DEBTOR-IN-POSSESSION CREDIT AGREEMENT Dated as of March 3, 2009 among

Exhibit 10.2

EXECUTION COPY

 

DEBTOR-IN-POSSESSION CREDIT AGREEMENT

Dated as of March 3, 2009

among

LYONDELLBASELL INDUSTRIES AF S.C.A.,

as the Company,

LYONDELL CHEMICAL COMPANY,

BASELL USA INC.,

EQUISTAR CHEMICALS, LP,

HOUSTON REFINING LP,

MILLENNIUM CHEMICALS INC. and

MILLENNIUM PETROCHEMICALS INC.,

each a Debtor and Debtor-in-Possession under Chapter 11 of the Bankruptcy Code,

as Borrowers,

UBS AG, STAMFORD BRANCH,

as Administrative Agent and Collateral Agent,

THE OTHER LENDERS PARTY HERETO FROM TIME TO TIME,

UBS SECURITIES LLC,

as Sole Lead Arranger, Sole Lead Bookrunner, Syndication Agent and Documentation Agent,

and

CITIGROUP GLOBAL MARKETS INC.,

GOLDMAN SACHS LENDING PARTNERS LLC,

MERRILL LYNCH CAPITAL CORPORATION and

ABN AMRO BANK N.V.,

as Arrangers

 

TABLE OF CONTENTS

 

 

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DEBTOR-IN-POSSESSION CREDIT AGREEMENT

This DEBTOR-IN-POSSESSION CREDIT AGREEMENT (this “ Agreement ”), dated as of March 3, 2009, is entered into among LYONDELLBASELL INDUSTRIES AF S.C.A., a company existing under the laws of the Grand Duchy of Luxembourg (together with its successors and assigns, the “ Company ”), LYONDELL CHEMICAL COMPANY, a Delaware corporation (“ Lyondell ”), BASELL USA INC., a Delaware corporation (“ Basell USA ”), EQUISTAR CHEMICALS, LP, a Delaware limited partnership (“ Equistar ”), HOUSTON REFINING LP, Delaware limited partnership (“ Houston Refining ”), MILLENNIUM CHEMICALS INC., a Delaware corporation (“ Millennium ”), MILLENNIUM PETROCHEMICALS INC., a Virginia corporation (“ Millennium Petrochemicals ”, together with Lyondell, Basell USA, Equistar, Houston Refining and Millennium, collectively, the “ Borrowers ” and each individually, a “ Borrower ”), UBS AG, STAMFORD BRANCH, as Administrative Agent and Collateral Agent, and each NM Lender and Roll-Up Lender party hereto from time to time (collectively, the “ Lenders ” and individually, a “ Lender ”).

PRELIMINARY STATEMENTS

On January 6, 2009, each of the Borrowers (such term and each other capitalized term used but not otherwise defined herein having the meaning assigned to it in Article I), each of the U.S. Guarantors and Basell GmbH (collectively, the “ Initial Debtors ”) filed voluntary petitions with the Bankruptcy Court initiating their respective cases that are pending under Chapter 11 of the Bankruptcy Code (the cases of the Borrowers, the U.S. Guarantors and Basell GmbH, each an “ Initial Case ” and collectively, the “ Initial Cases ”) and have continued in the possession of their assets and in the management of their business pursuant to Sections 1107 and 1108 of the Bankruptcy Code.

The Borrowers have requested that the Lenders provide them with a term loan facility in an aggregate principal amount not to exceed $6,500,000,000 (consisting of $3,250,000,000 of NM Loans and $3,250,000,000 of Roll-Up Loans) (the “ DIP Term Loan Facility ”). The Lenders are willing to extend or continue, as the case may be, such credit to the Borrowers on the terms and subject to the conditions set forth herein.

The Borrowers have also requested that certain financial institutions (which may include one or more Lenders) provide them with a revolving credit and letter of credit facility (the “ DIP ABL Facility ”) in an aggregate principal amount not to exceed $1,540,000,000 (subject to increase as set forth therein).

On January 8, 2009, the Bankruptcy Court entered the Interim Order approving on an interim basis the DIP ABL Facility and the DIP Term Loan Facility, and providing inter alia , that (i) the obligations under the Facilities shall constitute allowed senior administrative expense claims against each of the Initial Debtors with priority over any and all administrative expenses, adequate protection claims, diminution claims and all other claims against the Initial Debtors, now existing or hereafter arising, of any kind whatsoever, and (ii) the obligations under the Facilities shall be secured by fully perfected security interests in and Liens upon all pre-and post-petition property of the Initial Debtors (limited, in the case of Basell GmbH, to the Equity Interests of its direct Subsidiaries, subject to the Collateral and Guarantee Requirement), whether

existing on the Petition Date or thereafter acquired, including any cash and any investments of such cash, inventory, accounts receivable, other rights to payment whether arising before or after the Petition Date, contracts, properties, plants, equipment, general intangibles, documents, instruments, interest in leaseholds, real properties, patents, copyrights, trademarks, trade names, other intellectual property, equity interests, and the proceeds of all of the foregoing and, subject only to and effective upon entry of the Final Order, the Avoidance Actions (as further described and defined in the Orders, collectively, the “ Collateral ”). The respective priorities of the DIP ABL Facility, the DIP Term Loan Facility and other parties claiming Liens on all or any part of the Collateral are as set forth in the Interim Order and upon entry by the Bankruptcy Court of the Final Order shall be as set forth therein.

All of the claims and the Liens granted in the Orders and in the Collateral Documents to the Administrative Agent and the Lenders in respect of the DIP Term Loan Facility shall be subject to the Carve-Out.

On January 9, 2009, the Borrowers made the initial borrowings under the Facilities as approved by the Interim Order. The parties hereto are entering into this Agreement to memorialize the terms of the Loans and the NM Commitments. Upon the effectiveness hereof, this Agreement and the other Loan Documents shall supersede the DIP Term Sheet with respect to the Loans and the NM Commitments.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

Definitions and Accounting Terms

Section 1.01 Defined Terms .

As used in this Agreement, the following terms shall have the meanings set forth below:

“ 13-Week Projection ” means a projected statement of sources and uses of cash for the Company and its Subsidiaries on a weekly basis for the following 13 calendar weeks, including the anticipated uses of the DIP ABL Facility and the DIP Term Loan Facility for each week during such period, in substantially the form of Exhibit J-1 hereto. As used herein, “13-Week Projection” shall initially refer to the “Budget” delivered to the Lenders in connection with the initial borrowings under the Facilities as authorized by the Interim Order and, thereafter, the most recent 13-Week Projection delivered by the Borrowers in accordance with Section 6.04.

“ 2015 Notes ” means, collectively, the $615,000,000 aggregate principal amount of 8  ³ / 8 % Senior Notes due 2015 of the Company and €500,000,000 aggregate principal amount of 8  ³ / 8 % Senior Notes due 2015 of the Company.

“ 2027 Notes ” means the $300,000,000 aggregate principal amount of the 8.10% guaranteed notes due March 15, 2027 issued by Basell Finance (formerly known as Montell Finance Company B.V.).

 

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“ ABL Collateral ” means all Collateral consisting of pre- and post-petition property of the Debtors consisting of cash and Cash Collateral (other than cash proceeds of property that was Term Loan Collateral when such proceeds arose), and any investment of such cash and Cash Collateral, inventory, accounts receivable and other related rights to payment, contracts and assets of the Debtors, whether existing on the Petition Date or acquired thereafter, and the proceeds of all of the foregoing. The ABL Collateral and the Term Loan Collateral shall include proceeds of Avoidance Actions on an equal and ratable basis.

“ ABL Commitments ” means “Commitments” as defined in Section 1.01 of the DIP ABL Credit Agreement.

“ ABL Event of Default ” means an “Event of Default” (as defined in Section 1.01 of the DIP ABL Credit Agreement) occurring pursuant to Section 7.01(m) of the DIP ABL Credit Agreement.

“ ABL Total Outstandings ” means the “Total Outstandings” as defined in Section 1.01 of the DIP ABL Credit Agreement.

“ Access ” means Access Lender, LLC.

“ Acquisition ” means the merger of BIL Acquisition Holdings Limited into Lyondell pursuant to that certain Agreement and Plan of Merger, dated as of July 16, 2007, by and among the Company, BIL Acquisition Holdings Limited and Lyondell.

“ Additional Credit ” has the meaning set forth in Section 4.02(e).

“ Additional Debtor ” means (a) subject (other than in the case of the Company) to the written consent of the Required Lenders, the Company and each Material Subsidiary to the extent that (i) the Company or such Material Subsidiary files with the Bankruptcy Court a voluntary petition initiating proceedings under Chapter 11 of the Bankruptcy Code, (ii) such case is joined with the Initial Cases, (iii) the Company or such Material Subsidiary, as the case may be, is subject, by order of the Bankruptcy Court, to the previously issued orders relating to the Cases (including the Orders), including with respect to Collateral in the case of Domestic Subsidiaries and (iv) the Company or such Material Subsidiary, as the case may be, becomes a Borrower or Guarantor hereunder (in each case as reasonably directed by the Required Lenders and with the assets of the Company or such Subsidiary, as the case may be, pledged as Collateral with such priority, subject to applicable Law and, in the case of any Foreign Debtor, the Agreed Security Principles, Legal Reservations and Legal Limitations, as the Required Lenders shall reasonably require) and (b) each non-Material Subsidiary to the extent that (i) such non-Material Subsidiary files with the Bankruptcy Court a voluntary petition initiating proceedings under Chapter 11 of the Bankruptcy Code, (ii) such case is joined with the Initial Cases and (iii) such non-Material Subsidiary is subject, by order of the Bankruptcy Court, to the previously issued orders relating to the Cases (including the Orders).

“ Additional NM Loans ” has the meaning set forth in Section 2.01(b).

“ Additional Restricted Cash ” means, to the extent constituting Unrestricted Cash, any cash or Cash Equivalent of the Company and its Subsidiaries (i) that is required to be trapped

 

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pursuant to the DIP ABL Facility or the terms of any other Asset Backed Credit Facility, Receivables Financing or Securitization Transaction, (ii) that is received in anticipation of a disbursement by the Company or any of its Subsidiaries to a Person other than the Company or any Subsidiary within one Business Day, (iii) that is provided as cash collateral to support letters of credit and bank guarantees, customs and other import duties in the ordinary course of business of the Company or any of its Subsidiaries or (iv) in the case of any Foreign Subsidiary, the expatriation of which (A) would result in adverse tax or legal consequences, (B) would be reasonably likely to result in adverse personal liability of any director of the Company or a Foreign Subsidiary or (C) would result in the insolvency of the Company or a Foreign Subsidiary.

“ Additional Roll-Up Entitlements ” has the meaning set forth in Section 2.01(c)(i).

“ Administrative Agent ” means UBS AG, Stamford Branch, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent appointed in accordance with the terms hereof.

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 or such other address or account as the Administrative Agent may from time to time specify (upon reasonable written notice) to the Borrowers’ Agent and the Lenders.

“ Administrative Questionnaire ” means, with respect to each Lender, an administrative questionnaire in the form prepared by the Administrative Agent, completed by such Lender and returned to the Administrative Agent.

“ Affiliate ” means, with respect to any specified Person, any other Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; provided , that for purposes of Sections 7.08 and 10.07, “control” shall also include the possession, directly or indirectly, of the power to vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of a Person, whether through the ownership of voting securities, by contract or otherwise; “controlling” and “controlled” have meanings correlative of the foregoing.

“ Agent ” means any of the Administrative Agent, the Collateral Agent, the Documentation Agent or the Syndication Agent, and “ Agents ” means any two or more of the foregoing.

“ Agent-Related Persons ” means the Agents, together with their respective Affiliates, and the officers, directors, partners, employees, agents, advisors and attorneys-in-fact of such Persons and Affiliates.

“ Agreed Security Principles ” has the meaning set forth in Schedule 1.01F .

 

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“ Agreement ” means, on any date, this Debtor-In-Possession Credit Agreement as the same may from time to time be amended, supplemented, amended and restated or otherwise modified and in effect on such date in accordance with the terms hereof.

“ Alix ” has the meaning set forth in Section 6.19(a).

“ Allocation and Joinder Agreement ” means an agreement in form and substance reasonably satisfactory to the Administrative Agent in which Related Senior First Lien Lenders consent to the Allocation Schedule as modified pursuant to Section 2.01(c)(ii) and become party to this Agreement as Roll-Up Lenders.

“ Allocation Schedule ” means the table set forth on Schedule 1.01A listing for each Lender the amount, if any, of (i) Initial NM Loans of such Lender, (ii) such Lender’s NM Commitment and (iii) such Lender’s Roll-Up Amount, as such table may be modified pursuant to Section 2.01(c)(ii).

“ Anti-Terrorism Laws ” means:

(a) the Executive Order No. 13224 of September 23, 2001, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism (the “ Executive Order ”);

(b) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly known as the USA Patriot Act);

(c) the Money Laundering Control Act of 1986, Public Law 99-570;

(d) the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., and the Trading with the Enemy Act, 50 U.S.C. App. §§ 1 et seq., and any Executive Order or regulation promulgated thereunder and administered by the Office of Foreign Assets Control (“ OFAC ”) of the U.S. Department of the Treasury; and

(e) any similar law enacted in the United States of America subsequent to the date of this Agreement.

“ Applicable Rate ” means (a) in the case of NM Loans, a percentage per annum equal to (i) for Eurodollar Rate Loans, 10.00% and (ii) for Base Rate Loans, 9.00% and (b) in the case of Roll-Up Loans, a percentage per annum equal to (i) for Eurodollar Rate Loans, 3.69% and (ii) for Base Rate Loans, 2.69%, subject in each case under this clause (b) to change to reflect any changes to the weighted average applicable rate under the Senior First Lien Credit Agreement for the Senior First Lien Loans administered hereunder as Roll-Up Loans, as determined by the Administrative Agent in consultation with the administrative agent under the Senior First Lien Credit Agreement (without regard to Section 2.08(b) of the Senior First Lien Credit Agreement).

“ Appropriate Lenders ” means, at any time, with respect to Loans of any Class, the Lenders of such Class.

 

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“ Approved Bank ” has the meaning set forth in clause (c) of the definition of “Cash Equivalents.”

“ Approved Fund ” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.

“ Arranger ” means any of UBS Securities LLC, as sole lead arranger and sole bookrunner, or Citigroup Global Markets Inc., Goldman Sachs Lending Partners LLC, Merrill Lynch Capital Corporation and ABN Amro Bank N.V., as arrangers, and “ Arrangers ” means any two or more of the foregoing.

“ Asset Backed Credit Facility ” means any credit facility (other than the DIP ABL Facility) provided on the basis of the value of inventory, accounts receivable or other current assets (and related documents) or similar instrument, including the European Securitization Transaction, the Berre Facility and any similar credit support agreements or guarantees incurred from time to time. The aggregate amount of all Asset Backed Credit Facilities, Receivables Financings and Securitization Transactions entered into during the term of this Agreement (other than the European Securitization Transaction and the Berre Facility) shall not exceed an amount equal to $50,000,000 at any one time outstanding.

“ Assignee ” has the meaning set forth in Section 10.07(a).

“ Assignment and Assumption ” means an Assignment and Assumption substantially in the form of Exhibit D hereto or, in the case of any assignments on the Syndication Completion Date, such other agreement in form and substance satisfactory to the Administrative Agent.

“ Assignment Taxes ” has the meaning set forth in Section 3.01(b).

“ Attorney Costs ” means and includes all reasonable fees, expenses and disbursements of counsel (including local counsel in each relevant jurisdiction).

“ Audited Financial Statements ” means the audited consolidated financial statements of the Company and its Subsidiaries, for the period beginning April 20, 2005 and ended December 31, 2005, the fiscal year ended December 31, 2006 and the fiscal year ended December 31, 2007.

“ Available ABL Commitment ” means, as of any date of determination, an amount equal to (i) the lesser of (A) the Borrowing Base as of such date, less, the amount of Collateral Availability necessary to avoid an ABL Event of Default and (B) the aggregate amount of the ABL Commitments in effect on such date, less (ii) the ABL Total Outstandings; provided that, notwithstanding the foregoing, in no event shall the Available ABL Commitment exceed the incremental amount of borrowings the Borrowers are, as of such date, permitted to borrow pursuant to the terms of the DIP ABL Credit Agreement (without giving effect to any borrowing notice requirements thereunder).

“ Avoidance Actions ” means the Debtors’ claims and causes of action under Sections 502(d), 544, 545, 547, 548, 549, 550 and 553 of the Bankruptcy Code and any other avoidance actions under the Bankruptcy Code and the proceeds thereof and property received thereby whether by judgment, settlement, or otherwise.

 

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“ Bankruptcy Code ” means The Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.

“ Bankruptcy Court ” means the United States Bankruptcy Court for the Southern District of New York or any other court having jurisdiction over the Cases from time to time.

“ Base Rate ” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus  ¹ / 2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by the Administrative Agent as its “prime rate” established by the Administrative Agent from time to time and (c) the one month Eurodollar Rate (for the avoidance of doubt after giving effect to the provisos in the definition thereof) plus 1.00%. Any change in the Base Rate due to a change in the prime rate established by the Administrative Agent, the Federal Funds Rate or the one month Eurodollar Rate shall be effective on the date such change is effective. The prime rate is not necessarily the lowest rate charged by the Administrative Agent to its customers.

“ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.

“ Basell Finance ” means Basell Finance Company B.V., a Dutch private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ).

“ Basell Funding ” means Basell Funding S.à r.l., a société à responsabilité limitée incorporated under the laws of the Grand Duchy of Luxembourg.

“ Basell GmbH ” means Basell Germany Holdings GmbH, a debtor and debtor in possession under Chapter 11 of the Bankruptcy Code.

“ Basell Holdings ” means LyondellBasell Industries Holdings B.V., private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ).

“ Berre Facility ” means any receivables-backed credit facility entered into by one or more Foreign Subsidiaries (other than Basell GmbH) related to receivables of the refinery located in Berre, France, and any Permitted Refinancings thereof, all in an aggregate amount not to exceed at any one time €150,000,000.

“ Blavatnik Charitable Trust ” has the meaning set forth in the definition of “Blavatnik Group.”

“ Blavatnik Group ” means, collectively:

(1) Mr. Leonard Blavatnik, his spouse, direct descendants, siblings, parents, children of siblings, or grandchildren, grand nieces and grand nephews, any other members of the immediate Blavatnik family, or

 

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(2) any trust or any entity directly or indirectly controlled by, or for the benefit of, one or more members of the Blavatnik family described above, or

(3) any trust (a “ Blavatnik Charitable Trust ”):

(a) for the benefit of a charity created by any member of the Blavatnik family described above, or

(b) to which any such member of the Blavatnik family described above is a substantial donor or grantor, or

(4) the estate, executor, administrator or committee of beneficiaries of any member of the Blavatnik Group listed in clause (1) or (2) of this definition;

provided that, in the case of any Blavatnik Charitable Trust, a member of the Blavatnik Group described in clause (1) or (2) of this definition maintains control thereof.

For purposes of this definition only, “control” of a Blavatnik Charitable Trust means the possession of the power to direct or cause the direction of management and policies of such Blavatnik Charitable Trust in respect of the issued share capital of the Company owned by such Blavatnik Charitable Trust.

“ Board of Directors ” means, as to any Person, the board of directors (or similar governing body) of such Person (or, if such Person is a partnership and does not have a board of directors (or similar governing body), the board of directors (or similar governing body) of such Person’s general partner) or, except with respect to the definition of “Change of Control” any duly authorized committee thereof.

“ Borrowers ” has the meaning set forth in the introductory paragraph to this Agreement.

“ Borrowers’ Agent ” means Lyondell and/or such other Borrower as the Company shall appoint from time to time by written notice to the Administrative Agent.

“ Borrowing ” means a borrowing (or in the case of Roll-Up Loans, roll up) consisting of simultaneous Loans of the same Class and Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by the Lenders pursuant to Section 2.01.

“ Borrowing Base ” means the “Borrowing Base” as defined in Section 1.01 of the DIP ABL Credit Agreement.

“ Bridge Forbearance Agreement ” means the First Amended and Restated Bridge Forbearance Agreement, the form of which is set forth as Exhibit M hereto.

“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the State of New York or the State of Texas and if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.

 

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“ Capital Expenditures ” means, for any period, any expenditure which, in accordance with GAAP, is treated as a capital expenditure in the audited consolidated financial statements of the Company and its Subsidiaries other than (i) any capital expenditure constituting an Investment permitted pursuant to clauses (e), (h), (j), (k) and (m) of Section 7.02, (ii) any expenditure made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, substituted, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, substituted, restored or repaired, (iii) the purchase price of equipment that is purchased simultaneously with the trade in of existing equipment to the extent of the portion of such expenditure equal to the amount by which the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time and (iv) the purchase price of plant, property, equipment or software to the extent financed with the proceeds of Casualty Events that are not required to be applied to prepay Loans pursuant to Section 2.03(b).

“ Capitalized Leases ” means all leases which, in accordance with GAAP, are recorded as capitalized leases.

“ Carve-Out ” means (i) all fees required to be paid to the Clerk of the Bankruptcy Court and to the Office of the United States trustee pursuant to 28 U.S.C. § 1930(a), (ii) all reasonable fees and expenses incurred by a trustee under Section 726(b) of the Bankruptcy Code in an amount not exceeding $10,000,000, and (iii) after the occurrence and during the continuance of an Event of Default an amount not exceeding $25,000,000 in the aggregate, which amount may be used subject to the terms of the Orders, to pay any fees or expenses incurred by the Debtors and any statutory committees appointed in the Cases (each, a “ Committee ”) that remain unpaid subsequent to the payment of such fees and expenses from available funds remaining in the Debtors’ estates for such creditors, in respect of (A) allowances of compensation for services rendered or reimbursement of expenses awarded by the Bankruptcy Court to the Debtors’ or any Committee’s professionals and (B) the reimbursement of expenses allowed by the Bankruptcy Court incurred by the Committee members in the performance of their duties (but excluding fees and expenses of third party professionals employed by such members), provided that (x) the dollar limitation in this clause (iii) on fees and expenses shall neither be reduced nor increased by the amount of any compensation or reimbursement of expenses incurred, awarded or paid prior to the occurrence of an Event of Default in respect of which the Carve-Out is invoked or by any fees, expenses, indemnities or other amounts paid to any Pre-Petition Agent or Pre-Petition Secured Lender (as such terms are defined in the Orders) and (y) nothing herein shall be construed to impair the ability of any party to object to the fees, expenses, reimbursement or compensation described in clauses (A) and (B) above. The Carve-Out, if and to the extent invoked pursuant to the Orders, shall be allocated one-third against the ABL Collateral and two-thirds against the Term Loan Collateral.

“ Cases ” means the Initial Cases and the cases of any Additional Debtors pending with the Bankruptcy Court under Chapter 11 of the Bankruptcy Code that are joined with the Initial Cases.

 

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“ Cash and Liquidity Dashboard Report ” means, collectively, (i) with respect to the U.S. Subsidiaries, the report substantially in the form of Exhibit O-1A and (ii) with respect to the Foreign Subsidiaries, the report substantially in the form of Exhibit O-1B .

“ Cash Collateral ” has the meaning specified in the Interim Order or Final Order, as applicable.

“ Cash Equivalents ” means any of the following types of Investments, to the extent owned by the Company or any Subsidiary:

(a) time deposits or demand deposits in local currencies held by it from time to time in the ordinary course of business,

(b) an obligation, maturing within two years after the date of its acquisition, issued or guaranteed by the United States of America, Australia, Switzerland, Japan, Canada or any state which was a member state of the European Union, on December 31, 2003 or an instrumentality or agency thereof,

(c) a certificate of deposit or banker’s acceptance, maturing within one year after the date of its acquisition, issued by any Lender, or a U.S. national or state bank or trust company or a European, Canadian, Australian, Swiss 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 (any such bank, an “ Approved Bank ”),

(d) commercial paper, maturing within one year after the date of its acquisition, 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,

(e) repurchase agreements and reverse repurchase agreements with an outstanding term not in excess of one year after the date of its acquisition with any financial institution which has been elected as a primary government securities dealer by the Federal Reserve Board in respect of instruments set forth in clauses (c) or (d) above of the credit quality set forth in such applicable clause,

(f) “Money Market” preferred stock maturing within six months after the date of its acquisition or municipal bonds issued by a corporation organized under the laws of any state of the United States, Australia, Japan, Canada, Switzerland or any state which was a member state of the European Union on December 31, 2003 or an instrumentality or agency thereof, in each case 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,

(g) tax exempt floating rate option tender bonds backed by letters of credit issued by a national or state bank whose 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,

 

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(h) dollar-denominated money market funds as defined in Rule 2a-7 of the General Rules and Regulations promulgated under the Investment Company Act of 1940, and

(i) shares of any fund holding assets consisting (except for de minimis amounts) of the type specified in clauses (b) through (h) above.

“ Casualty Event ” means any event that gives rise to the receipt by the Company or any Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or Real Property (including any improvements thereon) to replace or repair such equipment, fixed assets or Real Property; provided , that “Casualty Event” shall not include those events occurring prior to the Petition Date and set forth on Schedule 1.01G .

“ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as subsequently amended.

“ Change in Law ” means, the introduction of, or any change in or in the interpretation of, any law, treaty or governmental rule, regulation or order or the compliance with any guideline, request or directive from any Governmental Authority (whether or not having the force of law).

“ Change of Control ” means the occurrence of any of the following:

(1) the Sponsor ceases to hold legally and beneficially, either directly or indirectly:

(a) issued share capital having the right to cast at least 50% of the votes capable of being cast in general meetings of the Company; or

(b) the right to determine the composition of the majority of the Board of Directors or equivalent body of the Company unless the Sponsor does not hold legally and beneficially a majority of the issued share capital having the right, directly or indirectly, to cast votes to elect members of the Board of Directors, in which event (x) the Board of Directors shall have at least three independent directors (with any replacement of any independent director to be appointed by the remaining independent directors) and (y) the Sponsor shall have the power, directly or indirectly, to elect at least half of the remaining number of directors of the Board of Directors;

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

(3) the adoption by the stockholders of the Company of a plan or proposal for the liquidation or dissolution of the Company.

 

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“ Chapter 11 Filer ” means the Company and/or any Subsidiary thereof to the extent such Person is subject to a Case.

“ Chief Restructuring Officer ” means Kevin McShea, or any successor appointed with the consent of the Required Lenders.

“ Class ” (a) when used with respect to Lenders, refers to whether such Lenders are NM Lenders or Roll-Up Lenders and (b) when used with respect to Loans, refers to whether such Loans are NM Loans or Roll-Up Loans.

“ Closing Date ” means the date on which the conditions set forth in Section 4.03 are satisfied or waived.

“ Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and rules and regulations related thereto.

“ Collateral ” has the meaning set forth in the Preliminary Statements and shall include any other property (including but not limited to that of Additional Debtors) upon which a Lien is purported to be created by (a) any Collateral Document to the extent permitted by the Orders or (b) any additional orders of the Bankruptcy Court under the Cases.

“ Collateral Agent ” means UBS AG, Stamford Branch in its capacity as collateral agent or pledgee under any of the Loan Documents, or any successor collateral agent.

“ Collateral and Guarantee Requirement ” means, at any time, the requirement that, subject to Section 6.15(a) and, solely with respect to any Foreign Guarantor, the Agreed Security Principles, the Legal Limitations and the Legal Reservations:

(a) the Administrative Agent shall have received each Collateral Document required to be delivered on the Closing Date pursuant to Section 4.03(a)(iii) or subsequent to the Closing Date pursuant to Sections 6.13 or 6.15 at such time, duly executed by each Loan Party party thereto;

(b) all Obligations shall have been unconditionally guaranteed (together, the “ Guaranty ”) by the Guarantors, subject to the terms hereof, pursuant to the U.S. Guarantee and Security Agreement (in the case of the U.S. Guarantors) and the Foreign Guarantee (in the case of the Foreign Guarantors);

(c) the Guaranty by the Debtors (other than any Additional Debtor to the extent not required by the Required Lenders) and all Obligations shall have been secured by, subject to the Orders, a security interest to the extent legally possible and to the extent required by the Collateral Documents in all Equity Interests of each Subsidiary of any Debtor to the extent directly owned by the relevant Debtor (other than any Additional Debtor to the extent not required by the Required Lenders) with the priority required by the Collateral Documents (excluding Lyondell Chemical Central Europe GmbH, an Austrian Subsidiary of Basell GmbH, so long as the Equity Interests of such Subsidiary are not of material value as determined by the Administrative Agent in its reasonable judgment), the Intercreditor Agreement and the Orders;

 

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(d) except to the extent otherwise permitted hereunder or under any Collateral Document, the Guaranty by the Debtors (other than Basell GmbH and any Additional Debtor to the extent not required by the Required Lenders) and all Obligations shall have been secured by a security interest to the extent legally possible in substantially all tangible and intangible assets of the Debtors (other than Basell GmbH and any Additional Debtor to the extent not required by the Required Lenders) (including but not limited to accounts, inventory, equipment, investment property, contract rights, IP Rights, other general intangibles, material owned or ground leased Real Property, intercompany notes and proceeds of the foregoing), in each case, subject to the Orders, with the priority required by the Collateral Documents, the Intercreditor Agreement and the Orders;

(e) none of the Collateral shall be subject to any Liens other than Liens permitted by Section 7.01; and

(f) the Collateral Agent shall have received (i) counterparts of a Mortgage or other appropriate security interest with respect to each owned or ground leased Real Property or Easement Instrument described on Schedule 1.01B or required to be delivered pursuant to Section 4.03, 6.13 or 6.15 at such time (the “ Mortgaged Properties ”) duly executed and delivered by the record owner of such Real Property or, in the case of Real Property subject to a ground lease, the tenant holding the leasehold interest in such Real Property; provided , however , that with respect to any Mortgaged Property subject to a ground lease, the Loan Party holding the tenant’s interest therein shall not be required to deliver a Mortgage with regard to any ground lease, for which a consent must be obtained and (ii) such abstracts, certificates, existing title documents, existing appraisals, legal opinions (to the extent the Administrative Agent or the Collateral Agent determines in its reasonable good faith judgment that there is an issue of state Law that should be addressed by a legal opinion) and other documents as the Administrative Agent may reasonably request in good faith with respect to any such Mortgaged Property, in each case in form and substance reasonably satisfactory to the Administrative Agent and Collateral Agent.

“ Collateral Availability ” means the “Collateral Availability” as defined in Section 1.01 of the DIP ABL Credit Agreement.

“ Collateral Documents ” means, collectively, the Orders, each of the Security Agreements, each of the Mortgages, collateral assignments, security agreements, pledge agreements, security agreements granting Liens in IP Rights or other similar agreements delivered to the Administrative Agent and the Lenders pursuant to the Loan Documents to secure the Obligations (including pursuant to Section 4.03, 6.13 and 6.15). The Collateral Documents shall supplement, and shall not limit, the grant of Collateral pursuant to the Orders.

“ Committed Loan Notice ” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A hereto.

“ Company ” has the meaning set forth in the introductory paragraph to this Agreement.

 

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“ Company Financial Officer ” means the chief financial officer, any director (or equivalent) or officer from time to time of the Company with actual knowledge of the financial affairs of the Company or the Company and its Subsidiaries (as the context may require).

“ Company Materials ” has the meaning set forth in Section 6.01.

“ Compensation Period ” has the meaning set forth in Section 2.10(c)(ii).

“ Compliance Certificate ” means a certificate substantially in the form of Exhibit C hereto.

“ Consolidated EBITDAR ” means, with respect to the Company and its Subsidiaries for any Test Period, the sum, without duplication, of:

(1) Consolidated Net Income, plus

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

(a) after-tax items classified as nonrecurring losses,

(b) all income taxes paid or accrued (other than income taxes attributable to extraordinary gains or losses),

(c) Consolidated Interest Expense,

(d) Consolidated Non-cash Charges,

(e) (i) any costs, fees, expenses or disbursements of attorneys, consultants or advisors to the Company and its Subsidiaries, in each case, incurred in connection with the ongoing administration of the Cases, the Reorganization Plan and any other financial restructuring and the negotiation, execution and documentation of the European Securitization, the Facilities and any amendments to the Senior First Lien Credit Agreement and the Senior Second/Third Lien Interim Loan Agreement, together with any such costs, fees, expenses or disbursements paid to the attorneys, consultants and advisors of the agents and lenders in connection therewith, and (ii) any upfront, arrangement or other fees paid by the Loan Parties in connection with the Facilities and the European Securitization, and

(f) Controllable Restructuring Costs in an aggregate amount not to exceed $310,000,000 during the term of this Agreement or such greater amount as may be agreed by the Required Lenders after reasonable discussions with the Company, plus

(3) adjustments consistent with the Now Look Report and Operating Forecast necessary to reflect the Company’s current cost basis in calculating Consolidated EBITDAR, which adjustments shall be described in reasonable detail by the Company in the relevant Compliance Certificate.

 

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“ Consolidated Interest Expense ” means, with respect to the Company and its Subsidiaries and for any period, without duplication:

(1) the interest expense in respect of Financial Indebtedness, including:

(a) any amortization of debt discount,

(b) all capitalized interest, and

(c) the interest portion of any deferred payment obligation,

but excluding, in each case, any amortization or write-off of deferred financing costs and fees incurred in connection with the incurrence of any Indebtedness or Securitization Transactions; plus

(2) the net amount paid (or deducting the net amount received) by the Company and its Subsidiaries in respect of the relevant period under any obligations in respect to Swap Contracts consisting of interest rate hedging arrangements or the interest rate component of currency hedging arrangements; plus

(3) the interest component of Capitalized Leases paid, accrued and/or scheduled to be paid or accrued during such period,

less interest income.

“ Consolidated Net Income ” means, with respect to the Company and its Subsidiaries, for any Test Period, net income (or loss) determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded therefrom (but only to the extent included in the calculation of the foregoing):

(a) after-tax gains or losses from disposals, asset impairments or reversal of impairments or abandonments or reserves relating thereto (including for the avoidance of doubt and irrespective of its classification, the effect of any impairment of goodwill arising as a result of the Acquisition),

(b) after-tax items classified as extraordinary gains or losses,

(c) the net income or loss of any Person other than a Subsidiary, except to the extent of cash dividends or distributions paid to the Company or to a Subsidiary,

(d) any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Closing Date,

(e) income or loss attributable to discontinued operations (including operations disposed of during such period whether or not such operations were classified as discontinued),

 

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(f) in the case of a successor to the Company by consolidation, merger or amalgamation or as a transferee of the Company’s assets, any earnings or losses of the successor corporation prior to such consolidation, merger, amalgamation or transfer of assets, and

(g) any increase in amortization or depreciation as a result of the receipt of any insurance proceeds from damage to property.

“ Consolidated Non-cash Charges ” means, with respect to the Company and its Subsidiaries, for any period, the aggregate depreciation, amortization and other non-cash expenses reducing Consolidated Net Income of such Person for such period (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).

“ Consummation Date ” means the date of the substantial consummation (as defined in Section 1101 of the Bankruptcy Code and which for purposes of this Agreement shall be no later than the effective date) of a Reorganization Plan that is confirmed pursuant to an order of the Bankruptcy Court.

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

“ Control ” has the meaning set forth in the definition of “Affiliate.”

“ Controllable Restructuring Costs ” means non-recurring and other one-time costs incurred by the Company or its Subsidiaries in connection with the reorganization of its and its Subsidiaries’ business, operations and structure in respect of (a) the implementation of ongoing operational initiatives, (b) plant closures, consolidation, relocation or elimination of offices operations, (c) related severance costs, employee retention, and other costs incurred in connection with the termination, relocation and training of employees and (d) any costs, fees, expenses or disbursements of attorneys, consultants or advisors to the Company and its Subsidiaries incurred in connection with any of the foregoing.

“ Credit Extension ” means the making of NM Loans pursuant to a Borrowing.

“ Debtors ” means (a) the Initial Debtors, (b) each other Person that qualifies as an Additional Debtor pursuant to clause (a) of the definition thereof, if any, and (c) each Additional Debtor that becomes a Loan Party pursuant to Section 6.23(b), if any.

“ Debtor Relief Laws ” means the Bankruptcy Code, the Dutch Bankruptcy Act ( Faillissementswet ), the German Insolvency Law, the Luxembourg insolvency laws and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, faillissement ( voorlopige ), surseance van betaling , onderbewindstelling , ontbinding , or similar debtor relief Laws of the United States, The Netherlands, Germany, Luxembourg, Hong Kong or England and Wales or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally (including, in the case of Loan Parties incorporated or organized in England, Wales or Hong Kong, administration, administrative receivership, voluntary arrangement and schemes of arrangement).

 

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“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time or both would be an Event of Default.

“ Default Rate ” means, with respect to Loans of any Class, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans of such Class plus (iii) 2.00% per annum; provided that with respect to any Eurodollar Rate Loan, the Default Rate means an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.00% per annum, in each case to the fullest extent permitted by applicable Law.

“ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the NM Loans required to be funded by it hereunder within one (1) Business Day of the date required to be funded by it hereunder, unless the subject of a good faith dispute or subsequently cured (but only from when subsequently cured), (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, unless the subject of a good faith dispute or subsequently cured (but only from when subsequently cured), or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

“ DIP ABL Credit Agreement ” means the Debtor-In-Possession Credit Agreement dated as of March 3, 2009 among the Company, the Borrowers, the lenders party thereto and Citibank, N.A., as administrative agent and collateral agent.

“ DIP ABL Facility ” has the meaning set forth in the Preliminary Statements.

“ DIP Term Loan Facility ” has the meaning set forth in the Preliminary Statements.

“ DIP Term Sheet ” means the DIP Term Sheet referenced in and approved by the Interim Order.

“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction and any sale or issuance of Equity Interests) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

“ Disqualified Equity Interests ” means that portion of any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable (other than redeemable only for Equity Interests of such Person that is not itself a Disqualified Equity Interest), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, on or prior to the date that is ninety-one (91) days after the Maturity Date of the Loans. The amount of any Disqualified Equity Interest that does not have a fixed redemption, repayment or repurchase price will be calculated in accordance with the terms of such Disqualified Equity Interest as if such Disqualified Equity Interest were redeemed, repaid,

 

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converted or repurchased on any date on which the amount of such Disqualified Equity Interest is to be determined pursuant hereto; provided , however , that if such Disqualified Equity Interest could not be required to be redeemed, repaid, converted or repurchased at the time of such determination, the redemption, repayment or repurchase price will be the book value of such Disqualified Equity Interest as reflected in the most recent financial statements of such Person.

“ Documentation Agent ” means UBS Securities LLC.

“ Dollar ” and “ $ ” mean lawful money of the United States.

“ Dollar Equivalent Amount ” has the meaning set forth in Section 1.08.

“ Domestic Subsidiary ” means any Subsidiary that is organized under the Laws of the United States, any state thereof or the District of Columbia.

“ Easement Instrument ” means any instrument, agreement or understanding pursuant to which an interest in land is created, including without limitation, each of the instruments and agreements described or referenced as relating to easements on Schedule 1.01B .

“ EBITDAR ” means, for any Subsidiary, earnings before interest, tax, depreciation and amortization and restructuring costs, calculated for such Subsidiary in the same manner as Consolidated EBITDAR.

“ Effect of Bankruptcy ” means, with respect to any contractual obligation, contract or agreement to which the Company or any of its Subsidiaries is a party, any default or other legal consequences arising on account of the commencement or the filing of the Cases, as applicable (including the implementation of any stay), or the rejection of any such contractual obligation, contract or agreement with the approval of the Bankruptcy Court if required under applicable Law.

“ EMU Legislation ” means the legislative measures of the European Community relating to Economic and Monetary Union.

“ Environment ” means indoor air, ambient air, surface water, groundwater, drinking water, land surface, subsurface strata, and natural resources such as wetlands, flora and fauna.

“ Environmental Laws ” means the common law and any and all Federal, state, local, and foreign statutes, Laws, regulations, ordinances, rules, judgments, orders, decrees, permits, licenses, agreements or governmental restrictions relating to pollution, the protection of the Environment, the generation, treatment, storage, transport, distribution, handling or recycling of Hazardous Materials or the presence, Release or threat of Release of Hazardous Materials and, to the extent relating to exposure to Hazardous Materials, human health and to workplace health and safety.

“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of investigation and remediation, fines, penalties or indemnities), of the Loan Parties or any Subsidiary resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or

 

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recycling of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“ Environmental Permit ” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

“ Equistar ” has the meaning set forth in the preamble to this Agreement.

“ Equity Interests ” means, with respect to any Person, all of the capital stock of such Person and all warrants, options or other rights to acquire the capital stock of such Person, including any contribution from shareholders without any issuance of shares (but excluding any debt security that is convertible into, or exchangeable for, such capital stock).

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

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that is under common control with a Loan Party or any Subsidiary within the meaning of Section 414 of the Code or Section 4001 of ERISA.

“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) with respect to a Pension Plan, the failure to satisfy the minimum funding standard of Section 412 of the Code and Section 302 of ERISA, whether or not waived; (c) the failure to make by its due date a required contribution under Section 412(m) of the Code (or Section 430(j) of the Code, as amended by the Pension Protection Act of 2006) with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (d) a withdrawal by a Loan Party, any Subsidiary or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (e) a complete or partial withdrawal by a Loan Party, any Subsidiary or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (f) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan or the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of or the appointment of a trustee to administer any Pension Plan, in each case where Plan assets are not sufficient to pay all Plan liabilities; (g) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan Party, any Subsidiary or any ERISA Affiliate; or (i) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in liability to a Loan Party or any Subsidiary.

 

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“ Euro ” and “ € ” mean the lawful currency of the Participating Member States introduced in accordance with EMU Legislation.

“ Eurocurrency Liabilities ” has the meaning set forth in Regulation D of the Federal Reserve Board.

“ Eurodollar Rate ” means, for any Interest Period, the rate obtained by dividing (i) the applicable LIBOR Rate for such Interest Period by (ii) a percentage equal to 1 minus the stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained against Eurocurrency Liabilities (including any marginal, emergency, special or supplemental reserves); provided that, in the case of NM Loans, in no event shall the Eurodollar Rate be less than 3.00%; provided further that, in the case of Roll-Up Loans, in the event the Eurodollar Rate as calculated pursuant to the above is less than 3.25%, the Eurodollar Rate for Roll-Up Loans shall equal (x) the product of 62% times 3.25% plus (y) 38% times the Eurodollar Rate as calculated pursuant to the above.

“ Eurodollar Rate Loan ” means a Loan that bears interest at a rate based on the Eurodollar Rate.

“ European Securitization Transaction ” means the transactions entered into in connection with (i) the BSM Master Receivables Purchase Agreement dated June 29, 2006 between Basell Sales & Marketing Company BV, as seller and servicer, Basell Polyolefins Collections Limited, as purchaser, Citicorp Trustee Company Limited, as security trustee, and Citibank N.A., as funding agent, (ii) the Master Definitions and Framework Deed dated 29 July 2005, as amended and restated, among BSM, Master Purchaser, the Company, Eureka Securitisation PLC, Tulip Asset Purchase Company B.V., Citibank N.A., ABN AMRO Bank N.V., The Royal Bank of Scotland PLC, Citicorp Trustee Company Limited and TMF Administration Services Limited, each in their respective roles thereunder, (iii) the Master Receivables Purchasing and Servicing Agreement, dated as of April 14, 2008, by and among Eurotitrisation, as management company, BNP Paribas Securities Services, as custodian, Lyondell Chimie France S.A.S., Lyondell Chimie France TDI S.C.A. and Lyondell Chemie Nederland B.V., each as sellers and servicers, Lyondell Chemie Nederland B.V., as master servicer, Citibank, N.A., as funding agent, and FCC Lyondell, and (iv) the Master Definitions and Framework Agreement, dated as of April 14, 2008, by and among Basell Polyolefins Collections Limited, as master purchaser, LyondellBasell Industries AF S.C.A., as Parent, Lyondell Chemie Nederland, B.V., as Master Servicer, each other seller and servicer that is a party thereto from time to time, Eurotitrisation, as management company, BNP Securities Services, Citibank N.A. and The Royal Bank of Scotland PLC, and any Permitted Refinancing thereof, which transactions shall not exceed in the aggregate at any one time outstanding €650,000,000.

“ Event of Default ” has the meaning set forth in Section 8.01.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.

 

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“ Excluded Capital Expenditures ” means (i) any expenditures required by any change in applicable Law, and (ii) any catalyst or turnaround expenditures that are not treated as capital expenditure consistent with the accounting practices of Lyondell on the date hereof.

“ Excluded Taxes ” means, in the case of each Lender and Agent (including, for purposes of this definition, any sub-agent appointed pursuant to Section 9.05),

(a) taxes imposed on or measured by its net income (or branch profits), and franchise or capital taxes imposed on it in lieu of net income taxes, in each case (i) by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located or (ii) by reason of any other connection between the jurisdiction imposing such tax and such Agent or Lender (or its applicable Lending Office) other than any connections arising solely from such Agent or Lender (or its applicable Lending Office) having executed, delivered, been party to, received or perfected a security interest under or performed its obligations under, received payment under or enforced, this Agreement or any other Loan Document;

(b) (i) in the case of a Foreign Lender other than an assignee pursuant to a request by the Borrowers’ Agent under Section 3.07, any U.S. federal withholding tax that is imposed on amounts payable to or for the account of a Foreign Lender pursuant to a law in effect at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new Lending Office (or assignment), to receive additional amounts from a Borrower with respect to such withholding tax pursuant to Section 3.01 or (ii) any withholding tax that is attributable to a Foreign Lender’s failure to comply with Section 3.01(d); or

(c) any U.S. federal backup withholding imposed under Section 3406 of the Code that is attributable to a Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code failing to comply with Section 3.01(e).

“ Executive Order ” has the meaning set forth in the definition of “Anti-Terrorism Laws.”

“ Existing Indebtedness ” means Indebtedness of the Company and its Subsidiaries existing or outstanding on the Initial Funding Date that is permitted by Section 7.03.

“ Existing Notes ” means, collectively, the 2015 Notes, the 2027 Notes, the 10  ¹ / 4 % Debentures due 2010 of Lyondell, the 9.8% Debentures due 2020 of Lyondell, the 7.55% Debentures due 2026 of Equistar and the 7  ⁵ / 8 % Senior Notes due 2026 of Millennium America Inc., in each case to the extent outstanding on the Initial Funding Date.

“ Existing Primed Secured Facilities ” means, collectively, the Senior First Lien Debt, the Senior Second/Third Lien Debt, the 10  ¹ / 4 % Debentures due 2010 of Lyondell, the 9.8% Debentures due 2020 of Lyondell and the 7.55% Debentures due 2026 of Equistar.

“ Exit Fee ” means, with respect to any prepayment or repayment of any Loans or any termination or permanent reduction in NM Commitments, an amount equal to 3.00% of the principal amount of the Loans being prepaid or the NM Commitments being terminated, as the case may be.

 

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“ Facilities ” means the collective reference to the DIP Term Loan Facility and the DIP ABL Facility.

“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“ Final Order ” has the meaning set forth in Section 4.02(e).

“ Final Order Entry Date ” means the date on which the Final Order is entered by the Bankruptcy Court.

“ Financial Indebtedness ” means (without duplication), at any time, the principal amount of Indebtedness of the Company and its Subsidiaries outstanding at such time, referred to in paragraphs (a), (b), (f), (g), (h) and (i) of the definition of Indebtedness (but, as to such clause (i), only in respect of paragraphs (a), (b), (f), (g) and (h) of such definition).

“ Fiscal Year ” means the twelve month fiscal period of the Company and its Subsidiaries commencing on January 1 of each calendar year and ending on December 31 of such calendar year.

“ Foreign Debtor ” means Basell GmbH and each other Debtor, if any, that is not organized under the Laws of the United States, any state thereof or the District of Columbia.

“ Foreign Guarantee ” means a Guarantee, substantially in the form of Exhibit F hereto, subject to the Agreed Security Principles, the Legal Limitations and the Legal Reservations, with such changes as are necessary or advisable, in the reasonable discretion of the Administrative Agent, under the applicable law of the jurisdiction of organization of the Foreign Guarantor party thereto.

“ Foreign Guarantor ” means (i) the Company, (ii) Basell GmbH, (iii) each Additional Debtor that is a Foreign Debtor that becomes a party to a Foreign Guarantee and (iv) each other Foreign Subsidiary of the Company that on the Petition Date was a guarantor under either (1) the Senior First Lien Credit Agreement or (2) the Senior Second/Third Lien Interim Loan Agreement, in each case to the extent such entity has executed a Foreign Guarantee. The Foreign Guarantors as of the date hereof are listed on Schedule 1.01D .

“ Foreign Lender ” means, for purposes of the Tax in question, a Lender that is treated as foreign by the jurisdiction imposing such Tax.

 

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“ Foreign Plan ” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by, or entered into with, a Loan Party or any Subsidiary with respect to employees employed outside the United States.

“ Foreign Subsidiary ” means any direct or indirect Subsidiary of the Company which is not a Domestic Subsidiary.

“ FRB ” means the Board of Governors of the Federal Reserve System of the United States, or any Governmental Authority succeeding to any of its principal functions.

“ FTI ” means FTI Consulting, Inc. or any replacement thereof as financial advisor to the Lenders.

“ Fund ” means any Person (other than a natural Person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

“ GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time, as applied consistently after the Petition Date.

“ Governmental Authority ” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“ Granting Lender ” has the meaning set forth in Section 10.07(g).

“ Guarantee ” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness).

 

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The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“ Guarantors ” means, collectively, the U.S. Guarantors and the Foreign Guarantors.

“ Guaranty ” has the meaning set forth in the definition of “Collateral and Guarantee Requirement”.

“ Hazardous Materials ” means all materials, chemicals, substances, wastes, pollutants, contaminants, constituents and compounds of any nature or in any form, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas or mold that are regulated pursuant to, or can give rise to liability under, any applicable Environmental Law.

“ Heidrick ” has the meaning set forth in Section 6.19(a).

“ Holding Company ” means, in relation to a company, corporation or other legal entity, any other company, corporation or other legal entity in respect of which the former company, corporation or other legal entity is a Subsidiary.

“ Indebtedness ” means, as to any Person at any time, without duplication, all of the following:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;

(c) net obligations of such Person under any Swap Contract;

(d) all obligations of such Person issued or assumed as the deferred purchase price of property that is due more than six months after taking delivery of such property, all conditional sale obligations and all obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business that are not overdue by ninety (90) days or more or are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted), other than, with respect to the Chapter 11 Filers, any such obligations which the Chapter 11 Filers are not required to pay pursuant to the Bankruptcy Code and orders entered by the Bankruptcy Court in the Cases;

 

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(e) all obligations of any third party of the type referred to in clauses (a), (b), (c), (d), (f) and (h) of this definition which are secured by any lien on any property or asset of such Person, the amount of such obligation being deemed to be the lesser of the fair market value of such property or asset or the amount of the obligation so secured;

(f) all Receivables Financings, Securitization Transactions and obligations under Asset Backed Credit Facilities;

(g) all Disqualified Equity Interests issued by such Person or preferred stock issued by a Subsidiary of such Person with the amount of Indebtedness represented by such Disqualified Equity Interests or preferred stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Equity Interests or preferred stock which do not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Equity Interests or preferred stock as if such Disqualified Equity Interests or preferred stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Equity Interests or preferred stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors of the issuer of such Disqualified Equity Interests or preferred stock;

(h) all Capitalized Leases of such Person; and

(i) to the extent not otherwise included above, all Guarantees of any third party’s Indebtedness in respect of any of the foregoing clauses.

Notwithstanding the foregoing, “Indebtedness” shall not include:

(1) advances paid by customers in the ordinary course of business for services or products to be provided or delivered in the future,

(2) deferred taxes,

(3) unsecured indebtedness of such Person incurred to finance insurance premiums in a principal amount not in excess of the insurance premiums to be paid by such Person and its Subsidiaries for a three-year period beginning on the date of any incurrence of such indebtedness,

(4) any Indebtedness which has been defeased in accordance with GAAP or defeased pursuant to the deposit of cash or government obligations (in an amount sufficient to satisfy all such Indebtedness at the Stated Maturity thereof or redemption, as applicable, and all payments of interest and premium, if any) in a trust or account created or pledged for the sole benefit of the holders of such Indebtedness, and subject to no other Liens, and other applicable terms of the instrument governing such Indebtedness, or

 

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(5) Indebtedness for which irrevocable notice of redemption has been duly given and for which redemption money in the necessary amount has been irrevocably deposited with the applicable trustee or paying agent in trust for the holders of such Indebtedness.

Notwithstanding the foregoing, any accrual of interest, accrual of dividends, the accretion of value, the obligation to pay commitment fees and the payment of interest in the form of Indebtedness shall not be “Indebtedness” for the purposes of Section 7.03 only.

“ Indemnified Liabilities ” has the meaning set forth in Section 10.05.

“ Indemnified Taxes ” means all Taxes other than Excluded Taxes.

“ Indemnitees ” has the meaning set forth in Section 10.05.

“ Independent Financial Advisor ” means a firm which, in the judgment of the Board of Directors of the Company, is independent and qualified to perform the task for which it is to be engaged.

“ Information ” has the meaning set forth in Section 10.08.

“ Initial Cases ” has the meaning set forth in the Preliminary Statements.

“ Initial Debtors ” has the meaning set forth in the Preliminary Statements.

“ Initial Funding Date ” means January 9, 2009.

“ Initial NM Lenders ” means those Lenders that made Initial NM Loans on the Initial Funding Date pursuant to the DIP Term Sheet and the Interim Order.

“ Initial NM Loans ” has the meaning set forth in Section 2.01(a).

“ Initial Roll-Up Entitlements ” has the meaning set forth in Section 2.01(c)(i).

“ Intercompany Facility ” means the Loan Agreement by and between Lyondell, as lender, and Basell GmbH, as borrower, substantially in the form of Exhibit P hereto.

“ Intercompany Subordination Agreement ” means the Intercompany Subordination Agreement substantially in the form of Exhibit N hereto.

“ Intercreditor Agreement ” means an Intercreditor Agreement among the Administrative Agent, the “Administrative Agent” under the DIP ABL Facility and the Borrowers, in substantially the form of Exhibit K hereto.

“ Interest Payment Date ” means (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last day of each calendar month and the Maturity Date.

 

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“ Interest Period ” means the period commencing on the date each Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending (a) in the case of NM Loans, one month thereafter or (b) otherwise, one, two, three or six months thereafter, as selected by the Borrowers’ Agent in its Committed Loan Notice; provided that:

(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(iii) no Interest Period shall extend beyond the Maturity Date.

“ Interim Order ” means the interim order (I) authorizing Debtors (A) to obtain post-petition financing pursuant to 11 U.S.C. §§ 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1) and 364(e), (B) to utilize cash collateral pursuant to 11 U.S.C. § 363 and (C) to purchase certain assets pursuant to 11 U.S.C. § 363, (II) granting adequate protection to pre-petition secured parties pursuant to 11 U.S.C. §§ 361, 362, 363 and 364 and (III) scheduling final hearing pursuant to Bankruptcy Rules 4001(b) and (c) entered by the Bankruptcy Court on January 8, 2009 (Docket No. 79).

“ Interim Order Entry Date ” means January 8, 2009.

“ Interim Period ” means the period beginning on the Interim Order Entry Date and ending on the Final Order Entry Date.

“ Investment ” means, with respect to any Person, any direct or indirect loan or other extension of credit (including a guarantee) or capital contribution (with respect to such loan, extension of credit or capital contribution, by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition by such Person of any Equity Interest, bonds, notes, debentures or other securities or other Indebtedness issued by, any other Person. “Investment” excludes (i) extensions of trade credit in the ordinary course of business, (ii) commissions, loans, advances, fees and compensation paid in the ordinary course of business to officers, directors and employees, and (iii) reimbursement or payment obligations in respect of letters of credit and tender, bid, performance, government contract, surety and appeal bonds, in each case solely with respect to obligations of the Company or any of its Subsidiaries in accordance with the normal trade practices of the Company or such Subsidiary, as the case may be. For the purposes of Article VII, the amount of any Investment (A) in any Person is the original cost of such Investment plus the cost of all additional Investments therein, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment and (B) constituting a loan is the amount of the then-outstanding principal amount thereof.

 

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If the Company or any Subsidiary sells or otherwise disposes of any voting Equity Interests of any direct or indirect Subsidiary of the Company such that, after giving effect to any such sale or disposition, the Company no longer owns, directly or indirectly, greater than 50% of the outstanding voting Equity Interests of such Subsidiary, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the common Equity Interests of such Subsidiary not sold or disposed of.

“ IP Rights ” has the meaning set forth in Section 5.15.

“ Junior Financing ” has the meaning set forth in Section 7.13(a).

“ Junior Financing Documentation ” means any documentation governing any Junior Financing.

“ Laws ” means, as to any Person, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case binding on such Person or to which such Person or any of its property or assets is subject.

“ Legal Limitations ” means covenant restrictions in joint venture agreements, general statutory or common law limitations, criminal offenses, corporate benefit and similar principles under applicable law (taking into account the ultimate benefit to be received by each Subsidiary providing a Foreign Guarantee) which limit the ability of a Foreign Guarantor to provide a Foreign Guarantee or, in the case of Basell GmbH and any other Foreign Debtor, security, or will require that such Foreign Guarantee be limited by an amount or otherwise.

“ Legal Reservations ” means:

(a) the principle that equitable remedies may be granted or refused at the discretion of a court;

(b) the limitation of enforcement by Laws relating to insolvency, reorganization and other similar laws generally affecting the rights of creditors;

(c) the time barring of claims under the statutes of limitation;

(d) the possibility that an undertaking to assume liability for or indemnify a Person against non-payment of stamp duties or to pay a penalty may be void;

(e) defenses of set-off or counterclaim; and

(f) general statutory limitations, corporate benefit and similar principles under applicable law (taking into account the ultimate benefit to be received by each Foreign Guarantor) which limit the ability of a Foreign Guarantor to provide the Guaranty or, in the case of Basell GmbH and any other Foreign Debtor, security, or will require that the Guaranty by such Foreign Guarantor be limited by an amount or otherwise.

 

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“ Lender ” has the meaning set forth in the introductory paragraph to this Agreement.

“ Lending Office ” means, as to any Lender, such office or offices as a Lender may from time to time notify the Borrowers’ Agent and the Administrative Agent.

“ LIBOR Rate ” means, with respect to any Eurodollar Rate Loan for any Interest Period, the rate per annum determined by the Administrative Agent to be the arithmetic mean of the offered rates for deposits in Dollars with a term comparable to such Interest Period that appears on the Reuters Screen LIBOR01 Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by lending banks in London interbank deposit market) (as defined below) at approximately 11:00 a.m. (London time) on the second full Business Day preceding the first day of such Interest Period; provided , however , that (i) if no comparable term for an Interest Period is available, the LIBOR Rate shall be determined using the weighted average of the offered rates for the two terms most nearly corresponding to such Interest Period and (ii) if there shall at any time no longer exist a Reuters Screen LIBOR01 Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by lending banks in London interbank deposit market), “LIBOR Rate” shall mean, with respect to each day during each Interest Period pertaining to Eurodollar Rate Loans comprising part of the same Borrowing, the rate per annum equal to the rate at which the Administrative Agent is offered deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period in the London interbank market for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to its portion of the amount of such Borrowing to be outstanding during such Interest Period.

“ Lien ” means any mortgage, deed of trust, pledge, hypothecation, assignment, transfer for security purposes, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement, of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to Real Property and any Capitalized Lease having substantially the same economic effect as any of the foregoing).

“ Limited Recourse Stock Pledge ” means the pledge of the Equity Interests in any Specified Saudi Joint Venture or its direct parent to secure debt of such Specified Saudi Joint Venture or its direct parent that provides for no recourse to the Company or any of its Subsidiaries (other than to such Specified Saudi Joint Venture or its direct parent) by any Foreign Subsidiary the activities of which are solely limited to making and managing Investments, and owning Equity Interests, in such Specified Saudi Joint Venture or its direct parent, but only for so long as its activities are so limited; provided that the activities of any such direct parent are solely limited to making and managing Investments, and owning Equity Interests, in such Specified Saudi Joint Venture.

“ Liquidity ” means, on any date of determination, (i) the sum of (A) the consolidated amount of Unrestricted Cash of the Company and its Subsidiaries on such date, (B) the Available ABL Commitment in effect on such date and (C) the unused amount of the NM Commitments in effect on such date minus (ii) any Additional Restricted Cash.

 

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“ Loans ” means, collectively, the NM Loans and the Roll-Up Loans.

“ Loan Documents ” means, collectively, (i) this Agreement, (ii) the Intercompany Subordination Agreement, (iii) the Notes, (iv) the Collateral Documents, (v) the Foreign Guarantees and (vi) other than for purposes of Articles V and VIII, the Intercreditor Agreement.

“ Loan Parties ” means, collectively, the Borrowers and the Guarantors.

“ Lyondell ” has the meaning set forth in the introductory paragraph to this Agreement.

“ Master Agreement ” has the meaning set forth in the definition of “Swap Contract.”

“ Material Adverse Effect ” means (a) a material adverse effect on the business, operations, assets, liabilities (actual or contingent), financial condition or prospects of the Company and its Subsidiaries (taken as a whole), (b) a material adverse effect on the ability of the Borrowers or the Loan Parties (taken as a whole) to perform their respective payment obligations under any Loan Document to which any Borrower or any of the Loan Parties is a party or (c) a deficiency in the rights and remedies of the Lenders under the Loan Documents (taken as a whole) which is materially adverse to the Lenders; provided , that a Material Adverse Effect shall not be deemed to exist as a result of the Cases or the Effect of Bankruptcy or the circumstances and events leading up thereto.

“ Material Subsidiary ” means, at any date of determination, each of the Company’s Subsidiaries (a) whose total assets at the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.05 or Section 6.01 were equal to or greater than 2.5% of the Total Assets of the Company and the Subsidiaries at such date or (b) whose EBITDAR for the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.05 or Section 6.01 is equal to or greater than 2.5% of the Consolidated EBITDAR for such fiscal period.

“ Maturity Date ” means the earliest of (a) December 15, 2009 or such later date if extended in accordance with Section 2.05, (b) the Consummation Date, (c) March 6, 2009 if the Final Order Entry Date shall not have occurred by such date, (d) the date of the acceleration of the loans and the termination of the commitments under the DIP ABL Facility (including, without limitation, as a result of the occurrence of any event of default thereunder) and (e) the date of the acceleration of the Loans and termination of the NM Commitments under Section 8.02. ¹

“ Maximum Rate ” has the meaning set forth in Section 10.10.

1	See Section 6.18(d)

 

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“ Millennium Holdings Group ” means Millennium Holdings LLC or any Person that was a Subsidiary of Millennium Holdings LLC as of the Initial Funding Date.

“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

“ Mortgaged Properties ” has the meaning set forth in paragraph (f) of the definition of “Collateral and Guarantee Requirement.”

“ Mortgages ” means, collectively, the deeds of trust, trust deeds, hypothecs and mortgages creating and evidencing a Lien on a Mortgaged Property made by the Loan Parties in favor of or for the benefit of the Collateral Agent on behalf of the Secured Parties substantially in the form of Exhibit H hereto or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent and any other mortgages executed and delivered pursuant to Section 4.03, 6.13 and 6.15, in each case securing the Obligations.

“ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party, any Subsidiary or any ERISA Affiliate makes or is obligated to make contributions, during the preceding five plan years, has made or been obligated to make contributions or otherwise could reasonably be expected to incur liability.

“ Negromex Receivables Dispositions ” means any disposition of accounts receivables from Industrias Negromex, S.A. de C.V. purchased by Citibank, N.A. pursuant to the terms of the Supplier Agreement, dated as of December 7, 2006, between Equistar Chemicals, L.P. and Citibank, N.A., as in effect on the date hereof.

“ Net Proceeds ” means with respect to any Disposition or Casualty Event 100% of the cash proceeds actually received by the Company or any Subsidiary from such Disposition or Casualty Event (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards in respect of any equipment, fixed assets or Real Property (including any improvements thereof)), but only as and when received, and excluding any liabilities assumed by the transferee and deemed to be cash for purposes of Section 7.05(i)(ii), in each case net of:

(i) attorneys’ fees, accountants’ fees, investment banking fees, purchaser due diligence costs (to the extent borne by the Company or any Subsidiary), survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations relating to the applicable asset to the extent such debt or obligations are secured by a Lien permitted hereunder that has not been primed pursuant to the Cases (other than pursuant to the Loan Documents) on such asset, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith,

(ii) Taxes paid or payable as a result thereof,

(iii) the amount of any reserve certified by the Company Financial Officer as reasonable and established in accordance with GAAP against any

 

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adjustment to the sale price or to fund any liabilities (other than any taxes deducted pursuant to clause (ii) above) (x) related to any of the applicable assets and (y) retained by the Company or any of the Subsidiaries, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations ( provided , however , that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Disposition or Casualty Event received on the date of such reduction),

(iv) all distributions and other payments required to be made to other shareholders in subsidiaries or joint ventures as a result of such Disposition or Casualty Event or to any other person (other than any Loan Party) owning a beneficial interest in the assets that are the subject of such Disposition or Casualty Event,

(v) the decrease in proceeds from Securitization Transactions which results from such Disposition or Casualty Event,

(vi) repayment of Existing Indebtedness (other than Indebtedness with respect to which the Lien related thereto has been primed pursuant to the Cases) required to be paid in connection with such Disposition or Casualty Event, and

(vii) solely in the case of a Disposition or Casualty Event with respect to the ABL Collateral, any other application of such proceeds required by the DIP ABL Facility,

in the case of items (i) through (vii) above, to the extent approved by the Bankruptcy Court, if such approval is necessary pursuant to the Bankruptcy Code; provided that, so long as no Default or Event of Default shall have occurred and be continuing, upon the occurrence of any Casualty Event, the Borrower’s Agent may deliver a certificate of a Company Financial Officer to the Administrative Agent promptly following such Casualty Event setting forth the Company’s (or any Subsidiary’s) intention to use all or a portion of any proceeds received with respect to such Casualty Event to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Company and the Subsidiaries (such actions with respect to an asset affected by a Casualty Event, an “ Asset Restoration ”). If such a certificate is delivered, the related proceeds when received shall not, so long as applied to the applicable Asset Restoration, constitute Net Proceeds for purposes of this Agreement; provided , however , that notwithstanding the foregoing, if such a certificate is delivered with respect to a Casualty Event relating to assets the replacement value of which is greater than $25,000,000, then such certificate shall set forth the following additional information: (x) the anticipated aggregate cost of such Asset Restoration, (y) the anticipated insurance proceeds to be received from the insurer by the Company or its applicable Subsidiary in connection with such Asset Restoration, and (z) the anticipated insurance proceeds to be received from the insurer by the Company or its applicable Subsidiary if such Asset Restoration does not occur, and the Required Lenders shall, acting reasonably and in good faith, promptly direct the Company whether or not to pursue such Asset Restoration. If the Required Lenders direct the Company to pursue an Asset Restoration with

 

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respect to any Casualty Event, the insurance proceeds received with respect to such Casualty Event shall not, so long as applied to the applicable Asset Restoration, constitute Net Proceeds for purposes of this Agreement.

For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to the Company or any Subsidiary shall be disregarded.

“ NM Commitment ” means, as to each Lender, its obligation to make NM Loans to the Borrowers pursuant to Section 2.01(b) in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on the Allocation Schedule under the caption “NM Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the NM Commitments as of the date hereof is $1,083,000,000.

“ NM Lenders ” means each Lender with a NM Commitment or that holds a NM Loan.

“ NM Loan ” has the meaning set forth in Section 2.01(b).

“ NM Note ” means a promissory note of the Borrowers payable to any NM Lender or its registered assigns, in substantially the form of Exhibit B-1 hereto, evidencing the aggregate Indebtedness of the Borrowers to such NM Lender resulting from the NM Loans made by such NM Lender.

“ Non-Consenting Lender ” has the meaning set forth in Section 3.07(c).

“ Non-Debtor Subsidiary ” means each Subsidiary of the Company that is not a Debtor.

“ Non-Responsive Lender ” means, with respect to any amendment, waiver or modification, any Lender who does not respond affirmatively or negatively within twelve (12) Business Days to a request for such amendment, waiver or modification.

“ Note ” means an NM Note or a Roll-Up Note, as the context may require.

“ Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party and its Subsidiaries arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or Subsidiary of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of their Subsidiaries to the extent they have obligations under the Loan Documents) include (i) the obligation (including guarantee obligations) to pay principal, interest, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party or Subsidiary under any Loan Document and (ii) the obligation of any Loan Party or Subsidiary to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party or such Subsidiary to the extent originally payable by that Loan Party or Subsidiary.

 

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“ Operating Forecast ” means a business plan and projected operating budget for the Company and its Subsidiaries for the remainder of 2009, broken down by month, including income statements, balance sheets, cash flow statements, projected capital expenditures, asset sales, cost savings and head count reductions, targeted facility closures, targeted facility idlings and other milestones, a line item for total available liquidity for the period covered thereby and setting forth the anticipated uses of the Facilities for such period.

“ Orders ” means, collectively, the Interim Order, the Final Order and, to the extent applicable, the orders of the Bankruptcy Court relating to the Guaranty of any Additional Debtor (and any Collateral pledged in respect thereof).

“ Organization Documents ” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation, association or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

“ Other Taxes ” has the meaning set forth in Section 3.01(b).

“ Outstanding Amount ” means with respect to the Loans on any date, the aggregate principal amount thereof, after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date.

“ Parent ” means BI S.à r.l., a société à responsabilité limitée incorporated under the laws of the Grand Duchy of Luxembourg.

“ Participant ” has the meaning set forth in Section 10.07(e).

“ Participant Register ” has the meaning set forth in Section 10.07(e).

“ Participating Member State ” means each state so described in any EMU Legislation.

“ PBGC ” means the Pension Benefit Guaranty Corporation.

“ PBGC Settlement ” means the settlement agreement dated July 22, 1998 between Lyondell and the Pension Benefit Guaranty Corporation (or any successor entity).

“ Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA or to the minimum funding standards under Section 412 of the Code or Section 302 of ERISA and

 

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is sponsored or maintained by any Loan Party, any Subsidiary or any ERISA Affiliate or to which any Loan Party, any Subsidiary or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan years or with respect to which a Loan Party, Subsidiary or ERISA Affiliate could reasonably be expected to incur liability (including under Section 4063 or 4069 of ERISA).

“ Perfection Certificate ” has the meaning set forth in the U.S. Guarantee and Security Agreement.

“ Permitted Business ” means any business which is the same, similar, related or complementary to the businesses in which the Company and its Subsidiaries were engaged on the date hereof, except to the extent that after engaging in any new business, the Company and its Subsidiaries, taken as a whole, remain substantially engaged in similar or related lines of business as were conducted by them on the date hereof.

“ Permitted Joint Venture ” means the joint ventures existing on the Initial Funding Date and listed on Schedule 1.01H .

“ Permitted Refinancing ” means, with respect to any Person, any modification, refinancing, replacement, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, replaced, refunded, renewed or extended plus any interest and expenses, including prepayment premiums, associated hedging break costs and premiums or replacement hedges, related to such refinancing, replacement, refunding, renewal or extension, (b) such modification, refinancing, replacement, refunding, renewal, or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended and in any event has a final maturity date later than the date that is six months following the Maturity Date (except in each case with respect to any Indebtedness of any Subsidiary that is not a Loan Party that is refinanced, replaced, refunded, renewed or extended using financing in the local jurisdiction of such Subsidiary), (c) at the time thereof, no Event of Default shall have occurred and be continuing, except with respect to any Indebtedness of any Subsidiary that is not a Loan Party that is refinanced, replaced, refunded, renewed or extended using financing in the local jurisdiction of such Subsidiary, and (d) if such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended is Indebtedness permitted pursuant to Section 7.03(b) or 7.03(g), (i) to the extent such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended is subordinated in right of payment to the Obligations or subordinated in respect of Liens, such modification, refinancing, replacement, refunding, renewal or extension is subordinated in right of payment to the Obligations or subordinated in respect of Collateral on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended, (ii) the terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate and redemption premium) of any such modified, refinanced, replaced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or

 

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the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended, and (iii) such modification, refinancing, replacement, refunding, renewal or extension is incurred by the Person who is the obligor of the Indebtedness being modified, refinanced, refunded, renewed or extended.

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“ Petition Date ” means January 6, 2009.

“ Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by any Loan Party or Subsidiary or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

“ Platform ” has the meaning set forth in Section 6.01.

“ Pre-Petition Payment ” means a payment (by way of adequate protection or otherwise) of principal or interest or otherwise on account of any pre-petition (i) Indebtedness, (ii) “critical vendor payments” or (iii) trade payables (including, without limitation, in respect of reclamation claims), or other pre-petition claims against any Chapter 11 Filer.

“ Public Lender ” has the meaning set forth in Section 6.01.

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

“ Receivables Financings ” means factoring, securitizations of receivables or any other receivables financing (including through the sale of receivables in a factoring arrangement or through the sale of receivables to lenders or to special purpose entities formed to borrow from such lenders against such receivables), whether or not recourse to the Company or any of its Subsidiaries, including the European Securitization Transaction, the Berre Facility or any other Securitization Transaction, but excluding the DIP ABL Facility. The aggregate amount of all Asset Backed Credit Facilities, Receivables Financings and Securitization Transactions entered into during the term of this Agreement (other than the European Securitization Transaction and the Berre Facility) shall not exceed an amount equal to $50,000,000 at any one time outstanding.

“ Record Date ” means February 18, 2009.

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

“ Related Senior First Lien Lender ” means, with respect to any Initial NM Lender, (a) any of its Affiliates and (b) any other Senior First Lien Lender approved by the Administrative Agent as a “Fronting Lender” for such Initial NM Lender in accordance with the procedures separately agreed among the Administrative Agent and the Initial NM Lenders regarding the matters described in Section 2.01(c)(ii).

 

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“ Release ” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing or migrating in, into, onto or through the Environment.

“ Reorganization Plan ” means a plan of reorganization in any of the Cases of the Debtors.

“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived.

“ Required Class Lenders ” means, as of any date of determination, (a) with respect to the Roll-Up Lenders, the Roll-Up Lenders holding more than 50% of the aggregate outstanding principal amount of Roll-Up Loans (or, prior to the Roll-Up Date, 50% of the aggregate outstanding Roll-Up Entitlements) and (b) with respect to the NM Lenders, the NM Lenders holding more than 50% of the sum of (i) the aggregate outstanding principal amount of NM Loans and (ii) the aggregate unused NM Commitments; provided that, in each case, the portion of the Loans held or deemed held by, and in the case of NM Lenders the unused NM Commitments of, any Defaulting Lender or Non-Responsive Lender shall be excluded for purposes of making a determination of Required Class Lenders; provided further that, in the case of the Roll-Up Loans, the determination of “Required Class Lenders” shall disregard the outstanding amount of any Roll-Up Loans held by Access, the Sponsor or any Affiliate of the Sponsor subject to any Sponsor Letter Agreement, to the extent applicable.

“ Required Lenders ” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings (which, prior to the Roll-Up Date, shall include all Roll-Up Entitlements existing as of such date) and (b) aggregate unused NM Commitments; provided that the unused NM Commitments of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender or Non-Responsive Lender shall be excluded for purposes of making a determination of Required Lenders; provided that, in the case of the Roll-Up Loans, the determination of “Required Lenders” shall disregard the outstanding amount of any Roll-Up Loans held by Access, the Sponsor or any Affiliate of the Sponsor subject to any Sponsor Letter Agreement, to the extent applicable.

“ Responsible Officer ” means the Chief Restructuring Officer, chief executive officer, president, chief financial officer or treasurer of a Loan Party (including, in the case of each Loan Party, the authorized number of managing directors or a general attorney or an attorney under a power of attorney of such Loan Party) and, as to any document delivered on the Closing Date (other than a Committed Loan Notice), any secretary of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“ Restricted Party ” means any person listed:

(a) in the Annex to the Executive Order;

 

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(b) on the “Specially Designated Nationals and Blocked Persons” list maintained by the OFAC;

(c) in any successor list to either of the foregoing; or

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

“ Restricted Payment ” means, with respect to any Person,

(1) a declaration or payment of any dividend or the making of any distribution (other than pro rata dividends or other distributions made by a Subsidiary that is not a Wholly Owned Subsidiary to minority shareholders (or owners of an equivalent interest in the case of a Subsidiary that is an entity other than a corporation) to the extent required by and in accordance with the applicable organizational documents or other applicable joint venture agreements, in each case as in effect on the Initial Funding Date) on or in respect of shares of such Person’s Equity Interests to holders of such Equity Interests,

(2) the purchase, redemption or other acquisition or retirement for value of any Equity Interests of such Person or any warrants, rights or options to purchase or acquire shares of any class of such Equity Interests, or

(3) any Investment other than an Investment permitted by Section 7.02.

“ Restructuring Committee ” has the meaning set forth in Section 6.19.

“ Roll-Up Amount ” means with respect to any Lender the amount, if any, of Roll-Up Entitlements of such Lender set forth opposite such Lender’s name on the Allocation Schedule under the caption “Roll-Up Amount”. The aggregate amount of the Roll-Up Amounts on the date hereof is $2,167,000,000, and the aggregate amount of the Roll-Up Amounts as of the Closing Date shall be $3,250,000,000.

“ Roll-Up Challenge ” has the meaning set forth in Section 10.05.

“ Roll-Up Date ” means the earliest to occur of (a) the Syndication Completion Date, (b) March 31, 2009 and (c) the Maturity Date.

“ Roll-Up Entitlements ” has the meaning set forth in Section 2.01(c)(i).

“ Roll-Up Lenders ” means each Lender that holds a Roll-Up Entitlement or a Roll-Up Loan.

“ Roll-Up Loans ” has the meaning set forth in Section 2.01(c)(i).

“ Roll-Up Note ” means a promissory note of the Borrowers payable to any Roll-Up Lender or its registered assigns, in substantially the form of Exhibit B-2 hereto, evidencing the aggregate Indebtedness of the Borrowers to such Roll-Up Lender resulting from the Roll-Up Loans made by such Roll-Up Lender.

 

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“ Roll-Up Replacement Security ” has the meaning set forth in Section 2.12.

“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, and any successor thereto.

“ Same Day Funds ” means immediately available funds.

“ SEC ” means the U.S. Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“ Secured Parties ” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Persons entitled to indemnification under the Loan Documents and each co-agent or sub-agent appointed by the Administrative Agent or Collateral Agent from time to time pursuant to Section 9.05.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Securitization Entity ” means each entity to which the Company or any Subsidiary of the Company transfers, directly or indirectly, accounts receivable and related assets which engages in no activities other than in connection with the financing of accounts receivable and which is designated by the Board of Directors of the Company (as provided below) as a Securitization Entity; provided that:

(1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which

(a) is guaranteed by the Company or any Subsidiary of the Company (other than the Securitization Entity), excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings,

(b) is recourse to or obligates the Company or any Subsidiary of the Company (other than the Securitization Entity) in any way other than pursuant to Standard Securitization Undertakings, or

(c) subjects any property or asset of the Company or any Subsidiary of the Company (other than the Securitization Entity), directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings and other than any interest in the accounts receivable and related assets being financed (whether in the form of an equity interest in such assets or subordinated indebtedness payable primarily from such financed assets) retained or acquired by the Company or any Subsidiary of the Company,

 

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(2) neither the Company nor any Subsidiary of the Company has any material contract, agreement, arrangement or understanding with the Securitization Entity other than on terms no less favorable to the Company or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company, other than fees payable in the ordinary course of business in connection with servicing receivables of such entity (other than Standard Securitization Undertakings), and

(3) neither the Company nor any Subsidiary of the Company has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results (other than Standard Securitization Undertakings).

Any such designation by the Board of Directors of the Company shall be evidenced to the Administrative Agent by filing with the Administrative Agent a certified copy of the resolution of the Board of Directors of the Company giving effect to such designation and an officers’ certificate certifying that such designation complied with the foregoing conditions.

“ Securitization Transaction ” means any transaction or series of transactions that may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer pursuant to customary terms to:

(1) a Securitization Entity or to the Company which subsequently transfers to a Securitization Entity (in the case of a transfer by the Company or any of its Subsidiaries) or

(2) any other Person (in the case of transfer by a Securitization Entity), or may grant a security interest in any accounts receivable (whether now existing or arising or acquired in the future) of the Company or any of its Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable, all contracts and contract rights related thereto and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets (including contract rights) which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable.

The aggregate amount of all Asset Backed Credit Facilities, Receivables Financings and Securitization Transactions entered into during the term of this Agreement (other than the European Securitization Transaction and the Berre Facility) shall not exceed an amount equal to $50,000,000 at any one time outstanding.

“ Security Agreements ” means the Security Agreements listed on Schedule 1.01E , or any other similar agreements that create a Lien or purport to create a Lien in favor of the Secured Parties or in favor of the Collateral Agent for the benefit of the Secured Parties, in each case securing the Obligations.

“ Senior First Lien Credit Agreement ” means the Credit Agreement dated as of December 20, 2007, as amended and restated on April 30, 2008, among the Company, Lyondell, the other borrowers party thereto, the subsidiary guarantors party thereto, the lenders party thereto and Citibank, N.A., as primary administrative agent (or any successor thereto in such capacity) (including Exhibits thereto), as in effect on the date hereof.

 

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“ Senior First Lien Credit Agreement Amendment ” means an amendment to the Senior First Lien Credit Agreement substantially in the form of Exhibit R hereto.

“ Senior First Lien Debt ” means the Senior First Lien Loans and the “Letters of Credit”, as set forth in the Senior First Lien Credit Agreement.

“ Senior First Lien Lender ” means a “Lender” as such term is defined in the Senior First Lien Credit Agreement on the date hereof.

“ Senior First Lien Loans ” means the “Loans”, as set forth in the Senior First Lien Credit Agreement.

“ Senior Forbearance Agreement ” means the First Amended and Restated Senior Forbearance Agreement, the form of which is set forth as Exhibit L hereto.

“ Senior Second/Third Lien Debt ” means the Senior Second/Third Lien Interim Loans, the Senior Second/Third Lien Exchange Notes and the Senior Second/Third Lien Extended Loans.

“ Senior Second/Third Lien Exchange Notes ” means the “Exchange Notes,” as set forth in the Senior Second/Third Lien Interim Loan Agreement.

“ Senior Second/Third Lien Extended Loans ” means the “Extended Loans,” as set forth in the Senior Second/Third Lien Interim Loan Agreement.

“ Senior Second/Third Lien Interim Loan Agreement ” means the Bridge Loan Agreement dated as of December 20, 2007, as amended and restated on April 30, 2008 and as further amended and restated on October 17, 2008, between LyondellBasell Finance Company B.V., among others, the Company, the subsidiary guarantors party thereto, the lenders party thereto and the joint lead arrangers and bookrunners party thereto (including Exhibits thereto), as in effect on the date hereof.

“ Senior Second/Third Lien Interim Loans ” means $8,000,000,000 of senior second/third lien loans made to LyondellBasell Finance Company B.V. pursuant to the Senior Second/Third Lien Interim Loan Agreement.

“ Solvent ” means, with respect to any group of Persons on any date of determination, that on such date (a) the fair value of the assets of such Persons is greater than the total amount of liabilities, including contingent liabilities, of such Persons, (b) the present fair salable value of the assets of such Persons is not less than the amount that will be required to pay the probable liability of such Persons on their debts as they become absolute and matured, (c) such Persons do not intend to, and do not believe that they will, incur debts or liabilities beyond such Persons’ ability to pay such debts and liabilities as they mature and (d) such Persons are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which such Persons’ property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the 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.

 

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“ SPC ” has the meaning set forth in Section 10.07(g).

“ Specified Joint Venture ” means any of (i) Lyondell Chemical Co. of Ningbo ZRCC (“ Ningbo ZRCC ”), (ii) a joint venture to be formed after the Closing Date solely to market products produced by Ningbo ZRCC and (iii) any Specified Saudi Joint Venture.

“ Specified NM Lender ” means any Lender (and its Affiliates) which, together with its Affiliates, held at least 15% of the sum of the aggregate outstanding principal amount of the NM Loans and the aggregate unused NM Commitments as of the Initial Funding Date.

“ Specified Saudi Joint Venture ” means any of (i) Al Waha Petrochemical Company, (ii) Saudi Ethylene and Polyethylene Company and (iii) Saudi Polyolefins Company.

“ Sponsor ” means,

(a) the Blavatnik Group; and/or

(b) other funds, limited partnerships or companies managed or controlled by Mr. Leonard Blavatnik, including Parent, for so long as so managed or controlled.

“ Sponsor Letter Agreement ” means (I) a letter agreement entered into by Access in the form of Exhibit Q hereto setting forth the agreement by Access (a) that it will not vote, directly or indirectly, any Indebtedness of the Company or any of its Subsidiaries that it holds in the context of any bankruptcy proceedings, including, without limitation, the confirmation of a plan of reorganization (all such Indebtedness held or controlled by Access shall be deemed to have been voted without discretion in such proportion as the allocation of voting with respect to such matter by the lenders or holders who are not the Sponsor or an Affiliate of the Sponsor), (b) that it will not vote, directly or indirectly, any Indebtedness of the Company or any of its Subsidiaries that it holds under this Agreement or any other credit agreement, indenture or document (all such Indebtedness held or controlled by Access shall be deemed to have been voted without discretion in such proportion as the allocation of voting with respect to such matter by the lenders or holders who are not the Sponsor or an Affiliate of the Sponsor); provided that Access shall not be restricted from voting in respect of any matters (i) expressly requiring the vote of all lenders and/or holders, or each lender and/or holder, of such Indebtedness or (ii) expressly requiring the vote of each affected lender or holder of such Indebtedness (it being understood that, for the avoidance of doubt, for purposes of this Agreement, this clause (ii) shall apply to amendments, modifications or waivers pursuant to clause (b), (c), (d) or (k) of Section 10.01 hereof), and (c) that it will not exercise or seek to exercise, directly or indirectly, any remedies or otherwise assert any creditor rights in respect of any Indebtedness of the Company or any of its Subsidiaries, including in connection with any court proceedings, including, without limitation, under the Bankruptcy Code, provided that (i) to the extent Required Lenders (in respect of such Indebtedness incurred pursuant to this Agreement) or requisite lenders and/or requisite holders of such other Indebtedness take any action in respect of enforcement of any rights or remedies in respect of such Indebtedness, Access shall be permitted to participate in such action and (ii) to the extent individual Lenders (in respect of such Indebtedness incurred pursuant to this Agreement) or individual lenders and/or holders of

 

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such other Indebtedness are permitted under the terms of this Agreement or such Indebtedness, as applicable, to file proofs of claims or file any responsive pleadings in opposition to any claim seeking to disallow the claims (or similar actions in relevant jurisdictions) in respect of such Indebtedness, Access shall be entitled to take such action to the extent (A) not adverse to any action (or inaction) taken by the Required Lenders or requisite lenders and/or holders and (B) independent counsel mutually agreed to by Access and the Administrative Agent confirms that such proof of claim or responsive pleading (or similar actions in relevant jurisdictions) is required to preserve its creditor rights or claims in respect of such Indebtedness or (II) a letter agreement with terms identical to the foregoing and entered into by the Sponsor or any Affiliate of the Sponsor.

“ Standard Securitization Undertakings ” means representations, warranties, undertakings, covenants and indemnities entered into by the Company or any Subsidiary of the Company which are reasonably customary in an accounts receivable securitization transaction.

“ Stated Maturity ” means, with respect to any Indebtedness, the date specified in such security as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the relevant obligor’s control unless such contingency has occurred).

“ Subsidiary ” means with respect to any Person, (1) a corporation a majority of the voting Equity Interests of which are at the time, directly or indirectly, owned by such Person; and (2) any other Person (other than a corporation), including, a partnership, limited liability company, business trust or joint venture, in which such Person, at the time thereof, directly or indirectly, has at least a majority ownership interest entitled to vote in the election of directors, managers or trustees thereof (or other Person performing similar functions) or (3) for so long as the Company or any of its Subsidiaries has a 50% ownership interest in Lyondell Bayer Manufacturing Maasvlakle VOF, Lyondell Bayer Manufacturing Maasvlakle VOF. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company.

“ Superpriority Claim ” means a claim against any Debtor in any of the Cases which is an administrative expense claim having priority over any or all administrative expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code.

“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, emission rights, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published

 

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by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

“ Syndication Agent ” means UBS Securities LLC.

“ Syndication Completion Date ” means the date of the completion and closing of the primary syndication of the DIP Term Loan Facility, as determined by the Administrative Agent and notified to the Company and the Lenders.

“ Taxes ” means all present or future taxes, duties, levies, imposts, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto, whether disputed or not.

“ Term Loan Collateral ” means all Collateral other than the ABL Collateral; provided that the Term Loan Collateral and the ABL Collateral shall include Avoidance Actions on an equal and ratable basis.

“ Test Period ” means, on any date of determination, the period beginning on January 1, 2009 and ending on the last day of the calendar month then ended.

“ Total Assets ” of a Person or Persons means total assets of such Persons on a consolidated basis, shown on the most recent balance sheet of such Persons as may be expressly stated without giving effect to amortization of the amount of intangible assets since the date hereof.

“ Total Outstandings ” means the aggregate Outstanding Amount of all Loans.

“ Treasury Services Agreement ” means any agreement between any Loan Party or any Subsidiary thereof and Citibank, N.A. (or its Affiliates) relating to treasury, depository, and cash management services, employee credit card arrangements or automated clearinghouse transfer of funds that is in existence on the date hereof or that is substantially similar thereto and entered into in the ordinary course of business and consistent with past practice.

“ Type ” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

“ Unfunded Current Liability ” of any Plan means the amount, if any, by which the Accumulated Benefit Obligation (as defined under Statement of Financial Accounting Standards No. 87 (“ SFAS 87 ”)) under the Plan as of the close of its most recent plan year, determined in accordance with SFAS 87 as in effect on the date hereof, exceeds the fair market value of the assets allocable thereto.

“ Uniform Commercial Code ” or “ UCC ” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

 

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“ United States ” and “ U.S. ” mean the United States of America.

“ Unrestricted Cash ” means cash and Cash Equivalents that would not appear in the consolidated financial statements of the Company, prepared in accordance with GAAP, as a line item on the balance sheet as “restricted cash” or similar caption.

“ U.S. Guarantee and Security Agreement ” means the Guarantee and Security Agreement substantially in the form of Exhibit E hereto.

“ U.S. Guarantors ” means (x) each Borrower (with respect to the Obligations of each other Borrower), (y) each Additional Debtor (other than a Foreign Debtor) that becomes a party to the U.S. Guarantee and Security Agreement and (z) each other Domestic Subsidiary of the Company that on the Petition Date was a guarantor under either (1) the Senior First Lien Credit Agreement or (2) the Senior Second/Third Lien Interim Loan Agreement. The U.S. Guarantors as of the date hereof are listed on Schedule 1.01D .

“ USA Patriot Act ” has the meaning set forth in Section 4.03(c).

“ Variance Report ” has the meaning set forth in Section 6.04(b).

“ Weekly Operating Metrics Report ” means a report substantially in the form of Exhibit O-2 hereto.

“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other scheduled payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.

“ Wholly Owned ” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to third parties, in each case in a de minimis amount and to the extent required by applicable Law) are owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.

Section 1.02 Other Interpretive Provisions .

With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

(b) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

 

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(c) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

(d) The term “including” is by way of example and not limitation.

(e) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

(f) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”

(g) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

(h) The term “pre-petition” means, with respect to any Chapter 11 Filer, (A) when used to refer to a period in time, the time prior to the filing of the applicable Case and (B) when used to refer to an obligation, an obligation of such Chapter 11 Filer that was incurred prior to the filing of the applicable Case.

(i) The term “post-petition” means, with respect to any Chapter 11 Filer, (A) when used to refer to a period in time, the time after the filing of the applicable Case and (B) when used to refer to an obligation, an obligation of such Chapter 11 Filer that was incurred after the filing of the applicable Case.

Section 1.03 Accounting Terms .

All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in accordance with, GAAP, except as otherwise specifically prescribed herein. Unless otherwise stated herein and except with respect to Article VII (other than Section 7.11), references to a Person with respect to accounting terms or items that appear in such Person’s financial statements shall be deemed a reference to that Person and its Subsidiaries on a consolidated basis. For purposes of the definition of “Material Subsidiary”, financial covenant calculations, reporting requirements and other financial operating metrics (other than for purposes of Sections 6.01(a) and (b)), the Company shall employ presentation consistent with pre-petition GAAP consolidation.

Section 1.04 Rounding .

Any financial ratios required to be maintained by the Company pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).

 

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Section 1.05 References to Agreements, Laws, Etc .

Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted by the Loan Documents; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

Section 1.06 Times of Day .

Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

Section 1.07 Timing of Payment or Performance .

Unless otherwise specified, when the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.

Section 1.08 Currency Equivalents Generally .

Any amount specified in this Agreement (other than Articles II, IX and X) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount (the “ Dollar Equivalent Amount ”) to be determined at the rate of exchange quoted by the Administrative Agent in New York, New York at the close of business on the Business Day immediately preceding any date of determination thereof, to prime banks in New York, New York for the spot purchase in the New York foreign exchange market of such amount in Dollars with such other currency. Notwithstanding the foregoing, for purposes of determining compliance with Sections 6.16(b), 6.16(c), 7.01, 7.02 and 7.03 with respect to any amount of any cash balance, Liens, Indebtedness or Investment in Euros, no Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such cash balance is determined, Lien is created, Indebtedness is incurred or Investment is made; provided , however , that (x) if any such cash balance, Lien, Indebtedness or Investment denominated in a different currency is subject to a currency Swap Contract (with respect to Dollars) covering principal amounts of such cash balance, Lien, Indebtedness or Investment, the amount of such cash balance, Lien, Indebtedness or Investment, as the case may be, expressed in Dollars will be adjusted to take into account the effect of such agreement; (y) for the avoidance of doubt, the foregoing provisions of this Section 1.08 shall otherwise apply to such Sections, including with respect to determining whether any cash balance, Lien, Indebtedness or Investment (not previously incurred on any date) may be incurred under such Sections; and (z) for the avoidance of doubt, for the purposes of Sections 6.16(b) and

 

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6.16(c), (i) the determination of the amount of cash loaned to Basell GmbH under the Intercompany Facility shall be determined at the rate of exchange at the close of business on the date of such loan and (ii) the amount of any cash repayment under the Intercompany Facility shall be determined based on the rate of exchange at the close of business on such date of repayment, and, in each case, shall not be redetermined thereafter.

Section 1.09 Borrowers’ Agent .

(a) Each Loan Party by its execution of this Agreement irrevocably authorizes:

(i) the Borrowers’ Agent on its behalf to supply all information concerning itself contemplated by this Agreement to the Secured Parties and to give and receive all notices, consents, certificates and instructions (including, in the case of a Borrower, Committed Loan Notices), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Loan Party, in each case, to the extent such Borrowers’ Agent is permitted to so act pursuant to this Agreement, notwithstanding that they may affect such Loan Party without further reference to or the consent of such Loan Party; and

(ii) each Secured Party to give any notice, demand or other communication to such Loan Party pursuant to the Loan Documents to the Borrowers’ Agent,

and in each case such Loan Party shall be bound as though such Loan Party itself had given the notices, consents, certificates and instructions (including any Committed Loan Notices) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

(b) Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Borrowers’ Agent or given to the Borrowers’ Agent in its capacity under such Loan Document on behalf of another Loan Party or in connection with any Loan Document (whether or not known to any other Loan Party) shall be binding for all purposes on that Loan Party as if that Loan Party had expressly made, given or concurred with it. This includes any amendment or waiver which would, but for this paragraph (b), require the consent of all Guarantors. In the event of any conflict between any notices or other communications of the Borrowers’ Agent in its capacity as Borrowers’ Agent and any other Loan Party, those of the Borrowers’ Agent in its capacity as Borrowers’ Agent shall prevail.

(c) The Company shall be entitled to appoint one or more Subsidiaries as additional Borrowers’ Agents and to terminate such appointments in each case provided it has first notified the Administrative Agent of such appointment or termination and, provided further that there shall be no more than two (2) Borrowers’ Agents at any one time. The provisions of this Section 1.09 shall apply to each Borrowers’ Agents (including any additional Borrowers’ Agent) until such time as termination of the appointment of such Borrowers’ Agent is notified to the Administrative Agent. At any time when there is more than one Borrowers’ Agent, the Company shall nominate (and notify the Administrative Agent of) one such Borrowers’ Agent as the agent of all other Borrowers’ Agent for the purpose of receiving notices of Default from the Administrative Agent.

 

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(d) Each Loan Party hereby releases the Borrowers’ Agent from any restriction on self-dealing under any applicable law arising under section 181 of the German Civil Code (BGB).

Section 1.10 Luxembourg Terms . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrator receiver, administrator or similar officer includes any:

(i) juge-commissaire and/or insolvency receiver ( curateur ) appointed under the Luxembourg Commercial Code;

(ii) liquidateur appointed under Articles 141 to 151 of the Luxembourg act of 10 August 1915 on commercial companies, as amended;

(iii) juge-commissaire and/or liquidateur appointed under Article 203 of the Luxembourg act dated 10 August 1915 on commercial companies, as amended;

(iv) commissaire appointed under the Grand-Ducal decree of 24 May 1935 on the controlled management regime or under Articles 593 to 614 of the Luxembourg Commercial Code; and

(v) juge délégué appointed under the Luxembourg act of 14 April 1886 on the composition to avoid bankruptcy, as amended;

(b) a winding-up, administration or dissolution includes, without limitation, bankruptcy ( faillite ), liquidation, composition with creditors ( concordat préventif de faillite ), moratorium or reprieve from payment ( sursis de paiement ) and controlled management ( gestion contrôlée ); and

(c) a person being unable to pay its debts includes that person being in a state of cessation of payments ( cessation de paiements ).

ARTICLE II

The NM Commitments and Credit Extensions

Section 2.01 The Loans .

(a) The Initial NM Loans . Subject to the terms and conditions set forth herein and in the DIP Term Sheet, the Initial NM Lenders made term loans (the “ Initial NM Loans ”) in Dollars to the Borrowers on the Initial Funding Date in an aggregate principal amount of $2,167,000,000. The principal amount of Initial NM Loans of each Initial NM Lender is set forth opposite such Initial NM Lender’s name on the Allocation Schedule under the caption “Initial NM Loans”.

 

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(b) The Additional NM Loans . Subject to the terms and conditions set forth herein and in the Orders, each NM Lender agrees, severally and not jointly, to make additional term loans (the “ Additional NM Loans ” and, together with the Initial NM Loans, the “ NM Loans ”) in Dollars to the Borrowers from time to time on or after the latest to occur of (i) the Closing Date and (ii) the Final Order Entry Date in not more than four draws in an aggregate principal amount not to exceed its respective NM Commitment. For the avoidance of doubt, any unused NM Commitments shall terminate on the Maturity Date.

(c) The Roll-Up Loans; Reallocation of NM Loans and Roll-Up Entitlements .

(i) On the Initial Funding Date, each Initial NM Lender and/or Related Senior First Lien Lender thereof became entitled to roll up an aggregate principal amount of Senior First Lien Loans held by such Initial NM Lender or Related Senior First Lien Lender, as the case may be, equal to the aggregate principal amount of such Initial NM Lender’s Initial NM Loans into roll-up loans hereunder (the “ Roll-Up Loans ”) with an aggregate principal amount equal to the aggregate principal amount of such Initial NM Lender’s Initial NM Loans (collectively, with respect to such Initial NM Lender or each such Related Senior First Lien Lender, such Person’s “ Initial Roll-Up Entitlements ”). In addition, on the Closing Date, each Initial NM Lender and/or Related Senior First Lien Lender thereof shall become entitled to roll up an aggregate principal amount of Senior First Lien Loans held by such Initial NM Lender or Related Senior First Lien Lender, as the case may be, equal to the amount of such Initial NM Lender’s NM Commitment into Roll-Up Loans with an aggregate principal amount equal to the amount of such Initial NM Lender’s NM Commitment (collectively, with respect to such Initial NM Lender or each such Related Senior First Lien Lender, such Person’s “ Additional Roll-Up Entitlements ” and, together with the Initial Roll-Up Entitlements, the “ Roll-Up Entitlements ”).

(ii) As of the Syndication Completion Date, the outstanding NM Loans, NM Commitments and the Roll-Up Entitlements will be reallocated and deemed assigned hereunder in accordance with the procedures separately agreed among the Administrative Agent and the Initial NM Lenders, and the Allocation Schedule shall be amended and restated in its entirety to reflect such reallocation. The Lenders agree to make such payments, sales, assignments and other transactions among themselves as are necessary to effect such reallocation, as determined by the Administrative Agent, and for the avoidance of doubt, no reallocation shall be effective until each applicable Lender has made such payments, sales, assignments and other transactions and such payments, sales, assignments and other transactions shall not be subject to the requirements of Section 10.07.

(iii) Subject to the terms and conditions set forth herein and in accordance with the Senior First Lien Credit Agreement Amendment, on the Roll-Up Date (which for the avoidance of doubt may occur prior to, or in absence of, the Syndication Completion Date), and without any further action by any party to this Agreement, each Roll-Up

 

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Lender’s Roll-Up Amount shall be administered, and shall from and after such date be designated as Roll-Up Loans, hereunder. Such designation is not intended to and shall not constitute a payment on account of the applicable Senior First Lien Loans, which shall continue to be outstanding under the Senior First Lien Credit Agreement and administered under this Agreement as Roll-Up Loans, and for the avoidance of doubt, no cash or other payments shall be payable by the Debtors solely in connection with such designation. As a consequence of such designation, and solely to enable the Roll-Up Loans to be administered hereunder, effective with such designation and except as otherwise provided in the Senior First Lien Credit Agreement Amendment, each Roll-Up Loan that is the subject of such designation shall from and after such designation constitute a Roll-Up Loan hereunder; provided that, for the avoidance of doubt, the Roll-Up Loans shall continue (A) to be guaranteed by the Guaranty (as defined in the Senior First Lien Credit Agreement) and secured by and entitled to the benefits of all Liens and security interests created and arising under the Collateral Documents (as defined in the Senior First Lien Credit Agreement as in effect on the date hereof), which Liens and security interests shall remain in full force and effect on a continuous basis, unimpaired, uninterrupted and undischarged, and having the same perfected status and priority, as if such loans had not been so designated and (B) to be entitled to a pro rata share of any payment, distribution or recovery on account of the Senior First Lien Debt made by or on account of any Foreign Debtor or Non-Debtor Subsidiary (whether as borrower or guarantor) or any of its assets as if the Roll-Up Loans had continued to be administered by the administrative agent under the Senior First Lien Credit Agreement (it being understood that any reduction in the principal amount of the Roll-Up Loans made pursuant to any payment under the Senior First Lien Credit Agreement shall constitute a dollar-for-dollar repayment of the Roll-Up Loans for purposes hereof); provided , further , that with respect to clauses (A) and (B) of the foregoing proviso each Roll-Up Lender agrees to be bound by the provisions of Article IX of the Senior First Lien Credit Agreement. Each such designation shall be applied on a pro rata basis to each class of Senior First Lien Loans held by such Roll-Up Lender under the Senior First Lien Credit Agreement. The Administrative Agent shall, and each Roll-Up Lender authorizes the Administrative Agent to, promptly notify Citibank, N.A. or its successor as administrative agent under the Senior First Lien Credit Agreement of the amount of each Roll-Up Lender’s Roll-Up Loans as of the Roll-Up Date so that Citibank, N.A. or such successor administrative agent under the Senior First Lien Credit Agreement may update the register of the Senior First Liens Loans to reflect the transactions described in this Section 2.01(c)(iii) (it being understood and agreed that the Administrative Agent shall have no liability for providing such information, absent gross negligence or willful misconduct). For the avoidance of doubt, each Roll-Up Lender acknowledges and agrees that by accepting the benefits of this Agreement it shall be deemed to have agreed to all provisions hereof, including the duties and obligations of a Lender. In addition, on the Roll-Up Date each Related Senior First Lien Lender shall become a party to this Agreement as a Roll-Up Lender hereunder by executing and delivering an Allocation and Joinder Agreement.

(d) Amounts borrowed (or, in the case of Roll-Up Loans, rolled up) under this Section 2.01 and repaid or prepaid may not be reborrowed.

 

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Section 2.02 Borrowings, Conversions and Continuations of Loans .

(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrowers’ Agent’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than (i) 11:00 a.m. three (3) Business Days prior to the requested date of any Borrowing or continuation of Eurodollar Rate Loans or any conversion of Base Rate Loans to Eurodollar Rate Loans, and (ii) 11:00 a.m. two (2) Business Days prior to the requested date of any Borrowing of Base Rate Loans or any conversion of Eurodollar Rate Loans to Base Rate Loans. Each telephonic notice by the Borrowers’ Agent pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer. Each Borrowing of, conversion to or continuation of Loans shall be in a minimum principal amount of $250,000,000 or a whole multiple of $5,000,000 in excess thereof (or, if less, the aggregate amount of the remaining NM Commitments). Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrowers’ Agent is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrowers’ Agent fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrowers’ Agent requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its pro rata share of the Loans to be made, converted or continued, and if no timely notice of a conversion or continuation is provided by the Borrowers’ Agent, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic conversion to Base Rate Loans or continuation described in Section 2.02(a). In the case of each Borrowing of NM Loans, each NM Lender shall make the amount of its NM Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. The Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such Borrower maintained with the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrowers’ Agent.

(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan unless the

 

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applicable Borrower pays the amount due, if any, under Section 3.05 in connection therewith. During the existence of an Event of Default, the Required Lenders may require that no Loans may be converted to or continued as Eurodollar Rate Loans.

(d) The Administrative Agent shall promptly notify the Borrowers’ Agent and the Appropriate Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowers’ Agent and the Appropriate Lenders of any change in the Administrative Agent’s corporate base rate used in determining the Base Rate promptly following the public announcement of such change.

(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than five (5) Interest Periods in effect.

(f) Notwithstanding anything in this Agreement to the contrary, (i) all Roll-Up Loans shall initially be Base Rate Loans and (ii) Roll-Up Loans may only be converted to or continued as Eurodollar Loans to the extent that the Borrowers’ Agent furnishes evidence reasonably satisfactory to the Administrative Agent that LIBOR borrowings, conversions and continuations are available under the Senior First Lien Credit Agreement and may only be so converted to or continued as Eurodollar Loans for so long as such availability under the Senior First Lien Credit Agreement continues. The Company and each Borrower agrees to notify the Administrative Agent immediately upon its knowledge of any suspension of the availability of LIBOR borrowings, conversions or continuations under the Senior First Lien Credit Agreement. Whether or not any such notice is given, the Administrative Agent may suspend conversions and continuations of Roll-Up Loans as Eurodollar Loans if and for so long as it believes, in its reasonable good faith discretion, that the availability of LIBOR borrowings, conversions or continuations under the Senior First Lien Credit Agreement has been suspended.

Section 2.03 Prepayments of Loans and Mandatory Reductions of NM Commitments .

(a) Optional Prepayments . Each Borrower may, upon notice by the Borrowers’ Agent to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty, subject to Section 2.03(c) and Section 2.07(c); provided that (1) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) one (1) Business Day prior to any date of prepayment of Base Rate Loans; and (2) any prepayment of Loans shall be in a minimum principal amount of $5,000,000, or a whole multiple of $1,000,000 in excess thereof or, if less, the entire principal amount thereof then outstanding; provided , further , that no voluntary prepayment of Roll-Up Loans may be made until (1) all NM Loans and other Obligations existing in respect thereof have been paid in full in cash and the NM Commitments have terminated and (2) the DIP ABL Facility (including all letters of credit issued thereunder) has been terminated and all loans and other obligations existing thereunder have been paid in full in cash (or with respect to letters of credit thereunder, cash collateralized pursuant to the terms of the DIP ABL Credit Agreement). Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans and the order of

 

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Borrowing(s) to be prepaid. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s pro rata share of such prepayment. The applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that a notice of prepayment of the Loans delivered by the Borrowers’ Agent may state that such notice is conditional upon the effectiveness of another financing and such notice may (subject to Section 3.05) be revoked by the Borrowers’ Agent (by written notice to the Administrative Agent a reasonable time prior to the specified effective date) if such condition is not satisfied. Each prepayment of principal of, and interest on, Loans shall be made in Dollars. In the case of each prepayment of the Loans pursuant to this Section 2.03(a), the Borrowers’ Agent may in its sole discretion, but subject to the limitations set forth above, select the Borrowing or Borrowings to be repaid, and such payment shall be paid to the Appropriate Lenders in accordance with their respective pro rata shares of such Borrowing or Borrowings.

(b) Mandatory Prepayments of Loans and Reductions of NM Commitments . (i) If (A) the Company or any of its Subsidiaries Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d), (e), (f), (g), (h) or (j) or any other Disposition of any property or assets permitted by Section 7.05(k) to the extent designated as being excluded from this Section 2.03(b) in the writing delivered on or prior to the date hereof pursuant to Section 7.05(k) (which designation shall, for the avoidance of doubt, be acceptable to each Initial NM Lender)) or (B) any Casualty Event occurs, in each case that results in the realization or receipt by the Company or such Subsidiary of Net Proceeds, the Company shall apply or cause to be applied an amount equal to 100% of all Net Proceeds received by the Company or such Subsidiary to the prepayment of the Loans and the permanent reduction of the NM Commitments as set forth in Section 2.03(b)(iii) on or prior to the date that is three (3) Business Days after the date of the realization or receipt by the Company or such Subsidiary of such Net Proceeds; provided , that (x) the Borrowers shall not be required to apply the Net Proceeds of Dispositions and Casualty Events until the aggregate proceeds received from all such events exceeds $5,000,000 and (y) with respect to any Net Proceeds of Dispositions or Casualty Events realized or received by any Foreign Subsidiary, the aggregate amount of such Net Proceeds required to be applied pursuant to this Section 2.03(b)(i) to the prepayment of the Loans and the permanent reduction of the NM Commitments shall be subject to reduction to the extent the expatriation of such Net Proceeds (1) would result in adverse tax or legal consequences, (2) would be reasonably likely to result in adverse personal liability of any director of the Company or a Foreign Subsidiary or (3) would result in the insolvency of the Company or a Foreign Subsidiary.

(ii) If the Company or any of its Subsidiaries incurs or issues any Indebtedness (other than Indebtedness permitted under Section 7.03), the Company shall apply, or cause to be applied, an amount equal to 100% of all cash proceeds of such Indebtedness (net of all Taxes, fees, costs and reasonable expenses which are actually incurred by the Company and its Subsidiaries with respect to such incurrence or issuance, in each case, to the extent approved by the Bankruptcy Court if such Indebtedness is incurred by any Chapter 11 Filer) received therefrom to the prepayment of the Loans and the permanent reduction of the NM Commitments as set forth in Section 2.03(b)(iii) on or prior to the date that is three (3) Business Days after the date of receipt by such Loan Party or Subsidiary of such cash proceeds; provided that, with respect to any such net proceeds realized or received by a Foreign Subsidiary, such net proceeds

 

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shall not be required to be applied as a prepayment under this Section 2.03(b)(ii) to the extent they are subject to reduction to the extent the expatriation of such net proceeds (1) would result in adverse tax or legal consequences, (2) would be reasonably likely to result in adverse personal liability of any director of the Company or a Foreign Subsidiary or (3) would result in the insolvency of the Company or a Foreign Subsidiary.

(iii) Amounts to be applied in connection with prepayments of Loans and NM Commitment reductions pursuant to Section 2.03(b)(i) and Section 2.03(b)(ii) shall be applied first to the prepayment of NM Loans, second to reduce permanently the NM Commitments in accordance with Section 2.04(c), third to prepayments (and cash collateralization of letters of credit) and permanent commitment reductions under the DIP ABL Facility as may be required thereby (unless such payment is waived in accordance with the terms of the DIP ABL Credit Agreement) and fourth to the prepayment of Roll-Up Loans; provided , that clause third of the foregoing shall not apply to any Dispositions or Casualty Events with respect to ABL Collateral, which are excluded from the definition of Net Proceeds. Each prepayment shall be paid to the Appropriate Lenders in accordance with their respective pro rata shares of the Loans being prepaid.

(iv) The Borrowers’ Agent shall notify the Administrative Agent in writing of any mandatory prepayment of Loans or reduction in NM Commitments required to be made pursuant to clause (i) or (ii) of this Section 2.03(b) at least three (3) Business Days prior to the date of such prepayment of Loans or NM Commitment reduction. Each such notice shall specify the date of such prepayment of Loans or NM Commitment reduction and provide a reasonably detailed calculation of the amount of such prepayment or NM Commitment reduction and description of the transactions or events giving rise to such prepayment. The Administrative Agent shall promptly notify each Appropriate Lender of the contents of such notice and of such Appropriate Lender’s pro rata share of the prepayment or NM Commitment reduction.

(c) Funding Losses, Payment of Fees, Etc . All prepayments under this Section 2.03 shall be accompanied by all accrued interest thereon and all Exit Fees owing in respect thereof pursuant to Section 2.07(c) and shall, in the case of any such prepayment of a Eurodollar Rate Loan on a date other than the last day of an Interest Period therefor, be made together with any amounts owing in respect of such Eurodollar Rate Loan pursuant to Section 3.05.

Section 2.04 Termination or Reduction of NM Commitments .

(a) Optional. The Company may, upon written notice to the Administrative Agent, terminate or from time to time permanently reduce the unused NM Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than three (3) Business Days prior to the date of termination or reduction and (ii) any such partial reduction shall be in a minimum aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof or, if less, the remaining available unfunded amount of NM Commitments.

(b) Mandatory. The NM Commitments shall be reduced as may be required by Section 2.03(b).

 

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(c) Application of NM Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the NM Lenders of any termination or reduction of the unused NM Commitments under this Section 2.04. Upon any reduction of unused NM Commitments, the NM Commitments of each NM Lender shall be reduced by such Lender’s pro rata share of the amount by which the NM Commitments are reduced (other than the termination of the NM Commitment of any Lender as provided in Section 3.07). All commitment fees accrued until the effective date of any termination of the NM Commitments and all Exit Fees owing in respect thereof pursuant to Section 2.07(c) shall be paid on the effective date of such termination.

Section 2.05 Repayment of Loans .

(a) The Borrowers shall on the Maturity Date repay in cash to the Administrative Agent for the ratable account of the Lenders, the aggregate principal amount of all Loans outstanding on the Maturity Date (subject, in the case of Roll-Up Loans, to clause (b) below and, to the extent the Maturity Date is triggered by clause (b) of the definition thereof, to Section 2.12); provided , that this Agreement may be amended to extend the Maturity Date to a date agreed by all NM Lenders with the written consent of the Loan Parties party hereto and all NM Lenders in their sole discretion and without the consent of the Roll-Up Lenders so long as (i) the Roll-Up Lenders shall receive the same proportional consideration (including but not limited to fees and rate increase (in percentage, not absolute, terms)) as the NM Lenders in connection with any such extension, if any, (ii) for each day the Roll-Up Loans remain outstanding after December 15, 2009, the maturity of any Roll-Up Replacement Security shall be reduced by a day (up to a maximum reduction of six months) and (iii) if any assignments by Non-Consenting Lenders pursuant to Section 3.07 are effected in connection with any such extension, no consideration may be paid or given (whether in cash, other property or in kind) to any assignee with respect to any such assignment (but, for the avoidance of doubt, consideration may be given with respect to such extension, subject to clause (i) above).

(b) In addition to the foregoing, the Roll-Up Loans shall not be payable in cash on the Maturity Date if and for so long as the Required Lenders are not exercising enforcement remedies (including actions against Collateral) (whether pursuant to any forbearance agreement or not) so long as (i) the Roll-Up Lenders shall receive the same proportional consideration (including but not limited to fees and rate increase (in percentage, not absolute, terms)) as the NM Lenders in connection with any such forbearance, if any, and (ii) for each day the Roll-Up Loans remain outstanding after December 15, 2009, the maturity of any Roll-Up Replacement Security shall be reduced by a day (up to a maximum reduction of six months).

(c) For the avoidance of doubt (i) so long as the Roll-Up Loans remain unpaid pursuant to the foregoing provisions, Section 2.12 shall apply, (ii) to the extent the Maturity Date is not extended as provided in clause (a) above and the Required Lenders are not (whether pursuant to any forbearance agreement or not) demanding repayment of the Loans or exercising enforcement remedies, the Roll-Up Loans and the NM Loans shall accrue interest at the Default Rate and (iii) to the extent the Maturity Date is not extended as provided in clause (a) above and the Required Lenders have either demanded repayment of the Loans or are exercising enforcement remedies, the Roll-Up Loans and the NM Loans shall be repaid in full in cash and the Roll-Up Loans and the NM Loans shall accrue interest at the Default Rate.

 

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Section 2.06 Interest .

(a) Subject to the provisions of Section 2.06(b), (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

(b) During the continuance of an Event of Default, the applicable Borrower shall pay interest on the Loans at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Law.

(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

(d) On the Roll-Up Date, the Borrowers shall pay to each Roll-Up Lender all accrued and unpaid interest under the Senior First Lien Credit Agreement (without regard to Section 2.08(b) thereof) from the Initial Funding Date to the Roll-Up Date on such Roll-Up Lender’s Senior First Lien Loans that are classified as Roll-Up Loans.

Section 2.07 Fees .

(a) NM Commitment Fee. On the third Business Day after commitment fees are calculated in accordance with the next succeeding sentence, the Borrowers shall pay to the Administrative Agent for the account of each NM Lender in accordance with its pro rata share of the NM Commitments a non-refundable commitment fee in an amount equal to 1.50% per annum on the daily average unused amount of the NM Commitments; provided that any commitment fee accrued with respect to the NM Commitment of a Defaulting Lender (other than a Lender deemed a Defaulting Lender solely under clause (c) of the definition thereof) during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable so long as such Lender shall be a Defaulting Lender except to the extent that such commitment fee shall otherwise have been due and payable prior to such time; and provided further that no commitment fee shall accrue on the NM Commitment of a Defaulting Lender (other than a Lender deemed a Defaulting Lender solely under clause (c) of the definition thereof) with respect to any period when such Lender is a Defaulting Lender. The commitment fee shall accrue at all times from the Initial Funding Date until such time as all NM Commitments have been used or terminated, including at any time during which one or more of the conditions in Article IV is not met, and shall be calculated quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Initial Funding Date, and on the Maturity Date.

(b) Front-End Fees . On the Final Order Entry Date, the Borrowers shall pay to the Administrative Agent for the account of each NM Lender in accordance with its pro rata share of the NM Commitments at such time a front-end fee in an amount equal to 3.5% of the aggregate

 

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amount of the NM Commitments. Such fees shall be allocated among NM Lenders in accordance with Annex V to the DIP Term Sheet. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

(c) Exit Fees .

(i) Subject to Section 2.07(c)(ii), on any date on which any Loans are prepaid or repaid (including pursuant to Section 2.03, 2.05 or 2.12 ) or the NM Commitments are terminated or reduced (including pursuant to Section 2.04), the Borrowers shall pay to each Appropriate Lender its pro rata share of the Exit Fee applicable to such prepayment or repayment of Loans or termination or permanent reduction of NM Commitments, as the case may be.

(ii) Notwithstanding anything to the contrary in Section 2.07(c)(i), if any Lender is replaced pursuant to Section 3.07(a) (A) in connection with any amendment to extend the Maturity Date as provided in Section 2.05(a) (x) that has not been approved by the Required Class Lenders in respect of the NM Loans (calculated, for the avoidance of doubt, without taking into account such replacement), such replaced Lender and each other Lender of each Class shall be paid an Exit Fee with respect to its Loans and NM Commitments, if any, outstanding on the date of such replacement as if such Loans were being prepaid or repaid and such NM Commitments, if any, were being terminated or permanently reduced on such date or (y) that has been approved by the Required Class Lenders in respect of the NM Loans (calculated, for the avoidance of doubt, without taking into account such replacement), such replaced Lender shall not be paid an Exit Fee hereunder (and, for the avoidance of doubt, the Exit Fees of each other Lender of each Class shall continue to be payable on the date of any prepayment or repayment Loans or termination or permanent reduction of NM Commitments, as the case may be, pursuant to Section 2.07(c)(i)) or (B) in connection with any other amendment, modification or waiver, such replaced Lender shall not be paid an Exit Fee hereunder (and, for the avoidance of doubt, the Exit Fees of each other Lender of each Class shall continue to be payable on the date of any prepayment or repayment Loans or termination or permanent reduction of NM Commitments, as the case may be, pursuant to Section 2.07(c)(i)). All Exit Fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

(d) Other Fees . The Borrowers shall pay to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Company and the applicable Agent).

Section 2.08 Computation of Interest and Fees .

All computations of interest for Base Rate Loans when the Base Rate is determined by the Administrative Agent’s prime rate shall be made on the basis of a year of three hundred and sixty-five (365) days, or three hundred and sixty-six (366) days, as applicable, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed. Interest shall accrue on each Loan for

 

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the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

Section 2.09 Evidence of Indebtedness .

(a) The Loans of each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the Borrowers, in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Loans made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent upon reasonable notice, the relevant Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

(b) Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.09(a), and by each Lender in its account or accounts pursuant to Section 2.09(a), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrowers to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrowers under this Agreement and the other Loan Documents.

Section 2.10 Payments Generally .

(a) All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Appropriate Lender its pro rata share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.

 

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(b) If any payment to be made by a Borrower shall come due on a day other than a Business Day, payment shall be made on the immediately succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurodollar Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

(c) Unless a Borrower or any Lender has notified the Administrative Agent, prior to the time any payment is required to be made by it to the Administrative Agent hereunder, that such Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that such Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in Same Day Funds, then:

(i) if the applicable Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in Same Day Funds at the applicable Federal Funds Rate from time to time in effect; and

(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to such Borrower to the date such amount is recovered by the Administrative Agent (the “ Compensation Period ”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon such Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its NM Commitment or to prejudice any rights which the Administrative Agent or such Borrower may have against any Lender as a result of any default by such Lender hereunder.

A notice of the Administrative Agent to any Lender or the Borrowers’ Agent with respect to any amount owing under this Section 2.10(c) shall be conclusive, absent manifest error.

 

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(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the applicable Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(e) The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan.

(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

(g) Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03.

Section 2.11 Sharing of Payments .

If, other than as expressly provided elsewhere herein (including but not limited to in Section 2.12), any Lender shall obtain on account of the Loans of any Class made by it any payment (whether voluntary, involuntary, through the exercise of any right of setoff or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other relevant Lenders such participations in the Loans of such Class made by them as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. Each Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of such Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.11 and will in each case notify the Lenders following any such

 

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purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.11 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased. For the avoidance of doubt and notwithstanding anything to the contrary contained in this Section 2.11, no action shall be taken under this Section 2.11 in violation of Section 8.03.

Section 2.12 Special Provisions for Roll-Up Loans .

The Roll-Up Loans will not be required to be repaid in cash on the Consummation Date of a Reorganization Plan that provides for the treatment of the Roll-Up Loans as described below, provided that the Loan Parties shall use reasonable endeavors to repay such Loans in full in cash upon the occurrence of the Consummation Date. Upon the vote of the Roll-Up Loan class to accept a Reorganization Plan in accordance with Section 1126 of the Bankruptcy Code or, failing to obtain same, pursuant to Section 1129(b) of the Ba