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

Exhibit 10.3

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,

EQUISTAR CHEMICALS, LP,

HOUSTON REFINING LP,

BASELL USA INC.,

MILLENNIUM CHEMICALS INC. and

MILLENNIUM PETROCHEMICALS INC.

as Borrowers,

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

THE LENDERS PARTY HERETO,

CITIBANK, N.A.,

as Administrative Agent and Collateral Agent

UBS SECURITIES LLC, as Syndication Agent

CITIGROUP GLOBAL MARKETS INC.,

UBS SECURITIES LLC,

GOLDMAN SACHS LENDING PARTNERS LLC,

MERRILL LYNCH CAPITAL CORPORATION,

and

ABN AMRO BANK N.V.,

Joint Lead Arrangers

CITIGROUP GLOBAL MARKETS INC.,

Sole Bookrunner

 

TABLE OF CONTENTS

 

 

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DEBTOR-IN-POSSESSION CREDIT AGREEMENT dated as of March 3, 2009, among LYONDELL CHEMICAL COMPANY, a Delaware corporation, EQUISTAR CHEMICALS, LP, a Delaware limited partnership, HOUSTON REFINING LP, a Delaware limited partnership, BASELL USA INC., a Delaware corporation, MILLENNIUM CHEMICALS INC., a Delaware corporation, and MILLENNIUM PETROCHEMICALS INC., a Virginia corporation, as Borrowers, each of the foregoing a debtor and debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code, LYONDELLBASELL INDUSTRIES AF S.C.A., a company existing under the laws of the Grand Duchy of Luxembourg, the LENDERS party hereto, CITIBANK, N.A., as Administrative Agent and Collateral Agent, UBS SECURITIES LLC, as Syndication Agent and CITIBANK, N.A., as Fronting Bank.

INTRODUCTORY STATEMENT

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 1), each of the US 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 US 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 requested on the Initial Funding Date that the Lenders provide them with a revolving credit and letter of credit facility in an aggregate principal amount not to exceed $1,515,000,000 (subject to increase pursuant to the ABL Accordion). On the Effective Date, the Borrowers have requested such an increase pursuant to the ABL Accordion such that the aggregate principal amount of such revolving credit and letter of credit facility will be $1,540,000,000, and the Lenders have agreed to such increase, subject to the Orders. All of the Borrowers’ obligations under such facility are to be guaranteed by the Guarantors. 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 term loan facility in an aggregate principal amount not to exceed $6,500,000,000 (including $3,250,000,000 of new money loans and $3,250,000,000 of loans that will be deemed issued in respect of an equivalent principal amount of Indebtedness under the Senior First Lien Credit Agreement) (the “ DIP Term Loan Facility ”).

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 under the Orders and the Loan Documents to the Administrative Agent and the Lenders in respect of the DIP ABL 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 DIP ABL Facility. Upon the effectiveness hereof, this Agreement and the other Loan Documents shall supersede the DIP Term Sheet referred to in the Interim Order with respect to the DIP ABL Facility.

 

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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 1

D EFINITIONS

SECTION 1.01 . Definitions. As used in this Agreement, the following terms shall have the meanings specified below:

“ 13-Week Projection ” shall mean 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 D-1. 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 5.04.

“ 2015 Notes ” shall mean, 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 ” shall mean 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.).

“ ABL Accordion ” shall mean an increase in the aggregate amount of the Commitments pursuant to Section 2.22.

“ ABL Collateral ” shall mean 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 the proceeds of Avoidance Actions on an equal and ratable basis.

“ ABR Borrowing ” shall mean a Borrowing comprised of ABR Loans.

“ ABR Loan ” shall mean (i) any Swingline Loan and (ii) any Revolving Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with Article 2.

 

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“ ABR Revolving Loan ” shall mean any Revolving Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with Article 2.

“ Access ” means Access Lender, LLC.

“ Access Agreement ” shall mean an agreement, in form and substance reasonably acceptable to the Administrative Agent (it being understood that such agreements entered into by Lyondell and its Subsidiaries prior to the date of this Agreement are acceptable to Administrative Agent), pursuant to which a holder of a Lien on premises of the Borrowers where Eligible Inventory is located agrees and acknowledges, among other things, that the Administrative Agent may without interference from such Lien holder (i) gain access to, remove and exercise its rights against any Inventory located at such premises after an Event of Default, and that such Lien holder may not remove or exercise any remedies against such Inventory except as agreed, (ii) for a period of time not less than ninety (90) days (or such shorter time period as the Administrative Agent may agree in its sole discretion) after the Administrative Agent shall have taken possession of such Inventory, (A) store such Inventory at such premises and (B) conduct a sale of such Inventory at such premises and (iii) examine and make copies of books and records of the Borrowers located at such premises with respect to such Inventory.

“ Acquisition ” shall mean 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 4.01(g).

“ Additional Debtor ” shall mean (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

 

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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 Restricted Cash ” shall mean, to the extent constituting Unrestricted Cash, any cash or Cash Equivalent of the Company and its Subsidiaries (i) that is required to be trapped 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 Letter of Credit ” shall mean a letter of credit issued hereunder by the Fronting Bank on or after the Effective Date.

“ Adjusted LIBO Rate ” shall mean, with respect to any Interest Period for any LIBOR Loan, an interest rate per annum equal to the rate per annum obtained by dividing (a) the LIBO Rate by (b) a percentage equal to (i) 100% minus (ii) the reserve percentage applicable two (2) Business Days before the first day of such Interest Period under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including “ Eurocurrency liabilities ” (or with respect to any other category of liabilities that includes deposits by reference to which the LIBO Rate is determined) having a term equal to such Interest Period.

“ Administrative Agent ” shall mean Citibank, in its capacity as administrative agent for the Lenders under the Loan Documents, and its successors in such capacity.

“ Administrative Fees ” shall have the meaning assigned to such term in Section 2.07(c).

 

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“ Administrative Questionnaire ” shall mean, 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 ” shall mean, 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 Section 6.08, “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; provided further that none of the Arrangers or their respective Affiliates shall be deemed an Affiliate of any Loan Party.

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

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

“ Agreement ” shall mean, 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.

“ Alternate Base Rate ” shall mean, for any day, a fluctuating interest rate per annum as shall be in effect from time to time, which rate per annum shall be equal at all times to the highest of the following:

(a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank’s base rate (or equivalent rate otherwise named);

(b) 0.5% per annum plus the Federal Funds Effective Rate; and

(c) 1.0% per annum plus the LIBO Rate (for the avoidance of doubt after giving effect to the last sentence of the definition thereof) applicable to a Borrowing with an Interest Period of one (1) month.

 

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“ Alix ” shall have the meaning set forth in Section 5.19(a).

“ Anti-Terrorism Laws ” shall mean:

(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 Commitment Fee Rate ” shall mean a per annum rate equal to 1.50%.

“ Applicable L/C Margin ” shall mean a per annum rate equal to Applicable Margin with respect to LIBOR Loans (after giving effect to the proviso included in the definition of “ Applicable Margin ”).

“ Applicable Lending Office ” shall mean, with respect to each Lender, (i) such Lender’s domestic lending office in the case of an ABR Loan or (ii) such Lender’s LIBOR Lending Office in the case of a LIBOR Loan.

“ Applicable Margin ” shall mean a per annum rate equal to (i) with respect to ABR Loans, 6.00% and (ii) with respect to LIBOR Loans, 7.00%; provided, however , that upon the occurrence and during the continuance of an Event of Default, the “ Applicable Margin ” shall be (i) with respect to ABR Loans, 8.00% and (ii) with respect to LIBOR Loans, 9.00%.

“ Appraisal Report ” shall mean any appraisal report reasonably satisfactory to the Administrative Agent and prepared by independent consultants selected by the Administrative Agent and reasonably satisfactory to the Borrowers.

 

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

“ Arranger ” shall mean each of Citigroup Global Markets Inc., Goldman Sachs Lending Partners LLC, Merrill Lynch Capital Corporation, ABN AMRO Bank N.V. and UBS Securities LLC, in its capacity as a joint lead arranger in respect of this Agreement.

“ Asset Backed Credit Facility ” shall mean 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.

“ Assignment and Acceptance ” shall mean an assignment and acceptance entered into by a Lender and an assignee, substantially in the form of Exhibit A.

“ Audited Financial Statements ” shall mean 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.

“ Availability Reserves ” shall mean, as of any date of determination and without duplication of any Valuation Reserves or any other Availability Reserves, such reserves in amounts as the Administrative Agent may from time to time establish (upon two (2) Business Days’ notice to the Borrowers in the case of new reserve categories established after the Effective Date and changes in the methodology for determining a reserve and upon one (1) Business Day’s notice to the Borrowers in other cases) and revise (upward or downward based upon existing methodology): (i) to reflect events, conditions, contingencies or risks which, as reasonably determined by the Administrative Agent, do or are reasonably likely to materially adversely affect (a) Eligible Inventory or its value, (b) Eligible Receivables or their value or (c) the security interests and other rights of any Agent or Lender in the ABL Collateral other than Ineligible Inventory and Ineligible Receivables (including the enforceability, perfection and priority thereof) or (ii) to reflect the Administrative Agent’s reasonable belief that any collateral report or financial information furnished by or on behalf of the

 

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Borrowers is or may have been incomplete, inaccurate or misleading in any material respect in a manner which adversely affects one or more components of the Borrowing Base to an extent greater than that otherwise contemplated in the determination thereof (such reserve to remain applicable for so long as such adverse effect remains applicable) or (iii) in respect of any state of facts that the Administrative Agent reasonably determines constitutes a Default or an Event of Default and that adversely affects one or more components of the Borrowing Base to an extent greater than that otherwise contemplated in the determination thereof (such reserve to remain applicable for so long as such adverse effect remains applicable); provided that, at any date of determination (unless and until otherwise determined by the Administrative Agent), “ Availability Reserves ” shall include (a) a reserve equal to three times the most recently reported monthly aggregate amount of charges by a landlord, bailee, consignee, processor, warehouseman or other third-party who stores, processes, maintains or holds Eligible Inventory and applicable rail car lease and transportation expense as determined by Lyondell (but excluding any such expense as to which the rights of the payee are subject to a Third Party Agreement), (b) a reserve for deductibles applicable to the Borrowers’ insurance policies covering Eligible Inventory, (c) a reserve for other credit exposures secured by ABL Collateral (other than credit exposures secured exclusively by Liens securing the DIP Term Loan Facility which are expressly subordinated to the Lien of the Security Agreement pursuant to the Intercreditor Agreement) including obligations arising out of cash management arrangements related to this Agreement, (d) a reserve for any Liens on Eligible Inventory or on premises of the Borrowers where Eligible Inventory is located (other than (x) Liens consisting of (i) easements, building restrictions, rights-of-way, irregularities of title and other such encumbrances or charges not interfering in any material respect with the ordinary conduct of business of any Borrower, (ii) leases, subleases or licenses by any Borrower as lessor, sublessor or licensor in the ordinary course of business and (iii) without limiting the applicability of an Availability Reserve under clause (a) above, the interest of a lessor or licensor under an operating lease or license under which any Borrower is lessee, sublessee or licensee, including protective financing statement filings, on such premises, (y) nonconsensual Liens on such premises that do not impair access to, or the removal of or exercise of remedies in respect of, such Inventory and (z) Liens that are subordinate to the Liens on the ABL Collateral pursuant to the Orders), unless the rights of the holder of such Lien are subject to a Third Party Agreement (such reserve not to exceed the lesser of (i) the amount of the affected Eligible Inventory and (ii) the amount of the obligations secured by such holder’s Lien); and (e) a reserve in the amount of the Carve-Out allocable to the DIP ABL Facility.

“ Available ABL Commitment ” shall mean, as of any date of determination, an amount equal to (i) the lesser of (A) the Borrowing Base as of

 

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such date, less, the amount of Collateral Availability necessary to avoid an Event of Default pursuant to Section 7.01(m) and (B) the aggregate amount of the Commitments in effect on such date, less (ii) the 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 this Agreement (without giving effect to any borrowing notice requirements hereunder).

“ Available Inventory ” shall mean, at any time, the lesser of (a) 75% (5% in the case of “stores inventory”) of each Category of Eligible Inventory and (b) the product of (x) 85% (70% in the case of High Seas Inventory) of the Orderly Liquidation Value Rate multiplied by (y) each Category of Eligible Inventory; provided that (i) Available Inventory shall in no event exceed 75% of Eligible Inventory, (ii) the amount of Available Inventory in respect of High Seas Inventory shall at no time exceed $150,000,000 and (iii) the amount of Available Inventory in respect of “stores inventory” shall at no time exceed $15,000,000.

“ Available Receivables ” shall mean, at any time, 85% of Eligible Receivables.

“ Avoidance Actions ” shall mean 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.

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

“ Bankruptcy Court ” shall mean 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.

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

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

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

 

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

“ Basell USA ” shall mean Basell USA Inc., a Delaware corporation, a debtor and debtor in possession under Chapter 11 of the Bankruptcy Code.

“ Berre Facility ” shall mean 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 ” shall mean, 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

(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 shall mean 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.

 

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“ Board of Directors ” shall mean, 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.

“ Borrower ” shall mean each of Lyondell, HRLP, Equistar, Basell USA, Millennium, Millennium Petrochemicals Inc. and any other Subsidiary of the Company (i) that is not a Foreign Subsidiary, (ii) that is a debtor and a debtor-in-possession in a Case and (iii) that the Borrowers’ Agent designates as a Borrower for purposes hereof by causing such Subsidiary to deliver to the Administrative Agent an instrument in substantially the form of Exhibit G duly executed by such Subsidiary provided that such Subsidiary shall not become a Borrower until such time as (x) the Collateral and Guarantee Requirement shall be satisfied after giving effect to its designation as a Borrower and (y) the Bankruptcy Court shall have entered an order, in form and substance reasonably satisfactory to the Agents, approving the delivery by such Subsidiary of the instrument referred to in the preceding clause (iii) and the performance by such Subsidiary of its obligations under this Agreement and the other Loan Documents.

“ Borrowers’ Agent ” shall mean Lyondell, in its capacity as agent for the Borrowers under the Loan Documents, and its successors in such capacity.

“ Borrowing ” shall mean (a) a Loan or group of Loans of a single Class and Type made by the Lenders on a single date and as to which a single Interest Period is in effect or (b) a Swingline Loan.

“ Borrowing Base ” shall mean, at any time, an amount equal to the sum of (i) Available Inventory as reflected in the most recent Borrowing Base Certificate delivered pursuant to Section 5.22 plus (ii) Available Receivables as reflected in the most recent Borrowing Base Certificate delivered pursuant to Section 5.22 minus (iii) Availability Reserves at such time. Standards of eligibility and reserves and advance rates of the Borrowing Base may be revised and adjusted from time to time by the Administrative Agent (subject to Section 10.02(b) hereof and to any limitations herein expressly made applicable to the exercise of such rights) upon one (1) Business Day’s notice to the Borrowers; provided that any such changes in such standards or in advance rates shall not be effective until two (2) Business Days after giving notice thereof to the Borrowers. Actions by the Administrative Agent pursuant to the preceding sentence, and all other actions by the Administrative Agent in respect of the determination of the Borrowing Base

 

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(including as provided in the definitions of Availability Reserves, Ineligible Inventory, Ineligible Receivables, Inventory Valuation Reserves and Receivables Valuation Reserves), shall be taken by it in its Discretion.

“ Borrowing Base Certificate ” shall mean a certificate, appropriately completed and substantially in the form of Exhibit C (with such modifications as to format and presentation as may be reasonably requested by the Administrative Agent upon five (5) Business Days’ notice) together with all attachments and supporting documentation (i) as contemplated thereby and (ii) as outlined on Schedule 1 to Exhibit C.

“ Borrowing Request ” shall mean a request made pursuant to Section 2.03 substantially in the form of Exhibit B.

“ Bridge Forbearance Agreement ” shall mean the First Amended and Restated Bridge Forbearance Agreement relating to the Senior Second/Third Lien Interim Loan Agreement.

“ Business Day ” shall mean any day which is not a Saturday, Sunday or legal holiday in the State of New York or the State of Texas on which banks are open for business in New York City and Houston, provided, however, that when used in connection with the Adjusted LIBO Rate, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits in United States dollars in the London interbank market.

“ Capital Expenditures ” shall mean, 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 6.02, (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.

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

 

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“ Carve-Out ” shall mean (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.

“ Case ” or “ Cases ” shall mean 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.

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

“ Cash Collateral ” shall have the meaning set forth in the Interim Order or the Final Order, as applicable.

“ Cash Collateral Account ” shall have the meaning set forth in Section 5.23(c).

“ Cash Equivalents ” shall mean 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,

 

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(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 ” shall mean any event that gives rise to the receipt by the Company or any Subsidiary of any insurance proceeds or condemnation awards in respect of (i) any ABL Collateral or (ii) 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 1.01D.

“ Category ” shall mean any of the categories of inventory classification set forth in the Borrowing Base Certificate attached as Exhibit C.

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

“ Change in Law ” shall mean, 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 ” shall mean 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;

 

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(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.

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

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

“ Citibank ” shall mean Citibank, N.A., a national banking association.

“ Class ”, when used in respect of any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.

“ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time.

“ Collateral ” shall have the meaning set forth in the Introductory Statement.

“ Collateral Access Agreement ” shall mean an agreement substantially in the form of Exhibit H.

“ Collateral Agent ” shall mean Citibank in its capacity as collateral agent in respect of the Loan Documents.

“ Collateral and Guarantee Requirement ” shall mean at any time the requirement that, subject to Section 5.15(b), and solely with respect to any Foreign Guarantor to the Agreed Security Principles, the Legal Limitations and the Legal Reservations:

(a) the Administrative Agent shall have received the Foreign Guarantee and each Collateral Document required to be delivered on the Effective Date pursuant to Section 4.02(a)(iii) or subsequent to the Effective Date pursuant to Section 5.13 or Section 5.15 at such time, duly executed by each Loan Party party thereto;

 

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(b) all Obligations shall have been unconditionally guaranteed by the Guarantors, subject to the terms of the Security Agreement and the Foreign Guarantee (collectively, the “ Guaranty ”);

(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;

(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 6.01;

(f) each Restricted Account shall have been established, and the Administrative Agent shall have “control” (within the meaning of Section 9-104 of the UCC) of the Sweep Account and the Cash Collateral Account;

 

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(g) the Administrative 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 4.02(a)(iii) or subsequent to the Effective Date pursuant to Section 5.13 or Section 5.15 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

(h) the Administrative Agent shall have received a fully executed copy of the Intercompany Subordination Agreement.

“ Collateral Availability ” shall mean, at any time, an amount equal to (i) the Borrowing Base at such time, less (ii) the Total Outstandings at such time.

“ Collateral Documents ” shall mean the Security Agreement, the Mortgages and any additional security or control documentation delivered or required to be delivered pursuant to the Loan Documents to secure the Obligations or the “Secured Obligations” as defined in any such Loan Document. The Collateral Documents shall supplement, and shall not limit, the grant of Collateral pursuant to the Orders.

“ Commitment ” shall mean, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, as set forth on Schedule 2.01 or, in the case of any new Lender, in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment, in each case as such commitment may be (a) reduced from time to time pursuant to Section 2.12 , (b) increased from time to time pursuant to Section 2.22 or (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.07.

 

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“ Company ” shall mean LyondellBasell Industries AF S.C.A., a company existing under the laws of the Grand Duchy of Luxembourg.

“ Company Financial Officer ” shall mean 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 5.01.

“ Compliance Certificate” shall mean a certificate substantially in the form of Exhibit K .

“ Consolidated EBITDAR ” shall mean, 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

 

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(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.

“ Consolidated Interest Expense ” shall mean, 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 ” shall mean, 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),

 

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(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 Effective 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),

(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 ” shall mean, 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 ” shall mean 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.

 

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“ Contract ” shall mean a written agreement between any Borrower and a Receivables Obligor, or, in the case of any open account agreement, as evidenced by an invoice (x) setting forth the amount payable, the payment due date and other relevant terms of payment and a description, in reasonable detail, of the goods or services covered thereby or (y) otherwise approved by the Administrative Agent from time to time in its Discretion (which approval shall not be unreasonably withheld), in each case pursuant to or under which such Receivables Obligor shall be obligated to pay for goods or services from time to time.

“ Contractual Obligation ” shall mean, 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 ” shall have the meaning set forth in the definition of “Affiliate”.

“ Controllable Restructuring Costs ” shall mean 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.

“ Covered Disposition ” shall mean (i) any Casualty Event with respect to ABL Collateral and (ii) any other Disposition of ABL Collateral which does not give rise to a Pledged Receivable. A Covered Disposition is subject to any applicable limitations in Section 6.05.

“ Credit and Collection Policy ” shall mean those credit and collection policies and practices in effect on the date hereof relating to Contracts and Receivables and described in Schedule II hereto, as modified from time to time in compliance with Section 6.18.

“ Credit Event ” shall mean any Borrowing (including a Borrowing resulting from a conversion or continuation of Loans pursuant to Section 2.04) or any issuance, amendment, renewal or extension of a Letter of Credit.

“ Credit Exposure ” shall mean, with respect to any Lender at any time, such Lender’s Commitment at such time or, if the Commitments shall have been terminated, such Lender’s Outstandings at such time.

 

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“ Debtor Relief Laws ” shall mean 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).

“ Debtors ” shall mean (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 5.26, if any.

“ Default ” shall mean any condition or event that constitutes an Event of Default or that with the giving of notice or lapse of time or both would constitute an Event of Default.

“ Defaulting Lender ” shall mean any Lender that (a) has failed to fund any portion of the Revolving Loans, participations in Letters of Credit or participations in Swingline 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 or a receivership.

“ Deposit Accounts ” shall have the meaning set forth in Section 9-102 of the UCC.

“ Depositary Bank ” shall have the meaning set forth in the Security Agreement.

“ DIP ABL Facility ” shall mean the revolving credit facility extended to the Borrowers pursuant to the Orders and this Agreement.

“ DIP Term Loan Facility ” shall have the meaning set forth in the Introductory Statement.

 

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“ Discretion ” shall mean the Administrative Agent’s good faith exercise of its discretion in a manner consistent with its customary credit policies and practices for asset-based credit facilities.

“ Disposition ” or “ Dispose ” shall mean 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 ” shall mean 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 Termination Date. 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, 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.

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

“ Dollar Equivalent Amount ” has the meaning set forth in Section 1.05.

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

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

 

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“ Effect of Bankruptcy ” shall mean, 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.

“ Effective Date ” shall mean the date, on or before March 3, 2009, on which all the conditions specified in Section 4.02 shall have been satisfied (or waived in accordance with Section 10.02).

“ Eligible Inventory ” shall mean at any date of determination thereof an amount equal to (i) the aggregate value (as reflected on the books and records of the Borrowers and consistent with the Borrowers’ current and historical accounting practices) at such date of all Inventory in each Category owned by the Borrowers, adjusted on any date of determination to exclude, without duplication, all Inventory that is Ineligible Inventory, minus (ii) all Inventory Valuation Reserves (or, if the context so requires, Eligible Inventory shall mean the related Inventory).

“ Eligible Receivables ” shall mean at any date of determination thereof an amount equal to (i) the aggregate Outstanding Balance at such date of all Receivables owned by the Borrowers, adjusted on any date of determination to exclude, without duplication, all Receivables that are Ineligible Receivables, minus (ii) all Receivables Valuation Reserves (or, if the context so requires, Eligible Receivables shall mean the related Receivables).

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

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

“ Environmental Laws ” shall mean 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.

 

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“ Environmental Liability ” shall mean 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 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 ” shall mean any permit, approval, identification number, license or other authorization required under any Environmental Law.

“ Equistar ” shall mean Equistar Chemicals, LP, a Delaware limited partnership.

“ Equity Interests ” shall mean, 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 ” shall mean Employee Retirement Income Security Act of 1974, as amended from time to time.

“ ERISA Affiliate ” shall mean 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 ” shall mean (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

 

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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.

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

“ European Securitization Transaction ” shall mean 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 ” shall have the meaning set forth in Article 7.

 

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

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

“ Excluded Taxes ” shall mean, with respect to any Agent, any Lender, the Fronting Bank or any other recipient of any payment to be made by or on account of any obligation of the Borrowers hereunder, (a) income, franchise or doing business taxes imposed on (or measured by) its net income imposed by the United States of America, or by the jurisdiction 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, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which any Lender is located, (c) in the case of any Agent that is not a United States person (within the meaning of Section 7701(a)(30) of the Code) or a Foreign Lender (other than an assignee pursuant to a request by the Borrowers under Section 2.21(b)) any withholding tax that is imposed on amounts payable to such Agent or Foreign Lender at the time such Agent or Foreign Lender becomes a party to this Agreement (or designates a new lending office) , except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrowers with respect to such withholding tax pursuant to Section 2.20(a), (d) in the case of any Agent or Foreign Lender, any withholding tax that is attributable to such Foreign Lender’s failure to comply with Section 2.20(e) and (e) United States backup withholding taxes.

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

“ Existing Indebtedness ” shall mean Indebtedness of the Company and its Subsidiaries existing or outstanding on the Initial Funding Date that is permitted by Section 6.03.

“ Existing Letters of Credit ” shall mean the letters of credit issued before the Effective Date and listed in Schedule 1.01A hereto.

“ Existing Notes ” shall mean, 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.

 

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“ Existing Primed Secured Facilities ” shall mean, 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.

“ Facilities ” shall mean the DIP ABL Facility and the DIP Term Loan Facility.

“ Federal Funds Effective Rate ” shall mean, 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 Effective 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 Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Citibank on such day on such transactions as determined by the Administrative Agent.

“ Fee Letters ” shall mean (i) the fee letter dated January 6, 2009 between Lyondell and the Administrative Agent, (ii) the fee letter dated January 6, 2009 between Lyondell and the Arrangers, and (iii) the ABL Accordion fee letter dated March 3, 2009 between Lyondell and Citibank .

“ Fees ” shall mean the Unused Commitment Fee, the L/C Fee, the L/C Issuance Fee, the Administrative Fees and the arrangement and up-front fees contemplated by Section 2.07(d).

“ Final Order ” shall have the meaning set forth in Section 4.01(g).

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

“ Financial Indebtedness ” shall mean (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 ” shall mean 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.

 

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“ Foreign Debtor ” shall mean 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 ” shall mean a Guarantee, substantially in the form of Exhibit J , 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 ” shall mean (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 the Foreign Guarantee. The Foreign Guarantors as of the Effective Date are listed on Schedule III.

“ Foreign Lender ” shall mean any Lender that is organized under the laws of a jurisdiction other than the United States of America, a State thereof or the District of Columbia.

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

“ FRB ” shall mean the Board of Governors of the Federal Reserve System of the United States.

“ Fronting Bank ” shall mean (a) Citibank in its capacity as the issuer of the Existing Letters of Credit and (b) Citibank and other banks as mutually agreed by the Borrowers’ Agent and the Administrative Agent, in their capacity as the issuers of Additional Letters of Credit hereunder, with their respective successors in such capacity as provided in Section 2.06(j). In respect of Additional Letters of Credit, the Fronting Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Fronting Bank, in which case the term “ Fronting Bank ” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

 

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“ Fronting Bank LC Sublimit ” shall mean (a) with respect to Citibank, $400,000,000 and (b) with respect to any other Fronting Bank, the amount mutually agreed by the Administrative Agent, the Borrower’s Agent and such Fronting Bank.

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

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

“ Governmental Authority ” shall mean 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.

“ Guarantee ” shall mean, 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 Effective 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). The amount of any Guarantee shall be deemed to be an amount equal to the stated

 

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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 ” shall mean, collectively, the US Guarantors and the Foreign Guarantors.

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

“ Hazardous Materials ” shall mean 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 5.19(a).

“ High Seas Inventory ” shall mean Inventory which is (i) in transit to a property located in the United States of America that is owned or leased by one or more of the Borrowers, (ii) subject to a maritime bill of lading which, if so requested in writing by the Administrative Agent, has been delivered to the Administrative Agent and (iii) outside the territorial waters of any country.

“ Holding Company ” shall mean, 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.

“ HRLP ” shall mean Houston Refining LP, a Delaware limited partnership.

“ Illegality ” shall have the meaning assigned to such term in Section 2.15.

“ Indebtedness ” shall mean, 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;

 

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(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;

(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;

 

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(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

(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 6.03 only.

 

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“ Increasing Lender ” shall have the meaning assigned to such term in Section 2.22.

“ Indemnified Taxes ” shall mean Taxes other than Excluded Taxes.

“ Independent Financial Advisor ” shall mean 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.

“ Initial Cases ” shall have the meaning set forth in the Introductory Statement.

“ Initial Debtors ” shall have the meaning set forth in the Introductory Statement.

“ Initial Funding Date ” shall mean January 9, 2009.

“ Insurance Monitor ” shall have the meaning set forth in Section 5.22.

“ Insurance Report ” shall have the meaning set forth in Section 5.22.

“ Ineligible Inventory ” shall mean all Inventory described in one or more of the following clauses, without duplication:

(a) Inventory that is not subject to a perfected first priority Lien in favor of the Administrative Agent or that is subject to any other Lien that is not a Qualified Lien; or

(b) Inventory that is not located at and is not in transit to property that is owned or leased by the Borrowers unless:

(i) such Inventory has been delivered to a carrier and no document of title is issued with respect to such Inventory by such carrier and the relevant Borrower has the absolute and unconditional right to obtain such Inventory from such carrier free and clear of any and all Liens other than Qualified Liens; or

(ii) such Inventory is either subject to (x) a Third-Party Agreement or (y) an Availability Reserve as specified in clause (a) of the proviso in the definition of Availability Reserves; or

(c) Inventory located on premises of the Borrowers that are subject to any Lien (other than (x) Liens consisting of (i) easements, building restrictions, rights-of-way, irregularities of title and other such encumbrances or charges not interfering in any material respect with the

 

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ordinary conduct of business of any Borrower, (ii) leases, subleases or licenses by any Borrower as lessor, sublessor or licensor in the ordinary course of business, (iii) the interest of a lessor or licensor under an operating lease or license under which any Borrower is lessee, sublessee or licensee, and (iv) any other Qualified Liens, including protective financing statement filings on such premises, and (y) nonconsensual Liens on such premises that do not impair access to, or the removal of or exercise of remedies in respect of, such Inventory) unless:

(i) such Inventory is subject to an Availability Reserve as specified in clause (d) of the proviso in the definition of Availability Reserves; or

(ii) the holder of such Lien and the Administrative Agent have entered into an Access Agreement with respect to such Inventory on such premises; or

(d) Inventory that is on consignment or that is subject to a negotiable document of title (as such terms are defined in the UCC); or

(e) Inventory that is billed not shipped Inventory; provided that Inventory billed but not shipped to the Persons listed on Schedule X, as of the date hereof and as updated from time to time by the Borrowers with the written approval of the Administrative Agent, shall not be Ineligible Inventory by reason of this clause (e); or

(f) Inventory (other than High Seas Inventory) that is not located in the United States of America (including its territorial waters); or

(g) Inventory that is not owned solely by the Borrowers, or as to which the Borrowers do not have good, valid and marketable title thereto (it being understood that such Inventory may be commingled with Inventory owned by others); or

(h) Inventory that consists of (i) supplies (other than that classified as “stores inventory”), (ii) work-in-process and catalysts, in each case not saleable in their current form or (iii) feedstock and line fill classified as “captive feedstock” or “feedstock line fill”; or

(i) Inventory that does not otherwise conform to the representations and warranties contained in this Agreement or the other Loan Documents; or

 

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(j) such other Inventory as may be deemed ineligible by the Administrative Agent acting in good faith from time to time in accordance with its customary credit policies and the definition of Borrowing Base.

“ Ineligible Receivables ” shall mean all Receivables of a Borrower described in one or more of the following clauses, without duplication:

(a) such Receivable has not arisen out of the sale of inventory or the performance of services in the ordinary course of business by such Borrower to a Person that is not an Affiliate of any Borrower; or

(b) such Borrower is not the sole legal and beneficial owner of such Receivable; or

(c) such Receivable is not subject to a valid and perfected first priority Lien in favor of the Administrative Agent for the benefit of the Lenders; or

(d) the Receivables Obligor on such Receivable has disputed liability or made any claim with respect to such Receivable or any other Receivable due from such Receivables Obligor to any Borrower but only to the extent of such dispute or claim; or

(e) the transaction represented by such Receivable is to a Receivables Obligor which, if a natural person, is not a resident of the United States or, if not a natural person, is organized under the laws of a jurisdiction outside the United States or has its chief executive office outside the United States (it being understood for purposes of this clause (e) that a territory of the United States that has enacted Revised Article 9 of the Uniform Commercial Code and Puerto Rico are considered to be part of the United States), unless (i) such Receivable is backed by a letter of credit acceptable to the Administrative Agent, in its reasonable discretion and (x) such letter of credit names the Administrative Agent (for the benefit of itself and each Lender) as the beneficiary or (y) the issuer of such letter of credit has consented to the assignment of the proceeds thereof to the Administrative Agent, (ii) such Receivables Obligor is, if a natural person, a resident of Canada or, if not a natural person, is organized under the laws of Canada or a province thereof and has its chief executive office in Canada and such Receivable is denominated in Dollars or (iii) such Receivable is backed by insurance reasonably acceptable to the Administrative Agent and the relevant insurance policy names the Administrative Agent (for the benefit of itself and each Lender) as additional insured and loss payee, all in form and substance reasonably satisfactory to the Administrative Agent; provided ,

 

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however , that the Receivables of any Receivables Obligor located in a jurisdiction outside the United States or Canada approved by the Administrative Agent in its sole discretion, which jurisdiction shall be listed in Schedule V hereto as and when approved by the Administrative Agent, and which Receivables Obligor is listed on Schedule VI-A hereto (as of the date hereof and as such Schedule may be updated from time to time by the Borrowers upon two (2) Business Days’ prior written notice to the Administrative Agent), shall be Eligible Receivables pursuant to this clause (e) to the extent that (A) such Receivables are denominated in Dollars and arise from sales of Inventory shipped from the United States and (B) the aggregate Outstanding Balance of all such Receivables does not exceed 15% of the Outstanding Balance of all Eligible Receivables; or

(f) the sale to such Receivables Obligor represented by such Receivable is not a final sale (e.g., such sale is on a bill-and-hold, guaranteed sale, sale-and-return or sale-on-approval basis or, until billed, a consignment basis); or

(g) such Receivable is subject to any Lien other than a Qualified Lien; or

(h) such Receivable is subject to any deduction, offset, counterclaim, return privilege or other conditions (other than (i) sales discounts given in the ordinary course of the Borrowers’ business and reflected in the amount of such Receivable as set forth in the invoice or other supporting material therefor or (ii) an offset or counterclaim of a nature specifically addressed in another clause of this definition) but only to the extent of the amount of such deduction, offset, counterclaim, return privilege or other condition being asserted by the Receivables Obligor; or

(i) the Receivables Obligor on such Receivable is located in any State of the United States requiring the holder of such Receivable, as a precondition to commencing or maintaining any action in the courts of such State either to (i) receive a certificate of authorization to do business in such State or be in good standing in such State or (ii) file a Notice of Business Activities Report with the appropriate office or agency of such State, in each case unless (x) the holder of such Receivable has received such a certificate of authority to do business, is in good standing or, as the case may be, has duly filed such a notice in such State or (y) such failure to receive such certificate or to file such notice is capable of being remedied without any material delay or material cost; or

(j) the Receivables Obligor on such Receivable is a Governmental Authority, unless the applicable Borrower have each

 

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assigned its rights to payment of such Receivable to the Collateral Agent pursuant to the Assignment of Claims Act of 1940, as amended, in the case of a federal Governmental Authority, and pursuant to applicable law, if any, in the case of any other Governmental Authority, and such assignment has been accepted and acknowledged by the appropriate government officers; or

(k) 50% or more of the Outstanding Balance of the Receivables of the applicable Receivables Obligor are not Eligible Receivables by reason of clause (d) or (h) above or clause (p) below; provided that Receivables that are determined not to be Eligible Receivables, solely as a result of the provisions of clause (o) below, shall be excluded in calculating such percentage; or

(l) the payment obligation represented by such Receivable is denominated in a currency other than Dollars; or

(m) such Receivable is not evidenced by an invoice that would be a Contract or by other supporting material acceptable to the Administrative Agent, in its Discretion; provided , however , that this clause (m) shall not render ineligible Unbilled Receivables that would otherwise constitute Eligible Receivables under other clauses of this definition; or

(n) any Borrower or any other Person, in order to be entitled to collect such Receivable, is required to deliver any additional goods or merchandise to, perform any additional service for, or perform or incur any additional obligation to, the Person to whom or to which it was made; or

(o) the total Receivables of such Receivables Obligor to the Borrowers (taken as a whole) represent more than 15% (or such lesser percentage with respect to certain Receivables Obligors as the Administrative Agent may determine in its Discretion) of the Outstanding Balance of the Eligible Receivables of the Borrowers (taken as a whole) at such time, but only to the extent of such excess; or

(p) such Receivable (or any portion thereof) remains unpaid for more than (i) 60 days from the original payment due date, or (ii) if such Receivable arises from the sale of inventory, 90 days from the original invoice date thereof or, in the case of any such Receivable from a Receivables Obligor listed, and with the payment terms described, in Schedule VI-B hereto (as of the date hereof and as such Schedule may be updated from time to time by the Borrowers upon two (2) Business Days’ prior written notice to the Administrative Agent), 120 days from the

 

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original invoice date thereof, provided that such Receivables from such Receivables Obligors listed in Schedule VI-B shall be Eligible Receivables under this clause (p) only to the extent that the Outstanding Balance of all such Receivables does not exceed 10% of the Outstanding Balance of all Eligible Receivables; or

(q) the Receivables Obligor on such Receivable (i) has (A) pending, by or against such Receivables Obligor, a petition for bankruptcy or any other relief under the Bankruptcy Code or any other law relating to bankruptcy, insolvency, reorganization or relief of debtors, (B) an assignment for the benefit of creditors, (C) any other application for relief under the Bankruptcy Code or any such other law or (D) the appointment of a receiver or a trustee for all or a substantial part of its assets or affairs or (ii) has, while such Receivable remains outstanding, failed, suspended business operations, become insolvent or called a meeting of its creditors for the purpose of obtaining any financial concession or accommodation; or

(r) consistent with the Credit and Collection Policy, such Receivable is or should be written off any Borrower’s books as uncollectible; or

(s) such Receivable is not payable into a Lockbox Account; or

(t) such Receivable does not arise under a Contract which has been duly authorized and which, together with such Receivable, is in full force and effect and constitutes the legal, valid and binding obligation of the Receivables Obligor of such Receivable enforceable against such Receivables Obligor in accordance with its terms; or

(u) such Receivable, together with the Contract related thereto, contravenes in any material respect any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to usury, consumer protection, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) or with respect to which the applicable Borrower is in violation of any such law, rule or regulation in any material respect; or

(v) such Receivable does not satisfy the requirements of the Credit and Collection Policy in all material respects; or

 

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(w) such Receivable does not constitute an “ account ” within the meaning of Section 9-102(a)(2) of the UCC of the jurisdiction the law of which governs the perfection of a security interest in such Receivable; or

(x) the sale to such Receivables Obligor on such Receivable is on a F.O.B. customer basis but only for so long as the inventory giving rise to such Receivable has not yet arrived at its destination and possession thereof has not been taken by the Receivables Obligor; or

(y) such Receivable (i) is subject to an unsecured claim in favor of a surety or (ii) arises under a Contract that is not governed by the laws of the United States or a State thereof; or

(z) such Receivable is an Unbilled Receivable; provided , however , that Unbilled Receivables in respect of inventory that has been shipped shall be Eligible Receivables under this clause (z) to the extent that the Outstanding Balance of all such Receivables does not exceed 25% (or, if such determination is being made at any time other than as of the last day of any calendar month, 35%) of the Outstanding Balance of all Eligible Receivables; provided further , however , that any Unbilled Receivable as to which an invoice has not been issued to the relevant Receivables Obligor more than 31 days after the date of the sale of goods by the relevant Borrower giving rise to such Receivable shall not be an Eligible Receivable; or

(aa) there is a chargeback represented by the unpaid portion of such Receivable as to which less than full payment was made; or

(bb) such Receivable is billed in advance of the relevant shipment of inventory or performance of services; or

(cc) such Receivable arises under a Contract that (i) specifies a fixed price and fixed volume for 90 or more days and (ii) provides for material liquidated damages; or

(dd) (i) such Receivable does not comply with such other reasonable criteria and requirements (other than those relating to the collectibility of such Receivable) as the Administrative Agent, in its Discretion, may from time to time specify to the Borrowers’ Agent upon 30 days’ notice, or (ii) the Administrative Agent, in its Discretion, and upon at least five Business Days’ notice, notifies the Borrowers’ Agent of its determination that such Receivable might not be paid or is otherwise ineligible, in which event such Receivable shall not be an Eligible Receivable on the effective date of ineligibility specified in such notice.

 

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

“ Intercompany Subordination Agreement ” shall mean an Intercompany Subordination Agreement among the Administrative Agent, the “Administrative Agent” under the DIP Term Loan Facility and the Company and its Subsidiaries party thereto substantially in the form of Exhibit L hereto.

“ Intercreditor Agreement ” shall mean an Intercreditor Agreement between the Administrative Agent and the “Administrative Agent” under the DIP Term Loan Facility, in substantially the form of Exhibit I hereto.

“ Interest Payment Date ” shall mean, with respect to any Loan, (a) the last day of each Interest Period applicable to the Borrowing of which such Loan is a part, and, in addition, the date of any continuation or conversion of such Loan with or to a Loan of a different Type and (b) the date of termination of the Commitments in their entirety.

“ Interest Period ” shall mean (a) as to any LIBOR Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as the case may be, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is one (1) month thereafter, (b) as to any ABR Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as the case may be, and ending on the next succeeding date that is the last day of a calendar month or, if earlier, the date of prepayment or conversion of such Borrowing, and (c) as to any Swingline Loan, the period commencing on the date of such Loan and ending on the last Business Day of the then current calendar month; provided, however , that (i) if any Interest Period would end on a day that shall not be a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of LIBOR Loans only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) no Interest Period with respect to any Loan shall end later than the Maturity Date, (iii) interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period and (iv) there shall be outstanding at any one time no more than 7 Interest Periods applicable to LIBOR Loans.

“ Interim Order ” shall mean 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

 

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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 ” shall mean January 8, 2009.

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

“ Inventory ” shall mean all now owned and hereafter acquired inventory, goods and merchandise, wherever located, to be furnished under any contract for service or held for sale or lease, all returned goods, raw materials, work-in-process, finished goods (including embedded software), other materials and supplies of any kind, nature, or description which are used or consumed in any Loan Party’s business or used in connection with the packing, shipping, advertising, selling or finishing of such goods, merchandise, and all documents of title or other documents representing them and shall include all feedstocks, line fill, stores inventory, catalysts, chemicals and additives.

“ Inventory Valuation Reserves ” shall mean the sum of the following, without duplication of any Availability Reserves or any other Inventory Valuation Reserve:

(a) any book reserves maintained by the Borrowers in respect of Eligible Inventory (excluding a LIFO reserve under GAAP);

(b) to the extent not included in clause (a) or otherwise reflected in the book value thereof, a lower of cost or market reserve for all Eligible Inventory selling for less than cost as determined by the Borrowers; and

(c) such other reserves to reflect events, conditions, contingencies or risks which, as reasonably determined by the Administrative Agent, do or are reasonably likely to materially adversely affect the value of Eligible Inventory, established in accordance with the definition of Borrowing Base;

provided that the Administrative Agent shall give two (2) Business Days’ notice to the Borrowers in the case of new reserve categories established pursuant to clause (c) after the Effective Date and changes in the methodology for determining a reserve and one (1) Business Day’s notice to the Borrowers in other cases.

 

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“ Investment ” shall mean, 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 6, 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.

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 ” shall have the meaning set forth in Section 3.15(a).

“ Junior Financing ” shall have the meaning set forth in Section 6.13(a).

“ Junior Financing Documentation ” shall mean any documentation governing any Junior Financing.

“ Laws ” shall mean, 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.

 

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“ LC Disbursement ” shall mean a payment made by the Fronting Bank pursuant to a Letter of Credit.

“ LC Exposure ” shall mean, at any time, the sum of (a) the aggregate amount available for drawing (assuming satisfaction of applicable drawing conditions) under all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrowers at such time. The LC Exposure of any Lender at any time shall be its Revolving Percentage of the total LC Exposure at such time.

“ L/C Fee ” shall have the meaning assigned to such term in Section 2.07(b).

“ L/C Issuance Fee ” shall have the meaning assigned to such term in Section 2.07(b).

“ LC Sublimit ” shall mean $700,000,000.

“ Legal Limitations ” shall mean 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, will require that such Foreign Guarantee be limited by an amount or otherwise.

“ Legal Reservations ” shall mean:

(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

 

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(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.

“ Lender ” shall mean any of the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to Section 2.21, Section 2.22 or Section 10.07, other than any such Person that ceases to be party hereto pursuant to Section 2.21 or Section 10.07. Unless the context otherwise requires, the term “Lender” includes the Swingline Lender.

“ Letter of Credit ” shall mean any Existing Letter of Credit or Additional Letter of Credit.

“ LIBO Rate ” shall mean, with respect to any Borrowing comprised of LIBOR Loans for any Interest Period, the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such Service) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, as the rate for Dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the “ LIBO Rate ” with respect to such Borrowing for such Interest Period shall be the rate at which Dollar deposits in an amount approximately equal to the Loan to be made by Citibank as part of such Borrowing and for a maturity comparable to such Interest Period are offered by the principal London office of Citibank in immediately available funds to prime banks in the London interbank market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period. The LIBO Rate shall in no event be less than 3.00%.

“ LIBOR Lending Office ” shall mean, with respect to each Lender, the branches or Affiliates of such Lender which such Lender has designated as its “ LIBOR Lending Office ” in its Administrative Questionnaire or such other office of such Lender as such Lender may hereafter designate from time to time as its “ LIBOR Lending Office ” by notice to the Borrowers and the Administrative Agent.

“ LIBOR Loan ” shall mean any Revolving Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article 2.

“ Lien ” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, transfer for security purposes, deposit arrangement, encumbrance,

 

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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 ” shall mean 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 ” shall mean, 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 (as defined in the DIP Term Loan Facility) in effect on such date minus (ii) any Additional Restricted Cash.

“ Loan ” shall mean a Revolving Loan whether made as a LIBOR Loan or an ABR Loan, or a Swingline Loan.

“ Loan Documents ” shall mean this Agreement, the Notes, the Foreign Guarantee, the Collateral Documents, the Intercompany Subordination Agreement and, other than for purposes of Article 3 and Article 7, the Intercreditor Agreement.

“ Loan Party ” shall mean each Borrower and each Guarantor.

“ Lockbox Account ” shall have the meaning set forth in Section 5.23(a).

“ Lyondell ” shall mean Lyondell Chemical Company, a Delaware corporation.

“ Material Adverse Effect ” shall mean (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

 

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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 ” shall mean, 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 3.05 or Section 5.01 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 3.05 or Section 5.01 is equal to or greater than 2.5% of the Consolidated EBITDAR for such fiscal period.

“ Maturity Date ” shall mean December 15, 2009 ¹ .

“ Maximum Facility Availability ” shall mean, at any date, an amount equal to the lesser of (i) the aggregate amount of the Commitments on such date and (ii) the Borrowing Base on such date.

“ Millennium ” shall mean Millennium Chemicals Inc., a Delaware corporation.

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

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

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

“ Mortgages ” shall mean, 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 Administrative Agent on behalf of the Secured Parties substantially in the form of Exhibit M or otherwise in form and substance reasonably satisfactory to the Administrative Agent and any other mortgages executed and delivered pursuant to this Agreement, in each case securing the Obligations.

1	See Section 5.18(d).

 

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“ Multiemployer Plan ” shall mean 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 ” shall mean: (a) with respect to any Disposition or Casualty Event 100% of the cash proceeds actually received by the Company or any Subsidiary from any 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 ABL Collateral or 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 6.05), 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 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

 

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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) except 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 Term Loan 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

 

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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 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; and

(b) with respect to any incurrence of Indebtedness, 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 the incurrence or issuance of such Indebtedness, in each case to the extent approved by the Bankruptcy Court if such Indebtedness is incurred by any Chapter 11 Filer).

For purposes of calculating Net Proceeds realized or received by any Foreign Subsidiary in respect of any Prepayment Event, the aggregate amount of such Net Proceeds determined as set forth above 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.

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

“ New Lender ” shall have the meaning assigned to such term in Section 2.22.

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

“ Notes ” shall mean promissory notes of the Borrowers, in a form reasonably satisfactory to the Administrative Agent, evidencing the Borrowers’ obligation to repay the Loans, and “ Note ” shall mean any one of such promissory notes issued hereunder.

“ Obligations ” shall mean the obligations of the Loan Parties under the Loan Documents (as the same may hereafter be amended, restated, extended, supplemented or otherwise modified from time to time) with respect to the due and punctual payment, whether at maturity, by acceleration or otherwise, of (a) the principal amount of the Loans, (b) interest and premium on the Loans, (c) LC Disbursements and interest thereon and (d) all other monetary obligations of any Loan Party, whether for fees, costs, indemnification or otherwise.

 

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“ Operating Forecast ” shall mean 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 ” shall mean, 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).

“ Orderly Liquidation Value Rate ” shall mean, with respect to Eligible Inventory in each Category, the applicable orderly liquidation value (or in the case of Premium Inventory, fair market value, and in any case net of costs and expenses incurred in connection with liquidation) of such Inventory, which applicable percentage shall be determined by reference to the most recent Appraisal Report on such Inventory received by the Administrative Agent, as a percentage of the aggregate book value of such Inventory.

“ Organization Documents ” shall mean (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 ” shall mean any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, the Loan Documents (but excluding any Excluded Taxes).

“ Outstanding Balance ” of any Receivable at any time shall mean the then outstanding principal balance thereof.

 

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“ Outstandings ” shall mean, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at such time.

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

“ Participant Register ” shall have the meaning set forth in Section 10.07(d).

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

“ PBGC ” shall mean the Pension Benefit Guaranty Corporation.

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

“ Pension Plan ” shall mean 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 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 ” shall have the meaning set forth in the Security Agreement.

“ Permitted Business ” shall mean 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 ” shall mean the joint ventures existing on the Initial Funding Date and listed on Schedule 1.01E.

 

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“ Permitted Refinancing ” shall mean, 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 6.03(b) or Section 6.03(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 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 ” shall mean any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

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“ Petition Date ” shall mean January 6, 2009.

“ Plan ” shall mean 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.

“ Pledged ” shall have the meaning set forth in the Security Agreement.

“ Prepayment Date ” shall mean (i) March 6, 2009 if the Final Order has not been entered by the Bankruptcy Court prior to such date or (ii) such later date as approved by the Required Lenders.

“ Prepayment Event ” shall mean (a) any Disposition by the Company or any of its Subsidiaries of any property or assets (other than any such Disposition permitted by Section 6.05(a), (b), (c), (d), (e), (f), (g), (h) or (j) or any other Disposition of any property or assets permitted by Section 6.05(k) to the extent designated as not being a Prepayment Event in writing delivered on or prior to the date hereof pursuant to Section 6.05(k) (which designation shall, for the avoidance of doubt, be acceptable to the Arrangers)) or any Casualty Event, in each case that results in the realization or receipt by the Company or a Subsidiary of Net Proceeds or (b) the incurrence or issuance of any Indebtedness by the Company or any of its Subsidiaries (other than Indebtedness permitted under Section 6.03); provided that a Covered Disposition is not a Prepayment Event. The description of any transaction as falling within the above definition does not affect any limitation on such transaction imposed by Article 6 or Article 7 of this Agreement.

“ Pre-Petition Payment ” shall mean 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.

“ Premium Inventory ” shall mean Eligible Inventory that consists solely of finished goods owned by HRLP.

“ Principal Financial Officer ” shall mean the chief financial officer, the treasurer or the principal accounting officer of Lyondell (or other specified Person). Any action taken or document delivered by a Principal Financial Officer pursuant to the Loan Documents shall be taken or delivered in his capacity as such.

“ Public Lender ” has the meaning set forth in Section 5.01.

 

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“ Qualified Lien ” shall mean (i) with respect to Inventory or Receivables, an inchoate tax, PBGC or other Lien arising solely by operation of law, (ii) solely with respect to Inventory, a Lien securing payments of (A) expenses of a landlord, bailee, consignee, processor, warehouseman or other third party who stores, processes, maintains or holds ABL Collateral and (B) rail car lease and transportation expenses applicable to ABL Collateral, (iii) with respect to Inventory or Receivables, any other Lien approved by the Administrative Agent, which in each case is (x) permitted by Section 6.01 and (y) covered by an Availability Reserve as specified herein (unless, solely with respect to Inventory, the Person who holds such Lien has entered into a Third Party Agreement), as determined by the Administrative Agent in accordance with the definitions of Availability Reserve and Borrowing Base and (iv) with respect to Inventory or Receivables, a Lien securing the DIP Term Loan Facility which is expressly subordinated to the Lien of the Security Agreement pursuant to the Intercreditor Agreement and other Liens that are created and subordinated to the Liens on the ABL Collateral pursuant to the Orders.

“ Real Property ” shall mean, 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.

“ Receivable ” shall mean the indebtedness (whether constituting accounts or general intangibles or chattel paper or otherwise) of any Receivables Obligor under a Contract, and includes the right to payment of any interest or finance charges and other obligations of such Receivables Obligor with respect thereto.

“ Receivables Financings ” shall mean 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.

 

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“ Receivables Obligor ” shall mean a Person obligated to make payments pursuant to a Contract.

“ Receivables Valuation Reserves ” shall mean the sum of the following, to the extent not already deducted in determining Eligible Receivables, and without duplication of any Availability Reserves or any other Receivables Valuation Reserve:

(a) amounts accrued or recorded by the Borrowers as a reserve in respect of volume rebates or other offsetting deductions, or in respect of credits in past due; and

(b) such dilution reserves and other reductions as the Administrative Agent in its Discretion deems appropriate and as notified by the Administrative Agent to the Borrowers’ Agent at least two (2) Business Days prior to the effectiveness thereof.

“ Register ” shall have the meaning set forth in Section 10.07(f).

“ Related Fund ” shall mean, with respect to any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is advised or managed by the same investment advisor as such Lender or by an Affiliate of such Lender.

“ Related Parties ” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

“ Release ” shall mean 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 ” shall mean a plan of reorganization in any of the Cases of the Debtors.

“ Reportable Event ” shall mean 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 Lenders ” shall mean, at any time, Lenders having in the aggregate more than 50% of the aggregate amount of the Credit Exposures at such time; provided that (i) any Credit Exposure held by Lyondell or any of its Subsidiaries or any of their respective Affiliates shall be excluded for purposes of

 

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determining such percentage and (ii) the portion of the Commitments held or deemed held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

“ Responsible Officer ” shall mean 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 Effective Date, 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 Account ” shall mean any of the Lockbox Accounts, the Sweep Account and the Cash Collateral Account.

“ Restricted Party ” shall mean any person listed:

(a) in the Annex to the Executive Order;

(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 ” shall mean, 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

 

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(3) any Investment other than an Investment permitted by Section 6.02.

“ Restructuring Committee ” has the meaning set forth in Section 5.19.

“ Revolving Loan ” shall mean (x) a Loan made pursuant to Section 2.02 and (y) those loans made to the Borrowers under the ABL Facility by the Lenders prior to the Effective Date in an aggregate principal amount of $608,020,741 pursuant to the Interim Order and the term sheet attached thereto. For avoidance of doubt, each such loan described in the preceding clause (y) shall be a “Revolving Loan” and a “Loan” for all purposes of this Agreement.

“ Revolving Percentage ” shall mean, with respect to any Lender, the percentage of the Total Commitment represented by such Lender’s Commitment. If the Commitments shall have been terminated or shall have expired, the Revolving Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any subsequent assignments pursuant to Section 10.07.

“ Revolving Period ” shall mean the period from and including the Effective Date to but excluding the Termination Date.

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

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

“ Secured Parties ” shall have the meaning specified in the Security Agreement.

“ Securities Act ” shall mean the Securities Act of 1933, as amended.

“ Security Agreement ” shall mean a security agreement in substantially the form of Exhibit F executed and delivered or to be executed and delivered by the Borrowers, the US Guarantors, the Borrowers’ Agent and Citibank, as Administrative Agent.

“ Securitization Entity ” shall mean 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

 

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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,

(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).

 

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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 ” shall mean 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.

“ Senior First Lien Credit Agreement ” shall mean 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, as primary administrative agent (or any successor thereto in such capacity) (including Exhibits thereto), as in effect on the date hereof.

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

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

 

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

“ Senior Forbearance Agreement ” shall mean the First Amended and Restated Senior Forbearance Agreement relating to the Senior First Lien Credit Agreement.

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

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

“ Senior Second/Third Lien Interim Loan Agreement ” shall mean 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. The term “Senior Second/Third Lien Interim Loan Agreement” shall also include any secured Exchange Notes (as defined therein) issued in exchange for any Indebtedness outstanding thereunder.

“ Senior Second/Third Lien Interim Loans ” shall mean $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 ” shall mean, 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 ” shall have the meaning set forth in Section 10.07(h).

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

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

“ Sponsor ” shall mean,

(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 ” shall mean (I) a letter agreement entered into by Access in the form of Exhibit P 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, 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

 

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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 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 ” shall mean 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 ” shall mean, 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).

“ Stop Issuance Notice ” shall have the meaning set forth in Section 2.18.

“ Subsidiary ” shall mean 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; (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, individually or in the aggregate, has at least 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.

 

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“ Superpriority Claim ” shall mean 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 ” shall mean (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 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.

“ Sweep Account ” shall have the meaning set forth in Section 5.23(b).

“ Swingline Exposure ” shall mean, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Revolving Percentage of the total Swingline Exposure at such time.

“ Swingline Facility ” shall mean the swingline facility made available by the Swingline Lender pursuant to Section 2.05.

“ Swingline Lender ” shall mean Citibank, in its capacity as lender of Swingline Loans hereunder.

“ Swingline Loan ” shall mean a Loan made pursuant to Section 2.05.

“ Swingline Sublimit ” shall mean $25,000,000.

 

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“ Syndication Agent ” shall mean UBS Securities LLC, in its capacity as syndication agent in respect of the Loan Documents.

“ Taxes ” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

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

“ Termination Date ” shall mean the earliest to occur of (i) the Prepayment Date, (ii) the Maturity Date, (iii) the Consummation Date and (iv) the date of acceleration of the maturity of the Loans or of the termination of the Commitments hereunder or under the DIP Term Loan Facility.

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

“ Third Party Agreement ” shall mean an agreement, in form and substance reasonably acceptable to the Administrative Agent, pursuant to which a landlord, bailee, consignee, processor, warehouseman or other third party who stores, processes, maintains or holds ABL Collateral (including a holder of a Lien on premises of the Borrowers where Eligible Inventory is located) acknowledges, among other things, the Administrative Agent’s Lien on such ABL Collateral, the Administrative Agent’s ability to enforce its Lien on such ABL Collateral and the subordination of any Lien held by such landlord, bailee, consignee, processor, or warehouseman or other third party on such ABL Collateral to the Administrative Agent’s Lien thereon. Each Collateral Access Agreement is a Third Party Agreement and is in a form reasonably satisfactory to the Administrative Agent. Each Access Agreement is a Third Party Agreement, notwithstanding any absence therein of any subordination of the Lien held by such party to the Administrative Agent’s Lien.

“ Total Assets ” of a Person or Persons shall mean 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 Commitment ” shall mean, at any time, the aggregate amount of the Commitments at such time. From the Initial Funding Date until the Effective Date, the Total Commitment was $1,515,000,000. On the Effective Date the Total Commitment is increased pursuant to Section 2.22 to $1,540,000,000.

 

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“ Total Outstandings ” shall mean at any time the aggregate Outstandings of all Lenders at such time (exclusive of the amount of the Letters of Credit cash collateralized pursuant to Section 2.08(a)(ii) at such time).

“ Transferee ” shall have the meaning assigned to such term in Section 2.20.

“ Type ”, when used in respect of any Loan or Borrowing, shall refer to the rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, “ rate ” shall include the LIBO Rate or the Alternate Base Rate.

“ Unbilled Receivable ” shall mean a Receivable for which, at the time of determination, an invoice or other evidence of a Receivables Obligor’s payment obligation for the purchase of goods from a Borrower has not been rendered.

“ Uniform Commercial Code ” or “ UCC ” shall mean, at any time, the Uniform Commercial Code as from time to time in effect in the State of New York at such time; provided, however , that in the event that, by reason of mandatory provisions of law, the perfection, effect of perfection or non-perfection or priority of the security interest in any Collateral created by the Loan Documents is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

“ Unfunded Current Liability ” of any Plan shall mean 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.

“ United States ” and “ US ” mean the United States of America.

“ Unused Commitment Fee ” shall have the meaning assigned to such term in Section 2.07(a).

“ US Guarantors ” shall mean (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 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 US Guarantors as of the Effective Date are listed on Schedule III.

 

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“ Valuation Reserves ” shall mean, collectively, Inventory Valuation Reserves and Receivables Valuation Reserves.

“ Variance Report ” has the meaning set forth in Section 5.04(b).

“ Weekly Operating Metrics Report ” shall mean a report substantially in the form of Exhibit N-2 hereto.

“ Weighted Average Life to Maturity ” shall mean, 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” shall mean, 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 . 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 6 (other than Section 6.11), 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 Section 5.01(a) and (b)), the Company shall employ presentation consistent with pre-petition GAAP consolidation.

SECTION 1.03 . Terms Generally. Except where the context requires otherwise, the definitions in Section 1.01 shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any

 

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pronoun shall include the corresponding masculine, feminine and neuter forms. The words “ include ”, “ includes ” and “ including ” shall be deemed to be followed by the phrase “ without limitation ”. Unless otherwise stated, references to Sections, Articles, Schedules and Exhibits made herein are to Sections, Articles, Schedules or Exhibits, as the case may be, of this Agreement. “ Writing ”, “ written ” and comparable terms refer to printing, typing and other means of reproducing words in a visible form. References to any agreement or contract are to such agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of such Person. References “ from ” or “ through ” any date mean, unless otherwise specified, “ from and including ” or “ through and including ”, respectively.

SECTION 1.04 . Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class ( e.g. , a “ Revolving Loan ”) or by Type ( e.g. , a “ LIBOR Loan ”) or by Class and Type (e.g., a “ LIBOR Revolving Loan ”). Borrowings also may be classified and referred to by Class ( e.g. , a “ Revolving Borrowing ”) or by Type ( e.g. , a “ LIBOR Borrowing ”) or by Class and Type ( e.g. , a “ LIBOR Revolving Borrowing ”).

SECTION 1.05 . Currency Equivalents. Any amount specified in Article 3, Article 5, Article 6 or Article 7 of this Agreement 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 Section 5.16(b), Section 5.16(c), Section 6.01, Section 6.02 and Section 6.03 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 1.05 shall otherwise apply to such Sections, including with respect to determining whether any cash balance Lien, Indebtedness or Investment (not previously incurred on

 

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any date) may be incurred under such Sections; and (z) for the avoidance of doubt, for the purposes of Section 5.16(b) and Section 5.16(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.

ARTICLE 2

T HE L OANS

SECTION 2.01 . Commitments. Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Lender agrees, severally and not jointly, to make Revolving Loans to the Borrowers from time to time on any Business Day during the Revolving Period in amounts such that (i) the Outstandings of such Lender shall at no time exceed the amount of its Commitment and (ii) the Total Outstandings shall at no time exceed the Maximum Facility Availability. Within the foregoing limits, the Borrowers may borrow, pay or prepay and reborrow Revolving Loans hereunder during the Revolving Period and subject to the terms, conditions and limitations set forth herein.

SECTION 2.02 . Loans. (a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans made ratably by the Lenders in accordance with their respective Commitments; provided, however , that the failure of any Lender to make any Revolving Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan to be made by such other Lender). The Loans comprising any Revolving Borrowing shall be in an aggregate principal amount which is an integral multiple of $1,000,000 and not less than the lesser of $5,000,000 and the remaining available balance of the Commitments (except as otherwise contemplated by the proviso to Section 2.03(a)).

(b) Each Revolving Borrowing shall be comprised entirely of LIBOR Loans or ABR Loans, as the Borrowers may request pursuant to Section 2.03. Each Lender may at its option make any LIBOR Loan by causing any branch or Affiliate of such Lender to make such Loan; provided, however , that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement; provided, further , that if the designation of any such foreign branch or Affiliate shall result in any costs,

 

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reductions or Taxes which would not otherwise have been applicable and for which such Lender would, but for this proviso, be entitled to request compensation under Section 2.15, 2.16 or 2.20, such Lender shall not be entitled to request such compensation unless it shall in good faith have determined such designation to be necessary or advisable to avoid any material disadvantage to it. Borrowings of more than one Type may be outstanding at the same time. For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.

(c) Subject to Section 2.04 and paragraph (d) below, each Lender shall make its Loans on the proposed date or dates thereof (i) in the case of Loans other than Swingline Loans, by wire transfer of immediately available funds to the Administrative Agent in New York, New York, not later than 12:30 p.m., New York City time, and (ii) in the case of Swingline Loans, as provided for in Section 2.05. The Administrative Agent shall credit on such date the amounts so received by 3:00 p.m., New York City time, to the general deposit account of the Borrowers’ Agent with the Administrative Agent or to another account specified by the Borrowers and acceptable to the Administrative Agent; provided that ABR Loans made to finance the reimbursement of an LC Disbursement shall be remitted by the Administrative Agent to the Fronting Bank; and provided, further , that if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met, the Administrative Agent shall return the amounts so received to the respective Lenders. Revolving Loans shall be made by the Lenders ratably in accordance with their Commitments as provided in Section 2.17. Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with this paragraph (c) and the Administrative Agent may, in reliance upon such assumption, make available to the Borrowers on such date a corresponding amount. If and to the extent that such Lender shall not have made such portion available to the Administrative Agent, such Lender, on the one hand, and the Borrowers, on the other hand, severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount, together with interest thereon, for each day from the date such amount is made available to the Borrowers until the date such amount is repaid to the Administrative Agent at (i) in the case of the Borrowers, the interest rate applicable to ABR Loans and (ii) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall be deemed to constitute

 

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such Lender’s Loan as part of such Borrowing for purposes of this Agreement as if it were made on the date of such Borrowing. Nothing herein shall prejudice any rights that the Borrowers may have against any Lender as a result of any default by such Lender hereunder.

(d) Notwithstanding any other provision of this Agreement, the Borrowers shall not be entitled to request any Borrowing if the Interest Period requested with respect thereto would not comply with the limitations specified in the definition of Interest Period.

SECTION 2.03 . Notice Of Borrowings. (a) In order to request a Revolving Borrowing, the Borrowers shall give notice in writing (including telecopy or other electronic communication) (or telephone notice promptly confirmed in writing (including telecopy or other electronic communication)) to the Administrative Agent in the form of Exhibit B not later than 12:30 p.m., New York City time, (i) in the case of a LIBOR Borrowing, three (3) Business Days before a proposed Borrowing and (ii) in the case of an ABR Borrowing, one (1) Business Day before a proposed Borrowing; provided that the Borrowers shall be deemed to have given a timely notice of Borrowing for a Borrowing on each Business Day of an amount necessary in order that after giving effect to both the prepayment of the Loans on such Business Day pursuant to Section 2.08(b)(iii) and such Borrowing, the same aggregate principal amount of Loans of the same Types shall remain outstanding, unless the Borrowers shall have otherwise timely notified the Administrative Agent. For avoidance of doubt, the “deemed” notice of Borrowing contemplated by the foregoing proviso does not affect any condition to Borrowing under Section 4.01 other than the requirement of notice pursuant to Section 4.01(a), and the Administrative Agent may in its discretion require in connection with any Borrowing a confirmation from the Borrower’s Agent as to satisfaction of applicable conditions consistent with that set forth in Exhibit B.

(b) Any notice given pursuant to this Section shall be irrevocable and shall in each case refer to this Agreement and specify (x) whether such Borrowing is to be a LIBOR Borrowing or an ABR Borrowing; and (y) the date of such Borrowing (which shall be a Business Day) and the amount thereof. If no election as to the Type of Borrowing is specified in any such notice, then the requested Borrowing shall be an ABR Borrowing. The Administrative Agent shall promptly advise the Lenders of each notice given pursuant to this Section and of each Lender’s portion of the requested Borrowing.

SECTION 2.04 . Conversions and Continuations. Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request. Thereafter, the Borrowers shall have the right at any time upon prior

 

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irrevocable telephonic notice (which shall be confirmed promptly in writing (including telecopy or other electronic communication)) to the Administrative Agent by the time that a Borrowing Request would be required under Section 2.03 if the Borrowers were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election, to convert such borrowing to a different Type of Borrowing, or in the case of a LIBOR Borrowing, to continue such Borrowing as a LIBOR Borrowing for an additional Interest Period, subject in each case to the following:

(a) if fewer than all the Loans comprising any Borrowing are to be converted or continued, such conversion or continuation shall be made pro rata among the Lenders in accordance with the respective Loans of such Lenders that are part of such Borrowing immediately prior to such conversion or continuation;

(b) in the case of a conversion or continuation of fewer than all the Loans comprising any Borrowing, the aggregate principal amount of Loans converted or continued shall be an amount that would be a permitted Borrowing amount for Loans of the same Type under the last sentence of Section 2.02(a);

(c) accrued interest on a LIBOR Loan (or portion thereof) being converted or continued shall be paid by the Borrowers at the time of conversion or continuation;

(d) if any LIBOR Loan is converted at a time other than the end of an Interest Period applicable thereto, the Borrowers shall pay any increased costs associated therewith pursuant to Section 2.16;

(e) the duration of any Interest Period shall comply with the limitations specified in the definition of Interest Period; and

(f) the Borrowers shall not be entitled to elect to convert any Loans to, or continue any Loans for an additional Interest Period as, LIBOR Loans if an Event of Default shall exist when the Borrowers deliver notice of such election to the Administrative Agent.

If the Borrowers shall not have given timely notice to continue any LIBOR Loan into a subsequent Interest Period (and shall not otherwise have given notice to convert such Loan), such Loan (unless repaid pursuant to the terms hereof) shall, subject to Section 4.01, automatically be continued as a LIBOR Loan with an Interest Period of one (1) month’s duration. The Administrative Agent shall promptly advise the applicable Lenders of any notice given pursuant to this Section and of each such Lender’s portion of the continuation or conversion hereunder. This Section shall not apply to Swingline Borrowings, which may not be converted or continued.

 

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SECTION 2.05 . Swingline Loans. (a) Subject to the terms and conditions set forth herein, and only if no Stop Issuance Notice is in effect, the Swingline Lender may in its absolute discretion make Swingline Loans to the Borrowers from time to time during the Revolving Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Sublimit (ii) the Total Outstandings exceeding the Maximum Facility Availability. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.

(b) The Borrowers may request a Swingline Loan, by notifying the Swingline Lender of such request by telephone (confirmed in writing (including telecopy or other electronic communication) if requested by the Swingline Lender), not later than 12:30 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Swingline Lender shall, if it elects to honor such request, make each Swingline Loan available to the Borrowers by means of a credit to the general deposit account of the Borrowers’ Agent with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(f), by remittance to the Fronting Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.

(c) The Swingline Lender may by written notice given to the Borrowers and the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day, require the Borrowers to give a Borrowing Request on such date for a Borrowing on the earliest date permitted by Section 2.03 of Revolving Loans in an amount sufficient to repay all outstanding Swingline Loans.

(d) Whether or not it shall have given a notice pursuant to Section 2.05(c), the Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding; provided that if the aggregate principal amount of Swingline Loans outstanding on the last Business Day of any week exceeds $5,000,000, then the Swingline Lender shall deliver such notice to the Administrative Agent on such last Business Day of such week and require the Lenders to acquire participations on such last Business Day of such week in all of the Swingline Loans then outstanding. Such notice shall specify the aggregate

 

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amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Revolving Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Revolving Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected b