Exhibit 10.1


 


FIFTH AMENDMENT TO CREDIT
AGREEMENT


 


This FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”),
dated as of March 9, 2010, is entered into by and among Huntsman
International LLC, a Delaware limited liability company (the “Borrower”),
and the Lenders party hereto.  Terms used
herein and not otherwise defined herein shall have the same meanings as
specified in the Credit Agreement (as defined below).


 


RECITALS:


 


A.                                   The Borrower, the Lenders, the Agents and
Deutsche Bank AG New York Branch (“DB”) have heretofore entered into
that certain Credit Agreement dated as of August 16, 2005 (as heretofore
amended, restated, supplemented or otherwise modified, the “Credit Agreement”).


 


B.                                     The Borrower has requested that the
Credit Agreement be amended to, among other things, extend the Revolver
Termination Date to March 9, 2014 and reduce the aggregate Revolving
Commitments from $650,000,000 to no more than $300,000,000 on the terms and
subject to the conditions set forth in this Amendment and the Credit Agreement
as amended hereby.


 


C.                                     DB has submitted its notice of
resignation as Administrative Agent, Collateral Agent and UK Security Trustee
(in such capacities, collectively, the “Existing Agent”) under the
Credit Agreement and the other Loan Documents, and desires to resign as a Swing
Line Lender under the Credit Agreement.


 


D.                                    The Borrower and the Lenders party hereto
desire to appoint JPMorgan Chase Bank, N.A. (or, with respect to successor UK
Security Trustee, JPMorgan Chase Bank, N.A. or an affiliate thereof designated
by JPMorgan Chase Bank, N.A.) as successor Administrative Agent, successor
Collateral Agent and successor UK Security Trustee (in such capacities,
collectively, the “Successor Agent”) under the Credit Agreement and the
other Loan Documents and the Successor Agent wishes to accept such appointment.


 


E.                                      This Amendment constitutes a Loan
Document and these Recitals shall be construed as part of this Amendment.


 


NOW,
THEREFORE, in consideration of the Recitals herein contained and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


SECTION 1                              Amendments. 
Effective as of the Amendment Effective Date (as defined below) and
subject to the satisfaction of the terms and conditions set forth herein:


 


1.1.                            The
Credit Agreement is hereby amended and restated in its entirety to be in the
form of Exhibit A
attached hereto (as amended, the “Amended Credit Agreement”).


 


1.2.                            Schedule 1.1(a) (Commitments) to the
Credit Agreement, solely to the extent relating to Revolving Commitments of
Lenders, is hereby amended to reflect the Revolving Commitments set forth in Exhibit B-1  attached
hereto.


 


1.3.                            Schedule 1.1(d) (Fifth Amendment Existing Letters
of Credit) set forth in the 


 

















 


Amended Credit Agreement shall
be in the form of Exhibit B-2  attached
hereto.


 


1.4.                            Exhibit 2.1(c) (Form of Swing Line Loan
Participation Certificate), Exhibit 2.2(a)(2) (Form of
Revolving Note), Exhibit 2.2(a)(3) (Form of Swing Line
Note), Exhibit 2.5 (Form of Notice of Borrowing), Exhibit 2.6
(Form of Notice of Conversion or Continuation), Exhibit 2.9(b) (Form of
Notice of Issuance) and Exhibit 12.8(c) (Form of
Assignment and Assumption Agreement) to the Credit Agreement are each hereby amended
and restated in their entirety to be in the form of Exhibit C, Exhibit D, Exhibit E, Exhibit F, Exhibit G, Exhibit H and
Exhibit I,
respectively, attached hereto.


 


1.5.                            Amendment to Security Documents and Other
Loan Documents.


 


The parties hereto acknowledge and agree that:


 


(a)                                  Each instance of the definition of “Overdraft
Facilities” in the Security Documents is hereby replaced with the following
definition:


 


“Overdraft Facilities” means facilities relating to Indebtedness
permitted pursuant to Section 8.2(b)(xii) of the Credit Agreement,
including, without limitation, guarantees thereof.


 


(b)                                 The definition of “Overdraft Facilities”
in the Subsidiary Guaranty is hereby replaced with the following definition:


 


“Overdraft Facilities” means facilities relating to Indebtedness (as
such term is defined in the Credit Agreement) permitted pursuant to Section 8.2(b)(xii)
of the Credit Agreement, including, without limitation, guarantees thereof.


 


(c)                                  Each instance of the words “Deutsche Bank
AG New York Branch” and “DB” in the Security Documents and the Subsidiary
Guaranty is hereby replaced with “JPMorgan Chase Bank, N.A.” and “JPMCB”,
respectively.


 


SECTION 2                              Extension of Revolving
Commitments; Termination.


 


2.1.                            At the request of the Borrower, certain
Revolving Lenders have agreed to extend (and if applicable, increase) all or a
portion of their Revolving Commitments, and such
Revolving Lenders that have executed and delivered to J.P. Morgan
Securities Inc. (“JPM”) an Extending Revolving Lender Consent (as defined
below) on or prior to 5:00 p.m. (New York time), on March 9,
2010, or on such later date or time as JPM and the Borrower may
agree (the “Consent Due Date”), (each,
an “Extending Revolving Lender”), shall be a Revolving Lender under the
Amended Credit Agreement, and its Revolving Commitment shall be a Revolving
Commitment thereunder with respect to the aggregate amount of its Revolving
Commitment that is specified on its Extending Revolving Lender Consent; and at
the request of the Borrower, certain financial institutions party hereto have
agreed to become Revolving Lenders (the “New Revolving Lenders”) having
Revolving Commitments set forth in Exhibit B-1 attached hereto (the
“New Revolving Commitments”);  provided,
that the aggregate amount of Revolving Commitments after giving effect to this
Amendment shall be no more than $300,000,000; provided further, that to the
extent JPM receives Extending Revolving Lender Consents that, together with the
New Revolving Commitments, represent Revolving Commitments after giving effect
to the Amendment Effective Date in excess of $300,000,000 in the aggregate, the
Borrower shall reduce the Revolving Commitments specified by one or more
Extending Revolving Lenders in their Extending Revolving Lender Consents
(whether on a pro rata basis or otherwise) such that the aggregate Revolving
Commitments after giving effect to the Amendment Effective Date shall not be in
excess of $300,000,000.


 


2

















 


2.2.                            Each Revolving Lender that is not an
Extending Revolving Lender (other than each New Revolving Lender) (each a “Non-Extending
Revolving Lender”) shall, effective upon the Amendment Effective Date, no
longer be a Revolving Lender under the Amended Credit Agreement and (i) its
Revolving Commitment shall be voluntarily terminated by the Borrower upon the
Amendment Effective Date pursuant to Section 4.1(a) of the
Credit Agreement and (ii) any outstanding Revolving Loans shall be paid in
full together with all accrued and unpaid interest thereon, Commitment Fees and
LC Commissions pursuant to Section 4.2(b) hereof.


 


2.3.                            On the Amendment Effective Date, the Risk
Participation (as defined below) of each Non-Extending Revolving Lender shall
be transferred to and assumed by the Extending Revolving Lenders and the New
Revolving Lenders on a pro rata basis in accordance with their respective
Revolving Commitments under the Amended Credit Agreement.  “Risk Participation” means, at any
date, the aggregate amount of funded and unfunded obligations of any Revolving
Lender to purchase participations from or make payments for the account of (i) any
Swing Line Lender pursuant to Sections 2.1(c)(iii) and (iv) of
the Credit Agreement and (ii) any Facing Agent pursuant to Section 2.9(d) of
the Credit Agreement.


 


2.4.                            Each Extending Revolving Lender agrees to
promptly return to the Borrower any promissory notes evidencing its Revolving
Loans previously issued to such Extending Revolving Lender.


 


SECTION 3                              Appointment of Successor
Agent; Waiver of Notice Requirement.


 


3.1.                            Appointment of Successor
Agent.   (i) The Borrower and the Lenders party
hereto hereby waive, solely for the purpose of this Amendment, any notice,
timing or other requirement provided for under the Loan Documents in respect of
such resignation of the Existing Agent and the appointment of the Successor
Agent and (ii) the Borrower and the Lenders party hereto hereby consent to
the appointment of the Successor Agent. 
The Lenders party hereto hereby authorize the Successor Agent, on behalf
of the Lenders, to enter into such supplements, modifications and amendments to
the Security Documents with the Credit Parties as it may deem necessary or
advisable to evidence the appointment of the Successor Agent and to effectuate
the terms hereof and to carry out the purposes and intent of this Amendment.


 


3.2.                            Waiver of Notice
Requirement.  The Lenders party hereto hereby waive
pursuant to Section 12.1(a) of the Credit Agreement, solely
for the purpose of this Amendment, any notice, timing or other requirement of
the Credit Agreement (including, without limitation, pursuant to Section 4.1(a) of
the Credit Agreement) with respect to a voluntary reduction in Revolving
Commitments.


 


SECTION 4                              Conditions Precedent to
the Effectiveness of this Amendment.  The provisions
of Section 1, Section 2, Section 3 and Section 5
of this Amendment shall become effective upon the date of the satisfaction of
all of the conditions set forth in this Section 4 (the “Amendment
Effective Date”), with any documents delivered to JPM dated the Amendment
Effective Date unless otherwise noted:


 


4.1.                            Proper Execution and
Delivery of Amendment.  JPM shall have received (i) this
Amendment, duly executed and delivered by the Borrower, the Lenders
constituting the Required Lenders, DB (in its capacities as Administrative
Agent, Swing Line Lender, Facing Agent, Collateral Agent and UK Security
Trustee immediately prior to the Amendment Effective Date) and JPMCB (in its
capacities as Administrative Agent, Swing Line Lender, Facing Agent, Collateral
Agent and UK Security Trustee immediately upon the Amendment Effective Date), (ii) Extending
Revolving Lender Consents, in the form attached hereto as Annex A (the “Extending
Revolving Lender Consents”) and (iii) the Consent and Reaffirmation,
in the form attached hereto as Annex B executed by the Borrower and each
of the 


 


3

















 


Subsidiary Guarantors.


 


4.2.                            Fees, Interest and Expenses.


 


(a)                                  As consideration for the execution of this Amendment
(and provided that all of the other conditions set forth in this Section 4
are satisfied), the Borrower agrees to pay to (x) each Extending Revolving
Lender and New Revolving Lender the upfront fees as have been posted to
Intralinks to such Revolving Lender in connection with the making, extension or
increase of its Revolving Commitment and (y) JPM for the account of each
Lender (other than New Revolving Lenders) for which JPM shall have received (by
facsimile or otherwise) an executed Amendment (or a release from escrow of an
executed Amendment previously delivered in escrow for this Amendment) by the
Consent Due Date, an amendment fee equal to 0.10% of (i) with respect to
each Term Lender, such Term Lender’s outstanding Term Loans as of February 28,
2010 and (ii) with respect to each Revolving Lender, such Revolving Lender’s
Revolving Commitment in effect as of February 28, 2010; provided,
that each Lender executing this Amendment acknowledges and consents to the
payment of such amendment fee to JPM for the benefit of such Lender.


 


(b)                                 DB, as Administrative Agent, shall have
received, for the ratable benefit of the Revolving Lenders, (i) repayment
of the outstanding Revolving Loans, if any, (ii) all accrued and unpaid
interest on the Revolving Loans and all accrued and unpaid Commitment Fees and (ii) all
accrued and unpaid LC Commissions with respect to each outstanding Letter of
Credit pursuant to Section 2.9(e)(ii) of the Credit Agreement,
in each case, to but excluding the Amendment Effective Date (whether or not
otherwise due and payable).


 


(c)                                  The Borrower shall have paid, to the
extent invoiced, the reasonable costs and expenses of JPM and the Existing
Agent in connection with the preparation, reproduction, execution and delivery
of this Amendment and all other Loan Documents entered into in connection
herewith (including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for JPM and the Existing Agent with respect thereto).


 


4.3.                            Delivery of Credit Party
Documents.


 


(a)                                  Notes.  The Borrower
shall have duly executed and delivered to JPM notes in the form of Exhibit D
attached hereto (the “Revolving Notes”) payable to each applicable
Extending Revolving Lender and New Revolving Lender which has requested a note
in the amount of its respective Revolving Commitments after giving effect to
this Amendment, all of which shall be in full force and effect.


 


(b)                                 Opinion of Counsel. 
JPM shall have received from Vinson & Elkins L.L.P., special
counsel to the Borrower, an opinion in the form attached hereto as Exhibit J,
addressed to the Existing Agent and each of the Lenders and dated
the Amendment Effective Date.


 


4.4.                            Successor Agency Agreement. 
The Successor Agent, the Existing Agent and the Borrower shall have
entered into that certain Successor Agency Agreement, dated as of the date
hereof, in form and substance satisfactory to the Successor Agent.


 


4.5.                            Compliance with Flood Insurance
Regulations.    The Successor Agent shall have received a
completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood
Hazard Determination with respect to each Mortgaged Property and, for any
Mortgaged Property on which improvements are located in a special flood hazard
area, a notice duly executed by the Borrower acknowledging the special flood
hazard area status together with evidence of flood insurance in form and 


 


4

















 


substance reasonably satisfactory to the Successor Agent.


 


SECTION 5                              Post-Effective Date Requirements.


 


5.1.                            Within
120 days after the Amendment Effective Date (or such later date acceptable to
the Successor Agent in its sole discretion in writing), the Borrower shall
deliver to the Successor Agent:


 


(a)                                  Mortgage
amendments reflecting the appointment of the Successor Agent as Administrative
Agent, Collateral Agent and UK Security Trustee, as applicable (the “Mortgage Amendments”),
each in form
and substance reasonably satisfactory to the Successor Agent,
with respect to the Mortgaged Property, each duly executed and delivered by an
authorized officer of each party thereto and in form suitable for filing and
recording in all filing or recording offices that the Successor Agent may deem
necessary or desirable.


 


(b)                                 Date-down
endorsements to the title insurance policies with respect to the Mortgaged Real
Property reflecting the appointment of the Successor Agent as Administrative
Agent, Collateral Agent and UK Security Trustee, as applicable, each in form and substance reasonably
satisfactory to the Successor Agent.


 


(c)                                  An
opinion with respect to each Mortgage Amendment from local counsel to the
Borrower addressed to the Successor Agent and each of the Lenders and dated the
date of the Mortgage Amendments, in form and substance reasonably satisfactory
to the Successor Agent.


 


(d)                                 Evidence
that the reasonable fees, costs and expenses have been paid, to the extent
invoiced, in connection with the preparation, execution, filing and recordation
of the Mortgage Amendments, including, without limitation, reasonable attorneys’
fees, title insurance premiums, filing and recording fees, title insurance
company coordination fees, documentary stamp, mortgage and intangible taxes and
title search charges and other charges incurred in connection with the
recordation of the Mortgage Amendments and the other matters described in this Section 5.1.


 


5.2.                            Within
90 days after the Amendment Effective Date (or such later date acceptable to
the Successor Agent in its sole discretion in writing), the Borrower shall
deliver to the Successor Agent a Perfection Certificate in form and substance
reasonably satisfactory to the Successor Agent and dated as of the date of
delivery thereof.


 


5.3.                            Within
30 days after the Amendment Effective Date (or such later date acceptable to
the Successor Agent in its sole discretion in writing), the Borrower shall
deliver to the Successor Agent:


 


(a)                                  An opinion of Dickinson Dees
LLP, special United Kingdom counsel to the Borrower, or another firm reasonably
acceptable to the Successor Agent, in form and substance reasonably
satisfactory to the Successor Agent, addressed to the Successor Agent and each
of the Lenders and dated as of the date of delivery thereof.


 


(b)                                 An opinion of
Alvord and Alvord, special railcar counsel to the Borrower, or another firm
reasonably acceptable to the Successor Agent, in form and substance reasonably
satisfactory to the Successor Agent, addressed to the Successor Agent and each
of the Lenders and dated as of the date of delivery thereof.


 


SECTION 6                              Representations and
Warranties.  On and as of the Amendment Effective Date, 


 


5

















 


after giving effect to this Amendment, the Borrower hereby represents
and warrants to each Lender as follows:


 


(a)                                  this Amendment has been duly
authorized, executed and delivered by the Borrower and each Subsidiary
Guarantor, as applicable, and constitutes a legal, valid and binding obligation
of the Borrower and each Subsidiary Guarantor, as applicable, enforceable
against the Borrower and each Subsidiary Guarantor, as applicable, in accordance
with its terms, and the Credit Agreement after giving effect to this Amendment,
constitutes the legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms (in each case, except to the
extent that the enforceability hereof or thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws generally
affecting creditors’ rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law));


 


(b)                                 each of the representations
and warranties contained in Article VI  of
the Credit Agreement and in the other Loan Documents are true and correct as of
the Amendment Effective Date, except to the extent such representations and
warranties are expressly made as of a specific date, in which event such
representations and warranties are true and correct as of such specified date; provided,
however, that references therein to the “Credit Agreement” shall be
deemed to refer to the Credit Agreement after giving effect to this Amendment;


 


(c)                                  no Event of Default or
Unmatured Event of Default has occurred and is continuing;


 


(d)                                 other than with respect to
Letters of Credit issued by DB and outstanding as of the Amendment Effective
Date, the Borrower does not currently intend to Cash Collateralize LC
Obligations as of March 31, 2010; and


 


(e)                                  the Senior Secured Leverage
Ratio as of the Amendment Effective Date, after giving effect to the Amended
Credit Agreement, on a Pro Forma Basis, does not exceed 3.75 to 1.00.


 


SECTION 7                              References to and Effect
on the Credit Agreement.


 


7.1.                            On and after the Amendment Effective Date
each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,”
“herein,” or words of like import, and each reference to the Credit Agreement,
as the case may be, in the Loan Documents and all other documents (the “Ancillary
Documents”) delivered in connection with the Credit Agreement shall mean
and be a reference to the Credit Agreement as amended hereby.


 


7.2.                            Except as specifically amended above, the
Credit Agreement, and the other Loan Documents and all other Ancillary
Documents shall remain in full force and effect and are hereby ratified and
confirmed.


 


7.3.                            The execution, delivery and effectiveness
of this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Lenders or the Existing Agent under
the Credit Agreement, the Loan Documents or the Ancillary Documents.


 


SECTION 8                              Miscellaneous.


 


8.1.                            Execution in Counterparts. 
This Amendment may be executed in one or more counterparts, each of
which, when executed and delivered, shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
document with the same force 


 


6

















 


and effect as if the signatures of all of the parties were on a single
counterpart, and it shall not be necessary in making proof of this Amendment to
produce more than one (1) such counterpart.  Delivery of an executed signature page to
this Amendment by telecopy or electronic (pdf) transmission shall be deemed to
constitute delivery of an originally executed signature page hereto.


 


8.2.                            Governing Law. 
THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF
THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE.


 


8.3.                            Headings. 
Headings used in this Amendment are for convenience of reference only
and shall not affect the construction of this Amendment.


 


8.4.                            Integration. 
This Amendment, the other agreements and documents executed and
delivered pursuant to this Amendment and the Credit Agreement constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof.


 


8.5.                            Binding Effect. 
This Amendment shall be binding upon and inure to the benefit of and be
enforceable by the Borrower and the Administrative Agent and the Lenders and
their respective successors and assigns. 
Except as expressly set forth to the contrary herein, this Amendment
shall not be construed so as to confer any right or benefit upon any Person
other than the Borrower, the Administrative Agent and the Lenders and their
respective successors and permitted assigns.


 


8.6.                            Consent to Jurisdiction;
Waiver of Jury Trial.


 


(a)                                  Each party hereby
irrevocably submits to the non-exclusive jurisdiction of any United States
federal or New York State court sitting in the City of New York in any action
or proceeding arising out of or relating to this Amendment, and hereby
irrevocably agrees that all claims in respect to such action or proceeding may
be heard and determined in any such United States federal or New York State
court and the Borrower and each Lender irrevocably waive any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of forum non conveniens which any of them may now or hereafter have
to the bringing of any such action or proceeding in such respective jurisdictions.


 


(b)                                 Each of the parties hereto irrevocably waives trial by jury
in any action or proceeding with respect to this Amendment or any other Loan
Document.


 


8.7.                            Termination of Waiver. 
Effective upon receipt by JPM of this Amendment, duly executed and delivered
by the Borrower and the Lenders constituting the Majority Revolving Facility
Lenders, and irrespective of whether the conditions set forth in Section 4
of this Amendment are satisfied, the Waiver to Credit Agreement, dated as of April 16,
2009, entered into by and among the Borrower and the Revolving Lenders party
thereto (the “Waiver”), shall terminate and all of the terms and
provisions of the Waiver shall no longer be in full force and effect (other
than those expressly stated to survive termination); provided, however, that
the terms of Section 4(b) (Fees, Interest and Expenses, Etc.) of the
Waiver shall remain in full force and effect unless and until the Amendment
Effective Date occurs, whereupon the terms of Section 4(b) of the
Waiver shall terminate.


 


 [Signature Page Follows]


 


7

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their duly authorized officers as of the day and year
first above written.


 


 


	
   

  	
  HUNTSMAN INTERNATIONAL LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John R. Heskett

  
	
   

  	
  Name:

  	
  John
  R. Heskett

  
	
   

  	
  Title:

  	
  Vice
  President, Planning and Treasurer

  



 


SIGNATURE PAGE TO
HUNTSMAN INTERNATIONAL LLC


FIFTH AMENDMENT TO CREDIT
AGREEMENT


 

















 


	
   

  	
  DEUTSCHE BANK AG NEW YORK BRANCH,  as Administrative Agent,
  Collateral Agent, Facing Agent, Swing Line Lender and UK Security Trustee, in
  each case immediately prior to the Amendment Effective Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Omayra Laucella

  
	
   

  	
  Name:

  	
  Omayra
  Laucella

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul O’Leary

  
	
   

  	
  Name:

  	
  Paul
  O’Leary

  
	
   

  	
  Title:

  	
  Director

  



 


SIGNATURE PAGE TO
HUNTSMAN INTERNATIONAL LLC


FIFTH AMENDMENT TO CREDIT
AGREEMENT


 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,  as Administrative Agent, Collateral
  Agent, UK Security Trustee, Facing Agent and Swing Line Lender (in each case
  immediately upon the Amendment Effective Date) and as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jennifer Heard

  
	
   

  	
  Name:

  	
  Jennifer
  Heard

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


SIGNATURE PAGE TO
HUNTSMAN INTERNATIONAL LLC


FIFTH AMENDMENT TO CREDIT
AGREEMENT


 














 


EXHIBIT A TO


FIFTH AMENDMENT TO THE


HUNTSMAN INTERNATIONAL LLC


CREDIT AGREEMENT




 





 


CREDIT AGREEMENT


 


among


 


HUNTSMAN
INTERNATIONAL LLC,


 


as the
Borrower,


 


JPMORGAN
CHASE BANK, N.A.,


 


as
Administrative Agent


 


J.P.
MORGAN SECURITIES INC.,


 


as Sole
Lead Arranger and Book Runner


 


and


 


VARIOUS LENDING INSTITUTIONS,


 


as Lenders


 


Dated as of August 16, 2005


 


as amended by:


 


Consent and First Amendment to Credit Agreement
dated as of December 12, 2005,


Consent and Second Amendment to Credit Agreement
and


Amendment to Security Documents dated as of June 30,
2006, and


Third Amendment to Credit Agreement dated as of April 19,
2007


Fourth Amendment to Credit Agreement dated as of June 22,
2009


Fifth Amendment to Credit Agreement dated as of March 9,
2010


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS
  AND ACCOUNTING TERMS

  	
   

  	
  1

  
	
  1.1

  	
  Definitions

  	
   

  	
  1

  
	
  1.2

  	
  Accounting Terms; Financial Statements

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II AMOUNT AND
  TERMS OF CREDIT

  	
   

  	
  53

  
	
  2.1

  	
  The Commitments

  	
   

  	
  53

  
	
  2.2

  	
  Notes

  	
   

  	
  57

  
	
  2.3

  	
  Minimum Amount of Each Borrowing; Maximum Number of
  Borrowings

  	
   

  	
  57

  
	
  2.4

  	
  Interest Rate Options

  	
   

  	
  58

  
	
  2.5

  	
  Notice of Borrowing

  	
   

  	
  58

  
	
  2.6

  	
  Conversion or Continuation

  	
   

  	
  59

  
	
  2.7

  	
  Disbursement of Funds

  	
   

  	
  60

  
	
  2.8

  	
  Pro Rata Borrowings

  	
   

  	
  61

  
	
  2.9

  	
  Amount and Terms of Letters of Credit

  	
   

  	
  61

  
	
  2.10

  	
  Revolving Commitment Increase

  	
   

  	
  69

  
	
  2.11

  	
  Extension of Stated Termination Date

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III INTEREST
  AND FEES

  	
   

  	
  72

  
	
  3.1

  	
  Interest

  	
   

  	
  72

  
	
  3.2

  	
  Fees

  	
   

  	
  73

  
	
  3.3

  	
  Computation of Interest and Fees

  	
   

  	
  74

  
	
  3.4

  	
  Interest Periods

  	
   

  	
  74

  
	
  3.5

  	
  Compensation for Funding Losses

  	
   

  	
  75

  
	
  3.6

  	
  Increased Costs, Illegality, Etc.

  	
   

  	
  76

  
	
  3.7

  	
  Replacement of Affected Lenders

  	
   

  	
  78

  
	
  3.8

  	
  Impaired Lenders

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV REDUCTION OF
  COMMITMENTS; PAYMENTS AND PREPAYMENTS

  	
   

  	
  81

  
	
  4.1

  	
  Voluntary Reduction of Commitments

  	
   

  	
  81

  
	
  4.2

  	
  Mandatory Reductions of Commitments

  	
   

  	
  82

  
	
  4.3

  	
  Voluntary Prepayments

  	
   

  	
  83

  
	
  4.4

  	
  Mandatory Prepayments

  	
   

  	
  84

  



 


i

















 


	
  4.5

  	
  Application of Prepayments

  	
   

  	
  87

  
	
  4.6

  	
  Method and Place of Payment

  	
   

  	
  88

  
	
  4.7

  	
  Net Payments

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V CONDITIONS OF
  CREDIT

  	
   

  	
  92

  
	
  5.1

  	
  Conditions Precedent to the Closing Date

  	
   

  	
  92

  
	
  5.2

  	
  Conditions Precedent to All Credit Events

  	
   

  	
  98

  
	
  5.3

  	
  Additional Conditions to All Credit Events

  	
   

  	
  99

  
	
  5.4

  	
  Additional Conditions to Usage of Revolving
  Commitments

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  100

  
	
  6.1

  	
  Corporate Status

  	
   

  	
  100

  
	
  6.2

  	
  Corporate Power and Authority

  	
   

  	
  100

  
	
  6.3

  	
  No Violation

  	
   

  	
  101

  
	
  6.4

  	
  Governmental and Other Approvals

  	
   

  	
  101

  
	
  6.5

  	
  Financial Statements; Financial Condition;
  Undisclosed Liabilities; Projections; etc.

  	
   

  	
  101

  
	
  6.6

  	
  Litigation

  	
   

  	
  103

  
	
  6.7

  	
  Disclosure

  	
   

  	
  103

  
	
  6.8

  	
  Use of Proceeds; Margin Regulations

  	
   

  	
  103

  
	
  6.9

  	
  Tax Returns and Payments

  	
   

  	
  104

  
	
  6.10

  	
  Compliance With ERISA

  	
   

  	
  104

  
	
  6.11

  	
  Ownership of Property

  	
   

  	
  105

  
	
  6.12

  	
  Capitalization of the Borrower

  	
   

  	
  106

  
	
  6.13

  	
  Subsidiaries

  	
   

  	
  106

  
	
  6.14

  	
  Compliance With Law, Etc.

  	
   

  	
  107

  
	
  6.15

  	
  Investment Company Act

  	
   

  	
  107

  
	
  6.16

  	
  Subordination Provisions

  	
   

  	
  107

  
	
  6.17

  	
  Environmental Matters

  	
   

  	
  107

  
	
  6.18

  	
  Labor Relations

  	
   

  	
  108

  
	
  6.19

  	
  Intellectual Property, Licenses, Franchises and
  Formulas

  	
   

  	
  108

  
	
  6.20

  	
  Certain Fees

  	
   

  	
  109

  
	
  6.21

  	
  Security Documents

  	
   

  	
  109

  
	
  6.22

  	
  Anti-Terrorism Law

  	
   

  	
  110

  



 


ii

















 


	
  ARTICLE VII AFFIRMATIVE
  COVENANTS

  	
   

  	
  111

  
	
  7.1

  	
  Financial Statements

  	
   

  	
  111

  
	
  7.2

  	
  Certificates; Other Information

  	
   

  	
  112

  
	
  7.3

  	
  Notices

  	
   

  	
  113

  
	
  7.4

  	
  Conduct of Business and Maintenance of Existence

  	
   

  	
  115

  
	
  7.5

  	
  Payment of Obligations

  	
   

  	
  115

  
	
  7.6

  	
  Inspection of Property, Books and Records

  	
   

  	
  115

  
	
  7.7

  	
  ERISA

  	
   

  	
  116

  
	
  7.8

  	
  Maintenance of Property, Insurance

  	
   

  	
  117

  
	
  7.9

  	
  Environmental Laws

  	
   

  	
  118

  
	
  7.10

  	
  Use of Proceeds

  	
   

  	
  119

  
	
  7.11

  	
  Additional Security; Further Assurances

  	
   

  	
  119

  
	
  7.12

  	
  End of Fiscal Years; Fiscal Quarters

  	
   

  	
  122

  
	
  7.13

  	
  Maintenance of Ratings

  	
   

  	
  122

  
	
  7.14

  	
  Certain Fees Indemnity

  	
   

  	
  122

  
	
  7.15

  	
  Successor Agency Transfer

  	
   

  	
  122

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII NEGATIVE
  COVENANTS

  	
   

  	
  123

  
	
  8.1

  	
  Liens

  	
   

  	
  123

  
	
  8.2

  	
  Indebtedness

  	
   

  	
  125

  
	
  8.3

  	
  Consolidation, Merger, Purchase or Sale of Assets,
  etc.

  	
   

  	
  128

  
	
  8.4

  	
  Dividends or Other Distributions

  	
   

  	
  130

  
	
  8.5

  	
  Certain Restrictions on Subsidiaries

  	
   

  	
  131

  
	
  8.6

  	
  Issuance of Stock

  	
   

  	
  132

  
	
  8.7

  	
  Loans and Investments

  	
   

  	
  132

  
	
  8.8

  	
  Transactions with Affiliates

  	
   

  	
  135

  
	
  8.9

  	
  Lines of Business

  	
   

  	
  136

  
	
  8.10

  	
  Fiscal Year

  	
   

  	
  136

  
	
  8.11

  	
  Limitation on Voluntary Payments and Modifications
  of Indebtedness; Modifications of Certificate of Incorporation, By-Laws and
  Certain Other Agreements; Etc.

  	
   

  	
  136

  
	
  8.12

  	
  Accounting Changes

  	
   

  	
  137

  
	
  8.13

  	
  Permitted Accounts Receivable Securitization and
  Foreign Factoring Transactions

  	
   

  	
  138

  



 


iii

















 


	
  ARTICLE IX FINANCIAL
  COVENANTS

  	
   

  	
  138

  
	
  9.1

  	
  Senior Secured Leverage Ratio

  	
   

  	
  138

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X EVENTS OF
  DEFAULT

  	
   

  	
  138

  
	
  10.1

  	
  Events of Default

  	
   

  	
  138

  
	
  10.2

  	
  Rights Not Exclusive

  	
   

  	
  143

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI THE
  ADMINISTRATIVE AGENT

  	
   

  	
  143

  
	
  11.1

  	
  Appointment

  	
   

  	
  143

  
	
  11.2

  	
  Nature of Duties

  	
   

  	
  144

  
	
  11.3

  	
  Exculpation, Rights Etc.

  	
   

  	
  144

  
	
  11.4

  	
  Reliance

  	
   

  	
  145

  
	
  11.5

  	
  Indemnification

  	
   

  	
  145

  
	
  11.6

  	
  The Administrative Agent In Its Individual Capacity

  	
   

  	
  146

  
	
  11.7

  	
  Notice of Default

  	
   

  	
  146

  
	
  11.8

  	
  Holders of Obligations

  	
   

  	
  146

  
	
  11.9

  	
  Resignation by the Administrative Agent

  	
   

  	
  146

  
	
  11.10

  	
  Administrative Agent or the Collateral Agent as UK
  Security Trustee

  	
   

  	
  148

  
	
  11.11

  	
  The Joint Lead Arrangers, Joint Book Runners,
  Co-Syndication Agents, Co-Documentation Agents and Senior Managing Agents

  	
   

  	
  149

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII
  MISCELLANEOUS

  	
   

  	
  150

  
	
  12.1

  	
  No Waiver; Modifications in Writing

  	
   

  	
  150

  
	
  12.2

  	
  Further Assurances

  	
   

  	
  152

  
	
  12.3

  	
  Notices, Etc.

  	
   

  	
  152

  
	
  12.4

  	
  Costs, Expenses and Taxes

  	
   

  	
  154

  
	
  12.5

  	
  Confirmations

  	
   

  	
  156

  
	
  12.6

  	
  Adjustment; Setoff

  	
   

  	
  157

  
	
  12.7

  	
  Execution in Counterparts

  	
   

  	
  158

  
	
  12.8

  	
  Binding Effect; Assignment; Addition and
  Substitution of Lenders

  	
   

  	
  158

  
	
  12.9

  	
  CONSENT
  TO JURISDICTION; MUTUAL WAIVER OF JURY TRIAL

  	
   

  	
  161

  
	
  12.10

  	
  GOVERNING
  LAW

  	
   

  	
  162

  
	
  12.11

  	
  Severability of
  Provisions

  	
   

  	
  162

  
	
  12.12

  	
  Headings

  	
   

  	
  162

  
	
  12.13

  	
  Termination of
  Agreement

  	
   

  	
  162

  



 


iv

















 


	
  12.14

  	
  Confidentiality

  	
   

  	
  163

  
	
  12.15

  	
  Concerning the
  Collateral and the Loan Documents

  	
   

  	
  164

  
	
  12.16

  	
  Intentionally
  Omitted

  	
   

  	
  166

  
	
  12.17

  	
  Registry

  	
   

  	
  166

  
	
  12.18

  	
  Accounts
  Receivable Securitization

  	
   

  	
  167

  
	
  12.19

  	
  Certain
  Guarantee Obligations

  	
   

  	
  167

  
	
  12.20

  	
  Redesignation of
  Unrestricted Subsidiaries

  	
   

  	
  168

  
	
  12.21

  	
  Administrative Agent and Collateral Agent as Joint
  Creditors

  	
   

  	
  169

  
	
  12.22

  	
  Amendment With Respect to Revolver Events of Default

  	
   

  	
  169

  
	
  12.23

  	
  Term C Dollar Lenders

  	
   

  	
  169

  



 


v

















 


INDEX
OF EXHIBITS AND SCHEDULES


 


Exhibits


 


	
  Exhibit 2.1(c)

  	
  Form of Swing Line
  Loan Participation Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 2.2(a)(1)

  	
  Form of Term B
  Dollar Note

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 2.2(a)(2)

  	
  Form of Revolving
  Note

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 2.2(a)(3)

  	
  Form of Swing Line
  Note

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 2.5

  	
  Form of Notice of
  Borrowing

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 2.6

  	
  Form of Notice of
  Conversion or Continuation

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 2.9(b)

  	
  Form of Notice of
  Issuance

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 4.7(d)

  	
  Form of
  Section 4.7(d)(i) Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 5.1(c)

  	
  Form of Pledge
  Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 5.1(d)(i)

  	
  Form of Subsidiary
  Guaranty Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 5.1(d)(ii)

  	
  Form of
  Headquarters Subsidiary Guaranty Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 5.1(f)

  	
  Form of Perfection
  Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 5.1(s)(i)

  	
  Form of
  Vinson & Elkins L.L.P. Legal Opinion

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 5.1(s)(ii)

  	
  Form of Stoel
  Rives LLP Legal Opinion

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 5.1(s)(iii)

  	
  Form of Alvord and
  Alvord Legal Opinion

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 5.1(v)

  	
  Form of Tax
  Sharing Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 7.2(b)

  	
  Form of Compliance
  Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 8.7(g)

  	
  Form of
  Subordination Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 12.8(c)

  	
  Form of Assignment
  and Assumption Agreement

  	
   

  



 


vi

















 


Schedules


 


	
  Schedule 1.1(a)

  	
  Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1(b)

  	
  Calculation of the
  Mandatory Cost

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1(c)

  	
  Unrestricted
  Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1(d)

  	
  Fifth Amendment
  Existing Letters of Credit

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 2.9(j)

  	
  Outstanding Letters of
  Credit

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 5.1(i)(iii)

  	
  List of Foreign
  Intercompany Loan Security Document Deliveries

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 6.5(c)

  	
  Existing Liabilities

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 6.5(e)

  	
  Projections

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 6.12(a)

  	
  Capitalization of the
  Borrower

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 6.13

  	
  List of Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 6.21(c)

  	
  Owned and Leased
  Properties

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 7.8

  	
  Insurance Levels

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 8.1(h)

  	
  Existing Liens

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 8.2(b)(ii)

  	
  Existing Indebtedness

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 8.5(a)

  	
  Existing Restrictions
  on Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 8.7(b)

  	
  Existing Investments

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 8.7(h)

  	
  Investments With
  Respect to Forgiveness of Certain Intercompany Debt

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 8.9

  	
  IRIC Account Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 12.3

  	
  Notice Information

  	
   

  



 


vii














 


CREDIT AGREEMENT


 


THIS CREDIT AGREEMENT is
dated as of August 16, 2005 and is made by and among Huntsman
International LLC, a Delaware limited liability company (the “Borrower”),
the financial institutions party hereto, in their capacities as lenders hereunder
(collectively, the “Lenders,” and each individually, a “Lender”),
JPMorgan Chase Bank, N.A., as Administrative Agent (acting in such capacity,
the “Administrative Agent”) for the Lenders, and J.P. Morgan Securities
Inc., as Sole Lead Arranger and Book Runner.


 


W I T N E S S E T H:


 


WHEREAS, on the Closing
Date, Huntsman LLC, a Delaware limited liability company (“HLLC”) will
merge with and into the Borrower, with the Borrower as the surviving entity
(the “Merger”) pursuant to the terms of the Merger Agreement (as defined
herein);


 


WHEREAS, this Agreement
will repay in full, extinguish and replace (i) that certain Revolving
Credit Agreement dated as of October 14, 2004 by and among HLLC, Deutsche
Bank Trust Company Americas (“DBTCA”), as administrative agent and the
lenders party thereto (the “Prior HLLC Revolving Credit Agreement”), (ii) that
certain Credit Agreement dated as of October 14, 2004 by and among HLLC,
DBTCA, as administrative agent and collateral agent and the lenders party
thereto (the “Prior HLLC Term Credit Agreement”) and (iii) that
certain Amended and Restated Credit Agreement dated as of July 13, 2004 by
and among the Borrower, Huntsman International Holdings LLC, the financial
institutions party thereto, DBTCA, as administrative agent, and the co-lead
arrangers, co-syndication agents and co-documentation agents identified therein
(the “Prior HI Credit Agreement” and together with the Prior HLLC
Revolving Credit Agreement and the Prior Term HLLC Credit Agreement the “Prior
Credit Agreements”);


 


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


 


SECTION 9


 


DEFINITIONS
AND ACCOUNTING TERMS


 


9.1.                            Definitions


 


As used herein, and
unless the context requires a different meaning, the following terms have the
meanings indicated:


 


“Accounts Receivable”
means presently existing and hereafter arising or acquired accounts receivable,
notes, drafts, acceptances, general intangibles, choses in action and other
forms of obligations and receivables relating in any way to Inventory or
arising from the sale of  Inventory or
the rendering of services by the Borrower or its Subsidiaries or howsoever
otherwise arising, including the right to payment of any interest or finance
charges with respect thereto and all proceeds of insurance with respect
thereto, together with all of the Borrower’s or 


 


1

















 


its Subsidiaries’
rights as an unpaid vendor, all pledged assets, guaranty claims, liens and
security interests held by or granted to the Borrower or its Subsidiaries to
secure payment of any Accounts Receivable and all books, customer lists,
ledgers, records and files (whether written or stored electronically) relating
to any of the foregoing.


 


“Acquired Debt”
has the meaning assigned to such term in Section 8.2(b)(xi).


 


“Acquisition” has
the meaning assigned to that term in Section 8.7(m).


 


“Additional Security
Documents” means all mortgages, pledge agreements, security agreements,
reaffirmations and other security documents entered into pursuant to Section 7.11
with respect to additional Collateral, in each case, as amended, supplemented
or otherwise modified from time to time.


 


“Additional Term Loans”
means term loans and commitments to make term loans whose contractual priority
of payment is pari  passu in all respects with the Term B Dollar
Loans made pursuant to Section 2.1(a)(i) that (i) have a
Weighted Average Life to Maturity of not less than the Term Loan with the then
longest Weighted Average Life to Maturity and a final maturity no earlier than
latest Term Maturity Date; (ii) are on terms and conditions substantially
similar to those applicable to the existing Term Facilities and (iii) have
applicable margins (which, for such purposes only, shall be deemed to include
all upfront or similar compensation or original issue discount (amortized over
an assumed three year life) payable to all Lenders providing such loans, but
exclusive of any arrangement, structuring or other similar fees payable in
connection therewith that are not shared with all Lenders providing such loans)
determined as of the initial funding date for such loans not greater than 0.50%
above the applicable margins then in effect for Term B Dollar Loans (which, for
such purposes only, shall be deemed to include all upfront or similar
compensation or original issue discount (amortized over an assumed three year
life) paid to all Term B Dollar Lenders as of the initial funding date for such
Term B Dollar Loans, but exclusive of any arrangement, structuring or other
similar fees payable in connection therewith that are not shared with all Term
B Dollar Lenders).


 


“Administrative Agent”
has the meaning assigned to that term in the introduction to this Agreement,
and includes any successor Administrative Agent in such capacity.


 


“Affiliate” means,
with respect to any Person, any Person or group acting in concert in respect of
the Person in question that, directly or indirectly, controls (including but
not limited to all directors and officers of such Person) or is controlled by
or is under common control with such Person; provided that no Agent nor
any Affiliate of an Agent shall be deemed to be an Affiliate of the
Borrower.  For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any Person or
group of Persons, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of management and policies of such
Person, whether through the ownership of Voting Securities or by contract or
otherwise.  A Person shall be deemed to
control a Person if such first Person possesses, directly or indirectly, the
power to vote 15% or more of the securities having ordinary voting power for
the election of directors, managers or similar governing body of such Person.


 


2

















 


“Agent” has the
meaning assigned to that term in the introduction to this agreement and includes
any successor agent in any such capacity.


 


“Agreement” means
this Credit Agreement, as the same may at any time be amended, supplemented or
otherwise modified in accordance with the terms hereof and in effect.


 


“Airstar Aircraft
Financing Documents” means operating leases and related documents entered
into by Airstar Corporation relating to aircraft owned or acquired by it and
any agreements or documents entered into by Airstar Corporation.


 


“Alternative Currency”
means, with respect to (i) Revolving Loans, Euros and Sterling, and (ii) any
Letter of Credit or Swing Line Loans, Euros, Sterling and any currency which is
freely transferable and convertible into Dollars.


 


“Applicable Base Rate
Margin” means at any date, (i) with respect to Revolving Loans
denominated in Dollars, (A) during the period commencing on the Fifth
Amendment Effective Date and ending on the date that financial statements for
the Fiscal Quarter ending March 31, 2010 are delivered to the Lenders
pursuant to Section 7.1, 2.50% per annum, and (B) thereafter,
the applicable percentage set forth in the following table under the column
Applicable Base Rate Margin for Revolving Loans opposite the Most Recent Senior
Secured Leverage Ratio as of such date, (ii) with respect to Term C Dollar
Loans, 1.25% and (iii) with respect to Term B Dollar Loans, the applicable
percentage set forth under the column Applicable Base Rate Margin for Term B
Dollar Loans opposite the Most Recent Senior Secured Leverage Ratio as of such
date:


 


	
   

  	
  Most
  Recent

  Senior Secured Leverage Ratio

  	
   

  	
  Applicable Base Rate

  Margin for Revolving

  Loans

  	
   

  	
   

  
	
   

  	
  Less
  than or equal to 2.00 to 1

  	
   

  	
  2.00

  	
  %

  	
   

  
	
   

  	
  Greater
  than 2.00 to 1 but less than or equal to 2.50 to 1

  	
   

  	
  2.25

  	
  %

  	
   

  
	
   

  	
  Greater
  than 2.50 to 1

  	
   

  	
  2.50

  	
  %

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Most
  Recent

  Senior Secured Leverage Ratio

  	
   

  	
  Applicable Base Rate

  Margin for Term B

  Dollar Loans

  	
   

  	
   

  
	
   

  	
  Less
  than or equal to 2.25 to 1

  	
   

  	
  0.50

  	
  %

  	
   

  
	
   

  	
  Greater
  than 2.25 to 1

  	
   

  	
  0.75

  	
  %

  	
   

  



 


3

















 


“Applicable Commitment
Fee Percentage” means at any date, (i) during the period commencing on
the Fifth Amendment Effective Date and ending on the date that financial
statements for the Fiscal Quarter ending March 31, 2010 are delivered to
the Lenders pursuant to Section 7.1, 0.75% per annum and (ii) thereafter,
the applicable percentage set forth in the following table under the column
Applicable Commitment Fee Percentage opposite the Most Recent Senior Secured
Leverage Ratio as of such date:


 


	
   

  	
  Most Recent

  Senior Secured Leverage Ratio

  	
   

  	
  Applicable Commitment

  Fee Percentage

  	
   

  	
   

  
	
   

  	
  Less than or equal to 2.00 to 1

  	
   

  	
  0.50

  	
  %

  	
   

  
	
   

  	
  Greater than 2.00 to 1 but less than or equal to
  2.50 to 1

  	
   

  	
  0.625

  	
  %

  	
   

  
	
   

  	
  Greater than 2.50 to 1

  	
   

  	
  0.75

  	
  %

  	
   

  



 


“Applicable Currency”
means as to any particular payment or Loan, Dollars or the Alternative Currency
in which such payment or Loan is denominated or is payable.


 


“Applicable
Eurocurrency Margin” means at any date, (i) with respect to Term B
Dollar Loans, the applicable percentage set forth in the following table under
the column Applicable Eurocurrency Margin for Term B Dollar Loans opposite the
Most Recent Senior Secured Leverage Ratio on such date, (ii) with respect
to Term C Dollar Loans, 2.25% and (iii) with respect to Revolving Loans, (A) during
the period commencing on the Fifth Amendment Effective Date and ending on the
date that financial statements for the Fiscal Quarter ending March 31,
2010 are delivered to the Lenders pursuant to Section 7.1, 3.50%
per annum and (B) thereafter, the applicable percentage set forth in the
following table under the column Applicable Eurocurrency Margin for Revolving
Loans opposite the Most Recent Senior Secured Leverage Ratio as of such date:


 


	
   

  	
  Most
  Recent

  Senior Secured Leverage

  Ratio

  	
   

  	
  Applicable

  Eurocurrency Margin for

  Revolving Loans

  	
   

  	
   

  
	
   

  	
  Less
  than or equal to 2.00 to 1

  	
   

  	
  3.00

  	
  %

  	
   

  
	
   

  	
  Greater
  than 2.00 to 1 but less than or equal to 2.50 to 1

  	
   

  	
  3.25

  	
  %

  	
   

  
	
   

  	
  Greater
  than 2.50 to 1

  	
   

  	
  3.50

  	
  %

  	
   

  



 


4

















 


	
   

  	
  Most
  Recent

  Senior Secured Leverage Ratio

  	
   

  	
  Applicable Eurocurrency

  Margin for Term B

  Dollar Loans

  	
   

  	
   

  
	
   

  	
  Less
  than or equal to 2.25 to 1

  	
   

  	
  1.50

  	
  %

  	
   

  
	
   

  	
  Greater
  than 2.25 to 1

  	
   

  	
  1.75

  	
  %

  	
   

  



 


“Asset Disposition”
means any sale, lease, transfer or other disposition (or series of related
sales, leases, transfers or dispositions) by the Borrower or any of its
Subsidiaries (other than Dividends or Tax Distributions to the extent permitted
under Section 8.4 or dispositions constituting a Recovery Event) of
all or any part of an interest in shares of Capital Stock of a Subsidiary of
the Borrower (other than directors’ qualifying shares and similar arrangements
required by Requirements of Law), property or other assets (each referred to
for the purposes of this definition as a “disposition”); provided  that
a disposition permitted by Section 8.3(a) through 8.3(g) or
Section 8.3(j) through 8.3(n) shall not constitute
an Asset Disposition for purposes of this definition.


 


“Assigned Dollar Value”
shall mean (i) in respect of any Borrowing denominated in Dollars, the
amount thereof, (ii) in respect of the undrawn amount of any Letter of
Credit denominated in an Alternative Currency, the Dollar Equivalent thereof
based upon the applicable Exchange Rate as of (a) the date of issuance of
such Letter of Credit, and (b) thereafter as of the first Business Day of
each month, (iii) in respect of any Letter of Credit reimbursement
obligations denominated in an Alternative Currency, the Dollar Equivalent
thereof determined based upon the applicable Exchange Rate as of the date such
reimbursement obligation was incurred and (iv) in respect of a Borrowing
denominated in an Alternative Currency, the Dollar Equivalent thereof based
upon the applicable Exchange Rate as of the last Exchange Rate Determination
Date; provided, however, in the case of Borrowings in an Alternative
Currency, if, as of the end of any Interest Period in respect of such
Borrowing, the Dollar Equivalent thereof determined based upon the applicable
Exchange Rate as of the date that is three Business Days before the end of such
Interest Period would be at least 5% more, or 5% less, than the “Assigned
Dollar Value” thereof that would otherwise be applicable, then on and after the
end of such Interest Period the “Assigned Dollar Value” of such Borrowing shall
be adjusted to be the Dollar Equivalent thereof determined based upon the
Exchange Rate that gave rise to such adjustment (subject to further adjustment
in accordance with this proviso thereafter), and the Administrative Agent shall
give the Borrower notice of such adjustment; provided, however,
that failure to give such notice shall not affect the Borrower’s Obligations
hereunder or result in any liability to the Administrative Agent.  The Assigned Dollar Value of a Loan included
in any Borrowing shall equal the pro rata portion of the Assigned Dollar Value
of such Borrowing represented by such Loan.


 


“Assignee” has the
meaning assigned to that term in Section 12.8(c).


 


“Assignment and
Assumption Agreement” means an Assignment and Assumption Agreement
substantially in the form of Exhibit 12.8(c), executed by any
applicable Lender, as assignor, and such Lender’s assignee in accordance with Section 12.8.


 


5

















 


“Attorney Costs”
means all reasonable fees and disbursements of any law firm or other external
counsel and the reasonable allocated cost of internal legal services, including
all reasonable disbursements of internal counsel.


 


“Attributable Debt”
means as of the date of determination thereof with respect to an Operating
Financing Lease, the net present value (discounted according to GAAP at the
cost of debt implied in the lease) of the obligations of the lessee for rental
payments during the then remaining term of such Operating Financing Lease.


 


“Available Equity
Proceeds” means, as of any date of determination, all Net Equity Proceeds
received by the Borrower after the Effective Date less the sum of the amounts
attributed to such proceeds that are utilized for (i) Restricted Payments
pursuant to Section 8.4(b), (ii) Unrestricted Investments
pursuant to Section 8.7(o) and (iii) payments in respect
of Public Notes pursuant to Section 8.11(i).


 


“Available Liquidity”
means, as of any date of determination, Cash, Cash Equivalents and Foreign Cash
Equivalents of the Borrower and its Subsidiaries plus the Total Available
Revolving Commitment as of such date.


 


“Available Revolving
Commitment” means, as to any Lender at any time an amount equal to the
amount, if any, by which (i) such Lender’s Revolving Commitment exceeds (ii) the
sum of (w) the Assigned Dollar Value of the aggregate principal amount of
Revolving Loans made by such Lender then outstanding, (x) such Lender’s
Pro Rata Share of the Assigned Dollar Value of LC Obligations, (y) such
Lender’s Pro Rata Share of the Assigned Dollar Value of the aggregate principal
amount of Swing Line Loans then outstanding and (z) such Lender’s Pro Rata
Share of the Overdraft Reserve, if any, at such time.


 


“Available
Unrestricted Subsidiary Investment Basket” means, as of any date of
determination, an amount equal to the Unrestricted Subsidiary Investment
Basket, as of such date, less the sum of the aggregate outstanding amount of
Investments made in Permitted Unconsolidated Ventures or Unrestricted
Subsidiaries pursuant to Section 8.7(j)(i).


 


“Bank Guarantee”
means a direct guarantee issued for the account of the Borrower, and, if
requested, a Subsidiary of the Borrower, pursuant to this Agreement by a Facing
Agent, in form acceptable to the Facing Agent, ensuring that a liability
acceptable to the Facing Agent of the Borrower or a Subsidiary of a Borrower to
a third Person will be met.


 


“Bankruptcy Code”
means Title I of the Bankruptcy Reform Act of 1978, as amended, as set forth in
Title 11 of the United States Code, as hereafter amended.


 


“Base Rate” means
the greater of (i) the rate most recently announced by JPMCB at its
principal office as its “prime rate”, which is not necessarily the lowest rate
made available by JPMCB or (ii) the Federal Funds Rate plus 1/2 of 1% per
annum.  The “prime rate” announced by
JPMCB is evidenced by the recording thereof after its announcement in such
internal publication or publications as JPMCB may designate.  Any change in the Base Rate resulting from a
change in such “prime rate” announced by JPMCB shall become effective without
prior notice to the Borrower as of 12:01 a.m. (New York City time) on the
Business Day 


 


6

















 


on which each
change in such “prime rate” is announced by JPMCB.  JPMCB may make commercial or other loans to
others at rates of interest at, above or below its “prime rate”.


 


“Base Rate Loan”
means any Loan which bears interest at a rate determined with reference to the
Base Rate.


 


“Benefited Lender”
has the meaning assigned to that term in Section 12.6(a).


 


“Board” means the
Board of Governors of the Federal Reserve System.


 


“Borrower” has the
meaning assigned to that term in the introduction to this Agreement.


 


“Borrowing” means
a group of Loans of a single Type made by the Lenders or the Swing Line Lender,
as appropriate, on a single date (or resulting from one or more conversions or
continuations, or a combination thereof, on a single date) and in the case of
Eurocurrency Loans, as to which a single Interest Period is, or on such date of
conversion or continuation, will be in effect; provided that Base Rate
Loans or Eurocurrency Loans acquired by a Replacement Lender pursuant to Section 3.7
shall be considered part of any related Borrowing of Eurocurrency Loans made,
converted or continued by the Replaced Lender.


 


“Business Day”  means (i) as it relates to any payment,
determination, funding or notice to be made or given in connection with any
Dollar-denominated Loan, or otherwise to be made or given to or from the
Administrative Agent, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close; provided,
however, that when used in connection with a Eurocurrency Loan, the term
“Business Day” shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market; provided, further,
that when used in connection with any Letter of Credit, the term “Business Day”
shall also exclude any day on which commercial banks in the city in which the
Facing Agent for such Letter of Credit is domiciled are required by law to
close; and (ii) as it relates to any payment, determination, funding or
notice to be made or given in connection with any Loan or Letter of Credit
denominated in an Alternative Currency, any day (x) on which dealings in
deposits in the relevant Alternative Currency are carried out in the London
interbank market, (y) on which commercial banks and foreign exchange
markets are open for business in London, New York City and the principal
financial center for such Alternative Currency or (z) any day on which the
Trans-European Real-time Gross Settlement Operating System (or any successor
operating system) is not operating (as determined in good faith by the
Administrative Agent).  For purposes of
this Agreement (other than for purposes of determining the end of any
applicable Interest Period and other than for purposes of any Loan, Letter of
Credit or action required to be taken outside of the United States), “Business
Day” shall not include Pioneer Day as recognized in the State of Utah in any
year.


 


“C4 Business Sale”
means the sale of Huntsman Petrochemical Corporation and Huntsman
Fuels, L.P. to Texas Petrochemicals L.P. pursuant to that certain Asset
Purchase Agreement dated as of April 5, 2006.


 


“Capital Stock”
means, with respect to any Person, any and all shares, interests,
participations, rights in or other equivalent ownership interests (however
designated) in such 


 


7

















 


Person’s capital
stock, partnership interests, membership interests or other equivalent
interests and any rights (other than debt securities convertible into or
exchangeable for capital stock), warrants or options exchangeable for or
convertible into any such ownership interests.


 


“Capitalized Lease”
means, at the time any determination thereof is to be made, any lease of
property, real or personal, in respect of which the present value of the
minimum rental commitment is capitalized on the balance sheet of the lessee in
accordance with GAAP.


 


“Capitalized Lease
Obligation” means, at the time any determination thereof is to be made, the
amount of the liability in respect of a Capitalized Lease which would at such
time be required to be capitalized on the balance sheet of the lessee in accordance
with GAAP.


 


“Cash” means
money, currency or the available credit balance in a Deposit Account.


 


“Cash Collateralize”
means, in respect of an obligation, provide and pledge (as a first priority
perfected security interest) Cash in Dollars (or cash in an Alternative
Currency if the Administrative Agent, relevant Facing Agent and/or the Swing
Line Lender so approves), at a location and pursuant to documentation in form
and substance reasonably satisfactory to the Administrative Agent, relevant
Facing Agent  and/or the Swing Line Lender, as applicable (and “Cash
Collateralization” has a corresponding meaning).


 


“Cash Equivalents”
means any Investment in (i) a marketable obligation, maturing within two
years after issuance thereof, issued or guaranteed by the United States of
America or any instrumentality or agency thereof, (ii) a certificate of
deposit or banker’s acceptance, maturing within one year after issuance
thereof, issued by any Lender, or a national or state bank or trust company
organized and existing under the laws of the United States or any state thereof
or a European, Canadian or Japanese bank, in each case having capital, surplus
and undivided profits of at least $100,000,000 and whose long-term unsecured
debt has a rating of “A” or better by S&P or “A2” or better by Moody’s or
the equivalent rating by any other nationally recognized rating agency
(provided that the aggregate face amount of all Investments in certificates of
deposit or bankers’ acceptances issued by the principal offices of or branches
of European or Japanese banks located outside the United States shall not at
any time exceed 33-1/3% of all Investments described in this definition), (iii) open
market commercial paper, maturing within 270 days after issuance thereof, which
has a rating of “A1” or better by S&P or “P1” or better by Moody’s, or the
equivalent rating by any other nationally recognized rating agency, (iv) repurchase
agreements and reverse repurchase agreements with a term not in excess of one
year with any financial institution which has been elected a primary government
securities dealer by the Board or whose securities are rated “AA-” or better by
S&P or “Aa3” or better by Moody’s or the equivalent rating by any other
nationally recognized rating agency relating to marketable direct obligations
issued or unconditionally guaranteed by the United States of America or any
agency or instrumentality thereof and backed by the full faith and credit of
the United States of America, (v) “Money Market” preferred stock maturing
within six months after issuance thereof or municipal bonds issued by a
corporation organized under the laws of any state of the United States, which
has a rating of “A” or better by S&P or Moody’s or the equivalent rating by
any other nationally recognized rating agency, (vi) tax exempt floating
rate option tender bonds backed by letters of credit issued by a national or
state bank whose 


 


8

















 


long-term
unsecured debt has a rating of “AA” or better by S&P or “Aa2” or better by
Moody’s or the equivalent rating by any other nationally recognized rating
agency, and (vii) shares of any money market mutual fund rated at least
AAA or the equivalent thereof by S&P or at least Aaa or the equivalent
thereof by Moody’s or any other mutual fund holding assets consisting (except
for de minimis amounts) of securitized
products, such as asset backed securities and of the type specified in clauses
of (i) through (vi) above.


 


“Change of Control”
means the occurrence of one or more of the following events: (x) any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), other than Mr. Jon M. Huntsman, his spouse, direct
descendants, an entity controlled by any of the foregoing and/or by a trust of
the type described hereafter, and/or a trust for the benefit of any of the
foregoing (the “Huntsman Group”) or MatlinPatterson Global Opportunities
Partners L.P., or any Affiliate thereof (the “MP Group”), is or becomes
the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have “beneficial
ownership” of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of 40% or more of the then outstanding Voting
Securities of Huntsman Corporation; (y) any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act),
other than the Huntsman Group, the MP Group or Huntsman Corporation (or any
successor entity) is or becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a person shall be deemed to have “beneficial
ownership” of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of 40% or more of the then outstanding Voting
Securities of any Parent Company or the Borrower; or (z) the replacement of
a majority of the Board of Directors of Huntsman Corporation, the Board of
Directors or other group with similar powers of any Parent Company or the Board
of Managers of the Borrower over a two-year period from the managers or
directors who constituted such group, at the beginning of such period, and such
replacement shall not (A) have been approved by a vote of at least a
majority of the Board of Directors of Huntsman Corporation, the Board of
Directors or other group with similar powers of any Parent Company or the Board
of Managers of the Borrower, as the case may be, then still in office who
either were members of such group at the beginning of such period or whose
election as a member of such group was previously so approved or (B) have
been elected or nominated for election by one or more members of the Huntsman
Group.  Change of Control shall also mean
any “Change of Control” as defined in any Public Note Documents that occurs at
a time when the market price (as determined by the Administrative Agent) of the
Public Notes to which the “Change of Control” applies is less than 103% of the
principal amount thereof, or if as a result thereof the holders of such Public
Notes collectively put or tender in excess of $50,000,000 in the aggregate of
such Public Notes.


 


“Closing Date”
means August 16, 2005.


 


“Code” means the
Internal Revenue Code of 1986, as from time to time amended, including the
regulations proposed or promulgated thereunder, or any successor statute and
the regulations proposed or promulgated thereunder.


 


9

















 


“Collateral” means
all “Collateral” as defined in each of the Security Documents and all other
assets of each Credit Party pledged pursuant to any Security Document and any
other collateral pledged by any Credit Party to secure the Obligations.


 


“Collateral Agent”
means JPMCB in its capacity as Collateral Agent under the Collateral Security
Agreement, the Pledge Agreement or any other applicable Security Document, or
any successor Collateral Agent.


 


“Collateral Security
Agreement” has the meaning assigned to that term in Section 5.1(b).


 


“Commercial Letter of
Credit” means any letter of credit or similar instrument issued pursuant to
this Agreement for the purpose of supporting trade obligations of the Borrower
or any of its Subsidiaries in the ordinary course of business.


 


“Commitment”
means, with respect to each Lender, the aggregate of the Revolving Commitment
and Term Commitment, of such Lender and “Commitments” means such
commitments of all of the Lenders collectively.


 


“Commitment Fee”
has the meaning assigned to that term in Section 3.2(a).


 


“Commitment Period”
means, the period from and including the Fifth Amendment Effective Date to but
not including the Revolver Termination Date or, in the case of the Swing Line
Commitment, five (5) Business Days prior to the Revolver Termination Date.


 


“Compliance
Certificate” has the meaning assigned to that term in Section 7.2(b).


 


“Consenting Revolving
Lender” has the meaning assigned to that term in Section 2.11(b).


 


“Consolidated Cash
Interest Expense” means, for any period, (i) Consolidated Interest
Expense, but excluding, however, interest expense not payable in cash,
amortization of discount and deferred financing costs, plus or minus, as the
case may be (ii) net amounts paid or received under Interest Rate
Agreements (with cap payments amortized over the life of the cap) and minus
interest income received in Cash or Cash Equivalents in respect of Investments
permitted hereunder.  Subject to adjustment
as described in Section 1.2(c) for events occurring after the
Effective Date, for purposes of computing Consolidated Cash Interest Expense,
the Consolidated Cash Interest Expense for the second, third and fourth Fiscal
Quarters of 2006 shall be $74.8 million, $74.9 million and $74.8 million,
respectively.


 


“Consolidated Debt”
means, at any time, without duplication, the sum of (i) all Indebtedness
of the Borrower and its Subsidiaries determined on a consolidated basis that
would be required to be shown as debt on a balance sheet prepared in accordance
with GAAP and other Indebtedness under Operating Financing Leases incurred
pursuant to Section 8.2(b)(iv), less Cash, Cash Equivalents and
Foreign Cash Equivalents of the Borrower and its Subsidiaries not subject to
any Lien (other than a Lien in favor of the Administrative Agent and/or the
Collateral Agent) or transfer restriction and (ii) Indebtedness of
Borrower and its Subsidiaries of the type referred to in clause (x) of the
definition of such term.


 


10

















 


“Consolidated EBITDA”
means, with respect to any Person, for any applicable period, the sum (without
duplication) of (i) Consolidated Net Income minus, to the extent
Consolidated Net Income has been increased thereby, any Port Arthur Fire
Insurance Income, and (ii) 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, unusual or nonrecurring gains or losses or
taxes attributable to sales or dispositions outside the ordinary course of
business) and Tax Distributions paid during such period, (B) Consolidated
Interest Expense, (C) Permitted Non-Cash Impairment and Restructuring
Charges less any non-cash items increasing Consolidated Net Income for such
period, (D) the amount of net loss resulting from the payment of any
premiums or similar amounts that are required to be paid under the express
terms of the instrument(s) governing any Indebtedness of the Borrower upon
the repayment or other extinguishment of such Indebtedness by the Borrower in
accordance with the express terms of such Indebtedness and (E) the Port
Arthur Fire Add Back, all as determined on a consolidated basis for such Person
and its Subsidiaries in accordance with GAAP. 
For purposes of computing Consolidated EBITDA, (i) all components
of Consolidated EBITDA for any such applicable period shall be computed without
giving effect to any extraordinary gains or losses (in accordance with GAAP)
for such period and (ii) subject to adjustment as described in Section 1.2(c) for
events occurring after the Effective Date, the Consolidated EBITDA for the
second, third and fourth Fiscal Quarters of 2006 shall be $395.9 million,
$282.5 million and $231.7 million, respectively.


 


“Consolidated Interest
Expense” means, for any period, the total interest expense (including that
attributable to Capitalized Leases in accordance with GAAP) of the Borrower and
its Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries, including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers’ acceptance financing, all as
determined on a consolidated basis for the Borrower and its Subsidiaries in
accordance with GAAP, as modified by the last sentence of this definition.  Notwithstanding anything in this definition
to the contrary, as used in this definition, the term “interest” shall include,
without limitation, any discount in respect of sales of Receivables Facility
Assets pursuant to a Permitted Accounts Receivable Securitization (regardless
of whether such discount would constitute interest expense as determined in
accordance with GAAP) and any net payments made or received by the Borrower and
its Subsidiaries with respect to Other Hedging Agreements entered into by the
Borrower or any of its Subsidiaries to protect against fluctuations in currency
values in connection with the Permitted Accounts Receivable Securitization, and
the term “discount” shall include any amounts which would be interest under
GAAP if the Permitted Accounts Receivable Securitization were a debt financing.


 


“Consolidated Net
Income” and “Consolidated Net Loss” mean, respectively, with respect
to any Person, for any period, the sum of: (x) the aggregate net income
(or loss) of such Person and its Subsidiaries for such period on a consolidated
basis, determined in accordance with GAAP plus (y) cash dividends or
distributions paid to such Person or a Subsidiary of such Person by any other
Person (the “Payor”) other than a Subsidiary of the referent Person, to the
extent not otherwise included in Consolidated Net Income, which have been
derived from operating cash flow of the Payor; provided that there shall
be excluded therefrom (a) after-tax gains and losses from Asset
Dispositions or abandonments or reserves relating thereto, (b) after-


 


11

















 


tax items
classified as extraordinary or nonrecurring gains, (c) the net income of
any Person acquired in a “pooling of interests” transaction accrued prior to
the date it becomes a Subsidiary of the Person or is or is merged or
consolidated with the Person or any Subsidiary of the Person, (d) the net
income (but not loss) of any Subsidiary of the Person to the extent that the
declaration of Dividends or similar distributions by that Subsidiary of that
income is restricted; provided  however, that the net income of
Foreign Subsidiaries shall only be excluded in any calculation of Consolidated
Net Income of the Borrower as a result of application of this clause (d) if
the restriction on Dividends or similar distributions results from consensual
restrictions, (e) the net income or loss of any Person, other than a
Subsidiary or the Person, except to the extent of cash Dividends or
distributions paid to the Person or to a Subsidiary that is a Wholly-Owned
Subsidiary of the Person by such Person, (f) 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) , (g) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person’s assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets, (h) non-cash charges relating to asset impairments,
which charges do not require an accrual of or a reserve for cash charges for
any future period, (i) all gains or losses from the cumulative effect of
any change in accounting principals and (j) the net amount of all Tax
Distributions made during such period.


 


“Consolidated Net
Tangible Assets” means, for any Person, the total assets of such Person and
its Subsidiaries, as determined from a consolidated balance sheet of such
Person and its consolidated Subsidiaries prepared in accordance with GAAP, but
excluding therefrom all items that are treated as goodwill and other intangible
assets under GAAP.


 


“Contaminant”
means any material with respect to which 
any Environmental Law imposes a duty, obligation or standard of conduct,
including without limitation any pollutant contaminant (as those terms are
defined in 42 U.S.C. §9601(33)), toxic pollutant (as that term is defined in 33
U.S.C.  §1362(13)), hazardous substance
(as that term is defined in 42 U.S.C. §9601(14)), hazardous chemical (as that
term is defined by 29 CFR §1910.1200(c)), hazardous waste (as that term is
defined in 42 U.S.C.  §6903(5)), or any
state or local equivalent of such laws and regulations, including, without
limitation, radioactive material, special waste, polychlorinated biphenyls,
asbestos, petroleum, including crude oil or any petroleum-derived substance,
(or any fraction thereof), solid waste (as that term is defined in 42 U.S.C.
§ 6903(27)), or breakdown or decomposition product thereof, or any
constituent of any such substance or waste, including but not limited to
polychlorinated biphenyls and asbestos.


 


“Contractual
Obligation” means, as to any Person, any provision of any Securities issued
by such Person or of any indenture or credit agreement or any agreement,
instrument or other undertaking to which such Person is a party or by which it
or any of its property is bound or to which such property may be subject.


 


“Credit Event”
means the making of any Loan or the issuance of any Letter of Credit.


 


“Credit Exposure”
has the meaning assigned to that term in Section 12.8(b).


 


12














 


“Credit Party”
means the Borrower, each Subsidiary Guarantor and any guarantor which may
hereafter enter into a Guaranty with respect to the Obligations.


 


“Customary Permitted
Liens” means:


 


(i)                                     Liens for taxes, assessments,
governmental charges or levies not yet due and payable or which are being
contested in good faith by appropriate proceedings diligently pursued, provided
that (x) any proceedings commenced for the enforcement of such Liens shall
have been stayed or suspended within 30 days of the commencement thereof and (y) provision
for the payment of all such taxes, assessments, governmental charges or levies
known to such Person has been made on the books of such Person to the extent
required by GAAP;


 


(ii)                                  mechanics’, processor’s, materialmen’s,
carriers’, warehouse-men’s, landlord’s and similar Liens arising by operation
of law and arising in the ordinary course of business and securing obligations
of such Person that are not overdue for a period of more than 30 days or are
being contested in good faith by appropriate proceedings diligently pursued,
provided that (x) any proceedings commenced for the enforcement of such
Liens shall have been stayed or suspended within 30 days of the commencement
thereof and (y) provision for the payment of such Liens has been made on
the books of such Person to the extent required by GAAP;


 


(iii)                               Liens arising in connection with worker’s
compensation, unemployment insurance, old age pensions and social security
benefits which are not overdue or are being contested in good faith by
appropriate proceedings diligently pursued, provided that (A) any
proceedings commenced for the enforcement of such Liens shall have been stayed
or suspended within 30 days of the commencement thereof and (B) provision
for the payment of such Liens has been made on the books of such Person to the
extent required by GAAP;


 


(iv)                              (x)                                   Liens incurred or deposits made in the ordinary course
of business to secure the performance of bids, tenders, statutory obligations,
fee and expense arrangements with trustees and fiscal agents (exclusive of
obligations incurred in connection with the borrowing of money or the payment
of the deferred purchase price of property) and customary deposits granted in
the ordinary course of business under Operating Financing Leases and (y) Liens
securing surety, indemnity, performance, appeal and release bonds, provided
that full provision for the payment of all such obligations has been made on
the books of such Person to the extent required by GAAP;


 


(v)                                 Permitted Real Property Encumbrances;


 


(vi)                              attachment, judgment or other similar
Liens arising in connection with court or arbitration proceedings involving
individually and in the aggregate liability of $50,000,000 or less at any one
time, provided the same are discharged, or that execution or enforcement
thereof is stayed pending appeal, within 60 days or, in the case of any stay of
execution or enforcement pending appeal, within such lesser time during which
such appeal may be taken;


 


13

















 


(vii)                           leases or subleases granted to others not
interfering in any material respect with the business of the Borrower or any of
its Subsidiaries and any interest or title of a lessor under any lease
permitted by this Agreement or the Security Documents;


 


(viii)                        customary rights of set off, revocation,
refund or chargeback under deposit agreements or under the UCC of banks or
other financial institutions where the Borrower or any of its Subsidiaries
maintains deposits in the ordinary course of business permitted by this
Agreement; and


 


(ix)                                Environmental Liens, to the extent that (w) any
proceedings commenced for the enforcement of such Liens shall have been
suspended or are being contested in good faith, (x) provision for all
liability and damages that are the subject of said Environmental Liens has been
made on the books of such Person to the extent required by GAAP and (y) such
Liens do not relate to obligations exceeding $10,000,000 in the aggregate at
any one time; and (z) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of custom duties in connection
with the importation of goods so long as such Liens attach only to the imported
goods and provided that such duties are not yet due or are being contested in
good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP.


 


“DB” means
Deutsche Bank AG New York Branch and its successors.


 


“DBTCA” has the
meaning assigned to that term in the Recitals to this Agreement.


 


“Declining Revolving
Lender” has the meaning assigned to that term in Section 2.11(b).


 


“Default Rate”
means a variable rate per annum which shall be two percent (2%) per annum plus
either (i) the then applicable interest rate hereunder in respect of the
amount on which the Default Rate is being assessed or (ii) if there is no
such applicable interest rate, the Base Rate plus the Applicable Base Rate
Margin, but in no event in excess of that permitted by applicable law.


 


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


 


“Deposit Account”
means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account
evidenced by a negotiable certificate of deposit.


 


“Determination Date”
has the meaning assigned to that term in Section 12.23.


 


“Dividends” has
the meaning assigned to that term in Section 8.4(a).


 


“Documents” means
the Loan Documents and the Transaction Documents.


 


14

















 


“Dollar” and “$”
means the lawful currency of the United States of America.


 


“Dollar Equivalent”
means, at any time, (i) as to any amount denominated in Dollars, the
amount thereof at such time, and (ii) as to any amount denominated in any
Alternative Currency, the equivalent amount in Dollars as determined by the
Administrative Agent at such time on the basis of the Spot Rate.


 


“Domestic Subsidiary”
means any Subsidiary other than a Foreign Subsidiary not a party to the
Subsidiary Guaranty or a guaranty delivered pursuant to Section 7.11(h).


 


“Effective Date”
means the “Third Amendment Effective Date” as defined in the Third Amendment.


 


“Eligible Assignee”
means a commercial bank, investment company, financial institution, financial
company, Fund (whether a corporation, partnership, trust or other entity) or
insurance company in each case, together with its Affiliates or Related Funds,
which makes, purchases, holds or otherwise invests in commercial loans or other
similar extensions of credit in the ordinary course of its business or any
other Person approved by the Administrative Agent and the Borrower, such
approval not to be unreasonably withheld or delayed.


 


“Environmental Claim”
means any notice of violation, claim (including common law claims), suit,
written demand, abatement order, or other order or directive (conditional or
otherwise), by any Governmental Authority or any Person for any damage,
personal injury (including sickness, disease or death), tangible or intangible
property damage, contribution, cost recovery, indemnity, indirect or
consequential damages, damage to the environment, or for nuisance, pollution,
contamination or other adverse effects on the environment, human health, or
natural resources, or for fines, penalties, restrictions or injunctive relief,
resulting from or based upon (i) the occurrence or existence of a Release
or substantial threat of a material Release (whether sudden or non-sudden or
accidental or non-accidental) of, or exposure to, any Contaminant in, into or
onto the environment at, in, by, from or related to any real estate owned,
leased or operated at any time by the Borrower or any of its Subsidiaries (the “Premises”),
(ii) the use, handling, generation, transportation, storage, treatment or
disposal of Contaminants in connection with the operation of any Premises, or (iii) the
violation, or alleged violation, of any Environmental Laws relating to
environmental matters connected with the Borrower’s operations or any Premises.


 


“Environmental Laws”
means any and all applicable foreign, federal, state or local laws, statutes,
ordinances, codes, rules or regulations or orders, decrees, judgments or
directives issued by a Governmental Authority, or Environmental Permits or
Remedial Action standards, levels or objectives imposing liability or standards
of conduct for or relating to the protection of health, safety or the
environment, including, but not limited to, the following United States
statutes, as now written and hereafter amended: 
the Water Pollution Control Act, as codified in 33 U.S.C. §1251 et
seq., the Clean Air Act, as codified in 42 U.S.C. §7401 et seq., the
Toxic Substances Control Act, as codified in 15 U.S.C. §2601 et seq.,
the Solid Waste Disposal Act, as codified in 42 U.S.C. §6901 et seq.,
the Comprehensive Environmental Response, Compensation and Liability Act, as
codified in 42 U.S.C. §9601 et seq., the Emergency Planning and Community
Right-to-Know Act of 1986, as codified in 42 U.S.C. §11001 et seq., and
the Safe 


 


15

















 


Drinking Water
Act, as codified in 42 U.S.C. §300f et seq., and any related
regulations, as well as all state and local equivalents.


 


“Environmental Lien”
means a Lien in favor of any Governmental Authority for (i) any liability
under Environmental Laws or Environmental Permits, or (ii) damages
relating to, or costs incurred by such Governmental Authority in response to, a
Release or threatened Release of a Contaminant into the environment.


 


“Environmental Permits”
means any and all permits, licenses, certificates, authorizations or approvals
of any Governmental Authority required by Environmental Laws or necessary or
reasonably required for the current and anticipated future operation of the
business of the Borrower or any Subsidiary of the Borrower.


 


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


 


“ERISA Affiliate”
means, with respect to any Person, any trade or business (whether or not
incorporated) which, together with such Person, is under common control as
described in Section 414(c) of the Code, is a member of a “controlled
group”, as defined in Section 414(b) of the Code, or is a member of
an “affiliated service group”, as defined in Section 414(m) of the
Code which includes such Person.  Unless
otherwise qualified, all references to an “ERISA Affiliate” in this Agreement
shall refer to an ERISA Affiliate of the Borrower or any Subsidiary.


 


“Euro” means the
lawful currency adopted by or which is adopted by participating member states
of the European Community relating to Economic and Monetary Union.


 


“Eurocurrency Loan”
means any Loan bearing interest at a rate determined by reference to the
Eurocurrency Rate.


 


“Eurocurrency Rate”
means


 


(a)                                  in the case of Dollar denominated loans, (A) the
rate per annum equal to the rate determined by Administrative Agent to be the
offered rate that appears on the Reuters Screen LIBOR01 Page 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) on the applicable Interest Rate Determination Date and, in the
event such rate is not available, (B) the arithmetic average (rounded up
to the nearest 1/100th of
1%) of the offered quotation in the interbank eurodollar market by the
Reference Lenders to first class banks for Dollar deposits of amounts in
immediately available funds with a term comparable to the interest period for
which a Eurocurrency Rate is determined, as of 11:00 a.m. (London time) on
the applicable Interest Rate Determination Date; or


 


(b)                                 in the case of Euro denominated loans, (A) the
rate per annum equal to the rate determined by Administrative Agent to be the
offered rate that appears on the appropriate page of the Telerate screen
that displays EURIBOR 


 


16

















 


(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) on the
applicable Interest Rate Determination Date and, in the event such rate is not
available, (B) the arithmetic average (rounded up to the nearest 1/100th of 1%) of the
offered quotation in the European interbank market by the Reference Lenders for
Euro deposits of amounts in immediately available funds with a term comparable
to the interest period for which a Eurocurrency Rate is determined, as of 11:00 a.m.
(London time) on the applicable Interest Rate Determination Date; or


 


(c)                                  in the case of Sterling denominated
loans, (A) the rate per annum equal to the rate determined by
Administrative Agent to be the offered rate that appears on the appropriate page of
the Telerate screen that displays LIBOR (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) on the applicable Interest Rate
Determination Date and, in the event such rate is not available, (B) the
arithmetic average (rounded up to the nearest 1/100th of 1%) of the offered quotation in the London
interbank market by the Reference Lenders for Sterling deposits of amounts in
immediately available funds with a term comparable to the interest period for
which a Eurocurrency Rate is determined, as of 11:00 a.m. (London time) on
the applicable Interest Rate Determination Date.


 


In
the case of Swing Line Loans maintained at the Quoted Rate and Eurocurrency
Loans, the cost of the Lenders of complying with any Eurocurrency Reserve
Requirements will be added to the interest rate computed in the manner set
forth in Schedule 1.1(b).


 


“Eurocurrency Reserve
Requirements” means, for any day as applied to a Eurocurrency Loan, the
aggregate (without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve liquid asset or similar requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto), including without limitation, under
regulations issued from time to time by (a) the Board, (b) any
Governmental Authority of the jurisdiction of the relevant currency or (c) any
Governmental Authority of any jurisdiction in which advances in such currency
are made to which banks in any 
jurisdiction are subject for any category of deposits or liabilities
customarily used to fund loans in such currency or by reference to which
interest rates applicable to loans in such currency are determined, including
Mandatory Costs.


 


“Event of Default”
has the meaning assigned to that term in Section 10.1.


 


“Excess Cash Flow”
means, an amount not less than zero calculated as of the close of business on March 31
of each year (commencing March 31, 2008), equal to (i) the sum of (a) the
average daily aggregate Total Available Revolving Commitment during the period
of February 1 through and including March 31 of such year plus
(b) the amount, if any, by which the average available capacity under
Receivables Documents in existence during such period and subject to any
limitations on availability contained therein during the period of February 1



 


17

















 


through and
including March 31 of such year exceeds the actual average Receivables
Facility Attributed Indebtedness outstanding during the same period plus
(c) the average daily balance of Cash, Cash Equivalents and the Dollar
Equivalent as of March 31 of Foreign Cash Equivalents, held during the
period February 1 through and including March 31 of such year, less
(ii) the sum of (w) the aggregate amount of Net Sale Proceeds from
Asset Dispositions during the preceding twelve months, to the extent not
reinvested prior to March 31 of such year, plus (x) the
aggregate amount of proceeds from the issuance of Indebtedness issued to
refinance other Indebtedness and being held pending the payment of such other
Indebtedness plus (y) the aggregate amount during the preceding
twelve months of cash proceeds from Recovery Events received by the Borrower or
any of its Subsidiaries during the preceding twelve months, to the extent not
reinvested prior to March 31 of such year, plus (z) $850,000,000.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended and as codified in 15
U.S.C. §78a et seq. and as hereafter amended.


 


“Exchange Rate”
shall mean, on any day, (i) with respect to any Alternative Currency, the
Spot Rate at which Dollars are offered on such day by the Administrative Agent
in London or New York (as selected by the Administrative Agent) for such
Alternative Currency at approximately 11:00 A.M. (London time or New York
time, as applicable), and (ii) with respect to Dollars in relation to any
specified Alternative Currency, the Spot Rate at which such specified
Alternative Currency is offered on such day by the Administrative Agent in
London or New York for Dollars at approximately 11:00 A.M. (London time or
New York time, as applicable).  The
Administrative Agent shall provide the Borrower with the then current Exchange
Rate from time to time upon the Borrower’s request therefor.


 


“Exchange Rate
Determination Date” means (i) for purposes of the determination of the
Exchange Rate of any stated amount on any Business Day in relation to any
Borrowing of Revolving Loans or Swing Line Loans in an Alternative Currency, (A) the
date which is two Business Days prior to such Borrowing in the case of a
Borrowing denominated in Euros or (B) the date of such Borrowing in the
case of a Borrowing denominated in Sterling, (ii) for purposes of the
determination of the Exchange Rate of any Stated Amount in relation to any
issuance of any Letter of Credit, on the date of such issuance and (iii) for
the purpose of determining the Exchange Rate to make determinations pursuant to
Section 4.4(a), the last Business Day of each calendar month.


 


“Existing Stated
Termination Date” has the meaning assigned to that term in Section 2.11(a).


 


“Extension Effective
Date” has the meaning assigned to that term in Section 2.11(b).


 


“Facility” means
any of the credit facilities established under this Agreement, i.e., any
of the Term Facilities or the Revolving Facility.


 


“Facing Agent” means
each of (i) DB as to each Fifth Amendment Existing Letter of Credit, (ii) JPMCB
and (iii) any other Revolving Lender agreed to by such Revolving Lender, 


 


18

















 


the Borrower and
the Administrative Agent (in each case, acting through any branch or
Affiliate).


 


“Facing Agent Sublimit”
means $75,000,000.


 


“Federal Funds Rate”
means on any one day, the rate per annum equal to the weighted average (rounded
upwards, if necessary, to the nearest 1/100th of 1%) of the rate on overnight
federal funds transactions with members of the Federal Reserve System only
arranged by federal funds brokers, as published as of such day by the Federal
Reserve Bank of New York, or, if such rate is not so published, the average of
the quotations for such day on such transactions received by JPMCB from three
federal funds brokers of recognized standing selected by JPMCB.


 


“Fee Letter” means
the letter agreement with respect to fees related to this Agreement between the
Borrower, DB and Deutsche Bank Securities Inc. dated on or before the Effective
Date.


 


“Fifth Amendment”
means the Fifth Amendment to Credit Agreement dated as of March 9, 2010.


 


“Fifth Amendment
Effective Date” means the “Amendment Effective Date” as defined in the
Fifth Amendment.


 


“Fifth Amendment
Existing Letter of Credit” means any letter of credit issued by DB pursuant
to this Agreement prior to the Fifth Amendment Effective Date and set forth on Schedule
1.1(d), to the extent such letter of credit is not increased (other than in
accordance with the terms thereof as in effect on the Fifth Amendment Effective
Date), extended, auto-extended or renewed, on or after the Fifth Amendment
Effective Date.


 


“Fifth Amendment Fee
Letter” means the letter agreement with respect to fees related to this
Agreement among the Borrower, J.P. Morgan Securities Inc. and JPMCB dated on or
before the Fifth Amendment Effective Date.


 


“Fiscal Quarter”
has the meaning assigned to that term in Section 7.12.


 


“Fiscal Year” has
the meaning assigned to that term in Section 7.12.


 


“Flood Insurance Laws”
means, collectively, (i) the National Flood Insurance Act of 1968 as now
or hereafter in effect or any successor statute thereto, (ii) the Flood
Disaster Protection Act of 1973 as now or hereafter in effect or any successor
statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as
now or hereafter in effect or any successor statute thereto and (iv) the
Flood Insurance Reform Act of 2004 as now or hereafter in effect or any
successor statute thereto.


 


“Foreign Cash
Equivalents” means (i) debt securities with a maturity of 365 days or
less issued by any member nation of the European Union, Switzerland or any
other country whose debt securities are rated by S&P and Moody’s A-1 or
P-1, or the equivalent thereof (if a short-term debt rating is provided by
either) or at least AA or Aa2, or the equivalent thereof (if a 


 


19

















 


long-term
unsecured debt rating is provided by either)(each such jurisdiction, an “approved
jurisdiction”), or any agency or instrumentality of an approved
jurisdiction, provided that the full faith and credit of the approved
jurisdiction is pledged in support of such debt securities or such debt
securities constitute a general obligation of the approved jurisdiction and (ii) debt
securities in an aggregate principal amount not to exceed the Dollar Equivalent
of $40,000,000 with a maturity of 365 days or less issued by any nation in
which the Borrower or its Subsidiaries has cash which is the subject of
restrictions on export, any agency or instrumentality of such nation or any
bank or other organization organized in such nation.


 


“Foreign Factoring
Transactions” means transactions (other than pursuant to (a) any
Permitted Accounts Receivable Securitization or (b) a transaction
described in Section 8.3(e)) for the sale or discounting of (i) the
Accounts Receivable of a Foreign Subsidiary and/or (ii) letters of credit
the beneficiary of which is a Foreign Subsidiary.


 


“Foreign Pension Plan”
means any plan, fund (including, without limitation, any super-annuation fund)
or other similar program established or maintained outside of the United States
of America by the Borrower or one or more of its Subsidiaries or its Affiliates
primarily for the benefit of employees of the Borrower or such Subsidiaries or
its Affiliates residing outside the United States of America, which plan, fund,
or similar program provides or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon termination
of employment, and which is not subject to ERISA or the Code.


 


“Foreign Subsidiary”
means any Subsidiary that is organized under the laws of a jurisdiction other
than the United States of America or any state thereof or the District of
Columbia and that is not a Subsidiary Guarantor.


 


“Fourth Amendment”
means the Fourth Amendment to this Agreement dated as of June 22, 2009.


 


“Fourth Amendment
Effective Date” has the meaning assigned to that term in the Fourth Amendment.


 


“Fund” means a
Person that is a fund that makes, purchases, holds or otherwise invests in
commercial loans or similar extensions of credit in the ordinary course of its
business.


 


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


 


“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial,
taxing, regulatory or administrative functions of government.


 


“Guarantee Obligations”
means, as to any Person, without duplication, any direct or indirect obligation
of such Person guaranteeing or intended to guarantee any Indebtedness,
Capitalized Lease, Operating Financing Lease (“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 


 


20

















 


supply funds (x) for
the purchase or payment of any such primary obligation, or (y) 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 any endorsements of instruments for deposit or collection in
the ordinary course of business.  The
amount of any Guarantee Obligation at any time shall be deemed to be an amount
equal to the lesser of (x) the stated or determinable amount at such time
of the primary obligation in respect of which such 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 liability (assuming full performance) in
respect thereof reasonably anticipated at such time.


 


“Guaranteed
Obligations” means (i) the full and prompt payment when due (whether
at the stated maturity, by acceleration or otherwise) of the principal and
interest (whether such interest is allowed as a claim in a bankruptcy
proceeding with respect to the Borrower or otherwise) on each Note issued by
the Borrower to each Lender, and Loans made under this Agreement and all
reimbursement obligations and Unpaid Drawings with respect to Letters of
Credit, together with all other obligations (including obligations which, but
for the automatic stay under Section 362(a) of the Bankruptcy Code,
would become due) and liabilities (including, without limitation, indemnities,
fees and interest thereon) of the Borrower to such Lender now existing or
hereafter incurred under, arising out of or in connection with this Agreement
or any other Loan Documents and the due performance and compliance with all
terms, conditions and agreements contained in the Loan Documents by the
Borrower and (ii) the full and prompt payment when due (whether by
acceleration or otherwise) of all obligations (including obligations which, but
for the automatic stay under Section 362(a) of the Bankruptcy Code,
would become due) of the Borrower (or, if permitted by Section 8.2,
its Subsidiaries) owing under any Interest Rate Agreement or Other Hedging
Agreement or any Overdraft Facility entered into by the Borrower or any of its
Subsidiaries with any Lender or any Affiliate thereof (even if such Lender
subsequently ceases to be a Lender under this Agreement for any reason) so long
as such Lender or Affiliate participates in such Interest Rate Agreement or
Other Hedging Agreement or Overdraft Facility, as the case may be, and their
subsequent assigns, if any, whether or not in existence or hereafter arising,
and the due performance and compliance with all terms, conditions and
agreements contained therein.


 


“Guaranty” means,
collectively, (i) the Subsidiary Guaranty and (ii) each guaranty
delivered by a Foreign Subsidiary pursuant to Section 7.11(h), in
each case as the same may be amended, supplemented or otherwise modified from
time to time.


 


“Headquarters
Subsidiary Guaranty Agreement” has the meaning assigned to that term in Section 5.1(d)(ii) of
this Agreement.


 


“Huntsman Affiliate”
means Huntsman Corporation or any of its Affiliates (other than the Borrower
and its Subsidiaries).


 


21














 


“Huntsman Corporation”
means Huntsman Corporation, a Delaware corporation.


 


“Huntsman Finco”
means Huntsman International Financial LLC, a direct Wholly-Owned Subsidiary of
the Borrower that is a limited liability company formed under the laws of
Delaware.


 


“Huntsman Group”
has the meaning assigned to that term in the definition of “Change of Control”
in this Section 1.1.


 


“Huntsman Parent
Company” means Huntsman Corporation or any entity of which the Borrower is
a direct or indirect Wholly-Owned Subsidiary.


 


“Immaterial Subsidiary”
means any Subsidiary of the Borrower, the Consolidated Net Tangible Assets of
which are less than 1% of the Borrower’s Consolidated Net Tangible Assets (as
of the end of the most recently completed Fiscal Quarter of the Borrower for
which financial statements are available) and which did not account for more
than 1% of the consolidated revenues of the Borrower and its Subsidiaries for
such period.


 


“Impaired Lender”
means, at any time, a Revolving Lender as determined by the Administrative
Agent, that (i) is a Defaulting Lender, (ii)(x) has notified the
Administrative Agent, any Facing Agent, the Swing Line Lender or the Borrower,
or has stated publicly, that it will not comply with its obligations under this
Agreement to make a Loan, make a payment to any Facing Agent in respect of a
Letter of Credit Payment and/or make a payment to the Swing Line Lender in
respect of a Swing Line Loan (each a “funding obligation”) or (y) has
defaulted on its funding obligations under any other loan agreement or credit
agreement or other similar agreement, unless such default in respect of funding
obligations is the subject of a good faith dispute, (iii) has, for three
or more Business Days, failed to confirm in writing to the Administrative
Agent, in response to a written request of the Administrative Agent, that it
will comply with its funding obligations hereunder, or (iv) as to which a
Lender Insolvency Event has occurred and is continuing (provided that the
reallocation of funding obligations provided for in Section 3.8(a) as
a result of a Revolving Lender being an Impaired Lender will not by itself
cause the relevant Impaired Lender to become a Non-Impaired Lender).  Any determination that a Revolving Lender is
an Impaired Lender under clauses (i) through (iv) above will be made
by the Administrative Agent in its reasonable discretion acting in good
faith.  Notwithstanding anything to the
contrary above, a Revolving Lender will not be an Impaired Lender solely by
virtue of the ownership or acquisition of any Capital Stock in such Revolving
Lender or Lender Parent Company by a Governmental Authority.


 


“Indebtedness”
means, as applied to any Person (without duplication):


 


(i)                                all obligations of such Person for
borrowed money;


 


(ii)                             the deferred and unpaid balance of the
purchase price of assets or services (other than trade payables and other
accrued liabilities incurred in the ordinary course of business that are not
overdue by more than 90 days unless being contested in good faith) which
purchase price is (x) due more than six months from the date of incurrence
of the obligation in respect thereof (or in the case of long-term supply 


 


22

















 


agreements, from the date
of delivery of such assets or services) or (y) evidenced by a note or a
similar written instrument;


 


(iii)                          all Capitalized Lease Obligations;


 


(iv)                         all indebtedness secured by any Lien
(other than Customary Permitted Liens) on any property owned by such Person,
whether or not such indebtedness has been assumed by such Person or is
nonrecourse to such Person;


 


(v)                            notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for
borrowed money (other than such notes or drafts for the deferred purchase price
of assets or services which does not constitute Indebtedness pursuant to clause
(ii) above);


 


(vi)                         indebtedness or obligations of such
Person, in each case, evidenced by bonds, notes or similar written instruments;


 


(vii)                      the face amount of all letters of credit
and bankers’ acceptances issued for the account of such Person, and without
duplication, all drafts drawn thereunder other than, in each case, commercial
or standby letters of credit or the functional equivalent thereof issued in
connection with performance, bid or advance payment obligations incurred in the
ordinary course of business, including, without limitation, performance
requirements  under workers compensation
or similar laws;


 


(viii)                   all obligations of such Person under Interest Rate
Agreements or Other Hedging Agreements;


 


(ix)                           Guarantee Obligations of such Person;


 


(x)                              the aggregate outstanding amount of
Receivables Facility Attributed Indebtedness or the gross proceeds from any
similar transaction, regardless of whether such transaction is effected without
recourse to such Person or in a manner that would not otherwise be reflected as
a liability on a balance sheet of such Person in accordance with GAAP; and


 


(xi)                           the Attributable Debt of 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;


 


provided, however, notwithstanding the foregoing, “Indebtedness”
shall not include deferred taxes or indebtedness of Borrower and/or its
Subsidiaries incurred to finance insurance premiums, if (a) such
indebtedness is unsecured (except as permitted by Section 8.1(k)),
and (b) is in a principal amount not in excess of the casualty and other
insurance premiums to be paid by Borrower and/or its Subsidiaries for a three
year period beginning on the date of any incurrence of such indebtedness.


 


“Indemnified Party”
has the meaning assigned to that term in Section 12.4(a).


 


23

















 


“Initial Borrowing”
means the first Borrowing by the Borrower under this Agreement.


 


“Initial Loan”
means the first Loan made by the Lenders under this Agreement.


 


“Intellectual Property”
has the meaning assigned to that term in Section 6.19.


 


“Intercompany Loan”
has the meaning assigned to that term in Section 8.7(g).


 


“Intercreditor
Agreement” means that certain Intercreditor Agreement, dated the date
hereof, by and among the Collateral Agent, Administrative Agent, DB as
beneficiary of the Mortgages, HSBC Bank USA, National Association (as successor
to HSBC Bank USA), as trustee for the Senior Secured Notes and the Borrower, in
the form of Exhibit B to the Collateral Security Agreement, as amended,
modified or supplemented in accordance with the terms thereof.


 


“Interest Coverage
Ratio” means, for any period, the ratio of Consolidated EBITDA to
Consolidated Cash Interest Expense for such period.


 


“Interest Payment Date”
means (i) as to any Base Rate Loan, each Quarterly Payment Date to occur
while such Loan is outstanding, (ii) as to any Eurocurrency Loan having an
Interest Period of three months or less, the last day of the Interest Period
applicable thereto and (iii) as to any Eurocurrency Loan having an
Interest Period longer than three months, each three (3) month anniversary
of the first day of the Interest Period applicable thereto and the last day of
the Interest Period applicable thereto; provided, however, that,
in addition to the foregoing, each of (A) the Revolver Termination Date, (B) the
Term B Loan Maturity Date and (C) the Term C Loan Maturity Date shall be
deemed to be an “Interest Payment Date” with respect to any interest which is
then accrued hereunder for such Loan.


 


“Interest Period”
has the meaning assigned to that term in Section 3.4.


 


“Interest Rate
Agreement” means any interest rate swap agreement, cross-currency interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate futures contract, interest rate option contract or
other similar agreement or arrangement to which the Borrower or any Subsidiary
is a party.


 


“Interest Rate
Determination Date” means the date for calculating the Eurocurrency Rate
for an Interest Period, which date shall be (i) in the case of any
Eurocurrency Loan in Dollars, the second Business Day prior to first day of the
related Interest Period for such Loan or (ii) in the case of any
Eurocurrency Loan in an Alternative Currency, the date on which quotations
would ordinarily be given by prime banks in the London interbank market for
deposits in the Applicable Currency for value on the first day of the related
Interest Period for such Eurocurrency Loan; provided, however, that if for any
such Interest Period with respect to an Alternative Currency Loan, quotations
would ordinarily be given on more than one date, the Interest Rate
Determination Date shall be the last of those dates.


 


“Inventory” means,
inclusively, all inventory as defined in the Uniform Commercial Code in effect
in the State of New York from time to time and all goods, 


 


24

















 


merchandise and
other personal property wherever located, now owned or hereafter acquired by
the Borrower or any of its Subsidiaries of every kind or description which are
held for sale or lease or which are furnished or to be furnished under a
contract of service or are raw materials, work-in-process or materials used or consumed
or to be used or consumed in the Borrower’s or any of its Subsidiaries’
businesses.


 


“Investment”
means, as applied to any Person, (i) any direct or indirect purchase or
other acquisition by that Person of, or a beneficial interest in, Securities of
any other Person, or a capital contribution by that Person to any other Person,
(ii) any direct or indirect loan or advance by that person to any other
Person (other than prepaid expenses or Accounts Receivable created or acquired
in the ordinary course of business), including all Indebtedness of such Person
arising from a sale of property by such first Person other than in the ordinary
course of its business or (iii) any purchase by that Person of all or a
significant part of the assets of a business conducted by another Person.  The amount of any Investment by any Person on
any date of determination shall be the sum of the acquisition price of the
gross assets acquired by such Person (including the amount of any liability
assumed in connection with the acquisition by such Person to the extent such
liability would be reflected as a liability on a balance sheet prepared in
accordance with GAAP) plus all additional capital contributions or
purchase price and earnout adjustments (positive or negative) paid (or
credited) in respect thereof, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to
such Investment minus the amount of all cash returns of principal or
capital thereon, cash dividends thereon and other cash returns on investment
thereon or liabilities expressly assumed by another Person (other than the
Borrower or another Subsidiary of the Borrower) in connection with the sale of
such Investment.  Whenever the term “outstanding”
is used in this Agreement with reference to an Investment, it shall take into
account the matters referred to in the preceding sentence.


 


“IRIC” means
International Risk Insurance Company, a Utah corporation.


 


“IRS” means the
United States Internal Revenue Service, or any successor or analogous
organization.


 


“Issuer” means the
entity acting as issuer or similar funding vehicle under the relevant
Receivables Documents.


 


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


 


“JPMCB” means
JPMorgan Chase Bank, N.A. and its successors.


 


“LC Commission”
has the meaning assigned to that term in Section 2.9(e)(ii).


 


“LC Obligations”
means, at any time, an amount equal to the sum of (i) the Assigned Dollar
Value of the aggregate Stated Amount of the then outstanding Letters of Credit
and (ii) the Assigned Dollar Value of the aggregate amount of drawings
under Letters of Credit 


 


25

















 


which have not
then been reimbursed pursuant to Section 2.9(c).  The LC Obligation of any Revolving Lender at
any time shall mean the Dollar Equivalent of its Pro Rata Share of the Assigned
Dollar Value of the aggregate LC Obligations outstanding at such time.


 


“Lender” and “Lenders”
have the respective meanings assigned to those terms in the introduction to
this Agreement and shall include any Person that becomes a “Lender” in
connection with the issuance of Additional Term Loans pursuant to Section 2.1(a)(ii).


 


“Lender Default”
means (i) the refusal (which has not been retracted) of a Lender (x) to
make available its portion of any Borrowing when the conditions precedent
thereto, in the determination of the Administrative Agent, have been met, or (y) to
fund its portion of any unreimbursed payment under Section 2.9(d) or
(ii) a Lender having notified in writing the Borrower and/or the
Administrative Agent that it does not intend to comply with its obligations
under Section 2.1 or Section 2.9(d), as a result of any
takeover of such Lender by any regulatory authority or agency.


 


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


 


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


 


“Lending Office”
means, with respect to each Lender, the office specified under such Lender’
name on the administrative questionnaire delivered to the Administrative Agent
on or prior to the Effective Date, or on the signature page to any
Assignment and Assumption Agreement, with respect to each Type of Loan or such
other office as such Lender may designate in writing from time to time to
Borrower and Administrative Agent with respect thereto.


 


“Letter of Credit
Payment” means, as applicable (i) all payments made by a Facing Agent
pursuant to either a draft or demand for payment under a Letter of Credit or (ii) all
payments by Revolving Lenders to a Facing Agent in respect thereof (whether or
not in accordance with their Pro Rata Share).


 


“Letters of Credit”
means, collectively, all Fifth Amendment Existing Letters of Credit, Commercial
Letters of Credit, Standby Letters of Credit and Bank Guarantees, in each case
as issued pursuant to this Agreement, and “Letter of Credit” means any
one of such Letters of Credit.


 


26

















 


“Leverage Ratio”
means, for any Test Period, the ratio of Consolidated Debt as of the last day
of such Test Period to Consolidated EBITDA for such Test Period.


 


“Lien” means (i) any
judgment lien or execution, attachment, levy, distraint or similar legal
process and (ii) any mortgages, pledge, hypothecation, collateral
assignment, security interest, encumbrance, lien, charge or deposit arrangement
(other than a deposit to a Deposit Account in the ordinary course of business
and not intended as security) of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any agreement to give any of the foregoing, or any sale of receivables
with recourse against the seller or any Affiliate of the seller).


 


“Loan” means any
Term B Dollar Loan, Term C Dollar Loan, Swing Line Loan or Revolving Loan, and “Loans”
means all such Loans, collectively.


 


“Loan Documents”
means, collectively, this Agreement, the Notes, each Letter of Credit, each
Security Document, each Guaranty and all other agreements, instruments and
documents executed in connection therewith, in each case as the same may at any
time be amended, supplemented, restated or otherwise modified and in effect.


 


“LOU Claim Proceeds”
means all insurance proceeds received by the Borrower or any of its
Subsidiaries after the Fifth Amendment Effective Date in respect of the Port
Arthur Plant Fire.


 


“LPC” mean
Louisiana Pigment Company, and its successors and assigns.


 


“Majority Lenders”
of any Facility means those Non-Defaulting Lenders which would constitute the
Required Lenders under, and as defined in, this Agreement if all outstanding
Obligations of other Facilities under this Agreement were repaid in full and
all Commitments with respect thereto were terminated.


 


“Mandatory Cost”
means the cost imputed to the Lender(s) of compliance with the mandatory
liquid assets requirements of the Bank of England and/or the banking
supervision or other costs of the Financial Services Authority or European
Central Bank or any successor body exercising their functions in this respect
as determined in accordance with Schedule 1.1(b).


 


“Material Adverse
Effect” means a material adverse effect on (i) the business, condition
(financial or otherwise), assets, liabilities or operations of the Borrower and
its Subsidiaries taken as a whole, (ii) the ability of the Borrower or any
of its Subsidiaries to perform its respective obligations under any Loan
Document to which it is a party, or (iii) the validity or enforceability
of this Agreement or any of the Security Documents or the material rights or
remedies of the Administrative Agent, Collateral Agent or and the Lenders
hereunder or thereunder.


 


“Material Agreement”
means (i) any Contractual Obligation of the Borrower or any of its
Subsidiaries, the breach of which or the failure to maintain would be
reasonably likely to result in a Material Adverse Effect, (ii) the Public
Note Documents and (iii) any material Contractual Obligation entered into
in connection with an Acquisition.


 


27

















 


“Material Subsidiary”
means any Subsidiary of the Borrower, the Consolidated Net Tangible Assets of
which were more than 2% of the Borrower’s Consolidated Net Tangible Assets as
of the end of the most recently completed Fiscal Year of the Borrower for which
audited financial statements are available; provided that, in the event
the aggregate of the Consolidated Total Assets of all Subsidiaries that do not
constitute Material Subsidiaries exceeds 5% of the Borrower’s Consolidated
Total Assets as of such date, the Borrower (or the Administrative Agent, in the
event the Borrower has failed to do so within 10 days of request therefor by
the Administrative Agent) shall, to the extent necessary, designate sufficient
Subsidiaries to be deemed to be “Material Subsidiaries” to eliminate such
excess, and such designated Subsidiaries shall thereafter constitute Material
Subsidiaries.  Assets of Foreign
Subsidiaries shall be converted into Dollars at the rates used for purposes of
preparing the consolidated balance sheet of the Borrower included in such
audited financial statements.


 


“Maximum Commitment”
means, when used with reference to any Lender, the aggregate of such Lender’s
Term Commitments and Revolving Commitment in the amounts not to exceed those
set forth opposite the name of such Lender on Schedule 1.1(a) hereto,
subject to reduction from time to time in accordance with the terms of this
Agreement.


 


“Minimum Borrowing
Amount” means, with respect to (i) Base Rate Loans, $3,000,000, (ii) with
respect to Eurocurrency Loans, $5,000,000, in the case of a Borrowing in
Dollars, £2,000,000, in the case of a Borrowing in Sterling, and €5,000,000, in
the case of a Borrowing in Euros and (iii) with respect to Swing Line
Loans, $500,000 or the Dollar Equivalent thereof in an Alternative Currency (or
such other amount as the Swing Line Lender may agree.)


 


“Minimum Floor Amount”
has the meaning assigned to that term in Section 12.23.


 


“Moody’s” means
Moody’s Investors Service, Inc. or any successor to the rating agency
business thereof.


 


“Mortgage” has the
meaning assigned to that term in Section 5.1(e)(i) and shall
also include any mortgage or similar documents executed pursuant to Section 7.11.


 


“Mortgage Policies”
has the meaning assigned to that term in Section 5.1(e)(ii)


 


“Mortgaged Property”
means the owned or leased real property subject to a Mortgage as indicated on Schedule
6.21(c) and shall also include any owned or leased real property
subject to a Mortgage pursuant to Section 7.11.


 


“Most Recent Leverage
Ratio” means, at any date, the Leverage Ratio for the Test Period ending as
of the most recently ended Fiscal Quarter for which financial statements have
been delivered to the Lenders pursuant to Section 7.1; provided,
however, that if the Borrower fails to deliver such financial statements
as required by Section 7.1 and further fails to remedy such default
within five days of notice thereof from the Administrative Agent, then, without
prejudice to any other rights of any Lender hereunder, the Most Recent Leverage
Ratio shall be deemed to be the highest level as of the date such financial
statements were required to be delivered under Section 7.1.  The Most Recent Leverage Ratio for the period
from the Closing 


 


28

















 


Date to the first
date on which financial statements are required to be delivered to the Lenders
pursuant to Section 7.1 shall be deemed to be 3.0 to 1.0.


 


“Most Recent Senior
Secured Leverage Ratio” means, at any date, the Senior Secured Leverage
Ratio for the Test Period ending as of the most recently ended Fiscal Quarter
for which financial statements have been delivered to the Lenders pursuant to Section 7.1;
provided, however, that if the Borrower fails to deliver such
financial statements as required by Section 7.1 and further fails
to remedy such default within five days of notice thereof from the
Administrative Agent, then, without prejudice to any other rights of any Lender
hereunder, the Most Recent Senior Secured Leverage Ratio shall be deemed to be
the highest level as of the date such financial statements were required to be
delivered under Section 7.1. 
The Most Recent Senior Secured Leverage Ratio shall be deemed to be
greater than 2.25 to 1.0 for the period from the Effective Date to the earlier
of (A) the date of delivery of the financial statements required by Section 7.1
and a Compliance Certificate with respect to the Fiscal Quarter of the Borrower
ended September 30, 2007 or (B) the date three (3) Business Days
following delivery by the Borrower of a certificate of a Responsible Financial
Officer stating that (i) the US Commodity Business Sale has been
consummated, (ii) no Event of Default or Unmatured Event of Default has
occurred and (iii) certifying as to the Senior Secured Leverage Ratio
calculated on a Pro Forma Basis after giving effect to the US Commodity
Business Sale and the repayment of any Indebtedness with the Net Sale Proceeds
therefrom that has occurred by the date of such certificate.


 


“MP Group” has the
meaning assigned to that term in the definition of “Change of Control” in this Section 1.1.


 


“Multiemployer Plan”
means any plan described in Section 4001(a)(3) of ERISA to which
contributions are or have, within the preceding six years, been made, or are or
were, within the preceding six years, required to be made, by the Borrower or
any of its ERISA Affiliates or any Subsidiary of the Borrower or ERISA
Affiliates of such Subsidiary.


 


“Net Equity Proceeds”
means the cash proceeds received from (i) any capital contribution from
any member of the Borrower or (ii) the issuance of Capital Stock of the
Borrower (other than to a Subsidiary or an employee stock ownership plan), net
of the actual liabilities for reasonably anticipated cash taxes in connection
with such incurrence, if any, any underwriting, brokerage and other customary
selling commissions incurred in connection with such incurrence, and reasonable
legal, advisory and other fees and expenses, incurred in connection with such
incurrence.


 


“Net Recovery Proceeds”
means, with respect to any Recovery Event, an amount equal to the sum of the
aggregate cash payments received by the Borrower or any Subsidiary of the
Borrower from such Recovery Event minus the direct costs and expenses
incurred in connection therewith (including, without limitation, all legal fees
and other professional fees) and minus any provision for taxes in
respect thereof made in accordance with GAAP. 
Any proceeds, costs expenses or taxes denominated in a currency other
than Dollars shall, for purposes of the calculation of the amount of Net
Recovery Proceeds, be in an amount equal to the Dollar Equivalent thereof as of
the date of receipt of such Net Recovery Proceeds by the Borrower or any
Subsidiary of the Borrower.


 


29

















 


“Net Sale Proceeds”
means, with respect to any Asset Disposition, an amount equal to the sum of the
aggregate cash payments received by the Borrower or any Subsidiary of the
Borrower from such Asset Disposition (including, without limitation, cash
received by way of deferred payment pursuant to a note receivable, conversion
of non-cash consideration, cash payments in respect of purchase price
adjustments or otherwise, but only as and when such cash is received) minus
the direct costs and expenses incurred in connection therewith (including in
the case of any Asset Disposition, the payment of the outstanding principal
amount of, premium, if any, and interest on any Indebtedness (other than
hereunder) required to be repaid as a result of such Asset Disposition) and minus
any provision for taxes in respect thereof made in accordance with GAAP.  Any proceeds received in a currency other
than Dollars shall, for purposes of the calculation of the amount of Net Sale
Proceeds, be in an amount equal to the Dollar Equivalent thereof as of the date
of receipt thereof by the Borrower or any Subsidiary of the Borrower.


 


“New Revolving Lender”
has the meaning assigned to that term in Section 2.10(a).


 


“Non-Defaulting Lender”
means each Lender which is not a Defaulting Lender.


 


“Non-Impaired Lender”
means, at any time, any Revolving Lender which is not an Impaired Lender.


 


“Non-U.S. Participant”
means any Lender that is not a United States person within the meaning of Code
section 7701(a)(30).


 


“Note” means any
of the Swing Line Note, the Revolving Notes or the Term Notes and “Notes”
means all of such Notes collectively.


 


“Notice of Borrowing”
has the meaning assigned to that term in Section 2.5.


 


“Notice of Conversion
or Continuation” has the meaning assigned to that term in Section 2.6.


 


“Notice of Issuance”
has the meaning assigned to that term in Section 2.9(b).


 


“Notice of Revolving
Commitment Increase” has the meaning assigned to that term in Section 2.10(b).


 


“Notice Office”
means the office of the Administrative Agent located at 1111 Fannin, 10th
Floor, Houston, Texas 77002, Attention: Monica M. Espitia (Facsimile No. 713-427-6307),
or such other office as the Administrative Agent may designate to the Borrower
and the Lenders from time to time.


 


“Obligations”
means all liabilities and obligations of the Borrower and its Subsidiaries now
or hereafter arising under this Agreement and all of the other Loan Documents,
whether for principal, interest, fees, expenses, indemnities or otherwise, and
whether primary, secondary, direct, indirect, contingent, fixed or otherwise
(including obligations of performance).


 


30














 


“Operating Financing
Lease” means a lease of the type described in clause (xi) of the
definition of “Indebtedness”.


 


“Organizational
Documents” means, with respect to any Person, such Person’s memorandum,
articles or certificate of incorporation, certificates of formation, bylaws,
partnership agreement, limited liability company agreement, joint venture
agreement or other similar governing documents and any document setting forth
the designation, amount and/or relative rights, limitations and preferences of
any class or series of such Person’s Capital Stock.


 


“Other Hedging
Agreement” means any foreign exchange contract, currency swap agreement,
futures contract, commodity agreements, option contract, synthetic cap or other
similar agreement other than an Interest Rate Agreement to which the Borrower
or any Subsidiary is a party.


 


“Overdraft Facility”
has the meaning assigned to that term in Section 8.2(b)(xii).


 


“Overdraft Reserve”
shall mean an amount, if any, equal to the amount by which Indebtedness incurred
by the Borrower or any of its Subsidiaries pursuant to Section 8.2(b)(xii)
exceeds $60,000,000 (or the Dollar Equivalent thereof).


 


“Parent Company”
means each Person which owns, directly or indirectly, at least a majority of
the Voting Securities of the Borrower.


 


“Participants” has
the meaning assigned to that term in Section 12.8(b).


 


“Participating
Subsidiary” means any Subsidiary of the Borrower or other entity formed as
necessary or customary under the laws of the relevant jurisdiction that is a participant
in a Permitted Accounts Receivable Securitization.


 


“Patriot Act” has
the meaning assigned to that term in Section 6.22.


 


“Payment Office”
means (i) with respect to the Administrative Agent or the Swing Line
Lender, for payments with respect to Dollar-denominated Loans, the address
located at 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention: Monica M.
Espitia (Facsimile No. 713-427-6307), or such other address as the
Administrative Agent or the Swing Line Lender, as the case may be, may from
time to time specify in accordance with Section 12.3 or (ii) with
respect to the Administrative Agent or the Swing Line Lender, for payments in
an Alternative Currency or with respect to a Letter of Credit denominated in an
Alternative Currency, such account at such bank or office in London (or such
other location) as the Administrative Agent or the Swing Line Lender, as the
case may be, shall designate by notice to the Person required to make the
relevant payment.


 


“PBGC” means the
Pension Benefit Guaranty Corporation created by Section 4002(a) of
ERISA.


 


“Perfection
Certificates” has the meaning assigned to that term in Section 5.1(f).


 


31

















 


“Permitted Accounts
Receivable Securitization” means any receivables financing program
providing for the sale, conveyance or contribution to capital of Receivables
Facility Assets or interests therein by the Borrower and its Participating
Subsidiaries to a Receivables Subsidiary in transactions purporting to be sales,
which Receivables Subsidiary shall finance the purchase of such Receivables
Facility Assets by the direct (or, to the extent approved by the Administrative
Agent as evidenced by its written approval thereof, indirect) sale, transfer,
conveyance, lien, grant of participation or other interest or pledge of such
Receivables Facility Assets or interests therein to one or more limited purpose
financing companies, special purpose entities, trusts and/or financial
institutions, in each case, on a limited recourse basis as to the Borrower and
the Participating Subsidiaries (except to the extent a limitation on recourse
is not customary for similar transactions or is prohibited in the relevant
jurisdiction); provided that any such transaction shall be consummated
pursuant to documentation necessary or customary for such transactions in the
relevant jurisdiction (or otherwise satisfactory to the Administrative Agent as
evidenced by its written approval thereof) and shall provide for purchase price
percentages reasonably satisfactory to the Administrative Agent.  Each of the Receivables Securitization
Programs shall be considered a Permitted Accounts Receivables Securitization
hereunder.


 


“Permitted Entrustment
Loan Arrangement” means a coordinated credit-linked deposit and loan
facility arranged in compliance with the laws of the People’s Republic of China
pursuant to which a Foreign Subsidiary of the Borrower organized under the laws
of the People’s Republic of China makes loans or advances to another Foreign
Subsidiary of the Borrower through the use of an intermediary financial
institution in the People’s Republic of China.


 


“Permitted Non-Cash
Impairment and Restructuring Charges” means, with respect to any Person,
for any period, (i) the aggregate depreciation, amortization and other
non-cash charges 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 which requires an accrual of
or a reserve for cash charges for any future period) and (ii) cash charges
taken after the Effective Date in an aggregate amount not to exceed
$100,000,000.


 


“Permitted Liens”
has the meaning assigned to that term in Section 8.1.


 


“Permitted Real
Property Encumbrances” means (i) those liens, encumbrances and other
matters affecting title to any Mortgaged Property listed in the applicable
title policy in respect thereof (or any update thereto) and found, on the date
of delivery of such title policy to the Administrative Agent in accordance with
the terms hereof, reasonably acceptable by the Administrative Agent, (ii) as
to any particular real property at any time, such easements, encroachments,
covenants, restrictions, rights of way, minor defects, irregularities or
encumbrances on title which do not, in the reasonable opinion of the
Administrative Agent, materially impair such real property for the purpose for
which it is held by the mortgagor or owner, as the case may be, thereof, or the
Lien held by the Administrative Agent, (iii) municipal and zoning laws,
regulations, codes and ordinances, which are not violated in any material
respect by the existing improvements and the present use made by the mortgagor
or owner, as the case may be, of such real property, (iv) general real
estate taxes and assessments not yet delinquent, and (v) such other items
as the Administrative Agent may consent to.


 


32

















 


“Permitted Refinancing
Indebtedness” means, with respect to any Indebtedness, any Indebtedness
refinancing, extending, renewing or refunding such Indebtedness; provided,
however, that any such refinancing Indebtedness shall (i) be issued by the
same obligor as the Indebtedness being so refinanced (or by Huntsman
Corporation or a Parent Company) and be on terms, taken as a whole, not more
restrictive than the terms of the documents governing the Indebtedness being so
refinanced; (ii) if the Indebtedness being so refinanced is subordinated
to the Obligations, be subordinated to the Obligations on substantially the
same terms (or on terms at least as favorable to the Lenders) as Indebtedness
being so refinanced; (iii) be in a principal amount (as determined as of
the date of the incurrence of such refinancing Indebtedness in accordance with
GAAP) not exceeding the principal amount of the Indebtedness being refinanced
on such date plus any call premiums, prepayment fees, costs and expenses paid in
connection with such refinancing; (iv) not have a Weighted Average Life to
Maturity less than the Indebtedness being refinanced; (v) if the
Indebtedness being refinanced is Public Notes, be unsecured Indebtedness
maturing no earlier than the then latest Term Maturity Date; and (vi) be
upon terms and subject to documentation which is in form and substance
reasonably satisfactory in all material respects to the Administrative Agent.


 


“Permitted Technology
Licenses” has the meaning assigned to that term in Section 8.3(f) of
this Agreement.


 


“Permitted
Unconsolidated Ventures” means an Investment in a Person not constituting a
Subsidiary of the Borrower which Person is not engaged in any business other
than that permitted under Section 8.9 for the Borrower and its
Subsidiaries.


 


“Person” means an
individual or a corporation, partnership, limited liability company, trust,
incorporated or unincorporated association, joint venture, joint stock company,
Governmental Authority or other entity of any kind.


 


“Plan” means any
plan described in Section 4021(a) of ERISA and not excluded pursuant
to Section 4021(b) thereof, which is or has, within the preceding six
years, been established or maintained, or to which contributions are or have,
within the preceding six years, been made, by the Borrower or any of its ERISA
Affiliates or any Subsidiary of the Borrower or any ERISA Affiliates of such
Subsidiary, but not including any Multiemployer Plan.


 


“Plan Administrator”
has the meaning assigned to the term “administrator” in Section 3(16)(A) of
ERISA.


 


“Plan Sponsor” has
the meaning assigned to the term “plan sponsor” in Section 3(16)(B) of
ERISA.


 


“Pledge Agreement”
has the meaning assigned to that term in Section 5.1(c) of
this Agreement.


 


“Pledged Receivables
Subsidiary Notes” means the subordinated notes of the Receivables
Subsidiary, if any, issued to the Borrower or any Participating Subsidiary in
connection with a Permitted Accounts Receivable Securitization, which
subordinated notes are pledged pursuant to the Receivables Subsidiary Pledge
Agreement.


 


33

















 


“Pledged Receivables
Subsidiary Stock” means all the issued and outstanding shares of capital
stock of the Receivables Subsidiary, which shares are pledged pursuant to the
Receivables Subsidiary Pledge Agreement.


 


“Pledged Securities”
means, collectively, “Pledged Securities” as defined in the Collateral Security
Agreement or any other pledged securities under any Security Document.


 


“Port Arthur Fire Add
Back” means, for any period that includes any Fiscal Quarter ending after December 31,
2006 and on or before December 31, 2007, the sum of (i) an amount not
to exceed $50,000,000 per Fiscal Quarter (provided, that any excess above
$50,000,000 may be carried forward to the next Fiscal Quarter) ending after December 31,
2006 and on or before December 31, 2007 included in such period (and $0
for each Fiscal Quarter that ends thereafter included in such period), equal to
the net business interruption losses (calculated in accordance with GAAP) for
the applicable period, including the retained portion of any business
interruption claims that relate to the Port Arthur Plant Fire and that are, or
are expected to be, the subject of insurance claims by the Borrower or its
Subsidiaries but only to the extent such claims have not been denied and have
been, or in the reasonable judgment of the Borrower, are likely to be, paid by
the Borrower’s or its Subsidiaries’ insurance carriers or represent the
retained portion of any business interruption claims pertaining to the
deductible plus (ii) to the extent (A) deducted in determining
Consolidated Net Income for such period and (B) such charges are, or are
expected to be, the subject of insurance claims by the Borrower or its
Subsidiaries but only to the extent such claims have not been denied and have
been, or in the reasonable judgment of the Borrower, are likely to be, paid by
the Borrower’s or its Subsidiaries’ insurance carriers or represent the
retained portion of any physical property insurance claims pertaining to the
deductible, any charges payable in cash for the maintenance or repair of
property damaged in the Port Arthur Plant Fire to the extent of such
damage.  The Port Arthur Fire Add Back shall
be set forth on the Compliance Certificate delivered pursuant to Section 7.2(b) for
each Fiscal Quarter ending after December 31, 2006 and on or before September 30,
2008, and the Borrower shall, upon the request of the Administrative Agent,
deliver such detailed computations as are necessary to support such amount.


 


“Port Arthur Fire
Insurance Income” means, for any period, the amount of income of the
Borrower or any of its Subsidiaries for such period (as determined in
accordance with GAAP) related to insurance proceeds received or expected to be
received as a result of the Port Arthur Plant Fire, including, without
limitation, any related (i) payments in respect of claims on policies
related to business interruption insurance during such period, (ii) physical
property insurance proceeds received by the Borrower or any of its Subsidiaries
during such period and (iii) accruals for expected insurance income
recoveries during such period.


 


“Port Arthur Plant
Fire” means the fire that occurred at the Borrower’s Port Arthur, Texas
olefins manufacturing plant on or about April 29, 2006.


 


“Pro Forma Basis”
means, (a) with respect to the preparation of a pro forma financial
statement for any purpose relating to an Acquisition or for calculation of
Consolidated EBITDA for any period, a pro forma financial statement or
calculation prepared on the basis that (i) any Indebtedness incurred or
assumed in connection with such Acquisition was incurred or assumed on the
first day of the applicable period, (ii) if such Indebtedness bears a
floating 


 


34

















 


interest rate,
such interest shall be paid over such period at the rate in effect on the date
of such Acquisition, and (iii) all income and expense associated with the
assets or entity acquired in connection with such Acquisition for the most
recently ended four fiscal quarter period for which such income and expense
amounts are available shall be treated as being earned or incurred by Borrower
over the applicable period on a pro forma basis without giving effect to any
cost savings other than, to the extent desired to be included by the Borrower,
Pro Forma Cost Savings, (b) with respect to the preparation of a pro forma
financial statement for any purpose relating to an Asset Disposition or for
calculation of Consolidated EBITDA, a pro forma financial statement or
calculation prepared on the basis that (i) any Indebtedness prepaid out of
the proceeds of such Asset Disposition shall be deemed to have been prepaid as
of the first day of the applicable period, and (ii) all income and expense
(other than such expenses as the Borrower, in good faith, estimates will not be
reduced or eliminated as a consequence of such Asset Disposition) associated
with the assets or entity disposed of in connection with such Asset Disposition
shall be deemed to have been eliminated as of the first day of the applicable
period and (c) with respect to the preparation of a pro forma financial
statement for any purpose relating to an incurrence of Indebtedness or the
making of any payment (or any repayment), or both, a pro forma financial
statement or calculation prepared on the basis that (i) such Indebtedness
incurred was incurred or such payment (or repayment) was made on the first day
of the applicable period and (ii) if such Indebtedness bears a floating
rate of interest, such interest was paid over such period at the rate in effect
on the date of incurrence of such Indebtedness. 
For the avoidance of doubt, for the purpose of determining any financial
ratio hereunder on a “Pro Forma Basis” for any period (the “Subject Period”),
any Acquisition, Asset Disposition, incurrence of Indebtedness or payment (or
repayment) made at any time during the period commencing after the last day of
the Subject Period through and including the date that such determination is
required to be made, shall be taken into account for purposes of this
definition.


 


“Pro Forma Cost
Savings” means, with respect to the determination of Consolidated Net
Income on a Pro Forma Basis, such cost savings as would be permitted pursuant
to Rule 11.02 of Regulation S-X (assuming Regulation S-X applied to the
acquisition in question), if prior to the consummation of any Acquisition
permitted by Section 8.7(m), the Borrower’s certified public
accountants shall have issued a comfort letter (in a manner consistent with
example d of SAS 72) or shall have performed procedures agreed upon by the
Borrower and Administrative Agent, in each case related to the determination of
such Consolidated Net Income on a Pro Forma Basis in accordance with the
applicable accounting requirements of Rule 11.02 of Regulation S-X.


 


“Pro Rata Share”
means, when used with reference to any Lender and any described aggregate or
total amount of any Facility or Facilities, an amount equal to the result
obtained by multiplying such described aggregate or total amount by a fraction
the numerator of which shall be such Lender’s Commitment with respect to such
Facility or Facilities and the denominator of which shall be the aggregate
Commitments outstanding for all Lenders or, if no Commitments are then
outstanding, with respect to such Facility or Facilities such Lender’s
aggregate Loans with respect to such Facility or Facilities to the total Loans
outstanding hereunder with respect to such Facility or Facilities, and when
used with reference to any Lender’s percent interest, such fraction, expressed
as a percentage.


 


“Projections” has
the meaning assigned to that term in Section 6.5(e).


 


35

















 


“Public Note Documents”
means the Senior Secured (2010) Note Documents, the Senior Note (2012)
Documents, the Senior Subordinated Note (2013) Documents, the Senior
Subordinated Note (2014) Documents, the Senior Subordinated Note (2015)
Documents, the Senior Note (2016) Documents and all documents evidencing,
guaranteeing or otherwise governing any Permitted Refinancing Indebtedness of
any Public Notes.


 


“Public Notes”
means the Senior Secured Notes (2010), the Senior Notes (2012), Senior
Subordinated Notes (2013), the Senior Subordinated Notes (2014), the Senior
Subordinated Notes (2015) and the Senior Notes (2016), in each case in the
amounts outstanding on the Fifth Amendment Effective Date, and any notes
evidencing any Permitted Refinancing Indebtedness of any of the foregoing.


 


“Quarterly Payment
Date” means each March 31, June 30, September 30 and December 31
of each year.


 


“Quoted Rate”
means the rate of interest per annum with respect to a Swing Line Loan
denominated in an Alternative Currency as determined by the Swing Line Lender
at the time such Swing Line Loan is made to the Borrower.


 


“Receivables Documents”
shall mean all documentation relating to any receivables financing program
providing for the sale of Receivables Facility Assets by the Borrower and its
Subsidiaries (whether or not to a Receivables Subsidiary) in transactions
purporting to be sales and shall include the Receivables Securitization Program
Documents.


 


“Receivables Facility
Assets” shall mean any Accounts Receivable (whether now existing or arising
in the future) of the Borrower or any of its Subsidiaries, and any assets
related thereto, including without limitation (i) all collateral given by
the respective account debtor or on its behalf (but not by the Borrower or any
of its Subsidiaries) securing such Accounts Receivable, (ii) all contracts
and all guarantees (but not by the Borrower or any of its Subsidiaries) or
other obligations directly related to such Accounts Receivable, (iii) other
related assets and (iv) proceeds of all of the foregoing.  Receivables Securitization Program Facility
Assets shall be deemed to constitute Receivables Facility Assets.


 


“Receivables Facility
Attributed Indebtedness” at any time shall mean the aggregate Dollar
Equivalent net outstanding amount theretofore paid, directly or indirectly, by
a funding source in respect of the Receivables Facility Assets or interests
therein sold, conveyed, contributed or transferred or pledged pursuant to the
relevant Receivables Documents (including in connection with a Permitted
Accounts Receivable Securitization) (it being the intent of the parties that
the amount of Receivables Facility Attributed Indebtedness at any time
outstanding approximate as closely as possible the principal amount of
Indebtedness which would be outstanding at such time under the Receivables
Documents if the same were structured as a secured lending agreement rather
than an agreement providing for the sale, conveyance, contribution to capital,
transfer or pledge of such Receivables Facility Assets or interests therein).


 


36

















 


“Receivables
Securitization Program Documents” means all documents and deliveries in
connection with the Receivables Securitization Programs, as such documents may
be amended or modified from time to time to the extent permitted under this
Agreement.


 


“Receivables
Securitization Program Facility Assets” means all “Receivables” and other “Receivable
Assets” (as defined in the Receivables Securitization Program Loan Agreements)
of the Borrower and the Receivables Program Participating Subsidiaries.


 


“Receivables
Securitization Program Loan Agreements” means, collectively, (i) that
certain European Receivables Loan Agreement, dated as of October 16, 2009,
among Huntsman Receivables Finance LLC, Huntsman (Europe) B.V.B.A, the several
entities party thereto as lenders, the several financial institutions party
thereto as funding agents, Barclays Bank plc, as administrative agent and
collateral agent, and (ii) that certain U.S. Receivables Loan Agreement,
dated as of October 16, 2009, among Huntsman Receivables Finance II LLC,
Huntsman (Europe) B.V.B.A., the several entities party thereto as lenders, the
several financial institutions party thereto as funding agents, the several
commercial paper conduits party thereto as conduit lenders, the several
financial institutions party thereto as committed lenders, Wachovia Bank
National Association, as administrative agent and collateral agent, each as
amended, supplemented or otherwise modified from time to time, or either such
receivables loan agreement, as the context requires.


 


“Receivables
Securitization Program Participating Subsidiaries” means each Subsidiary of
the Borrower from time to time party to any of the Receivables Securitization
Programs.


 


“Receivables Securitization
Program Subsidiaries” means, collectively, (i) Huntsman Receivables
Finance LLC and (ii) Huntsman Receivables Finance II LLC, each a limited
liability company organized under the laws of the State of Delaware, or either
such entity, as the context requires.


 


“Receivables
Securitization Programs” means each of the receivables financing programs
providing for the sale, contribution or other transfer of Receivables
Securitization Program Facility Assets pursuant to the relevant Receivables
Securitization Program Documents by the Borrower and/or the Receivables
Securitization Program Participating Subsidiaries to the relevant Receivables
Securitization Program Subsidiary(directly or through the Borrower, another
Receivables Securitization Program Participating Subsidiary or a financial
institution) in which the Borrower and/or the Receivables Securitization
Program Subsidiaries shall finance the purchase of such Receivables
Securitization Program Facility Assets by the sale, transfer, conveyance, lien,
grant of a participation or other interest or pledge of such Receivables
Securitization Program Facility Assets directly or indirectly to one or more
limited purpose financing companies, special purpose entities and/or financial
institutions, in each case, on a limited recourse basis as to the Borrower and
the Receivables Securitization Program Participating Subsidiaries.


 


“Receivables
Subsidiary” means a special purpose, bankruptcy remote Wholly-Owned
Subsidiary of the Borrower which may be formed for the sole and exclusive
purpose of engaging in activities in connection with the purchase, sale and
financing of Accounts 


 


37

















 


Receivable in connection
with and pursuant to one or more Permitted Accounts Receivable Securitizations;
provided, however, that if the law of a jurisdiction in which the
Borrower proposes to create a Receivables Subsidiary does not provide for the
creation of a bankruptcy remote entity that is acceptable to the Borrower or
requires the formation of one or more additional entities (whether or not
Subsidiaries of the Borrower), the Administrative Agent may in its discretion
permit the Borrower to form such other type of entity in such jurisdiction to
serve as a Receivables Subsidiary as is necessary or customary for similar
transactions in such jurisdiction.  Each
of the Receivables Securitization Program Subsidiaries shall be considered a
Receivables Subsidiary hereunder.


 


“Receivables
Subsidiary Pledge Agreement” means the Pledge Agreement, Collateral
Security Agreement and/or such other pledge or security agreement in form
reasonably satisfactory to the Administrative Agent pursuant to which the
Borrower or a Participating Subsidiary pledges the Pledged Receivables
Subsidiary Stock and the Pledged Receivables Subsidiary Notes to the Collateral
Agent for the benefit of the Lenders to secure the “Secured Obligations”
described in the Pledge Agreement or the Collateral Security Agreement, as
applicable.


 


“Recovery Event”
means the receipt by the Borrower or any of its Subsidiaries of any insurance
or condemnation proceeds payable (i) by reason of any theft, physical
destruction or damage or any other similar event with respect to any properties
or assets of the Borrower or any of its Subsidiaries, (ii) by reason of
any condemnation, taking, seizing or similar event with respect to any
properties or assets of the Borrower or any of its Subsidiaries and (iii) under
any policy of insurance required to be maintained under Section 7.8
provided, however, that in no event shall payments made under
business interruption insurance constitute a Recovery Event.


 


“Reference Lenders”
means the principal office of JPMCB in the relevant jurisdiction or such other
banks as may be appointed by the Administrative Agent in consultation with the
Borrower.


 


“Refinanced Facility
Debt” has the meaning assigned to that term in Section 12.23(a).


 


“Refunded Swing Line
Loans” has the meaning assigned to that term in Section 2.1(c)(ii).


 


“Regulation D”
means Regulation D of the Board as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.


 


“Related Fund”
means, with respect to any Lender which is a Fund, any other Fund that is
administered or managed by the same investment advisor of such Lender or by an
Affiliate of such investment advisor.


 


“Release” means
any release, spill, emission, leaking, pumping, pouring, emptying, dumping,
injection, deposit, disposal, discharge, dispersal, escape, leaching or
migration into the indoor or outdoor environment, including the movement of
Contaminants through or in the air, soil, surface water or groundwater.


 


38

















 


“Remedial Action”
means actions required to (i) clean up, remove, treat or in any other way
address Contaminants in the indoor or outdoor environment;  (ii) prevent, minimize or otherwise
address the Release or substantial threat of a material Release of Contaminants
so they do not migrate or endanger or threaten to endanger public health or
welfare or the indoor or outdoor environment; or (iii) perform
pre-response or post-response studies and investigations and post-response
monitoring and care or any other studies, reports or investigations relating to
Contaminants.


 


“Replaced Lender”
has the meaning assigned to that term in Section 3.7.


 


“Replacement Lender”
has the meaning assigned to that term in Section 3.7.


 


“Reportable Event”
means a “reportable event” described in Section 4043(c) of ERISA or
in the regulations thereunder with respect to a Plan other than a reportable
event for which the 30 day notice requirement to the PBGC has been waived, any
event requiring disclosure under Section 4063(a) or 4062(e) of
ERISA, receipt of a notice of withdrawal liability with respect to a
Multiemployer Plan pursuant to Section 4202 of ERISA or receipt of a
notice of reorganization or insolvency with respect to a Multiemployer Plan
pursuant to Section 4242 or 4245 of ERISA.


 


“Required Lenders”
means Non-Defaulting Lenders the sum of whose outstanding Term Loans and
Revolving Commitments (or, after the Total Revolving Commitment has been
terminated, the Assigned Dollar Value of outstanding Revolving Loans and the
Assigned Dollar Value of LC Obligations) constitute greater than 50% of the sum
of (i) the total outstanding Dollar Equivalent amount of Term Loans of
Non-Defaulting Lenders and (ii) the Total Revolving Commitment less the
aggregate Revolving Commitments of Defaulting Lenders (or, after the Total
Revolving Commitment has been terminated, the total Assigned Dollar Value of
outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate Pro
Rata Share of all Non-Defaulting Lenders of the total Assigned Dollar Value of
outstanding LC Obligations at such time).


 


“Required Note Offer
Amount Proceeds” shall mean (i) with respect to any Asset Disposition,
the amount of any Net Sale Proceeds which would be required by the terms of the
Senior Secured Notes (2010) Indenture to be applied to offer to purchase Senior
Secured Notes (2010) and (ii) with respect to any Recovery Event, any Net
Recovery Proceeds which would be required by the terms of the Senior Secured
Notes (2010) Indenture to offer to purchase Senior Secured Notes (2010); in
each case (x) including amounts which are required under the terms of the
Senior Secured Notes (2010) Indenture to be accumulated to make such an offer, (y) assuming
no reinvestment of such proceeds or expenditure of such proceeds to purchase
replacement properties or assets and (z) after giving effect to any
prepayment of Loans to the maximum extent permitted by the Senior Secured Notes
(2010) Indenture without requiring an offer to repurchase Senior Secured Notes
(2010).


 


“Requirement of Law”
means, as to any Person, any law (including common law), treaty, rule or
regulation or judgment, decree, determination or award of an arbitrator or a
court or other Governmental Authority, including without limitation, any
Environmental Law, in each 


 


39

















 


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.


 


“Resigning Agent”
has the meaning assigned to that term in Section 11.9(h).


 


“Responsible Financial
Officer” means, as to any Person, the chief financial officer, principal
accounting officer, a financial vice president, controller, manager (in the
case of a limited liability company) having responsibility for financial
matters, treasurer or assistant treasurer of such Person.


 


“Responsible Officer”
means, as to any Person, any of the chairman or vice chairman of the board of
directors, the president, any executive vice president, the vice
president-controller, any vice president, manager (in the case of a limited
liability company) or any Responsible Financial Officer of such Person.


 


“Restricted Payment”
has the meaning assigned to that term in Section 8.4(a).


 


“Revolver Event
of Default” means any Event of Default under Section 10.1(c) as
a result of the Borrower failing to be in compliance with Section 9.1.


 


“Revolver Termination
Date” means the Stated Termination Date or such earlier date as the
Revolving Commitments shall have been terminated or otherwise reduced to $0
pursuant to this Agreement; provided, that, if there shall occur a date (an “earlier
date”) on which in excess of $100,000,000 of Public Notes and/or Term Loans
which have not been repaid or refinanced with Permitted Refinancing
Indebtedness in accordance with the terms of this Agreement is scheduled to
come due within three months, “Revolver Termination Date” means such earlier
date.


 


“Revolving Commitment”
means, with respect to any Revolving Lender, the obligation of such Revolving
Lender to make Revolving Loans and participate in Letters of Credit and Swing
Line Loans, as such commitment may be adjusted from time to time pursuant to
this Agreement, which commitment as of the Fifth Amendment Effective Date is
the amount set forth opposite such Lender’s name on Schedule 1.1(a) hereto
under the caption “Amount of Revolving Commitment” as the same may be adjusted
from time to time pursuant to the terms hereof and “Revolving Commitments”
means such commitments collectively, which commitments will not exceed
$300,000,000 in the aggregate.


 


“Revolving Commitment
Increase” has the meaning assigned to that term in Section 2.10(a).


 


“Revolving Commitment
Increase Date” has the meaning assigned to that term in Section 2.10(a).


 


“Revolving Facility”
means the credit facility under this Agreement evidenced by the Revolving
Commitments and the Revolving Loans.


 


“Revolving Lender”
means any Lender which has a Revolving Commitment or is owed a Revolving Loan
(or a portion thereof).


 


40














 


“Revolving Loan”
and “Revolving Loans” have the meanings given in Section 2.1(b)(i).


 


“Revolving Note”
has the meaning assigned to that term in Section 2.2(a).


 


“Rubicon” means
Rubicon Inc., and its successors and assigns.


 


“Sale and Leaseback
Transaction” means any arrangement, directly or indirectly, whereby a
seller or transferor shall sell or otherwise transfer any real or personal
property and then or thereafter lease, or repurchase under an extended purchase
contract, conditional sales or other title retention agreement, the same or
similar property.


 


“Scheduled Term B
Dollar Repayments” means, with respect to the principal payments on the
Term B Dollar Loans for each date set forth below, that percentage of the
aggregate outstanding principal amount of Term B Dollar Loans on the Effective
Date set forth opposite thereto:


 


Scheduled Term B
Dollar Repayments


 


	
   

  	
  Date

  	
   

  	
  Principal
  Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  1% of the aggregate
  principal amount as of the Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  1% of the aggregate
  principal amount as of the Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  1% of the aggregate
  principal amount as of the Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2011

  	
   

  	
  1% of the aggregate
  principal amount as of the Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2012

  	
   

  	
  1% of the aggregate
  principal amount as of the Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2013

  	
   

  	
  1% of the aggregate
  principal amount as of the Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Term B Loan Maturity
  Date

  	
   

  	
  100% of the aggregate
  principal amount of Term B Dollar Loans outstanding on the Term B Loan
  Maturity Date.

  	
   

  



 


“Scheduled Term C
Dollar Repayments” means, with respect to the principal payments on the
Term C Dollar Loans for each date set forth below, that percentage of the
aggregate outstanding principal amount of Term C Dollar Loans on the Fourth
Amendment Effective Date set forth opposite thereto:


 


41

















 


Scheduled Term C
Dollar Repayments


 


	
   

  	
  Date

  	
   

  	
  Principal Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  1% of the aggregate
  principal amount as of the Fourth Amendment Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2011

  	
   

  	
  1% of the aggregate
  principal amount as of the Fourth Amendment Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2012

  	
   

  	
  1% of the aggregate
  principal amount as of the Fourth Amendment Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2013

  	
   

  	
  1% of the aggregate
  principal amount as of the Fourth Amendment Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2014

  	
   

  	
  1% of the aggregate
  principal amount as of the Fourth Amendment Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2015

  	
   

  	
  1% of the aggregate
  principal amount as of the Fourth Amendment Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  March 31, 2016

  	
   

  	
  1% of the aggregate
  principal amount as of the Fourth Amendment Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Term C Loan Maturity
  Date

  	
   

  	
  100% of the aggregate
  principal amount of Term C Dollar Loans outstanding on the Term C Loan
  Maturity Date.

  	
   

  



 


“Scheduled Term
Repayments” mean, for any Term Facility, the scheduled principal payments
set forth in the “Scheduled Term Repayments” definition applicable to such Term
Facility.


 


“SEC” means the
Securities and Exchange Commission or any successor thereto.


 


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


 


“Securities” means
any stock, shares, voting trust certificates, bonds, debentures, options,
warrants, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as “securities” or any certificates of interest, shares or participations
in temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.


 


42

















 


“Security Documents”
means, collectively the Collateral Security Agreement, the Pledge Agreement,
the Mortgages, the UK Security Documents and all other agreements, assignments,
security agreements, instruments and documents executed in connection
therewith, in each case as the same may at any time be amended, supplemented,
restated or otherwise modified and in effect. 
For purposes of this Agreement, “Security Documents” shall also include
all guaranties, mortgagees, pledge agreements, collateral assignments,
subordination agreements and other collateral documents and any reaffirmation
of the foregoing in the nature thereof entered into by the Borrower or any
Subsidiary of the Borrower on and after the date of this Agreement in favor of
the Collateral Agent for the benefit of the Secured Parties in satisfaction of
the requirements of this Agreement.


 


“Senior Note (2012)
Documents” means the Senior Notes (2012), the Senior Notes (2012) Indenture
and all other documents evidencing, guaranteeing or otherwise governing the
terms of the Senior Notes (2012).


 


“Senior Note (2016)
Documents” means the Senior Notes (2016), the Senior Notes (2016) Indenture
and all other documents evidencing, guaranteeing or otherwise governing the
terms of the Senior Notes (2016).


 


“Senior Notes (2012)”
means those certain 11-1/2% senior notes due July 15, 2012 issued pursuant
to the terms of the Senior Notes (2012) Indenture.


 


“Senior Notes (2016)”
means those certain 5-1/2% senior notes due 2016 issued pursuant to the terms of
the Senior Notes (2016) Indenture.


 


“Senior Notes (2012)
Indenture” means that certain Indenture dated as of June 22, 2004
among Borrower (as successor to Huntsman LLC), the guarantors named therein and
HSBC Bank USA, National Association, as trustee (as the same may be amended in
compliance with this Agreement, including pursuant to the Supplemental
Indenture dated as of July 11, 2005) and any supplemental indenture or
additional indenture to be entered into with respect to the Senior Notes (2012)
to the extent permitted under Section 8.11.


 


“Senior Notes (2016)
Indenture” means that certain Indenture dated as of July 6, 2009 among
Borrower, the guarantors named therein and Wilmington Trust FSB, as trustee (as
the same may be amended in compliance with this Agreement) and any supplemental
indenture or additional indenture to be entered into with respect to the Senior
Notes (2016) to the extent permitted under Section 8.11.


 


“Senior Secured (2010)
Note Documents” means the Senior Secured Notes (2010), the Senior Secured
Notes (2010) Indenture and all other documents evidencing, guaranteeing or
otherwise governing the terms of the Senior Secured Notes (2010).


 


“Senior Secured
Leverage Ratio” means, as of any date of determination, the ratio of (i) Consolidated
Debt that is either (x) secured by any Lien or (y) is Indebtedness of
the Borrower or any Subsidiary of the type referred to in clause (x) of
the definition of such term (other than any such Indebtedness of Foreign
Subsidiaries that are not secured by Liens) to (ii) Consolidated EBITDA
for the most recently ended four Fiscal Quarters for which financial statements
have been delivered pursuant to Section 7.1.


 


43

















 


“Senior Secured Notes
(2010)” means those certain 11-5/8% senior secured notes due October 15,
2010 issued pursuant to the terms of the Senior Secured Notes (2010) Indenture,
and secured by the Collateral on a pari passu basis with the Obligations.


 


“Senior Secured Notes
(2010) Indenture” means that certain Indenture dated as of September 30,
2003 among Borrower (as successor to Huntsman LLC), the guarantors named
therein and HSBC Bank USA, National Association (as successor to HSBC Bank
USA), as trustee (as the same may be amended in compliance with this Agreement,
including pursuant to the Supplemental Indenture dated as of July 13,
2005) and any supplemental indenture or additional indenture to be entered into
with respect to the Senior Secured Notes (2010) to the extent permitted under Section 8.11.


 


“Senior Secured Notes
(2010) Obligations” means the obligations incurred by Borrower under the
Senior Secured Notes (2010) Indenture, as evidenced by the Senior Secured Notes
(2010).


 


“Senior Subordinated
Note (2013) Documents” means the Senior Subordinated Notes (2013), the
Senior Subordinated Notes (2013/2014) Indenture and all other documents
evidencing, guaranteeing or otherwise governing the terms of the Senior
Subordinated Notes (2013).


 


“Senior Subordinated
Notes (2013)” means those certain 6-7/8% senior subordinated notes due November 2013
issued by the Borrower pursuant to the terms of the Senior Subordinated Notes
(2013/2014) Indenture.


 


“Senior Subordinated
Notes (2013/2014) Indenture” means that certain Indenture dated as of November 13,
2006 among the Borrower, the guarantors named therein and Wells Fargo, National
Association, as trustee (as the same may be amended in compliance with this
Agreement, including pursuant to the Supplemental Indenture dated February 2007)
and any supplemental indenture or additional indenture to be entered into with
respect to the Senior Subordinated Notes (2013) or the Senior Subordinated
Notes (2014) to the extent permitted under Section 8.11.


 


“Senior Subordinated
Note (2014) Documents” means the Senior Subordinated Notes (2014), the
Senior Subordinated Notes (2013/2014) Indenture and all other documents
evidencing, guaranteeing or otherwise governing the terms of the Senior
Subordinated Notes (2014).


 


“Senior Subordinated
Notes (2014)” means those certain 7-7/8% senior subordinated notes due November 2014
issued by the Borrower pursuant to the terms of the Senior Subordinated Notes
(2013/2014) Indenture.


 


“Senior Subordinated
Note (2015) Documents” means the Senior Subordinated Notes (2015), the
Senior Subordinated Notes (2015) Indenture and all other documents evidencing,
guaranteeing or otherwise governing the terms of the Senior Subordinated Notes
(2015).


 


44

















 


“Senior Subordinated
Notes (2015)” shall mean (i) those certain 7-3/8% senior subordinated
notes due January 1, 2015 denominated in Dollars issued by the Borrower
pursuant to the terms of the Senior Subordinated Notes (2015) Indenture and (ii) those
certain 7-1/2% senior subordinated notes due January 1, 2015 denominated
in Euros issued by the Borrower pursuant to the terms of the Senior
Subordinated Notes (2015) Indenture.


 


“Senior Subordinated
Notes (2015) Indenture” shall mean that certain Indenture dated as of December 17,
2004 among Borrower, the guarantors named therein and Wells Fargo Bank
Minnesota, National Association, as trustee (as the same may be amended in
compliance with this Agreement) and any supplemental indenture or additional
indenture to be entered into with respect to the Senior Subordinated Notes
(2015) to the extent permitted under Section 8.11.


 


“Solvent” means,
when used with respect to (i) any Person (other than subject to clause
(ii)), that (x) the fair saleable value of its assets is in excess of the
total amount of its liabilities (including for purposes of this definition all
liabilities, whether or not reflected on a balance sheet prepared in accordance
with GAAP, and whether direct or indirect, fixed or contingent, disputed or
undisputed), (y) it is able to pay its debts or obligations in the
ordinary course as they mature and (z) it has capital sufficient to carry
on its business and all business in which it is about to engage and (ii) for
any Person other than a Domestic Subsidiary, such Person has the ability to pay
its debts as and when they fall due and could not be deemed to be insolvent for
the purposes of the law of such Person’s jurisdiction of formation.  For purposes of Section 6.5(b) “debt”
means any liability on a claim, and “claim” means (A) any right to
payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured, or unsecured (including all obligations, if any,
under any Plan or the equivalent for unfunded past service liability, and any
other unfunded medical and death benefits) or (B) any right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.  In computing the amount of
contingent or unliquidated liabilities at any time, such liabilities will be
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


 


“Spot Rate” means,
for any currency at any date, the rate quoted in Bloomberg World Currency Value
as the spot rate for the purchase of such currency with another currency on the
applicable determination date.


 


“S&P” means
Standard & Poor’s Ratings Service, a division of the McGraw-Hill
Companies, Inc., or any successor to the rating agency business thereof.


 


“Standby Letters of
Credit” means any of the irrevocable standby letters of credit issued
pursuant to this Agreement, in form acceptable to the Facing Agent issuing such
standby letters of credit, together with any increases or decreases in the
Stated Amount thereof and any renewals, amendments and/or extensions thereof.


 


“Stated Amount” or
“Stated Amounts” means, (i) with respect to any Letter of Credit
issued in Dollars, the stated or face amount of such Letter of Credit to the
extent available 


 


45

















 


at the time for
drawing (subject to presentment of all requisite documents), and (ii) with
respect to any Letter of Credit issued in any currency other than Dollars, the
Assigned Dollar Value of the stated or face amount of such Letter of Credit to
the extent available at the time for drawing (subject to presentment of all
requisite documents), in either case, as the same may be increased or decreased
from time to time in accordance with the terms of such Letter of Credit.  For purposes of calculating the Stated Amount
of any Letter of Credit at any time:


 


(A)                              any increase in the Stated Amount of any
Letter of Credit by reason of any amendment to any Letter of Credit shall be
deemed effective under this Agreement as of the date the relevant Facing Agent
actually issues an amendment purporting to increase the Stated Amount of such
Letter of Credit, whether or not such Facing Agent receives the consent of the
Letter of Credit beneficiary or beneficiaries to the amendment, except that if
the Borrower has required that the increase in Stated Amount be given effect as
of an earlier date and such Facing Agent issues an amendment to that effect,
then such increase in Stated Amount shall be deemed effective under this
Agreement as of such earlier date requested by the Borrower; and


 


(B)                                any reduction in the Stated Amount of any
Letter of Credit by reason of any amendment to any Letter of Credit shall be
deemed effective under this Agreement as of the later of (x) the date the
applicable Facing Agent actually issues an amendment purporting to reduce the
Stated Amount of such Letter of Credit, whether or not the amendment provides
that the reduction be given effect as of an earlier date, or (y) the date
the applicable Facing Agent receives the written consent (including by
authenticated telex, cable, SWIFT messages or facsimile transmission (with, in
the case of a facsimile transmission, a follow-up original hard copy)) of the
Letter of Credit beneficiary or beneficiaries to such reduction, whether written
consent must be dated on or after the date of the amendment issued by such
Facing Agent purporting to effect such reduction.


 


“Stated Termination
Date” means March 9, 2014, as the same may be extended from time to
time pursuant to Section 2.11.


 


“Sterling” means
the lawful currency of the United Kingdom.


 


“Subsidiary” of
any Person means any corporation, partnership (limited or general), limited
liability company, trust or other entity of which a majority of the Capital
Stock (or equivalent beneficial ownership or voting interest) having ordinary
voting power to elect a majority of the board of directors (if a corporation)
or to select the trustee or equivalent controlling interest, shall, at the time
such reference becomes operative, be directly or indirectly owned or controlled
by such Person or one or more of the other subsidiaries of such Person or any
combination thereof.  Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.  


 


46

















 


Unless otherwise
expressly provided, an Unrestricted Subsidiary shall not be considered a “Subsidiary”
of the Borrower for purposes of this Agreement.


 


“Subsidiary Guarantor”
means each Subsidiary of the Borrower that is or becomes a party to the
Subsidiary Guaranty or delivers a guaranty pursuant to Section 7.11.


 


“Subsidiary Guaranty”
means the guaranty executed by the Subsidiary Guarantors, in form and substance
satisfactory to the Administrative Agent, and delivered as of the Closing Date,
as the same may be amended, supplemented or otherwise modified from time to
time.


 


“Swing Line Commitment”
means, with respect to the Swing Line Lender at any date, the obligation of the
Swing Line Lender to make Swing Line Loans pursuant to Section 2.1(c) in
the amount referred to therein.


 


“Swing Line Lender”
means JPMCB in such capacity (acting through any branch or Affiliate).


 


“Swing Line Lender
Sublimit” means $25,000,000.


 


“Swing Line Loan
Participation Certificate” means a certificate, substantially in the form
of Exhibit 2.1(c).


 


“Swing Line Loans”
has the meaning assigned to that term in Section 2.1(c)(i).


 


“Swing Line Note”
has the meaning assigned to that term in Section 2.2(a).


 


“Tax Distributions”
has the meaning provided in Section 8.4.


 


“Tax Sharing Agreement”
means that certain tax sharing agreement dated as of the date hereof by and
among Borrower, Huntsman Corporation and other Subsidiaries of Huntsman
Corporation referred to therein, initially substantially in the form of Exhibit 5.1(v),
as amended or otherwise modified from time to time in accordance with Section 8.11.


 


“Taxes” has the
meaning assigned to that term in Section 4.7(a).


 


“Technology” has
the meaning assigned to that term in Section 8.3(f).


 


“Term B Dollar
Commitment” means, with respect to any Term B Lender signatory to the Third
Amendment, the principal amount set forth opposite such Lender’s name on Schedule
1.1(a) hereto or in any Assignment and Assumption Agreement under the
caption “Amount of Term B Dollar Commitment”, as such commitment may be
adjusted from time to time pursuant to this Agreement or increased pursuant to Section 2.1(a)(ii),
and “Term B Dollar Commitments” means such commitments collectively, which
commitments equal $1,640,000,000 in the aggregate on the Effective Date.


 


“Term B Dollar
Facility” means the credit facility under this Agreement evidenced by the
Term B Dollar Commitments and the Term B Dollar Loans.


 


47

















 


“Term B Dollar Lender”
means any Lender which has a Term B Dollar Commitment or has made (or a portion
thereof) a Term B Dollar Loan.


 


“Term B Dollar Loan”
and “Term B Dollar Loans” have the meanings assigned to those terms in Section 2.1(a)(i).


 


“Term B Dollar Note”
and “Term B Dollar Notes” have the meanings assigned to those terms in Section 2.2(a).


 


“Term B Loan Facility”
means the Term B Dollar Facility.


 


“Term B Loan Maturity
Date” means April 19, 2014; provided, that, if there shall
occur a date (an “earlier date”) on which in excess of $100,000,000 of
Public Notes which have not been repaid or refinanced with Permitted
Refinancing Indebtedness in accordance with the terms of this Agreement is
scheduled to come due within three months, “Term B Loan Maturity Date”
means such earlier date.


 


“Term C Dollar
Commitment” means, with respect to any Term C Dollar Lender signatory to
the Fourth Amendment, the principal amount set forth opposite such Lender’s
name on Schedule 1.1(a) hereto under the caption “Amount of Term C
Dollar Commitment”, as such commitment may be adjusted from time to time
pursuant to this Agreement or increased pursuant to Section 2.1(a)(ii),
and “Term C Dollar Commitments” means such commitments collectively, which
commitments equal $500,000,000 in the aggregate on the Fourth Amendment
Effective Date.


 


“Term C Dollar
Facility” means the credit facility under this Agreement evidenced by the
Term C Dollar Commitments and the Term C Dollar Loans.


 


“Term C Dollar Lender”
means any Lender which has a Term C Dollar Commitment or has made (or a portion
thereof) a Term C Dollar Loan.


 


“Term C Dollar Loan”
and “Term C Dollar Loans” have the meanings assigned to those terms in Section 2.1(d).


 


“Term C Loan Maturity
Date” means June 30, 2016.


 


“Term Commitment”
means, with respect to each Lender and any Term Facility, the principal amount
set forth opposite such Lender’s name on Schedule 1.1(a) hereto or
in any Assignment and Assumption Agreement under the caption for the amount of
commitment to such Term Facility, as such commitments may be adjusted from time
to time pursuant to this Agreement, and “Term Commitments” means such
commitments collectively.


 


“Term Facilities”
means the Facilities under the Agreement other than the Revolving Facility.


 


“Term Loan Ratable
Share” shall mean, as of any date of determination, a fraction, the
numerator of which is the total outstanding principal amount of Term Loans as
of such date and the denominator of which is an amount equal to the sum of (i) the
total principal 


 


48

















 


amount of Term
Loans outstanding as of such date and (ii) the total principal amount of
Senior Secured Notes (2010) outstanding as of such date.


 


“Term Loans” means
the Loans under the Term Facilities, collectively.


 


“Term Maturity Date”
means, with respect to any Term Facility, the scheduled maturity date for such
Term Facility under this Agreement.


 


“Term Note” and “Term
Notes” means the Term C Dollar Notes that evidence the Term C Dollar Loans
and the notes provided for in Section 2.2 that evidence
indebtedness under the Term Facilities, collectively.


 


“Term Percentage”
means, at any time with respect to any Term Facility, a fraction (expressed as
a percentage) the numerator of which is equal to the aggregate Assigned Dollar
Value of all Loans under such Term Facility outstanding at such time and the
denominator of which is equal to the aggregate Assigned Dollar Value of all
Term Loans outstanding at such time.


 


“Test Period”
means, at any time the four Fiscal Quarters of the Borrower then last ended.


 


“TG” means Tioxide
Group Unlimited, a direct Subsidiary of the Borrower that is a private
unlimited company incorporated under the laws of England and Wales with company
number 00249759.


 


“Thai Holding
Companies” means the Domestic Subsidiaries of the Borrower whose sole
asset, if any, is an ownership interest in Huntsman (Thailand) Ltd., a
corporation organized under the laws of Thailand, and identified as such on Schedule
6.13.


 


“Third Amendment”
means the Third Amendment to this Agreement dated as of April 19, 2007.


 


“Total Assets”
means, at any date of determination, the total assets of the Borrower and its
Subsidiaries, as determined in accordance with GAAP at the end of the most
recent Fiscal Quarter for which financial statements were delivered pursuant to
Section 7.1.


 


“Total Available
Revolving Commitment” means, at the time of any determination thereof is
made, the sum of the respective Available Revolving Commitments of the Lenders
at such time.


 


“Total Commitment”
means, at the time any determination thereof is made, the sum of the Term
Commitments and the Revolving Commitments at such time.


 


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


 


“Transferee” has
the meaning assigned to that term in Section 12.8(d).


 


49














 


“Type” means any
type of Loan, namely, a Base Rate Loan or a Eurocurrency Loan.


 


“UCC” means the
Uniform Commercial Code as in effect from time to time in the relevant
jurisdiction.


 


“UK Business Sale”
means the sale all of the outstanding equity interests of Huntsman Petrochemicals
(UK) Limited to SABIC and the assumption by SABIC of unfunded pension
liabilities.


 


“UK Debenture” has
the meaning assigned to that term Section 5.1(b).


 


“UK Holdco 1”
means Huntsman (Holdings) UK, a direct Wholly-Owned Subsidiary of TG that is a
private unlimited company incorporated under the laws of England and Wales with
company number 03768308.


 


“UK Pledge Agreements”
means the English law governed charges over shares in respect of the shares
held by the Borrower or a Subsidiary Guarantor in TG or UK Holdco 1 granted in
favor of the UK Security Trustee (as modified, supplemented or amended from
time to time).


 


“UK Security Trustee”
means JPMCB, J.P. Morgan Europe Limited or any other designated affiliate, in
its capacity as UK Security Trustee under the UK Security Documents or any
successor UK Security Trustee.


 


“UK Security Documents”
means the UK Pledge Agreements and the UK Debenture.


 


“Unmatured Event of
Default” means an event, act or occurrence which with the giving of notice
or the lapse of time (or both) would become an Event of Default.


 


“Unpaid Drawing”
has the meaning assigned to that term in Section 2.9(c).


 


“Unrestricted
Investment” has the meaning assigned to that term in Section 8.4.


 


“Unrestricted
Subsidiary” means  (i) each of
the Persons identified on Schedule 1.1(c) hereto, (ii) any
Subsidiary of the Borrower designated as an Unrestricted Subsidiary in the
manner provided below, (iii) any Subsidiary of an Unrestricted Subsidiary
created at or after the designation of its parent company as an Unrestricted
Subsidiary pursuant to clause (ii) above and (iv) any Permitted
Unconsolidated Venture that, as a result of an Investment permitted under Section 8.7(j),
(o) or (p), would otherwise become a Subsidiary of the
Borrower; provided, however, that no Receivables Subsidiary may
be an Unrestricted Subsidiary.  The
Borrower may designate any Subsidiary (including any newly acquired or newly
formed Subsidiary but excluding any Receivables Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, the Borrower or any Subsidiary of the Borrower
that is not a Subsidiary of the Subsidiary to be so designated; provided,
that (x) each Subsidiary to be so designated an Unrestricted Subsidiary
and each of its Subsidiaries has not, at the time of designation, and does not
thereafter, create, incur, assume, 


 


50

















 


guarantee or
otherwise become directly or indirectly liable with respect to any Indebtedness
pursuant to which any lender has recourse to any of the assets of the Borrower
or any of its Subsidiaries (other than Unrestricted Subsidiaries), (y) immediately
before and immediately after the effectiveness of such designation, no
Unmatured Event of Default or Event of Default exists or will exist and (z) 
the Investment made in such Unrestricted Subsidiary (valued at the fair market
value of the Subsidiary at the time that such Subsidiary is designated an
Unrestricted Subsidiary and valued thereafter in accordance with the definition
of “Investments”) is permitted pursuant to Section 8.7.  Any such designation of an Unrestricted
Subsidiary shall be evidenced by delivery to the Administrative Agent of (A) a
copy of the resolutions of the Borrower giving effect to such designation and (B) an
officer’s certificate signed by two Responsible Financial Officers of the
Borrower certifying that such designation complies with the foregoing
provisions.  If, at any time, any Unrestricted Subsidiary would fail to meet the
requirements set forth in clause (x) above for an Unrestricted Subsidiary,
it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this
Agreement and the other Loan Documents and Borrower shall take such applicable
actions as required by Section 12.20 to redesignate such
Unrestricted Subsidiary as a Subsidiary.


 


“Unrestricted
Subsidiary Investment Basket” means, as of any date of determination, an
amount equal to the sum of (i) the greater of  (A) $300,000,000 or (B) 3% of Total
Assets plus (ii) the after-tax amount of any cash returns of
principal or capital on Investments listed on Schedule 1.1(c) hereto
or made pursuant to Section 8.7(j), cash dividends thereon and
other cash returns on investment thereon, as the case may be, in each case,
after the Effective Date.


 


“US Commodity Business
Sale” means the proposed sale of the Borrower’s U.S. base chemicals and
polymers business to Flint Hills Resources pursuant to the terms of the US
Commodity Business Sale Agreement.


 


“US Commodity Business
Sale Agreement” means that certain Asset Purchase Agreement, dated February 15,
2007 among Flint Hills Resources, LLC, the Borrower, Huntsman Petrochemical
Corporation, Huntsman International Chemicals Corporation, Huntsman Polymers
Holdings Corporation, Huntsman Expandable Polymers Company, LLC, Huntsman
Polymers Corp. and Huntsman Chemical Company of Canada, Inc., together
with any amendments or modifications thereto to the extent not materially
adverse to the Lenders.


 


“Voting Securities”
means any class of Capital Stock of a Person pursuant to which the holders
thereof have, at the time of determination, the general voting power under
ordinary circumstances to vote for the election of directors, managers,
trustees or general partners of such Person (irrespective of whether or not at
the time any other class or classes will have or might have voting power by
reason of the happening of any contingency).


 


“Weighted Average Life
to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing (i) the then outstanding principal
amount of such Indebtedness into (ii) the sum of each of the products
obtained by multiplying (x) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof by (y) the number 


 


51

















 


of years
(calculated to the nearest one-twelfth) that will elapse between such date and
the scheduled due date of each such remaining payment.


 


“Wholly-Owned
Subsidiary” means, with respect to any Person, any Subsidiary of such
Person, all of the outstanding shares of capital stock of which (other than
qualifying shares required to be owned by directors of Foreign Subsidiaries, or
similar de minimis issuances of capital stock to
comply with Requirements of Law) are at the time owned directly or indirectly
by such Person and/or one or more Wholly-Owned Subsidiaries of such Person; provided,
that each of Huntsman Corporation Hungary Rt. and its Wholly-Owned Subsidiaries
shall be deemed to be a Wholly-Owned Subsidiary.  For purposes of this definition, ‘capital
stock’ shall include equivalent ownership or controlling interests having
ordinary voting power in entities other than corporations.


 


“written” or “in
writing” means any form of written communication or a communication by
means of telecopier device or authenticated telex, telegraph or cable.


 


The foregoing definitions
shall be equally applicable to both the singular and plural forms of the
defined terms.  In the computation of
periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the words “to” and “until” each mean “to but
excluding.”  The words “herein,” “hereof”
and words of similar import as used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision in this
Agreement.  References to “Articles”, “Sections”,
“paragraphs”, “Exhibits” and “Schedules” in this Agreement shall refer to
Articles, Sections, paragraphs, Exhibits and Schedules of this Agreement unless
otherwise expressly provided; references to Persons include their respective
permitted successors and assigns or, in the case of governmental Persons,
Persons succeeding to the relevant functions of such persons; and all
references to statutes and related regulations shall include any amendments of
same and any successor statutes and regulations.  Unless otherwise expressly provided herein,
references to constitutive and Organizational Documents and to agreements
(including the Loan Documents) and other contractual instruments shall be
deemed to include subsequent amendments, restatements, extensions, supplements
and other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not
prohibited by any Loan Document.


 


9.2.                            Accounting Terms; Financial Statements


 


A.                                   Except as otherwise expressly provided herein
(including without limitation, any modification to the terms hereof pursuant to
Section 8.12), all accounting terms used herein but not expressly
defined in this Agreement and all computations and determinations for purposes
of determining compliance with the financial requirements of this Agreement
shall be made in accordance with GAAP in effect on the date hereof and on a
basis consistent with the presentation of the financial statements and
projections delivered pursuant to, or otherwise referred to in, Sections 6.5(a) and
6.5(e).  Notwithstanding the
foregoing sentence, the financial statements required to be delivered pursuant
to Section 7.1 shall be prepared in accordance with GAAP as in
effect on the respective dates of their preparation.  Unless otherwise provided for herein,
wherever any computation is to be made with respect to any Person and its
Subsidiaries, such computation shall be made so as to exclude all items of income,
loss, assets and liabilities 


 


52

















 


attributable to
any Person that is not a Subsidiary of such Person.  For purposes of the financial terms set forth
herein, whenever a reference is made to a determination which is required to be
made on a consolidated basis (whether in accordance with GAAP or otherwise) for
the Borrower and its Subsidiaries, such determination shall be made as if each
Unrestricted Subsidiary were wholly-owned by a Person not an Affiliate of the
Borrower.


 


B.                                     Solely for purposes of delivery of the financial
statements required by Sections 6.5, 7.1(a) and (b),
Unrestricted Subsidiaries shall be deemed to be Subsidiaries; provided, however,
concurrently with the delivery of the officer’s certificate required by Section 7.2(b),
for purposes of calculating compliance with the financial covenants hereof,
Borrower shall also deliver to Administrative Agent statements excluding the
Unrestricted Subsidiaries, and, upon request of Administrative Agent,
reflecting the relevant calculations pertaining to the Unrestricted
Subsidiaries existing on the Effective Date, in each case in form and substance
satisfactory to the Administrative Agent.


 


C.                                     Without limiting the definition of “Pro Forma Basis”,
for purposes of computing the financial ratios as of the end of any period, all
components of such ratios for the applicable period shall include or exclude,
as the case may be, without duplication, such components of such ratios
attributable to any business or assets that have been acquired or disposed of
by the Borrower or any Subsidiary of the Borrower (including through mergers or
consolidations) after the first day of such period and prior to the end of such
period on a pro forma basis, as if such acquisition or disposition had occurred
on the first day of such period, as determined in good faith by the Borrower
and certified to by a Responsible Officer of the Borrower to the Administrative
Agent.


 


SECTION 10


 


AMOUNT
AND TERMS OF CREDIT


 


10.1.                     The Commitments


 


A.                                   Term B Loan.


 


(a)                                  Subject to the terms and conditions
hereof and in the Third Amendment, each Term B Dollar Lender agrees to make a
loan in Dollars (the “Term B Dollar Loans”) to the Borrower on the Third
Amendment Effective Date in the aggregate principal amount of such Lender’s
Term B Dollar Commitment.  No amount of a
Term B Loan which is repaid or prepaid by the Borrower may be reborrowed
hereunder.  The Term B Dollar Loans shall
be denominated in Dollars, shall be maintained as and/or converted into Base
Rate Loans or Eurocurrency Loans or a combination thereof, provided,
that all Term B Dollar Loans made by the Term B Dollar Lenders pursuant to the
same Borrowing shall, unless otherwise specifically provided herein, consist
entirely of Term B Dollar Loans of the same Type.


 


(b)                                 (A) The Borrower shall have the
right at any time following the date on which the Administrative Agent notifies
the Borrower that the initial 


 


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syndication of the Loans
and Commitments with respect to this Agreement has occurred to the
Administrative Agent’s satisfaction (so long as (x) no Unmatured Event of
Default or Event of Default then exists and is continuing, (y) the
Borrower shall have delivered to Administrative Agent a Compliance Certificate
for the period of four full Fiscal Quarters immediately preceding the
incurrence described below (prepared in good faith and in a manner and using
such methodology which is consistent with the most recent financial statements
delivered pursuant to Section 7.1) giving pro forma effect to such
incurrence and evidencing compliance with the covenant set forth in Article IX)
and (z) such incurrence is not prohibited by the terms of any Public Note
Document), to incur from one or more existing Lenders and/or other Persons that
are Eligible Assignees and which, in each case, agree to make such term loans
to the Borrower, Additional Term Loans in Dollars or Euros (in maximum amounts
described below), which loans may be incurred as one or more tranches of
additional term loans as determined by Administrative Agent in an aggregate
principal amount not to exceed $1,000,000,000 so long as the proceeds of such
Additional Term Loans are used solely for (i) capital expenditures, (ii) repayment
of secured Indebtedness of the Borrower, (iii) repayment of Senior Notes
(2012) and (iv) to finance Acquisitions permitted by Section 8.3(b) hereof.


 


(B) In
the event that the Borrower desires to incur Additional Term Loans, the
Borrower will enter into an amendment with the lenders (who shall by execution
thereof become Lenders hereunder if not theretofore Lenders) to provide for
such Additional Term Loans, which amendment shall set forth any terms and
conditions of the Additional Term Loans not covered by this Agreement as agreed
by the Borrower and such Lenders, and shall provide for the issuance of
promissory notes to evidence the Additional Term Loans if requested by the
lenders advancing Additional Term Loans (which notes shall constitute Term
Notes for purposes of this Agreement) and for such reaffirmations of or
amendments to Security Documents as Administrative Agent may reasonably
require, with such amendment to be in form and substance reasonably acceptable
to Administrative Agent and consistent with the terms of this Section 2.1(a)(ii) and
of the other provisions of this Agreement. 
No consent of any Lender (other than any Lender making Additional Term
Loans) is required to permit the Loans contemplated by this Section 2.1(a)(ii) or
the aforesaid amendment to effectuate the Additional Term Loans.  This section shall supersede any provisions
contained in this Agreement, including, without limitation, Section 12.1,
to the contrary.


 


B.                                     Revolving Loans.  Each
Revolving Lender, severally and for itself alone, hereby agrees, on the terms
and subject to the conditions hereinafter set forth and in reliance upon the
representations and warranties set forth herein and in the other Loan
Documents, to make loans to the Borrower denominated in Dollars or an
Alternative Currency on a revolving basis from time to time during the
Commitment Period, in an amount that will not (i) exceed its Pro Rata
Share of the Total Available Revolving Commitment (each such loan by any
Lender, a “Revolving Loan” and collectively, the “Revolving Loans”)
or (ii) cause the Assigned Dollar Value of Revolving Loans, Swing Line
Loans and LC Obligations denominated in an Alternative 


 


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Currency to exceed
$200,000,000.  All Revolving Loans
comprising the same Borrowing hereunder shall be made by the Revolving Lenders
simultaneously and in proportion to their respective Revolving
Commitments.  Prior to the Revolver
Termination Date, Revolving Loans may be repaid and reborrowed by the Borrower
in accordance with the provisions hereof and, except as otherwise specifically
provided in Section 3.6, all Revolving Loans comprising the same
Borrowing shall at all times be of the same Type.  On the Revolver Termination Date, 100% of the
aggregate principal amount of Revolving Loans then outstanding shall be due and
payable.


 


C.                                     Swing Line Loans


 


(a)                                  Swing Line Commitment. 
Subject to the terms and conditions hereof, the Swing Line Lender in its
individual capacity agrees to make swing line loans in Dollars, Euros or
Sterling (or, at the option of the Swing Line Lender, any other Alternative
Currency) (“Swing Line Loans”) to the Borrower on any Business Day from
time to time during the Commitment Period in an aggregate principal amount at
any one time outstanding not to exceed the Dollar Equivalent of the Swing Line
Lender Sublimit; provided, however, that in no event may the
amount of any Borrowing of Swing Line Loans (A) exceed the Total Available
Revolving Commitment immediately prior to such Borrowing (after giving effect
to the use of proceeds thereof), (B) cause the outstanding Revolving Loans
of any Lender, when added to such Lender’s Pro Rata Share of the then
outstanding Swing Line Loans and Pro Rata Share of the aggregate LC Obligations
(exclusive of Unpaid Drawings relating to LC Obligations which are repaid with
the proceeds of, and simultaneously with the incurrence of, Revolving Loans or
Swing Line Loans) to exceed such Lender’s Revolving Commitment or (C) cause
the Assigned Dollar Value of Revolving Loans, Swing Line Loans and LC Obligations
denominated in an Alternative Currency to exceed $150,000,000.  Amounts borrowed by the Borrower under this Section 2.1(c)(i) may
be repaid and reborrowed until the Revolver Termination Date.


 


(b)                                 Refunding of Swing Line Loans. 
The Swing Line Lender, at any time in its sole and absolute discretion,
may on behalf of the Borrower (which hereby irrevocably directs the Swing Line
Lender to so act on its behalf) notify each Revolving Lender (including the
Swing Line Lender) to make a Revolving Loan in an amount equal to such Lender’s
Pro Rata Share of the Dollar Equivalent of the principal amount of such Swing
Line Loans (the “Refunded Swing Line Loans”) outstanding on the date
such notice is given, provided, however, that such notice shall
be deemed to have automatically been given upon the occurrence of an Event of
Default under Sections 10.1(e) or 10.1(f) or upon the
occurrence of a Change of Control. 
Unless any of the events described in Sections 10.1(e) or 10.1(f) shall
have occurred (in which event the procedures of Section 2.1(c)(iii) shall
apply) and regardless of whether the conditions precedent set forth in this
Agreement to the making of a Revolving Loan are then satisfied, each Lender
shall make the proceeds of its Revolving Loan available to the Swing Line
Lender at the Payment Office prior to 11:00 a.m., New York City time, in
funds immediately available on the third Business Day next succeeding the date
such 


 


55

















 


notice is given.  The proceeds of such Revolving Loans shall be
immediately applied to repay the Refunded Swing Line Loans.


 


(c)                                  Participation in Swing Line Loans. 
If, prior to refunding a Swing Line Loan with a Revolving Loan pursuant
to Section 2.1(c)(ii), one of the events described in Sections
10.1(e) or 10.1(f) shall have occurred, or if for any
other reason a Revolving Loan cannot be made pursuant to Section 2.1(c)(ii),
then, subject to the provisions of Section 2.1(c)(iv) below,
each Revolving Lender will, on the date such Revolving Loan was to have been
made, purchase (without recourse or warranty) from the Swing Line Lender an
undivided participation interest in the Swing Line Loan in an amount equal to
its Pro Rata Share of the Dollar Equivalent of such Swing Line Loan.  Upon request, each Revolving Lender will
immediately transfer to the Swing Line Lender, in immediately available funds,
the amount of its participation and upon receipt thereof the Swing Line Lender
will deliver to such Revolving Lender a Swing Line Loan Participation
Certificate dated the date of receipt of such funds and in such amount.


 


(d)                                 Lenders’ Obligations Unconditional. 
Each Revolving Lender’s obligation to make Revolving Loans in accordance
with Section 2.1(c)(ii) and to purchase participating interests
in accordance with Section 2.1(c)(iii) above shall, except as
set forth in the last sentence of this clause (iv), be absolute and
unconditional and shall not, except as set forth in the last sentence of this
clause (iv), be affected by any circumstance, including, without limitation, (A) any
set-off, counterclaim, recoupment, defense or other right which such Revolving
Lender may have against the Swing Line Lender, the Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of any Event
of Default or Unmatured Event of Default; (C) any adverse change in the
condition (financial or otherwise) of the Borrower or any other Person; (D) any
breach of this Agreement by the Borrower or any other Person; (E) any
inability of the Borrower to satisfy the conditions precedent to borrowing set
forth in this Agreement on the date upon which such participating interest is
to be purchased or (F) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.  If any Revolving Lender does not make
available to the Swing Line Lender the amount required pursuant to Section 2.1(c)(ii) or
(iii) above, as the case may be, the Swing Line Lender shall be
entitled to recover such amount on demand from such Revolving Lender, together
with interest thereon for each day from the date of non-payment until such
amount is paid in full at the Federal Funds Rate for the first two Business
Days and at the Base Rate thereafter. 
Notwithstanding the foregoing provisions of this Section 2.1(c)(iv),
no Revolving Lender shall be required to make a Revolving Loan to the Borrower
for the purpose of refunding a Swing Line Loan pursuant to Section 2.1(c)(ii) above
or to purchase a participating interest in a Swing Line Loan pursuant to Section 2.1(c)(iii) if
an Event of Default or Unmatured Event of Default has occurred and is
continuing and, prior to the making by the Swing Line Lender of such Swing Line
Loan, the Swing Line Lender has received written notice from such Revolving
Lender specifying that such Event of Default or Unmatured Event 


 


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of Default has occurred
and is continuing, describing the nature thereof and stating that, as a result
thereof, such Revolving Lender shall cease to make such Refunded Swing Line
Loans and purchase such participating interests, as the case may be; provided,
however, that the obligation of such Revolving Lender to make such
Refunded Swing Line Loans and to purchase such participating interests shall be
reinstated upon the earlier to occur of (y) the date upon which such
Revolving Lender notifies the Swing Line Lender that its prior notice has been
withdrawn and (z) the date upon which the Event of Default or Unmatured
Event of Default specified in such notice no longer is continuing.


 


D.                                    Term C Loans.  Subject to
the terms and conditions hereof and in the Fourth Amendment, each Term C Dollar
Lender agrees to make a loan in Dollars (the “Term C Dollar Loans”) to
the Borrower on the Fourth Amendment Effective Date in the aggregate principal
amount of such Lender’s Term C Dollar Commitment.  No amount of a Term C Dollar Loan which is
repaid or prepaid by the Borrower may be reborrowed hereunder.  The Term C Dollar Loans shall be denominated
in Dollars, shall be maintained as and/or converted into Base Rate Loans or
Eurocurrency Loans or a combination thereof, provided, that all Term C
Dollar Loans made by the Term C Dollar Lenders pursuant to the same Borrowing
shall, unless otherwise specifically provided herein, consist entirely of Term
C Dollar Loans of the same Type.


 


10.2.                     Notes


 


A.                                   Evidence of Indebtedness. 
The Borrower’s obligation to pay the principal of and interest on all
the Loans made to it by each Lender shall, if requested by a Lender, be
evidenced, (1) if Term B Dollar Loans, by a promissory note (each, a “Term
B Dollar Note” and, collectively, the “Term B Dollar Notes”) duly
executed and delivered by the Borrower substantially in the form of Exhibit 2.2(a)(1) hereto,
with blanks appropriately completed in conformity herewith, (2) if
Revolving Loans, by a promissory note (each, a “Revolving Note” and,
collectively, the “Revolving Notes”) duly executed and delivered by the
Borrower substantially in the form of Exhibit 2.2(a)(2) hereto,
with blanks appropriately completed in conformity herewith and (3) if
Swing Line Loans, by a promissory note (each, a “Swing Line Note” and,
collectively, the “Swing Line Notes”) duly executed and delivered by the
Borrower substantially in the form of Exhibit 2.2(a)(3) hereto,
with blanks appropriately completed in conformity herewith.


 


B.                                     Notation of Payments.  Each Lender
will note on its internal records the amount of each Loan made by it, and each
payment in respect thereof and will, prior to any transfer of any of its Notes,
endorse on the reverse side thereof the outstanding principal amount of Loans
evidenced thereby.  Failure to make any
such notation, or any error in any such notation, shall not affect the Borrower’s
or any guarantor’s obligations hereunder or under the other applicable Loan
Documents in respect of such Loans.


 


10.3.                     Minimum Amount of Each Borrowing; Maximum
Number of Borrowings


 


The aggregate principal
amount of each Borrowing by the Borrower hereunder shall be not less than the
Minimum Borrowing Amount and, if greater (other than with respect to 


 


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Swing Line Loans),
shall be in integral multiples of (i) in the case of a Borrowing in
Dollars, $1,000,000, (ii) in the case of a Borrowing in Sterling,
£750,000, or (iii) in the case of a Borrowing in Euros, €1,000,000, above
such minimum (or, if less, the then Total Available Revolving Commitment).  More than one Borrowing may be incurred on
any date; provided that at no time shall there be outstanding more than
six Borrowings of Eurocurrency Loans for any Facility.


 


10.4.                     Interest Rate Options


 


The Term Loans and the
Revolving Loans shall, at the option of the Borrower except as otherwise
provided in this Agreement, be (i) Base Rate Loans, (ii) Eurocurrency
Loans, or (iii) part Base Rate Loans and part Eurocurrency Loans; provided,
that non-Dollar denominated Revolving Loans may only be made as Eurocurrency
Loans.  Dollar denominated Swing Line
Loans shall be made only as Base Rate Loans. 
Non-Dollar denominated Swing Line Loans shall bear interest at the
applicable Quoted Rate and shall have such interest periods and interest
payment dates as are determined by the Swing Line Lender and the Borrower at
the time of Borrowing thereof.  As to any
Eurocurrency Loan, any Lender may, if it so elects, fulfill its commitment by
causing a foreign branch or affiliate to make or continue such Loan, provided
that in such event that Lender’s Loan shall, for the purposes of this
Agreement, be considered to have been made by that Lender and the obligation of
the Borrower to repay that Lender’s Loan shall nevertheless be to that Lender
and shall be deemed held by that Lender, for the account of such branch or
affiliate.


 


10.5.                     Notice of Borrowing


 


Whenever the Borrower
desires to make a Borrowing of any Loan hereunder, it shall give the
Administrative Agent at its office located at the Notice Office (or such other
address as the Administrative Agent may hereafter designate in writing to the
parties hereto) at least one Business Day’s prior written notice (or telephonic
notice promptly confirmed in writing), given not later than 1:00 p.m. (New
York City time) of each Base Rate Loan, and at least three Business Days’ prior
written notice (or telephonic notice promptly confirmed in writing), given not
later than 1:00 p.m. (New York City time), of each Dollar denominated
Eurocurrency Loan to be made hereunder and at least four Business Days prior
written notice (or telephone notice promptly confirmed in writing) given not
later than 1:00 p.m. (New York time), of each Loan denominated in an
Alternative Currency; provided, however, that a Notice of
Borrowing with respect to the Initial Borrowing may, at the discretion of the
Administrative Agent, be delivered later than the time specified above.  Whenever the Borrower desires that the Swing
Line Lender make a Swing Line Loan under Section 2.1(c), it shall
deliver to the Swing Line Lender prior to 1:00 p.m. (New York City time)
on the date of Borrowing (at least two Business Days prior to the date of
Borrowing for Swing Line Loans denominated in an Alternative Currency) written
notice (or telephonic notice promptly confirmed in writing).  Each such notice (each a “Notice of
Borrowing”), which shall be in the form of Exhibit 2.5 hereto,
shall be irrevocable, shall be deemed a representation by the Borrower that all
conditions precedent to such Borrowing have been satisfied and shall specify (i) the
aggregate principal amount of the Loans to be made pursuant to such Borrowing, (ii) the
date of Borrowing (which shall be a Business Day),  (iii) whether the Loans being made
pursuant to such Borrowing are to be Base Rate Loans or Eurocurrency Loans or
both, (iv) with respect to Eurocurrency Loans, the 


 


58

















 


Interest Period to
be applicable thereto, (v) with respect to Revolving Loans, the amount of
the Overdraft Reserve at such time and (vi) the account details of the
Borrower.  The Administrative Agent shall
as promptly as practicable give each Lender written or telephonic notice
(promptly confirmed in writing) of each proposed Borrowing, of such Lender’s
Pro Rata Share thereof and of the other matters covered by the Notice of
Borrowing.  Without in any way limiting
the Borrower’s obligation to confirm in writing any telephonic notice, the
Administrative Agent or the Swing Line Lender (in the case of Swing Line Loans)
may act without liability upon the basis of telephonic notice believed by the
Administrative Agent in good faith to be from a Responsible Officer of the
Borrower prior to receipt of written confirmation.  The Administrative Agent’s records shall,
absent manifest error, be final, conclusive and binding on the Borrower with
respect to evidence of the terms of such telephonic Notice of Borrowing.


 


10.6.                     Conversion or Continuation


 


With respect to Dollar
denominated Loans (other than Swing Line Loans), the Borrower may elect (i) on
any Business Day at any time after the earlier of (x) the third Business
Day following the Closing Date and (y) the date the Administrative Agent
notifies the Borrower that Base Rate Loans or any portion thereof may be
converted to Eurocurrency Loans and (ii) at the end of any Interest Period
with respect thereto, to convert Eurocurrency Loans or any portion thereof into
Base Rate Loans or to continue such Eurocurrency Loans or any portion thereof
for an additional Interest Period; provided, however, that the
aggregate principal amount of the Eurocurrency Loans that will, upon such
conversion, constitute a single Borrowing that must satisfy Section 2.3.  With respect to Euro or Sterling denominated
Loans, the Borrower may elect, in the same manner as described for conversions,
to continue such Eurocurrency Loans or any portion thereof for an additional
Interest Period.  Each conversion or
continuation of Loans of each applicable Facility shall be allocated among the
Loans of the Lenders for such Facility in accordance with their respective Pro
Rata Shares.  Each such election shall be
in substantially the form of Exhibit 2.6 hereto (a “Notice of Conversion
or Continuation”) and shall be made by giving the Administrative Agent at
least three Business Days’ (or one Business Day in the case of a conversion
into Base Rate Loans or four Business Days’ in the case of continuation of a
non-Dollar denominated Revolving Loan) prior written notice thereof to the
Notice Office given not later than 1:00 p.m. (New York City time)
specifying (i) the amount and type of conversion or continuation, (ii) in
the case of a conversion to or a continuation of Eurocurrency Loans, the
Interest Period therefor, and (iii) in the case of a conversion, the date
of conversion (which date shall be a Business Day and, if a conversion from
Eurocurrency Loans, shall also be the last day of the Interest Period
therefor).  Notwithstanding the
foregoing, no conversion in whole or in part of Base Rate Loans to Eurocurrency
Loans, and no continuation in whole or in part of Dollar denominated
Eurocurrency Loans upon the expiration of any Interest Period therefor, shall
be permitted at any time at which an Unmatured Event of Default or an Event of
Default shall have occurred and be continuing. 
The Borrower shall not be entitled to specify an Interest Period in
excess of one month for any non-Dollar denominated Revolving Loan if an
Unmatured Event of Default or an Event of Default has occurred and is
continuing.  If, within the time period
required under the terms of this Section 2.6, the Administrative
Agent does not receive a Notice of Conversion or Continuation from the Borrower
containing a permitted election to continue any Eurocurrency Loans for an
additional Interest Period or to convert any such Loans, then, upon the
expiration of the Interest Period therefor, such Loans will be automatically
converted to Base Rate Loans or, in the case of non-Dollar denominated
Revolving Loans, Eurocurrency 


 


59

















 


Loans with an
Interest Period of one month.  Each
Notice of Conversion or Continuation shall be irrevocable.


 


10.7.                     Disbursement of Funds


 


No later than 1:00 p.m.
(local time at the place of funding) on the date specified in each Notice of
Borrowing, each Lender will make available its Pro Rata Share of Loans, to fund
the Borrowing requested to be made on such date in Dollars, Euro or Sterling,
as the case may be, and in immediately available funds, at the Payment Office
(for the account of such non-U.S. office of the Administrative Agent as the
Administrative Agent may direct in the case of Eurocurrency Loans) and the
Administrative Agent will make available to the Borrower at its Payment Office
the aggregate of the amounts so made available by the Lenders not later than
2:00 p.m. (local time in the place of payment).  Unless the Administrative Agent shall have
been notified by any Lender at least one Business Day prior to the date of
Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender’s portion of the Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, but shall not be required to, in reliance upon such
assumption, make available to the Borrower a corresponding amount.  If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender on the date of
Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender.  If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor,
the Administrative Agent shall promptly notify the Borrower and, if so
notified, the Borrower shall immediately pay such corresponding amount to the
Administrative Agent.  The Administrative
Agent shall also be entitled to recover from the Borrower interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to the rate for Base Rate Loans or Eurocurrency Loans,
applicable to the Type of Loan to which such corresponding amount related, for
the period in question; provided, however, that any interest paid
to the Administrative Agent in respect of such corresponding amount shall be
credited against interest payable by the Borrower to such Lender under Section 3.1
in respect of such corresponding amount. 
Any amount due hereunder to the Administrative Agent from any Lender
which is not paid when due shall bear interest payable by such Lender, from the
date due until the date paid, at the Federal Funds Rate for amounts in Dollars
(and at the Administrative Agent’s cost of funds for amounts in Euros or
Sterling or any other Alternative Currency) for the first three days after the
date such amount is due and thereafter at the Federal Funds Rate (or such cost
of funds rate) plus 1%, together with the Administrative Agent’s standard
interbank processing fee.  Further, such
Lender shall be deemed to have assigned any and all payments made of principal
and interest on its Loans, amounts due with respect to its Letters of Credit
(or its participations therein) and any other amounts due to it hereunder first
to the Administrative Agent to fund any outstanding Loans made available on
behalf of such Lender by the Administrative Agent pursuant to this Section 2.7
until such Loans have been funded (as a result of such assignment or otherwise)
and then to fund Loans of all Lenders other than such Lender until each Lender
has outstanding Loans equal to its Pro Rata Share of all Loans (as a result of
such assignment or otherwise).  Such
Lender shall not have recourse against the Borrower with respect to any amounts
paid to the Administrative Agent or any Lender with respect to the


 


60














 


preceding
sentence; provided, that such Lender shall have full recourse against
the Borrower to the extent of the amount of such Loans such Lender has been
deemed to have made pursuant to the preceding sentence.  Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment hereunder or to prejudice
any rights which the Borrower may have against the Lender as a result of any
default by such Lender hereunder.


 


10.8.                     Pro Rata Borrowings


 


All Borrowings in respect
of Loans (other than Swing Line Loans) under this Agreement shall be advanced
by the Lenders pro rata on the basis of their Commitments to the applicable
Facilities.  No Lender shall be
responsible for the failure of any Defaulting Lender or Impaired Lender to make
a Loan required under this Agreement and each Lender shall be obligated to make
the Loans provided to be made by it hereunder, regardless of the occurrence of
any Lender becoming a Defaulting Lender or an Impaired Lender.


 


10.9.                     Amount and Terms of Letters of Credit


 


A.                                   Letter of Credit Commitments, Terms of Letters of
Credit.


 


(a)                                  Subject to and upon the terms and
conditions herein set forth, at any time and from time to time on or after the
Closing Date until a date which is thirty (30) days prior to the Revolver
Termination Date, each Facing Agent  
(other than DB) agrees, severally not jointly, to issue each in its own
name, but for the ratable account of all Revolving Lenders (including the
applicable Facing Agent), one or more Letters of Credit, denominated in Dollars
or an Alternative Currency, for the account of the Borrower in a Stated Amount
which together with the aggregate Stated Amount of all other Letters of Credit
(other than Fifth Amendment Existing Letters of Credit) then outstanding does not
exceed the Facing Agent Sublimit; provided, however, that a Facing Agent
shall not issue or extend the expiration of any Letter of Credit if,
immediately after giving effect to such issuance or extension, (A) the sum
of the Assigned Dollar Value of the Revolving Loans, the Swing Line Loans and
the LC Obligations would exceed the Total Revolving Commitment minus the
Overdraft Reserve and (B) the sum of the Assigned Dollar Value of the LC
Obligations would exceed the Total Revolving Commitment on the date of such
issuance or extension.  Each Revolving
Lender severally, but not jointly, agrees to participate in each such Letter of
Credit issued by the applicable Facing Agent in an amount equal to its Pro Rata
Share and to make available to the applicable Facing Agent such Lender’s Pro
Rata Share of any payment made to the beneficiary of such Letter of Credit to
the extent not reimbursed by the Borrower; provided, however,
that no Revolving Lender shall be required to participate in any Letter of
Credit to the extent that such participation therein would exceed such
Revolving Lender’s then applicable Available Revolving Commitment.  No Lender’s obligation to participate in any
Letter of Credit or to make available to the applicable Facing Agent such
Revolving Lender’s Pro Rata Share of any Letter of Credit Payment made by the
applicable Facing Agent shall be affected by any other Revolving Lender’s
failure to participate in the same or any other Letter of Credit or by any 


 


61

















 


other Revolving Lender’s
failure to make available to the applicable Facing Agent such other Lender’s
Pro Rata Share of any Letter of Credit Payment.


 


(b)                                 Each Letter of Credit issued or to be
issued hereunder shall be issued on a sight basis, and (other than Bank
Guarantees) shall have an expiration date of one (1) year or less from the
issuance date thereof; provided, however, that each Standby
Letter of Credit may provide by its terms that it will be automatically
extended for additional successive periods of up to one (1) year unless
the applicable Facing Agent shall have given notice to the applicable
beneficiary (with a copy to the Borrower) of the election by the applicable
Facing Agent (such election to be in the sole and absolute discretion of the
applicable Facing Agent) not to extend such Letter of Credit, such notice to be
given prior to the then current expiration date of such Letter of Credit; provided,
further, that no Standby Letter of Credit or extension thereof shall be
stated to expire later than the date five (5) days prior to the Revolver
Termination Date and no Commercial Letter of Credit or extension thereof shall
be stated to expire later than the day thirty (30) days prior to the Revolver
Termination Date.


 


B.                                     Procedure for Issuance and Amendment of Letters of
Credit.  Whenever the Borrower desires the issuance of
a Letter of Credit hereunder, it shall give the Administrative Agent and the
applicable Facing Agent at least three (3) Business Days’ prior written
notice (or such shorter period as may be agreed to by the Borrower,  the Administrative Agent and the applicable
Facing Agent) specifying the day of issuance thereof (which day shall be a
Business Day), such notice to be given prior to 12:00 p.m. (New York time)
on the date specified for the giving of such notice.  Each such notice (each, a “Notice of
Issuance”) shall be in the form of Exhibit 2.9(b) hereto
and shall specify (A) the proposed issuance date and expiration date, (B) whether
such Letter of Credit is to be issued as a letter of credit or bank guarantee, (C) the
Borrower as the account party and, if desired by the Borrower, one or more
Subsidiaries as additional account parties, (D) the name and address of
the beneficiary, (E) the Stated Amount of such proposed Letter of Credit, (F) the
currency in which such proposed Letter of Credit is to be issued and (G) such
other information as the applicable Facing Agent may reasonably request.  In addition, each Notice of Issuance shall
contain a description of the terms and conditions to be included in such
proposed Letter of Credit (all of which terms and conditions shall be
acceptable in form to the applicable Facing Agent).  In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, a Facing Agent (other than
DB) relating to any Letter of Credit issued by it, the terms and conditions of
this Agreement shall control.  Promptly
after issuance or extension of any Letter of Credit, the Borrower and the
applicable Facing Agent (to the extent such Facing Agent is not the same entity
as, or an Affiliate of, the Administrative Agent) shall notify the
Administrative Agent of such issuance or extension and such notice of a Standby
Letter of Credit shall be accompanied by a copy of the Standby Letter of
Credit.  Unless otherwise specified, all
Standby Letters of Credit and Commercial Letters of Credit will be governed by
the “Uniform Customs and Practice for Documentary Credits” and all Bank
Guarantees will be governed by the “Uniform Rules for Demand Guarantees”,
in each case as issued by the International Chamber of Commerce and as in
effect on the date of issuance of such Letter of Credit.  On the Business Day specified by the Borrower
and upon confirmation from the Administrative Agent that the 


 


62

















 


applicable
conditions set forth in Article V have been fulfilled or waived,
the applicable Facing Agent will issue the requested Letter of Credit to the
applicable beneficiary.  From time to
time while a Letter of Credit is outstanding and prior to the Revolver
Termination Date, the applicable Facing Agent will, upon the written request of
the Borrower received by the Facing Agent (with a copy sent by the Borrower to
the Administrative Agent) at least three Business Days (or such shorter time as
the Facing Agent and the Administrative Agent may agree in a particular
instance in their sole discretion) prior to the proposed date of amendment,
amend any Letter of Credit issued by it. 
Each such request for amendment of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing and shall specify in
form and detail satisfactory to the Facing Agent: (i) the Letter of Credit
to be amended; (ii) the proposed date of amendment of the Letter of Credit
(which shall be a Business Day); (iii) the nature of the proposed
amendment; and (iv) such other matters as the Facing Agent may
require.  The Facing Agent shall be under
no obligation to amend any Letter of Credit if: (A) the Facing Agent would
have no obligation at such time to issue such Letter of Credit in its amended
form under the terms of this Agreement, or (B) the beneficiary of any such
Letter of Credit does not accept the proposed amendment to the Letter of
Credit.  The Facing Agent will provide a
copy of any amendment to the Administrative Agent and the Administrative Agent
will promptly notify the Lenders of the receipt by it of any amendment to a
Letter of Credit.  In the event that the
Facing Agent is other than the Administrative Agent, such Facing Agent will
send by facsimile transmission to the Administrative Agent, promptly on the
first Business Day of each week its daily maximum Dollar Equivalent amount
available to be drawn under the Commercial Letters of Credit issued by such
Facing Agent for the previous week.  The
Administrative Agent shall deliver to each Lender upon such calendar month end,
and upon each commercial letter of credit fee payment, a report setting forth
the daily maximum Dollar Equivalent amount available to be drawn for all Facing
Agents during such period.


 


C.                                     Draws upon Letters of Credit; Reimbursement Obligation. 
In the event of any drawing under any Letter of Credit by the
beneficiary thereof, the applicable Facing Agent shall give telephonic notice
to the Borrower and the Administrative Agent (x) confirming such drawing
and (y) of the date on or before which such Facing Agent intends to honor
such drawing, and the Borrower shall reimburse the applicable Facing Agent on
the day on which such drawing is honored in an amount in same day funds equal
to the amount of such drawing (each such amount so paid until reimbursed, an “Unpaid
Drawing”); provided, however, that, anything contained in
this Agreement to the contrary notwithstanding, (i) unless the Borrower
shall have notified the Administrative Agent and the applicable Facing Agent
prior to 10:00 a.m. (New York City time) on the Business Day on which the
applicable Facing Agent intends to honor such drawing that the Borrower intends
to reimburse the applicable Facing Agent for the amount of such drawing with
funds other than the proceeds of Revolving Loans, the Borrower shall be deemed
to have timely given a Notice of Borrowing to the Administrative Agent
requesting each Revolving Lender to make Dollar denominated Base Rate Loans on
the date on which such drawing is honored in an amount equal to the Dollar
Equivalent of the amount of such drawing and the Administrative Agent shall, if
such Notice of Borrowing is deemed given, promptly notify the Lenders thereof
and (ii) unless any of the events described in Section 10.1(e) or
10.1(f) shall have occurred (in which event the procedures of Section 2.9(d) shall
apply), each such Lender shall, on the date such drawing is honored, make
Revolving Loans which are Base Rate Loans in the amount of its Pro Rata Share
of the Dollar Equivalent of such drawing, the proceeds of which shall be
applied directly by the Administrative Agent to reimburse the 


 


63

















 


applicable Facing
Agent for the amount of such drawing; and provided, further,
that, if for any reason, proceeds of Revolving Loans are not received by the
applicable Facing Agent on such date in an amount equal to the amount of the
Dollar Equivalent of such drawing, the Borrower shall reimburse the applicable
Facing Agent, on the Business Day immediately following the date such drawing
is honored, in an amount in same day funds equal to the excess of the amount of
the Dollar Equivalent of such drawing over the Dollar Equivalent of the amount
of such Revolving Loans, if any, which are so received, plus accrued interest
on such amount at the rate set forth in Section 3.1(a).


 


D.                                    Lenders’ Participation in Letters of Credit. 
In the event that (1) the Borrower shall fail to reimburse the
applicable Facing Agent as provided in Section 2.9(c) in an
amount equal to the amount of any drawing honored by the applicable Facing
Agent under a Letter of Credit issued by it in accordance with the terms
hereof, or (2) any Bank Guarantee shall remain outstanding on the Revolver
Termination Date, the applicable Facing Agent shall promptly notify the
Administrative Agent and the Administrative Agent shall promptly notify each
Revolving Lender, of the unreimbursed amount of such drawing or the amount of
such Bank Guarantee, as applicable, and of such Lender’s respective
participation therein.  Each such
Revolving Lender shall purchase a participation interest in such LC Obligation
and shall make available to the applicable Facing Agent the Dollar Equivalent
of an amount equal to its Pro Rata Share of such drawing in same day funds, at
the office of the applicable Facing Agent specified in such notice, in each
case not later than 1:00 p.m. (New York City time) on the Business Day
after the date such Lender is notified by the Administrative Agent.  In the event that any such Lender fails to
make available to the applicable Facing Agent the amount of such Lender’s
participation in such Letter of Credit as provided in this Section 2.9(d),
the applicable Facing Agent shall be entitled to recover such amount on demand
from such Lender together with interest at the Federal Funds Rate for two
Business Days and thereafter at the Base Rate. 
Nothing in this Section 2.9(d) shall be deemed to
prejudice the right of any Lender to recover from the applicable Facing Agent
any amounts made available by such Lender to the applicable Facing Agent
pursuant to this Section 2.9(d) in the event that it is
determined by a court of competent jurisdiction that the payment with respect
to a Letter of Credit by the applicable Facing Agent in respect of which
payment was made by such Lender constituted gross negligence or willful
misconduct on the part of the applicable Facing Agent.  The applicable Facing Agent shall distribute
to each other Lender which has paid all amounts payable by it under this Section 2.9(d) with
respect to any Letter of Credit issued by the applicable Facing Agent such
other Revolving Lender’s Pro Rata Share of all payments received by the
applicable Facing Agent from the Borrower in reimbursement of drawings honored
by the applicable Facing Agent under such Letter of Credit when such payments
are received.  Each Lender’s obligation
to make Revolving Loans pursuant to Section 2.9(c) or to
purchase participations pursuant to this Section 2.9(d) as a
result of a drawing under a Letter of Credit shall be absolute and
unconditional and without recourse to the applicable Facing Agent and shall not
be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Facing Agent, the Borrower or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of an Event of Default or a Material Adverse Effect;
or (iii) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Loans under Section 2.9(c) is
subject to the conditions set forth in Section 5.2.


 


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E.                                      Fees for Letters of Credit.


 


(a)                                  Facing Agent Fees. 
The Borrower agrees to pay the following amount to the applicable Facing
Agent with respect to the Letters of Credit issued by it for the account of the
Borrower:


 


(i)                                    with respect to drawings made under any
Letter of Credit, interest, payable on demand, on the amount paid by such
Facing Agent in respect of each such drawing from the date a drawing is honored
up to (but not including) the date such amount is reimbursed by the Borrower
(including any such reimbursement out of the proceeds of Revolving Loans, as
the case may be, pursuant to Section 2.9(c)) at a rate which is at
all times equal to 2% per annum in excess of the Base Rate;


 


(ii)                                 with respect to the issuance or amendment
of each Letter of Credit and each payment made thereunder, documentary and
processing charges in accordance with the applicable Facing Agent’s standard
schedule for such charges in effect at the time of such issuance, amendment,
transfer or payment, as the case may be; and


 


(iii)                              a facing fee as agreed from time to time by the
Borrower and the applicable Facing Agent for the applicable Letter of Credit
or, with respect to DB as Facing Agent with respect to that portion of the
outstanding LC Obligations attributable to the Fifth Amendment Existing Letters
of Credit, a facing fee as may be separately agreed in writing between the
Borrower and DB, which fee, unless otherwise agreed, shall be payable with
respect to the Assigned Dollar Value of the maximum Stated Amount under such
outstanding Letters of Credit payable in arrears on each Quarterly Payment
Date, on the Revolver Termination Date and thereafter, on demand together with
customary issuance and payment charges payable pursuant to clause (B) above;
provided, however, if calculation of the facing fee in the manner
set forth above would result in a facing fee of less than $500 per year per
Letter of Credit issued by any Facing Agent, the Borrower shall be obligated to
pay such additional amount to such Facing Agent so as to provide for a minimum
facing fee of $500 per year per Letter of Credit.


 


(b)                                 Participating Lender Fees. 
The Borrower agrees to pay to the Administrative Agent for distribution
to each participating Revolving Lender in respect of all Letters of Credit
outstanding such Revolving Lender’s Revolving Pro Rata Share of a commission
equal to the then Applicable Eurocurrency Margin for Revolving Loans per annum
with respect to the maximum Stated Amount under such outstanding Letters of
Credit (the “LC Commission”), payable in Dollars in arrears on each
Quarterly Payment Date, on the Revolver Termination Date and thereafter, on
demand.  The LC Commission shall be
computed from the first day of issuance of each Letter of Credit and on the
basis of the actual number of days elapsed over a year of 360 days.


 


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Promptly
upon receipt by a Facing Agent or the Administrative Agent of any amount
described in clause (i)(A) or (ii) of this Section 2.9(e), the
applicable Facing Agent or the Administrative Agent shall distribute to each
Revolving Lender its Pro Rata Share, as the case may be, of such amount as long
as, in the case of amounts described in clause (i)(A), such Lender has
reimbursed the applicable Facing Agent in accordance with Section 2.9(c).  Amounts payable under clause (i)(B) and (C) of
this Section 2.9(e) shall be paid directly to the applicable
Facing Agent.


 


F.                                      LC Obligations Unconditional. 
The obligation of the Borrower to reimburse a Facing Agent (or any
Lender that has purchased a participation from or made a Loan to enable the
Borrower to reimburse the applicable Facing Agent) for drawings made under any
Letter of Credit issued by it and the obligations of each Lender to purchase
participations pursuant to Section 2.9(d) as a result of such
a drawing shall be unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:


 


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


 


(b)                                 the existence of any claim, setoff,
defense or other right which the Borrower or any of its Affiliates may have at
any time against a beneficiary or any transferee of such Letter of Credit (or
any persons or entities for which any such beneficiary or transferee may be
acting), the applicable Facing Agent, any Lender or any other Person, whether
in connection with this Agreement, the transactions contemplated herein or any
unrelated transaction (including any underlying transaction between the
Borrower or one of its Subsidiaries and the beneficiary of such Letter of
Credit);


 


(c)                                  any draft, demand, certificate or any
other document presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;


 


(d)                                 payment by the applicable Facing Agent
under such 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;


 


(e)                                  any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing; or


 


(f)                                    the fact that an Event of Default or an
Unmatured Event of Default shall have occurred and be continuing.


 


Notwithstanding the foregoing, neither the Borrower
nor the Lenders (other than the applicable Facing Agent in its capacity as
such) shall be liable for any obligation resulting from the gross negligence or
willful misconduct of the applicable Facing Agent, as determined by a court of
competent jurisdiction, with respect to any Letter of Credit.


 


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G.                                     Indemnification.  In addition
to amounts payable as elsewhere provided in this Agreement, the Borrower hereby
agrees to protect, indemnify, pay and save the applicable Facing Agent and the
Lenders harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including Attorney Costs) (other
than for Taxes, which shall be covered by Section 4.7) which the
applicable Facing Agent and the Lenders may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of the Letters of
Credit, other than as a result of the gross negligence or willful misconduct of
the applicable Facing Agent, as determined by a court of competent
jurisdiction, or (ii) the failure of the applicable Facing Agent to honor
a drawing under any Letter of Credit as a result of any act or omissions,
whether rightful or wrongful, of any present or future de jure or de facto
Governmental Authority (all such acts or omissions herein called “Government
Acts”) other than arising out of the gross negligence or willful
misconduct, as determined by a court of competent jurisdiction, of the
applicable Facing Agent.  As between the
Borrower on the one hand, and the applicable Facing Agent and the Lenders, on
the other hand, the Borrower assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by the applicable Facing Agent or by the
respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the
foregoing, neither the applicable Facing Agent nor any of the Lenders shall be
responsible: (i) for the form, validity, sufficiency, accuracy, genuineness
or legal effect of any document submitted by any party in connection with the
application for and issuance of or any drawing under such Letters of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such 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; (iii) for failure of the
beneficiary of any such Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex, or otherwise, whether or not they be in
cipher; (v) for errors in interpretation of technical terms; (vi) for
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) for the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such Letter of Credit;
and (viii) for any consequences arising from causes beyond the control of
the applicable Facing Agent, including, without limitation, any Government
Acts.  None of the above shall effect,
impair, or prevent the vesting of any of the applicable Facing Agent’s or any
Lender’s rights or powers hereunder.


 


In furtherance and
extension and not in limitation of the specific provisions hereinabove set
forth, any action taken or omitted by the applicable Facing Agent under or in
connection with the Letters of Credit issued by it or the related certificates,
if taken or omitted in good faith, shall not put the applicable Facing Agent
under any resulting liability to the Borrower. 
Notwithstanding anything to the contrary contained in this Agreement,
the Borrower shall have no obligation to indemnify or hold harmless the
applicable Facing Agent in respect of any claims, demands, liabilities,
damages, losses, costs, charges or expenses (including Attorney Costs) incurred
by the applicable Facing Agent to the extent arising out of the gross negligence
or willful misconduct of the applicable Facing Agent, as determined by a court
of competent jurisdiction.  The right of
indemnification in the first paragraph of this Section 2.9(g) shall
not prejudice any rights that the Borrower may otherwise have against the
applicable Facing Agent with respect to a Letter of Credit issued hereunder.


 


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H.                                    Stated Amount.  The Stated
Amount of each Letter of Credit shall not be less than the Dollar Equivalent of
One Hundred Thousand Dollars ($100,000) or such lesser amount as the applicable
Facing Agent has agreed to.


 


I.                                         Increased Costs. 
Subject to Section 4.7, if any time after the date hereof
any Facing Agent or any Lender determines that the introduction of or any
change after the Closing Date in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, or compliance by the applicable Facing Agent or such Lender with any
request or directive issued after the Closing Date by any such authority
(whether or not having the force of law), shall either (i) impose, modify
or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by the applicable Facing Agent or
participated in by any Revolving Lender, or (ii) impose on the applicable
Facing Agent or any Revolving Lender any other conditions relating, directly or
indirectly, to the provisions of this Agreement relating to Letters of Credit
or any Letter of Credit; and the result of any of the foregoing is to increase
the cost to the applicable Facing Agent or any Lender of issuing, maintaining
or participating in any Letter of Credit, or reduce the amount of any sum
received or receivable by the applicable Facing Agent or any Lender hereunder
or reduce the rate of return on its capital with respect to Letters of Credit,
then, upon demand to the Borrower by the applicable Facing Agent or any Lender
(a copy of which demand shall be sent by the applicable Facing Agent or such
Lender to the Administrative Agent), the Borrower shall pay to the applicable
Facing Agent or any Lender, as the case may be, such additional amount or amounts
as will compensate the applicable Facing Agent or such Lender for such
increased cost or reduction in the amount receivable or reduction on the rate
of return on its capital.  In determining
such additional amounts pursuant to the preceding sentence, the applicable
Facing Agent or such Lender will act reasonably and in good faith and will, to
the extent the increased costs or reductions in amounts receivable or
reductions in rates of return relate to the Facing Agent’s or such Lender’s
letters of credit in general and are not specifically attributable to the
Letters of Credit hereunder, use averaging and attribution methods which are
reasonable and which cover all letters of credit similar to the Letters of
Credit issued by or participated in by the applicable Facing Agent or such
Lender whether or not the documentation for such other Letters of Credit permit
the applicable Facing Agent or such Lender to receive amounts of the type
described in this Section 2.9(i). 
The applicable Facing Agent or any Lender, upon determining that any
additional amounts will be payable pursuant to this Section 2.9(i),
will give prompt written notice thereof to the Borrower, which notice shall
include a certificate submitted to the Borrower by the applicable Facing Agent
or such Lender (a copy of which certificate shall be sent by the applicable
Facing Agent or such Lender to the Administrative Agent), setting forth in
reasonable detail the basis for the calculation of such additional amount or
amounts necessary to compensate the applicable Facing Agent or such Lender,
although failure to give any such notice shall not release or diminish the
Borrower’s obligations to pay additional amounts pursuant to this Section 2.9(i);
provided, however, if the applicable Facing Agent or such Lender,
as applicable, has intentionally withheld or delayed such notice, the
applicable Facing Agent or such Lender, as the case may be, shall not be
entitled to receive additional amounts pursuant to this Section 2.9(i) for
periods occurring prior to the 180th day before the giving of such notice.  The certificate required to be delivered
pursuant to this Section 2.9(i) shall, absent manifest error,
be final, conclusive and binding on the Borrower.


 


68














 


J.                                        Outstanding Letters of Credit. 
The letters of credit set forth under the caption “Letters of Credit
outstanding on the Closing Date” as set forth on Schedule 2.9(j) attached
to the First Amendment, were issued prior to the Closing Date pursuant to one
of the Prior Credit Agreements and will remain outstanding as of the Closing
Date and the letters of credit and bank guarantees set forth under the caption “Letters
of Credit and Bank Guarantees outstanding on the First Amendment Effective Date”
were issued pursuant to the credit facility of Huntsman Advanced Materials
Holdings LLC or otherwise issued by Facing Agent prior to the First Amendment
Effective Date and will remain outstanding as of the First Amendment Effective
Date (collectively, the “Outstanding Letters of Credit”).  The Borrower, each Facing Agent and each of
the Lenders hereby agree with respect to the Outstanding Letters of Credit that
each such Outstanding Letters of Credit, for all purposes under this Agreement,
shall, from and after the Closing Date, be deemed to be Letters of Credit
governed by the terms and conditions of this Agreement.  Each Revolving Lender further agrees to
participate in each such Outstanding Letter of Credit in an amount equal to its
Pro Rata Share of the Stated Amount of such Outstanding Letters of Credit.


 


K.                                    Fifth Amendment Existing Letters of Credit. 
The Borrower agrees that if DB receives any proceeds in respect of any
Letter of Credit providing credit support for a Fifth Amendment Existing Letter
of Credit, the Borrower will cause a reduction to occur in the amount of then
outstanding Fifth Amendment Existing Letters of Credit in an amount equal to
such proceeds.


 


10.10.              Revolving Commitment Increase


 


A.                                   Subject to the terms and conditions set forth herein,
the Borrower shall have the right from time to time to cause an increase in the
Revolving Commitments of the Revolving Lenders (a “Revolving Commitment
Increase”) by adding to this Agreement one or more additional Eligible
Assignees that are not already Revolving Lenders hereunder and that are
reasonably satisfactory to the Administrative Agent, each Facing Agent and the
Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or
more existing Revolving Lenders to increase their respective Revolving
Commitments; provided that (i) both before and immediately after
giving effect to such Revolving Commitment Increase, no Event of Default or
Unmatured Event of Default shall have occurred and be continuing as of the
effective date of such Revolving Commitment Increase (such date, the “Revolving
Commitment Increase Date”), (ii) no such Revolving Commitment Increase
shall be in an amount less than $10,000,000 (unless the aggregate amount of the
Revolving Commitments then in effect is greater than $290,000,000), (iii) after
giving effect to such Revolving Commitment Increase, the aggregate amount of
the Revolving Commitments shall not exceed $300,000,000 and (iv) no
Revolving Lender’s Revolving Commitment shall be increased without such
Revolving Lender’s prior written consent (which consent may be given or
withheld in such Revolving Lender’s sole and absolute discretion).


 


B.                                     The Borrower shall provide the Administrative Agent
with written notice (a “Notice of Revolving Commitment Increase”) of its
intention to increase the Revolving Commitments pursuant to this Section 2.10.  Each such Notice of Revolving Commitment
Increase shall specify (i) the proposed Revolving Commitment Increase
Date, which date shall be no earlier than five (5) Business Days after receipt
by the Administrative Agent of such 


 


69

















 


Notice of
Revolving Commitment Increase, (ii) the amount of the requested Revolving
Commitment Increase, (iii) as applicable, the identity of each New Revolving
Lender and Revolving Lender that has agreed in writing to increase its
Revolving Commitment hereunder, and (iv) the amount of the respective
Revolving Commitments of the then existing Revolving Lenders and the New
Revolving Lenders from and after the Revolving Commitment Increase Date.


 


C.                                     On any Revolving Commitment Increase Date, the
Revolving Lenders shall purchase and assume (without recourse or warranty) from
the Revolving Lenders (i) Revolving Loans, to the extent that there are
any Revolving Loans then outstanding, and (ii) undivided participation
interests in any outstanding LC Obligations and any outstanding Swing Line
Loans, in each case, to the extent necessary to ensure that after giving effect
to the Revolving Commitment Increase, each Revolving Lender has outstanding
Revolving Loans and participation interests in outstanding LC Obligations and
Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments.  Each Revolving Lender shall make any payment
required to be made by it pursuant to the preceding sentence via wire transfer
to the Administrative Agent on the Revolving Commitment Increase Date.  Each existing Revolving Lender (i) shall
be automatically deemed to have assigned any outstanding Revolving Loans on the
Revolving Commitment Increase Date and (ii) agrees to take any further
steps reasonably requested by the Administrative Agent, in each case to the
extent deemed necessary by the Administrative Agent to effectuate the
provisions of the preceding sentences. 
If, on such Revolving Commitment Increase Date or Extension Effective
Date, any Revolving Loans have been funded, then the Borrower shall be
obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5
in connection with the reallocation of such outstanding Revolving Loans to
effectuate the provisions of this Section 2.10(c).


 


D.                                    Each Revolving Commitment Increase shall become
effective on its Revolving Commitment Increase Date and upon such
effectiveness: (i) the Administrative Agent shall record in the register
each then New Revolving Lender’s information as provided in the applicable
Notice of Commitment Increase and pursuant to an administrative questionnaire
that shall be executed and delivered by each New Revolving Lender to the
Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule
1.1(a) hereof shall be amended and restated to set forth all Revolving
Lenders (including any New Revolving Lenders) that will be Revolving Lenders
hereunder after giving effect to such Revolving Commitment Increase (which
amended and restated Schedule 1.1(a) shall be set forth in Annex
I to the applicable Notice of Revolving Commitment Increase) and the
Administrative Agent shall distribute to each Revolving Lender (including each
New Revolving Lender) a copy of such amended and restated Schedule 1.1(a),
and (iii) each New Revolving Lender identified on the Notice of Revolving
Commitment Increase for such Revolving Commitment Increase shall be a “Lender”
and a “Revolving Lender” for all purposes under this Agreement.


 


E.                                      As a condition precedent to any Revolving Commitment
Increase, the Borrower shall deliver to the Administrative Agent a certificate
of the Borrower dated as of the Revolving Commitment Increase Date signed by a
Responsible Officer of the Borrower certifying and attaching the resolutions
adopted by the Borrower approving or consenting to such Revolving Commitment
Increase and certifying that, before and after giving effect to such Revolving
Commitment Increase, (i) the representations and warranties contained in Article VI



 


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made by it are
true and correct on and as of the Revolving Commitment Increase Date, except to
the extent that such representations and warranties specifically refer to an
earlier date and (ii) no Event of Default or Unmatured Event of Default
exists or will exist as of the Revolving Commitment Increase Date.


 


10.11.              Extension of Stated Termination Date


 


A.                                   At any time and from time to time, the Borrower may,
upon notice to the Administrative Agent (which shall promptly notify the
Revolving Lenders), request an extension of the Stated Termination Date then in
effect (such existing Stated Termination Date being the “Existing Stated
Termination Date”) to a date specified in such notice.  Within 10 Business Days of delivery of such
notice (or such other period as the Borrower and the Administrative Agent shall
mutually agree upon), each Revolving Lender shall notify the Administrative
Agent whether or not it consents to such extension (which consent may be given
or withheld in such Revolving Lender’s sole and absolute discretion).  Any Revolving Lender not responding within
the above time period shall be deemed not to have consented to such extension.  The Administrative Agent shall promptly notify
the Borrower and the Revolving Lenders of the Revolving Lenders’ responses.


 


B.                                     The Stated Termination Date shall be extended only if
the Majority Lenders of the Revolving Facility (calculated excluding any Impaired
Lender and after giving effect to any replacements of Revolving Lenders
pursuant to Section 4.1(c)) (the Revolving Lenders that so consent
being the “Consenting Revolving Lenders” and the Revolving Lenders that
declined being the “Declining Revolving 
Lenders”) have consented thereto. 
If so extended, the Stated Termination Date, as to the Consenting
Revolving Lenders, shall be extended to the date specified in the notice
referred to in Section 2.11(a) above, which shall become the
new Stated Termination Date as to such Consenting Revolving Lenders.  The Administrative Agent and the Borrower
shall promptly confirm to the Revolving Lenders such extension, specifying the
effective date of such extension (the “Extension Effective Date”), the
Existing Stated Termination Date, and the new Stated Termination Date (after
giving effect to such extension).  As a
condition precedent to such extension, the Borrower shall deliver to the
Administrative Agent (i) a certificate of the Borrower dated as of the
Extension Effective Date signed by a Responsible Officer of the Borrower
certifying and attaching the resolutions adopted by the Borrower approving or
consenting to such extension and certifying that, before and after giving
effect to such extension, the representations and warranties contained in Article VI
made by it are true and correct on and as of the Extension Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, and no Event of Default or Unmatured Event of Default
exists or will exist as of the Extension Effective Date and (ii) if
requested by the Administrative Agent, a legal opinion reasonably satisfactory
to it.  The Borrower shall pay to the
Administrative Agent for the account of each Declining Revolving Lender the
then unpaid principal amount of such Declining Revolving Lender’s Revolving
Loans outstanding on the Existing Stated Termination Date (and pay any
additional amounts required pursuant to Section 3.5).  In addition, (i) the Borrower shall
prepay any Revolving Loans outstanding on the Existing Stated Termination Date
(and pay any additional amounts required pursuant to Section 3.5)
to the extent necessary to maintain outstanding Revolving Loans ratable with
any revised and new Pro Rata Shares of all the Revolving Lenders effective as
of the Existing Stated Termination Date and (ii) on the Existing Stated
Termination Date, the Risk 


 


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Participation (as
defined below) of each Declining Revolving Lender shall be transferred to and
assumed by the Consenting Revolving Lenders on a pro rata basis in accordance
with their respective Revolving Commitments. 
“Risk Participation” means, at any date, the aggregate amount of funded
and unfunded obligations of any Revolving Lender to purchase participations
from or make payments for the account of (i) the Swing Line Lender
pursuant to Sections 2.1(c)(iii) and (iv) and (ii) any
Facing Agent pursuant to Section 2.9(d).


 


SECTION 11


 


INTEREST
AND FEES


 


11.1.                     Interest


 


A.                                   Base Rate Loans.  The Borrower
agrees to pay interest in respect of the unpaid principal amount of each Base
Rate Loan, at a rate per annum equal to the Base Rate plus the Applicable Base
Rate Margin, from the date the proceeds thereof are made available to the
Borrower (or, if such Base Rate Loan was converted from a Eurocurrency Loan,
the date of such conversion) until the earlier of (i) the maturity
(whether by acceleration or otherwise) of such Base Rate Loan and (ii) the
conversion of such Base Rate Loan to a Eurocurrency Loan pursuant to Section 2.6.


 


B.                                     Eurocurrency Loans.  The Borrower
agrees to pay interest in respect of the unpaid principal amount of each
Eurocurrency Loan at a rate per annum equal to the relevant Eurocurrency Rate
plus the Applicable Eurocurrency Margin, from the date the proceeds thereof are
made available to the Borrower (or, if such Eurocurrency Loan was converted
from a Base Rate Loan, the date of such conversion) until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Eurocurrency Loan and (ii) the
conversion of such Eurocurrency Loan to a Base Rate Loan pursuant to Section 2.6.


 


C.                                     Payment of Interest.  Interest on
each Loan shall be payable in arrears on each Interest Payment Date; provided,
however, that interest accruing pursuant to Section 3.1(e) and
as otherwise set forth in the penultimate sentence of this Section 3.1(c) shall
be payable from time to time on demand. 
Interest shall also be payable on all then outstanding Revolving Loans
on the Revolver Termination Date and on all Loans on the date of repayment
(including prepayment) thereof (except that accrued interest need not be paid
in connection with voluntary prepayments pursuant to Section 4.3 of
Swing Line Loans and Revolving Loans that are Base Rate Loans made on any day
other than a Quarterly Payment Date or the Revolver Termination Date; provided
such accrued interest is paid on the next Quarterly Payment Date) or on the
date of maturity (by acceleration or otherwise), as applicable, of such
Loans.  During the existence of any Event
of Default, interest on any Loan shall be payable on demand.  Interest to be paid with respect to Loans
denominated in (x) Dollars shall be paid in Dollars and (y) in an
Alternative Currency shall be in such Alternative Currency.


 


D.                                    Notification of Rate.  The
Administrative Agent, upon determining the interest rate for any Borrowing of
Eurocurrency Loans for any Interest Period, shall promptly notify the Borrower
and the Lenders thereof.  Such
determination shall, absent manifest error and subject to Section 3.6,
be final, conclusive and binding upon all parties hereto.


 


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E.                                      Default Interest. Notwithstanding the rates of interest specified
herein, effective on the date of the occurrence of any Event of Default and for
so long thereafter as any such Event of Default shall be continuing, and
effective immediately upon any failure to pay any Obligations or any other
amounts due under any of the Loan Documents when due, whether by acceleration
or otherwise, the principal balance of each Loan then outstanding and, to the
extent permitted by applicable law, any interest payment on each Loan not paid
when due or other amounts then due and payable shall bear interest payable on
demand, after as well as before judgment, at a rate per annum equal to the
Default Rate.


 


F.                                      Maximum Interest.  If any
interest payment or other charge or fee payable hereunder exceeds the maximum
amount then permitted by applicable law, the Borrower shall be obligated to pay
the maximum amount then permitted by applicable law and the Borrower shall
continue to pay the maximum amount from time to time permitted by applicable
law until all such interest payments and other charges and fees otherwise due
hereunder (in the absence of such restraint imposed by applicable law) have
been paid in full.


 


11.2.                     Fees


 


A.                                   Commitment Fees.  The Borrower
shall pay to the Administrative Agent for pro rata distribution to each
Non-Impaired Lender having a Revolving Commitment (based on its Pro Rata Share)
a commitment fee (the “Commitment Fee”) for the period commencing on the
Closing Date to and including the Revolver Termination Date, computed at a rate
equal to the Applicable Commitment Fee Percentage per annum on the average
daily Total Available Revolving Commitment, which shall  be calculated based upon the time period as
to which such Commitment Fee is being paid. 
Unless otherwise specified, accrued Commitment Fees shall be due and
payable (i) on each Quarterly Payment Date occurring after the Closing
Date, (ii) on the Revolver Termination Date and (iii) upon any
reduction or termination in whole or in part of the Revolving Commitments, as
the case may be (but only, in the case of a reduction, on the portion of the
Revolving Commitments then being reduced).


 


B.                                     Impaired Lender Fees. 
Notwithstanding anything herein to the contrary, so long as a Revolving
Lender is an Impaired Lender, such Impaired Lender shall not be entitled to any
fees accruing during such period pursuant to Section 3.2(a) and
Section 2.9(e) (without prejudice to the rights of the
Revolving Lenders other than Impaired Lenders in respect of such fees);
provided, that (i) to the extent that a Pro Rata Share of the LC Obligations
or Swing Line Loans of such Impaired Lender is reallocated to the Non-Impaired
Lenders pursuant to Section 3.8(a), such fees that would have
accrued for the benefit of such Impaired Lender will instead accrue for the
benefit of and be payable to such Non-Impaired Lenders, pro rata in accordance
with their respective Revolving Commitments, and (ii) to the extent any
portion of such LC Obligations or Swing Line Loans cannot be so reallocated and
the Borrower does not Cash Collateralize such portion in an amount not less
than 105% of the amount of such portion (or prepay such Swing Line Loans) or
make other arrangements pursuant to Section 3.8(a)(ii), then such
fees will instead accrue for the benefit of and be payable to the applicable
Facing Agent and the Swing Line Lender as their interests appear.


 


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C.                                     Arranger and Agency Fees. 
The Borrower shall pay to the Administrative Agent for its own account
(or the account of its Affiliates), agency and other Loan fees in the amount
and at the times set forth in the Fifth Amendment Fee Letter.


 


11.3.                     Computation of Interest and Fees


 


Interest on all Loans and
fees payable hereunder shall be computed on the basis of the actual number of
days elapsed over a year of 360 days; provided that interest on all Base
Rate Loans  and Sterling denominated
Loans shall be computed on the basis of the actual number of days elapsed over
a year of 365 or 366 days, as the case may be. 
The Administrative Agent shall, at any time and from time to time upon
request of the Borrower, deliver to the Borrower a statement showing the
quotations used by the Administrative Agent in determining any interest rate
applicable to Revolving Loans pursuant to this Agreement.  Each change in the Applicable Base Rate
Margin or Applicable Eurodollar Margin or the Applicable Commitment Fee
Percentage or any change in the LC Commission as a result of a change in the
Borrower’s Most Recent Leverage Ratio shall become effective on the date upon
which such change in such ratio occurs.


 


11.4.                     Interest Periods


 


At the time it gives any
Notice of Borrowing or a Notice of Conversion or Continuation with respect to
any Borrowing bearing interest with reference to the Eurocurrency Rate, the
Borrower shall elect, by giving the Administrative Agent written notice, the
interest period (each an “Interest Period”) applicable thereto, which
Interest Period shall, at the option of the Borrower, be one, two, three or six
months or, if available or otherwise satisfactory to each of the applicable
Lenders (as determined by each such applicable Lender in its sole discretion) a
nine or twelve month period, provided that:


 


(a)                                  all Eurocurrency Loans comprising a
single Borrowing shall at all times have the same Interest Period;


 


(b)                                 the initial Interest Period for any
Eurocurrency Loan shall commence on the date of such Borrowing of such
Eurocurrency Loan (including the date of any conversion thereto from a Loan of
a different Type) and each Interest Period occurring thereafter in respect of
such Eurocurrency Loan shall commence on the last day of the immediately
preceding Interest Period;


 


(c)                                  if any Interest Period relating to a
Eurocurrency Loan begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period,
such Interest Period shall end on the last Business Day of such calendar month;


 


(d)                                 if any Interest Period would otherwise
expire on a day which is not a Business Day, such Interest Period shall expire
on the next succeeding Business Day; provided, however, that if
any Interest Period for a Eurocurrency Loan would otherwise expire on a day
which is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;


 


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(e)                                  at any time when an Event of Default is
then in existence, no Interest Period (a) of more than one month may be
selected with respect to any Loan denominated in an Alternative Currency and (b) may
be selected with respect to any Loan denominated in Dollars;


 


(f)                                    no Interest Period shall extend beyond
the applicable Term Maturity Date for any Term Loan or the Revolver Termination
Date for any Revolving Loan; and


 


(g)                                 no Interest Period in respect of any
Borrowing of Term Loans for any Term Facility shall be selected which extends
beyond any date upon which a Scheduled Term Repayment will be required to be
made under Section 4.4(b) for such Term Facility if the
aggregate principal amount of all Term Loans which have Interest Periods which
will expire after such date will be in excess of the aggregate principal amount
of Term B Loans then outstanding less the aggregate amount of such required
prepayment.


 


Notwithstanding anything
to the contrary herein (i) with respect to Term B Dollar Loans, the
Borrower may only have Base Rate Loans and Eurocurrency Loans with a one month
Interest Period for the first 30 days after the Effective Date or, if earlier,
the date on which the Administrative Agent informs the Borrower of the
completion of the syndication of the Term B Dollar Loans and (ii) if
requested by the Borrower, the Administrative Agent, in its discretion, may
offer Interest Periods shorter than one month.


 


11.5.                     Compensation for Funding Losses


 


The Borrower shall
compensate each Lender, upon its written request (which request shall set forth
the basis for requesting such amounts, showing the calculation thereof in
reasonable detail), for all losses, expenses and liabilities (including,
without limitation, any interest paid by such Lender to lenders of funds
borrowed by it to make or carry its Eurocurrency Loans to the extent not
recovered by the Lender in connection with the liquidation or re-employment of
such funds and including the compensation payable by such Lender to a
Participant) and any loss sustained by such Lender in connection with the
liquidation or re-employment of such funds (including, without limitation, a
return on such liquidation or re-employment that would result in such Lender
receiving less than it would have received had such Eurocurrency Loan remained
outstanding until the last day of the Interest Period applicable to such
Eurocurrency Loans) which such Lender may sustain as a result of: (i) the
continuation or Borrowing of, the conversion from or into, a Eurocurrency Loan
not occurring on the date specified therefor in a Notice of Borrowing or Notice
of Conversion or Continuation (whether or not withdrawn for any reason (other than
a default by such Lender or the Administrative Agent)); (ii) any payment,
prepayment or conversion or continuation of any of its Eurocurrency Loans
occurring for any reason whatsoever on a date which is not the last day of an
Interest Period applicable thereto; (iii) any repayment of any of its
Eurocurrency Loans not being made on the date specified in a notice of payment
given by the Borrower; or (iv) (A) any other failure by the Borrower
to repay its Eurocurrency Loans when required by the terms of this Agreement or
(B) an election made by the Borrower pursuant to Section 3.7; provided
that such written request, including the calculation as to additional amounts
owed such Lender under this Section 3.5, is 


 


75

















 


delivered to the
Borrower and the Administrative Agent by such Lender shall be delivered within
30 days of such event.  Absent manifest
error, such request shall be final, conclusive and binding for all purposes.  Calculation of all amounts payable to a
Lender under this Section 3.5 shall be made as though that Lender
had actually funded its relevant Eurocurrency Loan through the purchase of a
Eurocurrency deposit bearing interest at the Eurocurrency Rate in an amount
equal to the amount of that Loan, having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurocurrency deposit from an
offshore office of that Lender to a domestic office of that Lender in the
United States of America; provided, however, that each Lender may
fund each of its Eurocurrency Loans in any manner it sees fit and the foregoing
assumption shall be utilized only for the calculation of amounts payable under
this Section 3.5.


 


11.6.                     Increased Costs, Illegality, Etc.


 


A.                                   Generally. Except as provided in Section 4.7, in
the event that any Lender shall have determined, in its reasonable, good faith
judgment, (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto but, with respect to clause (i) below,
may be made only by the Administrative Agent):


 


(a)                                  on any Interest Rate Determination Date
that, by reason of any change arising after the date of this Agreement
affecting the interbank Eurocurrency market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided for
in the definition of Eurocurrency Rate; or


 


(b)                                 at any time that such Lender shall incur
increased costs or reduction in the amounts received or receivable hereunder
with respect to any Eurocurrency Loan because of (x) any change arising
after the date of this Agreement in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the force of
law) or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order, guideline
or request, such as, for example, but not limited to: (A) a change in the
basis of taxation of payments to such Lender of the principal of or interest on
the Notes or any other amounts payable hereunder (except for taxes described in
Sections 4.7(a)(i) through (vi)) or (B) a change in
official reserve requirements (but, in all events, excluding reserves required
under Regulation D to the extent included in the computation of the
Eurocurrency Rate) and/or (y) other circumstances arising after the date
of this Agreement affecting such Lender or the interbank Eurocurrency market or
the position of such Lender in such market (excluding, however, differences in
such Lender’s cost of funds from those of the Administrative Agent which are
solely the result of credit differences between such Lender and the
Administrative Agent); or


 


(c)                                  at any time that (x) the making or
continuance of any Eurocurrency Loan has been made (1) unlawful by any law
or governmental rule, regulation or order, or (2) impracticable as a
result of a contingency occurring after the date of this Agreement which
materially and adversely affects the interbank 


 


76

















 


Eurocurrency market or (y) compliance
by such Lender, acting in good faith, with any governmental request (whether or
not having force of law) is impossible;


 


then, and in any such event, such Lender (or the
Administrative Agent, in the case of clause (i) above) shall promptly give
notice (by telephone confirmed in writing) to the Borrower and, except in the
case of clause (i) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders).  Thereafter (x) in
the case of clause (i) above, Eurocurrency Loans shall no longer be
available until such time as the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion or Continuation given by the Borrower with respect to Eurocurrency
Loans (other than with respect to conversions to Base Rate Loans) which have
not yet been advanced (including by way of conversion) shall be deemed
rescinded by the Borrower; (y) in the case of clause (ii) above, the
Borrower shall pay to such Lender, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest, as such Lender in its reasonable good faith judgment
shall determine) as shall be required to compensate such Lender for such
increased costs or reductions in amounts received or receivable hereunder, (such
written demand as to the additional amounts owed to such Lender, which shall
show the basis for the calculation thereof, submitted to the Borrower by such
Lender shall, absent manifest error, be final and conclusive and binding on all
the parties hereto; provided, that such Lender shall not be entitled to
receive additional amounts pursuant to this Section 3.6(a)(y) for
any change or circumstance referred to in Section 3.6(a) occurring
prior to the 180th day before the making of such demand (unless the change is
due to a law enacted with retroactive effect, in which case the 180 day period
shall be extended to include the period of retroactive effect); and (z) in
the case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 3.6(b) as promptly as possible and, in
any event, within the time period required by law.  In determining such additional amounts
pursuant to clause (y) of the immediately preceding sentence, each
affected Lender shall act reasonably and in good faith and will, to the extent
the increased costs or reductions in amounts receivable relate to such Lender’s
loans in general and are not specifically attributable to a Loan hereunder, use
averaging and attribution methods which are reasonable and which cover all
loans similar to the Loans made by such Lender whether or not the loan
documentation for such other loans permits the Lender to receive increased
costs of the type described in this Section 3.6(a).


 


B.                                     Eurocurrency Loans.  At any time
that any Eurocurrency Loan is affected by the circumstances described in Section 3.6(a)(ii) or
(iii), the Borrower may (and, in the case of a Eurocurrency Loan
affected by the circumstances described in Section 3.6(a)(iii),
shall) either (i) if the affected Eurocurrency Loan has not yet been made
or the conversion to such Eurocurrency Loan has not yet been accomplished, by
giving the Administrative Agent telephonic notice (confirmed in writing) on the
same date that the Borrower was notified by the affected Lender or the Administrative
Agent pursuant to Section 3.6(a)(ii) or (iii), cancel
the respective Borrowing, or (ii) if the affected Eurocurrency Loan is
then outstanding, upon at least three Business Days’ written notice to
Administrative Agent, require the affected Lender to convert such Eurocurrency
Loan into a Base Rate Loan, provided, that if more than one Lender is
affected at any time, then all affected Lenders must be treated the same
pursuant to this Section 3.6(b).


 


77

















 


C.                                     Capital Requirements. If any Lender determines that the introduction of or
any change in any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law) concerning
capital adequacy, or any change in interpretation or administration thereof by
any Governmental Authority, central bank or comparable agency (in each case
after the date of this Agreement), will have the effect of increasing the
amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender based on the existence of such Lender’s
Commitments hereunder or its obligations hereunder, then the Borrower shall pay
to such Lender, upon its written notice as hereafter described, such additional
amounts as shall be required to compensate such Lender or such other
corporation for the increased cost to such Lender or such other corporation or
the reduction in the rate of return to such Lender or such other corporation as
a result of such increase of capital.  In
determining such additional amounts, each Lender will act reasonably and in
good faith and will use averaging and attribution methods which are reasonable
and which will, to the extent the increased costs or reduction in the rate of
return relates to such Lender’s commitments or obligations in general and are
not specifically attributable to the Commitments and obligations hereunder,
cover all commitments and obligations similar to the Commitments and
obligations of such Lender hereunder whether or not the loan documentation for
such other commitments or obligations permits such Lender to make the
determination specified in this Section 3.6(c), and such Lender’s
determination of compensation owing under this Section 3.6(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto.  Each Lender, upon determining
that any additional amounts will be payable pursuant to this Section 3.6(c),
will give prompt written notice thereof to the Borrower, which notice shall
show in reasonable detail the basis for calculation of such additional amounts;
provided that no Lender shall be entitled to receive additional amounts
pursuant to this Section 3.6(c) for increased costs incurred
prior to the 180th day before the giving of such notice, unless such increased
costs are due to a change in law that provides for retroactive effect, in which
case the 180 day period shall be extended to include the period of retroactive
effect).


 


D.                                    Change of Lending Office. Each Lender which is or will be owed
compensation pursuant to Section 3.6(a) or (c) or 4.7
will, if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to cause a different Lending Office to
make or continue a Loan or Letter of Credit if such designation will avoid the
need for, or materially reduce the amount of, such compensation to such Lender
and will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender or Lending Office.  Nothing
in this Section 3.6(d) shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided for herein.


 


11.7.                     Replacement of Affected Lenders


 


(x) So long as no
Event of Default or Unmatured Event of Default then exists, if any Revolving
Lender becomes an Impaired Lender, (y) if any Lender (or in the case of Section 2.9(i),
Facing Agent) is owed increased costs under Section 2.9(i), Section 3.6(a)(ii) or
(iii), or Section 3.6(c), or the Borrower is required to
make any payments under Section 4.7(a) or (c) to
any Lender, or (z) as provided in Section 12.1(b) in the
case of certain refusals by a Lender to consent to certain proposed amendments,
changes, supplements, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders,


 


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the Borrower shall
have the right to replace such Lender (the “Replaced Lender”) with one
or more other Eligible Assignees acceptable to the Administrative Agent, provided
that no such Eligible Assignee is an Impaired Lender at the time of such
replacement (collectively, the “Replacement Lender”), provided
further that (i) at the time of any replacement pursuant to this Section 3.7,
the Replaced Lender and Replacement Lender shall enter into one or more
assignment agreements, in form and substance satisfactory to such parties and
the Administrative Agent, pursuant to which the Replacement Lender shall
acquire, at par, all of the Commitments and outstanding Loans of, and
participation in Letters of Credit and Swing Line Loans by, the Replaced Lender
(with the assignment fee paid by either the Replacement Lender or the Borrower)
and (ii) all obligations of the Borrower owing to the Replaced Lender
(including, without limitation, such increased costs and including those
specifically described in clause (y) above but excluding principal and
interest in respect of which the assignment purchase price has been, or is
concurrently being paid at par) shall be paid in full to such Replaced Lender
concurrently with such replacement.  Upon
the execution of the respective assignment documentation, the payment of
amounts referred to in clause (ii) above and the par purchase price
referred to in (i) above, and, if so requested by the Replacement Lender,
delivery to the Replacement Lender of the appropriate Note or Notes executed by
the Borrower, the Replacement Lender shall become a Lender hereunder and,
unless the Replaced Lender continues to have outstanding Loans hereunder, the
Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement, which shall survive
as to such Replaced Lender. 
Notwithstanding anything to the contrary contained above, no Lender that
acts as a Facing Agent may be replaced hereunder at any time during which such
Facing Agent has Letters of Credit outstanding hereunder, unless arrangements
satisfactory to such Facing Agent (including (1) the furnishing of a
standby letter of credit in form and substance, and issued by an issuer,
satisfactory to such Facing Agent or (2) the depositing of cash collateral
into a collateral account in amounts and pursuant to arrangements satisfactory
to such Facing Agent) have been made with respect to such outstanding Letters
of Credit.  The Replaced Lender shall be
required to deliver for cancellation its applicable Notes to be canceled on the
date of replacement, or if any such Note is lost or unavailable, such other
assurances or indemnification therefor as the Borrower may reasonably request.


 


11.8.                     Impaired Lenders


 


A.                                   Reallocation of Impaired Lender Commitment. 
If a Revolving Lender becomes an Impaired Lender, the following
provisions shall apply with respect to any outstanding LC Obligations and any
outstanding Swing Line Loans for so long as such Revolving Lender is an
Impaired Lender:


 


(a)                                  the Pro Rata Share of such Impaired
Lender with respect to any LC Obligations and any outstanding Swing Line Loans
shall be reallocated (effective on the date such Lender becomes an Impaired
Lender, but without releasing such Impaired Lender from any of its obligations
or commitments) among the Revolving Lenders that are Non-Impaired Lenders pro
rata in accordance with their respective Revolving Commitments but only to the
extent the sum of the aggregate outstanding principal amount of each of the
Non-Impaired Lenders’ Revolving Loans plus each of the Non-Impaired Lenders’
Pro Rata Share of the 


 


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LC Obligations and Swing
Line Loans does not exceed the total of all Non-Impaired Lenders’ Revolving
Commitments; provided, that no such reallocation will constitute a waiver or
release of any claim the Borrower, the Administrative Agent, any Facing Agent,
the Swing Line Lender or any other Revolving Lender may have against such
Impaired Lender (including any claim for contribution made by a Non-Impaired
Lender in respect of amounts funded by such Non-Impaired Lender pursuant to
such reallocation of commitments) or cause such Impaired Lender to be a
Non-Impaired Lender;


 


(b)                                 to the extent that any portion (the “unreallocated
portion”) of the Pro Rata Share of such Impaired Lender with respect to any LC
Obligations and any outstanding Swing Line Loans cannot be so reallocated,
whether by reason of clause (i) above or otherwise, the Borrower will, not
later than 10 Business Days after demand by the Administrative Agent (at the
direction of any Facing Agent and/or the Swing Line Lender, as the case may
be), (A) Cash Collateralize the obligations of the Borrower to any Facing
Agent in respect of such LC Obligations in an amount at least equal to 105% of
the aggregate amount of the unreallocated portion of such LC Obligations, or (B) in
the case of such outstanding Swing Line Loans, prepay the unreallocated portion
thereof, or (C) make other arrangements satisfactory to the Borrower and
the Administrative Agent and to the applicable Facing Agent and the Swing Line
Lender, as the case may be, in their sole discretion to protect them against
the risk of non-payment by such Impaired Lender; and


 


(c)                                  any amount paid by the Borrower or
otherwise received for the account of an Impaired Lender under this Agreement
(whether on account of principal, interest, fees, indemnity payments or other
amounts) will not be distributed to such Impaired Lender within the meaning of
clause (i), (ii)(x) or (iii) of the definition of Impaired Lender
(but, for the avoidance of doubt, the Obligations for which such amount is paid
for the account of such Impaired Lender will be satisfied and discharged in
full when paid by the Borrower to the Administrative Agent), and such amount
will instead be retained by the Administrative Agent in a segregated,
non-interest bearing account until (subject to Section 2.10) the
termination of the Revolving Commitments and payment in full of all Obligations
of the Borrower hereunder and will be applied by the Administrative Agent, to
the fullest extent permitted by law, to the making of payments from time to
time in the following order of priority: first to the payment of any
amounts owing by such Impaired Lender to the Administrative Agent under this
Agreement, second to the payment of any amounts owing by such Impaired
Lender to any Facing Agent or the Swing Line Lender (pro rata as to the
respective amounts owing to each of them) under this Agreement, third to
the payment of post-default interest and then current interest due and payable
to the Revolving Lenders hereunder other than Impaired Lenders, ratably among
them in accordance with the amounts of such interest then due and payable to
them, fourth to the payment of fees then due and payable to the
Non-Impaired Lenders hereunder, ratably among them in accordance with the
amounts of such fees then due and payable to them, fifth to pay
principal of the Revolving Loans and any 


 


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reimbursement obligations
with respect to any Letter of Credit then due and payable to the Non-Impaired
Lenders hereunder ratably in accordance with the amounts thereof then due and
payable to them, sixth to the ratable payment of other amounts then due
and payable under this Agreement to the Non-Impaired Lenders, and seventh
after the termination of the Revolving Commitments and payment in full of all
Obligations of the Borrower hereunder, to pay amounts owing under this
Agreement to such Impaired Lender or as a court of competent jurisdiction may
otherwise direct.


 


B.                                     Termination of Impaired Lender Commitments. 
The Borrower may terminate the unused amount of the Revolving Commitment
of an Impaired Lender upon not less than 10 Business Days’ prior notice to the
Administrative Agent (which will promptly notify the Revolving Lenders
thereof); provided, that such termination will not be deemed to be a waiver or
release of any claim the Borrower, the Administrative Agent, any Facing Agent,
the Swing Line Lender or any Revolving Lender may have against such Impaired
Lender.


 


C.                                     Cure.  If the
Borrower and the Administrative Agent, each Facing Agent and the Swing Line
Lender agree in writing in their discretion that a Revolving Lender that is an
Impaired Lender should no longer be deemed to be an Impaired Lender, the
Administrative Agent will so notify the Borrower and the Revolving Lenders,
whereupon as of the effective date specified in such notice, such Revolving
Lender will, to the extent applicable, purchase such portion of outstanding
Revolving Loans of the other Revolving Lenders (or the other Revolving Lenders
will purchase from the formerly Impaired Lender) and/or make such other
adjustments as the Administrative Agent may reasonably determine to be
necessary to cause such Revolving Lender’s Pro Rata Share to be on a pro rata
basis in accordance with its Revolving Commitment, whereupon such Revolving
Lender will cease to be an Impaired Lender and will be a Non-Impaired Lender;
provided, that no adjustments will be made retroactively with respect to fees
accrued or payments made by or on behalf of the Borrower while such Revolving
Lender was an Impaired Lender; and provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from
Impaired Lender to Non-Impaired Lender will constitute a waiver or release of
any claim of any party hereunder arising from such Revolving Lender having been
an Impaired Lender.


 


SECTION 12


 


REDUCTION
OF COMMITMENTS; PAYMENTS AND PREPAYMENTS


 


12.1.                     Voluntary Reduction of Commitments


 


A.                                   Upon at least three Business Days’ prior written
notice (or telephonic notice confirmed in writing) to the Administrative Agent
at the Notice Office (which notice the Administrative Agent shall promptly
transmit to each Lender), the Borrower shall have the right, without premium or
penalty, to terminate the unutilized portion of the Revolving Commitments
and/or, the Swing Line Commitment, as the case may be, in part or in whole; provided
that (i) any such voluntary termination of the Revolving Commitments shall
apply proportionately to, and shall permanently reduce, the Revolving
Commitments of each Revolving Lender; (ii) any partial voluntary reduction
of the Revolving Commitments pursuant to this Section 4.1 shall be 


 


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in the amount of
at least $10,000,000 and integral multiples of $5,000,000 in excess
of that amount and (iii) any such voluntary termination of the Revolving
Commitment shall occur simultaneously with a voluntary prepayment, pursuant to Section 4.3
such that the total of the Revolving Commitments shall not be reduced below the
sum of the Assigned Dollar Value of the aggregate principal amount of
outstanding Revolving Loans, Swing Line Loans and LC Obligations plus any
Overdraft Reserve.


 


B.                                     In the event of certain refusals by a Lender to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Lenders as
provided in Section 12.1(b), the Borrower shall have the right,
upon five (5) Business Days’ prior written notice to the Administrative
Agent (which notice the Administrative Agent shall promptly transmit to each of
the Lenders), to terminate the entire Revolving Commitment of such Lender, so
long as (i) the Borrower repays all Loans, together with accrued and
unpaid interest, fees and all other amounts, due and owing to such Lender
pursuant to Section 4.3(b) concurrently with the effectiveness
of such termination at which time Schedule 1.1(a) shall be deemed
modified to reflect such changed amounts and (ii) the Borrower cash
collateralizes such Lender’s Pro Rata Share of the LC Obligations (in the
manner set forth in Section 4.4(a)) then outstanding.  At such time, such Lender shall no longer
constitute a “Lender” for purposes of this Agreement, except with respect to
indemnifications in favor of such Lender under this Agreement which shall
survive as to such repaid Lender.


 


C.                                     In the event that any Revolving Lender does not
consent to an increase in its Revolving Commitment pursuant to a Revolving
Commitment Increase, or if any Revolving Lender does not consent (or is deemed
not to have consented) to an extension of the Stated Termination Date pursuant
to Section 2.11, the Borrower shall have the right, upon five (5) Business
Days’ prior written notice to the Administrative Agent (which notice the
Administrative Agent shall promptly transmit to each of the Revolving Lenders),
to terminate the entire Revolving Commitment of such Revolving Lender, so long
as the Borrower repays all Revolving Loans, together with any accrued and
unpaid interest and fees thereon, concurrently with the effectiveness of such
termination at which time Schedule 1.1(a) shall be deemed modified
to reflect such changed amounts and such Revolving Lender’s Pro Rata Share of
the LC Obligations and Swing Line Loans shall be reallocated pursuant to Section 2.10(c) or
Section 2.11(b), as the case may be.  At such time, such Revolving Lender shall no
longer constitute a “Revolving Lender” for purposes of this Agreement, except
with respect to indemnifications in favor of such Revolving Lender under this
Agreement which shall survive as to such repaid Revolving Lender.


 


12.2.                     Mandatory Reductions of Commitments


 


A.                                   Reduction of Revolving Commitments. The Revolving Commitments shall be
reduced at the time and in the amounts required to be reduced pursuant to Section 4.4(c).


 


B.                                     Reduction of Term B Dollar Commitments. The Term B Dollar Commitments shall
terminate on the Effective Date after giving effect to the Term B Dollar Loans
on such date.


 


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C.                                     Proportionate Reductions. Each reduction or adjustment to the
Commitments pursuant to this Section 4.2 shall apply
proportionately to the Commitments of each Lender under the applicable
Facility.


 


D.                                    Reduction of Term C Dollar Commitments. The Term C Dollar Commitments shall
terminate on the Fourth Amendment Effective Date after giving effect to the
Term C Dollar Loans on such date.


 


12.3.                     Voluntary Prepayments


 


A.                                   The Borrower shall have the right to prepay the
Revolving Loans, any of the Term Loans or the Swing Line Loans in any
combination, in whole or in part, from time to time, without premium or penalty
except as set forth in Section 4.5(c), on the following terms and
conditions: (i) the Borrower shall give the Administrative Agent
irrevocable written notice at its Notice Office (or telephonic notice promptly
confirmed in writing) of its intent to prepay the Loans, whether such Loans are
Term Loans, Revolving Loans or Swing Line Loans, the amount of such prepayment
and the specific Borrowings to which such prepayment is to be applied, which
notice shall be given by the Borrower to the Administrative Agent by 12:00 p.m.
(New York City time) at least three Business Days prior in the case of
Eurocurrency Loans and at least one Business Day prior in the case of Base Rate
Loans to the date of such prepayment and which notice shall (except in the case
of Swing Line Loans) promptly be transmitted by the Administrative Agent to
each of the applicable Lenders; (ii) each partial prepayment of any
Borrowing (other than a Borrowing of Swing Line Loans) shall be in an aggregate
Dollar Equivalent principal amount of at least $5,000,000 and each partial
prepayment of a Swing Line Loan shall be in an aggregate principal amount of at
least $500,000; provided, that any partial prepayment of Eurocurrency
Loans made pursuant to a single Borrowing that reduces the aggregate principal
amount of the outstanding Loans made pursuant to such Borrowing to an amount
less than the Minimum Borrowing Amount applicable thereto shall be subject to
the ante-penultimate sentence of Section 4.5(a); (iii) Eurocurrency
Loans may be prepaid pursuant to this Section 4.3 on the last day
of an Interest Period applicable thereto, or subject to Section 3.5
on any other day; (iv) each prepayment in respect of any Borrowing shall
be applied pro rata among the Loans comprising such Borrowing; provided,
that such prepayment shall not be applied to any Revolving Loans of an Impaired
Lender at any time when the aggregate amount of Revolving Loans of any
Non-Impaired Lender exceeds such Non-Impaired Lender’s Pro Rata Share of all
Revolving Loans then outstanding; (v) each voluntary prepayment of Term
Loans shall be applied first to the Scheduled Term Repayments of the Term
Facility being repaid due within the 12 month period following the date of such
prepayment in direct order of maturity and, thereafter, shall be applied to
reduce the remaining Scheduled Term Repayments on a pro rata basis (based upon
the then remaining principal amount of such Scheduled Term Repayments).  Unless otherwise specified by the Borrower,
such prepayment shall be applied first to the payment of Base Rate Loans and
second to the payment of such Eurocurrency Loans as the Borrower shall request
(and in the absence of such request, as the Administrative Agent shall
determine).  The notice provisions, the
provisions with respect to the minimum amount of any prepayment, and the
provisions requiring prepayments in integral multiples above such minimum
amount of this Section 4.3 are for the benefit of the
Administrative Agent and may be waived unilaterally by the Administrative Agent.


 


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B.                                     In the event of certain refusals by a Lender to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Lenders as
provided in Section 12.1(b), the Borrower shall have the right,
upon five (5) Business Days’ prior written notice to the Administrative
Agent (which notice the Administrative Agent shall promptly transmit to each of
the Lenders), to repay all Loans, together with accrued and unpaid interest,
fees  and all other amounts due and owing
to such Lender in accordance with said Section 12.1(b), so long as (A) in
the case of the repayment of Revolving Loans of any Revolving Lender pursuant
to this clause (b), the Revolving Commitment of such Revolving Lender is
terminated concurrently with such repayment pursuant to Section 4.1(b) and
(B) in the case of the repayment of Loans of any Lender, the consents
required by Section 12.1(b) in connection with the repayment
pursuant to this clause (b) shall have been obtained.


 


12.4.                     Mandatory Prepayments


 


A.                                   Prepayment Upon Overadvance. 
The Borrower shall prepay the outstanding principal amount of Revolving
Loans and/or Swing Line Loans on any date on which the Assigned Dollar Value of
all outstanding Revolving Loans, Swing Line Loans and LC Obligations (after
giving effect to any other repayments or prepayments on such day) plus any
Overdraft Reserve exceeds the Total Revolving Commitment then in effect
(including, without limitation, solely as a result of fluctuation in Exchange
Rates), in the amount of such excess and in the applicable currency; provided,
however, that if such excess is solely as a result of fluctuation in
Exchange Rates, (i) the Borrower shall not be obligated to pay such amount
until four Business Days after notice from the Administrative Agent and (ii) the
Borrower shall not be obligated to pay such amount unless such excess is
greater than the Dollar Equivalent of an amount equal to 5% of the Total
Revolving Commitment.  If, after giving
effect to the prepayment of all outstanding Revolving Loans and Swing Line
Loans pursuant to this Section 4.4(a), the aggregate Assigned
Dollar Value of LC Obligations plus any Overdraft Reserve exceeds the Total
Revolving Commitment then in effect, the Borrower shall cash collateralize LC
Obligations by depositing, pursuant to a cash collateral agreement to be
entered into in form and substance reasonably satisfactory to the
Administrative Agent, cash with the Administrative Agent in an amount equal to
the difference between the Assigned Dollar Value of such LC Obligations plus
any Overdraft Reserve and the Total Revolving Commitment then in effect.  The Administrative Agent shall establish in
its name for the benefit of the Revolving Lenders a collateral account into
which it shall deposit such cash to hold as collateral security for the LC
Obligations.


 


B.                                     Scheduled Term Repayments. 
The Borrower shall cause to be paid Scheduled Term Repayments for each
Term Facility on the Term Loans until the Term Loans are paid in full in the
amounts and currencies and at the times specified in each of the Scheduled Term
Repayment definitions to the extent that prepayments have not previously been
applied to such Scheduled Term Repayments (and such Scheduled Term Repayments
have not otherwise been reduced) pursuant to the terms hereof.  Payments to be made pursuant to this Section 4.4(b) with
respect to Term B Dollar Loans shall be paid in Dollars.  Payments to be made pursuant to this Section 4.4(b) with
respect to Term C Dollar Loans shall be paid in Dollars.


 


C.                                     Mandatory Prepayment Upon Asset Disposition or
Recovery Event.


 


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(a)                                  On the first Business Day after the date
of receipt thereof by the Borrower and/or any of its Subsidiaries of Net Sale
Proceeds from any Asset Disposition (other than the US Commodity Business Sale,
the UK Business Sale or the C4 Business Sale) or Net Recovery Proceeds of a
Recovery Event (or in the case of a receipt thereof by a Foreign Subsidiary of
the Borrower, such later date as is practicable (but in any event not later
than the 360th day or such earlier day as the Borrower is obligated to make an
offer to purchase any Public Notes due to such Asset Disposition or Recovery
Event) in the event that such mandatory repayment would result in the
provisions of Sections 151 et seq. of the Companies Act 1985 of England being
breached or in any Foreign Subsidiary breaching any similar applicable law in its
country of incorporation), the Borrower shall cause to be paid a mandatory
repayment of principal of Loans pursuant to the terms of Section 4.5(a) in
an amount equal to the greater of (A) the Term Loan Ratable Share of such
Net Sale Proceeds or such Net Recovery Proceeds and (B) 100% of such Net
Sale Proceeds or such Net Recovery Proceeds less the applicable Required Note
Offer Amount Proceeds; provided, that so long as no Event of Default or
Unmatured Event of Default then exists, if either (i) the Net Recovery
Proceeds of any single or series of related Recovery Events or (ii) the
Net Sale Proceeds of any single or series of related Asset Dispositions are
less than $10,000,000 in the aggregate, then no prepayment shall be required
pursuant to this Section 4.4(c)(i), with respect to such Recovery
Event(s) or Asset Disposition(s) (but if greater than $10,000,000,
the entire amount of the Net Recovery Proceeds or the Net Sale Proceeds, as
applicable, shall be required to be prepaid and not only the portion of the Net
Recovery Proceeds or the Net Sale Proceeds, as applicable, in excess of
$10,000,000); provided, further, that the Net Recovery Proceeds
of a Recovery Event and the Net Sales Proceeds of an Asset Disposition (if such
Asset Disposition is permitted by Section 8.3(h) or (i)),
shall not be required to be so applied on such date to the extent that (x) no
Event of Default or Unmatured Event of Default then exists and (y) the
Borrower delivers a certificate to the Administrative Agent on or prior to such
date stating that an amount equal to such Net Sale Proceeds or Net Recovery
Proceeds, as applicable, (1) has been used, or (2) is expected to be
used within 360 days following the date of receipt of such Net Sale Proceeds or
Net Recovery Proceeds, as applicable, to purchase assets used or to be used in
the businesses referred to in Section 8.9 (which certificate shall
set forth the estimates of the proceeds to be so expended, if applicable) or to
redeem, repurchase or otherwise acquire up to $300,000,000 in aggregate
principal amount of obligations under the Senior Secured Notes (2010) or the
Senior Notes (2012) in accordance with the terms of Section 8.11(i);
provided, however, that, in the case of an Asset Disposition, if
the Net Sale Proceeds from such Asset Disposition is for an amount in excess of
7.5% of the Consolidated Net Tangible Assets of the Borrower and its
Subsidiaries as of the end of the immediately preceding Fiscal Quarter for
which the Borrower has delivered financial statements required by Section 7.1,
the Net Sale Proceeds in excess of the amount equal to 7.5% of Consolidated Net
Tangible Assets as of such date shall be required to be so applied as a
mandatory repayment of principal of Loans pursuant to the terms of Section 4.5(a) on
the date thirty (30) days 


 


85

















 


following receipt thereof
unless the Borrower has received from S&P or Moody’s by such date a
reaffirmation of its debt ratings giving effect to such Asset Disposition and
the proposed use of the proceeds therefrom; provided, further,
that (1) if all or any portion of such Net Sale Proceeds or Net Recovery
Proceeds, as applicable, not so applied to the repayment of Loans have not been
used or are not so used (or contractually committed to be used) within such 360
day period as provided above, or not applied in accordance with the terms of Section 8.11(i),
such remaining portion shall be applied on the last day of the period or such
earlier date as the Borrower is obligated to make an offer to purchase Senior
Secured Notes (2010) due to such Asset Disposition or Recovery Event, as
applicable, as a mandatory repayment of principal of outstanding Loans as
provided above in this Section 4.4(c) and (2) if all or
any portion of such Net Sale Proceeds 
are a result of an Asset Disposition involving the sale of Collateral
owned by the Borrower or a Domestic Subsidiary (other than the Capital Stock of
a Foreign Subsidiary) or if all or any portion of such Net Recovery Proceeds
are a result of a Recovery Event involving Collateral owned by the Borrower or
a Domestic Subsidiary, respectively, then such Net Sale Proceeds and Net
Recovery Proceeds shall be required to be reinvested in assets located in the
United States constituting Collateral (to the extent not used to repay Loans
pursuant to this Section 4.4(c)). 
Notwithstanding the foregoing, on the fifth Business Day after the date
of receipt of any LOU Claim Proceeds, the Borrower shall cause to be paid a
mandatory repayment of principal of Loans pursuant to the terms of Section 4.5(a) in
an amount equal to such LOU Claim Proceeds.


 


(b)                                 The Lenders, by execution hereof, hereby
irrevocably instruct the Administrative Agent, upon the request of the
Borrower, to waive (A) up to $200,000,000 of Net Sale Proceeds otherwise
required to prepay the Loans hereunder in any Fiscal Year, (B) up to
$50,000,000 in the aggregate of Net Sale Proceeds received in connection with
Sale and Leaseback Transactions of transportation assets and (C) to the
extent not previously waived, Net Sales Proceeds from the C4 Business Sale and
the UK Business Sale.


 


(c)                                  Notwithstanding anything to the contrary
in this Section 4.4(c), if the Borrower or any of its Subsidiaries
are required by the terms of any Public Note Document to make an offer to
purchase Public Notes due to an Asset Disposition (other than the US Commodity
Business Sale and the Asset Dispositions described in clause (ii)(C) above)
but would not otherwise be required to make a mandatory prepayment of the Loans
applied pursuant to the terms of Section 4.5(a), the Borrower shall
cause to be made a mandatory prepayment of the Loans pursuant to Section 4.5(a) in
an amount equal to the greater of (A) the Term Loan Ratable Share of the
Net Sale Proceeds from such Asset Disposition and (B) 100% of such Net
Sale Proceeds from such Asset Disposition less the applicable Required Note
Offer Amount Proceeds.


 


D.                                    Mandatory Prepayment With Excess Cash Flow. 
As soon as practicable and in any event by April 30th of each year
(commencing April 30, 2006), the Borrower shall cause to be paid a
mandatory repayment of principal of Loans applied pursuant to the terms of 


 


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Section 4.5(a) in an amount equal to 50% of Excess
Cash Flow of the Borrower and its Subsidiaries for the Fiscal Year then most
recently ended; provided, that so long as no Event of Default or
Unmatured Event of Default then exists, (i) if the Most Recent Leverage
Ratio is less than 3.5 to 1.0, then, instead of 50%, an amount equal to 25% of
Excess Cash Flow of the Borrower and its Subsidiaries for such Fiscal Year
shall be applied as a mandatory repayment of Loans as provided in Section 4.5
and (ii) if the Most Recent Leverage Ratio is less than 3.0 to 1.0 then no
mandatory prepayment shall be required to be applied from Excess Cash Flow.


 


12.5.                     Application of Prepayments.


 


A.                                   Prepayments.  Except as
expressly provided in this Agreement, all prepayments of principal made by the
Borrower pursuant to Sections 4.4(c) and (d) shall be
applied (i) first, to the payment of the unpaid principal amount of
the Term Loans (with, except as provided in the next succeeding sentence, the
Term Percentage for each Term Facility of such repayment to be applied as a
repayment of Term Loans of such Term Facility), second, to the
prepayment of the then outstanding balance of Swing Line Loans, third,
to the payment, pro rata, of the then outstanding balance of the Revolving
Loans (and the Revolving Commitments shall be permanently reduced by the amount
of the required prepayment not applied to the Term Loans), and fourth,
to the cash collateralization of LC Obligations; (ii) within each of the
foregoing Loans, first to the payment of Base Rate Loans and second to the
payment of Eurocurrency Loans; and (iii) with respect to Eurocurrency
Loans, in such order as the Borrower shall request (and in the absence of such
request, as the Administrative Agent shall determine).  Each prepayment of Term Loans made
pursuant to Section 4.4(c) and (d) shall be
allocated first to the Term Loans based on the aggregate principal
amount of the Scheduled Term Repayments due within the twelve month period
following the date of such prepayment in direct order of maturity, and,
thereafter, shall be allocated second to the Term Loans in proportional
amounts equal to the Term Percentage for each Term Facility (in each case,
after giving effect to the prepayments made to the Scheduled Term Repayments
due within such twelve month period as specified above), as the case may be, of
such remaining prepayment, if any, and, within each Term Loan, shall be applied
to reduce the remaining Scheduled Term Repayments on a pro rata basis (based
upon the then remaining principal amount of such Scheduled Term Repayments).  If any prepayment of Eurocurrency Loans made
pursuant to a single Borrowing shall reduce the outstanding Loans made pursuant
to such Borrowing to an amount less than the Minimum Borrowing Amount, such
Borrowing shall immediately be converted into Base Rate Loans, in the case of
Loans denominated in Dollars, or into Loans with one month Interest Periods, in
the case of Loans denominated in an Alternative Currency.  All prepayments shall include payment of
accrued interest on the principal amount so prepaid, shall be applied to the
payment of interest before application to principal and shall include amounts
payable, if any, under Section 3.5. 
All payments received in Dollars which are required to be applied in
Euros and/or Sterling shall be converted to Euros or Sterling, as the case may
be, at the Spot Rate on the date of such prepayment.


 


B.                                     Payments.  All Scheduled
Term Repayments, all mandatory prepayments and unless otherwise specified by
the Borrower, all voluntary prepayments shall be applied (i) first to the
payment of Base Rate Loans, if any, and second to the payment of Eurocurrency
Loans and (ii) with respect to Eurocurrency Loans, in such order as the
Borrower shall request (and in the absence of such request, as the
Administrative Agent shall determine). 
All payments 


 


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shall include
payment of accrued interest on the principal amount so paid, shall be applied
to the payment of interest before application to principal and shall include
amounts payable, if any, under Section 3.5.  Each payment applied to the Term Loans shall,
to the extent permitted by applicable laws, be deemed to apply to the portion
thereof that was used to repay and replace the loans originally incurred by the
Borrower to purchase the Capital Stock of TG.


 


C.                                     Call Protection.  In the event
that prior to the first anniversary of the Effective Date, the Borrower makes
any prepayment of all or part of the Term B Dollar Loans in connection with any
replacement or refinancing of the Term B Dollar Loans with or from the proceeds
of a new term loan having an “Applicable Eurocurrency Margin” (or other
equivalent term) that, at any time prior to the first anniversary of the
Effective Date is, or could upon satisfaction of certain conditions be, less
than the Applicable Eurocurrency Margin for the Term B Dollar Loans, the
Borrower shall pay a prepayment fee to Administrative Agent for the benefit of
the Term B Dollar Lenders equal to 1% of the principal amount of the Term B
Dollar Loans so refinanced, provided that the foregoing prepayment fee shall
not be applicable if such prepayment is made in connection with the termination
of all of the Revolving Commitments and a repayment of all of the Loans
hereunder.  Solely for purposes of this Section 4.5(c),
any amendment, restatement or other modification to this Agreement prior to the
first anniversary of the Effective Date that reduces the Applicable
Eurocurrency Margin applicable to the Term B Dollar Loans shall be treated as
if the Term B Dollar Loans were refinanced in full.


 


D.                                    Prepayment of Term C Dollar Loans. 
Notwithstanding anything to the contrary contained in this Agreement,
including without limitation, any provision of Article IV hereof,
the Borrower shall have the right to prepay in whole (but not in part) the
outstanding Term B Dollar Loans without any obligation to prepay any portion of
the Term C Dollar Loans.


 


12.6.                     Method and Place of Payment


 


A.                                   Except as otherwise specifically provided herein, all
payments under this Agreement shall be made to the Administrative Agent, for
the ratable account of the Lenders entitled thereto, not later than 1:00 p.m.
(New York City time) on the date when due and shall be made in immediately
available funds and in each case to the account specified therefor for the
Administrative Agent or if no account has been so specified at the Payment
Office.  The Administrative Agent will
thereafter cause to be distributed on the same day (if payment was actually
received by the Administrative Agent prior to 1:00 p.m. (New York City
time) on such day) like funds relating to the payment of principal or interest
or fees ratably to the Lenders entitled to receive any such payment in
accordance with the terms of this Agreement. 
If and to the extent that any such distribution shall not be so made by
the Administrative Agent in full on the same day (if payment was actually
received by the Administrative Agent prior to 1:00 p.m. (New York City
time) on such day), the Administrative Agent shall pay to each Lender its
ratable amount thereof and each such Lender shall be entitled to receive from
the Administrative Agent, upon demand, interest on such amount at the overnight
Federal Funds Rate (or the applicable cost of funds with respect to amounts
denominated in Euros or Sterling) for each day from the date such amount is
paid to the Administrative Agent until the date the Administrative Agent pays
such amount to such Lender.


 


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B.                                     Any payments under this Agreement which are made by
the Borrower later than 1:00 p.m. (New York City time) shall, for the
purpose of calculation of interest, be deemed to have been made on the next
succeeding Business Day.  Whenever any
payment to be made hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable during such extension at the applicable rate in effect immediately
prior to such extension, except that with respect to Eurocurrency Loans, if
such next succeeding applicable Business Day is not in the same month as the
date on which such payment would otherwise be due hereunder or under any Note,
the due date with respect thereto shall be the next preceding Business Day.


 


12.7.                     Net Payments


 


A.                                   All payments made by the Borrower hereunder or under
any Loan Document will be made without setoff, counterclaim or other
defense.  All payments hereunder and
under any of the Loan Documents (including, without limitation, payments on
account of principal and interest and fees) shall be made by the Borrower free
and clear of and without deduction or withholding for or on account of any
present or future tax, duty, levy, impost, assessment or other charge of
whatever nature now or hereafter imposed by any Governmental Authority, but
excluding therefrom (i) any tax imposed on or measured by the overall net
income (including franchise taxes imposed in lieu of net income taxes) of the
Lender or the lending office of the Lender in respect of which the payment is
made by the United States or by the jurisdiction (or any political subdivision
or taxing authority thereof) in which the Lender is incorporated or the
jurisdiction (or political subdivision or taxing authority thereof) in which
its lending office is located, (ii) any branch profits tax imposed by the
United States or any similar tax imposed by the jurisdiction in which the
Borrower is located, (iii) in the case of any Lender organized under the
laws of any jurisdiction other than the United States or any state thereof
(including the District of Columbia), any taxes imposed by the United States by
means of withholding at the source unless such withholding results from a
change in applicable law, treaty or regulations or the interpretation or
administration thereof (including, without limitation, any guideline or policy
not having the force of law) by any authority charged with the administration
thereof subsequent to the date such Lender becomes a Lender hereunder, (iv) any
taxes to which the Lender is subject (to the extent of the tax rate then in
effect) on the date this Agreement is executed or to which such Lender would be
subject on such date if a payment hereunder had been received by the Lender on
such date and with respect to any Lender that becomes a party hereto after the
date hereof, any taxes to which such Lender is subject on the date it becomes a
party hereto (other than taxes which each of the other Lenders is entitled to
reimbursements for pursuant to the terms of this Agreement), (v) taxes to
which the Lender becomes subject subsequent to the date referred to in clause (iv) above
as a result of a change in the residence, place of incorporation, or principal
place of business of the Lender, a change in the branch or lending office of
the Lender participating in the transactions set forth herein or other similar
circumstances or as a result of the recognition by the Lender of gain on the sale,
assignment or participation by the Lender of the participating interests in its
creditor positions hereunder and (vi) any withholding tax that is imposed
as a result of a Lender’s failure to comply with the provisions of Section 4.7(d) (such
tax or taxes, other than the tax or taxes described in Sections 4.7(a)(i) through
(vi), being herein referred to as “Tax” or “Taxes”).  If the Borrower is required by law to make
any deduction or withholding of any Taxes from any payment due hereunder or 


 


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under any of the
Loan Documents, then the amount payable will be increased to such amount which,
after deduction from such increased amount of all such Taxes required to be
withheld or deducted therefrom, will not be less than the amount due and
payable hereunder had no such deduction or withholding been required.  A certificate as to any additional amounts
payable to a Lender under this Section 4.7 submitted to the
Borrower by such Lender shall show in reasonable detail the amount payable and
the calculations used to determine in good faith such amount and shall, absent
manifest error, be final, conclusive and binding upon all parties hereto.


 


B.                                     If the Borrower makes any payment hereunder or under
any of the Loan Documents in respect of which it is required by law to make any
deduction or withholding of any Taxes, it shall pay the full amount to be
deducted or withheld to the relevant taxation or other authority within the
time allowed for such payment under applicable law and shall deliver to the
Lenders within 30 days after it has made such payment to the applicable
authority an original or certified copy of a receipt issued by the relevant
Governmental Authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to the
Lender or Administrative Agent.


 


C.                                     Without prejudice to the other provisions of Section 4.7,
if any Lender, or the Administrative Agent on its behalf, is required by law to
make any payment on account of Taxes on or in relation to any amount received
or receivable hereunder or under any of the Loan Documents by such Lender, or
the Administrative Agent on its behalf, or any liability for Tax in respect of
any such payment is imposed, levied or assessed against any Lender or the
Administrative Agent on its behalf, the Borrower will promptly, following
receipt of the certificate described in the immediately following sentence,
indemnify such person against such Tax payment or liability, together with any
interest, penalties and expenses (including reasonable counsel fees and
expenses) payable or incurred in connection therewith, including any tax of any
Lender or the Administrative Agent arising by virtue of payments under this Section 4.7(c),
computed in a manner consistent with this Section 4.7(c).  A certificate as to the amount of such
payment by such Lender, or the Administrative Agent on its behalf, showing
calculations thereof in reasonable detail, absent manifest error, shall be
final, conclusive and binding upon all parties hereto for all purposes.


 


D.                                    (a)                                  To the extent permitted by applicable
law, each Lender that is a Non-U.S. Participant shall deliver to Borrower and
Administrative Agent on or prior to the Initial Borrowing date (or in the case
of a Lender that is an Assignee, on the date of such assignment to such Lender)
two accurate and complete original signed copies of IRS Form W-8BEN,
W-8ECI, or W-8IMY (or any successor or other applicable form prescribed by the
IRS) certifying to such Lender’s entitlement to a complete exemption from, or a
reduced rate of, United States withholding tax on interest payments to be made
under this Agreement or any Note.  If a
Lender that is a Non-U.S. Participant is claiming a complete exemption from
withholding on interest pursuant to Section 881(c) of the Code, the
Lender shall deliver (along with two accurate and complete original signed
copies of IRS Form W-8BEN) a certificate substantially in the form of Exhibit 4.7(d) (any
such certificate, a Section 4.7(d)(i) Certificate”).  In addition, each Lender that is a Non-U.S.
Participant agrees that from time to time after the Initial Borrowing date, (or
in the case of a Lender that is an Assignee, after the date of the assignment
to such Lender), when a lapse in time (or change in circumstances occurs)
renders the prior certificates hereunder obsolete or inaccurate in any material
respect, such Lender shall, to the extent permitted under 


 


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applicable law,
deliver to the Borrower and Administrative Agent two new and accurate and
complete original signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY
(or any successor or other applicable forms prescribed by the IRS), and if
applicable, a new Section 4.7(d)(i) Certificate, to confirm or
establish the entitlement of such Lender or Agent to an exemption from, or
reduction in, United States withholding tax on interest payments to be made
under this Agreement or any Note.


 


(b)                                 Each Lender that is not a Non-U.S.
Participant (other than any such Lender which is taxed as a corporation for
U.S. federal income tax purposes) shall provide two properly completed and duly
executed copies of IRS Form W-9 (or any successor or other applicable
form) to Borrower and Administrative Agent certifying that such Lender is
exempt from United States backup withholding tax.  To the extent that a form provided pursuant
to this Section 4.7(d)(ii) is rendered obsolete or inaccurate
in any material respects as result of change in circumstances with respect to
the status of a Lender, such Lender or Agent shall, to the extent permitted by
applicable law, deliver to Borrower and Administrative Agent revised forms
necessary to confirm or establish the entitlement to such Lender’s exemption
from United States backup withholding tax.


 


E.                                      Each Lender agrees that, as promptly as practicable
after it becomes aware of the occurrence of any event or the existence of any
condition that would cause the Borrower to make a payment in respect of any
Taxes to such Lender pursuant to Section 4.7(a) or a payment
in indemnification for any Taxes pursuant to Section 4.7(c), it
will use reasonable efforts to make, fund or maintain the Loan (or portion
thereof) of such Lender with respect to which the aforementioned payment is or
would be made through another lending office of such Lender if as a result
thereof the additional amounts which would otherwise be required to be paid by
such the Borrower in respect of such Loans (or portions thereof) or
participation in Letters of Credit pursuant to Section 4.7(a) or
Section 4.7(c) would be materially reduced, and if, as
determined by such Lender, in its reasonable discretion, the making, funding or
maintaining of such Loans or participation in Letters of Credit (or portions
thereof) through such other lending office would not otherwise materially
adversely affect such Loans or such Lender. 
The Borrower agrees to pay all reasonable expenses incurred by any Lender
in utilizing another lending office of such Lender pursuant to this Section 4.7(e).


 


F.                                      If the Administrative Agent or any Lender (or
Participant) receives any refund with respect to any Taxes as to which it has
been indemnified by the Borrower, or with respect to which the Borrower has
paid additional amounts pursuant to this Section 4.7, it shall pay
over to the Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 4.7 with respect to the Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent or such Lender
(or Participant) and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that the
Borrower, upon the request of the Administrative Agent or such Lender (or
Participant), agrees to repay the amount paid over to the Borrower, to the
Administrative Agent or such Lender (or Participant), together with any
interest, penalties and additions to tax, in the event the Administrative Agent
or such Lender (or Participant) is required to repay such refund to such
Governmental Authority.  This paragraph
shall not be construed to require the Administrative Agent or any Lender (or 


 


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Participant) to
make available its tax returns (or any other information relating to its taxes
which it deems confidential) to the Borrower or any other Person.


 


SECTION 13


 


CONDITIONS
OF CREDIT


 


13.1.                     Conditions Precedent to the Closing Date


 


The obligation of the
Lenders to make the Initial Loan and the obligation of the Facing Agent to
issue and the Lenders to participate in Letters of Credit under this Agreement
were subject to the fulfillment, on or prior to the Closing Date, of each of
the following conditions (capitalized terms used in this Article but not
defined herein have the meanings ascribed to such terms in this Agreement prior
to giving effect to the Third Amendment):


 


A.                                   Credit Agreement and Notes. 
The Borrower, the Administrative Agent and each Lender shall have duly
executed and delivered to the Administrative Agent, with a signed counterpart
for each Lender, this Agreement (including all schedules and exhibits), and the
Borrower shall have duly executed and delivered to the Administrative Agent the
Notes payable to the order of each applicable Lender which has requested a Note
in the amount of their respective Commitments and all other Loan Documents
shall have been duly executed and delivered by the appropriate Credit Party to
Agent, all of which shall be in full force and effect;


 


B.                                     Collateral Security Agreement; UK Debenture. 
The Borrower and each Subsidiary Guarantor shall have duly authorized,
executed and delivered a Collateral Security Agreement in form and substance
satisfactory to the Administrative Agent (as modified, supplemented or amended
from time to time, the “Collateral Security Agreement”) and shall have
delivered to Collateral Agent all the Pledged Securities and Pledged
Intercompany Notes referred to therein then owned, if any, by such Credit
Party, (y) endorsed in blank in the case of promissory notes constituting
Pledged Securities referred to therein then owned, if any, by such Credit
Party, and (z) together with executed and undated stock powers, in the
case of capital stock constituting Pledged Securities and the other documents
and instruments required to be delivered under the Collateral Security
Agreement and TG shall have duly authorized, executed and delivered an English law
governed Guarantee and Debenture in favor of the UK Security Trustee in form
and substance satisfactory to the Administrative Agent (as modified,
supplemented or amended from time to time, the “UK Debenture”) together
with:


 


(a)                                  proper financing statements (Form UCC-1
or such other financing statements or similar notices as shall be required by
local law) fully executed for filing under the UCC or other appropriate filing
offices of each jurisdiction as may be necessary or, in the reasonable opinion
of the Administrative Agent, desirable to perfect the security interests
purported to be created by the Collateral Security Agreement;


 


(b)                                 certified copies of Requests for
Information or Copies (Form UCC-7), or equivalent reports, listing all
effective financing statements or similar notices that name the Borrower or its
Subsidiaries (by its actual name or any trade 


 


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name, fictitious name or
similar name), or any division or other operating unit thereof, as debtor and
that are filed in the jurisdiction referred to in said clause (i), together
with copies of such other financing statements (none of which shall cover the
Collateral except to the extent evidencing Permitted Liens or for which the
Administrative Agent shall have received satisfactory evidence of release);


 


(c)                                  evidence of the completion (or
arrangements acceptable to the Administrative Agent for the completion) of all
other recordings and filings of, or with respect to, the Collateral Security
Agreement and the UK Debenture and all other actions as may be necessary or, in
the opinion of the Administrative Agent, desirable to perfect the security
interests intended to be created by the Collateral Security Agreement, the UK
Debenture or any other Security Document;


 


(d)                                 such amendments, modifications or
supplements to the Pledged Intercompany Notes as may be reasonably requested by
the Administrative Agent, each such amendment, modification or supplement to be
in a form reasonably satisfactory to the Administrative Agent; and


 


(e)                                  evidence that all other actions
necessary, or in the reasonable opinion of the Administrative Agent, desirable
to perfect the security interests purported to be taken by the Collateral
Security Agreement have been taken;


 


C.                                     Pledge Agreement; Charges Over Shares.  (i) The
Borrower and each Subsidiary Guarantor shall have duly executed and delivered a
Pledge Agreement in the form of Exhibit 5.1(c) (as modified,
supplemented or amended from time to time, the “Pledge Agreement”) and (ii) the
Borrower or the applicable Subsidiary Guarantors shall have duly executed and
delivered English law governed charges over shares in form and substance
satisfactory to the Administrative Agent (as modified, supplemented or amended
from time to time, the “UK Pledge Agreements”) in respect to any shares
of TG or UK Holdco 1 held by the Borrower or a Subsidiary Guarantor;


 


D.                                    Subsidiary Guaranty Agreements.


 


(a)                                  Subsidiary Guaranty. 
Each Subsidiary Guarantor shall have duly executed and delivered the
Subsidiary Guaranty substantially in the form of Exhibit 5.1(d)(i);


 


(b)                                 Headquarters Subsidiary Guaranty
Agreement.  Huntsman Headquarters Corporation shall have
duly executed and delivered the Headquarters Subsidiary Guaranty Agreement
substantially in the form of Exhibit 5.1(d)(ii);


 


E.                                      Mortgages; Mortgage Policies; Surveys. 
The Administrative Agent shall have received:


 


(a)                                  fully executed counterparts of a deed of
trust, all in form and substance satisfactory to the Administrative Agent (the “Mortgages”),
which Mortgage shall cover the Mortgaged Property of the Borrower or a Domestic



 


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Subsidiary, together with
a recording instruction letter from Vinson & Elkins L.L.P., addressed
to and accepted by the relevant title insurance company under which such title
insurance company accepts delivery of executed counterparts of the applicable
Mortgage to be promptly delivered to the appropriate recorder’s office for
recording in all places to the extent necessary or desirable, in the reasonable
judgment of the Administrative Agent, to create a valid and enforceable first
priority lien (subject to Permitted Real Property Encumbrances) on the
applicable Mortgaged Property, subject only to Permitted Liens, in favor of
Collateral Agent (or such other trustee as may be required or desired under
local law) for the benefit of the Secured Parties;


 


(b)                                 mortgagee title insurance policies issued
by title insurance companies satisfactory to the Administrative Agent (the “Mortgage
Policies”) with respect to the Mortgaged Properties in amounts satisfactory
to the Administrative Agent assuring the Administrative Agent that the
Mortgages with respect to such Mortgaged Properties are valid and enforceable
first priority mortgage liens on the respective Mortgaged Properties, free and
clear of all defects, encumbrances and other Liens except Permitted Liens, and
the Mortgage Policies shall be in form and substance satisfactory to the
Administrative Agent and shall include, as appropriate, an endorsement for
future advances under this Agreement and the Notes and for any other matter
that the Administrative Agent in its discretion may request, shall not include
an exception for mechanics’ liens, and shall provide for affirmative insurance
and such reinsurance as the Administrative Agent in its discretion may request;
and


 


(c)                                  to the extent requested by the
Administrative Agent, a survey, in form and substance satisfactory to the
Administrative Agent, of each Mortgaged Property dated a recent date acceptable
to the Administrative Agent, certified by a licensed professional surveyor
satisfactory to the Administrative Agent, provided, however, in
the event that any survey delivered pursuant to this provision is dated on a
date which is more than six (6) months prior to the Closing Date, but less
than one (1) year prior to the Closing Date, such survey shall be
acceptable so long as such survey otherwise complies with the ALTA/ACSM
standards required by the Administrative Agent, and the owner and/or lessee of
the Mortgaged Property delivers a “no change survey affidavit” in a form which
is acceptable to the title insurance company issuing the Mortgage Policy, so
that the title insurance company will delete any general survey exception in
such Mortgage Policy;


 


F.                                      Perfection.                                       Each Credit Party shall have delivered to
the Administrative Agent true and correct copies of Perfection Certificates in
the form of Exhibit 5.1(f) (the “Perfection Certificates”),
each of which shall be in full force and effect and in form and substance
satisfactory to the Administrative Agent as of the Closing Date;


 


G.                                     Termination of Prior Credit Agreements.                            On the Closing Date, the total commitments under each
of the Prior Credit Agreements shall have been terminated, all loans thereunder
shall have been repaid in full, together with interest thereon, and all other
amounts 


 


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owing pursuant to
such agreements shall have been repaid in full and such agreements shall have
been terminated on terms and conditions satisfactory to the Administrative
Agent and the Required Lenders and be of no further force or effect and the
creditors thereunder shall have terminated, released or modified all security
interests and Liens on the assets owned by the Borrower and its Subsidiaries in
a manner satisfactory to the Administrative Agent, it being understood and
agreed that for all purposes under this Agreement, such repayment shall be
deemed to occur simultaneously with the effectiveness of this Agreement;


 


H.                                    Intercreditor Agreement and Public Note Document
Deliveries.  The Administrative Agent shall have received (i) a
fully executed copy of the Intercreditor Agreement and (ii) copies of all
opinions and certificates delivered pursuant to the terms of any Public Note
Document in connection with the Transactions;


 


I.                                         Documents.  The
Administrative Agent shall have received certified copies of:


 


(a)                                  the UK Holdco Note executed by UK Holdco
1 payable to Huntsman Finco;


 


(b)                                 Foreign Intercompany Notes executed by
each Foreign Subsidiary that received an Intercompany Loan from UK Holdco 1 in
connection with the Prior HI Credit Agreement;


 


(c)                                  Foreign Intercompany Loan Security
Documents, in form and substance acceptable to the Administrative Agent,
executed by each Foreign Subsidiary listed on Schedule 5.1(i)(iii); and


 


(d)                                 the UK Petrochem Holdings Note, along
with the guaranty of the UK Petrochem Holdings Note by TG;


 


J.                                        Corporate Proceedings.   
The Administrative Agent shall have received from each Credit Party a
certificate, dated the Closing Date, signed by a Responsible Officer of such
Person, and attested to by the secretary or any assistant secretary, or
equivalent officer, or any manager (in the case of a limited liability company)
of such Person with appropriate insertions, together with copies of such Person’s
Organizational Documents and the consents of the members of such Person
referred to in such certificate and all of the foregoing (including each such
Organizational Document and consent) shall be satisfactory to the
Administrative Agent; and


 


(a)                                  All corporate and/or limited liability
company and legal proceedings and all instruments and agreements to be executed
by each Credit Party in connection with the transactions contemplated by this
Agreement and the Loan Documents shall be reasonably satisfactory in form and
substance to the Administrative Agent, and the Administrative Agent shall have
received all information and copies of all certificates, documents and papers,
including good standing certificates, bring-down certificates and any other
records of corporate and/or limited liability company proceedings and
governmental approvals, if any, which the Administrative Agent reasonably may
have requested in connection 


 


95

















 


therewith, such documents
and papers, where appropriate, to be certified by proper corporate or
governmental authorities;


 


(b)                                 The ownership and capital structure
(including without limitation, the terms of any capital stock, options,
warrants or other securities issued by Borrower or any of its Subsidiaries) of
the Borrower and its Subsidiaries shall be in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders;


 


K.                                    Foreign Intercompany Loan Corporate Proceedings. The Administrative Agent shall have
received from each Foreign Subsidiary of the Borrower party to a Foreign
Intercompany Loan Security Document, a copy (certified as being a true,
complete and up to date copy by the secretary of such Person) of such Person’s
Organizational Documents;


 


L.                                      Incumbency.  The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary, or equivalent officer, or any manager (in the case of a
limited liability company) of each Credit Party, dated the Closing Date, as to
the incumbency and signature of the officers of each such Person executing any
document (in form and substance satisfactory to the Administrative Agent) and
any certificate or other document or instrument to be delivered pursuant hereto
or thereto by or on behalf of such Person, together with evidence of the
incumbency of such secretary, assistant secretary, or equivalent officer or any
manager (in the case of a limited liability company);


 


M.                                 Financial Statements. 
The Borrower shall have delivered to the Administrative Agent and each
Lender the financial statements as provided in Section 6.5(a) in
form and substance satisfactory to the Administrative Agent and the Required
Lenders;


 


N.                                    Approvals.  All necessary
governmental (domestic and foreign) and third party approvals in connection
with this Agreement and the transactions contemplated hereby and otherwise
referred to herein shall 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 Agreement or the
transactions contemplated hereby and otherwise referred to herein except for
those approvals of non-Governmental Authorities under contracts which are not
material and which are not required to be delivered at the closing
thereof.  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 material adverse conditions upon all or any part of
this Agreement or the transactions contemplated hereby, or the making of the
Loans or the issuance of Letters of Credit;


 


O.                                    Litigation.  No litigation
by any entity (private or governmental) shall be pending or, to the best
knowledge of the Borrower, threatened with respect to this Agreement, any other
Loan Document or any documentation executed in connection herewith or the
transactions contemplated hereby, or which the Administrative Agent or the
Required Lenders shall determine could reasonably be expected to have a
Material Adverse Effect;


 


96

















 


P.                                      Public Notes.                         HLLC shall have delivered to the
Administrative Agent certified copies of all material documents executed in
connection with the Transaction pursuant to any Public Note Documents,
including any certificates and legal opinions relating thereto, each in form
and substance acceptable to the Administrative Agent;


 


Q.                                    Merger.   The Merger
shall have been consummated in accordance with the Merger Agreement and
applicable law.  The Administrative Agent
shall have received copies of the Merger Agreement and all certificates and
other documents delivered thereunder. 
The Administrative Agent shall be reasonably satisfied with the material
terms and conditions of the Merger;


 


R.                                     Pro Forma Balance Sheet.  The
Administrative Agent shall have received the Pro Forma Balance Sheet in form
and substance satisfactory to the Administrative Agent and the Required
Lenders;


 


S.                                      Opinions of Counsel.  The
Administrative Agent shall have received from (i) Vinson & Elkins
L.L.P., special counsel to the Borrower, an opinion addressed to the
Administrative Agent and each of the Lenders and dated the Closing Date, which
shall be in substantially the form of Exhibit 5.1(s)(i), (ii) Stoel
Rives LLP, special Utah counsel to the Borrower, an opinion addressed to the
Administrative Agent and each of the Lenders and dated the Closing Date, which
shall be in substantially the form of Exhibit 5.1(s)(ii), (iii) Alvord
and Alvord, special Surface Transportation Board Counsel, an opinion addressed
to the Administrative Agent and each of the Lenders and dated the Closing Date,
which shall be in substantially the form of Exhibit 5.1(s)(iii) or
shall have made arrangements satisfactory to the Administrative Agent for
receipt of such opinion within thirty (30) days after the Closing Date and (iv) local
counsel to the Borrower (in the United States and in England), an opinion
addressed to the Administrative Agent and each of the Lenders and dated the
Closing Date, in form and substance satisfactory to the Administrative Agent,
covering the perfection of the security interests granted pursuant to the
Security Documents;


 


T.                                     Fees.  The Borrower
shall have paid to the Agents and the Lenders all costs, fees and expenses
(including, without limitation, legal fees and expenses) payable to the Agents
and the Lenders to the extent then due including all breakage, if any, and
other fees, interest and expenses due and owing under the Prior Credit
Agreements as if paid in full;


 


U.                                    Solvency.  The
Administrative Agent shall have received a solvency certificate, in form and
substance reasonably satisfactory to the Administrative Agent, executed by a
Responsible Officer on behalf of the Borrower with respect to the solvency of
the Borrower;


 


V.                                     Tax Sharing Agreement.  The Administrative
Agent shall have received a certified copy of the fully executed Tax Sharing
Agreement;


 


W.                                Environmental Report.  The
Administrative Agent shall have received access to copies of the most recent
environmental risk assessment reports in the possession of the Borrower or its
Subsidiaries or performed at the request of the Borrower or its Subsidiaries
for any current and former facilities of the Borrower or its Subsidiaries;


 


97

















 


X.                                    Insurance.  The Administrative
Agent shall be satisfied with the insurance coverage in effect on the Closing
Date pertaining to the assets of the Borrower and the Subsidiary Guarantors,
and shall have received evidence satisfactory to it that the Administrative
Agent shall have been named as a loss payee, mortgagee and additional insured
on all such policies of insurance, as appropriate;


 


Y.                                     Whitewash Procedures.  The
Administrative Agent shall be satisfied that each element of the whitewash
procedures with respect to TG has been completed;


 


Z.                                     Officer’s Certificate. 
The Administrative Agent shall have received a certificate executed by a
Responsible Officer on behalf of the Borrower, dated the Closing Date and in
form and substance satisfactory to the Administrative Agent;


 


AA.                         Existing Indebtedness. 
After giving effect to this Agreement and the other transactions
contemplated hereby, Borrower and its Subsidiaries shall not have any
Indebtedness outstanding except for the Loans, the Public Notes and the Indebtedness
listed on Schedule 8.2(b) (to this Agreement prior to giving effect
to the Third Amendment) and other Indebtedness permitted by Section 8.2;


 


BB.                             Debt Ratings.  The Borrower
shall have received a prospective senior secured debt rating with the respect
to the Loans from each of S&P and Moody’s; and


 


CC.                             Other Matters.  All corporate
and other proceedings taken in connection with this Agreement at or prior to
the date of this Agreement, and all documents incident thereto will be
reasonably satisfactory in form and substance to the Administrative Agent; and
the Administrative Agent shall have received such other instruments and
documents as the Administrative Agent shall reasonably request in connection
with the execution of this Agreement, and all such instruments and documents
shall be reasonably satisfactory in form and substance to the Administrative
Agent.


 


13.2.                     Conditions Precedent to All Credit Events


 


The obligation of each
Lender to make Loans (including Loans made on the Effective Date) and the
obligation of any Facing Agent to issue or any Lender to participate in any
Letter of Credit hereunder in each case shall be subject to the fulfillment at
or prior to the time of each such Credit Event of each of the following
conditions:


 


A.                                   Representations and Warranties. 
The representations and warranties contained in this Agreement and the
other Loan Documents shall each be  true
and correct in all material respects at and as of such time, as though made on
and as of such time, except to the extent such representations and warranties
are expressly made as of a specified date in which event such representation
and warranties shall be true and correct as of such specified date;


 


B.                                     No Default.  No Event of
Default or Unmatured Event of Default shall have occurred and shall then be
continuing on such date or will occur after giving effect to such Credit Event;


 


C.                                     Notice of Borrowing; Notice of Issuance.


 


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(a)                                  Prior to the making of each Loan, the
Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 2.5.


 


(b)                                 Prior to the issuance of each Letter of
Credit, the Administrative Agent and the respective Facing Agent shall have
received a Notice of Issuance meeting the requirements of Section 2.9(b);


 


D.                                    Other Information.  The
Administrative Agent shall have received such other instruments, documents and
opinions as it may reasonably request in connection with such Credit Event, and
all such instruments and documents shall be reasonably satisfactory in form and
substance to the Administrative Agent.


 


The acceptance of the
benefits of each such Credit Event by the Borrower shall be deemed to
constitute a representation and warranty by it to the effect of paragraphs (a),
(b), (c) and (d) of this Section 5.2 (except that no
opinion need be expressed as to any Agent’s or Required Lenders’ satisfaction
with any document, instrument or other matter).


 


Each Lender hereby agrees
that by its execution and delivery of its signature page hereto and by the
funding of its Loan to be made on the Closing Date, such Lender approves of and
consents to each of the matters set forth in Section 5.1, and Section 5.2
which must be approved by, or which must be satisfactory to, the Agents or the
Required Lenders or Lenders, as the case may be; provided that, in the
case of any agreement or document which must be approved by, or which must be
satisfactory to, the Required Lenders, the Administrative Agent or the Borrower
shall have delivered a copy of such agreement or document to such Lender on or
prior to the Closing Date if requested.


 


13.3.                     Additional Conditions to All Credit
Events


 


In addition to the
conditions precedent set forth in Section 5.2, so long as any Revolving
Lender is an Impaired Lender, no Facing Agent will be required to issue any
Letter of Credit or to amend any outstanding Letter of Credit to increase the
Stated Amount thereof, alter the drawing terms thereunder or extend the expiry
date thereof, and the Swing Line Lender will not be required to make any Swing
Line Loan, unless the Administrative Agent, the Swing Line Lender or such
Facing Agent, as the case may be, is reasonably satisfied that any exposure
that would result therefrom is eliminated or fully covered by the Revolving
Commitments of the Non-Impaired Lenders or by Cash Collateralization or other
arrangement or a combination thereof satisfactory to the Borrower, the
Administrative Agent and the Swing Line Lender or such Facing Agent, as the
case may be.


 


13.4.                     Additional Conditions to Usage of
Revolving Commitments


 


In addition to the
conditions precedent set forth in Sections 5.2 and 5.3:


 


A.                                   if at the end of any Fiscal Quarter, (i) the
Assigned Dollar Value of all outstanding Revolving Loans and Swing Line Loans
is $0, (ii) outstanding LC Obligations have been Cash Collateralized in an
amount not less than 105% of the Stated Amount thereof and (iii) the
Borrower would not have been in compliance with Section 9.1 if
there had been a Revolving Loan of at least $1 outstanding on such date,  then (A) the Borrower shall not request
a 


 


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Borrowing for a
Revolving Loan  or a Swing Line Loan or,
except to the extent that the same shall be Cash Collateralized at 105% of the
Stated Amount thereof, request an issuance, increase or extension of a Letter
of Credit, until the date of delivery (the “Certificate Delivery Date”) to the
Administrative Agent of a certificate demonstrating compliance with Section 9.1
as of the last day of the next Fiscal Quarter for which the Borrower is in
compliance therewith and (B) the Borrower agrees that all such Cash
Collateralization shall remain in place until the Certificate Delivery Date;
and


 


B.                                     at any time from and after the Certificate Delivery
Date until the date of delivery to the Administrative Agent of a certificate
demonstrating compliance with Section 9.1 as of the last day of the next
Fiscal Quarter for which the Borrower is then in compliance with Section 9.1,
no Revolving Loan or Swing Line Loan may be made or requested and no Letter of
Credit may be issued, extended or increased or requested (except to the extent
that the same shall be Cash Collateralized in an amount not less than 105% of
the Stated Amount thereof), on any date, if the Senior Secured Leverage Ratio
as of such date, after giving effect to such Loan or issuance, extension or
increase, on a Pro Forma Basis, would exceed 3.75 to 1.00.


 


SECTION 14


 


REPRESENTATIONS
AND WARRANTIES


 


In order to induce the
Lenders to enter into this Agreement and to make the Loans, and issue (or
participate in) the Letters of Credit as provided herein, the Borrower makes
the following representations and warranties as of the Effective Date and as of
the date of each subsequent Credit Event, all of which shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans and issuance of the Letters of Credit:


 


14.1.                     Corporate Status


 


The Borrower and each of
its Subsidiaries (i) is a duly organized and validly existing corporation,
partnership or limited liability company or other entity in good standing under
the laws of the jurisdiction of its organization (or the equivalent thereof in
the case of Foreign Subsidiaries), (ii) has the requisite power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposed to engage in and (iii) is duly
qualified and is authorized to do business and is in good standing ((where
relevant) in (y) its jurisdiction of organization and (z) each other
jurisdiction where the ownership, leasing or operation of property or the
conduct of its business requires such qualification, authorization or good
standing, except (1) for such failure to be so qualified, authorized or in
good standing which, in the aggregate, would not have a Material Adverse Effect
and (2) as a result of any transaction expressly permitted under Section 8.3
hereof.


 


14.2.                     Corporate Power and Authority


 


The Borrower and each of
its Subsidiaries has the applicable power and authority to execute, deliver and
perform the terms and provisions of each of the Documents to which it is a
party and has taken all necessary corporate or other appropriate action to authorize
the execution, delivery and performance by it of each of such Documents.  As of the Effective Date 


 


100

















 


(or such later
date as a Document is to be executed and delivered in accordance with the terms
hereof) the Borrower and each of its Subsidiaries has duly executed and
delivered each of the Documents to which it is a party, and each of such
Documents constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws generally affecting creditors’ rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).


 


14.3.                     No Violation


 


Neither the execution,
delivery or performance by the Borrower and each of its Subsidiaries of the
Documents to which it is a party (including, without limitation, the granting
of Liens pursuant to the Security Documents, nor compliance by it with the
terms and provisions thereof, nor the consummation of the transactions
contemplated therein (i) will contravene any provision of any Requirement
of Law applicable to the Borrower or any of its Subsidiaries, (ii) will
conflict with or result in any breach of or constitute a tortious interference
with 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 (except pursuant to the Security Documents) upon any
of the property or assets of the Borrower or any of its Subsidiaries pursuant
to the terms of any material Contractual Obligation to which the Borrower or
any of its Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it may be subject, (iii) will violate any
provision of any Organizational Document of the Borrower or any of its
Subsidiaries or (iv) require any approval of stockholders or any approval
or consent of any Person (other than a Governmental Authority) except as have
been obtained on or prior to the Effective Date.


 


14.4.                     Governmental and Other Approvals


 


Except for the recording
of the Mortgages and filings (in respect of certain Security Documents) and
actions with appropriate Governmental Authorities which shall be recorded and
filed, respectively, on, or as soon as practicable after, the Closing Date, no
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with (except as have been obtained or made on or
prior to the Closing Date), or exemption by, any Governmental Authority, is
required to authorize, or is required in connection with, (i) the
execution, delivery and performance of any Document or (ii) the legality,
validity, binding effect or enforceability of any such Document.


 


14.5.                     Financial Statements; Financial
Condition; Undisclosed Liabilities; Projections; etc.


 


A.                                   Financial Statements  The balance
sheet of the Borrower at December 31, 2005 and 2006 and the statements of
income, cash flows and shareholders’ equity of Borrower for the Fiscal Years
ended December 31, 2004, 2005 and 2006 or other period ended on such
dates, as the case may be, fairly present in all material respects the financial
condition and results of operation and cash flows of Borrower and its
consolidated subsidiaries as of such dates and for such periods.  Copies of such statements have been furnished
to the Lenders prior to the 


 


101

















 


Effective Date and
have been examined by Deloitte & Touche LLP, independent certified
public accountants, who delivered an unqualified opinion in respect thereto.


 


B.                                     Solvency.  On and as of
the Effective Date, after giving effect to this Agreement and to all
Indebtedness (including the Loans) being incurred, and to be incurred (and the
use of proceeds thereof), and Liens created, and to be created, by the Borrower
and its Subsidiaries in connection with the transactions contemplated hereby, the
Borrower and each of its Material Subsidiaries are Solvent.


 


C.                                     No Undisclosed Liabilities. 
Except as fully reflected in the financial statements and the notes
related thereto delivered pursuant to Section 6.5(a) and set
forth on Schedule 6.5(c) there were, to the best of Borrower’s
knowledge, as of the Effective Date no liabilities or obligations other than in
the ordinary course of business consistent with past practices (with respect to
the Borrower and its Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) which, either
individually or in aggregate, would be material to the Borrower and its
Subsidiaries, taken as a whole.  As of
the Effective Date, the Borrower does not know of any basis for the assertion
against the Borrower or any of its Subsidiaries of any such liability or
obligation of any nature whatsoever that is not fully reflected in the
financial statements or the notes related thereto delivered pursuant to Section 6.5(a) or
set forth on Schedule 6.5(c) which, either individually or in the
aggregate, could be material to the Borrower and its Subsidiaries, taken as a
whole.


 


D.                                    Indebtedness.  Schedule
8.2(b)(ii) sets forth a true and complete list of all Indebtedness
(other than the Loans, the Letters of Credit and the Public Notes of the
Borrower and its Subsidiaries) as of the Effective Date, to the extent that, in
each case, such Indebtedness is in excess of $5,000,000 (provided, that the
aggregate principal amount of Indebtedness not so listed does not exceed the
Dollar Equivalent (as determined on the Effective Date) of $20,000,000), 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 obligor and any other entity which directly or indirectly guaranteed
such debt.  The Borrower has delivered or
caused to be delivered to the Administrative Agent a true and complete copy of
the form of each instrument evidencing Indebtedness for money borrowed listed
on Schedule 8.2(b)(ii) and of each instrument pursuant to which
such Indebtedness for money borrowed was issued, in each case, other than
Indebtedness of the type described in Section 8.2(b)(xiii).


 


E.                                      Projections/Budgets.  On and as of
the Effective Date, the financial projections, attached hereto as Schedule
6.5(e) and each of the budgets delivered after the Effective Date
pursuant to Section 7.2(e) (collectively, the “Projections”)
are, or will be at the time made, based on good faith estimates and assumptions
made by the management of the Borrower, and there are no statements or
conclusions in any of the Projections which, at the time made, are based upon
or include information known to the Borrower to be misleading in any material
respect or which fail to take into account material information known to
Borrower regarding the matters reported therein.  On and as of the Effective Date, the Borrower
believes that the Projections are reasonable and attainable, it being understood
that uncertainty is inherent in any forecast or projection and that no
assurance can be given that the results set forth in the Projections will
actually be attained or that the projections will be suitable or sufficient for
any purpose relevant to the Lenders.


 


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F.                                      No Material Adverse Change. 
As of the Effective Date and at any time thereafter, there has been no
material adverse change in the business, condition (financial or otherwise),
assets, liabilities or operations of the Borrower and its Subsidiaries (taken
as a whole) since December 31, 2006 based on the financial statements
delivered pursuant to Section 6.5(a).


 


14.6.                     Litigation


 


There are no actions,
suits or proceedings pending or, to the best knowledge of the Borrower or any
of its Subsidiaries, threatened in writing against the Borrower or any of its
Subsidiaries (i) with respect to any Loan Document or (ii) that are
reasonably likely to have a Material Adverse Effect.


 


14.7.                     Disclosure


 


All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf of
the Borrower or any of its Subsidiaries in writing to any Lender (including,
without limitation, all information contained in the Documents) (other than the
Projections as to which Section 6.5(e) applies, which fairly
discloses the matters therein in good faith) for purposes of or in connection
with this Agreement or any transaction contemplated herein is, and all other
such factual information (taken as a whole) hereafter furnished by or on behalf
of the Borrower or any of its Subsidiaries in writing to any Lender for
purposes of or in connection with this Agreement or any transaction
contemplated herein are and 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 fact necessary to make such information
(taken as a whole) not misleading in any material respect at such time in light
of the circumstances under which such information was provided. As of the
Effective Date, the Borrower has disclosed to the Lenders on or before the
Effective Date, all contractual, corporate or other restrictions to which the
Borrower or any of its Subsidiaries is or will be subject as of the Effective
Date, and all other matters known to any of them, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.


 


14.8.                     Use of Proceeds; Margin Regulations


 


A.                                   Term Loan Proceeds.  All proceeds
of the Additional Term Loans (as defined in the Third Amendment) incurred on
the Effective Date shall be used by the Borrower to repay in full all Existing
Term Loans (as defined in the Third Amendment) other than Converting Term Loans
(as defined in the Third Amendment).


 


B.                                     Revolving Loan Proceeds. All proceeds of the Revolving Loans incurred
hereunder shall be used by the Borrower for ongoing working capital needs and
general corporate purposes (other than to voluntarily prepay Term Loans).


 


C.                                     Swing Line Loans.  All proceeds
of the Swing Line Loans incurred hereunder shall be used by the Borrower for
ongoing working capital needs and general corporate purposes (other than to
voluntarily prepay Term Loans); provided, however, that no Swing
Line Loans may be requested by the Borrower on the Closing Date.


 


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D.                                    Margin Regulations.  No part of
the proceeds of any Loan will be used 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 Agreement to be
considered a “purpose credit” within the meaning of Regulation T, U or X of the
Board.


 


14.9.                     Tax Returns and Payments


 


The Borrower and each of
the its Subsidiaries have timely filed or caused to be filed all tax returns
which are required to be filed, except where failure to file any such returns
would not reasonably be expected to have a Material Adverse Effect, and have
paid or caused to be paid all taxes shown to be due and payable on said returns
or on any assessments made against them or any of their respective material
properties and all other material taxes, fees or other charges imposed on them
or any of their respective properties by any Governmental Authority (other than
those the amount or validity of which is contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the Borrower or any such Subsidiary, as the case
may be), except where failure to take any such action could not reasonably be
expected to have a Material Adverse Effect; and no tax liens have been filed
and no claims are being asserted with respect to any such taxes, fees or other
charges (other than such liens or claims, the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP (or prior to the Effective
Date, applicable accounting practice) have been provided) which could be
reasonably expected to have a Material Adverse Effect.


 


14.10.              Compliance With ERISA


 


A.                                   Each Plan has been operated and administered in a
manner so as not to result in any liability of the Borrower or any of its
Subsidiaries for failure to comply with the applicable provisions of ERISA and
the Code in excess of $50,000,000; no Reportable Event which could reasonably
be expected to result in the termination of any Plan has occurred with respect
to a Plan; to the best knowledge of the Borrower, no Multiemployer Plan is
insolvent or in reorganization; no Plan has an accumulated or waived funding
deficiency, has permitted decreases in its funding standard account or has
applied for an extension of any amortization period within the meaning of Section 412
of the Code; neither the Borrower nor any of its  Subsidiaries nor any ERISA Affiliate has
incurred any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code in excess of $50,000,000; no proceedings have been
instituted to terminate any Plan; using actuarial assumptions and computation
methods consistent with subpart 1 of Subtitle E of Title IV of ERISA, the
Borrower and its Subsidiaries and its ERISA Affiliates would not have any
liability to all Multiemployer Plans in the event of a complete withdrawal
therefrom, as of the close of the most recent Fiscal Year of each such Plan
ending prior to the date of any Credit Event in excess of $50,000,000; no Lien
imposed under the Code or ERISA on the assets of the Borrower or any of its
Subsidiaries or any ERISA Affiliate exists or is likely to arise on account of
any Plan; and the Borrower and its Subsidiaries do not maintain 


 


104

















 


or contribute to
any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) which provides benefits to retired employees (other than as required by Section 601
of ERISA) or any employee pension benefit plan (as defined in Section 3(2) of
ERISA), the ongoing annual obligations with respect to either of which could
reasonably be expected to have a Material Adverse Effect.


 


B.                                     (i) Each Foreign Pension Plan is in compliance
and in good standing (to the extent such concept exists in the relevant
jurisdiction) in all respects with all laws, regulations and rules applicable
thereto, including all funding requirements, and the respective requirements of
the governing documents for such Foreign Pension Plan, except for such failures
that individually or in the aggregate could neither (A) result in
liabilities in excess of $50,000,000 nor (B) reasonably be expected to
result in a Material Adverse Effect; (ii) with respect to each Foreign
Pension Plan maintained or contributed to by the Borrower or any Subsidiary, (x) that
is required by applicable law to be funded in a trust or other funding vehicle
is in material compliance with applicable law regarding funding requirements,
except for such failures that individually or in the aggregate could neither (A) result
in liabilities in excess of $50,000,000 nor (B) reasonably be expected to
result in a Material Adverse Effect, and (y) that is not required by
applicable law to be funded in a trust or other funding vehicle, reasonable
book reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction
in which such Foreign Pension Plan is maintained; (iii) all material
contributions required to have been made by the Borrower or any Subsidiary to
any Foreign Pension Plan, except for such failures that individually or in the
aggregate could neither (A) result in liabilities in excess of $50,000,000
nor (B) reasonably be expected to result in a Material Adverse Effect have
been made within the time required by law or by the terms of such Foreign
Pension Plan; and (iv) to the knowledge of the Borrower and its
Subsidiaries, no actions or proceedings have been taken or instituted to
terminate or wind-up a Foreign Pension Plan with respect to which the Borrower
and its Subsidiaries taken as a whole could have any liability, except for such
failures that individually or in the aggregate could neither (A) result in
liabilities in excess of $50,000,000 nor (B) reasonably be expected to
result in a Material Adverse Effect.


 


14.11.              Ownership of Property


 


The Borrower and each of
its Subsidiaries has good and marketable title or, with respect to real
property, valid fee simple title (or in each case, the relevant foreign
equivalent, if any) to, or a subsisting leasehold interest in, or a valid
contractual agreement or other valid right to use, all  such Person’s material real property, and
good title (or relevant foreign equivalent) to, a valid leasehold interest in,
or valid contractual rights or other valid right to (or an agreement for the
acquisition of same) use all such Person’s other material property (but
excluding Intellectual Property), and, in each case, none of such property is
subject to any Lien except for Permitted Liens. 
Neither this Agreement nor any other Documents, nor any transaction
contemplated under any such agreement, will affect any right, title or interest
of the Borrower or any of its Subsidiaries in and to any of the assets of the
Borrower or any such Subsidiary in a manner that would have or is reasonably
likely to have a Material Adverse Effect. 
As of the Closing Date, the Borrower and its Domestic Subsidiaries have
granted Mortgages to secure the Obligations on all parcels of real estate
identified on Schedule 6.21(c) as Mortgaged Properties.


 


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14.12.              Capitalization of the Borrower


 


On the Effective Date,
the capitalization of the Borrower will be as set forth on Schedule 6.12(a) hereto.
The Capital Stock of the Borrower has been duly authorized and validly
issued.  Except as set forth on Schedule
6.12(a), no authorized but unissued or treasury shares of Capital Stock of
the Borrower are subject to any option, warrant, right to call or commitment of
any kind or character.  A complete and
correct copy of the limited liability company agreement of the Borrower in
effect on the Effective Date has been delivered to the Administrative Agent.  Except as set forth on Schedule 6.12(a),
the Borrower does not have any outstanding stock or securities convertible into
or exchangeable for any shares of its Capital Stock, or any rights issued to
any Person (either  preemptive or other)
to subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims or any character relating to any of its Capital
Stock or any stock or securities convertible into or exchangeable for any of
its Capital Stock.  Neither the Borrower
nor any of its Subsidiaries is subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any shares of its
Capital Stock or any convertible securities, rights or options of the type
described in the preceding sentence.  As
of the Effective Date, all of the issued and outstanding shares of Capital
Stock of the Borrower are owned of record by the stockholders as set forth on Schedule
6.12(a) hereto.


 


14.13.              Subsidiaries


 


A.                                   Organization.  Schedule
6.13 sets forth as of the Effective Date a true, complete and correct list
of each Subsidiary of the Borrower and indicates for each such Subsidiary (i) its
jurisdiction of organization and (ii) its ownership (by holder and
percentage interest).  The Borrower has
no Subsidiaries except for Subsidiaries permitted to be created pursuant to
this Agreement, and those Subsidiaries listed as on Schedule 6.13.


 


B.                                     Capitalization.  As of the
Effective Date, all of the issued and outstanding Capital Stock of each
Subsidiary of the Borrower has been duly authorized and validly issued, and, to
the extent applicable in the case of Foreign Subsidiaries, is fully paid and
non-assessable and is owned as set forth on Schedule 6.13, free and
clear of all Liens except for Permitted Liens. No authorized but unissued or
treasury shares of Capital Stock of any Subsidiary of the Borrower are subject
to any option, warrant, right to call or commitment of any kind or character
except as set forth on Schedule 6.13. 
On and after the relevant date of formation, the Borrower directly owns
100% of the Capital Stock of each Receivables Subsidiary owned directly by the
Borrower, and the Borrower has pledged (and delivered for pledge) the Capital
Stock of each such Receivables Subsidiary (and any promissory notes received
by  the Borrower or any other Credit
Party from such Receivables Subsidiary) to the Collateral Agent pursuant to the
Collateral Security Agreement.


 


C.                                     Restrictions on or Relating to Subsidiaries. 
There does not exist any consensual encumbrance or restriction on the
ability of (i) any Subsidiary of the Borrower to pay dividends or make any
other distributions on its Capital Stock or any other interest or participation
in its profits owned by the Borrower or any Subsidiary of the Borrower, or to
pay any Indebtedness owed to the Borrower or a Subsidiary of the Borrower, (ii) any
Subsidiary of the Borrower to make loans or advances to the Borrower or any of
the Borrower’s Subsidiaries or 


 


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(iii) the
Borrower or any of its Subsidiaries to transfer any of its properties or assets
to the Borrower or any of its Subsidiaries, except, in each case, for such
encumbrances or restrictions permitted under Section 8.5.


 


14.14.              Compliance With Law, Etc.


 


Neither the Borrower nor
any of its Subsidiaries is in default under or in violation of any Requirement
of Law or material Contractual Obligation or under its Organizational
Documents, as the case may be, in each case the consequences of which default
or violation, either in any one case or in the aggregate, would have a Material
Adverse Effect.


 


14.15.              Investment Company Act


 


Neither the Borrower nor
any of its Subsidiaries is an “investment company” or a company “controlled” by
an “investment company”, within the meaning of the Investment Company Act of
1940, as amended.


 


14.16.              Subordination Provisions


 


The subordination
provisions contained in the Senior Subordinated Note (2013) Documents, the
Senior Subordinated Note (2014) Documents and the Senior Subordinated Note
(2015) Documents are enforceable against the issuer of the respective security
and the holders thereof, and the Loans and all other Obligations entitled to
the benefits of any Loan Document and any related guaranty are within the
definitions of “Senior Indebtedness” included in such provisions.


 


14.17.              Environmental Matters


 


(i) The operations
of and the real property owned or operated by the Borrower and each of its
Subsidiaries are in compliance with all applicable Environmental Laws except
where the failure to be in compliance, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect; (ii) the
Borrower and each of its Subsidiaries has obtained and will continue to maintain
all Environmental Permits, and all such Environmental Permits are in good
standing and the Borrower and its Subsidiaries are in compliance with all terms
and conditions of such Environmental Permits, except where failure to so
obtain, maintain or comply, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect; (iii) neither
the Borrower nor any of its Subsidiaries nor any of their present or past
properties or operations (whether owned or leased) is subject to: (A) any
Environmental Claim or other written claim, request for information, judgment,
order, decree or agreement from or with any Governmental Authority or private
party related to any material violation of or material non-compliance with
Environmental Laws or Environmental Permits to the extent any of the foregoing
could reasonably be expected to have a Material Adverse Effect, (B) any
pending or, to the knowledge of the Borrower, threatened judicial or
administrative proceeding, action, suit or investigation related to any
Environmental Laws or Environmental Permits which could reasonably be expected
to have a Material Adverse Effect, (C) any Remedial Action which if not
taken could reasonably be expected to have a Material Adverse Effect or (D) any
liabilities, obligations or costs arising from the Release or substantial
threat of a material Release of a Contaminant into the environment where such
Release or substantial threat of a material 


 


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Release could
reasonably be expected to have a Material Adverse Effect; (iv) neither the
Borrower nor any of its Subsidiaries has received any written notice or claim
to the effect that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the Release or substantial threat of a material
Release of  a Contaminant into the
environment, which notice or claim could reasonably be expected to result in a
Material Adverse Effect, and (v) no Environmental Lien has attached to any
property (whether owned or leased) of the Borrower or of any of its
Subsidiaries which could, if determined adversely to Borrower or any of its
Subsidiaries, reasonably be expected to have a Material Adverse Effect, nor are
there any facts or circumstances currently known to the Borrower or any of its
Subsidiaries that may reasonably be expected to give rise to such an
Environmental Lien.


 


14.18.              Labor Relations


 


Neither the Borrower nor
any of its Material Subsidiaries is engaged in any unfair labor practice that
could reasonably be expected to have a Material Adverse Effect.  Except to the extent that the same could not
reasonably be expected to result in a Material Adverse Effect, there is (i) no
significant unfair labor practice complaint pending against the Borrower or any
of its Subsidiaries or, to the best knowledge of the Borrower, threatened
against any of them before the National Labor Relations Board or appropriate
national court or other forum, and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Borrower or any of its Subsidiaries or, to
the best knowledge of the Borrower, threatened against any of them and (ii) no
significant strike, labor dispute, slowdown or stoppage is pending against
the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries.


 


14.19.              Intellectual Property, Licenses, Franchises and
Formulas


 


Each of the Borrower and
its Subsidiaries owns or holds licenses or other rights to or under all of the
patents, patent applications, trademarks, service marks, trademark and service
mark registrations and applications therefor, trade names, copyrights,
copyright registrations and applications therefor, trade secrets, proprietary
information, computer programs or data bases (collectively, “Intellectual
Property”) except where the failure to own or hold such Intellectual
Property could not reasonably be expected to result in a Material Adverse
Effect, and has obtained assignments of all franchises, licenses and other
rights of whatever nature, regarding Intellectual Property necessary for the
present conduct of its business, without any known conflict with the rights of others,
except such conflicts which could not reasonably be expected to have a Material
Adverse Effect.  Neither the Borrower nor
any of its Subsidiaries has knowledge of any existing or threatened claim by
any Person contesting the validity, enforceability, use or ownership of the
Intellectual Property which could reasonably be expected to have a Material
Adverse Effect, or of any existing state of facts that would support a claim
that use by the Borrower or any of its Subsidiaries of any such Intellectual
Property has infringed or otherwise violated any proprietary rights of any
other Person which could reasonably be expected to have a Material Adverse
Effect.


 


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14.20.              Certain Fees


 


No broker’s or finder’s
fees or commissions or any similar fees or commissions will be payable by the
Borrower, the Borrower or any of its Subsidiaries with respect to the
incurrence and maintenance of the Obligations, any other transaction
contemplated by the Documents or any 
services rendered in connection with such transactions.


 


14.21.              Security Documents


 


A.                                   Security Agreement Collateral. 
The provisions of the Security Documents upon execution and delivery
thereof are effective to create in favor of the Collateral Agent or, as the
case may be, the UK Security Trustee for the benefit of the Secured Parties, a
legal, valid and enforceable security interest in all right, title and interest
of the applicable Credit Party in the Collateral (other than the Collateral
described in the Mortgages) owned by such Credit Party, and the Collateral
Security Agreement, the Intercreditor Agreement, the Pledge Agreement and the
UK Security Documents, together with the filings of Form UCC-1 (or other
similar filing, if any) in all relevant jurisdictions and delivery of all
possessory collateral create a first lien on, and security interest in (or
similar interest in respect of), all right, title and interest of the Borrower
and such Credit Parties in all of the Collateral described therein, subject to
no other Liens other than Permitted Liens. 
Except for titled vehicles, vessels and other collateral which may not
be perfected through the filing of financing statements under the Uniform
Commercial Code (or similar applicable law) of the appropriate jurisdiction (or
similar filings in each relevant jurisdiction) and which have an aggregate fair
market value of less than $5,000,000, and except for patents, trademarks, trade
names and copyrights to the extent perfection would require filing in any
foreign jurisdiction, all such Liens are perfected Liens (or similar legal
status).  The recordation in the United
States Patent and Trademark Office and in the United States Copyright Office of
assignments for security made pursuant to the Collateral Security Agreement
will be effective, under Federal law, to perfect the security interest granted
to the Collateral Agent for the benefit of the Secured Parties in the
trademarks, patents and copyrights covered by such the Collateral Security
Agreement.  The recordation with the
United States Surface Transportation Board of assignments for security made
pursuant to the Security Agreement will be effective under Federal law, to create
a valid first lien in favor of the Collateral Agent in the railcars covered by
the Collateral Security Agreement


 


B.                                     Pledged Securities.  The security
interests created in favor of the Collateral Agent, as pledgee for the benefit
of the Secured Parties under the Collateral Security Agreement and the Pledge
Agreement, constitute perfected security interests in the Pledged Securities,
if any, subject to no security interests of any other Person except for the
Liens granted under or pursuant to the Collateral Security Agreement and except
for Liens of the types described in clauses (i) and (vi) of the
definition of “Customary Permitted Liens”.  No filings or recordings are required in
order to perfect the security interests created in the Pledged Securities under
the Collateral Security Agreement other than with respect to filings required
by applicable foreign law and UCC financing statements with respect to
uncertificated Pledged Securities.


 


C.                                     Real Estate Collateral.  The Mortgages
create, as security for the obligations purported to be secured thereby, a
valid and enforceable (and upon the due recording thereof under applicable law)
perfected security interest in and Lien on all of the Mortgaged 


 


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Property
(including, without limitation, all fixtures and improvements relating to such
Mortgaged Property and affixed or added thereto on or after the Closing Date)
in favor of the Collateral Agent (or such other agent or trustee as may be
named therein) for the benefit of the Secured Parties, superior to and prior to
the rights of all third Persons (except that the security interest created in
the Mortgaged Property may be subject to the Permitted Liens related
thereto).  As of the Effective Date, Schedule
6.21(c) contains a true and complete list of each parcel of real
property owned or leased by the Borrower and its Subsidiaries in the United
States, the United Kingdom or other jurisdiction in which a material plant is
located and the type of interest therein held by the Borrower or such Subsidiary
and indicates for each such parcel whether it is a Mortgaged Property.  The Borrower or a Subsidiary of the Borrower
has good and marketable title to all Mortgaged Property free and clear of all
Liens except those described in the first sentence of this Section 6.21(c).


 


14.22.              Anti-Terrorism Law


 


A.                                   Neither Borrower nor, to the knowledge of Borrower,
any 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 (as
amended) (the “Patriot Act”).


 


B.                                     Neither Borrower nor, to the actual knowledge of a
Responsible Officer of the Borrower, any Affiliate or broker or other agent of
Borrower is, acting or benefiting in any capacity in connection with any Loans
hereunder is any of the following:


 


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


 


(b)                                 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;


 


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


 


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


 


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


 


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SECTION 15


 


AFFIRMATIVE
COVENANTS


 


The Borrower hereby
agrees that, so long as any of the Commitments remain in effect, or any Loan or
LC Obligation remains outstanding and unpaid or any other amount is owing to
any Lender or the Administrative Agent hereunder, the Borrower shall:


 


15.1.                     Financial Statements


 


Furnish, or cause to be
furnished, to each Lender:


 


A.                                   Quarterly Financial Statements.  As soon as available, but in any
event not later than 45 days (or in the event that a request for an extension
of the required filing date for the Form 10-Q with the SEC of any Person
whose consolidated financial statements include the financial results of the
Borrower has been timely filed, the last day of such requested extension
period, but in no event later than 55 days) after the end of each of the first
three quarterly periods of each Fiscal Year of Borrower, (i) the unaudited
consolidated balance sheet of Borrower and its consolidated Subsidiaries as at
the end of such quarter setting forth in comparative form the audited balance
sheet of the Borrower and its consolidated Subsidiaries for the prior Fiscal
Year, (ii) the related unaudited consolidated statement of income of the
Borrower and its consolidated Subsidiaries as at the end of such quarter and
for the portion of the Fiscal Year through the end of such quarter setting
forth in comparative form the figures for the related periods in the prior
Fiscal Year and (iii) the related unaudited consolidated statements of
cash flow of Borrower and its consolidated Subsidiaries for the portion of the
Fiscal Year through the end of such quarter, and setting forth in comparative
form figures for the related period in the prior Fiscal Year, all of which
shall be certified by a Responsible Financial Officer of Borrower, subject to
normal year-end audit adjustments; and


 


B.                                     Annual Financial Statements.  As soon as available, but in any
event within 90 days (or in the event that a request for an extension of the
required filing date for the Form 10-K with the SEC of any Person whose
consolidated financial statements include the financial results of the Borrower
has been timely filed, the last day of such requested extension period, but in
no event later than 105 days) after the end of each Fiscal Year of Borrower, a
copy of the consolidating and consolidated balance sheet of Borrower and its
consolidated Subsidiaries as at the end of such year and the related
consolidating and consolidated statements of income and of cash flows for such
year, and setting forth in each case in comparative form the figures for the
previous year and such consolidated statements shall be accompanied by a
balance sheet as of such date, and a statement of income and cash flows for
such period, reflecting on a combined basis, for Subsidiaries and on a combined
basis for Unrestricted Subsidiaries, the consolidating entries for each of such
types of Subsidiaries; all such financial statements shall be complete and
correct in all material respects and shall be prepared in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by the accountants preparing such statements or the
Responsible Financial Officer, as the case may be, and disclosed therein) and,
in the case of the consolidated financial statements referred to in this Section 7.1(b),
accompanied by a report thereon of Deloitte & Touche LLP or such other
independent certified public accountants of recognized national standing, which
report 


 


111

















 


shall contain no “going
concern” or like qualification or exception or any qualification and shall
state that such financial statements present fairly the financial position of
Borrower and its Subsidiaries as at the dates indicated and the results of
their operations and cash flow for the periods indicated in conformity with
GAAP.


 


C.                                     Delivery.  Information
or documents required to be delivered pursuant to Section 7.1(a),  Section 7.1(b) or Section 7.2(f) shall
be deemed to have been delivered on the date on which such information or
document is actually available for review by the Lenders and either (i) has
been posted by the Borrower on the Borrower’s website at
http://www.huntsman.com or at http://www.sec.gov or (ii) has been posted
on the Borrower’s behalf on Intralinks/IntraAgency.  At the request of the Administrative Agent,
the Borrower will provide by electronic mail electronic versions (i.e., soft
copies) of all documents containing such information.


 


15.2.                     Certificates; Other Information


 


Furnish to the
Administrative Agent for distribution to each Lender (or, if specified below,
to the Administrative Agent):


 


A.                                   Accountant’s Certificates. 
Concurrently with the delivery of the financial statements referred to
in Section 7.1(b), to the extent not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, a
certificate from Deloitte & Touche or other independent certified
public accountants of nationally recognized standing, stating that, in the
course of their annual audit of the books and records of the Borrower, no Event
of Default or Unmatured Event of Default with respect to Articles VII, VIII
and IX, insofar as they relate to accounting and financial matters, has
come to their attention which was continuing at the end of such Fiscal Year or
on the date of their certificate, or if such an Event of Default or Unmatured
Event of Default has come to their attention, the certificate shall indicate
the nature of such Event of Default or Unmatured Event of Default;


 


B.                                     Officer’s Certificates.  Concurrently
with the delivery of the financial statements referred to in Sections 7.1(a) and 7.1(b),  a certificate of a Responsible Financial Officer
substantially in the form of Exhibit 7.2(b) (a “Compliance
Certificate”) stating that, to the best of such officer’s knowledge, (i) such
financial statements present fairly, in accordance with GAAP, the financial
condition and results of operations of the Borrower and its Subsidiaries for
the period referred to therein (subject, in the case of interim statements, to
normal recurring adjustments) and (ii) no Event of Default or Unmatured
Event of Default has occurred, except as specified in such certificate and, if
so specified, the action which the Borrower proposes to take with respect
thereto, which certificate shall set forth detailed computations to the extent
necessary to establish the Borrower’s compliance with the covenants set forth
in Article IX of this Agreement;


 


C.                                     Audit Reports and Statements. 
Promptly following the Borrower’s receipt thereof, copies of all
consolidated financial or other consolidated reports or statements, if any,
submitted to the Borrower or any of its Subsidiaries by independent public
accountants relating to any  annual or
interim audit of the books of the Borrower or any of its Subsidiaries;


 


112

















 


D.                                    Management Letters.  Promptly
after receipt thereof, a copy of any “management letter” received by Huntsman
Corporation (to the extent such “management letter” pertains to the Borrower),
the Borrower or any of its Subsidiaries from its certified public accountants;


 


E.                                      Budgets.  As soon as
available and in any event within sixty (60) days following the first day of
each Fiscal Year of the Borrower (i) an annual budget in form satisfactory
to the Administrative Agent (including budgeted statements of earnings and cash
flows but not including segment data) prepared by the Borrower for such Fiscal
Year, which shall be accompanied by the statement of a Responsible Financial
Officer of the Borrower to the effect that, to the best of his knowledge at the
time made, such budget is a reasonable estimate for the periods covered
thereby;


 


F.                                      Public Filings.  Within 10
days after the same become public, copies of all financial statements and
reports which Huntsman Corporation or the Borrower may make to, or file with
the SEC or any successor or analogous Governmental Authority;


 


G.                                     Insurance Information.  The Borrower
shall deliver to the Administrative Agent information concerning insurance at
the times and in the manner specified in Section 7.8;


 


H.                                    USA Patriot Act.  Each Lender
subject to the Patriot Act hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
to identify the Borrower in accordance with the Patriot Act; and


 


I.                                         Other Requested Information. 
Such other information respecting the respective properties, business
affairs, financial condition and/or operations of the Borrower or any of its
Subsidiaries as the Administrative Agent or any Lender (through the
Administrative Agent) may from time to time reasonably request.


 


15.3.                     Notices


 


Promptly and in any event
within five Business Days in the case of clauses (a), (d) and
(e) below, 30 days in the case of clauses (b) and
(c) below, or one Business Day in the case of clause (f) below
after a Responsible Officer of the Borrower or of any of its Subsidiaries
obtains knowledge thereof, give written notice to the Administrative Agent
(which shall promptly provide a copy of such notice to each Lender) of:


 


A.                                   Event of Default or Unmatured Event of Default. 
The occurrence of any Event of Default or Unmatured Event of Default,
accompanied by a statement of a Responsible Financial Officer setting forth
details of the occurrence referred to therein and stating what action the
Borrower  proposes to take with respect
thereto.


 


B.                                     Litigation and Related Matters. 
The commencement of, or any material development in, any action, suit,
proceeding or investigation affecting the Borrower or any of its Subsidiaries
or any of their respective properties before any arbitrator or Governmental
Authority, (i) in which the amount involved that the Borrower reasonably determines
is not 


 


113

















 


covered by
insurance or other indemnity arrangement is $50,000,000 or more, (ii) with
respect to any Document or any material Indebtedness or preferred stock of the
Borrower or any of its Subsidiaries or (iii) which, if determined
adversely to the Borrower or any of its Subsidiaries, could reasonably be
expected to have a Material Adverse Effect.


 


C.                                     Environmental.


 


(a)                                  The occurrence of one or more of the following, to the
extent that any of the following, if adversely determined, would have a
Material Adverse Effect or, in any event, could reasonably be expected to
result in liability to the Borrower or any of its Subsidiaries in excess of
$50,000,000: (A) written notice, claim or request for information to the
effect that  the Borrower  or any of its Subsidiaries is or may be
liable in any material respect to any Person as a result of the presence of or
the Release or substantial threat of a material Release of any Contaminant into
the environment; (B) written notice that the Borrower or any of its
Subsidiaries is subject to investigation by any Governmental Authority
evaluating whether any Remedial Action is needed to respond to the presence or
to the Release or substantial threat of a material Release of any Contaminant
into the environment; (C) written notice that any property, whether owned
or leased by, or operated on behalf of, the Borrower or its Subsidiaries is
subject to a material Environmental Lien; (D) written notice of violation
to the Borrower or any of its Subsidiaries of any Environmental Laws or
Environmental Permits, or (E) commencement or written threat of any
judicial or administrative proceeding alleging a violation of any Environmental
Laws or Environmental Permits; provided, however, that the
provisions of this clause (i) shall not require the Borrower to
violate or breach any confidentiality covenants to which it is bound.


 


(b)                                 Upon written request by the Administrative Agent, the
Borrower shall promptly submit to the Administrative Agent and the Lenders a
report providing an update of the status of each environmental, health or
safety compliance, hazard or liability issue identified in any notice or report
required pursuant to clause (i) above and any other environmental,
health and safety compliance obligation, remedial obligation or liability that
could reasonably be expected to have a Material Adverse Effect.  All such notices shall describe in reasonable
detail the nature of the claim, investigation, condition, occurrence or
Remedial Action and the Borrower’s or such Subsidiary’s response thereto.


 


D.                                    Notice of Change of Control. 
Each occasion that any Change of Control shall occur and such notice
shall set forth in reasonable detail the particulars of each such occasion.


 


E.                                      Notices under Transaction Documents. 
Promptly following the receipt or delivery thereof, copies of any
material demands, notices or documents received or delivered by the Borrower or
any Subsidiary of the Borrower outside of the ordinary course of business under
or pursuant to any Public Note Document, any Organizational Document of the
Borrower, any material joint venture agreement and any other material agreement
from time to time identified by the Administrative Agent (provided, that the foregoing
shall apply to material demands, notices or documents under the Limited
Liability Company Agreement of the Borrower, only to the extent required under
applicable law to be delivered to the members of the Borrower, as the case may
be, in their capacity as members).


 


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F.                                      UK Insolvency Proceedings. A meaningful threat of or notice in
respect of any insolvency proceeding involving any Foreign Subsidiary
incorporated under the laws of England and Wales.


 


15.4.                     Conduct of Business and Maintenance of
Existence


 


Continue to engage in
business of the same general type as now conducted by it and preserve, renew
and keep in full force and effect its and each Subsidiary’s organizational
existence and take all reasonable action to maintain all rights, privileges and
franchises material to its and those of each of its Subsidiaries’ businesses
except to the extent that failure to take any such action could not in the
aggregate reasonably be expected to have a Material Adverse Effect or as
otherwise permitted pursuant to Sections 8.3 and comply and cause each
of its Subsidiaries to comply with all Requirements of Law except to the extent
that failure to comply therewith would not in the aggregate reasonably be expected
to have a Material Adverse Effect.


 


15.5.                     Payment of Obligations


 


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)                                  all material 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


 


(b)                                 all lawful claims prior to the time they become a Lien
(other than Permitted Liens) upon any of their respective properties or assets;
provided, however, that, in the case of both clauses (i) and
(ii), neither the Borrower nor any of its Subsidiaries shall be required to pay
or discharge any such material 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 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 could not reasonably be expected to have  Material Adverse Effect.


 


15.6.                     Inspection of Property, Books and Records


 


Keep, or cause to be
kept, and cause each of its Subsidiaries to keep or cause to be kept, adequate
records and books of account, in which complete entries are to be made
reflecting its and their business and financial transactions, such entries to
be made in accordance with sound accounting principles consistently applied and
permit, and cause each of its Subsidiaries to permit, any Lender or its
respective representatives, at any reasonable time, and from time to time, upon
reasonable request made to the Borrower by such Lender and upon reasonable
notice during normal business hours, to visit and inspect its and their
respective properties, to examine and make copies of and take abstracts from
its and their respective records and books of account, and to discuss its and
their respective affairs, finances and accounts with its and their respective
principal officers, directors and with the written consent of the Borrower
(which consent shall 


 


115

















 


not be required if
any Event of Default has occurred and is continuing), independent public
accountants, provided that the Borrower may attend any such meetings (and by
this provision the Borrower authorizes such accountants to discuss with the
Lenders and such representatives the affairs, finances and accounts of the
Borrower and its Subsidiaries).


 


15.7.                     ERISA


 


(a) (i) As soon
as practicable and in any event within ten (10) days after the Borrower or
any of its Subsidiaries or ERISA Affiliates knows or has reason to know that a
Reportable Event has occurred with respect to any Plan, deliver, or cause such
Subsidiary or ERISA Affiliate to deliver, to the Administrative Agent a
certificate of a Responsible Officer of the Borrower or such Subsidiary or
ERISA Affiliate, as the case may be, setting forth the details of such
Reportable Event and the action, if any, which the Borrower or such Subsidiary
or ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given; (ii) upon the request of any Lender made
from time to time, deliver, or cause each Subsidiary or ERISA Affiliate to
deliver, to each Lender a copy of the most recent actuarial report and annual
report completed with respect to any Plan; (iii) as soon as possible and
in any event within ten (10) days after the Borrower or any of its
Subsidiaries or ERISA Affiliates knows or has reason to know that any of the
following have occurred or is reasonably likely to occur with respect to any
Plan:  (A) such Plan has been
terminated, reorganized, petitioned or declared insolvent under Title IV of
ERISA, (B) the Plan Sponsor intends to terminate such Plan under Section 4041(b) or
(c), (C) the PBGC has instituted or will institute proceedings under Section 515
of ERISA to collect a delinquent contribution to such Plan or under Section 4042
of ERISA to terminate such Plan, (D) that an accumulated funding
deficiency has been incurred or that an application has been made to the
Secretary of the Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code, or (E) that the
Borrower, or any Subsidiary of the Borrower or any ERISA Affiliate will incur
any material liability (including, but not limited to, contingent or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 401(a)(29), 4971 or 4975 of the Code or Section 409 or
502(1) of ERISA, deliver, or cause such Subsidiary or ERISA Affiliate to
deliver, to the Administrative Agent a written notice thereof; and (iv) as
soon as possible and in any event within thirty (30) days after the Borrower or
any of its Subsidiaries or ERISA Affiliates knows or has reason to know that
any of them has caused a complete withdrawal or partial withdrawal (within the
meaning of Sections 4203 and 4205, respectively, of ERISA) from any
Multiemployer Plan, deliver, or cause such Subsidiary or ERISA Affiliate to
deliver, to the Administrative Agent a written notice thereof.  For purposes of this Section 7.7,
the Borrower shall be deemed to have knowledge of all facts known by the Plan
Administrator of any Plan of which the Borrower is the Plan Sponsor, and each
Subsidiary and ERISA Affiliate of the Borrower shall be deemed to have
knowledge of all facts known by the Plan Administrator of any Plan of which
such Subsidiary or ERISA Affiliate, respectively, is a Plan Sponsor.  In addition to its other obligations set
forth in this Article VII, the Borrower shall, and shall cause each
of its Subsidiaries and ERISA Affiliates to:


 


(i)                                     provide the Administrative Agent with
prompt written notice, with respect to any Plan, of any failure to satisfy the
minimum funding standard requirements of Section 412 of the Code;


 


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(ii)                                  furnish to the Administrative Agent,
promptly after delivery of the same to the PBGC, a copy of any delinquency
notice pursuant to Section 412(n)(4) of the Code;


 


(iii)                               correct any such failure to satisfy funding
requirements or delinquency referred to in the foregoing clauses (A) and (B) within
ninety (90) days after the occurrence thereof, except where the failure to so
satisfy would not reasonably be expected to have a Material Adverse Effect;


 


(iv)                              comply in good faith in all material
respects with the requirements set forth in Section 4980B of the Code and
with Sections 601(a) and 606 of ERISA;


 


(v)                                 at the request of any Lender, deliver to
such Lender (and a copy to the Administrative Agent) a complete copy of the
most recent annual report (Form 5500) of each Plan required to be filed
with the Internal Revenue Service; and


 


(vi)                              at the request of any Lender, deliver to
such Lender (and a copy to the Administrative Agent) copies of the most recent
annual reports received by the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate with respect to any Plan or Foreign Pension Plan no later
than ten (10) days after the date of such request.


 


B.                                     The Borrower shall, and shall cause each of its
Subsidiaries to, establish, maintain and operate all Foreign Pension Plans in
compliance in all respects with all laws, regulations and rules applicable
thereto and the respective requirements of the governing documents for such
Plans, except for such failures that individually or in the aggregate could neither
(i) result in liabilities in excess of $50,000,000 nor (ii) reasonably
be expected to result in a Material Adverse Effect.


 


15.8.                     Maintenance of Property, Insurance


 


(i) Except to the
extent that the failure to do so could not, in any case, reasonably be expected
to result in a Material Adverse Effect, keep, and cause each of its
Subsidiaries to keep, all property (including, but not limited to, equipment)
useful and necessary for its business in good working order and condition,
normal wear and tear and damage by casualty excepted, subject to Section 8.3,
(ii) maintain, and shall cause each of its Subsidiaries to maintain, with
financially sound and reputable insurers, insurance with respect to its
material properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons. 
Such insurance shall be maintained with financially sound and reputable
insurers, except that a portion of such insurance program (not to exceed that
which is customary in the case of companies engaged in the same or similar
business or having similar properties similarly situated) may be effected through
self-insurance, provided adequate reserves therefor, in accordance with GAAP,
are maintained. All material insurance policies or certificates (or certified
copies thereof) with respect to such insurance and any other 


 


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insurance policies
to the extent requested by the Administrative Agent (A) shall be endorsed
to the Administrative Agent’s reasonable satisfaction for the benefit of the
Collateral Agent for the benefit of the Secured Parties (including, without
limitation, by naming the Collateral Agent as loss payee or additional insured,
as appropriate); and (B) shall state that such insurance policy shall not
be canceled or revised without thirty days’ prior written notice thereof by the
insurer to the Administrative Agent and (iii) furnish to the
Administrative Agent, on the Closing Date and on the date of delivery of each
annual financial statement, full information as to the insurance carried.  At any time that insurance at levels
described in Schedule 7.8 is not being maintained by or on behalf of the
Borrower or any of its Subsidiaries, the Borrower will notify the Lenders in
writing within two Business Days thereof and, if thereafter notified by the
Administrative Agent or the Required Lenders to do so, the Borrower or any such
Subsidiary, as the case may be, shall use commercially reasonable efforts to
obtain insurance at such levels at least equal to those set forth on Schedule
7.8.  If any portion of any Mortgaged
Property is at any time located in an area identified by the Federal Emergency
Management Agency (or any successor agency) as a Special Flood Hazard Area with
respect to which flood insurance has been made available under the National
Flood Insurance Act of 1968 (as now or hereafter in effect or successor act
thereto), then the Borrower or the applicable Credit Party shall maintain, or
cause to be maintained, with IRIC or another financially sound and reputable
insurer, flood insurance in amounts and otherwise sufficient to comply with all
applicable Flood Insurance Laws and shall, upon the reasonable request of the
Administrative Agent, deliver to the Administrative Agent evidence of such
compliance in form and substance reasonably acceptable to the Administrative
Agent.


 


15.9.                     Environmental Laws


 


A.                                   The Borrower shall, and shall cause each of its
Subsidiaries, in the exercise of its reasonable business judgment, to take
prompt and appropriate action to respond to any material non-compliance with
Environmental Laws or Environmental Permits or to any material Release or a
substantial threat of a material Release of a Contaminant, and upon request
from the Administrative Agent, shall report to the Administrative Agent on such
response.  Without limiting the
generality of the foregoing, whenever the Administrative Agent or any Lender
has a reasonable basis to believe that the Borrower is not in material
compliance with Environmental Laws or Environmental Permits or that any
property of the Borrower or its Subsidiaries, or any property to which
Contaminants generated by the Borrower or its Subsidiaries have come to be
located (“Offsite Property”) has or may become contaminated or subject
to an order or decree such that any non-compliance, contamination or order or
decree could reasonably be expected to have a Material Adverse Effect, then, to
the extent the Borrower has the legal right to do so, the Borrower agrees to,
at the Administrative Agent’s request and the Borrower’s expense: (i) cause
an independent environmental engineer reasonably acceptable to the
Administrative Agent to conduct such tests of the site where the alleged or
actual non-compliance or contamination has occurred and prepare and deliver to
the Administrative Agent, the Lenders and the Borrower a report(s) reasonably
acceptable to the Administrative Agent setting forth the results of such tests,
the Borrower’s proposed plan and schedule for responding to any environmental
problems described therein, and the Borrower’s estimate of the costs thereof,
and (ii) provide the Administrative Agent, the Lenders and the Borrower a
supplemental report(s) of such engineer whenever the scope of the
environmental problems or the Borrower’s response thereto or the estimated
costs thereof, shall materially change. 
Notwithstanding the 


 


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above, the
Borrower shall not be obligated (other than as required by applicable law) to
undertake any tests or remediation at any Offsite Property (a) that is not
owned or operated by the Borrower or any of its Subsidiaries and (b) where
Contaminants generated by persons other than the Borrower or any of its
Subsidiaries have also come to be located.


 


B.                                     Defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective employees, the Administrative
Agents, officers and directors, from and against any and all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Borrower, any
of its Subsidiaries or their respective properties, or any orders, requirements
or demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorneys’ and consultants’ fees, investigation and
laboratory fees, costs arising from any Remedial Actions, court costs and
litigation expenses, except to the extent that any of the foregoing arise out
of the gross negligence or willful misconduct of the party seeking
indemnification therefor.  The agreements
in this Section 7.9(b) shall survive repayment of the Notes
and all other Obligations.


 


15.10.              Use of Proceeds


 


Use all proceeds of the
Loans as provided in Section 6.8.


 


15.11.              Additional Security; Further Assurances


 


A.                                   Agreement to Grant Additional Security. 
Promptly, and in any event within 30 days (unless otherwise extended at
the discretion of the Administration Agent) after the acquisition by the
Borrower or any Domestic Subsidiary of assets or real or personal property or
leasehold interests of the type that would have constituted Collateral on the
date hereof, in each case in which the Collateral Agent or the Administrative
Agent does not have a perfected security interest under the Security Documents
(other than (u) Capital Stock subject to Section 7.11(c), (v) all
assets owned by any Receivables Subsidiary, any of the Thai Holding Companies,
or IRIC, (w) copyrights, patents and trademarks to the extent perfection
would require filing in any foreign jurisdiction, (x) assets or real or
personal property subject to Liens permitted under Section 8.1(c) under
agreements which prohibit the creation of additional Liens on such assets, (y) any
parcel of real estate or leasehold interest acquired after the Closing Date
with a fair market value of less than $10,000,000 or (z) any other asset
with a fair market value of less than $100,000 individually (provided that all such
other assets collectively have a fair market value of less than $10,000,000))
and within 30 days (unless otherwise extended at the discretion of the
Administration Agent) after request by the Administrative Agent or Collateral
Agent with respect to any other after acquired collateral deemed material by
the Administrative Agent or Required Lenders, the Borrower will, and will cause
each of their respective Domestic Subsidiaries to, take all necessary action,
including (i) the filing of appropriate financing statements under the
provisions of the UCC, applicable foreign, domestic or local laws, rules or
regulations in each of the offices where such filing is necessary or
appropriate to grant  the Collateral
Agent or the Administrative Agent for the benefit of the Secured Parties
pursuant to the Collateral Security Agreement a perfected Lien (subject only to
Permitted Liens) in such Collateral pursuant to and to the full extent required
by the Security Documents and this 


 


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Agreement and (ii) with
respect to real estate, the execution of a Mortgage, the obtaining of title
insurance policies or indemnification agreements satisfactory to the
Administrative Agent, title surveys and real estate appraisals satisfying the
Requirements of Law.


 


B.                                     Subsidiary Guaranties.  The Borrower
agrees to cause (i) each Subsidiary (other than an Immaterial Subsidiary,
a Receivables Subsidiary, any of the Thai Holding Companies, or IRIC) that is
organized under the laws of a state of the United States of America or the
District of Columbia and (ii) each other Subsidiary (other than an
Immaterial Subsidiary) that is wholly owned by a corporation organized under
the laws of a state of the United States or the District of Columbia and is
disregarded as an entity separate from that owner under Treasury Regulation
section 301.7701-3, to execute and deliver the Subsidiary Guaranty (or a
supplement thereto) promptly, and in any event, within 30 days of such Person’s
having become a Subsidiary.


 


C.                                     Pledge of New Subsidiary Stock. 
The Borrower agrees to pledge (or cause its Subsidiaries to pledge) all
of the Capital Stock of each new Domestic Subsidiary and, to the extent such
pledge would not result in adverse tax consequences to the Borrower, 65% of the
Capital Stock of each new first-tier Foreign Subsidiary established, acquired
or created after the Closing Date to the Collateral Agent for the benefit of
the Secured Parties pursuant to the Collateral Security Agreement and the other
Security Documents promptly, and in any event, within 30 days of the
establishment, acquisition or creation of such new Subsidiary; provided, that
any filings or recordations with respect to Foreign Subsidiaries may be made
after such 30-day period to the extent approved by the Administrative Agent.


 


D.                                    Grant of Security by New Subsidiaries. 
Subject to the provisions of Sections 7.11(a) and 7.11(c),
the Borrower will promptly and, in any event, within 30 days of the
establishment, acquisition or creation of a Domestic Subsidiary, cause each
Domestic Subsidiary established or created in accordance with Section 8.7
to grant to the Collateral Agent for the benefit of the Secured Parties
pursuant to the Collateral Security Agreement and the Pledge Agreement a first
priority Lien (subject to Permitted Liens) on all property (tangible and
intangible of the type that constitutes Collateral under the Security
Documents) of such Domestic Subsidiary by executing and delivering an agreement
substantially in the form of Exhibit A to the Collateral Security
Agreement and an agreement substantially in the form of Exhibit A
to the Pledge Agreement, or such other security agreements on other terms
satisfactory in form and substance to the Administrative Agent.  The Borrower shall cause each Domestic
Subsidiary, at its own expense, to execute, acknowledge and deliver, or cause
the execution, acknowledgment and delivery of, and thereafter register, file or
record in any appropriate governmental office, any document or instrument reasonably
deemed by the Administrative Agent to be necessary or desirable for the
creation and perfection of the foregoing Liens. 
The Borrower will cause each of its Domestic Subsidiaries to take all
actions reasonably requested by the Administrative Agent or the Required
Lenders (including, without limitation, the filing of UCC-1’s) in connection
with the granting of such security interests.


 


E.                                      Pledge of Equity in Unrestricted Subsidiaries. 
The Borrower agrees to pledge (or cause its Domestic Subsidiaries to
pledge) all of the Capital Stock owned directly by the Borrower or a Domestic
Subsidiary of each domestic Unrestricted Subsidiary (and to the extent such
pledge would not result in adverse tax consequences to the Borrower, 65% of the



 


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Capital Stock of
each first-tier Foreign Subsidiary) to the Collateral Agent for the benefit of
the Secured Parties pursuant to the Pledge Agreement.  The Borrower agrees to pledge or cause its
Subsidiaries to pledge, to the Collateral Agent for the benefit of the Secured
Parties pursuant to the Collateral Security Agreement all instruments
evidencing indebtedness owed by any Unrestricted Subsidiary to the Borrower or
any Domestic Subsidiary.


 


F.                                      Receivables Financing Security. No later than the time that any
Receivables Documents are entered into, and no later than the time any capital
is contributed or funds are advanced by the Borrower to the Receivables
Subsidiary, the Borrower and each Participating Subsidiary shall execute and
deliver to Collateral Agent for the benefit of the Secured Parties, the
Receivables Subsidiary Pledge Agreement, accompanied, to the extent such
Pledged Securities are certificated, by certificates representing the Pledged
Securities.


 


G.                                     Documentation for Additional Security. The security interests required to be
granted pursuant to this Section 7.11 shall be granted pursuant to
the Annexes to the Security Documents or such other security documentation
satisfactory in form and substance to the Administrative Agent and the Required
Lenders and shall constitute valid and enforceable perfected security interests
prior to the rights of all third Persons (other than any such rights arising in
connection with Permitted Liens) and subject to no other Liens except Permitted
Liens.  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 the Administrative Agent
for the benefit of the Lenders, required to be granted pursuant to the
Additional Security Document and, all taxes, fees and other charges payable in
connection therewith shall be paid in full by the Borrower or its
Subsidiaries.  At the time of the
execution and delivery of the Additional Security Documents, the Borrower shall
cause to be delivered to the Administrative Agent such agreements, opinions of
counsel and other related documents as may be reasonably requested by the
Administrative Agent or the Required Lenders to assure themselves that this Section 7.11
has been complied with.


 


H.                                    If, following a change in the relevant sections of the
Code, the regulations and rules promulgated thereunder and any rulings
issued thereunder and at the reasonable request of the Administrative Agent or
the Required Lenders, counsel for the Borrower acceptable to the Administrative
Agent and the Required Lenders does not within 60 days after such request
deliver evidence reasonably satisfactory to the Administrative Agent with
respect to any Foreign Subsidiary that is a Wholly-Owned Subsidiary of the
Borrower that any of (i) a pledge of 66-2/3% or more of the total combined voting power of all
classes of Capital Stock of such Foreign Subsidiary entitled to vote, (ii) the
entering into by such Foreign Subsidiary of a guaranty in substantially the
form of the Subsidiary Guaranty or (iii) the entering into by such Foreign
Subsidiary of a security agreement in substantially the form of the Security
Agreement, in any case could cause all or a portion of the earnings of such
Foreign Subsidiary to be treated as a deemed dividend to such Foreign
Subsidiary’s United States parent or would otherwise violate applicable law or
result in adverse tax consequences to the Borrower or its Subsidiaries
(including, without limitation, in the form of distributions payable to any Parent Company pursuant to the
Limited Liability Company Agreement of the Borrower), then in the case of a
failure to deliver the evidence described in clause (i) above, that
portion of such Foreign Subsidiary’s outstanding Capital Stock not theretofore
pledged pursuant to the Security 


 


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Documents shall be
pledged to the Administrative Agent for the benefit of the Lenders pursuant to
the Security Documents (or another pledge agreement in substantially similar
form, if needed), (ii) in the case of a failure to deliver the evidence
described in clause (ii) above, such Foreign Subsidiary shall execute and
deliver a guaranty of the Obligations of the Borrower under the Loan Documents
(subject to compliance with financial assistance laws or similar laws
applicable to such Foreign Subsidiary), and (iii) in the case of a failure
to deliver the evidence described in clause (iii) above, such Foreign
Subsidiary (subject to compliance with financial assistance laws or similar
laws applicable to such Foreign Subsidiary) shall execute and deliver a
security agreement granting the Administrative Agent for the benefit of the
Lenders a security interest in all of such Foreign Subsidiary’s assets (to the
extent that such Foreign Subsidiary would be required to grant a security
interest in such assets under the provisions of Section 7.11(a) hereof
if such assets had been acquired by a Domestic Subsidiary), in each case with
all documents delivered pursuant to this Section 7.11 to be in form
and substance  reasonably satisfactory to
the Administrative Agent and the Required Lenders, but in each case, only to
the extent permitted without violating applicable law or resulting in adverse
tax consequences.  The deliveries set
forth in this clause (h) shall also not be required to the extent that the
Administrative Agent determines in its discretion that the cost of obtaining
the security interests set forth above outweigh the benefits that such security
interests provide to the Lenders.


 


15.12.              End of Fiscal Years; Fiscal Quarters


 


The Borrower will, and
will cause each of its Subsidiaries’ annual accounting periods to end on December 31
of each year (each a “Fiscal Year”, with quarterly accounting periods
ending on March 31, June 30, September 30, December 31 of
each Fiscal Year (each a “Fiscal Quarter”), unless otherwise required by
applicable law.


 


15.13.              Maintenance of Ratings


 


The Borrower will use
commercially reasonable efforts to have a corporate family rating and a rating
with respect to its senior secured debt issued by Moody’s and a corporate
rating and a rating with respect to its senior secured debt issued by S&P.


 


15.14.              Certain Fees Indemnity


 


The Borrower covenants
that it will indemnify the Administrative Agent and each Lender against and
hold the Administrative Agent and each Lender harmless from any claim, demand
or liability for broker’s or finder’s fees or similar fees or commissions
alleged to have been incurred in connection with any of the transactions
contemplated hereby.


 


15.15.              Successor Agency Transfer


 


The Borrower covenants
that upon or after the Fifth Amendment Effective Date, it will, and will cause
each of its Subsidiaries to, take all necessary action reasonably requested by
JPMCB, as successor Administrative Agent, Collateral Agent and UK Security
Trustee to DB upon the Fifth Amendment Effective Date, to effect the assignment
of and transfer to each of the Liens and security interests currently held by
DB, for the benefit of the Secured Parties, to 


 


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JPMCB as successor
Administrative Agent, Collateral Agent and UK Security Trustee under the Loan
Documents.


 


SECTION 16


 


NEGATIVE
COVENANTS


 


The Borrower hereby
covenants and agrees that, so long as any of the Commitments remain in effect
or any Loan or LC Obligation remains outstanding and unpaid or any other amount
is owing to any Lender or the Administrative Agent hereunder:


 


16.1.                     Liens


 


The Borrower will not,
and will not permit any of its Subsidiaries to create, incur, assume or suffer
to exist or agree to create, incur or assume any Lien in, upon or with respect
to any of its properties or assets (including, without limitation, any
securities or debt instruments of any of its Subsidiaries), whether now owned
or hereafter acquired, or assign or otherwise convey any right to receive
income to secure any obligation, except for the following Liens (herein
referred to as “Permitted Liens”):


 


A.                                   Liens created under the Security Documents (including,
without limitation, Liens securing the Senior Secured Notes Obligations on a
pari passu basis with the Obligations, but only to the extent that such
Indebtedness is permitted by Section 8.2(b)(vi)) and Liens on Cash,
Cash Equivalents and Foreign Cash Equivalents securing LC Obligations;


 


B.                                     Customary Permitted Liens;


 


C.                                     Liens on any property securing Indebtedness incurred
or assumed for the purpose of financing all or any part of the acquisition,
construction, repair or improvement cost of such property, or securing a Sale
and Leaseback Transaction permitted hereunder, and any Lien securing Permitted
Refinancing Indebtedness of any Indebtedness secured by any Lien permitted by
this clause (c); provided, that (A) any such Lien does not extend
to any other property (other than accessions and additions to the property
covered thereby), (B) such Lien either exists on the date hereof or is
created in connection with the acquisition, construction, repair or improvement
of such property as permitted by this Agreement, (C) the indebtedness
secured by any such Lien (or the Capitalized Lease Obligation with respect to
any Capitalized Lease) when incurred, does not exceed 100% of the fair market
value of such assets; and (D) the Indebtedness secured thereby is
permitted to be incurred pursuant to Section 8.2(b)(iv),  provided
that any such Permitted Refinancing Indebtedness is not increased and is not
secured by any additional assets;


 


D.                                    additional Liens incurred by the Borrower and its
Subsidiaries which do not secure Indebtedness for money borrowed so long as the
value of the property subject to such Liens, and the obligations secured
thereby, do not exceed $50,000,000 in the aggregate at any one time
outstanding;


 


E.                                      Liens consisting of an agreement to sell, transfer or
dispose of any asset (to the extent such sale, transfer or disposition is
permitted hereby);


 


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F.                                      Liens in favor of the Borrower or any of its
Subsidiaries securing intercompany Indebtedness among the Borrower and its
Subsidiaries permitted to be incurred in accordance with Section 8.2(b)(iii);


 


G.                                     Liens securing Indebtedness of Foreign Subsidiaries; provided,
that the amount of such Indebtedness on the date that such Person incurs (as
defined in Section 8.2(a)) such Indebtedness, after giving Pro
Forma Effect to such incurrence, does not exceed 5% of the Borrower’s
Consolidated Net Tangible Assets as of the end of the most recent Fiscal
Quarter for which the Borrower has delivered financial statements as required
by Section 7.1  in the
aggregate at any one time outstanding;


 


H.                                    Liens (1) existing on the Effective Date listed
on Schedule 8.1(h) hereof and any extension, renewal or replacement
thereof but only if the principal amount of the Indebtedness (including, for
purposes of this Section 8.1(h), any additional Indebtedness
incurred pursuant to revolving commitments in an amount not in excess of the
available commitment as set forth on Schedule 8.2(b)(ii) secured
thereby) is not increased and such Liens do not extend to or cover any other
property or assets, (2) on property of Airstar Corporation incurred
pursuant to the Airstar Aircraft Financing Documents and (3) on the assets
of Nitrail Vegyipari Termeló Fejlesztó Résvénytár-ság (Nitrail Chemical
Engineering and Production Co., Plc) which secure not more than $2,000,000 of
Indebtedness;


 


I.                                         Liens on Receivables Facility Assets transferred,
directly or indirectly, (a) to a Receivables Subsidiary or (b) by a
Receivables Subsidiary to the purchasers of such receivables (and the filing of
financing statements in connection therewith) created by, and as set forth in,
the Receivables Documents pursuant to a Permitted Accounts Receivable
Securitization;


 


J.                                        Liens securing Acquired Debt permitted pursuant to the
second proviso of Section 8.2(a) or pursuant to Section 8.2(b)(xi),
provided, that any such Lien does not extend to any property other than
the property of the newly acquired Subsidiary (and proceeds and accessions and
additions to such property) that is subject to a Lien securing such
Indebtedness as of the closing of the Acquisition of such Subsidiary;


 


K.                                    Liens on unearned insurance premiums securing
Indebtedness incurred by Borrower and/or its Subsidiaries to finance such
insurance premiums in a principal amount not to exceed at any time the amount
of such insurance premiums to be paid by Borrower and/or its Subsidiaries for a
three year period;


 


L.                                      Liens securing obligations arising in the ordinary
course pursuant to standard documentation evidencing any Foreign Factoring
Transaction; and


 


M.                                 Liens on Cash, Cash Equivalents and Foreign Cash
Equivalents securing obligations in respect of letters of credit permitted
under Section 8.2(b)(xvii).


 


In connection with the
granting of Liens of the type described in clause (c) of this Section 8.1
by the Borrower or any of its Subsidiaries, at the reasonable request of the
Borrower, and at the Borrower’s expense, the Administrative Agent or the
Collateral Agent shall take (and is hereby authorized to take) any actions
reasonably requested by the Borrower in connection therewith (including,
without limitation, by executing appropriate lien releases in favor of the 


 


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holder or holders
of such Liens, in either case solely with respect to the item or items of
equipment or other assets subject to such Liens).


 


16.2.                     Indebtedness


 


A.                                   The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise
(collectively, “incur” and collectively, an “incurrence”), with respect
to any Indebtedness; provided that so long as no Event of Default has
occurred and is continuing the Borrower may incur Indebtedness, and any
Subsidiary may incur Indebtedness, if the Borrower’s Interest Coverage Ratio
for the Borrower’s most recently ended four full fiscal quarters for which
financial statements have been delivered pursuant to Section 7.1
would have been at least 2.00 to 1.00 determined on a Pro Forma Basis; provided,
further, that in the case of an incurrence by a Subsidiary other than a
Subsidiary Guarantor, the proceeds of such Indebtedness are used for a
Permitted Acquisition, capital expenditures or such incurrence represents
Acquired Debt.


 


B.                                     The limitations set forth in clause (a) of this Section 8.2
shall not apply to any of the following items:


 


(a)                                  Indebtedness incurred pursuant to this
Agreement and the other Loan Documents;


 


(b)                                 Indebtedness described on Schedule
8.2(b)(ii) which Indebtedness was outstanding on the Effective Date
and Permitted Refinancing Indebtedness in respect thereof; provided, however, that notwithstanding anything else in this Section 8.2(b)(ii) to
the contrary, Indebtedness of Tioxide Southern Africa (Proprietary) Ltd. may be
refinanced in an amount not in excess of the Dollar Equivalent of $15,000,000
provided that such Indebtedness is in no way guaranteed by the Borrower
or any Subsidiary of the Borrower;


 


(c)                                  Indebtedness of the Borrower and its
Subsidiaries consisting of Intercompany Loans and guarantees thereof owing to
the Borrower or any of its Subsidiaries; provided, that any such
Indebtedness of the Borrower or a Subsidiary Guarantor owing to a Subsidiary
that is not a Subsidiary Guarantor is subordinated in right of payment to the
Obligations as set forth in Section 8.7(g); provided  further
that if any Subsidiary that incurred Indebtedness under this clause ceases to
be a Subsidiary, such entity shall be deemed to have incurred on such date such
Indebtedness as is outstanding on such date and such incurrence shall not be
permitted under this clause (iii);


 


(d)                                 Indebtedness of the Borrower and its
Subsidiaries secured by purchase money Liens or constituting Capitalized Lease
Obligations or an Operating Financing Lease and Permitted Refinancing
Indebtedness in respect thereof; provided, that, at the time such
Indebtedness is incurred, after giving Pro Forma Effect to such incurrence, the
sum of (1) the aggregate outstanding Capitalized Lease Obligations plus
(2) the aggregate outstanding Attributable 


 


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Debt with respect to
Operating Financing Leases plus (3) the aggregate outstanding
principal amount of such purchase money Indebtedness plus (4) the
aggregate outstanding amount of Indebtedness permitted by Section 8.2(b)(xi)
does not exceed an amount equal to 5% of the Borrower’s Consolidated Net
Tangible Assets as of the end of the most recent Fiscal Quarter for which the
Borrower has delivered financial statements as required by Section 7.1;


 


(e)                                  Indebtedness of the Borrower or its
Subsidiaries under Interest Rate Agreements providing protection against
fluctuations in interest rates so long as management of the Borrower or such
Subsidiary, as the case may be, has determined that entering into such Interest
Rate Agreements are bona fide hedging activities and under
Other Hedging Agreements providing protection against fluctuations in currency
or commodity values (in the case of commodity values, for a period not to
exceed 36 months) in connection with the Borrower’s or any of its Subsidiaries’
operations so long as management of the Borrower or such Subsidiary, as the
case may be, has determined that the entering into of such Other Hedging
Agreements are bona fide hedging activities;


 


(f)                                    Indebtedness of the Borrower in respect
of the Public Notes and guarantees thereof by the Borrower’s Subsidiaries;
provided, that any guarantees of Public Notes that are subordinated to the
Obligations shall be subordinated to the Obligations in the same fashion as
such Public Notes are subordinated to the Obligations;


 


(g)                                 Indebtedness of the Borrower and its
Subsidiaries consisting of take-or-pay obligations contained in supply
agreements entered into in the ordinary course of business;


 


(h)                                 Indebtedness of the Borrower to a
Huntsman Affiliate that is subordinated to the Obligations in a manner
reasonably satisfactory to the Administrative Agent;


 


(i)                                     Indebtedness of the Borrower and its
Subsidiaries constituting Permitted Refinancing Indebtedness of (i) Term
Loans hereunder and (ii) Indebtedness incurred under Section 8.2(a) 
above;


 


(j)                                     Indebtedness consisting of (i) Guarantee
Obligations of any Subsidiary of the Borrower of the Obligations under any Loan
Document and (ii) a guarantee by the Borrower or a Domestic Subsidiary of
obligations of a Subsidiary or a guarantee by any Foreign Subsidiary of
obligations of a Foreign Subsidiary, in each case, of Indebtedness permitted to
be incurred under clause (a) or any other clause of this clause (b); provided,
that any Guarantee Obligations of the Borrower or any Subsidiary with respect
to intercompany Indebtedness of any Subsidiary is also permitted pursuant to
clause (b)(iii);


 


(k)                                  Indebtedness of a Subsidiary of the
Borrower issued and outstanding on or prior to the date on which such
Subsidiary was acquired by the


 


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Borrower  or a Subsidiary of the Borrower in a
transaction constituting an Acquisition (other than Indebtedness issued as
consideration in, or to provide all or any portion of the funds utilized to
consummate such Acquisition) (“Acquired Debt”) and any Permitted
Refinancing Indebtedness in respect thereof; provided, that the
aggregate amount of such Indebtedness at the time such Indebtedness is
incurred, after giving Pro Forma Effect to such incurrence, together with
Indebtedness outstanding and permitted by Section 8.2(b)(iv) (without
double counting and without giving effect to Section 8.1(c)(C))
does not exceed an amount equal to 5% of the Borrower’s Consolidated Net
Tangible Assets as of the end of the most recent Fiscal Quarter for which the
Borrower has delivered financial statements as required by Section 7.1;


 


(l)                                     Indebtedness (including intraday cash
management lines relating thereto) of the Borrower and of its Subsidiaries
pursuant to over-draft or similar lines of credit (including, without limitation,
treasury management arrangements, 
depository or other cash management services and commercial credit card
and merchant card services) in existence on the Fifth Amendment Effective Date
or designated by the Borrower to the Administrative Agent as “Overdraft
Facilities” thereafter (including unsecured back-to-back lines of credit
relating thereto among Foreign Subsidiaries, an “Overdraft Facility”)
such that the aggregate amount of such Indebtedness (other than intraday cash
management lines relating thereto) permitted thereunder or outstanding under
this clause (xii) at any one time does not exceed (without duplication)
$100,000,000 (or the Dollar Equivalent thereof) for more than one (1) consecutive
Business Day, with respect to such Indebtedness (other than intraday cash
management lines relating thereto), provided, that the aggregate
principal amount of Indebtedness (other than intraday cash management lines
relating thereto) outstanding under each such line shall be reduced to the
Dollar Equivalent of $25,000,000 during at least one day during each calendar
month;


 


(m)                               other unsecured Indebtedness of the
Borrower and of its Subsidiaries not to exceed $100,000,000 at any time;


 


(n)                                 (i)  Receivables Facility Attributed
Indebtedness and (ii) intercompany indebtedness of a Receivables
Subsidiary owed to the Borrower or its Participating Subsidiaries to the extent
such Indebtedness constitutes a permitted Investment pursuant to Section 8.7(n);


 


(o)                                 Indebtedness of Foreign Subsidiaries
consisting of limited recourse obligations incurred in the ordinary course
pursuant to standard documentation evidencing Foreign Factoring Transactions;


 


(p)                                 Indebtedness of Foreign Subsidiaries; provided,
that the aggregate amount of such Indebtedness at the time such Indebtedness is
incurred, together with the aggregate amount of all other Indebtedness
outstanding under this clause (xvi) at such time, does not exceed 5% of the
Borrower’s Consolidated Net 


 


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Tangible Assets as of the
end of the most recent Fiscal Quarter for which the Borrower has delivered
financial statements as required by Section 7.1; and


 


(q)                                 Indebtedness consisting of obligations in
respect of any Fifth Amendment Existing Letter of Credit.


 


16.3.                     Consolidation, Merger, Purchase or Sale
of Assets, etc.


 


The Borrower will not,
and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve
any of their affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of any of its properties or assets
(or, with respect to any such transaction involving all or substantially all of
the assets of the Borrower, enter into an agreement to do any of the foregoing
at any future time without the Administrative Agent’s prior written consent
unless the effectiveness of such agreement is conditional upon the consent of
the Administrative Agent), or enter into any Sale and Leaseback Transaction,
except that:


 


A.                                   [Reserved];


 


B.                                     Investments may be made to the extent permitted by Section 8.7;


 


C.                                     each of the Borrower and its Subsidiaries may lease
(as lessor) real or personal property in the ordinary course of business other
than to a Receivables Subsidiary;


 


D.                                    each of the Borrower and its Subsidiaries may make
sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash
Equivalents in the ordinary course of business other than to a Receivables
Subsidiary;


 


E.                                      the Borrower and its Subsidiaries may sell or
discount, in each case without recourse and in the ordinary course of business,
Accounts Receivable arising in the ordinary course of business (x) which
are overdue, or (y) which the Borrower or such Subsidiary may reasonably
determine are difficult to collect but only in connection with the compromise
or collection thereof consistent with customary industry practice (and not as
part of any bulk sale or financing of receivables);


 


F.                                      the Borrower and its Subsidiaries may license its
patents, trade secrets, know-how and other intellectual property relating to
the manufacture of chemical products and by-products (the “Technology”)
provided that such license shall be assignable to the Administrative Agent or
any assignee of the Administrative Agent without the consent of the licensee
and no such license shall (i) transfer ownership of such Technology to any
other Person or (ii) require the Borrower to pay any fees for any such use
(such licenses permitted by this Section 8.3(f), hereafter “Permitted
Technology Licenses”);


 


G.                                     any Subsidiary of the Borrower (other than a
Receivables Subsidiary) may be merged or consolidated (x) with or into the
Borrower so long as the Borrower is the surviving entity, (y) with or into
any one or more Wholly-Owned Subsidiaries of the Borrower (other than an
Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation
or IRIC); provided, however, that a Wholly-Owned Subsidiary or
Subsidiaries shall be the surviving entity or (z) with or into any Person
in connection with the consummation of an Acquisition; provided, 


 


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however, that
after giving effect to such merger or consolidation the surviving Subsidiary
shall be a Wholly-Owned Subsidiary;


 


H.                                    the Borrower and its Subsidiaries may sell, transfer
or otherwise dispose of any asset in connection with any Sale and Leaseback
Transaction involving Indebtedness, Capitalized Lease Obligations or an
Operating Financing Lease otherwise permitted hereunder;


 


I.                                         in any Fiscal Year, the Borrower or any Subsidiary may
dispose of any of its assets (including in connection with Sale and Leaseback
Transactions not involving Indebtedness, Capitalized Lease Obligations or an
Operating Financing Lease) if the aggregate net book value (at the time of
disposition thereof) of all assets disposed of by the Borrower and its
Subsidiaries in such Fiscal Year pursuant to this clause (i) plus
the aggregate book value of all the assets then proposed to be disposed of does
not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its
Subsidiaries as of the end of the immediately preceding Fiscal Quarter for
which the Borrower has delivered financial statements as required by Section 7.1;
provided, however, that if (A) concurrently with any disposition of assets
or within 360 days of receipt of proceeds in connection with such disposition,
all or a portion of an amount equal to the net proceeds of such disposition are
used by the Borrower or a Subsidiary to acquire other property used or to be
used in the business referred to in Section 8.9 and (B) the
Borrower or such Subsidiary has complied with the provisions of Section 7.11
with respect to such property, then such dispositions (or, to the extent that
less than all of the net proceeds of any such disposition are used to acquire
such other property, then dispositions in an amount equal to the net proceeds
used to acquire such other property) shall be disregarded for purposes of
calculations pursuant to this Section 8.3(i)) (and shall otherwise
be deemed to be permitted under this Section 8.3) from and after
the date such proceeds are so used to acquire such property with respect to the
acquisition of such other property;


 


J.                                        the Borrower or any Subsidiary of the Borrower may
sell, lease, transfer or otherwise dispose of any or all of its assets to the
Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from
the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a
Receivables Subsidiary);


 


K.                                    any Subsidiary of the Borrower (other than a
Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;


 


L.                                      the Borrower and its Subsidiaries may, directly or
indirectly, sell, contribute and make other transfers of Receivables Facility
Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and
make other transfers of Receivables Facility Assets to the Issuer, in each case
pursuant to the Receivables Documents under a Permitted Accounts Receivable
Securitization;


 


M.                                 Foreign Subsidiaries may enter into Foreign Factoring
Transactions; and


 


N.                                    the Borrower and its Subsidiaries may consummate the
US Commodity Business Sale provided that not less than 75% of the Net Sale
Proceeds therefrom are used within 90 days to (i) repay Senior Secured
Notes (2010); (ii) repay Senior Notes (2012); (iii) 


 


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repay Receivables
Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment
of Term Loans pursuant to Section 4.3.


 


16.4.                     Dividends or Other Distributions


 


A.                                   Neither the Borrower nor any of its Subsidiaries will:
(i) declare or pay any dividend or make any distribution on or in respect
of its Capital Stock or to the direct or indirect holders of its Capital Stock,
other than (x) dividends or distributions (A) payable solely in such
Capital Stock or in options, warrants or other rights to purchase such Capital
Stock, (B) dividends and distributions payable to the Borrower or a
Wholly-Owned Subsidiary of the Borrower or payable to holders of minority
interests in any Subsidiary so long as the Borrower or any other Subsidiary
having an interest in such Subsidiary shall receive its proportionate share of
such dividend or distribution (“Dividends”), and (y) cash
distributions to members of the Borrower from time to time in accordance with
the terms of the Tax Sharing Agreement (“Tax Distributions”), (ii) purchase,
redeem or otherwise acquire or retire for value any Capital Stock of the
Borrower, (iii) make any principal payment on or purchase, defease,
redeem, prepay, or otherwise acquire or retire for value, prior to any
scheduled final maturity or applicable redemption date, any Public Notes (or
any Permitted Refinancing Indebtedness thereof) except to the extent set forth
in Section 8.11(i) or (iv) make any Investment not
specifically permitted by clauses (a) through (o) of Section 8.7
(“Unrestricted Investments”) (any of the foregoing described in clauses (i) -
(iv) being hereafter referred to as a “Restricted Payment”);


 


B.                                     Notwithstanding the limitations on Restricted Payments
set forth in Section 8.4(a), so long as (x) there is no
Default or Event of Default then outstanding or that would result therefrom, (y) the
Borrower is able to incur $1 of additional Indebtedness under Section 8.2(a) both
before and after giving effect to such Restricted Payment on a Pro Forma Basis
and (z) if the Assigned Dollar Value of all outstanding Revolving Loans
and Swing Line Loans exceeds $0 or any outstanding LC Obligations are not Cash
Collateralized in an amount not less than 105% of the amount of such
outstanding LC Obligations and, both before and after giving effect to such
Restricted Payment on a Pro Forma Basis, the Senior Secured Leverage Ratio is
not in excess of 3.75 to 1.00, the Borrower or any Subsidiary of the Borrower
may make any Restricted Payment which together with all other Restricted
Payments made pursuant to this Section 8.4 since the Effective Date
would not exceed the sum of:


 


(a)                                  $400,000,000, plus


 


(b)                                 50% of the consolidated net income (as
defined in the Senior Subordinated Note (2014) Indenture) (or, in the case of a
Consolidated Net Loss, minus 100% of such Consolidated Net Loss) of the
Borrower and its Subsidiaries accrued during the period (treated as one
accounting period) from June 30, 2006 to the end of the most recent Fiscal
Quarter for which financial statements have been delivered pursuant to Section 7.1,
plus


 


(c)                                  Available Equity Proceeds.


 


C.                                     Notwithstanding the foregoing, the Borrower may pay
Dividends within 60 days after the date of declaration thereof if at such date
of declaration such Dividend would 


 


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have complied with
this Section 8.4; provided, however, that such
Dividend shall be included (without duplication) in the calculation of
Restricted Payments for purposes of Section 8.4(b).


 


D.                                    In addition to Restricted Payments permitted by
clauses (b) and (c) above, the Borrower may pay Dividends to any
Huntsman Parent Company which are contemporaneously applied to pay dividends on
common stock of Huntsman Corporation at a rate not to exceed $0.40 per share
per annum (such amount to be appropriately adjusted to reflect any stock split,
reverse stock split, stock dividend, stock issuance or similar transactions
made after the Effective Date so that the aggregate amount of dividends payable
after such transaction is the same as the amount payable immediately prior to
such transaction).


 


16.5.                     Certain Restrictions on Subsidiaries


 


The Borrower will not,
and will not permit any of its Subsidiaries to create or otherwise cause or
permit to exist, or to become effective, any consensual encumbrance or
restriction (other than pursuant to the Loan Documents) on the ability of any
Subsidiary of the Borrower to (i) pay dividends or make any other
distributions on its Capital Stock, (ii) pay any Indebtedness or other
obligation owed to the Borrower or any of its other Subsidiaries, (iii) make
any loans or advances to the Borrower or any of its other Subsidiaries, or (iv) transfer
any of its property or assets to the Borrower or any of its other Subsidiaries,
except:


 


A.                                   any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the Effective Date and reflected on Schedule
8.5(a) hereto or any extension, replacement or refinancing thereof not
prohibited herein;


 


B.                                     any such encumbrance or restriction consisting of
customary non-assignment provisions in any Contractual Obligation entered into
in the ordinary course of business to the extent such provisions restrict the
transfer or assignment of any agreement evidencing or securing such Contractual
Obligation;


 


C.                                     in the case of clause (iv) above, Permitted Liens
or other restrictions contained in security agreements securing Indebtedness or
operating leases permitted hereby, to the extent such restrictions restrict the
transfer of the property subject to such security agreements or operating
leases;


 


D.                                    any restrictions on transfer of an asset (including
Capital Stock) pursuant to an agreement to sell, transfer or dispose of such
asset, to the extent such sale would be permitted hereby;


 


E.                                      any encumbrance or restriction on a Receivables
Subsidiary as set forth in the Receivables Documents, or any encumbrance or
restriction on a Participating Subsidiary with respect to Receivables Facility
Assets as set forth in Receivables Documents;


 


F.                                      restrictions on Foreign Subsidiaries in Overdraft
Facilities;


 


G.                                     any restrictions on a Person (other than an
Unrestricted Subsidiary) at the time such Person becomes a Subsidiary, so long
as such restrictions were not entered into in contemplation of such Person
becoming a Subsidiary; and


 


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H.                                    any restrictions or encumbrances on (i) Huntsman
Chemical Company of Canada, Inc. or on any Foreign Subsidiary of Huntsman
Petrochemical Corporation, (ii) Huntsman Advanced Materials (Netherlands)
BV or any of its Foreign Subsidiaries or (iii) any Foreign Subsidiary
organized under the laws of any Middle Eastern or Asian jurisdiction, which are
set forth in any agreement governing Indebtedness permitted pursuant to Section 8.2(b)(xvi).


 


16.6.                     Issuance of Stock


 


A.                                   The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, issue (except, with respect to the
Borrower, as permitted pursuant to clause (b) below), sell, assign,
pledge or otherwise encumber (other than with Liens of the type described in
clauses (i) and (vi) of the definition of “Customary Permitted
Liens”) or dispose of any shares of Capital Stock of any Subsidiary of the
Borrower, except (i) to the Borrower, (ii) to another Wholly-Owned
Subsidiary of the Borrower, (iii) to qualifying directors or to satisfy
other similar requirements, in each case, pursuant to Requirements of Law, (iv) pursuant
to the Loan Documents or the Foreign Intercompany Loan Security Documents or (v) pledges
constituting Permitted Liens described in clauses (a), (d) or (e) of Section 8.1.  Notwithstanding the foregoing, the Borrower
or its Subsidiaries shall be permitted to sell all of the outstanding Capital
Stock of a Subsidiary to the extent permitted pursuant to Section 8.3.


 


B.                                     The Borrower shall not issue any Capital Stock, except
nonredeemable Capital Stock and except for such issuances of Capital Stock
(including private placements) (x) where after giving effect to such
issuance, no Event of Default will exist under Section 10.1(m) and
(y) where the Administrative Agent and the Required Lenders have consented
(such consent not to be unreasonably withheld) to the terms and conditions of
such offering.


 


16.7.                     Loans and Investments


 


The Borrower will not,
and will not permit any of its Subsidiaries to, make any Investments except:


 


A.                                   the Borrower and its Domestic Subsidiaries may acquire
and hold Cash and Cash Equivalents;


 


B.                                     the Borrower and its Subsidiaries may hold the
Investments as set forth on Schedule 8.7(b) hereto;


 


C.                                     the Borrower and its Subsidiaries may make or maintain
advances (i) for relocation and related expenses and other advances to
their employees in the ordinary course of business and (ii) for any other
advances to their employees in the ordinary course of business in an aggregate
principal amount not exceeding $10,000,000 (or the Dollar Equivalent thereof)
at any one time outstanding;


 


D.                                    the Borrower and its Subsidiaries may acquire and hold
(i) Investments consisting of extensions of credit in the nature of
accounts receivable arising from the granting of trade credit in the ordinary
course of business, and (ii) Investments (including debt obligations)
received in connection with the bankruptcy or reorganization of suppliers and
customers and 


 


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other Persons and
in settlement of delinquent obligations of, and other disputes with, customers
and suppliers and other Persons arising in the ordinary course of business;


 


E.                                      the Borrower and its Subsidiaries may make deposits in
a customary fashion in the ordinary course of business;


 


F.                                      the Borrower and its Subsidiaries may acquire and hold
debt securities as partial consideration for a sale of assets pursuant to Section 8.3
or 4.4(c) to the extent permitted by any such Section;


 


G.                                     (1)                                  the Borrower may make or maintain
intercompany loans and advances to any of its Wholly-Owned Subsidiaries, (2) any
Subsidiary of the Borrower may make or maintain intercompany loans and advances
to the Borrower and (3) any Subsidiary of the Borrower may make or
maintain intercompany loans and advances to any Wholly-Owned Subsidiary of the
Borrower (including, without limitation, pursuant to Permitted Entrustment Loan
Arrangements) (collectively, “Intercompany Loans”), provided, that each
Intercompany Loan made by a Foreign Subsidiary or a non-Wholly-Owned Domestic
Subsidiary, on the one hand, to the Borrower or a Wholly-Owned Domestic
Subsidiary of the Borrower, on the other hand, shall contain the subordination
provisions set forth on Exhibit 8.7(g);


 


H.                                    (i) the Borrower and its Subsidiaries may make
Investments after the Fifth Amendment Effective Date in the Capital Stock of
Persons that are Foreign Subsidiaries and may capitalize or forgive any
Indebtedness owed to them by a Foreign Subsidiary (treating such capitalization
or forgiveness as an Investment for purposes of this clause (i)); provided,
that the aggregate outstanding amount of such Investments pursuant to this
subclause (i) (excluding Investments consisting solely of the contribution
of the Capital Stock of a Foreign Subsidiary to a Foreign Subsidiary organized
in a jurisdiction acceptable to Administrative Agent and the Investment
described on Schedule 8.7(h)) shall not exceed an aggregate outstanding
amount equal to the sum of $300,000,000 plus the aggregate amount contributed
to Foreign Subsidiaries for Acquisitions permitted pursuant to Section 8.7(m),
(ii) the Borrower and its Domestic Subsidiaries may make Investments in
the Capital Stock of a Person that is a Domestic Subsidiary; provided, that the
requirements of Section 7.11 are satisfied and (iii) Foreign
Subsidiaries of the Borrower may make Investments in the Capital Stock of other
Foreign Subsidiaries of the Borrower and may capitalize or forgive any
Indebtedness owed to them by a Foreign Subsidiary (treating such capitalization
or forgiveness as an Investment for purposes of this clause (iii));


 


I.                                         Foreign Subsidiaries of the Borrower may invest in
cash, Cash Equivalents and Foreign Cash Equivalents;


 


J.                                        so long as (1) no Unmatured Event of Default or
Event of Default exists either before or after giving effect thereto and (2) the
Borrower is in compliance with Section 9.1 both before and after
giving effect thereto on a Pro Forma Basis (whether or not such Section 9.1
would otherwise be applicable), the Borrower and its Subsidiaries may (i) make
any Investment in any Permitted Unconsolidated Venture or in any Unrestricted
Subsidiary (provided, that the Borrower shall have complied with Section 7.11(e) in
connection with such Investment) consisting of an amount not in excess of the
Available Unrestricted Subsidiary Investment 


 


133

















 


Basket; and (ii) solely to the extent such
Investment is used by any of HF II Australia Holdings Company LLC, Huntsman
Australia Holdings Corp., HCPH Holdings Pty Limited, Huntsman Chemical
Australia Unit Trust or their Subsidiaries, make Investments in such entities
to permanently prepay Indebtedness in an aggregate amount not to exceed
$50,000,000.


 


K.                                    the Borrower may make intercompany loans to Huntsman
Corporation, the proceeds of which shall be utilized by Huntsman Corporation to
pay legal, franchise tax, audit, and other expenses directly relating to the
administration or legal existence of the Borrower; provided, that the
aggregate outstanding principal amount of such intercompany loans shall not
exceed $3,000,000 at any time outstanding (without giving effect to any
write-downs or write-offs thereof) and which amount shall not include any
intercompany loans or advances made or deemed to have been made for any reason
in respect of accrued but unpaid interest on any intercompany loans previously
made to Huntsman Corporation, including the capitalization thereof);


 


L.                                      the Borrower may make Investments in Rubicon and LPC,
so long as: (i) the Administrative Agent possesses a valid, perfected Lien
on the applicable Credit Party’s interests in such Joint Venture, (ii) such
Joint Venture does not have any Indebtedness for borrowed money at any time on
or after the date of such Investment other than to the partners in such Joint
Venture and (iii) the documentation governing such Joint Venture does not
contain a restriction on distributions or loan repayments as applicable, to the
Borrower or to the applicable Subsidiary holding the interest in such Joint
Venture;


 


M.                                 the Borrower or any of its Subsidiaries may purchase
all or a significant part of the assets of a business conducted by another
Person, make any Investment in any Person which, after the Effective Date as a
result of such Investment becomes a Wholly-Owned Subsidiary of the Borrower
which is not an Unrestricted Subsidiary or, to the extent permitted under Section 8.3,
enter into any merger, consolidation or amalgamation with any other Person (any
such purchase, Investment or merger, an “Acquisition”); provided,
however, that such Acquisition shall not be permitted unless, (i) after giving effect thereto on a Pro
Forma Basis, (a) no Event of Default or Unmatured Event of Default would
exist hereunder and (b) the Borrower is able to borrow $1 of additional
Indebtedness pursuant to Section 8.2(a); (ii) if the
total consideration given and Indebtedness assumed in connection with such
Acquisition exceeds $20,000,000, after giving effect to such Acquisition, the
Borrower’s Available Liquidity, minus the lesser of (A) the aggregate
amount of utilized Overdraft Facilities of the Borrower and its Subsidiaries or
(B) $60,000,000 shall equal or exceed $450,000,000; (iii) the
Borrower and its Subsidiaries have complied to the extent applicable with the
requirements of Section 7.11 hereof with respect to any required
additional Security Documents and (iv) such Acquisition has been approved
by the board of directors of the Person to be acquired; provided, further, however, notwithstanding anything else herein to
the contrary, no Acquisition (other than Acquisitions in which the total
consideration paid (including for purposes hereof any assumed Indebtedness)
does not exceed $20,000,000 for any single Acquisition or $80,000,000 for all
such Acquisitions in the aggregate since the Effective Date) shall be permitted unless the Borrower is
in compliance with Section 9.1 on a Pro Forma Basis;


 


N.                                    the Borrower or any of its Subsidiaries may make
Investments in the Receivables Subsidiary and any Participating Subsidiaries
prior to the occurrence and 


 


134

















 


continuance of an
Event of Default under Section 10.1(n) which in the judgment
of the Borrower are reasonably necessary in connection with any Permitted
Accounts Receivable Securitization;


 


O.                                    in addition to Investments permitted pursuant to
clauses (a) through (n) above, the Borrower or any of its
Subsidiaries may make other Investments (A) in an outstanding amount not
to exceed $50,000,000 in the aggregate or (B) with Available Equity
Proceeds; provided, that in each case the Borrower shall have complied
to the extent applicable with Section 7.11 in connection with such
Investment; and provided  further, that the Borrower may not make
or own any investment in margin stock;


 


P.                                      the Borrower or any of its Subsidiaries may make
Unrestricted Investments constituting Restricted Payments that are permitted by
Section 8.4(b); provided, that, the Borrower shall
have complied to the extent applicable with Section 7.11 in
connection with such Unrestricted Investments; and provided  further,
that the Borrower may not make or own any investment in margin stock; and


 


Q.                                    the Borrower or any of its Subsidiaries may make loans
and advances to their respective customers in an aggregate amount not to exceed
at any time $10,000,000.


 


16.8.                     Transactions with Affiliates


 


The Borrower will not,
and the Borrower will not cause or permit any of its Subsidiaries to, directly
or indirectly, enter into or permit to exist any transaction or series of
related transactions (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with or for the
benefit of any of the Borrower’s Affiliates other than (x) the entry by
the Borrower and its Subsidiaries into the transactions contemplated by a
Permitted Accounts Receivable Securitization, (y) transactions that are on
terms that are fair and reasonable to the Borrower or to any such Subsidiary
and that are on terms that are no less favorable to the Borrower or to such
Subsidiary than those that might reasonably have been obtained in a comparable
transaction on an arm’s-length basis from a Person that is not an Affiliate, or
(z) any transaction arising in the ordinary course of business of the
Borrower or of such Subsidiary; provided, however, that with
respect to transactions between the Borrower or any of its Subsidiaries and any
of their respective Affiliates arising in the ordinary course of business
(including, without limitation, purchase or supply contracts relating to
products or raw materials) a Responsible Officer of the Borrower shall, not
later than the date of delivery of the financial statements referred to in Section 7.1(b),
have reviewed the aggregate of such transactions and determined that, in the
aggregate, such transactions are on terms that are fair and reasonable to the
Borrower or to such Subsidiary and are no less favorable to the Borrower or to
such Subsidiary than those that might reasonably have been obtained in a
comparable transactions on an arm’s-length basis from a Person that is not an
Affiliate.  The foregoing restrictions
will not apply to (1) reasonable and customary directors’ fees,
indemnification and similar arrangements and payments thereunder; (2) any
transaction between the Borrower and any Wholly-Owned Subsidiary (other than an
Unrestricted Subsidiary) of the Borrower or between Wholly-Owned Subsidiaries
(other than an Unrestricted Subsidiary) to the extent that any such transaction
is otherwise in compliance with the terms of this Agreement; (3) loans or
advances to officers of the Borrower and of its Subsidiaries for bona  fide
business purposes of the Borrower or of such Subsidiary not to exceed
$10,000,000 in the aggregate at any one time 


 


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outstanding for
the Borrower and its Subsidiaries; (4) Investments permitted under Section 8.7(k);
(5) Restricted Payments permitted under Section 8.4; or (6) issuances
by the Borrower of its Capital Stock to the extent such issuance is otherwise
in compliance with the terms of this Agreement. 
The restriction set forth in this Section 8.8 will not apply
to the execution and delivery of or payments made under the Tax Sharing
Agreement.


 


16.9.                     Lines of Business


 


The Borrower will not,
and will not permit any Subsidiary (other than a Receivables Subsidiary) to
enter into or acquire any line of business which is not reasonably related to
the chemical or petrochemical business, provided, that none of Huntsman
Finco or any Thai Holding Company will engage in any business other than (a) holding
Capital Stock of its Subsidiaries and (b) in the case of Huntsman Finco,
the borrowing and lending funds pursuant to the Intercompany Loans.  IRIC shall only engage in the business of
serving as a captive insurance company for the Borrower and its Subsidiaries
and engaging in such necessary activities related thereto as may be permitted
to be engaged in by a Utah captive insurance company pursuant to applicable
Utah captive insurance company rules and regulations; provided, that IRIC
shall not hold cash or other Investments except in a manner consistent with Schedule
8.9.


 


16.10.              Fiscal Year


 


The Borrower shall not
change its Fiscal Year.


 


16.11.              Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and
Certain Other Agreements; Etc.


 


The Borrower will not,
and will not permit any of its Subsidiaries to:


 


(a)                                  make (or give any notice in respect of)
any voluntary or optional payment or prepayment on or redemption or acquisition
for value of (including, without limitation, by way of depositing with the
trustee with respect thereto or any other Person money or securities before due
for the purpose of paying when due) any obligations under any Public Notes
(other than with the proceeds of Permitted Refinancing Indebtedness or with
Available Equity Proceeds); provided that if there is no Default or
Event of Default then outstanding or that would result therefrom, the Borrower
or any of its Subsidiaries may make payments or prepayments on, or redemption
or acquisition of: (A) any obligations under the Senior Secured Notes
(2010) or the Senior Notes (2012) (including with Net Sale Proceeds from Asset
Dispositions and Net Recovery Proceeds from Recovery Events not required by the
terms of Section 4.4(c)(ii) to be used to prepay the Loans);
and (B) any obligations under any Public Notes with Restricted Payments
permitted under Section 8.4(b);


 


(b)                                 amend, modify or terminate, or permit the
amendment, modification, or termination of any provision in any way materially
adverse to the interests of the Lenders (as determined by the Administrative
Agent in its sole reasonable discretion after reasonable advance notice of such
proposed change) of 


 


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any Public Note Document
that would require the consent of any holder of such Public Note (including,
without limitation, by the execution of any supplemental indenture);


 


(c)                                  amend, modify or change in any way
adverse, in any material respect, to the interests of the Lenders, its
Organizational Documents  (including,
without limitation, by filing or modification of any certificate of
designation) or by-laws, or any agreement entered into by it, with respect to
its Capital Stock, the Tax Sharing Agreement, or enter into any new agreement
with respect to its Capital Stock or any new tax sharing agreement which in any
way could reasonably be expected to be adverse to the interests of the Lenders;
or


 


(d)                                 if the Assigned Dollar Value of all
outstanding Revolving Loans and Swing Line Loans exceeds $0 or any outstanding
LC Obligations are not Cash Collateralized in an amount not less than 105% of
the amount of such outstanding LC Obligations and, after giving effect to any
payment referred to below on a Pro Forma Basis, the Senior Secured Leverage
Ratio would be in excess of 3.75 to 1.00,   make
any payment of interest or principal or other amount in respect of any
Indebtedness of the Borrower or any Subsidiary held by any Affiliate of the
Borrower that is not the Borrower or a Subsidiary of the Borrower, including
but not limited to that certain promissory note with an effective date of May 30,
2008, as amended and restated effective as of January 6, 2009, issued by
the Borrower to Huntsman Corporation, on any date unless, on a Pro Forma Basis
both before and after giving effect to such payment, the Senior Secured
Leverage Ratio as of such date would not exceed 3.75 to 1.00.


 


The Administrative Agent
agrees that, with respect to any matters required to be reasonably satisfactory
or acceptable to it, it shall exercise its reasonable judgment in making, and
shall not unreasonably withhold or delay, such determination.


 


16.12.              Accounting Changes


 


The Borrower shall not,
nor shall it permit any of its Subsidiaries to 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 date hereof,
unless (i) such change is required by GAAP, (ii) such change is
disclosed to the Lenders through the Administrative Agent or otherwise and (iii) relevant
prior financial statements that are affected by such change are restated (in
form and detail satisfactory to the Administrative Agent) as may be required by
GAAP to show comparative results.  If any
changes in GAAP or the application thereof from that used in the preparation of
the financial statements referred to in Section 6.5(a) hereof
occur after the Closing Date and such changes result in, in the sole judgment
of the Administrative Agent, a meaningful change in the calculation of any
financial covenants or restrictions set forth in this Agreement, then the
parties hereto agree to enter into and diligently pursue negotiations in order
to amend such financial covenants and restrictions so as to equitably reflect
such changes, with the desired result that the criteria for evaluating the
financial condition and results of operations of the Borrower and its
Subsidiaries shall be the same after such changes as if such changes had not
been made.


 


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16.13.              Permitted Accounts Receivable Securitization and
Foreign Factoring Transactions


 


The Borrower shall not,
nor shall it permit any of its Subsidiaries to, enter into any Receivables
Documents other than in connection with a Permitted Accounts Receivable
Securitization or a Foreign Factoring Transaction permitted by Sections 8.1(l) and
8.2(b)(xv) (unless such Receivables Documents have been approved by the
Administrative Agent or are non-material documentation entered into pursuant to
such approved Receivables Documents and/or represent additional documentation
in customary form that is contemplated by Receivables Documents for a Permitted
Accounts Receivable Securitization and are not adverse to the Lenders) or amend
or modify in any material respect which is adverse to the Lenders any of such
Receivables Documents unless such amendment or modification has been approved
by the Administrative Agent; provided, however, that if the
Receivables Documents, after giving effect to such amendment or modification,
would constitute a Permitted Accounts Receivable Securitization, then such
approval of the Administrative Agent shall not be required.  No Unrestricted Subsidiary may be a
Participating Subsidiary in a Permitted Accounts Receivable Securitization.


 


SECTION 17


 


FINANCIAL
COVENANTS


 


The Borrower hereby
agrees that, at any time when Revolving Loans or LC Obligations are outstanding
(and for this purpose, the term “LC Obligations” shall exclude the Stated
Amount of any outstanding and undrawn Letter of Credit for which the Borrower
or any Affiliate thereof has Cash Collateralized such LC Obligations to the
Administrative Agent (or the applicable Facing Agent) in an amount not less
than 105% of the Stated Amount of such Letter of Credit):


 


17.1.                     Senior Secured Leverage Ratio


 


Unless compliance
herewith is waived by the Majority Revolving Facility Lenders, the Borrower
will not permit for any Test Period ending on the last date of any Fiscal
Quarter, the Senior Secured Leverage Ratio to exceed 3.75 to 1.00.


 


SECTION 18


 


EVENTS
OF DEFAULT


 


18.1.                     Events of Default


 


Any of the following
events, acts, occurrences or states of facts shall constitute an “Event of
Default” for purposes of this Agreement:


 


A.                                   Failure to Make Payments When Due. 
There shall occur a default in the payment of (i) principal on any
of the Loans or any reimbursement obligation with respect to any Letter of
Credit; or (ii) interest on any of the Loans or any fee or any other
amount owing 


 


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hereunder or under
any other Loan Document when due and such default in payment shall continue for
five (5) Business Days; or


 


B.                                     Representations and Warranties. 
Any representation or warranty made by or on the part of the Borrower or
any Credit Party, as the case may be, contained in any Loan Document or any
document, instrument or certificate delivered pursuant hereto or thereto shall
have been incorrect or misleading in any material respect when made or deemed
made; or


 


C.                                     Covenants.  The Borrower
shall (i) default in the performance or observance of any term, covenant,
condition or agreement on its part to be performed or observed under Article VIII
or Article IX hereof or Sections 3.8,
7.3(a), 7.9, 7.10 or 7.11 or (ii) default
in the due performance or observance by it of any other term, covenant or
agreement contained in this Agreement and such default shall continue
unremedied for a period of thirty (30) days after written notice to the
Borrower by the Administrative Agent or any Lender; provided that any Revolver Event of Default shall not
constitute an Event of Default with respect to any of the Term Facilities until
the earlier of (x) the date that is forty-five (45) days after the date
such Event of Default arises with respect to the Revolving Facility and (y) the
date on which the Administrative Agent exercises any remedies with respect to
the Revolving Facilities in accordance with the provisions of this Section 10.1;
and provided, further, that any Revolver Event of Default may be
waived from time to time by the Majority Revolving Facility Lenders pursuant to
Section 9.1; or


 


D.                                    Default Under Other Loan Documents. 
Any Credit Party shall default in the performance or observance of any
term, covenant, condition or agreement on its part to be performed or observed
hereunder or under any Loan Document (and not constituting an Event of Default
under any other clause of this Section 10.1) and such default shall
continue unremedied for a period of thirty (30) days after written or
telephonic (immediately confirmed in writing) notice thereof has been given to
the Borrower by the Administrative Agent; or


 


E.                                      Voluntary Insolvency, Etc. 
The Borrower or any of its Material Subsidiaries shall become insolvent
or generally fail to pay, or admit in writing its inability to pay, its debts
as they become due, or shall voluntarily commence any proceeding or file any
petition under any bankruptcy, insolvency or similar law or seeking dissolution
or reorganization or the appointment of a receiver, trustee, administrator,
custodian, liquidator or similar officer for it or a substantial portion of its
property, assets or business or to effect a plan or other arrangement with its
creditors, or shall file any answer admitting the material allegations of an
involuntary petition filed against it in any bankruptcy, insolvency or similar
proceeding, or shall be adjudicated bankrupt, or shall make a general
assignment for the benefit of creditors, or shall consent to, or acquiesce in
the appointment of, a receiver, trustee, custodian, administrator, liquidator
or similar officer for a substantial portion of its property, assets or
business, shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts or shall take any corporate action authorizing
any of the foregoing; or


 


F.                                      Involuntary Insolvency, Etc. 
Involuntary proceedings or an involuntary petition shall be commenced or
filed against the Borrower or any of its Material Subsidiaries under any
bankruptcy, insolvency or similar law or seeking the dissolution or
reorganization of it or the appointment of a receiver, trustee, custodian,
administrator, liquidator or similar officer for 


 


139

















 


it or of a
substantial part of its property, assets or business, or any similar writ,
judgment, warrant of attachment, execution or 
process shall be issued or levied against a substantial part of its
property, assets or business, and (other than a petition for administration)
such proceedings or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded, within sixty (60) days after commencement, filing or
levy, as the case may be, or any order for relief shall be entered in any such
proceeding; or


 


G.                                     Default Under Other Agreements.  (i) The
Borrower or any of its Subsidiaries shall default in the payment when due,
whether at stated maturity or otherwise, of any amount pursuant to any
Indebtedness (other than Indebtedness owed to the Lenders under the Loan
Documents) in excess of $50,000,000 in the aggregate beyond the period of grace
if any, provided in the instrument or agreement under which such Indebtedness
was created, or (ii) a default shall occur in the performance or
observance of any agreement under any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause (determined without regard to whether any notice of acceleration or
similar notice is required), any such Indebtedness to become due or be repaid
prior to its stated maturity or (iii) any such Indebtedness of the
Borrower or any of its Subsidiaries shall be declared to be due and payable, or
required to be prepaid (other than such Indebtedness that is required to be
prepaid upon a “Change of Control” under a Public Note Document that would not
cause a Change of Control hereunder) other than by a regularly scheduled
required prepayment (other than with proceeds of the event giving rise to such
prepayment), prior to the stated maturity thereof; or


 


H.                                    Invalidity of Subordination Provisions. 
The subordination provisions of any agreement or instrument governing
the Senior Subordinated Note (2013) Documents, the Senior Subordinated Note
(2014) Documents, the Senior Subordinated Note (2015) Documents or any other
subordinated Indebtedness in excess of $50,000,000 is for any reason revoked or
invalidated, or otherwise cease to be in full force and effect, any Person
contests in any manner the validity or enforceability thereof or denies that it
has any further liability or obligation thereunder, or the Loans and the other
Obligations hereunder entitled to receive the benefits of any Loan Document is
for any reason subordinated or does not have the priority contemplated by this
Agreement or such subordination provisions; or


 


I.                                         Judgments. One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving, individually or in
the aggregate, a liability (to the extent not paid or covered by a reputable
insurance company or indemnitor as to which coverage or indemnification, as the
case may be, has not been disclaimed) of $50,000,000 or more and all such
judgments or decrees shall not have been vacated, discharged, satisfied, stayed
or bonded pending appeal within thirty (30) days from the entry thereof; or


 


J.                                        Security Documents. 
At any time after the execution and delivery thereof, any of the
Security Documents shall cease to be in full force and (other than as permitted
pursuant to the provisions thereof or hereof) cease to create a valid and
perfected lien on and 


 


140

















 


security interest
in, any material portion of the Collateral having the lien priority required by
this Agreement and the Security Documents; or


 


K.                                    Guaranties.  Any Guaranty
or any provision thereof shall (other than as a result of the actions taken by
the Administrative Agent or the Lenders to release such Guaranty) cease to be
in full force and effect in accordance with its terms (other than as permitted
pursuant to the terms hereof and thereof), or any Credit Party or any Person
acting by or on behalf of such Guarantor shall deny or disaffirm such Credit
Party’s obligations under any Guaranty; or


 


L.                                      ERISA.  (a) Either
(i) any Reportable Event which the Required Lenders determine constitutes
reasonable grounds for the termination of any Plan by the PBGC or of any
Multiemployer Plan or for the appointment by the appropriate United States
District Court of a trustee to administer or liquidate any Plan or
Multiemployer Plan shall have occurred, (ii) a trustee shall be appointed
by a United States District Court to administer any Plan or Multiemployer Plan,
(iii) the PBGC shall institute proceedings to terminate any Plan or Multiemployer
Plan or to appoint a trustee to administer any Plan; (iv) the Borrower or
any of its Subsidiaries or any of their ERISA Affiliates shall become liable to
the PBGC or any other party under Section 4062, 4063 or 4064 of ERISA with
respect to any Plan; or (v) the Borrower or any of its Subsidiaries or any
of their ERISA Affiliates shall become liable to make a current payment with
respect to any Multiemployer Plan under Section 4201 et  seq.
of ERISA; if as of the date thereof or any subsequent date, the sum of each of
the Borrower’s and its Subsidiaries’ and their ERISA Affiliates’ various
liabilities (such liabilities to include, without limitation, any liability to
the PBGC or to any other party under Section 4062, 4063 or 4064 of ERISA
with respect to any Plan, or to any Multiemployer Plan under Section 4201 et
seq. of ERISA) as a result of such events listed in subclauses (i) through
(v) above exceeds $50,000,000; or (b) Either
(i) a foreign governmental authority has instituted proceedings to
terminate a Foreign Pension Plan or a foreign governmental authority has
appointed a trustee to administer any Foreign Pension Plan in place of the
existing administrator, in each case by reason of a distress termination within
the meaning of Section 4041(c) of ERISA, treating such Foreign
Pension Plan as if it were subject to ERISA; or (ii) any Foreign Pension
Plan that is required by applicable law to be funded in a trust or other
funding vehicle has failed to comply with such funding requirements; if, as of
the date thereof or as of any subsequent date, the sum of each of the Borrower’s
and its Subsidiaries’  various
liabilities to any Foreign Pension Plan solely as a result of such events
listed in subclauses (i) and (ii) of this clause (b) exceeds the
Dollar Equivalent of $50,000,000; or


 


M.                                 Change of Control.  A Change of
Control shall occur; or


 


N.                                    Receivables Facility.   Any event
(after the expiration of any applicable grace periods) as specified in the
Receivables Documents for any Permitted Accounts Receivable Securitization
related to Receivables Facility Attributed Indebtedness at such time of
$50,000,000 or more shall entitle the Persons (other than a Receivable
Subsidiary) financing Receivables Facility Assets pursuant to such Permitted
Accounts Receivable Securitization prior to the scheduled or mutually agreed
upon (at a time when no default exists thereunder) termination thereof to
terminate or permanently cease funding the financing of Receivables Facility
Assets pursuant to such Permitted Accounts Receivable Securitization.


 


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If any of the foregoing
Events of Default shall have occurred and be continuing, the Administrative
Agent, at the written direction of the Required Lenders, shall take one or more
of the following actions (provided that, in the case of an Event of
Default described in clause (c) above arising solely from a breach
of Section 9.1, prior to the earlier of (x) the date that is
forty-five (45) days after such Event of Default and (y) the date the
Administrative Agent exercises any remedies pursuant to this proviso, the
Administrative Agent shall take such actions (x) at the request of the
Majority Revolving Facility Lenders rather than the Required Lenders and (y) only
with respect to the Revolving Facility): (i) by written or oral or
telephonic notice (in the case of oral or telephonic notice confirmed in
writing immediately thereafter) to the Borrower declare the Total Commitments
to be terminated whereupon the Total Commitments shall forthwith terminate, (ii) by
written or oral or telephonic notice (in the case of oral or telephonic notice
confirmed in writing immediately thereafter) to the Borrower declare all sums
then owing by the Borrower hereunder and under the Loan Documents to be
forthwith due and payable, whereupon all such sums shall become and be
immediately due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived by the Borrower, (iii) terminate
any Letter of Credit in accordance with its terms, (iv) direct the
Borrower to pay (and the Borrower agrees that upon receipt of such notice, or
upon the occurrence of any Event of Default specified in Section 10.1(e) or
Section 10.1(f) with respect to the Borrower it will pay) to
the Administrative Agent at the Payment Office such additional amount of cash,
to be held as security by the Administrative Agent, as is equal to the Assigned
Dollar Value of the aggregate Stated Amount of all Letters of Credit issued for
the account of the Borrower and its Subsidiaries and then outstanding, and (v) enforce,
as the Administrative Agent (to the extent permitted under the applicable
Security Documents), or direct the Collateral Agent to enforce pursuant to the
Security Documents, as the case may be, all of the Liens and security interests
created pursuant to the Security Documents. 
In cases of any occurrence of any Event of Default described in Section 10.1(e) or
Section 10.1(f) with respect to the Borrower, the Loans,
together with accrued interest thereon, shall become due and payable forthwith
without the requirement of any such acceleration or request, and without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Borrower, any provision of this Agreement or any other
Loan Document to the contrary notwithstanding, and other amounts payable by the
Borrower hereunder shall also become immediately due and payable all without
notice of any kind.


 


Notwithstanding anything
to the contrary contained in this Agreement, upon the occurrence and during the
continuance of an Event of Default, (a) the Borrower irrevocably waives
the right to direct the application of any and all payments at any time or
times thereafter received by Agent from or on behalf of the Borrower, and the
Administrative Agent shall have the continuing and exclusive right to apply and
to reapply any and all payments received at any time or times after the
occurrence and during the continuance of an Event of Default.  Notwithstanding anything to the contrary
contained in this Agreement (including, without limitation, Article IV
hereof), all payments (including the proceeds of any Asset Disposition or other
sale of, or other realization upon, all or any part of the Collateral) received
after acceleration of the Obligations shall be applied:  first, to all fees, costs and expenses
incurred by or owing to the Administrative Agent and any Lender with respect to
this Agreement, the other Loan Documents or the Collateral; second, to
accrued and unpaid interest on the Obligations (including any interest which
but for the provisions of the Bankruptcy Code, would have accrued on such
amounts); third, to the principal amount of the Obligations outstanding
and to cash 


 


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collateralize
outstanding Letters of Credit (pro rata among all such Obligations based upon
the principal amount thereof or the outstanding face amount of such Letters of
Credit, as applicable, and with respect to amounts applied to Term Loans, pro
rata among all remaining Scheduled Term Repayments thereof).  Any balance remaining shall be delivered to
the Borrower or to whomever may be lawfully entitled to receive such balance or
as a court of competent jurisdiction may direct.


 


Anything in this Section 10.1
to the contrary notwithstanding, the Administrative Agent shall, at the request
of the Required Lenders, rescind and annul any acceleration of the Loans by
written instrument filed with the Borrower; provided that at the time such
acceleration is so rescinded and annulled: 
(A) all past due interest and principal (other than principal due
solely as a result of such acceleration), if any, on the Loans and all other
sums payable under this Agreement and the other Loan Documents shall have been
duly paid, and (B) no other Event of Default shall have occurred and be
continuing which shall not have been waived in accordance with the provisions
of Section 12.1 hereof.  Upon
any such rescission and annulment, the Administrative Agent shall return to the
Borrower any cash collateral delivered pursuant to the preceding paragraph.


 


18.2.                     Rights Not Exclusive


 


The rights provided for
in this Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law
or in equity, or under any other instrument, document or agreement now existing
or hereafter arising.


 


SECTION 19


 


THE
ADMINISTRATIVE AGENT


 


In this Article XI,
the Lenders agree among themselves as follows:


 


19.1.                     Appointment


 


The Lenders hereby
appoint JPMCB as the Administrative Agent (for purposes of this Article XI,
the term “Administrative Agent” shall, except for purposes of Section 11.9,
include JPMCB in its capacity as the Collateral Agent pursuant to the Security
Documents) to act as specified herein and in the other Loan Documents.  Each Lender hereby irrevocably authorizes and
each holder of any Note by the acceptance of such Note shall be deemed to
irrevocably authorize the Administrative Agent to take such action on its
behalf under the provisions hereof, the other Loan Documents (including,
without limitation, to give notices and take such actions on behalf of the
Required Lenders as are consented to in writing by the Required Lenders or all
Lenders, as the case may be) and any other instruments, documents and
agreements referred to herein or therein and to exercise such powers hereunder
and thereunder as are specifically delegated to the Administrative Agent by the
terms hereof and thereof and such other powers as are reasonably incidental
thereto.  The Administrative Agent may
perform any 


 


143

















 


of its duties
hereunder and under the other Loan Documents, by or through its officers,
directors, agents, employees or affiliates.


 


19.2.                     Nature of Duties


 


A.                                   The Administrative Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement.  The duties of the Administrative Agent shall
be mechanical and administrative in nature. 
EACH LENDER HEREBY ACKNOWLEDGES AND AGREES THAT,
SUBJECT TO SECTION 11.2(b), THE ADMINISTRATIVE AGENT SHALL NOT
HAVE, BY REASON OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, A FIDUCIARY
RELATIONSHIP TO OR IN RESPECT OF ANY LENDER.  Nothing in any of the Loan Documents,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of any of the Loan
Documents except as expressly set forth herein or therein.  Each Lender shall make its own independent
investigation of the financial condition and affairs of the Borrower in
connection with the making and the continuance of the Loans hereunder and shall
make its own appraisal of the credit worthiness of the Borrower, and the Administrative
Agent shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information
with respect thereto, whether coming into its possession before making of the
Loans or at any time or times thereafter. 
Except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the financial institution
serving as the Administrative Agent or any of its Affiliates in any
capacity.  The Administrative Agent will
promptly notify each Lender at any time that the Required Lenders have instructed
it to act or refrain from acting pursuant to Article X.


 


B.                                     The Administrative Agent hereby declares that it,
including in its capacity as Collateral Agent, holds and shall hold:


 


(a)                                  all rights, title and interest that may
now or hereafter be mortgaged, charged or assigned or otherwise secured in
favor of the Administrative Agent and/or the Collateral Agent by or pursuant to
the Loan Documents governed by English law and all proceeds of enforcement of
such security; and


 


(b)                                 the benefit of all representations,
covenants, guarantees, indemnities and other contractual provisions governed by
English law given in favor of the Administrative Agent and/or the Collateral
Agent (other than any such benefits given to the Administrative Agent and/or
the Collateral Agent solely for its own benefit), on trust (for which the
perpetuity period shall be 80 years) for itself and the other Lenders from time
to time.


 


19.3.                     Exculpation, Rights Etc.


 


Neither the
Administrative Agent nor any of its officers, directors, agents, employees or
affiliates shall be liable to any Lender for any action taken or omitted by
them 


 


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hereunder or under
any of the other Loan Documents, or in connection herewith or therewith, unless
caused by its or their gross negligence or willful misconduct.  The Administrative Agent shall not be
responsible to any Lender for any recitals, statements, representations or
warranties herein or for the execution, effectiveness, genuineness, validity, enforceability,
collectability, or sufficiency of any of the Loan Documents or any other
document or the financial condition of the Borrower.  The Administrative 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 Agreement or any of the Loan
Documents or any other document or the financial condition of the Borrower, or
the existence or possible existence of any Unmatured Event of Default or Event
of Default unless requested to do so by the Required Lenders.  The Administrative Agent may at any time
request instructions from the Lenders with respect to any actions or approvals
(including the failure to act or approve) which by the terms of any of the Loan
Documents, the Administrative Agent is permitted or required to take or to
grant, and if such instructions are requested, the Administrative Agent shall
be absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever to any Person for
refraining from any action or withholding any approval under any of the Loan
Documents until it shall have received such instructions from the Required
Lenders.  Without limiting the foregoing,
no Lender shall have any right of action whatsoever against the Administrative
Agent as a result of the Administrative Agent acting, approving or refraining
from acting or approving under any of the Loan Documents in accordance with the
instructions of the Required Lenders or, to the extent required by Section 12.1,
all of the Lenders.


 


19.4.                     Reliance


 


The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
notice, writing, resolution notice, statement, certificate, order or other document
or any telephone, telex, teletype, telecopier or electronic message reasonably
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person, and, with respect to all matters pertaining herein or to
any of the other Loan Documents and its duties hereunder or thereunder, upon
advice of counsel selected by the Administrative Agent.


 


19.5.                     Indemnification


 


To the extent the
Administrative Agent is not reimbursed and indemnified by the Borrower, the
Lenders will reimburse and indemnify the Administrative Agent for and against
any and all liabilities, obligations, losses, damages, claims, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent, acting pursuant hereto in such capacity, in any way
relating to or arising out of this Agreement or any of the other Loan Documents
or any action taken or omitted by the Administrative Agent under this Agreement
or any of the other Loan Documents, in proportion to each Lender’s
Aggregate  Pro Rata Share of the Total
Commitment; provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, claims, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent’s gross negligence or willful misconduct.  The obligations of the Lenders under this Section 11.5
shall survive the payment in full of the Notes and the termination of this
Agreement.


 


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For purposes of this Section 11.5,
“Aggregate Pro Rata Share” means, when used with reference to any Lender and
any described aggregate or total amount, an amount equal to the result obtained
by multiplying such desired aggregate or total amount by a fraction the
numerator of which shall be the aggregate principal amount of such Lender’s
Loans and the denominator of which shall be aggregate of all of the Loans outstanding
hereunder.


 


19.6.                     The Administrative Agent In Its
Individual Capacity


 


With respect to its Loans
and Commitments (and its Pro Rata Share of each Facility thereof), the
Administrative Agent shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender or holder of Obligations.  The terms “Lenders”, “holder of Obligations”
or “Required Lenders” or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual
capacity as a Lender, one of the Required Lenders or a holder of
Obligations.  The Administrative Agent
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with the Borrower or any Subsidiary or
affiliate of the Borrower as if it were not acting as the Administrative Agent
hereunder or under any other Loan Document, including, without limitation, the
acceptance of fees or other consideration for services without having to
account for the same to any of the Lenders.


 


19.7.                     Notice of Default


 


The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any Event
of Default or Unmatured Event of Default hereunder unless the Administrative
Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Event of Default or Unmatured Event of Default
and stating that such notice is a “notice of default”.  In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders.


 


19.8.                     Holders of Obligations


 


The Administrative Agent
may deem and treat the payee of any Obligation as reflected on the books and
records of the Administrative Agent 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 Administrative Agent pursuant to Section 12.8(c).
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 Obligation
shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Obligation or of any Obligation or Obligations granted in
exchange therefor.


 


19.9.                     Resignation by the Administrative Agent


 


A.                                   The Administrative Agent may resign from the
performance of all its functions and duties hereunder at any time by giving
fifteen (15) Business Days’ prior written notice to the Borrower and the
Lenders.  Such resignation shall take
effect upon the acceptance by a successor Administrative Agent of appointment
pursuant to clauses (b) and (c) below or as otherwise provided below.


 


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B.                                     Upon any such notice of resignation, the Required
Lenders shall appoint a successor Administrative Agent who shall be
satisfactory to the Borrower and shall be an incorporated bank or trust
company.


 


C.                                     If a successor Administrative Agent shall not have
been so appointed within said fifteen (15) Business Day period, the
Administrative Agent, with the consent of the Borrower, shall then appoint a
successor who shall serve as the Administrative Agent until such time, if any,
as the Required Lenders, with the consent of the Borrower, appoint a successor
the Administrative Agent as provided above.


 


D.                                    If no successor Administrative Agent has been
appointed pursuant to clause (b) or (c) by the twentieth (20th)
Business Day after the date such notice of resignation was given by the
Administrative Agent, the Administrative Agent’s resignation shall become
effective and the Required Lenders shall thereafter perform all the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders, with the consent of the Borrower, appoint a successor Administrative
Agent as provided above.


 


E.                                      Notwithstanding anything herein to the contrary, if at
any time the Required Lenders determine that the Person serving as
Administrative Agent is (without taking into account any provision in the
definition of “Defaulting Lender” requiring notice from or a determination by
the Administrative Agent or any other party) a Defaulting Lender, the Required
Lenders (determined after giving effect to Section 12.1) may, with
the consent of the Borrower and by notice to such Person, remove such Person as
Administrative Agent and, with the consent of the Borrower, appoint a
replacement Administrative Agent hereunder. 
Such removal will, to the fullest extent permitted by applicable law, be
effective on the date a replacement Administrative Agent is appointed in
accordance with this paragraph.


 


F.                                      In addition to the foregoing, if (i) a Revolving
Lender becomes, and during the period it remains, an Impaired Lender, and (ii) the
Borrower has failed to comply with its obligations pursuant to Section 3.8(a)(ii),
any Facing Agent and/or the Swing Line Lender may, upon prior written notice to
the Borrower and the Administrative Agent, resign as Facing Agent or Swing Line
Lender, respectively, effective at the close of business New York time on a
date specified in such notice (which date may not be less than 30 days after
the date of such notice); provided that such resignation by a Facing Agent will
have no effect on the validity or enforceability of any Letter of Credit then
outstanding or on the obligations of the Borrower or any Lender under this
Agreement with respect to any such outstanding Letter of Credit or otherwise to
the Facing Agent; and provided, further, that such resignation by the Swing
Line Lender will have no effect on its rights in respect of any outstanding
Swing Line Loans or on the obligations of the Borrower or any Lender under this
Agreement with respect to any such outstanding Swing Line Loan.


 


G.                                     Any resignation by the Administrative Agent pursuant
to Section 11.9(a) shall, unless the Administrative Agent gives
notice to the Borrower otherwise, also constitute its resignation as a Facing
Agent and the Swing Line Lender, and such resignation as a Facing Agent and the
Swing Line Lender shall become effective simultaneously with the discharge of
the Administrative Agent from its duties and obligations as set forth in Section 11.9(a) (except
as to already outstanding Letters of Credit and LC Obligations issued by it and
Swing Line Loans 


 


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made by it, as to
which such Facing Agent and the Swing Line Lender shall continue in such
capacities until the LC Obligations relating thereto shall be reduced to zero and
such Swing Line Loans shall have been repaid, as applicable, or until the
successor Administrative Agent shall succeed to the roles of a Facing Agent and
the Swing Line Lender in accordance with the next sentence and perform the
actions required by the next sentence). 
Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, unless the retiring Administrative Agent and such successor gives
notice to Borrower otherwise, (i) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the
retiring Facing Agent and Swing Line Lender and (ii) the successor Facing
Agent shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession and issued by the retiring
Facing Agent or make other arrangements satisfactory to the retiring Facing
Agent to effectively assume the obligations of the retiring Facing Agent with
respect to such Letters of Credit.  At
the time any such resignation of a Facing Agent shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the retiring
Facing Agent pursuant to Section 2.9(e).


 


H.                                    Notwithstanding the resignation of DB as
Administrative Agent and Collateral Agent (the “Resigning Agent”) as of
the Fifth Amendment Effective Date, the Borrower and each Lender agree that the
provisions of this Article XI and any other provisions of this
Agreement or any other Loan Document regarding payment of costs and expenses
and indemnification of the Administrative Agent or the Collateral
Agent, together with any provision of any Loan Document that shall accrue to
the benefit of any retiring or resigning Agent, shall continue to inure to the
benefit of the Resigning Agent on and following the Fifth Amendment Effective
Date with respect to actions of the Resigning Agent taken (i) on or prior
to the Fifth Amendment Effective Date, and (ii) subsequent to the Fifth
Amendment Effective Date pursuant to the Loan Documents or that certain
Successor Agency Agreement, dated as of the Fifth Amendment Effective Date, by
and among JPMorgan Chase Bank, N.A., the Resigning Agent and the Borrower.  DB shall be a third party beneficiary for
purposes of this Section 11.9(h).


 


19.10.              Administrative Agent or the Collateral Agent as UK
Security Trustee


 


A.                                   In
this Agreement, any rights and remedies exercisable by, any documents to be
delivered to, or any other indemnities or obligations in favor of the
Administrative Agent or the Collateral Agent shall be, as the case may be,
exercisable by, delivered to, or be indemnities or other obligations in favor
of, the Administrative Agent or the Collateral Agent (or any other Person
acting in such capacity) in its capacity as the UK Security Trustee to the
extent that the rights, deliveries, indemnities or other obligations relate to
the UK Security Documents or the security thereby created.  Any obligations of the Administrative Agent
or the Collateral Agent (or any other Person acting in such capacity) in this
Agreement shall be obligations of the Administrative Agent or the Collateral
Agent in its capacity as UK Security Trustee to the extent that the obligations
relate to the UK Security Documents or the security thereby created.  Additionally, in its capacity as UK Security
Trustee, the Administrative Agent or the Collateral Agent (or any other Person
acting in such capacity) shall have (i) all the rights, remedies and
benefits in favor of the Administrative Agent or the Collateral Agent contained
in the provisions of the whole of this Section 11.10; (ii) all
the powers of an absolute owner of the security constituted by the UK Security
Documents and (iii) all the rights, remedies and powers granted 


 


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to it and be subject to all the obligations and duties
owed by it under the UK Security Documents and/or any of the Loan Documents.


 


B.                                     Each
Lender, the Administrative Agent and the Collateral Agent hereby appoint the UK
Security Trustee to act as its trustee under and in relation to the UK Security
Documents and to hold the assets subject to the security thereby created as
trustee for itself and other Secured Parties on the trusts and other terms
contained in the UK Security Documents and the Administrative Agent and each
Secured Party hereby irrevocably authorize the UK Security Trustee to exercise
such rights, remedies, powers and discretions as are specifically delegated to
the UK Security Trustee by the terms of the UK Security Documents together with
all such rights, remedies, powers and discretions as are reasonably incidental
thereto.


 


C.                                     Any
reference in this Agreement to Liens stated to be in favor of the
Administrative Agent or the Collateral Agent shall be construed so as to
include a reference to Liens granted in favor of the UK Security Trustee.


 


D.                                    The
Lenders agree that at any time that the UK Security Trustee shall be a Person
other than the Administrative Agent or the Collateral Agent, such other Person
shall have the rights, remedies, benefits and powers granted to the
Administrative Agent or the Collateral Agent in its capacity as the UK Security
Trustee in this Agreement.


 


E.                                      Nothing in this Section 11.10
shall require the UK Security Trustee to act as a trustee at common law or to
be holding any property on trust, in any jurisdiction outside the United States
or the United Kingdom which may not operate under principles of trust or where
such trust would not be recognized or its effects would not be enforceable.


 


19.11.              The Joint Lead Arrangers, Joint Book Runners,
Co-Syndication Agents, Co-Documentation Agents and Senior Managing Agents.


 


Notwithstanding any other
provision of this Agreement or any provision of any other Loan Document, each
of the Joint Lead Arrangers, Joint Book Runners, Co-Syndication Agents,
Co-Documentation Agents and Senior Managing Agents are named as such for
recognition purposes only, and in their respective capacities as such shall
have no powers, duties, responsibilities or liabilities with respect to this
Agreement or the other Loan Documents or the transactions contemplated hereby
and thereby; it being understood and agreed that the Joint Lead Arrangers,
Joint Book Runners, Co-Syndication Agents, Co-Documentation Agents and Senior
Managing Agents shall be entitled to all indemnification and reimbursement
rights in favor of “Agents” as provided for under Section 11.5.  Without limitation of the foregoing, none of
Joint Lead Arrangers, Joint Book Runners, Co-Syndication Agents,
Co-Documentation Agents and Senior Managing Agents shall, solely by reason of
this Agreement or any other Loan Documents, have any fiduciary relationship in
respect of any Lender or any other Person.


 


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SECTION 20


 


MISCELLANEOUS


 


20.1.                     No Waiver; Modifications in Writing


 


A.                                   Except as expressly provided in this Agreement, no
failure or delay on the part of the Administrative Agent or any Lender in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy.  The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Administrative Agent or any Lender at law
or in equity or otherwise.  Neither this
Agreement nor any terms hereof may be amended, modified, supplemented, waived,
discharged, terminated or otherwise changed unless such amendment,
modification, supplement, waiver, discharge, termination or other change is in
writing signed by the Borrower and the Required Lenders; provided that
no such amendment, modification, supplement, waiver, discharge, termination or
other change shall, without the consent of each Lender (other than a Defaulting
Lender) with Obligations directly affected thereby in the case of the following
clause (i), (i) extend the final scheduled maturity of any Loan or Note
(including, without limitation, by amending or modifying the proviso contained
in the definition of Revolver Termination Date or Term B Loan Maturity Date),
or extend the stated maturity of any Letter of Credit beyond the Revolver
Termination Date, or reduce the rate or extend the time of payment of interest
(except for waivers of Default Rate interest) or fees thereon, or reduce or
forgive the principal amount thereof, (ii) release all or substantially
all of the Collateral (except as expressly provided in the Security Documents)
or release any Guarantor (other than (x) a Guarantor that is not a
Material Subsidiary or (y) in connection with a transaction permitted by Section 8.3),
(iii) amend, modify or waive any provision of this Section 12.1,
(iv) reduce the percentage specified in the definition of Required Lenders
(it being understood that, with the consent of the Required Lenders (or the
Lenders providing Additional Term Loans in the case of an amendment pursuant to
Section 2.1(a)(ii)), the definition of “Required Lenders” shall
include lenders with respect to additional revolving loans or term loans
pursuant to this Agreement so long as such additional revolving loans or term
loans are on substantially the same basis as the Revolving Loans or Term Loans,
as the case may be, are included on the date hereof) or (v) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement; provided, further, that no such amendment,
modification, supplement, waiver, discharge, termination or other change shall (1) increase
the Commitments of any Lender over the amount thereof then in effect without
the consent of such Lender (it being understood that waivers or modifications
of conditions precedent, covenants, Events of Default or Unmatured Events of
Default shall not constitute an increase of the Commitment of any Lender, and
that an increase in the available portion of any Commitment of any Lender shall
not constitute an increase in the Commitment of such Lender), (2) without
the consent of the applicable Facing Agent, amend, modify or waive any
provision of Section 2.9 or alter such Facing Agent’s rights or
obligations with respect to Letters of Credit that it has issued or may be
required to issue, (3) without the consent of the Administrative Agent,
amend, modify or waive any provision of Article XI as same applies
to the Administrative Agent or any other provisions as same relates to the
rights or obligations of the Administrative Agent, (4) without the consent
of the Administrative Agent, amend, modify or waive any provisions relating to
the rights or obligations of the Administrative 


 


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Agent under the
other Loan Documents, (5) without the consent of the Majority Lenders of
each Facility, amend the definition of Majority Lenders, (6) without the
consent of the Majority Lenders of the applicable Facility, amend the Scheduled
Term Repayments for such Facility, or (7) without the consent of the
Majority Lenders of each Facility which is being allocated a lesser prepayment,
repayment or commitment reduction, alter the required application of any
prepayments or repayments (or commitment reduction), as between the various
Facilities pursuant to Section 4.5(a) (although the Required
Lenders may waive in whole or in part, any such prepayment, repayment (other
than Scheduled Term Repayments) or commitment reduction so long as the
application, as amongst the various Facilities, of any such prepayment,
repayment or commitment reduction which is still required to be made is not
altered).


 


B.                                     If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso
to the third sentence of Section 12.1(a), the consent of the
Required Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then the Borrower shall have
the right, so long as all non-consenting Lenders whose individual consent is
required are treated as described in either clause (A) or (B) below,
to either (A) replace each such non-consenting Lender or Lenders (or, at
the option of the Borrower if the respective Lender’s consent is required with
respect to less than all Loans, to replace only the respective Loans of the
respective non-consenting Lender which gave rise to the need to obtain such
Lender’s individual consent) with one or more Replacement Lenders pursuant to Section 3.7
so long as at the time of such replacement, each such Replacement Lender
consents to the proposed amendment, modification, supplement. waiver,
discharge, termination or other change or (B) terminate such
non-consenting Lender’s Revolving Commitment and repay all outstanding Loans of
such Lender which gave rise to the need to obtain such Lender’s consent, in
accordance with Section 4.1(b) and 4.3; provided
that, unless the Revolving Commitment terminated and Loans repaid pursuant to
the preceding clause (B) are immediately replaced in full at such time
through the addition of new Lenders or the increase of the Commitments and/or
outstanding Loans of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause
(B), the specific consent of the Required Lenders (determined before giving
effect to the proposed action) thereto shall be required; provided, further,
that in any event the Borrower shall not have the right to replace a Lender,
terminate its Revolving Commitment or repay its Loans solely as a result of the
exercise of such Lender’s rights (and the withholding of any required consent
by such Lender) contemplated by the second proviso to the third sentence of Section 12.1(a).


 


C.                                     In addition, notwithstanding the foregoing, this
Agreement may be amended with the written consent of Administrative Agent,
Borrower and the Lenders providing the relevant Replacement Term Loans (as
defined below) to permit the refinancing or modification of all outstanding
Term Loans of any Facility (“Refinanced Term Loans”) with one or more
replacement or modified Term Facilities hereunder (“Replacement Term Loans”),
provided that (a) any Lender that does not consent to the amendment and
that holds Refinanced Term Loans receives payment in full of the principal
amount of and interest accrued on each Refinanced Term Loan made by it or is
replaced as provided in Section 3.7, (b) the aggregate
principal amount of such Replacement Term Loans shall not exceed the aggregate
principal amount of such Refinanced Term Loans unless the Required Lenders
(treating the Refinanced Loans of any Lender that does not provide Replacement
Term Loans as having been paid in full 


 


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immediately prior
to the amendment) shall approve such increase, (c) the Applicable Margin
for Eurocurrency Loans and the Applicable Margin for Base Rate Loans for the
Replacement Term Loans shall not be higher than such applicable margins for the
relevant Term Facility of Refinanced Term Loans unless the Required Lenders
(treating the Refinanced Loans of any Lender that does not provide Replacement
Term Loans as having been paid in full immediately prior to the amendment)
shall approve such increase, (d) the Weighted Average Life to Maturity of
such Replacement Term Loans shall not be shorter than the Weighted Average Life
to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all
other terms applicable to such Replacement Term Loans shall be substantially
identical to, or less favorable to the Lenders providing such Replacement Term
Loans than those applicable to such Refinanced Term Loans except to the extent
necessary to provide for covenants and other terms applicable to any period
after the latest final maturity of Term Loans in effect immediately prior to
such amendment unless the Required Lenders (treating the Refinanced Loans of
any Lender that does not provide Replacement Term Loans as having been paid in
full immediately prior to the amendment) shall approve such terms.


 


D.                                    Notwithstanding the foregoing, upon the execution and
delivery of all documentation required by Administrative Agent to be delivered
pursuant to Section 2.1(a)(ii) in connection with an
Additional Term Loan, this Agreement shall be deemed amended without further
action by any Lender to reflect, as applicable, the new Lenders and the terms
of such Additional Term Loan.


 


20.2.                     Further Assurances


 


The Borrower agrees to do
such further acts and things and to execute and deliver to the Administrative
Agent such additional assignments, agreements, powers and instruments, as the
Administrative Agent may reasonably require or deem advisable to carry into
effect the purposes of this Agreement or any of the Loan Documents or to better
assure and confirm unto the Administrative Agent its rights, powers and
remedies hereunder.


 


20.3.                     Notices, Etc


 


A.                                   Except where oral or telephonic instructions or
notices are authorized herein to be given, all notices, demands, instructions
and other communications required or permitted to be given to or made upon any
party hereto or any other Person shall be in writing and shall be personally
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, or by a reputable overnight or courier delivery service, or
by telecopier, and shall be deemed to be given for purposes of this Agreement
on the third day after deposit in registered or certified mail, postage
prepaid, and otherwise on the date that such writing is delivered or sent to
the intended recipient thereof, or in the case of notice delivered by telecopy,
upon completion of transmission with a copy of such notice also being delivered
under any of the other methods provided above, all in accordance with the
provisions of this Section 12.3. 
Unless otherwise specified in a notice sent or delivered in accordance
with the foregoing provisions of this Section 12.3, notices,
demands, instructions and other communications in writing shall be given to or
made upon the respective parties hereto at their respective addresses (or to
their respective telecopier numbers) indicated (i) in the case of any
Lender, in such Lender’s latest administrative questionnaire submitted to the
Administrative Agent, (ii) in the case of any 


 


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Assignee, in the
applicable Assignment and Assumption Agreement or (iii) in the case of any
other party hereto, on Schedule 12.3, and, in the case of telephonic
instructions or notices, by calling the telephone number or numbers indicated
for such party on such administrative questionnaire, such Assignment and
Assumption Agreement or Schedule 12.3, as the case may be.


 


B.                                     Notices and other communications to or by the
Administrative Agent, the Collateral Agent, the UK Security Trustee and the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites (the “Platform”)
pursuant to procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices pursuant to Article II, Section 4.1,
Section 4.3 and Section 7.3 unless otherwise agreed by
the Administrative Agent (or, as the case may be, the Collateral Agent or UK
Security Trustee) and the applicable Lender. 
The Administrative Agent, the Collateral Agent, the UK Security Trustee
or Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.


 


C.                                     Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgement from the intended recipient
(such as by the “return receipt requested” function, as available, return
e-mail or other written acknowledgement), provided that if such notice or other
communication is sent after 5:00 p.m. (New York City time), such notice or
communication shall be deemed to have been sent at the opening of business on
the next Business Day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.


 


D.                                    THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE”.  THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS,  OR THE ADEQUACY OF THE
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE
COMMUNICATIONS.  NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE
AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM.  IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR
ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”)
HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON OR ENTITY
FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN
TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE
ADMINISTRATIVE AGENT’S TRANSMISSION OF 


 


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COMMUNICATIONS
THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS
FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION
TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.


 


20.4.                     Costs, Expenses and Taxes


 


A.                                   Generally.  The Borrower
agrees (without duplication) to pay all reasonable costs and expenses of the
Administrative Agent in connection with the negotiation, preparation, printing,
typing, reproduction, execution and delivery of this Agreement and the other
Loan Documents and the documents and instruments referred to herein and therein
and any amendment, waiver, consent relating hereto or thereto or other
modifications of (or supplements to) any of the foregoing and any and all other
documents and instruments furnished pursuant hereto or thereto or in connection
herewith or therewith, including without limitation, the reasonable fees and
out-of-pocket expenses of Winston & Strawn LLP, special counsel to the
Administrative Agent and the UK Security Trustee, and any local counsel
retained by the Administrative Agent relative thereto or the reasonable
allocated costs of staff counsel as well as the fees and out-of-pocket expenses
of counsel, independent public accountants and other outside experts retained
by the Administrative Agent or the UK Security Trustee in connection with the
administration of this Agreement and the other Loan Documents, and all search
fees, appraisal fees and expenses, title insurance policy fees, costs and
expenses and filing and recording fees and all costs and expenses (including,
without limitation, Attorney Costs), if any, of the Administrative Agent, the
UK Security Trustee and the Lenders in connection with the enforcement of this
Agreement, any of the Loan Documents or any other agreement furnished pursuant
hereto or thereto or in connection herewith or therewith.  In addition, the Borrower shall pay any and
all present and future stamp, documentary transfer, excise, property, and other
similar taxes payable or determined to be payable in connection with the
execution, delivery or enforcement of this Agreement, any Loan Document, or
otherwise with respect to or in connection with any Loan Document, or the
making of any Loan (other than taxes based on the net income of the Lenders),
and agrees to save and hold the Administrative Agent, the UK Security Trustee
and each Lender harmless from and against any and all liabilities with respect
to or resulting from any delay by the Borrower in paying, or omission by the
Borrower to pay, such taxes.  Any portion
of the foregoing fees,  costs and
expenses which remains unpaid more than thirty (30) days following the
Administrative Agent’s, the UK Security Trustee’s, any Agents’ or any Lender’s
statement and request for payment thereof shall bear interest from the date
that the Borrower receives such statement and request to the date of payment,
for the first 10 days at the Base Rate, and thereafter at the Default
Rate.  Subject to Section 4.7,
the Borrower will indemnify and hold harmless the Administrative Agent, the UK
Security Trustee, each Agent and each Lender and each director, officer,
employee, partner, advisor, agent, attorney, trustee and Affiliate of the
Administrative Agent, the UK Security Trustee, each Agent and each Lender (each
such Person an “Indemnified Party”) from and against all losses, claims,
damages, penalties, obligations (including removal or remedial actions),
expenses or liabilities which arise out of, in any way relate to, or result
from the transactions contemplated by this Agreement or any of the other Loan
Documents and to reimburse each Indemnified Party upon their demand, for any
Attorney Costs incurred in connection with investigating, preparing to defend
or defending any such loss, claim, damage, liability, action or claim; provided,
however, (a) that no 


 


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Indemnified Party
shall have the right to be so indemnified hereunder for any loss, claim,
damage, penalties, obligations, expense or liability to the extent it arises or
results from the gross negligence or willful misconduct or bad faith of such
Indemnified Party as finally determined by a court of competent jurisdiction and
(b) that nothing contained herein shall affect the obligations and
liabilities of the Lenders to the Borrower contained herein.  If any action, suit or proceeding arising
from any of the foregoing is brought against the Administrative Agent, the UK
Security Trustee, any Agent, any Lender or any other Indemnified Party, the
Borrower will, if requested by the Administrative Agent, the UK Security
Trustee, any Agent, any Lender or any such Indemnified Party, resist and defend
such action, suit or proceeding or cause the same to be resisted and defended
by counsel reasonably satisfactory to the Person or Persons indemnified or
intended to be indemnified.  Each
Indemnified Party shall, unless the Administrative Agent, the UK Security
Trustee, an Agent, a Lender or other Indemnified Party has made the request
described in the preceding sentence and such request has been complied with,
have the right to employ its own counsel (or (but not as well as) staff
counsel) to investigate and control the defense of any matter covered by such
indemnity and the reasonable fees and expenses of such counsel shall be at the
expense of the indemnifying party. 
Excluding any liability to the extent arising out of the gross
negligence, willful misconduct or bad faith of any Indemnified Party as finally
determined by a court of competent jurisdiction, the Borrower further agrees to
indemnify and hold each Indemnified Party harmless from all loss, cost
(including Attorney Costs), liability and damage whatsoever incurred by any
Indemnified Party by reason of any violation of any Environmental Laws or
Environmental Permits or for the Release or threatened Release of any
Contaminants into the environment for which the Borrower or any of its
Subsidiaries has any liability or which occurs upon the Mortgaged Property or
which is related to any property currently or formerly owned, leased or
operated by or on behalf of the Borrower or any of its Subsidiaries, or by
reason of the imposition of any Environmental Lien in respect of the Borrower or
its Subsidiaries or which occurs by a breach of any of the representations,
warranties or covenants relating to environmental matters contained herein,
provided that, with respect to any liabilities arising from acts or failure to
act for which the Borrower or any of its Subsidiaries is strictly liable under
any Environmental Law or Environmental Permit, the Borrower’s obligation to
each Indemnified Party under this indemnity shall likewise be without regard to
fault on the part of the Borrower or any such Subsidiary.  If the Borrower shall fail to do any act or
thing which it has covenanted to do hereunder or any representation or warranty
on the part of the Borrower or any Subsidiary contained herein or in any other Loan
Document shall be breached, the Administrative Agent may (but shall not be
obligated to) do the same or cause it to be done or remedy any such breach, and
may expend its funds for such purpose, and will use its best efforts to give
prompt written notice to the Borrower that it proposes to take such
action.  Any and all amounts so expended
by the Administrative Agent shall be repaid to it by the Borrower promptly upon
the Administrative Agent’s demand therefor, with interest at the Default Rate
in effect from time to time during the period including the date so expended by
the Administrative Agent to the date of repayment.  To the extent that the undertaking to
indemnify, pay or hold harmless the Administrative Agent, the UK Security
Trustee or any Lender as set forth in this Section 12.4 may be
unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.   The obligations of the Borrower under this Section 12.4
shall survive the termination of this Agreement, the assignment by any Lender
of all or any part of its Credit Exposure hereunder and the discharge 


 


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of the Borrower’s other
Obligations hereunder.  Except
as specifically provided for in this Agreement, no party hereto shall be
entitled to recover from any other party hereto any amount in respect of
exemplary, punitive, special, indirect, remote, or speculative damages, including
lost profits.


 


B.                                     Foreign Exchange Indemnity. 
If any sum due from the Borrower under this Agreement or any order or
judgment given or made in relation hereto has to be converted from the currency
(the “first currency”) in which the same is payable hereunder or under
such order or judgment into another currency (the “second currency”) for
the purpose of (i) making or filing a claim or proof against the Borrower
with any Governmental Authority or in any court or tribunal, or (ii) enforcing
any order or judgment given or made in relation hereto, the Borrower shall
indemnify and hold harmless each of the Persons to whom such sum is due from
and against any loss actually suffered as a result of any discrepancy between (a) the
rate of exchange used to convert the amount in question from the first currency
into the second currency, and (b) the rate or rates of exchange at which
such Person, acting in good faith in a commercially reasonable manner,
purchased the first currency with the second currency after receipt of a sum
paid to it in the second currency in satisfaction, in whole or in part, of any
such order, judgment, claim or proof. 
The foregoing indemnity shall constitute a separate obligation of the
Borrower distinct from its other obligations hereunder and shall survive the
giving or making of any judgment or order in relation to all or any of such
other obligations.  Notwithstanding the
foregoing, payments of principal and interest on Loans denominated in Euros,
Sterling or an Alternative Currency, as the case may be, shall be made in
Euros, Sterling or such Alternative Currency, as the case may be.


 


C.                                     Notwithstanding the resignation of the Resigning Agent
as of the Fifth Amendment Effective Date, the Borrower agrees that the
provisions of this Section 12.4 and any other provisions of this
Agreement or any other Loan Document regarding payment of costs and expenses
and indemnification of the Administrative Agent or the Collateral
Agent, together with any provision of any Loan Document that shall accrue to
the benefit of any retiring or resigning Agent, shall continue to inure to the
benefit of the Resigning Agent on and following the Fifth Amendment Effective
Date with respect to actions of the Resigning Agent taken (i) on or prior
to the Fifth Amendment Effective Date, and (ii) subsequent to the Fifth
Amendment Effective Date pursuant to the Loan Documents or that certain
Successor Agency Agreement, dated as of the Fifth Amendment Effective Date, by
and among JPMorgan Chase Bank, N.A., the Resigning Agent and the Borrower.  DB shall be a third party beneficiary for
purposes of this Section 12.4(c).


 


20.5.                     Confirmations


 


Each of the Borrower and
each holder of any portion of the Obligations agrees from time to time, upon
written request received by it from the other, to confirm to the other in
writing (with a copy of each such confirmation to the Administrative Agent) the
aggregate unpaid principal amount of the Loan or Loans and other Obligations
then outstanding.


 


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20.6.                     Adjustment; Setoff


 


A.                                   If any lender (a “Benefited Lender”) shall at
any time receive any payment of all or part of its Loans, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by setoff, pursuant to events or proceedings of the nature
referred to in Section 10.1(e) or Section 10.1(f) hereof,
or otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender in respect of such other Lender’s Loans or interest
thereon not expressly provided hereby, such Benefited Lender shall purchase for
cash from the other Lenders such portion of each such other Lender’s Loans, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefited Lender to
share the excess payment or benefits of such collateral or proceeds ratably
with each Lender except to the extent expressly provided hereby; provided,
however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest unless the Benefited Lender from which such
excess payment is recovered is required by court order to pay interest thereon,
in which case each Lender returning funds to such Benefited Lender shall pay
its pro rata share of such interest.  The
Borrower agrees that each Lender so purchasing a portion of another Lender’s
Loans may exercise all rights of payment (including, without limitation, rights
of setoff) with respect to such portion as fully as if such Lender were the
direct holder of such portion.


 


B.                                     In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower, upon the
occurrence and during the continuance of an Event of Default, to setoff  and apply against any Obligations, whether
matured or unmatured, of the Borrower to such Lender, any amount owing from
such Lender to the Borrower, at or at any time after, the happening of  any of the above-mentioned events, and the aforesaid
right of setoff may be exercised by such Lender against the Borrower or against
any trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receivers, or execution, judgment or attachment creditor of the
Borrower, or against anyone else claiming through or against, the Borrower or
such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receivers, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of setoff shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant.  Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application
made by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.


 


C.                                     The Borrower expressly agrees that to the extent the
Borrower makes a payment or payments and such payment or payments, or any part
thereof, are subsequently invalidated, declared to be fraudulent or
preferential, set aside or are required to be repaid to a trustee, receiver, or
any other party under any bankruptcy act, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the
Indebtedness to the Lenders or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if said payment or payments
had not been made.


 


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20.7.                     Execution in Counterparts


 


A.                                   This Agreement may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and the
same Agreement.  Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.


 


B.                                     Electronic Execution of Assignments. 
The words “execution,” “signed,” “signature,” and words of like import
in any Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed signature
or the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.


 


20.8.                     Binding Effect; Assignment; Addition and
Substitution of Lenders


 


A.                                   This Agreement shall be binding upon, and
inure to the benefit of, the Borrower, the Administrative Agent, the Resigning
Agent, the Lenders, all future holders of the Notes and their respective
successors and assigns; provided, however, that the Borrower may
not assign its rights or obligations hereunder or in connection herewith or any
interest herein (voluntarily, by operation of law or otherwise) without the
prior written consent of the Administrative Agent and all of the Lenders.


 


B.                                     Each
Lender may at any time sell to one or more banks or other entities (“Participants”)
participating interests in all or any portion of its Commitment and Loans or
participation in Letters of Credit or any other interest of such Lender
hereunder (in respect of any Lender, its “Credit Exposure”).  In the event of any such sale by a Lender of
participating interests to a Participant, such Lender’s obligations under this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement.  At the time of the sale of a participating
interest, the Lender transferring the interest (i) shall cause the
Participant to provide the forms required under Section 4.7(d) as
if such Participant became a Lender on the date of the sale and (ii) shall,
if required under applicable law, deliver revised forms in accordance Section 4.7(d) reflecting
the portion of the interest sold and the portion of the interest retained.  Further, the Participant shall be subject to
the obligations of Section 3.6 and Section 4.7 as if
such Participant was a Lender.  The
Borrower agrees that if amounts outstanding under this Agreement or any of the
Loan Documents are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence and during the continuance of an
Event of Default, each Participant shall be deemed to have the right of setoff
in respect of its participating interest in amounts owing under this Agreement
and the Loan Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement or any
other Loan Document; provided, however, that such 


 


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right of setoff shall be subject to the obligation of such
Participant to share with the Lenders, and the Lenders agree to share with such
Participant, as provided in Section 12.6.  The Borrower also agrees that each Participant
shall be entitled to the benefits of Section 3.6 and Section 4.7
with respect to its participation in the Loans outstanding from time to time,
as if such Participant becomes a Lender on the date it acquired an interest
pursuant to this Section 12.8(b); provided that, no
participation shall be made to any Person under this section if, at the time of
such participation, the Participant’s benefits under Section 3.6 or
Section 4.7 would be greater than the benefits that the
participating Lender was entitled to under Section 3.6 or Section 4.7
(and if any participation is made in violation of the foregoing, the
Participant will not be entitled to the incremental amounts).  Each Lender agrees that any agreement between
such Lender and any such Participant in respect of such participating interest
shall not restrict such Lender’s right to approve or agree to any amendment,
restatement, supplement or other modification to, waiver of, or consent under,
this Agreement or any of the Loan Documents except to the extent that any of
the foregoing would (i) extend the final scheduled maturity of any Loan or
Note in which such Participant is participating (it being understood that
amending the definition of any Scheduled Term B Dollar Repayments (other than
the Term B Loan Maturity Date), shall not constitute an extension of the final
scheduled maturity of any Loan or Note) or extend the stated maturity of any
Letter of Credit in which such Participant is participating beyond the Revolver
Termination Date, or reduce the rate or extend the time of payment of interest
or fees on any such Loan, Note or Letter of Credit (except in connection with a
waiver of applicability of any post-default increase in interest rates) or
reduce the principal amount thereof, or increase the amount of the Participant’s
participation over the amount thereof then in effect (it being understood that
waivers or modifications of conditions precedent, covenants, representations,
warranties, Events of Default or Unmatured Events of Default or of a mandatory
reduction in Commitments shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be
permitted without the consent of any Participant if the Participant’s
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the
Collateral under all of the Security Documents (except as expressly provided in
the Loan Documents) supporting the Loans and/or Letters of Credit hereunder in
which such Participant is participating.


 


C.                                     Any
Lender may at any time assign to one or more Eligible Assignees, including an
Affiliate thereof (each an “Assignee”), all or any part of its Credit
Exposure pursuant to an Assignment and Assumption Agreement, provided
that any assignment of all or any portion of any Lender’s Credit Exposure to an
Assignee other than an Affiliate of such Lender or another Lender, or in the
case of a Lender that is a Fund, any Related Fund of any Lender (i) shall
be an assignment of its Credit Exposure in an amount not less than the Dollar
Equivalent of $1,000,000 (treating any Fund and its Related Funds as a single
Eligible Assignee) (or if less the entire amount of Lender’s Credit Exposure
with respect to such Facility, provided, that, if such Lender and its
Affiliates (or in the case of a Fund and its Related Funds) collectively hold
Credit Exposure at least equal to such minimum amounts, any one or more of such
Affiliates and/or Related Funds must simultaneously assign Credit Exposure such
that the aggregate Credit Exposure assigned satisfies such minimum amount) and (ii) shall
require the prior written consent of the Administrative Agent (not to be
unreasonably withheld) and, other than with respect to assignments by the Joint
Lead Arrangers, and their Affiliates during the primary syndication of this
Agreement, provided no Event of Default then exists and is 


 


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continuing, the Borrower (the consent of the Borrower not to be
unreasonably withheld or delayed), and; provided, further, that
notwithstanding the foregoing limitations, any Lender may at any time assign
all or any part of its Credit Exposure to any Affiliate of such Lender or to
any other Lender (or in the case of a Lender which is a Fund, to any Related
Fund of such Lender), except that no Revolving Lender may assign all or any
part of its Credit Exposure relating to the Revolving Facility to any Person
other than another Revolving Lender without the prior written consent (in each
case not to be unreasonably withheld or delayed) of the Administrative Agent,
each Facing Agent, the Swing Line Lender 
and, unless an Event of Default has occurred and is continuing, the
Borrower.  Upon execution of an
Assignment and Assumption Agreement and the payment of a nonrefundable
assignment fee of $3,500 (provided that no such fee shall be payable upon assignments
by any Lender which is a Fund to one or more Related Funds and only one such
fee shall be payable for contemporaneous assignments by a Lender to Related
Funds) in immediately available funds to the Administrative Agent at its
Payment Office in connection with each such assignment, written notice thereof
by such transferor Lender to the Administrative Agent and the recording by the
Administrative Agent of such assignment and the resulting effect upon the
Loans, Revolving Commitment of the assigning Lender and the Assignee, the
Assignee shall have, to the extent of such assignment, the same rights,
benefits and obligations as it would have if it were a Lender hereunder and the
holder of the Obligations (provided that the Borrower and the Administrative
Agent shall be entitled to continue to deal solely and directly with the
assignor Lender in connection with the interests so assigned to the Assignee
until written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee, shall have been
given to the Borrower  and the
Administrative Agent by the assignor Lender and the Assignee) and, if the
Assignee has expressly assumed, for the benefit of the Borrower, some or all of
the transferor Lender’s obligations hereunder, such transferor Lender shall be
relieved of its obligations hereunder to the extent of such assignment and
assumption, and except as described above, no further consent or action by the
Borrower, the Lenders, or the Administrative Agent shall be required.  At the time of each assignment pursuant to
this Section 12.8(c) to a Person which is not already a Lender
hereunder, the respective Assignee shall provide to the Borrower and the
Administrative Agent the appropriate forms and certificates as provided in Section 4.7(d),
if applicable.  Each Assignee shall take
such Credit Exposure subject to the provisions of this Agreement and to any
request made, waiver or consent given or other action taken hereunder, prior to
the receipt by the Administrative Agent and the Borrower of written notice of
such transfer, by each previous holder of such Credit Exposure.  Such Assignment and Assumption Agreement
shall be deemed to amend this Agreement and Schedule 1.1(a) hereto,
to  the extent, and only to the extent,
necessary to reflect the addition of such Assignee as a Lender and the
resulting adjustment of all or a portion of the rights and obligations of such
transferor Lender under this Agreement, the Maximum Commitment, the
determination of its Pro Rata Share (rounded to twelve decimal places), the
Loans, any outstanding Letters of Credit and any new Notes, if requested, to be
issued, at the Borrower’s expense, to 
such Assignee, and no further consent or action by the Borrower or the
Lenders shall be required to effect such amendments.


 


D.                                    The
Borrower authorizes each Lender to disclose to any Participant or Assignee
(each, a “Transferee”) and any prospective Transferee any and all
financial information in such Lender’s possession concerning the Borrower and
any Subsidiary of the Borrower which has been delivered to such Lender by the
Borrower pursuant to this Agreement or which has been delivered to such Lender
by the Borrower in connection with such Lender’s credit 


 


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evaluation of the Borrower prior to entering into this Agreement, provided
that, such Transferee or prospective Transferee agrees to treat any such
information which is not public as confidential in accordance with the terms of
Section 12.14 hereof.


 


E.                                      Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
pledge or assign all or any portion of its rights under this Agreement and the
other Loan Documents (including, without limitation, the Notes held by it) to
any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve
Board without notice to, or the consent of, the Borrower, provided that,
no such pledge or assignment of a security interest under this Section 12.8(e) shall
release a Lender from any obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto. 
Any Lender which is a fund may pledge all or any portion of its Notes or
Loans to its trustee or its security holders in support of its obligations to
its trustee.  No such pledge or
assignment shall release the transferor Lender from its obligations hereunder.


 


F.                                      In
the event that the holder of any Note (including any Lender) shall transfer
such Note, it shall immediately advise Administrative Agent and Borrower of such
transfer, and Administrative Agent and Borrower shall be entitled conclusively
to assume that no transfer of any Note has been made by any holder (including
any Lender) unless and until Administrative Agent and Borrower shall have
received written notice to the contrary. 
Except as otherwise provided in this Agreement or as otherwise expressly
agreed in writing by all of the other parties hereto, no Lender shall, by
reason of the transfer of a Note or otherwise, be relieved of any of its
obligations hereunder.  Each transferee
of any Note shall take such Note subject to the provisions of this Agreement
and to any request made, waiver or consent given or other action taken
hereunder, prior to the receipt by Administrative Agent and Borrower of written
notice of such transfer, by each previous holder of such Note, and, except as
expressly otherwise provided in such transfer, Administrative Agent and
Borrower shall be entitled conclusively to assume that the transferee named in
such notice shall hereafter be vested with all rights and powers under this
Agreement with respect to the Pro Rata Share of the Loans of the Lender named
as the payee of the Note which is the subject of such transfer.


 


20.9.                     CONSENT TO JURISDICTION; MUTUAL WAIVER OF JURY TRIAL


 


(A)                               EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT
SITTING IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, AND HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT TO SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN ANY SUCH UNITED STATES FEDERAL OR NEW YORK STATE COURT
AND THE BORROWER, THE ADMINISTRATIVE AGENT, THE UK SECURITY TRUSTEE AND EACH LENDER
IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS WHICH
ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION
OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.


 


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(B)                               AS A METHOD OF SERVICE, THE BORROWER, THE ADMINISTRATIVE
AGENT, THE UK SECURITY TRUSTEE AND EACH LENDER IRREVOCABLY CONSENT TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING, BROUGHT IN ANY
SUCH UNITED STATES FEDERAL OR NEW YORK STATE COURT BY THE DELIVERY OF COPIES OF
SUCH PROCESS TO THE BORROWER, THE ADMINISTRATIVE AGENT, THE UK SECURITY TRUSTEE
OR EACH RESPECTIVE LENDER, AS THE CASE MAY BE, AT THE ADDRESSES SPECIFIED
ON THEIR RESPECTIVE SIGNATURE PAGES TO THIS AGREEMENT OR BY CERTIFIED MAIL
DIRECT TO SUCH RESPECTIVE ADDRESSES.


 


(C)                               EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER
OR REMEDY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT.  THE TERMS AND THE PROVISIONS
OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT TO LENDERS ENTERING INTO
THIS AGREEMENT.


 


20.10.              GOVERNING LAW


 


THIS AGREEMENT AND EACH NOTE SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS
OF SAID STATE.


 


20.11.              Severability
of Provisions


 


Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.


 


20.12.              Headings


 


The Table of Contents and Article and Section headings
used in this Agreement are for convenience of reference only and shall not
affect the construction of this Agreement.


 


20.13.              Termination
of Agreement


 


This Agreement shall terminate when the Commitment of each Lender
has terminated and all outstanding Obligations and Loans have been paid in full
and all Letters of Credit have expired or been terminated; provided, however,
that the rights and remedies of the Administrative Agent and each Lender with
respect to any representation and warranty made by the Borrower pursuant to
this Agreement or any other Loan Document, and the indemnification provisions
contained in this Agreement and any other Loan Document, shall be continuing
and shall survive any termination of this Agreement or any other Loan Document.


 


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20.14.              Confidentiality


 


Each of the Lenders severally agrees to keep confidential all
non-public information pertaining to the Borrower and its Subsidiaries and
their respective predecessors in interest which is provided to it by any such
parties in accordance with such Lender’s customary procedures for handling
confidential information of this nature and in a prudent fashion, and shall not
disclose such information to any Person except (i) to the extent such
information is public when received by such Lender or becomes public thereafter
due to the act or omission of any party other than a Lender, (ii) to the
extent such information is independently obtained from a source other than the
Borrower or its Subsidiaries and such information from such source is not, to
such Lender’s knowledge, subject to an obligation of confidentiality or, if
such information is subject to an obligation of confidentiality, that
disclosure of such information is permitted, (iii) to an Affiliate of such
Lender (or its investment advisor), counsel, auditors, ratings agencies,
examiners of any regulatory authority having or asserting jurisdiction over
such Lender, accountants and other consultants retained by the Administrative
Agent or any Lender or to any Affiliate of a Lender which is a direct or
indirect contractual counterparty in swap agreements with the Borrower or a
Subsidiary of the Borrower or such contractual counterparty’s professional
advisor (so long as such contractual counterparty or professional advisor to
such contractual counterparty agrees to be bound by the provisions of this Section 12.14)
or to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender’s investment portfolio in connection with rating
issued with respect to such Lender, (iv) in connection with any litigation
or the enforcement of the rights of any Lender or the Administrative Agent
under this Agreement or any other Loan Document, (v) to the extent (x) required
by any applicable statute, rule or regulation or court order (including,
without limitation, by way of subpoena) or pursuant to the request of any
Governmental Authority having or asserting jurisdiction over any Lender or the
Administrative Agent or any of their respective affiliates; provided, however,
that in such event, if the Lender(s) are not legally prohibited from doing
so, the Lender shall provide the Borrower with prompt notice of such requested
disclosure so that the Borrower may seek a protective order or other
appropriate remedy, and, in any event, the Lenders will endeavor in good faith
to provide only that portion of such information which, in the reasonable
judgment of the Lender(s), is relevant and legally required to be provided (y) requested
by any nationally recognized rating agency that requires access to information
about a Lender’s investment portfolio in connection with rating issued with
respect to such Lender or (z) requested by any pledgee referred to in Section 12.8(e) or
a direct or indirect contractual counterparty in swap agreements with a Lender
or a Person that such Lender is a direct or indirect counterparty in a swap
agreement or such contractual counterparty’s professional advisor (so long as
such pledgee or contractual counterparty or professional advisor to such
contractual counterparty agrees to be bound by the provisions of this Section 12.14)
or (vi) to the extent disclosure to other entities is appropriate in
connection with any proposed or actual assignment or grant of a participation
by any of the Lenders of interests in this Agreement and/or any of the other
Loan Documents to such other entities (who will in turn be required to maintain
confidentiality as if they were Lenders parties to this Agreement).  In no event shall the Administrative Agent or
any Lender be obligated or required to return any such information or other
materials furnished by the Borrower.


 


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20.15.              Concerning
the Collateral and the Loan Documents


 


A.                                   Authority.  Each Lender authorizes and directs JPMCB and/or
its designated affiliate to act as Collateral Agent under the Collateral
Security Agreement and or UK Security Trustee under the UK Security Documents
and to enter into the Loan Documents relating to the Collateral (including,
without limitation, the Collateral Security Agreement) for the benefit of the
Lenders and the other Secured Parties. 
Each Lender agrees that any action taken by the Administrative Agent or
the Required Lenders (or, where required by the express terms hereof, a
different proportion of the Lenders) in accordance with the provisions hereof
or of the other Loan Documents, and the exercise by the Administrative Agent,
the Collateral Agent, the UK Security Trustee or the Required Lenders (or,
where so required, such different proportion) 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. Without limiting the
generality of the foregoing, the Administrative Agent or the Collateral Agent,
as the case may be, shall have the sole and exclusive right and authority to (i) act
as the disbursing and collecting agent for the Lenders with respect to all
payments and collections arising in connection herewith and with the Loan Documents
relating to the Collateral; (ii) execute and deliver each Loan Document
relating to the Collateral and accept delivery of each such agreement delivered
by the Borrower or any of its Subsidiaries, (iii) act as Collateral Agent
for the Lenders and certain other Secured Parties for purposes stated in the
Security Documents to the extent such perfection is required under the Loan
Documents, provided, however, the Collateral Agent hereby
appoints, authorizes and directs each Lender to act as collateral sub-agent for
the Collateral Agent and the Lenders for purposes of the perfection of all
security interests and Liens with respect to the Borrower’s and its
Subsidiaries’ respective deposit accounts maintained with, and cash and Cash
Equivalents held by, such Lender; (iv) manage, supervise and otherwise
deal with the Collateral; (v) take such action as is necessary or
desirable to maintain the perfection and priority of the security interests and
liens created or purported to be created by the Loan Documents, and (vi) except
as may be otherwise specifically restricted by the terms hereof or of any other
Loan Document, exercise all remedies given to the Administrative Agent or the
Lenders with respect to the Collateral under the Loan Documents relating
thereto, applicable law or otherwise.


 


B.                                     Release
of Collateral.


 


(a)                               The
Administrative Agent and the Lenders hereby direct the Administrative Agent,
the Collateral Agent or the UK Security Trustee, as the case may be, to
release, in accordance with the terms hereof, any Lien held by the
Administrative Agent, the Collateral Agent or the UK Security Trustee, as the
case may be, for the benefit of the Secured Parties (and in the case of a sale
of all of the assets or Capital Stock of a Subsidiary under clause (B) below,
to release the affected Subsidiary from its guaranty):


 


(i)                                     against
all of the Collateral, upon final and indefeasible payment in full of the Loans
and Obligations and termination hereof;


 


(ii)                                  against
any part of the Collateral sold, transferred or disposed of by the Borrower or
any of its Subsidiaries to the extent such sale, transfer or 


 


164

















 


disposition is permitted hereby (or permitted pursuant to a waiver
or consent of a transaction otherwise prohibited hereby);


 


(iii)                               against
any Collateral acquired by the Borrower or any of its Subsidiaries after the Closing Date and at least 70%
of the purchase price therefor is within 120 days of the acquisition thereof
financed with Indebtedness secured by a Lien permitted by Section 8.1(c);


 


(iv)                              so
long as no Default or Event of Default has occurred and is continuing, in the
sole discretion of the Administrative Agent upon the request of the Borrower,
against any part of the Collateral with a fair market value of less than
$10,000,000 in the aggregate during the term of this Agreement as such fair
market value may be certified to the Administrative Agent, the Collateral Agent
and the UK Security Trustee by the Borrower in an officer’s certificate
acceptable in form and substance to the Administrative Agent, the Collateral
Agent and the UK Security Trustee;


 


(v)                                 against
a part of the Collateral which release does not require the consent of all of
the Lenders as set forth in Section 12.1(a)(ii), if such release is
consented to by the Required Lenders;


 


(vi)                              against
the Collateral consisting of Receivables Facility Assets upon the entry by the
Borrower and/or its Subsidiaries into a Permitted Account Receivable
Securitization; provided, however, that (y) neither the Administrative
Agent nor the Collateral Agent nor the UK Security Trustee shall be required to
execute any such document on terms which, in its opinion, would expose it to
liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (z) such release
shall not in any manner discharge, affect or impair the Obligations or any
Liens upon (or obligations of the Borrower or any of its Subsidiaries in
respect of) all interests retained by the Borrower and/or any of its
Subsidiaries, including (without limitation) the proceeds of any sale, all of
which shall continue to constitute part of the Collateral; and


 


(vii)                           against any cash collateral securing LC
Obligations as contemplated by Section 5.4 and Article IX,
upon the written request of the Borrower to the Administrative Agent or the
applicable Facing Agent, as the case may be, if at the time of the release of
the Lien the Senior Secured Leverage Ratio, on a Pro Forma Basis, for the Test
Period for the most recently ended Fiscal Quarter was not in excess of 3.75 to
1.00.


 


(b)                              Each
of the Lenders hereby directs the Administrative Agent to (or to cause the
Administrative Agent to) execute and deliver or file such termination and
partial release statements and such other things as are necessary to release
Liens to be released pursuant to this Section 12.15 promptly upon
the effectiveness of any such release or enter into intercreditor agreements
contemplated or permitted herein.


 


165














 


C.                                     No
Obligation. 
Neither the Administrative Agent nor the Collateral Agent nor the UK
Security Trustee shall have any obligation whatsoever to any Lender or to any
other Person to assure that the Collateral exists or is owned by the Borrower
or any of its Subsidiaries or is cared for, protected or insured or has been
encumbered or that the Liens granted to the Administrative Agent, the
Collateral Agent or the UK Security Trustee herein or pursuant to the Loan
Documents have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority, or to
exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights, authorities
and powers granted or available to the Administrative Agent, the Collateral
Agent or the UK Security Trustee in any of the Loan Documents, it being
understood and agreed that in respect of the Collateral, or any act, omission
or event related thereto, the Administrative Agent the Collateral Agent or the
UK Security Trustee may act in any manner it may deem appropriate, in its sole
discretion, given the Administrative Agent’s, the Collateral Agent’s and the UK
Security Trustee’s own interests in the Collateral as one of the Lenders and
that neither the Administrative Agent nor the Collateral Agent nor the UK
Security Trustee shall have any duty or liability whatsoever to any Lender,
provided, that, notwithstanding the foregoing, the Administrative Agent, the
Collateral Agent and the UK Security Trustee shall be responsible for their
respective grossly negligent actions or actions constituting intentional
misconduct.


 


D.                                    Senior
Secured Note Liens. 
Each Lender hereby instructs Administrative Agent and the Collateral
Agent to enter into the Collateral Security Agreement and the Intercreditor
Agreement and the UK Security Trustee to enter into the UK Security Documents
and the Intercreditor Agreement and such amendments or modifications thereto
and to the other Security Documents consistent herewith and as Administrative
Agent or the Collateral Agent or the UK Security Trustee reasonably determines
to be necessary to cause the Liens on the Collateral securing the Obligations
(other than the Capital Stock Collateral) to be pari passu with the Liens on the Senior Secured Note
Obligations (as defined in the Intercreditor Agreement).  Each Lender agrees that it shall not
challenge or question in any proceeding the validity or enforceability of this Section 12.15(d) or
any corresponding provisions with respect thereto in the Collateral Security
Agreement or the Intercreditor Agreement.


 


20.16.              Intentionally
Omitted


 


20.17.              Registry


 


The Borrower hereby designates the Administrative Agent to serve
as the Borrower’s agent, solely for purposes of this Section 12.17
to maintain a register (the “Register”) on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment in respect of the principal amount of the Loans
of each Lender.  Failure to make any such
recordation, or any error in such recordation shall not affect the Borrower’s
obligations in respect of such Loans. 
With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans
shall remain owing to the transferor. 
The registration of assignment or transfer of all or part of any Commitments
and Loans shall be 


 


166

















 


recorded by the Administrative Agent on the Register only upon the
acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 12.8(c).  Coincident with the delivery of such an
Assignment and Assumption Agreement to the Administrative Agent for acceptance
and registration of assignment or transfer of all or part of a Loan, or as soon
thereafter as practicable, the assigning or transferor Lender shall surrender
the Note evidencing such Loan, and thereupon one or more new Notes in the same
aggregate principal amount then owing to such assignor or transferor Lender
shall be issued to the assigning or transferor Lender and/or the new Lender.  The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this Section 12.17.


 


20.18.              Accounts
Receivable Securitization


 


A.                                   By
its execution of this Agreement, each Lender agrees, for the benefit of the
holders from time to time of interests in trade receivables under the Permitted
Accounts Receivables Securitization not to:


 


(a)                                  challenge
the “true sale” characterization of the sales and transfers of Accounts
Receivables by  the Borrower or any
Participating Subsidiary to a Receivables Subsidiary pursuant to a Permitted
Accounts Receivable Securitization;


 


(b)                                 join
in any proceeding in whole or in part to commence or consent to the
commencement of a case against a Receivables Subsidiary under the Federal
Bankruptcy Code or any other applicable bankruptcy, insolvency or similar
federal or state law or file a petition seeking or consenting to reorganization
or relief under any applicable federal or state law relating to bankruptcy, or
seek or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of a Receivables Subsidiary
or any substantial part of its assets; or


 


(c)                                  assert
or consent to any attempt by any person to assert that a Receivables Subsidiary
should be substantively consolidated with the Borrower or any other Subsidiary.


 


B.                                     By
its execution of this Agreement, each Lender further authorizes the
Administrative Agent, the Collateral Agent and the UK Security trustee, in each
case, with the approval of the Administrative Agent, to enter into an
intercreditor agreement with the Persons providing a Permitted Accounts
Receivables Securitization as long as the provisions of any such agreement are
not materially more burdensome to the Lenders than are typical for like
receivables transactions.


 


20.19.              Certain
Guarantee Obligations.


 


The Borrower hereby guarantees all obligations of each of its
Subsidiaries (for so long as such Subsidiary remains a Subsidiary) under all
Interest Rate Agreements and Other Hedging Agreements entered into by such
Subsidiary with any Lender or any Affiliate of a 


 


167

















 


Lender (even if such Person subsequently ceases to be a Lender
hereunder for any reason), which obligations are pursuant to the terms of such
Interest Rate Agreements and Other Hedging Agreements expressly secured by the
security interests granted under the Collateral Security Agreement.  The provisions of Sections 4 through 9 of the
Subsidiary Guaranty are hereby incorporated herein by reference mutatis
mutandis as if all references to “Guarantor” and “Guaranteed Obligations” were
references to the Borrower and the obligations guaranteed by this Section 12.19,
respectively.


 


20.20.              Redesignation
of Unrestricted Subsidiaries


 


Any Unrestricted
Subsidiary may be redesignated as a Subsidiary provided that (i) the
Borrower shall have delivered to the Administrative Agent (not less than 30
days prior to the date the Borrower desires such redesignation to be effective)
a notice signed by a Responsible Financial Officer identifying the Unrestricted
Subsidiary to be so redesignated and providing such other information as the
Administrative Agent may request, (ii) immediately before and immediately
after the effectiveness of such redesignation, no Default or Event of Default
exists or will exist (including, without limitation, the permissibility of any
Investment, Indebtedness, Liens or other obligations existing at such
Subsidiary) and, if the Unrestricted Subsidiary is a Foreign Subsidiary, the
Borrower shall be in compliance with the provisions of Section 8.7(m) as
if the designation of such Unrestricted Subsidiary as a Subsidiary were an
Acquisition, (iii) Borrower has complied, to the extent applicable, with
the provisions of Section 7.11 and the applicable Subsidiary, on
the effective date of such redesignation is in compliance with the terms and
conditions of all applicable Security Documents, (iv) such Unrestricted
Subsidiary is the subsidiary of either the Borrower or a Subsidiary, (v) the
Administrative Agent has received such other documents (including without
limitation any additional security documents whether or not required by Section 7.11),
instruments and opinions as it may reasonably request in connection with such
redesignation, and all such instruments, documents and opinions shall be
reasonably satisfactory in form and substance to the Administrative Agent and (vi) on
the desired effective date of such redesignation, the Borrower shall deliver a
certificate from a Responsible Officer confirming clauses (ii) through
(v) above and that the representations and warranties contained in
this Agreement and the other Loan Documents are true and correct in all
material respects on the date of, and after giving effect to, such
redesignation as though made on such date (except to the extent such
representations and warranties are expressly made of a specified date in which
event they shall be true as of such date). 
Effective at the time of delivery of the certificate required pursuant
to clause (vi) above, the Unrestricted Subsidiary Investment Basket
shall be increased by (A) if such Unrestricted Subsidiary was so
designated after the Effective Date, the fair market value of such Subsidiary
or (B) if such Unrestricted Subsidiary was so designated on the Effective
Date, the lesser of (y) the aggregate amount of outstanding Investments
made after the Effective Date by the Borrower or any Subsidiary in such
Unrestricted Subsidiary or (z) the fair market value of such Unrestricted
Subsidiary immediately prior to the effective date of such redesignation.    The Borrower agrees that any merger or
consolidation of any Unrestricted Subsidiary with or into Borrower or any
Subsidiary shall be required to satisfy the conditions of this Section 12.20
prior to completing any such transaction.


 


168

















 


20.21.              Administrative Agent and Collateral Agent as Joint
Creditors


 


Each of the Credit
Parties and each Lender and Agent and the Collateral Agent agrees that each of
the Administrative Agent and Collateral Agent shall be a joint and several
creditor (in Dutch: hoofdelijk schuldeiser)
(together with the relevant Lender or Agent) of the Obligations and Guaranteed
Obligations owed to each Lender or Agent under or in connection with all Loan
Documents and that accordingly each of the Administrative Agent and Collateral
Agent will have its own independent right to demand payment and performance by
the obligors of such obligations. 
However, any discharge of a Credit Party of any such obligation to the
Administrative Agent, Collateral Agent or any other relevant Lender, Agent or
creditor referred to above, shall, to the same extent, discharge such Credit
Party vis-à-vis the others in respect of such obligation, and a Lender, Agent
and the Administrative Agent and Collateral Agent shall not by virtue of this Section be
entitled to pursue a Credit Party concurrently for the same obligation.


 


20.22.              Amendment With Respect to Revolver Events of Default.


 


No
amendment, modification or waiver of Section 9.1, any of the financial definitions used in determining
compliance with Section 9.1 or this Section 12.22 or
waiver of any Revolver Event of Default, may be effected without the consent of
the Majority Revolving Facility Lenders.


 


20.23.              Term C Dollar Lenders.


 


Each Term C Dollar
Lender agrees that upon the earlier to occur of (x) the Term B Loan
Maturity Date and (y) the date that all Term B Dollar Loans are prepaid or
repaid in full (for any reason) (such earlier date, the “Determination Date”):


 


(a)                                  Without limitation of any of the terms of
the Loan Documents or any provisions thereof, the Borrower shall have the right
in its sole discretion at any time to refinance or replace all of the
Facilities outstanding immediately prior to the Determination Date under this
Agreement (other than the Term C Dollar Facility) (collectively, the “Refinanced
Facility Debt”) pursuant to separate credit documentation.  In connection therewith:


 


(i)                                     all collateral, guarantees and other
credit support that secures, guarantees or otherwise supports the Term C Dollar
Facility pursuant to the Loan Documents (including, without limitation, the
Security Documents) shall be available (on a pari  passu basis in
payment and lien priority, and in any event on the same basis as the Facilities
are afforded under the Loan Documents as of the Fourth Amendment Effective
Date) to secure, guarantee or otherwise support any and all such Refinanced
Facility Debt, together with any other senior secured indebtedness of the
Borrower (including, without limitation, one or more revolving and/or term
credit facilities), in an aggregate principal amount not to exceed the greater
of (A) the principal amount of Refinanced Facility Debt outstanding on the
Determination Date (or its equivalent in any other currency) and (B) $2,100,000,000
(or its equivalent in any other currency) (such greater amount, the “Minimum
Floor Amount”), as the Minimum Floor Amount may be 


 


169

















 


reduced after the
Determination Date pursuant to the last sentence of the definition of “Permitted
Refinancing Indebtedness”; and


 


(ii)                                  the Loan Documents shall be amended and
other documents and agreements will be entered into (such amendments, documents
and agreements solely requiring the signatures of the Administrative Agent and
the Borrower to be effective) in order to effectuate the foregoing and to make
any necessary conforming changes.


 


(b)                                 Notwithstanding anything to the contrary
contained in Section 4.4(c)(i), no prepayment of proceeds from a
Recovery Event shall be required pursuant to such Section to the extent
that (x) no Event of Default or Unmatured Event of Default then exists and
(y) the Borrower delivers a certificate to the Administrative Agent on or
prior to such date stating that an amount equal to the proceeds of such
Recovery Event is expected to be used to purchase assets used or to be used in
the businesses referred to in Section 8.9 within 360 days following
the date of receipt of such proceeds (which certificate shall set forth the
estimates of the proceeds to be so expended); provided that (1) if all or
any portion of such proceeds not so applied to such prepayment are not so used
(or contractually committed to be used) within such 360 day period as provided
above, such remaining portion shall be applied on the last day of the period or
such earlier date as the Borrower is obligated to make an offer to purchase
Senior Secured Notes (2010) due to such Recovery Event as a mandatory repayment
of principal of outstanding Loans as provided in Section 4.4(c)(i) and
(2) if all or any portion of such proceeds result from a Recovery Event
involving Collateral owned by the Borrower or a Domestic Subsidiary (other than
the Capital Stock of a Foreign Subsidiary), then such proceeds shall be
required to be reinvested in assets located in the United States constituting
Collateral (to the extent not used to repay Loans pursuant to Section 4.4(c)(i)).


 


(c)                                  Article IX shall no longer apply for any purpose
under this Agreement (including, without limitation, for the purposes of Section 2.1(a)(ii),
Section 7.2(b), Section 8.7(j) and Section 8.7(m)).


 


(d)                                 “Permitted Refinancing Indebtedness”
shall mean, with respect to any Indebtedness, any Indebtedness refinancing,
extending, renewing or refunding such Indebtedness; provided, however, that any
such refinancing Indebtedness shall (i) be issued by the same obligor as
the Indebtedness being so refinanced (or by Huntsman Corporation or a Parent
Company) and be on terms, taken as a whole, not more restrictive than the terms
of the documents governing the Indebtedness being so refinanced; (ii) if
the Indebtedness being so refinanced is subordinated to the Obligations, be
subordinated to the Obligations on substantially the same terms (or on terms at
least as favorable to the Lenders) as Indebtedness being so refinanced; (iii) be
in a principal amount (as determined as of the date of the incurrence of such
refinancing Indebtedness in accordance with GAAP) not exceeding the principal
amount of the Indebtedness being refinanced on such date plus any call
premiums, prepayment fees, costs and expenses paid in connection with such
refinancing; (iv) not have a Weighted Average Life to Maturity less than
the Indebtedness being refinanced; (v) if the Indebtedness being
refinanced is Public Notes, be unsecured Indebtedness maturing no earlier than
the then latest Term Maturity Date; and (vi) be upon terms and subject to
documentation which is in form and substance reasonably satisfactory in all
material respects to the Administrative Agent. 
Notwithstanding 


 


170

















 


clauses
(ii) and (v) above, after the Determination Date, any such
Indebtedness refinancing, extending, renewing or refunding the Senior
Subordinated Notes (2013), the Senior Subordinated Notes (2014), the Senior Subordinated
Notes (2015), any similar senior subordinated notes, any senior unsecured notes
and any senior secured notes may be senior second-lien notes, senior unsecured
notes and, to the extent capacity exists pursuant to the Minimum Floor Amount,
senior first-lien secured notes (provided that the Minimum Floor Amount shall
be reduced after the Determination Date by the aggregate principal amount of
any senior first-lien secured Indebtedness incurred pursuant to this sentence,
unless such Permitted Refinancing Indebtedness refinances, extends, renews or
refunds senior first-lien secured Indebtedness).


 


[signature pages follow]


 


171














 


EXHIBIT C TO


FIFTH AMENDMENT TO THE


HUNTSMAN INTERNATIONAL LLC


CREDIT AGREEMENT


 


Exhibit 2.l(c)


 


FORM OF


SWING LINE LOAN
PARTICIPATION CERTIFICATE


 


[Name of Revolving Lender]


 


 


 


 


Dear Sir or Madam:


 


Pursuant to Section 2.1(c)(iii) of
the Credit Agreement, dated as of August 16, 2005 (as amended, amended and
restated, supplemented or otherwise modified from time to time), among Huntsman
International LLC, JPMorgan Chase Bank, N.A., as Administrative Agent for the
Lenders, and the financial institutions signatory thereto, the undersigned
hereby acknowledges receipt from you of
$                      (1)as
payment for a participating interest in the following Swing Line Loan:


 


Date
of Swing Line Loan:


 


Principal
Amount of Swing Line Loan:


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 






     (1)              This amount is equal to such
Revolving Lender’s Pro Rata Share of the Dollar Equivalent of the Swing Line
Loan.


 

















 


EXHIBIT D TO


FIFTH AMENDMENT TO THE


HUNTSMAN INTERNATIONAL LLC


CREDIT AGREEMENT


 


Exhibit 2.2(a)(2)


 


FORM OF


REVOLVING NOTE


 


	
  $

  	
  New
  York, New York       

  



          ,20  


 


FOR VALUE RECEIVED, the
undersigned, HUNTSMAN INTERNATIONAL LLC, a Delaware limited liability company (“Borrower”),
hereby unconditionally promises to pay to the order of
                                    
(the “Lender”) at the office of JPMorgan Chase Bank, N.A., located at 1111
Fannin, 10th Floor, Houston, Texas 77002, in the Applicable Currency in which
such Revolving Loan was made, in funds customary for the settlement of
international transactions in such Applicable Currency and in immediately
available funds, the Dollar Equivalent principal amount of (a)                                   
($                    ),
or, if less, (b) the aggregate unpaid principal amount of all Revolving
Loans made by the Lender to Borrower pursuant to Section 2.1(b) of
the Credit Agreement hereinafter referred to. The principal amount of each
Revolving Loan evidenced hereby shall be payable as set forth in the Credit
Agreement hereinafter referred to, with any then outstanding principal amount
of the Revolving Loans made by the Lender being payable on the Revolver
Termination Date.  Borrower further
agrees to pay interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the applicable interest rate per
annum determined as provided in, and payable as specified in, Articles III and
IV of the Credit Agreement.


 


The holder of this Revolving
Note is authorized to record the date, Type, currency and amount of each
Revolving Loan made by the Lender pursuant to Section 2.1 of the Credit
Agreement, each continuation thereof, the date of each interest rate conversion
pursuant to Section 2.6 of the Credit Agreement and the Assigned Dollar
Value of the principal amount subject thereto, the date and amount of each
payment or prepayment of principal hereof, and in the case of each Eurocurrency
Loan, the length of the Interest Period with respect thereto on the records of
the Lender, and any such recordation shall (in the absence of manifest error)
constitute prima  facie evidence of the accuracy of the
information recorded; provided, however, that the failure to make any such
recordation shall not affect the obligations of Borrower in respect of such
Revolving Loan.


 


This Revolving Note is one
of the Revolving Notes referred to in the Credit Agreement dated as of August 16,
2005, as amended through the Fifth Amendment (and as further amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among the Borrower, JPMorgan Chase Bank, N.A., as a Lender and Administrative
Agent for the Lenders, and the financial institutions signatory thereto, and is
subject to the provisions thereof, and is subject to optional and mandatory
prepayment in whole or in part as provided therein. Terms defined in the Credit
Agreement are used herein with their defined meanings unless otherwise defined
herein.


 


Upon the occurrence and
during the continuance of anyone or more of the Events of Default specified in
the Credit Agreement, all amounts then remaining unpaid on this Revolving Note
may become, or may be declared to be, immediately due and payable, all as
provided therein.


 


1

















 


All parties now and
hereafter liable with respect to this Revolving Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand,
protest and all other notices of any kind.


 


THIS REVOLVING NOTE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK.


 


	
   

  	
  HUNTSMAN
  INTERNATIONAL LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2

















 


EXHIBIT E TO


FIFTH AMENDMENT TO THE


HUNTSMAN INTERNATIONAL LLC


CREDIT AGREEMENT


 


Exhibit 2.2(a)(3)


 


FORM OF


SWING LINE NOTE


 


	
  $

  	
  New
  York, New York

  



          ,
20   


 


FOR VALUE RECEIVED, the
undersigned, Huntsman International LLC, a Delaware limited liability company (“Borrower”),
unconditionally promises to pay to the order of JPMorgan Chase Bank, N.A. (“Swing
Line Lender”) or its registered assigns, at the office of Swing Line Lender,
located at 1111 Fannin, 10th Floor, Houston, Texas 77002 or such other office
as Swing Line Lender may request, in the Applicable Currency in which such
Swing Line Loan was made, in funds customary for the settlement of
international transactions in such Applicable Currency and in immediately
available funds, the Dollar Equivalent principal amount of the aggregate unpaid
principal amount of all Swing Line Loans made by Swing Line Lender to the
undersigned pursuant to Section 2.1(c) of the Credit Agreement.  The principal amount of each Swing Line Loan
evidenced hereby shall be payable as set forth in the Credit Agreement
hereinafter referred to, with any outstanding principal amount of the Swing
Line Loans made by Swing Line Lender being payable on the Revolver Termination
Date.  Borrower further agrees to pay
interest on the unpaid principal amount hereof in like money from time to time
from the date hereof at the rates and on the dates specified in Articles III
and IV of the Credit Agreement.  Swing
Line Lender is authorized to record the information set forth in Section 2.1(c) of
the Credit Agreement on the records of Swing Line Lender, and any such
recordation shall (in the absence of manifest error) constitute prima  facie
evidence of the accuracy of the information so recorded; provided, however,
that the failure of Swing Line Lender to make such recordation (or any error in
such recordation) shall not affect the obligations of Borrower hereunder or
under the Credit Agreement.


 


This Swing Line Note is a
Swing Line Note referred to in the Credit Agreement dated as of August 16,
2005, as amended through the Fifth Amendment (and as further amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Borrower, JPMorgan Chase Bank, N.A., as Administrative Agent for the
Lenders, and the financial institutions signatory thereto, and is subject to
the provisions thereof, and is subject to optional and mandatory prepayment in
whole or in part as provided therein. 
Terms defined in the Credit Agreement are used herein with their defined
meanings unless otherwise defined herein.


 


Upon the occurrence and
during the continuance of anyone or more of the Events of Default specified in
the Credit Agreement all amounts then remaining unpaid on this Swing Line Note
may become, or may be declared to be, immediately due and payable as provided
in the Credit Agreement.


 


All parties now and
hereafter liable with respect to this Swing Line Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive presentment,
demand, protest and all other notices of any kind.


 


1

















 


THIS SWING LINE NOTE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK.


 


	
   

  	
  HUNTSMAN
  INTERNATIONAL LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2

















 


EXHIBIT F TO


FIFTH AMENDMENT TO THE


HUNTSMAN INTERNATIONAL LLC


CREDIT AGREEMENT


 


Exhibit 2.5


 


FORM OF


NOTICE OF BORROWING(2)


 


Date:                    


 


JPMorgan
Chase Bank, N.A.


1111
Fannin, 10th Floor


Houston,
Texas 77002


as
Administrative Agent


 


Attention:
Monica M Espitia


Telecopy:
713-427-6307


 


Dear
Sir or Madam:


 


Reference is made to that
certain Credit Agreement, dated as of August 16, 2005, as amended through
the Fifth Amendment (and as further amended, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among Huntsman International
LLC, a Delaware limited liability company (the “Borrower”), JPMorgan
Chase Bank, N.A., as Administrative Agent for the Lenders, and the financial
institutions signatory thereto. 
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.  The undersigned hereby gives notice pursuant
to Section 2.5 of the Credit Agreement of its request for the Lenders to
make a Borrowing as follows:


 


	
  1.

  	
  Aggregate
  Principal Amount to be Borrowed(3)

  



 






     (2)              Such irrevocable written notice
must be given (x) not later than 1:00 p.m., New York City time at the
Notice Office, (A) at least three Business Days prior to the requested
borrowing date, if all or any part of the requested Revolving Loans are to be
Dollar-denominated Eurocurrency Loans or (B) at least four Business days
prior to the requested borrowing date, if all or any part of the requested
Revolving Loans are to be Eurocurrency Loans denominated in an Alternative
Currency; (y) not later than 1:00 p.m., New York City time, at least
one Business Day prior to the requested borrowing date, with respect to
Borrowings of Base Rate Loans; and (z) no later than 1:00 p.m., New
York City time, (A) on the Business Day of the requested borrowing date,
with respect to Dollar-denominated Swing Line Loans or (B) at least one
Business Day prior to the requested borrowing date, with respect to Swing Line
Loans denominated in an Alternative Currency.


 


     (3)              Each Borrowing under the Revolving
Commitments shall be not less than (x) in the case of Base Rate Loans,
Three Million Dollars ($3,000,000) and, if greater, in integral multiples of
One Million Dollars ($1,000,000) (or, if less, the then Total Available
Revolving Commitment); (y) in the case of Eurocurrency Loans, Five Million
Dollars ($5,000,000), in the case of a Borrowing in Dollars, Two Million Pounds
(£2,000,000), in the case of a Borrowing in Sterling, and Five Million Euros
(€5,000,000), in the case of a Borrowing in Euros and, if greater, in integral
multiples (i) in the case of a Borrowing in Dollars, One Million Dollars
($1,000,000), (ii) in the case of a Borrowing in Sterling, Seven Hundred
Fifty Thousand Pounds (£750,000) or (iii) in the case of a Borrowing in


 


1

















 


	
  2.

  	
  Borrowing
  Date

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Type
  of Loan or combination thereof(4)

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  If Borrowing is to
  include Eurocurrency Loans indicate:

  	
   

  	
  Eurocurrency
  Loan

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Amount

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Initial
  Interest Period

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  If
  Borrowing is to include Revolving Loans indicate:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Overdraft
  Reserve Amount

  	
   

  	
  $

  	
   

  	
   

  



 


The undersigned represents
and warrants that the borrowing requested hereby complies with the requirements
of Section 2.1, if applicable, and Section 5.2 of the Credit
Agreement.


 


	
   

  	
  HUNTSMAN
  INTERNATIONAL LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 






 


Euros,
One Million Euros (€1,000,000) in excess thereof (or, if less, the then Total
Available Revolving Commitment); and (z) in the case of Swing Line Loans,
Five Hundred Thousand Dollars ($500,000) (or the Dollar Equivalent thereof in
an Alternative Currency) and in any amount greater than such amount (or, if
less, the then Total Available Revolving Commitment or Swing Line Commitment).


 


     (4)              Specify whether Borrowing is to be
Eurocurrency Loans, Base Rate Loans, a combination thereof, or a Swing Line
Loan at the applicable Interest Rate.


 


2














 


EXHIBIT G TO


FIFTH AMENDMENT TO THE


HUNTSMAN INTERNATIONAL LLC


CREDIT AGREEMENT


 


Exhibit 2.6


 


FORM OF


NOTICE OF CONVERSION OR
CONTINUATION(5)


 


JPMorgan Chase Bank, N.A.


1111 Fannin, 10th Floor


Houston, Texas 77002


 


Attention: Monica M. Espitia


Telecopy: 713-427-6307


 


Dear Sir or Madam:


 


Reference is made to that
certain Credit Agreement, dated as of August 16, 2005, as amended through
the Fifth Amendment (and as further amended, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among Huntsman International
LLC, a Delaware limited liability company (the “Borrower”), JPMorgan
Chase Bank, N.A., as the administrative agent (the “Administrative Agent”),
and the financial institutions signatory thereto. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement. The undersigned hereby gives notice pursuant to Section 2.6
of the Credit Agreement that it (a) [elects to convert Base Rate Loans
into Eurocurrency Loans]; (b) [elects to convert Eurocurrency Loans into
Base Rate Loans]; or (c)  [elects to continue Eurocurrency Loans for an
additional Interest Period] under the Credit Agreement, and sets forth below
the terms on which such [conversion] [continuation] is requested to be made:


 


	
   

  	
  [Date
  of conversion or continuation (which is a Business Day)(6)]

  	
   

  



 






     (5)              This notice must be received by
Agent at its Notice Office not later than 1:00 p.m. (New York City time)
at least (i) three Business Days in advance of the conversion date or
continuation date, if the Loans are to be converted into or continued as
Eurocurrency Loans, (ii) one Business Day in advance of the conversion
date, if the Loans are to be converted into Base Rate Loans or (iii) four
Business Days in advance of the continuation date, if the Loans are to be
continued are non-Dollar denominated Revolving Loans.


 


     No
(i) conversion in whole or in part of Base Rate Loans to Eurocurrency
Loans, and (ii) no continuation in whole or in part of Dollar denominated
Eurocurrency Loans shall be permitted at any time at which an Unmatured Event
of Default or an Event of Default shall have occurred and be continuing.


 


     (6)              If it is a conversion from
Eurocurrency Loans, the date must be the last date of the Interest Period.


 


1

















 


	
   

  	
  Aggregate
  Amount of Eurocurrency Loans or Base Rate Loans to be converted or
  continued(7)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Interest
  Period (if the Loans are to be converted into or continued as Eurocurrency
  Loans)](8)

  	
   

  



 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  HUNTSMAN
  INTERNATIONAL LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 






     (7)              For Eurocurrency Loans, the
aggregate principal amount of each Borrowing by the Borrower hereunder shall be
not less than: $5,000,000, in the case of a Borrowing in Dollars, £2,000,000,
in the case of a Borrowing in Sterling, and €5,000,000, in the case of a
Borrowing in Euros and, if greater, shall be in integral multiples of (i) in
the case of a Borrowing in Dollars, $1,000,000, (ii) in the case of a Borrowing
in Sterling, £750,000, or (iii) in the case of a Borrowing in Euros,
€1,000,000, above such minimum (or, if less, the then Total Available Revolving
Commitment).


 


     (8)      Which shall be subject to the definition
of “Interest Period” set forth in the Credit Agreement and shall, in any event,
end on or before (i) in case of a Term Loan, the Term Maturity Date and (ii) in
case of a Revolving Loan, the Revolver Termination Date.  At any time when an Unmatured Event of
Default or an Event of Default has occurred and is continuing, no Interest
Period of more than one month may be selected with respect to any non-Dollar
denominated Revolving Loan.


 


2

















 


EXHIBIT H TO


FIFTH AMENDMENT TO THE


HUNTSMAN INTERNATIONAL LLC


CREDIT AGREEMENT


 


Exhibit 2.9(b)


 


FORM OF 


NOTICE OF ISSUANCE


 


[Huntsman International LLC
Letterhead]


 


Dated                              (9)


 


TO:         [The
applicable Facing Agent](10)


 


COPY TO:              JPMorgan
Chase Bank, N.A., as Administrative Agent for the Lenders under the Credit
Agreement, amended through the Fifth Amendment (and as further amended,
modified or supplemented from time to time, the “Credit Agreement”),
dated as of August 16, 2005, among Huntsman International LLC (the “Borrower”),
JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders, and the
financial institutions signatory thereto from time to time.


 


JPMorgan Chase Bank, N.A.


1111 Fannin, 10th Floor


Houston, Texas 77002


 


Dear Sirs:


 


We
hereby request that [Name of Proposed Facing Agent], in its individual
capacity, issue a [Letter of Credit] [Bank Guarantee] for the account of the
undersigned and the following additional account parties
                    
and             ,
on           (the “Date of
Issuance”) in the aggregate stated amount of    (11) in
the following currency: 
                .


 


For
purposes of this Notice of Issuance, unless otherwise defined herein, all
capitalized terms used herein shall have the respective meanings provided in
the Credit Agreement.


 


The
beneficiary of the requested Letter of Credit will be
              (12),
and such Letter of Credit will include the following terms and conditions
              (13)
and will have a stated expiration date of
              (14).


 






     (9)              Date of Notice of Issuance. This
date must be a Business Day.  The
Administrative Agent and Facing Agent must receive at least 3 Business Days
prior written notice before the proposed Date of Issuance, unless a shorter
period is agreed to between the applicable Facing Agent, Administrative Agent
and Borrower.  The Notice of Issuance
must be received before 12:00 p.m. (New York City time) on such date.


 


     (10)            If the Facing Agent is JPMorgan
Chase Bank, N.A., the address is 1111 Fannin, 10th Floor, Houston, Texas 77002.


 


     (11)            Stated Amount of Letter of Credit.


 


     (12)            Insert name and address of
beneficiary.


 


1

















 


We
hereby certify that:


 


1.             The representations and warranties contained in the Loan
Documents will be true and correct in all material respects on the Date of
Issuance, both before and immediately after giving effect to the issuance of
the Letter of Credit requested hereby (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).


 


2.             No Event of Default or Unmatured Event of Default has
occurred and is continuing nor, after giving effect to the issuance of the
Letter of Credit requested hereby, will such a Event of Default or Unmatured
Event of Default occur.


 


Copies
of all documentation with respect to the supported transaction are attached
hereto.


 


	
   

  	
  HUNTSMAN
  INTERNATIONAL LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [SUBSIDIARY
  ACCOUNT]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 






     (13)            Insert description of the terms and
conditions of the Letter of Credit.


 


     (14)            Insert last date upon which drafts
may be presented. All Letters of Credit shall have an expiration date of twelve
(12) months or less from the Date of Issuance. 
No Standby Letter of Credit or extension shall expire later than the
date five (5) days prior to the Revolver Termination Date and no
Commercial Letter of Credit or extension shall expire later than the day thirty
(30) days prior to the Revolver Termination Date.


 


2

















 


EXHIBIT I TO


FIFTH AMENDMENT TO THE


HUNTSMAN INTERNATIONAL LLC


CREDIT AGREEMENT


 


Exhibit 12.8(c)


 


FORM OF 


ASSIGNMENT AND ASSUMPTION
AGREEMENT


 


This Assignment and
Assumption Agreement (“Assignment”) is dated as of the Effective Date
set forth below and is entered into by and between the Assignor identified in
item 1 below (“Assignor”) and the Assignee identified in item 2 below (“Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as amended, restated, supplemented or otherwise modified from time to time the
“Credit Agreement”), receipt of a copy of which is hereby acknowledged
by the Assignee.  The Standard Terms and
Conditions set forth in Annex 1 to Exhibit 12.8(c) to the
Credit Agreement are hereby agreed to and incorporated herein by reference and
made a part of this Assignment as if set forth herein in full.


 


For an agreed consideration,
Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby
irrevocably purchases and assumes from Assignor, subject to and in accordance
with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by Administrative Agent as contemplated below, the
interest in and to all of Assignor’s rights and obligations under the Credit
Agreement and any other documents or instruments delivered pursuant thereto
that represents the amount and percentage interest identified below of all of
Assignor’s outstanding rights and obligations under the respective facilities
identified below (including, to the extent included in any such facilities, Letters
of Credit) (the “Assigned Interest”). 
Such sale and assignment is without recourse to Assignor and, except as
expressly provided in this Assignment, without representation or warranty by
Assignor.


 


	
  1.

  	
  Assignor:

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee:

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Credit
  Agreement:

  	
  The
  Credit Agreement dated as of August 16, 2005, as amended through the
  Fifth Amendment, among Huntsman International LLC (the “Borrower”) the
  financial institutions signatory thereto, and JPMorgan Chase Bank, N.A., as
  Administrative Agent.

  



 


1

















 


	
  4.

  	
  Assigned
  Interest:

  	
   

  



 


	
  Facility
  Assigned

  	
   

  	
  Aggregate

  Amount of

  Commitment/Loans

  for all Lenders

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned

  	
   

  	
  Percentage

  Assigned of

  Commitment/Loans(15)

  	
   

  
	
  [Revolving Commitment/ Term Commitment]

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  



 






     (15) Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans/LC
Obligations of all Lenders thereunder.


 


2

















 


Effective Date:                          ,
20     


 


The terms set forth in this
Assignment are hereby agreed to:


 


	
  ASSIGNOR

  	
   

  	
  ASSIGNEE

  
	
  [NAME
  OF ASSIGNOR]

  	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title:

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Payment
  Instructions:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  
	
   

  	
   

  	
  Reference:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Relationship
  Contact:

  
	
   

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
  Fax:

  
	
   

  	
   

  	
   

  
	
  [Consented
  to and](16)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  JPMorgan
  Chase Bank, N.A., as Administrative Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
						



 






     (16) To
be added only if the consent of the Administrative Agent is required by the
terms of Section 12.8(c) of the Credit Agreement.


 


3

















 


	
  [Consented
  to:](17)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HUNTSMAN
  INTERNATIONAL LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 






     (17) To be added
only in the circumstances (if any) set forth in Section 12.8(c) of
the Credit Agreement.


 


4














 


ANNEX FOR ASSIGNMENT AND
ASSUMPTION AGREEMENT 


 


ANNEX I


 


 


HUNTSMAN INTERNATIONAL LLC


 


 


CREDIT AGREEMENT 


 


STANDARD TERMS AND
CONDITIONS FOR ASSIGNMENT 


AND ASSUMPTION AGREEMENT


 


1.                                       Representations
and Warranties.


 


1.1                                 Assignor.  [Each]
[The] Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with any
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Loan
Document or any other instrument or document delivered pursuant thereto, other
than this Assignment, or any collateral thereunder, (iii) the financial
condition of the Borrower or any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance
or observance by the Borrower or any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Documents.


 


1.2                                 Assignee.  [Each]
[The] Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement, (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.1 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision
and (v) has sent to Borrower if required to be delivered to Borrower or
attached to this Assignment if required to be delivered to Administrative Agent
any documentation required to be delivered by it to Borrower and/or
Administrative Agent pursuant to the terms of the Credit Agreement, duly
completed and executed by [the]  [each such] Assignee; and (b) agrees
that (i) it will, independently and without reliance on the Administrative
Agent, [the] [each such] Assignor
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (ii) appoints and
authorizes each of the Administrative Agent and the Collateral Agent to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Loan Documents as are delegated to or otherwise
conferred upon the Administrative Agent or the Collateral Agent, as the case
may be, by the terms thereof, together with such powers as are reasonably
incidental thereto; and (iii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


5

















 


2.                                       Payment.  Subject to the terms of the Credit Agreement,
from and after the Effective Date, the Administrative Agent shall make all
payment in respect to the Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the]
[each such] Assignor for amounts which have accrued to but excluding
the Effective Date and to [the] [each]
Assignee for amounts which have accrued from and after the Effective Date.


 


3.                                       General
Provisions.  This
Assignment shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.  This Assignment may be executed in any number
of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a
signature page of this Assignment by telecopy shall be effective as
delivery of a manually executed counterpart of the Assignment.  THIS ASSIGNMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID
STATE, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES.


 


6

















 


ANNEX A TO


FIFTH AMENDMENT TO THE


HUNTSMAN INTERNATIONAL LLC


CREDIT AGREEMENT


 


EXTENDING REVOLVING LENDER CONSENT


 


Reference
is made to (i) the Credit Agreement, dated as of August 16, 2005 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), entered into by and among Huntsman International LLC, a
Delaware limited liability company (the “Borrower”), Deutsche Bank AG
New York Branch, as administrative agent (the “Existing Agent”) and the
Lenders party thereto and (ii) the Fifth Amendment to the Credit Agreement
(the “Amendment”) to which this Extending Revolving Lender Consent is
attached.  Unless otherwise defined
herein, capitalized terms used herein and defined in the Credit Agreement or
the Amendment, as applicable, are used herein as therein defined.


 


Pursuant
to Section 12.1(a) of the Credit Agreement, the undersigned
Revolving Lender hereby (i) waives, solely for the purpose of the
Amendment, (A) the requirement that pursuant to Section 4.1(a) of
the Credit Agreement each reduction or adjustment of the Revolving Commitments
shall apply proportionately to the Revolving Commitments of each Revolving
Lender and (B) the notice requirement pursuant to Section 4.1(a) of
the Credit Agreement with respect to a voluntary reduction in Revolving
Commitments and (ii) consents to the extension of the Revolving
Termination Date to March 9, 2014 (as defined in the Amended Credit
Agreement) with respect to the amount of its Revolving Commitment specified
below:


 


	
  Amount
  of Revolving Commitment to be extended as Revolving Commitments under the
  Amended Credit Agreement 

  	
   

  	
  $

  



 


	
   

  	
  Consented
  to and agreed as of the Amendment Effective Date:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF EXTENDING REVOLVING LENDER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


ANNEX B


FIFTH AMENDMENT TO THE


HUNTSMAN INTERNATIONAL LLC


CREDIT AGREEMENT


 


CONSENT AND REAFFIRMATION


 


Reference is made to (i) the
Credit Agreement, dated as of August 16, 2005 (as heretofore amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), entered into by and among Huntsman International LLC, a
Delaware limited liability company (the “Borrower”), Deutsche Bank AG
New York Branch, as Administrative Agent, the Agents party thereto and the
Lenders party thereto, (ii) the Fifth Amendment to Credit Agreement (the “Amendment”)
dated as of even date herewith among the Borrower and the Lenders party thereto
and (iii) the Successor Agency Agreement dated as of even date herewith
(the “Successor Agency Agreement”) among Deutsche Bank AG New York
Branch in the capacities therein stated, JPMorgan Chase Bank, N.A. (the “Successor
Administrative Agent”), JPMorgan Chase Bank, N.A. (the “Successor
Collateral Agent”), JPMorgan Chase Bank, N.A. or an affiliate thereof
designated by JPMorgan Chase Bank, N.A. (the “Successor UK Security Trustee”),
and the Borrower (the Amendment and the Successor Agency Agreement being,
collectively, the “Fifth Amendment Documents”).  Unless otherwise defined herein, capitalized
terms used herein and defined in the Credit Agreement or the Amendment, as
applicable, are used herein as therein defined.


 


1.                                       Each of the
undersigned hereby (a) acknowledges receipt of a copy of each Fifth
Amendment Document, (b) consents to and approves the execution, delivery
and performance of the Fifth Amendment Documents and the performance of the
Credit Agreement as amended by the Fifth Amendment.


 


2.                                       After giving
effect to each Fifth Amendment Document and the amendments and modifications to
the Loan Documents (including, without limitation, waivers of provisions of any
Loan Documents) effectuated by the Fifth Amendment Documents (collectively, the
“Modifications”), each of the undersigned ratifies, reaffirms and agrees
to perform all of its obligations under each Loan Document to which it is a
party (whether as original signatory thereto, by supplement thereto, by
operation of law or otherwise), and agrees that all such obligations remain in
full force and effect including, without limitation, all of its obligations
under each of the following Loan Documents to which it is a party:


 


(a)                                  the Amended
Credit Agreement;


 


(b)                                 each Note;


 


(c)                                  each Security
Document, including without limitation:  (i) the
Collateral Security Agreement dated as of August 16, 2005, as heretofore
amended, modified or supplemented (including by Supplement No. 1 to
Collateral Security Agreement dated as of December 20, 2005), (ii) the
Pledge Agreement dated as of August 16, 2005, as heretofore amended,
modified or supplemented (including by Supplement No. 1 to Pledge
Agreement dated as of December 20, 2005), (iii) the UK Pledge
Agreements, (iv) the UK Debenture, and (v) the Mortgages;


 


(d)                                 each Guaranty,
including, without limitation, the Subsidiary Guaranty dated as of August 16,
2005, as heretofore amended, modified or supplemented (including by Supplement No. 1
to Subsidiary Guaranty dated as December 20, 2005, Supplement No. 2
to Subsidiary Guaranty dated as of December  20, 2005, and Supplement
No. 3 to Subsidiary Guaranty dated as of December 20, 2005); and


 


3.                                       After giving
effect to each Fifth Amendment Document and the Modifications effectuated
thereby, each of the undersigned, with respect to each Security Document to
which it is a party (a) 


 


1

















 


reaffirms and ratifies the Liens granted by the
undersigned under such Security Document, (b) confirms and acknowledges
that the Liens granted by the undersigned under such Security Document remain
in full force and effect, and, (c) without limitation to the foregoing,
confirms and acknowledges that:


 


(i)                                     such Liens, if
granted to or in favor of Deutsche Bank AG New York Branch as Collateral Agent,
shall continue without interruption in favor of the Successor Collateral Agent
for the benefit of the persons secured by such Security Document (whether
defined in such Security Document as “Secured Parties” or otherwise) to secure
the obligations secured by such Security Document (whether defined in such
Security Document as “Secured Obligations,” “Secured Liabilities” or
otherwise); and


 


(ii)                                  such Liens, if
granted to or in favor of Deutsche Bank AG New York Branch as UK Security
Trustee, shall continue without interruption in favor of the Successor UK
Security Trustee for the benefit of the persons secured by such Security
Document (whether defined in such Security Document as “Secured Parties” or
otherwise) to secure the obligations secured by such Security Document (whether
defined in such Security Document as “Secured Obligations,” “Secured
Liabilities” or otherwise).


 


4.                                       After giving
effect to each Fifth Amendment Document and the Modifications effectuated
thereby, each of the undersigned agrees that from and after the Amendment
Effective Date, (a) each reference to the Credit Agreement in the Loan
Documents shall be deemed to be a reference to the Amended Credit Agreement, (b) each
reference in the Loan Documents to the Administrative Agent shall be deemed a
reference to the Successor Administrative Agent (except as expressly provided
in the Successor Agency Agreement), (c) each reference in the Loan
Documents to the Collateral Agent shall be deemed a reference to the Successor
Collateral Agent (except as expressly provided in the Successor Agency
Agreement), and (d) each reference in the Loan Documents to the UK
Security Trustee shall be deemed a reference to the Successor UK Security
Trustee (except as expressly provided in the Successor Agency Agreement).


 


5.                                       Each of the
undersigned agrees that this Consent and Reaffirmation is made for the benefit
of the Successor Administrative Agent, the Successor Collateral Agent, the
Successor UK Security Trustee, the Lenders from time to time party to the
Credit Agreement and the other persons secured by any of the Security Documents
(whether defined in such Security Documents as “Secured Parties” or otherwise).


 


6.                                       EACH OF THE
UNDERSIGNED AGREES THAT THIS CONSENT AND REAFFIRMATION SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


[SIGNATURE PAGES FOLLOW]


 


2

















 


IN WITNESS WHEREOF, the
undersigned has caused this Consent and Reaffirmation to be duly executed and
delivered as of March 9, 2010.


 


	
   

  	
  HUNTSMAN INTERNATIONAL LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTED as a deed by

  
	
   

  	
  TIOXIDE AMERICAS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Witnessed
  by:

  	
   

  
	
   

  	
   

  
	
   

  	
  Executed and delivered as a deed on behalf of
  TIOXIDE GROUP acting by:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
				



 


3

















 


AIRSTAR
CORPORATION


HUNTSMAN
ADVANCED MATERIALS AMERICAS LLC


HUNTSMAN
ADVANCED MATERIALS LLC


HUNTSMAN
AUSTRALIA INC.


HUNTSMAN
CHEMICAL PURCHASING CORPORATION


HUNTSMAN
ENTERPRISES, INC.


HUNTSMAN
ETHYLENEAMINES LLC


HUNTSMAN
FUELS LLC


HUNTSMAN
INTERNATIONAL FINANCIAL LLC


HUNTSMAN
INTERNATIONAL FUELS LLC


HUNTSMAN
INTERNATIONAL TRADING CORPORATION


HUNTSMAN
MA INVESTMENT CORPORATION


HUNTSMAN
MA SERVICES CORPORATION


HUNTSMAN
PETROCHEMICAL LLC


HUNTSMAN
PETROCHEMICAL PURCHASING CORPORATION


HUNTSMAN
PROCUREMENT CORPORATION


HUNTSMAN
PROPYLENE OXIDE LLC


HUNTSMAN
PURCHASING, LTD.


By:       Huntsman
Procurement Corporation, its General Partner


POLYMER
MATERIALS INC.


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


4