Interest Period” shall mean a period, commencing, in the case of the first Interest
Period applicable to a LIBOR Rate Loan, on the date of the making of, or conversion into, such
Loan, and, in the case of each subsequent, successive Interest Period applicable thereto, on the
last day of the immediately preceding Interest Period. The duration of each such Interest Period
shall be one month (and other shorter periods if available to all Lenders), in each case as the
Funds Administrator may, in an appropriate Notice of Borrowing, Notice of Continuation or Notice of
Conversion, select; provided that the Funds Administrator may not select any Interest Period that
ends after the Facility Termination Date. 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 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.



     “Interest Rate Agreement” shall mean any agreement evidencing an interest rate
transaction, including an interest rate swap, basis swap, forward rate agreement, interest rate



23









 







option (including a cap, collar or floor), and any other instrument linked to interest rates
that gives rise to similar credit risks.



     “Interim Advance” shall mean a Loan made by the Agent to Borrowers pursuant to Section
2.2(b)(i).



     “Interim Advance Period” shall have the meaning ascribed to such term in Section
2.2(b)(i).



     “Interim Financing Order” shall mean an order of the Bankruptcy Court entered in the
Chapter 11 Cases after an interim hearing substantially in the form of Exhibit I hereto (with such
changes as are acceptable to the Agent and Borrowers), as the same may be amended, supplemented or
otherwise modified from time to time with the express written consent or joinder of the Agent in
its sole discretion and approved by the Bankruptcy Court.



     “Internal Revenue Service” or “IRS” shall mean the United States Internal
Revenue Service and any successor agency.



     “Inventory” shall mean, with respect to any Person, all of such Person’s inventory,
including: (a) all raw materials, work in process, parts, components, assemblies, supplies and
materials used or consumed in such Person’s business; (b) all goods, wares and merchandise,
finished or unfinished, held for sale or lease or leased or furnished or to be furnished under
contracts of service; and (c) all goods returned or repossessed by such Person.



     “Investment” shall mean, with respect to any Person, any direct or indirect loan or
other extension of credit (including, without limitation, a Guarantee Obligation) or capital
contribution to (by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or acquisition by such
Person of any Capital Securities, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by, any other Person. “Investment” shall exclude extensions of trade credit in
the ordinary course and deposits to secure leases by Wellman and its Subsidiaries in the ordinary
course of business of Wellman or such Subsidiary, in each case, as the case may be. In determining
the aggregate amount of Investments outstanding at any particular time, without duplication (a) the
amount of any Investment represented by a Guaranty shall be taken at not less than the principal
amount of the Liabilities to which such Guaranty is applicable and still outstanding; (b) there
shall be deducted in respect of each such Investment (but not in excess of the amount of such
Investment) any amount received after the Closing Date, in cash in respect of such Investment; and
(c) there shall not be deducted from the original amount of any Investment, and such Investment
shall be deemed to continue to be “outstanding” in such original amount notwithstanding, any (i)
decrease in the market value thereof or (ii) amount thereof that may have been forgiven, released,
cancelled or otherwise nullified or held to be invalid. Notwithstanding the foregoing, for
purposes of determining the aggregate amount of Investments in Foreign Subsidiaries, “Investment”
shall also include the transfer of assets, whether by dividend on Capital Securities, redemption of
such Capital Securities or otherwise, in each case, net of any such transfers received after the
Closing Date, by Borrowers and Domestic Subsidiaries from Foreign Subsidiaries.




24











 





     “Investment Account” shall have the meaning ascribed to such term in Section 8.9(f).



     “Issuing Bank” shall mean DBTCo. or (a) any Lender or (b) any Affiliate of a Lender
that, in either case, is acceptable to the Agent and has agreed to issue a Letter of Credit for the
account of Borrowers under this Credit Agreement.



     “Issuing Bank Fees” shall have the meaning ascribed to such term in Section 4.6(b).



     “Lazard” shall mean Lazard LLC.



     “L/C Interest Rate” shall have the meaning ascribed to such term in Section 3.5(b).



     “L/C Notice of Drawing” shall mean the date on which the Issuing Bank provides Agent
with notice that a drawing has been made under a Letter of Credit.



     “L/C Participation” shall have the meaning ascribed to such term in Section 3.4.



     “Lender” shall, subject to Section 11.18(c)(ii), mean (a) each Person listed as a
“Lender” on the signature pages hereof and (b) each Person that has been assigned any or all of the
rights and obligations of a Lender pursuant to Section 11.6(c).



     “Letter of Credit” shall mean all letters of credit (whether commercial or stand-by
and whether for the purchase of inventory, equipment or otherwise) issued for the account of any
Borrower by an Issuing Bank pursuant to Article 3 of this Credit Agreement and all amendments,
renewals, extensions or replacements thereof.



     “Letter of Credit Fees” shall have the meaning ascribed to such term in Section
4.6(a).



     “Letter of Credit Obligations” shall mean, at any time, the sum of (a) the aggregate
undrawn face amounts of all Letters of Credit outstanding at such time, plus (b) the
aggregate unreimbursed amount of all drawings under Letters of Credit.



     “Letter of Credit Request” shall have the meaning ascribed to such term in Section
3.2(a).



     “Liability” of any Person shall mean (in each case, whether with full or limited
recourse) any indebtedness, liability, obligation, covenant or duty of or binding upon, or any term
or condition to be observed by or binding upon, such Person or any of its assets, of any kind,
nature or description, direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, whether arising under contract, Requirement of Law, or
otherwise, whether now existing or hereafter arising, and whether for the payment of money or the
performance or non-performance of any act.



     “LIBOR Lending Office” shall mean, with respect to any Lender, the office of such
Lender specified as its “LIBOR Lending Office” opposite its name on Annex I or in the relevant
Assignment and Acceptance Agreement (or, if no such office is specified, its Domestic Lending
Office), or such other office or Affiliate of such Lender as such Lender may from time to time
specify to the Funds Administrator and the Agent.



25









 





     “LIBOR Margin” shall mean, at any time, the Applicable Margin for LIBOR Rate Loans at
such time.



     “LIBOR Rate” shall mean, with respect to any Interest Period, (a) the rate per annum
for Dollar deposits approximately equal to the principal amount of the LIBOR Rate Loans for which
the LIBOR Rate is being determined and with maturities comparable to the Interest Period for which
such LIBOR Rate would apply, which appears on the Telerate Page 3750 at approximately 11:00 A.M.,
London time, on the day that is two (2) Business Days prior to the first day of such Interest
Period and (b) if no such rate so appears on the Telerate Page 3750, an interest rate per annum
equal to the rate (rounded upward to the nearest whole multiple of one-sixteenth (1/16) of one
percent (1.00%) per annum, if such rate is not such a multiple) of the offered quotation, if any,
to first class banks in the London (U.K.) interbank market by Deutsche Bank for Dollar deposits of
amounts in immediately available funds comparable to the principal amount of the LIBOR Rate Loans
for which the LIBOR Rate is being determined with maturities comparable to the Interest Period for
which such LIBOR Rate will apply as of approximately 10:00 A.M. (New York City time) two (2)
Business Days prior to the commencement of such Interest Period. The term “Telerate Page 3750”
shall mean the display designated as Page 3750 on the Telerate Services (or such other page as may
replace such page on such service for the purpose of displaying a comparable rate).



     “LIBOR Rate Loan” shall mean a Loan that bears, or is to bear, interest by reference
to the LIBOR Rate.



     “Lien(s)” shall mean (a) any lien, claim, charge, pledge, security interest, deed of
trust, mortgage, other encumbrance or other arrangement (other than a deposit consisting solely of
a Letter of Credit) having the practical effect of the foregoing or other preferential arrangement
of any other kind and shall include the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement and (b) in addition, in the case of any
investment property, any contract or other arrangement, express or implied, under which any Person
has the right to control such investment property.



     “Line of Credit” shall mean, at any time, an amount equal to the aggregate amount, at
such time, of the Commitments.



     “Loans” shall mean amounts advanced by Agent or a Lender pursuant to Section 2.1,
2.2(b), 2.2(c), 3.6 or any other provision of this Credit Agreement.



     “Lockboxes” shall have the meaning ascribed to such term in Section 2.5(b)(i).



     “Majority Lenders” shall mean, at any time, those Lenders having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have expired or been terminated,
Lenders having more than 50% of the aggregate amount of the outstanding Exposures; and for this
purpose, a Lender’s “Exposure” shall mean (assuming that any Interim Advances have been settled)
the aggregate amount of such Lender’s outstanding Loans plus such Lender’s Proportionate
Share of outstanding Letter of Credit Obligations.



     “Management Call” shall mean a conference call including the management of Wellman
(including the Chief Restructuring Officer), the Agent and the Lenders. Such calls will cover



26









 







topics including, but not limited to, the following: (i) updates from Lazard regarding the
Wellman Sale, (ii) the Cash Budget, (iii) the financial condition and prospects of Wellman and its
Subsidiaries, and (iv) developments affecting the administration of the Chapter 11 Cases.



     “Material Adverse Effect” shall mean a material adverse effect on (a) the business,
operations, results of operations, assets, liabilities, prospects or condition (financial or
otherwise) of the Credit Parties taken as a whole or a substantial portion of the Collateral, (b)
any Credit Party’s ability to perform its material obligations under the Credit Documents to which
it is a party or (c) the rights and remedies of the Agent, the Lenders or any Issuing Bank under
any Credit Document. The events leading up to the filing and the filing of a Chapter 11 Case do
not, in and of themselves, or in the aggregate with all other Chapter 11 Cases, constitute a
Material Adverse Effect.



     “Material Contract” shall mean any contract, lease, license indenture, agreement,
commitment, raw material contract or other arrangement (other than the Credit Documents), whether
written or oral, to which any Borrower or any Subsidiary of any Borrower is a party with respect to
which breaches, performances, nonperformances, cancellations or failures to renew or replace by any
party thereto singly or in the aggregate would reasonably be expected to have a Material Adverse
Effect.



     “Minimum Liquidity Availability” shall mean, on any date prior to September 15, 2008,
$20,000,000, provided that for the thirty days commencing May 6, 2008, Minimum Liquidity
Availability means $10,000,000. Commencing September 15, 2008 and thereafter, Minimum Liquidity
Availability shall mean $30,000,000.



     “Mortgage” shall mean individually and collectively, any mortgages or similar
documents executed pursuant to Section 7.16, all as amended, restated, supplemented or otherwise
modified from time to time.



     “Mortgage Policies” shall mean any mortgage title insurance policies delivered to the
Agent hereunder.



     “Mortgage Property” shall mean any real property subject to the Mortgages.



     “Multiemployer Plan” shall mean a “multiemployer plan” as defined in Sections
3(37) or 400l(a)(3) of ERISA and (a) which is, or within the immediately preceding six (6) years
was, contributed to by any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate or (b)
with respect to which any Borrower or any Subsidiary of any Borrower may incur any liability.



     “Net Orderly Liquidation Value”, at any time, shall mean (a) the “net orderly
liquidation value” determined by a valuation company acceptable to the Agent at or prior to such
time after performance of an Inventory valuation to be done at the Agent’s request and Borrowers’
expense, less the amount estimated by such valuation company for marshalling, reconditioning,
carrying, and sales expenses designed to maximize the resale value of such Inventory and assuming
that the time required to dispose of such Inventory is customary with respect to such Inventory; or
(b) if no such Inventory valuation has been requested by the Agent, the value customarily
attributed to Inventory in the appraisal industry for Inventory of similar quality and quantity,
and similarly dispersed (under similar and relevant circumstances under



27









 







standard asset-based lending procedures), at the time of the valuation, less the amount
customarily estimated in the appraisal industry at the time of any determination for marshalling,
recondition, carrying, and sales expenses designed to maximize the resale value of such Inventory
and assuming that the time required to dispose of such Inventory is customary with respect to such
Inventory.



     “Net Sale Proceeds” shall mean, at any time, with respect to any Asset Sale, Cash
Proceeds of such Asset Sale net of bona fide direct costs of sale including, but not limited to,
(i) the cash expenses of such Asset Sale (including, without limitation, the payment of principal,
premium, if any, and interest on Indebtedness required to be paid as a result of such Asset Sale
and legal, accounting and investment banking fees and sales commission(s)), (ii) taxes paid or
payable as a result thereof, and (iii) any portion of cash proceeds which Wellman determines in
good faith should be reserved for post-closing adjustments, it being understood and agreed that on
the day that all such post-closing adjustments have been determined, the amount (if any) by which
the reserved amount in respect of such Asset Sale exceeds the actual post-closing adjustments
payable by the Borrowers or any of their Subsidiaries shall constitute Net Sale Proceeds on such
date.



     “Note” shall mean a promissory note of Borrowers payable to the order of any Lender,
in the form of Exhibit B, evidencing the aggregate Indebtedness of Borrowers to such Lender
resulting from the Loans made by such Lender or acquired by such Lender pursuant to Section 11.6.



     “Notice of Borrowing” shall have the meaning ascribed to such term in Section
2.2(a)(i).



     “Notice of Continuation” shall have the meaning ascribed to such term in Section
4.3(a).



     “Notice of Conversion” shall have the meaning ascribed to such term in Section 4.3(b).



     “Obligations” shall mean (a) the unpaid principal of and interest on the Loans and the
Notes, (b) the obligation of Borrowers to pay to an Issuing Bank the amounts of all drawings
together with interest accrued thereon at the L/C Interest Rate, made under Letters of Credit of
such Issuing Bank, (c) the Fees, (d) the Expenses, (e) all other Liabilities of the respective
Credit Parties to the Agent, the Collateral Agent and any Lender (in its capacity as such and not
in its capacity as an Issuing Bank), which may arise under, out of, or in connection with, the
Credit Agreement, the Notes, any other Credit Document, and (f) all other Liabilities of the
respective Borrowers to an Issuing Bank under all its L/C Applications and Letters of Credit. As
used in clauses (a), (b) and (c) and wherever else the determination of the amount of “interest” is
relevant, “interest” shall include interest accruing on or after the filing of, or what would have
accrued but for the filing of, any petition in bankruptcy, or the commencement of any insolvency,
reorganization, or like proceeding, relating to any Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding.



     “Other Taxes” shall have the meaning ascribed to such term in Section 2.8(b).



     “Payment” shall have the meaning ascribed to such term in Section 2.10.



28









 





     “Payment Restriction” shall mean any encumbrance or restriction on the ability of any
Subsidiary of any Borrower to (a) pay dividends or make any other distributions on its Capital
Securities or any other interest or participation in, or measured by, its profits; (b) make loans
or advances or pay any Indebtedness or other obligation owed to any Borrower or to any Subsidiary
of any Borrower; or (c) transfer any of its property or assets to any Borrower or to any Subsidiary
of any Borrower.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation and any Person succeeding
to the functions thereof.



     “Permitted Discretion” shall mean the Agent’s judgment exercised in good faith based
upon its consideration of any factor which the Agent believes in good faith: (a) will or could
adversely affect the value of any Collateral, the enforceability or priority of the Agent’s Liens
thereon or the amount which the Agent, the Lenders or any Issuing Bank would be likely to receive
(after giving consideration to delays in payment and costs of enforcement) in the liquidation of
such Collateral, (b) suggests that any collateral report delivered to the Agent by any Person on
behalf of any Borrower is incomplete, inaccurate or misleading in any material respect, (c) creates
or could be expected to create a Default or Event of Default, or (d) has or could otherwise
materially adversely affect the interests of the Secured Parties. In exercising such judgment, the
Agent may consider such factors already included in or tested by the definition of Eligible
Accounts Receivable or Eligible Inventory, as well as, without limitation, any of the following:
(i) the changes in collection history and dilution with respect to the Accounts; (ii) changes in
demand for, pricing of, or product mix of Inventory; (iii) changes in any concentration of risk
with respect to the respective Borrowers’ Accounts or Inventory; and (iv) any other factors
relating to Borrowers’ Accounts or Inventory that change the credit risk of lending to any Borrower
on the security of any Borrowers’ Accounts or Inventory. The burden of establishing lack of good
faith hereunder shall be on Borrowers.



     “Permitted Holder” shall mean Warburg Pincus Private Equity VIII, L.P. and its
Affiliates.



     “Permitted Lien” shall have the meaning ascribed to such term in Section 8.4.



     “Permitted Senior Liens” shall mean (i) deposits provided to utility service providers
pursuant to Section 366 of the Bankruptcy Code, and (ii) Liens on the Term Loan Collateral (as
defined in the Intercreditor Agreement) securing the First Lien Credit Facility in existence on the
Petition Date and senior to the extent set forth in the Intercreditor Agreement; provided that
Permitted Senior Liens shall not be deemed to include or permit as a result thereof any
administrative expense claim under the Bankruptcy Code senior to or pari passu with the
superpriority administrative expense claims of Agent and Lenders set forth herein and in the
Financing Orders.



     “Person” shall mean any individual, sole proprietorship, partnership, joint venture,
trust, unincorporated organization, association, corporation, limited liability company,
institution, entity, party or government (including any division, agency or department thereof),
and, as applicable, the successors, heirs and assigns of each.



29









 





     “Petition Date” shall have the meaning ascribed to such term in the recitals to this
Credit Agreement.



     “Plan” shall mean any employee benefit plan (within the meaning of Section 3(3) of
ERISA), whether oral or written, maintained or contributed to by any Borrower, any Subsidiary of
any Borrower or any ERISA Affiliate, or with respect to which any Borrower, any Subsidiary of any
Borrower or any ERISA Affiliate, may incur liability.



     “Pledge Agreement” shall mean the Pledge Agreement, dated as of the Closing Date, by
and among the Collateral Agent, Borrowers and the Subsidiary Guarantors, as such agreement may be
amended, restated or otherwise modified and in effect.



     “Post-Petition” shall mean the time period beginning immediately upon the filing of
the Chapter 11 Cases.



     “Post-Petition Indebtedness” shall mean any or all Indebtedness of the Credit Parties
incurred after the filing of the Chapter 11 Case.



     “Pre-Petition” shall mean the time period ending immediately prior to the filing of
the Chapter 11 Cases.



     “Pre-Petition Credit Agreement” shall mean that certain Amended and Restated Credit
Agreement dated May 4, 2006, as amended, among Borrowers, Deutsche Bank Trust Company Americas, as
Agent, the lenders party thereto, and the other agents identified therein. The term Pre-Petition
Credit Agreement includes all amendments and supplements to the Pre-Petition Credit Agreement, all
restatements of the Pre-Petition Credit Agreement and all guaranties, security documents and other
documents, instruments and agreements executed and delivered in connection with the Pre-Petition
Credit Agreement.



     “Pre-Petition Indebtedness” shall mean any or all Indebtedness of any of the Credit
Parties outstanding on the Petition Date immediately prior to the filing of the Chapter 11 Cases.



     “Pre-Petition Secured Debt” shall mean any or all Indebtedness of the Credit Parties
secured under or pursuant to the Pre-Petition Term Loan Agreements.



     “Pre-Petition Term Loan Agreements” shall mean the First Lien Credit Agreement and the
Second Lien Credit Agreement.



     “Preferred Stock” of any Person shall mean any Capital Securities of such Person that
has preferential rights (as compared to any other Capital Securities of such Person) with respect
to dividends or redemptions or upon liquidation.



     “Prime Lending Rate” shall mean the rate that Deutsche Bank announces from time to
time in New York, New York as its prime lending rate in the United States, as in effect from time
to time. The Prime Lending Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. Deutsche Bank, DBTCo. and each of the other Lenders
may make commercial loans or other loans at rates of interest at, above or below the Prime Lending
Rate.



30









 





     “Prime Rate Loan” shall mean a Loan that bears, or is to bear, interest by reference
to the Prime Lending Rate.



     “Pro Forma Borrowing Base Certificate” shall have the meaning ascribed to such term in
Section 2.4(d).



     “Professional Carve-Out Reserve” shall have the meaning ascribed to such term in
Section 2.11(c).



     “Prohibited Transaction” shall mean any transaction that is prohibited under Code
Section 4975 or ERISA Section 406 and not exempt under Code Section 4975 or ERISA Section 408.



     “Proportionate Share” shall, subject to Section 11.18(c)(ii), mean, with respect to
any Lender, a fraction (expressed as a percentage), the numerator of which shall be the amount of
such Lender’s Commitment and the denominator of which shall be the Total Commitments or, if the
Commitments have been terminated, a fraction the numerator of which shall be the principal amount
of such Lender’s Exposure and the denominator of which shall be the aggregate amount of all
Exposures of all Lenders then outstanding.



     “Purchase Money Liens” shall mean Liens on any item of Equipment or Real Property of
any Credit Party acquired after the date of this Credit Agreement to secure the purchase price
thereof, provided that: (a) each such Lien shall attach only to the property to be acquired and
proceeds thereof; and (b) the debt incurred in connection with such acquisitions shall not exceed
the amount of the purchase price of such items of Equipment or Real Property then being financed.



     “Qualified Inventory” shall mean (a) any Inventory of Borrowers consisting of mixed
xylenes which are purchased by Borrowers from a supplier for processing by a third party processor
and which is either in transit to a Borrower or such third party processor or is stored at such
processor’s facility and the value of such Inventory does not exceed $3,000,000; (b) any Inventory
of Borrowers which is in transit in Borrowers’ owned or leased railcars or trucks and under the
control of any Borrower and (c) any raw materials for which a Borrower has an obligation to pay and
which are in transit to a Borrower on a common carrier or via another transportation mode which is
under a Borrower’s control.



     “Real Property” shall mean, collectively, all right, title and interest (including any
leasehold estate) in and to any and all parcels of or interests in real property owned, leased or
operated by any Person, whether by lease, license or other means, together with, in each case, all
easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant
fixtures and equipment, all general intangibles and contract rights and other property and rights
incidental to the ownership, lease or operation thereof.



     “Real Property Assets” shall mean interests in Real Property, including improvements
and fixtures attached thereto or used in the operation thereof, in each case owned or leased (as
lessee) by any Borrower or any of its Subsidiaries.



31









 





     “Reduced Rate” shall have the meaning ascribed to such term in Section 2.8(e),
relating to backup withholding tax.



     “refinance” shall mean, in respect of any security or Indebtedness, to refinance,
extend, renew, refund or defease, or to issue a security or Indebtedness in exchange or replacement
for, such security or Indebtedness in whole or in part; “refinanced” and “refinancing” shall have
correlative meanings.



     “Regulation D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto.



     “Release” shall mean any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of
Hazardous Materials into the indoor or outdoor environment (including, without limitation, the
abandonment or disposal of any barrels, containers or other closed receptacles containing any
Hazardous Materials), including, without limitation, the movement of any Hazardous Material through
the air, soil, surface water, groundwater or property.



     “Reorganization Plan” shall mean a plan of reorganization or liquidation in any of the
Chapter 11 Cases.



     “Reportable Event” shall mean any of the events described in Section 4043 of ERISA and
the regulations thereunder, for which notice to the PBGC has not been waived.



     “Required Notice” shall mean, as long as any Chapter 11 Case remains pending, five (5)
Business Days’ written notice to Borrowers, to counsel for any unsecured creditors committee
appointed in the Chapter 11 Cases, and to the Office of the United States Trustee.



     “Requirement of Law” shall mean, as to any Person, the Governing Documents of such
Person, and any law, treaty, rule, regulation, direction, ordinance, criterion or guideline or
determination of a court or other Governmental Authority or determination of an arbitrator, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.



     “Responsible Officer” shall mean the controller, chief financial officer, treasurer,
assistant treasurer, chief accounting officer or any other similar financial officer or position.



     “Restricted Cash” shall mean at any time, an amount equal to the amount of outstanding
checks written by Borrowers and any Subsidiary of any of the Borrowers, plus, to the extent
included in Total Cash, (i) any deposit escrows established for any Asset Disposition to which
Borrowers or any other Credit Party does not have access pending the closing of, or default under,
the applicable asset purchase agreement, and (ii) cash held by Foreign Subsidiaries.



     “Restricted Payment” shall mean, with respect to any Person, (a) any payment with
respect to or on account of any of the Capital Securities of such Person, including any dividend or
other distribution on, any payment of interest on or principal of, and any payment on account of
any purchase, redemption, retirement, exchange, defeasance or conversion of, or on account of any
claim relating to or arising out of Wellman’s offer, sale or purchase of, any such Capital



32









 







Securities and (b) any optional payment or prepayment on or redemption, retirement, (including
by making payments to a sinking or analogous fund), repurchase, defeasance or other acquisition of,
any Subordinated Indebtedness. For the purposes of this definition, a “payment” (which for the
avoidance of doubt shall include any prepayment) shall include the transfer of any asset or the
incurrence of any Indebtedness or other Liability (the amount of any such payment to be the fair
market value of such asset or the amount of such obligation, respectively).



     “Retiree Welfare Plan” shall mean, at any time, a welfare plan (as defined in Section
3(1) of ERISA) that provides for continuing coverage or benefits for any participant or any
beneficiary of a participant after such participant’s termination of employment, other than
continuation coverage provided pursuant to Section 4980B of the Code and at the sole expense of the
participant or the beneficiary of the participant.



     “Sale and Leaseback Transaction” shall mean with respect to any Person an arrangement
with any bank, insurance company or other lender or investor or to which such lender or investor is
a party providing for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person to such lender or investor or to any Person to
whom funds have been or are to be advanced by such lender or investor on the security of such
property or asset



     “Second Lien Credit Facility” shall mean the term loan credit agreement providing for
$265,000,000 in term loans (the “Second Lien Credit Agreement”) entered into on February 10, 2004,
between Wellman, the lenders party thereto in their capacities as lenders thereunder and DBTCA, as
administrative agent, together with the related documents thereto (including, without limitation,
any guarantee, collateral and security agreements and/or documents), in each case as such
agreements may be amended (including any amendment and restatement thereof), supplemented or
otherwise modified prior to the Petition Date.



     “Second Lien Credit Facility Agent” shall mean the Administrative Agent (as defined in
the Second Lien Credit Agreement).



     “Secured Parties” has the meaning provided in the respective Collateral Documents to
the extent defined therein and shall include any Person who is granted a security interest in any
Credit Document.



     “Security Agreement” shall mean the Security Agreement, dated as of the Closing Date,
among the Agent, Borrowers and the Subsidiary Guarantors, as such agreement may be amended,
restated or otherwise modified and in effect.



     “Serving Affiliate” shall mean an Affiliate of a Lender that is an Issuing Bank.



     “Settlement Date” shall have the meaning ascribed to such term in Section 2.3(b)(i).



     “Steering Committee” shall mean an informal committee of Lenders consisting of DBTCo.,
JPMorgan Chase Bank, N.A., General Electric Capital Corporation and LaSalle Business Credit, LLC,
as long as they are holders of the Loans, and any replacement or additional member approved by the
Agent. Whenever under this Credit Agreement, approval of the Steering Committee is required or any
action taken must be to the Steering Committee’s



33









 







reasonable satisfaction, such approval or satisfaction shall be deemed to have been obtained
by the approval of a majority of the members of the Steering Committee, provided that in the event
of a tied vote, DBTCo. acting in its capacity as Agent for the Lenders shall cast the tie-breaking
vote.



     “Subordinated Indebtedness” shall mean Indebtedness of Wellman or any of its
Subsidiaries which is expressly subordinated in right of payment to the Loans or the Guaranty of
such Subsidiary Guarantor, as the case may be.



     “Subsidiary” shall mean, with respect to any Person, any corporation, association or
other business entity of which more than 50% of the total voting power of shares of stock or other
equity interest entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereto is at the time owned, directly or indirectly,
by that Person.



     “Subsidiary Guarantor” shall mean any Domestic Subsidiary that is not a Borrower other
than GuardWell.



     “Subsidiary Guaranty” shall mean the Subsidiary Guaranty, dated as of the Closing
Date, among the Agent and the Subsidiary Guarantors.



     “Tax Transferee” shall have the meaning ascribed to such term in Section 2.8(a).



     “Taxes” shall have the meaning ascribed to such term in Section 2.8(a).



     “Tax Reduction Agreement” means an agreement entered into between Wellman or any of
its Subsidiaries with a local Governmental Authority relating to the transfer or acquisition of an
asset for the purpose of obtaining tax relief; provided that Wellman or such Subsidiary may at any
time repossess such asset for nominal net consideration; and provided, further, that such
agreements may also be similar to those currently in effect between Wellman or certain Subsidiary
Guarantors and Darlington and Florence Counties in South Carolina.



     “Termination Event” shall mean (a) a Reportable Event with respect to any Title IV
Plan or Multiemployer Plan; (b) the withdrawal of any Borrower, any Subsidiary of any Borrower or
any ERISA Affiliate from a Title IV Plan during a plan year in which such entity was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA; (c) the providing of notice of intent to
terminate a Title IV Plan in a distress termination described in Section 4041(c) of ERISA or the
treatment of any amendment as a termination under Section 4041(e) of ERISA; (d) the institution by
the PBGC of proceedings to terminate a Title IV Plan or Multiemployer Plan; (e) any event or
condition (i) that might constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan, or (ii) that
may result in termination of a Multiemployer Plan pursuant to Section 4041A of ERISA; or (f) the
partial or complete withdrawal within the meaning of Sections 4203 and 4205 of ERISA, of any
Borrower, any Subsidiary of any Borrower or any ERISA Affiliate from a Multiemployer Plan.



     “Title IV Plan” shall mean an employee pension benefit plan as defined in Section 3(2)
of ERISA (other than a Multiemployer Plan) for which the funding requirements under Section



34









 




412 of the Code or Section 302 of ERISA is, or within the immediately preceding six (6) years
was, in whole or in part, the responsibility of any Borrower, any Subsidiary of any Borrower or any
ERISA Affiliate.




     “Total Cash” shall mean at any time, the actual amount of Cash, excluding cash in the
Collateral Account, held by and available to Borrowers and the Subsidiaries of each of the
Borrowers.



     “Total Commitments” shall mean the aggregate of the Commitments of all the Lenders,
which in the aggregate shall not exceed $225,000,000.



     “Total Exposure” shall mean, at any time, an amount equal to the sum of (a) the Letter
of Credit Obligations and (b) the principal amount of outstanding Loans.



     “Transactions” shall mean, collectively, (i) the closing of and incurrence of the
initial Loans hereunder and (ii) the payment of fees, expenses, commissions and transaction costs
in connection with the foregoing.



     “Type” shall mean, with respect to any Loan, whether such Loan is a LIBOR Rate Loan or
a Prime Rate Loan.



     “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the
State of New York; provided that if, with respect to any financing statement or by reason of any
provisions of law, the perfection or the effect of perfection or non-perfection of the Liens
granted to the Agent pursuant to the applicable Credit Document is governed by the Uniform
Commercial Code as in effect in a jurisdiction of the United States other than the State of New
York, UCC shall mean the Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions of this Credit Agreement, each Credit Document and any
financing statement relating to such perfection or effect of perfection or non-perfection.



     “Unfunded Pension Liability” shall mean, at any time, the aggregate amount, if any, of
the sum of (a) the amount by which the present value of all accrued benefits under each Title IV
Plan exceeds the fair market value of all assets of such Title IV Plan allocable to such benefits
in accordance with Title IV of ERISA, all determined as of the most recent valuation date for each
such Title IV Plan using the actuarial assumptions for funding purposes in effect under such Title
IV Plan, and (b) for a period of 5 years following a transaction which might reasonably be expected
to be covered by Section 4069 of ERISA, the liabilities (whether or not accrued) that could be
avoided by any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate as a result of such
transaction.



     “Unpaid Drawing” shall mean any unreimbursed drawing under any Letter of Credit.



     “Unused Line Fee” shall have the meaning ascribed to such term in Section 4.5.



     “Upfront Fee” shall have the meaning ascribed to such term in Section 5.1(l).



     “Value” shall mean, as determined by Agent in good faith at any time, (a) with respect
to Eligible Accounts Receivable, the gross face amount of Eligible Accounts Receivable less the



35









 







sum of (i) sales, excise or similar taxes included in the amount thereof and (ii) returns,
discounts, claims, credits, charges and allowances (exclusive of those paid in cash to the extent
included in dilution) of any nature at any time issued, owing, granted, outstanding, available or
claimed with respect thereto and (b) with respect to Eligible Inventory, the lower of (i) cost
computed on a first-in first-out basis in accordance with GAAP or (ii) market value.



     “Welfare Plan” shall mean a Plan described in Section 3(1) of ERISA.



     “Wellman Sale” shall mean the sale of all or substantially all of the assets of the
Borrowers and their Subsidiaries pursuant to which the Obligations shall be paid in full in cash at
closing pursuant to section 363 of the Bankruptcy Code or in connection with the consummation of a
Reorganization Plan.



     “Wholly-Owned Subsidiary” shall mean, with respect to any Person, any Subsidiary of
such Person all of the Capital Securities of which (except directors’ qualifying shares and, in the
case of Foreign Subsidiaries, other nominal amounts of shares held by a Person other than such
Person) are, directly or indirectly, owned or Controlled by such Person or one or more Wholly-Owned
Subsidiaries of such Person or by such Person and one or more of such Subsidiaries.



     1.2 Accounting Terms and Determinations. All accounting terms used herein but not
expressly defined in this Credit Agreement shall have the respective meanings given to them in
accordance with GAAP as applied and in effect on the date hereof in the USA. Except as otherwise
expressly provided herein (including without limitation, any modification to the terms hereof
pursuant to Section 8.18), all computations and determinations for purposes of determining
compliance with the financial requirements of this Credit Agreement shall be made in accordance
with GAAP in effect in the USA on the date hereof and on a basis consistent with the presentation
of the most recent Financial Statements delivered pursuant to, or otherwise referred to in, the
first sentence of Section 6.6. Notwithstanding the foregoing sentence, the Financial Statements
required to be delivered pursuant to Section 7.1 shall be prepared in accordance with GAAP in the
USA as in effect on the respective dates of their preparation. If any Borrower shall change its
method of inventory accounting to the last in first out method, all calculations necessary to
determine compliance with the covenants contained herein shall be made as if such method of
inventory accounting had not been so changed. All computations and determinations of amounts as of
any given day or Business Day shall be based on the applicable numbers at and as of the end of such
day or Business Day.



     1.3 Other Interpretive Provisions. Terms not otherwise defined herein which are
defined in the UCC shall have the meanings given them in the UCC. The words “hereof” “herein” and
“hereunder” and words of similar import when used in this Credit Agreement shall refer to this
Credit Agreement as a whole and not to any particular provision of this Credit Agreement, and
references to Article, Section, Annex, Schedule, Exhibit and like references are references to this
Credit Agreement unless otherwise specified. Any item or list of items set forth following the
word “including,” “include” or “includes” is set forth only for the purpose of indicating that,
regardless of whatever other items are in the category in which such item or items are “included,”
such item or items are in such category, and shall not be construed as indicating that the items in
the category are limited to such items or to items similar to such items. Except as otherwise
specified herein, all references herein (a) to any Person shall be



36









 








deemed to include such Person’s successors and assigns, (b) to any Requirement of Law defined
or referred to herein shall be deemed references to such Requirement of Law or any successor
Requirement of Law as the same may have been or may be amended or supplemented from time to time,
(c) to any Credit Document or Collateral Document defined or referred to herein shall be deemed
references to such Credit Document or Collateral Document (and, in the case of any Note or any
other instrument, any instrument issued in substitution therefor) as the terms thereof may have
been or may be amended, supplemented, waived or otherwise modified from time to time, provided
that, in the case of any Letter of Credit application or Letter of Credit, any such amendment,
supplement, waiver or other modification shall have been approved in writing by the Agent and (d)
to any other document, agreement, instrument or contract shall include references to all
amendments, supplements, waivers or other modifications thereto to the extent not otherwise
prohibited under the terms of this Credit Agreement. Whenever the context so requires, the neuter
gender includes the masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa. Except as otherwise specified herein, all
references to the time of day shall be deemed to be to New York City time as then in effect.



ARTICLE II




LOANS




     2.1 Commitments; Delivery of Notes. (a) Subject to the terms and conditions set forth
in this Credit Agreement, on and after the Closing Date and to and excluding the Facility
Termination Date, each of the Lenders severally agrees to make from time to time revolving loans to
Borrowers in the maximum aggregate principal amount not to exceed its Proportionate Share of the
Total Commitments; provided, however, that, after giving effect to any Borrowing of Loans, the
aggregate amount of all outstanding Loans and Letter of Credit Obligations then outstanding, shall
not at any time exceed the lesser of (i) the Borrowing Base, (ii) the Total Commitment, or (iii)
prior to the Final Financing Order Date, the maximum amount of Loans and Letter of Credit
Obligations permitted by the Interim Financing Order.



          (b) At the request of any Lender through the Agent, Borrowers hereby agree to execute and
deliver to each Lender a Note to evidence the Loans to Borrowers by such Lender.




     2.2 Borrowing Mechanics; Interim Advances.



          (a) Except as provided in Sections 2.2(b) and 2.3(b), Borrowings shall be made on notice from
the Funds Administrator to the Agent, given not later than 12:00 Noon (New York City time) on the
Business Day on which a proposed Borrowing consisting of Prime Rate Loans is requested to be made
and on the third Business Day prior to the date of any proposed Borrowing consisting of LIBOR Rate
Loans is requested to be made.





     (i) Each Notice of Borrowing shall be given by, alternatively, telephone, facsimile or
electronic E mail transmission, and, if by telephone or electronic E mail transmission,
confirmed in writing on the same Business Day to the extent requested by Agent,
substantially in the form of Exhibit C (the “Notice of Borrowing”). Each Notice



37









 







of Borrowing shall be irrevocable (subject to Section 4.3(c)) by and binding on the
Funds Administrator and Borrowers.




     (ii) The Funds Administrator shall notify the Agent in writing of the names of the
officers of the Funds Administrator authorized to request Loans on behalf of Borrowers and
specifying which of those officers are also, or, if none are, the other officers that are,
authorized to direct the disbursement of Loans in a manner contrary to standing disbursement
instructions, and shall provide the Agent with a specimen signature of each such officer.
In the absence of a specification of those officers who are authorized to vary standing
disbursement instructions, the Agent may assume that each officer authorized to request
Loans also has such authority. The Agent shall be entitled to rely conclusively on the
authority of such officers of the Funds Administrator to request Loans on behalf of
Borrowers, or to vary standing disbursement instructions, until the Agent receives written
notice to the contrary. The Agent shall have no duty to verify the authenticity of the
signature appearing on any Notice of Borrowing or other writing delivered pursuant to this
Section 2.2(a) and, with respect to an oral or electronic E mail request for Loans, the
Agent shall have no duty to verify the identity of any individual representing himself as
one of the officers of the Funds Administrator authorized to make such request on behalf of
Borrowers. Neither the Agent nor any of the Lenders shall incur any liability to the Funds
Administrator or any of the Borrowers as a result of (A) acting upon any telephonic or
electronic E mail notice referred to in this Section 2.2(a) if the Agent believes in good
faith such notice to have been given by a duly authorized officer of the Funds Administrator
or other individual authorized to request Loans on behalf of Borrowers or to direct the
disbursement thereof in a manner contrary to standing disbursement instructions, or (B)
otherwise acting in good faith under this Section 2.2(a) and an advance made and disbursed
pursuant to any such telephonic or electronic E-mail notice shall be deemed to be a Loan for
all purposes of this Credit Agreement.




     (iii) In its Notice of Borrowing, the Funds Administrator may request one or more
Borrowings on a single day. Each such Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Loans of the same Type and shall, in the case of a
Borrowing of LIBOR Rate Loans, be in an aggregate amount for all Lenders of not less than
$2,000,000 or an integral multiple of $500,000 in excess thereof. The right of the Funds
Administrator to choose LIBOR Rate Loans is subject to the provisions of Section 4.3(c).



          (b) (i) In the event Borrowers are unable to comply with (A) the Borrowing Base limitation set
forth in the proviso to Section 2.1(a) or (B) the conditions precedent set forth in Section 5.2 to
a Credit Event, the Lenders authorize the Agent, in its sole discretion, to make Loans (“Interim
Advances”) to Borrowers during the period commencing on the date the Agent first receives a Notice
of Borrowing requesting an Interim Advance until the earliest of (1) the twentieth (20th) Business
Day after such date, (2) the date Borrowers are again able to comply with such Borrowing Base
limitation and conditions precedent, or obtains an amendment or waiver with respect thereto and (3)
the date the Majority Lenders instruct the Agent, or the Agent determines, to cease making Interim
Advances (in each case, the “Interim Advance Period”).




38









 









     (ii) The Agent shall not, in any event, (A) make any Interim Advance during any Interim
Advance Period if, after giving effect to such Interim Advance, Total Exposure would exceed
one hundred ten percent (110%) of Total Exposure on the first day of such Interim Advance
Period (calculated without giving effect to Interim Advances made on such day) and (B) make
any Interim Advance if, after giving effect to such Interim Advance, Total Exposure would
exceed the Line of Credit.




     (iii) All amounts received by the Agent during an Interim Advance Period on account of
the Obligations, whether in the form of payments from any Borrower, collections on the
Collateral or otherwise, shall, so long as any Interim Advances made during such Interim
Advance Period are outstanding, be applied by the Agent, first, to the repayment of
such Interim Advances and, second, in accordance with Section 2.5(c).



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




          (d) In addition to being evidenced, as provided in Section 2.6, by Borrowers’ Accounts, each
Lender’s Loans and Borrowers’ joint and several obligations to repay such Loans with interest in
accordance with the terms of this Credit Agreement shall be evidenced by this Credit Agreement, the
records of such Lender and such Lender’s Note. The records of each Lender shall be prima facie
evidence of such Lender’s Loans and accrued interest thereon and of all payments made in respect
thereof.




          (e) Each Lender shall be entitled to earn interest at the then applicable rate of interest,
calculated in accordance with Article 4, on outstanding Loans which it has funded to the Agent;
provided that if any amount received by the Agent in respect of such interest and distributed by it
is thereafter recovered from the Agent, such Lender shall, upon request, repay to the Agent its
Proportionate Share of the amount so recovered to the extent received by it, but without interest
(unless the Agent is required to pay interest on the amount recovered, in which case such Lender
shall be required to pay interest at a like rate).




          (f) Notwithstanding the obligation of the Funds Administrator to send written confirmation of
a Notice of Borrowing made by telephone or electronic E mail transmission if and when requested by
the Agent, in the event that the Agent agrees to accept a Notice of Borrowing made by telephone or
electronic E mail transmission, such Notice of Borrowing shall be binding on the Funds
Administrator and each Borrower whether or not written confirmation is sent by the Funds
Administrator or requested by the Agent. The Agent may act prior to the receipt of any requested
written confirmation, without any liability whatsoever, based upon telephonic or electronic E mail
notice believed by the Agent in good faith to be from the Funds Administrator or its agents. The
Agent’s records of the terms of any telephonic or electronic E mail transmission Notices of
Borrowing shall be conclusive on the Funds Administrator, each Borrower and the Lenders in the
absence of gross negligence, bad faith or willful misconduct on the part of the Agent in connection
therewith.




     2.3 Settlements Among the Agent and the Lenders.



39









 





          (a) Except as provided in Section 2.3(b), the Agent shall give to each Lender prompt notice of
each Notice of Borrowing by telecopy or facsimile transmission. No later than 3:00 P.M. (New York
City time) (i) with respect to Prime Rate Loans, on the date of receipt of each Notice of Borrowing
requesting a Prime Rate Loan (unless such Notice of Borrowing specifies the Closing Date as the
date of Borrowing, in which case no later than 12:00 Noon (New York City time) on the Closing Date)
and (ii) with respect to LIBOR Rate Loans, on the date for which a LIBOR Rate Loan has been
requested, each Lender will make available for the account of its Applicable Lending Office, to the
Agent at the address of the Agent set forth on Annex I, in immediately available funds, its
Proportionate Share of such Borrowing requested to be made. Unless the Agent shall have been
notified by any Lender prior to the date of Borrowing that such Lender does not intend to make
available to the Agent its portion of the Borrowing to be made on such date, the Agent may assume
that such Lender will make such amount available to the Agent on the Settlement Date and the Agent,
in reliance upon such assumption, may but shall not be obligated to make available the amount of
the Borrowing to be provided by such Lender. If and to the extent such Lender shall not have so
made available to the Agent its Proportionate Share on such date and the Agent shall have so made
available to Borrowers a corresponding amount on behalf of such Lender, the Agent may recover such
amount on demand from such Lender in accordance with Section 11.18. If such Lender does not pay
such corresponding amount promptly upon the Agent’s demand therefor, the Agent may promptly notify
the Funds Administrator and Borrowers shall immediately repay such corresponding amount to the
Agent together with accrued interest thereon at the applicable rate or rates provided in Sections
4.1, 4.2, and 4.4.




          (b) Unless the Majority Lenders have instructed the Agent to the contrary, the Agent on behalf
of the Lenders may but shall not be obligated to make Prime Rate Loans under Section 2.2 without
prior notice of the proposed Borrowing to the Lenders, subject to the following settlement
arrangements:





     (i) The amount of each Lender’s Proportionate Share of Loans shall be computed weekly
(or more frequently in the Agent’s discretion) and shall be adjusted upward or downward on
the basis of the amount of outstanding Loans as of 5:00 P.M. (New York City time) on the
last Business Day of the period specified by the Agent (such date, the “Settlement Date”).
The Agent shall deliver to each of the Lenders promptly after the Settlement Date a summary
statement of the amount of outstanding Loans for such period. The Lenders shall transfer to
the Agent, or, subject to Section 11.18(c)(i), the Agent shall transfer to the Lenders, such
amounts as are necessary so that (after giving effect to all such transfers) the amount of
Loans made by each Lender shall be equal to such Lender’s Proportionate Share of the
aggregate amount of Loans outstanding as of such Settlement Date. If the summary statement
is received by the Lenders prior to 12:00 Noon (New York City time) on any Business Day,
each Lender shall make the transfers described above in immediately available funds no later
than 3:00 P.M. (New York City time) on the day such summary statement was received; and if
such summary statement is received by the Lenders after 12:00 Noon (New York City time) on
such day, each Lender shall make such transfers no later than 3:00 P.M. (New York City time)
on the next succeeding Business Day. The obligation of each of the Lenders to transfer such
funds shall be irrevocable and unconditional and without recourse to or warranty by the
Agent. Each of the Agent and the Lenders agrees to mark its books and records on



40









 







the Settlement Date to show at all times the dollar amount of its Proportionate Share
of the outstanding Loans.




     (ii) To the extent that the settlement described above shall not yet have occurred,
upon repayment of Loans by Borrowers, the Agent may first apply such amounts repaid directly
to the amounts made available by the Agent pursuant to this Section 2.3(b).




     (iii) Because the Agent on behalf of the Lenders may be advancing and/or may be repaid
Loans prior to the time when the Lenders will actually advance and/or be repaid Loans,
interest with respect to Loans shall be allocated by the Agent to each Lender and the Agent
in accordance with the amount of Loans actually advanced by and repaid to each Lender and
the Agent and shall accrue from and including the date such Loans are so advanced to but
excluding the date such Loans are either repaid by Borrowers in accordance with Section 2.4
or actually settled by the applicable Lender as described in this Section 2.3(b).



     2.4 Mandatory Payment; Mandatory Reduction of Commitments.



          (a) Borrowers shall prepay first, the outstanding principal amount of the Loans, and then cash
collateralize the Letter of Credit Obligations on any date on which the aggregate outstanding
principal amount of such Loans together with the aggregate Letter of Credit Obligations (after
giving effect to any other repayments or prepayments on such day) exceeds the lesser of (x) the
Total Commitment then in effect, (y) the Borrowing Base then in effect and (z) prior to the Final
Financing Order Date, the maximum amount of Loans and Letter of Credit Obligations permitted by the
Interim Financing Order in the amount of such excess. If, after giving effect to the prepayment of
all outstanding Loans, the aggregate Letter of Credit Obligations exceeds the lesser of (x) the
Total Commitment then in effect, (y) the Borrowing Base then in effect and (z) prior to the Final
Financing Order Date, the maximum amount of Loans and Letter of Credit Obligations permitted by the
Interim Financing Order, Borrowers shall deposit cash with the Agent in an amount equal to the
difference between such Letter of Credit Obligations and the lesser of (x) the Total Commitment
then in effect, (y) the Borrowing Base and (z) prior to the Final Financing Order Date, the maximum
amount of Loans and Letter of Credit Obligations permitted by the Interim Financing Order. Agent
shall establish in its name for the benefit of Agent and the Lenders a cash collateral account (the
“Collateral Account”) into which it shall deposit such cash to hold as collateral security
for the Obligations.




          (b) (i) On the Facility Termination Date, the Commitment of each Lender shall automatically
reduce to zero and may not be reinstated.





     (ii) Borrowers may reduce or terminate the Line of Credit at any time and from time to
time in whole or in part by reducing or terminating the Commitments, any such reduction or
termination to be pro rata on the amounts at the time of the Commitments; provided that each
such reduction must be in an amount not less than $5,000,000 (and in increments of
$1,000,000); and provided further that (A) if Borrowers seek to reduce the Line of Credit to
an amount less than $50,000,000, then the Line of Credit shall at the option of the Agent be
reduced to zero and the Credit



41









 







Agreement shall be terminated and (B) once reduced the amount of any such reductions in
the Line of Credit may not be reinstated.




     (iii) The amount by which Total Exposure exceeds the aggregate amount of the Commitments
at any time shall be immediately due and payable without the necessity of any notice or
demand. Repayments of such excess amounts shall be applied, first, to the repayment
of Loans, second, to the payment of outstanding reimbursement obligations with
respect Letters of Credit, and, third, to the securing, with cash or Cash
Equivalents as provided in the second paragraph of Section 9.2 (but without the requirement
of any demand provided for in such paragraph), of the Letter of Credit Obligations (in each
case to the extent the same are such by virtue of clause (a) of the definition thereof).



          (c) Simultaneously with any Change of Control, the Commitments shall be reduced to zero and
Borrowers shall prepay, in full, the outstanding principal amount of any outstanding Loans (and
cash collateralize any outstanding Letter of Credit Obligations in an amount equal to 105% of the
Letter of Credit Obligations), together with all accrued interest, fees, and other expenses
incurred by Agent, the Issuing Bank or the Lenders as a result of such prepayment.




          (d) On the Business Day on which any Asset Sale occurs which decreases the Eligible Inventory
and/or Eligible Accounts Receivable amounts that are included in computation of the Borrowing Base,
the Funds Administrator shall deliver to Agent a Borrowing Base Certificate prepared on a pro forma
basis (a “Pro Forma Borrowing Base Certificate”) giving effect to such Asset Sale and setting forth
the value of the Eligible Inventory and Eligible Accounts Receivables previously included in the
Borrowing Base and disposed of in such Asset Sale. On such Business Day, Borrowers shall prepay
the Loans in an amount equal to (i) if all of the conditions specified in Section 5.2 are met at
such time, the amount by which the Total Exposure exceeds the Borrowing Base as reflected in such
Pro Forma Borrowing Base Certificate or (ii) if any condition specified in Section 5.2 is not met
at such time, the amount by which the Borrowing Base is reduced as a result of such Asset Sale as
reflected in such Pro Forma Borrowing Base Certificate.




          (e) If at any time the Available Cash Surplus exceeds $2,000,000 for any period of two (2)
consecutive Business Days, Borrowers shall prepay the outstanding principal amount of the Loans at
the close of such second Business Day in the amount of such excess.




          (f) On the date of receipt thereof, the Net Sale Proceeds of the Wellman Sale shall be applied
for the payment of, or if not then due deposited in a reserve for payment of, first, any
unpaid portion of the Financial Advisory Fee, second the maximum unused amount of the
Professional Carve-Out Reserve, and third, the then outstanding balance of the Loans and
Unpaid Drawings, and after all Loans and Unpaid Drawings have been paid in full, for deposit in the
Collateral Account until the aggregate amount in the Collateral Account equals 105% of the stated
amount of all Letters of Credit then outstanding. The aggregate amount of the Financial Advisory
Fee shall be reduced by the amounts paid in this Section 2.4(f) in connection therewith, and any
unused portion of any reserves for such fee established pursuant to this Section 2.4(f) shall be
paid to the Agent for application pursuant to this Section 2.4(f). All amounts deposited in a
reserve in accordance with this Section 2.4(f) shall be effected in a



42









 






manner and pursuant to documentation in form and substance reasonably satisfactory to the
Agent such that the Agent shall have a continuing first perfected security interest and lien in the
excess (after taking into account the reserves) of such Net Sale Proceeds (subject to Senior
Permitted Liens and the Carve-Out Reserve) until the same have been applied and reapplied as
required by this Section 2.4(f).




     2.5 Payments and Computations; Cash Management



          (a) (i) Borrowers shall, subject, in the case of payments in respect of Letters of Credit, to
Section 2.5(a)(ii), make each payment under the Credit Documents and under the Notes not later than
2:00 P.M. (New York City time) on the day when due in Dollars to the Agent at its address
designated in or pursuant to Section 11.5 in immediately available funds. The obligations of
Borrowers to the Lenders with respect to such payments shall be discharged by making such payments
to the Agent pursuant to this Section 2.5 or by the Agent, in its discretion, adding such payments
to the principal amount of the Loans outstanding by charging such payments to the applicable
Borrower’s Account pursuant to Section 2.6.





     (ii) Amounts payable by Borrowers in respect of any Letter of Credit should be made by
Borrowers to the Agent until the Funds Administrator shall have received notice from the
Agent that the Agent has received payments equal to the aggregate amount of all drawings
thereunder, plus interest thereon from the date such drawings were disbursed at the
L/C Interest Rate.



          (b) (i) Borrowers shall have established and shall maintain, at one or more financial
institutions, one or more lockboxes (with respect to each Borrower, such Borrower’s “Lockboxes”)
and depository accounts (“Depository Accounts”) and shall instruct all account debtors on the
Accounts of such Borrower to remit all payments to such Borrower’s Lockboxes or Depository
Accounts; provided, however, it shall be permissible for Borrowers to maintain a consolidated
Lockbox or Depository Account. Each Borrower, the Agent and DBTCo. shall have entered into a
Control Agreement providing, among other things, that all receipts in the Lockboxes or Depository
Accounts, as applicable, shall be transferred by the end of each day to one of the Credit Parties’
concentration accounts at DBTCo. (each, a “Concentration Account”). All amounts received by any
Borrower from any account debtor, shall following receipt, be deposited into a Concentration
Account.





     (ii) The closing of any Lockbox, Depository Account or Concentration Account and the
termination of any related account agreement shall require in each case the prior written
consent of the Agent which will not be unreasonably withheld.



          (c) (i) Except as set forth in Section 9.5, all amounts received by the Agent for distribution
hereunder shall, subject to Section 2.2(b)(iii), be distributed in the following order and, if to
Lenders, according to each Lender’s Proportionate Share with respect to each category set forth
below:





first, to the payment of any Fees, Expenses or other Obligations due
and payable to the Agent under any of the Credit Documents, including



43









 







amounts advanced by the Agent on behalf of the Lenders pursuant to Section
2.3(b);




second, to the ratable payment of any Fees and other Obligations due
and payable to the Lenders under any of the Credit Documents, other than to
a Lender in its capacity as an Issuing Bank and other than those Obligations
specifically referred to in this Section 2.5(c)(i).




third, to the ratable payment of interest due on the Loans;




fourth, to the ratable payment of principal due on the Loans;




fifth, to the ratable payment of other Liabilities not specifically
referred to in this Section 2.5(c) due and payable to the Lenders (in their
capacities as such, and not in their capacity as an Issuing Bank) under the
Credit Documents; and




sixth, to the ratable payment of other Liabilities not specifically
referred to in this Section 2.5(c) due and payable to the Issuing Banks
under L/C Applications and Letters of Credit.




     (ii) Each Person receiving a payment from the Agent pursuant to Section 2.5(c)(i) shall,
for all purposes of this Credit Agreement and other Credit Documents, be deemed to have
applied that payment in the order specified in Section 2.5(c)(i).



     2.6 Maintenance of Account. The Agent shall maintain a separate account on its books
and records in the name of the Funds Administrator (the “Borrowers’ Accounts”) in which each
Borrower will be charged or credited with (a) the proceeds, if any, of each Loan received by or for
the account of such Borrower, (b) payments made to the Agent on account of the Obligations of such
Borrower, whether from collection of proceeds of Collateral or otherwise, (c) the aggregate face
amount of all outstanding Letters of Credit (or an appropriate allocation thereof, if the Letters
of Credit are issued for the direct benefit of more than one Borrower) issued for the benefit of
such Borrower, and (d) all other Fees, Expenses and other Obligations attributable to such Borrower
as determined by Agent. The Agent will use its best efforts to give the Funds Administrator three
(3) days advance notice of such Fees, Expenses and other Obligations in reasonable detail, provided
that the failure to provide such notice shall not result in any liability of the Agent or affect
any of the Agent’s rights hereunder. In no event shall prior recourse to any Accounts or other
Collateral be a prerequisite to the Agent’s right to demand payment of any Obligation upon its
maturity.



     2.7 Statement of Account. After the end of each month, the Agent shall send the Funds
Administrator a statement accounting for the charges, loans, advances and other transactions
occurring among and between the Agent, the Lenders, the Funds Administrator and Borrowers during
that month. The monthly statements shall, absent manifest error, be an account stated, which is
final, conclusive and binding on Borrowers; provided that any failure to so record any transaction
or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay the
Obligations.




44












 





     2.8 Withholding and Other Taxes.



          (a) Any and all payments by Borrowers hereunder, under the Notes or in respect of Letters of
Credit which are made to or for the benefit of any Lender (whether in its capacity as a Lender or
an Issuing Bank, and as used in this Section 2.8, the term “Lender” shall mean a Lender in each
such capacity, and shall also include each Serving Affiliate of such Lender) or the Agent shall be
made, free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings and penalties, interests and all other liabilities
with respect thereto (collectively, “Taxes”), excluding, (i) in the case of each such Lender or the
Agent, Taxes imposed on its net income (including any Taxes imposed on branch profits) and
franchise taxes imposed on it by the jurisdiction under the laws of which such Lender, or the Agent
(as the case may be) is organized or any political subdivision thereof, (ii) in the case of each
such Lender, Taxes imposed on its net income (including any Taxes imposed on branch profits) and
franchise Taxes imposed on it by the jurisdiction of such Lender’s Applicable Lending Office or any
political subdivision thereof, (iii) in the case of any Foreign Lender, any Taxes that are in
effect and that would apply to a payment hereunder, under the Notes or in respect of Letters of
Credit made to such Foreign Lender as of the Closing Date, and (iv) if any Person acquires any
interest in this Credit Agreement, any Note or any L/C Participation pursuant to the provisions
hereof, or a Lender or the Agent changes the office in which any Loan or any L/C Participation is
made, accounted for or booked, to an office outside the United States, or a Lender if an Issuing
Bank, changes the office at which any Letter of Credit is maintained to an office outside the
United States (any such Person, or such Lender or the Agent in that event, being referred to as a
"Tax Transferee”), any Taxes to the extent that they are in effect and would apply to a payment to
such Tax Transferee as of the date of the acquisition of such interest or change in office, as the
case may be, except to the extent Covered Taxes (as defined below) would have resulted from such
payments made hereunder, under the Notes or in respect of Letters of Credit made to a Lender or the
Agent immediately prior to such acquisition of such interest or such change in office (all such
nonexcluded Taxes being hereinafter referred to as “Covered Taxes”). If any Borrower shall be
required by law to deduct or withhold any Covered Taxes from or in respect of any sum payable
hereunder, under any Note or in respect of any Letter of Credit to or for the benefit of any
Lender, the Agent or any Tax Transferee, (A) the sum payable shall be increased as may be necessary
so that after making all required deductions or withholdings of Covered Taxes (including deductions
or withholdings of Covered Taxes applicable to additional sums payable under this Section 2.8) such
Lender, the Agent or such Tax Transferee, as the case may be, receives an amount equal to the sum
it would have received had no such deductions or withholdings been made, (B) such Borrower shall
make such deductions or withholdings and (C) such Borrower shall pay the full amount so deducted or
withheld to the relevant taxation authority or other authority in accordance with applicable law.




          (b) In addition, each Borrower agrees to pay any present or future stamp, recording,
documentary, excise, privilege, property, intangible or similar levies that arise at any time or
from time to time (i) from any payment made under any and all Credit Documents, (ii) from the
transfer of the rights of any Lender under any Credit Documents to any transferee or (iii) from the
execution or delivery by the Funds Administrator or any Borrower of, or from the filing or
recording or maintenance of, or otherwise with respect to the exercise by the Agent or the Lenders
of their rights under, any and all Credit Documents (hereinafter referred to as “Other Taxes”).




45









 








          (c) Borrowers will jointly and severally indemnify each Lender, the Agent, and any Tax
Transferee for the full amount of (i) Covered Taxes imposed on or with respect to amounts payable
hereunder, under any Note or in respect of any Letter of Credit, (ii) Other Taxes and (iii) any
Taxes imposed by any jurisdiction on amounts payable under this Section 2.8, paid by such Lender,
the Agent or such Tax Transferee, as the case may be, and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto whether or not such Taxes were
correctly or legally asserted by the relevant taxing or other Governmental Authority. Payment
under this indemnification shall be made within thirty (30) days from the date such Lender, the
Agent or such Tax Transferee certifies and sets forth in reasonable detail the calculation thereof
as to the amount and type of such Taxes. Any such certificate submitted by such Lender, the Agent
or such Tax Transferee in good faith to the Funds Administrator shall, absent manifest error, be
final, conclusive and binding on all parties.




          (d) Within 60 days after the date of payment of any Covered Taxes or Other Taxes, the Funds
Administrator will furnish to the Agent, at its address referred to in Section 11.5, the original
or a certified copy of a receipt evidencing payment thereof.




          (e) On or before the Closing Date, each Foreign Lender shall deliver to the Agent and the
Funds Administrator (i) two valid, duly completed copies of IRS Form W 8BEN or W 8ECI or successor
applicable form, as the case may be, and any other required form, certifying in each case that such
Foreign Lender is entitled to receive payments under this Credit Agreement, the Notes or any Letter
of Credit payable to it without deduction or withholding of any United States federal income taxes
or with such withholding imposed at a reduced rate (the “Reduced Rate”) and (ii) a valid, duly
completed IRS Form W 8BEN or W 9 or successor applicable form, as the case may be, to establish an
exemption from United States backup withholding tax. Each such Foreign Lender shall also deliver
to the Agent and the Funds Administrator two further copies of said Forms or other manner of
required certification, as the case may be, on or before the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a condition to obtaining an
exemption from a required withholding of United States federal income tax or entitlement to having
such withholding imposed at the Reduced Rate or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Funds Administrator and the Agent,
and such extensions or renewals thereof as may reasonably be requested by the Funds Administrator
and the Agent, certifying (A) in the case of a Form W 8BEN or W 8ECI, that such Foreign Lender is
entitled to receive payments under this Credit Agreement, the Notes or any Letter of Credit payable
to it without deduction or withholding of any United States federal income taxes or with such
withholding imposed at a Reduced Rate, unless in any such case any change in a tax treaty to which
the United States is a party, or any change in law or regulation of the United States or official
interpretation thereof has occurred after the Closing Date and prior to the date on which any such
delivery would otherwise be required that renders all such forms inapplicable or that would prevent
such Foreign Lender from duly completing and delivering any such form with respect to it, and such
Foreign Lender advises the Funds Administrator and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income tax or with such
withholding at the Reduced Rate, as the case may be, or (B) in the case of a Form W 8BEN or W 9, or
otherwise establishing an exemption from United States backup withholding tax.




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          (f) If a Tax Transferee that is organized under the laws of a jurisdiction outside of the
United States acquires an interest in this Credit Agreement or any Note or L/C Participation or a
Lender changes the office through which Loans or any L/C Participation are made, accounted for or
booked, to an office outside the United States or a Foreign Lender if an Issuing Bank, changes the
office at which any Letter of Credit is maintained to an office outside the United States, the
transferor, or the applicable Lender, in the case of a change of office, shall cause such Tax
Transferee to agree that, on or prior to the effective date of such acquisition or change, as the
case may be, it will deliver to the Funds Administrator and the Agent (i) two valid, duly completed
copies of IRS Form W 8BEN or W 8ECI or successor applicable form, as the case may be, and any other
required form, certifying in each case that such Tax Transferee is entitled to receive payments
under this Credit Agreement, the Notes and any Letter of Credit payable to it without deduction or
withholding of United States federal income tax or with such withholding imposed at a Reduced Rate
and (ii) a valid, duly completed IRS Form W 8BEN or W 9 or successor applicable form, as the case
may be, to establish an exemption from United States backup withholding tax. Each Tax Transferee
further undertakes to deliver two further copies of the said Forms or other manner of required
certification, as the case may be, on or before the date that any such form expires or becomes
obsolete or otherwise is required to be resubmitted as a condition to obtaining an exemption from a
required withholding of United States federal income tax or entitlement to having such withholding
imposed at the Reduced Rate or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Funds Administrator and the Agent, and such
extensions or renewals thereof as may reasonably be requested by the Funds Administrator and the
Agent, certifying (A) in the case of a Form W 8BEN or W 8ECI that such Tax Transferee is entitled
to receive payments under this Credit Agreement, the Notes and any Letter of Credit without
deduction or withholding of any United States federal income taxes or with such withholding imposed
at the Reduced Rate, unless any change in treaty, law or regulation or official interpretation
thereof has occurred after the effective date of such acquisition or change and prior to the date
on which any such delivery would otherwise be required that renders all such forms inapplicable or
that would prevent such Tax Transferee from duly completing and delivering any such form with
respect to it, and such Tax Transferee advises the Funds Administrator and the Agent that it is not
capable of receiving payments without any deduction or withholding of United States federal income
tax or with such withholding at the Reduced Rate, as the case may be, or (B) in the case of a Form
W 8BEN or W 9, or otherwise establishing an exemption from United States backup withholding tax.




          (g) If any Taxes for which any Borrower would be required to make payment under this Section
2.8 are imposed, the applicable Lender or the Agent, as the case may be, shall use its best efforts
to avoid or reduce such Taxes by taking any appropriate action (including assigning its rights
hereunder to a related entity or a different office) which would not in the sole opinion of such
Lender or the Agent be otherwise disadvantageous to such Lender or the Agent, as the case may be.




          (h) Without prejudice to the survival of any other agreement of Borrowers hereunder, the
agreements and obligations of Borrowers contained in this Section 2.8 shall survive the payment in
full of the Obligations.




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          (i) Each Lender shall cause each of its Serving Affiliates that is a Foreign Lender to take
the actions required to be taken by such Serving Affiliate as a Foreign Lender under Sections
2.8(e), (f) and (g).




     2.9 Affected Lenders. If any Borrower is obligated to pay to any Lender (whether in
its capacity as a Lender or an Issuing Bank) or any Serving Affiliate of such Lender any amount
under Sections 2.8 or 4.9, or if any Lender is a Defaulting Lender, Borrowers may, if no Default or
Event of Default then exists, replace such Lender or Serving Affiliate with another lender
reasonably acceptable to the Agent, and such Lender hereby agrees to be so replaced or to cause
such Serving Affiliate to be replaced, subject to the following:



          (a) (i) The obligations of Borrowers hereunder to the Lender to be replaced (in its capacity
as a Lender, and including such increased or additional costs incurred from the date of notice to
the Funds Administrator of such increase or additional costs through the date such Lender is
replaced hereunder) shall be paid in full to such Lender concurrently with such replacement; and





     (ii) the obligations of Borrowers hereunder to the Lender to be replaced in its capacity
as an Issuing Bank, or to its Serving Affiliate in such capacity, shall continue until (A)
each Letter of Credit issued by that Person has expired or been drawn in full, (B) all
outstanding reimbursement obligations with respect to Letters of Credit, together with
interest thereon at the L/C Interest Rate, shall have been paid in full, and (C) all
Liabilities under each L/C Application, to the extent due, have been paid in full and, to
the extent not due, been secured to the satisfaction of such Person, to the extent due, have
been paid in full and, to the extent not due, been secured to the satisfaction of such
Person.



          (b) If such replacement is a result of increased costs under Sections 2.8 or 4.9, the
replacement Lender shall be a bank or other financial institution that is not subject to such
increased costs which caused Borrowers’ election to replace any Lender hereunder, and each such
replacement Lender shall execute and deliver to the Agent such documentation satisfactory to the
Agent pursuant to which such replacement Lender is to become a party hereto, conforming to the
provisions of Section 11.6, with a Commitment equal to that of the Lender being replaced and shall
make Loans in the aggregate principal amount equal to the aggregate outstanding principal amount of
the Loans of the Lender being replaced;




          (c) Upon such execution of such documents referred to in clause (b) and repayment of the
amounts referred to in clause (a), the replacement lender shall be a “Lender” with a Commitment as
specified herein above and the Lender being replaced shall cease to be a “Lender” hereunder, except
with respect to indemnification provisions under this Credit Agreement, which shall survive as to
such replaced Lender and except to the extent such Lender continues to be an Issuing Bank pursuant
to Section 2.9(a)(ii);




          (d) The Agent shall reasonably cooperate in effectuating the replacement of any Lender under
this Section 2.9, but at no time shall the Agent be obligated to initiate any such replacement;




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          (e) Any Lender replaced under this Section 2.9 shall be replaced at Borrowers’ sole cost and
expense and at no cost or expense to the Agent or any of the Lenders; and




          (f) If Borrowers propose to replace any Lender pursuant to this Section 2.9 because the Lender
seeks reimbursement under either Section 2.8 or 4.9, then it must also replace any other Lender who
seeks similar levels of reimbursement (as a percentage of such Lender’s Commitment) under such
Sections.




     2.10 Sharing of Payments. (a) (i) If any Lender (including a Lender in its capacity
as an Issuing Bank) shall obtain any payment (whether voluntary, involuntary, and whether through
the exercise of any right of set-off by virtue of its claim in any applicable bankruptcy,
insolvency or other similar proceeding being deemed secured by a Liability owed by it to any Credit
Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or otherwise)
(each a “Payment”), on account of (A) the Loans made by it, (B) its L/C Participations or (C) any
of the other Obligations due and payable to it in excess of its Proportionate Share of payments on
account of the Loans or L/C Participations or such other Obligations obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations in the Loans made
by them, in their participation in Letters of Credit or their other such Obligations as shall be
then due and payable as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; however, provided that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall
be rescinded and each such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender’s ratable share (according to
the proportion of (1) the amount of such Lender’s required repayment to (2) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect to the total amount so recovered. Each Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this Section 2.10 may, to the
fullest extent permitted by law, exercise all of its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.




     (ii) For purposes of this Section 2.10, the unreimbursed drawings under Letters of
Credit issued by an Issuing Bank shall be deemed to constitute “Loans” made by such Issuing
Bank, and such Issuing Bank agrees that it shall apply all Payments received by it in its
capacity as an Issuing Bank to the payment or the collateralization of the Liabilities of
Borrowers to it that constitute unreimbursed drawings under Letters of Credit issued by it
before applying them to any other Liabilities due it.



          (b) If an Issuing Bank is an Affiliate of a Lender, such Lender shall cause such Affiliate to
comply with the provisions of Section 2.10(a) as fully as though such Affiliate were a Lender
subject to such section.




     2.11 Superpriority Nature of Obligations; Priming Lien.



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          (a) The Obligations shall be secured by Liens in the Collateral under Sections 364(c)(2) and
(d)(1) of the Bankruptcy Code, senior to all other Liens other than (i) Permitted Senior Liens,
(ii) the Carve-Out Reserve, and (iii) pari passu Liens in the Collateral securing the Approved
Secured Derivative Transaction Liabilities. The Obligations shall also be secured by Liens
pursuant to Section 364(c)(3) of the Bankruptcy Code in the Collateral junior to Permitted Senior
Liens.




          (b) The Obligations shall have the status in the Chapter 11 Cases of superpriority
administrative expenses under Section 364(c)(1) of the Bankruptcy Code. Subject to the Carve-Out
Reserve (as defined in Section 2.11(c) below), such administrative claim shall have priority over
all other claims, costs and expenses of the kinds specified in, or ordered pursuant to, Sections
105, 326, 328, 330, 331, 503(b), 506(c) (subject to entry of the Final Financing Order), 507(a),
507(b), 726, 1113, 1114 or any other provision of the Bankruptcy Code and shall at all times be
senior to the rights of any Credit Party, any Credit Party’s estate, and any successor trustee or
estate representative in the Chapter 11 Cases or any subsequent proceeding or case under the
Bankruptcy Code.




          (c) Agent’s Liens on the Collateral under Sections 364(c)(2), (c)(3) and (d)(1) of the
Bankruptcy Code, for the benefit of Agent and Lenders, and the superpriority administrative claim
under Section 364(c)(1) of the Bankruptcy Code afforded the Obligations shall be subject only to
the following (the “Carve-Out Reserve”): (a) 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 plus interest at the statutory rate, and (b) following notice to the
Funds Administrator, its counsel (in accordance with the notice procedures in Section 11.5) and to
counsel for any official committee by the Agent after the occurrence and during the continuance of
an Event of Default, the payment of accrued and unpaid professional fees and expenses incurred by
the Credit Parties and any official committee appointed in the Chapter 11 Cases and allowed by the
Bankruptcy Court, in an aggregate amount not exceeding $2,500,000 (plus all unpaid professional
fees and expenses allowed by the Bankruptcy Court incurred prior to delivery of the notice referred
to in this clause (b) at any time) (the “Professional Carve-out Reserve”), provided that (i) the
Carve-Out Reserve shall not be available to pay any such professional fees and expenses incurred in
connection with the initiation or prosecution of any claims, causes of action, adversary
proceedings or other litigation against any agent or lender under the Pre-Petition Credit
Agreement, or any of the Lenders or Agent under this Agreement (collectively, “Excluded Actions”),
(ii) so long as an Event of Default shall not have occurred and be continuing, the Carve-Out
Reserve shall not be reduced by the payment of fees and expenses allowed by the Bankruptcy Court
and payable under Sections 328, 330 and 331 of the Bankruptcy Code, and (iii) nothing herein shall
impair the right of any party to object to the reasonableness of any such fees or expenses to be
paid by the estates of the Credit Parties.




     Subject to the provisions of the Financing Orders and this Section 2.11, the Credit Parties
shall be permitted to pay as the same may become due and payable (i) administrative expenses of the
kind specified in Section 503(b) of the Bankruptcy Code incurred in the ordinary course of their
businesses, (ii) compensation and reimbursement of expenses to professionals allowed or otherwise
permitted to be paid by the Bankruptcy Court and payable under Sections 330 and 331 of the
Bankruptcy Code, and (iii) any other Pre-Petition or Post-Petition expenses of the Credit



50









 







Parties, including adequate protection payments, to the extent approved by the Bankruptcy
Court and not otherwise prohibited by the terms of this Credit Agreement or the other Credit
Documents. Except for the Carve-Out Reserve, no costs or expenses of administration shall be
imposed against Agent, Lenders or any of the Collateral under Sections 105, 506(c) or 552 of the
Bankruptcy Code, or otherwise, and, subject to entry of the Final Financing Order, Borrowers and
each of the other Credit Parties hereby waives, for itself and on behalf of its estate in
bankruptcy, any and all rights under Sections 105, 506(c) or 552, or otherwise, to assert or impose
or seek to assert or impose, any such costs or expenses of administration against Agent or the
Lenders.



     2.12 Waiver of any Priming Rights. Upon the Effective Date, and on behalf of
themselves and their estates, and for so long as any Obligation shall be outstanding, each Credit
Party hereby irrevocably waives any right, pursuant to Sections 364(c) and 364(d) of the Bankruptcy
Code or otherwise, to grant any Lien of equal or greater priority than the Liens securing the
Obligations or to approve a claim of equal or greater priority than the Obligations.



     2.13 Payment of Obligations. Upon the maturity (whether by acceleration or otherwise)
of any of the Obligations under this Credit Agreement or any of the other Credit Documents, Lenders
shall be entitled to immediate payment of such Obligations without further application to or order
of the Bankruptcy Court, subject to Required Notice under Section 9.3.



     2.14 No Discharge; Survival of Claims. Each of the Credit Parties agrees that (a) the
Obligations hereunder shall not be discharged by the entry of an order confirming a Reorganization
Plan in any Chapter 11 Case (and each of the Credit Parties, pursuant to Section 1141(d)(4) of the
Bankruptcy Code, hereby waives any such discharge) and (b) the superpriority administrative claims
granted to Agent and Lenders pursuant to the Interim Financing Order and Final Financing Order and
described in Section 2.8, and the Liens granted to Agent pursuant to the Financing Orders and the
other Security Documents and described in Section 2.8, shall not be affected in any manner by the
entry of an order confirming a Reorganization Plan in any Chapter 11 Case.



ARTICLE III




LETTERS OF CREDIT




     3.1 Issuance of Letters of Credit. (a) Prior to the Closing Date, Letters of Credit
(as such term is defined in the Pre-Petition Credit Agreement; such letters of credit are listed on
Schedule B, Part 3.1 and are hereinafter referred to as the “Original Letters of Credit”) were
issued by DBTCo on behalf of Borrowers from time to time. Upon the terms and subject to the
conditions of this Credit Agreement, such outstanding Original Letters of Credit shall constitute
Letters of Credit under this Credit Agreement from and after the Closing Date as fully as if such
outstanding Original Letters of Credit had been issued under this Credit Agreement and shall
henceforth be governed by the terms and conditions of this Credit Agreement in all respects. The
Funds Administrator may from time to time request the Agent to direct an Issuing Bank to issue a
Letter of Credit for the account of a Borrower. All such Letters of Credit shall be denominated in
Dollars. No such request shall be granted if, after such issuance:



51









 






     (i) (A) Total Exposure would exceed the lesser of (1) the Line of Credit and (2) the
Borrowing Base or (B) Letter of Credit Obligations would exceed $40,000,000 or (C) any
Lender’s Exposure would exceed its Commitment;




     (ii) (A) (1) any order, judgment or decree of any Governmental Authority or arbitrator
shall enjoin or restrain such Borrower from procuring, such Issuing Bank from issuing, or a
Lender from acquiring an L/C Participation in, such Letter of Credit, or (2) any Requirement
of Law applicable to such Borrower, such Issuing Bank or a Lender or any request or
directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over such Borrower, such Issuing Bank or a Lender shall prohibit, or request
that, any such Person refrain from procuring, issuing or acquiring an L/C Participation in,
such Letter of Credit, as applicable, or, from performing its obligations under such Letter
of Credit or its L/C Participation thereunder, as applicable;




     (B) any Requirement of Law applicable to such Issuing Bank or a Lender or any
request or directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such Issuing Bank or a Lender shall impose upon
such Issuing Bank or such Lender (1) any restriction or reserve or capital
requirement or (2) any cost or expense with respect to, in the case of such Issuing
Bank, such Letter of Credit and, in the case of such Lender, such L/C Participation
(for which such Issuing Bank or such Lender shall not otherwise be compensated) not
in effect as of the Closing Date, and which such Issuing Bank or such Lender deems
in good faith to be material to it;




     (iii) any Lender is a Defaulting Lender, unless the Agent and Issuing Bank have entered
into satisfactory arrangements with Borrowers to eliminate the Agent’s and such Issuing
Bank’s risk with respect to such Lender, including cash collateralization of such Lender’s
Proportionate Share of Letter of Credit Obligations; or




     (iv) Agent has determined that any of the conditions set forth in Section 5.2 shall not
be satisfied.



          (b) The Agent may assume, as to any Borrower, any Issuing Bank and any Lender, that none of
the conditions specified in Section 3.1(a) are applicable as to such Person, unless the Agent shall
have received a notice from such Person specifically entitled “Notice under Section 3.1(a),”
specifying the condition or conditions that are applicable to such Person. Any such notice shall
continue in effect until the Agent shall have received from the Person originally sending such
notice a subsequent notice, entitled “Revocation of Notice under Section 3.1(a),” stating that the
condition or conditions specified in such Person’s earlier notice are no longer applicable.




     3.2 Procedure for Issuance. (a) The Funds Administrator may from time to time request
the Agent to direct the issuance of a Letter of Credit by delivering to the Agent, with a copy to
the applicable Issuing Bank, a Letter of Credit Request in the form of Exhibit C-2 to this Credit
Agreement (a “Letter of Credit Request”), not later than 1:00 P.M. (New York City time) at least
five (5) Business Days (or such shorter period as may be agreed to by the Agent and the applicable
Issuing Bank) in advance of the proposed date of issuance. Prior to date of



52









 







issuance or in conjunction with the submission of a Letter of Credit Request, the Funds
Administrator shall provide to the Agent and the applicable Issuing Bank a precise description of
the format of the Letter of Credit or information and documents adequate to allow for the Issuing
Bank to prepare the requested Letter of Credit and shall specify that the only drawings permitted
under the Letter of Credit shall be sight drawings. The Issuing Bank shall not issue any Letter of
Credit until it has received authorization to do so from the Agent. Promptly after the issuance or
amendment of any standby Letter of Credit, the Issuing Bank shall notify the Agent and the Funds
Administrator, in writing, of such issuance or amendment and such notice shall be accompanied by a
copy of such issuance and amendment. Upon receipt of such notice, the Agent shall promptly notify
the Lenders, in writing, of such issuance or amendment, and if so requested by a Lender the Agent
shall provide such Lender with copies of such issuance or amendment. With regards to commercial
Letters of Credit, the Issuing Bank shall on the first Business Day of each week, provide to the
Agent by facsimile a report detailing the daily aggregate outstanding commercial Letters of Credit
for the previous week.



          (b) The transmittal by the Funds Administrator of each Letter of Credit Request shall be
deemed to be a representation and warranty made by each of the Borrowers, both at the time of such
transmittal and at the time of the issuance of the requested Letter of Credit, that the Letter of
Credit may be issued in accordance with and will not violate any of the requirements of Section
3.1.




     3.3 Terms of Letters of Credit. The Agent shall not direct the issuance of any Letter
of Credit unless:



          (a) if it is a standby Letter of Credit, its term does not exceed one year from the date of
issuance (except that any such Letter of Credit may provide for annual renewals on terms reasonably
acceptable to the Agent and the Issuing Bank);




          (b) if it is a commercial Letter of Credit, its term does not exceed 120 days;




          (c) in the case of any Letter of Credit, it expires no later than thirty (30) Business Days
prior to the Facility Termination Date.




          (d) Each Letter of Credit issued or to be issued hereunder shall have an expiration date of
not later than 365 days after the Closing Date.




          (e) If the Facility Termination Date occurs prior to the expiration date of any outstanding
Letter of Credit, Borrowers shall either (i) make arrangements satisfactory to Issuing Bank with
respect to a back-up letter of credit or the assumption of the outstanding Letters of Credit by the
lenders under any exit facility or (ii) deliver cash in an amount equal to 105% of the stated
amount of all outstanding Letters of Credit to Issuing Bank to be held by and deposited in an
account in the name of Issuing Bank as cash collateral for the payment and performance of all
Letter of Credit Obligations. Issuing Bank shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account. Monies in such account shall automatically
be applied by Issuing Bank to reimburse Issuing Bank for Unpaid Drawings for which Issuing Bank has
not been reimbursed, and any remaining amounts will either (A) be held for the satisfaction of the
Letter of Credit Obligations of Borrowers at such time or (B) if the




53









 







maturity of the Loans has been accelerated, be applied to satisfy all Letter of Credit
Obligations as such Letter of Credit Obligations become due and payable.




     3.4 Lenders’ Participation. (a) Immediately upon issuance by any Issuing Bank of a
Letter of Credit, each Lender shall be deemed to have irrevocably and unconditionally acquired from
such Issuing Bank, without recourse or warranty, an undivided interest and participation (an “L/C
Participation”), to the extent of such Lender’s Proportionate Share, in such Issuing Bank’s rights
to be paid the principal amount of, together with interest accrued on, drawings under such Letter
of Credit and in any security therefor or Guaranty pertaining thereto.



          (b) (i) Each Issuing Bank shall remit to the Agent, for the account of each Lender such
Lender’s Proportionate Share of each payment of principal and interest (to the extent such interest
does not exceed the L/C Interest Rate) received by such Issuing Bank on account of any drawing
under such Letter of Credit (A) with respect to which such Issuing Bank has delivered an L/C Notice
of Drawing to the Agent during a Bankruptcy Default and (B) that is received by such Issuing Bank
on or after the date of such L/C Notice of Drawing; provided, that in the event that any such
payment received by any Issuing Bank shall be required to be returned by such Issuing Bank, such
Lender shall return to such Issuing Bank the portion thereof previously distributed by it to the
Agent, but without interest thereon (unless such Issuing Bank is required to pay interest on the
amount returned, in which case such Lender shall be required to pay interest at the same rate).





     (ii) (A) Payments required to be made by any Issuing Bank to the Agent for the account
of a Lender, together with interest thereon at the rate specified in Section 3.4(b)(ii)(B),
shall be made to the Agent, if the amount in respect of which the payment is to be made to
the Agent is received by such Issuing Bank on or before 1:00 P.M. (New York City time) of
such Issuing Bank’s time on a Business Day, on the day received and, if received after such
time, on or before 11:00 A.M. (New York City time) of such Issuing Bank’s time, on the next
succeeding Business Day.




     (B) Interest shall be payable by each Issuing Bank on amounts required to be
paid by it to the Agent pursuant to Section 3.4(b)(ii)(A) from the date such
payments are due until such amounts are paid in full at, for the first three
Business Days, the Federal Funds Rate, and, thereafter, the Prime Lending Rate.



     3.5 Maturity of Drawings; Interest Thereon. (a) Drawings under any Letter of Credit
shall, notwithstanding anything to the contrary contained therein, mature and become due and
payable, and shall be repaid to the Agent for the account of the applicable Issuing Bank by
Borrowers in full, together with interest accrued thereon, from the date and at the rate specified
in Section 3.5(b), on the Effective Date of the L/C Notice of Drawing in respect of such drawing.



          (b) Borrowers shall, notwithstanding anything to the contrary contained in any Letter of
Credit, pay interest on the outstanding principal amount of each drawing under such Letter of
Credit at a rate per annum equal to the rate set forth in Section 4.2 (the “L/C Interest Rate”)
from the date such drawing is disbursed by the applicable Issuing Bank to the date such drawing is
reimbursed by Borrowers. Interest on each such drawing shall be payable when such




54









 







drawing shall be due (whether at maturity, by reason of acceleration or otherwise) and, prior
to such time, on demand.




     3.6 Payment of Amounts Drawn Under Letters of Credit. In the event of any drawing
under any Letter of Credit, the applicable Issuing Bank may deliver an L/C Notice of Drawing to the
Agent and the Agent shall treat each L/C Notice of Drawing on its Effective Date as a Notice of
Borrowing requesting Prime Rate Loans in a principal amount equal to the amount of such drawing
plus interest on the amount of such drawing at the L/C Interest Rate from the day such
drawing was disbursed until the date of such L/C Notice of Drawing (unless such drawing was
disbursed and repaid on the same day, in which case interest shall be payable for such day); and
each such L/C Notice of Drawing shall have the same force and effect as a Notice of Borrowing given
by the Funds Administrator for and on behalf of Borrowers, except that the conditions to borrowing
specified in Section 2.2 and Section 5.2 shall not apply.



     3.7 Nature of Issuing Bank’s Duties. In determining whether to pay under any Letter
of Credit, the Issuing Bank issuing such Letter of Credit shall be responsible only to determine
that the documents and certificates required to be delivered under such Letter of Credit have been
delivered and that they comply on their face with the requirements of such Letter of Credit. As
between Borrowers, any Issuing Bank and each Lender, Borrowers assume all risks of the acts and
omissions of any Issuing Bank, or misuse of any Letter of Credit by the respective beneficiaries of
such Letter of Credit. In furtherance and not in limitation of the foregoing, neither any Issuing
Bank, the Agent nor any of the Lenders shall be responsible (a) for the form, validity,
sufficiency, accuracy, genuineness or legal effects of any document submitted by any party in
connection with the application for and issuance of or any drawing honored under any Letter of
Credit even if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged, (b) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any 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, (c) for failure of the beneficiary of any Letter of Credit to strictly
comply with conditions required in order to draw upon such Letter of Credit, (d) for errors,
omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex, telecopy, facsimile or otherwise, whether or not they be in cipher, (e) for
errors in interpretation of technical terms, (f) for any loss or delay in the transmission or
otherwise of an document required in order to make a drawing under any Letter of Credit, or of the
proceeds thereof and (g) for the misapplication by the beneficiary of any Letter of Credit of the
proceeds of any drawing honored under such Letter of Credit. Any action taken or omitted to be
taken by any Issuing Bank under or in connection with any Letter of Credit shall not create any
liability on the part of the Agent or any Lender to any Borrower.



     3.8 Obligations Absolute. The joint and several obligations of Borrowers to reimburse
each Issuing Bank for drawings honored under a Letter of Credit issued by such Issuing Bank,
together with interest as herein provided, and the obligations of the Lenders under Section 3.6
shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of
this Credit Agreement, without any reduction or deduction whatsoever, including any reduction or
deduction for any set-off, recoupment or counterclaim, under all circumstances including the
following circumstances:



55









 





          (a) any lack of validity or enforceability of any Letter of Credit;




          (b) the existence of any claim, set-off, defense or other right which any Borrower or any
Affiliate of any Borrower may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such beneficiary or transferee may be acting), the
applicable Issuing Bank, any Lender or any other Person, whether in connection with this Credit
Agreement, the transactions contemplated herein or any unrelated transaction;




          (c) any draft, demand, certificate or any other documents presented under any 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;




          (d) the surrender or impairment of any security for the performance or observance of any of
the terms of any of the Credit Documents;




          (e) payment by the applicable Issuing Bank under any Letter of Credit against presentation of
a demand, draft or certificate or other document which does not comply with the terms of such
Letter of Credit (provided that the foregoing shall not be construed to excuse the Issuing Bank
from liability to any Borrower to the extent of any direct damages (as opposed to consequential
damages) suffered by any Borrower that are caused by the Issuing Bank’s failure to exercise care
when determining whether drafts and other documents under a Letter of Credit comply with the terms
thereof);




          (f) failure of any drawing under a Letter of Credit or any non-application or misapplication
by the beneficiary of the proceeds of any drawing; or




          (g) the fact that a Default or an Event of Default shall have occurred and be continuing;



provided that no payment by a Borrower or a Lender to any Issuing Bank shall constitute a waiver or
release by such Borrower or such Lender of any right it may have against such Issuing Bank,
including, in the case of a Borrower, a claim that such Issuing Bank acted with willful misconduct
or gross negligence as determined by a court of competent jurisdiction in determining whether
documents presented under a Letter of Credit complied with the terms of such Letter of Credit.




ARTICLE IV




INTEREST, FEES AND EXPENSES




     4.1 Interest on LIBOR Rate Loans. Subject to the provisions of Section 4.4, each
LIBOR Rate Loan shall bear interest on its unpaid principal amount at a rate per annum equal to the
applicable Adjusted LIBOR Rate plus the Applicable Margin. Such interest shall be payable
on the last day of each Interest Period with respect to such LIBOR Rate Loan, at the date of
Conversion of such LIBOR Rate Loan (or a portion thereof) to a Prime Rate Loan and at maturity of
such LIBOR Rate Loan, and after maturity of such LIBOR Rate Loan (whether by acceleration or
otherwise), upon demand. The Agent upon determining the Adjusted LIBOR



56









 




Rate for any Interest Period shall promptly notify the Funds Administrator and the Lenders by
telephone (confirmed promptly in writing) or in writing thereof. Each determination by the Agent
of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest
error.




     4.2 Interest on Prime Rate Loans. Subject to the provisions of Section 4.4, each
Prime Rate Loan shall bear interest on its unpaid principal amount at a rate per annum equal to the
Prime Lending Rate plus the Applicable Margin. Such interest shall be payable monthly, in
arrears, as of the last day of each calendar month, at the date of conversion of such Prime Rate
Loan (or a portion thereof) to a LIBOR Rate Loan and at maturity of such Prime Rate Loan, and after
maturity of such Prime Rate Loan (whether by acceleration or otherwise), upon demand. In the event
of any change in said Prime Lending Rate, the rate hereunder shall change, effective as of the day
the Prime Lending Rate changes. Each determination by the Agent of any interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.



     4.3 Notice of Continuation and Notice of Conversion.



          (a) With respect to any Borrowing consisting of LIBOR Rate Loans, Borrowers may (so long as no
Default or Event of Default has occurred and is continuing, subject to the provisions of Section
4.3(c)), elect to maintain such Borrowing or any portion thereof as consisting of LIBOR Rate Loans
by selecting a new Interest Period for such Borrowing, which new Interest Period shall commence on
the last day of the immediately preceding Interest Period. Each selection of a new Interest Period
(a “Continuation”) shall be made by notice given not later than 12:00 Noon (New York City time) on
the third Business Day prior to the date of any such Continuation relating to LIBOR Rate Loans, by
the Funds Administrator to the Agent. Such notice by the Funds Administrator of a Continuation (a
"Notice of Continuation”) shall be in substantially the form of Exhibit C-1, specifying (i) the
date of such Continuation, (ii) the aggregate amount of Loans subject to such Continuation and
(iii) the duration of the selected Interest Period, all of which shall be specified in such manner
as is necessary to comply with all limitations on Loans outstanding hereunder. Borrowers may elect
to continue more than one Borrowing consisting of LIBOR Rate Loans by combining such Borrowings
into one Borrowing and selecting a new Interest Period pursuant to this Section 4.3(a); provided
that each of the Borrowings so combined shall consist of Loans having Interest Periods ending on
the same date. If Borrowers shall fail to select a new Interest Period for any Borrowing
consisting of LIBOR Rate Loans in accordance with this Section 4.3(a), such Loans will
automatically, on the last day of the then existing Interest Period therefor, Convert into Prime
Rate Loans.




          (b) Borrowers may on any Business Day (so long as no Default or Event of Default has occurred
and is continuing), upon notice (each such notice, a “Notice of Conversion”) given by the Funds
Administrator to the Agent, and subject to the provisions of Section 4.3(c), Convert the entire
amount of or a portion of all Loans of one Type comprising the same Borrowing into Loans of another
Type; provided, however, that any Conversion of any LIBOR Rate Loans into Loans of another Type
shall be made on, and only on, the last day of an Interest Period for such LIBOR Rate Loans and,
upon Conversion of any Loans into Loans of another Type, Borrowers shall pay accrued interest to
the date of Conversion on the principal amount Converted. Each such Notice of Conversion shall be
given not later than 12:00 Noon




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(New York City time) on the Business Day prior to the date of any proposed Conversion into
Prime Rate Loans and on the third Business Day prior to the date of any proposed Conversion into
LIBOR Rate Loans. Subject to the restrictions specified above, each Notice of Conversion shall be
in substantially the form of Exhibit C-1 hereto specifying (i) the requested date of such
Conversion, (ii) the Type of Loans to be Converted, (iii) the portion of such Type of Loan to be
Converted, (iv) the Type of Loan such Loans are to be Converted into and (v) if such Conversion is
into LIBOR Rate Loans, the duration of the Interest Period of such Loan. Each Conversion shall be
in an aggregate amount for the Loans of all Lenders of not less than $2,000,000 or any integral
multiple of $1,000,000 in excess thereof. Borrowers may elect to Convert the entire amount of or a
portion of all Loans of one Type comprising more than one Borrowing into Loans of another Type by
combining such Borrowings into one Borrowing consisting of Loans of another Type; provided that if
the Borrowings so combined consist of LIBOR Rate Loans, such Loans shall have Interest Periods
ending on the same date.




          (c) Notwithstanding anything contained in subsections (a) and (b) above or elsewhere in this
Credit Agreement to the contrary,





     (i) (A) if the Agent is unable to determine the LIBOR Rate for LIBOR Rate Loans
comprising any requested Borrowing, Continuation or Conversion, the right of Borrowers to
select or maintain LIBOR Rate Loans for such Borrowing or any subsequent Borrowing shall be
suspended until the Agent shall notify the Funds Administrator and the Lenders that the
circumstances causing such suspension no longer exist, and each Loan comprising such
Borrowing shall be a Loan of a Type that is unaffected by such circumstances, as selected by
Borrowers pursuant to this Credit Agreement;




     (B) if a Lender shall, at any time, notify the Agent that, because of a change
in applicable law after the date such Lender became a Lender, it has become unlawful
for such Lender to participate in any requested Borrowing, Continuation or
Conversion of LIBOR Rate Loans, to continue its LIBOR Rate Loans, or to comply with
its obligations hereunder in respect thereof, that Lender’s obligation to
participate in any such requested Borrowing, Continuation or Conversion shall be
discharged by such Lender’s making its participation therein in the form of a Prime
Rate Loan, and any of such Lender’s LIBOR Rate Loans not otherwise being Converted
shall be Converted into Prime Rate Loans on the earlier of (1) the last day of the
applicable Interest Period and (2) the last day such Lender may lawfully continue to
maintain LIBOR Rate Loans, provided that any Prime Rate Loan that, but for this
clause (B), would have been a LIBOR Rate Loan shall constitute part of the Borrowing
of which any such LIBOR Rate Loan was or would have been a part;



          (ii) if the Majority Lenders shall, at least one Business Day before the date of any
requested Borrowing, Continuation or Conversion, notify the Agent that the LIBOR Rate for
Loans comprising such Borrowing will not adequately reflect the cost to such Lenders of
making or funding their respective Loans for such Borrowing, the right of Borrowers to
select LIBOR Rate Loans for such Borrowing shall be suspended until the Agent shall notify
the Funds Administrator and the Lenders that the circumstances




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causing such suspension no longer exist, and each Loan comprising such Borrowing shall
be a Loan of a Type that is unaffected by such circumstances, as selected by Borrowers
pursuant to this Credit Agreement; and





     (iii) Borrowers shall borrow, prepay, convert and continue Loans in a manner such that
(A) the aggregate principal amount of LIBOR Rate Loans having the same Interest Period shall
at all times be not less than $2,000,000, (B) there shall not be, at any one time, more than
eight Interest Periods in effect with respect to LIBOR Rate Loans and (C) no payment of
LIBOR Rate Loans will have to be made prior to the last day of an applicable Interest Period
in order to repay the Loans in the amounts and on the date specified in Section 2.4(b).



          (d) Each Notice of Continuation and Notice of Conversion shall be irrevocable (subject to
Section 4.3(c)) by and binding on Borrowers.




     4.4 Interest After Event of Default. At the election of Agent or the Majority
Lenders, Interest on any amount of overdue interest on or overdue principal of the Loans, and
interest on the amount of principal under the Loans outstanding as of the date an Event of Default
occurs, and at all times thereafter until the earlier of the date upon which (a) all Obligations
have been paid and satisfied in full or (b) such Event of Default shall not be continuing, shall be
payable on demand at a rate per annum equal to the rate at which the Loans are bearing interest
pursuant to Section 4.2 above, plus two percent (2.0%). In the event of any change in said
applicable interest rate, the rate hereunder shall change, effective as of the day the applicable
interest rate changes, so as to remain two percent (2.0%) per annum above the then applicable
interest rate.



     4.5 Fees. (a) Borrowers shall pay to the Agent, for the ratable benefit of the
Lenders, a non-refundable fee (the “Unused Line Fee”) equal to three eighths of one percent
(0.375%) per annum of the unused portion of the Line of Credit (with any outstanding Letter of
Credit Obligations constituting usage of the Line of Credit). The Unused Line Fee shall accrue
daily from the Closing Date until the Facility Termination Date, and shall be due and payable
monthly in arrears, on the first Business Day of each Fiscal Quarter and on the Facility
Termination Date.



          (b) On the Closing Date, Borrowers shall pay to the Agent (i) the fees set forth in the Fee
Letter to the extent due on such date and (ii) the Upfront Fees for distribution to the Lenders.




     4.6 Letter of Credit Fees. (a) The Agent shall be entitled to charge to the account
of the Funds Administrator on the first Business Day of each calendar month, a fee for the ratable
benefit of the Lenders for distribution to each Lender, in an amount equal to the LIBOR Margin for
Loans with respect to all Letters of Credit on the daily undrawn amounts outstanding during the
immediately preceding calendar month; provided that from the date an Event of Default occurs, and
at all times thereafter until the earlier of the date upon which (A) all Obligations have been paid
and satisfied in full and (B) such Event of Default shall not be continuing, such fee shall be
equal to two (2%) percent per annum above the LIBOR Margin, otherwise applicable hereunder and
shall be payable on demand (such fees, the “Letter of Credit Fees”); and



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          (b) The Agent shall be entitled to charge to the account of the Funds Administrator on the
first Business Day of the month immediately succeeding each Fiscal Quarter, a fee for the benefit
of the Issuing Bank equal to the greater of (X) $500 per annum and (Y) 0.25% per annum with respect
to all Letters of Credit on the daily undrawn amounts outstanding during the immediately preceding
Fiscal Quarter (the “Fronting Fee”). In addition to the Fronting Fee, the Agent shall be entitled
to charge the account of the Funds Administrator, as and when incurred, the customary charges,
fees, costs and expenses of the Issuing Bank for the issuance, transfer, amendment or payment of
any Letter of Credit (the “Issuing Bank Fees”). Each determination of the Fronting Fee and Issuing
Bank Fees shall be made by the Issuing Bank and provided in writing to the Agent and shall be
conclusive and binding for purposes of Agent’s right to collect and distribute such fees, absent
manifest error.




     4.7 Reimbursement of Expenses.



          (a) From and after the Closing Date, Borrowers shall promptly reimburse the Agent for all
Expenses of the Agent as the same are incurred by the Agent and upon receipt of invoices therefor
and, if requested by the Funds Administrator, such reasonable backup materials and information as
any Borrower shall reasonably request.




          (b) Borrowers shall pay to each Lender, upon request, such amount or amounts as such Lender
determines in good faith are necessary to compensate it for any breakage loss, cost or expense
incurred by it as a result of (i) any payment, prepayment or conversion of a LIBOR Rate Loan on a
date other than the last day of an Interest Period for such LIBOR Rate Loan or (ii) a LIBOR Rate
Loan for any reason not being made or Converted, or any payment of principal thereof or interest
thereon not being made, on the date therefor determined in accordance with the applicable
provisions of this Credit Agreement. At the election of such Lender, and without limiting the
generality of the foregoing, but without duplication, such compensation on account of breakage
losses may include an amount equal to the excess of (A) the interest that would have been received
from Borrowers under and in accordance with the terms of this Credit Agreement on any amounts to be
reemployed during an Interest Period or its remaining portion over (B) the interest component of
the return that such Lender determines it could have obtained had it placed such amount on deposit
in the interbank Dollar market selected by it for a period equal to such Interest Period or its
remaining portion.




     4.8 Authorization to Charge Borrowers’ Accounts. Each Borrower hereby authorizes the
Agent to charge the account of any Borrower maintained with the Agent with the amount of all Fees,
Expenses and other payments to be paid hereunder, under the Fee Letters and under the other Credit
Documents as and when such payments become due and agrees that it shall pay interest thereon from
the date such amount is to be charged to such Borrower’s Account to the date the same is paid
(whether by the making of a Loan or otherwise) at the then applicable rate for Prime Rate Loans.
Each Borrower confirms that any charges which the Agent may so make to such Borrower’s Account as
herein provided will be made as an accommodation to Borrowers and solely at the Agent’s discretion.
The Agent will use its best efforts to give the Funds Administrator three (3) days advance notice
of such Fees, Expenses and other payments in reasonable detail, provided that the failure to
provide such notice shall not result in any liability of the Agent.



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     4.9 Indemnification in Certain Events. If after the Closing Date, either (a) any
change in or in the interpretation of any law or regulation is introduced, including with respect
to reserve requirements, applicable to DBTCo., Deutsche Bank or any other banking or financial
institution from whom any of the Lenders borrows funds or obtains credit (a “Funding Bank”), the
Agent or any of the Lenders, or (b) the Agent, a Funding Bank or any of the Lenders complies with
any future guideline or request from any central bank or other Governmental Authority or (c) the
Agent, a Funding Bank or any of the Lenders determines that the adoption of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof has or would have the effect
described below, or the Agent, a Funding Bank or any of the Lenders complies with any request or
directive regarding capital adequacy (whether of not having the force of law) of any such
authority, central bank or comparable agency, and in the case of any event set forth in this clause
(c), such adoption, change or compliance has or would have the direct or indirect effect of
reducing the rate of return on any of the Lenders’ capital as a consequence of its obligations
hereunder or under any L/C Participation to a level below that which such Lender could have
achieved but for such adoption, change or compliance (taking into consideration the Agent’s or such
Funding Bank’s or Lender’s policies as the case may be with respect to capital adequacy) by an
amount deemed by such Lender to be material, or any of the foregoing events described in clauses
(a), (b) or (c) increases the cost to the Agent, or any of the Lenders of (i) funding or
maintaining the Line of Credit, or (ii) acquiring or maintaining any L/C Participation in any
Letter of Credit, or reduces the amount receivable in respect thereof, or in respect of such Letter
of Credit, by the Agent, the Issuing Bank of such Letter of Credit or any Lender, then Borrowers
shall upon demand by the Agent, pay to the Agent, for the account of each applicable Lender or, as
applicable, an Issuing Bank or a Funding Bank, additional amounts sufficient to indemnify such
Person against such increase in cost or reduction in amount receivable. A certificate as to the
amount of such increased cost and setting forth in reasonable detail the calculation thereof shall,
if requested by the Funds Administrator, be submitted to the Funds Administrator by the Person
making such claim, and shall be conclusive absent manifest error; provided, however, in no event
shall any party seek indemnification for any amounts described in this Section 4.9 if such amounts
arose more than 180 days prior to the date on which reimbursement is being sought.



     4.10 Calculations and Determinations. (a) All calculations of (i) interest hereunder
and (ii) Fees, shall be made by the Agent, on the basis of a year of 360 days, or, if such
computation would cause the interest and fees chargeable hereunder to exceed the Highest Lawful
Rate, 365/366 days, in each case to the extent applicable for the actual number of days elapsed
(including the first day but excluding the last day) occurring in the period for which such
interest or fees are payable.



          (b) In making the determinations contemplated by Article 4, the Agent and each Lender may make
such estimates, assumptions, allocations and the like that such Person in good faith determines to
be appropriate.




          (c) Each determination by the Agent of an interest rate or payment hereunder shall be
conclusive and binding for all purposes, absent manifest error.




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ARTICLE V




CONDITIONS PRECEDENT




     5.1 Conditions to Initial Credit Event. The initial Credit Event is subject to the
satisfaction or waiver, immediately prior thereto or concurrently therewith, of the following
conditions precedent:



          (a) Closing Document List. The Agent and the Lenders shall have received each of the
agreements, opinions, reports, approvals, consents, certificates and other documents set forth on
the Closing Document List attached hereto as Annex II, all in form and substance reasonably
satisfactory to Agent and the Lenders and, where applicable, each duly executed by the Person(s)
specified thereon.




          (b) Payment of Obligations Under Existing Credit Agreement. Simultaneously with the
initial funding hereunder, the total commitments under the Pre-Petition Credit Agreement shall have
been terminated, all loans thereunder shall have been repaid in full, together with interest
thereon, all letters of credit, if any, issued thereunder shall have been terminated or shall have
become Letters of Credit under this Credit Agreement pursuant to Section 3.1 and all other amounts
owing pursuant to the such agreements (including, without limitation, all accrued and unpaid fees
and expenses of Agent and the Lenders) shall have been repaid in full.




          (c) Unused Availability. After giving pro forma effect to the funding of the initial
Loans, the issuance of Letters of Credit, if any, and the payment of all costs, fees and expenses
incurred by or for the account of Borrowers in connection with the execution and delivery of this
Credit Agreement and the other Credit Documents, there shall be Availability consistent with the
Cash Budget.




          (d) Approvals. All necessary governmental (domestic and foreign) and third party
approvals in connection with this Credit Agreement, the Transactions and the Chapter 11 Cases and
related matters have been obtained and remain in effect, and all applicable waiting periods shall
have expired without any action being taken by any competent authority which restrains, prevents or
imposes materially adverse conditions upon the consummation of all or any part of this Credit
Agreement and the Transactions. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially adverse conditions upon all or any
part of this Credit Agreement or the Transactions.




          (e) Litigation. No litigation by any entity (private or governmental) shall be
pending or, to the best knowledge of any Borrower, threatened with respect to this Credit
Agreement, any other Credit Document or any documentation executed in connection herewith or the
Transactions or the obligations being refinanced in connection with the consummation thereof, or
which Agent or the Majority Lenders shall determine would reasonably be expected to have a Material
Adverse Effect.




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          (f) Insurance. Agent shall be satisfied with the insurance coverage in effect on the
Closing Date pertaining to the assets of Borrowers and the Subsidiaries of each of the Borrowers,
and shall have received evidence satisfactory to it that Agent shall have been named as a loss
payee and additional insured on all such policies of insurance covering Collateral.




          (g) Corporate Proceedings. All corporate and legal proceedings and all instruments
and agreements in connection with this Credit Agreement and the Transactions shall be satisfactory
in form and substance to Agent and, except as otherwise agreed by Agent, shall have been
consummated without any waiver of any conditions or other provisions set forth therein and Agent
shall have received all information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals, good standing certificates and bring-down telegrams
or certificates, if any, which Agent or the Majority Lenders reasonably may have requested in
connection therewith, such documents and papers where appropriate to be certified by a Responsible
Officer or by proper corporate or Governmental Authorities.




          (h) Adverse Change. On or prior to the Effective Date, nothing shall have occurred
(and none of the Agent nor any Lender shall have become aware of any facts or conditions not
previously known) which Agent or the Majority Lenders shall determine has had or reasonably could
be expected to have a Material Adverse Effect.




          (i) First Day Matters. All motions filed and orders entered in connection with the
first day hearing to be held in each of the Chapter 11 Cases will be reasonably satisfactory in
form and substance to Agent and its counsel.




          (j) Cash Budget. Agent shall have received the Cash Budget, satisfactory to the
Steering Committee, and the Weekly Cash Management Report required pursuant to Section 7.1(k)(ii).




          (k) Alvarez & Marsal Report. Agent shall have received a report satisfactory to it
from Alvarez & Marsal regarding the Collateral and otherwise shall have completed its due diligence
in a manner satisfactory to it with respect to Borrowers, the Subsidiary Guarantors and the Chapter
11 Cases.




          (l) Fees. Agent shall have received, for its own accounts and/or the accounts of
Lenders, (i) the fees owing under the Fee Letter and (ii) the fees payable under the joinder letter
dated February 20, 2008 (the “Upfront Fee”).




          (m) Financial Statements. Agent shall have received the financial statements
described in Section 6.6.




     5.2 Conditions to Each Credit Event. On the date of each Credit Event (including the
initial Credit Event), both immediately before and immediately after giving effect thereto and to
the application of the proceeds therefrom, the following statements shall be true (and each request
for a Credit Event, shall constitute a representation and warranty by each Borrower that on the
date of such Credit Event, immediately before and immediately after giving effect thereto and to
the application of the proceeds therefrom, such statements are true):



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          (a) The representations and warranties contained in this Credit Agreement and in each other
Credit Document are true and correct in all material respects on and as of the date of such Credit
Event as though made on and as of such date, except (i) to the extent that such representations and
warranties are expressly made as of a specific date (in which event such representations and
warranties shall have been true and correct in all material respects on and as of such specified
date) and (ii) the representation and warranty made under Section 6.2 shall be deemed satisfied
upon the entry of the Interim Financing Order in a form satisfactory to the Agent;




          (b) No event has occurred and is continuing, or would result from such Credit Event or the
application of the proceeds thereof, which would constitute a Default or an Event of Default;




          (c) In the case of the issuance of any Letter of Credit, none of the events set forth in
Section 3.1 has occurred and is continuing or would result from the issuance of such Letter of
Credit;




          (d) After giving effect to the Loans and Letters of Credit requested to be made, no Lender
will have an Available Commitment which is less than zero;




          (e) Agent shall have received such other documents as required by this Credit Agreement in
connection with such Loan, all in form and substance as required by this Credit Agreement including
with respect to Loans, a Notice of Borrowing in accordance with the provisions of Section 2.2
hereof; and with respect to the issuance of a Letter of Credit, Agent and the respective Issuing
Bank shall have received a Letter of Credit Request meeting the requirements of Section 3.2(a);




          (f) Bankruptcy Matters.





     (i) As to the funding of any Borrowing or the incurrence of any Letter of Credit
Obligations occurring prior to the Final Financing Order Date, (x) the Interim Financing
Order shall have been entered by the Bankruptcy Court upon a motion of Borrower satisfactory
in form and substance to Agent and its counsel, and on such prior notice as is reflected in
the Interim Financing Order as being good, sufficient and adequate, (y) the Interim
Financing Order shall be in full force and effect and (z) the Interim Financing Order shall
not have been reversed, stayed, vacated, modified or amended.




     (ii) As to the funding of any Borrowing or the incurrence of any Letter of Credit
Obligations after the date which is more than 45 days following the Petition Date, (i) the
Final Financing Order shall have been entered by the Bankruptcy Court upon a motion of
Borrowers satisfactory in form and substance to Agent and on such prior notice as is
reflected in the Final Financing Order as being good, sufficient and adequate, (ii) the
Final Financing Order shall be in full force and effect, and (iii) the Final Financing Order
shall not have been vacated, reversed, stayed, vacated, modified or amended without the
prior written consent of Agent and Majority Lenders.



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     (iii) all other orders entered by the Bankruptcy Court on or prior to the entry of the
Final Financing Order shall be satisfactory in form and substance to Agent and its counsel,
including, without limitation, the provision by and through such orders of adequate
protection for the holders of the Pre-Petition Secured Debt.



          (g) Cash Management Matters.





     (i) Agent shall have received a Weekly Cash Management Report meeting the requirements
of Section 7.1(k)(ii).




     (ii) After giving effect to the Credit Event requested, Availability shall not be less
than $0.




     (iii) The Credit Event, if a Borrowing, will not cause Available Cash Surplus to exceed
$2,000,000 for each of the next two (2) consecutive Business Days.



          (h) Other Information. Agent shall have received such other instruments, documents
and opinions as it may reasonably request in connection with such Credit Event to evidence
compliance with the terms and provisions of the Loan Documents, including, without limitation, if
requested pursuant to Section 7.1(f) an updated Borrowing Base Certificate in form and substance
satisfactory to Agent.



Each request for a Borrowing and the acceptance by Borrower of the proceeds thereof shall
constitute a representation and warranty by Borrower, as of the date of the Loans comprising such
Borrowing, that the conditions specified in Section 5.2(a) through (h) have been satisfied.




ARTICLE VI




REPRESENTATIONS AND WARRANTIES




     To induce the Agent and the Lenders to enter into this Credit Agreement and each Issuing Bank
to issue Letters of Credit, each Borrower, with respect to itself, each of the other Borrowers and
each of their respective Subsidiaries, hereby represents and warrants to the Agent, the Lenders and
each Issuing Bank:



     6.1 Organization and Qualification. Each Borrower and each Subsidiary of each
Borrower (a) is duly organized, validly existing and in good standing under the laws of the state
of its organization, (b) subject to the provisions of the Bankruptcy Code and entry of the Interim
Financing Order (or the Final Financing Order, when applicable) by the Bankruptcy Court, has the
power and authority to own its properties and assets and to transact the businesses in which it
presently is, or proposes to be, engaged and (c) is duly qualified and is authorized to do business
and is in good standing in each jurisdiction where it presently is, or proposes to be, engaged in
business except to the extent where failure to be so qualified or authorized or in good standing
would not reasonably be expected to have a Material Adverse Effect. As of the Closing Date, with
respect to each Borrower and each Subsidiary of each Borrower, Schedule B, Part 6.1 lists the exact
legal name of each such Person, the State of incorporation of each such Person, all jurisdictions
in which each such Person is qualified to do business as foreign corporations, and in



65









 







the case of each Domestic Subsidiary, the organizational identification number and the federal
employer identification number of each such Person.



     6.2 Rights in Collateral; Priority of Liens. Each Borrower and each Subsidiary of
each Borrower owns the property provided in the scope of the Lien granted by it as Collateral under
the Credit Documents, free and clear of any and all Liens in favor of third parties, except for
Permitted Liens. Upon entry of each Financing Order, the provisions of each Security Agreement are
effective to create in favor of Collateral Agent for the benefit of the Secured Parties a legal,
valid and enforceable security interest in all right, title and interest of the relevant Credit
Party in the Collateral, subject to no other prior Liens other than Permitted Senior Liens and the
Carve-Out Reserve. Upon the entry by the Bankruptcy Court of the Interim Financing Order (or the
Final Financing Order, when applicable) no additional filings or recordings shall be necessary to
perfect the security interests created in the Collateral under the Security Documents; provided,
however, that additional filings may be required in the United States Copyright Office and/or
United States Patent and Trademark Office to perfect the Collateral Agent’s Lien on any
Intellectual Property acquired after the date hereof.



     6.3 Company Power and Authority. Upon the entry by the Bankruptcy Courts of the
Interim Financing Order (or the Final Financing Order, when applicable) each of the Credit Parties
has the power and authority to execute, deliver and perform the terms and provisions of each of the
Credit Documents to which it is a party and has taken all necessary action to authorize the
execution, delivery and performance by it of such Credit Documents. Upon the entry by the
Bankruptcy Courts of the Interim Financing Order (or the Final Financing Order, when applicable)
each of the Credit Parties has duly executed and delivered each of the Credit Documents to which it
is a party, and each such Credit Document constitutes the legal, valid and binding obligation of
such party enforceable in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws generally affecting creditors’ rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).



     6.4 No Violation. Neither the execution, delivery or performance by any Borrower or
any Subsidiary of any Borrowers of any of the Credit Documents to which it is a party, nor
compliance by it with the terms and provisions thereof, nor consummation of the transactions
contemplated therein (i) will contravene in any material respect any Requirement of Law, (ii) will
conflict or be inconsistent with or result in any breach of any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the properties or assets of any Borrower or
any such Subsidiary pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement or loan agreement, or any other agreement, contract or instrument, to which a Borrower or
such Subsidiary is a party or by which it or any of its property or assets is bound or to which it
may be subject, except to the extent a conflict, breach or default results from the rejection of
such agreement, contract or instrument approved pursuant to an applicable order of the Bankruptcy
Court, or entered into or confirmed Post-Petition or (iii) will violate or conflict with the
Governing Documents of any Credit Party.



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     6.5 Consents. No order, consent, approval, license, or authorization or validation
of, or filing with or other act by or in respect of, any Governmental Authority or any other Person
is required in connection with any Credit Event hereunder, the grant of the Liens pursuant to the
Credit Documents, or the execution, delivery, performance, validity or enforceability of this
Credit Agreement, the Notes or the other Credit Documents and the transactions contemplated herein
and therein, except for consents or authorizations which have been obtained or filings which have
been made and which, in each case, are in full force and effect. No order, consent, approval,
license, or authorization or validation of, or filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the continuing operations
of any Borrower or any Subsidiary of any Borrower, except for any order, consent, approval,
license, or authorization or validation of, or filing with or other act by or in respect of, any
Governmental Authority or any other Person which have been made or which the failure to obtain or
make would not individually or in the aggregate reasonably be expected to have a Material Adverse
Effect.



     6.6 Financial Data. Borrowers have furnished or caused to be furnished to the Lenders
the following Financial Statements, which have been prepared in accordance with GAAP consistently
applied (except as otherwise disclosed therein) throughout the periods involved (except as to the
unaudited statements, the absence of footnotes and subject to year-end audit adjustments): (a)
balance sheets as of, and statements of income, cash flows and shareholders equity for the Fiscal
Year ended December 31, 2006 audited by independent certified public accountants and accompanied by
an unqualified opinion thereof; and (b) an unaudited balance sheet as of, and unaudited statements
of income, cash flows and shareholders equity for the period ending December 31, 2007. The
projections delivered to the Lenders on or prior to the date hereof and any projections delivered
to the Lenders after the date hereof in accordance with Section 7.1(k) hereof represent Borrowers’
good faith estimate of the future financial performance of the Consolidated Entity for the periods
set forth therein, it being understood by the Agent and the Lenders that projections as to future
events are not to be viewed as facts and that the actual results during the periods covered by the
Projections may differ from the projected results set forth therein.



     6.7 Locations of Offices, Records and Inventory. As of the Closing Date, the address
of the principal place of business and chief executive office of each Credit Party is set forth on
Schedule B, Part 6.7. As of the Closing Date, the books and records of each Borrower and each
Credit Party, and all of their respective chattel paper and records of Accounts, are maintained
exclusively at such locations. As of the Closing Date, there is no location at which any Credit
Party has any Collateral (except for vehicles and Inventory in transit in the ordinary course of
business) other than those locations identified on Schedule B, Part 6.7. As of the Closing Date,
to the extent any such locations are not owned, Schedule B, Part 6.7 also sets forth the purpose of
such location (e.g., warehouse, processing plant, sales office, etc.), the legal names of the
owners and/or operators thereof; and the address and phone numbers of such owners and/or operators.
As of the Closing Date, none of the receipts received by any Borrower from any warehouseman or
processor states that the goods covered thereby are to be delivered to bearer or to the order of a
named person or to a named person and such named person’s assigns.



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     6.8 Fictitious Business Names. No Borrower and no Subsidiary of any Borrower has used
any corporate or fictitious name during the five (5) years preceding the date hereof, other than
the corporate name under which it has executed this Credit Agreement.



     6.9 Subsidiaries. As of the Closing Date, the only Subsidiaries of each Borrower are
those listed on Schedule B, Part 6.9. As of the Closing Date, a Borrower or a wholly-owned
Subsidiary of a Borrower is the record and beneficial owner of all of the issued and outstanding
Capital Securities of each of the Subsidiaries listed on Schedule B, Part 6.9. As of the Closing
Date, there are no proxies, irrevocable or otherwise, with respect to such Capital Securities of
any Subsidiary, and no Capital Securities of any Subsidiary of any Borrower are or may become
required to be issued by reason of any options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights convertible into or
exchangeable for, Capital Securities of any Subsidiary of any Borrower, and there are no contracts,
commitments, understandings or arrangements by which any Subsidiary of any Borrower is or may
become bound to issue additional Capital Securities convertible into or exchangeable for such
Capital Securities. As of the Closing Date, all of such shares listed on Schedule B, Part 6.9 are
owned by a Borrower or a Subsidiary of a Borrower free and clear of any Liens. The Foreign
Subsidiaries conduct no operations and in the aggregate have consolidated assets, after eliminating
intercompany accounts among the Foreign Subsidiaries, with a value less than €400,000.



     6.10 No Judgments or Litigation. No judgments, orders, writs or decrees are
outstanding against any Credit Party or any Subsidiary of any Credit Party, which constitute a Lien
on any property owned by a Credit Party or a Domestic Subsidiary. There is not pending or, to the
knowledge of any Borrower or any Credit Party, threatened any litigation, contested claim,
investigation, arbitration, or governmental proceeding by or against any Credit Party or any
Subsidiary of any Credit Party (i) with respect to any Credit Document seeking to enjoin any such
Credit Party’s performance thereof or (ii) which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.



     6.11 Environmental Matters. Except for such failures and noncompliances of the types
described herein which, individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect:



          (a) Each Borrower and each of its Subsidiaries is in compliance with all applicable
Environmental Laws and no Borrower nor any of its Subsidiaries is liable for any damages, costs,
penalties, fines, or forfeitures under such Environmental Laws; there are no pending or, to the
knowledge of any Borrower, threatened Environmental Claims against any Borrower or any of its
Subsidiaries or any Real Property Assets owned or operated by any Borrower or any of its
Subsidiaries; and there are no facts, circumstances, conditions or occurrences on any Real Property
Assets at any time owned or operated by any Borrower or any of its Subsidiaries or, to the
knowledge of any Borrower, on any property adjoining or in the vicinity of any such Real Property
Assets that would reasonably be expected (i) to form the basis of an Environmental Claim against
any Borrower or any of its Subsidiaries or any Real Property Assets currently owned or operated by
any Borrower or any of its Subsidiaries, or (ii) to cause any such currently owned Real Property
Assets to be subject to any restrictions on the




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ownership, occupancy, use or transferability of such Real Property Assets by any Borrower or
any of its Subsidiaries under any applicable Environmental Law;




          (b) Each Borrower and each of its Subsidiaries have not at any time generated, used, treated,
stored disposed of Hazardous Materials on, or transported Hazardous Materials to or from, or
released Hazardous Materials on, under or from any Real Property Assets owned or operated by any
Borrower or any of its Subsidiaries except in compliance with all applicable Environmental Laws and
in connection with the operation, use or maintenance of any such Real Property Assets by such
Borrower’s or such Subsidiary’s business;




          (c) No Borrower nor any of its Subsidiaries is currently conducting any investigation,
response or other corrective action at any location pursuant to any Environmental Law, nor are any
of them under any obligation to do so; none of the Real Property Assets is (i) listed or proposed
for listing on the National Priorities List under CERCLA or (ii) listed on the Comprehensive
Environmental Response, Compensation and Liability Information System promulgated pursuant to
CERCLA, or (iii) included on any similar list maintained under any Environmental Law; and




          (d) No Borrower nor any of its Subsidiaries has retained or assumed any liability,
contractually, by operation of law or otherwise, under any Environmental Law.




     6.12 Labor Matters.



          (a) There are no material labor controversies pending or, to the best knowledge of any
Borrower after diligent inquiry, threatened between any Borrower or any Subsidiary of any Borrower
and any of their respective employees which would be reasonably likely to result in a Material
Adverse Effect.




          (b) No Borrower and no Subsidiary of any Borrower is engaged in any unfair labor practice.
There is (i) no unfair labor practice complaint pending against any Borrower or any Subsidiary of
any Borrower or, to the best knowledge of any Borrower, threatened against any of them, before the
National Labor Relations Board, and no significant grievance or significant arbitration proceeding
arising out of or under collective bargaining agreements is so pending against any Borrower or any
Subsidiary of any Borrower or, to the best knowledge of any Borrower, threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending against any Borrower or any
Subsidiary of any Borrower or, to the best knowledge of any Borrower, threatened against any of
them and (iii) to the knowledge of Borrowers, no union organizing activities exist with respect to
the employees of Wellman or any of its Subsidiaries not currently subject to a collective
bargaining agreement.




     6.13 Compliance with Law. Except as disclosed in connection with any specific
representations set forth herein regarding ERISA, Environmental Laws, tax and other laws, no
Borrower and no Subsidiary of any Borrower has violated or failed to comply, in any material
respect, with any Requirement of Law or any requirement of any self-regulatory organization, except
any such violation or non-compliance which would not reasonably be expected to have a Material
Adverse Effect.



     6.14 ERISA.



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          (a) As of the Closing Date, Schedule B, Part 6.14 lists (i) all ERISA Affiliates and (ii) all
Plans and separately identifies all Title IV Plans, Multiemployer Plans, and Retiree Welfare Plans.
Except with respect to Multiemployer Plans, each Plan which is intended to be qualified under
Section 401 of the Code has been determined by the IRS to so qualify, the trusts created thereunder
have been determined to be exempt from tax under the provisions of Section 501 of the Code, and
nothing has occurred that would cause the loss of such qualification or tax exempt status. As of
the Closing Date, each Plan is in material compliance with the applicable provisions of ERISA and
the Code, including the timely filing of all reports required under the Code or ERISA. As of the
Closing Date, no Borrower, any Subsidiary of any Borrower nor any ERISA Affiliate has failed to
make any contribution or pay any amount due as required by either Section 412 of the Code or
Section 302 of ERISA or the terms of any such Title IV Plan except where such failure, individually
or in the aggregate, would be reasonably likely to result in a financial liability of Borrowers and
the Subsidiaries of each of the Borrowers in an amount not in excess of $250,000. No Prohibited
Transaction, in connection with any Plan has occurred that would subject any Borrower, or
Subsidiary of any Borrower to a material tax under Section 502(l) of ERISA or Section 4975 of the
Code, and no event has occurred with respect to a Plan which would subject any Borrower or
Subsidiary of any Borrower to any material liability under Section 502(l) of ERISA.




          (b) As of the Closing Date, except as set forth in Schedule B, Part 6.14: (i) no Title IV
Plan has any Unfunded Pension Liability; (ii) no Termination Event or event described in Section
4062(e) of ERISA with respect to any Title IV Plan has occurred or is reasonably expected to occur;
(iii) there are no pending, or to the knowledge of any Borrower or any Subsidiary of any Borrower,
threatened claims (other than claims for benefits in the normal course), sanctions, actions or
lawsuits, asserted or instituted against any Plan or any Person as fiduciary or sponsor of any
Plan; (iv) within the last five years no Title IV Plan has been terminated, whether or not in a
“standard termination” as such term is used in Section 4041(b)(1) of ERISA, nor has any Title IV
Plan (determined at any time within the past five years) with Unfunded Pension Liabilities been
transferred outside of the “controlled group” (within the meaning of Section 4001(a)(14) of ERISA)
of any Borrower, Subsidiary of any Borrower or ERISA Affiliate (determined at such time).




     6.15 Intellectual Property. Each Credit Party and each Subsidiary of each Credit
Party possesses such patents, patent applications, copyrights, service marks, trademarks and trade
names (or licenses thereof) as are required to continue to conduct its present business activities,
except for any failures to so possess which singly or in the aggregate would not reasonably be
expected to have a Material Adverse Effect.



     6.16 Licenses and Permits. Except as would not reasonably be expected to have a
Material Adverse Effect, each Credit Party has obtained and holds in full force and effect, all
franchises, licenses, leases, permits, certificates, authorizations, qualifications, easements,
rights of way and other rights and approvals which are necessary or advisable for the operation of
its businesses as presently conducted and as proposed to be conducted. Except as would not
reasonably be expected to have a Material Adverse Effect, each Credit Party is not in violation of
the terms of any such franchise, license, lease, permit, certificate, authorization, qualification,
easement, right of way, right or approval.



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     6.17 Title to Property. As of the Closing Date, all Real Property is identified on
Schedule B, Part 6.17. Each Credit Party has good and marketable title in fee simple to, or a
valid leasehold interest in, all its material Real Property, and good title to all its other
property, and none of such property is subject to any Lien, except Permitted Liens.



     6.18 Governmental Regulations. No Credit Party is (a) an investment company or a
company controlled by an investment company within the meaning of the Investment Company Act of
1940, as amended, or (b) subject to any other law which purports to regulate or restrict its
ability to borrow money or to consummate the transactions contemplated by this Credit Agreement or
the other Credit Documents or to perform its obligations hereunder or thereunder.



     6.19 Borrowers’ Taxes and Tax Returns.



          (a) Except as set forth on Schedule B, Part 6.19, as of the Closing Date, each Borrower and
each Subsidiary of each Borrower (and any affiliated, consolidated or combined group of which any
Borrower or any Subsidiary of any Borrower are now or have been members) have timely filed
(inclusive of any permitted extensions) with the appropriate taxing authorities all returns
(including information returns) in respect of Borrower Taxes required to be filed through the date
hereof except where the failure to file any such returns would not reasonably be expected to have a
Material Adverse Effect and will timely file (inclusive of any permitted extensions) any such
returns required to be filed on and after the date hereof except such returns the non-filing of
which would not reasonably be expected to have a Material Adverse Effect. All such returns filed
are complete and accurate in all material respects. Except as specified in Schedule B, Part 6.19,
as of the Closing Date, no Borrower and no Subsidiary of any Borrower, nor any affiliated,
consolidated or combined group of which any Borrower or any Subsidiary of any Borrower are now or
were members, have requested any extension of time within which to file returns (including
information returns) in respect of any Borrower Taxes.




          (b) As of the Closing Date, all taxes, assessments, fees and other governmental charges
(including any penalties or interest thereon) payable by any Borrower and any Subsidiary of any
Borrower (and any affiliated group of which any Borrower or any Subsidiary of any Borrower is now
or has been a member) in respect of their incomes, franchises, businesses, properties or otherwise
(collectively, “Borrower Taxes”) in respect of periods beginning prior to the date hereof, have
been timely paid, or will be timely paid, or an adequate reserve has been established therefor, as
set forth in Schedule B, Part 6.19 or in the Financial Statements, and no Borrower or Subsidiary of
any Borrower has any liability for Borrower Taxes in excess of the amounts so paid or reserves so
established.




          (c) As of the Closing Date, except as set forth in Schedule B, Part 6.19, no deficiencies for
Borrower Taxes have been claimed, proposed or assessed by any taxing or other Governmental
Authority against any Borrower or any Subsidiary of any Borrower and no Liens for Borrower Taxes
have been filed. Except as set forth in Schedule B, Part 6.19, as of the Closing Date, there are
no pending or, to the best of the knowledge of any Borrower, threatened audits, investigations or
claims for or relating to any liability in respect of Borrower Taxes, and there are no matters
under discussion with any taxing or other Governmental Authority with respect to Borrower Taxes
which are likely to result in a material additional liability for Borrower Taxes. Either the
federal income tax returns of each Borrower have been audited by




71









 







the Internal Revenue Service and such audits have been closed, or the period during which any
assessments may be made by the Internal Revenue Service has expired without waiver or extension,
for all years up to and including the Fiscal Year ended December 31, 2002. Except as set forth in
Schedule B, Part 6.19, as of the Closing Date, no extension of a statute of limitations relating to
Borrower Taxes is in effect with respect to any Borrower or any Subsidiary of any Borrower.




          (d) Except as set forth on Schedule B, Part 6.19, as of the Closing Date, no Borrower and no
Domestic Subsidiary of any Borrower has any obligation under any tax sharing agreement or agreement
with any Subsidiary that is not a Credit Party regarding payments in lieu of Borrower Taxes.




     6.20 Status of Accounts. Each Account of each Borrower included as an Eligible
Account Receivable in the most recently delivered Borrowing Base Certificate is based on an actual
and bona fide sale and delivery of goods or rendition of services to customers, made by such
Borrower in the ordinary course of its businesses; the goods and inventory being sold by any
Borrower and the Accounts created thereby are the exclusive property of such Borrower and are not
and shall not be subject to any Lien whatsoever other than those arising under the Security
Agreements and Permitted Liens and such Borrower’s customers have accepted the goods or services
(with FOB plant shipments deemed to be accepted by the applicable customer), owe and are obligated
to pay the full amounts stated in the invoices according to their terms, without any dispute,
offset, defense, counterclaim or contra except as arising in the ordinary course of business
consistent with past practices.



     6.21 Material Contracts and Restrictions. No Material Contract contains any
restrictions set forth in Section 8.13 and all Material Contracts are in full force and effect, and
other than the filing of the Chapter 11 Cases, no defaults currently exist thereunder. No Material
Contract has been modified, waived or amended in any way which would reasonably be expected to have
a Material Adverse Effect.



     6.22 Affiliate Transactions. Except as set forth on Schedule B, Part 6.22, no
Borrower and no Subsidiary of any Borrower is a party to or bound by any agreement or arrangement
(whether oral or written) to which any Affiliate of any Borrower or Subsidiary of any Borrower is a
party except transactions entered into in the ordinary course of and pursuant to the reasonable
requirements of such Borrower’s or such Subsidiary’s business, as the case may be, and upon fair
and reasonable terms no less favorable to such Borrower or such Subsidiary than could be obtained
in a comparable arm’s-length transaction with an unaffiliated Person.



     6.23 Accuracy and Completeness of Information. All factual information furnished by
or on behalf of any Borrower or any Subsidiary of any Borrower in writing to the Agent, any Lender,
or the Auditors for purposes of or in connection with this Credit Agreement or any of the other
Credit Documents, or any transaction contemplated hereby or thereby is or will be true and accurate
in all material respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such information not misleading
at such time; provided that with respect to projected financial information, the only
representations and warranties made hereby are that such information was prepared based on good
faith estimates and assumptions made by management of Wellman believed to be



72









 







reasonable at the time made and that there are no statements or conclusions in any such
information which are based upon or include information known to the executive officers of Wellman
to be misleading or which fail to take into account material information regarding the matters
reported therein; provided, further, that projections are not to be viewed as facts and that actual
results during the covered period may differ from projected results; and provided, further, that no
Borrower or its Subsidiaries shall be required to disclose information that is subject to
attorney-client privilege.



     6.24 Recording Taxes and Fees. All recording fees and other charges payable in
connection with the filing and recording of the Credit Documents have either been paid in full by
Borrowers or arrangements for the payment of such amounts satisfactory to the Agent shall have been
made.



     6.25 No Adverse Change or Event.



          (a) Since December 31, 2006, no change in the business, assets, Liabilities, financial
condition, results of operations or business prospects of any Borrower or any Subsidiary of any
Borrower has occurred, and no event has occurred or failed to occur, that has had or would
reasonably be expected to have, either alone or in conjunction with all other such changes, events
and failures, a Material Adverse Effect.




          (b) Except as fully reflected in the Financial Statements described in Section 6.6 and the
Indebtedness incurred under this Credit Agreement and Pre-Petition Secured Debt, as of the Closing
Date, (i) there were no liabilities or obligations (excluding current obligations incurred in the
ordinary course of business) with respect to any Borrower or any Subsidiary of any Borrower of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due)
which, either individually or in the aggregate, would reasonably be expected to have Material
Adverse Effect and (ii) neither any Borrower nor any Subsidiary of any Borrower knows of any basis
for the assertion against it or any of its Subsidiaries of any such liability or obligation of any
nature whatsoever that both (A) is not fully disclosed in the Financial Statements delivered
pursuant to Section 6.6 and (B) either individually or in the aggregate, is or would be reasonably
be expected to have a Material Adverse Effect.




     6.26 Perfection Certificates. All material information set forth on the perfection
certificates provided to the Agent by Borrowers on the date hereof is true and correct and does not
omit or fail to state any material fact.



     6.27 Indebtedness. Schedule B, Part 6.27 sets forth a true and complete list of all
Pre-Petition Indebtedness (exclusive of Indebtedness pursuant to this Credit Agreement and
Intercompany Indebtedness among Credit Parties) of each Borrower and each Subsidiary of each
Borrower as of the Closing Date and which is to remain outstanding after giving effect to this
Credit Agreement and the incurrence of Loans hereunder on such date, in each case showing the
aggregate principal amount thereof (and the aggregate amount of any undrawn commitments with
respect thereto) and the name of the respective borrower and any other entity which directly or
indirectly guaranteed such debt.



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     6.28 Insurance. Schedule B, Part 6.28 sets forth a true, complete and correct
description of all insurance maintained by each Borrower and each Subsidiary of each Borrower as of
the Closing Date. All insurance maintained pursuant to the requirements of Section 7.8 by each
Borrower and each Subsidiary of each Borrower is in full force and effect, all premiums which are
due and payable have been duly paid, neither any Borrower nor any of its Subsidiaries has received
notice of violation or cancellation thereof (other than a cancellation which has been replaced by
similar insurance), the Real Property of Borrowers and the Subsidiaries of each of the Borrowers,
and the use, occupancy and operation thereof, comply in all material respects with all requirements
of such policies, and there exists no default under any such policy. Each Borrower and each
Subsidiary of each Borrower has insurance in such amounts and covering such risks and liabilities
as are reasonably prudent.



     6.29 Use of Proceeds; Margin Regulations.



          (a) Loan Proceeds. Upon entry of the Interim Financial Order, all proceeds of Loans
and Letters of Credit shall be used by Borrowers for payment of such transaction costs and expenses
related to the Chapter 11 Cases as permitted hereunder, for capital expenditures permitted
hereunder, for the ongoing working capital needs and for general corporate purposes of Borrowers
and the Credit Parties as and to the extent permitted hereunder, including, without limitation,
repayment in full of all amounts outstanding under the Pre-Petition Credit Agreement, the Approved
Secured Derivative Transaction Liabilities and replacement of letters of credit outstanding under
the Pre-Petition Credit Agreement, payment of professional fees and costs pursuant to Section 331
of the Bankruptcy Code plus amounts payable pursuant to 28 U.S.C. § 1930(a)(6) in accordance with
the Cash Budget, and for other expenditures set forth in the Cash Budget.




          (b) Restrictions on Use of Proceeds. Notwithstanding anything herein to the contrary,
no part of the proceeds of any Loan or Letter of Credit will be used, directly or indirectly:





     (i) (A) to pay any fees or similar amounts to any Person who has proposed or may
propose to purchase assets of or interests in Borrowers or any other Credit Party or who
otherwise has proposed or may propose to invest in Borrowers or any other Credit Party
(including so-called “topping fees,” “exit fees,” and similar amounts), it being understood
that payment of any such amounts from the proceeds of any such asset purchase or investment
shall not be deemed a breach of this Clause (A); (B) to make any distribution under a
Reorganization Plan in any Chapter 11 Case; (C) to finance in any way any adversary action,
suit, arbitration, proceeds, application, motion or other litigation of any type relating to
or in connection with the Pre-Petition Credit Agreement or any of the loan documents or
instruments entered into in connection therewith, including, without limitation, any
challenges to the obligations under the Pre-Petition Credit Agreement or the validity,
perfection, priority or enforceability of any Lien securing such claims or any payment
thereunder; (D) to finance in any way any action, suit, arbitration, proceeding,
application, motion or other litigation of any type adverse to the interests of Agent and
the Lenders or their rights and remedies under this Credit Agreement, the Credit Documents,
the Interim Financing Order or the Final Financing Order; (E) to make any payment of any
claim, action or proceeding, before any court,



74









 






arbitrator or other government body; (F) to pay any liabilities arising on termination
of any Plan, or (G) to reduce, terminate, or otherwise be applied to any Pre-Petition
Indebtedness of Borrowers or any other Credit Party, other than payment of the Obligations
under the Pre-Petition Credit Agreement and the Approved Secured Derivative Transaction
Liabilities; or




     (ii) to purchase or carry any margin stock (as defined in Regulation U of the Board),
directly or indirectly, or to extend credit for the purpose of purchasing or carrying any
such margin stock for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry any margin security or for any other purpose which
might cause any of the loans or extensions of credit under this Credit Agreement to be
considered a “purpose credit” within the meaning of Regulation T, U or X of the Board.



     6.30 Anti-Terrorism Law.



          (a) No Borrower is, and, to the knowledge of each Borrower, none of its Affiliates is, in
violation of any laws relating to terrorism or money laundering (“Anti-Terrorism Laws”), including
Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive
Order”), and the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.




          (b) No Borrower is, and, to the knowledge of each Borrower, no Affiliate or broker or other
agent of any Borrower is, acting or benefiting in any capacity in connection with any Loans
hereunder is any of the following:





     (i) a person that is listed in the annex to, or is otherwise subject to the provisions
of, the Executive Order;




     (ii) a person owned or controlled by, or acting for or on behalf of, any person that is
listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;




     (iii) a person with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;




     (iv) a person that commits, threatens or conspires to commit or supports “terrorism” as
defined in the Executive Order; or




     (v) a person that is named as a “specially designated national and blocked person” on
the most current list published by the U.S. Treasury Department Office of Foreign Assets
Control (“OFAC”) at its official website or any replacement website or other replacement
official publication of such list.



          (c) No Borrower is, and, to the knowledge of each Borrower, no broker or other agent of any
Borrower is, acting in any capacity in connection with any Loans hereunder (i) conducts any
business or engages in making or receiving any contribution of funds, goods or




75









 







services to or for the benefit of any person described in paragraph (b) above, (ii) deals in,
or otherwise engages in any transaction relating to, any property or interests in property blocked
pursuant to the Executive Order, or (iii) engages in or conspires to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.




     6.31 Accounts. As of the Closing Date, except for the Depository Account, the
Investment Account and the Concentration Account and the accounts set forth on Schedule B, Part
6.31, no Borrower and no Domestic Subsidiary of any Borrower maintains or otherwise has any (a)
checking, savings or other accounts at any bank or other financial institution, (b) investment
account, securities account, commodity account or any similar account with any securities
intermediary or commodity intermediary or (c) other account where money is or may be deposited or
maintained with any Person. As of the Closing Date, Schedule B, Part 6.31 sets forth the name of
each financial institution, securities intermediary, commodity intermediary or other Person at
which any account described above is maintained and the purpose of each such account.



     6.32 Reorganization Matters.



          (a) Borrowers shall give, on a timely basis as specified in the Financing Orders, all notices
required to be given to all parties specified in the Financing Orders.




          (b) After the entry of the Interim Financing Order, and pursuant to and to the extent
permitted in the Interim Financing Order, the Obligations will constitute allowed administrative
expense claims in the Chapter 11 Cases having priority over all administrative expense claims and
unsecured claims against Borrowers and each of the other Credit Parties now existing or hereafter
arising, of any kind whatsoever, including, without limitation, all administrative expense claims
of the kind specified in Sections 105, 326, 328, 330, 331, 503(b), 504(a), 506(c), 507(a), 546(c),
726, 1113, 1114 or any other provision of the Bankruptcy Code, as provided under the Section
364(c)(1) of the Bankruptcy Code, subject as to priority only to the Carve-Out Reserve.




          (c) After the entry of the Interim Financing Order and pursuant to, and to the extent provided
in, the Interim Financing Order and the Final Financing Order, the Obligations will be secured by a
valid and perfected first priority Lien on all the Collateral, subject to no prior Liens other than
Permitted Senior Liens and the Carve-Out Reserve and a valid and perfected second priority lien on
the Term Loan Collateral (as defined in the Intercreditor Agreement) junior only to the Lien
securing obligations under the First Lien Term Credit Facility in existence on the Petition Date;
provided, however, that additional filings may be required in the United States Copyright Office
and/or United States Patent and Trademark Office to perfect the Collateral Agent’s Lien on any
Intellectual Property acquired after the date hereof.




          (d) The Interim Financing Order (with respect to the period prior to the Final Financing Order
Date) or the Final Financing Order (with respect to the period on and after Final Financing Order
Date), as the case may be, is in full force and effect and has not been reversed, stayed, vacated,
modified or amended.




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          (e) Notwithstanding the provisions of Section 362 of the Bankruptcy Code, upon the maturity
(whether by acceleration or otherwise) of any of the Obligations, Agent and Lenders shall be
entitled to immediate payment of such Obligations and to enforce the remedies provided for
hereunder, without further application to or order by the Bankruptcy Court, subject to Required
Notice pursuant to Section 9.3.




ARTICLE VII




AFFIRMATIVE COVENANTS




     Until the Facility Termination Date and payment and satisfaction of all Obligations (other
than contingent indemnification obligations not due and payable):



     7.1 Financial Information. Borrowers shall deliver to the Agent (and the Agent shall
distribute to the Lenders) the following information within the following time periods:



          (a) as soon as available and in any event within ninety (90) days (except with respect to
clause (i)(b) of this Section 7.1(a)) after the end of each Fiscal Year of Borrowers (commencing
with the Fiscal Year ended December 31, 2007) (i) audited Financial Statements as of the close of
the Fiscal Year and for the Fiscal Year, together with comparisons to the Financial Statements for
the prior year, accompanied by (a) an opinion of the Auditors which opinion shall be unqualified in
scope and otherwise in form and substance reasonably satisfactory to the Agent (the addition of a
going concern qualification shall not in and of itself cause the opinion to be unsatisfactory), (b)
promptly upon delivery, such Auditors’ “Management Letter” to Borrowers, (c) if such Auditors shall
have obtained from the regular audit of the business of the respective Borrowers, which audit was
conducted by the Auditors in accordance with generally accepted accounting standards, knowledge of
the existence of any Default or Event of Default, they shall disclose in a written statement the
existence of the Default or Event of Default and the nature thereof, it being understood that such
Auditors shall have no liability, directly or indirectly, to anyone for failure to obtain knowledge
of any such Default or Event of Default (provided, no such statement shall be required in the event
the Auditors no longer provide such opinions under applicable accounting or auditing standards),
(ii) a narrative discussion of the consolidated financial condition and results of operations and
the consolidated liquidity and capital resources of Borrowers for such Fiscal Year prepared by
management and (iii) a compliance certificate substantially in the form of Exhibit D, along with a
schedule in form and substance reasonably satisfactory to the Agent of the calculations used in
determining, as of the end of such Fiscal Year, whether Borrowers were in compliance with the
covenants set forth in Section 8.1 of this Credit Agreement for such year. To the extent that
Wellman’s annual report on Form 10-K contains any financial information, declarations, opinions,
statements, reports, discussions and disclosures in form and substance reasonably equivalent to the
foregoing, the Lenders will accept such Form 10-K in lieu of such items;




          (b) [Intentionally Omitted]




          (c) as soon as available and in any event within twenty-five (25) days after the February 2008
fiscal month, and fifteen (15) days after the end of each fiscal month thereafter (i)




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consolidated balance sheets for the Consolidated Entity as at the end of such fiscal month and
consolidated statements of operations and cash flows for such fiscal month and for the Fiscal Year
to date, together with a comparison to the consolidated balance sheets, statements of operations
and statements of cash flows for the same periods in the prior year and for the prior month, all in
reasonable detail and duly certified (subject to year-end audit adjustments) by a Responsible
Officer of Wellman as having been prepared in accordance with GAAP and (ii) a compliance
certificate substantially in the form of Exhibit D along with a schedule in form and substance
reasonably satisfactory to the Agent of the calculations used in determining, as of the end of such
fiscal month, whether Borrowers were in compliance with the covenants set forth in Articles 7 and 8
of this Credit Agreement for such fiscal month;




          (d) promptly following any Borrower’s receipt thereof, copies of all consolidated financial or
other consolidated reports or statements, if any, submitted to any Borrowers or any Subsidiary of
any Borrower by independent public accountants relating to any annual or interim audit of the books
of any Borrower or any Subsidiary of any Borrower;




          (e) a copy of the state and federal income tax returns of each Borrower and each Subsidiary of
each Borrower within five (5) Business Days after they are filed with the appropriate taxing
authorities, if and when requested by any Lender through the Agent;




          (f) (i) within fifteen (15) days after the last day of each fiscal month, (ii) at the Agent’s
request (A) upon the occurrence and during the continuation of a Default or an Event of Default,
(B) if the Agent believes the latest Borrowing Base Certificate is materially inaccurate, or (C)
there has been an Asset Sale involving accounts receivable or inventory, and (iii) within three (3)
Business Days after Wednesday of each week, a borrowing base certificate in the form of Exhibit E
(the “Borrowing Base Certificate”) with all supporting detail as Agent may from time to time
reasonably require, duly completed, detailing each Borrower’s understanding as to which Accounts or
Inventory constitute Eligible Accounts Receivable and Eligible Inventory as of (x) in the case of a
Borrowing Base Certificate delivered pursuant to clause (i) above, the last day of such fiscal
month, (y) in the case of a Borrowing Base Certificate delivered pursuant to clause (ii), such date
as the Agent may specify in such request and (z) in the case of a Borrowing Base Certificate
delivered pursuant to clause (iii) above, Wednesday of such fiscal week, and certified by a
Responsible Officer of Wellman and subject only to monthly adjustments and upon completion of the
audit of physical inventory. In addition, each Borrowing Base Certificate shall have attached to it
such additional schedules and/or other information as the Agent may reasonably request;




          (g) within fifteen (15) days after the last day of each fiscal month, commencing on the first
full month following the Petition Date, a report in the form of Exhibit K testing EBITDA and
reconciling Capital Expenditures as of the last day of the applicable fiscal month;




          (h) promptly and in any event within five (5) Business Days after becoming aware of the
occurrence of a Default or Event of Default, a certificate of the chief accounting officer or chief
financial officer or Treasurer of Wellman specifying the nature thereof and the proposed response
thereto, each in reasonable detail;




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          (i) promptly upon the earlier of the mailing or filing thereof, copies of all 10-Ks, 10-Qs,
8-Ks, proxy statements, annual reports, quarterly reports, registration statements and any other
filings or other communications made by any Borrower to holders of its publicly traded securities
or the Securities Exchange Commission from time to time pursuant to the Securities Exchange Act of
1934, as amended, or the Securities Act of 1933, as amended; and




          (j) from time to time, such further non-privileged information regarding the Collateral,
business affairs and prospects and financial condition of each Borrower and each Subsidiary of each
Borrower as the Agent may reasonably request.




          (k) on or before:





     (i) the Closing Date, and thereafter by 12:00 Noon (New York City time) of the third
Business Day of each week after the Closing Date, furnish to Agent cash flow projections in
form and substance reasonably acceptable to the Steering Committee showing (A) projected
receipts and disbursements, on a weekly basis for each week of the current and following
thirteen (13) weeks, and (B) such other information reasonably requested by Agent, which
forecasts shall be based on each Borrower’s good faith estimates of business conditions,
known material expenditures and receipts and typical intramonth cash movements;




     (ii) the Closing Date, and thereafter by 12:00 Noon (New York City time) of the third
Business Day of each week after the Closing Date, furnish to Agent a report, in form and
substance reasonably satisfactory to Agent, setting forth a summary of Total Cash and
Restricted Cash and a comparison of the previous week’s cash flow to the most recently
delivered thirteen (13) week cash flow forecast and the initial Cash Budget Report to the
extent applicable, as well as a weekly and monthly comparison to the then effective Cash
Budget (the “Weekly Cash Management Report”); and




     (iii) the fifteenth day of each month, for such month, or at any time upon Agent’s
request, summary accounts payable and accounts receivable aging reports (including the names
and, if reasonably requested from time to time by Agent, addresses of all account debtors,
and with such accounts receivable and accounts payable divided into such time intervals as
Agent may reasonably request) of any Borrower and any Subsidiary of any Borrower;



          (l) upon the occurrence of any material change thereto, or as reasonably requested by Agent
from time to time, furnish to Agent a report in a form reasonably acceptable to Agent detailing, as
applicable (A) the location of any new chief executive office or new principal place of business,
and (B) the location of any storage location for any Collateral;




          (m) On each Business Day, a report in the form of Exhibit J attached hereto to Agent of the
Cash and Cash Equivalents balances held by Borrowers and each Domestic Subsidiary of each Borrower
and the Availability as of the close of business on the immediately preceding Business Day,
including detail of the roll-forward of accounts receivable through the previous Business Day;




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          (n) Chapter 11 Cases. As soon as practicable, copies of all pleadings, motion,
applications, judicial information, financial information and other documents and information filed
by or on behalf of any Credit Party with the Bankruptcy Court or the United States Trustee in any
of the Chapter 11 Cases, and of all reports, summaries or other details of Borrowers’ and the
Credit Parties’ financial condition or performance distributed by or on behalf of any Credit Party
to any official committee appointed in any of the Chapter 11 Cases; and




          (o) Field Examination. Within fourteen (14) days following the Petition Date, an
updated field examination, in form, substance and scope acceptable to the Agent.




     7.2 Certain Collateral. Promptly, upon the request of the Agent from time to time,
each Borrower shall provide to the Agent written statements listing items of Inventory and Accounts
in reasonable detail as reasonably requested by the Agent. Each Borrower shall conduct or cause to
be conducted (in a manner consistent with the requirements for the physical count of the Inventory
in connection with Borrowers’ annual audit conducted by the Auditors) a physical count of the
Inventory at such times and as of such dates as the Agent shall reasonably request and, if
requested by the Agent, a copy of such count shall be promptly supplied to the Agent accompanied by
a report of the value (valued at FIFO) of such Inventory. In addition to, and not in limitation
of, the foregoing, at any time and from time to time the Agent may conduct (or engage third parties
to conduct) such field examinations, appraisals, verifications and evaluations of the Collateral as
the Agent shall deem necessary or appropriate in the exercise of its sole discretion and shall
provide copies of such examinations, appraisals, verifications and evaluations to the Lenders. If
any Inventory of a Borrower is at any time hereafter stored or located at any warehouse not owned
or leased by such Borrower, then such Borrower shall promptly deliver to such warehouseman
notification of the Agent’s Lien on such Inventory and shall take such other steps as the Agent
reasonably requires to perfect its Liens thereon.



     7.3 Corporate Existence and Compliance with Laws. Each Borrower shall, and shall
cause each of its Subsidiaries to, (a) maintain its corporate existence (except that Subsidiaries
of any Borrower may merge with wholly-owned Subsidiaries of such or any other Borrower upon
providing the Agent with prior written notice), (b) maintain in full force and effect all licenses,
bonds, franchises, leases, trademarks and qualifications to do business, and all patents, contracts
and other rights necessary or advisable to the profitable conduct of their businesses except as
would not reasonably be expected to have a Material Adverse Effect, and (c) comply, in all material
respects, with all Requirements of Law applicable to its business, its operations and to the
Collateral.



     7.4 ERISA. Each Borrower shall deliver to the Agent for the benefit of the Lenders,
at the such Borrower’s expense, the following information at the times specified below:



          (a) within ten (10) days after a request by the Agent, copies of each annual report (form 5500
series), including Schedule B thereto, filed with respect to each Title IV Plan;




          (b) within ten (10) days after a request by the Agent, copies of each actuarial report for any
Title IV Plan, Multiemployer Plan or Retiree Welfare Plan and each annual report for any
Multiemployer Plan;




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          (c) within ten (10) days upon the occurrence thereof, notification of any increase in the
benefits of any existing Title IV Plan or the establishment of any new Title IV Plan or the
commencement of contributions to any Title IV Plan to which such Borrower, any Subsidiary of such
Borrower or any ERISA Affiliate was not previously contributing;




          (d) concurrent with (i) the filing of a notice with the PBGC with respect to any Reportable
Event which requires by regulation 30 days advance notice and (ii) the date of the Reportable Event
for any Reportable Event which by regulation post-event notice is required to be filed with the
PBGC, a description of the facts and circumstances which constitute the Reportable Event for which
a filing with the PBGC is required under Section 4043 of ERISA; and




          (e) within three (3) days upon the occurrence thereof, any event or condition referred to in
clauses (i) through (vii) of Section 9.1(g), whether or not such event or condition shall
constitute an Event of Default.




     7.5 Books and Records. Each Borrower agrees to maintain, and to cause each of its
Subsidiaries to maintain, books and records, including those pertaining to the Collateral, in such
detail, form and scope as is consistent with good business practice, and agrees that, upon the
reasonable request of the Agent, such books and records will reflect the Agent’s and Lenders’
respective interests in its Accounts. Each Borrower agrees that the Agent or its agents
(including, without limitation, Alvarez & Marsal or any other financial advisor to the Agent) may
enter upon the premises of such Borrower or any Domestic Subsidiary of such Borrower at any time
and from time to time, for the purposes of (a) conducting field examinations and appraisals and
inspecting, evaluating and verifying the Collateral, (b) inspecting and/or copying (at such
Borrower’s expense) any and all records pertaining thereto and the books and records of the
Borrowers and (c) discussing the business affairs and prospects and financial condition of such or
any other Borrower and each Subsidiary of such or any other Borrower with any officers, employees
and directors of such Borrower or such Subsidiary or with the Auditors. Each Borrower shall give
the Agent ten (10) days prior written notice of any change in the location of any Collateral or in
the location of its chief executive office or place of business from the locations specified in
Schedule B, Part 6.7, and each Borrower shall execute in advance of such change and cause to be
filed and/or delivered to the Agent any financing statements, Collateral Access Agreements or other
documents reasonably required by the Agent, all in form and substance satisfactory to the Agent.
Each Borrower agrees to advise the Agent promptly, in sufficient detail, of any substantial changes
relating to the type, quantity or quality of the Collateral, or any event which singly or in the
aggregate reasonably be expected to have a Material Adverse Effect on the value of the Collateral
or on the Liens granted for the benefit of the Agent, the Lenders and the Issuing Banks thereon.



     7.6 Collateral Records. Each Borrower agrees to execute and promptly deliver, and to
cause each of its Domestic Subsidiaries to execute and promptly deliver, to the Agent, from time to
time, solely for the Agent’s convenience in maintaining a record of the Collateral, such written
statements and schedules as the Agent may reasonably require, including those described in Section
7.1 of this Credit Agreement, designating, identifying or describing the Collateral. The failure
by any Borrower or any Domestic Subsidiary of any Borrower, however, to promptly give



81









 







the Agent such statements or schedules shall not affect, diminish, modify or otherwise limit
the Liens on the Collateral granted pursuant to the Credit Documents.



     7.7 Payment of Obligations. Each Borrower shall, and cause each of its Subsidiaries
to, pay or discharge or otherwise satisfy at maturity or, to the extent permitted hereby, prior to
maturity or before they become delinquent, as the case may be, and cause each of its Subsidiaries
to pay or discharge or otherwise satisfy at or before maturity or before they become delinquent, as
the case may be:



          (a) Post-Petition Indebtedness;




          (b) all Post-Petition taxes, assessments and governmental charges or levies imposed upon any
of them or upon any of their income or profits or any of their respective properties or assets
prior to the date on which penalties attach thereto; and




          (c) all lawful claims prior to the time they become a Lien (other than Permitted Liens and the
Carve-Out Reserve) upon any of their respective properties or assets;



provided, however, that neither Borrowers nor any of the Subsidiaries of each Borrower shall be
required to pay or discharge any such Indebtedness, tax, assessment, charge, levy or claim (A)
while the same is being contested by it in good faith and by appropriate proceedings diligently
pursued so long as the such Borrower or such Subsidiary, as the case may be, shall have set aside
on its books adequate reserves in accordance with GAAP (segregated to the extent required by GAAP)
with respect thereto and title to any material properties or assets is not jeopardized in any
material respect or (B) which are otherwise not required to be paid currently pursuant to the
Bankruptcy Code.




     7.8 Insurance; Casualty Loss. Each Borrower agrees to maintain, and to cause each of
its Subsidiaries to maintain, public liability insurance, third party property damage insurance and
replacement value insurance on the Collateral under such policies of insurance, with such insurance
companies, in such amounts and covering such risks as are at all times reasonably prudent. All
policies covering the Collateral (which for purposes hereof shall include business interruption
insurance) are to name the Agent as an additional insured and the loss payee in case of loss, and
are to contain such other commercially reasonable provisions as the Agent may require to fully
protect the interest of the Lenders in the Collateral and to any payments to be made under such
policies. Each Borrower shall provide written notice to the Agent of the occurrence of any of the
following events within five (5) Business Days after the occurrence of such event: any asset or
property owned or used by such Borrower or any of its Domestic Subsidiaries is (a) damaged or
destroyed, or suffers any other loss; or (b) condemned, confiscated or otherwise taken, in whole or
in part, or the use thereof is otherwise diminished so as to render impracticable or unreasonable
the use of such asset or property for the purposes for which such asset or property was used
immediately prior to such condemnation, confiscation or taking, by exercise of the powers of
condemnation or eminent domain or otherwise, and in either case the amount of the damage,
destruction, loss or diminution in value which is in excess of $2,000,000 as determined by the
Funds Administrator and approved by the Agent (collectively, a “Casualty Loss”). Each Borrower
shall diligently file and prosecute, or cause to be filed and prosecuted, all claims for any award
or payment in connection with a Casualty Loss with respect



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to such Borrower. In the event of a Casualty Loss with respect to any Borrower, such Borrower
shall deliver to Agent a Pro Forma Borrowing Base Certificate setting forth the change in the
Borrowing Base as a result of such Casualty Loss and, promptly upon receipt of any and all
insurance proceeds and payments received by such Borrower or any of its Domestic Subsidiaries on
account of such Casualty Loss, shall pay to the Agent (i) if all of the conditions specified in
Section 5.2 are met at such time, the amount by which the Total Exposure exceeds the Borrowing Base
as reflected in such Pro Forma Borrowing Base Certificate or (ii) if any condition specified in
Section 5.2 is not met at such time, the amount by which the Borrowing Base is reduced as a result
of such Casualty Loss as reflected in such Pro Forma Borrowing Base Certificate. The Agent shall
apply an amount of such proceeds equal to the change in the Borrowing Base as reflected in the Pro
Forma Borrowing Base Certificate to payment of accrued and unpaid interest or outstanding principal
under Loans or any other Obligations then due and payable hereunder. After the occurrence and
during the continuance of an Event of Default, (i) no settlement on account of any such Casualty
Loss with respect to any Borrower shall be made without the consent of the Agent and (ii) the Agent
may participate in any such proceedings and the applicable Borrower shall deliver to the Agent such
documents as may be requested by the Agent to permit such participation and shall consult with the
Agent, its attorneys and agents in the making and prosecution of such claim or claims. Each
Borrower hereby irrevocably authorizes and appoints the Agent its attorney-in-fact, and agrees
that, upon request, it will cause each Subsidiary of such Borrower to authorize and appoint the
Agent its attorney-in-fact, after the occurrence and during the continuance of an Event of Default,
to collect and receive any such award or payment and to file and prosecute such claim or claims,
which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest,
and each Borrower shall, upon demand of the Agent, make, execute and deliver, and cause each of its
Domestic Subsidiary to make, execute and deliver, any and all assignments and other instruments
sufficient for the purpose of assigning any such award or payment to the Agent for the benefit of
the Agent, the Lenders and the Issuing Banks, free and clear of any encumbrances of any kind or
nature whatsoever.



     7.9 Borrower’s Taxes. Each Borrower agrees to pay, when due, and to cause each of its
Subsidiaries to pay when due, all Borrower Taxes lawfully levied or assessed against such Borrower,
any Subsidiary of such Borrower or any of their properties, including any of the Collateral, before
any penalty or interest accrues thereon; provided that, unless such Borrower’s Taxes have become a
tax or ERISA Lien on any of the assets of such Borrower or any such Subsidiary, no such Borrower
Taxes need be paid if the same is being contested, in good faith, by appropriate proceedings
promptly instituted and diligently conducted, and if an adequate reserve or other appropriate
provision shall have been made therefor as required in order to be in conformity with GAAP.



     7.10 Environmental Matters. Each Borrower will comply, and will cause each of its
Subsidiaries to comply, in all material respects with all Environmental Laws applicable to the
ownership or use of its Real Property Assets now or hereafter owned or operated by any Borrower or
any of its Subsidiaries, will pay or cause to be paid all costs and expenses incurred in connection
with such compliance, and will keep or cause to be kept all such Real Property Assets free and
clear of any Environmental Liens (other than Permitted Liens). No Borrower nor any of its
Subsidiaries will generate, use, treat, store, Release or dispose of, or permit the generation,
use, treatment, storage, Release or disposal of Hazardous Materials on, at or from



83









 







any Real Property Assets now or hereafter owned or operated by such Borrower or any of its
Subsidiaries, or transport or permit the transportation of Hazardous Materials to or from any such
Real Property Assets except for Hazardous Materials used or stored at any such Real Property Assets
in compliance with all applicable Environmental Laws and reasonably required in connection with the
business of such Borrower and its Subsidiaries or the operation, use and maintenance of any such
Real Property Assets. If any Borrower or any of its Subsidiaries or any tenant or occupant of any
Real Property Assets owned or operated by any Borrower or any of its Subsidiaries causes or permits
any intentional or unintentional act or omission resulting in the presence or Release of any
Hazardous Material in a quantity or concentration sufficient to require reporting or to trigger an
obligation to undertake investigation, clean-up, response or other corrective action under
applicable Environmental Laws, each Borrower agrees to undertake, and/or to cause any of its
Subsidiaries, tenants or occupants to undertake, at their sole expense, any action required
pursuant to Environmental Laws with respect to such Hazardous Materials except where the failure to
do so would not reasonably be expected to have a Material Adverse Effect; provided that no Borrower
nor any of its Subsidiaries shall be required to undertake any action while the requirement to
undertake such action is being contested in good faith and by proper proceedings so long as it has
maintained adequate reserves with respect to such action to the extent required in accordance with
GAAP.



     7.11 Use of Proceeds. Borrowers shall use the proceeds of the Loans made hereunder
solely for the purposes set forth in Section 6.29. Borrowers shall not use any portion of the
proceeds of any such Loans for the purpose of purchasing or carrying any “margin stock” (as defined
in Regulation U of the Board of Governors of the Federal Reserve System) in any manner which
violates the provisions of Regulation T, U or X of said Board of Governors or for any other purpose
in violation of any applicable statute or regulation, or of the terms and conditions of this Credit
Agreement.



     7.12 Fiscal Year. Each Borrower agrees to maintain its Fiscal Year as a year ending
December 31 unless otherwise required by law, in which case such Borrower will give the Agent at
least thirty (30) days prior written notice thereof.



     7.13 Notification of Certain Events. Each Borrower agrees that it shall promptly
(but, in the case of clause (g), in any event within two (2) Business Days after such Borrower
learns of any such proceeding, change, development or event) notify the Agent (and the Agent shall
promptly notify each Lender) of:



          (a) any Material Contract of such Borrower or any of its Subsidiaries that is terminated or
amended in any material respect or any new Material Contract that is entered into (in which event
such Borrower shall, upon request, provide the Agent with a copy of such Material Contract);




          (b) the entry of any order, judgment or decree in excess of $250,000 against such Borrower or
any of its Subsidiaries or any of their respective properties or assets;




          (c) receipt by such Borrower or any of its Subsidiaries of any notification of a material
violation of any Requirement of Law from any Governmental Authority;





84












 





          (d) the enactment or promulgation of any Requirement of Law or any other actual or prospective
change, development or event which in each case has had or would reasonably be expected to have a
Material Adverse Effect;




          (e) any proceedings being instituted or threatened to be instituted by or against such
Borrower or any of its Subsidiaries, before any Governmental Authority or arbitrator which is
seeking injunctive relief or damages in excess of $250,000;




          (f) any Event of Default or Default;




          (g) the occurrence of any “Event of Default” or “Default” (as each such term is defined in the
applicable credit agreement) under the First Lien Credit Facility or the Second Lien Credit
Facility; and




          (h) any other event which would reasonably be expected to have a Material Adverse Effect.




     7.14 Intellectual Property. Each Borrower shall, and shall cause each of its
Subsidiaries to, do and cause to be done all things necessary to preserve and keep in full force
and effect all of such Person’s Intellectual Property except for such Intellectual Property that is
obsolete, unnecessary to any Credit Party’s business or having no or negligible value.



     7.15 Maintenance of Property. Each Borrower agrees to keep, and to cause each of its
Subsidiaries to keep, all tangible property useful and necessary to its respective businesses in
good working order and condition (ordinary wear and tear and damage by casualty excepted) in
accordance with their past operating practices and not to commit or suffer any waste with respect
to any of its properties; provided, such Borrower and its Subsidiaries may cease to maintain in
good working order and condition any such property which, in the reasonable judgment of such
Borrower, has become uneconomic, obsolete or worn out.



     7.16 Additional Security; Further Assurances.



          (a) Wellman agrees to cause each Domestic Subsidiary (other than GuardWell) to become a party
to the Domestic Subsidiary Guaranty and the Domestic Security Agreement in accordance with the
terms thereof;




          (b) Each Credit Party shall defend the Collateral against all claims and demands of all
Persons at any time claiming the same or any interest therein. Each Credit Party shall, upon the
reasonable request of the Agent, comply with the requirements of all state and federal laws in
order to grant to the Agent, the Lenders and the Issuing Banks valid and perfected first priority
security interests subject to Permitted Senior Liens and the Carve-Out Reserve, with perfection, in
the case of any investment property, being effected by giving the Agent control of such investment
property and by the filing of a UCC financing statement with respect to such investment property.
Each Borrower shall, and shall cause each of its Subsidiaries to, do whatever the Agent may
reasonably request, from time to time, to effect the purposes of this Credit Agreement and the
other Credit Documents, including filing notices of liens, UCC financing statements, fixture
filings and amendments, renewals and continuations thereof; entering into Control Agreements with
respect to any deposit account, investment account,



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securities account, commodity account or any other similar account permitted to be maintained
by any Borrower or any Domestic Subsidiary of any Borrower hereunder; cooperating with the Agent’s
representatives; keeping stock records; to the extent commercially reasonable, obtaining waivers
from landlords and mortgagees and from warehousemen and their landlords and mortgagees; and, paying
claims which might, if unpaid, become a Lien on the Collateral. Furthermore, Borrowers will use
their reasonable best efforts to cause to be delivered to Agent such Mortgage Policies with respect
to the Mortgaged Properties and other related documents as may be reasonably requested by Agent to
assure itself that this Section 7.16 has been complied with as permitted by the Final Financing
Order. Notwithstanding the foregoing, Wellman shall not be required to pledge a percentage of the
Capital Securities of any Foreign Subsidiary to the extent it would cause an adverse tax
consequence to Wellman




          (c) The security interests required to be granted pursuant to this Section 7.16 shall be
granted pursuant to such security documentation (which shall be substantially similar to the
Security Documents already executed and delivered by Wellman) (the “Additional Security Documents”)
reasonably satisfactory in form and substance to Agent and the Majority Lenders and shall
constitute valid and enforceable first priority perfected security interests subject to no other
Liens except Permitted Liens; provided, however, that additional filings may be required in the
United States Copyright Office and/or United States Patent and Trademark Office to perfect the
Collateral Agent’s Lien on any Intellectual Property acquired after the date hereof. The
Additional Security Documents and other instruments related thereto shall be duly recorded or filed
in such manner and in such places and at such times as are required by law to establish, perfect,
preserve and protect the Liens, in favor of Collateral Agent for the benefit of the Lenders,
required to be granted pursuant to the Additional Security Document and, all taxes, duties, levies,
imposes, deductions, assessments, charges, withholdings, fees and other charges payable in
connection therewith shall be paid in full by Wellman. At the time of the execution and delivery
of the Additional Security Documents, Wellman shall cause to be delivered to Agent such agreements,
opinions of counsel and other related documents as may be reasonably requested by Agent or the
Majority Lenders to assure themselves that this Section 7.16 has been complied with.




     7.17 Weekly Management Calls. Wellman shall participate in a Management Call before
the third Business Day of each week; after the one-month period commencing on the Closing Date, if
reasonably acceptable to the Steering Committee, Management Calls may be held once every two weeks.



     7.18 Chief Restructuring Officer. The Borrowers shall sign an engagement letter
subject to Bankruptcy Court approval to retain a Chief Restructuring Officer within ten (10)
Business Days following the Closing Date and shall file an application to retain a Chief
Restructuring Officer within fifteen (15) Business Days following the Closing Date.



ARTICLE VIII




NEGATIVE COVENANTS




     Until the Facility Termination Date and payment and satisfaction of all Obligations (other
than contingent indemnification obligations not due and payable), each Borrower agrees that:



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     8.1 Cash Budget Compliance. Borrowers shall not, without the prior express written
consent of the Agent in its sole discretion in each instance, permit cash expenditures during any
Cash Budget Period to exceed (i) for raw material purchases in the Cash Budget for such period,
105% of the budgeted amount thereof, or (ii) 110% of the total cash expenditures (excluding to the
extent included therein, compensation and reimbursement of fees and expenses to the professionals
of the Borrowers and any official committee retained in the Chapter 11 Cases) set forth in the Cash
Budget for such period.



     8.2 Financial Covenants.



          (a) Minimum EBITDA. On the last day of each calendar month, commencing March 1, 2008,
Borrowers shall not permit EBITDA for the period commencing March 1, 2008, through the last day of
such calendar month, taking such period as one accounting period, to be less than the amount listed
below opposite such month:




	 	 	 	 	 
		 	 
	Applicable Month	 	Minimum EBITDA
	March 2008

	 	$	2,100,000	 
	April 2008

	 	$	5,610,000	 
	May 2008

	 	$	10,370,000	 
	June 2008

	 	$	15,810,000	 
	July 2008

	 	$	19,635,000	 
	August 2008

	 	$	22,865,000	 
	September 2008

	 	$	23,800,000	 
	October 2008

	 	$	27,455,000	 
	November 2008

	 	$	28,560,000	 
	December 2008

	 	$	30,855,000	 
	January 2009

	 	$	31,500,000	 






          (b) Maximum Capital Expenditures. No Borrower shall, or permit any of its Subsidiaries
to, directly or indirectly, make or incur Capital Expenditures in any fiscal month, in the
aggregate for all Borrowers and their respective Subsidiaries combined, in excess of $1,000,000
(the “Basic Allocation”), provided 50% of any unused portion of the Basic Allocation in any month
may be carried over and spent in the following month but not carried over thereafter.




     8.3 No Additional Indebtedness. No Borrower shall, or shall permit any of its
Subsidiaries to, directly or indirectly, incur, create, assume or suffer to exist any Post-Petition
Indebtedness other than:



          (a) Indebtedness arising under this Credit Agreement and the other Credit Documents;




          (b) a Borrower and its Subsidiaries may incur and remain liable with respect to Intercompany
Indebtedness incurred in the ordinary course of business, subject to no Lien held by any Person
other than a Borrower or a Subsidiary Guarantor or a Lien permitted by this Credit Agreement,
provided, however, that all Intercompany Indebtedness owed by Borrowers



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and/or any of the Subsidiary Guarantors, on the one hand, to the Subsidiaries which are not
Credit Parties, on the other, incurred under this clause (b) shall be Subordinated Indebtedness;




          (c) Borrowers and the Subsidiaries of each of the Borrowers may incur and remain liable with
respect to Indebtedness arising from the honoring by a bank or other financial institution of a
check, draft or other similar instrument inadvertently drawn against insufficient funds in the
ordinary course of business;




          (d) Borrowers and their Subsidiaries may incur and remain liable with respect to Indebtedness
incurred (i) in respect of Capitalized Lease Obligations and (ii) to finance the purchase price of
equipment, fixtures and any other similar property or the remodeling or other improvement costs of
any facility of such Borrower or any of its Subsidiaries; provided that the aggregate amount of
Indebtedness incurred under this clause (d) shall not exceed $500,000 at any time outstanding;




          (e) with the prior approval of the Steering Committee in each instance, the Borrowers and
their Subsidiaries may incur and remain liable with respect to any Indebtedness permitted by any
order of the Bankruptcy Court; and




          (f) with the prior approval of the Steering Committee in each instance, the Borrowers and
their Subsidiaries may incur and remain liable with respect to adequate protection authorized by
any order of the Bankruptcy Court pursuant to Section 363(e) of the Bankruptcy Code to the extent
deemed to constitute Post-Petition Indebtedness.



Notwithstanding the foregoing, no Indebtedness under this Sections 8.3 other than clause (a) shall
be permitted to have an administrative expense claim under the Bankruptcy Code senior to or pari
passu with the superpriority administrative expense claims of Agent and the Lenders as set forth
herein and in the Financing Orders.




     8.4 No Liens; Judgments. No Borrower shall, or shall permit any of its Subsidiaries
to, directly or indirectly, mortgage, assign, pledge, transfer, create, incur, assume, suffer to
exist or otherwise permit any Lien (whether as a result of a purchase money or title retention
transaction, or other security interest, judgment or otherwise) to exist on any of its property,
assets, revenues or goods, whether real, personal or mixed, whether now owned or hereafter
acquired, except for the following (the “Permitted Liens”):



          (a) Liens granted by such Borrower or Subsidiary pursuant to any Credit Document;




          (b) Liens listed on Schedule B, Part 8.4 encumbering only the assets described therein and the
proceeds thereof;




          (c) Liens of warehousemen, mechanics, material men, workers, repairmen, common carriers,
landlords and other similar Liens arising by operation of law or otherwise, not waived in
connection herewith, for amounts that are not yet due and payable or which are being diligently
contested in good faith by such Borrower or Subsidiary by appropriate proceedings;




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          (d) attachment and judgment Liens securing outstanding liabilities incurred Post-Petition of
any Borrower or any Subsidiary of any Borrower which individually or in the aggregate for all such
Liens are not in excess of $250,000 for all Borrowers and their respective Subsidiaries combined
(exclusive of (i) any amounts that are duly bonded to the reasonable satisfaction of the Agent or
(ii) any amount adequately covered by insurance as to which the insurance company has not
disclaimed or disputed in writing its obligations for coverage);




          (e) Liens for Borrower’s Taxes not yet due and payable or which are being diligently contested
in good faith by such Borrower by appropriate proceedings, provided that in any such case an
adequate reserve is being maintained by such Borrower for the payment of same;




          (f) Deposits or pledges made by Borrowers and the Subsidiaries of Borrowers in the ordinary
course of business consistent with past practices to secure obligations under workmen’s
compensation, social security or similar laws, or under unemployment insurance;




          (g) Deposits or pledges made by Borrowers and any Subsidiary of any Borrower to secure bids,
tenders, contracts (other than contracts for the payment of money), leases, statutory obligations,
surety and appeal bonds and other obligations of like nature arising in the ordinary course of
business;




          (h) easements, rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in amount and which do not
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of any Borrower or any Subsidiary of any Borrower;




          (i) Liens securing the Pre-Petition Secured Debt pursuant to the Pre-Petition Term Loan
Agreements, the related Loan Documents (as defined therein), and the Financing Orders;




          (j) Purchase Money Liens and Liens securing Capitalized Lease Obligations to the extent
permitted under Section 8.4(d) above;




          (k) Liens arising due to the arrangements set forth in Tax Reduction Agreements on property
subject to such agreements to the extent encumbering only Term Loan Collateral (as defined in the
Intercreditor Agreement);




          (l) with the prior approval of the Steering Committee in each instance, Liens securing any
Indebtedness permitted by any order of the Bankruptcy Court;




          (m) with the prior approval of the Steering Committee in each instance, Liens securing
adequate protection authorized by any order of the Bankruptcy Court pursuant to Section 363(e) of
the Bankruptcy Code to the extent deemed to constitute Post-Petition Indebtedness;




          (n) Permitted Senior Liens; and




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          (o) the Carve-Out Reserve (to the extent constituting a Lien).




          (p) junior liens arising under ERISA as a result of the Borrowers’ or any ERISA Affiliate’s
failure to satisfy funding requirements under Section 302 of ERISA and Section 412 of the Code,
unless such Liens shall have been perfected or any Person shall have obtained relief from the
automatic stay to enforce such Liens.



Permitted Liens, other than Permitted Senior Liens and the Carve-Out Reserve, shall at all times be
junior and subordinate to the security interests and liens under the Security Documents and the
Financing Orders, provided that the Liens securing the Approved Secured Derivative Transaction
Liabilities shall be pari passu with the security interests and liens under the Security Documents
and the Financing Orders.




     8.5 No Sale of Assets. No Borrower shall, or shall permit any of its Subsidiaries to,
directly or indirectly, enter into any Asset Sale other than (a) any disposition of Cash
Equivalents or inventory in the ordinary course of business or the lease or sublease of unused and
vacant real property facilities in the ordinary course of business, (b) any disposition of
equipment in the ordinary course of business to the extent such equipment is obsolete, worn out or
no longer useful in such Borrower’s or such Subsidiary’s business; and (c) other dispositions of
assets, provided that (i) such other dispositions are for fair value; (ii) one hundred percent
(100%) of the consideration (net of disposal costs) for each of such other dispositions is received
by the applicable Borrower or Subsidiary in the form of cash; and (iii) the aggregate consideration
from and after the Closing Date for such other dispositions does not exceed, in the aggregate for
all Borrowers and their respective Subsidiaries combined, $1,000,000 plus the proceeds from any
sale of the Borrowers’ lanolin business.



     8.6 No Corporate Changes. No Credit Party shall, or shall permit any of its
Subsidiaries to, directly or indirectly, merge, consolidate, liquidate, wind up, dissolve or alter
or modify any Credit Party’s Governing Documents, or enter into or engage in any operation or
activity materially different from that currently being conducted by Wellman and its Subsidiaries,
except that subject to the requirements of Section 7.16 or any of the Security Documents, any
Foreign Subsidiary may liquidate, wind up or dissolve, or merge with or consolidate into any Credit
Party or any other Foreign Subsidiary.



     8.7 No Guaranties. No Borrower shall, or shall permit any of its Subsidiaries to,
directly or indirectly, issue or assume any Guaranty with respect to the liabilities of any other
Person, including any Subsidiary or Affiliate of such or any other Borrower, except (a) by the
endorsement of negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business, (b) by the giving of indemnities in connection with the sale of
Inventory or other asset dispositions permitted hereunder, and (c) Indebtedness permitted to be
incurred pursuant to Section 8.2. Notwithstanding the foregoing or any other term or provision of
this Credit Agreement to the contrary, none of the Borrowers or any Domestic Subsidiaries shall
issue or assume any Guaranty with respect to the liabilities of any Foreign Subsidiary.



     8.8 No Restricted Payments or Payments of Pre-Petition Obligations. No Borrower
shall, or shall permit any of its Subsidiaries to, directly or indirectly (i) make any Restricted
Payment except dividends and distributions by Subsidiaries of Wellman paid to Wellman or any



90









 







other Wholly-Owned Subsidiary of Wellman, (ii) pay any management fees (other than to any
Credit Party in the ordinary course of business consistent with past practice), or (iii) make any
interest payment or principal payment on, purchase, defease, redeem, prepay, decrease or otherwise
acquire or retire for value any Pre-Petition Indebtedness other than the Obligations outstanding
under the Pre-Petition Credit Agreement.



     8.9 No Investments. No Borrower shall, or shall permit any of its Subsidiaries to,
directly or indirectly, make any Investment in any Person or consummate or agree to make an
Acquisition other than:



          (a) Cash Equivalents, subject to the requirement of Section 2.4(e) (excess cash prepayment
provision);




          (b) Interest-bearing demand or time deposits (including certificates of deposit) which are
insured by the Federal Deposit Insurance Corporation (“FDIC”) or a similar federal insurance
program, subject to the requirement of Section 2.4(e) (excess cash prepayment provision), however,
provided that such Borrower may, in the ordinary course of its business, maintain in its
disbursement accounts from time to time accounts in excess of then applicable FDIC or other program
insurance limits;




          (c) Guaranties permitted under Section 8.7;




          (d) Investments by Borrowers in any Borrower or Subsidiary Guarantor or the Subsidiary
Guarantors in other Subsidiary Guarantors or any Borrower made in the ordinary course of business;
provided that (i) each such Borrower and Subsidiary Guarantor shall record all intercompany
transactions on its books and records in a manner reasonably satisfactory to Agent, (ii) no Default
or Event of Default exists or would occur after giving effect to such intercompany transaction; and
(iii) if in the form of an intercompany loan, the obligations of each Borrower or Subsidiary
Guarantor under any such intercompany loan shall be subordinated to the Obligations of such
Borrower or Subsidiary Guarantor hereunder in a manner reasonably satisfactory to the Agent;




          (e) Investments existing on the Closing Date and set forth on Schedule B, Part 8.9; and




          (f) Cash and Cash Equivalents in a depository account in the name of the Agent and within the
Agent’s sole dominion and control (the “Investment Account”), in which the Agent shall have at all
times a perfected security interest for the benefit of the Secured Parties (as defined in the
Security Agreement).




     8.10 No Affiliate Transactions. No Borrower shall, or shall permit any of its
Subsidiaries to, directly or indirectly, enter into any transaction with an Affiliate, including
the purchase, sale or exchange of property or the rendering of any service to any other Borrower or
Subsidiary of a Borrower or other Affiliate of a Borrower and whether or not such transaction would
otherwise be permitted under any of the other provisions of the Credit Documents, unless such
transaction is entered into in the ordinary course of and pursuant to the reasonable requirements
of such Borrower’s or such Subsidiary’s business, as the case may be, and upon fair and reasonable
terms no less favorable to such Borrower or such Subsidiary than could be



91









 







obtained in a comparable arms-length transaction with an unaffiliated Person. The following
transactions shall not be considered transactions with Affiliates restricted by this Section 8.9,
provided the same have been approved by order of the Bankruptcy Court: (x) reasonable and customary
fees paid to members of the Board of Directors of Wellman and (y) reasonable and customary fees and
compensation paid to, and indemnity provided on behalf of, officers, directors, consultants or
employees of Wellman or any of its Subsidiaries, as determined by the Board of Directors of Wellman
or any such Subsidiary or the senior management thereof in good faith, including without
limitation, issuances of stock, payment of bonuses and other transactions pursuant to employment or
compensation agreements, stock option agreements, indemnification agreements or other arrangements.
Notwithstanding the foregoing or any other term or provision of this Credit Agreement to the
contrary, none of the assets or property of the Borrowers or any Domestic Subsidiaries shall be
transferred to any Foreign Subsidiary at any time.



     8.11 Limitation on Transactions Under ERISA. No Borrower shall, or shall permit any
of its Subsidiaries to, directly or indirectly:



          (a) amend, or permit any ERISA Affiliate to amend, a Title IV Plan resulting in an increase in
liabilities of such Title IV Plan by reason of increases in benefits, establishment of new
benefits, changing the rate of benefit accrual or changing the rate at which benefits become
non-forfeitable, except as permitted in Section 436 of the Code;




          (b) allow the representation made in Section 6.14 to be untrue at any time; or




          (c) adopt or terminate any Retiree Welfare Plan.




     8.12 Amendments of Governing Documents. Borrowers will not, and will not permit any
of their Subsidiaries to, directly or indirectly, amend or otherwise change (or waive) the terms of
its Governing Documents in any manner adverse to the Agent or the Lenders.



     8.13 Additional Restrictive Covenants. No Borrower shall, or shall permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become
effective (a) any consensual restriction limiting the ability (whether by covenant, event of
default, subordination or otherwise and including any such the effect of which is to require the
providing of equal and ratable security to any other Person in the event a Lien is granted to or
for the benefit of the Agent and the Lenders) to (i) pay dividends or make any other distributions
on shares of its Capital Securities held by any Borrower or any other Subsidiary of any Borrower;
(ii) pay any Liability owed to any Borrower or any other Subsidiary or any Borrower; (iii) make any
loans or advances to other Investments in any Borrower or in any other Subsidiary of any other
Borrower; or (iv) create or permit to exist any Lien upon the assets of any Borrower or any
Subsidiary of any Borrower, other than Liens permitted under Section 8.4; or (b) any contractual
obligation which may restrict or inhibit the Agent’s rights or ability to sell or otherwise dispose
of the Collateral or any part thereof after the occurrence of an Event of Default.



     8.14 New Collateral Locations. No Borrower shall, or shall permit any of its
Subsidiaries to, open or establish any new location unless such Person (a) provides Agent with ten
(10) days prior written notice of any such new location, (b) delivers to Agent, duly executed by
the appropriate Person(s) where applicable, such Collateral Access Agreements and other



92









 







agreements, documents and instruments as Agent shall require to protect Agent’s interests in
the Collateral at such location and (c) delivers to Agent such amendments to Schedule B, Parts 6.1
and 6.7 as are required to make such disclosures complete and accurate.



     8.15 New Accounts. Except with the prior written notice to the Agent, no Borrower
shall, or shall permit any of its Domestic Subsidiaries to, directly or indirectly, open, maintain
or otherwise have any checking, savings or other accounts at any bank or other financial
institution, or any other account where money is or may be deposited or maintained with any Person,
other than the Depository Accounts, the Concentration Account, the Investment Account and the other
accounts set forth on Schedule B, Part 6.31.



     8.16 Limitation on Preferred Stock of Subsidiaries. Except as set forth on Schedule
B, Part 8.16, no Borrower will permit any of its Subsidiaries to issue any Preferred Stock or
permit any Person to own any Preferred Stock of any Subsidiary of a Borrower.



     8.17 Embargoed Person. No Borrower shall cause or permit (a) any of the funds or
properties of the Credit Parties that are used to repay the Loans to constitute property of, or be
beneficially owned directly or indirectly by, any person subject to sanctions or trade restrictions
under United States law (“Embargoed Person”) that is identified on (1) the “List of Specially
Designated Nationals and Blocked Persons” (the “SDN List”) maintained by OFAC and/or on any other
similar list (“Other List”) maintained by OFAC pursuant to any authorizing statute including, but
not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The
Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Order or regulation
promulgated thereunder, with the result that the investment in the Credit Parties (whether directly
or indirectly) is prohibited by law, or the Loans made by the Lenders would be in violation of law,
or (2) the Executive Order, any related enabling legislation or any other similar Executive Orders
(collectively, “Executive Orders”), or (b) any Embargoed Person to have any direct or indirect
interest, of any nature whatsoever in the Credit Parties, with the result that the investment in
the Credit Parties (whether directly or indirectly) is prohibited by law or the Loans are in
violation of law.



     8.18 No Accounting Changes. Wellman shall not make or permit to be made any change in
accounting policies affecting the presentation of Financial Statements or reporting practices from
those employed by it on the Closing Date (an “Accounting Change”), unless (i) such change is in
accordance with GAAP, (ii) such change is disclosed to the Lenders through the Agent or otherwise
and (iii) Wellman provides to the Agent such information as the Agent may reasonably request so
that it may assess the impact of such Accounting Change. If any Accounting Change occurs after the
Closing Date and such change results in, in the sole judgment of the Agent, a meaningful change in
the calculation of any financial covenants or restrictions set forth in this Credit Agreement, then
the parties hereto agree to enter into and diligently pursue negotiations to amend the covenants
employing financial calculations herein so as to equitably reflect such changes, with the desired
result that the criteria for evaluating the financial condition and results of operations of
Borrowers and their Subsidiaries shall be the same after such changes as if such changes had not
been made. Until such amendment is made, Wellman shall continue to deliver the compliance
certificates required by Section 7.1 to the Agent, with such supporting information as may be
requested by the Agent, without giving effect to such Accounting Change.



93









 





     8.19 Insurance Subsidiary. Notwithstanding anything to the contrary in this Credit
Agreement, GuardWell shall not engage in any business other than the business of serving as a
captive insurance company for Wellman and its Subsidiaries and engaging in such necessary
activities related thereto as may be permitted to be engaged in by a Vermont captive insurance
company pursuant to applicable Vermont captive insurance company rules and regulations and no
Credit Party shall make any Investment in GuardWell except to the extent required by law or as
reasonably permitted by the Agent.



     8.20 Anti-Terrorism Law; Anti-Money Laundering. No Borrower shall directly or
indirectly (a) (i) knowingly conduct any business or engage in making or receiving any contribution
of funds, goods or services to or for the benefit of any person described in Section 6.30(b), (ii)
knowingly deal in, or otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order or any other Anti-Terrorism Law, or (iii)
knowingly engage in or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law (and each Borrower shall deliver to the Lenders any certification or other
evidence requested from time to time by any Lender in its reasonable discretion, confirming such
Borrower’s compliance with this Section 8.20) or (b) cause or permit any of the funds of any
Borrower or any Credit Party that are used to repay the Loan to be derived from any unlawful
activity with the result that the making of the Loans would be in violation of law.



     8.21 Returned Goods Under Section 546(h). No Credit Party shall enter into any
agreement other than in the ordinary course of business to return any of its Inventory to any of
its creditors for offset against any Pre-Petition Indebtedness, Pre-Petition trade payables or
other Pre-Petition claims under Section 546(h) of the Bankruptcy Code if, after giving effect
thereto, the aggregate amount of Pre-Petition Indebtedness, Pre-Petition trade receivables and
other Pre-Petition claims subject to all such offsets since the Petition Date would exceed
$100,000.



     8.22 Chapter 11 Claims. No Credit Party shall incur, create, assume, suffer to exist
or permit any other superpriority administrative claim which is pari passu with or senior to the
superpriority administrative claims of Agent and Lenders against Borrowers and the other Credit
Parties.



     8.23 Financial Advisor. Borrowers shall not fail to have engaged at all times a
financial advisor to assist Borrowers with the Wellman Sale, which advisor may be Lazard or such
other financial advisor retained by the Borrowers whose identity and retention agreement are
satisfactory to the Agent in all respects.



     8.24 Chief Restructuring Officer. Borrowers shall not fail to engage at all times a
Chief Restructuring Officer, employed pursuant to the requirements of Section 7.18, unless
otherwise approved by the Steering Committee.



ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES





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     9.1 Events of Default. The occurrence of any of the following events shall constitute
an Event of Default hereunder:



          (a) failure of Borrowers to pay when due, whether at stated maturity, by acceleration or
otherwise, principal of any Loan or reimbursement obligation with respect to any Letter of Credit
or within three (3) Business Days of the date when due, any Interest, Fees or other Obligations.




          (b) failure of any Borrower or any Subsidiary of any Borrower to perform, comply with or
observe any term, covenant or agreement applicable to it contained in Section 2.4(b)(iii) or in
Article 7 (excluding Sections 7.1(f), 7.3 (other than as to the existence of any Credit Party),
7.9, 7.10, 7.14 and 7.15) or Article 8;




          (c) (i) any representation or warranty made by any Borrower, any Subsidiary of any Borrower or
any other Credit Party under this Credit Agreement or under any other Credit Document shall prove
to have been incorrect or misleading in any material respect when made or deemed made;





     (ii) any Borrower or any Subsidiary of any Borrower or any other Credit Party shall fail
to comply with any covenant contained in this Credit Agreement (other than under a provision
covered by Sections 9.1(a) or (b) above) or the other Credit Documents, which failure to
comply is not cured within ten (3) Business Days of its occurrence; or




     (iii) failure of Borrowers to deliver the information required under Section 7.1(f) and
such failure is not cured within one (1) Business Day of its occurrence.



          (d) (i) the direct or indirect acquisition by a Person or group of Persons of any Credit Party
other than pursuant to an Asset Sale permitted under Section 8.5(b) or (ii) the occurrence of a
Change of Control;




          (e) Borrowers or any of their Subsidiaries (i) shall default in the payment when due (after
giving effect to any applicable grace period), whether at stated maturity or otherwise, of
principal or interest in respect of Post-Petition Indebtedness having an aggregate principal amount
of $250,000 or more; or (ii) shall fail to perform or observe any other condition or covenant, or
any other event shall occur or condition exist, under any agreement or instrument relating to any
such Post-Petition Indebtedness having an aggregate principal amount of $250,000, if the effect of
any such failure, event or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause (determined without regard to
whether any notice of acceleration or similar notice is required), such Indebtedness to be declared
to be due and payable prior to its stated maturity, or cash collateral in respect thereof to be
demanded;




          (f) any covenant, agreement or obligation of any party contained in or evidenced by any of the
Credit Documents shall cease to be enforceable in accordance with its terms, or any party (other
than the Agent or the Lenders, in its capacity as such, and not in its capacity as an Issuing Bank)
to any Credit Document shall deny or disaffirm its obligations



95









 






under any of the Credit Documents, or any Credit Document shall be cancelled, terminated,
revoked or rescinded without the express prior written consent of the Agent, or any action or
proceeding shall have been commenced by any Person (other than the Agent or a Lender, in its
capacity as such, and not in its capacity as an Issuing Bank) seeking to cancel, revoke, rescind or
disaffirm the obligations of any party to any Credit Document, or any court or other Governmental
Authority shall issue a judgment, order, decree or ruling to the effect that any of the obligations
of any party to any Credit Document are illegal, invalid or unenforceable;




          (g) (i) any Termination Event shall occur with respect to any Title IV Plan of any Borrower,
any Subsidiary of any Borrower or any ERISA Affiliate, (ii) any Accumulated Funding Deficiency,
whether or not waived, shall exist with respect to any Title IV Plan, (iii) any Borrower or any
Subsidiary of any Borrower shall engage in any Prohibited Transaction involving any such Title IV
Plan, (iv) any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate shall be in
“default” (as defined in ERISA Section 4219(c)(5)) with respect to payments owing to any
Multiemployer Plan as a result of such Person’s complete or partial withdrawal (as described in
ERISA Section 4203 or 4205) therefrom, (v) any Borrower, any Subsidiary of any Borrower or any
ERISA Affiliate shall fail to pay when due an amount that is payable by it to the PBGC or to any
Title IV Plan under Title IV of ERISA, (vi) a proceeding shall be instituted by a fiduciary of any
such Title IV Plan against any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate to
enforce ERISA Section 515 and such proceeding shall not have been dismissed within 30 days
thereafter or (vii) any other event or condition shall occur or exist with respect to any such
Title IV Plan, except that no event or condition referred to in clauses (i) through (vii) shall
constitute an Event of Default if it, together with all other such events or conditions at the time
existing, has not subjected, and in the reasonable determination of the Majority Lenders will not
subject, any Borrower or any Subsidiary of any Borrower to any liability that, alone or in the
aggregate with all such liabilities for all such Persons, exceeds $2,500,000; or




          (h) one or more judgments or decrees shall be entered against any Borrower or any of its
Subsidiaries involving, individually or in the aggregate, a Post-Petition liability (to the extent
not paid or covered by insurance (to the extent coverage has not been denied or repudiated in
writing) of $250,000 or more and all such judgments or decrees shall not have been vacated,
discharged, satisfied, stayed or bonded pending appeal within sixty (60) days from the entry
thereof.




          (i) Bankruptcy Matters.





     (i) The Final Financing Order shall not have (1) been approved by the Bankruptcy Court
by the earlier of (x) the date of expiration of the Interim Financing Order, or (y) 45 days
after the Petition Date or (2) shall not have been entered by the Bankruptcy Court within
two (2) Business Days after such forty-five (45) day period or the date of expiration of the
Interim Financing Order, if earlier; or




     (ii) The entry of an order dismissing any Chapter 11 Case or converting any such case
to one under Chapter 7 of the Bankruptcy Code, or any Credit Party shall file a motion or
other pleading seeking the dismissal or conversion of any of the Chapter 11 Cases under
Section 1112 of the Bankruptcy Code or otherwise; or



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     (iii) The entry of an order appointing a Chapter 11 trustee in any of the Chapter 11
Cases; or




     (iv) The entry of an order (other than the Financing Orders) in any of the Chapter 11
Cases granting any other superpriority administrative claim or Lien equal or superior to
that granted (A) to Agent, on behalf of itself and Lenders (or the filing of an application
by any Credit Party to approve any such superpriority administrative claim) or (B) to the
lenders under the First Lien Credit Facility; or




     (v) The entry of an order in any of the Chapter 11 Cases modifying, staying, vacating,
reversing or amending any of the Financing Orders, without the Agent’s prior express written
consent in its sole discretion in each instance; or




     (vi) The entry of an order in any of the Chapter 11 Cases modifying, staying, vacating,
reversing or amending this Credit Agreement or any other Loan Document, without the Agent’s
prior express written consent in its sole discretion in each instance; or




     (vii) The entry of an order in any of the Chapter 11 Cases appointing an examiner
having enlarged powers under Bankruptcy Code Section 1106(a)(3) and (4) or Person having
similar powers and functions; or




     (viii) The entry of an order in any of the Chapter 11 Cases avoiding or requiring
repayment of any portion of the payments made on account of the Obligations owing under this
Credit Agreement; or




     (ix) The approval by the Bankruptcy Court of any claims arising under Section 506(c) of
the Bankruptcy Code against Agent, any Lender or any of the Collateral from and after the
Final Order; or




     (x) The incurrence by any Credit Party of Indebtedness with an administrative expense
claim under the Bankruptcy Code senior to or pari passu with the superpriority
administrative expense claims of Agent and the Lenders as set forth herein and in the
Financing Order; or




     (xi) Any Credit Party shall file a motion or other pleading in any Chapter 11 Case to:
(1) obtain financing from any Person other than Agent and Lenders under Section 364(d) of
the Bankruptcy Code; (2) obtain financing from any Person other than Agent and Lenders under
Section 364(c) of the Bankruptcy Code; or (3) grant any Lien upon or affecting any
Collateral other than Liens expressly permitted by Section 8.4; or




     (xii) The entry of an order by the Bankruptcy Court in any of the Chapter 11 Cases
granting relief from or modifying the automatic stay of Section 362 of the Bankruptcy Code
(1) as to any creditor (other than Agent and Lenders) with respect to any claim in an amount
equal to or greater than $250,000 (other than the lifting of the automatic stay solely for
the purpose of liquidating a claim in another forum or to proceed against insurance), or (2)
as to any creditor (other than Agent and Lenders) with respect to any claim with respect to
any Lien of, or the granting of any Lien on any



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Collateral to, any state or local environmental or regulatory agency or authority that
could reasonably be expected to have a Material Adverse Effect, or (3) as to any holder of
any security interest (other than Agent and Lenders) to permit foreclosure (or granting of a
deed in lieu of foreclosure or the like) on any assets of Borrowers or any Borrower’s
Subsidiaries in excess of $100,000; or




     (xiii) There shall be commenced any suit or action against Agent or any Lender by or on
behalf of any Credit Party, any official committee in any of the Chapter 11 Cases, or any
other party in interest in the Chapter 11 Cases, in each case that (w) asserts a claim in
excess of $250,000, (x) seeks a legal or equitable remedy that would have the effect of
subordinating the claims or Liens of Agent or any Lender under the Credit Documents to any
other claim, (y) would otherwise have a Material Adverse Effect or (z) have a material
adverse effect on the rights and remedies of Agent under any Credit Document including
without limitation, any action which seeks to void, avoid, limit or otherwise adversely
affect any Lien by or in relation to the Credit Documents or any payment made pursuant
thereto, and, if such suit or action is commenced by or on behalf of any Person other than
any Credit Party (including any official committee in any of the Chapter 11 Cases) or any
Subsidiary, officer, or employee of any Credit Party, such suit or action shall not have
been withdrawn or dismissed with prejudice within 60 days after service thereof on Agent or
such Lender, as applicable; or




     (xiv) The failure of any Credit Party to pay when due any interest or fees payable
under the Financing Orders, or to perform any of its material obligations under any of the
Financing Orders, which breach shall have not been cured within two (2) Business Days; or




     (xv) Any Credit Party shall file or seek to prosecute a Reorganization Plan in any of
the Chapter 11 Cases which does not require as a condition to its effective date cash
payments to the Agent and Lenders sufficient to entitle the Credit Parties to a release of
the Collateral under Section 10.10; or




     (xvi) The failure of the Bankruptcy Court to enter an order in form and substance
reasonably satisfactory to the Agent and the Majority Lenders within 90 days after the
Petition Date: (i) approving bidding procedures, (ii) scheduling bidding deadline, auction
date and sale hearing date, and (iii) establishing procedures under Sections 363 and 365 of
the Bankruptcy Code for the Wellman Sale and the assignment and assumption of certain
contracts related thereto; or




     (xvii) The failure of the Bankruptcy Court to enter a sale order or confirmation order,
in form and substance satisfactory to the Agent and the Majority Lenders, approving the
Wellman Sale by July 31, 2008, or the failure of Borrowers to close the Wellman Sale within
15 days of the later of (i) the date of entry of the sale order or confirmation order
approving the Wellman Sale if no stay of such order is pending, or (ii) if a stay of such
order is pending, the date such order becomes final and nonappealable if, during the time of
such stay, a bond has been issued in form and amount satisfactory to the Agent in its sole
discretion; or



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     (xviii) The entry of an order in any of the Chapter 11 Cases confirming a
Reorganization Plan, which plan does not require as a condition to its becoming effective
cash payments to the Agent and Lenders sufficient to entitle the Credit Parties to a release
of the Collateral under Section 10.10;




     (xix) Upon closing the Wellman Sale and disbursement of the Net Sale Proceeds in
accordance with Section 2.4(f), Borrowers are not entitled to a release of the Collateral
under Section 10.10; or




     (xx) The Consummation Date occurs for a Reorganization Plan and the Borrowers are not
entitled on such date to a release of the Collateral pursuant to Section 10.10.




     (xxi) The expiration of or termination in any of the Chapter 11 Cases of any Borrower’s
or any Subsidiary Guarantor’s exclusive right to file a Reorganization Plan.



     9.2 Acceleration and Cash Collateralization. Upon the occurrence of an Event of
Default and which is continuing, the Agent may, but shall upon the request of the Majority Lenders,
and by delivery of notice to the Funds Administrator from the Agent, take any or all of the
following actions: (a) declare all Obligations to be immediately due and payable without
presentment, demand, protest or any other action or obligation of the Agent or any Lender; and (b)
immediately terminate the Commitments hereunder.



     In addition, upon demand by the Agent or the Majority Lenders upon the occurrence of any Event
of Default and which is continuing, Borrowers shall deposit with the Agent cash or Cash Equivalents
in an amount equal to 105% of the Letter of Credit Obligations. Such deposit shall be held by the
Agent as security for, and to provide for the payment of, Letter of Credit Obligations.



     If at any time after acceleration of the maturity of the Obligations, Borrowers shall pay all
arrears of interest and all payments on account of principal of the Loans which shall have become
due otherwise than by acceleration (with interest on principal and, to the extent permitted by law,
on overdue interest, at the rates specified in Section 4.4) and all Events of Default and Defaults
(other than nonpayment of principal of and accrued interest on the Loans and other Obligations due
and payable solely by virtue of acceleration) shall be remedied or waived, then by written notice
to the Funds Administrator, the Majority Lenders may elect, in the sole discretion of such Majority
Lenders, to rescind and annul the acceleration and its consequences and return any cash collateral;
but such action shall not affect any subsequent Default or Event of Default or impair any right or
remedy consequent thereon. The provisions of the preceding sentence are intended merely to bind
the Lenders to a decision which may be made at the election of the Majority Lenders; they are not
intended to benefit Borrowers and do not give any Borrower the right to require the Lenders to
rescind or annul any acceleration hereunder or to return any cash collateral, even if the
conditions set forth herein are met.



     9.3 Remedies. From and after the occurrence of any Event of Default which is
continuing, notwithstanding the provisions of Section 362 of the Bankruptcy Code, without any
application, motion or notice to, or order from, the Bankruptcy Court (but upon Required



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Notice), the Agent may, in addition to exercising any other rights and remedies now or
hereafter existing under any Credit Document or applicable law: (a) make copies of any and all
documents, instruments, files and records (including the copying of any computer records), and any
receptacles or cabinets containing same, relating to any or all of the Collateral, or the Agent may
use (at the expense of Borrowers) such of the supplies or space of any Borrower at any Borrower’s
place of business or otherwise, as may be necessary to properly administer and control any or all
of the Collateral or the handling of collections and realizations thereon; (b) bring suit, in the
name of a Borrower or the Lenders and generally shall have all other rights respecting any or all
of the Collateral, including the right to: accelerate or extend the time of payment, settle,
compromise, release in whole or in part any amounts owing on any or all of the Collateral and issue
credits in the name of a Borrower or the Lenders; and (c) foreclose the security interests created
pursuant to the Credit Documents by any available judicial procedure, or to take possession of any
or all of the Collateral without judicial process and enter any premises where any Collateral may
be located for the purpose of taking possession of or removing same. To the extent not prohibited
by applicable law, the Agent shall have the right, without notice or advertisement, to sell, lease,
or otherwise dispose of all or any part of the Collateral, whether in its then condition or after
further preparation or processing, in the name of a Borrower or the Lenders, or in the name of such
other party as the Agent may designate, either at public or private sale or at any broker’s board,
in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon
such other terms and conditions as the Agent in its sole discretion may deem advisable, and the
Agent or any other Lender shall have the right to purchase at any such sale. If any Collateral
shall require rebuilding, repairing, maintenance or preparation, the Agent shall have the right, at
its option, to do such of the aforesaid as is necessary, for the purpose of putting such Collateral
in such saleable form as the Agent shall deem appropriate. Each Borrower agrees, at the request of
the Agent, to assemble the Collateral and to make it available to the Agent at the premises of such
Borrower, and to make available to the Agent the premises and facilities of such Borrower for the
purpose of the Agent’s taking possession of, removing or putting the Collateral in saleable form.
However, if notice of intended disposition of any Collateral is required by law, it is agreed that
ten (10) days notice shall constitute reasonable notification. Unless expressly prohibited by the
licensor thereof; if any, the Agent is hereby granted a license to use all Intellectual Property,
computer software programs, data bases, processes and materials used by each Borrower in connection
with its businesses or in connection with the Collateral. The net cash proceeds resulting from the
Agent’s exercise of any of the foregoing rights (after deducting all charges, costs and expenses,
including reasonable attorneys’ fees) shall be applied by the Agent to the payment of the
Obligations, whether due or to become due, in such order as the Agent may elect, and pending such
payment shall be held as security for such payment. Each Borrower shall remain liable to the Agent
and the Lenders for any deficiencies. The enumeration of the foregoing rights is not intended to be
exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all
of which shall be cumulative.



     9.4 Actions in Concert. Anything in this Credit Agreement to the contrary
notwithstanding, each Lender hereby agrees with each other Lender that no Lender shall take any
action to protect or enforce its rights arising out of this Credit Agreement or the other Credit
Documents (including exercising any rights of setoff) without first obtaining the prior written
consent of Agent or Majority Lenders, it being the intent of Lenders that any such action to



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protect or enforce rights under this Credit Agreement and the other Credit Documents shall be
taken in concert and at the direction or with the consent of Agent or Majority Lenders.



     9.5 Distributions. Upon Agent commencing any action under Section 9.3 (unless the
Wellman Sale has occurred in which event Section 2.4(f) shall govern with respect to the proceeds
thereof), and thereafter, all payments and proceeds received by Agent or any Lender shall be
applied as follows:



     First, to the payment, or reserve for payment, of the obligations included in the
Carve-Out Reserve, provided that any funds remaining after satisfying the obligations included in
the Carve-Out Reserve shall be paid to the Agent for application pursuant to this Section 9.5;



     Second, to the payment of any amounts owed to Agent under Sections 10.6 or 11.8 or
under any Credit Document and any expenses incurred by Agent in connection with the maintenance,
preservation or protection of any Collateral;



     Third, to all Lenders pro rata according to the then outstanding amount of Obligations
held by each such Lender other than the stated amount of Letters of Credit;



     Fourth, to cash collateralize 105% of the stated amount of Letters of Credit; and



     Fifth, if any balance remains after the Obligations under the Pre-Petition Credit
Agreement have been paid in full, then to Borrowers or as otherwise required by applicable law or
court order.


All amounts deposited in a reserve in accordance with the first clause of this Section 9.5 shall be
accomplished in a manner and pursuant to documentation in form and substance satisfactory to the
Agent such that the Agent shall have a continuing first perfected security interest and lien in the
funds reserved (subject to Permitted Senior Liens and the Carve-Out Reserve) until the same have
been applied and reapplied as required by this Section 9.5.




ARTICLE X




THE AGENT




     10.1 Appointment of Agent.



          (a) Each Lender hereby designates DBTCo. as its contractual representative to act as herein
specified. Each Lender hereby irrevocably authorizes, and each holder of a Note or an L/C
Participation by the acceptance of such Note or participation shall be deemed irrevocably to
authorize, the Agent to take such action on its behalf under the provisions of this Credit
Agreement, the other Credit Documents and any other instruments and agreements referred to herein
or therein and to exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto. The Agent shall hold all Collateral and all payments
of principal, interest, Fees, charges and Expenses received pursuant to this Credit Agreement or
any other Credit Document for the benefit of the Lenders and the



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Issuing Banks to be distributed as provided herein. The Agent may perform any of its duties
hereunder by or through its agents or employees.




          (b) The provisions of this Article 10 are solely for the benefit of the Agent, the Lenders and
the Issuing Banks, and none of the Credit Parties shall have any rights as a third party
beneficiary of any of the provisions hereof (other than Section 10.9). In performing its functions
and duties under this Credit Agreement, the Agent shall act solely as agent of the Lenders and the
Issuing Banks and does not assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for any Credit Party.




     10.2 Nature of Duties of Agent. The Agent shall have no duties or responsibilities
except those expressly set forth in this Credit Agreement and the other Credit Documents. Neither
the Agent nor any of its officers, directors, employees or agents shall be liable for any action
taken or omitted by it as such hereunder or in connection herewith, unless caused by its or their
gross negligence or willful misconduct. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Credit Agreement or the other
Credit Documents a fiduciary relationship in respect of any Lender or any Issuing Bank, and nothing
in this Credit Agreement or the other Credit Documents, expressed or implied, is intended to or
shall be so construed as to impose upon the Agent any obligations in respect of this Credit
Agreement or the other Credit Documents except as expressly set forth herein or therein.



     10.3 Lack of Reliance on the Agent.



          (a) Independently and without reliance upon the Agent, any Lender or any Issuing Bank, to the
extent it deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial or other condition and affairs of each Credit Party in connection
with the taking or not taking of any action in connection herewith and (ii) its own appraisal of
(A) the creditworthiness of each Credit Party, and (B) the Collateral, and, except as expressly
provided in this Credit Agreement, the Agent shall have no duty or responsibility, either initially
or on a continuing basis, to provide any Lender or any Issuing Bank with any credit or other
information with respect thereto, whether coming into its possession before the initial Credit
Event or at any time or times thereafter.




          (b) The Agent shall not be responsible to any Lender or Issuing Bank for any recitals,
statements, information, representations or warranties herein or in any other Credit Document or
for the execution, effectiveness, genuineness, validity, enforceability, collectibility, priority
or sufficiency of this Credit Agreement or any other Credit Document or the financial or other
condition of any Credit Party. The Agent shall not be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or conditions of this Credit
Agreement or any other Credit Document, or the financial condition of any Credit Party, or the
existence or possible existence of any Default or Event of Default, unless specifically requested
to do so in writing by any Lender or Issuing Bank, as the case may be.




     10.4 Certain Rights of the Agent. The Agent shall have the right to request
instructions from the Lenders at any time. If the Agent shall request instructions from the Lenders
with respect to any act or action (including the failure to act) in connection with this



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Credit Agreement, the Agent shall be entitled to refrain from such act or taking such action
unless and until the Agent shall have received instructions from the Majority Lenders (or, to the
extent required pursuant to Section 11.10, all Lenders), and the Agent shall not incur liability to
any Person by reason of so refraining. Without limiting the foregoing, no Lender or Issuing Bank
shall have any right of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the instructions of the Majority Lenders.



     10.5 Reliance by the Agent. The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex or
facsimile transmission, E-mail, telecopier message, cablegram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person. The Agent may consult with legal counsel (including
counsel for Borrowers with respect to matters concerning Borrowers), independent public accountants
and other experts selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
The Agent may, but shall not be required to, rely on Borrowing Base Certificates and any other
schedules or reports delivered to the Agent in connection herewith in determining the amount of the
Borrowing Base and the then eligibility of Accounts and Inventory of the respective Borrowers.
Reliance thereon by the Agent from time to time shall not be deemed to limit the right of the Agent
to revise advance rates or standards of eligibility as provided in the definition of the term
"Borrowing Base” set forth herein.



     10.6 Indemnification of Agent. To the extent the Agent is not reimbursed and
indemnified by Borrowers, each Lender will reimburse and indemnify the Agent, in proportion to its
respective Commitment, for and against any and all Liabilities, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever (including all Expenses) which may be imposed on,
incurred by or asserted against the Agent, in any way relating to or arising out of this Credit
Agreement or any other Credit Document; provided that no Lender, shall be liable for any portion of
such Liabilities, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent it is determined by a judgment of a court that is binding on the Agent,
final and not subject to review on appeal, to be the result of acts or omissions on the part of the
Agent, constituting gross negligence or willful misconduct.



     10.7 The Agent in its Individual Capacity. With respect to its obligation to lend
under this Credit Agreement, the Loans made by it and the Notes issued to it, and its participation
in Letters of Credit, the Agent shall have the same rights and powers hereunder as any other Lender
or holder of a Note or participation interests and may exercise the same as though it was not
performing the duties specified herein; and the terms “Lenders,” “Majority Lenders,” “holders of
Notes,” or any similar terms shall, unless the context clearly otherwise indicates, include the
Agent in its individual capacity. The Agent may accept deposits from, lend money to, acquire
equity interests in, and generally engage in any kind of banking, trust, financial advisory or
other business with any Borrower or any Affiliate of any Borrower as if it were not performing the
duties specified herein, and may accept fees and other consideration from any Borrower for services
in connection with this Credit Agreement and otherwise without having to account for the same to
the Lenders or any Issuing Bank.



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     10.8 Holders of Notes.



          (a) The Agent may deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof shall have been
filed with the Agent. Any request, authority or consent of any Person who, at the time of making
such request or giving such authority or consent, is the holder of any Note, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefore.




     10.9 Successor Agent.



          (a) The Agent may, upon five (5) Business Days’ notice to the Lenders and the Funds
Administrator, resign at any time (effective upon the appointment of a successor Agent pursuant to
the provisions of this Section 10.9) by giving written notice thereof to the Lenders and the Funds
Administrator. Upon such resignation, the Majority Lenders shall have the right, upon five (5)
days’ notice to the Funds Administrator, to appoint a successor Agent. If no successor Agent (i)
shall have been so appointed by the Majority Lenders and (ii) shall have accepted such appointment,
within thirty (30) days after the retiring Agent’s giving of notice of resignation, then, upon five
(5) days’ notice, the retiring Agent may, on behalf of the Lenders, appoint a successor Agent.
Resignation of the Agent under this Credit Agreement shall also constitute a resignation of the
Agent under the other Credit Documents and appointment of a successor Agent shall constitute an
appointment of the successor Agent under all other Credit Documents.




          (b) Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Credit Agreement. After any retiring Agent’s resignation
hereunder as Agent, the provisions of this Article 10 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Credit Agreement. The retiring
Agent shall assign to the successor Agent all liens granted under the Collateral Documents and
deliver to the successor Agent all pledged Collateral in its possession, and take all such other
actions, at the expense of Borrowers, as may be reasonably requested to effect the succession of
the successor Agent under the Credit Documents.




          (c) In the event of a material breach by the Agent of its duties hereunder, the Agent may be
removed by the Majority Lenders for cause and the provisions of this Section 10.9 shall apply to
the appointment of a successor Agent. Such removal of the Agent shall also operate, if at the time
any such Person is serving as such, as a removal of DBTCo. and each of its Serving Affiliates, if
any, as an Issuing Bank, subject to Section 10.9(d).




          (d) No removal of DBTCo., Deutsche Bank, any Lender or any of their respective Serving
Affiliates pursuant to Section 10.9(c), as an Issuing Bank, shall be effective unless its
Liabilities under each Letter of Credit are secured with cash or by letters of credit in form and
substance, and issued by issuers, satisfactory to DBTCo., Deutsche Bank, such Lender or such
Serving Affiliate.




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     10.10 Collateral Matters.



          (a) Each Lender and each Issuing Bank authorizes and directs the Agent to enter into the
Collateral Documents for the benefit of such Person. Each Lender and each Issuing Bank hereby
agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except
as otherwise set forth in Section 11.10, any action taken by the Majority Lenders in accordance
with the provisions of this Credit Agreement or the Collateral Documents, and the exercise by the
Majority Lenders of the powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the Lenders and all the
Issuing Banks. The Agent is hereby authorized on behalf of all of the Lenders and all the Issuing
Banks, without the necessity of any notice to or further consent from any Lender or any Issuing
Bank from time to time prior to an Event of Default, to take any action with respect to any
Collateral or Collateral Documents which may be necessary to perfect and maintain perfected the
Liens upon the Collateral granted pursuant to the Collateral Documents.




          (b) Each Lender and each Issuing Bank hereby authorize the Agent, at its option and in its
discretion, to release any Lien granted to or held by the Agent upon any Collateral (i) upon
termination of the Commitments and payment and satisfaction in full in cash of all of the
Obligations at any time arising under or in respect of this Credit Agreement or the other Credit
Documents or the transactions contemplated hereby or thereby (or, in the case of outstanding
Letters of Credit, cash collateralization in accordance with Section 3.3(e)), (ii) constituting
property being sold or disposed of (other than pursuant to the Wellman Sale, which shall be subject
to satisfaction of clause (i) or (iii) hereof) upon receipt of the proceeds of such sale by the
Agent, if the Funds Administrator certifies to the Agent that such sale or disposition is made in
compliance with Section 8.5 (and the Agent may rely conclusively on any such certificate, without
further inquiry), or (iii) if approved, authorized or ratified in writing by the Majority Lenders,
unless such release or subordination is required to be approved by all of the Lenders pursuant to
Section 11.10; provided that, in the case of clauses (i) and (iii), such release of Liens shall not
be effective unless and until the Agent shall have received adequate cash collateral in its
reasonable judgment to secure payment of the estimated amount of any known or unliquidated
Obligations that have been asserted by the Agent prior to such release. Upon request by the Agent
at any time, each Lender and each Issuing Bank will confirm in writing the Agent’s authority to
release or subordinate particular types or items of Collateral pursuant to this Section 10.10.




          (c) Upon any sale and transfer of Collateral (including pursuant to the Wellman Sale) which is
expressly permitted pursuant to the terms of this Credit Agreement, or consented to in writing by
the Majority Lenders (or all Lenders, if such release is required to be approved by all of the
Lenders pursuant to Section 11.10), and upon at least five (5) Business Days’ prior written request
by the Funds Administrator, the Agent shall (and is hereby irrevocably authorized by each Lender
and each Issuing Bank, to) execute such documents as may be necessary to evidence the release of
the Liens granted to the Agent for the benefit of the Agent, the Lenders and the Issuing Banks
herein or pursuant hereto upon the Collateral that was sold or transferred; provided that (i) the
Agent shall not be required to execute any such document on terms which, in the Agent’s opinion,
would expose the Agent to or create any Liability or entail any consequence other than the release
of such Liens without recourse or




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warranty and (ii) such release shall not in any manner discharge, affect or impair the
Obligations or any Liens upon (or obligations of any Borrower or any Credit Party in respect of)
all interests retained by any Borrower or any Credit Party, including the proceeds of the sale, all
of which shall continue to constitute part of the Collateral. In the event of any sale or transfer
of Collateral, or any foreclosure with respect to any of the Collateral, the Agent shall be
authorized to deduct all of the Expenses reasonably incurred by the Agent from the proceeds of any
such sale, transfer or foreclosure.




          (d) The Agent shall have no obligation whatsoever to any Lender, any Issuing Bank or any other
Person to assure that the Collateral exists or is owned by any Borrower or any Subsidiary thereof
or is cared for, protected or insured or that the Liens granted to the Agent herein or in any of
the Collateral Documents or pursuant hereto or thereto have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled to any particular priority, or
to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure
or fidelity any of the rights, authorities and powers granted or available to the Agent in this
Section 10.10 or in any of the Collateral Documents, it being understood and agreed that in respect
of the Collateral, or any act, omission or event related thereto, the Agent may act in any manner
it may deem appropriate, in its sole discretion, given the Agent’s own interest in the Collateral
as one of the Lenders and that the Agent shall have no duty or liability whatsoever to the Lenders,
except for its gross negligence or willful misconduct.




     10.11 Actions with Respect to Defaults. In addition to the Agent’s right to take
actions on its own accord as permitted under this Credit Agreement, the Agent shall take such
action with respect to a Default or Event of Default as shall be directed by the Majority Lenders;
provided that until the Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable and in the best interests of the Lenders and the
Issuing Banks; and, further, provided that the Agent shall not be required under any circumstances
to take any action that, in its judgment, (a) is contrary to any provision of the Credit Documents
or applicable law or (b) will expose it to any liability or expense against which it has not been
indemnified to its satisfaction. If any indemnity furnished to Agent for any purpose shall, in the
opinion of Agent, be insufficient or become impaired, Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional indemnity is
furnished.



     10.12 Delivery of Information. The Agent shall not be required to deliver to any
Lender or any Issuing Bank originals or copies of any documents, instruments, notices,
communications or other information received by the Agent from the Funds Administrator, any
Borrower, any Subsidiary of any Borrower, the Majority Lenders, any Lender, any Issuing Bank or any
other Person under or in connection with this Credit Agreement or any other Credit Document except
(a) as specifically provided in this Credit Agreement or any other Credit Document and (b) as
specifically requested from time to time in writing by any Lender, or any Issuing Bank with respect
to a specific document, instrument, notice or other written communication received by and in the
possession of the Agent at the time of receipt of such request and then only in accordance with
such specific request. The Agent shall be permitted to deliver any notices or other information
required hereunder to the Lenders through email or the use of Intralinks or any similar service.



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     10.13 Other Agents. Notwithstanding any provision to the contrary contained elsewhere
in this Credit Agreement or in any other Credit Documents, neither the Syndication Agent nor any
Documentation Agent shall have any duties or responsibilities, nor shall the Syndication Agent nor
any Documentation Agent have or be deemed to have any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read
into this Credit Agreement or any other Credit Documents or otherwise exist against the Syndication
Agent or any Documentation Agent.



ARTICLE XI




MISCELLANEOUS




     11.1 SUBMISSION TO JURISDICTION; WAIVERS. EACH BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:



          (a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NONEXCLUSIVE JURISDICTION OF THE BANKRUPTCY
COURT AND IF THE BANKRUPTCY COURT DOES NOT HAVE (OR ABSTAINS FROM) JURISDICTION, OR THE CHAPTER 11
CASES HAVE BEEN DISMISSED, TO THE NONEXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH
CASE LOCATED IN NEW YORK, NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;




          (b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;




          (c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING
A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO SUCH BORROWER AT THE ADDRESS OF THE FUNDS ADMINISTRATOR SET FORTH IN SECTION 11.5 OR AT
SUCH OTHER ADDRESS OF WHICH THE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;




          (d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF THE AGENT OR ANY
LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST




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ANY BORROWER OR THE FUNDS ADMINISTRATOR, OR THEIR RESPECTIVE PROPERTY IN THE COURTS OF OTHER
JURISDICTIONS.




          (e) WAIVES THE RIGHT TO ASSERT ANY SETOFF, COUNTERCLAIM OR CROSS-CLAIM IN RESPECT OF, AND ALL
STATUTES OF LIMITATIONS WHICH MAY BE RELEVANT TO, SUCH ACTION OR PROCEEDING; AND




          (f) WAIVES DUE DILIGENCE, DEMAND, PRESENTMENT AND PROTEST AND ANY NOTICES THEREOF AS WELL AS
NOTICE OF NONPAYMENT.




     11.2 JURY TRIAL. THE FUNDS ADMINISTRATOR, BORROWERS, THE AGENT, EACH ISSUING BANK AND
THE LENDERS EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT
OF THIS CREDIT AGREEMENT, THE OTHER CREDIT DOCUMENTS OR ANY OTHER AGREEMENTS OR TRANSACTIONS
RELATED HERETO OR THERETO.



     11.3 GOVERNING LAW. THE RIGHTS AND DUTIES OF THE FUNDS ADMINISTRATOR, BORROWERS, THE
AGENT, EACH ISSUING BANK AND THE LENDERS UNDER THIS CREDIT AGREEMENT, THE NOTES (INCLUDING MATTERS
RELATING TO THE MAXIMUM PERMISSIBLE RATE) AND THE OTHER CREDIT DOCUMENTS SHALL PURSUANT TO NEW YORK
GENERAL OBLIGATIONS LAW SECTION 5 1401 BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
EXCEPT AS GOVERNED BY THE BANKRUPTCY CODE.



     11.4 Delays; Partial Exercise of Remedies. No delay or omission of the Agent, any
Issuing Bank or any Lender to exercise any right or remedy hereunder or under any of the other
Credit Documents, whether before or after the happening of any Event of Default, shall impair any
such right or shall operate as a waiver thereof or as a waiver of any such Event of Default. No
single or partial exercise by the Agent, any Issuing Bank or any Lender of any right or remedy
shall preclude any other or further exercise thereof, or preclude any other right or remedy.



     11.5 Notices. Except as otherwise provided herein, all notices and correspondence
hereunder shall be in writing and sent by certified or registered mail, return receipt requested,
or by overnight delivery service, with all charges prepaid, to the following addresses, if to the
Agent, or any of the Lenders, then to Deutsche Bank Trust Company Americas, 60 Wall Street, New
York, New York 10005, Attention: Marguerite Sutton, if to any Issuing Bank, to the address
specified in the applicable L/C Application, and if to the Funds Administrator or any Borrower,
then to the Funds Administrator at 1041 521 Corporate Center Drive, Fort Mill, South Carolina
29715, Attention: Chief Financial Officer and Treasurer and Chief Accounting Officer; or by
facsimile transmission, promptly confirmed in writing sent by first class mail, if to the Agent, or
any of the Lenders, at (212) 797-4655, if to an Issuing Bank, as specified in the applicable L/C
Application, and if to the Funds Administrator or any Borrower at (732) 212-3349 and (803)
835-2003, with a copy to James I. Rubens, Edwards Angell Palmer & Dodge



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LLP, 111 Huntington Avenue, Boston, Massachusetts 02199, facsimile (888) 325-9130 and to
Leonard Klingbaum, Kirkland & Ellis LLP, Citigroup Center, 153 E. 53rd St., New York, NY
10022, facsimile (212) 446-6460, email lklingbaum@kirkland.com. All such notices and
correspondence shall be deemed given (a) if sent by certified or registered mail, three (3)
Business Days after being postmarked, (b) if sent by overnight delivery service, when received at
the above stated addresses or when delivery is refused and (c) if sent by facsimile transmission,
when receipt of such transmission is acknowledged except, in the case of a notice from the Agent to
the Funds Administrator under Section 9.2, such notice shall be deemed given when sent by facsimile
transmission.



     11.6 Assignability.



          (a) Borrowers shall not have the right to assign this Credit Agreement or any interest therein
except with the prior written consent of the Agent.




          (b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its
branch offices or the office of an Affiliate of such Lender except to the extent such transfer
would result in increased costs to Borrowers.




          (c) Each Lender may assign to one or more banks, other financial institutions or investment
funds all or a portion of its rights and obligations under this Credit Agreement, the Notes and the
other Credit Documents; provided that, except in the case of an assignment to a Federal Reserve
Bank (which may be made without condition or restriction), (i) such assignment shall be for a fixed
and not varying percentage of the assigning Lender’s Loans, L/C Participations and Commitment, (ii)
the Agent shall have consented to such assignment (which consents shall not be unreasonably
withheld), (iii) for each such assignment, the parties thereto shall execute and deliver to the
Agent, for its acceptance and recording in the Register (as defined below), an Assignment and
Assumption Agreement, together with any Note or Notes subject to such assignment the assignee or
assignor shall have paid to Agent a processing and recordation fee of $5,000 and (iv) except for
any assignment covering all or the remaining portion of an assigning Lender’s rights and
obligations under this Credit Agreement, the Notes and the other Credit Documents, no such
assignment shall be for less than $1,000,000 of the assigning Lender’s Commitment, unless such
assignment is to a then-current holder of a Note. Upon such execution and delivery of the
Assignment and Assumption Agreement to the Agent, from and after the date specified as the
effective date in the Assignment and Assumption Agreement, (A) 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 Assumption Agreement, such assignee shall have the rights and
obligations of a Lender hereunder and (B) the assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such Assignment and Assumption
Agreement, relinquish its rights (other than any rights it may have pursuant to Section 11.8, which
rights will survive) and be released from its obligations (other than any obligations it may have
pursuant to Section 11.7, which obligations will survive under this Credit Agreement) (and, in the
case of an Assignment and Assumption Agreement covering all or the remaining portion of an
assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall cease to
be a party hereto).




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          (d) By executing and delivering an Assignment and Assumption Agreement, the assignee
thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and
Assumption Agreement, the assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or in
connection with this Credit Agreement or any other Credit Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Notes, or
any other Credit Document; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any Borrower, any other Credit
Parties or any Issuing Bank, the value of the Collateral, or the performance or observance by (A)
any Borrower or any other Credit Parties of any of its obligations under this Credit Agreement or
any other Credit Document, or (B) any Issuing Bank of any of its obligations under any Letter of
Credit; (iii) such assignee confirms that it has received a copy of this Credit Agreement, together
with copies of the Financial Statements referred to in Section 7.1 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 Assumption Agreement; (iv) such assignee will continue, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time, to make its own credit
decisions in taking or not taking action under this Credit Agreement; (v) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to exercise such powers
under this Credit Agreement and the other Credit Documents as are delegated to the Agent by their
terms, together with such powers as are reasonably incidental thereto; and (vi) such assignee
agrees that it will perform in accordance with their terms all of the obligations which by the
terms of this Credit Agreement are required to be performed by it as a Lender.




          (e) The Agent shall maintain at its address referred to in Section 11.5 a copy of each
Assignment and Assumption Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment of, and principal amount
of the Loans owing to, each Lender from time to time (the “Register”). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the Funds
Administrator, Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Credit Agreement. The Register and
copies of each Assignment and Assumption shall be available for inspection by any Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior notice.




          (f) Upon its receipt of an Assignment and Assumption Agreement executed by an assigning
Lender, together with the Note or Notes subject to such assignment, the Agent shall, if such
Assignment and Assumption Agreement has been completed and is in substantially the form of Exhibit
A hereto, (i) accept such Assignment and Assumption Agreement, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the Funds Administrator.
Within five (5) Business Days after its receipt of such notice, Borrowers shall execute and deliver
to the Agent in exchange for the surrendered Note or Notes a new Note or Notes to the order of the
assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and
Assumption Agreement and, if the assigning Lender has retained a Commitment hereunder, a new Note
or Notes to the order of the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall re evidence the




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Indebtedness outstanding under the old Note or Notes and shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated
the Closing Date and shall otherwise be in substantially the form of the Note or Notes subject to
such assignments.




          (g) Each Lender may sell participations (without the consent of the Agent, any Borrower or any
other Lender) to one or more parties in or to all or a portion of its rights and obligations under
this Credit Agreement (including all or a portion of its Commitment, the Loans owing to it and the
Note or Notes held by it); provided that (i) such Lender’s obligations under this Credit Agreement
(including its Commitment to Borrowers hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of this Credit
Agreement, (iv) the Funds Administrator, Borrowers, the Agent, and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Credit Agreement and such Notes and (v) such Lender shall not transfer,
grant, assign or sell any participation under which the participant shall have rights to approve
any amendment or waiver of this Credit Agreement except to the extent such amendment or waiver
would (A) extend the final maturity date or the date for the payments of any installment of fees or
principal or interest of any Loans or Letter of Credit reimbursement obligations in which such
participant is participating; (B) reduce the amount of any installment of principal of the Loans or
the amount of any drawing under any Letter of Credit in which such participant is participating;
(C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate
applicable to the Loans or the amount of any drawing under any Letter of Credit in which such
participant is participating; or (D) except as otherwise expressly provided in this Credit
Agreement, reduce any Fees payable hereunder in which such participant participates. Each Lender
selling or granting a participation, including a participation sold pursuant to Section 2.10, shall
indemnify Borrowers and the Agent for any Taxes and Liabilities that either may sustain as a result
of such Lender’s failure to withhold and pay any Taxes applicable to payments by such Lender to its
participant in respect of such participation.




          (h) Each Lender agrees that, without the prior written consent of Borrowers and the Agent, it
will not make any assignment hereunder in any manner or under any circumstances that would require
registration or qualification of, or filings in respect of, any Loan, Note or other Obligation
under the securities laws of the United States of America or of any jurisdiction.




          (i) In connection with the efforts of any Lender to assign its rights or obligations or to
participate interests, such Lender may disclose any information in its possession regarding any
Borrower, subject to the confidentiality provisions of Section 11.7.




     11.7 Confidentiality. Each Lender agrees that it will use its reasonable best efforts
not to disclose without the prior consent of Borrowers (other than to its employees, auditors,
advisors, Affiliates and counsel, or to another Lender if the disclosing Lender or such disclosing
Lender’s holding or parent company in its sole discretion determines that any such party should
have access to such information) any information with respect to any Borrower or any of its
Subsidiaries, which is furnished pursuant to this Credit Agreement and which is designated by such
Borrower to the Lenders in writing as confidential, provided that any Lender may disclose



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any such information (a) as has become generally available to the public, (b) as may be
required or appropriate in any report, statement or testimony submitted to or examination conducted
by any Governmental Authority having or claiming to have jurisdiction over such Lender, (c) as may
be required or appropriate in response to any summons or subpoena or in connection with any
litigation, (d) in order to comply with any Requirement of Law, (e) to any prospective or actual
transferee or participant in connection with any contemplated transfer or participation of any of
the Notes or Commitments or any interest therein by such Lender, to the extent such transferee has
agreed in writing to be bound by the terms of this Section 11.7, (f) to other financial
institutions with respect to which the respective Lender has a contractual relationship in
accordance with such Lender’s regular banking procedures, provided that each such other financial
institution agrees to be bound by the confidentiality provisions contained in this Section 11.7,
(g) to any nationally recognized rating agency that requires access to information regarding the
respective Lender’s investment portfolio in connection with such rating agency’s issuance of
ratings with respect to such Lender, provided that such Lender advises such rating agency of the
confidential nature of such information, (h) as may be required or appropriate in connection with
protecting, preserving, exercising or enforcing (or planning to exercise or enforce) any of its
rights in, under or related to the Collateral or the Credit Documents and (i) as may be required or
appropriate in consulting with any Person with respect to any of the foregoing matters.



     11.8 Indemnification. (a) Borrowers shall and hereby agree jointly and severally to
indemnify, defend and hold harmless the Agent, each Issuing Bank and each of the Lenders and their
respective directors, officers, agents, employees, counsel, advisors and Affiliates (each, an
"Indemnified Person”) from and against (i) any and all losses, claims, damages, liabilities,
deficiencies, judgments or expenses incurred by any of them (except to the extent that it is
finally judicially determined to have resulted from their own gross negligence, bad faith or
willful misconduct) (including, but not limited to, reasonable attorneys’ fees and expert fees)
(collectively, “Losses”) arising out of or by reason of any litigations, investigations, claims or
proceedings which arise out of or are in any way related to (A) this Credit Agreement or the
transactions contemplated thereby; (B) the issuance of Letters of Credit; (C) the failure of an
Issuing Bank to honor a drawing under any Letter of Credit, as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto government or
Governmental Authority; (D) any actual or proposed use by any Borrower of (1) the proceeds of any
Loans or (2) any Letter of Credit; or (E) the Agent’s, the Lenders’ or any Issuing Bank’s entering
into this Credit Agreement, the other Credit Documents or any other agreements and documents
relating thereto, including amounts paid in-settlement, court costs and the fees and disbursements
of counsel incurred in connection with any such litigation, investigation, claim or proceeding or
any advice rendered in connection with any of the foregoing; and (ii) any Losses that arise
directly or indirectly from or in connection with any Environmental Laws. If and to the extent
that the Obligations of Borrowers hereunder are unenforceable for any reason, Borrowers hereby
jointly and severally agree to make the maximum contribution to the payment and satisfaction of
such Obligations which is permissible under applicable law. Borrowers’ joint and several
Obligations hereunder shall survive any termination of this Credit Agreement and the other Credit
Documents and the payment in full of the Obligations, and are in addition to, and not in
substitution of, any other of its Obligations. In addition, Borrowers shall, upon demand, pay to
the Agent and each Lender all costs and expenses (including the reasonable fees and disbursements
of counsel and other professionals) paid or incurred by the Agent or such Lender



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in (w) enforcing or defending its rights under or in respect of this Credit Agreement, the
other Credit Documents or any other document or instrument now or hereafter executed and delivered
in connection herewith, (x) collecting the Loans, (y) foreclosing or otherwise collecting upon the
Collateral or any part thereof and (z) obtaining any legal, accounting or other advice in
connection with any of the foregoing. Borrowers agree (without duplication) to pay promptly (i)
upon written request by Agent, which shall include reasonable detail, all reasonable costs and
expenses in connection with the review of pleadings and documents related to any Chapter 11 Case
and any subsequent Chapter 7 case, attendance at all hearings and meetings related to any Chapter
11 Case and any subsequent Chapter 7 case, including, in each case without limitation, the
reasonable fees and out-of-pocket expenses of Winston & Strawn LLP, special counsel to Agent, and
any local counsel retained by Agent relative thereto, other attorney costs, independent public
accountants and other outside experts retained by Agent in connection with the administration of
this Credit Agreement and the other Credit Documents and (ii) upon written request by any other
member of the Steering Committee, which shall include reasonable detail, all reasonable costs and
expenses in connection with review of pleadings and documents related to any Chapter 11 Case and
any subsequent Chapter 7 case in their capacity as members of the Steering Committee, including
without limitation, recoverable attorney fees and out-of-pocket expenses in such capacity.



     If any litigation, investigation, claim or proceeding is commenced by a third party as to
which an Indemnified Person proposes to demand indemnification, it shall notify Wellman with
reasonable promptness; provided, however, that any failure by such Indemnified Person to notify
Wellman shall not relieve Borrowers from their obligations hereunder (except to the extent that
Borrowers are materially prejudiced by such failure to promptly notify). Borrowers shall be
entitled to assume the defense of any such action, suit, proceeding or investigation, including the
employment of counsel reasonably satisfactory to the Indemnified Person. The Indemnified Person
shall have the right to counsel of its own choice to represent it, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) Borrowers have failed
promptly to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person
in accordance with the preceding sentence or (ii) the Indemnified Person shall have been advised by
counsel that there exist actual or potential conflicting interests between Borrowers and such
Indemnified Person, including situations in which one or more legal defenses may be available to
such Indemnified Person that are different from or additional to those available to Borrowers;
provided, however, that Borrowers shall not, in connection with any one such action or proceeding
or separate but substantially similar actions or proceedings arising out of the same general
allegations be liable for fees and expenses of more than one separate firm of attorneys at any time
for all Indemnified Persons; and such counsel shall, to the extent consistent with its professional
responsibilities, cooperate with Borrowers and any counsel designated by Borrowers.



     Borrowers further agree that they will not, without the prior written consent of the Agent,
settle or compromise or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or
not the Agent or any other Indemnified Person is an actual or potential party to such claim,
action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional
release of the Agent and each other Indemnified Person from all liability and obligations arising
therefrom. However, Borrowers will not be liable hereunder for



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any amount paid by an Indemnified Person if such Indemnified Person settles or compromises any
claims or actions or consents to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding and such settlement, compromise or consent to entry is entered into
without Wellman’s prior written consent (which consent may not be withheld or delayed unless such
settlement is unreasonable in light of such claims or actions against, and defenses available to,
such Indemnified Person) unless such Indemnified Person has provided notice of such settlement or
compromise and Wellman does not within five (5) Business Days (or such shorter time as is
reasonable under the circumstances) provide the Indemnified Person with evidence that the Credit
Parties have the financial wherewithal to reimburse such Indemnified Person for all potential
amounts payable in connection with the underlying claim or proceeding to which such settlement or
compromise relates. Borrowers further agree that no Indemnified Person shall have any liability to
Wellman or any of its Subsidiaries arising out of or in connection with the proposed transactions
giving rise to or contemplated by this Credit Agreement or any other Credit Document except for
such liability for losses, claims, damages, liabilities or expenses to the extent they have
resulted from the applicable Indemnified Person’s gross negligence, bad faith or willful
misconduct. No Indemnified Person shall be responsible or liable to any Borrower or any other
Person for consequential, special or punitive damages which may be alleged as a result of this
Credit Agreement or the financing contemplated hereby.



     11.9 Entire Agreement; Successors and Assigns. This Credit Agreement and the other
Credit Documents constitute the entire agreement among the Funds Administrator, Borrowers, the
Agent and the Lenders (in their capacities as such and not in their capacity, if any, as an Issuing
Bank), supersedes any prior agreements among them, and shall bind and benefit the Funds
Administrator, Borrowers, the Agent and the Lenders and their respective successors and permitted
assigns.



     11.10 Amendments, Etc. No amendment or waiver of any provision of this Credit
Agreement or any other Credit Document, nor consent to any departure by any Credit Party therefrom,
shall in any event be effective unless the same shall be in writing and signed by the Majority
Lenders (or by the Agent on their behalf), or if the Lenders shall not be parties thereto, by the
parties thereto and consented to by the Majority Lenders (or by the Agent on their behalf), and
each such amendment, waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that, notwithstanding the foregoing:



     (a) no amendment, waiver or consent shall, unless in writing and signed by all of the Lenders,
increase the percentages in clause (a)(i) or (a)(ii) of the definition of the term Borrowing Base.



     (b) no amendment, waiver or consent shall, unless in writing and signed by all the Lenders, do
any of the following: (i) increase the Commitments of the Lenders or subject the Lenders to any
additional obligations (except pursuant to an increase in Commitments or obligations arising under
Section 11.6 hereof); (ii) except as otherwise expressly provided in this Credit Agreement, reduce
the principal of, or interest on, the Notes or any drawing under any Letter of Credit or any fees
hereunder; (iii) postpone any date fixed for any payment in respect of principal of, or interest
on, the Notes or for the reimbursement of any drawing under any Letter of Credit or any fees
hereunder; (iv) change the percentage of the Commitments, or any minimum requirement necessary for
the Lenders or the Majority Lenders to take any action




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hereunder; (v) amend or waive this Section 11.10, or change the definition of Majority
Lenders; (vi) except in connection with the financing, refinancing, sale or other disposition of
any Collateral of Borrowers permitted under this Credit Agreement, release Agent’s Liens on all or
a substantial portion of the Collateral; or (vii) release any Borrower or Subsidiary Guarantor
(other than a Subsidiary Guarantor that is an Immaterial Subsidiary) from its obligations under the
Credit Documents except pursuant to a transaction permitted by this Credit Agreement; and, provided
that no amendment, waiver or consent affecting the rights or duties of the Agent or any Issuing
Bank under, (x) in the case of the Agent, any term or provision of this Credit Agreement and (y) in
the case of any Issuing Bank, (1) Sections 3.3, 3.4, 3.6 and 3.8 of this Credit Agreement, (2) any
Letter of Credit or (3) any L/C Application, shall in any event be effective, unless in writing and
signed by the Agent or such Issuing Bank, as applicable, in addition to the Lenders required
hereinabove to take such action.




     Notwithstanding any of the foregoing to the contrary, the consent of Borrowers shall not be
required for any amendment, modification or waiver of the provisions of Article 10 (other than the
provisions of Section 10.9). In addition, Borrowers and the Lenders hereby authorize the Agent to
modify this Credit Agreement by unilaterally amending or supplementing Annex I from time to time in
the manner requested by Borrowers, the Agent or any Lender in order to reflect any assignments or
transfers of the Loans as provided for hereunder; however, provided that the Agent shall promptly
deliver a copy of any such modification to the Funds Administrator and each Lender.



          (c) If a Defaulting Lender exists or, in connection with any proposed amendment, modification,
waiver or termination requiring the consent of all affected Lenders, the consent of Majority
Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained
(any such Lender whose consent is not obtained as described in this Section 11.10(c) below being
referred to as a “Non-Consenting Lender”), then, in respect of any Defaulting Lender or
Non-Consenting Lender (so long as Agent is not a Non-Consenting Lender), at Funds Administrator’s
request, Agent or a Person reasonably acceptable to Agent shall have the right with Agent’s consent
and in Agent’s sole discretion (but shall have no obligation) to purchase from such Defaulting
Lender or Non-Consenting Lender, as applicable, and such Defaulting Lender or Non-Consenting
Lender, as applicable, agrees that it shall, upon Agent’s request, sell and assign to Agent or such
Person, all of the Commitments of such Defaulting Lender or Non-Consenting Lender, as applicable,
for an amount equal to the principal balance of all Loans held by such Defaulting Lender or
Non-Consenting Lender, as applicable, and all accrued interest and fees with respect thereto
through the date of sale, such purchase and sale to be consummated pursuant to an executed
Assignment and Assumption Agreement.




     11.11 Nonliability of Agent and Lenders. The relationship between Borrowers and the
Lenders and the Agent shall be solely that of borrower and lender. Neither the Agent, any Lender
or any Issuing Bank shall have any fiduciary responsibilities to the Funds Administrator or any
Borrower. Neither the Agent, any Lender or any Issuing Bank undertakes any responsibility to
Borrowers to review or inform Borrowers of any matter in connection with any phase of any
Borrowers’ business or operations.



     11.12 Counterparts. This Credit Agreement may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each of which when so



115









 







executed and delivered shall be an original, but all of which shall together constitute one
and the same instrument.



     11.13 Effectiveness. This Credit Agreement shall become effective on the date on
which all of the parties hereto shall have signed a copy hereof (whether the same or different
copies) and shall have delivered the same to the Agent pursuant to Section 11.5 or, in the case of
the Lenders, shall have given to the Agent written or facsimile notice (actually received) at such
office that the same has been signed and mailed to it and the conditions precedent set forth in
Section 5.1 have been satisfied (or waived in accordance with Section 11.10).



     11.14 Severability. In case any provision in or obligation under this Credit
Agreement or the Notes or the other Credit Documents shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.



     11.15 Headings Descriptive. The headings of the several sections and subsections of
this Credit Agreement, and the Table of Contents, are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this Credit Agreement.



     11.16 Maximum Rate. Notwithstanding anything to the contrary contained elsewhere in
this Credit Agreement or in any other Credit Document, Borrowers, the Agent and the Lenders hereby
agree that all agreements among them under this Credit Agreement and the other Credit Documents,
whether now existing or hereafter arising and whether written or oral, are expressly limited so
that in no contingency or event whatsoever shall the amount paid, or agreed to be paid, to the
Agent or any Lender for the use, forbearance, or detention of the money loaned to Borrowers and
evidenced hereby or thereby or for the performance or payment of any covenant or obligation
contained herein or therein, exceed the Highest Lawful Rate. If due to any circumstance
whatsoever, fulfillment of any provisions of this Credit Agreement or any of the other Credit
Documents at the time performance of such provision shall be due shall exceed the Highest Lawful
Rate, then, automatically, the obligation to be fulfilled shall be modified or reduced to the
extent necessary to limit such interest to the Highest Lawful Rate, and if from any such
circumstance any Lender should ever receive anything of value deemed interest by applicable law
which would exceed the Highest Lawful Rate, such excessive interest shall be applied to the
reduction of the principal amount then outstanding hereunder or on account of any other then
outstanding Obligations and not to the payment of interest, or if such excessive interest exceeds
the principal unpaid balance then outstanding hereunder and such other then outstanding
Obligations, such excess shall be refunded to Borrowers. All sums paid or agreed to be paid to the
Agent or any Lender for the use, forbearance, or detention of the Obligations and other
Indebtedness of Borrowers to the Agent or any Lender shall, to the extent permitted by applicable
law, be amortized, prorated, allocated and spread throughout the full term of such Indebtedness
until payment in full so that the actual rate of interest on account of all such Indebtedness does
not exceed the Highest Lawful Rate throughout the entire term of such Indebtedness. The terms and
provisions of this Section shall control every other provision of this Credit Agreement, the other
Credit Documents and all agreements among Borrowers, the Agent and the Lenders.



116









 





     11.17 Right of Setoff. In addition to and not in limitation of all rights of offset
that any Lender may have under applicable law, each Lender shall, subject to Section 9.4 (and
notwithstanding the provisions of Section 362 of the Bankruptcy Code, without any application,
motion or notice to, or order from, the Bankruptcy Court), upon the occurrence and during the
continuance of any Event of Default subject to giving Required Notice pursuant to Section 9.3 and
whether or not such Lender has made any demand or the Obligations of any Credit Party are matured,
have the right to appropriate and apply to the payment of the Obligations of such Credit Party all
deposits (general or special, time or demand, provisional or final) then or thereafter held by and
other Indebtedness or property then or thereafter owing by such Lender, including any and all
amounts in any Depository Account, Concentration Account or the DBTCo Loan Account. For purposes
of this Section 11.17, the Obligations of a Credit Party to a Lender shall include, as fully as
though such Obligations were the direct Obligations of such Credit Party to such Lender, the
Obligations of such Credit Party in which such Lender has an L/C Participation, in each case, to
the extent of such participation. No Lender may exercise such rights without the prior written
consent of Agent or the Majority Lenders pursuant to Section 9.4. Any amount received as a result
of the exercise of such rights shall be reallocated as set forth in Section 2.10.



     11.18 Defaulting Lender.



          (a) Unless the Agent shall have received notice from a Lender, prior to the time specified in
such Section, that such Lender will not make available to the Agent a Loan required to be made by
it pursuant to Section 2.2, the Agent may assume that such Lender has made such amounts available
to the Agent in accordance with such Sections and the Agent in its sole discretion may, in reliance
upon such assumption, make available to Borrowers or the applicable Issuing Bank a corresponding
amount on behalf of such Lender.




          (b) If any amount referred to in subsection (a) of this Section 11.18 or in Section 2.3 is not
made available to the Agent by a Lender (a “Defaulting Lender”) and the Agent has made such amount
available to Borrowers or an Issuing Bank, the Agent shall be entitled to recover such amount on
demand from such Defaulting Lender together with interest as hereinafter provided. If such
Defaulting Lender does not pay such amount forthwith upon the Agent’s demand therefore, the Agent
shall promptly notify the Funds Administrator and Borrowers shall immediately (but in no event
later than five Business Days after such demand) pay such amount to the Agent together with
interest calculated as hereinafter provided. The Agent shall also be entitled to recover from such
Defaulting Lender and/or Borrowers, as the case may be, (i) interest on such amount in respect of
each day from the date such corresponding amount was made available by the Agent to Borrowers to
the date such amount is recovered by the Agent, at a rate per annum equal to either (A) if paid by
such Defaulting Lender, the overnight Federal Funds Rate or (B) if paid by Borrowers, the then
applicable rate of interest, calculated in accordance with Section 4.1 or Section 4.2, plus
(ii) in each case, an amount equal to any costs (including legal expenses) and losses incurred as a
result of the failure of such Defaulting Lender to provide such amount as provided in this Credit
Agreement. Nothing herein shall be deemed to relieve any Lender from its duty to fulfill its
obligations hereunder or to prejudice any rights which Borrowers or any Issuing Bank, may have
against any Lender as a result of any default by such Lender hereunder, including the right of
Borrowers to seek reimbursement from any Defaulting Lender for any amounts paid by Borrowers under
clause (ii) above on account of such Defaulting Lender’s default.




117









 








          (c) (i) Notwithstanding anything contained herein to the contrary, so long as any Lender is a
Defaulting Lender or has rejected its Commitment, the Agent shall not be obligated to transfer to
such Lender (A) any payments made by Borrowers to the Agent for the benefit of such Lender or (B)
any amounts contemplated by Section 2.3(b)(i); and, such Lender shall not be entitled to the
sharing of any payments pursuant to Section 2.10. Amounts otherwise payable to such Lender under
Section 2.10 shall instead be paid to the Agent.





     (ii) For purposes of voting or consenting to matters with respect to the Credit
Documents and determining Proportionate Share, such Defaulting Lender shall be deemed not to
be a “Lender” and such Lender’s Commitment shall be deemed to be zero (0).




     (iii) This Section 11.18(c) shall remain effective with respect to a Defaulting Lender
until (a) the Obligations under this Credit Agreement shall have been declared or shall have
become immediately due and payable or (b) the Majority Lenders, the Agent and Borrowers
shall have waived such Lender’s default in writing.




     (iv) No Lender’s Commitment shall be increased or otherwise affected, and performance
by the respective Borrowers shall not be excused, by the operation of this Section 11.18(c).
Any payments of principal or interest which would, but for this subsection (c), be paid to
any Lender, shall be paid to the Lenders who shall not be in default under their respective
Commitments and who shall not have rejected any Commitment, for application to the Loans
then due and payable or to the other Obligations then due and payable or to provide cash
collateral to secure Obligations not then due and payable in such manner and order as shall
be determined by the Agent.



     11.19 Rights Cumulative. Each of the rights and remedies of the Agent, each Issuing
Bank and the Lenders under the Credit Documents shall be in addition to all of their other rights
and remedies under the Credit Documents and applicable law, and nothing in the Credit Documents
shall be construed as limiting any such rights or remedies.



     11.20 Third Party Beneficiaries. Each Issuing Bank shall be deemed to be a third
party beneficiary of its rights under this Credit Agreement, provided that, except as otherwise
provided in Section 11.10, such rights may be amended or waived, and any departure therefrom by any
Credit Party consented to, without their respective consents.



     11.21 Joint and Several Liability of Borrowers.



          (a) Each of the Borrowers shall be jointly and severally liable hereunder and under each of
the other Credit Documents with respect to all Obligations, regardless of which of the Borrowers
actually receives the proceeds of the Loans or the benefit of any other extensions of credit
hereunder, or the manner in which the Funds Administrator, Borrowers, the Agent, the Lenders or any
of the Issuing Banks account therefore in their respective books and records. In furtherance and
not in limitation of the foregoing, (i) each Borrower’s obligations and liabilities with respect to
proceeds of Loans which it receives or Letters of Credit issued for its account, and related fees,
costs and expenses, and (ii) each Borrower’s obligations and liabilities arising as a result of the
joint and several liability of Borrowers hereunder with respect to proceeds of



118









 






Loans received by, or Letters of Credit issued for the account of, any of the other Borrowers,
together with the related fees, costs and expenses, shall be separate and distinct obligations,
both of which are primary obligations of such Borrower. Neither the joint and several liability
of, nor the Liens granted to the Agent under the Collateral Documents by, any of the Borrowers
shall be impaired or released by (A) the failure of the Agent, any Lender or any Issuing Bank, any
successors or assigns thereof, or any holder of any Note or any of the Obligations to assert any
claim or demand or to exercise or enforce any right, power or remedy against the Funds
Administrator, any Borrower, any Subsidiary of any Borrower, any other Person, the Collateral or
otherwise; (B) any extension or renewal for any period (whether or not longer than the original
period) or exchange of any of the Obligations or the release or compromise of any obligation of any
nature of any Person with respect thereto; (C) the surrender, release or exchange of all or any
part of any property (including without limitation the Collateral) securing payment, performance
and/or observance of any of the Obligations or the compromise or extension or renewal for any
period (whether or not longer than the original period) of any obligations of any nature of any
Person with respect to any such property; (D) any action or inaction on the part of the Agent, any
Lender or any Issuing Bank, or any other event or condition with respect to any other Borrower,
including any such action or inaction or other event or condition, which might otherwise constitute
a defense available to, or a discharge of, such Borrower, or a guarantor or surety of or for any or
all of the Obligations; and (E) any other act, matter or thing (other than payment or performance
of the Obligations) which would or might, in the absence of this provision, operate to release,
discharge or otherwise prejudicially affect the obligations of such Borrower or any other Borrower.




          (b) Notwithstanding any provision to the contrary contained herein or in any other of the
Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated to be
invalid or unenforceable for any reason (including, without limitation, because of Section 548 of
Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act,
Uniform Fraudulent Conveyance Act or similar statute or common law) then the Obligations of each
Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law
(whether federal or state and including, without limitation, the federal Bankruptcy Code).




          (c) To the extent that any Borrower shall make a payment under this Section 11.21 of all or
any of the Obligations (other than Loans made to that Borrower for which it is primarily liable) (a
“Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or
concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have
paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payment in the
same proportion that such Borrower’s “Allocable Amount” (as defined below) (as determined
immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Borrowers as determined immediately prior to the making of such Guarantor Payment, then, following
indefeasible payment in full in cash of the Obligations and termination of the Commitments, such
Borrower shall be entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their
respective Allocable Amounts in effect immediately prior to such Guarantor Payment. As of any date
of determination, the “Allocable Amount” of any Borrower shall be equal to the maximum amount of
the claim that could then be recovered from such Borrower under this Section 11.21 without
rendering such claim



119









 






voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law. This Section 11.21(c) is intended only to define the relative rights of
Borrowers and nothing set forth in this Section 11.21(c) is intended to or shall impair the
obligations of Borrowers, jointly and severally, to pay any amounts as and when the same shall
become due and payable in accordance with the terms of this Credit Agreement, including Section
11.21(a). Nothing contained in this Section 11.21(c) shall limit the liability of any Borrower to
pay the Loans made directly or indirectly to that Borrower and accrued interest, Fees and Expenses
with respect thereto for which such Borrower shall be primarily liable. The parties hereto
acknowledge that the rights of contribution and indemnification hereunder shall constitute assets
of the Borrower to which such contribution and indemnification is owing. The rights of the
indemnifying Borrowers against other Credit Parties under this Section 11.21(c) shall be
exercisable upon the full and indefeasible payment of the Obligations and the termination of the
Commitments.




          (d) The liability of Borrowers under this Section 11.21 is in addition to and shall be
cumulative with all liabilities of each Borrower to Agent and Lenders under this Credit Agreement
and the other Credit Documents to which such Borrower is a party, without any limitation as to
amount.




     11.22 Appointment and Authorization of Funds Administrator.



          (a) Each Borrower hereby designates, appoints, authorizes and empowers Wellman as its agent to
act as specified in the capacity of Funds Administrator under this Credit Agreement and each of the
other Credit Documents and Wellman hereby acknowledges such designation, authorization and
empowerment, and accepts such appointment. Each Borrower hereby irrevocably authorizes and directs
the Funds Administrator to take such action on its behalf under the respective provisions of this
Credit Agreement and the other Credit Documents, and any other instruments, documents and
agreements referred to herein or therein, and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the Funds Administrator by
the respective terms and provisions hereof and thereof, and such other powers as are reasonably
incidental thereto, including, without limitation, to take the following actions for and on such
Borrower’s behalf:





     (i) to submit on behalf of each Borrower Notices of Borrowing, Notices of Conversion
and Notices of Continuation to Agent in accordance with the provisions of this Credit
Agreement, each such notice to be submitted by the Funds Administrator to Agent as soon as
practicable after its receipt of a request to do so from a Borrower; and




     (ii) to submit on behalf of each Borrower requests for the issuance of Letters of
Credit in accordance with the provisions of this Credit Agreement, each such request for the
issuance of a Letter of Credit to be submitted by the Funds Administrator as soon as
practicable after its receipt of a request to do so from any Borrower.




The Funds Administrator is further authorized and directed by each of the Borrowers to take
all such actions on behalf of such Borrower necessary to exercise the specific powers
granted in clauses (i) and (ii) above and to perform such other duties hereunder and under



120









 







the other Credit Documents, and deliver such documents as delegated to or required of the
Funds Administrator by the terms hereof or thereof. Agent and each Lender may regard any
notice or other communication pursuant to any Credit Documents from the Funds Administrator
as a notice or communication from all Borrowers, and may give any notice or communication
required or permitted to be given to any Borrower or Borrowers hereunder to the Funds
Administrator on behalf of such Borrower or Borrowers. Each Borrower agrees that each
notice, election, representation and warranty, covenant, agreement and undertaking made on
its behalf by the Funds Administrator shall be deemed for all purposes to have been made by
such Borrower and shall be binding upon and enforceable against such Borrower to the same
extent as if the same had been made directly by such Borrower.



          (b) The Funds Administrator may perform any of its duties hereunder or under any of the other
Credit Documents by or through its agents or employees.




     11.23 Parties Including Trustees; Bankruptcy Court Proceedings. This Credit
Agreement, the other Credit Documents, and all Liens and other rights and privileges created hereby
or pursuant to the Security Agreements or any other Loan Document shall be binding upon each Credit
Party, the estate of each Credit Party, and any trustee or successor in interest of any Credit
Party in the Chapter 11 Cases or any subsequent case commenced under Chapter 7 of the Bankruptcy
Code, and shall not be subject to Section 365 of the Bankruptcy Code. This Credit Agreement and
the other Credit Documents shall be binding upon, and inure to the benefit of, the successors of
Agent and each Lender and each of their respective assigns, transferees and endorsees. The Liens
created by this Credit Agreement, the Security Agreements and the other Credit Documents shall be
and remain valid and perfected in the event of the substantive consolidation or conversion of any
Chapter 11 Case or any other bankruptcy case of any Credit Party to a case under Chapter 7 of the
Bankruptcy Code or in the event of dismissal of any Chapter 11 Case or the release of any
Collateral from the jurisdiction of the Bankruptcy Court for any reason, without the necessity that
Agent file financing statements or otherwise perfect its security interests or Liens under
applicable law; provided, however, that additional filings may be required in the United States
Copyright Office and/or United States Patent and Trademark Office to perfect the Collateral Agent’s
Lien on any Intellectual Property acquired after the date hereof.



     11.24 Effect of Financing Orders. To the extent of any inconsistency with this Credit
Agreement or any of the other Credit Documents, the terms and provisions of the Financing Orders
shall govern.



     11.25 Reservation of Rights. Nothing contained in this Credit Agreement shall prevent
the Agent or any Lender from appearing and being heard on any matter in the Chapter 11 Cases.



[Signature Page Follows]




121









 





     IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be executed and
delivered by their proper and duly authorized officers as of the date set forth above.



	 	 	 	 	 
	 	



BORROWERS:





WELLMAN, INC.,

a Delaware corporation, individually, as a Borrower 

and as Funds Administrator

 	 
	 	By:  	/s/ Keith R. Phillips
 	 
	 	Title: Chief Financial Officer 	 
	 	 	 	 
	 
	 	PRINCE, INC., as a Borrower

 	 
	 	By:  	/s/ Keith R. Phillips
 	 
	 	Title: President 	 
	 	 	 	 
	 
	 	WELLMAN OF MISSISSIPPI, INC.,

as a Borrower

 	 
	 	By:  	/s/ Keith R. Phillips
 	 
	 	Title: Vice President 	 
	 	 	 	 
	 
	 	CARPET RECYCLING OF GEORGIA, INC.,

as a Borrower

 	 
	 	By:  	/s/ Keith R. Phillips
 	 
	 	Title: Vice President 	 
	 	 	 	 
	 
	 	ALG, INC.,

as a Borrower

 	 
	 	By:  	/s/ Keith R. Phillips
 	 
	 	Title: President 	 
	 	 	 	 
	 



[Signature Page to Wellman DIP Facility]




	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 








 









 











	 	 	 	 	 
	 	FIBER INDUSTRIES, INC.,

as a Borrower

 	 
	 	By:  	/s/ Keith R. Phillips
 	 
	 	Title: Vice President 	 
	 	 	 	 
	 
	 	PTA RESOURCES, LLC,

as a Borrower

 	 
	 	By:  	/s/ Keith R. Phillips
 	 
	 	Title: President 	 
	 	 	 	 
	 
	 	AGENT:





DEUTSCHE BANK TRUST COMPANY

AMERICAS, as Agent and Collateral Agent

 	 
	 	By:  	/s/ MargueriteSutton
 	 
	 	Title: Director 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	                                              /s/ David J. Bell
 	 
	 	Title: Managing Director 	 
	 	 	 	 
	 



[Signature Page to Wellman DIP Facility]








 









 








	 	 	 	 	 
	 	LENDERS:





DEUTSCHE BANK TRUST COMPANY

AMERICAS

 	 
	 	By:  	/s/ Marguerite Sutton
 	 
	 	Title: Director 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	                                              /s/ David J. Bell
 	 
	 	Title: Managing Director 	 
	 	 	 	 
	 



[Signature Page to Wellman DIP Facility]




	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 




 











 





	 	 	 	 	 
	 	LENDERS:





JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	/s/ Peter A. Dedousis
 	 
	 	Title: Managing Director 	 
	 	 	 	 



[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





GENERAL ELECTRIC CAPITAL
 CORPORATION

 	 
	 	By:  	/s/ James R. Persico
 	 
	 	Title: Duly Authorized Signatory 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





LASALLE BUSINESS CREDIT, LLC

 	 
	 	By:  	 	/s/
Steven J. Chalmers 	 
	 	Title: V.P. 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





WACHOVIA CAPITAL FINANCE CORPORATION (CENTRAL)

 	 
	 	By:  	/s/
Barry Felker 	 
	 	Title: Vice President 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





WELLS FARGO FOOTHILL, LLC

 	 
	 	By:  	/s/ Rohan Damani
 	 
	 	Title: Vice President 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





GMAC COMMERCIAL FINANCE LLC

 	 
	 	By:  	/s/ Thomas Brent	 
	 	Title: Director 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 










 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





MERRILL LYNCH CAPITAL

 	 
	 	By:  	/s/ James R. Persico
 	 
	 	Title: Duly Authorized Signatory 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





PNC BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ John Cunningham
 	 
	 	Title: VP 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





ALLIED IRISH BANK, PLC

 	 
	 	By:  	/s/ Albert D. Perez
 	 
	 	Title: Vice President 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	/s/ Eanna P. Mulkere
 	 
	 	Title: Assistant Vice President 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





WEBSTER BUSINESS CREDIT CORPORATION

 	 
	 	By:  	/s/ Bradford Mitch
 	 
	 	Title: Vice President 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





UPS CAPITAL CORPORATION

 	 
	 	By:  	/s/ John P. Holloway
 	 
	 	Title: Director of Portfolio Management 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDERS:





E*TRADE BANK

 	 
	 	By:  	/s/ Matthew J. Geary
 	 
	 	Title: Executive Vice President 	 
	 	 	 	 


[Signature Page to Wellman DIP Facility]



 









 






	 	 	 	 	 



ANNEX I

TO

CREDIT AGREEMENT

DATED AS OF FEBRUARY 26, 2008

LENDERS; COMMITMENTS; LENDING OFFICES




Lending offices on file with Agent.




COMMITMENTS




	 	 	 	 	 	 	 	 	 
	 	 	COMMITMENT	 	 	 	 
	LENDER	 	(US dollars)	 	 	% COMMITMENT	 
	Deutsche Bank Trust Company Americas
	 	$	18,000,000	 	 	 	8.00	%
	JPMorgan Chase Bank, N.A.
	 	$	18,000,000	 	 	 	8.00	%
	General Electric Capital Corporation
	 	$	18,000,000	 	 	 	8.00	%
	LaSalle Business Credit, LLC
	 	$	18,000,000	 	 	 	8.00	%
	Wachovia Capital Finance Corporation
(Central)
	 	$	18,000,000	 	 	 	8.00	%
	Wells Fargo Foothill, LLC
	 	$	15,000,000	 	 	 	6.67	%
	GMAC Commercial Finance LLC
	 	$	18,000,000	 	 	 	8.00	%
	Merrill Lynch Capital
	 	$	18,000,000	 	 	 	8.00	%
	PNC Bank, National Association
	 	$	18,000,000	 	 	 	8.00	%
	Allied Irish Bank, plc
	 	$	15,000,000	 	 	 	6.67	%
	Webster Business Credit Corporation
	 	$	15,000,000	 	 	 	6.67	%
	UPS Capital Corporation
	 	$	18,000,000	 	 	 	8.00	%
	E*Trade Bank
	 	$	18,000,000	 	 	 	8.00	%




ANNEX I