exv10w2






Exhibit 10.2









	 	 	 
	CIT Bank

2180 South 1300 East 

Suite 250

Salt Lake City, Utah 84106
	 	The CIT Group/Business Credit, Inc.

CIT Capital Securities LLC

505 Fifth Avenue

New York, New York 10017
	 	 	 
	 
	 	January 9, 2009






Senior Credit Facility

Commitment Letter




CONFIDENTIAL




Wellman, Inc.

3303 Port & Harbor Drive

Bay St. Louis, MS 39520

Attention: Messrs. Mark Ruday and



 Keith R. Phillips



Ladies and Gentlemen:



Wellman, Inc., debtor and debtor-in-possession in the Chapter 11 Cases referred to below
(“Parent”), Solus L.P. (“Solus”) and Blackrock Advisors (“Blackrock”, and
together with Solus, individually and collectively, “Sponsor”) have advised The CIT
Group/Business Credit, Inc. (“CITBC” or “Agent”), CIT Bank (“CIT Bank”) and
CIT Capital Securities LLC (“CITCS” or “Arranger” and, together with CITBC and CIT
Bank, the “Commitment Parties”; sometimes referred to herein as “we” or
“us”) that Parent intends to consummate the Plan of Reorganization (the “Plan”)
confirmed in the pending cases of Parent and its subsidiaries filed under Chapter 11 of the United
States Bankruptcy Code (collectively, the “Chapter 11 Cases”) (the “Transaction”).
All references to “Parent”, “Borrowers” or “Parent and its subsidiaries” for any period from and
after consummation of the Transaction shall mean and refer to each such entity after giving effect
to the consummation of the Plan.




1. Commitments.




The Sponsor and Parent have requested that the Commitment Parties commit to provide senior credit
facilities in the aggregate amount of up to $35,000,000 (to be comprised of a revolving credit
facility in an aggregate principal amount of up to $35,000,000) (the “Senior Credit
Facility”). The proceeds of loans



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made under the Senior Credit Facility will be used: (i) to refinance the existing
debtor-in-possession financing of the Borrowers (as defined below) in the Chapter 11 Cases, (ii) to
fund payments required in order to substantially consummate the Plan, (iii) to pay for fees and
expenses associated with the Transaction; and (v) for general corporate purposes.



Based upon and subject to the terms and conditions set forth in this commitment letter (the
“Commitment Letter”), the Summary Terms and Conditions attached hereto as Appendix A (the
“Term Sheet”) and the fee letter of even date herewith (the “Fee Letter”, and
together with the Commitment Letter and the Term Sheet, the “Commitment”), (i) CITBC and CIT Bank
are pleased to advise you of their commitment to provide up to $35,000,000 of the Senior Credit
Facility, (ii) CITBC is pleased to advise you of its commitment to act as the administrative agent
and collateral agent in respect thereof and (iii) CITCS is pleased to advise you of its agreement
to act as the arranger and sole bookrunner for the Senior Credit Facility. CITBC will act as the
sole administrative agent and sole collateral agent and CITCS will act as the sole lead arranger
and sole bookrunner for the Senior Credit Facility. You agree that no other agents or arrangers
will be appointed, and no other titles or compensation (other than as set forth in the Fee Letter)
will be awarded or paid in connection with the Senior Credit Facility unless approved by the
Commitment Parties.



In consideration of the commitments and agreements of the Commitment Parties hereunder, you agree
to pay the nonrefundable fees described in the Term Sheet and the Fee Letter.



2. Conditions.




The Commitment does not set forth all of the terms and conditions of the proposed financing;
rather, it only summarizes the major points of understanding which will be the basis of the final
financing agreements and related documentation (which are collectively referred to herein as the
“Loan Documentation”) which will be drafted by, and will be in form and substance
satisfactory to, the Commitment Parties, Parent and their respective counsel for senior debt
financing transactions of this kind. All terms used in this Commitment Letter and not otherwise
defined herein shall have the meanings ascribed to them in the Term Sheet.



The Commitment is issued by the Commitment Parties based upon the financial and other information
regarding Holdco (as defined below), Borrowers (as defined in the Term Sheet) and their
subsidiaries and the Transaction previously provided to the Commitment Parties. Accordingly, the
Commitment and the structure and terms of the Senior Credit Facility set forth in the Term Sheet
are subject to the fulfillment to the satisfaction of each of the Commitment Parties of the
following conditions (in addition to those set forth in the Term Sheet): (i) there shall not have
occurred after November 30, 2008 any event, development or circumstance that has had or would
reasonably be expected to have a material adverse effect on the business, assets, liabilities
(actual or contingent), operations, condition (financial or otherwise) or prospects of the
Borrowers and their subsidiaries, taken as a whole (a “MAE”), provided that, the filing
and pendency of the Chapter 11 Cases shall not be deemed to have resulted in such MAE for the
purposes hereof; (ii) the Commitment Parties shall not become aware of any information or other
matter (including new or updated financial information or projections) concerning the Borrowers and
their subsidiaries or the Transaction that differs from, or is inconsistent with, the information
previously provided to the Commitment Parties by or on behalf of the Borrowers and their
subsidiaries to the extent that such differences and inconsistencies, taken as a whole, would
result in a MAE; (iii) the Commitment Parties shall have completed and be satisfied with the
results of their legal due diligence investigation of the Borrowers and their subsidiaries, and
shall have completed their tax due diligence investigation of the Borrowers and their subsidiaries,
as a result of which tax due diligence investigation the Commitment Parties shall be reasonably
satisfied as to the Borrowers’ ability to achieve the financial results projected in any
Projections provided to the Commitment Parties by or on behalf of the Borrowers; (iv) the
Commitment Parties shall have determined that there are no competing issuances of debt, securities
or commercial bank facilities of the Parent and its subsidiaries or any affiliate thereof, being
offered, placed



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or arranged at any time prior to the consummation of the Senior Credit Facility, except with the
prior written consent of the Commitment Parties; and (v) there shall not be any pending or
threatened litigation or other proceedings (private or governmental) with respect to any of the
transactions contemplated hereby, other than the filing and the pendency of the Chapter 11 Cases.



3. Syndication.




We reserve the right, prior to or after the execution of the Loan Documentation, to syndicate all
or a portion of the Senior Credit Facility to a group of financial institutions (together with CIT
Bank, the “Lenders”) identified by us in consultation with you. If at any time we choose to
commence our syndication efforts, you agree to reasonably assist us in completing a satisfactory
syndication.



4. Information.




You hereby represent and covenant that (i) all information, other than Projections, which has been
or is hereafter made available to the Commitment Parties by or on behalf of either Sponsor, the
Borrowers, Guarantors, or their representatives in connection with the transactions contemplated
hereby (“Information”) is or, when furnished, will be complete and correct in all material
respects and does not and will not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements contained therein not materially misleading in
light of the circumstances under which such statements are made, and (ii) the Projections that have
been or will be made available to Commitment Parties have been and will be prepared in good faith
based upon assumptions that are reasonable at the time made and at the time made available to the
Commitment Parties. You hereby agree to supplement the Information and the Projections from time
to time and to promptly advise us of all developments materially affecting Sponsor, Borrowers,
Guarantors, any of their respective subsidiaries or affiliates or the transactions contemplated
hereby until the closing date of the Senior Credit Facility so that the representation and warranty
in the preceding sentence is correct on the closing date of the Senior Credit Facility. In
structuring and entering into the Senior Credit Facility, the Commitment Parties will be using and
relying on the Information and the Projections without independent verification thereof.



5. Indemnity and Expenses.



Borrowers and their subsidiaries, jointly and severally, agree (a) to indemnify and hold harmless
each Commitment Party and the Lenders and their respective affiliates and controlling persons and
the respective officers, directors, employees, agents, attorneys, members and successors and
assigns of each of the foregoing (each, an “Indemnified Person”) from and against any and
all losses, claims, damages, liabilities and expenses, joint or several, to which any such
Indemnified Person may become subject arising out of or in connection with this Commitment Letter
(including the Term Sheet), the Fee Letter, the Transaction, the Senior Credit Facility or the
syndication thereof or any related transaction or any claim, litigation, investigation or
proceeding relating to any of the foregoing, regardless of whether any such Indemnified Person is a
party thereto, and to reimburse each such Indemnified Person upon demand for any reasonable legal
or other expenses incurred in connection with investigating or defending any of the foregoing;
provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses,
claims, damages, liabilities or related expenses to the extent they are found in a final,
non-appealable judgment of a court of competent jurisdiction to have resulted from the willful
misconduct or gross negligence of such Indemnified Person or of any of its officers, directors,
employees, or agents, and (b) to reimburse each Indemnified Person from time to time, upon
presentation of a summary statement, for all reasonable out-of-pocket expenses (including but not
limited to expenses of the Commitment Parties’ due diligence investigation, syndication expenses,
travel expenses, appraisal, consulting and auditing fees, and reasonable fees, disbursements and
other charges of counsel to the Commitment Parties (any and all of the foregoing being referred to
herein collectively as “Expenses”)), in each case incurred in connection with the Senior
Credit Facility and the preparation of this Commitment Letter, the Fee Letter, the Loan
Documentation and any security arrangements in connection therewith and the



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administration, amendment, modification or waiver thereof (or any proposed amendment, modification
or waiver thereof), whether or not the closing date occurs for the Senior Credit Facility or any
Loan Documentation is executed and delivered or any extensions of credit are made under the Senior
Credit Facility. Notwithstanding any other provision of this Commitment Letter, (i) no Indemnified
Person shall be liable for (A) any damages arising from the use by others of information or other
materials obtained through electronic, telecommunications or other information transmission
systems, except to the extent such damages are found in a final, non-appealable judgment of a court
of competent jurisdiction to have resulted from the willful misconduct or gross negligence of such
Indemnified Person or (B) any indirect, special, punitive or consequential damages in connection
with its activities related to the Senior Credit Facility, and (ii) prior to the Close Date (as
defined below), without the prior consent of Parent, the Commitment Parties shall not at any time
incur Expenses that exceed, in the aggregate, the amount of the Good Faith Deposit (as defined in
the Fee Letter) then held by the Commitment Parties; provided, that, the foregoing shall in no
manner limit or waive Borrowers’ agreements with respect to the Good Faith Deposit which are set
forth in the Fee Letter.



6. Other Services.




You acknowledge that the Commitment Parties and their affiliates may be providing debt financing,
equity capital or other services (including financial advisory services) to other persons in
respect of which you may have conflicting interests regarding the transactions described herein and
otherwise. Neither the Commitment Parties nor any of their affiliates will use confidential
information obtained from you by virtue of the transactions contemplated by this Commitment Letter
or their other relationships with you in connection with the performance by them of services for
other persons, and neither the Commitment Parties nor any of their affiliates will furnish any such
information to other persons. You also acknowledge that neither the Commitment Parties nor any of
their affiliates have any obligation to use in connection with the transactions contemplated by
this Commitment Letter, or to furnish to you, confidential information obtained by them from other
persons.



You hereby agree that, on or after the closing of the Senior Credit Facility, the Commitment
Parties or any of their affiliates may place “tombstone” advertisements (which may include any of
Sponsors’ and/or Borrowers’ trade names or corporate logos and a brief description of the Senior
Credit Facility and the Transaction) in publications or other media of their choice (including
without limitation “e-tombstones” published or otherwise circulated in electronic form and related
hyperlinks to the Sponsors’ and/or Borrowers’ corporate website) at such Commitment Party’s own
expense. In addition, any Commitment Party may disclose the information about the Senior Credit
Facility and the Transaction to market data collectors and similar service providers to the
financing community.



7. Confidentiality.




This Commitment Letter is delivered to you on the understanding that none of this Commitment
Letter, the Term Sheet or the Fee Letter nor any of their terms or substance shall be disclosed by
you, directly or indirectly, to any other person except (a) to your respective officers, employees,
attorneys, accountants, advisors and agents on a confidential and need-to-know basis, (b) as
required by applicable law or compulsory legal process or, in the case of the Commitment Letter and
the Term Sheet (but expressly excluding the Fee Letter), as may be necessary or advisable (in the
Borrowers’ opinion) to comply with applicable securities law (in which case you agree to inform us
promptly thereof), and (c) in a matter involving assertion by any party of a breach of this
Commitment Letter, the Term Sheet or the Fee Letter by any other party; provided
that, you may disclose this Commitment Letter, the Term Sheet and the contents hereof and
thereof (but not the Fee Letter or the contents thereof) to (i) the Official Committee of Unsecured
Creditors appointed in the Chapter 11 Cases, (ii) the existing lenders to Parent and its
subsidiaries in the Chapter 11 Cases (the “DIP Lenders”), and (iii) such Committee’s and
such DIP Lenders’ respective attorneys, accountants and advisors on a confidential and need-to-know
basis; provided, however, that such disclosure shall be made only on the condition
that such matters may not,



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except as required by law, be further disclosed and in no event shall any of such persons or
entities be entitled to rely upon this Commitment Letter. None of this Commitment Letter, the Term
Sheet or the Fee Letter nor any of their terms or substance shall be disclosed by the Sponsors,
Parent or any of their respective subsidiaries directly or indirectly to any other potential source
of financing without the prior written consent of the Commitment Parties. No person, other than the
parties hereto, is entitled to rely upon this Commitment Letter or any of its contents or have any
beneficial or legal right, remedy, or claim hereunder. No person shall, except as required by law,
use the name of, or refer to, any Commitment Party, or any of their affiliates, in any
correspondence, discussions, press release, advertisement or disclosure made in connection with the
Senior Credit Facility without the prior written consent of such Commitment Party. Notwithstanding
the foregoing, the Parent may file this Commitment Letter (including the Term Sheet, but expressly
excluding the Fee Letter) with the United States Bankruptcy Court for the Southern District of New
York (the “Bankruptcy Court”), in which court the Chapter 11 Cases are pending.



8. Survival.




The compensation, reimbursement, expense, indemnification, confidentiality, governing law, forum
and waiver of jury trial provisions contained herein and in the Fee Letter shall remain in full
force and effect regardless of whether definitive financing documentation shall be executed and
delivered and notwithstanding the termination of this Commitment Letter or the commitments of the
Commitment Parties.



9. Assignments; Amendments; Governing Law, Etc.




The Commitment shall not be assignable by you without the prior written consent of the Commitment
Parties. The Commitment is intended to be solely for the benefit of the parties hereto and is not
intended to confer any benefits upon, or to create any rights in favor of, any person other than
the parties hereto (and Indemnified Persons) and you agree that it does not create a fiduciary
relationship among the parties hereto. The Commitment Parties may assign their commitments
hereunder to any of their affiliates or any Lender. Any such assignment to an affiliate will not
relieve the Commitment Parties from any of their obligations hereunder unless and until such
affiliate shall have funded the portion of the commitment so assigned. Any assignment to a Lender
shall release the Commitment Parties from the portion of their commitments hereunder so assigned.
Any and all obligations of, and services to be provided by, the Commitment Parties hereunder
(including, without limitation, the Commitment) may be performed and any and all rights of the
Commitment Parties hereunder may be exercised by or through any of their affiliates or branches.
THIS COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.



EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS
COMMITMENT OR THE PERFORMANCE OF SERVICES HEREUNDER.



Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its
property, to the non-exclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Commitment Letter or the transactions
contemplated hereby, or for recognition or enforcement of any judgment, and agrees that all claims
in respect of any such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Commitment Letter or the
transactions contemplated hereby in any New York State or
in any such Federal court and (c) waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court. 



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This Commitment Letter, together with the Term Sheet and the Fee Letter, embodies the entire
understanding among the parties hereto relating to the matters discussed herein and therein and
supersedes all prior discussions, negotiations, proposals, agreements and understandings, whether
oral or written, relating to the subject matter hereof and thereof. No course of prior conduct or
dealings between the parties hereto, no usage of trade, and no parole or extrinsic evidence of any
nature, shall be used or be relevant to supplement, explain or modify any term used herein. Any
modification or waiver of the Commitment or the terms hereof must be in writing, must be stated to
be such and must be signed by an authorized representative of each party hereto.



10. Patriot Act.




Each of the Commitment Parties hereby notifies you that, pursuant to the requirements of the USA
Patriot Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001) (the “Patriot
Act”), it is required to obtain, verify and record information that identifies each Sponsor,
each Borrower and each Guarantor, which information includes names and addresses and other
information that will allow such party to identify each Sponsor, the Borrowers and each Guarantor
in accordance with the Patriot Act.



11. Acceptance of Commitment; Termination.




If you wish to accept the Commitment, please return executed counterparts of this Commitment Letter
and the Fee Letter to CITBC, together with a wire transfer to CIT’s order in the amount required by
the Fee Letter, on or before 5:00 p.m., New York City time, on January 10, 2009; otherwise, the
offer set forth herein shall automatically terminate on such date and time and be of no further
force or effect. In the event that the initial borrowing in respect of the Senior Credit Facility
does not occur on or before March 15, 2009 or the closing of the Transaction without the use of the
Senior Credit Facility, then this Commitment Letter and the commitment and undertakings of each
Commitment Party hereunder shall automatically terminate (except for such provisions hereof which
survive such termination in accordance with the terms hereof), unless the Commitment Parties shall,
in their discretion, agree to an extension. Before such date, any Commitment Party may terminate
its obligations under this Commitment Letter if any event occurs or information becomes available
that, in its judgment, results or is likely to result in the failure to satisfy any condition
precedent set forth or referred to herein or in the Term Sheet or the other exhibits hereto.



[SIGNATURE PAGE FOLLOWS]




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This Commitment Letter may be executed in any number of counterparts, each of which, when so
executed, shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same agreement. Delivery of an executed counterpart of a signature page of this
Commitment Letter by facsimile or electronic transmission shall be effective as a delivery of a
manually executed counterpart of this Commitment Letter.



	 	 	 	 	 
	Very truly yours,



THE CIT GROUP/BUSINESS CREDIT, INC.

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	CIT BANK

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	CIT CAPITAL SECURITIES LLC

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	The Foregoing Is Hereby Accepted And

Agreed To In All Respects By The Undersigned:



WELLMAN, INC.,

debtor and debtor-in-possession,

for itself and its subsidiaries

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



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Wellman Commitment Ltr Signature Page




 









 













APPENDIX A




SUMMARY TERMS AND CONDITIONS




WELLMAN, INC.

January 9, 2009




$35,000,000 Senior Credit Facility





The Summary Terms and Conditions outlined below is the “Term Sheet” referred to in the Commitment
Letter, dated January 9, 2009, from the Commitment Parties to Wellman, Inc., debtor and
debtor-in-possession (the “Commitment Letter”). Terms used in this Term Sheet without
definition have the meanings assigned to such terms in the Commitment Letter.



	 	 	 
	Borrowers:

	 	Wellman, Inc., as reorganized pursuant to the Plan (“Reorganized
Wellman”), and certain of its domestic subsidiaries designated by
CITBC. For purposes of this Term Sheet, Reorganized Wellman and each
such domestic subsidiary are hereinafter referred to, individually as
the “Borrower” and collectively, jointly and severally, as the
“Borrowers”. Reorganized Wellman shall be a wholly-owned subsidiary
of Wellman Holdings, Inc. (“Holdco”), a newly formed holding company
to be controlled by the Sponsors. Sponsors shall own at least 51% of
the capital stock of Holdco as of the Close Date. Holdco has not and
will not engage in any business activities and has not had and will
not have any assets or other holdings, other than the equity ownership
interests of Reorganized Wellman. The ultimate structure, including,
without limitation, those persons to be “Borrowers” and “Guarantors”
under the Credit Facilities, will be determined upon CIT’s review of
the deal structure for the Transaction.
	 
	 	 
	Guarantors:

	 	Holdco and all present and future direct or indirect domestic
subsidiaries of Reorganized Wellman or Holdco that are not a Borrower
(other than GuardWell Insurance Company). The Senior Credit Facility
will be fully and unconditionally guaranteed on a joint and several
basis by all Guarantors, subject to exceptions to be agreed to the
extent such guarantees would be prohibited by applicable law or would
result in materially adverse tax consequences.
	 
	 	 
	Administrative,
Collateral Agent:

	 	The CIT Group/Business Credit, Inc. (“CITBC” or “Agent”; each of CITBC
and CIT Bank are collectively referred to in this Summary Terms and
Conditions as “CIT”).
	 
	 	 
	Lenders:

	 	A syndicate of financial institutions (including CIT Bank) to be
arranged by the Arranger.
	 
	 	 
	Sole Arranger,
Sole Bookrunner:

	 	CIT Capital Securities LLC (“CITCS” or “Arranger”).






Summary Terms and Conditions




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	Sponsor:

	 	Solus, LP and Blackrock Advisors
(each, a “Sponsor” and collectively,
the “Sponsors”).]
	 
	 	 
	Senior Credit
Facility:

	 	Senior secured credit facility (the “Senior Credit Facility”) in an
aggregate principal amount not to exceed $35,000,000, consisting of a
$35,000,000 three (3)-year revolving credit facility (the “Revolver”),
including a sub-limit of $10,000,000 for the issuance of L/C’s (as
defined below).
	 
	 	 
	Closing Date:

	 	The date on which the initial funding of the Senior Credit Facility
occurs (the “Close Date”).
	 
	 	 
	Interest Rate:

	 	See Schedule A hereto.
	 
	 	 
	Maturity:

	 	The third anniversary of the Close Date (the “Revolver Maturity Date”)
	 
	 	 
	Availability:

	 	Amounts under the Revolver may be borrowed, repaid and reborrowed from
the Close Date until five business days before the Revolver Maturity
Date. No more than $30,000,000 of advances and L/C’s shall be made
and issued under the Revolver on the Close Date. After giving effect
to all advances under the Revolver on the Close Date, including
issuances of L/C’s, if applicable, the Borrowers’ availability under
the Revolver shall not be less than $5,000,000 on the Close Date.
	 
	 	 
	Borrowing Base:

	 	All advances and L/C’s under the Revolver will be subject to a
Borrowing Base formula, which will be comprised of corporate, trade
accounts receivable and inventory subject to eligibility criteria.
Eligibility definitions and criteria will be defined in the Loan
Documentation (as defined below under the heading “Loan
Documentation”). The Revolver will be available at any time for loans
and L/Cs in an aggregate amount not to exceed the lesser of (i)
$35,000,000 and (ii) the Borrowing Base. The Borrowing Base will be
equal to: (A) 85% of eligible accounts receivable plus (B) the lesser
of (1) up to 75% of NOLV (as defined below) of eligible appraised
inventory and (2) up to 60% of the cost of eligible inventory minus
(C) applicable reserves. CIT shall have the ability to impose
additional eligibility criteria with respect to accounts receivable
and inventory and/or impose additional reserves against the Borrowing
Base in its commercially reasonable discretion. CIT will have its own
internal auditor or an independent accounting firm perform field
audit(s) of the Borrowers’ books and records, if necessary, and
accounts receivable and inventory during the term of the Senior Credit
Facility. Such field audits shall be performed on a quarterly basis
during the first year of the Senior Credit Facility and thereafter at
least annually and more frequently in CIT’s reasonable discretion.
	 
	 	 
	Letter of Credit
Issuing Bank:

	 	CIT and/or certain Lenders (each, an “L/C Issuer”) shall either issue
letters of credit directly or select another banking or financial
institution to issue letters of credit as to which L/C Issuer shall
issue letter of credit participation or support agreements (such
letters of credit and letter of credit participation or support
agreements are referred to herein as “L/Cs”).
	 
	 	 
	 

	 	To the extent that Borrowers do not reimburse the L/C Issuer for
drawings
under L/Cs, the Lenders under the Revolver shall be
unconditionally obligated to fund participations therein on a ratable
basis.




Summary Terms and Conditions




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	Revolver Fees:

	 	An unused line fee shall be payable on the average daily unutilized
portion of the Revolver for each quarter (or part thereof) after the
Close Date (the “Average Unutilized Amount”) at a rate per annum equal
to, for any such quarter, (a) 1.00% if the Average Unutilized Amount
for such quarter was equal to or greater than $10,000,000, and (b)
0.75% if the Average Unutilized Amount for such quarter was less than
$10,000,000 . Such fee will be payable quarterly in arrears on the
first day of each quarter and on the date of termination of the
Revolver commitment. The undrawn amount of outstanding L/Cs shall
count as utilization of the Revolver for purposes of calculating this
fee.
	 
	 	 
	 

	 	An L/C fee shall be payable to CIT on behalf of each Revolver Lender
with respect to such Revolver Lender’s participation in the L/Cs at
the applicable margin per annum used for determining interest payable
in respect of LIBOR loans made under the Revolver on the average daily
undrawn amount of L/Cs, payable monthly in arrears. The Borrowers
shall also be responsible for paying any fees, costs or expenses
(including fronting fees) due to any banking or financial institution
(other than CIT) for any L/Cs issued by such other banking or
financial institution in reliance on credit support furnished by CIT.
	 
	 	 
	 

	 	The other fees are set forth in the Fee Letter.
	 
	 	 
	Use of Proceeds:

	 	The Revolver will be used (subject to the terms and conditions of the
Loan Documentation): (i) to fund all payments required for the
substantial consummation of the Plan, (ii) to refinance existing
debtor-in-possession financing of the Borrowers in the Chapter 11
Cases, (iii) to fund the Borrowers’ ongoing working capital
requirements, (iv) to pay for fees and expenses associated with the
Senior Credit Facility and other bankruptcy related claims and
expenses, and (v) for general corporate purposes s.
	 
	 	 
	CERTAIN PAYMENT TERMS
	 
	 	 
	Optional
Prepayment:

	 	The Borrowers may prepay principal amounts outstanding under the
Revolver from time to time without premium or penalty, except that
LIBOR-based loans may only be prepaid at the end of the applicable
interest period, unless the Borrowers pay all breakage costs
associated with such prepayment.
	 
	 	 
	Mandatory
Prepayment:

	 	Borrowers will be required to make mandatory prepayments in respect of
the Revolver in an amount equal to (in each case, subject to such
exceptions to be mutually agreed upon):
	 
	 	 






	 	•	 	100% of the net cash proceeds (to be defined) from any sale or other
disposition of assets of the Borrowers or their subsidiaries (subject
to certain exceptions to be determined) other than net cash proceeds
of sales or other dispositions of inventory, and other assets in the
ordinary course of business 




Summary Terms and Conditions




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	 	 	 	and net cash proceeds up to an amount to
be determined that are reinvested in other assets useful in the
business of the Borrowers and their subsidiaries within 180 days of
their receipt upon terms and conditions to be mutually agreed upon;
	 
	 	•	 	100% of the net cash proceeds from the issuance of any equity
securities by Holdco, the Borrowers or any subsidiaries of the
Borrowers or Holdco;
	 
	 	•	 	100% of the net cash proceeds from the incurrence of indebtedness by
Holdco, the Borrowers or any of their subsidiaries (if and to the
extent such indebtedness is consented to by Lenders in accordance with
the Loan Documentation); and
	 
	 	•	 	100% of the net cash proceeds from insurance paid on account of any
loss of any property or assets of the Borrowers or their subsidiaries
in excess of an amount to be agreed (other than net cash proceeds that
are reinvested, or that the Borrowers have entered into a binding
contract to reinvest, in the business of the Borrowers and their
subsidiaries (or used to replace damaged or destroyed assets) within
180 days) of receipt thereof.
	 
	 	•	 	100% of Extraordinary Receipts (to be defined).





	 	 	 
	COLLATERAL
	 	 
	 
	 	 
	 

	 	The Senior Credit Facility (including any obligations under hedging
arrangements provided by the Lenders) will be secured by a perfected
first priority security interest in and lien or mortgage upon all
assets (real, mixed and personal property), in each case, whether now
owned or hereafter acquired, including, without limitation, all
receivables, accounts, inventory, general intangibles (including
payment intangibles), property, plant and equipment, fee owned and
leased real property (including a leasehold mortgage covering certain
land leased by Borrowers pursuant to a 99-year ground lease and all
building and other improvements thereon owned by Borrowers, located in
Hancock, Mississippi (the “Headquarters Property”)) and patents and
other intellectual properties of Borrowers and Guarantors and their
present and future domestic subsidiaries, in each case, whether now
owned or hereafter acquired, and all proceeds and products of any of
the foregoing (including insurance proceeds). The Senior Credit
Facility will also be collateralized by a perfected first priority
pledge of (i) 100% of the issued and outstanding capital stock or
other equity interests of the Borrowers and Guarantors (excluding the
equity interests of Holdco) and the Borrowers’ and Guarantors’ direct
or indirect domestic subsidiaries and (ii) 662/3% of the
issued and outstanding capital stock or other equity interests of the
Borrowers’ and Guarantors’ direct and indirect first-tier foreign
subsidiaries, in each case, whether now owned or hereafter acquired,
and a pledge of all intercompany indebtedness and, in all cases, all
proceeds and products thereof. Without limiting the foregoing,
Borrowers shall use its commercially reasonable efforts to deliver
landlord consents and waivers customary in a senior financing wherein
the landlord waives any security interest in the collateral, grants
CIT and its assignees reasonable access to the leased premises, and
consents to the future change of control of the tenant, in the event
CIT forecloses on the equity pledge, to the extent such consent is
required pursuant to the terms of the lease.





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	 	The foregoing security shall ratably secure the Senior Credit Facility
and any permitted interest rate swap or similar hedging arrangements
between the Borrowers or Guarantors and a Lender or its affiliates
under the Senior Credit Facility.
	 
	 	 
	Capitalization:

	 	The initial capitalization of Holdco and the Borrowers must be
satisfactory to CIT Bank and Agent, and Sponsors and other investors
acceptable to CIT Bank and Agent shall have contributed at least
$35,000,000 in new cash equity to Holdco. Sponsors shall collectively
own at least 51% of the capital stock of Holdco as of the Close Date.
	 
	 	 
	CERTAIN CONDITIONS
	 	 
	 
	 	 
	Conditions
Precedent:

	 	Closing and the initial funding under the Senior Credit Facility will
be subject to the satisfaction of all conditions precedent customarily
required by CIT Bank and Agent in similar financings and any
additional conditions precedent deemed necessary or appropriate by CIT
Bank and Agent in good faith in the context of this transaction,
including but not limited to:
	 
	 	 






	 	1.	 	(a) CIT Bank’s and Agent’s review of and reasonable satisfaction in
all respects with the final Plan and (b) the order of the Bankruptcy
Court confirming the Plan (the “Confirmation Order”), in form and
substance reasonably satisfactory to CIT Bank and Agent, shall have
been entered, following due notice to all creditors and other
parties-in-interest, confirming the Plan, (c) (i) the effective date
of the Plan (the “Effective Date”) shall have occurred, (ii) the
Confirmation Order shall be a valid, subsisting and continuing final
order, and (iii) the satisfaction (or valid waiver) of all conditions
precedent to the consummation of the Plan (other than any condition
relating to the funding under the Senior Credit Facility), and all
agreements and undertakings of the parties under the Plan to be
performed by the Effective Date shall have been satisfied and
performed; (c) the Agent’s confirmation that any retention of
jurisdiction by the Bankruptcy Court shall not govern the enforcement
of the Senior Credit Facility or any rights and remedies related
thereto, (d) no motion, action or proceeding shall be pending or filed
by any party-in-interest to Borrowers’ Chapter 11 Cases which could
adversely affect the Plan, the consummation of the Plan, the business
or operations of the Borrowers and Guarantors, or the Senior Credit
Facility, and (e) the Confirmation Order shall not have been reversed,
vacated, amended, supplemented, modified or appealed and shall not be
subject to any pending motion for reconsideration or any motion for
review.
	 
	 	 	 	No motion, action or proceeding shall be pending or, to the knowledge
of the Borrowers or CIT Bank or Agent, threatened against the
Borrowers or Guarantors by any creditor or other party-in-interest in
the Bankruptcy Court or any other court of competent jurisdiction
which may adversely affect the Plan, the Borrowers’ post-consummation
business or the proposed Senior Credit Facility.






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	 	 	 	The definitive Loan Documentation shall provide that, after the Close
Date, Borrowers and Guarantors shall be in compliance with all terms
and conditions of the Plan that are applicable to Borrowers and
Guarantors subsequent to the Effective Date.
	 
	 	2.	 	Execution and delivery of satisfactory Loan Documentation;
	 
	 	3.	 	CIT and Agent shall have received all financial and other due
diligence information and items required by CIT and Agent, the results
of which shall be satisfactory to CIT and Agent and their counsel,
including but not limited to the following: (a) field examination of
the books, records, assets, liabilities, cash management system, and
operations of the Borrowers; (b) an appraisal of Borrowers’ inventory,
in form, scope and methodology acceptable to CIT in good faith,
prepared by an appraiser acceptable to CIT and upon which CIT and
Lenders are expressly permitted to rely, setting forth the net orderly
liquidation value (“NOLV”) of such inventory; and (c) legal diligence,
including, without limitation, review of material contracts. The
findings related to these due diligence items could change the terms
and conditions of this Term Sheet.
	 
	 	4.	 	Sponsors and other investors acceptable to CIT Bank and Agent shall
have made a minimum cash equity contribution of $35,000,000 in Holdco
(which amount shall have been contributed to the Borrowers for
purposes of consummating the Transaction) and the capitalization,
structure and equity ownership of Holdco and the Borrowers after
consummation of the Transaction, including, but not limited to, the
constituent documents of Holdco, Borrowers and the other Guarantors
and related investment agreements, shall be satisfactory to CIT Bank
and Agent;
	 
	 	5.	 	The Borrowers, Guarantors and their subsidiaries shall have no
third party debt that will survive the closing of the Senior Credit
Facility other than (a) the Senior Credit Facility; (b) subordinated
debt consisting of subordinated second lien convertible notes issued
by Borrowers on the Close Date in an aggregate amount not to exceed
$40,000,000 on terms and conditions satisfactory to CIT (the “2nd Lien
Subordinated Notes”); (c) subordinated debt consisting of conversion
of pre-petition first and second lien term loan debt of Borrowers,
pursuant to the Plan, into subordinated third lien convertible notes
issued by Borrowers on the Close Date in an aggregate amount not to
exceed $60,000,000 on terms

and conditions satisfactory to CIT (the
“3rd Lien Subordinated Notes”); and (d) indebtedness owing by
Borrowers pursuant to the settlement contract to be entered into with
BP pursuant to the Plan and other debt scheduled in the Loan
Documentation, which may include certain capital leases and other
customary obligations, in each case existing on the Close Date and
reasonably approved by CIT.






The Loan Documentation shall provide that Borrowers shall have the
right to incur additional secured subordinated indebtedness
(“4th
Lien


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	 	 	 	Debt”), in a maximum aggregate amount to be
agreed upon in the Loan Documentation, provided that (a) the terms and
conditions of such indebtedness shall be reasonably satisfactory to
Agent and Lenders, and (b) such indebtedness shall be subject to an
intercreditor and subordination agreement containing substantially the
same terms and conditions as the Intercreditor Agreements (as defined
below) governing the Subordinated Notes (as defined below);
	 
	 	6.	 	The terms and conditions of the 2nd Lien Subordinated
Notes and the 3rd Lien Subordinated Notes (collectively,
the “Subordinated Notes”) shall be satisfactory to CIT Bank and the
Agent, and the Agent, on behalf of the Lenders, shall have entered
into a separate intercreditor and subordination agreement with the
holders of the 2nd Lien Subordinated Notes (the
“2nd
Lien Intercreditor”) and the holders of the
3rd Lien
Subordinated Notes (the “3rd Lien
Intercreditor”; and together with the 2nd Lien Intercreditor,
collectively, the “Intercreditor Agreements”), respectively,
containing terms and conditions satisfactory in all respects to CIT
Bank and the Agent.
	 
	 	 	 	The Intercreditor Agreements shall provide that the Subordinated Notes
are fully subordinated to the Senior Credit Facility and the security
interests and liens respectively securing same shall be “silent”,
fully subordinated to the first priority security interests and liens
securing the Senior Credit Facility. Without limiting the generality
of the foregoing, the Intercreditor Agreements shall provide that (a)
no payments whatsoever shall be permitted with respect to any
Subordinated Notes, other than (i) regularly scheduled cash interest
payments due under the 2nd Lien Subordinated Notes, on a
non-accelerated basis, at a rate not to exceed 10% per annum,
provided
that, on the date of any such interest payment and after giving effect
thereto, (A) no default or event of default shall have occurred and be
continuing under the Loan Documentation, and (B) Borrowers shall have
excess availability under the Revolver (as determined under the Loan
Documentation) of not less than $5,000,000, and (ii) regularly
scheduled cash and/or non-cash “PIK” interest payments due under the
3rd Lien Subordinated Notes, on a non-accelerated basis, at
a rate not to exceed 5% per annum, provided that, on the date of any
such cash interest payment and after giving effect thereto, (A) no
default or event of default shall have occurred and be continuing
under the Loan Documentation, and (B) Borrowers shall have excess
availability under the Revolver (as determined under the Loan
Documentation) of not less than $5,000,000; and (b) the holders of
Subordinated Notes shall have no rights to commence any action to
collect or otherwise enforce such Notes and shall be prohibited from
taking any action with respect to any collateral securing same until
the Senior Credit Facility has been terminated and all obligations and
indebtedness outstanding thereunder have been indefeasibly paid in
full to Agent and Lenders;
	 
	 	7.	 	The closing of the Subordinated Notes and the funding of the
2nd Lien Subordinated Notes shall have occurred on the
Close Date on terms and conditions reasonably satisfactory to CIT Bank
and the Agent;





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	 	8.	 	CIT shall have received and be satisfied with Borrowers’ internally
prepared monthly financial statements for December, 2008;
	 
	 	9.	 	CIT shall be satisfied that there has been no event, development or
circumstance that has had or could reasonably be expected to have a
material adverse effect on the business, assets, liabilities (actual
or contingent), operations, condition (financial or otherwise) or
prospects of Holdco, the Borrowers and/or their subsidiaries, taken as
a whole, since the financial statements submitted to CIT for the month
ended November 30, 2008 (provided that the filing and pendency of the
Chapter 11 Cases shall not be deemed to have resulted in such material
adverse effect for the purposes hereof);
	 
	 	10.	 	CIT and Lenders shall have received and be satisfied with the
Borrowers’ insurance policies, including endorsements in favor of CIT
with respect thereto;
	 
	 	11.	 	CIT’s receipt and satisfaction with the results of background
checks on the Borrowers’ key management;
	 
	 	12.	 	All governmental and third party approvals necessary in connection
with the Transaction shall have been obtained and be in full force and
effect, and all applicable waiting periods shall have expired without
any action being taken or threatened by any authority that would
restrain or otherwise impose adverse conditions on the Transaction;
	 
	 	13.	 	CIT shall have received such legal opinions, officer solvency
certificates and other documents and instruments as are customary for
transactions of this type or as it may reasonably request.
	 
	 	14.	 	Evidence of a valid and perfected first priority security
interest, liens and mortgages in and upon the Collateral in favor of
Agent and Lenders, including UCC and other applicable lien search
reports and lien release documents, in form and substance
satisfactory to Agent with respect to all security interests and
liens currently filed against Parent and its subsidiaries, except for
security interests and liens permitted herein and other permitted
encumbrances customary for in similar financings which shall be
identified in the Loan Documentation;
	 
	 	15.	 	Receipt by CIT of all documentation and other information required
by bank regulatory authorities under applicable “know your customer”
and anti-money laundering rules and regulations, including without
limitation the PATRIOT Act and OFAC.
	 
	 	16.	 	CIT and Lenders shall have received all fees, costs and expenses
payable on or prior to the Close Date;
	 
	 	17.	 	CIT and Lenders shall have received and approved a breakdown of
all uses of proceeds, including fees and expenses; and





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	 	18.	 	CIT’s receipt of, and satisfaction with, in the case of the
leasehold mortgage to be granted to Agent and Lenders covering the
Headquarters Property, (a) title insurance issued by a title insurance
company reasonably satisfactory to CIT, (b) a survey prepared by
independent licensed land surveyor reasonably satisfactory to CIT, and
(c) flood searches, and if applicable, flood insurance; and the costs
of all of the foregoing shall be paid by the Borrowers.





	 	 	 
	Conditions to
Extensions of
Credit:

	 	The making of each extension of credit (including amendments,
extensions and increases of L/Cs) shall be conditioned upon (i) the
accuracy in all material respects of all representations and
warranties contained in the Loan Documentation (including, without
limitations, the material adverse change and litigation
representations) (ii) there being no default or event of default in
existence at the time of, or after giving effect to the making of,
such extension of credit and (iii) availability under the Borrowing
Base.
	 
	 	 
	CERTAIN DOCUMENTATION MATTERS
	 
	 	 
	Loan
Documentation:

	 	The Senior Credit Facility will be subject to the terms and conditions
set forth in a definitive credit agreement, related security
agreement(s), guarantees, pledge agreements, mortgages, assignment
agreements and other instruments and documents, all of which will be
acceptable to CIT, the Lenders and their legal counsel (collectively,
the “Loan Documentation”).
	 
	 	 
	Representations
and Warranties:

	 	The Senior Credit Facility will contain such representations and
warranties by the Borrowers as are usual and customary for financings
of this kind, including, without limitation, corporate power and
authority, due organization and authorization, execution, delivery and
enforceability of the Loan Documentation, no default, financial
condition and solvency, no material adverse change, title to
properties, sufficiency of assets and rights, liens, litigation,
payment of taxes, insurance, subsidiaries, business locations, labor
matters, material contracts, investment company regulations, brokers’
fees, compliance with laws, environmental and ERISA matters, consents
and approvals, compliance with anti-terrorism laws, creation and
perfection of security interests, and full disclosure (subject to
qualifications to be agreed). The Loan Documentation shall contain
reasonable exceptions with respect to representations and warranties
regarding payment of property taxes on certain non-operating assets.





 Summary Terms and Conditions




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	Reporting:

	 	The Borrowers will provide CIT and Lenders with periodic financial
reporting, including: audited annual financial statements; management
discussion and analysis; unaudited quarterly and monthly financial
statements; annual financial projections; compliance certificates;
notice of material events; collateral reporting; periodic borrowing
base certificates; receivables and payables against aging reports and
inventory reports and such other information reasonably requested by
CIT or any Lender.
	 
	 	 
	Covenants:

	 	The Senior Credit Facility will contain such affirmative covenants as
are usual and customary for financings of this kind (subject to
customary qualifications), and will likely include, but not be limited
to: receipt of timely and accurate financial information; notification
of litigation, investigations, environmental and ERISA matters and
other material adverse changes; payment and performance of obligations
(including, without limitation, under the Plan); maintenance of
existence; maintenance of property and insurance (including hazard and
business interruption coverage); maintenance of accurate records and
accounts; visits and inspection of property and books and records;
compliance with laws (including, without limitation, environmental
laws); compliance with material contractual obligations; maintenance
of licenses, permits and franchises issued or granted by any
governmental authority; use of proceeds (including anti-hoarding);
payment of taxes; ERISA; maintenance of security interests and further
assurances (including with respect to security interests in future
subsidiaries and after-acquired property); annual lenders meetings;
additional grantors and guarantors; separateness of loan parties;
post-closing syndication assistance (if applicable); and interest rate
protection requirements.
	 
	 	 
	 

	 	The Senior Credit Facility will contain such negative covenants as are
usual and customary for financings of this kind (subject to customary
qualifications), and will likely include, but not be limited to: restrictions and limitations against incurring additional indebtedness
(except for 4th Lien Debt described above) and guarantee
obligations; encumbrances, liens (other than liens securing
4th Lien Debt) and other obligations; restrictive payments
(including, but not limited to, distributions and dividends, and
management, acquisition, arrangement and other similar fees); loans
and investments; mergers, consolidations and acquisitions; sale and
leaseback transactions; asset transfers and dispositions; changes in
business; hedging arrangements; transactions with affiliates;
prepayments of and amendments to indebtedness (including, without
limitation, prepayment of, and amendments to, any subordinated debt);
restrictive agreements; ownership of subsidiaries; passive activities
of Holdco; bank accounts; amendments to organizational documents;
changes in fiscal year or accounting method; negative pledge clauses
and clauses restricting subsidiary distributions and changes in the
Plan and Confirmation Order post-closing that would adversely impact
the Lenders.
	 
	 	 
	Financial Covenants:

	 	Financial covenants will likely include: minimum fixed charge coverage
ratio; maximum leverage ratio; and maximum capital expenditures.
	 
	 	 
	Events of Default:

	 	Events of defaults will include those which are customarily found in
financing transactions of the type contemplated hereby, including, but
not limited to:





 Summary Terms and Conditions




Securities and investment banking services provided through CIT Capital Securities LLC, an affiliate of CIT.




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	 	nonpayment of principal or reimbursement obligations
when due; nonpayment of interest, fees or other amounts; inaccuracy of
representations and warranties; violation of covenants (subject, in
the case of certain affirmative covenants, to a grace period to be
agreed upon); cross-default to material indebtedness; bankruptcy
events; certain ERISA events; material judgments; actual or asserted
invalidity of any guarantee or security document, an Intercreditor
Agreement or other subordination provisions; change of control (which
shall be defined to include, without limitation, the Sponsors’
collective ownership of less than 51% of the outstanding capital stock
of Holdco or Holdco’s ownership of less than 100% of the outstanding
capital stock of Parent); changes in instructions regarding pledged
bank accounts; and changes in the passive holding company status of
Holdco.
	 
	 	 
	Cash Management:

	 	Within ninety (90) days following the Close Date, Borrowers shall
implement cash management procedures (“Post-confirmation Cash
Management”) in replacement of the cash management procedures which
exist in the Chapter 11 Cases (“Existing Cash
Management”), reasonably
satisfactory to CIT and Arranger, including lock box procedures and
blocked account agreements that will provide for full cash dominion
and automatic daily sweeps into a collection account controlled by
CIT. As of the Close Date, Borrowers shall arrange for the Existing
Cash Management to be utilized in connection with the Senior Credit
Facility until implementation of Post-confirmation Cash Management,
provided, that, if Borrowers propose establishing Post-confirmation
Cash Management at a bank other than the bank which currently provides
Existing Cash Management, then such replacement bank shall be
satisfactory to CIT.
	 
	 	 
	Costs and
Expenses:

	 	The Borrowers shall be responsible for the payment (whether or not the
transaction contemplated hereby closes or is consummated) of all of
CIT’s and the Arranger’s reasonable costs, fees and expenses of
underwriting, documenting and closing the transaction contemplated
hereby (including, without limitation, reasonable costs, fees and
expenses of outside legal counsel, travel, lodging and similar
expenses) or otherwise paid or incurred by CIT or the Arranger in
connection with the Loan Documentation or the transaction contemplated
hereby, including, but not limited to, those paid or incurred by CIT
or the Arranger in connection with the preparation, negotiation,
execution and closing of the Loan Documentation and the transaction
contemplated hereby, the arrangement, syndication and administration
of the Senior Credit Facility, the creation or perfection of liens and
security interests in connection therewith, and any amendment,
modification or waiver in respect of the Loan Documentation. The
Borrowers shall also be responsible for all fees and expenses of CIT
and Lenders incurred or in connection with enforcing rights, remedies
and actions taken under the Senior Credit Facility.
	 
	 	 
	Indemnification:

	 	The Borrowers shall indemnify and hold harmless CIT, the Arranger and
the Lenders, and their respective affiliates and, in each case, such
parties’ respective directors, officers, employees, agents,
representatives and controlling persons (each being an “Indemnified
Party”) from and against any and all claims, damages, liabilities and
expenses (including without limitation, fees and expenses of counsel)
that may be incurred by or asserted against such Indemnified Party in
connection with the investigation of, preparation for, or





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	 	defense of
any pending or threatened claim or any action or proceeding (whether
or not such Indemnified Party is a party thereto) or otherwise arising
out of or relating to any of the transactions contemplated hereby, any
commitment or similar letter issued in connection therewith, any of
the Loan Documentation, any of the transactions contemplated thereby,
or any action or omission of any Indemnified Party or other matter or
thing under or in connection with any of the foregoing, except for
(with respect to any Indemnified Party) any such claims, damages,
liabilities or expenses resulting from such Indemnified Party’s own
gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final nonappealable order or judgment.
	 
	 	 
	Participation and
Assignment:

	 	The Lenders shall be permitted to assign all or a portion of their
loans and commitments with the consent, not to be unreasonably
withheld, of (a) the Parent, unless (x) the assignee is a Lender, an
affiliate of a Lender or an approved fund, or (y) an event of default
has occurred and is continuing, (b) the Agent, and (c) the Issuing
Bank. In the case of partial assignments (other than to another
Lender, an affiliate of a Lender or an approved fund), the minimum
assignment amount shall be $5,000,000 (unless otherwise agreed by the
Borrowers and CIT). The Agent shall receive a processing fee of
$3,500 in connection with all assignments. The Lenders shall also be
permitted to sell participations in their loans.
	 
	 	 
	Required Lenders:

	 	Lenders holding at least 51% of the loan exposure under the Revolving
Facility in the aggregate (the “Required Lenders”) (subject to certain
customary matters requiring unanimous Lender consent).
	 
	 	 
	Amendments
and Waivers:

	 	Subject to approval of Required Lenders party to the relevant Loan
Documentation, except that all affected Lenders must consent to
increases in commitment amounts, reductions in principal, interest and
fees, extensions of maturities and release of substantially all of the
guarantors and collateral.
	 
	 	 
	Yield Protection:

	 	The Loan Documentation shall contain customary provisions (i)
protecting the Lenders against increased costs or loss of yield
resulting from changes in reserve, tax, capital adequacy and other
requirements of law and from the imposition of or changes in
withholding and other taxes and (ii) indemnifying Lenders for
“breakage costs” incurred in connection with, among other things, any
prepayment or conversion of LIBOR loans on a day other than the last
day of the interest period applicable thereto.
	 
	 	 
	Governing
Law and
Jurisdiction:

	 	State of New York.
	 
	 	 
	Waiver of
Jury Trial:

	 	Such waivers as are customary for financing transactions of the type
contemplated hereby.
	 
	 	 
	Administrative
Agent’s Counsel:

	 	Otterbourg, Steindler, Houston & Rosen, P.C.




Summary Terms and Conditions




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A-12









 






	 	 	 
	Borrowers’ and
Guarantors’
Counsel:

	 	Kirkland & Ellis.






 Summary Terms and Conditions




Securities and investment banking services provided through CIT Capital Securities LLC, an affiliate of CIT.




A-13









 








Schedule A




INTEREST RATES




	 	 	 
	Revolver:

	 	Borrowers will be required to pay interest on advances
outstanding under the Revolver at either: (i) the Prime
Rate plus 7% per annum or (ii) LIBOR Rate plus 8% per
annum.
	 
	 	 
	Prime Rate:

	 	The “Prime Rate” will mean, for any day, the greatest
of: (i) the rate of interest per annum quoted by
JPMorgan Chase Bank as its “prime rate” in effect from
time to time (or if such rate is at any time not
available, the prime rate so quoted by any banking
institution selected by CIT), which rate is not intended
to be the lowest rate charged by any such banking
institution to its borrowers, (ii) the Federal Funds
Effective Rate per annum plus 0.50% and (iii) the
1-Month LIBO Rate on such day plus 1%. Interest on
Prime Rate loans will be computed and payable monthly in
arrears on the basis of a 365 day year and based on the
actual number of days elapsed.
	 
	 	 
	 

	 	“1-Month LIBO Rate” will mean, for any day, the greater
of (i) the rate per annum equal to the rate determined
by CIT to be the offered rate that appears on the
Bloomberg BBAM Screen (or any successor thereto) that
displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on
such day) with a term equivalent to three months,
determined as of approximately 11:00 a.m. (London time)
on such day (or if such day is not a Business Day, the
immediately preceding Business Day) , and (ii) the LIBOR
Floor. In the event that such rate is not available at
such time for any reason, then the “1-Month LIBO Rate”
for such day shall be determined by CIT by reference to
such other comparable publicly available service for
displaying the offered rate for dollar deposits in the
London interbank market as may be selected by CIT and,
in the absence of availability, such other method as may
be selected by CIT in its sole discretion.
	 
	 	 
	LIBOR Rate:

	 	“LIBOR” will mean, for any interest period with respect
to any LIBOR loan, the rate per annum equal to the rate
determined by CIT to be the offered rate that appears on
the Bloomberg BBAM Screen (or any successor thereto)
that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such interest period) with
a term equivalent to such interest period, determined as
of approximately 11:00 a.m. (London time) two (2)
business days prior to the first day of such interest
period. Interest periods shall not exceed one (1)
month. The Borrowers may elect to use LIBOR provided
(i) the Borrowers give CIT at least three business days
prior notice of such election and (ii) no default is
then outstanding under the Loan Documentation. Interest
on LIBOR-based loans will be computed and payable at the
end of the applicable LIBOR interest period in arrears
on the basis of a 360 day year and based on the actual
number





 Summary Terms and Conditions




Securities and investment banking services provided through CIT Capital Securities LLC, an affiliate of CIT.




 









 






	 	 	 
	 

	 	of days elapsed.
	 
	 	 
	LIBOR Floor:

	 	LIBOR shall be subject to a floor equal to two percent
(2%) per annum.
	 
	 	 
	Default Interest:

	 	Upon the occurrence and during the continuance of an
Event of Default (upon written notice, except in the
case of any bankruptcy, insolvency, reorganization,
liquidation or other similar proceeding), amounts
outstanding under the Senior Credit Facility shall bear
interest at 2.00% per annum above the rate otherwise
applicable thereto and LIBOR-based loans and conversions
to LIBOR-based loans shall no longer be available.
Overdue interest, fees and other amounts shall accrue
interest at 2.00% above the rate applicable to Prime
Rate loans.






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