24, 2009, (2) THE ISSUANCE OF
ANY LETTER OF CREDIT TO SUPPORT ANY PRE-PETITION DEBT OR OTHER PRE-PETITION DATE
OBLIGATIONS OF THE BORROWER OR ANY GUARANTOR (AND THE DRAWING OR REIMBURSEMENT
OF ANY SUCH LETTER OF CREDIT), TO THE EXTENT THE ISSUANCE OF SUCH LETTER OF
CREDIT IS OTHERWISE PERMITTED UNDER THIS AGREEMENT AND (3) THE LYONDELL PROPERTY
PURCHASE, (W) THE BORROWER AND THE GUARANTORS MAY MAKE PAYMENTS FOR
ADMINISTRATIVE EXPENSES THAT ARE ALLOWED AND PAYABLE UNDER SECTIONS 330 AND 331
OF THE BANKRUPTCY CODE, (X) THE BORROWER AND THE GUARANTORS MAY MAKE PAYMENTS
NOT OTHERWISE PROHIBITED HEREUNDER TO CURE DEFAULTS PURSUANT TO SECTION
365(B) OF THE BANKRUPTCY CODE WITH RESPECT TO ANY EXECUTORY CONTRACT AS
PERMITTED BY AN ORDER OF THE BANKRUPTCY COURT APPROVING THE ASSUMPTION OF SUCH
CONTRACT, (Y) THE BORROWER MAY PREPAY THE OBLIGATIONS UNDER THE LOAN DOCUMENTS
AND MAKE PAYMENTS PERMITTED BY THE FIRST DAY ORDERS, AND (Z) THE BORROWER MAY
MAKE PAYMENTS TO SUCH OTHER CLAIMANTS AND IN SUCH AMOUNTS AS MAY BE CONSENTED TO
BY THE REQUIRED LENDERS AND APPROVED BY THE BANKRUPTCY COURT.
IN ADDITION, NO
LOAN PARTY SHALL PERMIT ANY OF ITS SUBSIDIARIES TO MAKE ANY PAYMENT, REDEMPTION
OR ACQUISITION ON BEHALF OF SUCH LOAN PARTY WHICH SUCH LOAN PARTY IS PROHIBITED
FROM MAKING UNDER THE PROVISIONS OF THIS SUBSECTION (J).
(K)
CAPITAL EXPENDITURES.
MAKE, OR PERMIT ANY OF ITS SUBSIDIARIES TO
MAKE, ANY CAPITAL EXPENDITURES THAT WOULD CAUSE THE AGGREGATE OF ALL SUCH
CAPITAL EXPENDITURES MADE BY THE BORROWER AND ITS SUBSIDIARIES IN ANY FISCAL
QUARTER SET FORTH IN THE TABLE BELOW TO EXCEED THE AMOUNT SET FORTH IN SUCH
TABLE CORRESPONDING TO SUCH FISCAL QUARTER (AS SUCH AMOUNT MAY BE INCREASED
PURSUANT TO THE NEXT PROVISO, THE "MAXIMUM CAPITAL EXPENDITURE AMOUNT");
PROVIDED, THAT THE MAXIMUM CAPITAL EXPENDITURE AMOUNT FOR ANY FISCAL QUARTER
SHALL BE INCREASED BY THE EXCESS, IF ANY, OF THE MAXIMUM CAPITAL EXPENDITURE
AMOUNT FOR THE IMMEDIATELY PRECEDING FISCAL QUARTER OVER THE ACTUAL AMOUNT OF
CAPITAL EXPENDITURES MADE DURING SUCH PRECEDING FISCAL QUARTER:
Fiscal Quarter Ending
Maximum Capital Expenditure
Amount
March 2010
$
27,000,000
June 2010
$
35,000,000
September 2010
$
35,000,000
December 2010
$
35,000,000
March 2011
$
35,000,000
(L)
MERGERS.
MERGE INTO OR CONSOLIDATE WITH ANY PERSON OR PERMIT ANY
PERSON TO MERGE INTO IT, EXCEPT (I) FOR MERGERS OR CONSOLIDATION CONSTITUTING
PERMITTED INVESTMENTS UNDER SECTION 5.02(G) OR ASSET DISPOSITIONS PERMITTED
PURSUANT TO SECTION 5.02(H), (II) MERGERS, CONSOLIDATIONS, LIQUIDATIONS OR
DISSOLUTIONS (A) BY ANY LOAN PARTY (OTHER THAN THE BORROWER) WITH OR INTO ANY
OTHER LOAN PARTY, OR (B) BY ANY NON-LOAN PARTY WITH OR INTO ANY OTHER NON-LOAN
PARTY; PROVIDED THAT, IN THE CASE OF ANY SUCH MERGER OR CONSOLIDATION, THE
PERSON FORMED BY OR SURVIVING SUCH MERGER OR CONSOLIDATION SHALL BE A WHOLLY
OWNED SUBSIDIARY OF THE BORROWER, AND
75
PROVIDED FURTHER THAT IN THE CASE OF ANY SUCH MERGER OR CONSOLIDATION (X) TO
WHICH THE BORROWER IS A PARTY, THE PERSON FORMED BY SUCH MERGER OR CONSOLIDATION
SHALL BE THE BORROWER AND