SECURED SUPER-PRIORITY DEBTOR-IN-POSSESSION MULTIPLE DRAW TERM LOAN AGREEMENT

EXHIBIT 10.2

DRAFT

 

 

 

 

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TABLE OF CONTENTS

Page

ARTICLE I

DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS

1

SECTION 1.1

DEFINED TERMS

1

SECTION 1.2

COMPUTATION OF TIME PERIODS

19

SECTION 1.3

ACCOUNTING TERMS AND PRINCIPLES.

19

SECTION 1.4

CERTAIN TERMS.

19

ARTICLE II

THE FACILITY

19

SECTION 2.1

THE COMMITMENTS

19

SECTION 2.2

BORROWING PROCEDURES.

19

SECTION 2.3

PROTECTIVE ADVANCES

19

SECTION 2.4

TERMINATION, REDUCTION AND INCREASE OF COMMITMENTS.

19

SECTION 2.5

REPAYMENT OF LOANS

19

SECTION 2.6

EVIDENCE OF DEBT.

19

SECTION 2.7

MANDATORY PREPAYMENTS

19

SECTION 2.8

INTEREST.

19

SECTION 2.9

CONVERSION/CONTINUATION OPTION.

19

SECTION 2.10

FEES.

19

SECTION 2.11

PAYMENTS AND COMPUTATIONS.

19

SECTION 2.12

SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.

19

SECTION 2.13

CAPITAL ADEQUACY

19

SECTION 2.14

TAXES.

19

ARTICLE III

CONDITIONS TO LOANS

19

SECTION 3.1

CONDITIONS PRECEDENT TO INITIAL LOANS

19

SECTION 3.2

CONDITIONS PRECEDENT TO EACH LOAN

19

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

19

SECTION 4.1

CORPORATE EXISTENCE; COMPLIANCE WITH LAW

19

SECTION 4.2

CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.

19

SECTION 4.3

OWNERSHIP OF BORROWER; SUBSIDIARIES.

19

SECTION 4.4

FINANCIAL STATEMENTS.

19

SECTION 4.5

MATERIAL ADVERSE EFFECT

19

SECTION 4.6

LITIGATION

19

SECTION 4.7

TAXES.

19

SECTION 4.8

FULL DISCLOSURE.

19

SECTION 4.9

MARGIN REGULATIONS

19

SECTION 4.10

NO BURDENSOME RESTRICTIONS; NO DEFAULTS.

19

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SECTION 4.11

INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT

19

SECTION 4.12

USE OF PROCEEDS

19

SECTION 4.13

INSURANCE

19

SECTION 4.14

LABOR MATTERS.

19

SECTION 4.15

ERISA.

19

SECTION 4.16

ENVIRONMENTAL MATTERS.

19

SECTION 4.17

TITLE; REAL PROPERTY.

19

SECTION 4.18

SECURED, SUPER-PRIORITY OBLIGATIONS.

19

SECTION 4.19

ACCOUNTS

19

SECTION 4.20

TITLE; NO OTHER LIENS

19

SECTION 4.21

PLEDGED COLLATERAL.

19

SECTION 4.22

INTELLECTUAL PROPERTY.

19

SECTION 4.23

WAIVER OF ANY PRIMING RIGHTS

19

ARTICLE V

FINANCIAL COVENANTS

19

SECTION 5.1

MAXIMUM CAPITAL EXPENDITURES

19

SECTION 5.2

MINIMUM LIQUIDITY

19

SECTION 5.3

MONTHLY GROSS SALES

19

ARTICLE VI

REPORTING COVENANTS

19

SECTION 6.1

FINANCIAL STATEMENTS AND OTHER INFORMATION

19

SECTION 6.2

DEFAULT NOTICES

19

SECTION 6.3

LITIGATION

19

SECTION 6.4

ASSET SALES

19

SECTION 6.5

NOTICES UNDER PREPETITION CREDIT AGREEMENT

19

SECTION 6.6

SEC FILINGS; PRESS RELEASES

19

SECTION 6.7

LABOR RELATIONS

19

SECTION 6.8

TAX RETURNS

19

SECTION 6.9

INSURANCE

19

SECTION 6.10

ERISA AND PENSION MATTERS

19

SECTION 6.11

ENVIRONMENTAL MATTERS

19

SECTION 6.12

BANKRUPTCY COURT

19

SECTION 6.13

OTHER INFORMATION

19

SECTION 6.14

PUBLIC INFORMATION

19

ARTICLE VII

AFFIRMATIVE COVENANTS

19

SECTION 7.1

PRESERVATION OF LEGAL EXISTENCE, ETC

19

SECTION 7.2

COMPLIANCE WITH LAWS, ETC

19

SECTION 7.3

CONDUCT OF BUSINESS

19

SECTION 7.4

PAYMENT OF TAXES, ETC

19

SECTION 7.5

MAINTENANCE OF INSURANCE

19

SECTION 7.6

ACCESS

19

SECTION 7.7

KEEPING OF BOOKS

19

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SECTION 7.8

MAINTENANCE OF PROPERTIES, ETC

19

SECTION 7.9

APPLICATION OF PROCEEDS

19

SECTION 7.10

ENVIRONMENTAL

19

SECTION 7.11

ADHERENCE TO APPROVED BUDGET

19

SECTION 7.12

RESERVED.

19

SECTION 7.13

FURTHER ASSURANCES

19

SECTION 7.14

TAX

19

SECTION 7.15

ADDITIONAL SUBSIDIARIES

19

SECTION 7.16

CERTAIN POST-CLOSING OBLIGATIONS.

19

SECTION 7.17

LANDLORDS’ AGREEMENTS, MORTGAGEE AGREEMENTS, BAILEE LETTERS AND REAL ESTATE PURCHASES  19

ARTICLE VIII

NEGATIVE COVENANTS

19

SECTION 8.1

INDEBTEDNESS

19

SECTION 8.2

LIENS, ETC

19

SECTION 8.3

INVESTMENTS

19

SECTION 8.4

SALE OF ASSETS

19

SECTION 8.5

RESTRICTED PAYMENTS

19

SECTION 8.6

RESTRICTION ON FUNDAMENTAL CHANGES

19

SECTION 8.7

CHANGE IN NATURE OF BUSINESS

19

SECTION 8.8

TRANSACTIONS WITH AFFILIATES

19

SECTION 8.9

RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS; NO NEW NEGATIVE PLEDGE

19

SECTION 8.10

MODIFICATION OF CONSTITUENT DOCUMENTS

19

SECTION 8.11

ACCOUNTING CHANGES; FISCAL YEAR

19

SECTION 8.12

MARGIN REGULATIONS

19

SECTION 8.13

OPERATING LEASES; SALE/LEASEBACKS.

19

SECTION 8.14

MODIFICATION, PREPAYMENT AND CANCELLATION OF INDEBTEDNESS

19

SECTION 8.15

NO SPECULATIVE TRANSACTIONS

19

SECTION 8.16

COMPLIANCE WITH ERISA

19

SECTION 8.17

ENVIRONMENTAL

19

SECTION 8.18

SUPER-PRIORITY CLAIMS

19

SECTION 8.19

THE ORDERS

19

SECTION 8.20

PUHCA

19

SECTION 8.21

EMPLOYEE COMPENSATION

19

SECTION 8.22

COVENANT OF THE PARENT AND THE ULTIMATE PARENT

19

SECTION 8.23

RECLAMATION CLAIMS

19

ARTICLE IX

EVENTS OF DEFAULT

19

SECTION 9.1

EVENTS OF DEFAULT

19

SECTION 9.2

REMEDIES

19

SECTION 9.3

RESCISSION

19

SECTION 9.4

WAIVER OF CERTAIN RIGHTS

19

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ARTICLE X

GUARANTY

19

SECTION 10.1

THE GUARANTY

19

SECTION 10.2

NATURE OF LIABILITY

19

SECTION 10.3

INDEPENDENT OBLIGATION

19

SECTION 10.4

AUTHORIZATION

19

SECTION 10.5

RELIANCE

19

SECTION 10.6

SUBORDINATION

19

SECTION 10.7

WAIVER.

19

SECTION 10.8

LIMITATION ON ENFORCEMENT

19

SECTION 10.9

SUBROGATION

19

ARTICLE XI

SECURITY

19

SECTION 11.1

SECURITY.

19

SECTION 11.2

PERFECTION OF SECURITY INTERESTS.

19

SECTION 11.3

RIGHTS OF LENDER; LIMITATIONS ON LENDERS’ OBLIGATIONS.

19

SECTION 11.4

COVENANTS OF THE LOAN PARTIES WITH RESPECT TO COLLATERAL

19

SECTION 11.5

PERFORMANCE BY AGENT OF THE LOAN PARTIES’ OBLIGATIONS

19

SECTION 11.6

LIMITATION ON AGENT’S DUTY IN RESPECT OF COLLATERAL

19

SECTION 11.7

REMEDIES, RIGHTS UPON DEFAULT.

19

SECTION 11.8

THE ADMINISTRATIVE AGENT’S APPOINTMENT AS ATTORNEY-IN-FACT.

19

SECTION 11.9

MODIFICATIONS.

19

ARTICLE XII

THE ADMINISTRATIVE AGENT

19

SECTION 12.1

AUTHORIZATION AND ACTION.

19

SECTION 12.2

AGENT’S RELIANCE, ETC

19

SECTION 12.3

THE ADMINISTRATIVE AGENT INDIVIDUALLY

19

SECTION 12.4

LENDER CREDIT DECISION

19

SECTION 12.5

INDEMNIFICATION

19

SECTION 12.6

SUCCESSOR ADMINISTRATIVE AGENT

19

ARTICLE XIII

MISCELLANEOUS

19

SECTION 13.1

AMENDMENTS, WAIVERS, ETC.

19

SECTION 13.2

ASSIGNMENTS AND PARTICIPATIONS.

19

SECTION 13.3

COSTS AND EXPENSES.

19

SECTION 13.4

INDEMNITIES.

19

SECTION 13.5

LIMITATION OF LIABILITY

19

SECTION 13.6

RIGHT OF SET-OFF

19

SECTION 13.7

SHARING OF PAYMENTS, ETC.

19

SECTION 13.8

NOTICES, ETC

19

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SECTION 13.9

NO WAIVER; REMEDIES

19

SECTION 13.10

BINDING EFFECT

19

SECTION 13.11

GOVERNING LAW

19

SECTION 13.12

SUBMISSION TO JURISDICTION; SERVICE OF PROCESS.

19

SECTION 13.13

WAIVER OF JURY TRIAL

19

SECTION 13.14

MARSHALING; PAYMENTS SET ASIDE

19

SECTION 13.15

SECTION TITLES

19

SECTION 13.16

EXECUTION IN COUNTERPARTS

19

SECTION 13.17

ENTIRE AGREEMENT

19

SECTION 13.18

SEVERABILITY

19

SECTION 13.19

LIMITED DISCLOSURE

19

 

 

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Schedules

Schedule I	-	Commitments
Schedule II	-	Hedging Contracts
Schedule III	-	Addresses for Notices
Schedule IV	-	Prepetition Collateral
Schedule 1.1	-	Customary Permitted Liens
Schedule 4.2	-	Consents
Schedule 4.3	-	Ownership of Subsidiaries
Schedule 4.6	-	Litigation
Schedule 4.7	-	Tax Audits
Schedule 4.13	-	Insurance
Schedule 4.14	-	Labor Matters
Schedule 4.15	-	List of Plans
Schedule 4.16	-	Environmental Matters
Schedule 4.17	-	Real Property
Schedule 4.19	-	Deposit Accounts
Schedule 4.21	-	Pledged Collateral
Schedule 4.22	-	Material Intellectual Property
Schedule 6.1(h)	-	Corporate Chart
Schedule 8.1	-	Existing Indebtedness
Schedule 8.2	-	Existing Liens
Schedule 8.3	-	Existing Investments
Schedule 11.1	-	Commercial Tort Claims

Exhibits

Exhibit A	-	Form of Assignment and Acceptance
Exhibit B	-	Form of Interim Order
Exhibit C	-	Form of Perfection Certificate
Exhibit D	-	Form of Notice of Borrowing
Exhibit E	-	Form of Note
Exhibit F	-	Form of Notice of Conversion or Continuation
Exhibit G	-	Form of Opinion of Counsel for the Loan Parties
Exhibit H	-	Form of Compliance Certificate
Exhibit I	-	Form of Pledge Amendment
Exhibit J-1	-	Form of Trademark Security Agreement
Exhibit J-2	-	Form of Patent Security Agreement
Exhibit J-3	-	Form of Copyright Security Agreement

 

 

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Secured Super-Priority Debtor-In-Possession Multiple Draw Term Loan Agreement, dated as of July [__], 2009, among RathGibson, Inc., a Delaware corporation, as a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code (as defined below) (the “ Borrower ”), RGCH Holdings Corp., a Delaware corporation (the “ Parent ” or “ Parent Guarantor ”), as a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code, and the Subsidiaries (as defined below) of the Borrower listed on the signature pages hereof as Subsidiary Guarantors, each as a debtor and debtor-in-possession under chapter 11 of the Bankruptcy Code (the “ Subsidiary Guarantors ” and together with the Parent Guarantor, the “ Guarantors ”), the Lenders (as defined below) party hereto, and Wilmington Trust FSB, as administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”).

W I T N E S S E T H:

WHEREAS, on July [__], 2009, (the “ Petition Date ”), the Borrower and the Guarantors each filed a voluntary petition for relief (collectively, the “ Case ”) under chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the District of Delaware (the “ Bankruptcy Court ”); and

WHEREAS, the Borrower and the Guarantors are continuing to operate their respective businesses and manage their respective properties as debtors-in-possession under sections 1107(a) and 1108 of the Bankruptcy Code; and

WHEREAS, the Borrower has requested that the Lenders provide a secured super-priority multiple draw term loan facility of up to $80,000,000 in order to fund the continued operation of the Borrower’s and the Guarantors’ businesses as debtors and debtors-in-possession under the Bankruptcy Code and for the other purposes specified herein; and

WHEREAS, each of the Guarantors has agreed to guaranty the obligations of the Borrower hereunder and the Borrower and each of the Guarantors have agreed to secure its obligations to the Lenders hereunder with, inter alia , security interests in, and liens on, substantially all of its property and assets, whether real or personal, tangible or intangible, now existing or hereafter acquired or arising, all as more fully provided herein; and

WHEREAS, the Lenders are willing to make available to the Borrower such post-petition loans and other extensions of credit upon the terms and subject to the conditions set forth herein;

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

ARTICLE I

DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS

Section 1.1

Defined Terms .  As used in this Agreement, the following terms have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

 

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“ Account ” means any “ account ” as specified in Article 9 of the UCC, whether due or to become due, whether or not the right of payment has been earned by performance, and whether now owned or hereafter acquired or arising in the future .

“ Account Debtor ” has the meaning specified in Article 9 of the UCC .

“ Accounts Receivable ” means all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of or services rendered or to be rendered, including, without limitation, all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Property, together with all of each Loan Party’s right, title and interest, if any, in all goods or other property giving rise to such right to payment, including any rights to stoppage in transit, replevin, reclamation and resales, and all related security interests, Liens and pledges, whether voluntary or involuntary, in each case whether now existing or owned or hereafter arising or acquired, and all Collateral Support and Supporting Obligations related to the foregoing and all Accounts Receivable Records.

“ Accounts Receivable Records ” means (a) all original copies of all documents, instruments or other writings or electronic records or other Records evidencing the Accounts Receivable, (b) all books, correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers relating to Accounts Receivable, including, without limitation, all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Accounts Receivable, whether in the possession or under the control of a Loan Party or any computer bureau or agent from time to time acting for a Loan Party or otherwise, (c) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors or lenders, and certificates, acknowledgments, or other writings, including, without limitation, lien search reports, from filing or other registration officers, (d) all credit information, reports and memoranda relating thereto and (e) all other written, electronic or other non-written forms of information related in any way to the foregoing or any Accounts Receivable.

“ Additional Pledged Collateral ” means all shares of, limited and/or general partnership interests in, and limited or unlimited liability company interests in, and all securities convertible into, and warrants, options and other rights to purchase or otherwise acquire, stock of, either (i) any Person that, after the date of this Agreement, as a result of any occurrence, becomes a direct Subsidiary of any Loan Party or (ii) any issuer of Pledged Stock, any Partnership, any LLC or any unlimited liability company that are acquired by any Loan Party after the date hereof; all certificates or other instruments representing any of the foregoing; all Security Entitlements of any Loan Party in respect of any of the foregoing; all additional Indebtedness from time to time owed to any Loan Party by any obligor on the Pledged Notes and the instruments evidencing such Indebtedness; and all interest, cash, instruments and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing.  Additional Pledged Collateral may be General Intangibles or Investment Property.  

 

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“ Adequate Protection Obligations ” means as adequate protection for the use of the Prepetition Collateral, (a) payments of cash interest on a current basis, calculated at the non-default interest rate under the Prepetition Credit Agreement as in effect on the Petition Date (without prejudice to the Prepetition Secured Lenders’ right to later assert claims for interest at the default rate), (b) payments in cash on a current basis, promptly, but in no event later than ten (10) days following receipt by the Borrower of an invoice therefor, of all reasonable fees, costs and expenses of the Prepetition Secured Lenders’ and the Prepetition Credit Agreement Agent’s outside counsel (limited to one firm of outside counsel, plus any local counsel), financial advisors and other professional advisors and (c) replacement liens having a super-priority over any and all administrative expenses of the kind that are specified in Bankruptcy Code Section 503(b) or 507(b) or any other provisions of the Bankruptcy Code, in each case, of the same relative priority as their prepetition Liens to the extent of the post-petition diminution in value, if any, of the Prepetition Collateral; subject, in each case, to (i) the liens and super-priority claims granted to secure the Facility and (ii) the Carve-Out.  The foregoing shall be without prejudice to the right of each Prepetition Credit Agreement Lender to later request or otherwise seek additional forms of adequate protection, including, without limitation, cash adequate protection payments, and the Loan Parties’ and any other party in interest’s rights to oppose any such request.

“ Administrative Agent ” has the meaning specified in the preamble to this Agreement, or any successor Administrative Agent appointed pursuant to Section 12.6 hereof.

“ Affiliate ” means, with respect to any Person, (i) any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person, (ii) each officer, director, general partner or joint-venturer of such Person, and (iii) each Person that is the beneficial owner of 10% or more of any class of Voting Stock of such Person.  For the purposes of this definition, “ control ” means the possession of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

“ Affiliate Multiemployer Plan ” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any ERISA Affiliate (other than an ERISA Affiliate which is the Ultimate Parent or any Subsidiary of the Ultimate Parent) is making, or is obligated to make contributions on behalf of participants who are employed by any of them.

“ Affiliate Pension Plan ” means a “pension plan” (as defined in Section 3(2) of ERISA) (other than an Affiliate Multiemployer Plan) covered by Title IV of ERISA and maintained for employees of any ERISA Affiliate (other than an ERISA Affiliate which is the Ultimate Parent or any Subsidiary of the Ultimate Parent).

“ Affiliate Plan ” means an “employee benefit plan” (as defined in Section 3(3) of ERISA) which any ERISA Affiliate (other than an ERISA Affiliate which is the Ultimate Parent or any Subsidiary of the Ultimate Parent) sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, including each Affiliate Pension Plan and Affiliate Multiemployer Plan.

 

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“ Agreement ” means this Secured Super-Priority Debtor-In-Possession Multiple Draw Term Loan Agreement.

“ Applicable Margin ” means a rate per annum equal to (x) 7.50%, in the case of Base Rate Loans, and (y) 8.50%, in the case of Eurodollar Rate Loans.

“ Approved Budget ” shall mean the operating budget delivered to the Administrative Agent and the Lenders in accordance with Section 3.1(b) , as updated weekly during the continuance of the Case to the extent such update is approved by the Requisite Lenders.

“ Approved Fund ” means any Fund that is advised or managed by (a) a Lender, (b) an Affiliate of a Lender, (c) a Prepetition Senior Noteholder, (d) an Affiliate of a Prepetition Senior Noteholder, (d) an entity or Affiliate of an entity that administers or manages a Lender or (e) an entity or Affiliate of an entity that administers or manages a Prepetition Senior Noteholder.

“ Asset Sale ” has the meaning specified in Section 8.4 .

“ Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit A .

“ Availability Period ” means the period from and including the Closing Date to but excluding the Termination Date.

“ Bankruptcy Code ” means title 11, United States Code, as amended from time to time.

“ Bankruptcy Court ” has the meaning specified in the recitals to this Agreement or any other court having competent jurisdiction over the Case.

“ Bankruptcy Law ” means each of the Bankruptcy Code, any similar federal, state or foreign Requirement of Law for the relief of debtors or any arrangement, reorganization, insolvency, moratorium or assignment for the benefit of creditors or any other marshalling of the assets and liabilities of any Loan Party and any similar Requirements of Law relating to or affecting the enforcement of creditors’ rights generally.

“ Base Rate ” means, for any period, 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 higher of (x) the rate of interest announced from time to time in the Wall Street Journal as the prime lending rate in the United States and (y) the sum of (i) 0.50% per annum plus (ii) the Federal Funds Rate; provided, however , that in no event shall the Base Rate at any time be less than 3.00% per annum.

“ Base Rate Loan ” means any Loan during any period in which it bears interest based on the Base Rate.

“ Borrower ” has the meaning specified in the preamble to this Agreement.

“ Borrower Stock ” has the meaning specified in Section 4.3(a).

 

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“ Borrower’s Accountants ” means KPMG LLP or such other independent nationally recognized public accountants acceptable to the Administrative Agent (at the direction of the Requisite Lenders).

“ Borrowing ” means a borrowing consisting of Loans of the same type made on the same day, and, if Eurodollar Rate Loans, having the same Interest Period, by the Lenders ratably according to their respective Commitments.

“ Business Day ” means a day of the year on which banks are not required or authorized to close in New York City and, if the applicable Business Day relates to notices, determinations, fundings and payments in connection with the Eurodollar Rate or any Eurodollar Rate Loans, a day on which dealings in Dollar deposits are also carried on in the London interbank market.

“ Business Entity ” means a partnership, limited partnership, limited liability company, corporation (including a business trust), unlimited liability company, joint stock company, trust, unincorporated association, joint venture or other entity.

“ Capital Expenditures ” means, with respect to any Person for any period, the aggregate of amounts that would be reflected as additions to property, plant or equipment on a consolidated balance sheet of such Person and its Subsidiaries prepared in conformity with GAAP.

“ Capital Lease ” means, with respect to any Person, any lease of, or other arrangement conveying the right to use, property by such Person as lessee that would be accounted for as a capital lease on a balance sheet of such Person prepared in conformity with GAAP.

“ Capital Lease Obligations ” means, with respect to any Person, the capitalized amount of all obligations of such Person or any of its Subsidiaries under Capital Leases, as determined on a consolidated basis in conformity with GAAP.

“ Carve-Out ” means claims in the Case of the following parties for the following amounts:  (i) the unpaid fees of the U.S. Trustee pursuant to 28 U.S.C. § 1930(a)(6) and the Clerk of the Bankruptcy Court and (ii) solely following the occurrence of a Carve-Out Event, the aggregate allowed unpaid fees and expenses payable under sections 330 and 331 of the Bankruptcy Code to professional persons retained pursuant to an order of the Bankruptcy Court by any Loan Party and not more than one Committee (provided, that the amount of such fees and expenses included in this clause (ii) shall not exceed $2,500,000 in the aggregate); provided , however , that the Carve-Out shall not include, apply to or be available for any fees, disbursements, costs or expenses incurred by any party, including the Borrower, any Guarantor or any Committee, in connection with the investigation (including discovery proceedings), initiation or prosecution of any claims, causes of action, adversary proceedings or other litigation against the Prepetition Secured Lenders, the Prepetition Credit Agreement Agent, the Prepetition Senior Noteholders, the Prepetition Senior Indenture Trustee, the Administrative Agent or the Lenders, including challenging the amount, extent, validity, perfection, priority or enforceability of or asserting any defense, counterclaim or offset to, the Prepetition Credit Agreement Obligations, the Prepetition Senior Notes or the Obligations or the security interests and Liens of the Secured Parties or the Prepetition Secured Lenders in respect thereof; and provided , further , however , that as long as no Carve-Out Event has occurred, each Loan Party shall be permitted to

 

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pay compensation and reimbursement of fees and expenses allowed and payable under sections 330 and 331 of the Bankruptcy Code, as the same may be due and payable, and the same shall not reduce the Carve-Out.  The Borrower shall, after receipt of a Carve-Out Event Notice, provide immediate notice thereof by facsimile to all professionals informing them that a Carve-Out Event has occurred and further advising them that the Loan Parties’ right to pay such professionals is subject to and limited by the Carve-Out.

“ Carve-Out Event ” means the date on which the Administrative Agent provides a Carve-Out Notice.

“ Carve-Out Notice ” means written notice from the Administrative Agent (at the direction of the Requisite Lenders), notifying the Borrower that the Administrative Agent is exercising, or is entitled to exercise, any remedies on its behalf or on behalf of the other Secured Parties under Article IX of this Agreement.

“ Case ” has the meaning specified in the recitals to this Agreement.

“ Cash Equivalents ” means (a) Dollar denominated securities issued or directly and fully guaranteed or insured by the United States government or any agency thereof; provided that the full faith and credit of the United States is pledged in support thereof, (b) Dollar denominated certificates of deposit, overnight bank deposits and bankers’ acceptances of any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, or its branches or agencies that (i) is a member of the Federal Reserve System, (ii) issues (or a holding company of which issues) commercial paper, rated at least “A-1” by S&P or “P-1” by Moody’s and (iii) has combined capital and surplus of at least $500,000,000, (c) Dollar denominated commercial paper of an issuer rated at least “A-1” by S&P or “P-1” by Moody’s, and (d) Dollar denominated shares of any money market fund that (i) has at least 95% of its assets invested continuously in the types of investments referred to in clauses (a) through (c) above, inclusive (giving effect to the proviso at the end of this paragraph), (ii) has net assets of not less than $500,000,000 and (iii) is rated at least “A-1” by S&P or “P-1” by Moody’s; provided , however , that the maturities of all obligations of the type specified in clauses (a) through (c) above, inclusive, shall not exceed one hundred eighty (180) days.

“ Chattel Paper ” has the meaning specified in Section 9-102(a)(11) of the UCC.

“ Claim ” has the meaning ascribed to such term in section 101(5) of the Bankruptcy Code.

“ Closing Date ” means the first date on which the conditions set forth in Section 3.1 are satisfied or waived; provided , that such date shall not be later than July 20, 2009.

“ Code ” means the Internal Revenue Code of 1986 (or any successor legislation thereto), as amended from time to time.

“ Collateral ” has the meaning specified in Section 11.1 .

“ Collateral Support ” means all property (real or personal) assigned, hypothecated or otherwise securing any of items (i) through (xxii) in the definition of Collateral set forth in

 

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Section 11.1 and includes any security agreement or other agreement granting a lien or security interest in such real or personal property.

“ Commercial Tort Claims ” has the meaning specified in Article 9 of the UCC.

“ Commitment ” means, with respect to each Lender, the commitment, if any, of such Lender to make a Loan, expressed as an amount representing the maximum principal amount of the Loans to be made by such Lender hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.4 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 13.2.  The initial amount of each Lender’s Commitment is set forth on Schedule I under the caption “Commitment”, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment, as applicable.  The aggregate amount of Commitments on the Closing Date is $80,000,000.

“ Commitment Parties ” means Wayzata Opportunities Fund, LLC, Wayzata Opportunities Fund II, L.P., Eaton Vance Management on behalf of certain funds and/or accounts that it manages as it shall determine, and BlackRock Financial Management, Inc. on behalf of certain funds and/or accounts that it manages and/or advises as it shall determine.

“ Committee ” means the official statutory committee of unsecured creditors, if any, appointed in the Case pursuant to section 1102 of the Bankruptcy Code.

“ Commodity Account ” has the meaning specified in Article 9 of the UCC.

“ Commodity Intermediary ” has the meaning specified in Article 9 of the UCC.

“ Compliance Certificate ” has the meaning specified in Section 6.1(d) .

“Consolidated Liquidity” means, with respect to any date of determination, the sum of all cash and Cash Equivalents held by the Loan Parties as of such date free and clear of all Liens except those created pursuant to the Loan Documents and the Orders.

“ Constituent Documents ” means, with respect to any Person, (a) the articles/certificate of incorporation or certificate of formation (or the equivalent organizational documents) of such Person, (b) the by-laws or LLC Agreement (or the equivalent governing documents) of such Person and (c) any document setting forth the manner of election and duties of the directors or managing members of such Person (if any) and the designation, amount and/or relative rights, limitations and preferences of any class or series of such Person’s Stock.

“ Contaminant ” means any material, substance or waste that is classified, regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a pollutant or by other words of similar meaning or regulatory effect, including any petroleum or petroleum-derived substance or waste, asbestos and polychlorinated biphenyl.

“ Contracts ” means, with respect to any Loan Party, any and all “contracts”, as such term is defined in Article 1 of the UCC, of such Loan Party.

 

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“ Contractual Obligation ” means, with respect to any Person, any obligation, agreement, undertaking or similar provision of any Security issued by such Person or of any agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or other instrument (excluding the Loan Documents) to which such Person is a party or by which it or any of its property is bound or to which any of its properties is subject.

“ Control ” has the meaning specified in Section 9-106 of the UCC.

“ Copyright Licenses ” means any written agreement naming any Loan Party as licensor or licensee granting any right under any Copyright, including the grant of rights to copy, publicly perform, create derivative works, manufacture, distribute, exploit and sell materials derived from any Copyright.

“ Copyright Security Agreement ” means the Copyright Security Agreement, if any, between the Loan Parties and the Administrative Agent, in the form of Exhibit J-2.

“ Copyrights ” means (a) all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished, all registrations and recordings thereof, and all applications in connection therewith, including all registrations, recordings and applications in the United States Copyright Office or in any foreign counterparts thereof and (b) the right to obtain all renewals thereof.

“ Corporate Chart ” means a corporate organizational chart, list or other similar document in each case in form reasonably acceptable to the Administrative Agent (at the direction of the Requisite Lenders) and setting forth, for the Ultimate Parent and each Person that is a Loan Party or that is a Subsidiary of the Ultimate Parent or a Loan Party, (a) the full legal name of such Person (and any trade name, fictitious name or other name such Person may have had or operated under in the past five years), (b) the jurisdiction of organization, the organizational number (if any) and the tax identification number (if any) of such Person, (c) the location of such Person’s chief executive office (or sole place of business) and (d) the number of shares of each class of such Person’s Stock authorized (if applicable), the number outstanding as of the date of delivery and the number and percentage of such outstanding shares for each such class owned (directly or indirectly) by the Ultimate Parent, any Loan Party or any Subsidiary of any of them.

“ Customary Permitted Liens ” means, with respect to any Person, any of the following Liens:

(a)

Liens with respect to the payment of taxes, assessments or governmental charges in each case that are not yet due or that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained to the extent required by GAAP;

(b)

Liens of landlords arising by statute and liens of suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other liens imposed by law created in the ordinary course of business for amounts not yet due or that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained to the extent required by GAAP;

 

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(c)

pledges and deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other types of social security benefits or to secure the performance of bids, tenders, sales, contracts (other than for the repayment of borrowed money) and surety, stay, appeal, customs or performance bonds arising in each case in the ordinary course of business;

(d)

encumbrances arising by reason of zoning restrictions, easements, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar encumbrances on the use of Real Property that do not secure any obligations for borrowed money and do not materially detract from the value of such Real Property or interfere with the ordinary conduct of the business conducted and proposed to be conducted at such Real Property;

(e)

encumbrances arising under leases or subleases of Real Property, in the ordinary course of business, that do not in the aggregate materially detract from the value of such Real Property or interfere with the ordinary conduct of the business conducted and proposed to be conducted at such Real Property;

(f)

financing statements with respect to a lessor’s rights in and to personal property leased to such Person in the ordinary course of such Person’s business other than through a Capital Lease;

(g)

liens of a collection bank arising in the ordinary course of business under Section 4-208 of the Uniform Commercial Code as in effect in any relevant jurisdiction;

(h)

Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(i)

judgment liens in respect of judgments that do not constitute a Default or an Event of Default; and

(j)

Liens set forth on Schedule 1.1 .

“ Default ” means any event which with the passing of time or the giving of notice or both would become an Event of Default.

“ Deposit Account ” has the meaning specified in Article 9 of the UCC.

“ DIP Equity ” means Voting Stock, representing not less than 7.5% of the post-restructuring Stock of the Borrower (or such other entity satisfactory to the Lenders) on a fully diluted basis, to be issued to the Lenders on a ratable basis pursuant to, and on the terms and conditions set forth in, the Noteholder Plan and such other terms and conditions set forth on Exhibit A to the Plan Support Agreement (including the execution and delivery of a shareholder agreement by all relevant parties), each of the foregoing to be in form and substance satisfactory to the Loan Parties and the Administrative Agent (at the direction of the Requisite Lenders).

 

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“ Disclosure Documents ” means, collectively, Form 10-K for the Fiscal Year ending January 31, 2009, Form 10-Q for the Fiscal Quarter ending April 30, 2009, and Form 8-K dated May 4, 2009, each filed by the Borrower with the Securities and Exchange Commission.

“ Document ” has the meaning specified in Article 9 of the UCC.

“ Dollar Equivalent ” means, with respect to any amount, (i) if such amount is denominated in Dollars, such amount and (ii) if such amount is denominated in a currency other than Dollars, the equivalent of such amount in Dollars as determined by the Administrative Agent in accordance with its normal practices.

“ Dollars ” and the sign “ $ ” each mean the lawful money of the United States of America.

“ Domestic IP Agreements ” means the Trademark Security Agreement, the Patent Security Agreement and the Copyright Security Agreement.

“ Domestic Subsidiary ” means any Subsidiary of a Loan Party that is incorporated or formed pursuant to the laws of a State of the United States of America or the District of Columbia.

“ Effective Date ” means the date upon which the Noteholder Plan becomes effective.

“ Eligible Assignee ” means (a) a Lender, (b) an Affiliate of a Lender, (c) a Prepetition Senior Noteholder, (d) an Affiliate of a Prepetition Senior Noteholder, (e) an Approved Fund, and (f) any other Person approved by the Administrative Agent, the Requisite Lenders and, unless a Default or an Event of Default shall have occurred, the Borrower (which consent of the Borrower not to be unreasonably withheld, delayed or conditioned).

“ Entry Date ” means the date of the entry of the Final Order.

“ Environmental Laws ” means all applicable Requirements of Law now or hereafter in effect, as amended or supplemented from time to time, relating to pollution or the regulation and protection of human or animal health, safety, the environment or natural resources, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. § 9601 et seq .); the Hazardous Materials Transportation Uniform Safety Act, as amended (49 U.S.C. 5101 et seq .); the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. § 136 et seq .); the Resource Conservation and Recovery Act, as amended (42 U.S.C. § 6901 et seq .); the Toxic Substances Control Act, as amended (15 U.S.C. § 2601 et seq .); the Clean Air Act, as amended (42 U.S.C. § 7401 et seq .); the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251 et seq .); the Occupational Safety and Health Act, as amended (29 U.S.C. § 651 et seq .); the Safe Drinking Water Act, as amended (42 U.S.C. § 300f et seq .); and their state, municipal and local counterparts or equivalents and any transfer of ownership notification or approval statute, including the Industrial Site Recovery Act (N.J.S.A. § 13:1K-6 et seq .).

“ Environmental Liabilities and Costs ” means, with respect to any Person, all liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all fees, disbursements

 

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and expenses of counsel, experts and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any other Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, including any thereof arising under any Environmental Law, Permit, order or agreement with any Governmental Authority or other Person, which relate to any environmental, health or safety condition or a Release or threatened Release, and result from or otherwise relate to the past, present or future operations of, or ownership of property by, such Person or any of its Subsidiaries.

“ Environmental Lien ” means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs.

“ Equipment ” has the meaning specified in Article 9 of the UCC.

“ Equity Issuance ” means the issuance by any Loan Party or any of its Subsidiaries of any Stock.

“ ERISA ” means the Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended from time to time.

“ ERISA Affiliate ” means, with respect to any Loan Party, any trade or business (whether or not incorporated) that, together with such Loan Party, are treated as a single employer within the meaning of Sections 414(b), (c), (m) or (o) of the Code.

“ ERISA Event ” means (a) a reportable event described in Section 4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with respect to a Title IV Plan or a Multiemployer Plan, other than a reportable event for which PBGC notice requirements have been waived; (b) the withdrawal of the Ultimate Parent, any Loan Party or, any of their Subsidiaries from a Title IV 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; (c) the complete or partial withdrawal of the Ultimate Parent, any Loan Party or any of their Subsidiaries from any Multiemployer Plan; (d) the termination of a Multiemployer Plan or notice of reorganization or insolvency of a Multiemployer Plan; (e) the filing of a notice of intent to terminate a Title IV Plan or the treatment of a plan amendment as a termination under Section 4041 of ERISA; (f) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC; (g) the failure to make any required contribution to a Title IV Plan or Multiemployer Plan; (h) the imposition of a lien under Section 412 of the Code or Section 302 of ERISA on any Loan Party or any of its Subsidiaries; (i) notice from the PBGC of any other event or condition which might reasonably be expected to constitute grounds (A) under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or (B) for the imposition of any liability under Title IV of ERISA on any Loan Party or its Subsidiaries, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA; (j) the loss of a Qualified Plan’s qualification or tax exempt status; or (k) the termination of a Plan described in Section 4064 of ERISA.

“ ESOP ” means a Plan that is intended to satisfy the requirements of Section 4975(e)(7) of the Code.

 

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“ Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Federal Reserve Board, as in effect from time to time.

“ Eurodollar Base Rate ” means, with respect to any Interest Period for any Eurodollar Rate Loan, the rate determined by the Administrative Agent to be the offered rate for deposits in Dollars for the applicable Interest Period which appears on the Dow Jones Markets Telerate Page 3750 (or any successor page) as of 11:00 A.M. (London time) on the third full Business Day next preceding the first day of each Interest Period.  In the event that such rate does not appear on the Dow Jones Markets Telerate Page 3750 (or otherwise on the Dow Jones Markets screen), the Eurodollar Base Rate for the purposes of this definition shall be determined by reference to such other comparable publicly available service for displaying eurodollar rates as may be selected by the Administrative Agent, or, in the absence of such availability, the Eurodollar Base Rate shall be the rate of interest determined by the Administrative Agent to be the average (rounded upward to the nearest whole multiple of 1/16 of one percent per annum, if such average is not such a multiple) of the rates per annum at which deposits in Dollars are offered by the principal office of each of the Reference Banks to major banks in the London interbank market at 11:00 A.M. (London time) three (3) Business Days before the first day of such Interest Period in an amount substantially equal to the Eurodollar Rate Loan for a period equal to such Interest Period.

“ Eurodollar Rate ” means, with respect to any Interest Period for any Eurodollar Rate Loan, an interest rate per annum equal to the rate per annum obtained by dividing (a) the Eurodollar Base Rate by (b) a percentage equal to 100% minus the reserve percentage applicable three (3) Business Days before the first day of such Interest Period under regulations issued from time to time by the Federal Reserve Board 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 Eurodollar Rate is determined) having a term equal to such Interest Period; provided , that in no event shall the Eurodollar Rate at any time be less than 2.00% per annum.

“ Eurodollar Rate Loan ” means any Loan that, for an Interest Period, bears interest based on the Eurodollar Rate.

“ Event of Default ” has the meaning specified in Section 9.1 .

“ Facility ” means the Commitments and the provisions herein related to the Loans.

“ Fair Market Value ” means (a) with respect to any asset or group of assets (other than a marketable Security) at any date, the value of the consideration obtainable in a sale of such asset at such date assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as reasonably determined by the Board of Directors of the Borrower, or, if such asset shall have been the subject of a relatively contemporaneous appraisal by an independent third party appraiser, the basic assumptions underlying which have not materially changed since its date, the value set forth in such appraisal, and (b) with respect to any marketable Security at any date, the closing sale price of such Security on the Business Day next

 

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preceding such date, as appearing in any published list of any national securities exchange or the NASDAQ Stock Market or, if there is no such closing sale price of such Security, the final price for the purchase of such Security at face value quoted on such Business Day by a financial institution of recognized standing that regularly deals in Securities of such type selected by the Administrative Agent (at the direction of the Requisite Lenders).

“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“ Federal Reserve Board ” means the Board of Governors of the Federal Reserve System, or any successor thereto.

“ Fee Letter ” shall mean that certain amended and restated fee letter, dated as of June 30, 2009, addressed to the Borrower from the Commitment Parties and accepted by the Borrower on June 30, 2009, with respect to certain fees to be paid from time to time to the Administrative Agent, the Lenders and the Commitment Parties, as amended.

“ Final Order ” means an order of the Bankruptcy Court pursuant to section 364 of the Bankruptcy Code, approving this Agreement and the other Loan Documents and authorizing the incurrence by the Loan Parties of permanent post-petition secured and super-priority debtor-in-possession Indebtedness in accordance with this Agreement, and as to which no stay has been entered and which has not been reversed, modified, vacated or overturned, and which is in form and substance substantially the same as the Interim Order, with such modifications as are acceptable to the Loan Parties and the Administrative Agent (at the direction of the Requisite Lenders).

“ Financial Assets ” has the meaning specified in Article 8 of the UCC.

“ Financial Statements ” means the financial statements of the Loan Parties delivered in accordance with Section 4.4 and Section 6.1 .

“ First Day Orders ” means all orders entered by the Bankruptcy Court on the Petition Date or within five (5) Business Days of the Petition Date or based on motions filed on the Petition Date.

“ Fiscal Quarter ” means each of the three-month periods ending on January 31, April 30, July 31 and October 31.

“ Fiscal Year ” means the twelve-month period ending on January 31.

“ Foreign Subsidiary ” means any Subsidiary of a Loan Party that is not a Domestic Subsidiary.

 

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

“ Funds Flow Memorandum ” has the meaning specified in Section 3.1(b) .

“ GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be in general use by significant segments of the accounting profession, that are applicable to the circumstances as of the date of determination.

“ General Intangible ” has the meaning specified in Article 9 of the UCC.

“ Goods ” has the meaning specified in Article 9 of the UCC.

“ Governmental Authority ” means any nation, sovereign or government, any state, province or other political subdivision thereof and any entity or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any central bank or stock exchange.

“ Guaranteed Obligations ” has the meaning specified in Section 10.1 .

“ Guarantor ” has the meaning specified in the preamble to this Agreement.

“ Guaranty ” means the guaranty of the Obligations of the Borrower made by the Guarantors pursuant to Article X of this Agreement.

“ Guaranty Obligation ” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person with respect to any Indebtedness of another Person, if the purpose or intent of such Person in incurring the Guaranty Obligation is to provide assurance to the obligee of such Indebtedness that such Indebtedness will be paid or discharged, or that any agreement relating thereto will be complied with, or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof, including (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of Indebtedness of another Person and (b) any liability of such Person for Indebtedness of another Person through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such Indebtedness or any security therefor, or to provide funds for the payment or discharge of such Indebtedness (whether in the form of a loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency or any balance sheet item, level of income or financial condition of another Person, (iii) to make take-or-pay or similar payments, if required, regardless of non-performance by any other party or parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, or (v) to supply funds to or in any other manner invest in such other Person (including to pay for property or services irrespective of whether such property is

 

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received or such services are rendered), if in the case of any agreement described under subclause (i) , (ii) , (iii) , (iv) or (v) of clause (b) of this sentence the primary purpose or intent thereof is to provide assurance that Indebtedness of another Person will be paid or discharged, that any agreement relating thereto will be complied with or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof.  The amount of any Guaranty Obligation shall be equal to the amount of the Indebtedness so guaranteed or otherwise supported.

“ Hedging Contracts ” means all Interest Rate Contracts, foreign exchange contracts, currency swap or option agreements, forward contracts, commodity swap, purchase or option agreements, other commodity price hedging arrangements, and all other similar agreements or arrangements designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices.   Schedule II sets forth, as of the date hereof, a list of the Hedging Contracts of each Loan Party or its Subsidiaries.

“ Indebtedness ” means, with respect to any Person, without duplication (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments or that bear interest, (c) all reimbursement and other obligations with respect to letters of credit, bankers’ acceptances, surety bonds and performance bonds, whether or not matured, (d) all indebtedness of such Person for the deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business that are not overdue by more than 90 days, (e) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (f) all Capital Lease Obligations and Synthetic Lease Obligations, (g) all Guaranty Obligations of such Person, (h) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any Stock or Stock Equivalents of such Person, valued, in the case of redeemable preferred stock, at the greater of its voluntary liquidation preference and its involuntary liquidation preference plus accrued and unpaid dividends, (i) all payments that such Person would have to make in the event of an early termination on the date Indebtedness of such Person is being determined in respect of Hedging Contracts of such Person and (j) all Indebtedness of the type referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including Accounts and General Intangibles) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness.

“ Indemnified Matters ” has the meaning specified in Section 13.4(a .

“ Indemnified Party ” has the meaning specified in Section 13.4(a .

“ Insolvency Proceeding ” means in each case with respect to any Person or any property or Indebtedness of any Person, (a)(i) any voluntary or involuntary case or proceeding under any Bankruptcy Law or any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, (ii) any case or proceeding seeking receivership, liquidation, reorganization, winding up or other similar case or proceeding, (iii) any case or proceeding seeking arrangement, adjustment, protection, relief or composition of any debt and (iv) any case or proceeding seeking

 

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the entry of an order for relief or the appointment of a custodian, receiver, trustee, compulsory manager, administrator or other similar official, (b) any liquidation, dissolution, reorganization, debt moratorium, winding up, receivership, administration or scheme of arrangement, voluntary or involuntary and whether or not involving any Bankruptcy Law, (c) the enforcement of any Lien or other right in or to property securing indebtedness and (d) any general assignment for the benefit of creditors or any other marshalling of assets and liabilities.

“ Instrument ” has the meaning specified in Article 9 of the UCC, other than instruments that constitute, or are a part of a group of writings that constitute, Chattel Paper.

“ Insurance ” has the meaning specified in Article 9 of the UCC.

“ Intellectual Property ” means, collectively, all rights, priorities and privileges of any Loan Party relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses, trade secrets and Internet domain names, and all rights to sue at law or in equity for any past, present or future infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom and all royalties and income associated therewith.

“ Interest Expense ” means, for any Person for any period, (a) total interest expense of such Person and its Subsidiaries for such period determined on a consolidated basis in conformity with GAAP and including, in any event, interest capitalized during such period and net costs under Interest Rate Contracts for such period minus (b) the sum of (i) net gains of such Person and its Subsidiaries under Interest Rate Contracts for such period determined on a consolidated basis in conformity with GAAP plus (ii) any interest income of such Person and its Subsidiaries for such period determined on a consolidated basis in conformity with GAAP.

“ Interest Period ” means, in the case of any Eurodollar Rate Loan, (a) initially, the period commencing on the date such Eurodollar Rate Loan is made or on the date of conversion of a Base Rate Loan to such Eurodollar Rate Loan and ending one, two or three months thereafter, as selected by the Borrower in its Notice of Borrowing or Notice of Conversion or Continuation given to the Administrative Agent pursuant to Section 2.2 or Section 2.9 , and (b) thereafter, if such Loan is continued, in whole or in part, as a Eurodollar Rate Loan pursuant to Section 2.9 , a period commencing on the last day of the immediately preceding Interest Period therefor and ending one, two or three months thereafter, as selected by the Borrower in its Notice of Conversion or Continuation given to the Administrative Agent pursuant to Section 2.9 ; provided , however , that all of the foregoing provisions relating to Interest Periods in respect of Eurodollar Rate Loans are subject to the following:

(a)

if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless the result of such extension would be to extend such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day;

 

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(b)

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

(c)

the Borrower may not select any Interest Period that ends after the Scheduled Termination Date;

(d)

the Borrower may not select any Interest Period in respect of Loans having an aggregate principal amount of less than $5,000,000; and

(e)

there shall be outstanding at any one time no more than five (5) Interest Periods in the aggregate.

“ Interest Rate Contracts ” means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance.

“ Interim Order ” means that certain order issued by the Bankruptcy Court in substantially the form of Exhibit B and otherwise in form and substance satisfactory to the Loan Parties and the Administrative Agent (at the direction of the Requisite Lenders).

“ Inventory ” has the meaning specified in Section 9-102(a)(48) of the UCC, wherever located.

“ Investment ” means, with respect to any Person, (a) any purchase or other acquisition by such Person of (i) any Security issued by, (ii) a beneficial interest in any Security issued by, or (iii) any other equity ownership interest in, any other Person, (b) any purchase by such Person of all or a significant part of the assets of a business conducted by any other Person, or all or substantially all of the assets constituting the business of a division, branch or other unit operation of any other Person, (c) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable and similar items made or incurred in the ordinary course of business as presently conducted), or capital contribution by such Person to any other Person, including all Indebtedness of any other Person to such Person arising from a sale of property by such Person other than in the ordinary course of its business and (d) any Guaranty Obligation incurred by such Person in respect of Indebtedness of any other Person.

“ Investment Property ” means, with respect to any Loan Party, any and all “investment property”, as such term is defined in Article 9 of the UCC, of such Loan Party, wherever located.

“ IRS ” means the Internal Revenue Service of the United States or any successor thereto.

“ Lender ” means each financial institution or other entity that (a) is listed on the signature pages hereof as a “Lender” or (b) from time to time becomes a party hereto as a Lender by execution of an Assignment and Acceptance.

“ Letter of Credit Rights ” has the meaning specified in Article 9 of the UCC.

 

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“ Lien ” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, lien (statutory or other), security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever intended to assure payment of any Indebtedness or other obligation, including any conditional sale or other title retention agreement, the interest of a lessor under a Capital Lease and any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction naming the owner of the asset to which such Lien relates as debtor.

“ LLC ” means any limited liability company in which any Loan Party has an interest.

“ LLC Agreement ” means the limited liability company agreement or such analogous agreement governing the operation of any LLC.

“ Loan ” has the meaning specified in Section 2.1 .

“ Loan Documents ” means, collectively, this Agreement (including the Guaranty), the Notes (if any), the Fee Letter, each Hedging Contract to which a Loan Party and a Lender or an Affiliate of a Lender is a party, the Domestic IP Agreements, the Funds Flow Memorandum and each agreement, instrument or other document which creates or perfects a security interest in any Collateral and each certificate, agreement or document executed by a Loan Party and delivered to the Administrative Agent or any Lender in connection with or pursuant to any of the foregoing.

“ Loan Party ” means the Borrower, each Guarantor and each other Subsidiary of Parent or the Borrower that executes and delivers a Loan Document.

“ Margin Stock ” means margin stock within the meaning of Regulation U of the Federal Reserve Board.

“ Material Adverse Change ” means a material adverse change in any of (a) the business, assets, operations, performance, properties, financial condition, contingent liabilities or material agreements of the Loan Parties and their Subsidiaries, individually, and the Loan Parties and their Subsidiaries, taken as a whole, since April 30, 2009 (other than events leading up to the commencement of the Case, the continuation of the Case and the consequences that would normally result therefrom, and other events that have been publicly disclosed or otherwise disclosed in writing to the Administrative Agent), (b) the legality, validity or enforceability of any Loan Document or the Orders, (c) the ability of the Loan Parties, taken as a whole, to perform their respective obligations under the Loan Documents, (d) the value of the Collateral, (e) the perfection or priority of the Liens granted pursuant to the Loan Documents or the Orders, or (f) the rights and remedies of the Administrative Agent or the other Secured Parties under, or the ability of the Administrative Agent or the other Secured Parties to enforce, the Loan Documents or the Orders.

“ Material Adverse Effect ” means an effect that results in or causes, or could reasonably be expected to result in or cause, a Material Adverse Change.

 

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“ Material Intellectual Property ” means Intellectual Property owned by or licensed to a Loan Party which is material to the business, assets, operations, performance, properties, condition (financial or otherwise) or prospects of such Loan Party.

“ Money ” has the meaning specified in Article 1 of the UCC.

“Monthly Gross Sales” means, with respect to any calendar month, the gross sales in Dollar Equivalent of the Loan Parties calculated in accordance with GAAP as notified by the Borrower to the Administrative Agent in writing not later than the second Business Day immediately succeeding the last day of such calendar month.

“ Moody’s ” means Moody’s Investors Services, Inc. and its successors.

“ Multiemployer Plan ” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, and to which any Loan Party or ERISA Affiliate is making, or is obligated to make, contributions on behalf of participants who are or were employed by any of them, but which for purposes hereof does not include any Affiliate Plan.

“ Net Cash Proceeds ” means proceeds received by any other Loan Party or any of its Subsidiaries after the Closing Date in cash or Cash Equivalents from any (a) Asset Sale, other than an Asset Sale permitted under clauses (a) through (e) , inclusive, of Section 8.4 , net of (i) the reasonable cash costs of sale, assignment or other disposition, (ii) taxes paid or payable as a result thereof and (iii) any amount required by the Bankruptcy Court to be paid or prepaid on Indebtedness (other than the Obligations) secured by a perfected and unavoidable lien on the assets subject to such Asset Sale; provided , however , that the evidence of each of (i) , (ii) and (iii) are provided to the Administrative Agent in form and substance satisfactory to the Requisite Lenders; (b) Property Loss Event (net of any expenses of the type described in clause (a)(iii) above, if any); (c) (i) Equity Issuance (other than any such issuance of common Stock of any Loan Party or any of its Subsidiaries occurring in the ordinary course of business to any director, member of the management or employee of any Loan Party or any of its Subsidiaries or to any Affiliate of the Borrower that is not a Loan Party) or (ii) the incurrence of Indebtedness, other than the incurrence of Indebtedness permitted under Section 8.1 , in each case net of brokers’ and advisors’ fees and other costs actually incurred in connection with such transaction; provided , however , that in the case of this clause (c) , evidence of such costs is provided to the Administrative Agent in form and substance satisfactory to the Requisite Lenders.

“ Non-Funding Lender ” has the meaning specified in Section 2.2(d).

“ Non-U.S. Lender ” means each Lender that is not a United States person as defined in Section 7701(a)(30) of the Code.

“ Note ” means a promissory note of the Borrower payable to the order of any Lender in a principal amount equal to the amount of such Lender’s Commitment evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Loans owing to such Lender.

“ Noteholder Plan ” means the plan of reorganization proposed by or on behalf of the Borrower and the other Loan Parties, in form and substance satisfactory to the Administrative Agent (at the direction of the Requisite Lenders), which Noteholder Plan shall, in any event,

 

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reflect in all material respects the plan of reorganization attached as Exhibit A to the Plan Support Agreement, which plan of reorganization shall include, without limitation, (a) the indefeasible payment in full in cash and satisfaction of the Obligations on or prior to the Effective Date, (b) the issuance of the DIP Equity to the Administrative Agent for the ratable benefit of the Lenders on or prior to the Effective Date and (c) the execution and delivery of a shareholder agreement, in form and substance satisfactory to the Administrative Agent (at the direction of the Requisite Lenders) and the Borrower, among all relevant parties.

“ Noteholder Plan Disclosure Statement ” has the meaning specified in Section 9.1(r).

“ Notice of Borrowing ” has the meaning specified in Section 2.2(a) .

“ Notice of Conversion or Continuation ” has the meaning specified in Section 2.9 .

“ Obligations ” means the Loans and all other amounts, obligations, covenants and duties owing by the Loan Parties to the Administrative Agent, any Lender, any Affiliate of any of them, any Indemnified Party or any other Secured Party, of every type and description (whether by reason of an extension of credit, Protective Advance, loan, guaranty, indemnification, foreign exchange or currency swap transaction, interest rate hedging transaction or otherwise), present or future, arising under this Agreement, any other Loan Document or the Orders, any Hedging Contract that is a Loan Document, any agreement for cash management services entered into in connection with this Agreement or any other Loan Document or the Orders, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired and whether or not evidenced by any note, guaranty or other instrument or for the payment of money, including all cash management and other fees, interest, charges, expenses, fees, attorneys’ fees and disbursements and other sums chargeable to the Loan Parties under this Agreement, any other Loan Document or the Orders, any Hedging Contract that is a Loan Document or any agreement for cash management services entered into in connection with this Agreement or any other Loan Document or the Orders.

“ Orders ” means the Interim Order and the Final Order, collectively.

“ Original Currency ” has the meaning specified in Section 13.12( .

“ Other Currency ” has the meaning specified in Section 13.12( .

“ Parent” has the meaning specified in the preamble to this Agreement.

“ Parent Guarantor” has the meaning specified in the preamble to this Agreement.

“ Parent Stock ” has the meaning specified in Section 4.3(a).

“ Partnership ” means any Person classified as a partnership for U.S. federal income tax purposes in which any Loan Party has an interest.

“ Partnership Agreement ” means the partnership agreement of any Partnership or such analogous agreement governing the operation of any Partnership.

 

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“ Patent License ” means all agreements, whether written or oral, providing for the grant by or to any Loan Party of any right to manufacture, use, import, sell or offer for sale any invention covered in whole or in part by a Patent.

“Patent Security Agreement ” means the Patent Security Agreement, between the Loan Parties and the Administrative Agent, in the form of Exhibit J-3.

“ Patents ” means (a) all letters patent of the United States, any other country or any political subdivision thereof and all reissues and extensions thereof, (b) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof, and (c) all rights to obtain any reissues or extensions of the foregoing.

“ Payment Intangible ” has the meaning specified in Section 9-102(a)(61) of the UCC.

“ PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.

“ Pension Plan ” means a Plan described in Section 3(2) of ERISA.

“ Perfection Certificate ” means a certificate from a Responsible Officer of the Borrower, substantially in the form of Exhibit C .

“ Permit ” means any permit, approval, authorization, license, variance or permission required from a Governmental Authority under an applicable Requirement of Law.

“ Permitted Prepetition Claim Payment ” means a payment (as adequate protection or otherwise) that is made by a Loan Party on account of any Claim arising or deemed to have arisen prior to the Petition Date, which is made pursuant to authority granted by First Day Orders of the Bankruptcy Court, or such other order of the Bankruptcy Court, which First Day Orders and any other such orders are in full force and effect, as to which no stay has been entered and which have not been reversed, amended, modified, vacated or overturned; provided , that no such payment shall be made after the occurrence and during the continuance of a Default or an Event of Default.

“ Person ” means an individual, partnership, corporation (including a business trust), joint stock company, estate, trust, limited liability company, unincorporated association, joint venture or other entity, or a Governmental Authority.

“ Petition Date ” has the meaning specified in the recitals to this Agreement.

“ PIK Facility ” means that certain Credit Agreement, dated as of June 15, 2007, by and among the Parent, as borrower, the lenders party thereto and Credit Suisse, as administrative agent.

“ Plan ” means, an “employee benefit plan,” as defined in Section 3(3) of ERISA, that any Loan Party maintains, contributes to or has an obligation to contribute to on behalf of participants who are or were employed by any Loan Party.

 

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“ Plan Support Agreement ” means the Plan Support Agreement, dated as of July [__], 2009, by and among the Loan Parties and the ad-hoc group of Prepetition Senior Noteholders.

“ Pledge Amendment ” has the meaning specified in Section 11.4(h .

“ Pledged Collateral ” means, collectively, the Pledged Notes, the Pledged Stock, the Pledged Partnership Interests, the Pledged LLC Interests, any other Investment Property of any Loan Party, all certificates or other instruments representing any of the foregoing, all Security Entitlements of any Loan Party in respect of any of the foregoing, all dividends, interest distributions, cash, warrants, rights, instruments and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing.  Pledged Collateral may be General Intangibles or Investment Property.

“ Pledged LLC Interests ” means all of any Loan Party’s right, title and interest as a member of any LLC and all of such Loan Party’s right, title and interest in, to and under any LLC Agreement to which it is a party.

“ Pledged Notes ” means all right, title and interest of any Loan Party in all Instruments evidencing any Indebtedness owed to such Loan Party, including all Indebtedness described on Schedule 4.21 , issued by the obligors named therein, and all interest, cash, Instruments and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Indebtedness.

“ Pledged Partnership Interests ” means all of any Loan Party’s right, title and interest as a limited and/or general partner in all Partnerships and all of such Loan Party’s right, title and interest in, to and under any Partnership Agreements to which it is a party.

“ Pledged Stock ” means the Stock owned by each Loan Party, including all shares of Stock listed on Schedule 4.21 ; provided, however , that with respect to each Foreign Subsidiary, only the outstanding Stock of such Foreign Subsidiary possessing up to but not exceeding 65% of the voting power of all classes of Stock of such Foreign Subsidiary entitled to vote shall be deemed to be pledged hereunder if in the judgment of the Administrative Agent (at the direction of the Requisite Lenders), the pledge of more than 65% of such stock would have materially adverse tax consequences to the Loan Parties .

“ Prepetition Collateral ” means the collateral (including cash collateral) securing the Prepetition Credit Agreement Obligations, which collateral is described on Schedule IV hereto.

“ Prepetition Credit Agreement ” means that certain Credit Agreement, dated as of February 7, 2006, by and among the Borrower, the other “Credit Parties” party thereto, General Electric Capital Corporation and various additional lenders from to time to time a party thereto.

“ Prepetition Credit Agreement Agent ” means any agent or trustee for the Prepetition Secured Lenders under the Prepetition Credit Agreement.

“ Prepetition Credit Agreement Obligations ” means all obligations owing by the Parent and its Subsidiaries under or in respect of the Prepetition Credit Agreement, including the loans, all contingent and reimbursement obligations in respect of letters of credit and all other amounts,

 

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obligations, covenants and duties owing by the Parent or any of its Subsidiaries party thereto to the administrative agent, any lender, any letter of credit issuer, any affiliate of any of them or any indemnitee, of every type and description (whether by reason of an extension of credit, opening or amendment of a letter of credit or payment of any draft drawn thereunder, loan, guaranty, indemnification, or otherwise), present or future, arising under the Prepetition Credit Agreement,  whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired and whether or not evidenced by any note, guaranty or other instrument or for the payment of money, and includes all letter of credit, cash management and other fees; interest, charges, expenses, fees, attorneys’ fees and disbursements and other sums chargeable to the Parent or any of its Subsidiaries party thereto under the Prepetition Credit Agreement, or any agreement for cash management services entered into in connection with the Prepetition Credit Agreement and all obligations of the Parent or any of its Subsidiaries party thereto to cash collateralize all contingent and reimbursement obligations in respect of letters of credit issued pursuant to the Prepetition Credit Agreement.

“ Prepetition Credit Agreement Repayment Date ” means the date on which the outstanding Prepetition Credit Agreement Obligations under the Prepetition Credit Agreement are indefeasably repaid in full in cash.

“ Prepetition Secured Lenders ” means the lenders party to the Prepetition Credit Agreement.

“ Prepetition Senior Indenture ” means that certain Indenture, dated as of February 7, 2006, by and between the Borrower and The Bank of New York, as trustee, as amended or supplemented on or prior to the date hereof, which governs the Borrower’s 11.25% Senior Notes due 2014.

“ Prepetition Senior Indenture Trustee ” means The Bank of New York or any other agent, trustee or indenture trustee under the Prepetition Senior Indenture.

“ Prepetition Senior Noteholders” means the holders of Prepetition Senior Notes.

“ Prepetition Senior Notes” means the notes issued pursuant to the Prepetition Senior Indenture.

“ Proceeds ” means any and all “proceeds”, as such term is defined in Section 9-102(a)(64) of the UCC.

“ Projections ” means those financial projections, including income statement, balance sheet and cash flow statement, each in form and substance consistent with the Borrower’s internal financial statements dated July [__], 2009 covering Fiscal Year 2010, presented on a monthly basis, to be delivered to the Lenders by the Borrower.

“ Property Loss Event ” means any loss of or damage to property of any Loan Party or any of its Subsidiaries that results in the receipt by such Person of proceeds of insurance in excess of $1,000,000 or any taking of property of any Loan Party or any of its Subsidiaries that results in the receipt by such Person of a compensation payment in respect thereof.

 

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“ Protective Advances ” means all expenses, disbursements and advances incurred by the Administrative Agent or the Lenders pursuant to the Loan Documents and the Orders after the occurrence and during the continuance of a Default that the Administrative Agent, for itself or as directed by the Requisite Lenders, in their sole discretion, deems necessary or desirable to preserve or protect the Collateral or any portion thereof or to enhance the likelihood or maximize the amount of repayment of the Obligations.

“ PUHCA ” means the Public Utility Holding Company Act of 2005, enacted as part of the Energy Policy Act of 2005, Pub. L. No. 109-58 as codified at Sections 1261 et seq., and the regulations adopted thereunder, as amended.

“ Purchasing Lender ” has the meaning specified in Section 13.7(a .

“ Qualified Plan ” means a Pension Plan that is intended to be tax-qualified under Section 401(a) of the Code.

“ Ratable Portion ” or “ ratably ” means, with respect to any Lender, (a) on or before the last day of the Availability Period, the percentage obtained by dividing (x) the Commitment of such Lender by (y) the aggregate Commitments of all Lenders and (b) after the last day of the Availability Period, the percentage obtained by dividing the aggregate outstanding principal amount of Loans owing to such Lender by the aggregate outstanding principal amount of Loans owing to all Lenders.

“ Real Property ” means, with respect to any Person, all of those plots, pieces or parcels of land now owned, leased or hereafter acquired or leased by such Person (the “ Land ”), together with the right, title and interest of such Person, if any, in and to the following:  (a) the streets, the land lying in the bed of any streets, roads or avenues, opened or proposed, (b) the air space and development rights pertaining to the Land and the right to use such air space and development rights, (c) all rights of way, privileges, liberties, tenements, hereditaments and appurtenances belonging or in any way appertaining thereto, (d) all fixtures, all easements now or hereafter benefiting the Land and all royalties and rights appertaining to the use and enjoyment of the Land, including all alley, vault, drainage, mineral, water, oil and gas rights and (e) all of the buildings and other improvements now or hereafter erected on the Land, and any fixtures appurtenant thereto.

“ Records ” has the meaning specified in Article 9 of the UCC.

“ Reference Banks” means two or more major financial institutions (which may include the Administrative Agent) selected by the Administrative Agent in its reasonable judgment.

“ Register ” has the meaning specified in Section 13.2(c .

“ Release ” means, with respect to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration, in each case, of any Contaminant into the indoor or outdoor environment or into or out of any property owned, leased or operated by such Person, including the movement of Contaminants through or in the air, soil, surface water, ground water or property.

 

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“ Remedial Action ” means all actions required by a Governmental Authority or through any administrative or judicial proceeding to (a) clean up, remove, treat or in any other way address any Contaminant in the indoor or outdoor environment, (b) prevent the Release or threat of Release or minimize the further Release so that a Contaminant does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care.

“ Requirement of Law ” means, with respect to any Person, the common law and all U.S. federal, state, municipal, local and foreign laws, treaties, rules and regulations, orders, judgments, decrees, permits and other legal requirements or determinations of any Governmental Authority or arbitrator, applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“ Requisite Lenders ” means, collectively, (a) on or before the last day of the Availability Period, Lenders (other than Non-Funding Lenders) having more than fifty percent (50%) of the aggregate amount of the Commitments of all Lenders (other than Non-Funding Lenders) or (b) after the last day of the Availability Period, Lenders (other than Non-Funding Lenders) having more than fifty percent (50%) of aggregate outstanding principal amount of the Loans of all Lenders (other than Non-Funding Lenders); provided that, for the avoidance of doubt, any Non-Funding Lender shall not be entitled to vote on any matters arising hereunder, and the portion of its Commitment and the Loans held by any such Non-Funding Lender shall be disregarded in determining whether the Requisite Lenders have approved or consented to any matters hereunder, including, without limitation, any matters requiring the approval or consent of the Requisite Lenders or unanimous consent of the Lenders.

“ Responsible Financial Officer ” means the chief financial officer, treasurer or controller of the Borrower.

“ Responsible Officer ” means, with respect to any Person, any of the principal executive officers, managing members or general partners of such Person.

“ Restricted Payment ” means (a) any dividend, distribution or any other payment, direct or indirect, on account of any Stock or Stock Equivalent of any Loan Party or any of its Subsidiaries now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Stock or Stock Equivalent of any Loan Party or any of its Subsidiaries now or hereafter outstanding and (c) any payment or prepayment of principal, premium (if any), interest, fees (including fees to obtain any waiver or consent in connection with any Security) or other charges on, or redemption, purchase, retirement, defeasance, sinking fund or similar payment with respect to, any Indebtedness of any Loan Party or any of its Subsidiaries, other than any required redemptions, retirement, purchases or other payments, in each case to the extent required to be made by the terms of such Indebtedness after giving effect to any applicable subordination provisions.

“ Retiree Welfare Plan ” means, at any time, a Welfare Plan that provides for continuing coverage or benefits for any participant or any beneficiary of a participant after such participant’s termination of employment, other than continuation coverage provided pursuant to Section 4980B of the Code and at the sole expense of the participant or the beneficiary of the participant.

 

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“ S&P ” means Standard & Poor’s Rating Services and its successors.

“ Sale/Leaseback Transaction ” shall mean any lease, whether an operating lease or a capital lease, whereby any Loan Party or any of its Subsidiaries, directly or indirectly, becomes or remains liable as lessee or as guarantor or other surety, of any property whether now owned or hereafter acquired, (a) that any Loan Party or any of its Subsidiaries, as the case may be, has sold or transferred or is to sell or transfer to any other Person (other than another Loan Party), or (b) that is acquired by any other Person, as part of a financing transaction to which any Loan Party or any of its Subsidiaries is a party, in contemplation of leasing such property to any Loan Party or any of its Subsidiaries, as the case may be.

“ Scheduled Termination Date ” means February 10, 2010.  

“ Secured Parties ” means the Lenders, the Administrative Agent, each of their respective successors and assigns, and any other holder of any of the Obligations or of any other obligations under the Loan Documents or the Orders, including the beneficiaries of each indemnification obligation undertaken by the Loan Parties.

“ Securities Account ” has the meaning specified in Article 8 of the UCC.

“ Securities Intermediary ” has the meaning specified in Article 8 of the UCC.

“ Security ” means any Stock, Stock Equivalent, voting trust certificate, bond, debenture, note or other evidence of Indebtedness, whether secured, unsecured, convertible or subordinated, or any certificate of interest, share or participation in, or any temporary or interim certificate for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing, but shall not include any evidence of the Obligations.

“ Security Entitlement ” means any “ security entitlement ” as specified in Article 8 of the UCC.

“ Selling Lender ” has the meaning specified in Section 13.7(a .

“ Stock ” means shares of capital stock (whether denominated as common stock or preferred stock), beneficial, partnership or membership interests, participations, equity interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company, unlimited liability company, or equivalent entity, whether voting or non-voting.

“ Stock Equivalents ” means all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable.

“ Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company or other business entity of which an aggregate of greater than 50% of the outstanding Voting Stock is, at the time, directly or indirectly, owned or controlled by such Person or one or more Subsidiaries of such Person.

 

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“ Subsidiary Guarantor ” means each Subsidiary of the Parent (other than the Borrower) party to this Agreement.

“ Supporting Obligations ” has the meaning specified in Article 9 of the UCC.

“ Synthetic Lease ” means, as to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (i) that is not a capital lease in accordance with GAAP and (ii) in respect of which the lessee retains or obtains ownership of the property so leased for federal income tax purposes, other than any lease under which the Person is a lessor.

“ Synthetic Lease Obligations ” means, as to any Person, the obligations of such Person under any Synthetic Lease.

“ Tax Affiliate ” means, with respect to any Person, (a) any Subsidiary of such Person, and (b) any Affiliate of such Person with which such Person files or is eligible to file consolidated, combined or unitary tax returns.

“ Tax Return ” has the meaning specified in Section 4.7(a) .

“ Taxes ” has the meaning specified in Section 2.14(a .

“ Termination Date ” shall mean the earliest of (a) the Scheduled Termination Date, (b) the Effective Date, (c) the date of consummation of any sale of all or substantially all of the assets of the Loan Parties pursuant to Section 363 of the Bankruptcy Code, (d) if the Final Order has not been entered, the date that is forty-five (45) days after the Petition Date, (e) the date of termination of the Commitments pursuant to Section 2.4 or Section 9.2, and (f) the date on which the Obligations become due and payable pursuant to Section 9.2.

“ Title IV Plan ” means a “pension plan” as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that is covered by Title IV of ERISA, and that any Loan Party or ERISA Affiliate maintains, contributes to or has an obligation to contribute to on behalf of participants who are or were employed by any of them, but which for purposes hereof does not include any Affiliate Plan.

“ Trademark License ” means any agreement, whether written or oral, providing for the grant by or to any Loan Party of any right to use any Trademark.

" Trademark Security Agreement " means the Trademark Security Agreement, between the Loan Parties and the Administrative Agent, in the form of Exhibit J-1.

“ Trademarks ” means (a) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or

 

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otherwise, and all common-law rights related thereto, and (b) the right to obtain all renewals thereof.

“ UCC ” means, at any time, the Uniform Commercial Code in effect in the State of New York at such time.

“ Ultimate Parent ” means RG Tube Holdings LLC, a Delaware limited liability company.

“ Unencumbered Stock ” means all Pledged Stock, other than Pledged Stock that was subject to a valid perfected security interest in favor of the Prepetition Secured Lenders prior to the Petition Date.

“ Unfunded Pension Liability ” means, at any time, the aggregate amount, if any, of the sum of (a) the amount by which the present value of all accrued benefits under each Title IV Plan exceeds the fair market value of all assets of such Title IV Plan allocable to such benefits in accordance with Title IV of ERISA, all determined as of the most recent valuation date for each such Title IV Plan using the actuarial assumptions for funding purposes in effect under such Title IV Plan, and (b) for a period of 5 years following a transaction which might reasonably be expected to be covered by Section 4069 of ERISA, the liabilities (whether or not accrued) that could be avoided by any Loan Party (or any ERISA Affiliate which is the Ultimate Parent or a Subsidiary of the Ultimate Parent) as a result of such transaction.

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

“ U.S. Lender ” means each Lender that is not a Non-U.S. Lender.

“ U.S. Trustee ” means the United States Trustee for the District of Delaware.

“ Vehicles ” means all vehicles covered by a certificate of title law of any state.

“ Voting Stock ” means Stock of any Person having ordinary power to vote in the election of members of the board of directors, managers, trustees or other controlling Persons, of such Person (irrespective of whether, at the time, Stock of any other class or classes of such entity shall have or might have voting power by reason of the happening of any contingency).

“ Welfare Plan ” means a Plan described in Section 3(1) of ERISA.

“ Withholding Taxes ” has the meaning specified in Section 2.14(a .

Section 1.2

Computation of Time Periods .  In this Agreement, in the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ” and the words “ to ” and “ until ” each mean “to but excluding” and the word “ through ” means “ to and including .”

Section 1.3

Accounting Terms and Principles .

(a)

Except as set forth below, all accounting terms not specifically defined herein shall be construed in conformity with GAAP and all accounting determinations required

 

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to be made pursuant hereto (including for purpose of measuring compliance with Article V ) shall, unless expressly otherwise provided herein, be made in conformity with GAAP.

(b)

If any change in the accounting principles used in the preparation of the most recent Financial Statements referred to in Section 6.1 is hereafter required or permitted by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or any successors thereto) and such change is adopted by the Borrower with the agreement of the Borrower’s Accountants and results in a change in any of the calculations required by Article V or Article VIII that would not have resulted had such accounting change not occurred, the parties hereto agree to enter into negotiations in order to amend such provisions so as to equitably reflect such change such that the criteria for evaluating compliance with such covenants by the Borrower shall be the same after such change as if such change had not been made; provided , however , that no change in GAAP that would affect a calculation that measures compliance with any covenant contained in Article V or Article VIII shall be given effect until such provisions are amended to reflect such changes in GAAP.

Section 1.4

Certain Terms .

(a)

The words “ herein ”, “ hereof ”, “ hereto ” and “ hereunder ” and similar words refer to this Agreement as a whole, and not to any particular Article, Section, subsection or clause in this Agreement.

(b)

Unless otherwise expressly indicated herein, (i) references in this Agreement to an Exhibit, Schedule, Article, Section, clause, or sub-clause refer to the appropriate Exhibit or Schedule to, or Article, Section, clause or sub-clause in this Agreement and (ii) the words “ above ” and “ below ”, when following a reference to a clause or a sub-clause of any Loan Document, refer to a clause or a sub-clause within, respectively, the same section or clause.

(c)

Each agreement defined in this Article I shall include all appendices, exhibits and schedules thereto.  Unless the prior written consent of the Requisite Lenders is required hereunder for an amendment, restatement, supplement or other modification to any such agreement and such consent is not obtained, references in this Agreement to such agreement shall be to such agreement as so amended, restated, supplemented or modified.

(d)

References in this Agreement to any statute shall be to such statute as amended or modified from time to time and to any successor legislation thereto, in each case as in effect at the time any such reference is operative.

(e)

The term “ including ” when used in any Loan Document means “ including without limitation ”, except when used in the computation of time periods.

(f)

The terms “ Lender ” and “ Administrative Agent ” include their respective successors and permitted assigns.

(g)

Upon the appointment of any successor Administrative Agent pursuant to Section 12.6 , references to Wilmington Trust FSB in Section 12.3 shall be deemed to refer to the

 

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financial institution then acting as the Administrative Agent or one of its Affiliates if it so designates.

(h)

Terms not otherwise defined herein and defined in the UCC are used herein with the meanings specified in the UCC.

ARTICLE II

THE FACILITY

Section 2.1

The Commitments .  Subject to the terms and conditions set forth in this Agreement, each Lender severally agrees to make loans (the “ Loans ” and individually, a “ Loan ”) to the Borrower as follows: (i) an initial Borrowing on the Closing Date in the aggregate principal amount of $65,000,000; and (ii) if the Termination Date shall not have previously occurred, one additional Borrowing on the Entry Date in an aggregate principal amount not to exceed $15,000,000; provided , however , the amount of any Loan made or made available on any date shall not exceed the amount permitted by the Approved Budget for such date; and provided further that the Loans shall not exceed, for any Lender, in aggregate principal amount, the amount which equals the Commitment of such Lender.  Proceeds of the Loans shall be used solely for the purposes set forth in Section 4.12 .  Once repaid, in whole or in part, at maturity or by prepayment, Loans made hereunder may not be reborrowed in whole or in part.  

Section 2.2

Borrowing Procedures .

(a)

Each Borrowing shall be made on notice given by the Borrower to the Administrative Agent not later than 11:00 A.M. (New York City time) one (1) Business Day prior to the Closing Date, in the case of the initial Borrowing, and five (5) Business Days prior to the date of the proposed Borrowing, in the case of the Borrowing after the Closing Date.  Each such notice shall be in substantially the form of Exhibit D (a “ Notice of Borrowing ”), specifying (A) the date of such proposed Borrowing (which must be during the Availability Period), (B) the aggregate amount of such proposed Borrowing, (C) whether any portion of the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans; provided, that , Borrowings on the Closing Date shall consist entirely of Base Rate Loans, (D) the initial Interest Period or Interest Periods for any such Eurodollar Rate Loans, and (E) the Commitment (after giving effect to the proposed Borrowing).  The Loans shall be made as Base Rate Loans unless (subject to Section 2.12 ) the Notice of Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans.  Each Borrowing shall be in an aggregate amount of not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof; provided that the initial Borrowing shall be in an aggregate amount of $65,000,000.

(b)

The Administrative Agent shall give to each Lender prompt notice of the Administrative Agent’s receipt of a Notice of Borrowing and, if Eurodollar Rate Loans are properly requested in such Notice of Borrowing, the applicable interest rate determined pursuant to Section 2.12(a ggg.  Each Lender shall, before 4:00 P.M. (New York City time) on the date of the proposed Borrowing, make available to the Administrative Agent at its address referred to in Section 13.8 , in immediately available funds, such Lender’s Ratable Portion of such proposed Borrowing.  After the Administrative Agent’s receipt of such funds and upon fulfillment of the

 

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applicable conditions set forth in Section 3.1 and Section 3.2 , the Administrative Agent will make such funds available to the Borrower.

(c)

Unless the Administrative Agent shall have received notice from a Lender prior to the date of any proposed Borrowing that such Lender will not make available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing, the Administrative Agent may assume that such Lender has made such Ratable Portion available to the Administrative Agent on the date of such Borrowing in accordance with this Section 2.2 and the Administrative Agent may, but is not obligated to, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount.  If and to the extent that such Lender shall not have so made such Ratable Portion available to the Administrative Agent, such Lender and the Borrower 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 Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate for the first Business Day and thereafter at the interest rate applicable at the time to the Loans comprising such Borrowing.  If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement.  If the Borrower shall repay to the Administrative Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have hereunder to the Borrower.

(d)

The failure of any Lender to make the Loan or any payment required by it on the date specified (a “ Non-Funding Lender ”) shall not relieve any other Lender of its obligations to make such Loan or payment on such date but no such other Lender shall be responsible for the failure of any Non-Funding Lender to make a Loan or payment required under this Agreement.

Section 2.3

Protective Advances .  In managing, supervising and otherwise dealing with the Collateral, the Administrative Agent may, but has no obligation to, or if directed by and prefunded by the Requisite Lenders shall, make Protective Advances in an aggregate amount not to exceed the lesser of $5,000,000 and the aggregate amount of the Commitment available to be drawn on the date that the Protective Advance is made.

Section 2.4

Termination, Reduction and Increase of Commitments .

(a)

Each Lender’s Commitment shall be automatically and permanently reduced on each date on which a Borrowing is made under Section 2.1 by an aggregate amount equal to such Lender’s Ratable Portion of the Borrowing made on such date.

(b)

All Commitments shall automatically and permanently terminate on the Termination Date.

Section 2.5

Repayment of Loans .  The Borrower promises to repay to the Administrative Agent for the ratable account of the Lenders the aggregate outstanding principal amount of the Loans and all accrued but unpaid interest thereon on the Termination Date or

 

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earlier, if otherwise required by the terms hereof, together with any fees payable therewith pursuant to the Fee Letter.

Section 2.6

Evidence of Debt .

(a)

Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing Indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

(b)

The Administrative Agent shall maintain accounts in accordance with its usual practice in which it will record (i) the amount of each Loan made and, if a Eurodollar Rate Loan, the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable by the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof, if applicable.

(c)

The entries made in the accounts maintained pursuant to clauses (a) and (b) of this Section 2.6 shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations recorded therein; provided , however , that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans in accordance with their terms.

(d)

Notwithstanding any other provision of the Agreement, in the event that any Lender requests that the Borrower execute and deliver a promissory note or notes payable to such Lender in order to evidence the Indebtedness owing to such Lender by the Borrower hereunder, the Borrower shall promptly execute and deliver a Note or Notes to such Lender evidencing any Loans of such Lender, substantially in the form of Exhibit E .

Section 2.7

Mandatory Prepayments .  Upon receipt by any Loan Party or any of its Subsidiaries of any Net Cash Proceeds, the Borrower shall immediately prepay the Loans in an amount equal to 100% of such Net Cash Proceeds.  Any such mandatory prepayment shall be applied, subject to Section 2.11(g ggg hereof, first to repay the outstanding principal amount of the Loans until such Loans shall have been repaid in full; and second to any other Obligation then due and payable.

Section 2.8

Interest .

(a)

Rate of Interest .  All Loans and the outstanding amount of all other Obligations shall bear interest, in the case of Loans, on the unpaid principal amount thereof from the date such Loans are made and, in the case of such other Obligations, from the date such other Obligations are due and payable until, in all cases, paid in full in cash, except as otherwise provided in Section 2.8(c) , as follows:

(i)

if a Base Rate Loan or such other Obligation, at a rate per annum equal to the sum of (A) the Base Rate as in effect from time to time, and (B) the Applicable Margin; and

 

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(ii)

if a Eurodollar Rate Loan, at a rate per annum equal to the sum of (A) the Eurodollar Rate determined for the applicable Interest Period, and (B) the Applicable Margin in effect from time to time during such Interest Period.

(b)

Interest Payments .  (i) Interest accrued on each Base Rate Loan shall be payable in arrears (A) on the last Business Day of each calendar month, commencing on the first such day following the making of such Base Rate Loan, and (B) if not previously paid in full in cash, at maturity (whether by acceleration or otherwise) of such Base Rate Loan; (ii) interest accrued on each Eurodollar Rate Loan shall be payable in arrears (A) on the last day of each Interest Period applicable to such Loan, (B) upon the payment or prepayment thereof in full or in part, and (C) if not previously paid in full, at maturity (whether by acceleration or otherwise) of such Eurodollar Rate Loan; and (iii) interest accrued on the amount of all other Obligations shall be payable on demand from and after the time such Obligation becomes due and payable (whether by acceleration or otherwise).

(c)

Default Interest .  Notwithstanding the rates of interest specified in Section 2.8(a) or elsewhere herein, effective immediately upon the occurrence of an Event of Default, and for as long thereafter as such Event of Default shall be continuing, the principal amount of all Loans and the amount of all other Obligations shall bear interest at a rate which is two percent (2%) per annum in excess of the rate of interest then applicable to such Loans or such other Obligations from time to time.  Such interest shall be payable on demand.

Section 2.9

Conversion/Continuation Option .

(a)

The Borrower may elect (i) at any time to convert Base Rate Loans or any portion thereof to Eurodollar Rate Loans, or (ii) at the end of any applicable Interest Period, to convert Eurodollar Rate Loans or any portion thereof to Base Rate Loans or to continue such Eurodollar Rate Loans or any portion thereof for an additional Interest Period; provided , however , that the aggregate principal amount of Eurodollar Rate Loans constituting a single Borrowing must be in the amount of at least $5,000,000 or an integral multiple of $1,000,000 in excess thereof.  Each conversion or continuation shall be allocated among the Loans of each Lender in accordance with such Lender’s Ratable Portion.  Each such election shall be in substantially the form of Exhibit F hereto (a “ Notice of Conversion or Continuation ”) and shall be made by giving the Administrative Agent at least three (3) Business Days’ prior written notice specifying (A) the amount and type of Loan being converted or continued, (B) in the case of a conversion to or a continuation of Eurodollar Rate Loans, the applicable Interest Period, (C) in the case of a conversion, the date of conversion (which date shall be a Business Day and, if a conversion from Eurodollar Rate Loans, shall also be the last day of the applicable Interest Period), and (D) that the conditions set forth in Section 3.2(b) have been satisfied.

(b)

The Administrative Agent shall promptly notify each Lender of its receipt of a Notice of Conversion or Continuation and of the options selected therein.  Notwithstanding the foregoing, no conversion in whole or in part of Base Rate Loans to Eurodollar Rate Loans, and no continuation in whole or in part of Eurodollar Rate Loans upon the expiration of any applicable Interest Period, shall be permitted at any time at which (i) a Default or an Event of Default shall have occurred and be continuing or (ii) the continuation of, or conversion into a Eurodollar Rate Loan would violate any of the provisions of Section 2.12.  If, within the time

 

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period required under the terms of this Section 2.9 , the Administrative Agent does not receive a Notice of Conversion or Continuation from the Borrower containing a permitted election to continue any Eurodollar Rate Loans for an additional Interest Period or to convert any such Loans, then, upon the expiration of the applicable Interest Period, such Loans will be automatically converted to Base Rate Loans.  Each Notice of Conversion or Continuation shall be irrevocable.

Section 2.10

Fees .

(a)

The Borrower has agreed to pay to the Administrative Agent, the Commitment Parties and the Lenders certain fees, the amount and dates of payment of which are set forth in the Fee Letter.

(b)

As provided in the Fee Letter, in the event that the Loans are repaid in full or the Facility is otherwise terminated, repaid or refinanced, prior to the Scheduled Termination Date, the Borrower shall pay to the Administrative Agent for the ratable benefit of each Lender, in addition to all other amounts due under the Loan Documents, the “Exit Fee” under the Fee Letter, to the extent required to be paid thereunder.

Section 2.11

Payments and Computations .

(a)

The Borrower shall make each payment hereunder (including fees and expenses) not later than 11:00 A.M. (New York City time) on the day when due, in Dollars, to the Administrative Agent at its address referred to in Section 13.8, in immediately available funds without set-off, deduction, counterclaim or other defense.  The Administrative Agent shall promptly thereafter cause to be distributed immediately available funds relating to the payment of principal or interest or fees to the Lenders, in accordance with the application of payments set forth in clauses (e) and (f) of this Section 2.11 , as applicable, for the account of each Lender; provided , however , that amounts payable pursuant to Section 2.12(c ggg, 2.12(e) , 2.13 or 2.14 shall be paid only to the affected Lender or Lenders.  Payments received by the Administrative Agent after 11:00 A.M. (New York City time) shall be deemed to be received on the next succeeding Business Day.

(b)

All computations of interest and of fees shall be made by the Administrative Agent on the basis of a year of 360 days for Eurodollar Rate Loans and 365 days for Base Rate Loans, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest and fees are payable.  Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

(c)

Reserved.

(d)

Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or fees, as the case may be.  All repayments of any Loans shall be applied first to repay such Loans outstanding as Base Rate Loans and then to repay such Loans outstanding as Eurodollar

 

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Rate Loans with those Eurodollar Rate Loans which have earlier expiring Eurodollar Interest Periods being repaid prior to those which have later expiring Eurodollar Interest Periods.

(e)

Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may but is not obligated to, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent that the Borrower shall not have made such payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon at the Federal Funds Rate, for the first Business Day, and, thereafter, at the rate applicable to Base Rate Loans, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent.

(f)

Subject to the provisions of clause (g) of this Section 2.11 (or required to be applied in accordance with Section 2.7 ), all payments and any other amounts received by the Administrative Agent from or for the benefit of the Borrower or any other Loan Party shall be applied first , to pay principal of and interest on any portion of the Loans which the Administrative Agent may have advanced or expenses the Administrative Agent may have incurred pursuant to the express provisions of this Agreement on behalf of any Lender, for which the Administrative Agent has not then been reimbursed by such Lender or the Borrower; second , to pay all other Obligations then due and payable; and third , as the Borrower so designates.  Payments in respect of Loans received by the Administrative Agent shall be distributed to each Lender in accordance with such Lender’s Ratable Portion thereof; and all payments of fees and all other payments in respect of any other Obligation shall be allocated among such of the Lenders as are entitled thereto, and, if to the Lenders, in proportion to their respective Ratable Portions.

(g)

After the occurrence and during the continuance of an Event of Default, the Borrower hereby irrevocably waives the right to direct the application of any and all payments in respect of the Obligations and any proceeds of Collateral, and agrees that the Administrative Agent may, and shall upon either (A) the written direction of the Requisite Lenders or (B) the acceleration of the Obligations pursuant to Section 2.9 , apply all payments in respect of any Obligations and all other proceeds of Collateral in the following order:

(i)

first , to pay interest on and then principal of any portion of the Loans that the Administrative Agent may have advanced on behalf of any Lender for which the Administrative Agent has not then been reimbursed by such Lender or the Loan Parties;

(ii)

second , to pay Obligations in respect of any amounts owed in respect of any Protective Advance then due to the Administrative Agent and any reimbursements and indemnities then due to the Administrative Agent;

 

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(iii)

third , to pay Obligations in respect of any expense reimbursements or indemnities then due to the Lenders;

(iv)

fourth , to pay Obligations in respect of any fees then due to the Administrative Agent or the Lenders;

(v)

fifth , to pay interest then due and payable in respect of the Loans;

(vi)

sixth , to pay or prepay principal amounts on the Loans, ratably to the aggregate principal amount of such Loans and Obligations owing with respect to Hedging Contracts with any Lender or an Affiliate of a Lender; and

(vii)

seventh , to the ratable payment of all other Obligations;

provided , however , that if sufficient funds are not available to fund all payments to be made in respect of any of the Obligations described in any of the foregoing clauses first through seventh , inclusive, the available funds being applied under any such clause with respect to any such Obligation (unless otherwise specified in such clause) shall be allocated to the payment of such Obligations ratably, based on the proportion of the Administrative Agent’s and each Lender’s interest in the aggregate outstanding Obligations described in any such clause.  The order of priority set forth in clauses first through seventh of this Section 2.11(g) may at any time and from time to time be changed by the agreement of the Requisite Lenders without necessity of notice to or consent of or approval by the Borrower, any Secured Party that is not a Lender, or any other Person.  The order of priority set forth in clauses first through fourth of this Section 2.11(g) may be changed only with the prior written consent of the Administrative Agent in addition to the Requisite Lenders.

(h)

The Borrower and the Guarantors hereby authorize the Administrative Agent and/or each Lender to charge from time to time against any or all of the accounts of any of the Loan Parties with the Administrative Agent or such Lender any of the Obligations which are then due and payable.  Each Lender receiving any payment as a result of charging any such account shall promptly notify the Administrative Agent thereof and make such arrangements as the Administrative Agent shall request to share the benefit thereof in accordance with Section 13.7 .

Section 2.12

Special Provisions Governing Eurodollar Rate Loans .

(a)

Determination of Interest Rate .  The Eurodollar Rate for each Interest Period for Eurodollar Rate Loans shall be determined by the Administrative Agent pursuant to the procedures set forth in the definition of “Eurodollar Rate.” The Administrative Agent’s determination shall be presumed to be correct, absent manifest error, and shall be binding on the Loan Parties.

(b)

Interest Rate Unascertainable, Inadequate or Unfair .  In the event that:  (i) the Administrative Agent determines that adequate and fair means do not exist for ascertaining the applicable interest rates by reference to which the Eurodollar Rate then being determined is to be fixed; or (ii) the Requisite Lenders notify the Administrative Agent that the Eurodollar Rate for any Interest Period will not adequately reflect the cost to the Lenders of

 

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making or maintaining such Loans for such Interest Period, the Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon each Eurodollar Rate Loan will automatically, on the last day of the current Interest Period for such Loan, convert into a Base Rate Loan and the obligations of the Lenders to make Eurodollar Rate Loans or to convert Base Rate Loans into Eurodollar Rate Loans shall be suspended until the Administrative Agent shall notify the Borrower that the Requisite Lenders have determined that the circumstances causing such suspension no longer exist.

(c)

Increased Costs .  If at any time any Lender shall determine that the introduction of or any change in or in the interpretation of any law, treaty or governmental rule, regulation or order (other than any change by way of imposition or increase of reserve requirements included in determining the Eurodollar Rate) or the compliance by such Lender with any guideline, request or directive from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost, other than Taxes specifically addressed by, or taxes specifically treated as excluded by, Section 2.14 , to such Lender of agreeing to make or making, funding or maintaining any Eurodollar Rate Loans, then the Borrower shall from time to time, upon demand to the Borrower by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost.  A certificate as to the amount of such increased cost, submitted to the Borrower and the Administrative Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error.

(d)

Illegality .  Notwithstanding any other provision of this Agreement, if any Lender determines that the introduction of or any change in or in the interpretation of any law, treaty or governmental rule, regulation or order after the date of this Agreement shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate Loans, then, on notice thereof and demand therefor by such Lender to the Borrower through the Administrative Agent, (i) the obligation of such Lender to make or to continue Eurodollar Rate Loans and to convert Base Rate Loans into Eurodollar Rate Loans shall be suspended, and each such Lender shall make a Base Rate Loan as part of any requested Borrowing of Eurodollar Rate Loans and (ii) if the affected Eurodollar Rate Loans are then outstanding, the Borrower shall immediately convert each such Loan into a Base Rate Loan.  If at any time after a Lender gives notice under this Section 2.12(d) such Lender determines that it may lawfully make Eurodollar Rate Loans, such Lender shall promptly give notice of that determination to the Borrower and the Administrative Agent, and the Administrative Agent shall promptly transmit the notice to each other Lender.  The Borrower’s right to request, and such Lender’s obligation, if any, to make Eurodollar Rate Loans shall thereupon be restored.

(e)

Breakage Costs .  In addition to all amounts required to be paid by the Borrower pursuant to Section 2.8 , the Borrower shall compensate each Lender, upon demand, for all losses, expenses and liabilities (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Lender’s Eurodollar Rate Loans to the Borrower but excluding any loss of the Applicable Margin on the relevant Loans) which that Lender may sustain (i) if for any reason a proposed Borrowing, conversion into or continuation of Eurodollar Rate Loans does not occur on

 

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a date specified therefor in a Notice of Borrowing or a Notice of Conversion or Continuation given by the Borrower or in a telephonic request by it for borrowing or conversion or continuation or a successive Interest Period does not commence after notice therefor is given pursuant to Section 2.9 , (ii) if for any reason any Eurodollar Rate Loan is prepaid (including mandatorily pursuant to Section 2.7 or Section 2.9 ) on a date which is not the last day of the applicable Interest Period, (iii) as a consequence of a required conversion of a Eurodollar Rate Loan to a Base Rate Loan as a result of any of the events indicated in Section 2.12(d) , or (iv) as a consequence of any failure by the Borrower to repay Eurodollar Rate Loans when required by the terms hereof.  The Lender making demand for such compensation shall deliver to the Borrower concurrently with such demand a written statement as to such losses, expenses and liabilities, and this statement shall be conclusive as to the amount of compensation due to that Lender, absent manifest error.

Section 2.13

Capital Adequacy .  If at any time any Lender determines that (a) the adoption of or any change in or in the interpretation of any law, treaty or governmental rule, regulation or order after the date of this Agreement regarding capital adequacy, (b) compliance with any such law, treaty, rule, regulation, or order, or (c) compliance with any guideline or request or directive from any central bank or other Governmental Authority (whether or not having the force of law) shall have the effect of reducing the rate of return on such Lender’s (or any corporation controlling such Lender’s) capital as a consequence of its obligations hereunder or to a level below that which such Lender or such corporation could have achieved but for such adoption, change, compliance or interpretation, then, upon demand from time to time by such Lender to the Borrower (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender for such reduction.  A certificate as to such amounts submitted to the Borrower and the Administrative Agent by such Lender shall be conclusive and binding for all purposes, absent manifest error.

Section 2.14

Taxes .

(a)

Any and all payments by any Loan Party under each Loan Document or the Orders shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding (i) in the case of each Lender and the Administrative Agent taxes measured by its net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction (or any political subdivision thereof) under the laws of which such Lender or the Administrative Agent (as the case may be) is organized, (ii) in the case of each Lender, taxes measured by its net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction in which such Lender’s lending office is located or any other jurisdiction in which such Lender is engaged in business and (iii) any branch profits or capital taxes imposed by the United States or any similar tax imposed in any other jurisdiction in which any Loan Party is located (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “ Taxes ”).  If any Taxes shall be required by law to be deducted from or in respect of any sum payable under any Loan Document or the Orders to any Lender or the Administrative Agent (“ Withholding Taxes ”) (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions of Withholding Taxes applicable to additional sums payable under this Section 2.14 ) such Lender or the

 

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Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the relevant Loan Party shall make such deductions, (iii) the relevant Loan Party shall pay the full amount deducted to the relevant taxing authority or other authority in accordance with applicable law, and (iv) the relevant Loan Party shall deliver to the Administrative Agent evidence of such payment; provided, however , that no Loan Party shall be required to increase any sum payable pursuant to clause (i) above with respect to any Withholding Taxes that are attributable solely to any Lender’s or Administrative Agent’s failure to comply with the requirements of paragraph (f) of this Section 2.14 ; provided if such Lender or Administrative Agent shall have satisfied the requirements of paragraph (f) of this Section 2.14 on the Closing Date, or on the date of the Assignment and Acceptance pursuant to which it became a Lender, as applicable, nothing in this last sentence of paragraph (a) of Section 2.14 shall relieve the Loan Parties of their obligation to pay any additional amounts pursuant to this Section 2.14 in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation administration or application thereof, such Lender or Administrative Agent is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing such Lender’s or Administrative Agent’s entitlement to an exemption from, or a reduced rate of, United States withholding taxes.

(b)

In addition, each Loan Party agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies imposed by any state, county, city or other political subdivision within the United States or by any applicable foreign jurisdiction, and all liabilities with respect thereto, in each case arising from any payment made under any Loan Document or the Orders or from the execution, delivery or registration of, or otherwise with respect to, any Loan Document or the Orders (collectively, “ Other Taxes ”).

(c)

Each Loan Party shall, jointly and severally, indemnify each Lender and the Administrative Agent for the full amount of Withholding Taxes and Other Taxes (including any Withholding Taxes or Other Taxes imposed by any Governmental Authority on amounts payable under this Section 2.14 ) paid by such Lender or the Administrative Agent (as the case may be) and any liability (including for penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Withholding Taxes or Other Taxes were correctly or legally asserted; provided, however , that no Loan Party shall be required to indemnify any Lender or Administrative Agent for any Withholding Taxes or Other Taxes that are attributable solely to any Lender’s or Administrative Agent’s failure to comply with the requirements of paragraph (f) of this Section 2.14 ; provided , if such Lender or Administrative Agent shall have satisfied the requirements of paragraph (f) of this Section 2.14 on the Closing Date, or on the date of the Assignment and Acceptance pursuant to which it became a Lender, as applicable, nothing in this penultimate sentence of paragraph (c) of this Section 2.14 shall relieve the Loan Parties of their obligation to pay any additional amounts pursuant to this Section 2.14 in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation administration or application thereof, such Lender or Administrative Agent is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing such Lender’s or Administrative Agent’s entitlement to an exemption from, or a reduced rate of, United States withholding taxes.  This indemnification shall be made within thirty (30) days from the date such Lender or the Administrative Agent (as the case may be) makes written demand therefor.

 

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(d)

Within thirty (30) days after the date of any payment of Withholding Taxes or Other Taxes by any Loan Party, the Borrower shall furnish to the Administrative Agent, at its address referred to in Section 13.8 , the original or a certified copy of a receipt evidencing payment thereof.

(e)

Without prejudice to the survival of any other agreement of any Loan Party hereunder, the agreements and obligations of such Loan Party contained in this Section 2.14 shall survive the payment in full of the Obligations.

(f)

Prior to the Closing Date in the case of each Non-U.S. Lender that is a signatory hereto, and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other Non-U.S. Lender and from time to time thereafter if reasonably requested in writing by the Borrower or the Administrative Agent, each Non-U.S. Lender that is entitled at such time to an exemption from United States withholding tax, or that is subject to such tax at a reduced rate under an applicable tax treaty, shall provide the Administrative Agent and the Borrower with two completed copies of:  (i) Form W-8ECI (claiming exemption from withholding because the income is effectively connected with a U.S. trade or business) (or any successor form); (ii) Form W-8BEN (claiming exemption from, or a reduction of withholding tax under an income tax treaty) (or any successor form); (iii) in the case of a Non-U.S. Lender claiming exemption under Sections 871(h) or 881(c) of the Code, a Form W-8BEN (claiming exemption from withholding under the portfolio interest exemption) (or any successor form); or (iv) any other applicable form, certificate or document prescribed by the IRS certifying as to such Non-U.S. Lender’s entitlement to such exemption from United States withholding tax or reduced rate with respect to all payments to be made to such Non-U.S. Lender under the Loan Documents.  In addition, each Non-U.S. Lender shall deliver such forms upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender.  Each Non-U.S. Lender shall promptly notify the Administrative Agent and the Borrower at any time it determines that it is no longer in a position to provide any previously delivered form to the Administrative Agent and the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purposes).  Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments under any Loan Document to or for a Non-U.S. Lender are not subject to United States withholding tax or are subject to such tax at a rate reduced by an applicable tax treaty, the Loan Parties or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate.

(g)

Prior to the Closing Date in the case of each U.S. Lender that is a signatory hereto, and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other U.S. Lender and from time to time thereafter if reasonably requested in writing by the Borrower or the Administrative Agent, each U.S. Lender that is entitled at such time to an exemption from United States backup withholding tax, shall provide the Administrative Agent and the Borrower with two completed copies of Form W-9 (or any successor form).  In addition, each U.S. Lender shall deliver such forms upon the obsolescence or invalidity of any form previously delivered by such U.S. Lender.  Each U.S. Lender shall promptly notify the Administrative Agent and the Borrower at any time it determines that it is no longer in a position to provide any previously delivered form to the Administrative Agent and the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purposes).  Unless the Borrower and the Administrative Agent have

 

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received forms or other documents reasonably satisfactory to them indicating that payments under any Loan Document to or for a U.S. Lender are not subject to United States backup withholding tax, the Loan Parties or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate.

(h)

Any Lender claiming any additional amounts payable pursuant to this Section 2.14 shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its applicable lending office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts which would be payable or may thereafter accrue and would not, in the sole determination of such Lender, be otherwise disadvantageous to such Lender.

(i)

If any Administrative Agent or Lender receiving a payment under this Section 2.14 with respect to Withholding Taxes or Other Taxes or liabilities arising therefrom subsequently receives a refund from any Governmental Authority which is specifically attributable to such payment, such Administrative Agent or Lender shall promptly pay the amount of such refund to the Loan Party that initially made such payment.

ARTICLE III

CONDITIONS TO LOANS

Section 3.1

Conditions Precedent to Initial Loans .  The obligation of each Lender to make the Loans requested to be made by it on the Closing Date is subject to the satisfaction of all of the following conditions precedent:

(a)

Bankruptcy Court.

(i)

The Bankruptcy Court shall have entered the Interim Order, certified by the Clerk of the Bankruptcy Court as having been duly entered, within three (3) Business Days of the Petition Date, in form and substance satisfactory to the Administrative Agent (at the direction of the Requisite Lenders), and entered on notice to such parties as may be satisfactory to the Administrative Agent (at the direction of the Requisite Lenders), inter alia (i) authorizing and approving the Loan Documents and the transactions contemplated thereby, including, without limitation, the payment of all fees, costs and expenses referred to herein and in the Fee Letter; (ii) granting (w) super-priority status to the Obligations pursuant to section 364(c)(1) of the Bankruptcy Code, (x) liens in all unencumbered assets of the Borrower and the Guarantors pursuant to section 364(c)(2) of the Bankruptcy Code, (y) junior liens on all encumbered assets of the Borrower and the Guarantors pursuant to section 364(c)(3) of the Bankruptcy Code, and (z) priming Liens on all assets of the Borrower and the Guarantors, that is subject to a perfected lien or security interest securing the Prepetition Credit Agreement, pursuant to section 364(d)(1) of the Bankruptcy Code (the preceding clauses ( w), (x), (y) and (z) , in each case, subject to the Carve-Out); (iii) lifting or modifying the automatic stay under section 362 of the Bankruptcy Code to permit the Borrower and the Guarantors to perform their obligations and the Lenders to exercise their rights and remedies with respect to the Facility; (iv) authorizing the use of cash collateral pursuant to section

 

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363(c) of the Bankruptcy Code; and (v) providing adequate protection to the Prepetition Secured Lenders pursuant to sections 361(a), 362(d), 363(c) and 364(d)(1) of the Bankruptcy Code and authorizing the payment of Adequate Protection Obligations, which Interim Order shall be in full force and effect, shall not have been reversed, vacated or stayed and shall not have been amended, supplemented or otherwise modified without the prior written consent of the Administrative Agent (at the direction of the Requisite Lenders).  The Interim Order shall also include such other terms and conditions as are customary for transactions of this type, as determined by the Loan Parties and the Administrative Agent (at the direction of the Requisite Lenders) and in any event shall (a) approve the Borrower’s and Guarantors’ waiver of any and all claims and causes of action against the Prepetition Secured Lenders and the Prepetition Senior Noteholders, including, but not limited to, claims for preference, fraudulent conveyance or other claims arising under the Bankruptcy Code and claims regarding the validity, priority, perfection or avoidability of the secured claims of the Prepetition Secured Lenders and the Prepetition Credit Agreement Agent, subject to the right of any official unsecured creditors’ committee (and in the event that no official creditors’ committee is appointed, any party in interest (other than the Borrower or the Guarantors)), to pursue such claims, (b) establish a deadline of the earlier of (i) seventy-five (75) days from the Petition Date and (ii) sixty (60) days from the appointment of an official unsecured creditors’ committee for any statutorily appointed unsecured creditors’ committee (and in the event that no unsecured creditors’ committee is appointed, any party in interest (other than the Borrower and the Guarantors)) to bring any cause of action against the Prepetition Secured Lenders or the Prepetition Senior Noteholders based on the Prepetition Credit Agreement or the Prepetition Senior Indenture, as applicable, or any acts or omissions of the Prepetition Secured Lenders that occurred prior to the Petition Date, (c) effective upon entry of the Final Order, approve the waiver by the Borrower and the Guarantors of all surcharge claims under section 506(c) of the Bankruptcy Code or otherwise and (d) effective upon entry of the Final Order, provide for a lien on the proceeds of avoidance actions under chapter 5 of the Bankruptcy Code.

(ii)

All motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this Agreement and the approval thereof shall be in form and substance satisfactory to the Administrative Agent (at the direction of the Requisite Lenders), and the Administrative Agent (at the direction of the Requisite Lenders) shall be satisfied with the form and amount of the Adequate Protection Obligations; and

(iii)

All First Day Orders and related orders (other than the Interim Order) entered by the Bankruptcy Court in the Case and all First Day Orders and related orders and the motions in support thereof shall be in form and substance satisfactory to the Administrative Agent (at the direction of the Requisite Lenders).

(b)

Certain Documents .  The Administrative Agent shall have received on or prior to the Closing Date each of the following, each dated the Closing Date unless otherwise agreed to by the Administrative Agent (at the direction of the Requisite Lenders), in form and substance satisfactory to the Administrative Agent (at the direction of the Requisite Lenders) and

 

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each of their respective counsel, and in sufficient copies for each of the Administrative Agent and each Lender:

(i)

this Agreement, duly executed and delivered by each of the Loan Parties and, for the account of each Lender requesting the same, a Note or Notes of the Borrower conforming to the requirements set forth herein;

(ii)

a copy of the Plan Support Agreement, duly executed and delivered by the Loan Parties;

(iii)

copies of UCC search reports as of a recent date listing all effective financing statements and/or financing change statements that name any Loan Party or Subsidiary of a Loan Party as debtor, together with copies of such financing statements, and/or financing change statements none of which shall cover the Collateral (except for those which shall be terminated on the Closing Date and Liens permitted under Section 8.2 );

(iv)

(A) share certificates representing all certificated Stock being pledged pursuant to this Agreement and stock powers for such share certificates executed in blank, as the Administrative Agent (at the direction of the Requisite Lenders) may require; and (B) instruments representing such of the Pledged Notes pledged pursuant to this Agreement as shall be requested by the Administrative Agent (at the direction of the Requisite Lenders), duly endorsed in favor of the Administrative Agent or in blank; provided, however that if the share certificates or instruments described in clauses (A) and (B) above have been delivered to the Prepetition Credit Agreement Agent, the Loan Parties shall be deemed to have satisfied the condition set forth in this Section 3.1(b) ggg , subject to Section 7.16(b ggg .

(v)

a favorable opinion of Willkie Farr & Gallagher LLP, counsel to the Loan Parties, in substantially the form of Exhibit G , addressed to the Administrative Agent and the Lenders;

(vi)

a copy of the articles or certificate of incorporation (or equivalent Constituent Document) of each Loan Party, certified as of a recent date by the Secretary of State or other Governmental Authority of the state of organization of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party;

(vii)

a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party, (B) the by-laws (or equivalent Constituent Document) of such Loan Party as in effect on the date of such certification, (C) the resolutions of such Loan Party’s board of directors (or equivalent governing body) approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and

 

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the Orders and (D) the certificate of incorporation (or equivalent Constituent Document) of such Loan Party as in effect on the date of such certification;

(viii)

a certificate of a Responsible Officer of the Borrower to the effect that the conditions set forth in Section 3.1 have been satisfied;

(ix)

evidence satisfactory to the Administrative Agent (at the direction of the Requisite Lenders) that the amount, types and terms and conditions of insurance policies and bonding maintained by the Loan Parties required by Section 7.5 are in full force and effect, together with endorsements naming (A) the Administrative Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as applicable, under all liability policies maintained by each Loan Party and (B) the Administrative Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as applicable, under all insurance policies maintained with respect to the properties of each Loan Party;

(x)

evidence satisfactory to the Administrative Agent (at the direction of the Requisite Lenders) (A) of the receipt of all necessary consents, authorizations and approvals of each Governmental Authority or third party necessary in connection with this Agreement and the transactions contemplated hereby (without the imposition of any conditions that are not reasonably acceptable to the Administrative Agent (at the direction of the Requisite Lenders)), and that the same continue to remain in effect; and (B) that no law or regulation shall be applicable in the judgment of the Administrative Agent (at the direction of the Requisite Lenders) that restrains, prevents or imposes materially adverse conditions upon the Facility or the transactions contemplated thereby;

(xi)

a copy of the Trademark Security Agreement, duly executed and delivered by each Loan Party, and such other documents duly executed by each Loan Party as the Administrative Agent (at the direction of the Requisite Lenders) may request with respect to the perfection of its security interests (for the benefits of the Lenders) in such Collateral;

(xii)

Projections satisfactory to the Requisite Lenders in their sole discretion and a certificate of a Responsible Financial Officer of the Loan Parties certifying that the Projections have been prepared by the Loan Parties in light of the past operations of their business, and reflect projections for Fiscal Year 2010 beginning July [15], 2009 on a month-by-month basis and that the Projections are based upon estimates and assumptions stated therein, all of which the Loan Parties believe to be reasonable and fair in light of current conditions and current facts known to the Loan Parties and, as of the Closing Date, reflect the Loan Parties’ good faith and reasonable estimates of the future financial performance of the Loan Parties and their Subsidiaries and of the other information projected therein for the periods set forth therein;

(xiii)

an operating budget setting forth the projected financial operations of the Loan Parties and their Subsidiaries on a weekly basis for the period from July [15], 2009 to September 30, 2009, which budget shall be in form and substance satisfactory to the Administrative Agent (at the direction of the Requisite Lenders) and shall in any

 

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event include available cash, cash flow, trade payables, total expenditures and capital expenditures;

(xiv)

a copy of the Corporate Chart dated as of the Closing Date and a certificate of Responsible Officer of the Borrower certifying that such Corporate Chart is true, correct, complete and current as of the Closing Date;

(xv)

a Perfection Certificate of the Loan Parties and their Subsidiaries, satisfactory to the Requisite Lenders in their sole discretion, and certified by a Responsible Officer to be accurate and complete as of the Closing Date;

(xvi)

a funds flow memorandum, dated as of the Closing Date and executed by the Borrower (the “ Funds Flow Memorandum ”) specifying (i) the amount of Prepetition Credit Agreement Obligations to be paid on the Closing Date, (ii) the other amounts to be paid on the Closing Date from the proceeds of the initial Borrowing and (iii) the wiring or other payment instructions in respect of such payments; and

(xvii)

such other certificates, documents, agreements and information respecting any Loan Party as any Lender through the Administrative Agent may reasonably request.

(c)

Fees and Expenses Paid.  There shall have been paid to the Commitment Parties and the Lenders, as applicable, all fees, costs and expenses (including reasonable fees, costs and expenses of counsel) due and payable on or before the Closing Date (including all such fees described in the Fee Letter and the other Loan Documents).

(d)

Material Adverse Effect.  There shall have occurred no event which has resulted in or could reasonably be expected to result in a Material Adverse Effect.

(e)

Litigation.  Other than the Case, or as stayed upon the commencement of the Case, there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) could reasonably be expected to result in a Material Adverse Effect, (ii) restrains, prevents or imposes or could reasonably be expected to impose materially adverse conditions upon the Facility, the Collateral or the transactions contemplated thereby, or (iii) challenges, or could reasonably be expected to alter, the priorities set forth in Section 4.18 .

(f)

Priority and Security.  The Administrative Agent, for the benefit of the Secured Parties, shall have a valid and perfected lien on and security interest in the Collateral (subject to Liens permitted under Section 8.2), with the priorities as set forth in Section 4.18 .

(g)

Certain Laws .  There shall not exist any law, regulation, ruling, judgment, order, injunction or other restraint that prohibits, restricts or imposes a materially adverse condition on the Borrower or the Guarantors, the Facility or the exercise by the Administrative Agent, the Lenders or the other Secured Parties of their rights as secured parties with respect to the Collateral.

 

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(h)

Disclosure .  Nothing contained in any public disclosure made by any Loan Party or any of its Subsidiaries after the date hereof, or in any information disclosed to the Administrative Agent or the Lenders by any Loan Party or its Subsidiaries after such date, shall lead the Administrative Agent or any Lender to determine that, and neither the Administrative Agent nor any Lender shall have become aware of any fact or condition not disclosed to them prior to the date hereof which shall lead the Administrative Agent or the Requisite Lenders to determine that, the Borrower’s or any other Loan Party’s financial condition, operations, performance or properties are different in any material adverse respect from that derived by the Administrative Agent or such Lenders from the public filings of the Loan Parties or the information disclosed in writing to the Administrative Agent or such Lender prior to such date.

(i)

Repayment of Prepetition Credit Agreement Obligations . Prior to or concurrently with the Closing Date, the Borrower shall have paid or caused to be paid, indefeasibly in full in cash to the Prepetition Secured Lenders an amount equal to, and certified by the Borrower in the Funds Flow Memorandum to be equal to, the Prepetition Credit Agreement Obligations; and the Borrower shall have provided to the Administrative Agent evidence, satisfactory to the Administrative Agent (at the direction of the Requisite Lenders), that the Prepetition Credit Agreement Repayment Date has occurred and that the Prepetition Credit Agreement has been terminated and the liens in respect thereof have been released, in each case on or prior to the Closing Date.

Section 3.2

Conditions Precedent to Each Loan .  The obligation of each Lender on any date (including the Closing Date) to make any Loan is subject to the satisfaction of all of the following conditions precedent:

(a)

Request for Borrowing.  With respect to any Loan, the Administrative Agent shall have received a duly executed Notice of Borrowing as required under Section 2.2 .

(b)

Representations and Warranties; No Defaults.  The following statements shall be true on the date of such Loan, both before and after giving effect thereto and to the application of the proceeds therefrom:

(i)

(A) The representations and warranties set forth herein and in the other Loan Documents shall be true and correct on and as of the Closing Date and (B) the representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects on and as of any such date after the Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date ( provided, however , in each case in this clause (B) , if any such representation or warranty shall be subject of a qualification as to “materiality,” such qualified representation and warranty shall be true and correct in all respects on and as of such date); and

(ii)

no Default or Event of Default shall have occurred and be continuing.

 

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(c)

No Legal Impediments.  The making of the Loans on such date (i) does not violate any Requirement of Law applicable to any Loan Party on the date of or immediately following the making of such Loan and (ii) is not enjoined temporarily, preliminarily or permanently.

(d)

Final Order.  After the Closing Date, the Bankruptcy Court shall have entered the Final Order, in form and substance satisfactory to the Requisite Lenders, certified by the Clerk of the Bankruptcy Court as having been duly entered, and the Final Order shall be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed without the prior written consent of the Administrative Agent (at the direction of the Requisite Lenders).  

(e)

Additional Matters.  The Administrative Agent shall have received such additional documents, information and materials as any Lender or the Administrative Agent (at the direction of the Requisite Lenders) may reasonably request.

(f)

No Material Adverse Change .  No Material Adverse Change shall have occurred.

(g)

Compliance with Laws .  There shall not exist any law, regulation, ruling, judgment, order, injunction or other restraint that prohibits, restricts or imposes materially adverse conditions on the Loan Parties, the Facility or the exercise by the Administrative Agent, the Lenders or the other Secured Parties of their rights as secured parties with respect to the Collateral.

(h)

Compliance with Approved Budget .  The making of such Loan complies with the Approved Budget.

Each submission by the Borrower to the Administrative Agent of a Notice of Borrowing and the acceptance by the Borrower of the proceeds of each Loan requested therein shall be deemed to constitute a making of the representations and warranties by the Borrower as to the matters specified in Section 3.2 on the date of the making of such Loan .

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

To induce the Lenders and the Administrative Agent to enter into this Agreement, the Borrower represents and warrants as to itself and as to each other Loan Party and its Subsidiaries, and each other Loan Party represents and warrants as to such Loan Party and its Subsidiaries, to the Lenders and the Administrative Agent that, on and as of the date hereof, on and as of the Closing Date, after giving effect to the making of the Loans and other financial accommodations on the Closing Date and on and as of each date as required by Section 3.2.

Section 4.1

Corporate Existence; Compliance with Law .  Each Loan Party and each of its Subsidiaries (a) is duly incorporated, formed or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization; (b) is duly qualified to do business as a foreign entity and in good standing under the laws of each

 

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jurisdiction where such qualification is necessary, except where the failure to be so qualified or in good standing could not in the aggregate have a Material Adverse Effect; (c) has all requisite Business Entity power and authority and the legal right to own, pledge, mortgage and operate its properties, to lease the property it operates under lease and to conduct its business as now or currently proposed to be conducted; (d) is in compliance with its Constituent Documents and the Orders and all other orders of the Bankruptcy Court; (e) is in compliance with all applicable Requirements of Law, except where the failure to be in compliance could not in the aggregate have a Material Adverse Effect; and (f) has all necessary licenses, permits, consents or approvals from or by, has made all necessary filings with, and has given all necessary notices to, each Governmental Authority having jurisdiction, to the extent required for such ownership, operation and conduct, except for licenses, permits, consents, approva