Exhibit
10.1


Execution Copy


 




 





CREDIT AGREEMENT


 


DATED AS OF JANUARY 24,
2005


 


by and among


 


RESOLUTION PERFORMANCE PRODUCTS
INC.,


 


RESOLUTION PERFORMANCE PRODUCTS
LLC,


 


and


 


RESOLUTION EUROPE B.V.


 


and


 


THE OTHER PERSONS PARTY HERETO
THAT ARE


 


DESIGNATED AS CREDIT PARTIES


 


and


 


GENERAL ELECTRIC CAPITAL
CORPORATION,


 


as US Agent, US L/C Issuer,
Collateral Agent and a US Lender


 


and


 


GE LEVERAGED LOANS LIMITED,


 


as Netherlands Agent,
Netherlands L/C Issuer, Netherlands Security Trustee and a Netherlands Lender


 


and


 


THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO


as Lenders


 


and


 


GECC CAPITAL MARKETS GROUP,
INC.


as Arranger


 





















 


TABLE
OF CONTENTS


 


	
  Section 1.

  	
  AMOUNTS AND TERMS OF LOANS

  	
   

  
	
  1.1.

  	
  US Revolving Loans

  	
   

  
	
  1.2.

  	
  Netherlands Revolving Loans

  	
   

  
	
  1.3.

  	
  Interest and Applicable Margins

  	
   

  
	
  1.4.

  	
  Fees

  	
   

  
	
  1.5.

  	
  Payments

  	
   

  
	
  1.6.

  	
  Prepayments

  	
   

  
	
  1.7.

  	
  Maturity

  	
   

  
	
  1.8.

  	
  Borrowers Eligible US Accounts

  	
   

  
	
  1.9.

  	
  Eligible US Inventory

  	
   

  
	
  1.10.

  	
  Eligible
  US PPE

  	
   

  
	
  1.11.

  	
  Eligible Netherlands Accounts

  	
   

  
	
  1.12.

  	
  Omitted

  	
   

  
	
  1.13.

  	
  Loan
  Accounts

  	
   

  
	
  1.14.

  	
  Yield Protection; Illegality

  	
   

  
	
  1.15.

  	
  Taxes

  	
   

  
	
  1.16.

  	
  Borrower Representatives

  	
   

  
	
  1.17.

  	
  Currency Conversions

  	
   

  
	
  1.18.

  	
  Judgment Currency; Contractual Currency

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
  2.1.

  	
  Compliance with Laws and Contractual
  Obligations

  	
   

  
	
  2.2.

  	
  Insurance; Damage to or Destruction of
  Collateral

  	
   

  
	
  2.3.

  	
  Inspection; Lender Meeting

  	
   

  
	
  2.4.

  	
  Organizational Existence

  	
   

  
	
  2.5.

  	
  Environmental Matters

  	
   

  
	
  2.6.

  	
  Landlords’ Agreements, Mortgagee
  Agreements, Bailee Letters and Real Estate Purchases

  	
   

  
	
  2.7.

  	
  Conduct of Business

  	
   

  
	
  2.8.

  	
  Supplemental Disclosure

  	
   

  
	
  2.9.

  	
  Cash
  Management

  	
   

  
	
  2.10.

  	
  Netherlands Pledge of Accounts

  	
   

  
	
  2.11.

  	
  Further Assurances

  	
   

  
	
  2.12.

  	
  Spanish Security Agreement

  	
   

  
	
  2.13.

  	
  Ancillary Texas Buildings

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.

  	
  NEGATIVE COVENANTS

  	
   

  
	
  3.1.

  	
  Indebtedness

  	
   

  
	
  3.2.

  	
  Liens and Related Matters

  	
   

  
	
  3.3.

  	
  Investments

  	
   

  
	
  3.4.

  	
  Contingent Obligations

  	
   

  
	
  3.5.

  	
  Restricted Payments

  	
   

  
	
  3.6.

  	
  Restriction on Fundamental Changes

  	
   

  



 





















 


	
  3.7.

  	
  Disposal of Assets or Subsidiary Stock

  	
   

  
	
  3.8.

  	
  Transactions with Affiliates

  	
   

  
	
  3.9.

  	
  Conduct of Business

  	
   

  
	
  3.10.

  	
  Changes Relating to Indebtedness

  	
   

  
	
  3.11.

  	
  Fiscal Year

  	
   

  
	
  3.12.

  	
  Press Release; Public Offering Materials

  	
   

  
	
  3.13.

  	
  Omitted

  	
   

  
	
  3.14.

  	
  Bank
  Accounts

  	
   

  
	
  3.15.

  	
  Hazardous Materials

  	
   

  
	
  3.16.

  	
  Employee
  Matters

  	
   

  
	
  3.17.

  	
  Sale-Leasebacks

  	
   

  
	
  3.18.

  	
  Prepayments of Other Indebtedness; Interest
  Payments

  	
   

  
	
  3.19.

  	
  OFAC

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.

  	
  FINANCIAL REPORTING

  	
   

  
	
  4.1.

  	
  Financial Statements and Other Reports

  	
   

  
	
  4.2.

  	
  Accounting Terms; Utilization of GAAP for Purposes
  of Calculations under Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  5.1.

  	
  Disclosure

  	
   

  
	
  5.2.

  	
  No Material Adverse Effect

  	
   

  
	
  5.3.

  	
  No Conflict

  	
   

  
	
  5.4.

  	
  Organization, Powers, Capitalization and
  Good Standing

  	
   

  
	
  5.5.

  	
  Financial Statements and Projections

  	
   

  
	
  5.6.

  	
  Intellectual Property

  	
   

  
	
  5.7.

  	
  Investigations, Audits, Etc.

  	
   

  
	
  5.8.

  	
  Employee Matters

  	
   

  
	
  5.9.

  	
  Solvency

  	
   

  
	
  5.10.

  	
  Litigation; Adverse Facts

  	
   

  
	
  5.11.

  	
  Use of Proceeds; Margin Regulations

  	
   

  
	
  5.12.

  	
  Ownership of Property; Liens

  	
   

  
	
  5.13.

  	
  Environmental Matters

  	
   

  
	
  5.14.

  	
  ERISA

  	
   

  
	
  5.15.

  	
  Brokers

  	
   

  
	
  5.16.

  	
  Deposit and Disbursement Accounts

  	
   

  
	
  5.17.

  	
  Agreements and Other Documents

  	
   

  
	
  5.18.

  	
  Insurance

  	
   

  
	
  5.19.

  	
  Credit Agreement Classification;
  Subordination

  	
   

  
	
  5.20.

  	
  Anti-Terrorism

  	
   

  
	
  5.21.

  	
  Omitted

  	
   

  
	
  5.22.

  	
  US Finance Corp

  	
   

  
	
  5.23.

  	
  Omitted

  	
   

  
	
  5.24.

  	
  Omitted

  	
   

  
	
  5.25.

  	
  Designated Senior Debt

  	
   

  
	
  5.26.

  	
  Taxes and Tax Returns

  	
   

  



 


ii





















 


	
  Section 6.

  	
  DEFAULT, RIGHTS AND REMEDIES

  	
   

  
	
  6.1.

  	
  Event of Default

  	
   

  
	
  6.2.

  	
  Suspension or Termination of Commitments

  	
   

  
	
  6.3.

  	
  Acceleration and other Remedies

  	
   

  
	
  6.4.

  	
  Performance by Applicable Agent, Collateral
  Agent and Netherlands Security Trustee

  	
   

  
	
  6.5.

  	
  Application of Proceeds

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.

  	
  CONDITIONS TO LOANS

  	
   

  
	
  7.1.

  	
  Conditions to Initial Loans

  	
   

  
	
  7.2.

  	
  Conditions to All Loans

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.

  	
  ASSIGNMENT AND PARTICIPATION

  	
   

  
	
  8.1.

  	
  Assignment and Participations

  	
   

  
	
  8.2.

  	
  Agents and Collateral Agent

  	
   

  
	
  8.3.

  	
  Set Off and Sharing of Payments

  	
   

  
	
  8.4.

  	
  Disbursement of Funds

  	
   

  
	
  8.5.

  	
  Disbursements of Advances; Payment

  	
   

  
	
  8.6.

  	
  Netherlands Agent as Netherlands Security
  Trustee

  	
   

  
	
  8.7.

  	
  Collateral Allocation Mechanism

  	
   

  
	
  8.8.

  	
  Parallel Debt

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.

  	
  MISCELLANEOUS

  	
   

  
	
  9.1.

  	
  Indemnities

  	
   

  
	
  9.2.

  	
  Amendments and Waivers

  	
   

  
	
  9.3.

  	
  Notices

  	
   

  
	
  9.4.

  	
  Failure or Indulgence Not Waiver; Remedies
  Cumulative

  	
   

  
	
  9.5.

  	
  Marshaling; Payments Set Aside

  	
   

  
	
  9.6.

  	
  Severability

  	
   

  
	
  9.7.

  	
  Lenders’ Obligations Several; Independent
  Nature of Lenders’ Rights

  	
   

  
	
  9.8.

  	
  Headings

  	
   

  
	
  9.9.

  	
  Applicable
  Law

  	
   

  
	
  9.10.

  	
  Successors and Assigns

  	
   

  
	
  9.11.

  	
  No Fiduciary Relationship; Limited
  Liability

  	
   

  
	
  9.12.

  	
  Construction

  	
   

  
	
  9.13.

  	
  Confidentiality

  	
   

  
	
  9.14.

  	
  CONSENT TO JURISDICTION

  	
   

  
	
  9.15.

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
  9.16.

  	
  Survival of Warranties and Certain
  Agreements

  	
   

  
	
  9.17.

  	
  Entire
  Agreement

  	
   

  
	
  9.18.

  	
  Counterparts; Effectiveness

  	
   

  
	
  9.19.

  	
  Replacement of Lenders

  	
   

  
	
  9.20.

  	
  Delivery of Termination Statements and
  Mortgage Releases

  	
   

  
	
  9.21.

  	
  Mandatory
  Costs

  	
   

  
	
  9.22.

  	
  Subordination of Intercompany Debt

  	
   

  
	
  9.23.

  	
  Professional Market Party

  	
   

  



 


iii





















 


	
  Section 10.

  	
  US CROSS-GUARANTY

  	
   

  
	
  10.1.

  	
  US
  Cross-Guaranty

  	
   

  
	
  10.2.

  	
  Waivers by US Borrowers

  	
   

  
	
  10.3.

  	
  Benefit of Guaranty

  	
   

  
	
  10.4.

  	
  Postponement of Subrogation, Etc.

  	
   

  
	
  10.5.

  	
  Election of Remedies

  	
   

  
	
  10.6.

  	
  Limitation

  	
   

  
	
  10.7.

  	
  Contribution with Respect to US Guaranty
  Obligations

  	
   

  
	
  10.8.

  	
  Liability Cumulative

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.

  	
  NETHERLANDS CROSS-GUARANTY

  	
   

  
	
  11.1.

  	
  Netherlands Cross-Guaranty

  	
   

  
	
  11.2.

  	
  Waivers by Netherlands Borrowers

  	
   

  
	
  11.3.

  	
  Benefit of Guaranty

  	
   

  
	
  11.4.

  	
  Postponement of Subrogation, Etc.

  	
   

  
	
  11.5.

  	
  Election of Remedies

  	
   

  
	
  11.6.

  	
  Limitation

  	
   

  
	
  11.7.

  	
  Contribution with Respect to Netherlands
  Guaranty Obligations

  	
   

  
	
  11.8.

  	
  Liability Cumulative

  	
   

  



 


INDEX
OF APPENDICES


 


	
  Annexes

  	
   

  	
   

  	
   

  	
   

  
	
  Annex A

  	
   

  	
  -

  	
   

  	
  Definitions

  
	
  Annex B

  	
   

  	
  -

  	
   

  	
  Pro
  Rata Shares and Commitment Amounts

  
	
  Annex C

  	
   

  	
  -

  	
   

  	
  Closing
  Checklist

  
	
  Annex D

  	
   

  	
  -

  	
   

  	
  Pro
  Forma

  
	
  Annex E

  	
   

  	
  -

  	
   

  	
  Lenders’
  Bank Accounts

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit
  1.1(a)(i)

  	
   

  	
  -

  	
   

  	
  US Revolving
  Note

  
	
  Exhibit
  1.1(a)(ii)

  	
   

  	
  -

  	
   

  	
  Notice of US
  Revolving Credit Advance

  
	
  Exhibit
  1.1(c)

  	
   

  	
  -

  	
   

  	
  US Swing
  Line Note

  
	
  Exhibit
  1.1(d)

  	
   

  	
  -

  	
   

  	
  Request for
  Issuance of US Letter of Credit

  
	
  Exhibit
  1.2(a)(i)

  	
   

  	
  -

  	
   

  	
  Netherlands
  Revolving Note

  
	
  Exhibit
  1.2(a)(ii)

  	
   

  	
  -

  	
   

  	
  Notice of
  Netherlands Revolving Credit Advance

  
	
  Exhibit 1.2
  (c)

  	
   

  	
  -

  	
   

  	
  Request for
  Issuance of Netherlands Letter of Credit

  
	
  Exhibit
  1.3(e)

  	
   

  	
  -

  	
   

  	
  Notice of
  Conversion/Continuation

  
	
  Exhibit
  2.6(a)

  	
   

  	
  -

  	
   

  	
  Form of
  Landlord Agreement

  
	
  Exhibit
  2.6(b)

  	
   

  	
  -

  	
   

  	
  Form of
  Bailee Letter

  
	
  Exhibit
  2.6(c)

  	
   

  	
  -

  	
   

  	
  Form of
  Mortgagee Waiver

  
	
  Exhibit
  4.1(d)(i)

  	
   

  	
  -

  	
   

  	
  Form of US
  Borrowing Base Certificate

  
	
  Exhibit
  4.1(d)(ii)

  	
   

  	
   

  	
   

  	
  Form of
  Netherlands Borrowing Base Certificate

  
	
  Exhibit
  4.1(k)

  	
   

  	
  -

  	
   

  	
  Compliance
  and Pricing Certificate

  
	
  Exhibit 8.1

  	
   

  	
  -

  	
   

  	
  Assignment
  Agreement

  



 


iv





















 


	
  Schedules

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.11(n)(1)

  	
   

  	
  -

  	
   

  	
  Concentration
  Limits of Certain Account Debtors

  
	
  Schedule 1.11(n)(2)

  	
   

  	
  -

  	
   

  	
  Certain
  Jurisdictions

  
	
  Schedule 1.17(d)

  	
   

  	
  -

  	
   

  	
  Rate
  Calculation

  
	
  Schedule 2.7

  	
   

  	
  -

  	
   

  	
  Corporate
  and Trade Names

  
	
  Schedule 3.1(f)

  	
   

  	
  -

  	
   

  	
  Existing
  Indebtedness

  
	
  Schedule 3.2

  	
   

  	
  -

  	
   

  	
  Liens

  
	
  Schedule 3.3

  	
   

  	
  -

  	
   

  	
  Existing
  Investments

  
	
  Schedule 3.4

  	
   

  	
  -

  	
   

  	
  Contingent
  Obligations

  
	
  Schedule 3.8

  	
   

  	
  -

  	
   

  	
  Affiliate
  Transactions

  
	
  Schedule 5.2

  	
   

  	
  -

  	
   

  	
  Operations

  
	
  Schedule 5.4(a)

  	
   

  	
  -

  	
   

  	
  Jurisdictions
  of Organization and Qualifications

  
	
  Schedule 5.4(b)

  	
   

  	
  -

  	
   

  	
  Capitalization

  
	
  Schedule 5.6

  	
   

  	
  -

  	
   

  	
  Intellectual
  Property

  
	
  Schedule 5.7

  	
   

  	
  -

  	
   

  	
  Investigations
  and Audits

  
	
  Schedule 5.8

  	
   

  	
  -

  	
   

  	
  Employee
  Matters

  
	
  Schedule 5.10

  	
   

  	
  -

  	
   

  	
  Litigation

  
	
  Schedule 5.11

  	
   

  	
  -

  	
   

  	
  Use of
  Proceeds

  
	
  Schedule 5.12

  	
   

  	
  -

  	
   

  	
  Real Estate

  
	
  Schedule 5.13

  	
   

  	
  -

  	
   

  	
  Environmental
  Matters

  
	
  Schedule 5.14(a)

  	
   

  	
  -

  	
   

  	
  ERISA

  
	
  Schedule 5.16

  	
   

  	
  -

  	
   

  	
  Deposit and
  Disbursement Accounts

  
	
  Schedule 5.17

  	
   

  	
  -

  	
   

  	
  Agreements
  and Other Documents

  
	
  Schedule 5.18

  	
   

  	
  -

  	
   

  	
  Insurance

  



 


v





















 


CREDIT AGREEMENT


 


This CREDIT
AGREEMENT is dated as of January 24, 2005, and entered into by and among
RESOLUTION PERFORMANCE PRODUCTS INC., a Delaware corporation (“Holdings”),
RESOLUTION PERFORMANCE PRODUCTS LLC, a Delaware limited liability company (“RPP
USA”, and together with any other Credit Party (as defined herein) that is
approved by the US Lenders to be a US Borrower hereunder, each, individually, a
“US Borrower” and, collectively and jointly and severally, the “US
Borrowers”), RESOLUTION EUROPE B.V., a company organized under the laws of
The Netherlands (“Netherlands Op. Co.”, and together with any other
Credit Party (as defined below) that is approved by the Netherlands Lenders to
be a Netherlands Borrower hereunder, each, individually, a “Netherlands
Borrower” and, collectively and jointly and severally, the “Netherlands
Borrowers” and together with the US Borrowers, each individually a “Borrower”
and collectively (but not jointly and severally) the “Borrowers”), the
other persons designated as “Credit Parties” on the signature pages
hereof, the financial institutions who are or hereafter become parties to this
Agreement as Lenders, GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation (in its individual capacity “GE Capital”), as a US Lender,
as initial US L/C Issuer, as Collateral Agent and as US Agent, and GE LEVERAGED
LOANS LIMITED, a company organized under the laws of England and Wales (in its
individual capacity, “GE Netherlands”), as Netherlands Agent,
Netherlands L/C Issuer, Netherlands Security Trustee and a Netherlands Lender.


 


R E  C
I  T  A  L  S:


 


WHEREAS,
Borrowers desire that Lenders extend a revolving credit facility to Borrowers
to refinance indebtedness of Borrowers under that certain Credit Agreement,
dated as of November 14, 2000, as heretofore amended (the “Existing
Credit Agreement”), among Holdings, RPP USA, US Finance Corp., Netherlands
Op. Co., various lending institutions, Salomon Smith Barney Inc., as
Syndication Agent, JP Morgan Chase Bank (formerly known as Morgan Guaranty
Trust Company of New York), as Documentation Agent and Morgan Stanley Senior
Funding, Inc., as Administrative Agent, Lead Arranger and Sole Book Manager to
fund certain costs and expenses related to the transactions contemplated
hereunder, to provide funds for, among other things, the Shell Buyback and
Permitted Acquisitions, and to provide funds for Capital Expenditures, working
capital and other general corporate purposes of Borrowers and their
Subsidiaries; and


 


WHEREAS,
Holdings is willing (a) to guaranty all of the US Obligations and to pledge to
US Agent or the Collateral Agent, as applicable, for the benefit of US Agent
and US Lenders, all of the Stock of its Domestic Subsidiaries and (b) to cause
each of its Domestic Subsidiaries to guaranty the US Obligations and to pledge
to US Agent or the Collateral Agent, as applicable, all of the Stock of each of
its Domestic Subsidiaries and 66% of the Voting Stock and 100% of the
Non-Voting Stock of each of its first-tier Foreign Subsidiaries; and


 


WHEREAS,
Resolution Holdings B.V. (“Netherlands Holdings”) is willing to guaranty
and to cause its Material Subsidiaries (other than Netherlands Op. Co.) to
guaranty all of the Netherlands Obligations, to pledge to Netherlands Agent or
the Netherlands Security Trustee, as applicable, for the benefit of the
Netherlands Security Trustee, the Netherlands Agent and the


 





















 


Netherlands Lenders, all of the
Stock of their respective Material Subsidiaries, and to grant to the
Netherlands Security Trustee, the Netherlands Agent and the Netherlands Lenders
a charge over, lien or mortgage on or other security interest in, certain of
their respective real and personal assets; and


 


WHEREAS, US
Borrowers and Holdings desire to secure all of US Obligations (as hereinafter
defined) under the Loan Documents (as hereinafter defined) by granting to US
Agent or the Collateral Agent, as applicable, for the benefit of US Agent and
the US Lenders, a security interest in and lien upon substantially all of their
personal property and certain real property; and


 


WHEREAS, Netherlands Borrowers desire to secure all of the Netherlands
Obligations under the Loan Documents by granting to the Netherlands Security
Trustee or the Netherlands Agent, as applicable, for the benefit of Netherlands
Security Trustee, Netherlands Agent and the Netherlands Lenders, a charge over,
lien or mortgage on or other security interest in, certain of their respective
real and personal assets, including, without limitation, a first ranking Dutch
law pledge over all
Netherlands Borrowers’ Accounts; and


 


WHEREAS, all
capitalized terms herein shall have the meanings ascribed thereto in Annex A
hereto which is incorporated herein by reference.


 


NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, Holdings, Borrowers, the other Credit Parties party
hereto, Lenders, US Agent, Collateral Agent, Netherlands Security Trustee and
Netherlands Agent agree as follows:


 


SECTION 1.

AMOUNTS AND TERMS OF LOANS


 


1.1.                                                                              US Revolving Loans.  Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Borrowers
and the other Credit Parties contained herein:


 


(a)                                  US
Revolving Loan.


 


(i)                                     Each US Revolving Lender agrees, severally and not
jointly, to make available to US Borrowers from time to time until the US
Commitment Termination Date its Pro Rata Share of advances denominated in
Dollars or Euros, as selected by the US Borrower Representative (each a “US
Revolving Credit Advance”) requested by US Borrower Representative on
behalf of any US Borrower hereunder; provided, however, that
notwithstanding anything contained herein to the contrary, US Borrower
Representative shall have no right to request US Revolving Credit Advances
denominated in Euros unless and until US Borrower Representative has
established the US Euro Disbursement Account. The Dollar Equivalent of the
Pro Rata Share of the US Revolving Loan (including, without duplication, the US
Swing Line Loan) of any US Revolving Lender shall not at any time exceed its separate
US Revolving Loan Commitment. Moreover, the Dollar Equivalent of the US
Revolving Loan (including, without duplication, the US Swing Line Loan)
outstanding to any US Borrower shall not exceed at any time that US Borrower’s
separate US Borrowing Base.  US Revolving
Credit


2





















 


Advances may be
borrowed, repaid and reborrowed from time to time until the US Commitment
Termination Date; provided, that the Dollar Equivalent of any US
Revolving Credit Advance to be made at any time shall not exceed US Borrowing
Availability at such time.  The US
Revolving Loan shall be repaid in full on the US Commitment Termination
Date.  Each US Borrower shall execute and
deliver to each US Revolving Lender upon receipt of a request from such US
Revolving Lender a note to evidence the US Revolving Loan Commitment of that US
Revolving Lender.  Each such note shall
be in the principal amount of the US Revolving Loan Commitment of the applicable
US Revolving Lender denominated in Dollars, dated the date such requesting US
Revolving Lender became a US Revolving Lender hereunder and substantially in
the form of Exhibit 1.1(a)(i) (each as amended, modified, extended,
substituted, or replaced from time to time, a “US Revolving Note” and,
collectively, the “US Revolving Notes”). 
Other than pursuant to Section 1.1(a)(ii), if at any time
(x) the Dollar Equivalent of the principal amount of the outstanding US
Revolving Loan (including, without duplication, the US Swing Line Loan) exceeds
the lesser of the Aggregate US Borrowing Base or the US Revolving Loan
Commitment, (y) the Dollar Equivalent of
the principal amount of the outstanding US Revolving Loan of any US Borrower
(including, without duplication, the US Swing Line Loans advanced to that US
Borrower) exceeds that US Borrower’s separate US Borrowing Base or (z) the
Dollar Equivalent of the principal amount of the outstanding US Revolving Loan
(including, without duplication, the US Swing Line Loan) together with the
Dollar Equivalent of the principal amount of the Netherlands Revolving Loan
exceeds $150,000,000 (any such excess US Revolving Loan is herein referred to
collectively as “US Overadvances”), (A) US Lenders shall not be
obligated to make US Revolving Credit Advances, and (B) no additional US
Letters of Credit shall be issued.  In
the case of a US Overadvance (other than a US Overadvance permitted by Section 1.1(a)(ii)),
the US Revolving Credit Advances must be repaid and US Letters of Credit shall
be cash collateralized in Dollars or Euro, as applicable, in an amount
sufficient to eliminate any such US Overadvance within 15 days following notice
by US Agent to US Borrower Representative that such US Overadvance has occurred
or will occur as a result of the imposition of Reserves or changes in the
criteria set forth in Sections 1.8, 1.9 or 1.10 which make less credit
available.  In all other cases such
repayment or provision of cash collateral must occur immediately. All US
Overadvances (other than a US Overadvance permitted by Section 1.1(a)(ii)),
shall constitute US Index Rate Loans and shall bear interest at the Default
Rate.  US Revolving Credit Advances which
are to be made in Dollars as US Index Rate Loans may be requested in any amount
with written notice prior to 1:00 p.m. (New York time) on the Business Day
immediately prior to the Business Day on which the Loan is to be made for
funding requests equal to or greater than $2,500,000.  For funding requests for such US Index Rate
Loans less than $2,500,000, written notice must be provided by 1:00 p.m. (New York time) on the
Business Day on which the Loan is to be made. 
All requests for US Revolving Credit Advances that are to be made in
Dollars as LIBOR Loans or that are to be made in Euro as EURO LIBOR Loans require
at least three (3) Business Days’ prior written notice.  Written notices for funding requests shall be
in the form attached as Exhibit 1.1(a)(ii) (“Notice of US Revolving
Credit Advance”).  US Agent shall
from time to time (and in any event, in the case of any EURO LIBOR Loans, on
the Business Day which is three (3) Business Days prior to the last day of any
applicable LIBOR Period) calculate the Dollar Equivalent of any US Revolving
Credit Advance made, or US Letter of Credit issued, in Euros on that date for the
purpose of ensuring that, after giving effect to such US Revolving Credit
Advance or US Letter of Credit, the outstanding US


 


3





















 


Revolving Loan
does not exceed the lesser of the US Revolving Loan Commitment of all US
Revolving Lenders or the Aggregate US Borrowing Base at that time.


 


(ii)                                  If US Borrower Representative on behalf of US
Borrowers requests that US Revolving Lenders make, or permit to remain
outstanding, any US Overadvances resulting from an excess over the Aggregate US
Borrowing Base or any individual US Borrowing Base (but not any US Overadvance
resulting from an excess over the US Revolving Loan Commitment or as described
in clause (z) of the definition of US Overadvance), US Agent may, in its sole
discretion, elect to make, or permit to remain outstanding, such US
Overadvances; provided, however, that US Agent may not cause US
Revolving Lenders to make, or permit to remain outstanding, aggregate US
Overadvances in an aggregate Dollar Equivalent amount in excess of 5% of the US
Revolving Loan Commitment.  If a US
Overadvance is made, or permitted to remain outstanding, pursuant to the
preceding sentence, then all US Revolving Lenders shall be bound to make, or
permit to remain outstanding such US Overadvance based upon their Pro Rata
Shares of the US Revolving Loan Commitment in accordance with the terms of this
Agreement.  If a US Overadvance remains
outstanding for more than ninety (90) days during any one hundred eighty (180)
day period, the US Revolving Loan must be repaid immediately in an amount
sufficient to eliminate all of such US Overadvances.  Any US Overadvance may be made as a US Swing
Line Advance.


 


(b)                                 Omitted.


 


(c)                                  US
Swing Line Facility.


 


(i)                                     US Agent shall notify the US Swing Line Lender upon
US Agent’s receipt of any Notice of US Revolving Credit Advance.  Subject to the terms and conditions hereof,
the US Swing Line Lender shall make available from time to time until the US
Commitment Termination Date advances in Dollars (each, a “US Swing Line
Advance”) in accordance with any such notice.  The provisions of this Section 1.1(c)
shall not relieve US Revolving Lenders of their obligations to make US
Revolving Credit Advances under Section 1.1(a); provided
that if the US Swing Line Lender makes a US Swing Line Advance pursuant to any
such notice, such US Swing Line Advance shall be in lieu of any US Revolving
Credit Advance that otherwise may be made by US Revolving Lenders pursuant to
such notice.  Except as provided in Section 1.1(a)(ii)
above, (A) the aggregate amount of US Swing Line Advances outstanding shall not
exceed at any time the lesser of (1)  the US Swing Line Commitment and (2)
the Aggregate US Borrowing Base less outstanding US Revolving Credit Advances
and the US Letter of Credit Obligations (“US Swing Line Availability”)
and (B) the US Swing Line Loan outstanding to any US Borrower shall not exceed
at any time the Dollar Equivalent of that US Borrower’s separate US Borrowing
Base less outstanding US Revolving Credit Advances and the US Letter of Credit
Obligations outstanding to or opened for the account of such US Borrower.  Until the US Commitment Termination Date, US
Borrowers may from time to time borrow, repay and reborrow under this Section 1.1(c).  Each US Swing Line Advance shall be made
pursuant to a Notice of US Revolving Credit Advance delivered by the US
Borrower Representative on behalf of the applicable US Borrower to US Agent in
accordance with Section 1.1(a). 
Unless the US Swing Line Lender has received at least one (1) Business
Day’s prior written notice from Requisite Lenders instructing it not to make a
US Swing Line Advance, the US Swing Line Lender shall, notwithstanding the
failure of any


 


4





















 


condition precedent
set forth in Section 7.2, be entitled to fund that US Swing Line
Advance, and to have each US Revolving Lender make US Revolving Credit Advances
in accordance with Section 1.1(c)(iii) or purchase participating
interests in accordance with Section 1.1(c)(iv).  Notwithstanding any other provision of this
Agreement or the other Loan Documents, the US Swing Line Loan shall constitute
a US Index Rate Loan.  US Borrowers shall
repay the aggregate outstanding principal amount of the US Swing Line Loan upon
demand therefor by US Agent. The entire unpaid balance of the US Swing Line
Loan and all other noncontingent US Obligations shall be immediately due and
payable in full in immediately available funds on the US Commitment Termination
Date if not sooner paid in full.


 


(ii)                                  Each US Borrower shall execute and deliver to the
US Swing Line Lender a promissory note to evidence the US Swing Line
Commitment.  Each note shall be in the
principal amount of the US Swing Line Commitment of the US Swing Line Lender, dated
the date such US Swing Line Lender became a US Swing Line Lender hereunder and
substantially in the form of Exhibit 1.1(c) (each as amended, modified,
extended, substituted or replaced from time to time, a “US Swing Line Note”
and, collectively the “US Swing Line Notes”).  Each US Swing Line Note shall represent the
obligation of each US Borrower to pay the amount of the US Swing Line
Commitment or, if less, the aggregate unpaid principal amount of all US Swing
Line Advances made to such US Borrower together with interest thereon as
prescribed in Section 1.3.


 


(iii)                               The US Swing Line Lender, at any time and from time
to time in its sole and absolute discretion but no less frequently than once
weekly, shall, on behalf of any US
Borrower (and each US Borrower hereby irrevocably authorizes the US Swing Line
Lender to so act on its behalf), request each US Revolving Lender (including
the US Swing Line Lender) to make a US Revolving Credit Advance to each US
Borrower (which shall be a US Index Rate Loan) in an amount equal to that US
Revolving Lender’s Pro Rata Share of the amount of the applicable US Borrower’s
US Swing Line Loan (the “US Refunded Swing Line Loan”) outstanding on
the date such notice is given.  Unless
any of the events described in Sections 6.1(f) and 6.1(g) has
occurred (in which event the procedures of Section 1.1(c)(iv) shall
apply) and regardless of whether the conditions precedent set forth in this
Agreement to the making of a US Revolving Credit Advance are then satisfied,
each US Revolving Lender shall disburse directly to US Agent its Pro Rata Share
of a US Revolving Credit Advance on behalf of the US Swing Line Lender, prior
to 3:00 p.m. (New York time), in immediately available funds on the Business
Day next succeeding the date that notice is given.  The proceeds of those US Revolving Credit
Advances shall be immediately paid to the US Swing Line Lender and applied to
repay the US Refunded Swing Line Loan of the applicable US Borrower.


 


(iv)                              If, prior to refunding a US Swing Line Loan with a
US Revolving Credit Advance pursuant to Section 1.1(c)(iii), one of
the events described in Sections 6.1(f) or 6.1(g) has occurred,
then, subject to the provisions of Section 1.1(c)(v) below, each US
Revolving Lender shall, on the date such US Revolving Credit Advance was to
have been made for the benefit of any US Borrower, purchase from the US Swing
Line Lender an undivided participation interest in the US Swing Line Loan
outstanding to such US Borrower in an amount equal to its Pro Rata Share of such
outstanding US Swing Line Loan.  Upon
request, each US Revolving Lender shall promptly transfer to the US Swing Line
Lender, in immediately available funds, the amount of its participation
interest.


 


5





















 


(v)                                 Each US Revolving Lender’s obligation to make US
Revolving Credit Advances in accordance with Section 1.1(c)(iii)
and to purchase participation interests in accordance with Section 1.1(c)(iv)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right that such US Revolving Lender may have against the US Swing Line
Lender, any US Borrower or any other Person for any reason whatsoever;
(B) the occurrence or continuance of any Default or Event of Default;
(C) any inability of any US Borrower to satisfy the conditions precedent
to borrowing set forth in this Agreement at any time or (D) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.  The US Swing Line Lender
shall be entitled to recover, on demand, from each US Revolving Lender the
amounts required to be funded by such US Revolving Lender pursuant to Sections 1.1(c)(iii)
or 1.1(c)(iv), as the case may be.  If
any US Revolving Lender does not make available such amounts to US Agent or the
US Swing Line Lender, as applicable, the US Swing Line Lender shall be entitled
to recover, on demand, such amount on demand from such US Revolving Lender,
together with interest thereon for each day from the date of non-payment until
such amount is paid in full at the Federal Funds Rate for the first two
Business Days and at the US Index Rate thereafter.


 


(d)                                 US
Letters of Credit.  The US Revolving
Loan Commitment may, in addition to the US Revolving Credit Advances, be
utilized, upon the request of US Borrower Representative on behalf of the
applicable US Borrower, for the Issuance of US Letters of Credit denominated in
Dollars or Euros.  Immediately upon the
Issuance by a US L/C Issuer of a US Letter of Credit, and without further
action on the part of US Agent or any of the US Lenders, each US Revolving
Lender shall be deemed to have purchased from such US L/C Issuer a
participation in such US Letter of Credit (or in its obligation under a risk
participation agreement with respect thereto) equal to such US Revolving Lender’s
Pro Rata Share of the aggregate amount available to be drawn under such US
Letter of Credit.  Except for US
Overadvances permitted by Section 1.1(a)(ii), no US Letter of
Credit shall be Issued whose Dollar Equivalent is in excess of US Borrowing
Availability.


 


(i)                                     Maximum Amount.  The aggregate amount of US
Letter of Credit Obligations with respect to all US Letters of Credit
outstanding at any time to US Borrowers shall not exceed the Dollar Equivalent
of $30,000,000 (“US L/C Sublimit”).


 


(ii)                                  Reimbursement. US Borrowers shall be irrevocably and unconditionally obligated
forthwith without presentment, demand, protest or other formalities of any kind
(including for purposes of Section 10), to reimburse each US L/C
Issuer on demand in immediately available funds in the Dollar Equivalent of the
amount of such payment by such US L/C Issuer for any amounts paid by such US
L/C Issuer with respect to a US Letter of Credit, including all reimbursement
payments, Fees, Charges, costs and expenses paid by such US L/C Issuer.  US Borrowers hereby authorize and direct US
Agent, at US Agent’s option, to debit the applicable US Borrower’s account (by
increasing the outstanding principal balance of the US Revolving Credit Loan)
in the Dollar Equivalent of the amount of any payment made by any US L/C Issuer
with respect to any US Letter of Credit. 
All amounts paid by any US L/C Issuer with respect to any US Letter of
Credit that are not immediately repaid by US Borrowers with the proceeds of a
US Revolving Credit Advance or otherwise shall bear interest at the interest
rate applicable to US Revolving Credit Advances which are US Index Rate Loans
plus, at the election of US Agent or Requisite US Lenders, an additional two
percent (2.00%) per annum.


 


6





















 


Each US Revolving
Lender agrees to fund its Pro Rata Share of any US Revolving Credit Advance
made pursuant to this Section 1.1(d)(ii).  In the event US Agent elects not to debit the
applicable US Borrower’s account and US Borrowers fail to reimburse the US L/C
Issuer in full on the date of any payment in respect of a US Letter of Credit,
US Agent shall promptly notify each US Revolving Lender of the amount of such
unreimbursed payment and the accrued interest thereon, and each US Revolving
Lender, on the next Business Day prior to 3:00 p.m. (New York time), shall
deliver to US Agent an amount equal to its Pro Rata Share thereof in same
day funds.  Each US Revolving Lender
hereby absolutely and unconditionally agrees to pay to each US L/C Issuer upon
demand by such US L/C Issuer such US Revolving Lender’s Pro Rata Share of each
payment made by such US L/C Issuer in respect of a US Letter of Credit not
immediately reimbursed by US Borrowers or satisfied through a debit of US
Borrowers’ account.  Each US Revolving
Lender acknowledges and agrees that its obligations pursuant to this subsection in
respect of US Letters of Credit are absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any setoff, counterclaim,
the occurrence or continuance of any Default or Event of Default or any failure
by US Borrowers to satisfy any of the conditions set forth in Section 7.2.  If any US Revolving Lender fails to make
available to the US L/C Issuer the amount of such US Revolving Lender’s Pro
Rata Share of any payments made by the US L/C Issuer in respect of a US Letter
of Credit as provided in this Section 1.1(d)(ii), the US L/C Issuer
shall be entitled to recover such amount on demand from such US Revolving
Lender together with interest at the US Index Rate.


 


(iii)                               Request for US Letters of Credit.  US
Borrower Representative shall give US Agent and US L/C Issuer at least three
(3) Business Days’ prior written notice specifying the date a US Letter of
Credit is requested to be Issued, the amount and the name and address of the
beneficiary of such US Letter of Credit, the name of the US Borrower for whose
account such US Letter of Credit is to be Issued and a description of the
transactions proposed to be supported thereby and whether such US Letter of
Credit shall be denominated in Dollars or Euros.  Each request by US Borrower for the Issuance
of a US Letter of Credit shall be in the form of Exhibit 1.1(d). If
Agent informs US Borrower Representative that no US L/C Issuer can Issue the
requested US Letter of Credit directly, US Borrower Representative may request
that a US L/C Issuer arrange for the Issuance of the requested US Letter of
Credit under a risk participation agreement with another financial institution
reasonably acceptable to US Agent, such US L/C Issuer and US Borrower
Representative.  The Issuance of any US
Letter of Credit under this Agreement shall be subject to the conditions that
the US Letter of Credit is in a form, is for an amount and contains such terms
and conditions as are reasonably satisfactory to the US L/C Issuer and, in the
case of standby letters of credit, US Agent. 
The initial notice requesting the Issuance of a US Letter of Credit
shall be accompanied by the form of the US Letter of Credit and the Master
Standby Agreement or Master Documentary Agreement, as applicable, and an
application for a US Letter of Credit, if any, then required by the US L/C
Issuer completed in a manner reasonably satisfactory to such US L/C
Issuer.  If any provision of any
application or reimbursement agreement is inconsistent with the terms of this
Agreement, then the provisions of this Agreement, to the extent of such
inconsistency, shall control.


 


(iv)                              Expiration Dates of US Letters of Credit.  The
expiration date of each US Letter of Credit shall be on a date which is not
later than the earlier of (a) one year from its date of Issuance or
(b) the fifth (5th) day prior to the date set forth in
clause (a) of the definition of the term US Commitment Termination Date.
Notwithstanding the foregoing, a US


 


7





















 


Letter of Credit
may provide for automatic extensions of its expiration date for one (1) or more
successive one (1) year periods provided that the US L/C Issuer has the right
to terminate such US Letter of Credit on each such annual expiration date and
no renewal term may extend the term of the US Letter of Credit to a date that
is later than the fifth (5th) day prior to the date set forth in
clause (a) of the definition of the term US Commitment Termination Date.  The US L/C Issuer may elect not to renew any
such US Letter of Credit and, upon direction by US Agent or Requisite US
Lenders, shall not renew any such US Letter of Credit at any time during the
continuance of an Event of Default, provided that, in the case of a
direction by US Agent or Requisite US Lenders, the US L/C Issuer receives such
directions prior to the date notice of non-renewal is required to be given by
the US L/C Issuer and the US L/C Issuer has had a reasonable period of time to
act on such notice.


 


(v)                                 Obligations Absolute.  The
obligation of US Borrowers to reimburse the US L/C Issuer, US Agent and US
Revolving Lenders for payments made in respect of US Letters of Credit issued
by the US L/C Issuer shall be unconditional and irrevocable and shall be paid
under all circumstances strictly in accordance with the terms of this
Agreement, including the following circumstances: (a) any lack of validity
or enforceability of any US Letter of Credit; (b) any amendment or waiver
of or any consent or departure from all or any of the provisions of any US
Letter of Credit or any Loan Document; (c) the existence of any claim,
set-off, defense or other right which US Borrowers, any of their Subsidiaries
or Affiliates or any other Person may at any time have against any beneficiary
of any US Letter of Credit, US Agent, Collateral Agent, any US L/C Issuer, any
US Revolving Lender or any other Person, whether in connection with this
Agreement, any other Loan Document or any other related or unrelated agreements
or transactions; (d) any draft or other document presented under any US
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;
(e) payment under any US Letter of Credit against presentation of a draft
or other document that does not substantially comply with the terms of such US
Letter of Credit; or (f) any other act or omission to act or delay of any
kind of any US L/C Issuer, US Agent, Collateral Agent, any US Revolving Lender
or any other Person or any other event or circumstance whatsoever that might,
but for the provisions of this Section 1.1(d)(v), constitute a
legal or equitable discharge of US Borrowers’ obligations hereunder.  However, the foregoing shall not be construed
to excuse a US L/C Issuer from liability to any US Borrower to the extent of
any direct damages (as opposed to consequential damages, with such US Borrower
hereby waiving all claims for any consequential damages to the extent permitted
by applicable law) suffered by such US Borrower for (a) any breach by a US L/C
Issuer under the Master Standby Agreement or the Master Documentary Agreement
or (b) any act (or any omission to act) of any US L/C Issuer to the extent
found by a final non-appealable judgment of a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of such US L/C
Issuer.


 


(vi)                              Obligations of US L/C Issuers.  Each US L/C
Issuer (other than GE Capital) hereby agrees that it will not Issue a US Letter
of Credit hereunder until it has provided US Agent with written notice specifying
the amount and intended Issuance date of such US Letter of Credit and US Agent
has returned a written acknowledgment of such notice to US L/C Issuer.  Each US L/C Issuer (other than GE Capital)
further agrees to provide to US Agent: 
(a) a copy of each US Letter of Credit Issued by such US L/C Issuer
promptly after its Issuance; (b) a weekly report summarizing available
amounts under US Letters of Credit Issued by such


 


8





















 


US L/C Issuer, the
dates and amounts of any draws under such US Letters of Credit, the effective
date of any increase or decrease in the face amount of any US Letters of Credit
during such week and the amount of any unreimbursed draws under such US Letters
of Credit; and (c) such additional information reasonably requested by US
Agent from time to time with respect to the US Letters of Credit Issued by such
US L/C Issuer.  Without limiting the
generality of the foregoing, it is expressly understood and agreed by US
Borrowers that the absolute and unconditional obligation of US Borrowers to US
Agent and US Lenders hereunder to reimburse payments made under a US Letter of
Credit will not be excused by the gross negligence or willful misconduct of the
US L/C Issuer.  However, the foregoing
shall not be construed to excuse any US L/C Issuer from liability to US
Borrowers to the extent of any direct damages (as opposed to consequential
damages, with US Borrowers hereby waiving all claims for any consequential
damages to the extent permitted by applicable law) suffered by US Borrowers (a)
for any breach by such US L/C Issuer under the Master Standby Agreement or the
Master Documentary Agreement or (b) to the extent such damages are found by a
final non-appealable judgment of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such US L/C Issuer.


 


(e)                                  Funding
Authorization.  (i) The proceeds
of all US Revolving Loans denominated in Dollars made pursuant to this
Agreement subsequent to the Closing Date are to be funded by US Agent by wire
transfer to the account designated by US Borrower Representative below (the “US
Disbursement Account”):


 


	
  Bank:

  	
   

  	
  Citibank NA

  
	
  ABA No:

  	
   

  	
  021000089

  
	
  Bank
  Address:

  	
   

  	
  New York,
  New York

  
	
  Account No.:

  	
   

  	
  30480009

  
	
  Reference:

  	
   

  	
  Resolution
  Performance Products LLC

  



 


(ii)                                  The proceeds of all
US Revolving Loans denominated in Euros made pursuant to this Agreement
are to be funded by US Agent by wire transfer to an account of
US Borrower Representative established by US Borrower Representative
with a bank acceptable to US Agent and notified by US Borrower
Representative to US Agent in writing (the “US Euro Disbursement
Account”).


 


US Borrower Representative shall provide US Agent with written notice
of any change in the foregoing instructions at least three (3) Business Days
before the desired effective date of such change.


 


(f)                                    In
this Agreement whenever it is necessary to compare or add the outstanding
balance of the US Revolving Loan or US Commitments, or any portion thereof, to
the outstanding balance of the Netherlands Revolving Loans or Netherlands
Commitments, or any portion thereof, such Revolving Loans and Commitments will
be expressed in the Dollar Equivalent thereof.


 


1.2.                                                                              Netherlands Revolving Loans.  Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Borrowers
and the other Credit Parties contained herein:


 


9





















 


(a)  Netherlands
Revolving Loans.


 


(i)                                     Each
Netherlands Lender agrees, severally and not jointly, to make available to
Netherlands Borrowers from time to time until the Netherlands Commitment
Termination Date its Pro Rata Share of advances in Euro (each a “Netherlands
Revolving Credit Advance”) requested by Netherlands Borrower Representative
on behalf of any Netherlands Borrower hereunder. The Pro Rata Share of the
Netherlands Revolving Loan of any Netherlands Lender shall not at any time
exceed its separate Netherlands Commitment. 
Moreover, the Netherlands Revolving Loan outstanding to any Netherlands
Borrower shall not exceed at any time that Netherlands Borrower’s separate
Netherlands Borrowing Base.  Netherlands
Revolving Credit Advances may be borrowed, repaid and reborrowed from time to
time until the Netherlands Commitment Termination Date; provided, that any
Netherlands Revolving Credit Advance to be made at any time shall not exceed
Netherlands Borrowing Availability at such time.  All Netherlands Revolving Loans shall be
repaid in full on the Netherlands Commitment Termination Date.  Each Netherlands Borrower shall execute and
deliver to each Netherlands Lender upon receipt of a request from such
Netherlands Lender a promissory note to evidence the Netherlands Commitment of
that Netherlands Lender.  Each such note
shall be in the principal amount denominated in Euro of the Netherlands
Commitment of the applicable Netherlands Lender, dated the date such requesting
Netherlands Lender became a Netherlands Lender hereunder and substantially in
the form of Exhibit 1.2(a)(i) (each as amended, modified, extended,
substituted or replaced from time to time, a “Netherlands Revolving Note”
and, collectively, the “Netherlands Revolving Notes”).  Other than pursuant to Section 1.2(a)(ii),
if at any time (x) the Dollar Equivalent of the principal amount of the
outstanding Netherlands Revolving Loan exceeds the lesser of the Aggregate
Netherlands Borrowing Base or the Netherlands Commitments, (y) the Dollar Equivalent of the principal amount of
the outstanding Netherlands Revolving Loan of any Netherlands Borrower exceeds
that Netherlands Borrower’s separate Netherlands Borrowing Base or (z) the
Dollar Equivalent of the principal amount of the Netherlands Revolving Loan
together with the Dollar Equivalent of principal amount of the US Revolving
Loan exceeds $150,000,000 (any such excess Netherlands Revolving Loan is herein
referred to collectively as “Netherlands Overadvances”), (A) Netherlands
Lenders shall not be obligated to make Netherlands Revolving Credit Advances,
and (B) no additional Netherlands Letters of Credit shall be issued.  In the case of a Netherlands Overadvance
(other than a Netherlands Overadvance permitted by Section 1.2(a)(ii)),
the Netherlands Revolving Credit Advances must be repaid and Netherlands Letters
of Credit shall be cash collateralized in Euro, in an amount sufficient to
eliminate any such Netherlands Overadvance within 15 days following notice by
Netherlands Agent to Netherlands Borrower Representative that such Netherlands
Overadvance has occurred or will occur as a result of the imposition of
Reserves or changes in the criteria set forth in Section 1.11 which
make less credit available.  In all other
cases such repayment or provision of cash collateral must occur immediately.
All Netherlands Overadvances (other than a Netherlands Overadvance permitted by
Section 1.2(a)(ii)), shall constitute Netherlands Base Rate Loans
and shall bear interest at the Default Rate. 
Netherlands Revolving Credit Advances which are to be made as
Netherlands Base Rate Loans may be requested in any amount with at least one
(1) Business Day prior written notice required for funding requests equal to or
greater than €2,500,000.  For funding
requests for such Netherlands Base Rate Loans less than €2,500,000, written
notice must be provided by 4:00 p.m. (London time) on the Business Day
immediately prior to the Business Day on which the Loan is to be made.  All requests for Netherlands Revolving Credit


 


10





















 


Advances that are to be made as
EURO LIBOR Loans require at least three (3) Business Days’ prior written
notice.  Written notices for funding
requests shall be in the form attached as Exhibit 1.2(a)(ii) (“Notice
of Netherlands Revolving Credit Advance”). 
Netherlands Agent shall from time to time (and in any event, in the case
of any EURO LIBOR Loans, on the Business Day which is three (3) Business Days
prior to the last day of any applicable LIBOR Period) calculate the Dollar
Equivalent of any Netherlands Revolving Credit Advance made, or Netherlands
Letter of Credit issued, in Euros on that date for the purpose of ensuring
that, after giving effect to such Netherlands Revolving Credit Advance or
Netherlands Letter of Credit, the outstanding Netherlands Revolving Loan does not
exceed the lesser of the Netherlands Commitments of all Netherlands Lenders or
the Aggregate Netherlands Borrowing Base at that time.


 


(ii)                                  If
Netherlands Borrower Representative on behalf of Netherlands Borrowers requests
that Netherlands Revolving Lenders make, or permit to remain outstanding, any
Netherlands Overadvances resulting from an excess over the Aggregate
Netherlands Borrowing Base or any individual Netherlands Borrowing Base (but
not any Netherlands Overadvance resulting from an excess over the Netherlands
Commitments or as described in clause (z) of the definition of Netherlands
Overadvance), Netherlands Agent may, in its sole discretion, elect to make, or
permit to remain outstanding, such Netherlands Overadvances; provided, however,
that Netherlands Agent may not cause Netherlands Revolving Lenders to make, or
permit to remain outstanding, aggregate Netherlands Overadvances in an
aggregate Dollar Equivalent amount in excess of 5% of the Netherlands
Commitment.  If a Netherlands Overadvance
is made, or permitted to remain outstanding, pursuant to the preceding
sentence, then all Netherlands Revolving Lenders shall be bound to make, or
permit to remain outstanding such Netherlands Overadvance based upon their Pro
Rata Shares of the Netherlands Commitments in accordance with the terms of this
Agreement.  If a Netherlands Overadvance
remains outstanding for more than ninety (90) days during any one hundred
eighty (180) day period, the Netherlands Revolving Loan must be repaid
immediately in an amount sufficient to eliminate all of such Netherlands
Overadvances.  Any Netherlands
Overadvance may be made as a Netherlands Base Rate Loan.


 


(b)  So long as no Event of Default is continuing,
Netherlands Op. Co. may, by written notice, on any Business Day (which notice
must be received no later than 10:00 a.m. (London time) on such Business Day),
request that the Netherlands Security Trustee transfer from one or more
European Collection Accounts (as specified by Netherlands Op. Co.) an amount
equal to the lesser of (i) Netherlands Borrowing Availability (after taking
into account, as though credited to the Netherlands Obligations, for the
purposes of this clause (i) any collected funds in such European Collection
Accounts in Dollars or Euros that have not been transferred therefrom), and
(ii) an amount which, when added to the closing balance in the Netherlands
Disbursement Account and other disbursement accounts of Netherlands Credit
Parties, equals the Dollar Equivalent of $5,000,000.  Such transfer shall not constitute a
Revolving Credit Advance.  Netherlands
Security Trustee shall instruct the depositary bank at which the applicable
European Collection Account is maintained to make such transfer as of the
opening of business on the immediately following Business Day unless such
request exceeds the limit referred to above in this paragraph (b) or an Event
of Default shall be continuing and Netherlands Agent or Netherlands Requisite
Lenders shall have determined not to permit such transfer as a result thereof.  On each Business Day on which there is no
Netherlands Revolving


 


11





















 


Credit
Advance outstanding, there is pending no notice of any Netherlands Revolving
Credit Advance in respect of which the applicable Netherlands Revolving Credit
Advance has not been made, there is no due and unpaid Netherlands Obligation
and there is no unfulfilled requirement to provide cash collateral for a
Netherlands Letter of Credit, Netherlands Security Trustee shall direct each depositary
that is holding a European Collection Account to transfer to the Netherlands
Disbursement Account all collected amounts in such European Collection Account.
Prior to the establishment of the European Collection Accounts, Netherlands
Borrowers shall have the rights and Netherlands Security Trustee shall have the
obligations provided in this Section 1.2(b) with respect to  funds of the Netherlands Borrowers deposited
in the applicable Interim Account if and to the extent that such  funds are specifically identified when
deposited as funds of Netherlands Borrowers.


 


(c)  Netherlands
Letters of Credit.  The Netherlands
Commitment may, in addition to Netherlands Revolving Credit Advances, be
utilized, upon the request of Netherlands Borrower Representative on behalf of
the applicable Netherlands Borrower, for the Issuance of Netherlands Letters of
Credit denominated in Euros.  Immediately
upon the Issuance by a Netherlands L/C Issuer of a Netherlands Letter of Credit,
and without further action on the part of Netherlands Agent or any of the
Netherlands Lenders, each Netherlands Lender shall be deemed to have purchased
from such Netherlands L/C Issuer a participation in such Netherlands Letter of
Credit (or in its obligation under a risk participation agreement with respect
thereto) equal to such Netherlands Lender’s Pro Rata Share of the aggregate
amount available to be drawn under such Netherlands Letter of Credit.  Except for Netherlands Overadvances permitted
by Section 1.2(a)(ii), no Netherlands Letter of Credit shall be
issued in excess of Netherlands Borrowing Availability.


 


(i)                                     Maximum
Amount.  The aggregate amount of
Netherlands Letter of Credit Obligations with respect to all Netherlands
Letters of Credit outstanding at any time to Netherlands Borrowers shall not
exceed the Dollar Equivalent of $10,000,000 (“Netherlands L/C Sublimit”).  No Netherlands Letter of Credit shall be
Issued such that on the date requested for Issue thereof the Netherlands Letter
of Credit Obligations with respect to that proposed, and all other, Netherlands
Letters of Credit outstanding or unreimbursed at that time, exceeds the
Netherlands L/C Sublimit.


 


(ii)                                  Reimbursement.  Netherlands Borrowers shall be irrevocably
and unconditionally obligated forthwith without presentment, demand, protest or
other formalities of any kind (including for purposes of Section 11),
to reimburse any Netherlands L/C Issuer on demand in immediately available
funds for any amounts paid by such Netherlands L/C Issuer with respect to a
Netherlands Letter of Credit, including all reimbursement payments, Fees,
Charges, costs and expenses paid by such Netherlands L/C Issuer.  Netherlands Borrowers hereby authorize and
direct Netherlands Agent, at Netherlands Agent’s option, to debit Netherlands
Borrowers’ account in Euro (by increasing the outstanding principal balance of
the Netherlands Revolving Credit Advances) in the amount of any payment made by
any Netherlands L/C Issuer with respect to any Netherlands Letter of Credit.  All amounts paid by any Netherlands L/C
Issuer with respect to any Netherlands Letter of Credit that are not
immediately repaid by Netherlands Borrowers with the proceeds of a Netherlands
Revolving Credit Advance or otherwise shall bear interest at the interest rate
applicable to Netherlands Base Rate Loans and at the election of Netherlands
Agent or Requisite Netherlands Lenders, an


 


12





















 


additional two percent (2.00%)
per annum.  Each Netherlands Lender
agrees to fund its Pro Rata Share of any Netherlands Revolving Loan made
pursuant to this Section 1.2(c)(ii).  In the event Netherlands Agent elects not to
debit Netherlands Borrowers’ account and Netherlands Borrowers fail to
reimburse the Netherlands L/C Issuer in full on the date of any payment in
respect of a Netherlands Letter of Credit, Netherlands Agent shall promptly
notify each Netherlands Lender of the amount of such unreimbursed payment and
the accrued interest thereon and each Netherlands Lender, on the next Business
Day prior to 3:00 p.m. (London time), shall deliver to Netherlands Agent an
amount equal to its Pro Rata Share thereof in same day funds.  Each Netherlands Lender hereby absolutely and
unconditionally agrees to pay to the Netherlands L/C Issuer upon demand by the
Netherlands L/C Issuer such Netherlands Lender’s Pro Rata Share of each payment
made by the Netherlands L/C Issuer in respect of a Netherlands Letter of Credit
and not immediately reimbursed by Netherlands Borrowers or satisfied through a
debit of Netherlands Borrowers’ account in the currency in which such payment
was made.  Each Netherlands Lender
acknowledges and agrees that its obligations pursuant to this subsection in
respect of Netherlands Letters of Credit are absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any setoff,
counterclaim, the occurrence or continuance of any Default or Event of Default
or failure by Netherlands Borrowers to satisfy any of the conditions set forth
in Section 7.2.  If any
Netherlands Lender fails to make available to the Netherlands L/C Issuer the
amount of such Netherlands Lender’s Pro Rata Share of any payments made by the
Netherlands L/C Issuer in respect of a Letter of Credit as provided in this Section 1.2(c)(ii),
the Netherlands L/C Issuer shall be entitled to recover such amount on demand
from such Netherlands Lender together with interest at the rate applicable to
Netherlands Base Rate Loans.


 


(iii)                               Request
for Netherlands Letters of Credit. 
Netherlands Borrower Representative shall give Netherlands Agent and
Netherlands L/C Issuer at least three (3) Business Days’ prior written notice
specifying the date a Netherlands Letter of Credit is requested to be Issued,
the amount and the name and address of the beneficiary of such Netherlands
Letter of Credit, the name of the Netherlands Borrower for whose account such
Netherlands Letter of Credit is to be Issued and a description of the
transactions proposed to be supported thereby. 
Each request by Borrower for the Issuance of a Letter of Credit shall be
in the form of Exhibit 1.2(c).  If
Netherlands Agent informs Netherlands Borrower Representative that the
Netherlands L/C Issuer cannot Issue the requested Netherlands Letter of Credit
directly, Netherlands Borrower Representative may request that Netherlands L/C
Issuer arrange for the Issuance of the requested Netherlands Letter of Credit
under a risk participation agreement with another financial institution
reasonably acceptable to Netherlands Agent, Netherlands L/C Issuer and Netherlands
Borrower Representative.  The Issuance of
any Netherlands Letter of Credit under this Agreement shall be subject to the
conditions that the Netherlands Letter of Credit is in a form, is for an amount
and contains such terms and conditions as are reasonably satisfactory to the
Netherlands L/C Issuer and, in the case of standby letters of credit,
Netherlands Agent.  The initial notice
requesting the Issuance of a Netherlands Letter of Credit shall be accompanied
by the form of the Netherlands Letter of Credit and the Master Standby
Agreement or Master Documentary Agreement, as applicable, and an application
for a letter of credit, if any, then required by the Netherlands L/C Issuer
completed in a manner reasonably satisfactory to such Netherlands L/C
Issuer.  If any provision of any
application or reimbursement agreement is inconsistent with the terms of this
Agreement, then the provisions of this Agreement, to the extent of such
inconsistency, shall control.


 


13





















 


(iv)                              Expiration
Dates of Netherlands Letters of Credit. 
The expiration date of each Netherlands Letter of Credit shall be on a
date which is not later than the earlier of (a) one year from its date of
Issuance or (b) the fifth (5th) day prior to the date set forth in
clause (a) of the definition of the term Netherlands Commitment
Termination Date. Notwithstanding the foregoing, a Netherlands Letter of Credit
may provide for automatic extensions of its expiration date for one (1) or more
successive one (1) year periods provided that the Netherlands L/C Issuer has
the right to terminate such Netherlands Letter of Credit on each such annual
expiration date and no renewal term may extend the term of the Netherlands
Letter of Credit to a date that is later than the fifth (5th) day prior to the
date set forth in clause (a) of the definition of the term Netherlands
Commitment Termination Date.  The
Netherlands L/C Issuer may elect not to renew any such Netherlands Letter of
Credit and, upon direction by Requisite Netherlands Lenders, shall not renew
any such Netherlands Letter of Credit at any time during the continuance of an
Event of Default, provided that, in the case of a direction by Requisite
Netherlands Lenders, the Netherlands L/C Issuer receives such directions prior
to the date notice of non-renewal is required to be given by the Netherlands
L/C Issuer and the Netherlands L/C Issuer has had a reasonable period of time
to act on such notice.


 


(v)                                 Obligations Absolute.  The
obligation of Netherlands Borrowers to reimburse the Netherlands L/C Issuer,
Netherlands Agent and Netherlands Lenders for payments made in respect of
Netherlands Letters of Credit issued by the Netherlands L/C Issuer shall be
unconditional and irrevocable and shall be paid under all circumstances
strictly in accordance with the terms of this Agreement, including the
following circumstances: (a) any lack of validity or enforceability of any
Netherlands Letter of Credit; (b) any amendment or waiver of or any
consent or departure from all or any of the provisions of any Netherlands
Letter of Credit or any Loan Document; (c) the existence of any claim,
set-off, defense or other right which Netherlands Borrowers, any of their
Subsidiaries or Affiliates or any other Person may at any time have against any
beneficiary of any Netherlands Letter of Credit, Netherlands Agent, Netherlands
Security Trustee, any Netherlands L/C Issuer, any Netherlands Lender or any
other Person, whether in connection with this Agreement, any other Loan Document
or any other related or unrelated agreements or transactions; (d) any
draft or other document presented under any Netherlands Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; (e) payment
under any Netherlands Letter of Credit against presentation of a draft or other
document that does not substantially comply with the terms of such Netherlands
Letter of Credit; or (f) any other act or omission to act or delay of any
kind of any Netherlands L/C Issuer, Netherlands Agent, Netherlands Security
Trustee, any Netherlands Lender or any other Person or any other event or
circumstance whatsoever that might, but for the provisions of this Section 1.2(c)(v),
constitute a legal or equitable discharge of Netherlands Borrowers’ obligations
hereunder.  However, the foregoing shall
not be construed to excuse a Netherlands L/C Issuer from liability to any
Netherlands Borrower to the extent of any direct damages (as opposed to
consequential damages, with such Netherlands Borrower hereby waiving all claims
for any consequential damages to the extent permitted by applicable law)
suffered by such Netherlands Borrower for (a) any breach by a Netherlands L/C
Issuer under the Master Standby Agreement or the Master Documentary Agreement
or (b) any act (or any omission to act) of any Netherlands L/C Issuer to the
extent found by a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of such Netherlands L/C Issuer.


 


14





















 


(vi)                              Obligations of Netherlands L/C Issuers.  Each
Netherlands L/C Issuer hereby agrees that it will not Issue a Netherlands
Letter of Credit hereunder until it has provided Netherlands Agent with written
notice specifying the amount and intended Issuance date of such Netherlands
Letter of Credit and Netherlands Agent has returned a written acknowledgment of
such notice to Netherlands L/C Issuer. 
Each Netherlands L/C Issuer further agrees to provide to Netherlands
Agent:  (a) a copy of each
Netherlands Letter of Credit Issued by such Netherlands L/C Issuer promptly
after its Issuance; (b) a weekly report summarizing available amounts
under Netherlands Letters of Credit Issued by such Netherlands L/C Issuer, the
dates and amounts of any draws under such Netherlands Letters of Credit, the
effective date of any increase or decrease in the face amount of any
Netherlands Letters of Credit during such week and the amount of any unreimbursed
draws under such Netherlands Letters of Credit; and (c) such additional
information reasonably requested by Netherlands Agent from time to time with
respect to the Netherlands Letters of Credit Issued by such Netherlands L/C
Issuer.  Without limiting the generality
of the foregoing, it is expressly understood and agreed by Netherlands
Borrowers that the absolute and unconditional obligation of Netherlands
Borrowers to Netherlands Agent and Netherlands Lenders hereunder to reimburse
payments made under a Netherlands Letter of Credit will not be excused by the
gross negligence or willful misconduct of the Netherlands L/C Issuer.  However, the foregoing shall not be construed
to excuse any Netherlands L/C Issuer from liability to Netherlands Borrowers to
the extent of any direct damages (as opposed to consequential damages, with
Netherlands Borrowers hereby waiving all claims for any consequential damages
to the extent permitted by applicable law) suffered by Netherlands Borrowers
that are subject to indemnification under the Master Standby Agreement or the
Master Documentary Agreement.


 


(d)  Funding Authorization.  The proceeds of all Netherlands Revolving
Credit Advances made pursuant to this Agreement subsequent to the Closing Date
are to be funded by Netherlands Agent by wire transfer to the account
designated by Netherlands Borrower Representative below (the “Netherlands
Disbursement Account”):


 


Bank:  Citibank
London


Swift:  CITIGB2L


Account No.:  10266108


Reference:  Resolution Europe BV


 


Netherlands Borrower
Representative shall provide Netherlands Agent with written notice of any
change in the foregoing instructions at least three (3) Business Days before
the desired effective date of such change.


 


(e)  In
this Agreement whenever it is necessary to compare or add the outstanding
balance of the Netherlands Revolving Loan or Netherlands Commitments, or any
portion thereof, to the outstanding balance of the US Revolving Loans or the US
Commitments or the Commitments, or any portion thereof, such Revolving Loans
and Commitments will be expressed in the Dollar Equivalent thereof.


 


15





















 


1.3.                                                                              Interest and Applicable Margins.


 


(a)                                  (i)
Each US Borrower shall pay interest with respect to the US Revolving Credit Advances
and Swing Line Loans made to it to US Agent for the ratable benefit of US
Lenders, and (ii) each Netherlands Borrowers shall pay interest with respect to
the Netherlands Revolving Advances made to it to Netherlands Agent for the
ratable benefit of Netherlands Lenders, in accordance with the various Loans
being made by each applicable Lender, in arrears on each applicable Interest
Payment Date, at the following rates: 
(A) with respect to the US Revolving Credit Advances which are
designated as US Index Rate Loans (and for all other non-contingent, interest
bearing US Obligations not otherwise set forth below), the US Index Rate plus
the Applicable US Index Margin per annum; (B) with respect to US Revolving
Credit Advances which are designated as LIBOR Loans, the applicable LIBOR Rate
plus the Applicable LIBOR Margin per annum; (C) with respect to US Revolving
Credit Advances which are designated as EURO LIBOR Loans, the applicable EURO
LIBOR plus the Applicable EURO LIBOR Margin per annum, (D) with respect to
Netherlands Revolving Credit Advances which are designated as EURO LIBOR Loans,
the applicable EURO LIBOR plus the Applicable EURO LIBOR Margin per annum plus
Mandatory Costs; (E) with respect to the Netherlands Revolving Credit Advances
which are designated as Netherlands Base Rate Loans (and for all other
noncontingent, interest bearing Netherlands Obligations not otherwise set forth
above), the Netherlands Base Rate plus the Applicable Netherlands Base Rate
Margin per annum and (F) with respect to US Swing Line Loans, the US Index Rate
plus the Applicable US Index Margin per annum.


 


As of the Closing Date, the Applicable
Margins are as follows:


 


Revolving
Credit Facility Margins:


 


	
  Applicable
  US Index Margin

  	
   

  	
  1.50

  	
  %

  
	
  Applicable
  LIBOR Margin

  	
   

  	
  2.50

  	
  %

  
	
  Applicable
  US L/C Margin

  	
   

  	
  2.50

  	
  %

  
	
  Applicable
  Netherlands Base Rate Margin

  	
   

  	
  2.50

  	
  %

  
	
  Applicable
  Netherlands L/C Margin

  	
   

  	
  2.50

  	
  %

  
	
  Applicable
  EURO LIBOR Margin

  	
   

  	
  2.50

  	
  %

  



 


The Applicable Margins shall be adjusted (up
or down) prospectively on a quarterly basis as determined by RPP USA’s and its
Subsidiaries’ consolidated financial performance, commencing with the first day
of the first calendar month that occurs more than one (1) day after delivery of
RPP USA’s Financial Statements for the Fiscal Quarter ending June 30, 2005.  Adjustments in Applicable Margins will be
determined by reference to the following grids.


 


	
  If
  Fixed Charge Coverage Ratio

  is:

  	
   

  	
  Level of Applicable Margins:

  
	
  >1.25x

  	
   

  	
  Level I

  
	
  <
  1.25x but > 1.00x

  	
   

  	
  Level II

  
	
  < 1.00x

  	
   

  	
  Level III

  



 


16





















 


	
   

  	
   

  	
  Applicable Margins

  	
   

  
	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  
	
  Applicable LIBOR Margin

  	
   

  	
  2.00

  	
  %

  	
  2.25

  	
  %

  	
  2.50

  	
  %

  
	
  Applicable US Index Margin

  	
   

  	
  1.00

  	
  %

  	
  1.25

  	
  %

  	
  1.50

  	
  %

  
	
  Applicable US L/C Margin

  	
   

  	
  2.00

  	
  %

  	
  2.25

  	
  %

  	
  2.50

  	
  %

  
	
  Applicable Netherlands L/C Margin

  	
   

  	
  2.00

  	
  %

  	
  2.25

  	
  %

  	
  2.50

  	
  %

  
	
  Applicable Netherlands Base Rate Margin

  	
   

  	
  2.00

  	
  %

  	
  2.25

  	
  %

  	
  2.50

  	
  %

  
	
  Applicable EURO LIBOR Margin

  	
   

  	
  2.00

  	
  %

  	
  2.25

  	
  %

  	
  2.50

  	
  %

  



 


All adjustments in the Applicable Margins
after the adjustment in respect of the delivery of financial statements for the
Fiscal Quarter ending June 30,
2005 shall be implemented
quarterly on a prospective basis, for each calendar month commencing at least
one (1) day after the date of delivery to Lenders of the quarterly unaudited
Financial Statements evidencing the need for an adjustment.  Concurrently with the delivery of those
Financial Statements, US Borrower Representative shall deliver to US Agent and
Netherlands Agent (for further delivery to Lenders) a certificate, signed by
its chief financial officer, setting forth in reasonable detail the basis for
the continuance of, or any change in, the Applicable Margins.  Failure to timely deliver such Financial
Statements shall, in addition to any other remedy provided for in this
Agreement, result in an increase in the Applicable Margins to the highest level
set forth in the foregoing grid, until the first day of the first calendar
month following the delivery of those Financial Statements demonstrating that
such an increase is not required.  If any
Event of Default has occurred and is continuing at the time any reduction in
the Applicable Margins is to be implemented, that reduction shall be deferred
until the first day of the first calendar month following the date on which all
Events of Default are waived or cured.


 


(b)                                 If
any payment on any Loan becomes due and payable on a day other than a Business
Day, the maturity thereof will be extended to the next succeeding Business Day
(except as set forth in the definition of LIBOR Period) and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension. All Obligations for principal of and interest on a
Loan in a particular currency shall be payable in such currency.


 


(c)                                  All
computations of Fees calculated on a per annum basis and interest shall be made
by the Applicable Agent on the basis of a 360-day year, in each case for the
actual number of days occurring in the period for which such Fees and interest
are payable.  The US Index Rate and the Netherlands
Base Rate are floating rates determined for each day.  Each determination by the Applicable Agent of
an interest rate and Fees hereunder shall be final, binding and conclusive on
Borrowers, absent manifest error.


 


(d)                                 So
long as an Event of Default has occurred and is continuing under Section 6.1(a),
(f) or (g) and without notice of any kind, or so long as any other Event of
Default has occurred and is continuing and at the election of Applicable Agent
(or upon the written request of the Requisite US Lenders or Requisite
Netherlands Lenders, as applicable) confirmed


 


17





















 


by written notice from
Applicable Agent to Applicable Borrower Representative,
subject to applicable law, the interest rates applicable to the US Revolving
Loan and/or the Netherlands Revolving Loan, as applicable, and the Letter of
Credit Fees applicable to the US Letters of Credit and/or the Netherlands
Letters of Credit, as applicable, shall be increased by two percentage points (2%)
per annum above the rates of interest or the rate of such Fee otherwise
applicable hereunder (the “Default Rate”), and all such outstanding
non-contingent Obligations shall bear interest at the Default Rate applicable
to such Obligations.  Interest and Letter
of Credit Fees at the Default Rate shall accrue from the initial date of such
Event of Default until that Event of Default is cured or waived and shall be
payable upon demand, but in any event, shall be payable on the next regularly
scheduled payment date set forth herein for such Obligation.


 


(e)                                  Applicable
Borrower Representative shall have the option to (i) request that any US
Revolving Credit Advance denominated in Dollars be made as a LIBOR Loan or US
Index Rate Loan, request that any US Revolving Credit Advance denominated in
Euro be made as a EURO LIBOR Loan or request that any Netherlands Revolving
Credit Advance be made as a Netherlands Base Rate Loan or a EURO LIBOR Loan,
(ii) request that any US Revolving Credit Advance be made in Euro or Dollars,
(iii) convert at any time all or any part of outstanding US Revolving Loans
made in Dollars (other than the US Swing Line Loan) from US Index Rate Loans to
LIBOR Loans, (iv) convert any LIBOR Loan to a US Index Rate Loan, subject to
payment of the LIBOR Breakage Fee in accordance with Section 1.4(e)
if such conversion is made prior to the expiration of the LIBOR Period
applicable thereto, (v) convert any Netherlands Revolving Loan which is a EURO
LIBOR Loan to a Netherlands Base Rate Loan, subject to payment of the EURO
LIBOR Breakage Fee in accordance with Section 1.4(g) if such
conversion is made prior to the expiration of the LIBOR Period applicable
thereto or convert any Netherlands Base Rate Loan to a EURO LIBOR Loan,
(vi) continue all or any portion of any LIBOR Loan as a LIBOR Loan upon
the expiration of the applicable LIBOR Period and the succeeding LIBOR Period
of that continued LIBOR Loan shall commence on the first day after the last day
of the LIBOR Period of the LIBOR Loan to be continued or (vii) continue all or
any portion of any EURO LIBOR Loan as a EURO LIBOR Loan upon the expiration of
the applicable LIBOR Period and the succeeding LIBOR Period of that continued
EURO LIBOR Loan shall commence on the first day after the last day of the LIBOR
Period of the EURO LIBOR Loan to be continued. 
Any Loan or group of Loans having the same proposed LIBOR Period to be
made or continued as, or converted into, a LIBOR Loan or EURO LIBOR Loan, as
applicable, must be in a minimum amount of $2,000,000 and integral multiples of
$1,000,000 in excess of such amount in the case of Loans made in Dollars and
€2,000,000 and integral multiples of €1,000,000 in excess of such amount in the
case of Loans made in Euro.  Any such
election must be made by 1:00 p.m.
(New York time) with respect to the US Revolving Loan and by 11:30 a.m. (London
time) with respect to the Netherlands Revolving Loan on the 3rd Business Day
prior to in the case of a LIBOR Loan or a EURO LIBOR Loan (1) the date of
any proposed Revolving Credit Advance which is to bear interest at the LIBOR
Rate or EURO LIBOR, as applicable, (2) the end of each LIBOR Period with
respect to any LIBOR Loans or EURO LIBOR Loans, as applicable, to be continued
as such, or (3) the date on which US Borrower Representative wishes to
convert any US Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by
such US Borrower Representative in such election or the date on which
Netherlands Borrower Representative wishes to convert any Netherlands Revolving
Loan which is a Netherlands Base Rate Loan to a EURO LIBOR Loan for a LIBOR
Period


 


18





















 


designated by such Netherlands
Borrower Representative in such election.  If no election is received with
respect to an existing LIBOR Loan by 1:00 p.m. (New York time) on the 3rd
Business Day prior to the end of the LIBOR Period with respect thereto, that
LIBOR Loan shall be converted to a US Index Rate Loan at the end of its LIBOR
Period.  If no election is received with
respect to an existing EURO LIBOR Loan by 1:00 p.m. (New York time) with
respect to US Revolving Loans and 11:30 a.m. (London time) with respect to the
Netherlands Revolving Loan, in each case, on the 3rd Business Day prior to the
end of the LIBOR Period with respect thereto, that EURO LIBOR Loan shall be, in
the case of a EURO LIBOR Loan of a Netherlands Borrower, converted into a
Netherlands Base Rate Loan and, in the case of a EURO LIBOR Loan of a US
Borrower, continued as a EURO LIBOR Loan with a one month EURO LIBOR
Period.  In the case of any conversion or
continuation, such election must be made pursuant to a written notice (a “Notice
of Conversion/Continuation”) in the form of Exhibit 1.3(e).  No Loan shall be made, converted into or
continued as a LIBOR Loan if an Event of Default has occurred and is continuing
and Requisite Lenders have determined not to make or continue any Loan as a
LIBOR Loan as a result thereof.  No Loan
may be made as or converted into a LIBOR Loan or EURO LIBOR Loan (in each case,
except pursuant to a LIBOR Period of one-week) until the earlier of (i) 
45 days after the Closing Date or (ii) completion of “Primary Syndication”
(as such term is defined in the GE Capital Fee Letter).


 


(f)                                    Notwithstanding
anything to the contrary set forth in this Section 1.3, if a court
of competent jurisdiction determines in a final order that any rate of interest
payable hereunder exceeds the highest rate of interest permissible under law
(the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate
would be so exceeded, such rate of interest payable hereunder shall be equal to
the Maximum Lawful Rate; provided, however, that if at any time
thereafter such rate of interest payable hereunder is less than the Maximum
Lawful Rate, Borrowers shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Applicable Agent
is equal to the total interest that would have been received had such interest
rate payable hereunder been (but for the operation of this paragraph) the
interest rate payable since the Closing Date as otherwise provided in this
Agreement.  Thereafter, such interest
hereunder shall be paid at the rate(s) of interest and in the manner provided in
Sections 1.3(a) through (e), unless and until any rate of interest
again exceeds the Maximum Lawful Rate, and at that time this paragraph shall
again apply.  In no event shall the total
interest received by any Lender pursuant to the terms hereof exceed the amount
that such Lender could lawfully have received had the interest due hereunder
been calculated for the full term hereof at the Maximum Lawful Rate.  If the Maximum Lawful Rate is calculated
pursuant to this paragraph, such interest shall be calculated at a daily rate
equal to the Maximum Lawful Rate divided by the number of days in the year in
which such calculation is made.  If,
notwithstanding the provisions of this Section 1.3(f), a court of
competent jurisdiction shall determine by a final, non-appealable order that a
Lender has received interest hereunder in excess of the Maximum Lawful Rate,
Applicable Agent shall, to the extent permitted by applicable law, promptly
refund any excess to US Borrowers or Netherlands Borrowers, as the case may be,
(unless an Event of Default is continuing, in which case such excess amount may
be applied to the Obligations) or as such court of competent jurisdiction may
otherwise order.


 


19





















 


1.4.                                                                              Fees.


 


(a)                                  Fee
Letter.  Borrowers shall pay to GE
Capital or GE Netherlands, as applicable, individually, the Fees and
expenses specified in that certain fee letter dated as of December 29,
2004 among RPP USA, Holdings, Netherlands Op. Co., GE Capital and GE Commercial
Finance Limited (the “GE Global Fee Letter”), at the times specified for
payment therein.


 


(b)                                 (i)
Unused US Line Fee.  As additional
compensation for the US Revolving Lenders, US Borrowers shall, jointly and
severally, pay to US Agent, for the ratable benefit of such US Revolving
Lenders, in arrears, on the first Business Day of each month prior to the US Commitment Termination Date and on the US
Commitment Termination Date, a fee, calculated on the basis of a 360-day year,
for US Borrowers’ non-use of available funds in an amount equal to (i) (A) at any
time that the average for the preceding month
(or partial month) of the Dollar
Equivalent of the daily closing balance of the US Revolving Loan (including,
without duplication, the US Swing Line Loan) was greater than or equal to 50%
of the Dollar Equivalent of the US Revolving Loan Commitment of all US Lenders,
one half of one percent (0.50%) per annum or (B) at any time that the average
for the preceding month (or
partial month) of the Dollar
Equivalent of the daily closing balance of the US Revolving Loan (including,
without duplication, the US Swing Line Loan) was less than 50% of the Dollar
Equivalent of the US Revolving Loan Commitment of all US Lenders, three
quarters of one percent (0.75%) per annum, in each case multiplied by (ii) the
difference between (x) the Dollar Equivalent of the US Revolving Loan
Commitment of all US Lenders (as it may be reduced from time to time) and
(y) the average for the period of the Dollar Equivalent of the daily
closing balances of the US Revolving Loan (including, without duplication, the
US Swing Line Loan) outstanding during the period for which such Fee is due.


 


(ii)                                  Unused Netherlands
Line Fee.  As additional compensation
for the Netherlands Lenders, Netherlands Borrowers shall, jointly and
severally, pay to Netherlands Agent, for the ratable benefit of such
Netherlands Lenders, in arrears, on the first Business Day of each month prior
to the Netherlands Commitment Termination Date and on the Netherlands
Commitment Termination Date, a fee, calculated on the basis of a 360-day year,
for Netherlands Borrowers’ non-use of available funds in an amount equal to (i)
(A) at any time that the average for the preceding month (or partial month) of
the daily closing balance of the Netherlands Revolving Loan was greater than or
equal to 50% of the Netherlands Commitment of all Netherlands Lenders, one half
of one percent (0.50%) per annum or (B) at any time that the average for the
preceding month (or partial month) of the daily closing balance of the
Netherlands Revolving Loan was less than 50% of the Netherlands Commitment of
all Netherlands Lenders, three quarters of one percent (0.75%) per annum, in
each case multiplied by (ii) the difference between (x) the Netherlands
Commitment of all Netherlands Lenders (as it may be reduced from time to time)
and (y) the average for the period of the daily closing balances of the
Netherlands Revolving Loan outstanding during the period for which such Fee is
due.


 


20










 













 


(c)           Omitted.


 


(d)           Letter of Credit Fees.  (i)  US Borrowers, jointly and severally, agree to
pay to US Agent for the benefit of US Revolving Lenders, as compensation to
such US Revolving Lenders for US Letter of Credit Obligations incurred
hereunder, (x) all out-of-pocket costs and expenses incurred by US Agent
or any US Lender on account of such US Letter of Credit Obligations, and
(y) for each month during which any US Letter of Credit Obligation shall
remain outstanding, a fee (the “US Letter of Credit Fee”) in an amount
equal to the average daily undrawn face amount of all US Letter of Credit
Obligations outstanding during such month multiplied by a per annum rate equal
to the Applicable US L/C Margin from time to time in effect.  Such fee shall be paid to US Agent for the
benefit of the US Revolving Lenders in arrears, on the first Business Day of
each month and on the US Commitment Termination Date. In addition US Borrowers,
jointly and severally, agree to pay to each US L/C Issuer, on demand, such customary
fees (including, without limitation, all per annum fees and a 0.125% per annum
issuing fee), charges and out-of-pocket expenses of such US L/C Issuer in
respect of the Issuance, negotiation, acceptance, amendment, transfer and
payment of such US Letter of Credit or otherwise payable pursuant to the
application and related documentation under which such US Letter of Credit is
issued.


 


(ii)         Netherlands
Borrowers, jointly and severally, agree to pay to Netherlands Agent for the
benefit of Netherlands Lenders, as compensation to such Netherlands Lenders for
Netherlands Letter of Credit Obligations incurred hereunder, (x) all
out-of-pocket costs and expenses incurred by Netherlands Agent or any
Netherlands Lender on account of such Netherlands Letter of Credit Obligations,
and (y) for each month during which any Netherlands Letter of Credit
Obligation shall remain outstanding, a fee (the “Netherlands Letter of
Credit Fee”) in an amount equal to the average daily undrawn face amount of
all Netherlands Letter of Credit Obligations outstanding during such month
multiplied by a per annum rate equal to the Applicable Netherlands L/C Margin
from time to time in effect.  Such fee
shall be paid to Netherlands Agent for the benefit of the Netherlands Lenders
in arrears, on the first Business Day of each month and on the Netherlands
Commitment Termination Date. In addition Netherlands Borrowers, jointly and
severally, agree to pay to each Netherlands L/C Issuer, on demand, such
customary fees (including, without limitation, all per annum fees and a 0.125%
per annum issuing fee), charges and out-of-pocket expenses of such Netherlands
L/C Issuer in respect of the Issuance, negotiation, acceptance, amendment,
transfer and payment of such Netherlands Letter of Credit or otherwise payable
pursuant to the application and related documentation under which such Letter
of Credit is issued.


 


(e)           LIBOR Breakage Fee.  Upon
(i) any default by any US Borrower in making any borrowing of, conversion
into or continuation of any LIBOR Loan following the US Borrower Representative’s
delivery to the US Agent of any LIBOR Loan request in respect thereof or
(ii) any payment of a LIBOR Loan on any day that is not the last day of
the LIBOR Period applicable thereto (regardless of the source of such
prepayment and whether voluntary, by acceleration or otherwise), US Borrowers
shall pay to US Agent in Dollars, for the benefit of all US Lenders that funded
or were prepared to fund any such LIBOR Loan, the LIBOR Breakage Fee (if any)
actually incurred by such US Lender.


 


21





















 


(f)            Omitted.


 


(g)           EURO LIBOR Breakage Fee.  Upon (i)
any default by any Borrower in making any borrowing of, conversion into or
continuation of any EURO LIBOR Loan following the Applicable Borrower
Representative’s delivery to Applicable Agent of any EURO LIBOR Loan request in
respect thereof or (ii) any payment of a EURO LIBOR Loan on any day that is not
the last day of the LIBOR Period applicable thereto (regardless of the source
of such prepayment and whether voluntary, by acceleration or otherwise),
Borrowers shall pay to Applicable Agent in Euros, for the benefit of all US
Lenders or Netherlands Lenders, as the case may be, that funded or were
prepared to fund any such EURO LIBOR Loan, the EURO LIBOR Breakage Fee (if any)
actually incurred by such Lender.


 


(h)           Expenses and Attorneys’ Fees.


 


(i)            US Borrowers agree to promptly pay all reasonable,
documented out-of-pocket fees, charges, costs and expenses (including
reasonable attorneys’ fees and expenses) incurred by US Agent and Collateral
Agent in connection with any matters contemplated by or arising out of the Loan
Documents, in connection with the examination, review, due diligence
investigation, documentation, negotiation, closing and syndication of the
transactions contemplated herein and in connection with the continued
administration of the Loan Documents including any amendments, modifications,
consents and waivers.  US Borrowers agree
to promptly pay all reasonable, documented out-of-pocket fees, charges, costs
and expenses (including fees, charges, costs and expenses of attorneys,
auditors (whether internal or external), appraisers, consultants and advisors)
incurred by US Agent and Collateral Agent in connection with any amendment,
waiver, consent with respect to the Loan Documents, Event of Default, work-out
or action to enforce any Loan Document or to collect any payments due from US
Borrowers or any other US Credit Party. 
In addition, in connection with any work-out or action to enforce any
Loan Document or to collect any payments due from US Borrowers or any other US
Credit Party, US Borrowers agree to promptly pay all reasonable, documented
out-of-pocket fees, charges, costs and expenses incurred by US Lenders for one
(1) counsel acting for all US Lenders other than US Agent.  All fees, charges, costs and expenses for
which US Borrowers are responsible under this Section 1.4(h)(i) shall be
deemed part of the US Borrowers’ Obligations when incurred, payable upon presentation
of reasonable documentation of such amounts or summaries thereof and secured by
the US Collateral.


 


(ii)           Netherlands Borrowers agree to promptly pay all reasonable, documented
out-of-pocket fees, charges, costs and expenses (including reasonable attorneys’
fees and expenses) together with any VAT thereon incurred by Netherlands Agent
and Netherlands Security Trustee in connection with any matters contemplated by
or arising out of the Loan Documents, in connection with the examination,
review, due diligence investigation, documentation, negotiation, closing and
syndication of the transactions contemplated herein and in connection with the
continued administration of the Loan Documents including any amendments,
modifications, consents and waivers. Netherlands Borrowers agree to promptly
pay all reasonable, documented out-of-pocket fees, charges, costs and expenses
(including fees, charges, costs and expenses of attorneys, auditors (whether
internal or external), appraisers, consultants and advisors) together with any
VAT thereon incurred by Netherlands Agent and Netherlands Security Trustee in
connection with any amendment, waiver, consent with respect to


 


22





















 


the Loan Documents, Event of Default,
work-out or action to enforce any Loan Document or to collect any payments due
from Netherlands Borrowers or any other Netherlands Credit Party.  In addition, in connection with any work-out
or action to enforce any Loan Document or to collect any payments due from
Netherlands Borrowers or any other Netherlands Credit Party, Netherlands
Borrowers agree to promptly pay all reasonable, documented out-of-pocket fees,
charges, costs and expenses incurred by Netherlands Lenders for one (1) counsel
acting for all Netherlands Lenders other than Netherlands Agent.  All fees, charges, costs and expenses for
which Netherlands Borrowers are responsible under this Section 1.4(h)(ii)
shall be deemed part of the Netherlands Obligations when incurred, payable upon
presentation of reasonable documentation of such amounts or summaries thereof
and secured by the Netherlands Collateral.


 


1.5.                          Payments. 
All payments by Borrowers of the Obligations shall be without deduction,
defense, setoff or counterclaim and shall be made in same day funds and
delivered (i) by the Netherlands Borrowers, with respect to the Netherlands
Revolving Loan, to Netherlands Agent for the benefit of Netherlands Agent,
Netherlands Security Trustee and Netherlands Lenders and (ii) by the US
Borrowers, with respect to US Revolving Loan, to US Agent for the benefit of US
Agent, Collateral Agent and US Lenders, as applicable, by wire transfer to the
following account or such other place as Applicable Agent may from time to time
designate in writing.


 


(a)           With respect to the Netherlands Revolving Loan:


 


Bank: BNP Paribas, Paris


Account No.:  0001078256


Account: GE Leveraged Loans Limited


IBAN #:  FR76 3000 4008 2800 0107
2825 676


Swift Code:  BNPAFRPPPAC


 


(b)           With respect to the US Revolving Loan:


 


Denominated in Dollars


 


ABA No. 021 001 033


Account Number 502 328 54


Deutsche Bank Trust Company Americas


New York, New York


ACCOUNT NAME:  GECC/CAF
DEPOSITORY


Reference:  GE Capital re: RPP,
CFN: 6557


 


23





















 


Denominated
in Euros


 


	
  Bank:

  	
   

  	
  Deutsche Bank (Frankfurt)

  
	
  Account ID

  	
   

  	
  A758

  
	
  Account Number

  	
   

  	
  175071000

  
	
  Account Name

  	
   

  	
  GE Capital Corp - Commercial Finance

  
	
  Currency

  	
   

  	
  Euro

  
	
  Swift Code

  	
   

  	
  DEUTDEFF

  
	
  Sort Code

  	
   

  	
  50070010

  
	
  REF:

  	
   

  	
  CFI1283

  



 


Borrowers shall receive credit on the day of receipt for good funds
received by Applicable Agent by 2:00 p.m. (New York time) in the case of US
Agent or 11:30 a.m. (London time) in the case of Netherlands Agent.  In the absence of timely receipt, such funds
shall be deemed to have been paid on the next Business Day.  Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, the payment may
be made on the next succeeding Business Day and such extension of time shall be
included in the computation of the amount of interest and Fees due hereunder.


 


US Borrowers
hereby authorize US Lenders to
make US Revolving Credit
Advances in Dollars (as US Index
Rate Loans), in Euro (as EURO LIBOR Loans) or US Swing Line Advances, on the basis of their Pro Rata Shares, for the
payment of interest, Fees, expenses and US Letter of Credit reimbursement obligations and any amounts required to be
deposited with respect to outstanding US Letter of Credit Obligations pursuant to Sections 1.6(g)(i)
or 6.3.


 


Netherlands Borrowers hereby authorize
Netherlands Lenders to make Netherlands Revolving Credit Advances in Euros as
Netherlands Base Rate Loans, on the basis of their Pro Rata Shares, for the
payment of interest, Fees, expenses and Netherlands Letter of Credit
reimbursement obligations and any amounts required to be deposited with respect
to outstanding Netherlands Letter of Credit Obligations pursuant to Sections 1.6(g)(ii) or 6.3.


 


1.6.                           Prepayments.


 


(a)           Voluntary Prepayments of Loans.  At any
time, Borrowers may prepay the Loans, in whole or in part, subject to the
payment of LIBOR Breakage Fees and EURO LIBOR Breakage Fees, if applicable.


 


(b)           Voluntary Reduction of the Revolving Loan
Commitment.  (i)  At any time, US Borrower Representative on behalf of US
Borrowers may permanently reduce the
US Revolving Loan Commitment without
premium or penalty subject to the payment of LIBOR Breakage Costs or EURO LIBOR
Breakage Costs, if applicable; provided, however, that the US
Revolving Loan Commitment may not be
permanently reduced to less than the outstanding principal balance of the US
Revolving Loan as of the date of such
reduction (determined after giving effect to all prepayments and repayments
made on such date).  Any reduction of the
US Revolving Loan Commitment
shall not result in a pro rata or any other reduction of the US L/C Sublimit or the US Swing Line Commitment unless so designated in
writing by US Borrower


 


24





















 


Representative.  In addition, US Borrower
Representative on behalf of US
Borrowers may, at any time terminate the US Revolving Loan Commitment on at least ten (10) Business Days’ prior
written notice to US Agent,
which termination may be revoked or deferred by US Borrower Representative on behalf of
US Borrowers; provided, that upon such
termination, the US Revolving Loans and all other US Obligations
(other than Contingent Indemnification Obligations) shall be immediately due
and payable in full and all US
Letter of Credit Obligations shall be cash collateralized or otherwise
satisfied in accordance with Section 1.6(g)(i) of this Agreement.


 


(ii)         At
any time, Netherlands Borrower Representative on behalf of Netherlands
Borrowers may permanently reduce the Netherlands Commitment without premium or
penalty subject to the payment of EURO LIBOR Breakage Costs, if applicable;
provided, however, that the Netherlands Commitment may not be permanently
reduced to less than the outstanding principal balance of the Netherlands
Revolving Loan as of the date of such reduction (determined after giving effect
to all prepayments and repayments made on such date).  Any reduction of the Netherlands Commitment
shall not result in a pro rata or any other reduction of the Netherlands L/C
Sublimit unless so designated in writing by Netherlands Borrower
Representative.  In addition, Netherlands
Borrower Representative on behalf of Netherlands Borrowers may, at any time
terminate the Netherlands Commitment on at least ten (10) Business Days’ prior
written notice to Netherlands Agent, which termination may be revoked or
deferred by Netherlands Borrower Representative on behalf of Netherlands
Borrowers; provided, that upon such termination, the Netherlands Revolving Loan
and all other Netherlands Obligations (other than Contingent Indemnification
Obligations) shall be immediately due and payable in full and all Netherlands
Letter of Credit Obligations shall be cash collateralized or otherwise
satisfied in accordance with Section 1.6(g)(ii) of this Agreement.


 


(c)           Prepayments from Asset Dispositions.  (A)
(i)  Except as otherwise provided in the
US Security Agreement and subject to clause (iii) below, immediately upon
receipt by US Borrowers or any of their Domestic Subsidiaries of any Net
Proceeds in excess of $2,500,000 in the aggregate during any Fiscal Year, US
Borrowers shall prepay the US Revolving Loans in an amount equal to such Net
Proceeds (including the portion not in excess of $2,500,000), except that US
Borrowers or their Subsidiaries may reinvest all or a portion of the Net
Proceeds of any such Asset Disposition that would otherwise be required to
prepay US Revolving Loans under this Section 1.6(c)(A), within three
hundred sixty (360) days following receipt thereof, for Capital
Expenditures.  (ii) If US Borrowers do
not intend to so reinvest such Net Proceeds or if the period set forth in the
immediately preceding sentence expires without US Borrowers having reinvested
the Net Proceeds of any such Asset Disposition that would otherwise be required
to prepay US Revolving Loans under this Section 1.6(c)(A), US Borrowers
shall prepay the US Revolving Loans in an amount equal to such remaining Net
Proceeds in accordance with Section 1.6(e).  (iii) Notwithstanding anything to the
contrary in this Agreement, in the event that Aggregate Borrowing Availability,
both before and after giving effect to any Asset Disposition that generated
such Net Proceeds, is at least $40,000,000, no prepayment shall be required by
this Section 1.6(c).  (iv) Any
prepayment pursuant to this Section 1.6(c) shall not result in a
permanent reduction of the US Revolving Loan Commitment but shall result in the
imposition of a Reserve against the US Borrowing Base in an amount equal to
such prepayment, such Reserve to be maintained at the reasonable discretion of
US Agent.


 


25





















 


(B) (i)  Except
as otherwise provided in the Foreign Security Agreements and subject to clause (iii) below, immediately upon
receipt by Netherlands Borrowers or any of their Subsidiaries of any Net
Proceeds in excess of the Dollar Equivalent of $2,500,000 in the aggregate
during any Fiscal Year, Netherlands Borrowers shall prepay the
Netherlands Revolving Loans in an
amount equal to such Net Proceeds, except that Netherlands Borrowers or their
Subsidiaries may reinvest all or a portion of the Net Proceeds of any such
Asset Disposition that would otherwise be required to prepay Netherlands
Revolving Loans under this Section 1.6(c)(B), within three hundred sixty
(360) days following receipt thereof, for Capital Expenditures.  (ii) If Netherlands Borrowers do not intend
to so reinvest such Net Proceeds or if the period set forth in the immediately
preceding sentence expires without Netherlands Borrowers having reinvested the
Net Proceeds of any such Asset Disposition that would otherwise be required to
prepay Netherlands Revolving Loans under this Section 1.6(c)(B),
Netherlands Borrowers shall prepay the Netherlands Revolving Loans in an amount equal to such remaining Net
Proceeds in accordance with Section 1.6(e).  (iii) Notwithstanding anything to the
contrary in this Agreement, in the event that Aggregate Borrowing Availability,
both before and after giving effect to any Asset Disposition that generated
such Net Proceeds, is at least $40,000,000, no prepayment shall be
required by this Section 1.6(c). 
(iv) Any prepayment pursuant to this Section 1.6(c) shall not
result in a permanent reduction of the Netherlands Revolving Loan Commitment
but shall result in the imposition of a Reserve against the Netherlands Borrowing
Base in an amount equal to such prepayment, such Reserve to be maintained at
the reasonable discretion of US Agent.


 


(d)           Omitted.


 


(e)           Application of Proceeds.


 


(i)            With respect to any prepayments made by any US
Borrower pursuant to Section 1.6(c),
such prepayments shall be applied as follows: 
first, to repay the US Swing Line Loan outstanding to that US Borrower until the same has been repaid in full; second, to repay
the US Revolving Credit Advances
of that US Borrower until the
same have been repaid in full (not as a permanent reduction of the US Revolving Loan Commitment or the US Swing Line Commitment, as the case may be,
but subject to Section 1.6(c)(A)(iv)); third, to repay the US
Swing Line Loan outstanding to each
other US Borrower, pro rata, until the same have been repaid in full; and fourth,
to repay the US Revolving Credit
Advances of each other US Borrower,
pro rata, until the same have been repaid in full (but not as a permanent
reduction of the US Revolving
Loan Commitment, but subject to Section 1.6(c)(A)(iv)).  Considering each type of US Revolving
Credit Advance being prepaid
separately, any such prepayment shall be applied first to US Index Rate Loans before application to LIBOR
Loans or EURO LIBOR Loans, in each case in a manner which minimizes any
resulting LIBOR Breakage Fee or EURO LIBOR Breakage Fee.


 


(ii)           With respect to any prepayments made by any
Netherlands Borrower pursuant to Section 1.6(c), such prepayments
shall be applied as follows:  first,
to repay the Netherlands Revolving Credit Advances of that Netherlands Borrower until the same have been repaid in
full (not as a permanent reduction of the Netherlands Commitment, but subject
to Section 1.6(c)(B)(iv)); and second, to repay the Netherlands
Revolving Credit Advances of each other Netherlands Borrower, pro rata, until
the same have been repaid in full


 


26





















 


(not as a permanent reduction of the Netherlands Commitment, but
subject to Section 1.6(c)(B)(iv)). 
Considering each type of Netherlands Revolving Credit Advance being
prepaid separately, any such prepayment shall be applied first to Netherlands
Base Rate Loans before application to EURO LIBOR Loans, in each case in a
manner which minimizes any resulting EURO LIBOR Breakage Fee.


 


(f)            Omitted.


 


(g)           Letter of Credit Obligations.  (i) In the
event any US Letters of Credit are outstanding at the time that the US
Revolving Loan Commitment is terminated, US Borrowers shall (1) deposit with US
Agent for the benefit of all US Revolving Lenders cash in Dollars or Euros, as
applicable, in an amount equal to 103% of the aggregate outstanding US Letter
of Credit Obligations to be available to US Agent to reimburse payments of
drafts drawn under such US Letters of Credit and pay any Fees and expenses
related thereto and (2) prepay the US Letter of Credit Fee payable under Section 1.4(d)(i)(y)
with respect to such US Letters of Credit for the full remaining terms of such
US Letters of Credit.  Upon termination
of any such US Letter of Credit, the unearned portion of such prepaid US Letter
of Credit Fee attributable to such US Letter of Credit and the unused portion
of the amount deposited under clause (1) shall be refunded to the US Borrower;
and


 


(ii)         In
the event any Netherlands Letters of Credit are outstanding at the time that
the Netherlands Commitment is terminated, Netherlands Borrowers shall (1)
deposit with Netherlands Agent for the benefit of all Netherlands Lenders cash
in Euros in an amount equal to 103% of the aggregate outstanding Netherlands
Letter of Credit Obligations to be available to Netherlands Agent to reimburse
payments of drafts drawn under such Netherlands Letters of Credit and pay any
Fees and expenses related thereto and (2) prepay the Netherlands Letter of
Credit Fee payable under Section 1.4(d)(ii)(y) with respect to such
Netherlands Letters of Credit for the full remaining terms of such Netherlands
Letters of Credit.  Upon termination of
any such Netherlands Letter of Credit, the unearned portion of such prepaid Netherlands
Letter of Credit Fee attributable to such Netherlands Letter of Credit and the
unused portion of the amount deposited under clause (1) shall be refunded to
the Netherlands Borrower.


 


1.7.                           Maturity.


 


(a)           All US Obligations (other than Contingent Indemnification
Obligations) shall become due and payable as otherwise set forth herein, but in
any event all of the remaining US Obligations (other than Contingent
Indemnification Obligations) shall become due and payable upon termination of
this Agreement or the US Commitment Termination Date, whichever is
earlier.  All Netherlands Obligations
(other than Contingent Indemnification Obligations) shall become due and
payable as otherwise set forth herein, but in any event all of the remaining
Netherlands Obligations (other than Contingent Indemnification Obligations)
shall become due and payable upon termination of this Agreement or the
Netherlands Commitment Termination Date, whichever is earlier.


 


(b)           Until all US Obligations (other than Contingent
Indemnification Obligations) have been fully paid and satisfied, the US
Revolving Loan Commitments have been terminated and all US Letters of Credit
have been terminated or otherwise cash collateralized as


 


27





















 


provided in Section 1.6(g)(i), US
Agent shall be entitled to retain the security interests in the US Collateral
granted under the Collateral Documents by Holdings and its Domestic
Subsidiaries and the ability to exercise all rights and remedies available to
them under the Loan Documents and applicable laws.


 


(c)           Until all Netherlands Obligations (other than
Contingent Indemnification Obligations) have been fully paid and satisfied, the
Netherlands Commitments have been terminated and all Netherlands Letters of Credit
have been terminated or otherwise cash collateralized as provided in Section
1.6(g)(ii), Netherlands Security Trustee and the Netherlands Agent shall be
entitled to retain the security interests in the Netherlands Collateral granted
under the Collateral Documents by Netherlands Holdings and its Subsidiaries and
Netherlands Security Trustee and Netherlands Agent shall retain the ability to
exercise all rights and remedies available to them under the Loan Documents and
applicable laws.


 


1.8.                           Borrowers Eligible US Accounts.  All of the Accounts owned by any US Borrower and reflected in the most recent US Borrowing Base
Certificate delivered by such US
Borrower to US Agent shall be “Eligible
US Accounts” for purposes of this Agreement, except any Account to which
any of the exclusionary criteria set forth below applies.  US Agent shall have the right to establish or
modify or eliminate Reserves against Eligible US Accounts from time to time in
its reasonable credit judgment (as to Reserves imposed after the Closing Date,
based on its analysis of facts or events first occurring, or first discovered
by US Agent, after the Closing Date).  In
addition, US Agent reserves the right, at any time and from time to time after
the Closing Date, to adjust any of the criteria set forth below and to
establish new criteria, in its reasonable credit judgment (based on its
analysis of material facts or events first occurring, or first discovered by US
Agent, after the Closing Date), subject to the approval of Supermajority US Lenders
in the case of adjustments or new criteria which have the effect of making more
credit available.  US Agent acknowledges
that as of the Closing Date it does not know of any circumstance or condition
with respect to the Accounts that would require the imposition of a Reserve
which has not been imposed as of the Closing Date.  Eligible US Accounts shall not include any
Account of any US Borrower:


 


(a)           that does not arise from the sale of goods or the
performance of services by such US
Borrower in the ordinary course
of its business;


 


(b)           (i) upon which such US Borrower’s
right to receive payment is not absolute or is contingent upon the fulfillment
of any condition whatsoever or (ii) as to which such US Borrower is not able to
bring suit or otherwise enforce its remedies against the Account Debtor through
judicial process, or (iii) if the Account represents a progress billing
consisting of an invoice for goods sold or used or services rendered pursuant
to a contract under which the Account Debtor’s obligation to pay that invoice
is subject to such US Borrower’s completion of further
performance under such contract or is subject to the equitable lien of a surety
bond issuer;


 


(c)           to the extent of customer allowances or to the
extent of any defense, counterclaim, setoff or dispute asserted as to such
Account;


 


28





















 


(d)           that is not a true and correct statement of bona
fide indebtedness incurred in the amount of the Account for merchandise sold to
or services rendered and accepted by the applicable Account Debtor;


 


(e)           with respect to which an invoice has not been sent
to the applicable Account Debtor;


 


(f)            that (i) is not owned by such US Borrower or (ii) is subject to any right,
claim, security interest or other interest of any other Person, other than
Liens in favor of US Agent or Collateral Agent, on behalf of itself and Secured
Creditors;


 


(g)           that arises from a sale to any director, officer,
other employee or Affiliate of any Credit Party, or to any entity that has any
common officer or director with any Credit Party other than an Apollo Operating
Company;


 


(h)           that is the obligation of an Account Debtor that is
the United States government or a political subdivision thereof, or any state,
county or municipality or department, agency or instrumentality thereof unless
US Agent, in its sole discretion, has agreed to the contrary in writing and
such US Borrower, if necessary or desirable, has complied with respect to such
obligation with the Federal Assignment of Claims Act of 1940, or any applicable
state, county or municipal law restricting the assignment thereof with respect
to such obligation;


 


(i)            that is the obligation of an Account Debtor located
in a foreign country other than Canada unless payment thereof is assured by a
letter of credit assigned and delivered to US Agent, satisfactory to US Agent
as to form, amount and issuer;


 


(j)            to the extent such US Borrower or
any Subsidiary thereof is liable for goods sold, deposits made or services
rendered by the applicable Account Debtor to such US Borrower or
any Subsidiary thereof but only to the extent of the potential offset;


 


(k)           that arises with respect to goods that are
delivered on a bill-and-hold, cash-on-delivery basis or placed on consignment,
guaranteed sale or other terms by reason of which the payment by the Account
Debtor is or may be conditional;


 


(l)            that is in default based upon the following
criteria:


 


(i)            the Account (other than an Extended US Account) is
not paid within the earlier of: 60 days following its due date or 90 days
following its original invoice date;


 


(ii)           the Account is an Extended US Account and is not paid within 60 days
following its due date; or


 


(iii)          the Account Debtor obligated upon such Account suspends business, makes a
general assignment for the benefit of creditors or fails to pay its debts
generally as they come due or is otherwise insolvent;


 


(iv)          a petition or assignment or an application for an order to stay a
proceeding is filed by or against any Account Debtor obligated upon such
Account under any


 


29





















 


bankruptcy law or any other federal, state or
foreign receivership, insolvency relief or other Insolvency Law;


 


(m)          that is the obligation of an Account Debtor if 50%
or more of the Dollar amount of all Accounts owing by that Account Debtor are
ineligible under the other criteria set forth in this Section 1.8;


 


(n)           as to which Collateral Agent’s Lien thereon, on
behalf of itself and Secured Creditors, is not a first priority perfected Lien;


 


(o)           to the extent such Account is evidenced by a
judgment, Instrument or Chattel Paper;


 


(p)           to the extent such Account exceeds, together with
other Accounts owing by that Account Debtor, any credit limit established by
the Credit Parties credit policies; or


 


(q)           that is payable in any currency other than Dollars
or Euros.


 


1.9.                         Eligible US Inventory  All of the Inventory owned by any US Borrower and reflected in the most recent US Borrowing Base
Certificate delivered by such US
Borrower to US Agent shall be “Eligible
US Inventory” for purposes of this Agreement, except any Inventory to which
any of the exclusionary criteria set forth below applies.  US Agent shall have the right to establish,
modify, or eliminate Reserves against Eligible US Inventory from time to time
in its reasonable credit judgment (as to Reserves imposed after the Closing
Date, based on its analysis of facts or events first occurring, or first
discovered by US Agent after the Closing Date, other than Reserves contemplated
by Section 1.9(b)).  In addition,
US Agent reserves the right, at any time and from time to time after the
Closing Date, to adjust any of the criteria set forth below and to establish
new criteria in its reasonable credit judgment (based on its analysis of
material facts or events first occurring, or first discovered by US Agent after
the Closing Date), subject to the approval of Supermajority US Lenders in the
case of adjustments or new criteria which have the effect of making more credit available. US Agent
acknowledges that as of the Closing Date it does not know of any circumstance
or condition with respect to the Inventory that would require the imposition of
a Reserve which has not been imposed as of the Closing Date other than the lack
of landlord waivers, bailee waivers or mortgagee waivers that would justify the
need for Reserves. Eligible US Inventory shall not include any Inventory of any US Borrower that:


 


(a)           is not owned by such US Borrower
free and clear of all Liens and rights of any other Person (including the
rights of a purchaser that has made progress payments and the rights of a
surety that has issued a bond to assure such US Borrower’s performance with
respect to that Inventory), except the Liens in favor US Agent or Collateral
Agent, on behalf of itself and Secured Creditors, and Permitted Encumbrances
described in clauses (a), (b), (c), (e) and (n) of such defined term;


 


(b)           (i) is not located on premises owned, leased or
rented by such US Borrower (or a consignee, bailee or
warehouseman of such US Borrower) and set forth on Schedule
5.12 (as it may be updated from time to time by delivery of a new Schedule
5.12 or a supplement to Schedule 5.12 by US Borrower Representative
to US Agent), (ii) is stored at a


 


30





















 


location leased by such US Borrower (other
than a location leased from Shell as of the Closing Date) unless (x) a landlord
waiver has been delivered to such US Agent in accordance with Section 2.6
or such location is leased as of the Closing Date from Shell, or (y) Reserves
have been established with respect thereto pursuant to Section 2.6,
(iii) is stored with a bailee or warehouseman unless an acknowledged
bailee letter has been received by US Agent in accordance with Section 2.6
or Reserves have been established with respect thereto pursuant to Section
2.6, (iv) is located at a location owned by a Credit Party subject to a
mortgage in favor of a lender other than US Agent or Collateral Agent, unless a
mortgagee waiver has been delivered to such US Agent in accordance with Section
2.6 or Reserves have been established with respect thereto pursuant to Section
2.6, or (v) is located at any site if the aggregate book value of Inventory
at any such location is less than $100,000 or the Dollar Equivalent thereof
unless, in each case of clauses (i) through (v) above, US Agent has given its
prior consent thereto;


 


(c)           is placed on consignment by such US Borrower or is
in transit, except for (i) Inventory in transit between domestic locations of
Credit Parties and (ii) consigned inventory that arises with respect to goods
that are delivered on a bill and hold, cash on delivery basis or placed on
consignment, guaranteed sale or other terms by reason of which the payment by
the Account Debtor is or may be conditional, unless (A) as to each
consignee (it being understood that for the purposes of this paragraph (c), the
term consignee shall include any Person to whom such US Borrower has provided
possession of Inventory prior to the consummation of an irrevocable sale of
such Inventory to such Person), the applicable US Borrower has, at such US
Borrower’s cost and expense (i) conducted Code, tax lien and judgment
searches against such consignee, (ii) filed UCC-1 financing statements
against such consignee naming such US Borrower as secured party and US Agent as
assignee of secured party, and (iii) provided to each secured party of
record that has filed a financing statement against such consignee (whether or
not such Inventory is Inventory in the hands of such consignee) a notice, in
form and substance reasonably satisfactory to US Agent, pursuant to Section
9-324 of the Code of such US Borrower’s intent to provide purchase money
financing to such consignee and (iv) obtained from such consignee a letter
agreement, in form and substance reasonably satisfactory to US Agent, in which
such consignee acknowledges the Lien of Collateral Agent and agrees that to the
extent that such consignee has not paid the purchase price of any item of
Inventory, US Agent can take possession of and remove such item of Inventory
upon an Event of Default and (B) such US Borrower holds a perfected first
priority security interest against such consignee, such security interest
having been assigned of record to Collateral Agent;


 


(d)           is covered by a negotiable document of title,
unless such document has been delivered to Collateral Agent, with all necessary
endorsements, free and clear of all Liens except those in favor such Collateral
Agent and the Secured Creditors;


 


(e)           is excess, obsolete, unsaleable, shopworn, seconds,
damaged or unfit for sale;


 


(f)            consists of display items or packing or shipping
materials, manufacturing supplies, work-in-process Inventory or replacement
parts;


 


(g)           is not of a type held for sale in the ordinary
course of such US Borrower’s business;


 


31





















 


(h)           is not subject to a first priority perfected lien
in favor Collateral Agent, on behalf of itself and Secured Creditors, subject
to Permitted Encumbrances described in clause (a), (b), (c), (e) or (f)(5) of
such defined term, or does not otherwise conform to the representations or
warranties pertaining to Inventory set forth in the Loan Documents;


 


(i)            consists of any costs associated with “freight-in”
charges;


 


(j)            consists of Hazardous Materials or goods that can
be transported or sold only with licenses that are not readily available,
excluding any inventory products (including petroleum products) carried by the
Credit Parties as of the Closing Date and new or additional inventory products
consisting of “next generation” versions of such products or consistent with
the general scope and type of such products;


 


(k)           is not covered by casualty insurance reasonably
acceptable to US Agent; or


 


(l)            is subject to any licensing, patent, royalty,
trademark, trade name or copyright agreements with any third parties which
would require any consent of any third party for the sale or disposition of
that Inventory (which consent has not been obtained) or the payment of any
monies to any third party upon such sale or other disposition (to the extent of
such monies).


 


1.10.        Eligible US PPE.  All of the PPE owned by any US Borrower and reflected in the most recent US Borrowing Base
Certificate delivered by such US Borrower
to US Agent shall be “Eligible US PPE” for purposes of this
Agreement, except any PPE to which any of the exclusionary criteria set forth
below applies.  US Agent shall have the
right to establish, modify, or eliminate Reserves against Eligible US PPE from
time to time in its reasonable credit judgment (as to Reserves imposed after
the Closing Date, based on its analysis of facts or events first occurring, or
first discovered by US Agent after the Closing Date other than Reserves
described in clause (b)(i), (ii) and (iii) below).  In addition, Agent reserves the right, at any
time and from time to time after the Closing Date, to adjust any of the
criteria set forth below and to establish new criteria in its reasonable credit
judgment (based on its analysis of material facts or events first occurring, or
first discovered by US Agent after the Closing Date), subject to the approval
of Supermajority US Lenders in the case of adjustments or new criteria which have the effect of making more
credit available.  US Agent acknowledges
that as of the Closing Date it does not know of any circumstance of condition
with respect to the PPE that would require the imposition of a Reserve which
has not been imposed as of the Closing Date (other than the lack of landlord
waivers, bailee waivers or mortgagee waivers to the extent specified below)
that would justify the need for Reserves. Eligible US PPE shall not include any
PPE of any US Borrower that:


 


(a)           is not owned by such US Borrower free
and clear of all Liens and rights of any other Person (including the rights of
a purchaser that has made progress payments and the rights of a surety that has
issued a bond to assure such US Borrower’s performance with respect to
that PPE), except the Liens in favor of US Agent or Collateral Agent, on behalf
of itself and Secured Creditors, and Permitted Encumbrances described in
clauses (a), (b), (c) and (e) of such defined term;


 


32





















 


(b)           consists of equipment (other than fixtures) (i)
located at a location leased by such
US Borrower unless (x) a
reasonably satisfactory landlord waiver has been delivered to US Agent or such
location is leased from Shell and such lease is subject to a Mortgage, or (y)
Reserves satisfactory to US Agent have been established with respect thereto,
(ii) stored with a bailee or warehouseman, unless a reasonably
satisfactory, acknowledged bailee letter has been received by US Agent, or
Reserves reasonably satisfactory to US Agent have been established with respect
thereto, or (iii) located at an owned location subject to a mortgage in favor
of a lender other than US Agent or Collateral Agent, unless a reasonably
satisfactory mortgagee waiver has been delivered to US Agent, or Reserves
reasonably satisfactory to US Agent have been established with respect thereto,
unless, in each case of clauses (i) through (iii) above, US Agent has given
prior consent thereto;


 


(c)           consists of fixtures, other than fixtures located
on real property that is either (i) owned by such US Borrower (and, if such
real property is subject to a mortgage in favor of a lender other than US Agent
or Collateral Agent a reasonably satisfactory mortgagee waiver has been
delivered to US Agent, or Reserves reasonably satisfactory to US Agent have
been established with respect thereto) or (ii) leased by such US Borrower
pursuant to a lease that has a remaining term as of the date of determination
of at least 10 years and is subject to a valid and perfected Mortgage on such
leasehold in favor of US Agent;


 


(d)           consists of real property (other than fixtures);


 


(e)           is not subject to a first priority perfected lien
in favor of Collateral Agent, subject to Permitted Encumbrances described in
clauses (a), (b), (c) and (e) of such defined term;


 


(f)            breaches any of the representations or warranties
pertaining to PPE set forth in the Loan Documents;


 


(g)           is not covered by casualty insurance reasonably
acceptable to US Agent (and US Agent acknowledges that casualty insurance which
complies with the requirements of Section 2.2 is reasonably acceptable
to it for purposes hereof); or


 


(h)           that is covered by a certificate of title unless
the interest of US Agent has been noted on such certificate of title, free and
clear of all Liens subject to Permitted Encumbrances described in clauses (a),
(b), (c) and (e) of such defined term.


 


1.11.        Eligible Netherlands Accounts.  All of the Accounts owned by any Netherlands Borrower and reflected
in the most recent Netherlands Borrowing
Base Certificate delivered by such
Netherlands Borrower to Netherlands
Agent shall be “Eligible Netherlands
Accounts” for purposes of this Agreement, except any Account to
which any of the exclusionary criteria set forth below applies.  Netherlands
Agent shall have the right to establish or modify or eliminate Reserves
against Eligible Netherlands Accounts from time to time in its reasonable
credit judgment (as to Reserves imposed after the Closing Date, based on its
analysis of facts or events first occurring, or first discovered by Netherlands
Agent, after the Closing Date).  In
addition, Netherlands Agent
reserves the right, at any time and from time to time after the Closing Date,
to adjust any of the criteria set forth below and to establish new criteria, in
its reasonable credit judgment (based on its analysis of material facts or
events first occurring, or first discovered by


 


33





















 


Netherlands Agent, after the
Closing Date), subject to the approval of Supermajority Netherlands Lenders in the case of adjustments or new criteria
which have the effect of making more credit available.  Netherlands
Agent acknowledges that as of the Closing Date it does not know of any
circumstance or condition with respect to the Accounts that would require the
imposition of a Reserve which has not been imposed as of the Closing Date.  Eligible Netherlands Accounts shall not include any Account of any Netherlands Borrower:


 


(a)           that does not arise from the sale of goods or the
performance of services by such
Netherlands Borrower in the ordinary course of its business;


 


(b)           (i) upon which such Netherlands Borrower’s right to receive payment is not
absolute or is contingent upon the fulfillment of any condition whatsoever or
(ii) as to which such Netherlands Borrower
is not able to bring suit or otherwise enforce its remedies against the Account
Debtor through judicial process, or (iii) if the Account represents a progress
billing consisting of an invoice for goods sold or used or services rendered
pursuant to a contract under which the Account Debtor’s obligation to pay that
invoice is subject to such Netherlands Borrower’s completion of
further performance under such contract or is subject to the equitable lien of
a surety bond issuer;


 


(c)           to the extent of customer allowances (other than
discount arrangements that have been disclosed to and approved by Applicable
Agent) or to the extent of any defense, counterclaim, setoff or dispute
asserted as to such Account;


 


(d)           that is not a true and correct statement of bona
fide indebtedness incurred in the amount of the Account for merchandise sold to
or services rendered and accepted by the applicable Account Debtor;


 


(e)           with respect to which an invoice has not been sent
to the applicable Account Debtor;


 


(f)            that (i) is not owned by such Netherlands Borrower or
(ii) is subject to any right, claim, security interest or other interest of any
other Person, other than Liens in favor of Netherlands Agent or Netherlands
Security Trustee, on behalf of itself and Netherlands Lenders;


 


(g)           that arises from a sale to any director, officer,
other employee or Affiliate of any Credit Party, or to any entity that has any
common officer or director with any Credit Party other than an Apollo Operating
Company;


 


(h)           that is the obligation of an Account Debtor that is
a government or a political subdivision thereof, or any state, county or
municipality or department, agency or instrumentality thereof unless
Netherlands Agent, in its sole discretion, has agreed to the contrary in
writing and such Netherlands Borrower, if necessary or desirable, has complied
with respect to such obligation with any applicable law restricting the
assignment thereof with respect to such obligation;


 


(i)            whose invoice (i) is addressed to an Account Debtor
located outside an Approved Territory or in respect of which payment is to
originate from outside an Approved Territory, (ii) does not contain the correct
name and address of the Account Debtor and any


 


34





















 


required purchase order number or (iii) does
not contain the company registration number or VAT registration number of such
Netherlands Borrower;


 


(j)            to the extent such Netherlands Borrower or
any Subsidiary thereof is liable for goods sold, deposits made or services
rendered by the applicable Account Debtor to such Netherlands Borrower or any Subsidiary thereof but only to
the extent of the potential offset;


 


(k)           that arises with respect to goods that are
delivered on a bill-and-hold, cash-on-delivery basis or placed on consignment,
guaranteed sale or other terms by reason of which the payment by the Account
Debtor is or may be conditional;


 


(l)            that is in default based upon the following
criteria:


 


(i)            the Account (other than an Extended Netherlands
Account) is not paid within the earlier of: 30 days following its due date or
60 days following its original invoice date;


 


(ii)           the Account is an Extended Netherlands Account and is not paid within 30
days following its due date; or


 


(iii)          the Account Debtor obligated upon such Account suspends business, makes a
general assignment for the benefit of creditors or fails to pay its debts
generally as they come due or is otherwise Insolvent;


 


(m)          that is the obligation of an Account Debtor if 50%
or more of the Dollar Equivalent amount of all Accounts owing by that Account
Debtor are ineligible under the other criteria set forth in this Section
1.11 (other than subclause (i) of clause (i) hereof);


 


(n)           as to which Netherlands Security Trustee’s Lien
thereon, on behalf of itself, Netherlands Agent and Netherlands Lenders, is not
a first priority perfected Lien (unless, until the date five (5) Business Days
following the Triggering Date, such non-perfection results solely from the
failure of the Netherlands Trustee to record any deed of undisclosed pledge
covering such Account with the applicable tax authorities) or which is an
Account owing by an Account Debtor listed on Schedule 1.11(n)(1) and
located in a jurisdiction (other than the jurisdictions listed on Schedule
1.11(n)(2)) whose laws, as determined by Netherlands Agent based upon
advice from independent counsel, do not recognize the validity, enforceability
or priority of the Lien of Netherlands Security Trustee in such Account;


 


(o)           to the extent such Account exceeds, together with
other Accounts owing by that Account Debtor, any credit limit established by
the Credit Parties credit policies;


 


(p)           that is payable in any currency other than Dollars,
Euros, Swedish Krones or British Pounds Sterling;


 


(q)           which is an Account or
part of an Account as to which, unless not then required pursuant to Section 2.10,
the applicable Account Debtor has not been (i) given notice in writing of the
pledge to the Netherlands Security Trustee of present and future Accounts of
such


 


35





















 


Account
Debtor or (ii) instructed to make payment by electronic funds transfer into a
European Collection Account or by check;


 


(r)            to the extent such Account exceeds, together with
other Accounts owing by that Account Debtor, 5% (or, in the case of any Account
of an Account Debtor listed on Schedule 1.11(n)(1), the greater
percentage established for such Account Debtor on such Schedule, as updated by
Netherlands Agent semi-annually (or more frequently with the consent of the applicable
Netherlands Borrower)) of all Accounts of such Netherlands Borrower;


 


(s)           which is an Account that is subject to a
contractual restriction on assignment or is incapable of being validly assigned
by way of security under any applicable law; or


 


(t)            which is an Account or part of an Account which is
not subject to Dutch or Singapore law, or such other law as may have been
approved by Netherlands Agent.


 


1.12.        Omitted.


 


1.13.        Loan Accounts.  Each of US Agent and Netherlands Agent shall
maintain a loan account (each, a “Loan Account”) on its books for each
US Borrower or Netherlands Borrower, as applicable, to account for all
Advances, all payments made by US Borrowers or Netherlands Borrowers, as
applicable, and all other debits and credits as provided in this Agreement with
respect to the Loans or any other Obligations. 
All entries in each Loan Account shall be made in accordance with US
Agent’s or Netherlands Agent’s customary accounting practices as in effect from
time to time.  The balance in each Loan
Account, as recorded on US Agent’s or Netherlands Agent’s most recent printout
or other written statement, shall, absent manifest error, be presumptive
evidence of the amounts due and owing to US Agent and US Lenders by US
Borrowers or Netherlands Agent and Netherlands Lenders by Netherlands
Borrowers; provided that any failure to so record or any error in so
recording shall not limit or otherwise affect any US Borrower’s duty to pay the
US Obligations or any Netherlands Borrower’s duty to pay the Netherlands
Obligations.  US Agent and Netherlands
Agent shall render to US Borrower Representative and Netherlands Borrower
Representative, respectively, a monthly accounting of transactions with respect
to the Loans setting forth the balance of each Loan Account as to each US
Borrower and Netherlands Borrower for the immediately preceding month.  Unless Applicable Borrower Representative
notifies Applicable Agent in writing of any objection to any such accounting
(specifically describing the basis for such objection), within thirty (30) days
after the delivery thereof to US Borrower Representative or Netherlands
Borrower Representative, as applicable, each and every such accounting shall,
absent manifest error, be deemed final, binding and conclusive on US Borrowers
or Netherlands Borrowers, as the case may be, in all respects as to all matters
reflected therein.  Only those items
expressly objected to in such notice shall be deemed to be disputed by
Borrowers.  Notwithstanding any provision
contained herein to the contrary, any Lender may elect (which election may be
revoked) to dispense with the issuance of Notes to that Lender and may rely on
the Loan Accounts as evidence of the amount of Obligations from time to time
owing to it.


 


36





















 


1.14.        Yield Protection; Illegality.


 


(a)           Capital Adequacy and Other Adjustments.  In the
event that any Lender shall have determined that the adoption after the date
hereof of any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital adequacy, reserve requirements
or similar requirements or compliance by any Lender or any corporation
controlling such Lender with any request or directive from any central bank or
Governmental Authority or body charged with the administration thereof
regarding capital adequacy, reserve requirements or similar requirements
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) does or shall have the effect of increasing the
amount of capital, reserves or other funds required to be maintained by such
Lender or any corporation controlling such Lender and thereby reducing the rate
of return on such Lender’s or such corporation’s capital as a consequence of its
obligations hereunder, then US Borrowers in the case of a US Lender or
Netherlands Borrowers in the case of a Netherlands Lender shall from time to
time within fifteen (15) days after notice and demand from such Lender
(together with delivery of the certificate referred to in the next sentence and
with a copy to Applicable Agent) pay to Applicable Agent for the account of
such Lender, additional amounts sufficient to compensate such Lender for such
reduction.  A certificate as to the
amount of such cost and showing the basis of the computation of such cost
submitted by such Lender to Applicable Borrower Representative and Applicable
Agent shall, absent manifest error, be final, conclusive and binding for all
purposes.


 


(b)           Increased LIBOR or EURO LIBOR Funding Costs;
Illegality.  Notwithstanding anything to the contrary
contained herein, if the introduction of or any change after the date hereof in
any law, rule, regulation, treaty or directive (or any change after the date
hereof in the interpretation thereof by any central bank or Governmental
Authority charged with the administration thereof) shall make it unlawful, or
any central bank or other Governmental Authority shall assert that it is
unlawful, for any Lender to agree to make or to make or to continue to fund or
maintain any LIBOR Loan or any EURO LIBOR Loan, then, unless that Lender is
able to make or to continue to fund or to maintain such LIBOR Loan or EURO
LIBOR Loan at another branch or office of that Lender without, in that Lender’s
opinion, adversely affecting it or its Loans or the income obtained therefrom,
on notice thereof and demand therefor by such Lender to Applicable Borrower
Representative through Applicable Agent, (i) the obligation of such Lender
to agree to make or to continue to fund or maintain such LIBOR Loans or EURO
LIBOR Loans, as applicable, shall terminate and (ii) each US Borrower or
Netherlands Borrower, as the case may be, shall forthwith (but not earlier than
the last day of the applicable LIBOR Period) prepay in full all such
outstanding LIBOR Loans or EURO LIBOR Loans, as applicable, owing by such
Borrower to such Lender, together with interest accrued thereon, unless
US Borrower Representative on behalf of any such US Borrower or Netherlands
Borrower Representative on behalf of any such Netherlands Borrower, within five
(5) Business Days after the delivery of such notice and demand, converts all US
Revolving Loans that are EURO LIBOR Loans or LIBOR Loans into US Index Rate
Loans and all Netherlands Revolving Loans that are EURO LIBOR Loans into
Netherlands Base Rate Loans. If, after the date hereof, the introduction of,
change in any law, rule, regulation, treaty or directive (or any interpretation
thereof by any central bank or Governmental Authority charged with the administration
thereof) would impose or increase reserve requirements (other than as taken
into account in the definition of LIBOR or EURO LIBOR) or otherwise increase
the cost to any Lender of making or maintaining a LIBOR Loan or a EURO LIBOR
Loan, then US Borrowers or Netherlands Borrowers, as the case may be, shall
from time to time within fifteen (15) days after notice and


 


37





















 


demand from Applicable Agent to Applicable
Borrower Representative (together with the certificate referred to in the next
sentence) pay to such Applicable Agent, for the account of all such affected
Lenders, additional amounts sufficient to compensate such Lenders for such
increased cost.  A certificate as to the
amount of such cost and showing the basis of the computation of such cost
submitted by Applicable Agent on behalf of all such affected Lenders to
Applicable Borrower Representative shall, absent manifest error, be final,
conclusive and binding for all purposes.


 


1.15.        Taxes.


 


(a)           No Deductions.  Any and all payments or
reimbursements made hereunder (including any payments made pursuant to Section
10 or Section 11) shall be made in Dollars or Euros, as contemplated
by Section 1.17, free and clear of and without deduction for any and all
Charges, taxes, levies, imposts, deductions or withholdings, and all
liabilities with respect thereto of any nature whatsoever imposed by any
Governmental Authority (“Taxes”), excluding (i) franchise or capital
taxes and taxes to the extent imposed on Applicable Agent’s or a Lender’s
income as a result of a present or former connection between such Applicable
Agent or Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from such Applicable Agent or
such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement), (ii) any withholding tax that is
imposed on amounts payable to a US Foreign Lender at the time such US Foreign
Lender becomes a party to this Agreement and (iii) any withholding tax that is
imposed on amounts payable to a Foreign Lender that are attributable to such
Foreign Lender’s failure to comply with Section 1.15(c) (all such
excluded taxes, “Excluded Taxes,” and all such non-Excluded Taxes being
referred to herein as “Non-Excluded Taxes”).  If any Borrower shall be required by law to
deduct any such amounts from or in respect of any sum payable hereunder to any
Lender, US Agent, Netherlands Agent or Netherlands Security Trustee, then the
sum payable hereunder shall be increased as may be necessary so that, after
making all required deductions and withholdings, such Lender, US Agent, Netherlands
Agent or Netherlands Security Trustee receives an amount equal to the sum it
would have received had no such deductions been made.  All required deductions shall be withheld and
timely paid over to the relevant Governmental Authority in accordance with
applicable law.


 


(b)           Changes in Tax Laws.  In the
event that, subsequent to the Closing Date, (1) any changes in any
existing law, regulation, treaty or directive or in the interpretation or
application thereof, (2) any new law, regulation, treaty or directive
enacted or any interpretation or application thereof, or (3) compliance by
US Agent, Netherlands Agent, Netherlands Security Trustee or any Lender with
any request or directive (whether or not having the force of law) from any
Governmental Authority, does or shall subject US Agent, Netherlands Agent,
Netherlands Security Trustee or any Lender to any tax of any kind whatsoever
(other than Excluded Taxes described in Section 1.15(a)(i) above) with
respect to this Agreement, the other Loan Documents or any Loans made or
Letters of Credit issued hereunder (except for changes in the rate of any
Excluded Tax described in Section 1.15(a)(i) above) and the result of
any of the foregoing is to increase the cost to any of US Agent, Netherlands
Agent, Netherlands Security Trustee or any Lender of issuing any Letter of
Credit or making or continuing any Loan hereunder, as the case may be, or to
reduce any amount receivable hereunder, then, in any such


 


38





















 


case, Borrowers shall promptly pay to US
Agent, Netherlands Agent, Netherlands Security Trustee or any Lender, as
applicable, upon its demand, any additional amounts necessary to compensate US
Agent, Netherlands Agent, Netherlands Security Trustee or such Lender, on an
after-tax basis, for such additional cost or reduced amount receivable, as
determined by US Agent, Netherlands Agent, Netherlands Security Trustee or such
Lender with respect to this Agreement or the other Loan Documents.  If US Agent, Netherlands Agent, Netherlands
Security Trustee or such Lender becomes entitled to claim any additional
amounts pursuant to this Section 1.15(b), it shall promptly notify US
Borrower Representative or Netherlands Borrower Representative, as the case may
be, of the event by reason of which US Agent, Netherlands Agent, Netherlands
Security Trustee or such Lender has become so entitled.  A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by US Agent, Netherlands
Agent, Netherlands Security Trustee or such Lender to US Borrower
Representative or Netherlands Borrower Representative, as the case may be,
(with a copy to US Agent and/or Netherlands Agent, as the case may be) shall,
absent manifest error, be final, conclusive and binding for all purposes.


 


(c)           Foreign Lenders.  (i)  Prior to becoming a US Lender under this
Agreement and within fifteen (15) days after a reasonable written request of US
Borrower Representative or US Agent, from time to time thereafter, each such US
Lender that is not a “United States person” (as such term is defined in IRC
Section 7701(a)(3)) for U.S. federal income tax purposes (a “US Foreign
Lender”) shall provide to US Borrower Representative and US Agent, to the
extent it is legally entitled, a properly completed and executed IRS Form W-8BEN
or Form W-8ECI or other applicable form, certificate or document prescribed by
the IRS or other applicable taxing authority, certifying as to such US Foreign
Lender’s entitlement to an exemption from, or reduction in, withholding tax
with respect to payments to be made to such US Foreign Lender under this
Agreement and under the Notes (a “Certificate of Exemption”).  Notwithstanding anything to the contrary
herein, US Agent and US Borrower shall be entitled, to the extent required to
do so by law, to deduct or withhold Taxes from payments to such US Foreign
Lender at the applicable statutory rates, to the extent that such Foreign
Lender has not provided to US Borrower Representative or US Agent a Certificate
of Exemption establishing a complete exemption from deduction or withholding; provided,
that all such withholding shall cease upon delivery by such US Foreign Lender
of such Certificate of Exemption to US Borrower Representative or US Agent.


 


(ii)           Each
Netherlands Lender, and the successors and assignees of such Netherlands
Lender, organized under the laws of a jurisdiction outside of The Netherlands
(each, a “Netherlands Foreign Lender” and together with the US Foreign
Lenders, the “Foreign Lenders” and each a “Foreign Lender”), to
which payments to be made under this Agreement or under the Netherlands Notes
may be exempt from, or eligible for a reduced rate of, Netherlands withholding
tax under the law of the jurisdiction in which the relevant Netherlands Lender
is located or under any tax treaty to which such jurisdiction is a party,
shall, at the time or times prescribed by applicable law, provide to
Netherlands Borrowers (with a copy to Netherlands Agent) any applicable form,
certificate or document, in each case certifying as to such Netherlands Foreign
Lender’s entitlement to such exemption or reduction in rate.


 


(d)           Mitigation.  If a Borrower is required to pay
additional amounts to or for the account of any Lender pursuant to this Section
1.15 as a result of a change in law or treaty


 


39





















 


occurring after such Lender first became a
party to this Agreement, then such Lender will, at the request of the Borrower,
change the jurisdiction of its applicable lending office if such change (i)
will eliminate or reduce any such additional payment which may thereafter
accrue and (ii) is, in such Lender’s sole discretion, determined not to be
materially disadvantageous or cause unreasonable hardship to such Lender; provided,
that fees, charges, costs or expenses that are related to such change shall be
borne by the Borrower on behalf of a Lender, and the mere existence of such
expenses, fees or costs shall not be deemed to be materially disadvantageous or
cause undue hardship to the Lender.


 


(e)           Evidence of Payments.  As soon as
practicable after any payment of Non-Excluded Taxes by any Borrower to a
Governmental Authority, such Borrower shall deliver to Applicable Agent the
original or certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of payment reasonably satisfactory to Applicable Agent.


 


(f)            Value Added Tax.  All consideration (including
interest and fees) payable under any Loan Document by any Netherlands Borrower
or any other Subsidiary of Netherlands Holdings hereunder shall be deemed to be
exclusive of any VAT.  If VAT is
chargeable, after receipt of a Valid Invoice by the applicable Netherlands
Borrower the applicable Netherlands Borrower or such Subsidiary shall pay to
the Netherlands Agent, for the benefit of the Netherlands Lenders (in addition
to and at the same time as paying the consideration) an amount equal to the
amount of that VAT.  Where a Loan
Document requires any Netherlands Borrower or other Subsidiary of Netherlands
Holdings to reimburse the Netherlands Agent, Netherlands Security Trustee or
any Netherlands Lender for any costs or expenses, such Netherlands Borrower or
Subsidiary shall also at the same time pay and indemnify the Netherlands Agent,
Netherlands Security Trustee or any Netherlands Lender, as the case may be,
against all VAT incurred by it in respect of those costs and expenses, and if
VAT is chargeable on the reimbursement, the Netherlands Borrower or such
Subsidiary shall pay to Netherlands Agent, for the benefit of Netherlands
Lenders, within five (5) days after Netherlands Borrower’s receipt of a Valid
Invoice an amount equal to the amount of that VAT.


 


(g)           US Lenders.  Each US Lender and the successors
and assignees of such US Lender, to which payments to be made under this
Agreement by a US Borrower from the United Kingdom may be exempt from, or
eligible for a reduced rate of withholding tax under the law of the United Kingdom
or under any tax treaty between the United Kingdom and the US shall, at the
time or times prescribed by applicable law, provide the US Borrower
Representative (with a copy to US Agent) any applicable form, certificate or
document, in each case certifying as to such US Lender’s entitlement to such
exemption or reduction in rate to the extent such US Lender is legally entitled
to do so; provided, that such form, certificate or document is not
materially more onerous than the forms, certificates or documents required to
be provided by a US Foreign Lender under Section 1.15(c)(i); and provided
further that the costs of providing any such form certificate or
document under this Section 1.15(g) shall be borne by the US Borrowers.  If a US Lender is eligible for an exemption
from, or reduction of, such withholding tax, US Borrowers shall not be required
to increase any such amounts payable to a US Lender if such US Lender fails to
comply with the requirements of this Section 1.15(g).


 


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1.16.        Borrower
Representatives.  (i) Each US
Borrower hereby designates RPP USA (the “US Borrower Representative”) as
its representative and agent on its behalf for the purposes of issuing Notices
of US Revolving Credit Advances and Notices of Conversion/Continuation, giving
instructions with respect to the disbursement of the proceeds of the US
Revolving Loans, selecting interest rate options, requesting issuance of US
Letters of Credit, giving and receiving all other notices and consents
hereunder or under any of the other Loan Documents and taking all other actions
(including in respect of compliance with covenants) on behalf of any US
Borrower or US Borrowers under the Loan Documents.  US Borrower Representative hereby accepts
such appointment.  US Agent and each US
Lender may regard any notice or other communication pursuant to any Loan
Document from US Borrower Representative as a notice or communication from all
US Borrowers.  Each warranty, covenant,
agreement and undertaking made on its behalf by US Borrower Representative
shall be deemed for all purposes to have been made by such US Borrower and
shall be binding upon and enforceable against such US Borrower to the same
extent as it if the same had been made directly by such US Borrower.


 


(ii)   Each
Netherlands Borrower hereby designates Netherlands Op. Co. (the “Netherlands
Borrower Representative”) as its representative and agent on its behalf for
the purposes of issuing Notices of Netherlands Revolving Credit Advances and
Notices of Continuations/Conversions, giving instructions with respect to the
disbursement of the proceeds of the Netherlands Revolving Loans, selecting
interest rate options, requesting issuance of Netherlands Letters of Credit,
giving and receiving all other notices and consents hereunder or under any of
the other Loan Documents and taking all other actions (including in respect of
compliance with covenants) on behalf of any Netherlands Borrower or Netherlands
Borrowers under the Loan Documents. 
Netherlands Borrower Representative hereby accepts such
appointment.  Netherlands Agent,
Netherlands Security Trustee and each Netherlands Lender may regard any notice
or other communication pursuant to any Loan Document from Netherlands Borrower
Representative as a notice or communication from all Netherlands
Borrowers.  Each warranty, covenant,
agreement and undertaking made on its behalf by Netherlands Borrower
Representative shall be deemed for all purposes to have been made by such
Netherlands Borrower and shall be binding upon and enforceable against such
Netherlands Borrower to the same extent as it if the same had been made
directly by such Netherlands Borrower.


 


1.17.        Currency Conversions.


 


(a)           In connection with any amounts received in a lock
box or similar arrangement or in a European Collection Account in one currency
for application to Obligations denominated and payable in another currency, the
applicable Borrower at its expense shall cause the depositary bank immediately
to convert such receipt into such other currency for application to such
Obligation, provided Netherlands Op. Co. shall not be obligated to effect such
conversion to the extent that collections are received in Dollars in a European
Collection Account and will be available on the immediately succeeding Business
Day for transfer under Section 1.2(b) and Netherlands Op. Co. has
determined to request the transfer of such funds under Section 1.2(b).  Such receipt shall be deemed not to occur
(except for the purposes of the immediately preceding sentence) until such conversion
occurs, provided that to the extent that Netherlands Security Trustee has
control over the applicable European Collection Account and must act in order
to convert such currency, each Netherlands Borrower hereby irrevocably


 


41





















 


authorizes Netherlands Security Trustee so to
act and agrees to reimburse Netherlands Security Trustee for all costs of
conversion (which costs shall constitute Netherlands Obligations).  Netherlands Borrower hereby waives any and
all claims arising from any such conversion, other than those that have been
determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of Netherlands Security Trustee.


 


(b)           In connection with any Net Proceeds received by a
Credit Party in one currency required to be applied to Obligations denominated
and payable in another currency, the applicable Borrower at its expense shall
cause the depositary bank to convert such receipt into such other currency
prior to the required time of application to such Obligation.


 


(c)           For the purpose of determining whether repayments
must be made or cash collateral provided under Sections 1.1(a)(i),
1.2(a)(i), 1.1(a)(ii), 1.2(a)(ii), 1.1(d), or 1.2(d) on a date other than a
Commitment Termination Date, outstanding Loans denominated in Euros shall be
marked to market under the method set forth in paragraph (d) below on a
(a) monthly basis as long as Aggregate Borrowing Availability (determined
using the exchange rates in effect on the most recent date of conversion prior
to the date of determination) equals or exceeds $15,000,000, (b) weekly
basis as long as Aggregate Borrowing Availability (determined using the
exchange rates in effect on the most recent date of conversion prior to the
date of determination) equals or exceeds $7,500,000 but is less than
$15,000,000, and (c) on a daily basis as long as Aggregate Borrowing
Availability (determined using the exchange rates in effect on the most recent
date of conversion prior to the date of determination) is less than $7,500,000,
in each case as of the last Business Day of such period and taking into account
in each case the Dollar Equivalent of all Loans and Letter of Credit
Obligations outstanding in Euros.  For
the purposes of determining whether any Revolving Credit Advance or Letter of
Credit can be made or issued, outstanding Loans denominated in Euros shall be
marked to market at the time that such Revolving Credit Advance or Letter of
Credit is to be made using the method described in paragraph (d) of this Section
1.17.


 


(d)           For the purposes of paragraph (c) above, the mark
to market calculation for Loans denominated in Euros shall be calculated as the amount of
Dollars which would result from the conversion of the relevant amount of Euros
into Dollars, at the rate used by Applicable Agent’s treasury
function on such date (as described on Schedule 1.17(d), as revised from
time to time by Applicable Agent) or, if such date is not a Business Day, on
the Business Day immediately preceding such date of determination, or at such
other rate as may have been agreed in writing between the Borrower(s) and
Applicable
Agent.


 


(e)           All principal of and interest on a Loan denominated
in a currency shall be payable in such currency, subject to clauses (a) and (b)
above.


 


(f)            All cash collateral required for a Letter of Credit
shall be provided in the currency in which such Letter of Credit is
denominated.


 


(g)           All per annum fees payable in respect of a Letter
of Credit shall be payable in the currency in which such Letter of Credit is
denominated.


 


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(h)           All EURO LIBOR Breakage Fees shall be payable in
Euros.


 


(i)            All calculations of each US Borrowing Base and of
each Netherlands Borrowing Base shall be made in a Dollar Equivalent amount
using the method described in paragraph (d) of this Section 1.17 with
the same frequency as mark to market calculations are made under clause (c) of this Section 1.17.


 


(j)            Fees payable by the Netherlands Borrowers shall be
paid in Euro and fees payable by the US Borrowers shall be paid in Dollars.


 


(k)           Except as provided above, all US Obligations shall
be payable in Dollars and all Netherlands Obligations shall be payable in
Euros; provided, that Collateral Audit fees paid by Netherlands
Borrowers pursuant to Section 2.3 shall be paid in British Pounds
Sterling.


 


1.18.        Judgment
Currency; Contractual Currency.


 


(a)           If, for the purpose of obtaining or enforcing
judgment against any Borrower in any court in any jurisdiction, it becomes
necessary to convert into any other currency (such other currency being
hereinafter in this Section 1.18 referred to as the “Judgment
Currency”) an amount due under any Loan Document in any currency (the “Obligation
Currency”) other than the Judgment Currency, the conversion shall be made
at the spot rate of exchange prevailing on the Business Day immediately
preceding (i) the date of actual payment of the amount due, in the case of
any proceeding in the courts of any jurisdiction that will give effect to such
conversion being made on such date, or (ii) the date on which the judgment
is given, in the case of any proceeding in the courts of any other jurisdiction
(the applicable date as of which such conversion is made pursuant to this Section 1.18
being hereinafter in this Section 1.18 referred to as the “Judgment
Conversion Date”).


 


(b)           If, in the case of any proceeding in the court of
any jurisdiction referred to in Section 1.18(a), there is a change
in the spot rate of exchange prevailing between the Judgment Conversion Date
and the date of actual receipt for value of the amount due, the Applicable
Borrower shall pay such additional amount (if any, but in any event not a
lesser amount) as may be necessary to ensure that the amount actually received
in the Judgment Currency, when converted at the spot rate of exchange
prevailing on the date of payment, will produce the amount of the Obligation
Currency which could have been purchased with the amount of the Judgment
Currency stipulated in the judgment or judicial order at the spot rate of
exchange prevailing on the Judgment Conversion Date.  Any amount due from a Borrower under this Section 1.18(b)
shall be due as a separate debt and shall not be affected by judgment being
obtained for any other amounts due under or in respect of any of the Loan
Documents.


 


(c)           Omitted.


 


(d)           Any amount received or recovered by the Applicable
Agent or the Collateral Agent in respect of any sum expressed to be due to them
(whether for itself or as trustee for any other person) from any Borrower under
this Agreement or under any of the other Loan Documents in a currency other
than the currency (the “contractual currency”) in which such sum is so
expressed to be due (whether as a result of, or from the enforcement of, any
judgment or order of a court or tribunal of any jurisdiction, the winding-up of
a Borrower or


 


43





















 


otherwise) shall only constitute a discharge
of such Borrower to the extent of the amount of the contractual currency that
such Applicable Agent is able, in accordance with its usual practice, to
purchase with the amount of the currency so received or recovered on the date
of receipt or recovery (or, if later, the first date on which such purchase is
practicable).  If the amount of the
contractual currency so purchased is less than the amount of the contractual
currency so expressed to be due, such Borrower shall indemnify such Applicable
Agent against any loss sustained by it as a result, including the cost of
making any such purchase.


 


SECTION 2.

AFFIRMATIVE COVENANTS


 


Each US Credit Party jointly and severally
agrees with all other US Credit Parties as to all US Credit Parties, and each
Netherlands Credit Party jointly and severally agrees with all other
Netherlands Credit Parties as to all Netherlands Credit Parties that from and
after the date hereof and until the Termination Date:


 


2.1.          Compliance with Laws and
Contractual Obligations.  Each
Credit Party will (a) comply with, and cause each of its Subsidiaries to
comply with, (i) the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority (including, without
limitation, laws, rules, regulations and orders relating to taxes, employer and
employee contributions, securities, employee retirement and welfare benefits,
environmental protection matters and employee health and safety and the Data
Protection Directive (EU Directive 95/46/EC) and/or any analogous law to which
any Credit Party is subject) as now in effect and at all times after the
imposition of thereof, any laws, rules, regulations and orders which may be
imposed in the future in all jurisdictions in which any Credit Party or any of
its Subsidiaries is now doing business or may hereafter be doing business and
(ii) the obligations, covenants and conditions contained in all
Contractual Obligations of such Credit Party or any of its Subsidiaries, in
either case of clauses (i) and (ii) above, other than any such noncompliance
which could not be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect, and (b) maintain or obtain, and
cause each of its Subsidiaries to maintain or obtain, all licenses,
qualifications and permits now held or hereafter required to be held by such
Credit Party or any of its Subsidiaries, for which the loss, suspension,
revocation or failure to maintain, obtain or renew could reasonably be expected
to have, either individually or in the aggregate, a Material Adverse
Effect.  This Section 2.1
shall not preclude any Credit Party or its Subsidiaries from contesting any
taxes or other payments, if they are being diligently contested in good faith
in a manner which stays enforcement thereof and if appropriate expense
provisions have been recorded in conformity with GAAP, subject to Section 3.2.  Each Credit Party represents and warrants
that it (i) is in compliance and each of its Subsidiaries is in compliance
with the requirements of all applicable laws, rules, regulations and orders of
any Governmental Authority and the obligations, covenants and conditions
contained in all Contractual Obligations other than any such noncompliance
which could not be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect, and (ii) maintains and each of its
Subsidiaries maintains all licenses, qualifications and permits referred to in
clause (b) above.


 


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2.2.          Insurance; Damage to or
Destruction of Collateral.


 


(a)           The Credit Parties shall, at their sole cost and
expense, maintain the policies of insurance described on Schedule 5.18
as in effect on the date hereof or otherwise maintain or cause to be
maintained, with financially sound and reputable insurers, such public
liability insurance, third party property damage insurance, business
interruption insurance and casualty insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of the
Credit Parties as may customarily be carried or maintained under similar
circumstances by corporations or other legal entities engaged in similar
businesses, in each case in such amounts (giving effect to self-insurance of
liabilities), with such deductibles, covering such risks and otherwise on such
terms and conditions as shall be customary for corporations similarly situated
in the industry.  Such policies of
insurance (or the loss payable and additional insured endorsements delivered to
US Agent and Collateral Agent or Netherlands Agent and Netherlands Security
Trustee, as applicable) shall contain provisions pursuant to which the insurer
agrees to provide 30 (or, in the case of cancellation for non-payment of
premium, 10) days’ prior written notice to US Agent and Collateral Agent or
Netherlands Agent and Netherlands Security Trustee, as applicable, in the event
of any non-renewal, cancellation or amendment of any such insurance
policy.  If any Credit Party at any time
or times hereafter shall fail to obtain or maintain any of the policies of
insurance required above or to pay all premiums relating thereto, Applicable
Agent, Collateral Agent or Netherlands Security Trustee may at any time or
times thereafter obtain and maintain such policies of insurance and pay such
premiums and take any other action with respect thereto that Applicable Agent,
Collateral Agent or Netherlands Security Trustee reasonably deems
advisable.  Applicable Agent, Collateral
Agent and Netherlands Security Trustee shall have no obligation to obtain
insurance for any US Credit Party or any Netherlands Credit Party, as the case
may be, or pay any premiums therefor.  By
doing so, Applicable Agent, Collateral Agent and Netherlands Security Trustee
shall not be deemed to have waived any Default or Event of Default arising from
any US Credit Party’s or Netherlands Credit Party’s, as the case may be,
failure to maintain such insurance or pay any premiums therefor.  All sums so disbursed, including reasonable
attorneys’ fees, court costs and other charges related thereto, shall be
payable on demand by US Borrowers to US Agent and by Netherlands Borrowers to
Netherlands Agent or (as the case may be) Netherlands Security Trustee and
shall be additional US Obligations (in the case of US Borrowers) and Netherlands
Obligations (in the case of Netherlands Borrowers) hereunder secured by the
Collateral.  No Credit Party shall be
required to obtain “war risk” or anti-terrorism insurance with respect to any
aircraft owned or leased by it.


 


(b)           Each US Credit Party shall deliver to US Agent, in
form and substance reasonably satisfactory to US Agent, endorsements to
(i) all “All Risk” and business interruption insurance naming Collateral
Agent, on behalf of itself and Secured Creditors, as loss payee, and
(ii) all general liability and other liability policies naming US Agent,
on behalf of itself and US Lender, and Collateral Agent, as additional
insureds.  Each US Borrower shall
promptly notify US Agent of any loss, damage, or destruction to the Collateral
in the amount of $500,000 or the Dollar Equivalent thereof or more, whether or
not covered by insurance.


 


(c)           Each Netherlands Credit Party shall deliver to
Netherlands Agent, in form and substance reasonably satisfactory to Netherlands
Agent, endorsements to (i) all “All Risk” and business interruption
insurance naming each of Netherlands Agent and Netherlands Security Trustee, on
behalf of itself and Netherlands Lenders, as loss payee, and (ii) all
general liability and other liability policies naming each of Netherlands Agent
and Netherlands Security Trustee,


 


45





















 


on behalf of itself and Netherlands Lenders,
as additional insureds.  Each Netherlands
Borrower shall promptly notify Netherlands Agent of any loss, damage, or
destruction to the Collateral in the Dollar Equivalent amount of $500,000 or
more, whether or not covered by insurance.


 


2.3.          Inspection; Lender Meeting.  Each Credit Party shall, upon five (5)
Business Days’ notice, permit any authorized representatives of US Agent or
Netherlands Agent to visit, audit and inspect any of the properties of such
Credit Party and its Subsidiaries, including its and their financial and
accounting records, and to make copies and take extracts therefrom, and to
discuss its and their affairs, finances and business with its and their
officers and certified public accountants (so long as such Credit Party has the
opportunity to participate in any discussions with such certified public
accountants), at such reasonable times during normal business hours and without
undue disruption to the business of the Credit Parties as often as may be
reasonably requested (a “Collateral Audit”); provided, that so
long as no Event of Default has occurred and is continuing and Aggregate
Borrowing Availability equals or exceeds the Dollar Equivalent of $40,000,000,
no Agent shall conduct more than two Collateral Audits per year.  So long as an Event of Default has occurred
and is continuing, such Collateral Audits may be conducted on one Business Day’s
prior notice. Representatives of each Lender (at such Lender’s expense) will be
permitted to accompany representatives of US Agent and Netherlands Agent during
each visit, inspection and discussion referred to in the immediately preceding
sentence.  Without in any way limiting
the foregoing, each Credit Party will participate and will cause key management
personnel of each Credit Party and its Subsidiaries to participate in meetings
with the US Agent and the US Lenders and the Netherlands Agent and the Netherlands
Lenders at least once during each year, which meetings shall be held at such
time and such place as may be reasonably requested by Agents.  In addition, Borrowers agree to reimburse US
Agent, Netherlands Agent, Netherlands Security Trustee and/or the Collateral
Agent in connection with up to two Collateral Audits for each of the US
Borrowers and the Netherlands Borrowers per year (or more if an Event of
Default has occurred and is continuing or Aggregate Borrowing Availability is
less than $40,000,000) for: (i) the reasonable and documented actual
out-of-pocket costs (including reasonable fees and expenses) of such Collateral
Audit if a third party auditor is retained to conduct such audit or (ii) field
audit charges as the US Agent may from time to time establish (which are
presently $750 per person per day) per
diem per auditor per audit conducted with respect to any US Credit Party and
field audit charges as the Netherlands Agent may from time to time establish
(which are presently £500 per person per day), together with any VAT thereon
incurred by Netherlands Agent or Netherlands Security Trustee, per diem per
auditor per audit conducted with respect to any Netherlands Credit Party, plus,
in each case, actual reasonable, documented out-of-pocket expenses if US Agent’s
or Netherlands Agent’s in-house auditors conduct such Collateral Audit; provided,
that so long as no Default or Event of Default shall have occurred and be
continuing, such Collateral Audit expenses shall not exceed the Dollar Equivalent
of $100,000 per year.


 


2.4.          Organizational Existence.  Except as otherwise permitted by Section
3.6, each Credit Party will and will cause its Subsidiaries to at all times
preserve and keep in full force and effect (a) its organizational existence (provided
that any failure of any Credit Party to pay franchise taxes that does not
result in the termination of existence or dissolution of such Credit Party
shall not violate this Section) and (b) all rights and franchises with respect
to its business except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


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2.5.                              Environmental Matters.  Each Credit Party shall: (a) conduct its
operations and keep and maintain its Real Estate in compliance with all
Environmental Laws and Environmental Permits other than noncompliance that
could not reasonably be expected to have a Material Adverse Effect; (b) 
comply with Environmental Laws and Environmental Permits pertaining to the
presence, generation, treatment, storage, use, disposal, transportation or
Release of any Hazardous Material on, at, in, under, above, to, from or about
any of its Real Estate other than noncompliance that could not reasonably be
expected to have a Material Adverse Effect; (c) notify Applicable Agent
promptly after such Credit Party or any Person within its control becomes aware
of any violation of Environmental Laws or Environmental Permits or any Release
on, at, in, under, above, to, from or about any Real Estate that is reasonably
likely to result in Environmental Liabilities to a Credit Party or its
Subsidiaries in excess of $500,000
or the Dollar Equivalent thereof; (d) promptly forward to Applicable Agent a copy
of any order, notice, request for information or any communication or report
received by such Credit Party or any Person within its control in connection
with any such violation or Release or any other matter relating to any
Environmental Laws or Environmental Permits that could reasonably be expected
to result in Environmental Liabilities in excess of $500,000 or the Dollar Equivalent thereof, in each case whether or
not the Environmental Protection Agency or any Governmental Authority has taken
or threatened any action in connection with any such violation, Release or
other matter; and (e) implement any and all investigation, remediation, removal
and response actions that are appropriate or necessary in the event of a
Release of Hazardous Materials to maintain the value and marketability of the
Real Estate in all material respects (based on continued commercial or
industrial use as part of the Credit Parties’ business or a similar business to
that conducted on the Closing Date).


 


2.6.                              Landlords’ Agreements,
Mortgagee Agreements, Bailee Letters and Real Estate Purchases.  Each US Credit
Party shall use reasonable efforts to obtain a landlord’s agreement, mortgagee
agreement, or bailee letter, as applicable, from the lessor of each leased
property (provided that no such landlord’s agreement shall be required for any
property leased as of the Closing Date by any US Credit Party from Shell),
mortgagee of owned property or bailee with respect to any warehouse, processor
or converter facility or other location where Collateral is stored or located
(except for consignment locations for which clause (c) of the exclusions from
Eligible Inventory set forth in Section 1.9 shall apply and as to
which this Section 2.6 shall not apply), which agreement or
letter shall be reasonably satisfactory in form and substance to US Agent.  With respect to such locations or warehouse
space leased or owned by a US Credit Party as of the Closing Date and
thereafter, if US Agent has not received a landlord or mortgagee
agreement or bailee letter or if similar protections in form and substance
reasonably satisfactory to US Agent
are not contained in the underlying lease as of the Closing Date (or, if later,
as of the date such location is acquired or leased), the Eligible US Inventory and
Eligible US PPE at that location
shall, in US Agent’s
discretion, be subject to such Reserves as may be established by US Agent, which Reserves
shall not exceed six (6) months rent or mortgagee payments, in the case of
leased locations, or in the case of bailees, six (6) months storage fees.  After the Closing Date, no real property or
warehouse space shall be leased by any US Credit
Party or its Domestic Subsidiary and no Inventory shall be shipped to a
processor or converter under arrangements established after the Closing Date
(i) without the prior written consent of US Agent,
which consent shall not be unreasonably withheld or delayed, but in US Agent’s reasonable
credit judgment, may be conditioned upon the exclusion from the US Borrowing Base of
Eligible US Inventory and
Eligible US PPE at that location
and/or, the establishment of Reserves, or (ii)


 


47





















 


unless and until a satisfactory landlord
agreement or bailee letter, as appropriate, shall first have been obtained with
respect to such location; provided, that neither US Agent’s consent nor a
landlord agreement or bailee letter, as appropriate, shall be required with
respect to leases, shipments, storage arrangements or other locations at which
Eligible US Inventory and
Eligible US PPE with a book
value of less than $1,000,000 is stored or processed.  For purposes hereof, it is acknowledged that
a landlord agreement substantially in the form of Exhibit 2.6(a), a
bailee letter substantially in the form of Exhibit 2.6(b) or a mortgagee
agreement substantially in the form of Exhibit 2.6(c), as applicable,
shall be deemed to be satisfactory for purposes of complying with Section 2.6.  US Borrower
Representative shall promptly notify US Agent
if any lease for a leased location where Eligible US Inventory or Eligible US PPE with a book
value in excess of the Dollar Equivalent of $500,000 is located is terminated
or is threatened to be terminated.


 


2.7.                              Conduct of Business.  Except as permitted by Sections 3.6 and
3.7, each Credit Party shall at all times maintain, preserve and protect
all of its material assets and properties used or useful in the conduct of its
business in its good faith judgment, and keep the same in good repair, working
order and condition in all material respects (taking into consideration
ordinary wear and tear) and from time to time make, or cause to be made, all
necessary or appropriate repairs, replacements and improvements thereto
consistent with industry practices and transact business only in such corporate
and trade names as are set forth in Schedule 2.7 or as otherwise
disclosed in writing to Applicable Agent
from time to time pursuant to the Collateral Documents.


 


2.8.                              Supplemental Disclosure.  From time to time with the approval of Applicable Agent (such
approval not to be unreasonably withheld, provided that no such supplement
shall be permitted for Schedules 3.1 through Schedule 3.8,
inclusive), the Credit Parties may supplement each Disclosure Schedule hereto,
or any representation herein or in any other Loan Document, with respect to any
matter hereafter arising which, if existing or occurring at the date of this
Agreement, would have been required to be set forth or described in such Schedule or
as an exception to such representation or which is necessary to correct any
information in such Schedule or representation which has been rendered
inaccurate thereby (and, in the case of any supplements to any Schedule, such Schedule shall
be appropriately marked to show the changes made therein); provided  that
(a) no such supplement to any such Schedule or representation shall
be or be deemed a waiver of any Default or Event of Default resulting from the
matters disclosed therein, except as consented to by Applicable Agent and
Requisite Lenders in writing; and (b) no supplement shall be required as
to representations and warranties that relate solely to the Closing Date.


 


2.9.                              Cash Management. Each US Credit Party
shall enter into a tri-party lockbox account agreement and/or blocked account
agreement in form and substance reasonably satisfactory to US Agent and shall
deliver such agreements to US Agent with respect to all deposit accounts
(including lockbox accounts) of the US Credit Parties, other than (i) zero
balance disbursement accounts (it being understood that US Borrower
Representative will notify US Agent promptly if any zero balance disbursement
account is modified to constitute any other type of deposit account) and (ii) disbursement
accounts for petty cash existing on the Closing Date so long as no such disbursement
account under this clause (ii) has a balance greater than $1500.  The
lockbox account agreements and blocked account agreements shall not provide for
daily cash sweeps until an Event of Default has occurred or, in the case of
collection accounts, the


 


48





















 


Aggregate
Borrowing Availability shall be less than $40,000,000 or the US Borrowing
Availability shall be less than $20,000,000 (an
“Activation Event”); provided, that, following any
Activation Event daily cash sweeps shall continue unless and until US Agent
otherwise notifies the banks at which such accounts are maintained in writing.


 


2.10.                        Netherlands
Pledge of Accounts.


 


(a)                                  Not
later than five (5) Business Days (or such later date as Netherlands Security
Trustee shall permit) following receipt of notice by Netherlands Borrower
Representative from Netherlands Security Trustee that all European Collection
Accounts (that Netherlands Security Trustee intends to establish) have been
established and are operational and indicating an account number for each
European Collection Account (the date of receipt of such notice, herein the “Triggering
Date”), each Netherlands Borrower shall notify each of its Account Debtors
in writing of the pledge to the Netherlands Security Trustee of all present and
future Accounts of such Account Debtor and to make payments on Accounts by
electronic means to a European Collection Account or by check payable to the
order of and deliverable to the Netherlands Security Trustee.  At any time before or after Netherlands
Borrowers have provided such notice to its Account Debtors, Netherlands
Security Trustee or Netherlands Agent may notify any or all of Netherlands
Borrowers’ Account Debtors of such pledge.


 


(b)                                 No Netherlands Borrower
shall institute any other instructions or collection procedures without the
prior written consent of the Netherlands Agent. 
Netherlands Credit Parties shall promptly upon receipt deposit any
checks or other payments received from Account Debtors in payment of Accounts
into a European Collection Account, provided that prior to the establishment of
the European Collection Accounts, Netherlands Credit Parties shall deposit such
checks or other payments in the applicable Interim Account.  From and after the Termination Date (i) for a
period of not more than 120 days thereafter, Netherlands Security Trustee shall
maintain the European Collection Accounts and transfer on a daily basis
collected funds in the European Collection Accounts as directed by Netherlands
Borrower Representative and (ii) upon closing of any European Collection
Account, Netherlands Security Trustee shall transfer all funds therein as directed
by Netherlands Borrower Representative, so long as with respect to the
preceding clauses (i) and (ii), Netherlands Security Trustee is reimbursed for
the cost of and indemnified against any liability for doing so on terms
reasonably acceptable to Netherlands Security Trustee.


 


(c)                                  At
the request of Netherlands Borrower Representative, Netherlands Security
Trustee will use reasonable efforts to provide Netherlands Borrower
Representative with on-line “view only” access to the applicable banks’
statements with respect to the European Collection Accounts.


 


2.11.                        Further Assurances.


 


(a)                                  Each Credit Party shall, from time to time, execute
such guaranties, financing statements, documents, security agreements and
reports as Requisite Lenders at any time or,
with respect to US Obligations, US Agent or, with respect to Netherlands
Obligations, Netherlands Agent or Netherlands Security Trustee
may reasonably request to evidence, perfect or otherwise implement the
guaranties and security for repayment of the Obligations


 


49





















 


contemplated by
the Loan Documents, provided that no US Credit Party shall be required to be or shall be obligated
for Netherlands Obligations and no Netherlands Credit Party shall be required
to be or shall be obligated
for US Obligations.  Holdings shall cause
each of its Subsidiaries that has guaranteed any Senior Notes or Senior
Unsecured Subordinated Notes to guarantee the US Obligations.


 


(b)                                 In the event after the Closing Date any Credit
Party acquires any fee interest in real estate having a fair market value in
excess of $1,000,000 or any US Credit Party acquires any leasehold
interest in real estate having in excess of 75,000 square feet, such Credit
Party or US Credit Party, as applicable, shall deliver to the Applicable
Agent, a fully executed
mortgage, deed of trust or other similar document over such real property in
form and substance reasonably satisfactory to the Applicable Agent, in its reasonable
credit judgment, together with such title insurance policies, surveys,
appraisals, evidence of insurance, legal opinions, environmental assessments
and other documents and certificates as shall be reasonably required by the
Applicable Agent.


 


(c)                                  (i) Each US Credit
Party shall (x) cause each Person, upon its becoming a Domestic Subsidiary
of such US Credit Party
(provided that this shall not be construed to constitute consent by any of the
Lenders to any transaction referred to above which is not expressly permitted
by the terms of this Agreement), promptly to guaranty the US Obligations for the
benefit of US Agent
and US Lenders, and
promptly to grant a security interest in the real  (other than any real property that is not
required to be mortgaged under Section 2.11(b)) , personal and
mixed property of such Person to secure the US Obligations,
(y) promptly pledge, or cause to be pledged, to US Agent for the benefit
of US Agent and US Lenders, all of the
Stock of such Subsidiary that is a Domestic Subsidiary owned by such US Credit Party, and (z)
promptly pledge, or cause to be pledged, to US Agent
for the benefit of US Agent
and US Lenders, 66% of the
Voting Stock and 100% of the non-Voting Stock (provided that such non-Voting
Stock shall be established on terms reasonably acceptable to US Agent) of each
Foreign Subsidiary now or hereafter directly owned by any US Credit Party.  The documentation for such guaranty, security
and pledge shall be substantially similar to the Loan Documents executed
concurrently herewith with such modifications and together with such legal
opinions as are reasonably requested by US
Agent, but all such documentation shall be substantially the same in form,
scope and substance as the corresponding Loan Documents delivered on the
Closing Date (after allowing for differences between the law of any applicable
jurisdiction and that of any jurisdiction whose laws govern the corresponding
Loan Document).  Furthermore, limitations
on perfection of security interests consistent with those applied as of the
Closing Date will continue to be applied.


 


(ii)                           Each Netherlands Credit Party shall to the
extent legally possible and subject to customary limitations acceptable to
Netherlands Agent (x) cause each Person, upon its becoming a Material
Subsidiary of such Netherlands Credit Party (provided that this shall not be
construed to constitute consent by any of the Lenders to any transaction
referred to above which is not expressly permitted by the terms of this
Agreement), promptly to guaranty the Netherlands Obligations for the benefit of
Netherlands Agent, Netherlands Security Trustee and Netherlands Lenders, and
promptly to grant a security interest in the real, personal and mixed property
of such Person (other than leasehold interests in real property or owned real
property that is not required to be mortgaged under Section 2.11(b)) to secure the Netherlands Obligations and


 


50





















 


(y) promptly pledge, or cause to be
pledged, to Netherlands Security Trustee for the benefit of Netherlands Agent,
Netherlands Security Trustee and Netherlands Lenders, all of the Stock of any
Material Subsidiary owned by such Netherlands Credit Party.  The documentation for such guaranty, security
and pledge shall be substantially similar to the Loan Documents executed
concurrently herewith with such modifications and together with such legal
opinions as are reasonably requested by Netherlands Agent and Netherlands
Security Trustee, but all such documentation shall be substantially the same in
form, scope and substance as the corresponding Loan Documents delivered on the
Closing Date (after allowing for differences between the law of any applicable
jurisdiction and that of any jurisdiction whose laws govern the corresponding
Loan Document).  Furthermore, limitations
on perfection of security interests consistent with those applied as of the
Closing Date will continue to be applied.


 


2.12.                        Spanish Security Agreement.  On or prior to that date which is ten (10) days
after the Closing Date or such later date as the Netherlands Security Trustee
shall permit, Borrowers shall cause the Spanish Security Agreement to be
executed and all actions to be taken (including any required registration with
any applicable jurisdiction) in order that the Netherlands Security Trustee will
have a valid, perfected and enforceable first priority security interest in the
Collateral described therein.


 


2.13.                        Ancillary Texas Buildings.  The US Credit Parties shall take
reasonable measures to insure that they do not use the Ancillary Texas Buildings
(as defined below) for any purpose other than (i) to house contract
maintenance workers, (ii) for the storage of limited maintenance
equipment, or (iii) for a machine shop. 
In addition, the US Credit Parties covenant and agree
that they shall not use the Ancillary Texas Buildings for material shipping
or receiving or for any other use critical to the operations of the
US Credit Parties.  For purposes
hereof, the “Ancillary Texas Buildings” shall mean the three buildings located
either partially on the Real Property leased by Borrower in Deer Park, Texas
and partially on property adjacent to said leased property or completely on
said adjacent property with no apparent grant of rights from the adjacent
property owner to so use such buildings or the adjacent land.


 


SECTION 3.

NEGATIVE COVENANTS


 


Each US Credit Party jointly and severally agrees with all other US
Credit Parties as to all US Credit Parties, and each Netherlands Credit Party
jointly and severally agrees with all other Netherlands Credit Parties as to
all Netherlands Credit Parties that from and after the date hereof and until
the Termination Date:


 


3.1.                              Indebtedness.  The Credit Parties shall not, and shall not
cause or permit their Subsidiaries directly or indirectly to, create, incur,
assume, or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness (other than pursuant to a Contingent Obligation
permitted under Section 3.4) except:


 


(a)                                  the Obligations;


 


(b)                                 Indebtedness consisting of intercompany loans and
advances made by any Borrower to any Subsidiary of Holdings or by any
Subsidiary of Holdings to any Borrower;


 


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provided, that (i) the obligor of such loan or advance shall have executed
and delivered to the obligee of such loan or advance a demand note
(collectively, the “Intercompany Notes”) to evidence any such
intercompany Indebtedness so owing by such obligor at any time, which
Intercompany Notes shall be in form and substance reasonably satisfactory to
the Applicable Agent and
shall be pledged and delivered to the Applicable
Agent pursuant to the applicable Pledge Agreement or
Security Agreement or a similar Collateral Document as additional collateral
security for the US Obligations (in the case of an Intercompany Note pledged by
Holdings, a US Borrower or a Domestic Subsidiary of either) or the Netherlands
Obligations (in the case of an Intercompany Note pledged by Netherlands
Holdings or a Subsidiary thereof), provided that no such pledge shall be
required by Netherlands Holdings or any Subsidiary thereof until the date
thirty (30) days following the Closing Date (or such later date as the
Netherlands Security Trustee shall permit) at which time the applicable pledgor
shall execute and deliver such security agreements, resolutions and related
documents as Netherlands Security Trustee shall reasonably request; (ii) such
obligee shall record all intercompany transactions on its books and records in
a manner reasonably satisfactory to
Applicable Agent; (iii) the obligations of any Credit
Party under any such Intercompany Notes shall be subordinated to the
Obligations of such Credit Party pursuant to Section 9.22 or its
equivalent under any other agreement; 
(iv) at the time any such intercompany loan or advance is made by any
Borrower and after giving effect thereto, such Borrower and the obligor on such
intercompany loan shall be Solvent; (v) no Default or Event of Default would
occur and be continuing after giving effect to any such proposed intercompany
loan; (vi) in the case of any such intercompany loans made by a Borrower, there
will be Aggregate Borrowing
Availability of not less than $40,000,000 after giving effect to such
intercompany loan; (vii) the aggregate outstanding principal amount of such
intercompany loans owing by Netherlands Holdings and its Subsidiaries to the US
Borrowers under this Section 3.1(b), together with the amount of
investments made by Holdings and its Domestic Subsidiaries in Netherlands
Holdings and its Subsidiaries under Section 3.3(k)(i) through such
time, shall not exceed the Dollar Equivalent of $25,000,000, (viii) the
aggregate outstanding principal amount of such intercompany loans owing by RPP
USA and its Domestic Subsidiaries to the Netherlands Borrowers under this Section 3.1(b),
together with the amount of investments made by Netherlands Holdings and its
Subsidiaries in RPP USA and its Domestic Subsidiaries under Section 3.3(k)(ii)
through such time, shall not exceed the Dollar Equivalent of $25,000,000 and
(ix) the aggregate outstanding principal amount of such intercompany loans
owing under this Section 3.1(b) by Subsidiaries of Holdings that
are not Credit Parties at any time, together with the amount of investments
made by Credit Parties in such Subsidiaries under Section 3.3(k)(ii)
through such time shall not exceed the Dollar Equivalent of $10,000,000;


 


(c)                                  the Senior Secured Notes in an aggregate principal
amount not in excess of $140,000,000 and the Senior Second Priority Secured
Notes in an aggregate principal amount not in excess of $200,000,000, in each
case, less any payments of principal, redemptions, repurchases or defeasances
thereof on or after the Closing Date;


 


(d)                                 Omitted;


 


(e)                                  the Senior Unsecured Subordinated Notes in an
aggregate principal amount not in excess of $328,000,000, less any payments of
principal, redemptions, repurchases or defeasances thereof on or after the
Closing Date;


 


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(f)                                    Indebtedness set forth on Schedule 3.1(f)
hereof, including any refinancing or replacement thereof (except any
refinancing or replacement of Indebtedness described on such Schedule that
consists of intercompany loans and advances among the Credit Parties) so long
as it does not increase the outstanding principal amount thereof (except to pay
fees, premiums, accrued interest and expenses in connection therewith) or
decrease the maturity thereof;


 


(g)                                 Omitted;


 


(h)                                 Omitted;


 


(i)                                     any other unsecured Indebtedness in a Dollar
Equivalent aggregate principal amount of up to $20,000,000.


 


(j)                                     Indebtedness of RPP USA or any of its Subsidiaries
consisting of (x) the financing of insurance premiums in the ordinary course of
business or (y) take-or-pay obligations contained in supply arrangements
entered into in the ordinary course of business and on a basis consistent with
past practice;


 


(k)                                  Indebtedness with respect to performance bonds,
surety bonds, appeal bonds or customs bonds required in the ordinary course of
business or in connection with the enforcement of rights or claims of any
Borrower or any of its Subsidiaries or in connection with judgments that do not
result in a Default or an Event of Default, provided that the aggregate
outstanding amount of all such performance bonds, surety bonds, appeal bonds
and customs bonds permitted by this clause (k) shall not at any time
exceed $10,000,000;


 


(l)                                     Indebtedness under (i) Hedge Agreements entered
into to protect any Borrower against fluctuations in interest rates in respect
of Indebtedness otherwise permitted to be incurred by such Borrower under this
Agreement and (ii) other Hedge Agreements so long as management of such Credit
Party has determined that the entering into of any such Hedge Agreement is a
bona fide hedging activity (and is not for speculative purposes) and is in the
ordinary course of business and consistent with past practices;


 


(m)                               (x) Indebtedness of a Subsidiary acquired pursuant
to a Permitted Acquisition (or Indebtedness assumed by any Borrower or any of
its Wholly-Owned Subsidiaries pursuant to a Permitted Acquisition as a result
of a merger or consolidation or the acquisition of an asset securing such
Indebtedness) (the “Permitted Acquired Debt”), so long as (i) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition and (ii) such Indebtedness does
not constitute debt for borrowed money (except to the extent such Indebtedness
cannot be repaid in accordance with its terms at the time of its assumption
pursuant to such Permitted Acquisition (without the payment of a penalty or
premium) and the aggregate principal amount of all such Indebtedness for
borrowed money permitted pursuant to this parenthetical does not exceed $25,000,000), it being understood and
agreed that Capital Lease Obligations and purchase money Indebtedness shall not
constitute debt for borrowed money for purposes of this clause (ii) and (y)
Capital Lease Obligations and Indebtedness of any Borrower and any of its
Subsidiaries representing purchase money Indebtedness secured by Liens
permitted pursuant to Section 3.2(a), provided that the sum
of (I)


 


53





















 


the aggregate principal amount
of all Permitted Acquired Debt at any time outstanding plus (II) the aggregate
amount of Capital Lease Obligations incurred on and after the Closing Date and
outstanding at any time (including Indebtedness evidenced by Capital Lease
Obligations arising from Permitted Sale-Leaseback Transactions) plus (III) the
aggregate principal amount of all such purchase money Indebtedness incurred on
and after the Closing Date and outstanding at any time, shall not exceed $50,000,000;


 


(n)                                 Indebtedness of RPP USA or any of its Subsidiaries
which may be deemed to exist in connection with agreements providing for
indemnification, purchase price adjustments, earn-outs and similar obligations
in connection with acquisitions or sales of assets and/or businesses effected
in accordance with the requirements of this Agreement (so long as any such
obligations are those of the Person making the respective acquisition or sale,
and are not guaranteed by any other Person);


 


(o)                                 Indebtedness of any Borrower or any of its
Subsidiaries arising from the honoring by a bank or other financial institution
of a check, draft or other similar instrument inadvertently drawn against
insufficient funds, so long as such Indebtedness is repaid within three (3)
Business Days;


 


(p)                                 the PEP Note in a principal amount not exceeding
$2,000,000 less any principal payments made thereunder;


 


(q)                                 Indebtedness of Holdings to RPP USA incurred
pursuant to the Shell Buyback;


 


(r)                                    refinancings, refundings, extensions and renewals
of the forgoing that do not accelerate the amortization thereof, increase the
principal amounts thereof (except to cover premiums, fees, costs and expenses),
materially increase the interest rates applicable thereto, have additional
guarantors thereof, or enhance the collateral therefor or priority thereof and
are otherwise in compliance with Section 3.10 (as if effected by
amendment or other modification);


 


(s)                                  Indebtedness incurred by Holdings and not
guaranteed by any other Credit Party (i)
that is unsecured and that is subordinated to the Obligations at least to the
same extent as are the Senior Subordinated Notes, (ii) for which no other
Credit Party has any liability as a guarantor, surety, principal or otherwise,
and (iii) which until the date referred to in clause (a) of the definition of “US
Commitment Termination Date” requires no payment in cash of interest and no
payment, prepayment, repurchase, redemption, deposit or defeasance of principal
(other than pursuant to
required offers to repurchase upon sales of assets or change of control on terms consistent with those contained as
of the date hereof in the Senior Note Documents); and


 


(t)                                    Indebtedness of Holdings to a Borrower with respect
to Restricted Payments in the form of intercompany loans permitted to be made
pursuant to Section 3.5.


 


3.2.                              Liens and Related Matters.


 


(a)                                  No Liens.  The Credit Parties shall not and
shall not cause or permit their Subsidiaries to directly or indirectly create,
incur, assume or permit to exist any Lien on or with respect to any property or
asset of such Credit Party or any such Subsidiary, whether now owned


 


54





















 


or hereafter acquired, or any
income or profits therefrom, except Permitted Encumbrances (including, without
limitation, those Liens constituting Permitted Encumbrances existing on the
date hereof, as set forth on Schedule 3.2 and renewals and
extensions thereof permitted hereunder).


 


(b)                                 Omitted.


 


(c)                                  No Restrictions on Subsidiary Distributions to
Borrowers.  Except as provided herein, the Credit Parties
shall not, and shall not cause or permit their Subsidiaries to, directly or
indirectly create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of any such
Subsidiary to: (1) create or assume any Lien in favor of Applicable Agent, Collateral Agent,
Netherlands Security Trustee and Lenders upon its
properties or assets, whether now owned or hereafter acquired, (2) pay
dividends or make any other distribution on any of such Subsidiary’s Stock
owned by any Borrower or any other Subsidiary; (3) pay any Indebtedness
owed to any Borrower or any other Subsidiary; (4) make loans or advances
to any Borrower or any other Subsidiary; or (5) transfer any of its
property or assets to any Borrower or any other Subsidiary in each case except
for such encumbrances or restrictions existing under or by reason of
(i) applicable law, rule, regulation or order, (ii) this Agreement
and the other Loan Documents, (iii) provisions restricting subletting or
assignment of any lease governing a leasehold interest, (iv)  provisions
restricting assignment of any contract entered into by any Borrower or any
Subsidiary of any Borrower, (v) customary provisions restricting the
assignment of licensing agreements, management agreements or franchise
agreements entered into by any Borrower or any of its Subsidiaries in the
ordinary course of business, (vi)  any restriction or encumbrance with
respect to a Subsidiary imposed pursuant to an agreement which has been entered
into for the sale or disposition of all or substantially all of the equity
interests or assets of such Subsidiary, so long as such sale or disposition of
all or substantially all of the equity interests or assets of such Subsidiary
is permitted under this Agreement, (vii)  restrictions contained in
agreements governing Indebtedness that do not restrict Applicable Agent’s, Collateral Agent’s,
Netherlands Security Trustee’s and Lenders’ ability to
obtain first priority perfected Liens on the assets of any Credit Party,
subject to Permitted Encumbrances and do not restrict the payment of the Loans
and the other Obligations, (viii) restrictions on the transfer of assets
securing purchase money obligations, industrial revenue bonds and Capital Lease
Obligations otherwise permitted under this Agreement, (ix) restrictions on the
transfer of assets pursuant to executory contracts for the sale thereof, (x)
for Permitted Encumbrances of the type specified in clause (f) of the
definition thereof, (xi) the Senior Note Documents and the Subordinated
Debt Agreements or permitted refinancings thereof, (x) restrictions on cash or
other deposits under contracts for the purchase of Inventory or Equipment
entered into in the ordinary course of business, (xi) contractual encumbrances
or restrictions in effect on the Closing Date or any agreements related to any
permitted renewal, extension or refinancing of any Indebtedness existing on the
Closing Date that does not expand the scope of any such encumbrance or
restriction; (xii) customary provisions in joint venture agreements and other
similar agreements applicable to joint ventures; (xiii) any restrictions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement to the extent that such restrictions apply only to the property or
assets securing such Indebtedness; (xiv) customary provisions contained in
leases or licenses of intellectual property and other similar agreements
entered into in the ordinary course of business; (xv) customary restrictions
and conditions contained in any agreement relating to the sale of any asset


 


55





















 


permitted under Section 3.7
pending the consummation of such sale; or (xvi) any agreement in effect at the
time such subsidiary becomes a Subsidiary, so long as such agreement was not
entered into in contemplation of such person becoming a Subsidiary.


 


3.3.                              Investments.  The Credit Parties shall not, and shall not
cause or permit their Subsidiaries to, directly or indirectly make or own any
Investment in any Person except:


 


(a)                                  Investments in Cash Equivalents subject, in the
case of US Credit Parties, to
Control Agreements in favor of Applicable
Agent;


 


(b)                                 intercompany loans to the extent permitted under Section 3.1(b),
3.1(q)  and 3.1(t);


 


(c)                                  Borrowers and their Subsidiaries may make loans and
advances to employees for moving, entertainment, travel and other similar
expenses in the ordinary course of business and for the purchase of common
stock and options in an amount the Dollar Equivalent of which does not exceed the Dollar Equivalent of $5,000,000
in the aggregate at any time outstanding;


 


(d)                                 Borrowers and their Subsidiaries may acquire and
hold receivables owing to any of them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms (including the dating of receivables) of any such Borrower or any
such Subsidiary;


 


(e)                                  Borrowers and their Subsidiaries may acquire and
own investments (including debt obligations and equity securities) received in
connection with the bankruptcy or reorganization of suppliers and customers and
in settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;


 


(f)                                    Hedge Agreements permitted under Section 3.1(l);


 


(g)                                 Holdings, any Borrower or any Subsidiary of
Holdings or any Borrower may acquire and hold obligations of one or more
officers or other employees of Holdings or any Borrower or any Subsidiary of
Holdings or any Borrower in connection with such officers’ or employees’
acquisition of shares of Holdings common Stock, so long as no cash is actually
advanced by Holdings or any Borrower or any Subsidiary of Holdings or any
Borrower to such officers or employees in connection with the acquisition of
any such obligations;


 


(h)                                 any Borrower and any of its Wholly-Owned
Subsidiaries may make Permitted Acquisitions in accordance with Section 3.6;


 


(i)                                     Borrowers and their Subsidiaries may own the Stock
of their respective Subsidiaries in existence on the Closing Date or created or
acquired in accordance with the terms of this Agreement (so long as all amounts
invested in such Subsidiaries are independently justified under another
provision of this Section 3.3);


 


(j)                                     Borrowers and their Subsidiaries may make advances
in the form of a prepayment of expenses, so long as such expenses were incurred
in the ordinary course of


 


56





















 


business and are being paid in
accordance with customary trade terms of such Borrower or such Subsidiary;


 


(k)                                  (i) Holdings and its Domestic Subsidiaries may make
and own capital contributions in cash to Netherlands Holdings and its
Subsidiaries and capitalize or forgive any Indebtedness owed to them by
Netherlands Holdings and such Subsidiaries and outstanding under Section 3.1(b)
in an amount the Dollar Equivalent of which together with the outstanding
principal amount of Indebtedness owing by Netherlands Holdings and its
Subsidiaries to US Borrowers under Section 3.1(b), does not exceed
the Dollar Equivalent of $25,000,000 at
any time, (ii) Netherlands
Holdings and its Subsidiaries may make and own capital contributions in cash to
RPP USA and its Domestic Subsidiaries and capitalize or forgive any
Indebtedness owed to them by RPP USA and such Domestic Subsidiaries and
outstanding under Section 3.1(b) in an amount the Dollar Equivalent
of which together with the outstanding principal amount of Indebtedness owing
by RPP USA and its Domestic Subsidiaries to Netherlands Borrowers under Section 3.1(b),
does not exceed the Dollar Equivalent of $25,000,000 at any time, and (iii) Credit Parties make and own
capital contributions in cash to Subsidiaries that are not Credit Parties and
capitalize or forgive any Indebtedness owed to them by such Subsidiaries and
outstanding under Section 3.1(b) in an amount the Dollar Equivalent
of which together with the outstanding principal amount of Indebtedness owing
by such Subsidiaries to Borrowers under Section 3.1(b), does not
exceed the Dollar Equivalent of $10,000,000
at any time;


 


(l)                                     Investments consisting of asset transfers among
Credit Parties permitted hereunder so long as such transfer does not create a US Overadvance
hereunder;


 


(m)                               Investments existing on the Closing Date and listed
on Schedule 3.3;


 


(n)                                 Investments in promissory notes and other evidence
of Indebtedness received as partial consideration for any Asset Disposition
permitted hereunder;


 


(o)                                 Investments in Joint Ventures (including increased
Investments in any existing joint ventures) not to exceed the Dollar Equivalent
of $20,000,000 in the aggregate plus any proceeds actually received by the
respective investor in respect of Investments theretofore made by it pursuant
to this paragraph (o), provided, that the Credit Parties shall promptly
take all steps reasonably necessary to enable Applicable
Agent, Collateral Agent or Netherlands Security Trustee to
obtain perfected Liens on such Investments including the stock of any Joint
Venture owned by a Credit Party (except to the extent such Lien would violate
any applicable contractual arrangement governing such Joint Venture that was in
effect prior to the Closing Date); and


 


(p)                                 the Credit Parties may convey, lease, license, sell
or otherwise transfer or acquire assets and properties to the extent permitted
under Section 3.6;


 


(q)                                 other Investments in an aggregate amount (valued at
the time of the making thereof, and without giving effect to any write-downs or
write-offs thereof) not to exceed the
Dollar Equivalent of $20,000,000 (plus any proceeds
actually received by the respective investor in respect of Investments
theretofore made by it pursuant to this paragraph (q)); provided, that
the Credit Parties shall promptly take all steps reasonably necessary to enable
Applicable Agent, Collateral Agent or
Netherlands Security Trustee to obtain first priority


 


57





















 


perfected Liens on such
Investments, including the stock of any Joint Venture owned or acquired by a
Credit Party;


 


(r)                                    At any time, Investments to the extent of any
Restricted Payments that could be made under Section 3.5(k) at such
time; and


 


(s)                                  Investments by Holdings in Stock of Holdings and
Holdings PIK Junior Subordinated Notes to the extent permitted by Section 3.18(iv)
and Investments by Holdings in Stock of Holdings permitted by Section 3.5(d).


 


3.4.                              Contingent Obligations.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly create or become
or be liable with respect to any Contingent Obligation except:


 


(a)                                  Letter of Credit Obligations;


 


(b)                                 those resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;


 


(c)                                  those existing on the Closing Date and described in
Schedule 3.4;


 


(d)                                 those arising under indemnity agreements to title
insurers to cause such title insurers to issue to Applicable Agent
mortgagee title insurance policies;


 


(e)                                  those arising with respect to customary
indemnification obligations incurred in connection with Asset Dispositions
permitted hereunder;


 


(f)                                    omitted;


 


(g)                                 those incurred with respect to Indebtedness of
Credit Parties permitted by Section 3.1 provided that any such
Contingent Obligation is subordinated to the Obligations to the same extent as
the Indebtedness to which it relates is subordinated to the Obligations, and provided,
however, that any Contingent Obligations incurred by Holdings or any of
its Domestic Subsidiaries of Indebtedness of Netherlands Holdings or its
Subsidiaries or by Netherlands Holdings or any of its Subsidiaries of
Indebtedness of RPP USA or any of its Domestic Subsidiaries shall be treated as
an Investment under Section 3.3(k) to the extent of the full amount
of such Indebtedness outstanding from time to time;


 


(h)                                 Contingent Obligations of (x) RPP USA or any of its
Domestic Subsidiaries as a guarantor of the lessee or contracting party, as the
case may be, under any lease or other contract pursuant to which RPP USA or any
of its Domestic Wholly-Owned Subsidiaries is the lessee or contracting party so
long as such lease or other contract is otherwise permitted hereunder, (y)
Netherlands Holdings or any of its Subsidiaries as a guarantor of the lessee or
contracting party, as the case may be, under any lease or other contract
pursuant to which Netherlands Holdings or any of its Wholly-Owned Subsidiaries
is the lessee or contracting party so long as such lease or other contract is
otherwise permitted hereunder, and (z) RPP USA or any of its Subsidiaries as a
guarantor of any Capital Lease Obligation to which a Joint Venture is a party or
any contract entered into by such Joint Venture in the ordinary course of
business;


 


58





















 


provided that the maximum
liability of RPP USA or any such Subsidiary in respect of any obligations as
described pursuant to this clause (y) is permitted as an Investment on such
date pursuant to the requirements of Section 3.3;


 


(i)                                     Hedge Agreement permitted under Section 3.1(l);


 


(j)                                     those deemed to exist pursuant to acquisition
agreements entered into in connection with Permitted Acquisitions (including
any obligation to pay the purchase price therefore and any indemnification,
purchase price adjustment and similar obligations);


 


(k)                                  Contingent Obligations with respect to performance
bonds, surety bonds, appeal bonds or customs bonds required in the ordinary
course of business or in connection with the enforcement of rights or claims of
any Borrower or any of its Subsidiaries or in connection with judgments that do
not result in an Event of Default, provided that the Dollar Equivalent of the
aggregate outstanding amount of all such performance bonds, surety bonds,
appeal bonds and customs bonds permitted by this clause (k) shall not at
any time exceed the Dollar
Equivalent of $10,000,000;


 


(l)                                     Contingent Obligations of any Credit Party with
respect to primary obligations of any other Credit Party (other than Holdings);
provided, however, that any Contingent Obligations incurred by
Holdings or any of its Domestic Subsidiaries of Indebtedness of Netherlands
Holdings or its Subsidiaries or by Netherlands Holdings or any of its
Subsidiaries of RPP USA or any of its Domestic Subsidiaries shall be treated as
an Investment under Section 3.3(k) to the extent of the full amount
of such Indebtedness outstanding from time to time; other than primary
obligations (i) evidenced by the PEP Note (except to the extent such Contingent
Obligation is created at the time of the delivery of the PEP Note) and (ii)
constituting Permitted Acquired Debt;


 


(m)                               any other unsecured Contingent Obligation not
expressly permitted by clauses (a) through (l) above, so long as the Dollar
Equivalent of any such other Contingent Obligations, in the aggregate at any
time outstanding, does not exceed $25,000,000;
and


 


(n)                                 refinancings, refundings, extensions and renewals
of the forgoing that do not accelerate the amortization thereof, increase the
principal amounts thereof (except to cover premiums, fees, costs and expenses),
materially increase the interest rates applicable thereto, have additional
guarantors thereof, or enhance the collateral therefor or priority thereof and
are otherwise in compliance with Section 3.10 (as if effected by
amendment or other modification).


 


3.5.                              Restricted Payments.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly declare, order,
pay, make or set apart any sum for any Restricted Payment, except that:


 


(a)                                  Any Borrower may make payments, distributions or
intercompany loans to Holdings that are used by Holdings to pay federal and
state income taxes (including used by Holdings to compensate a Subsidiary for
the use of a tax benefit by the Holdings tax group) then due and owing,
franchise taxes and other similar licensing expenses incurred in the ordinary
course of business, professional fees, audit expenses and other expenses
related to the maintenance of Holdings as a holding company and provide for all
other operating costs of


 


59





















 


Holdings, including, without
limitation, in respect of director fees and expenses, administrative, legal and
accounting services provided by third parties and other customary out-of-pocket
costs and expenses, including all costs and expenses with respect to filings
with the Securities and Exchange Commission, or that such Borrower or Holdings
is required to pay pursuant to applicable law; provided that such
Borrower’s aggregate contribution to taxes as a result of the filing of a
consolidated or combined return by Holdings or of having its income otherwise includable
on a tax return of Holdings shall not be greater, nor the aggregate receipt of
tax benefits less, than they would have been had such Borrower filed a stand
alone tax return.


 


(b)                                 Wholly-Owned Subsidiaries of a Borrower may make
Restricted Payments described in clause (a) of the definition thereof to such
Borrower or another Wholly-Owned Subsidiary of a Borrower that is a Credit
Party hereunder, including, without limitation, Restricted Payments in the form
of promissory notes or other debt obligations with respect to which such
Wholly-Owned Subsidiary is the obligor;


 


(c)                                  RPP USA may make Constructive Distributions to
Holdings;


 


(d)                                 Borrowers may make Restricted Payments to Holdings
to permit Holdings to, and Holdings may, repurchase Stock owned by employees of
Holdings, Borrowers or their Subsidiaries whose employment with Borrowers and
their Affiliates has been terminated, provided that such Restricted
Payments shall not exceed the Dollar
Equivalent of $2,500,000
in any Fiscal Year plus a carry-forward of unused amounts from prior years or the Dollar Equivalent of $12,500,000 during
the term of this Agreement; provided  further that such amount in
any calendar year and the aggregate amount may be increased by an amount not to
exceed the cash proceeds of keyman life insurance policies received by
Holdings, any Borrower or any of its Subsidiaries and applied to the repurchase
of Stock;


 


(e)                                  Any Subsidiary of any Credit Party that is not a
Wholly-Owned Subsidiary may make Restricted Payments described in clause (a) of
the definition thereof to its shareholders or partners generally, so long as
the Borrower or the Subsidiary that owns the equity interest or interests in
the Subsidiary making such Restricted Payments receives at least its
proportionate share thereof (based upon its relative holdings of equity
interest in the Subsidiary making such Restricted Payments and taking into
account the relative preferences, if any, of the various classes of equity
interests in such Subsidiary or the terms of any agreements applicable
thereto);


 


(f)                                    Omitted;


 


(g)                                 The Credit Parties may make Restricted Payments
described in clause (a) of the definition thereof to minority shareholders of
any Acquisition Target in connection with a Permitted Acquisition; provided,
that such payments are within the limits set forth in Section 3.6(b)(v);


 


(h)                                 So long as no Event of Default has occurred and is
continuing or would be caused thereby and Aggregate Borrowing Availability is
no less than the Dollar
Equivalent of $40,000,000 after
giving effect thereto, the payment of dividends on any Borrower’s common stock
(or dividends, distributions or advances to Holdings to allow Holdings to pay
(and


 


60





















 


Holdings may pay) dividends on
Holdings’ common stock), following any Qualified Public Offering of Holdings’
or any Borrower’s common stock, of (i) in the case of an offering of common
stock of Holdings, up to 5.00% per annum of the amount contributed to the
Borrowers by Holdings from the proceeds received by Holdings from such
offering, or (ii) in the case of an offering of common stock of any Borrower,
up to 5.00% per annum of the net proceeds received by such Borrower in such
offering, other than, in each case, public offerings with respect to Stock
registered on Form S-8;


 


(i)                                     So long as no Event of Default has occurred and is
continuing or would be caused thereby and Aggregate Borrowing Availability is
no less than $50,000,000 after giving effect thereto,
RPP USA may make Restricted Payments to Holdings in order to permit Holdings to
(and Holdings may) repurchase from Shell all of the Stock and Indebtedness of
Holdings held by Shell and its Affiliates (the “Shell Buyback”);


 


(j)                                     RPP USA may make Restricted Payments to Holdings to
the extent Holdings is required to issue cash in lieu of fractional shares to
accommodated anti-dilution adjustments made to holders of its Stock;


 


(k)                                  Borrowers and Holdings may make Restricted Payments
not expressly permitted by clauses (a) through (j)
above, provided, that at the time of and after giving effect to such
Restricted Payment: (i) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by Borrowers and Holdings pursuant
to this paragraph (k) and the aggregate amount of any prepayments and
repurchases of Indebtedness pursuant to clause (v) of Section 3.18
and the aggregate amount of Investments permitted by Section 3.3(r),
is less than the sum of $20,000,000
plus 50% of the Consolidated Net Income of RPP USA for the period (taken
as one accounting period) from the Closing Date to the end of the Fiscal Month
for which financial statements have been delivered under Section 4.1(a)
ending on or most recently prior to the date on which such Restricted Payment
occurs, (ii) Aggregate Borrowing Availability shall be no less than $40,000,000 and (ii) no Event of
Default shall have occurred and be continuing or would result after giving
effect to such Restricted Payment.


 


3.6.                              Restriction on Fundamental
Changes.


 


(a)                                  The Credit Parties shall not and shall not cause or
permit their Subsidiaries to directly or indirectly:  (i) amend, modify or waive any term or
provision of its organizational documents, including its articles of incorporation,
memorandum of association, certificates of designations pertaining to preferred
stock, by-laws, partnership agreement or operating agreement in any manner
which would adversely affect Applicable Agent,
Collateral Agent, Netherlands Security Trustee or Lenders in any material
respect unless required by law; (ii) enter into any transaction of merger
or consolidation except, upon not less than five (5) Business Days’ prior
written notice to Applicable Agent,
(A) any Wholly-Owned Subsidiary of a Borrower may be merged with or into such
Borrower or any other Wholly-Owned Subsidiary of such Borrower and (B) the
merger of RPP Capital Corporation with Holdings, with RPP Capital Corporation
being the surviving entity of such merger (and thereafter having all rights and
obligations of Holdings hereunder and being substituted for Holdings hereunder
and under the other Loan Documents) so long as after the Closing Date and
through the date of such merger RPP Capital Corporation shall not have acquired
from any other Credit Party any material assets;


 


61





















 


(iii) liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution) except, upon not
less than five (5) Business Days’ prior written notice to Applicable Agent, any
Wholly-Owned Subsidiary of a Borrower may liquidate, wind up, or dissolve
itself (or suffer any liquidation of dissolution) into such Borrower (provided
that such Borrower is the surviving entity) or any other Wholly-Owned
Subsidiary of such Borrower; provided that no Wholly-Owned Domestic
Subsidiary may dissolve itself (or suffer any dissolution) into any Foreign
Subsidiary of any Credit Party or (iv) acquire by purchase or otherwise
all or any substantial part of the business or assets of any other Person other
than a Credit Party or a Wholly-Owned Subsidiary of a Credit Party, provided,
no Credit Party that is not a US Credit Party may acquire all or any
substantial part of the business or assets of a US Credit Party.


 


(b)                                 Notwithstanding the foregoing, RPP USA or any
Wholly-Owned Subsidiary of RPP USA, may acquire all or substantially all of the
assets of any Person (the “Acquisition Target”) or operating division or
line of business of any Acquisition Target or 100% of the outstanding Stock of
any Acquisition Target or cause any Acquisition Target to be merged with it or
liquidated, wound up or dissolved into it (in each case, a “Permitted
Acquisition”), subject to compliance with the following conditions:


 


(i)                                     Agents shall receive at least 14 days’ prior written
notice of such proposed Permitted Acquisition, which notice shall include a
reasonably detailed description of such proposed Permitted Acquisition;


 


(ii)                                  such Permitted Acquisition shall involve only those
assets of a business similar or reasonably incidental to a Permitted Business
or otherwise permitted under Section 3.9;


 


(iii)                               such Permitted Acquisition shall be consensual and
shall have been approved by the Acquisition Target’s board of directors (or
equivalent entity);


 


(iv)                              no additional Indebtedness, Guaranteed Indebtedness
or Contingent Obligations shall be incurred, assumed or otherwise be reflected
on a consolidated balance sheet of Borrowers and Acquisition Target after
giving effect to such Permitted Acquisition, except (A) Loans made hereunder
and Permitted Acquired Debt, (B) industrial revenue bonds, pollution control
bonds and other tax-exempt financing, Capital Leases, and installment purchase
Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real
Estate and any accessions thereto or proceeds thereof and related property in
each case, of the Acquisition Target, and not incurred in anticipation of such
Permitted Acquisition, (C) ordinary course trade payables, accrued expenses and
unsecured Indebtedness of the Acquisition Target to the extent no Default or
Event of Default has occurred and is continuing or would result after giving
effect to such Permitted Acquisition and (D) other Indebtedness permitted under
Section 3.1;


 


(v)                                 the Dollar Equivalent of the sum of all amounts
payable in connection with all Permitted Acquisitions (including all
transaction costs and all Indebtedness, liabilities and Contingent Obligations
incurred or assumed in connection therewith or otherwise reflected on a
consolidated balance sheet of Borrowers and Acquisition Target) shall not
exceed (A) in the case of any Permitted Acquisition by RPP USA or a
Wholly-Owned Subsidiary of


 


62





















 


RPP USA $25,000,000 individually and $50,000,000 in any Fiscal Year or (B) in the case of any Permitted
Acquisition by Netherlands Holdings or any Wholly-Owned Subsidiary of
Netherlands Holdings, $8,333,334 individually or $16,666,667 in any Fiscal
Year;


 


(vi)                              if, at the time
of such Permitted Acquisition and after giving pro
forma effect thereto as
if such Permitted Acquisition occurred on the first day of the 12 month period
then ended, the Fixed Charge Coverage Ratio for the twelve
month period for which
financial statements have been delivered pursuant to Section 4.1(a) or (b) ending on or most recently prior to such
Permitted Acquisition is less than 1.1:1.0, either (A) the
Acquisition Target shall have had positive EBITDA
for the trailing twelve-month period preceding the date of the Permitted
Acquisition, as determined based upon the Acquisition Target’s financial
statements for its most recently completed fiscal year and its most recent
interim financial period completed within sixty (60) days prior to the date of
consummation of such Permitted Acquisition or (B) the sum of (x) EBITDA of RPP
USA and its Subsidiaries for the twelve month period for which financial
statements have been delivered pursuant to Section 4.1(a) or (b)
ending on or most recently prior to such Permitted Acquisition plus (y)
EBITDA of the Acquisition Target for the same period as determined from its
financial statements for the same period is greater than $60,000,000;


 


(vii)                           the business and assets acquired in such Permitted
Acquisition shall be free and clear of all Liens (other than Permitted
Encumbrances);


 


(viii)                        at or prior to the closing of any Permitted
Acquisition, the Applicable
Agent, Collateral Agent or Netherlands Security Trustee, as applicable,
will be granted a first priority perfected Lien (subject only to Permitted
Encumbrances) in all assets acquired pursuant thereto or in the assets and
Stock of the Acquisition Target, and Holdings and Borrowers and the Acquisition
Target shall have executed such documents and taken such actions as may be
required by Agents
in connection therewith and Borrowers shall have complied with Section 2.11
in respect of such Permitted Acquisition;


 


(ix)                                Concurrently with delivery of the notice referred
to in clause (i) above, Borrowers shall have delivered to Applicable Agent, in form and
substance reasonably satisfactory to Applicable
Agent:


 


(A)                              a pro forma consolidated balance sheet, income
statement and cash flow statement of RPP USA and its Subsidiaries (the “Acquisition
Pro Forma”), based on recent financial statements, which shall be complete
and shall fairly present in all material respects the assets, liabilities,
financial condition and results of operations of RPP USA and its Subsidiaries
in accordance with GAAP consistently applied, but taking into account such
Permitted Acquisition and the funding of all Indebtedness assumed or incurred
in connection therewith, and such Acquisition Pro Forma shall reflect that
average daily Aggregate Borrowing Availability under the Commitments for the
90-day period preceding the consummation of such Permitted Acquisition would
have exceeded $40,000,000 on a pro forma basis (after giving effect to such
Permitted Acquisition, all Loans funded and Permitted Acquired Debt incurred in
connection therewith as if made on the first day of such period) and the


 


63





















 


Acquisition
Projections (as hereinafter defined) shall reflect that such Aggregate
Borrowing Availability of $40,000,000 shall continue for at least 90 days after
the consummation of such Permitted Acquisition, provided that for Permitted
Acquisitions with an aggregate purchase price of less than $10,000,000, the
Acquisition Pro Forma shall be limited to a pro forma summary of Aggregate
Borrowing Availability for the 90-day preceding period;


 


(B)                                updated projections of Aggregate Borrowing
Availability covering the one-year period commencing on the date of such
Permitted Acquisition on a month-by-month
basis (the “Acquisition Projections”), taking into account such
Permitted Acquisition; and


 


(C)                                a certificate of a Responsible Officer of the
Applicable Borrower Representative to the effect that: (x) the Acquisition Pro
Forma fairly presents in all material respects the financial condition of RPP
USA and its Subsidiaries (on a consolidated basis) as of the date thereof after
giving effect to the Permitted Acquisition or, for Permitted Acquisitions with
an aggregate purchase price of less than $10,000,000, reasonable retrospective
projections of Aggregate Borrowing Availability; and (y) the Acquisition
Projections are reasonable projections of Aggregate Borrowing Availability;


 


(x)                                   if such Permitted Acquisition includes owned or
leased real estate, with an allocated purchase price (or, if none, a fair
market value) of at least $1,000,000 a phase I environmental audit with respect
to the Acquisition Target in scope and substance consistent with the
environmental audits delivered prior to the Closing Date demonstrating that
Acquisition Target and its assets are not subject to any material Environmental
Liabilities; provided, that a phase I environmental audit shall be
required only if the relevant Credit Parties are not adequately indemnified
against such material Environmental Liabilities by a credit-worthy indemnitor
as reasonably determined by the Applicable
Agent;


 


(xi)                                at least five (5) days prior to the date of such
Permitted Acquisition, Applicable Agent
shall have received drafts of the acquisition agreement and related agreements
and instruments, and the final versions of such acquisition agreement and
related agreements and instruments shall not be materially more adverse to the
Credit Parties, taken as a whole, than the drafts received, unless Applicable Agent
receives updated drafts at least five (5) days prior to the date of such
Permitted Acquisition; and


 


(xii)                             at the time of such Permitted Acquisition and after
giving effect thereto, no Default or Event of Default shall have occurred and
be continuing hereunder and no “Default” or “Event of Default” has occurred and
is continuing under any Note Document.


 


Notwithstanding the foregoing, (a) the Accounts and Inventory of the
Acquisition Target shall not be included in Eligible US Accounts, Eligible Netherlands Accounts
or Eligible US
Inventory until Applicable Agent
has received a reasonably satisfactory Collateral Audit report and Appraisal
with respect thereto and (b) the PPE of the Acquisition Target shall not be
included in Eligible PPE at any time.  Further notwithstanding the
foregoing (1) with respect to any single Permitted Acquisition for which the
aggregate purchase price is less than the
Dollar


 


64





















 


Equivalent of $10,000,000,
the conditions set forth in clauses (i) and (xi) need not be complied with and
(2) with respect to the PEP Acquisition, no condition need be complied with and
such acquisition shall in all events be a Permitted Acquisition hereunder.  For purposes of calculating the aggregate
purchase price in connection with any Permitted Acquisition, any Stock of
Holdings used as consideration shall be excluded.


 


3.7.                              Disposal of Assets or
Subsidiary Stock.  The Credit
Parties shall not and shall not cause or permit their Subsidiaries to directly
or indirectly convey, sell, lease, sublease, license, sublicense, option, transfer or
otherwise dispose of, or grant any Person an option to acquire, in one
transaction or a series of related transactions, any of its property, business
or assets, whether now owned or hereafter acquired, except for


 


(a)                                  dispositions of obsolete, worn out or permanently
retired assets not used or useful in the business of the Credit Parties (in
each case in the reasonable opinion of such Credit Party);


 


(b)                                 Omitted;


 


(c)                                  Asset Dispositions by Borrowers and their
Subsidiaries if all of the following conditions are met:  (i) the Dollar Equivalent of the
aggregate market value of assets sold or otherwise disposed of in any Fiscal
Year does not exceed $15,000,000; (ii) the
consideration received is at least equal to the fair market value of such
assets; (iii) at least 75%
of the consideration received is cash; (iv) 
the Net Proceeds of such Asset Disposition are used to prepay Revolving Loans
to the extent required by Section 1.6(c); (v) after giving
effect to the Asset Disposition and the repayment of Indebtedness with the
proceeds thereof, Aggregate
Borrowing Availability is at least $40,000,000;
and (vi) no Default or Event of Default then exists or
would result from such Asset Disposition;


 


(d)                                 Borrowers and any of their Subsidiaries may effect
Permitted Sale-Leaseback Transactions in accordance with the definition
thereof, provided that (x) the aggregate amount of all proceeds received
by Borrowers and their Subsidiaries from all Permitted Sale-Leaseback
Transactions consummated on and after the Closing Date shall not exceed the Dollar Equivalent of
$25,000,000 and (y) the Net Proceeds
from all such Permitted Sale Leaseback Transactions are applied to repay Loans
to the extent required by Section 1.6(c);


 


(e)                                  Omitted;


 


(f)                                    any conveyance, sale, lease, sublease, license,
sublicense, option,
transfer or other disposition of assets not consisting of Asset Dispositions;


 


(g)                                 any conveyance, sale, lease, sublease, license,
sublicense, option,
transfer or other disposition of assets the proceeds of which are used for
Capital Expenditures within 360 days of such Asset Disposition; and


 


(h)                                 any conveyance, sale, transfer or other disposition
of the Investments described in Section 3.3(e).


 


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3.8.                              Transactions with Affiliates.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly enter into or
permit to exist any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any management, consulting,
investment banking, advisory or other similar services) with any Affiliate or
with any director, officer or employee of any Credit Party, except (a) as
set forth on Schedule 3.8, (b) transactions (other than
payment of management, consulting or advisory fees to Apollo Group, Apollo Management
or its Affiliates, which are permitted under paragraph (h) of this Section 3.8)
pursuant to the reasonable requirements of the business of any such Credit
Party or any of its Subsidiaries and upon fair and reasonable terms which, to
the extent such transaction involves payment or asset transfers in excess of
$5,000,000 in a single transaction or series of transactions, are fully
disclosed to Applicable
Agent and are no less favorable to any such Credit Party or any of its
Subsidiaries than would be obtained in a comparable arm’s length transaction
with a Person that is not an Affiliate, (c) payment of reasonable
compensation to officers and employees for services actually rendered to any
such Credit Party or any of its Subsidiaries, (d)  payments of customary
director’s fees, (e) transactions among any two or more of Holdings and
Subsidiaries of Holdings not otherwise prohibited under this Agreement, (f)
transactions between Affiliates and Holdings with respect to the Stock of
Holdings not otherwise prohibited hereunder, (g) Restricted Payments permitted
by Section 3.5, (h) payment by RPP USA to Apollo Group pursuant to the
Apollo Management Agreement of management fees in connection with management
services provided to Holdings and its Subsidiaries, and advisory fees in
connection with acquisitions and other transactions and the reasonable
out-of-pocket expenses of Apollo Group incurred in connection with management
services and acquisition and transaction advice, in an aggregate amount not to
exceed the amounts specified in the Apollo Management Agreement as in effect on
the date hereof per Fiscal Year payable (1) in the case of management fees,
quarterly on a pro rata basis, (2) in the case of advisory fees, after the
closing of any acquisition or transaction, and (3) in the case of
expenses, at the time when such expenses are incurred; provided, that no
such payments may be made if an Event of Default has occurred and is continuing
at the time of such payment or would occur as a result thereof; provided,
however, that, if any portion of such management fees or advisory fees
is not paid pursuant to the foregoing proviso, such management fees or advisory
fees shall be payable to Apollo Group upon the waiver or cure of such Event of
Default, (i) any transaction or series of transactions in respect of which any
Borrower delivers to Applicable Agent
a letter addressed to the Board of Directors of such Borrower or Holdings from
an accounting, appraisal or investment banking firm, in each case of nationally
recognized standing that is (1) in the good faith determination of such
Borrower or Holdings qualified to render such letter and (2) reasonably
satisfactory to Applicable
Agent, which letter states that such transaction or series of transactions is
on terms that are no less favorable to such Credit Party than would be obtained
in a comparable arm’s-length transaction with a person that is not an Affiliate
and (j) the merger contemplated by Section 3.6(a)(ii)(B).


 


3.9.                              Conduct of Business.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly engage in any
business other than businesses engaged in as of the Closing Date and businesses
reasonably related thereto which would not materially adversely affect (i) the
ability of Applicable Agent
and Lenders to sell or otherwise dispose of the Collateral or (ii) the Credit
Parties’ potential Environmental Liabilities.


 


3.10.                        Changes Relating to
Indebtedness.  The Credit Parties
shall not and shall not cause or permit their Subsidiaries to directly or
indirectly change or amend the terms of any of its


 


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Indebtedness permitted by Section 3.1(c)
and 3.1(e) if the effect of such amendment is to: (a) increase the
interest rate on such Indebtedness; (b) accelerate the dates upon which
payments of principal or interest are due on or principal amount of such
Indebtedness; (c) change any event of default or add or make more
restrictive any covenant with respect to such Indebtedness; (d) materially
change the redemption or prepayment provisions of such Indebtedness in a manner
adverse to the interest of any Applicable Agent, Lenders or Netherlands
Security Trustee; (e) change the subordination provisions thereof (or the
subordination terms of any guaranty thereof), provided, that Holdings
may change the subordination provisions of the Holdings PIK Junior Subordinated
Notes Indenture in order to permit the redemption, repurchase or repayment by
Holdings of same to the extent not prohibited hereunder and US Lenders and US
Agent hereby consent to such change and; or (f) change or amend any other
term if such change or amendment would materially increase the obligations of
the obligor or confer additional material rights on the holder of such
Indebtedness in a manner adverse to any Credit Party or Lenders.


 


3.11.                        Fiscal Year.  No Credit Party shall change its Fiscal Year
or permit any of its Subsidiaries to change their respective Fiscal Years.


 


3.12.                        Press Release; Public
Offering Materials.  Each Credit
Party executing this Agreement agrees that it will not issue any press release
or similar public statement using the name of GE Capital, GE Netherlands or their respective Affiliates
without at least two (2) Business Days’ prior notice to GE Capital or GE Netherlands, as applicable, and
without the prior written consent of GE Capital or
GE Netherlands, as applicable, (which consent shall not be
unreasonably withheld or delayed and shall be deemed given if no objection is
made within such two (2) Business Day period). 
For purposes of clarification, no such notice or consent is required
with respect to any filing with any Government Authority required by applicable
law.  Each Credit Party consents to the
publication by any Agent
or any Lender of a tombstone or similar advertising material relating to the
financing transactions contemplated by this Agreement.  US
Agent, Netherlands Agent or such Lender shall provide a
draft of any such tombstone or similar advertising material to each Credit Party
for review and comment prior to the publication thereof.  Applicable
Agent reserves the right to provide to industry trade
organizations information necessary and customary for inclusion in league table
measurements.


 


3.13.                        Omitted.


 


3.14.                        Bank Accounts.


 


(a)                                  The US Credit
Parties shall not and shall not cause or permit their Domestic Subsidiaries to
establish or maintain any deposit account unless (i) the
bank at which the deposit account is to be opened is located in the United
States, and (ii) prior to or concurrently with the establishment of any
such deposit account (except as otherwise permitted by Section 2.9),
such bank enters into a tri-party agreement regarding such deposit account
pursuant to which such bank acknowledges the security interest of US Agent
in such deposit account, agrees to comply with instructions originated by US Agent directing
disposition of the funds in the deposit account without further consent from
such US Credit Party, and
agrees to subordinate or limit any security interest the bank may have in the
deposit account on terms satisfactory to US
Agent.


 


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(b)                                 No Netherlands Borrower shall
establish or, from and after the date 90 days following the Triggering Date,
maintain, any deposit account into which any Accounts are paid
(excluding disbursement accounts used as of the Closing Date for such purpose)
or direct (after the Triggering Date) that payments on Accounts be made other
than by check deliverable to and payable to the order of the Netherlands
Security Trustee or by electronic means to a European Collection Account.


 


3.15.                        Hazardous Materials.  Except as could not reasonably be expected to
have a Material Adverse Effect, the Credit Parties shall not and shall not
cause or permit their Subsidiaries to cause or permit a Release of any
Hazardous Material on, at, in, under, above, to, from or about any of the Real
Estate where such Release would (a) violate in any respect, or form the
basis for any Environmental Liabilities by the Credit Parties or any of their
Subsidiaries under, any Environmental Laws or Environmental Permits or
(b) otherwise adversely impact the value or marketability of any of the
Real Estate.


 


3.16.                        Employee Matters.  The Credit Parties shall not and shall not
cause or permit any ERISA Affiliate to, cause or permit to occur an ERISA Event
to the extent such ERISA Event could reasonably be expected to have a Material
Adverse Effect.


 


3.17.                        Sale-Leasebacks.  The Credit Parties shall not and shall not
cause or permit any of their Subsidiaries to engage in any sale-leaseback,
synthetic lease or similar transaction involving any of its assets other than
Permitted Sale-Leaseback Transactions.


 


3.18.                        Prepayments of Other
Indebtedness; Interest Payments. 
The Credit Parties shall not, directly or indirectly, voluntarily
purchase, redeem, defease or prepay any principal of, premium, if any, interest
or other amount payable in respect of any Indebtedness, other than (i) the
Obligations; (ii) Indebtedness secured by a Permitted Encumbrance if the asset
securing such Indebtedness has been sold or otherwise disposed of in accordance
with Section 3.7, to the extent such Indebtedness shall have become
due and payable as a result of such disposition, (iii) intercompany Indebtedness
reflecting amounts owing to Credit Parties, (iv) the repurchase by Holdings of
Holdings PIK Junior Subordinated Notes as part of the Shell Buyback so long as
such Holdings PIK Junior Subordinated Notes are cancelled upon repurchase, (v)
prepayments and repurchases of Indebtedness to the extent of any Restricted
Payments that could be made under Section 3.5(k) at such time; (vi)
refinancings permitted by Section 3.1; (vii) purchases,
redemptions, defeasances or prepayments made
solely with
common Stock of Holdings or US Borrower and (viii) so long
as no Event of Default has occurred and is continuing or would be caused
thereby, prepayments of the PEP Note.  No
Credit Party shall make any payment of principal of, interest on or fees or
expenses payable in connection with, any Indebtedness in violation of any
subordination provisions to which such Indebtedness is subject and that benefit
the holder of any Obligations.


 


3.19.                        OFAC.  No
Credit Party (i) will become a person whose property or interests in property
are blocked or subject to blocking pursuant to Section 1 of Executive
Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)), (ii) will engage in any dealings or transactions
prohibited by Section 2 of such executive order, or be otherwise
associated with any such person in any manner violative of Section 2, or
(iii) will otherwise


 


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become a person on the list of
Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions under any other OFAC regulation or executive order.


 


SECTION 4.

FINANCIAL REPORTING


 


Each US Credit Party jointly and severally agrees with all other US
Credit Parties as to all US Credit Parties, and each Netherlands Credit Party
jointly and severally agrees with all other Netherlands Credit Parties as to
all Netherlands Credit Parties that, from and after the date hereof until the
Termination Date, each US Credit Party shall perform and comply with, and shall
cause each of the other US Credit Parties to perform and comply with, and each
Netherlands Credit Party shall perform and comply with, and cause each other
Netherlands Credit Party to perform and comply with, all covenants in this Section 4
applicable to such Person.


 


4.1.                              Financial Statements and
Other Reports.  Holdings and
Borrowers will maintain, and cause each of their Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of Financial Statements in conformity
with GAAP (it being understood that unaudited Financial Statements are not
required to have footnote disclosures).  US Borrower
Representative will deliver each of the Financial Statements and other reports
described below to the Agents
for further delivery to each Lender in the case of the Financial Statements and
other reports described in Sections 4.1(a), (b), (d), (f), (g), (h), and (k)).


 


(a)                                  Monthly Financials.  As soon as
available and in any event within thirty (30) days after the end of each month
(including the last month of RPP USA’s Fiscal Year), the US Borrower
Representative will deliver (1) the consolidated balance sheets of RPP USA
and its Subsidiaries, as at the end of such month, and the related consolidated
statements of income, stockholders’ equity and cash flow for such month and for
the period from the beginning of the then current Fiscal Year of RPP USA to the
end of such month, (2) a report setting forth in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year
and (3) a schedule of the outstanding Indebtedness for borrowed money
of RPP USA and its Subsidiaries describing in reasonable detail each such debt
issue or loan outstanding and the principal amount and amount of accrued and
unpaid interest with respect to each such debt issue or loan.


 


(b)                                 Year-End Financials.  As soon as
available and in any event within ninety (90) days after the end of each Fiscal
Year of RPP USA, US
Borrower Representative will deliver (1) the consolidated balance sheets
of RPP USA and its Subsidiaries, as at the end of such Fiscal Year, and the
related consolidated and consolidating statements
of income, stockholders’ equity and cash flow for such Fiscal Year, (2) a schedule of
the outstanding Indebtedness for borrowed money of RPP USA and its Subsidiaries
describing in reasonable detail each such debt issue or loan outstanding and the
principal amount and amount of accrued and unpaid interest with respect to each
such debt issue or loan and (3) a report with respect to the consolidated
Financial Statements from a firm of Certified Public Accountants selected by
Borrowers and reasonably acceptable to Agents,
which report shall be prepared in accordance with Statement of Auditing
Standards No. 58 (the “Statement”) “Reports on Audited Financial
Statements” and


 


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such report shall be “Unqualified”
as to going concern and scope of audit
(as such term is defined in such Statement).


 


(c)                                  Accountants’ Reports.  Promptly
upon receipt thereof, US
Borrower Representative will deliver, if such accountants consent to such
delivery, copies of all annual management reports required under Section 404
of the Sarbanes Oxley Act of 2002 submitted by RPP USA’s firm of certified
public accountants.


 


(d)                                 Additional Deliveries.  To the Applicable Agent, no
later than ten (10) Business Days after the end of each Fiscal Month (or within
two days following request if requested by such
Agent while an Event of Default has occurred and is
continuing or while Netherlands Borrowing Availability is less than $10,000,000
or US Borrowing Availability is less than $20,000,000) (together with a copy of
any of the following reports requested by such
Applicable Agent in writing after the Closing Date), each
of the following reports, each of which shall be prepared by Borrowers as of
the last day of the immediately preceding Fiscal Month, or, if applicable, the
date 2 days prior to the date of any such request:


 


(i)                                     a Borrowing Base Certificate (which shall be in
final form in all material respects but which shall subject to immaterial final
closing adjustments that will be provided to the Applicable Agent promptly when
same are available) with respect to each Borrower (in substantially the same
form as Exhibit 4.1(d)(i) or 4.1(d)(ii), as applicable (a “Borrowing
Base Certificate”)), which shall be
accompanied, in any event, by (x) a listing from the US Borrower Representative
of all Account Debtors of US Borrowers whose Accounts exceed
in the aggregate an amount equal to fifteen percent (15%) of the aggregate of
all Accounts of US Borrowers at any time,
together with the respective amounts of the Accounts of each such Account
Debtor, and (y) a
listing from the Netherlands Borrower
Representative of all Account
Debtors whose Accounts exceed in the aggregate an amount
equal to five percent (5%) of the aggregate of all Accounts of Netherlands
Borrowers at any time, together with
the respective amounts of the Accounts of each such Account Debtor;


 


(ii)                                  with respect to each US Borrower, a summary of
Inventory by location and type with a supporting perpetual Inventory report;
and


 


(iii)                               with respect to each Borrower, (A) a monthly trial
balance showing Accounts outstanding aged from invoice date as follows:  1 to 30 days, 31 to 60 days, 61 to 90 days
and 91 days or more (in each case with the name and address of each Account
Debtor) and (B) a schedule of Accounts owing to such Borrower by each
Apollo Operating Company, including the name of each such company and the
amount of the Accounts owing by it;


 


(iv)                              collateral reports with respect to each Borrower,
including all additions and reductions (cash and non-cash) with respect to
Accounts of each Borrower;


 


(v)                                 at the time of delivery of each of the monthly
Financial Statements delivered pursuant to Section 4.1(a), a
summary listing of contra accounts payable;


 


(vi)                              promptly upon request of Applicable Agent, such
supporting detail and documentation (including any material adverse information
relating to Account Debtors)


 


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relating to any items delivered
under this Section 4.1 as Applicable Agent may reasonably request;
and


 


(vii)                           (i) a listing of government contracts of each
Borrower subject to the Federal Assignment of Claims Act of 1940; and (ii) a
list of any applications for the registration of any Patent, Trademark or
Copyright filed by any Credit Party with the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or agency in
the prior Fiscal Month;


 


(e)                                  Appraisals; Inspections.


 


(i)                                     From time to time, if any Agent or any Lender
determines that obtaining appraisals is necessary in order for such Agent or
such Lender to comply with applicable laws or regulations, such Agent will, at
Borrowers’ expense, obtain appraisal reports in form and substance and from
appraisers reasonably satisfactory to such Agent stating the then current fair
market values of all or any portion of the Real Estate owned by Credit
Parties.  In addition to the foregoing,
at Borrowers’
expense, (i) at any time while and so long as an Event of Default shall have
occurred and be continuing, and in the absence of an Event of Default and so
long as Aggregate Borrowing
Availability equals or is in excess of $30,000,000 not
more than once during each calendar year, each Agent may obtain appraisal
reports in form and substance and from appraisers satisfactory to such Agent
stating the then current market values (or NOLV) of all or any portion of the
Inventory and other personal property owned by any of the Credit Parties and
(ii) once during each calendar year, each Agent may, in its sole discretion,
obtain appraisal reports in form and substance and from appraisers satisfactory
to such Agent stating the then current NOLV of all or any portion of the PPE
owned by any of the Credit Parties.


 


(ii)                                  Borrowers, at their own expense, shall, if
permitted by their accountants, deliver to the Applicable
Agent the results of each physical verification, if any,
that Borrowers or any of their Subsidiaries may in their discretion have made,
or caused any other Person to have made on their behalf, of all or any portion
of their Inventory in connection with the annual audit of Borrowers’ financial
statement (and, if a Default or an Event of Default has occurred and is
continuing, Borrowers shall, upon the request of any Agent, conduct, and
deliver the results of, such physical verifications as such Agent may require).


 


(f)                                    Projections.  As soon as available and in any
event no later than the earlier of (i) the date 60 days (or 30 days in the
event that Aggregate Borrowing Availability is less than $30,000,000) following
the last day of each Fiscal Year or (ii) the date of approval of such
Projections by the Board of Directors of RPP USA, US Borrower
Representative will deliver Projections of RPP USA and its Subsidiaries for the
forthcoming fiscal year, month by month.


 


(g)                                 SEC Filings and Press Releases.  Promptly
upon their becoming available, US Borrower
Representative will deliver copies (which may be by email) of (1) all
Financial Statements, reports, notices and proxy statements sent or made available
by Holdings, RPP USA or their Subsidiaries to their Stockholders generally,
(2) all regular and periodic reports and all registration statements and
prospectuses, if any, filed by Holdings, RPP USA or any of their Subsidiaries
with any securities exchange or with the Securities and Exchange Commission,
any Governmental Authority or any private regulatory authority, and (3) all
press releases and other


 


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statements made available by
Holdings, RPP USA or any of their Subsidiaries to the public concerning
developments in the business of any such Person; provided, however,
that such reports, notices, proxy statements, registration statements, press
releases and other statements required to be delivered pursuant to clause (3)
above shall be deemed to have been delivered for purposes of this Agreement
when posted to Holdings’ website or any similar website containing filings made
with the Securities and Exchange Commission.


 


(h)                                 Events of Default, Etc.  Promptly
upon any Responsible Officer of any Credit Party obtaining knowledge of any of
the following events or conditions, the
Applicable Borrower Representative shall deliver copies of
all notices given or received by such Borrower or Holdings or any of their Subsidiaries with respect
to any such event or condition and a certificate of a Responsible Officer of
such Applicable Borrower Representative specifying the nature and period of
existence of such event or condition and what action Borrowers or any of their Subsidiaries has taken, is taking and
proposes to take with respect thereto: 
(1) any condition or event that constitutes an Event of Default or
Default; (2) any notice that any Person has given to any Borrower or any
of their Subsidiaries or any other action taken with respect to a claimed
default or event or condition of the type referred to in Section 6.1(b);
or (3) any event or condition that has had a Material Adverse Effect.


 


(i)                                     Litigation.  Promptly as practicable upon any
Responsible Officer of any Credit Party obtaining knowledge of (1) the
institution of any action, charge, claim, demand, suit, proceeding, petition,
governmental investigation, tax audit or arbitration now pending or, to the
knowledge of such Credit Party, threatened against or affecting any Credit
Party or any of its Subsidiaries or any property of any Credit Party or any of
its Subsidiaries (“Litigation”) not previously disclosed by Applicable
Borrower Representative to the Agents
or (2) any material development in any action, suit, proceeding,
governmental investigation or arbitration at any time pending against any
Credit Party or any property of any Credit Party which, in each case, could
reasonably be expected to have a Material Adverse Effect, Applicable Borrower
Representative will promptly give notice thereof to Agents and, subject to
protecting privileges, provide such other information as may be reasonably
available to them without violating any contractual confidentiality obligation
applicable to the Credit Parties to enable Agents
and their counsel to
evaluate such matter.


 


(j)                                     Notice of Corporate and other Changes.  US Borrower
Representative shall provide as promptly as practicable written notice of any
Subsidiary created or acquired by any Credit Party or any of its Subsidiaries
after the Closing Date, such notice, in each case, to identify the applicable
jurisdictions and capital structure of such Subsidiary.  The foregoing notice requirement shall not be
construed to constitute consent by any of the Lenders to any transaction
referred to above which is not expressly permitted by the terms of this
Agreement.


 


(k)                                  Compliance and Pricing Certificate.  Together
with each delivery of Financial Statements of RPP USA and its Subsidiaries
pursuant to Sections 4.1(a) and (b), Borrowers will deliver a fully and
properly complete Compliance and Pricing Certificate (in substantially the same
form as Exhibit 4.1(k) (the “Compliance and Pricing Certificate”)
signed by Responsible Officer of
US Borrower Representative.


 


(l)                                     Omitted.


 


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(m)                               Omitted.


 


(n)                                 Other Information.  With reasonable promptness, each
Borrower Representative will deliver such other information and data with
respect to any Credit Party or any Subsidiary of any Credit Party as from time
to time may be reasonably requested by any Agent.


 


(o)                                 Taxes.  Applicable Borrower Representative shall
provide prompt written notice to the Applicable Agent of (i) the execution or
filing with the IRS or any other Governmental Authority of any agreement or
other document extending, or having the effect of extending, the period for
assessment or collection of any Charges by any Credit Party or any of its
Subsidiaries and (ii) any agreement by any Credit Party or any of its
Subsidiaries or request directed to any Credit Party or any of its Subsidiaries
to make any adjustment under IRC Section 481(a), by reason of a change in
accounting method or otherwise, which could reasonably be expected to have a
Material Adverse Effect.


 


4.2.                              Accounting Terms; Utilization of
GAAP for Purposes of Calculations under Agreement.  For purposes of this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to such terms in conformity with GAAP. 
Financial statements and other information furnished to Agents pursuant
to Section 4.1 or any other section (unless specifically
indicated otherwise) shall be prepared in accordance with GAAP as in effect at
the time of such preparation; provided that no Accounting Change shall affect
financial covenants, standards or terms in this Agreement; provided further
that Borrowers shall prepare footnotes to the Financial Statements required to
be delivered hereunder that show the differences between the Financial
Statements delivered (which reflect such Accounting Changes) and the basis for
calculating financial covenant compliance (without reflecting such Accounting
Changes).


 


SECTION 5.

REPRESENTATIONS AND WARRANTIES


 


To induce US
Agent, Netherlands Agent, Netherlands Security Trustee, Collateral Agent and
Lenders to enter into the Loan Documents, to make Loans and to issue or cause
to be issued Letters of Credit, US Credit Parties, jointly (with each other)
and severally represent and warrant to the US Agent, the Collateral Agent and
each US Lender, and Netherlands Credit Parties jointly (with each other) and
severally represent and warrant to Netherlands Agent, Netherlands Security
Trustee and each Netherlands Lender that the following statements are and,
after giving effect to the Related Transactions, will be true, correct and
complete with respect to all Credit Parties:


 


5.1.                              Disclosure. 
No representation or warranty of any Credit Party contained in this
Agreement, the Financial Statements referred to in Section 5.5, the
other Related Transactions Documents or any other document, certificate or
written statement furnished to US Agent, Netherlands Agent, Netherlands
Security Trustee or any Lender by or on behalf of any such Person for use in
connection with the Loan Documents or the Related Transactions Documents, taken
as a whole, contains any untrue statement of a material fact or omitted, omits
or will omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made.  Projections
from time to


 


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time delivered hereunder are or will be based
upon the estimates and assumptions stated therein, all of which Borrowers
believed at the time of delivery to be reasonable and fair in light of current
conditions and current facts known to Borrowers as of such delivery date, and
reflect Borrowers’ good faith estimates of the future financial performance of
Borrowers and of the other information projected therein for the period set
forth therein.  Such Projections are not
a guaranty of future performance and actual results may differ from those set
forth in such Projections.


 


5.2.                              No Material Adverse Effect.  Since December 31, 2003 there have been
no events or changes in facts or circumstances affecting any Credit Party or
any of its Subsidiaries which individually or in the aggregate have had a
Material Adverse Effect and that, as of the Closing Date, have not been
disclosed herein or in Schedule 5.2.


 


5.3.                              No Conflict. 
The consummation of the Related Transactions does not and will not
violate or conflict with any laws, rules, regulations or orders of any
Governmental Authority or violate, conflict with, result in a breach of, or
constitute a default (with due notice or lapse of time or both) under any
Contractual Obligation or organizational documents of any Credit Party or any
of its Subsidiaries except if such violations, conflicts, breaches or defaults
could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect. 
None of the Credit Parties is an “investment company” within the meaning
of the Investment Company Act of 1940, as amended, or a “holding company” or a “subsidiary
company” of a “holding company” within the meaning of the Public Utility
Holding Company Act of 1935, as amended. 
None of the making of any Revolving Credit Advance, the creation of any
Letter of Credit Obligation nor the granting of any Lien securing any Revolving
Credit Advance or Letter of Credit Obligation will contravene any term of the
Senior Note Documents.


 


5.4.                              Organization, Powers, Capitalization and Good Standing.


 


(a)                                  Each of the Credit Parties and each of their
Subsidiaries is duly organized, validly existing and in good standing (in each
jurisdiction in which being so has a legal consequence) under the laws of its
jurisdiction of organization and qualified to do business in all countries,
states or provinces where such qualification is required except where failure
to be so qualified could not reasonably be expected to have a Material Adverse
Effect.  The jurisdiction of organization
and all jurisdictions in which each Credit Party is qualified to do business
are set forth on Schedule 5.4(a) (as it may be updated from time to
time by delivery of a new Schedule 5.4(a) or a supplement to Schedule 5.4(a)
by the Applicable Borrower Representative to the Applicable Agent).  Each of the Credit Parties and each of their
Subsidiaries has all requisite organizational power and authority to own and
operate its properties, to carry on its business as now conducted and proposed
to be conducted, to enter into each Related Transactions Document to which it
is a party and to incur the Obligations, grant liens and security interests in
the Collateral and carry out the Related Transactions.  Subject to specific representations set forth
herein regarding ERISA, Environmental Laws, tax and other laws, Credit Parties
are in compliance with all applicable provisions of law, except where the failure
to comply, individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.


 


(b)                                 Capitalization.  As of the Closing Date:  (i) the authorized Stock of each of the
Credit Parties and each of their Subsidiaries is as set forth on Schedule 5.4(b);
(ii) all issued 


 


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and outstanding
Stock of each of the Credit Parties and each of their Subsidiaries is duly
authorized and validly issued, fully paid, nonassessable, free and clear of all
Liens other than those in favor of Collateral Agent or US Agent for the benefit
of Collateral Agent, US Agent and Secured Creditors or Lenders, as applicable,
and Netherlands Agent or Netherlands Security Trustee for the benefit of
Netherlands Agent, Netherlands Security Trustee and Netherlands Lenders, and
such Stock was issued in compliance with all applicable state, provincial,
federal and foreign laws concerning the issuance of securities; (iii) the
identity of the holders of the Stock of each of the Credit Parties and each of
their Subsidiaries and the percentage of their fully-diluted ownership of the
Stock of each of the Credit Parties and each of their Subsidiaries is set forth
on Schedule 5.4(b); and (iv) no Stock of any Credit Party or
any of their Subsidiaries, other than those described above, are issued and
outstanding.  Except as provided in Schedule 5.4(b), as of the Closing Date, there are no
preemptive or other outstanding rights, options, warrants, conversion rights or
similar agreements or understandings for the purchase or acquisition from any
Credit Party or any of their Subsidiaries of any Stock of any such entity.


 


(c)                                  Binding Obligation.  This
Agreement is, and the other Related Transactions Documents when executed and
delivered will be, the legally valid and binding obligations of the Credit
Parties thereto, each enforceable against each of such Credit Parties, as
applicable, in accordance with their respective terms except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors’ rights generally or by equitable principles relating
to enforceability.


 


5.5.                              Financial
Statements and Projections. 
All Financial Statements concerning Borrowers and their Subsidiaries
which have been or will hereafter be furnished to US Agent or Netherlands Agent
pursuant to this Agreement, including those listed below, have been or will be
prepared in accordance with GAAP consistently applied (except as disclosed
therein) and do or will present fairly in all material respects the financial
condition of the entities covered thereby as at the dates thereof and the
results of their operations for the periods then ended, subject to, in the case
of unaudited Financial Statements, the absence of footnotes and normal year-end
adjustments and reclassifications.


 


(a)                                  The consolidated balance sheet at December 31,
2003 and the related statement of income of RPP USA and its Subsidiaries, for
the Fiscal Year then ended, audited by PricewaterhouseCoopers.


 


(b)                                 The consolidated balance sheet at September 30,
2004 and the related statement of income of RPP USA and its Subsidiaries for
the nine (9) months then ended.


 


The
Projections delivered on or prior to the Closing Date and the updated
Projections delivered pursuant to Section 4.1(f) are or will be
based upon the estimates and assumptions stated therein, all of which Borrowers
believed at the time of delivery to be reasonable and fair in light of current
conditions and current facts known to Borrowers as of such delivery date, and reflect
Borrowers’ good faith estimates of the future financial performance of
Borrowers and of the other information projected therein for the period set
forth therein.  Such Projections are not
a guaranty of future performance and actual results may differ from those set
forth in such Projections.


 


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5.6.                              Intellectual Property.  Each of the Credit Parties and its
Subsidiaries owns, is licensed to use or otherwise has the right to use, all
Intellectual Property used in or necessary for the conduct of its business as
currently conducted that is material to the condition (financial or other),
business or operations of such Credit Party and its Subsidiaries and all such
Intellectual Property is fully protected or duly and properly registered, filed
or issued in the appropriate office and jurisdictions for such registrations,
filings or issuances.  As of the Closing
Date, all material Intellectual Property of the Credit Parties and their
Subsidiaries that is registered or that is licensed to or from others (other
than normal and routine off the shelf software license agreements) is
identified on Schedule 5.6. 
Except as disclosed in Schedule 5.6, the use of such
Intellectual Property by the Credit Parties and their Subsidiaries and the
conduct of their businesses does not and has not been alleged by any Person to
infringe on the rights of any Person.


 


5.7.                              Investigations,
Audits, Etc.  As of the Closing Date,
except as set forth on Schedule 5.7, no Credit Party or any of
their Subsidiaries is the subject of any review or audit by the IRS or any
similar governmental agency or any governmental investigation known to such
Credit Party concerning the violation or possible violation of any law that
could reasonably be expected to have a Material Adverse Effect.


 


5.8.                              Employee Matters.  As of the Closing Date, except as set forth
on Schedule 5.8, (a) no Credit Party or Subsidiary of a Credit
Party nor any of their respective employees is subject to any collective
bargaining agreement, (b) no petition for certification or union election
is pending with respect to the employees of any Credit Party or any of their
Subsidiaries and no union or collective bargaining unit has sought such
certification or recognition with respect to the employees of any Credit Party
or any of their Subsidiaries, (c) there are no strikes, slowdowns, work
stoppages or controversies pending or, to the best knowledge of any Credit
Party after due inquiry, threatened between any Credit Party or any of their
Subsidiaries and its respective employees, other than employee grievances
arising in the ordinary course of business which could not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect and (d) hours worked by and payment made to employees of each
Credit Party and each of their Subsidiaries comply with the Fair Labor
Standards Act and each other federal, state, local or foreign law applicable to
such matters, except, in each case, for any non-compliance arising in the
ordinary course of business that can be resolved in the ordinary course of
business without material liability to any Credit Party or any of its
Subsidiaries and without materially adversely affecting the business of any
Credit Party or any of its Subsidiaries. 
As of the Closing Date, except as set forth on Schedule 5.8,
neither US Borrower nor any of its Domestic Subsidiaries is party to an
employment contract.


 


5.9.                              Solvency.  Each
of the Credit Parties and its Subsidiaries is Solvent.


 


5.10.                        Litigation; Adverse Facts.  As of the Closing Date, except as set forth
on Schedule 5.10, there are no judgments outstanding against any
Credit Party or any of its Subsidiaries or affecting any property of any Credit
Party or any of its Subsidiaries, nor is there any Litigation pending, or to
the best knowledge of any Credit Party threatened, against any Credit Party or
any of its Subsidiaries, and since the Closing Date, no Litigation has been
commenced, in each case, which would reasonably be expected to result in any
Material Adverse Effect.


 


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5.11.                        Use of Proceeds; Margin Regulations.


 


(a)                                  No part of the proceeds of any Loan will be used
for “buying” or “carrying” “margin stock” within the respective meanings of
such terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect or for any
other purpose that violates the provisions of the regulations of the Board of
Governors of the Federal Reserve System. 
If requested by Applicable Agent, each Credit Party will furnish to
Applicable Agent and each Lender, as the case may be, a statement to the
foregoing effect in conformity with the requirements of FR Form G-3 or FR Form
U-1, as applicable, referred to in Regulation U.


 


(b)                                 Borrowers shall utilize the proceeds of the Loans
solely for the Refinancing (and to pay any related transaction expenses), for
Permitted Acquisitions, for the Shell Buyback, and for the financing of
Borrowers’ ordinary working capital and general corporate needs and any other
legal uses of cash not expressly prohibited hereunder.  Schedule 5.11 contains a
description of Borrowers’ sources and uses of funds as of the Closing Date,
including Loans and Letter of Credit Obligations to be made or incurred on that
date, and a funds flow memorandum detailing how funds from each source are to
be transferred for particular uses.


 


5.12.                        Ownership of Property; Liens.  As of the Closing Date, the real estate (“Real
Estate”) listed in Schedule 5.12 constitutes all of the real
property owned, leased, subleased, or used by any Credit Party or any of its
Subsidiaries.  Each of the Credit Parties
and each of its Subsidiaries owns good and marketable fee simple (or its
equivalent under Applicable Law) title to all of its owned Real Estate, and
valid leasehold interests in all of its leased Real Estate, and, to the extent
requested in writing by Agents, copies of all such leases or a summary of terms
thereof reasonably satisfactory to Agents have been delivered to Agents.  Schedule 5.12 further describes
any Real Estate with respect to which any Credit Party or any of its
Subsidiaries is a lessor, sublessor or assignor as of the Closing Date.  Each of the Credit Parties and each of its
Subsidiaries also has good and marketable title to, or valid leasehold
interests in, all of its personal property and assets.  As of the Closing Date, none of the
properties and assets of any Credit Party or any of its Subsidiaries are
subject to any Liens other than Permitted Encumbrances and other Liens not
prohibited by Section 3.2(a), and there are no facts, circumstances
or conditions known to any Borrower that could reasonably be expected to result
in any Liens (including Liens arising under Environmental Laws) other than
Permitted Encumbrances and other Liens not prohibited by Section 3.2(a)
against the properties or assets of any Credit Party or any of its
Subsidiaries.  Schedule 5.12
also describes any purchase options, rights of first refusal or other similar
contractual rights pertaining to any Real Estate that is material to the
business of the Credit Parties.  As of
the Closing Date, no material portion of any Credit Party’s or any of its
Subsidiaries’ Real Estate has suffered any material damage by fire or other
casualty loss that has not heretofore been repaired and restored in all
material respects to its original condition or otherwise remedied to the
satisfaction of the applicable Credit Party. 
As of the Closing Date, all material permits required to have been
issued to enable the Real Estate to be occupied pursuant to laws in all
material respects and used for all of the purposes for which it is currently
occupied and used have been issued and are in full force and effect.


 


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5.13.                        Environmental Matters.


 


(a)                                  Except as set forth in Schedule 5.13,
as of the Closing Date: (i) the Credit Parties and their Subsidiaries are
and have been in compliance with all Environmental Laws, except for such
noncompliance that could not reasonably be expected to result in Environmental
Liabilities in excess of the Dollar Equivalent of $500,000 in the aggregate, (ii) the Credit Parties and their
Subsidiaries have obtained, and are in compliance with, all Environmental Permits
required by Environmental Laws for the operations of their respective
businesses as presently conducted or as proposed to be conducted, except where
the failure to so obtain or comply with such Environmental Permits could not
reasonably be expected to result in a Material Adverse Effect, (iii) there are
no Environmental Claims pending against the Credit Parties or any of the
Subsidiaries, except where such Environmental Claims could not reasonably be
expected to result in Environmental Liabilities in excess of the Dollar
Equivalent of $500,000 and (iv)
there have been no Releases of Hazardous Materials at, on, or in the vicinity
of the Real Estate in quantities that could reasonably be expected to adversely
and materially impact the value or marketability of such Real Estate.


 


(b)                                 Each Credit Party hereby acknowledges and agrees
that none of US Agent, Netherlands Agent nor Netherlands Security Trustee
(i) is now, or has ever been, in control of any of the Real Estate or
affairs of such Credit Party or its Subsidiaries, and (ii) has the
capacity through the provisions of the Loan Documents or otherwise to influence
any Credit Party’s or its Subsidiaries’ conduct with respect to the ownership,
operation or management of any of their Real Estate or compliance with
Environmental Laws or Environmental Permits.


 


5.14.                        ERISA.


 


(a)                                  As of the Closing Date, Schedule 5.14(a)
lists and separately identifies all Title IV Plans, Multiemployer Plans, ESOPs
and Retiree Welfare Plans.  Copies of all
Plans listed on Schedule 5.14(a), together with a copy of the
latest form IRS/DOL 5500-Series for each such Plan requested by US Agent has
been delivered to US Agent.  Except for
failures to comply which individually or in the aggregate would not reasonably
be expected to have a Material Adverse Effect: (i) each Plan is in compliance
with the applicable provisions of ERISA and the IRC and (ii) neither any Credit
Party nor ERISA Affiliate has engaged in a “prohibited transaction,” as defined
in Section 406 of ERISA and Section 4975 of the IRC, in connection
with any Plan, that would subject any Credit Party to a material tax on
prohibited transactions imposed by Section 502(i) of ERISA or Section 4975
of the IRC.  Neither any Credit Party nor
any ERISA Affiliate has failed to make any contribution or pay any amount due
as required by either Section 412 of the IRC or Section 302 of ERISA
or the terms of any such Title IV Plan in excess of $500,000.


 


(b)                                 As of the Closing Date, except as set forth in Schedule 5.14(a):
(i) no Title IV Plan has an Unfunded Pension Liability in an amount that
could reasonably be expected to result in a Material Adverse Effect;
(ii) no ERISA Event or event described in Section 4062(e) of ERISA
with respect to any Title IV Plan has occurred or is reasonably expected to
occur which could reasonably be expected to result in liability to a Credit
Party in excess of $500,000; (iii) there are no pending, or to the
knowledge of any Borrower, threatened claims (other than claims for benefits in
the normal course), sanctions, actions or lawsuits, asserted or instituted
against any Plan or any Person as fiduciary or sponsor of any Plan which could
reasonably be expected to result in a Material Adverse Effect; (iv) no
Credit Party or ERISA Affiliate has


 


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incurred or
reasonably expects to incur any liability as a result of a complete or partial
withdrawal from a Multiemployer Plan which could reasonably be expected to
result in a Material Adverse Effect; (v) within the last five years (1) no
Title IV Plan of any Credit Party or ERISA Affiliate has been terminated,
whether or not in a “standard termination” as that term is used in Section 404(b)(1)
of ERISA, and (2) no Title IV Plan of any Credit Party or ERISA Affiliate
(determined at any time within the past five years) with Unfunded Pension
Liabilities has been transferred outside of the “controlled group” (within the
meaning of Section 4001(a)(14) of ERISA) of any Credit Party or ERISA
Affiliate which (in the case of either subclause (1) or (2) of this clause (v))
could reasonably be expected to result in a Material Adverse Effect and
(vi) except in the case of any eligible individual account plan as defined
in ERISA Section 407(d)(3), Stock of all Credit Parties and their ERISA
Affiliates makes up, in the aggregate, no more than 10% of fair market value of
the assets of any Plan measured on the basis of fair market value as of the
latest valuation date of any Plan.


 


5.15.                        Brokers.  No
broker or finder acting on behalf of any Credit Party or Affiliate thereof
brought about the obtaining, making or closing of the Loans or the Related
Transactions, and no Credit Party or Affiliate thereof has any obligation to
any Person in respect of any finder’s or brokerage fees in connection
therewith.


 


5.16.                        Deposit and Disbursement Accounts.  Schedule 5.16 lists all banks and
other financial institutions at which any US Credit Party maintains deposit or
other accounts, including the Disbursement Account and any other disbursement
accounts as of the Closing Date, and such Schedule correctly identifies
the name, address and telephone number of each depository, the name in which
the account is held, a description of the purpose of the account, and the
complete account number therefor.


 


5.17.                        Agreements and Other Documents.  Except to the extent publicly available, as
of the Closing Date, each US Credit Party and Netherlands Credit Party has
provided to Applicable Agent or its counsel, on behalf of US Lenders or
Netherlands Lenders, as the case may be, accurate and complete copies (or
summaries) of all of the following agreements or documents to which it is
subject and each of which is listed in Schedule 5.17:  the Senior Note Documents, Subordinated Debt
Agreements, certain leases, purchase
agreements and operating and maintenance agreements with Shell and/or its
Affiliates and Occidental Petroleum requested by US Agent, and all instruments
and documents evidencing any Indebtedness or Guaranteed Indebtedness with a
remaining principal balance in excess of $100,000 of such Credit Party and any
Lien granted by such Credit Party with respect thereto; and material
instruments and agreements evidencing the issuance of any equity securities,
warrants, rights or options to purchase equity securities of such Credit Party.


 


5.18.                        Insurance.  Schedule 5.18
lists all insurance policies of any nature maintained, as of the Closing Date,
for current occurrences by each Credit Party.


 


5.19.                        Credit Agreement Classification;
Subordination.  This Agreement and
the credit facilities created hereunder constitute the “Credit Agreement” under
and as such terms are defined in the Subordinated Debt Agreements and the
Senior Note Documents and “Bank Credit
Agreement” under the US Security Agreement.  The
subordination provisions contained in the Subordinated Debt Agreements are
enforceable against Holdings, each US Borrower, the 


 


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respective Guarantors of US
Obligations and the holders of such Indebtedness, as applicable, and all
Obligations hereunder and under the other Loan Documents are within the
definitions of “Senior Debt” (or “Guarantor Senior Debt” in the case of the
obligations of any Guarantor of US Obligations) and “Designated Senior Debt”
(or any similar terms in any such case) included in such subordination
provisions.


 


5.20.                        Anti-Terrorism. 
Neither the borrowing of the Loans by the Borrowers, nor any other
Related Transaction, nor the use of the respective proceeds thereof, shall
cause the Lenders, US Agent, Netherlands Agent, Collateral Agent or Netherlands
Security Trustee to violate the U.S. Bank Secrecy Act, as amended, and any
applicable regulations thereunder or any of the sanctions programs administered
by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”)
of the United States Department of Treasury, any regulations promulgated
thereunder by OFAC or under any affiliated or successor governmental or
quasi-governmental office, bureau or agency and any enabling legislation or
executive order relating thereto. 
Without limiting the foregoing, no Credit Party (i) is a person
whose property or interests in property are blocked or subject to blocking
pursuant to Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)),
(ii) engages in any dealings or transactions prohibited by Section 2
of such executive order, or be otherwise associated with any such person in any
manner violative of Section 2, or (iii) is a person on the list of
Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions under any other OFAC regulation or executive
order.  The Credit Parties are in
compliance, in all material respects, with the Strengthening
of America by Providing the Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001. 
No part of the proceeds of the Loans or Letters of Credit will be used,
directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.


 


5.21.                        Omitted.


 


5.22.                        US Finance Corp.   US Finance Corp. has no significant assets or
material liabilities (other than those liabilities under the Senior Notes and
the Loan Documents to which it is a party).


 


5.23.                        Omitted. 


 


5.24.                        Omitted.


 


5.25.                        Designated Senior Debt.  Neither
Holdings nor any Borrower shall designate any Indebtedness (other than the
Obligations and the Senior Secured Notes) as “Designated Senior Debt” (or any
similar term) (as defined in the Senior Second Priority Secured Notes Indenture
and any Subordinated Debt Agreement).


 


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5.26.                        Taxes and Tax Returns.


 


(a)                                  As of the Closing Date, (i) all Tax Returns
required to be filed by the Credit Parties have been timely and properly filed
and (ii) all taxes for which a notice of assessment or collection has been
received (other than amounts being contested in good faith by appropriate proceedings),
have been paid except where the failure to make such filings, payments or
accruals would not have a Material Adverse Effect.  No Governmental Authority has asserted any
claim for taxes, or to any Credit Party’s knowledge, has threatened to assert
any claim for taxes that would, if paid by a Credit Party, have a Material
Adverse Effect.  All taxes required by
law to be withheld or collected and remitted (including, without limitation,
income tax, unemployment insurance and workman’s compensation premiums) by the
Credit Parties have been withheld or collected and paid to the appropriate
Governmental Authorities (or are properly being held for such payment), except
for amounts which would not have a Material Adverse Effect.


 


(b)                                 None of the Credit Parties has been notified that
either the IRS or any other Governmental Authority has raised any adjustments
or intends to raise such adjustments, in connection with any Tax Return of the
Credit Parties, which adjustments would have a Material Adverse Effect.


 


(c)                                  None of the Credit Parties is a party to, is bound
by, or has any obligation under, any tax sharing agreement, tax indemnification
agreement or similar contract or arrangement, excluding leases entered into in
the ordinary course of business and sales contracts, that, either individually
or in the aggregate, could have a Material Adverse Effect.


 


SECTION 6.

DEFAULT, RIGHTS AND REMEDIES


 


6.1.                              Event
of Default.  “Event of
Default” shall mean the occurrence or existence of any one or more of the
following:


 


(a)                                  Payment.  (1) Failure to pay any installment or
other payment of principal of any Loan when due, or to repay Revolving Credit
Advances or to reduce their balance to the maximum amount of the Revolving Loan
then permitted to be outstanding or to reimburse any L/C Issuer for any payment
made by such L/C Issuer under or in respect of any Letter of Credit when due or
failure to provide for any cash collateral for any Letter of Credit when
required hereunder or (2) failure to pay, within three (3) Business Days
after the due date, any interest on any Loan or any other amount due under this
Agreement or any of the other Loan Documents; or


 


(b)                                 Default in Other Agreements. 
(1) Any Credit Party or any of its Subsidiaries fails to pay when
due or within any applicable grace period any principal or interest on
Indebtedness (other than the Loans) or any Contingent Obligations (other than
with respect to the Loans) or (2) breach or default of any Credit Party or
any of its Subsidiaries, or the occurrence of any condition or event, with
respect to any Indebtedness (other than the Loans) or any Contingent
Obligations (other than with respect to the Loans), if the effect of such
breach, default or occurrence is to cause, or to permit the holder or holders
then to cause, such 


 


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Indebtedness
and/or Contingent Obligations having an aggregate Dollar Equivalent in excess
of $5,000,000 to become or be declared due prior to their stated maturity; or


 


(c)                                  Breach of Certain Provisions; Breach of Warranty.  Failure of
any Credit Party to (i) perform or comply with any term or condition contained
in Section 2.4(a) as to Borrowers only, Sections 2.9, 2.10,
2.11(c), 3 or Section 4.1(h); or (ii) perform, keep or observe any of
the provisions of Section 2.3 or Section 4.1 (other
than Section 4.1(h)) and solely with respect to Section 2.3
and Section 4.1 (other than Section 4.1(h)), such
failure shall remain unremedied for twelve (12) days or more; or


 


(d)                                 Borrowing Base Certificate; Breach of Warranty.  Any
information contained in any Borrowing Base Certificate or any representation
or warranty herein or in any Loan Document or in any material written
statement, report, financial statement or certificate (other than a Borrowing Base
Certificate) made or delivered to US Agent, Netherlands Agent, Netherlands
Security Trustee, Collateral Agent or any Lender by any Credit Party is untrue
or incorrect in any material respect (without duplication of materiality
qualifiers contained therein) as of the date when made or deemed made; or


 


(e)                                  Other Defaults under Loan Documents. Any Credit Party defaults in the performance of
or compliance with any term contained in this Agreement or the other Loan
Documents (other than occurrences described in other provisions of this Section 6.1
for which a different grace or cure period is specified, or for which no cure
period is specified and which constitute immediate Events of Default) and such
default is not remedied or waived within thirty (30) days after the earlier of
(1) receipt by Applicable Borrower Representative of notice from
Applicable Agent or Requisite Lenders of such default or (2) actual
knowledge of a Responsible Officer of any Borrower or any other Credit Party of
such default; or


 


(f)                                    Involuntary Bankruptcy; Appointment of Receiver,
Etc.  (1)  a court enters a decree or order
for relief with respect to any Credit Party in an involuntary case under the
Bankruptcy Code or any other Insolvency Law, which decree or order is not
stayed or other similar relief is not granted under any applicable federal or
state law; or (2) the continuance of any of the following events for sixty
(60) days unless dismissed, bonded or discharged:  (a) an involuntary case is commenced
against any Credit Party under any
Insolvency Law; or (b) a decree or order of a court for the appointment of
a receiver, interim receiver, receiver and manager, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over any Credit Party, or over all or a
substantial part of its property, is entered; or (c) a receiver, interim
receiver, receiver and manager, trustee or other custodian is appointed without
the consent of a Credit Party, for all or a substantial part of the property of the Credit Party; or


 


(g)                                 Voluntary Bankruptcy; Appointment of Receiver, Etc. 
(1) any Credit Party commences a voluntary case under the
Bankruptcy Code or any other Insolvency Law, becomes insolvent or consents to
the entry of an order for relief in an involuntary case or to the conversion of
an involuntary case to a voluntary case under any such law or consents to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; or (2) any Credit Party makes
a general assignment for the benefit of creditors; or (3) any Credit Party
shall generally not be able to pay its debts as they become due or admits in
writing its present or prospective inability to pay its debts generally as they



 


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become due; or
(4) the board of directors of any Credit Party adopts any resolution or
otherwise authorizes action to approve any of the actions referred to in this Section 6.1(g);
or


 


(h)                                 Judgment and Attachments.  Any money
judgment, writ or warrant of attachment, or similar process (other than those
described elsewhere in this Section 6.1) involving an amount in the
aggregate at any time in excess of the Dollar Equivalent of $5,000,000 (in any
case to the extent not adequately covered by insurance in Agent’s reasonable
discretion as to which the insurance company has acknowledged coverage) is
entered or filed against one or more of the Credit Parties or any of their
respective assets and remains undischarged, unvacated, unbonded or unstayed for
a period of thirty (30) days or in any event later than five (5) Business Days
prior to the date of any execution on any such judgment, writ, warrant or
similar process; or


 


(i)                                     Dissolution.  Any order, judgment or decree is
entered against any Credit Party decreeing the dissolution or split up of such
Credit Party and such order remains undischarged or unstayed for a period in
excess of thirty (30) days; or


 


(j)                                     Invalidity of Loan Documents.  Any
material provision of the Loan Documents for any reason, other than a partial
or full release in accordance with the terms thereof, ceases to be in full
force and effect or is declared to be null and void, or any Credit Party denies
that it has any further liability under any material provision of the Loan
Documents to which it is party, or gives notice to such effect; or


 


(k)                                  Change of Control.  A Change of Control occurs.


 


6.2.                              Suspension or Termination of
Commitments.  Upon the occurrence
and during the continuance of any Event of Default, Applicable Agent may, and
at the request of Requisite Lenders Applicable Agent shall, without notice or
demand, immediately suspend or terminate all or any portion of Lenders’
obligations to make additional Loans or issue or cause to be issued Letters of
Credit under the Commitments.


 


6.3.                              Acceleration
and other Remedies.


 


(a)                                  Upon the occurrence of any Event of Default
described in Sections 6.1(f) or 6.1(g), the Commitments shall be
immediately terminated and all of the Obligations, including the Revolving
Loan, shall automatically become immediately due and payable, without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other requirements of any kind, all of which are hereby
expressly waived (including for purposes of Section 10 or Section 11)
by Borrowers to the extent permitted by applicable law, and the Commitments
shall thereupon terminate.


 


(b)                                 Upon the occurrence and during the continuance of
any Event of Default other than those described in Section 6.1(f) and
6.1(g), US Agent or Netherlands Agent, as applicable, may and at the
request of the Requisite US Lenders or Requisite Netherlands Lenders, as
applicable, US Agent or Netherlands Agent, as the case may be, shall, by
written notice to the Applicable Borrower Representatives (i) reduce the
aggregate amount of the US Commitment or Netherlands Commitments, as
applicable, from time to time, (ii) declare all or any portion of the US
Revolving Loan or Netherlands Revolving Loan, as the case may be, and 


 


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all or any portion
of the other Obligations to be, and the same shall forthwith become,
immediately due and payable together with accrued interest thereon (“Acceleration
of US Obligations” or “Acceleration of Netherlands Obligations”, as
applicable), (iii) terminate all or any portion of the obligations of US Agent,
US L/C Issuers and US Lenders or Netherlands Agent, Netherlands L/C Issuers and
Netherlands Lenders to make Advances and issue Letters of Credit,
(iv) demand that US Borrowers or Netherlands Borrowers, as the case may
be, immediately deliver cash to Applicable Agent (or, in the case of
Netherlands Agent, to Netherlands Security Trustee, if Netherlands Agent so
directs) for the benefit of the US L/C Issuers and Netherlands L/C Issuers (and
Borrowers shall then immediately so deliver) in an amount equal to 103% of the
aggregate outstanding Letter of Credit Obligations in the currency of the
applicable Letter of Credit, (v) appoint
investigative accountants to conduct an investigation of any Netherlands
Borrower’s business and assets, or for such other purposes as the Netherlands
Agent may specify, the fees and costs of such investigative accountants to be
for such Borrower’s account (the Netherlands Agent shall not be obliged to
disclose to any Borrower any reports or other findings of such investigative
accountants) and (vi) exercise any other remedies which may be available
under the Loan Documents or applicable law (including the right to require
Netherlands Security Trustee to enforce its rights under the Netherlands
Security documents for the benefit of itself, Netherlands Agent and Netherlands
Lenders).


 


(c)                                  Each US Borrower hereby grants to US Agent, for the
benefit of US L/C Issuers and each US Lender with a participation in any US
Letters of Credit then outstanding, a security interest in such cash collateral
described in clause (b) above to secure all of the US Letter of Credit
Obligations.  Any such cash collateral shall
be made available by US Agent to US L/C Issuers to reimburse US L/C Issuers for
payments of drafts drawn under such US Letters of Credit and any Fees, Charges
and expenses of US L/C Issuers with respect to such US Letters of Credit and
the unused portion thereof, after all such US Letters of Credit shall have
expired or been fully drawn upon, shall be applied to repay any other
Obligations.  After all such US Letters
of Credit shall have expired or been fully drawn upon and all Obligations shall
have been satisfied and paid in full, the balance, if any, of such cash
collateral shall be returned to US Borrowers. 
US Borrowers shall from time to time execute and deliver to US Agent
such further documents and instruments as US Agent may request with respect to
such cash collateral.


 


(d)                                 Each Netherlands Borrower hereby grants to
Netherlands Agent, for the benefit of Netherlands L/C Issuers and each
Netherlands Lender with a participation in any Netherlands Letters of Credit
then outstanding, a security interest in such cash collateral described in
clause (b) above to secure all of the Netherlands Letter of Credit
Obligations.  Any such cash collateral
shall be made available by Netherlands Agent to Netherlands L/C Issuers to
reimburse Netherlands L/C Issuers for payments of drafts drawn under such
Netherlands Letters of Credit and any Fees, Charges and expenses of Netherlands
L/C Issuers with respect to such Netherlands Letters of Credit and the unused
portion thereof, after all such Netherlands Letters of Credit shall have
expired or been fully drawn upon, shall be applied to repay any other
Obligations.  After all such Netherlands
Letters of Credit shall have expired or been fully drawn upon and all
Obligations shall have been satisfied and paid in full, the balance, if any, of
such cash collateral shall be returned to Netherlands Borrowers.  Netherlands Borrowers shall from time to time
execute and deliver to Netherlands Agent such further documents and instruments
as Netherlands Agent may request with respect to such cash collateral.


 


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6.4.                              Performance
by Applicable Agent, Collateral Agent and Netherlands Security
Trustee.  So long as an Event of 


Default has occurred and is continuing, if any Credit Party shall fail
to perform any covenant, duty or agreement contained in any of the Loan
Documents, Applicable Agent, Collateral Agent and/or Netherlands Security
Trustee may perform or attempt to perform such covenant, duty or agreement on
behalf of such Credit Party after the expiration of any cure or grace periods
set forth herein to the extent necessary to protect the Collateral, the value
thereof or the priority of the Applicable Agent’s Liens therein.  In such event, such Credit Party shall, at
the request of Applicable Agent or (as the case may be) Collateral Agent or
Netherlands Security Trustee, promptly pay any amount reasonably expended by
Applicable Agent or (as the case may be) Collateral Agent or Netherlands
Security Trustee in such performance or attempted performance to Applicable
Agent or (as the case may be) Collateral Agent or Netherlands Security Trustee,
together with interest thereon at the highest rate of interest in effect upon
the occurrence of an Event of Default as specified in Section 1.3(d)
from the date of such expenditure until paid. 
Notwithstanding the foregoing, it is expressly agreed that Applicable
Agent, Netherlands Security Trustee and Collateral Agent shall not have any
liability or responsibility for the performance of any obligation of any Credit
Party under this Agreement or any other Loan Document.


 


6.5.                              Application of Proceeds.  Notwithstanding anything to the contrary
contained in this Agreement, upon the occurrence and during the continuance of
an Event of Default,


 


(a)                                  Borrowers irrevocably waive the right to direct the
application of any and all payments at any time or times thereafter received by
Applicable Agent or (as the case may be) Collateral Agent or Netherlands
Security Trustee from or on behalf of any Borrower, and Applicable Agent or (as
the case may be) Collateral Agent or Netherlands Security Trustee shall have
the continuing right in its own discretion or at the direction of Requisite
Lenders, to apply and to reapply any and all payments received at any time or
times after the occurrence and during the continuance of an Event of Default, provided,
that no proceeds received from Netherlands Collateral or a Netherlands Credit
Party shall be applied to US Obligations and no proceeds received from US
Collateral or a US Credit Party shall be applied to Netherlands Obligations;


 


(b)                                 Following Acceleration of US Obligations, the
proceeds of any sale of, or other realization upon, all or any part of the US
Collateral shall be applied:  first,
to all Fees, costs and expenses incurred by or owing to US Agent and the
Collateral Agent and reimbursable by US Credit Parties pursuant to this
Agreement, the other Loan Documents or the US Collateral; second, to
accrued and unpaid Fees owing to US Lenders and interest on the US Revolving
Credit Advances (including any interest which but for the provisions of the
Bankruptcy Code, would have accrued on such amounts); third, to the
principal amount of the US Revolving Credit Advances; fourth, to provide
cash collateral for US Letter of Credit Obligations; fifth, to all liabilities
and obligations of the US Credit Parties under US Hedge Agreements with any US
Lender or any Affiliate of a US Lender; and sixth, to any other US
Obligations (other than Contingent Indemnification Obligations).  Any balance remaining shall be delivered to
US Borrowers or to whomever may be lawfully entitled to receive such balance or
as a court of competent jurisdiction may direct.


 


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(c)                                  Following Acceleration of Netherlands Obligations,
the proceeds of any sale of, or other realization upon, all or any part of the
Netherlands Collateral shall be applied: 
first, to all Fees, costs and expenses incurred by or owing to
Netherlands Agent and the Netherlands Security Trustee and reimbursable by
Netherlands Credit Parties pursuant to this Agreement, the other Loan Documents
or the Netherlands Collateral; second, to accrued and unpaid Fees owing
to Netherlands Lenders and interest on the Netherlands Revolving Credit
Advances (including any interest which but for the provisions of any Insolvency
Law, would have accrued on such amounts); third, to the principal amount
of the Netherlands Revolving Credit Advances; fourth, to provide cash
collateral for Netherlands Letter of Credit Obligations; and fifth, to
any other Netherlands Obligations (other than Contingent Indemnification
Obligations).  Any balance remaining
shall be delivered to Netherlands Borrowers or to whomever may be lawfully
entitled to receive such balance or as a court of competent jurisdiction may
direct.


 


SECTION 7.

CONDITIONS TO LOANS


 


The obligations of Lenders and L/C Issuers to
make Loans and to Issue or cause to be Issued Letters of Credit are subject to
satisfaction or waiver of all of the applicable conditions set forth below.


 


7.1.                              Conditions to Initial
Loans.  The obligations of
Lenders and L/C Issuers to make the initial Loans and to Issue or cause to be
Issued Letters of Credit on the Closing Date are, in addition to the conditions
precedent specified in Section 7.2, subject to the delivery of all
documents listed on, the taking of all actions set forth on and the
satisfaction of all other conditions precedent listed in the Closing Checklist
attached hereto as Annex C, all in form and substance, or in a manner,
reasonably satisfactory to US Agent, Netherlands Agent and Netherlands Security
Trustee.


 


7.2.                              Conditions
to All Loans.  Except as
otherwise expressly provided herein, no Lender or L/C Issuer shall be obligated
to fund any Advance or incur any Letter of Credit Obligation, if, as of the
date thereof (the “Funding Date”):


 


(a)                                  (i) any representation or warranty by any Credit
Party contained herein or in any other Loan Document is untrue or incorrect in
any material respect (without duplication of any materiality qualifier
contained therein) as of such date, except to the extent that such
representation or warranty expressly relates to an earlier date (it being
understood that the schedules to the Security Agreement and Foreign Security
Agreements delivered on the Closing Date expressly relate to the Closing Date),
and (ii) Applicable Agent or Requisite US Lenders (in the case of US Revolving
Credit Advances or US Letters of Credit) or Netherlands Requisite Lenders (in
the case of Netherlands Revolving Credit Advances and Netherlands Letters of
Credit) have determined not to make such Advance or incur such Letter of Credit
Obligation as a result of the fact that such warranty or representation is
untrue or incorrect in any material respect;


 


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(b)                                 (i) any Default or Event of Default has occurred
and is continuing or would result after giving effect to any Advance (or the
incurrence of any Letter of Credit Obligation), and (ii) Applicable Agent or
Requisite US Lenders (in the case of US Revolving Credit Advances or US Letters
of Credit) or Netherlands Requisite Lenders (in the case of Netherlands
Revolving Credit Advances and Netherlands Letters of Credit) shall have
determined not to make any Advance or incur any Letter of Credit Obligation as
a result of that Default or Event of Default;


 


(c)                                  except as to US Overadvances and Netherlands
Overadvances contemplated by Sections 1.1(a)(ii) and Section 1.2(a)(ii),
respectively, after giving effect to any Advance (or the incurrence of any
Letter of Credit Obligations), (i) the Dollar Equivalent of the US
Revolving Loan would exceed the lesser of the US Revolving Loan Commitment of
all US Lenders or the Aggregate US
Borrowing Base or the outstanding amount of the US Revolving Loan (including, without
duplication, the US Swing Line
Loan advanced to that US Borrower) of the applicable US Borrower would exceed such US Borrower’s separate US Borrowing Base, (ii) the Dollar
Equivalent of the Netherlands Revolving Loan would exceed the lesser of the
Netherlands Commitment of all Netherlands Lenders or the Aggregate Netherlands
Borrowing Base or the outstanding amount of the Netherlands Revolving Loan
of the applicable Netherlands Borrower would exceed such Netherlands Borrower’s
separate Netherlands Borrowing Base or (iii) the Dollar Equivalent of the
principal amount of the US Revolving Loan (including, without duplication, the
US Swing Line Loan) together with the Dollar Equivalent of principal amount of
the Netherlands Revolving Loan would exceed $150,000,000.


 


The request and acceptance by any Borrower of the proceeds of any
Advance or the incurrence of any Letter of Credit Obligations shall be deemed
to constitute, as of the date thereof, (i) a representation and warranty
by such Borrower that the conditions in this Section 7.2  have been satisfied and (ii) a
reaffirmation by such Borrower of the cross guaranty provisions set forth in Section 10,
in the case of a US Borrower or Section 11 in the case of a
Netherlands Borrower, and of the granting and continuance of Collateral Agent’s
or US Agent’s Liens, on behalf of itself and Secured Creditors or US Lenders
(as applicable), or Netherlands Agent or Netherlands Security Trustee’s Liens,
on behalf of Netherlands Agent, Netherlands Security Trustee and Netherlands
Lenders, as the case may be, pursuant to the Collateral Documents.


 


SECTION 8.

ASSIGNMENT AND PARTICIPATION


 


8.1.                              Assignment
and Participations.


 


(a)                                  Subject to the terms of this Section 8.1,
any Lender may make an assignment to a Qualified Assignee of, or sale of
participations in, at any time or times, the Loan Documents, Loans, Letter of
Credit Obligations and any Commitment or any portion thereof or interest
therein, including any Lender’s rights, title, interests, remedies, powers or
duties thereunder.  Any assignment by a
Lender shall:  (i) require the
consent of Applicable Agent (which consent shall not be unreasonably withheld
or delayed with respect to a Qualified Assignee) and the execution of an
assignment agreement (an “Assignment Agreement” substantially in the
form attached hereto as Exhibit 8.1 and otherwise in form and substance
reasonably satisfactory to, and acknowledged by, Applicable Agent); (ii) be
conditioned on such 


 


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assignee Lender
representing to the assigning Lender and Applicable Agent that it is purchasing
the applicable Loans to be assigned to it for its own account, for investment
purposes and not with a view to the distribution thereof; (iii) solely in the
case of any partial assignment, after giving effect to such partial assignment,
the assignee Lender shall have Commitments in an amount at least equal to
$5,000,000 and the assigning
Lender shall have retained Commitments in an amount at least equal to
$5,000,000; (iv) require a payment to Applicable Agent of an assignment fee of
$3,500, as applicable and (v) so long as no Event of Default has occurred and
is continuing, require the consent of Applicable Borrower Representative, which
shall not be unreasonably withheld or delayed and shall be deemed granted if
not objected to within five (5) Business Days following notice thereof to
Applicable Borrower Representative; provided that no such consent shall
be required for an assignment to a Person described in clause (a) of the
definition of Qualified Assignee. 
Notwithstanding the above, Applicable Agent may in its sole and absolute
discretion permit any assignment by a Lender to a Person or Persons that are
not Qualified Assignees subject to any consent of the Applicable Borrower
Representative provided for herein.  In
the case of an assignment by a Lender under this Section 8.1, the
assignee shall have, to the extent of such assignment, the same rights,
benefits and obligations as all other Lenders hereunder.  The assigning Lender shall be relieved of its
obligations hereunder with respect to its Commitments or assigned portion
thereof from and after the date of such assignment.  Borrowers hereby acknowledge and agree that
any assignment shall give rise to a direct obligation of Borrowers to the
assignee and that the assignee shall be considered to be a “Lender.”  In all instances, each Lender’s liability to
make Loans hereunder shall be several and not joint and shall be limited to
such Lender’s Pro Rata Share of the applicable Commitment.  In the event Applicable Agent or any Lender
assigns or otherwise transfers all or any part of the Obligations, Applicable
Agent or any such Lender shall so notify Borrowers, and Borrowers shall, upon
the request of Applicable Agent or such Lender, execute new Notes in exchange
for the Notes, if any, being assigned. 
Notwithstanding the foregoing provisions of this Section 8.1(a),
(a) any Lender may at any time pledge the Obligations held by it and such
Lender’s rights under this Agreement and the other Loan Documents to a Federal
Reserve Bank or any other central bank or Governmental Authority regulating
such Lender, (b) any Lender that is an investment fund may assign the
Obligations held by it and such Lender’s rights under this Agreement and the
other Loan Documents to another investment fund managed by the same investment
advisor or pledge such Obligations and rights to trustee for the benefit of its
investors and (c) any Lender may assign the Obligations to an Affiliate of such
Lender or to a Person that is a Lender prior to the date of such assignment.


 


(b)                                 Any participation by a Lender of all or any part of
its Commitments shall be made with the understanding that all amounts payable
by Borrowers hereunder shall be determined as if that Lender had not sold such
participation, and that the holder of any such participation shall not be
entitled to require such Lender to take or omit to take any action hereunder
except actions directly affecting (i) any reduction in the principal amount of,
or interest rate or Fees payable with respect to, any Loan in which such holder
participates, (ii) any extension of the scheduled amortization of the principal
amount of any Loan in which such holder participates or the final maturity date
thereof, and (iii) any release of all or substantially all of the Collateral
(other than in accordance with the terms of this Agreement, the Collateral
Documents or the other Loan Documents). 
Solely for purposes of Sections 8.3 and 9.1, Borrowers,
Agents and Lenders acknowledge and agree that a participation shall give rise
to a direct obligation of Borrowers to the participant and the participant
shall be considered to be a 


 


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“Lender”.  Except as set forth in the preceding sentence
no Borrower or any other Credit Party shall have any obligation or duty to any
participant.  No Agent or Lender (other
than the Lender selling a participation) shall have any duty to any participant
and may continue to deal solely with the Lender selling a participation as if
no such sale had occurred.


 


(c)                                  Except as expressly provided in this Section 8.1,
no Lender shall, as between Borrowers and that Lender, or Applicable Agent and
that Lender, be relieved of any of its obligations hereunder as a result of any
sale, assignment, transfer or negotiation of, or granting of participation in,
all or any part of the Loans, the Notes or other Obligations owed to such
Lender.


 


(d)                                 Omitted.


 


(e)                                  US Agent shall maintain, on behalf of US Borrowers,
in its offices located at 335 Madison Avenue, New York, New York 10017 a “register”
for recording the name, address, commitment and US Revolving Loans owing to
each US Lender.  The entries in such
register shall be presumptive evidence of the amounts due and owing to each US
Lender in the absence of manifest error. 
US Borrowers, US Agent, and each US Lender may treat each Person whose
name is recorded in such register pursuant to the terms hereof as a US Lender
for all purposes of this Agreement.  The
register described herein shall be available for inspection by US Borrowers and
any US Lender, at any reasonable time upon reasonable prior notice.


 


(f)                                    Netherlands Agent shall maintain, on behalf of
Netherlands Borrowers, in its offices located at GE, 30 Berkley Square, London,
England a “register” for recording the name, address, commitment and
Netherlands Revolving Loans owing to each Netherlands Lender.  The entries in such register shall be
presumptive evidence of the amounts due and owing to each Netherlands Lender in
the absence of manifest error. 
Netherlands Borrowers, Netherlands Agent, Netherlands Security Trustee
and each Netherlands Lender may treat each Person whose name is recorded in
such register pursuant to the terms hereof as a Netherlands Lender for all
purposes of this Agreement.  The register
described herein shall be available for inspection by Netherlands Borrowers,
Netherlands Security Trustee and any Netherlands Lender, at any reasonable time
upon reasonable prior notice.


 


(g)                                 Any Lender may furnish any information concerning
Credit Parties, in the possession of such Lender from time to time to assignees
and participants (including prospective assignees and participants); provided
that such Lender shall obtain from assignees or participants confidentiality
covenants substantially equivalent to those contained in Section 9.13.


 


(h)                                 So long as no Event of Default has occurred and is
continuing, no Lender shall assign or sell participations in any portion of its
Loans or Commitments to a potential Lender or participant, if, as of the date
of the proposed assignment or sale, the assignee Lender or participant would be
subject to capital adequacy or similar requirements under Section 1.14(a),
increased costs or an inability to fund LIBOR Loans or EURO LIBOR Loans under Section 1.14(b),
or withholding taxes in accordance with Section 1.15.


 


(i)                                     Each Netherlands Lender agrees with the Netherlands
Borrower, the Netherlands Agent and each other Netherlands Lender that it will
prior to any assignment 


 


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pursuant to this Section 8.1
enable the Netherlands Borrower and the Netherlands Agent to verify that the
proposed assignee is a Professional Market Party.


 


8.2.                              Agents and Collateral Agent


 


(a)                                  Appointment.  Each US Lender hereby designates
and appoints GE Capital as its agent (and Collateral Agent), and each
Netherlands Lender hereby appoints GE Netherlands as its agent, in each case,
under this Agreement and the other Loan Documents.  Each US Lender hereby irrevocably authorizes
US Agent and Collateral Agent to execute and deliver the Collateral Documents
entered into by any US Credit Party for the benefit of US Agent and US Lenders
or Collateral Agent and Secured Creditors, and each Netherlands Lender hereby
irrevocably authorizes Netherlands Agent and Netherlands Security Trustee to
execute and deliver the Collateral Documents entered into by any Netherlands
Credit Party for the benefit of Netherlands Agent and/or Netherlands Security
Trustee and Netherlands Lenders, and to take such action or to refrain from
taking such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers as are set forth herein or
therein, together with such other powers as are reasonably incidental
thereto.  US Agent, Collateral Agent,
Netherlands Security Trustee and Netherlands Agent are authorized and empowered
to amend, modify, or waive any provisions of this Agreement or the other Loan
Documents on behalf of Applicable Lenders, subject to the requirement that
certain of such Lenders’ consent be obtained in certain instances as provided
in this Section 8.2 and Section 9.2.  The provisions of this Section 8.2
are solely for the benefit of US Agent, Collateral Agent, Netherlands Agent,
Netherlands Security Trustee and Lenders and neither Borrowers nor any other
Credit Party shall have any rights as a third party beneficiary of any of the
provisions hereof.  In performing their
functions and duties under this Agreement, US Agent, Collateral Agent,
Netherlands Security Trustee and Netherlands Agent shall act solely as agent of
Lenders and do not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for any Borrower
or any other Credit Party.  US Agent,
Collateral Agent, Netherlands Security Trustee and Netherlands Agent may
perform any of their duties hereunder, or under the Loan Documents, by or
through their agents or employees.


 


(b)                                 Nature of Duties.  The duties of US Agent,
Collateral Agent, Netherlands Security Trustee and Netherlands Agent shall be
mechanical and administrative in nature. 
US Agent, Collateral Agent, Netherlands Security Trustee and Netherlands
Agent shall not have by reason of this Agreement a fiduciary relationship in
respect of any Lender.  Nothing in this
Agreement or any of the Loan Documents, express or implied, is intended to or
shall be construed to impose upon US Agent, Netherlands Security Trustee or Netherlands
Agent any obligations in respect of this Agreement or any of the Loan Documents
except as expressly set forth herein or therein.  Each Lender shall make its own independent
investigation of the financial condition and affairs of each Credit Party in
connection with the extension of credit hereunder and shall make its own
appraisal of the creditworthiness of each Credit Party, and US Agent,
Collateral Agent and Netherlands Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Lender with any
credit or other information with respect thereto (other than as expressly
required herein).  If US Agent,
Collateral Agent, Netherlands Security Trustee or Netherlands Agent, as the
case may be, seeks the consent or approval of any Lender, as the case may be,
to the taking or refraining from taking any action hereunder, then US Agent,
Collateral Agent, Netherlands Trustee or Netherlands Agent, as the


 


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case may be, shall
send notice thereof to each Lender.  US
Agent or Collateral Agent, as the case may be, shall promptly notify each US
Lender any time that the Requisite Lenders, the Supermajority Lenders, the
Requisite US Lenders or the Supermajority US Lenders have instructed US Agent
or Collateral Agent to act or refrain from acting pursuant hereto.  Netherlands Agent or Netherlands Security
Trustee, as the case may be, shall promptly notify each Netherlands Lender any
time that the Requisite Lenders, Requisite Netherlands Lenders, Supermajority
Lenders or Supermajority Netherlands Lenders have instructed Netherlands Agent
or Netherlands Security Trustee to act or refrain from acting pursuant hereto.


 


(c)                                  Rights, Exculpation, Etc. of US Agent, Collateral
Agent, Netherlands Security Trustee and Netherlands Agent.  Neither US
Agent, Collateral Agent, Netherlands Security Trustee, Netherlands Agent nor
any of their respective officers, directors, employees or agents shall be
liable to any Lender for any action taken or omitted by them hereunder or under
any of the Loan Documents, or in connection herewith or therewith, except that
US Agent, Collateral Agent, Netherlands Security Trustee or Netherlands Agent,
as the case may be, shall be liable to the extent of its own gross negligence
or willful misconduct as determined by a final non-appealable order by a court
of competent jurisdiction.  US Agent,
Collateral Agent, Netherlands Security Trustee and Netherlands Agent shall not
be liable for any apportionment or distribution of payments made by them in
good faith and if any such apportionment or distribution is subsequently
determined to have been made in error the sole recourse of any Lender to whom
payment was due but not made, shall be to recover from other Lenders any
payment in excess of the amount to which they are determined to be entitled
(and such other Lenders hereby agree to return to such Lender any such
erroneous payments received by them).  In
no event shall US Agent, Collateral Agent, Netherlands Security Trustee or
Netherlands Agent be liable for punitive, special, consequential, incidental,
exemplary or other similar damages.  In
performing their respective functions and duties hereunder, US Agent,
Collateral Agent, Netherlands Security Trustee and Netherlands Agent shall
exercise the same care which they would in dealing with loans for their own
account, but neither US Agent, Collateral Agent, Netherlands Security Trustee,
Netherlands Agent nor any of their respective agents or representatives shall
be responsible to any Lender for any recitals, statements, representations or
warranties herein or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, or sufficiency of this Agreement or any of the
Loan Documents or the transactions contemplated thereby, or for the financial
condition of any Credit Party.  Neither
US Agent, Collateral Agent, Netherlands Security Trustee nor Netherlands Agent
shall be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any of the Loan Documents or the financial condition of any Credit Party, or
the existence or possible existence of any Default or Event of Default.  US Agent and Collateral Agent may at any time
request instructions from Requisite Lenders, Requisite US Lenders or all
affected Lenders with respect to any actions or approvals which by the terms of
this Agreement or of any of the Loan Documents US Agent or Collateral Agent is
permitted or required to take or to grant. 
Netherlands Agent and Netherlands Security Trustee may at any time
request instructions from Requisite Lenders, Requisite Netherlands Lenders or
all affected Lenders with respect to any actions or approvals which by the
terms of this Agreement or of any of the Loan Documents Netherlands Agent or
Netherlands Security Trustee is permitted or required to take or to grant.  If such instructions are promptly requested,
US Agent, Collateral Agent, Netherlands Security Trustee and Netherlands Agent,
as the case may be, shall be absolutely entitled to refrain from taking any
action or to withhold any approval and shall not be


 


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under any
liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from the Requisite Lenders, Requisite US Lenders,
Requisite Netherlands Lenders or such other portion of the Lenders as shall be
prescribed by this Agreement, as the case may be.  Without limiting the foregoing, no Lender
shall have any right of action whatsoever against US Agent, Collateral Agent,
Netherlands Security Trustee or Netherlands Agent as a result of US Agent,
Collateral Agent, Netherlands Security Trustee or Netherlands Agent,
respectively, acting or refraining from acting under this Agreement or any of
the other Loan Documents in accordance with the instructions of Requisite
Lenders, Requisite US Lenders, Requisite Netherlands Lenders or all affected
Lenders, as the case may be; and, notwithstanding the instructions of Requisite
Lenders, Requisite US Lenders, Requisite Netherlands Lenders or all affected
Lenders, as the case may be, neither US Agent, Collateral Agent, Netherlands
Security Trustee nor Netherlands Agent shall have any obligation to take any
action if it believes, in good faith, that such action is deemed to be illegal
by US Agent, Collateral Agent, Netherlands Security Trustee or Netherlands
Agent, as applicable, or exposes US Agent, Collateral Agent, Netherlands
Security Trustee or Netherlands Agent, as applicable, to any liability for
which it has not received satisfactory indemnification in accordance with Section 8.2(e).


 


(d)                                 Reliance.  US Agent, Collateral Agent,
Netherlands Security Trustee and Netherlands Agent shall be entitled to rely,
and shall be fully protected in relying, upon any written or oral notices,
statements, certificates, orders or other documents or any telephone message or
other communication (including any writing, telex, fax or telegram) believed by
it in good faith to be genuine and correct and to have been signed, sent or
made by the proper Person, and with respect to all matters pertaining to this
Agreement or any of the Loan Documents and its duties hereunder or thereunder.  US Agent, Collateral Agent, Netherlands
Security Trustee and Netherlands Agent shall be entitled to rely upon the
advice of legal counsel, independent accountants, and other experts selected by
US Agent, Collateral Agent, Netherlands Security Trustee or Netherlands Agent,
as the case may be, in its sole discretion.


 


(e)                                  Indemnification.  Applicable Lenders will
reimburse and indemnify US Agent, Collateral Agent, Netherlands Security
Trustee and Netherlands Agent for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, reasonable
expenses (including, without limitation, reasonable attorneys’ fees and
reasonable expenses), advances or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against US Agent,
Collateral Agent, Netherlands Security Trustee or Netherlands Agent in any way
relating to or arising out of this Agreement or any of the Loan Documents or
any action taken or omitted by US Agent, Collateral Agent, Netherlands Security
Trustee or Netherlands Agent under this Agreement or any of the Loan Documents,
in proportion to each Lender’s Pro Rata Share, but only to the extent that any
of the foregoing is not reimbursed by Borrowers; provided, however,
that no Applicable Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, advances or disbursements to the extent resulting from US Agent’s,
Collateral Agent’s, Netherlands Security Trustee’s or Netherlands Agent’s, as
the case may be, gross negligence or willful misconduct as determined by a
final non-appealable order by a court of competent jurisdiction.  If any indemnity furnished to US Agent,
Collateral Agent, Netherlands Security Trustee or Netherlands Agent for any
purpose shall, in the opinion of US Agent, Collateral Agent, Netherlands
Security Trustee or Netherlands Agent, respectively, be 


 


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insufficient or
become impaired, US Agent, Collateral Agent, Netherlands Security Trustee or
Netherlands Agent may call for additional indemnity and cease, or not commence,
to do the acts indemnified against even if so directed by the Requisite
Lenders, Requisite US Lenders, Requisite Netherlands Lenders or Requisite
Lenders, or such other portion of the Lenders as shall be prescribed by this
Agreement, until such additional indemnity is furnished.  The obligations of Lenders under this Section 8.2(e)
shall survive the payment in full of the Obligations and the termination of
this Agreement.


 


(f)                                    GE Capital and GE Netherlands Individually.  With
respect to its Commitments hereunder, each of GE Capital and GE Netherlands
shall have and may exercise the same rights and powers hereunder and is subject
to the same obligations and liabilities as and to the extent set forth herein
for any other Lender.  The terms “US
Lenders”, “Lenders”, “Requisite Lenders”, “Requisite US Lenders”, “Supermajority
US Lenders” or any similar terms shall, unless the context clearly otherwise
indicates, include GE Capital in its individual capacity as a US Lender,
Requisite US Lender, Supermajority Lender, Supermajority US Lender or one of
the Requisite Lender, or Lenders.  The
terms “Netherlands Lenders”, “Lenders”, “Requisite Lenders”, “Requisite
Netherlands Lenders”, “Supermajority Netherlands Lenders”  or any similar terms shall, unless the
context clearly otherwise indicates, include GE Netherlands in its individual
capacity as a Netherlands Lender, Requisite Lender, Requisite Netherlands
Lender, Supermajority Lender, Supermajority Netherlands Lender or one of the
Lenders.  GE Capital and GE Netherlands,
either directly or through strategic affiliations, may lend money to, acquire
equity or other ownership interests in, provide advisory services to and
generally engage in any kind of banking, trust or other business with any
Credit Party as if it were not acting as US Agent, Collateral Agent,
Netherlands Security Trustee or Netherlands Agent, respectively, pursuant
hereto and without any duty to account therefor to Applicable Lenders.  GE Capital and GE Netherlands, either
directly or through strategic affiliations, may accept fees and other
consideration from any Credit Party for services in connection with this
Agreement or otherwise without having to account for the same to Applicable
Lenders.


 


(g)                                 Successor US Agent, Collateral Agent, Netherlands
Security Trustee or Netherlands Agent.


 


(i)                                     Resignation.  US Agent, Netherlands Agent,
Collateral Agent or Netherlands Security Trustee may resign from the
performance of all its agency functions and duties hereunder at any time by
giving at least thirty (30) Business Days’ prior written notice to Applicable
Borrower Representative, Applicable Lenders and US Agent, Netherlands Agent,
Collateral Agent or Netherlands Security Trustee, as the case may be.  Such resignation shall take effect upon the
acceptance by a successor US Agent, Netherlands Agent, Collateral Agent or
Netherlands Security Trustee of appointment pursuant to clause (ii) below or as
otherwise provided in clause (ii) below.


 


(ii)                                  Appointment of Successor.  Upon any
such notice of resignation pursuant to clause (i) above, Requisite US
Lenders or Requisite Netherlands Lenders, as the case may be, shall appoint a
successor US Agent, Collateral Agent, Netherlands Security Trustee or
Netherlands Agent, respectively, which, unless an Event of Default has occurred
and is continuing, shall be reasonably acceptable to US Borrowers or
Netherlands Borrowers, as the case may be. 
If a successor US Agent, Collateral Agent, Netherlands Security Trustee
or 


 


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Netherlands Agent
shall not have been so appointed within the thirty (30) Business Day period
referred to in clause (i) above, the retiring US Agent, Collateral Agent,
Netherlands Security Trustee or Netherlands Agent, respectively, upon notice to
Applicable Borrower Representative, shall then appoint a successor US Agent,
Collateral Agent, Netherlands Security Trustee or Netherlands Agent, as the
case may be, who shall serve as US Agent, Collateral Agent, Netherlands
Security Trustee or Netherlands Agent, respectively, until such time, if any,
as Requisite US Lenders or Requisite Netherlands Lenders, as the case may be,
appoint a successor US Agent, Collateral Agent, Netherlands Security Trustee or
Netherlands Agent, respectively, as provided above.


 


(iii)                               Successor US Agent, Collateral Agent, Netherlands
Security Trustee or Netherlands Agent.  Upon the acceptance of any
appointment as US Agent, Netherlands Agent, Collateral Agent or Netherlands
Security Trustee under the Loan Documents by a successor US Agent, Collateral
Agent, Netherlands Security Trustee or Netherlands Agent, as the case may be,
such successor US Agent, Netherlands Agent, Collateral Agent or Netherlands
Security Trustee, as the case may be, shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring US
Agent, Netherlands Agent, Collateral Agent or Netherlands Security Trustee, as
the case may be, and the retiring US Agent, Netherlands Agent, Collateral Agent
or Netherlands Security Trustee, as the case may be, shall be discharged from
its duties and obligations under the Loan Documents.  After any retiring US Agent’s resignation as
US Agent, any retiring Netherlands Agent resignation as Netherlands Agent, any
retiring Netherlands Security Trustee’s resignation as Netherlands Security
Trustee or any retiring Collateral Agent’s resignation as Collateral Agent, the
provisions of this Section 8.2 shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it in its capacity as
US Agent, Netherlands Agent, Collateral Agent or Netherlands Security Trustee,
as the case may be.


 


(h)                                 Collateral Matters.


 


(i)                                     Release of Collateral.  Applicable
Lenders hereby irrevocably authorize each of US Agent, Netherlands Agent,
Collateral Agent or Netherlands Security Trustee at its option and in its
discretion, to release any Lien granted to or held by US Agent, Netherlands
Agent, Collateral Agent or Netherlands Security Trustee upon any Collateral,
(x) in the case of US Agent and Collateral Agent upon termination of the
US Commitments and payment and satisfaction of all US Obligations (other than
Contingent Indemnification Obligations) or in the case of Netherlands Agent or
Netherlands Security Trustee upon termination of the Netherlands Commitments
and payment and satisfaction of all Netherlands Obligations (other than
Contingent Indemnification Obligations), (y) constituting property being
sold or disposed of if Borrowers (or any of them) certify to Applicable Agent
that the sale or disposition is made in compliance with the provisions of this
Agreement (and Applicable Agent may rely in good faith conclusively on any such
certificate, without further inquiry).


 


(ii)                                  Confirmation of Authority; Execution of Releases.  Without in
any manner limiting Applicable Agent’s, Collateral Agent’s or Netherlands
Security Trustee’s authority to act without any specific or further
authorization or consent by Lenders (as set forth in this Section 8.2(h)),
each Applicable Lender agrees to confirm in writing, upon request by Applicable
Agent, Collateral Agent, Netherlands Security Trustee or Applicable Borrower 


 


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Representative,
the authority to release any Collateral conferred upon US Agent, Collateral
Agent, Netherlands Security Trustee or Netherlands Agent under clause (i) of Section 8.2(h).  Upon receipt by US Agent, Collateral Agent,
Netherlands Security Trustee or Netherlands Agent of any required confirmation
from the Requisite US Lenders or Requisite Netherlands Lenders of its authority
to release any particular item or types of Collateral, and upon at least ten
(10) Business Days’ prior written request by Applicable Borrower
Representative, US Agent, Collateral Agent, Netherlands Security Trustee or
Netherlands Agent, as the case may be, shall (and are hereby irrevocably
authorized by Lenders to) execute such documents as may be necessary to
evidence the release of the Liens granted to US Agent, Collateral Agent,
Netherlands Security Trustee or Netherlands Agent, as the case may be, upon
such Collateral; provided, however, that (x) US Agent,
Collateral Agent, Netherlands Security Trustee and Netherlands Agent shall not
be required to execute any such document on terms which, in their respective
opinion, would expose them to liability or create any obligation or entail any
consequence other than the release of such Liens without recourse or warranty,
and (y) such release shall not in any manner discharge, affect or impair
the Obligations or any Liens upon (or obligations of any Credit Party in
respect of), all interests retained by any Credit Party, including the proceeds
of any sale, all of which shall continue to constitute part of the Collateral.


 


(iii)                               Absence of Duty.  Neither US Agent, Netherlands
Agent, Collateral Agent nor Netherlands Security Trustee shall have any
obligation whatsoever to any Lender or any other Person to assure that the
property covered by the Collateral Documents exists or is owned by any Credit
Party, or is cared for, protected or insured or has been encumbered or that the
Liens granted to US Agent, Netherlands Agent, Collateral Agent or Netherlands
Security Trustee, as the case may be, have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled to any
particular priority, or to exercise at all or in any particular manner or under
any duty of care, disclosure or fidelity, or to continue exercising, any of the
rights, authorities and powers granted or available to US Agent, Netherlands
Agent, Collateral Agent or Netherlands Security Trustee as the case may be, in
this Section 8.2(h) or in any of the Loan Documents, it being
understood and agreed that in respect of the property covered by the Collateral
Documents or any act, omission or event related thereto, each of US Agent,
Netherlands Agent, Collateral Agent and Netherlands Security Trustee may act in
any manner they may deem appropriate, in their discretion, given their own
interest in property covered by the Collateral Documents as one of the Lenders
and that US Agent, Netherlands Agent, Collateral Agent and Netherlands Security
Trustee shall have no duty or liability whatsoever to any of the other Lenders,
provided that US Agent, Netherlands Agent, Collateral Agent and
Netherlands Security Trustee shall exercise the same care which they would in
dealing with loans for their own, respective, account.


 


(i)                                     Agency for Perfection.  US Agent,
Collateral Agent and each US Lender hereby appoint each other US Lender and
Netherlands Agent, Netherlands Security Trustee and each Netherlands Lender
hereby appoint each other Netherlands Lender as agent for the purpose of
perfecting Applicable Agent’s, Collateral Agent’s or Netherlands Security
Trustee’s security interest in assets which, in accordance with the Code in any
applicable jurisdiction (or its equivalent under Dutch, English or other law)
can be perfected by possession or control. 
Should any US Lender (other than US Agent or Collateral Agent) or any
Netherlands Lender (other than Netherlands Agent or Netherlands Security
Trustee) obtain possession or control of any such assets, such Lender shall
notify Applicable Agent thereof, and, promptly upon Applicable 


 


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Agent’s request
therefor, shall deliver such assets to Applicable Agent or in accordance with
Applicable Agent’s instructions or transfer control to Applicable Agent in
accordance with Applicable Agent’s instructions.  Each Lender agrees that it will not have any
right individually to enforce or seek to enforce any Collateral Document or to
realize upon any collateral security for the US Revolving Loans or Netherlands
Revolving Loans, as the case may be, unless instructed to do so by Applicable
Agent in writing, it being understood and agreed that such rights and remedies
may be exercised only by Applicable Agent.


 


(j)                                     Notice of Default.  Neither US Agent, Collateral
Agent, Netherlands Security Trustee nor Netherlands Agent shall be deemed to
have knowledge or notice or be actually aware of the occurrence of any Default
or Event of Default except (as to US Agent and Netherlands Agent, respectively,
only) with respect to defaults in the payment of principal, interest and Fees
required to be paid to US Agent or Netherlands Agent for the account of US
Lenders or Netherlands Lenders, respectively, unless US Agent, Collateral
Agent, Netherlands Security Trustee or Netherlands Agent, as the case may be,
shall have received written notice from a Lender or Borrower Representative
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default”.  Applicable Agent, Collateral Agent and
Netherlands Security Trustee will use reasonable efforts to notify each US
Lender or Netherlands Lender, as the case may be, of its receipt of any such
notice, unless such notice is with respect to defaults in the payment of
principal, interest and fees, in which case Applicable Agent will notify each
US Lender or Netherlands Lender, as the case may be, of its receipt of such
notice.  Applicable Agent, Collateral
Agent and Netherlands Security Trustee shall take such action with respect to
such Default or Event of Default as may be requested by Requisite Lenders,
Requisite US Lenders or Requisite Netherlands Lenders, as the case may be, in
accordance with Section 6. 
Unless and until Applicable Agent, Collateral Agent or Netherlands
Security Trustee has received any such request, Applicable Agent, Collateral
Agent and Netherlands Security Trustee may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interests of US
Lenders or Netherlands Lenders, as the case may be.


 


(k)                                  Lender Actions Against Collateral.  Each
Applicable Lender agrees that it will not take any action, nor institute any
actions or proceedings, with respect to the Loans, against any Borrower or any
Credit Party hereunder or under the other Loan Documents or against any of the
Real Estate encumbered by Mortgages without the consent of the Requisite US
Lenders or Requisite Netherlands Lenders, as the case may be.  With respect to any action by US Agent,
Collateral Agent, Netherlands Security Trustee or Netherlands Agent to enforce
its and the Applicable Lenders’ rights and remedies, under this Agreement and
the other Loan Documents, each Lender hereby consents to the jurisdiction of
the court in which such action is maintained, and agrees to deliver its Notes
to US Agent, Collateral Agent, Netherlands Security Trustee or Netherlands
Agent, as the case may be, to the extent necessary to enforce the rights and
remedies of US Agent, Collateral Agent, Netherlands Security Trustee or
Netherlands Agent, as the case may be, for the benefit of the Lenders under the
Mortgages in accordance with the provisions hereof.


 


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8.3.                              Set Off and Sharing of Payments.


 


(a)                                  In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, during
the continuance of any Event of Default, each US Lender is hereby authorized by
each US Borrower at any time or from time to time, with reasonably prompt
subsequent notice to US Borrower Representative (any prior or contemporaneous
notice being hereby expressly waived) to set off and to appropriate and to apply
any and all (A) balances held by such US Lender at any of its offices for
the account of any US Borrower or any of its Domestic Subsidiaries (regardless
of whether such balances are then due to US Borrower or its Domestic
Subsidiaries), and (B) other property at any time held or owing by such US
Lender to or for the credit or for the account of any US Borrower or any of its
Domestic Subsidiaries, against and on account of any of the US Obligations;
except that no US Lender shall exercise any such right without the prior
written consent of Requisite Lenders. 
Any US Lender exercising a right to set off shall purchase for cash (and
the other US Lenders shall sell) interests in each of such other US Lender’s
Pro Rata Share of the US Obligations as would be necessary to cause all US
Lenders to share the amount so set off with each other US Lender in accordance
with their respective Pro Rata Shares. 
US Borrowers agree, to the fullest extent permitted by law, that any US Lender
may exercise its right to set off with respect to amounts in excess of its Pro
Rata Share of the US Obligations and upon doing so shall deliver such amount so
set off to US Agent for the benefit of all US Lenders in accordance with their
Pro Rata Shares.


 


(b)                                 In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, during
the continuance of any Event of Default, each Netherlands Lender is hereby
authorized by each Netherlands Borrower at any time or from time to time, with
reasonably prompt subsequent notice to Netherlands Borrower Representative (any
prior or contemporaneous notice being hereby expressly waived) to set off and
to appropriate and to apply any and all (A) balances held by such
Netherlands Lender at any of its offices for the account of any Netherlands
Borrower or any of its Subsidiaries (regardless of whether such balances are
then due to Netherlands Borrower or its Subsidiaries), and (B) other
property at any time held or owing by such Netherlands Lender to or for the
credit or for the account of any Netherlands Borrower or any of its
Subsidiaries, against and on account of any of the Netherlands Obligations;
except that no Netherlands Lender shall exercise any such right without the
prior written consent of Requisite Lenders. 
Any Netherlands Lender exercising a right to set off shall purchase for
cash (and the other Netherlands Lenders shall sell) interests in each of such
other Netherlands Lender’s Pro Rata Share of the Netherlands Obligations as
would be necessary to cause all Netherlands Lenders to share the amount so set
off with each other Netherlands Lender in accordance with their respective Pro
Rata Shares.  Netherlands Borrowers
agree, to the fullest extent permitted by law, that any Netherlands Lender may
exercise its right to set off with respect to amounts in excess of its Pro Rata
Share of the Netherlands Obligations and upon doing so shall deliver such
amount so set off to Netherlands Agent for the benefit of all Netherlands
Lenders in accordance with their Pro Rata Shares.


 


8.4.                              Disbursement
of Funds.  Subject to
fulfillment or waiver of the conditions set forth in Section 7.2,
(a) US Agent may, on behalf of US Lenders, disburse funds to US Borrowers for
US Revolving Credit Advances requested and (b) Netherlands Agent may, on behalf
of Netherlands Lenders, disburse funds to Netherlands Borrowers for Netherlands
Revolving Credit Advances requested.  In
either such case, each US Lender or Netherlands Lender shall reimburse
Applicable Agent on demand for all funds disbursed on its behalf by Applicable
Agent, or if 


 


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Applicable Agent so requests, each US Lender
or Netherlands Lender, as the case may be, will remit to Applicable Agent its
Pro Rata Share of any US Revolving Credit Advances or Netherlands Revolving
Credit Advance, as the case may be, before Applicable Agent disburses same to
US Borrowers or Netherlands Borrowers as the case may be.  If Applicable Agent elects to require that
each US Lender or Netherlands Lender, as the case may be, make funds available
to Applicable Agent prior to a disbursement by Applicable Agent to US Borrowers
or Netherlands Borrowers, as the case may be, Applicable Agent shall advise
each US Lender or Netherlands Lender, as the case may be, by telephone or fax
of the amount of such Lender’s Pro Rata Share of the Loan requested by
Applicable Borrower Representative no later than 12:00 noon (New York time) on
the Funding Date applicable thereto (in the case of US Revolving Credit
Advances) and 11:00 a.m. (London time) on the Funding Date applicable thereto
(in the case of Netherlands Revolving Credit Advances), and each such Lender
shall pay Applicable Agent such Lender’s Pro Rata Share of such requested Loan,
in same day funds, by wire transfer to Applicable Agent’s account on such
Funding Date.  If any Lender fails to pay
the amount of its Pro Rata Share within one (1) Business Day after Applicable
Agent’s demand, Applicable Agent shall promptly notify Applicable Borrower Representative,
and US Borrowers or Netherlands Borrowers, as the case may be, shall
immediately repay such amount to Applicable Agent.  Any repayment required pursuant to this Section 8.4
shall be without premium or penalty. 
Nothing in this Section 8.4 or elsewhere in this Agreement
or the other Loan Documents, including the provisions of Section 8.5,
shall be deemed to require Applicable Agent to advance funds on behalf of any
US Lender or Netherlands Lender, as the case may be, or to relieve any US
Lender or Netherlands Lender, as the case may be, from its obligation to
fulfill its commitments hereunder or to prejudice any rights that Applicable
Agent or US Borrowers or Netherlands Borrowers, as the case may be, may have
against any US Lender or Netherlands Lender, as the case may be, as a result of
any default by such Lender hereunder.


 


8.5.                              Disbursements of Advances; Payment.


 


(a)                                  Advances; Payments.


 


(i)                                     US Revolving Lenders shall refund or participate in
the US Swing Line Loan in accordance with clauses (iii) and (iv) of Section 1.1(c).  If the US Swing Line Lender declines to make
a US Swing Line Loan or if US Swing Line Availability is zero, US Agent shall
notify US Revolving Lenders, promptly after receipt of a Notice of US Revolving
Credit Advance and in any event prior to 1:00 p.m. (New York time) on the date
such Notice of a US Revolving Credit Advance is received, by fax, telephone or
other similar form of transmission.  Each
US Revolving Lender shall make the amount of such US Lender’s Pro Rata Share of
such US Revolving Credit Advance available to US Agent in same day funds by
wire transfer to US Agent’s account as set forth in Section 1.5 not
later than 3:00 p.m. (New York time) on the requested Funding Date in the case
of US Index Rate Loans and not later than 11:00 a.m. (New York time) on the requested Funding Date in the case
of a LIBOR Loan or EURO LIBOR Loan. 
After receipt of such wire transfers (or, in US Agent’s sole discretion,
before receipt of such wire transfers), subject to the terms hereof, US Agent
shall make the requested US Revolving Credit Advance to US Borrowers as
designated by US Borrower Representative in the Notice of US Revolving Credit
Advance.  All payments by each US
Revolving Lender shall be made without setoff, counterclaim or deduction of any
kind.


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(ii)                                  Netherlands Agent shall
notify Netherlands Lenders, promptly after receipt of a Notice of Netherlands
Revolving Credit Advance and in any event prior to 12:00 noon (London time) on
the date such Notice of a Netherlands Revolving Credit Advance is received, by
fax, telephone or other similar form of transmission.  Each Netherlands Lender shall make the amount
of such Netherlands Lender’s Pro Rata Share of such Netherlands Revolving
Credit Advance available to Netherlands Agent in same day funds by wire
transfer to Netherlands Agent’s account as set forth in Section 1.5 not later than 10:00
a.m. (London time) on the requested Funding Date in the case of a EURO LIBOR
Loan or Netherlands Base Rate Loan. 
After receipt of such wire transfers (or, in Netherlands Agent’s sole
discretion, before receipt of such wire transfers), subject to the terms
hereof, Netherlands Agent shall make the requested Netherlands Revolving Credit
Advance to Netherlands Borrowers by BACS or CHAPS (or such other method as the
Netherlands Agent may at any time specify) to the account of the applicable
Netherlands Borrower specified in the Notice of Netherlands Revolving Credit
Advance.  For payments by CHAPS, the
applicable Netherlands Borrower will pay the Netherlands Agent the CHAPS Fee.
All payments by each Netherlands Lender shall be made without setoff,
counterclaim or deduction of any kind.


 


(iii)                               At least once each calendar week or more frequently
at US Agent’s election
(each, a “US Settlement
Date”), US Agent
shall advise each US Lender
by telephone or fax of the amount of such US Lender’s
Pro Rata Share of principal, interest and Fees paid for the benefit of US Lenders with respect
to each applicable US Revolving
Loan.  Provided that
each US Lender has funded all
payments and Advances required to be made by it and purchased all
participations required to be purchased by it under this Agreement and the
other Loan Documents as of such US Settlement
Date, US Agent shall pay to
each US Lender such US Lender’s Pro Rata
Share of principal, interest and Fees paid by US
Borrowers since the previous US Settlement
Date for the benefit of such US Lender
on the US Revolving Loans held
by it. Such payments shall be made by wire transfer to such US Lender’s account (as
specified by such Lender in Annex E or the applicable Assignment
Agreement) not later than 1:00 p.m. (New York time) on the next Business Day following each US Settlement Date. To
the extent that any US Lender
(a “US Non-Funding
Lender”) has failed to fund all such payments and Advances or failed to
fund the purchase of all such participations, US Agent
shall be entitled to set off the funding shortfall against that US Non-Funding Lender’s
Pro Rata Share of all payments received from US Borrowers.


 


(iv)                              At least once each
calendar week or more frequently at Netherlands Agent’s election (each, a “Netherlands Settlement
Date”), Netherlands Agent shall advise each Netherlands Lender by telephone
or fax of the amount of such Netherlands Lender’s Pro Rata Share of principal,
interest and Fees paid for the benefit of Netherlands Lenders with respect to
each applicable Netherlands Revolving Loan. 
Provided that each Netherlands Lender has funded all payments and
Advances required to be made by it and purchased all participations required to
be purchased by it under this Agreement and the other Loan Documents as of such
Netherlands Settlement Date, Netherlands Agent shall pay to each Netherlands
Lender such Netherlands Lender’s Pro Rata Share of principal, interest and Fees
paid by Netherlands Borrowers since the previous Netherlands Settlement Date
for the benefit of such Netherlands Lender on the Netherlands Revolving Loans
held by it. Such payments shall be made by wire transfer to such Netherlands
Lender’s account (as specified by such Lender in Annex E or the applicable
Assignment Agreement) not later than 2:00 p.m. (London time) on the next
Business


 


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Day following each Netherlands Settlement
Date. To the extent that any Netherlands Lender (a “Netherlands Non-Funding
Lender”) has failed to fund all such payments and Advances or
failed to fund the purchase of all such participations, Netherlands Agent shall
be entitled to set off the funding shortfall against that Netherlands Non-Funding
Lender’s Pro Rata Share of all payments received from Netherlands Borrowers.


 


(b)                                 Availability of Lender’s Pro Rata Share.  Applicable Agent may
assume that each Applicable Lender will
make its Pro Rata Share of each US Revolving
Credit Advance or Netherlands
Revolving Credit Advance, as the case may be, available to
Applicable Agent on each
Funding Date or on such other date prescribed herein.  If such Pro Rata Share is not, in fact, paid
to Applicable Agent by such
Applicable Lender when due, Applicable Agent
will be entitled to recover such amount on demand from such Applicable Lender
without setoff, counterclaim or deduction of any kind.  If any Applicable Lender fails to pay the
amount of its Pro Rata Share forthwith upon Applicable
Agent’s demand, Applicable
Agent shall promptly notify Applicable Borrower
Representative and Applicable Lenders shall immediately repay such amount to Applicable Agent.  Nothing in this Section 8.5(b) or
elsewhere in this Agreement or the other Loan Documents shall be deemed to
require Applicable Agent to
advance funds on behalf of any Revolving Lender or Netherlands Lender, as the case may be, or to
relieve any Applicable Lender from its obligation to fulfill its US Commitments or Netherlands Commitments, as the case may be,
hereunder or to prejudice any rights that US Borrowers or Netherlands Borrowers, as the case may
be, may have against any Applicable Lender as a result of
any default by such Applicable Lender hereunder.  To the extent that Applicable Agent
advances funds to US Borrowers or Netherlands Borrowers, as the case may
be, on behalf of any Applicable Lender and is not
reimbursed therefor on the same Business Day as such Advance is made, Applicable Agent shall
be entitled to retain for its account all interest accrued on such Advance
until reimbursed by the Applicable
Lender.


 


(c)                                  Return of Payments.


 


(i)                                     If Applicable
Agent pays an amount to an Applicable Lender under this
Agreement in the belief or expectation that a related payment has been or will
be received by Applicable Agent
from US Borrowers or Netherlands Borrowers, as the case may
be, and such related payment is not received by Applicable Agent, then Applicable Agent will
be entitled to recover such amount from such Applicable Lender on demand
without setoff, counterclaim or deduction of any kind.


 


(ii)                                  If Applicable
Agent determines at any time that any amount received by Applicable Agent under
this Agreement must be returned to any US Borrower or Netherlands Borrower, as the case may be,
or paid to any other Person pursuant to any insolvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement or any other Loan
Document, Applicable Agent
will not be required to distribute any portion thereof to any Applicable
Lender.  In addition, each Applicable
Lender will repay to Applicable Agent
on demand any portion of such amount that
Applicable Agent has distributed to such Applicable Lender
together with interest at such rate, if any, as Applicable
Agent is required to pay to any US Borrower or Netherlands Borrower, as the case may be,
or such other Person, without setoff, counterclaim or deduction of any kind.


 


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(d)                                 Non-Funding Lenders.


 


(i)                                     The
failure of any US Non-Funding Lender to make any US Revolving Credit Advance or
any payment required by it hereunder, or to purchase any participation in any
US Swing Line Loan or in any US Letter of Credit to be made or purchased by it
on the date specified therefor shall not relieve any other US Lender (each such
other US Revolving Lender, an “Other US Lender”) of its obligations to
make such Advance or purchase such participation on such date, but neither any
Other US Lender nor US Agent shall be responsible for the failure of any US Non-Funding
Lender to make an Advance, purchase a participation or make any other payment
required hereunder.  Notwithstanding
anything set forth herein to the contrary, a US Non-Funding Lender shall not
have any voting or consent rights under or with respect to any Loan Document or
constitute a “Lender”, “US Lender” or a “Revolving Lender” (or be included in
the calculation of “Requisite US Lenders,” “Requisite Lenders,” “Supermajority
Lenders” or “Supermajority US Lenders” hereunder) for any voting or consent
rights under or with respect to any Loan Document.


 


(ii)                                  The failure of any
Netherlands Non-Funding Lender to make any Netherlands Revolving Credit Advance
or any payment required by it hereunder shall not relieve any other Netherlands
Lender (each such other Netherlands Lender, an “Other Netherlands Lender”) of its obligations to
make such Advance or purchase such participation on such date, but neither any
Other Netherlands Lender nor Netherlands Agent shall be responsible for the
failure of any Netherlands Non-Funding Lender to make an Advance, purchase a
participation or make any other payment required hereunder.  Notwithstanding anything set forth herein to
the contrary, a Netherlands Non-Funding Lender shall not have any voting or
consent rights under or with respect to any Loan Document or constitute a “Lender”,
“Netherlands Lender” or a “Revolving Lender” (or be included in the calculation
of “Requisite
Netherlands Lenders,” “Requisite Lenders,” “Supermajority Lenders” or “Supermajority
Netherlands Lenders” hereunder) for
any voting or consent rights under or with respect to any Loan Document.


 


(e)                                  Dissemination of Information.  Applicable Agent shall
use reasonable efforts to (or, as provided
in Section 8.2(j), in the case of failure to pay any principal,
interest and fees, shall) provide Applicable Lenders with
any notice of Default or Event of Default received by Applicable Agent from,
or delivered by Applicable Agent
to, any US Credit Party or Netherlands Credit Party, as the case may
be, with notice of any Event of Default of which Applicable Agent has
actually become aware and with notice of any action taken by Applicable Agent
following any Event of Default; provided, that Applicable Agent shall
not be liable to any Applicable Lender for any failure to give such notice so long as it has used
reasonable efforts to do so (except as to failure to pay principal, interest or
fees).


 


(f)                                    Actions in Concert.


 


(i)                                     Anything in this Agreement to the contrary
notwithstanding, each US Lender
hereby agrees with each other US Lender
that no US Lender shall take any
action to protect or enforce its rights arising out of this Agreement or the
Notes (including exercising any rights of setoff) without first obtaining the
prior written consent of Requisite Lenders, it being the intent of US Lenders that any such
action to protect or enforce rights under this Agreement and the US Notes shall be taken
in concert and at the direction or with the consent of US Agent


 


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or Requisite Lenders.  US Agent
is authorized to issue all notices to be issued by or on behalf of the Lenders
with respect to any Subordinated Debt.


 


(ii)                                  Anything in this
Agreement to the contrary notwithstanding, each Netherlands Lender hereby
agrees with each other Netherlands Lender that no Netherlands Lender shall take
any action to protect or enforce its rights arising out of this Agreement or
the Notes (including exercising any rights of setoff) without first obtaining
the prior written consent of Requisite Lenders, it being the intent of
Netherlands Lenders that any such action to protect or enforce rights under
this Agreement and the Netherlands Notes shall be taken in concert and at the
direction or with the consent of Netherlands Agent or Requisite Lenders.  Netherlands Agent is authorized to issue all
notices to be issued by or on behalf of the Netherlands Lenders with respect to
any Subordinated Debt.


 


8.6.                              Netherlands
Agent as Netherlands Security Trustee.


 


(a)                                  In this Agreement, any
rights and remedies exercisable by, any documents to be delivered to, or any
other indemnities or obligations in favor of Netherlands Agent shall be, as the
case may be, exercisable by, delivered to, or be indemnities or other
obligations in favor of, Netherlands Agent (or any other Person acting in such
capacity) in its capacity as Netherlands Security Trustee to the extent that
the rights, deliveries, indemnities or other obligations relate to the
Netherlands Security Documents or the security thereby created.  Any obligations of the Netherlands Agent (or
any other Person acting in such capacity) in this Agreement shall be
obligations of the Netherlands Agent in its capacity as Netherlands Security
Trustee to the extent that the obligations relate to the Netherlands Security
Documents or the security thereby created. 
Additionally, in its capacity as Netherlands Security Trustee, the
Netherlands Agent (or any other Person acting in such capacity) shall have (i)
all the rights, remedies and benefits in favor of Netherlands Agent contained
in the provisions of the whole of this Section 8; (ii) all the powers of
an absolute owner of the security constituted by the Netherlands Security
Documents and (iii) all the rights, remedies and powers granted to it and be
subject to all the obligations and duties owed by it under the Netherlands
Security Documents and/or any of the Loan Documents.


 


(b)                                 Each Netherlands Lender
and Netherlands Agent hereby appoint Netherlands Security Trustee to act as its
trustee under and in relation to the Netherlands Security Documents and to hold
the assets subject to the security thereby created as trustee for Netherlands
Agent and Netherlands Lenders on the trusts and other terms contained in the
Netherlands Security Documents and Netherlands Agent and each Netherlands
Lender hereby irrevocably authorize the Netherlands Security Trustee to
exercise such rights, remedies, powers and discretions as are specifically
delegated to Netherlands Security Trustee by the terms of the Netherlands
Security Documents together with all such rights, remedies, powers and
discretions as are reasonably incidental thereto.


 


(c)                                  Any reference in this
Agreement to Liens stated to be in favor of Netherlands Agent shall be
construed so as to include a reference to Liens granted in favor of Netherlands
Security Trustee.


 


(d)                                 The Netherlands Lenders
agree that at any time that the Netherlands Security Trustee shall be a Person
other than Netherlands Agent, such other Person shall have the


 


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rights, remedies, benefits and powers granted
to the Netherlands Agent in its capacity as Netherlands Security Trustee in
this Agreement.


 


(e)                                  Nothing in this Section 8.6 shall require the
Netherlands Security Trustee to act as a trustee at common law or to be holding
any property on trust, in any jurisdiction outside the United States or the
United Kingdom which may not operate under principles of trust or where such
trust would not be recognized or its effects would not be enforceable.


 


8.7.                              Collateral
Allocation Mechanism.


 


(a)                                  Implementation of CAM.  (i)  On the CAM Exchange Date, (A)  the
Lenders shall automatically and without further act (and without regard to the
provisions of Section 8.1) be deemed to have exchanged interests in the
Credit Facilities such that in lieu of the interest of each Lender in each
Credit Facility in which it shall participate as of such date (including such
Lender’s interest in the Specified Obligations of each Credit Party in respect
of each such Credit Facility), such Lender shall hold an interest in every one
of the Credit Facilities (including the Specified Obligations of each Credit
Party in respect of each such Credit Facility and each L/C Reserve Account
established pursuant to paragraph (b) below), whether or not such Lender shall
previously have participated therein, equal to such Lender’s CAM Percentage
thereof, provided that such CAM Exchange will not affect the aggregate
amount of the US Obligations of the US Borrowers to the US Lenders or
the aggregate amount of the Netherlands Obligations of the Netherlands Borrowers
to the Netherlands Lenders under the Loan Documents.  Each Lender and each Credit Party hereby
consents and agrees to the CAM Exchange, and each Lender agrees that the CAM
Exchange shall be binding upon its successors and assigns and any Person that
acquires a participation in its interest in any Credit Facility.  Each Credit Party agrees from time to time to
execute and deliver to the Applicable Agent all promissory notes and other
instruments and documents as the Applicable Agent shall reasonably request to
evidence and confirm the respective interests of the Lenders after giving
effect to the CAM Exchange, and each Lender agrees to surrender any promissory
notes originally received by it in connection with its Loans hereunder to the
Applicable Agent against delivery of new promissory notes evidencing its
interests in the Credit Facilities; provided, however, that the
failure of any Credit Party to execute or deliver or of any Lender to accept
any such promissory note, instrument or document shall not affect the validity
or effectiveness of the CAM Exchange.  As
a result of the CAM Exchange, upon and after the CAM Exchange Date, each
payment received by either Agent pursuant to any Loan Document in respect of
the Specified Obligations, and each distribution made by either Agent pursuant
to any Loan Document in respect of the Specified Obligations, shall be
distributed to the Lenders pro rata in accordance with their respective CAM Percentages.  Any direct payment received by a Lender upon
or after the CAM Exchange Date, including by way of setoff, in respect of a
Specified Obligation shall be paid over to the Applicable Agent for
distribution to the Lenders in accordance herewith.


 


(b)                                 Letters of Credit.  (i)  In the event that on the CAM Exchange Date
any Letter of Credit shall be outstanding and undrawn in whole or in part, or
any amount drawn under a Letter of Credit shall be unpaid, each Lender shall,
before giving effect to the CAM Exchange, promptly pay over to the Applicable
Agent, in immediately available funds and in the currency that such Letters of
Credit are denominated, an amount equal to such Lender’s Pro Rata Share (as
defined in clause (A) (a) of the definition of Pro Rata Share), of such Letter
of Credit’s


 


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undrawn face amount or (to the extent it has
not already done so) such Letter of Credit’s unpaid drawing, as the case may
be, together with interest thereon from the CAM Exchange Date to the date on
which such amount shall be paid to the Applicable Agent at the rate that would
be applicable at the time to a U.S. Index Rate Loans in a principal amount
equal to such amount. The Applicable Agent shall establish a separate account
or accounts for each Lender (each, an “L/C Reserve Account”) for the
amounts received with respect to each such Letter of Credit pursuant to the
preceding sentence. The Applicable Agent shall deposit in each Lender’s L/C
Reserve Account such Lender’s CAM Percentage of the amounts received from the
Lenders as provided above.  The
Applicable Agent shall have sole dominion and control over each L/C Reserve
Account, and the amounts deposited in each L/C Reserve Account shall be held in
such L/C Reserve Account until withdrawn as provided in paragraphs (ii), (iii),
(iv) or (v) below.  The Applicable Agent
shall maintain records enabling the Applicable Agent to determine the amounts
paid over to it and deposited in the L/C Reserve Accounts in respect of each
Letter of Credit and the amounts on deposit in respect of each Letter of Credit
attributable to each Lender’s CAM Percentage. 
The amounts held in each Lender’s L/C Reserve Account shall be held as a
reserve against the Letter of Credit Obligations, shall be the property of such
Lender, shall not constitute Loans to or give rise to any claim of or against
any Credit Party and shall not give rise to any obligation on the part of any
Borrower to pay interest to such Lender or any other obligation of any Credit
Party, it being agreed that the reimbursement obligations in respect of Letters
of Credit shall arise only at such times as drawings are made thereunder, as
provided in Sections 1.1(d) and 1.2(c).


 


(ii)                                  In
the event that after the CAM Exchange Date any drawing shall be made in respect
of a Letter of Credit, the Agents shall, at the request of the L/C Issuer
withdraw from the L/C Reserve Accounts of Lenders any amounts, up to the amount
of each Lender’s CAM Percentage of such drawing, deposited in respect of such
Letter of Credit and remaining on deposit and deliver such amounts to the L/C
Issuer in satisfaction of the reimbursement obligations of the Lenders under Sections
1.1(d) and 1.2(c) (but not of the Borrowers under Sections
1.1(d) and 1.2(c), respectively). 
In the event any Lender shall default on its obligation to pay over any
amount to the Applicable Agent in respect of any Letter of Credit as provided
in this Section 8.7, the L/C Issuer shall, in the event of a drawing
thereunder, have a claim against such Lender to the same extent as if such
Lender had defaulted on its obligations under Sections 1.1(d) and 1.2(c)  but shall have no claim against any other
Lender in respect of such defaulted amount, notwithstanding the exchange of
interests in the reimbursement obligations pursuant to this Section 8.7.  Each other Lender shall have a claim against
such defaulting Lender for any damages sustained by it as a result of such
default, including, in the event such Letter of Credit shall expire undrawn,
its CAM Percentage of the defaulted amount.


 


(iii)                               In
the event that after the CAM Exchange Date any Letter of Credit shall expire
undrawn, the Agents shall withdraw from the L/C Reserve Accounts of Lenders the
amounts remaining on deposit therein in respect of such Letter of Credit and
distribute such amount to Lenders.


 


(iv)                              With
the prior written approval of the Agents and the L/C Issuer, any Lender may
withdraw the amount held in its L/C Reserve Account in respect of the undrawn
amount of any Letter of Credit.  Any
Lender making such a withdrawal shall be unconditionally


 


104





















 


obligated, in the event there shall subsequently be a drawing under
such Letter of Credit, to pay over to the Applicable Agent, for the account of
the L/C Issuer on demand, its CAM Percentage of such drawing.


 


(v)                                 Pending
the withdrawal by any Lender of any amounts from its L/C Reserve Account as
contemplated by the above paragraphs, the Applicable Agent will, at the
direction of such Lender and subject to such rules as the Applicable Agent may
prescribe for the avoidance of inconvenience, invest such amounts in Cash
Equivalents.  Each Lender that has not
withdrawn the amounts in its L/C Reserve Account as provided in paragraph (iv)
above shall have the right, at intervals reasonably specified by the Applicable
Agent, to withdraw the earnings on investments so made by the Applicable Agent
with amounts in its L/C Reserve Account and to retain such earnings for its own
account.


 


(c)                                  Net Payments Upon Implementation of CAM Exchange. 
Notwithstanding any other provision of this Agreement (except the
sentence directly following this sentence), if, as a result of Section 8.7,
any US Borrower or Netherlands Borrower is required to withhold Taxes (other
than Excluded Taxes described in clause (i) of Section 1.15(a)) from
amounts payable to the Applicable Agent or any Lender hereunder, then the aggregate
amounts so payable to such Applicable Agent or such Lender shall be increased
so that such Applicable Agent or Lender receives an amount, on an after-Tax
basis, equal to the sum it would have received had no such withholdings been
made; provided, however, that the US Borrowers and the
Netherlands Borrowers shall not be required to increase any such amounts
payable to such Lender with respect to such Taxes as a direct result of the
implementation of the CAM Exchange (but, rather, shall be required to
increase any such amounts payable to such Lender to the extent required by
Section 1.15) if such Lender was prior to or on the CAM Exchange Date already a Lender with respect to such US
Borrower or Netherlands Borrower, as applicable.  If a Foreign Lender is eligible for an
exemption from, or reduced rate of, withholding tax on payments by the US Borrower
or Netherlands Borrower, as applicable, under this Agreement, such Borrower
shall not be required to increase any such amounts payable to such Lender if
such Lender fails to comply with the requirements of Section 1.15(c).


 


8.8.                              Parallel
Debt.


 


(a)                                  Netherlands Parallel Debt Obligations.


 


(i)                                     Each Netherlands Credit Party must pay to the
Netherlands Security Trustee, as an independent and separate creditor, amounts
equal to the amounts which it owes each creditor of a Netherlands Obligation,
under or in connection with or pursuant to the Netherlands Obligations (the “Principal
Obligations” and each a “Principal Obligation”), on their respective
due dates (the “Parallel Debt Obligations” and each a “Parallel Debt
Obligation”).


 


(ii)                                  The Netherlands Security Trustee may enforce
performance of any Parallel Debt Obligations in its own name as an independent
and separate right.


 


(iii)                               Each Netherlands Lender or Netherlands Agent must,
at the request of the Netherlands Security Trustee, perform any act required in
connection with the


 


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enforcement of any of the Parallel Debt
Obligations of any Netherlands Credit Party. 
This includes joining in any proceedings as co-claimant with the
Netherlands Security Trustee.


 


(iv)                              Unless the Netherlands Security Trustee fails to
enforce a Parallel Debt Obligation within a reasonable time after its due date,
a Netherlands Lender or Netherlands Agent may not take any action to enforce
its corresponding Principal Obligation except if requested to do so by the
Netherlands Security Trustee.


 


(v)                                 Each Netherlands Credit Party irrevocably and
unconditionally waives any right it may have to require a Netherlands Lender or
Netherlands Agent to join in any proceedings as co-claimant with the
Netherlands Security Trustee.


 


(vi)                              (A)                              Discharge by a Netherlands Credit Party of a
Principal Obligation owed to a Netherlands Lender or Netherlands Agent will
discharge its corresponding Parallel Debt Obligation to the Netherlands
Security Trustee in the same amount.


 


(B)                                Discharge by a Netherlands Credit Party of a
Parallel Debt Obligation owed to the Netherlands Security Trustee will
discharge its corresponding Principal Obligation to the relevant Netherlands
Lender or Netherlands Agent in the same amount.


 


(vii)                           The aggregate amount of the claims of the
Netherlands Security Trustee under the Parallel Debt Obligations must never
exceed the aggregate amount of all the Principal Obligations owed to the
Netherlands Lenders and Netherlands Agent.


 


(b)                                 US Parallel Debt Obligations.


 


(i)                                     RPP USA must pay the Collateral Agent, as an
independent and separate creditor, amounts equal to the amounts which it owes
each creditor of any Obligations (as defined in the US Security Agreement)
under or in connection with or pursuant to the Credit Agreement, any other Loan
Documents or the Hedge Agreements (the “RPP Principal Obligations” and
each an “RPP Principal Obligation”), on their respective due dates
(the “RPP Parallel Debt Obligations” and each an “RPP Parallel
Debt Obligation”).


 


(ii)                                  The Collateral Agent may enforce performance of any
RPP Parallel Debt Obligation in its own name as an independent and separate
right.


 


(iii)                               Each creditor of any RPP Principal Obligation that
is also a party hereto must, at the request of the Collateral Agent, perform
any act required in connection with the enforcement of any RPP Parallel Debt
Obligations.  This includes joining in
any proceedings as co-claimant with the Collateral Agent.


 


(iv)                              Unless the Collateral Agent fails to enforce an RPP
Parallel Debt Obligation within a reasonable time after its due date, a
creditor of any RPP Principal Obligation party hereto may not take any action
to enforce its corresponding RPP Principal Obligation except if requested to do
so by the Collateral Agent.


 


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(v)                                 RPP USA irrevocably and unconditionally waives any
right it may have to require a creditor of any RPP Principal Obligation to join
in any proceedings as co-claimant with the Collateral Agent.


 


(vi)                              (A)                              Discharge by RPP USA of an RPP Principal Obligation
will discharge its corresponding RPP Parallel Debt Obligation to the Collateral
Agent in the same amount.


 


(B)                                Discharge by RPP USA of an RPP Parallel Debt
Obligations owed to the Collateral Agent will discharge its corresponding RPP
Principal Obligation in the same amount.


 


(vii)                           The aggregate amount of the claims of the
Collateral Agent under the RPP Parallel Debt Obligations must never exceed the
aggregate amount of all the RPP Principal Obligations.


 


This Section 8.8(b)
is included for the sole purpose of complying with certain requirements of
Netherlands law in regard to the Netherlands Pledge Agreement.


 


SECTION 9.

MISCELLANEOUS


 


9.1.                              Indemnities.


 


(a)                                  US Borrowers agree, jointly and severally, to
indemnify, pay, and hold US Agent,
Collateral Agent, each US Lender, each US L/C Issuer and their
respective officers, directors, employees, agents, and attorneys (the “US Indemnitees”)
harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs and expenses
(including all reasonable fees and expenses of counsel to such US Indemnitees) of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the US Indemnitees
as a result of such US Indemnitees
being a party to this Agreement or the transactions consummated pursuant to
this Agreement or otherwise relating to any of the Related Transactions; provided,
that US Borrowers shall have
no obligation to a US
Indemnitee hereunder with respect to liabilities to the extent resulting from
the gross negligence or willful misconduct of that US Indemnitee as determined
by a court of competent
jurisdiction.  If and to the extent that
the foregoing undertaking may be unenforceable for any reason, US Borrowers agree to make the maximum
contribution to the payment and satisfaction thereof which is permissible under
applicable law.


 


(b)                                 Netherlands Borrowers
agree, jointly and severally, to indemnify, pay, and hold Netherlands Agent,
Netherlands Security Trustee, each Netherlands Lender, each Netherlands L/C
Issuer and their respective officers, directors, employees, agents, and
attorneys (the “Netherlands Indemnitees”) harmless from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs and expenses (including all reasonable
fees and expenses of counsel to such Netherlands Indemnitees) of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Netherlands Indemnitees as a result of such Netherlands Indemnitees being a
party to this Agreement or the transactions consummated pursuant to this
Agreement or otherwise relating to any of the Related


 


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Transactions; provided, that Netherlands
Borrowers shall have no obligation to a Netherlands Indemnitee hereunder with
respect to liabilities to the extent resulting from the gross negligence or
willful misconduct of that Netherlands Indemnitee as determined by a court of
competent jurisdiction.  If and to the
extent that the foregoing undertaking may be unenforceable for any reason,
Netherlands
Borrowers agree to make the maximum contribution to the payment and satisfaction
thereof which is permissible under applicable law.


 


9.2.                              Amendments and Waivers.


 


(a)                                  Except for actions expressly permitted to be taken
by Agent, no amendment, modification, termination or waiver of any provision of
this Agreement or any other Loan Document, or any consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by Borrowers, and by Requisite Lenders,
Requisite US Lenders, Requisite Netherlands Lenders, Supermajority US Lenders,
Supermajority Netherlands Lenders, Supermajority Lenders or all affected
Lenders, as applicable.  Except as set
forth in clause (b) below, all such amendments, modifications, terminations or
waivers requiring the consent of any Lenders shall require the written consent
of Requisite Lenders.


 


(b)                                 Certain Amendments.


 


(i)                                     No amendment, modification, termination or waiver
of or consent with respect to any provision of this Agreement that increases
the percentage advance rates set forth in the definition of the US Borrowing Base, or
that makes less restrictive the nondiscretionary criteria for exclusion from
Eligible US Accounts, Eligible US Inventory and
Eligible US PPE set forth in Sections
1.8, 1.9 and 1.10, shall be effective unless the same shall be in writing
and signed by US Agent, Supermajority US Lenders and US Borrowers.


 


(ii)                                  No amendment,
modification, termination or waiver of or consent with respect to any provision
of this Agreement that increases the percentage advance rates set forth in the
definition of the Netherlands Borrowing Base, or that makes less restrictive
the nondiscretionary criteria for exclusion from Eligible Netherlands Accounts
set forth in Section 1.11, shall be effective
unless the same shall be in writing and signed by Netherlands Agent,
Supermajority Netherlands Lenders and Netherlands Borrowers.


 


(iii)                               No amendment, modification, termination or waiver
shall, unless in writing and signed by US Agent
and each US Lender directly
affected thereby:  (a) increase the
amount of the Commitment of such directly affected US Lender; (b) reduce
the principal of, rate of interest on or Fees payable with respect to any US Revolving Loan or US Letter of Credit
Obligations of any affected US Lender;
(c) extend the scheduled date for the reduction of any component of the US
Borrowing Base or the final maturity date of the principal amount of any US Revolving Loan of any
affected US Lender;
(d) waive, forgive, defer, extend or postpone any payment of interest or
Fees as to any affected US Lender
(which action shall be deemed only to affect those US Lenders to whom such
payments are made); (e) release any Guaranty (except in connection with an
Asset Disposition permitted hereunder, or of the Guarantor of such Guaranty)
or, except in the case of any transaction otherwise permitted in Section 3.7
(as amended from time to time), release or subordinate US Collateral with a
book value exceeding 5% of the book


 


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value of all US Collateral in the
aggregate (which action shall be deemed to directly affect all US Lenders);
(f) change the percentage of the US Commitments
or of the aggregate unpaid principal amount of the US Revolving Loans that
shall be required for US
Lenders or any of them to take any action hereunder; (g) amend or waive
any provision of this Section 9.2 or clause (z) of the definition of the term “US
Borrowing Availability” or the definition of the terms “Requisite
Lenders”, “Requisite US Lenders” or “Supermajority
US Lenders”;
(h) alter the priorities set forth in Section 9.4 of the US Security
Agreement or (i) make any change to Section 8.7 that adversely affects
any US Lender.  Furthermore, no
amendment, modification, termination or waiver affecting the rights or duties
of US Agent
or US
L/C Issuers under this Agreement or any other Loan Document shall be effective
unless in writing and signed by US Agent or US
L/C Issuers, as the case may be, in addition to US Lenders required
hereinabove to take such action.  Each
amendment, modification, termination or waiver shall be effective only in the
specific instance and for the specific purpose for which it was given.  No amendment, modification, termination or
waiver shall be required for US Agent to take additional US Collateral pursuant
to any Loan Document.


 


(iv)                              No amendment,
modification, termination or waiver shall, unless in writing and signed by
Netherlands Agent and each Netherlands Lender directly affected thereby:  (a) increase the amount of the
Commitment of such directly affected Netherlands Lender; (b) reduce the
principal of, rate of interest on or Fees payable with respect to any
Netherlands Revolving Loan or Netherlands Letter of Credit Obligations of any
affected Netherlands Lender; (c) extend the final maturity date of the
principal amount of any Netherlands Revolving Loan of any affected Netherlands
Lender; (d) waive, forgive, defer, extend or postpone any payment of
interest or Fees as to any affected Netherlands Lender (which action shall be
deemed only to affect those Netherlands Lenders to whom such payments are
made); (e) release any Guaranty (except in connection with an Asset Disposition
permitted hereunder, or of the Guarantor of such Guaranty) or, except in the case
of any transaction otherwise
permitted in Section 3.7 (as amended from time to time), release or
subordinate Netherlands Collateral with a book value exceeding 5% of the book
value of all assets in the aggregate (which action shall be deemed to directly
affect all Netherlands Lenders); (f) change the percentage of the
Netherlands Commitments or of the aggregate unpaid principal amount of the
Netherlands Revolving Loans that shall be required for Netherlands Lenders or
any of them to take any action hereunder; (g) amend or waive this Section 9.2 or the definition of the term “Requisite
Lenders”, “Requisite Netherlands Lenders” 
or “Netherlands Supermajority Lenders”; or (h) make any change to Section 8.7 that adversely affects any Netherlands
Lender.  Furthermore, no amendment,
modification, termination or waiver affecting the rights or duties of
Netherlands Agent or Netherlands L/C Issuers under this Agreement or any other
Loan Document shall be effective unless in writing and signed by Netherlands
Agent or Netherlands L/C Issuers, as the case may be, in addition to
Netherlands Lenders required hereinabove to take such action.  Each amendment, modification, termination or
waiver shall be effective only in the specific instance and for the specific
purpose for which it was given.


 


(v)                                 No amendment, modification,
termination or waiver shall be required for any Agent to take additional
Collateral pursuant to any Loan Document. 
No amendment, modification, termination or waiver of any provision of
any Note shall be effective without the written concurrence of the holder of
that Note.  No notice to or demand on any
Credit Party in any case shall entitle such Credit Party or any other Credit
Party to any other or


 


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further notice or demand in similar or other
circumstances.  Any amendment,
modification, termination, waiver or consent effected in accordance with this Section 9.2 shall be binding upon each holder of the
Notes at the time outstanding and each future holder of the Notes.


 


9.3.                              Notices.  Any notice or other communication required
shall be in writing addressed to the respective party as set forth below and
may be personally served, telecopied, sent by overnight courier service or U.S.
mail or Dutch post and shall
be deemed to have been given: 
(a) if delivered in person, when delivered; (b) if delivered
by fax to a fax number in the United States,
on the date of transmission if transmitted on a Business Day before
4:00 p.m. (New York Time)
and if delivered by fax to a fax number in the United Kingdom or Europe, on the
date of transmission if transmitted on a Business Day before 11:30 a.m. (London
time); (c) if delivered by overnight courier, one (1)
Business Day after delivery to the courier properly addressed; (d) if
delivered by US mail to a US
address, four (4) Business Days after deposit with postage prepaid and properly
addressed; (e) if delivered by Dutch post to a Dutch address, four (4)
Business Days after deposit with postage prepaid and properly addressed; or
(f) if delivered by US Mail to a Dutch address or by Dutch post to a US
address, ten (10) Business Days after deposit with postage
prepaid and properly addressed.


 


Notices shall be addressed as follows:


 


	
  If to US Borrower
  Representative:

  	
   

  	
  Resolution Performance Products LLC

  
	
   

  	
   

  	
  1600 Smith Street, 24th Floor

  
	
   

  	
   

  	
  Houston, Texas 77002

  
	
   

  	
   

  	
  ATTN: Chief Financial Officer and

  
	
   

  	
   

  	
  Global Treasurer

  
	
   

  	
   

  	
  Fax: 817-375-2305

  
	
   

  	
   

  	
   

  
	
  With copies
  to:

  	
   

  	
  Apollo Management

  
	
   

  	
   

  	
  9 West 57th Street

  
	
   

  	
   

  	
  43rd Floor

  
	
   

  	
   

  	
  New York, NY 10019

  
	
   

  	
   

  	
  Attn: Scott Kleinman

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  O’Melveny Myers LLP

  
	
   

  	
   

  	
  Time Square Tower

  
	
   

  	
   

  	
  7 Times Square

  
	
   

  	
   

  	
  New York, New York 10036

  
	
   

  	
   

  	
  ATTN: Stewart Kagan

  
	
   

  	
   

  	
  Fax: (212) 326-2061

  
	
   

  	
   

  	
   

  
	
  If to US
  Agent, Collateral Agent

  	
   

  	
   

  
	
  or GE Capital:

  	
   

  	
  GENERAL ELECTRIC CAPITAL

  
	
   

  	
   

  	
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  335 Madison Avenue, 12th Floor

  
	
   

  	
   

  	
  New York, NY 10017

  
	
   

  	
   

  	
  ATTN: RPP Account Officer

  



 


110





















 


	
   

  	
   

  	
  Fax: (212) 370-8767

  
	
   

  	
   

  	
   

  
	
  With a copy
  to:

  	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION

  
	
   

  	
   

  	
  201 Merritt 7

  
	
   

  	
   

  	
  Norwalk, Connecticut 06851

  
	
   

  	
   

  	
  ATTN: Corporate Counsel

  
	
   

  	
   

  	
  Global Sponsor Finance

  
	
   

  	
   

  	
  Fax: (203) 956-4216

  
	
   

  	
   

  	
   

  
	
  If to Netherlands Borrower

  	
   

  	
   

  
	
  Representative:

  	
   

  	
  Resolution Europe B.V.

  
	
   

  	
   

  	
  Koddeweg 67

  
	
   

  	
   

  	
  3194 DH Hoogvliet (Rotterdam)

  
	
   

  	
   

  	
  The Netherlands

  
	
   

  	
   

  	
  Fax: + 31-10-431-4649

  
	
   

  	
   

  	
   

  
	
  If to Netherlands Agent,

  	
   

  	
   

  
	
  Netherlands Security Trustee

  	
   

  	
  GE LEVERAGED LOANS LIMITED

  
	
  or GE Netherlands:

  	
   

  	
  GE Commercial Finance

  
	
   

  	
   

  	
  Corporate Financial Services

  
	
   

  	
   

  	
  30 Berkeley Square

  
	
   

  	
   

  	
  London

  
	
   

  	
   

  	
  WIJ 6EW

  
	
   

  	
   

  	
  United Kingdom

  
	
   

  	
   

  	
  ATTN: Hugh Fitzpatrick

  
	
   

  	
   

  	
  Fax: + 44-20-7302-6809

  
	
   

  	
   

  	
   

  
	
  If to a Lender or L/C Issuer:

  	
   

  	
  To the address set forth on the signature

  page hereto or in the applicable Assignment

  Agreement

  



 


9.4.                              Failure or Indulgence Not
Waiver; Remedies Cumulative.  No
failure or delay on the part of US Agent,
Collateral Agent, Netherlands
Agent, Netherlands Security Trustee or any Lender to
exercise, nor any partial exercise of, any power, right or privilege hereunder
or under any other Loan Documents shall impair such power, right, or privilege
or be construed to be a waiver of any Default or Event of Default.  All rights and remedies existing hereunder or
under any other Loan Document are cumulative to and not exclusive of any rights
or remedies otherwise available.


 


9.5.                              Marshaling; Payments Set Aside.  Neither US Agent,
Collateral Agent, Netherlands
Agent, Netherlands Security Trustee, nor any Lender, as
the case may be, shall be under any obligation to marshal any assets in payment
of any or all of the Obligations.  To the
extent that US Borrowers
make payment(s) or US Agent or Collateral
Agent enforces its Liens or US Agent, Collateral Agent or
any US Lender exercises its
right of set-off, and such payment(s)


 


111





















 


or the proceeds of such
enforcement or set-off is subsequently invalidated, declared to be fraudulent
or preferential, set aside, or required to be repaid by anyone, then to the
extent of such recovery, the US Obligations
or part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor, shall be revived and continued in full force and effect as
if such payment had not been made or such enforcement or set-off had not
occurred.  To the extent that Netherlands
Borrowers make payment(s) or Netherlands Agent or Netherlands Security Trustee
enforces its Liens or Netherlands Agent or Netherlands Security Trustee or any
Netherlands Lender exercises its right of set-off, and such payment(s) or the
proceeds of such enforcement or set-off is subsequently invalidated, declared
to be fraudulent or preferential, set aside, or required to be repaid by
anyone, then to the extent of such recovery, the Netherlands
Obligations or part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or set-off had
not occurred.


 


9.6.                              Severability.  The invalidity, illegality, or
unenforceability in any jurisdiction of any provision under the Loan Documents
shall not affect or impair the remaining provisions in the Loan Documents.


 


9.7.                              Lenders’ Obligations
Several; Independent Nature of Lenders’ Rights.  The obligation of each Lender hereunder is several
and not joint and no Lender shall be responsible for the obligation or commitment
of any other Lender hereunder.  In the
event that any US Lender
at any time should fail to make a US
Revolving Loan as herein provided, the US Lenders, or any of
them, at their sole option, may make the US
Revolving Loan that was to have been made by the US Lender so failing to
make such US Revolving Loan.  In the event that any Netherlands Lender at
any time should fail to make a Netherlands Revolving Loan as herein provided,
the Netherlands Lenders, or any of them, at their sole option, may make the Netherlands
Revolving Loan that was to have been made by the Netherlands Lender so failing
to make such Netherlands Revolving Loan.  Nothing contained in any Loan Document and no
action taken by US Agent,
Collateral Agent, Netherlands
Agent, Netherlands Security Trustee
or any Lender pursuant hereto or thereto shall be deemed to constitute Lenders
to be a partnership, an association, a joint venture or any other kind of
entity.  The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt.


 


9.8.                              Headings. 
Section and subsection headings are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any
other purposes or be given substantive effect.


 


9.9.                              Applicable Law.  THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS WHICH DOES NOT EXPRESSLY SET FORTH APPLICABLE LAW SHALL BE GOVERNED
BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


9.10.                        Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns except that US Borrowers
may not assign their rights or obligations hereunder without the written
consent of all US Lenders


 


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and Netherlands Borrowers may not assign
their rights or obligations hereunder without the written consent of all
Netherlands Lenders.


 


9.11.                        No Fiduciary Relationship;
Limited Liability.  No provision
in the Loan Documents and no course of dealing between the parties shall be
deemed to create any fiduciary duty owing to any Credit Party by Agents, Collateral Agent, Netherlands Security Trustee
or any Lender.  Each Credit Party agrees
that neither US Agent,
Collateral Agent, Netherlands
Agent, Netherlands Security Trustee nor any Lender shall
have liability to any Credit Party (whether sounding in tort, contract or
otherwise) for losses suffered by any Credit Party in connection with, arising
out of, or in any way related to the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless and to the extent that it is
determined that such losses resulted from the gross negligence or willful
misconduct of the party from which recovery is sought as determined by a final
non-appealable order by a court of competent jurisdiction.  Neither US Agent,
Collateral Agent, Netherlands
Agent, Netherlands Security Trustee nor any Lender shall
have any liability with respect to, and each Borrower hereby waives, releases
and agrees not to sue for, any special, indirect or consequential damages
suffered by any Borrower in connection with, arising out of, or in any way
related to the Loan Documents or the transactions contemplated thereby.


 


9.12.                        Construction.  US
Agent, Collateral Agent, Netherlands Agent, Netherlands Security Trustee,
each Lender, Borrowers and each other Credit Party acknowledge that each of
them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review the Loan Documents with its legal counsel and
that the Loan Documents shall be construed as if jointly drafted by US Agent, Netherlands Agent, Collateral
Agent, Netherlands Security Trustee, each Lender,
Borrowers and each other Credit Party.


 


9.13.                        Confidentiality.  Agents,
Collateral Agent,
Netherlands Security Trustee and each Lender agree to
exercise their best efforts to keep confidential any non-public information
delivered pursuant to the Loan Documents and identified as such by Borrowers
and not to disclose such information to Persons other than to potential
assignees or participants or to Persons employed by or engaged by an Agent, Collateral
Agent, Netherlands Security Trustee a Lender or a Lender’s assignees or
participants including attorneys, auditors, professional consultants, rating
agencies, insurance industry associations and portfolio management services,
all of whom shall be notified of the confidential nature of such
information.  The confidentiality
provisions contained in this Section 9.13 shall not apply to
disclosures (i) required to be made by any
Agent, Collateral Agent, Netherlands Security Trustee or
any Lender to any regulatory or governmental agency or pursuant to legal
process or (ii) consisting of general portfolio information that does not
identify Borrowers.  The obligations of Agents, Collateral Agent, Netherlands Security Trustee
and Lenders under this Section 9.13 shall supersede and replace the
obligations of Agents,
Collateral Agent,
Netherlands Security Trustee and Lenders under any
confidentiality agreement in respect of this financing executed and delivered
by Agents, Collateral Agent, Netherlands Security Trustee
or any Lender prior to the date hereof.


 


9.14.                        CONSENT TO JURISDICTION.  BORROWERS AND CREDIT
PARTIES HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN NEW YORK COUNTY, STATE OF NEW YORK AND ANY COURT LOCATED IN THE
NETHERLANDS (IN EACH CASE AS SELECTED BY US AGENT,


 


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NETHERLANDS AGENT, NETHERLANDS
SECURITY TRUSTEE OR COLLATERAL AGENT) AND IRREVOCABLY AGREE THAT, SUBJECT TO US
AGENT’S, NETHERLANDS AGENT’S, NETHERLANDS SECURITY TRUSTEE’S AND/OR COLLATERAL
AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL
BE LITIGATED IN SUCH COURTS (AND SUCH ACTIONS OR PROCEEDINGS MAY BE COMMENCED
AND CONCURRENTLY MAINTAINED IN NEW YORK AND THE NETHERLANDS AS TO SOME OR ALL
OF THE CREDIT PARTIES).  BORROWERS AND CREDIT PARTIES
EXPRESSLY SUBMIT AND CONSENT TO THE JURISDICTION OF THE AFORESAID COURTS AND
WAIVE ANY DEFENSE OF FORUM NON CONVENIENS. 
BORROWERS AND CREDIT
PARTIES HEREBY WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREE THAT ALL
SUCH SERVICE OF PROCESS MAY BE
MADE UPON BORROWERS AND CREDIT PARTIES BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED TO BORROWER
REPRESENTATIVE, AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS
AFTER THE SAME HAS BEEN POSTED; PROVIDED THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE THE US AGENT, NETHERLANDS AGENT, NETHERLANDS SECURITY
TRUSTEE OR COLLATERAL
AGENT FROM
BRINGING SUIT OR OTHER LEGAL ACTIONS IN ANY JURISDICTION OR TO REALIZE ON
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE ANY JUDGMENT
OR OTHER COURT ORDER IN FAVOR OF THE US AGENT, NETHERLANDS AGENT, NETHERLANDS SECURITY
TRUSTEE, COLLATERAL AGENT OR US AGENT.


 


9.15.                        WAIVER OF JURY TRIAL.  BORROWERS, CREDIT PARTIES, AGENTS, COLLATERAL AGENT, NETHERLANDS
SECURITY TRUSTEE AND EACH LENDER HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.  BORROWERS, CREDIT PARTIES, AGENTS, COLLATERAL AGENT, NETHERLANDS
SECURITY TRUSTEE AND EACH LENDER ACKNOWLEDGE THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS.  BORROWERS,
CREDIT PARTIES, AGENTS,
COLLATERAL AGENT, NETHERLANDS SECURITY TRUSTEE AND EACH
LENDER WARRANT AND REPRESENT THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING
THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS.


 


9.16.                        Survival of Warranties and
Certain Agreements.  All
agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement, the making of the Loans, issuances of
Letters of Credit and the execution and delivery of the Notes.  Notwithstanding anything in this Agreement or
implied by law to the contrary, the agreements of Borrowers set forth in Sections 1.4(h),
1.14, 1.15, 2.5 and 9.1 shall survive the repayment of the Obligations and
the termination of this Agreement.


 


114





















 


9.17.                        Entire Agreement.  This Agreement, the Notes and the other Loan
Documents embody the entire agreement among the parties hereto and supersede
all prior commitments, agreements, representations, and understandings, whether
oral or written, relating to the subject matter hereof, and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent
oral agreements or discussions of the parties hereto.  All Exhibits, Schedules and Annexes referred
to herein are incorporated in this Agreement by reference and constitute a part
of this Agreement.


 


9.18.                        Counterparts; Effectiveness.  This Agreement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one in the same instrument.  This Agreement shall become effective upon
the execution and delivery of a counterpart hereof by each of the parties
hereto.  Photocopies of originally
executed originals of this Agreement shall be deemed to be originals of this
Agreement, and faxed copies of signatures to this Agreement shall be deemed to
be original signatures to this Agreement.


 


9.19.                        Replacement of Lenders.


 


(a)                                  Within fifteen (15) days after receipt by any Borrower
Representative of written notice and demand from any Lender for payment
pursuant to Section 1.14 or 1.15 or, as provided in this Section
9.19(a), in the case of certain refusals by any Lender to consent to
certain proposed amendments, modifications, terminations or waivers with
respect to this Agreement that have been approved by Requisite Lenders, Requisite US Lenders, Requisite Netherlands
Lenders, Supermajority
Lenders, Supermajority US Lenders, Supermajority Netherlands
Lenders or all affected Lenders, as applicable (any such Lender demanding such
payment or refusing to so consent being referred to herein as an “Affected
Lender”), Borrowers may, at their option, notify the Applicable Agent and
such Affected Lender of its intention to do one of the following:


 


(i)                                     The applicable Borrowers may obtain, at such Borrowers’
expense, a replacement Lender (“Replacement Lender”) for such Affected
Lender, which Replacement Lender shall be reasonably satisfactory to the Applicable Agent.  In the event the
applicable Borrowers obtain a Replacement Lender that will
purchase all outstanding Obligations owed to such Affected Lender and assume
its Commitments hereunder within ninety (90) days following notice of such Borrowers’
intention to do so, the Affected Lender shall sell and assign all of its rights
and delegate all of its obligations under this Agreement to such Replacement
Lender in accordance with the provisions of Section 8.1, provided,
that such Borrowers have
reimbursed such Affected Lender for any administrative fee payable pursuant to Section
8.1 and, in any case where such replacement occurs as the result of a
demand for payment pursuant to Section 1.14 or 1.15, paid all amounts
required to be paid to such Affected Lender pursuant to Section 1.14 or 1.15
through the date of such sale and assignment; or


 


(ii)                                  The applicable Borrowers may, with the
Applicable Agent’s consent, prepay in full all outstanding
Obligations owed to such Affected Lender by such Borrowers and terminate such
Affected Lender’s Pro Rata Share of the applicable
Commitments, in which case the Commitments will be reduced by the amount of
such Pro Rata Share.  Such


 


115





















 


Borrowers shall, within ninety
(90) days following notice of their intention to do so, prepay in full all
outstanding Obligations owed to such Affected Lender (including, in any case
where such prepayment occurs as the result of a demand for payment for
increased costs, such Affected Lender’s increased costs for which it is
entitled to reimbursement under this Agreement through the date of such
prepayment), and terminate such Affected Lender’s obligations under the
Commitment.


 


(iii)                               In the case of a Non-Funding Lender pursuant to Section
8.5(d), at the Applicable Borrower
Representative’s request, the Applicable Agent
or a Person acceptable to such Agent
shall have the right with such Agent’s
consent and in such Agent’s
sole discretion (but shall have no obligation) to purchase from any Non-Funding
Lender, and each Non-Funding Lender agrees that it shall, at such Agent’s request,
sell and assign to such
Agent or such Person, all of the Loans and Commitments of that Non-Funding
Lender for an amount equal to the principal balance of all Loans held by such
Non-Funding Lender and all accrued interest and Fees with respect thereto
through the date of sale, such purchase and sale to be consummated pursuant to
an executed Assignment Agreement.  A
Lender that is a Netherlands Lender and a US Lender shall be deemed to be
separate Lenders for the purposes of this paragraph (a).


 


(b)                                 If, in connection with any proposed amendment,
modification, waiver or termination pursuant to Section 9.2 (a “Proposed
Change”):


 


(i)                                     requiring the consent of all affected Lenders, all
US Lenders or all Netherlands Lenders, the consent of Requisite Lenders, Requisite US Lenders or Requisite
Netherlands Lenders, as the case may be, is obtained, but
the consent of other Lenders whose consent is required is not obtained (any
such Lender whose consent is not obtained as described in this clause (i) and
in clause (ii) below being referred to as a “Non-Consenting Lender”),


 


(ii)                                  requiring the consent of Supermajority Lenders, Supermajority US Lenders or the Supermajority
Netherlands Lenders, as applicable, the consent of
Requisite Lenders, Requisite US
Lenders or Requisite Netherlands Lenders, as the case may be,
is obtained, but the consent of Supermajority Lenders, Supermajority US Lenders or the
Supermajority Netherlands Lenders, as applicable, is not
obtained,


 


then, so long as the Applicable Agent is
not a Non-Consenting Lender, at the
Applicable Borrower Representative’s request the Applicable Agent, or
a Person reasonably acceptable to Applicable
Agent, shall have the right with Applicable Agent’s
consent and in Applicable
Agent’s sole discretion (but shall have no obligation) to purchase from such
Non-Consenting Lenders, and such Non-Consenting Lenders agree that they shall,
upon such Agent’s request,
sell and assign to such
Agent or such Person, all (except as provided in the immediately succeeding
sentence) of the Loans and Commitments of such Non-Consenting Lenders for an
amount equal to the principal balance of all Loans held by the Non-Consenting
Lenders and all accrued interest and Fees with respect thereto through the date
of sale, such purchase and sale to be consummated pursuant to an executed
Assignment Agreement.  If the
Non-Consenting Lenders holds both Netherlands Revolving Loans and US Revolving
Loans and (x) clause (b)(i) above applies, and the consent of all Lenders is
required or clause (b)(ii) above applies and the consent of Supermajority
Lenders is required, then all Loans and Commitments of such Non-Consenting
Lender must be sold and assigned, (y) clause (b)(i) above applies and the
consent of all US


 


116





















 


Lenders is required or clause
(b)(ii) above applies and the consent of Supermajority US Lenders is required,
then only the US Revolving Loans and US Commitments of such Non-Consenting
Lender must be sold and assigned, and (z) clause (b)(i) above applies and the
consent of all Netherlands Lenders is required or clause (b)(ii) applies and
the consent of Supermajority Netherlands Lenders is required, then only the
Netherlands Revolving Loans and Netherlands Commitments of such Non-Consenting
Lender must be sold and assigned.


 


9.20.                        Delivery of Termination
Statements and Mortgage Releases.


 


(a)                                  Except as otherwise prohibited by any Senior Note
Document, upon payment in full in cash and performance of all of the US
Obligations (other than Contingent Indemnification Obligations), termination of
the US Commitments, the termination of all US Letters of Credit (or the
provision of cash collateral or back-to-back letters of credit therefore) to
the extent both permitted and required by this Agreement and a release of all
claims against US Agent,
Collateral Agent and US Lenders, and so long as no suits, actions proceedings,
or claims are pending or threatened against any US Indemnitee asserting any
damages, losses or liabilities that are indemnified liabilities hereunder (the “US
Termination Date”), US Agent and/or Collateral Agent shall deliver to Applicable Borrower
Representative termination statements, mortgage releases and other documents
necessary or appropriate to evidence the termination of the Liens securing payment
of the US Obligations.


 


(b)                                 Except as otherwise prohibited by any Senior Note
Document, upon payment in full in cash and performance of all of the
Netherlands Obligations (other than Contingent Indemnification Obligations),
termination of the Netherlands Commitments, the termination of all Netherlands
Letters of Credit (or the provision of cash collateral or back-to-back letters
of credit therefore) to the extent both permitted and required by this
Agreement and a release of all claims against Netherlands Agent, Netherlands
Security Trustee and Netherlands Lenders, and so long as no suits, actions
proceedings, or claims are pending or threatened against any Netherlands
Indemnitee asserting any damages, losses or liabilities that are indemnified
liabilities hereunder (the “Netherlands Termination Date”), Netherlands
Agent and/or Netherlands Security Trustee shall deliver to Applicable Borrower
Representative termination statements, mortgage releases and other documents
necessary or appropriate to evidence the termination of the Liens securing
payment of the Netherlands Obligations.


 


(c)                                  In addition, in connection with any transaction
permitted under Sections 3.7 or 3.17, the US Agent, Netherlands Agent,
Collateral Agent or Netherlands
Security Trustee, as applicable, shall promptly release
its Liens on all assets sold, conveyed, leased, subleased, transferred or
otherwise disposed of in accordance with such sections and, if such Asset
Disposition permitted under Section 3.7 consists of the sale of all of
the Stock or other equity interests in a Credit Party, the US Agent,
Netherlands Agent, Collateral Agent or Netherlands Security Trustee, as
applicable, shall promptly release such Credit Party from its obligations
hereunder and under any Guaranty.


 


9.21.                        Mandatory
Costs.


 


(a)                                  The Mandatory Costs are an addition to the interest
rate to compensate Netherlands Lenders for the cost of compliance with (a) the
requirements of the Bank of England


 


117





















 


and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of
its functions) or (b) the requirements of the European Central Bank.


 


(b)                                 On the first day of each LIBOR Period (or as soon
as possible thereafter) the Netherlands Agent shall calculate, as a percentage
rate, a rate (the “Additional Cost Rate”)
for each Netherlands Lender, in accordance with the paragraphs set out
below.  The Mandatory Costs will be
calculated by the Netherlands Agent as a weighted average of the Netherlands
Lenders’ Additional Cost Rates (weighted in proportion to the percentage
participation of each Netherlands Lender in the relevant LIBOR Loan) and will
be expressed as a percentage rate per annum.


 


(c)                                  The Additional Cost Rate for any Netherlands Lender
lending from a Facility Office in a state participating in the European Union
in accordance with EMU legislation (being legislative measures of the European
Council for the introduction of, changeover to or operation of the Euro) will
be the percentage notified by that Netherlands Lender to the Netherlands
Agent.  This percentage will be certified
by that Netherlands Lender in its notice to the Netherlands Agent to be its
reasonable determination of the cost (expressed as a percentage of that Netherlands
Lender’s participation in all LIBOR Loans made from that Facility Office) of
complying with the minimum reserve requirements of the European Central Bank in
respect of LIBOR Loans made from that Facility Office.


 


(d)                                 The Additional Cost Rate for any Netherlands Lender
lending from a Facility Office in the United Kingdom will be calculated by the
Netherlands Agent as follows:


 


(i)                                     in
relation to a sterling LIBOR Loan:


 


	
  

  	
  per cent.
  per annum

  



 


(ii)                                  in
relation to a LIBOR Loan in any currency other than sterling:


 


	
  

  	
  per cent.
  per annum.

  



 


Where:


 


A                                    is
the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Netherlands Lender is from time to time required to
maintain as an interest free cash ratio deposit with the Bank of England to
comply with cash ratio requirements.


 


B                                      is
the percentage rate of interest (excluding the Applicable Margin and the
Mandatory Costs and, if applicable, the additional margin added to such rate of
interest pursuant to Section 1.3(d)) payable for the relevant LIBOR
Period on the LIBOR Loan.


 


118





















 


 


C                                      is
the percentage (if any) of Eligible Liabilities which that Netherlands Lender
is required from time to time to maintain as interest bearing Special Deposits
with the Bank of England.


 


D                                     is
the percentage rate per annum payable by the Bank of England to the Netherlands
Agent on interest bearing Special Deposits.


 


E                                       is
designed to compensate Netherlands Lenders for amounts payable under the Fees
Rules and is calculated by the Netherlands Agent as being the average of the
most recent rates of charge supplied by the Reference Banks to the Netherlands
Agent pursuant to paragraph (g) below and expressed in pounds per
£1,000,000.


 


(e)                                  For the purposes of this Section 9.21:


 


(i)                                     “Eligible Liabilities”
and “Special Deposits” have the meanings
given to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;


 


(ii)                                  “Facility Office”
means the office or offices notified by a Netherlands Lender to the Netherlands
Agent in writing on or before the date it becomes a Netherlands Lender (or,
following that date, by not less than five Business Days’ written notice) as
the office or offices through which it will perform its obligations under this
Agreement;


 


(iii)                               “Fees Rules”
means the rules on periodic fees contained in the FSA Supervision Manual or
such other law or regulation as may be in force from time to time in respect of
the payment of fees for the acceptance of deposits;


 


(iv)                              “Fee Tariffs”
means the fee tariffs specified in the Fees Rules under the activity group A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant
to the Fees Rules but taking into account any applicable discount rate);


 


(v)                                 “Mandatory Costs”
means the percentage rate per annum calculated by the Netherlands Agent in
accordance with this Section 9.21 (Mandatory
Cost formula).


 


(vi)                              “Reference Banks”
mean, the principal London offices of Barclays Bank plc, Citibank, N.A. or
Royal Bank of Scotland plc or such other banks of equivalent credit standing as
may be appointed by the Netherlands Agent;


 


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(vii)                           “Tariff Base”
has the meaning given to it in, and will be calculated in accordance with, the
Fees Rules.


 


(f)                                    In application of the above formulae, A, B, C and D
will be included in the formulae as percentages (i.e. 5 per cent. will be
included in the formula as 5 and not as 0.05). 
A negative result obtained by subtracting D from B shall be taken as
zero.  The resulting figures shall be
rounded to four decimal places.


 


(g)                                 If requested by the Netherlands Agent, each
Reference Bank shall, as soon as practicable after publication by the Financial
Services Authority, supply to the Netherlands Agent the rate of charge payable
by that Reference Bank to the Financial Services Authority pursuant to the Fees
Rules in respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being the
average of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per £1,000,000 of the Tariff Base of that
Reference Bank.


 


(h)                                 Each Netherlands Lender shall supply any
information required by the Netherlands Agent for the purpose of calculating
its Additional Cost Rate.  In particular,
but without limitation, each Netherlands Lender shall supply the following
information on or prior to the date on which it becomes a Netherlands Lender:


 


(i)                                     the jurisdiction of
its Facility Office; and


 


(ii)                                  any other information
that the Netherlands Agent may reasonably require for such purpose.


 


Each
Netherlands Lender shall promptly notify the Netherlands Agent of any change to
the information provided by it pursuant to this paragraph.


 


(i)                                     The percentages of each Netherlands Lender for the
purpose of A and C above and the rates of charge of each Reference Bank for the
purpose of E above shall be determined by the Netherlands Agent based upon the
information supplied to it pursuant to paragraphs (g) and (h) above and on the
assumption that, unless a Netherlands Lender notifies the Netherlands Agent to
the contrary, each Netherlands Lender’s obligations in relation to cash ratio
deposits and Special Deposits are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same jurisdiction
as its Facility Office.


 


(j)                                     The Netherlands Agent shall have no liability to
any person if such determination results in an Additional Cost Rate which over
or under compensates any Netherlands Lender and shall be entitled to assume
that the information provided by any Netherlands Lender or Reference Bank
pursuant to paragraphs (c), (g) and (h) above is true and correct in all
respects.


 


(k)                                  The Netherlands Agent shall distribute the
additional amounts received as a result of the Mandatory Costs to the
Netherlands Lenders on the basis of the Additional Cost Rate for each
Netherlands Lender based on the information provided by each Netherlands Lender
and each Reference Bank pursuant to paragraphs (c), (g) and (h) above.


 


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(l)                                     Any determination by the Netherlands Agent pursuant
to this Section 9.21 in relation to a formula, the Mandatory Costs,
an Additional Cost Rate or any amount payable to a Netherlands Lender shall, in
the absence of manifest error, be conclusive and binding on all parties.


 


(m)                               The Netherlands Agent may from time to time
determine and notify to all parties any amendments which are required to be
made to this Section 9.21 in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank of
England, the Financial Services Authority or the European Central Bank (or, in
any case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be conclusive
and binding on all parties.


 


9.22.                        Subordination of Intercompany
Debt.


 


(a)                                  Each Credit Party hereby agrees that any
intercompany Indebtedness or other intercompany payables or receivables, or
intercompany advances directly or indirectly made by or owed to such Credit
Party by any Subsidiary of RPP USA (collectively, “Intercompany Debt”),
of whatever nature at any time outstanding shall be subordinate and subject in
right of payment to the prior payment in full in cash of the Obligations.  Each Credit Party hereby agrees that it will
not, while any Event of Default is continuing, make any payment, including by
offset, on any Intercompany Debt to any Person that is not a Credit Party until
the Termination Date.  Further each
Credit Party hereby agrees that upon maturity of any Obligations, whether at
stated maturity, by acceleration or otherwise, no payment, including by offset,
shall be made on any Intercompany Debt, and all such Obligations shall first be
paid in cash, before any payment (whether in cash, property, securities or
otherwise) is made on account of the Intercompany Debt.


 


(b)                                 Upon any payment or distribution of any assets of
any Credit Party of any kind or character, whether in cash, property or
securities by set-off, recoupment or otherwise, to creditors in any liquidation
or other winding-up of such Credit Party or in the event of any Proceeding,
Agents and Lenders shall first be entitled to receive payment in full in cash,
in accordance with the terms of the Obligations and of this Agreement of all
amounts payable under or in respect of such Obligations, before any payment or
distribution is made on, or in respect of, any Intercompany Debt, in any such
Proceeding, any distribution or payment, to which any Agent or any Lender would
be entitled except for the provisions hereof shall be paid by such Credit
Party, or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other person making such payment or distribution directly to Applicable Agent
(for the benefit of Applicable Agent and the Applicable Lenders) to the extent
necessary to pay all such Obligations in full in cash, after giving effect to
any concurrent payment or distribution to Applicable Agent and Applicable
Lenders (or to Applicable Agent for the benefit of Applicable Agent and
Applicable Lenders).


 


9.23.                        Professional
Market Party.  Each Netherlands
Lender represents and warrants to the Netherlands Borrower, the Netherlands
Agent and each other Netherlands Lender that on the date of this Agreement,
such Netherlands Lender is a Professional Market Party.  Each Netherlands Borrower represents and
warrants to the Netherlands Lenders and the Netherlands Agent that on or prior
to the date of this Agreement it has verified the status of each Netherlands


 


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Lender under the Exemption
Regulation on such date and that each such Netherlands Lender is a Professional
Market Party.


 


SECTION 10.

US CROSS-GUARANTY


 


10.1.                        US Cross-Guaranty.  Each US Borrower
hereby agrees that such US Borrower
is jointly and severally liable for, and hereby absolutely and unconditionally
guarantees to US Agent
and US Lenders and their
respective successors and assigns, the full and prompt payment (whether at
stated maturity, by acceleration or otherwise) and performance of, all US Obligations owed or
hereafter owing to US Agent
and US Lenders by each
other US Borrower.  Each US
Borrower agrees that its guaranty obligation hereunder is a continuing guaranty
of payment and performance and not of collection, that its obligations under
this Section 10 shall not be discharged until payment and
performance, in full, of the US Obligations
has occurred, and that its obligations under this Section 10 shall
be absolute and unconditional, irrespective of, and unaffected by,


 


(a)                                  the genuineness, validity, regularity,
enforceability or any future amendment of, or change in, this Agreement, any
other Loan Document or any other agreement, document or instrument to which any
US Borrower is or may
become a party;


 


(b)                                 the absence of any action to enforce this Agreement
(including this Section 10) or any other Loan Document or the
waiver or consent by US Agent,
Collateral Agent or US Lender or US Lenders with respect
to any of the provisions thereof;


 


(c)                                  the existence, value or condition of, or failure to
perfect its Lien against, any security for the Obligations or any action, or
the absence of any action, by US Agent, Collateral Agent or US Lender or US
Lenders in respect thereof (including the release of any such security);


 


(d)                                 the insolvency of any Credit Party; or


 


(e)                                  any other action or circumstances that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor.


 


Each US Borrower
shall be regarded, and shall be in the same position, as principal debtor with
respect to the US Obligations
guaranteed hereunder.


 


10.2.                        Waivers
by US Borrowers.  Each US Borrower
expressly waives all rights it may have now or in the future under any statute,
or at common law, or at law or in equity, or otherwise, to compel US Agent,
Collateral Agent or US Lenders to marshal assets or to proceed in respect of
the US Obligations guaranteed hereunder against any other US Credit Party, any
other party or against any security for the payment and performance of the US
Obligations guaranteed hereunder before proceeding against, or as a condition
to proceeding against, such US Borrower. 
It is agreed among each US Borrower, US Agent, Collateral Agent and US
Lenders that the foregoing waivers are of the essence of the transaction
contemplated by this Agreement and the other Loan Documents and that, but for
the provisions of this Section 10 and such waivers, US Agent, Collateral
Agent and US Lenders would decline to enter into this Agreement.


 


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10.3.                        Benefit
of Guaranty.  Each US Borrower agrees that
the provisions of this Section 10 are for the benefit of US Agent, Collateral
Agent and US Lenders and their
respective successors, transferees, endorsees and assigns, and nothing herein
contained shall impair, as between any other US Borrower
and US Agent, Collateral
Agent or US Lenders, the
obligations of such other US
Borrower under the Loan Documents.


 


10.4.                        Postponement
of Subrogation, Etc.  Notwithstanding
anything to the contrary in this Agreement or in any other Loan Document, and
except as set forth in Section 10.7, each US Borrower hereby
waives until the US Termination Date all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or set
off and any and all defenses available to a surety, guarantor or accommodation
co-obligor.  Each US Borrower acknowledges
and agrees that this waiver is intended to benefit US Agent and US Lenders and shall not
limit or otherwise affect such US
Borrower’s liability hereunder or the enforceability of this Section 10,
and that US Agent, US Lenders and their
respective successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 10.4.


 


10.5.                        Election
of Remedies.  If US Agent, Collateral Agent
or any US Lender may, under
applicable law, proceed to realize its benefits under any of the Loan Documents
giving US Agent, Collateral Agent
or such US Lender a Lien upon
any US Collateral, whether
owned by any US Borrower
or by any other Person, either by judicial foreclosure or by non-judicial sale
or enforcement, US Agent,
Collateral Agent or any US
Lender may, at its sole option, determine which of its remedies or rights it
may pursue without affecting any of its rights and remedies under this Section 10.  If, in the exercise of any of its rights and
remedies, US Agent,
Collateral Agent or any US
Lender shall forfeit any of its rights or remedies, including its right to
enter a deficiency judgment against any US Borrower
or any other Person, whether because of any applicable laws pertaining to “election
of remedies” or the like, each US Borrower
hereby consents to such action by US
Agent, Collateral Agent or such US Lender and waives
any claim based upon such action, even if such action by US Agent or such US Lender shall result
in a full or partial loss of any rights of subrogation that each US Borrower might
otherwise have had but for such action by US
Agent, Collateral Agent or such US Lender.  Any election of remedies that results in the
denial or impairment of the right of US Agent
or any US Lender to seek a
deficiency judgment against any US Borrower
shall not impair any other US Borrower’s
obligation to pay the full amount of the US Obligations.  In the event US
Agent, Collateral Agent or any US Lender shall bid at
any foreclosure or trustee’s sale or at any private sale permitted by law or
the Loan Documents, US Agent,
Collateral Agent or such US
Lender may bid all or less than the amount of the US Obligations
guaranteed hereunder and the amount of such bid need not be paid by US Agent, Collateral Agent
or such US Lender but shall be
credited against the US Obligations
guaranteed hereunder.  The amount of the
successful bid at any such sale, whether US Agent, Collateral Agent, any US
Lender or any other party is the successful bidder, shall be conclusively
deemed to be the fair market value of the US Collateral
and the difference between such bid amount and the remaining balance of the US Obligations shall be
conclusively deemed to be the amount of the US
Obligations guaranteed under this Section 10, notwithstanding that
any present or future law or court decision or ruling may have the effect of
reducing the amount of any deficiency claim to which US Agent, Collateral Agent
or any US Lender might
otherwise be entitled but for such bidding at any such sale.


 


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10.6.                        Limitation. 
Notwithstanding any provision herein contained to the contrary, each US Borrower’s liability
under this Section 10 (which liability is in any event in addition
to amounts for which such US Borrower
is primarily liable under Section 1) shall be limited to an amount
not to exceed as of any date of determination the greater of:


 


(a)                                  the net amount of all US Revolving Loans advanced
to any other US Borrower
under this Agreement and then re-loaned or otherwise transferred to, or for the
benefit of, such US
Borrower; and


 


(b)                                 the amount that could be claimed by US Agent and US
Lenders from such US Borrower under this Section 10 without
rendering such claim voidable or avoidable under Section 548 of Chapter 11
of the Bankruptcy Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common
law after taking into account, among other things, such US Borrower’s right of
contribution and indemnification from each other US Borrower under Section 10.7.


 


10.7.                        Contribution
with Respect to US Guaranty Obligations.


 


(a)                                  To the extent that any US Borrower shall make a
payment under this Section 10 of all or any of the US Obligations (other
than Loans made to that US Borrower
for which it is primarily liable) (a “US Guarantor
Payment”) that, taking into account all other US Guarantor Payments
then previously or concurrently made by any other US Borrower, exceeds the
amount that such US Borrower
would otherwise have paid if each US Borrower
had paid the aggregate US Obligations
satisfied by such US Guarantor
Payment in the same proportion that such US Borrower’s
“US Allocable
Amount” (as defined below) (as determined immediately prior to such US Guarantor Payment)
bore to the aggregate US Allocable
Amounts of each of the US
Borrowers as determined immediately prior to the making of such US Guarantor Payment,
then, following payment in full in cash of the US Obligations
and termination of the US Commitments
and US Letters of Credit, such US Borrower
shall be entitled to receive contribution and indemnification payments from,
and be reimbursed by, each other US Borrower
for the amount of such excess, pro rata based upon their respective US Allocable Amounts in
effect immediately prior to such US Guarantor
Payment.


 


(b)                                 As of any date of determination, the “US Allocable
Amount” of any US
Borrower shall be equal to the maximum amount of the claim that could then be
recovered from such US Borrower under this Section 10 without
rendering such claim voidable or avoidable under Section 548 of Chapter 11
of the Bankruptcy Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common
law.


 


(c)                                  This Section 10.7 is intended only to
define the relative rights of US
Borrowers and nothing set forth in this Section 10.7 is intended to
or shall impair the obligations of US Borrowers,
jointly and severally, to pay any amounts as and when the same shall become due
and payable in accordance with the terms of this Agreement, including Section 10.1.  Nothing contained in this Section 10.7
shall limit the liability of any US Borrower
to pay the Loans made directly or indirectly to that US Borrower and accrued
interest, Fees and expenses with respect thereto for which such US Borrower shall be
primarily liable.


 


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(d)                                 The parties hereto acknowledge that the rights of
contribution and indemnification hereunder shall constitute assets of the US Borrower to which
such contribution and indemnification is owing.


 


(e)                                  The rights of the indemnifying US Borrowers against other US Credit Parties under
this Section 10.7 shall be exercisable upon the full payment in
cash of the US Obligations
and the termination of the US
Commitments and US Letters of Credit.


 


10.8.                        Liability
Cumulative.  The liability of US Borrowers under this
Section 10 is in addition to and shall be cumulative with all
liabilities of each US Borrower
to US Agent, Collateral Agent and US Lenders under this
Agreement and the other Loan Documents to which such US Borrower is a party
or in respect of any US Obligations
or obligation of the other US Borrower,
without any limitation as to amount, unless the instrument or agreement
evidencing or creating such other liability specifically provides to the
contrary.


 


SECTION 11.

NETHERLANDS CROSS-GUARANTY


 


11.1.                        Netherlands Cross-Guaranty.  Each
of the Netherlands Borrowers hereby agrees that such Netherlands Borrower is
jointly and severally liable for, and hereby absolutely and unconditionally
guarantees to Netherlands Agent and Netherlands Lenders and their respective
successors and assigns, the full and prompt payment (whether at stated
maturity, by acceleration or otherwise) and performance of, all Netherlands
Obligations owed or hereafter owing to Netherlands Agent and Netherlands
Lenders by each other Netherlands Borrower. 
Each Netherlands Borrower agrees that its guaranty obligation hereunder
is a continuing guaranty of payment and performance and not of collection, that
its obligations under this Section 11 shall not be discharged until payment and
performance, in full, of the Netherlands Obligations has occurred, and that its
obligations under this Section 11 shall be absolute and unconditional,
irrespective of, and unaffected by,


 


(a)                                  the genuineness,
validity, regularity, enforceability or any future amendment of, or change in,
this Agreement, any other Loan Document or any other agreement, document or
instrument to which any Netherlands Borrower is or may become a party;


 


(b)                                 the absence of any action
to enforce this Agreement (including this Section 11) or any other Loan
Document or the waiver or consent by Netherlands Agent, Netherlands Security
Trustee or any Netherlands Lender with respect to any of the provisions
thereof;


 


(c)                                  the existence, value or
condition of, or failure to perfect its Lien against, any security for the
Netherlands Obligations or any action, or the absence of any action, by
Netherlands Agent, Netherlands Security Trustee or any Netherlands Lender in
respect thereof (including the release of any such security);


 


(d)                                 the insolvency of any
Credit Party; or


 


(e)                                  any other action or
circumstances that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor.


 


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Each
Netherlands Borrower shall be regarded, and shall be in the same position, as
principal debtor with respect to the Netherlands Obligations guaranteed
hereunder.


 


11.2.                        Waivers by Netherlands Borrowers.  Each
Netherlands Borrower expressly waives all rights it may have now or in the
future under any statute, or at common law, or at law or in equity, or
otherwise, to compel Netherlands Agent, Netherlands Security Trustee or
Netherlands Lenders to marshal assets or to proceed in respect of the
Netherlands Obligations guaranteed hereunder against any other Netherlands
Credit Party, any other party or against any security for the payment and
performance of the Netherlands Obligations guaranteed hereunder before
proceeding against, or as a condition to proceeding against, such Netherlands
Borrower.  It is agreed among each
Netherlands Borrower, Netherlands Agent, Netherlands Security Trustee and
Netherlands Lenders that the foregoing waivers are of the essence of the
transaction contemplated by this Agreement and the other Loan Documents and
that, but for the provisions of this Section 11 and such waivers, Netherlands Agent,
Netherlands Security Trustee and Netherlands Lenders would decline to enter
into this Agreement.


 


11.3.                        Benefit
of Guaranty.  Each Netherlands Borrower agrees that the
provisions of this Section 11 are for the benefit of Netherlands Agent,
Netherlands Security Trustee and Netherlands Lenders and their respective
successors, transferees, endorsees and assigns, and nothing herein contained
shall impair, as between any other Netherlands Borrower and Netherlands Agent,
Netherlands Security Trustee or Netherlands Lenders, the obligations of such
other Netherlands Borrower under the Loan Documents.


 


11.4.                        Postponement
of Subrogation, Etc. 
Notwithstanding anything to the contrary in this Agreement or in any
other Loan Document, and except as set forth in Section 11.7, each Netherlands Borrower hereby waives
until the Netherlands Termination Date all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or set
off and any and all defenses available to a surety, guarantor or accommodation
co-obligor.  Each Netherlands Borrower
acknowledges and agrees that this waiver is intended to benefit Netherlands Agent,
Netherlands Security Trustee and Netherlands Lenders and shall not limit or
otherwise affect such Netherlands Borrower’s liability hereunder or the
enforceability of this Section 11, and that Netherlands Agent, Netherlands
Security Trustee, Netherlands Lenders and their respective successors and
assigns are intended third party beneficiaries of the waivers and agreements
set forth in this Section 11.4.


 


11.5.                        Election
of Remedies.  If Netherlands Agent, Netherlands Security
Trustee or any Netherlands Lender may, under applicable law, proceed to realize
its benefits under any of the Loan Documents giving Netherlands Agent,
Netherlands Security Trustee or such Netherlands Lender a Lien upon any
Netherlands Collateral, whether owned by any Netherlands Borrower or by any
other Person, either by judicial foreclosure or by non-judicial sale or
enforcement, Netherlands Agent, Netherlands Security Trustee or any Netherlands
Lender may, at its sole option, determine which of its remedies or rights it
may pursue without affecting any of its rights and remedies under this Section 11.  If,
in the exercise of any of its rights and remedies, Netherlands Agent,
Netherlands Security Trustee or any Netherlands Lender shall forfeit any of its
rights or remedies, including its right to enter a deficiency judgment against
any Netherlands Borrower or any other Person, whether because of any applicable
laws pertaining to “election of remedies” or the like, each Netherlands
Borrower hereby consents to such action by Netherlands


 


126





















 


Agent, Netherlands Security Trustee or such Netherlands Lender and
waives any claim based upon such action, even if such action by Netherlands
Agent, Netherlands Security Trustee or such Netherlands Lender shall result in
a full or partial loss of any rights of subrogation that each Netherlands
Borrower might otherwise have had but for such action by Netherlands Agent,
Netherlands Security Trustee or such Netherlands Lender.  Any election of remedies that results in the
denial or impairment of the right of Netherlands Agent, Netherlands Security
Trustee or any Netherlands Lender to seek a deficiency judgment against any
Netherlands Borrower shall not impair any other Netherlands Borrower’s
obligation to pay the full amount of the Netherlands Obligations.  In the event Netherlands Agent, Netherlands
Security Trustee or any Netherlands Lender shall bid at any foreclosure or
trustee’s sale or at any private sale permitted by law or the Loan Documents,
Netherlands Agent, Netherlands Security Trustee or such Netherlands Lender may
bid all or less than the amount of the Netherlands Obligations guaranteed
hereunder and the amount of such bid need not be paid by Netherlands Agent,
Netherlands Security Trustee or such Netherlands Lender but shall be credited
against the Netherlands Obligations guaranteed hereunder.  The amount of the successful bid at any such
sale, whether Netherlands Agent, Netherlands Security Trustee, any Netherlands
Lender or any other party is the successful bidder, shall be conclusively
deemed to be the fair market value of the Netherlands Collateral and the
difference between such bid amount and the remaining balance of the Netherlands
Obligations shall be conclusively deemed to be the amount of the Netherlands
Obligations guaranteed under this Section 11, notwithstanding that any present or future
law or court decision or ruling may have the effect of reducing the amount of
any deficiency claim to which Netherlands Agent, Netherlands Security Trustee
or any Netherlands Lender might otherwise be entitled but for such bidding at
any such sale.


 


11.6.                        Limitations.  (a)  Notwithstanding any provision herein
contained to the contrary, each Netherlands Borrower’s liability under this Section 11 (which liability is in any event in addition
to amounts for which such Netherlands Borrower is primarily liable under Section 1) shall be limited to an amount not to exceed
as of any date of determination the greater of:


 


(i)                                     the net amount of all
Netherlands Revolving Loans advanced to any other Netherlands Borrower under
this Agreement and then re-loaned or otherwise transferred to, or for the
benefit of, such Netherlands Borrower; and


 


(ii)                                  the amount that could be
claimed by Netherlands Agent and Netherlands Lenders from such Netherlands
Borrower under this Section 11 without rendering such
claim voidable or avoidable under any Insolvency Law or similar statute or
common law after taking into account, among other things, such Netherlands
Borrower’s right of contribution and indemnification from each other
Netherlands Borrower under Section 11.7.


 


(b)                                 Further, notwithstanding any provision herein
contained to the contrary, but without duplication of Section 11.6(a),
(i) each Netherlands Borrower’s liability under this Section 11
shall be further limited to the extent necessary after taking into account,
among other things, the limitation on liability set forth in Section 11.6(a)
and such Netherlands Borrower’s right of contribution and indemnification from
each other Netherlands Borrower under Section 11.7, so that the
enforcement of such liability shall not cause such Netherlands Borrower’s net
assets to become lower than the minimum capital required under
article 2:178 of the Dutch Civil Code, and (ii) the obligations and
liabilities of any Netherlands Borrower


 


127





















 


incorporated under the laws of Spain shall
not include any obligations or liability to the extent it would result in its
guarantee constituting unlawful financial assistance within the meaning of
Article 81 of Spanish Joint Stock Companies Law (“Ley 1564/1989 de 22 de
diciembre de Sociedades Anonimas”).


 


11.7.                        Contribution
with Respect to Netherlands Guaranty Obligations.


 


(a)                                  To the extent that any
Netherlands Borrower shall make a payment under this Section 11 of all or any of the
Netherlands Obligations (other than Loans made to that Netherlands Borrower for
which it is primarily liable) (a “Netherlands Guarantor
Payment”) that, taking into account all other Netherlands
Guarantor Payments then previously or concurrently made by any other
Netherlands Borrower, exceeds the amount that such Netherlands Borrower would
otherwise have paid if each Netherlands Borrower had paid the aggregate
Netherlands Obligations satisfied by such Netherlands Guarantor Payment in the
same proportion that such Netherlands Borrower’s “Netherlands Allocable Amount”
(as defined below) (as determined immediately prior to such Netherlands
Guarantor Payment) bore to the aggregate Netherlands Allocable Amounts of each
of the Netherlands Borrowers as determined immediately prior to the making of
such Netherlands Guarantor Payment, then, following payment in full in cash of
the Netherlands Obligations and termination of the Netherlands Commitments and
Netherlands Letters of Credit, such Netherlands Borrower shall be entitled to
receive contribution and indemnification payments from, and be reimbursed by,
each other Netherlands Borrower for the amount of such excess, pro rata based
upon their respective Netherlands Allocable Amounts in effect immediately prior
to such Netherlands Guarantor Payment.


 


(b)                                 As of any date of
determination, the “Netherlands Allocable Amount” of any Netherlands
Borrower shall be equal to the maximum amount of the claim that could then be
recovered from such Netherlands Borrower under this Section 11 without rendering such
claim voidable or avoidable under any Insolvency Law or similar statue or
common law after taking into account, among other things, such Netherlands
Borrower’s right of contribution and indemnification from each other
Netherlands Borrower under this Section 11.7.


 


(c)                                  This Section 11.7 is intended only to
define the relative rights of Netherlands Borrowers and nothing set forth in
this Section 11.7 is intended to or shall impair the obligations of
Netherlands Borrowers, jointly and severally, to pay any amounts as and when
the same shall become due and payable in accordance with the terms of this
Agreement, including Section 11.1.  Nothing contained in this Section 11.7 shall limit the liability
of any Netherlands Borrower to pay the Loans made directly or indirectly to
that Netherlands Borrower and accrued interest, Fees and expenses with respect
thereto for which such Netherlands Borrower shall be primarily liable.


 


(d)                                 The parties hereto
acknowledge that the rights of contribution and indemnification hereunder shall
constitute assets of the Netherlands Borrower to which such contribution and
indemnification is owing.


 


(e)                                  The rights of the
indemnifying Netherlands Borrowers against other Netherlands Credit Parties
under this Section 11.7 shall be exercisable
upon the full payment in


 


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cash of the Netherlands Obligations and the
termination of the Netherlands Commitments and Netherlands Letters of Credit.


 


11.8.                        Liability
Cumulative.  The liability of Netherlands Borrowers under
this Section 11 is in addition to and shall be cumulative
with all liabilities of each Netherlands Borrower to Netherlands Agent,
Netherlands Security Trustee and Netherlands Lenders under this Agreement and
the other Loan Documents to which such Netherlands Borrower is a party or in
respect of any Netherlands Obligations or obligation of the other Netherlands
Borrower, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.


 


 


[remainder of page intentionally left blank; signature
pages follow]


 


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Witness the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RESOLUTION PERFORMANCE PRODUCTS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Marvin O. Schlanger

  	
   

  
	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RESOLUTION EUROPE B.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Marvin O. Schlanger

  	
   

  
	
   

  	
  Title: Director

  



 


 


[Signature Page to RPP Credit Agreement]


 





















 


	
   

  	
  CREDIT PARTIES:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RESOLUTION PERFORMANCE PRODUCTS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Marvin O. Schlanger

  	
   

  
	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RPP CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Marvin O. Schlanger

  	
   

  
	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RESOLUTION HOLDINGS B.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Marvin O. Schlanger

  	
   

  
	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RESOLUTION IBERICA PERFORMANCE

  PRODUCTS S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  s/ Hendrik de Jong

  	
   

  
	
   

  	
  Title: Attorney

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RESOLUTION (UK) PERFORMANCE

  PRODUCTS LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  s/ Hendrik de Jong

  	
   

  
	
   

  	
  Title: Attorney

  



 





















 


	
   

  	
  RESOLUTION DEUTSCHLAND GMBH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  s/ Francois Vleugels

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RESOLUTION RESEARCH BELGIUM S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  s/ Hendrik de Jong

  	
   

  
	
   

  	
  Title:

  	
  Attorney

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RESOLUTION RESEARCH NEDERLAND B.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Marvin O. Schlanger

  	
   

  
	
   

  	
  Title:

  	
  Director

  



 





















 


	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION,

  
	
   

  	
  as US Agent, US L/C Issuer, Collateral Agent and a US Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Kimberly A. Massa

  	
   

  
	
   

  	
  Title:

  	
  Its Duly Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GE LEVERAGED LOANS LIMITED,

  
	
   

  	
  as Netherlands Agent, Netherlands Security Trustee, Netherlands L/C
  Issuer and a Netherlands Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Adam Scarrott

  	
   

  
	
   

  	
  Title:

  	
  Its Duly Authorized Signatory

  



 





















 


ANNEX A


 


to


 


CREDIT AGREEMENT


 


DEFINITIONS


 


Capitalized
terms used in the Loan Documents shall have (unless otherwise provided
elsewhere in the Loan Documents) the following respective meanings and all references
to Sections, Exhibits, Schedules or Annexes in the following definitions shall
refer to Sections, Exhibits, Schedules or Annexes of or to the Agreement:


 


“Acceleration
of Netherlands Obligations” has the meaning ascribed to it in Section
6.3.


 


“Acceleration
of US Obligations” has the meaning ascribed to it in Section 6.3.


 


“Account
Debtor” means any Person who may become obligated to any Credit Party
under, with respect to, or on account of, an Account, Chattel Paper or General
Intangibles (including a payment intangible).


 


“Accounting
Changes” means:  (a) changes in
accounting principles required by GAAP and implemented by RPP USA or any of its
Subsidiaries; and (b) changes in accounting principles allowed by
Borrowers’ certified public accountants and implemented by any Borrower.


 


“Accounting Records” all books, ledgers and records of any kind
and in any medium relating to any Netherlands Borrower’s business or financial
position and to all purchases and sales made by such Netherlands Borrower.


 


“Accounts”
means all “accounts,” as such term is defined in the Code (or similar Applicable Law),
now owned or hereafter acquired by any Credit Party, including (a) all
accounts receivable, other receivables, book debts and other forms of
obligations (other than forms of obligations evidenced by Chattel Paper or
Instruments), (including any such obligations that may be characterized as an
account or contract right under the Code), (b) all of each Credit Party’s
rights in, to and under all purchase orders or receipts for goods or services,
(c) all of each Credit Party’s rights to any goods represented by any of
the foregoing (including unpaid sellers’ rights of rescission, replevin,
reclamation and stoppage in transit and rights to returned, reclaimed or
repossessed goods), (d) all rights to payment due to any Credit Party for
property sold, leased, licensed, assigned or otherwise disposed of, for a
policy of insurance issued or to be issued, for a secondary obligation incurred
or to be incurred, for energy provided or to be provided, for the use or hire
of a vessel under a charter or other contract, arising out of the use of a
credit card or charge card, or for services rendered or to be rendered by such
Credit Party or in connection with any other transaction (whether or not yet
earned by performance on the part of such Credit Party), (e) all
healthcare insurance receivables, and (f) all collateral security of any
kind, now or hereafter in existence, given by any Account Debtor or other
Person with respect to any of the foregoing.


 


“Acquisition
Pro Forma” has the meaning ascribed to it in Section 3.6.


 





















 


“Acquisition
Projections” has the meaning ascribed to it in Section 3.6.


 


“Acquisition
Target” has the meaning ascribed to it in Section 3.6.


 


“Activation Event” has the meaning ascribed to it
in Section 2.9.


 


“Advance Period” means 30 days from the end of the month of
the invoice date.


 


“Advances”
means any US Revolving
Credit Advance, Netherlands Revolving Credit Advance or US Swing Line Advance,
as the context may require.


 


“Affected
Lender” has the meaning ascribed to it in Section 9.19.


 


“Affiliate”
means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with,
such Person; provided, however, that for purposes of Section
3.8, an Affiliate of any
Borrower shall include any Person that directly or indirectly owns more than
ten percent (10%) of any class of the capital stock of Holdings.  For the purposes of this definition, “control”
of a Person shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of its management or policies, whether through
the ownership of voting securities, by contract or otherwise; provided, however,
that the term “Affiliate” shall (i) with respect to any Credit Party,
specifically exclude Agents,
Collateral Agent,
Netherlands Security Trustee and each Lender and (ii) with
respect to Holdings, Credit Parties, their respective Subsidiaries or Apollo Group, specifically
exclude any Apollo Operating Company or Shell and its Affiliates.


 


“Agents” means, collectively, the US Agent and the
Netherlands Agent.


 


“Aggregate
Netherlands Borrowing Base” means as of any date of determination, an
amount equal to (i) the sum of the Netherlands
Borrowing Bases of each
Netherlands Borrower; less (ii) any Reserves
except to the extent already deducted therefrom.


 


“Aggregate US Borrowing Base” means as of any date of determination, an
amount equal to (i) the sum of the US Borrowing Bases of each US Borrower;
less (ii) any Reserves except to the extent already deducted therefrom.


 


“Aggregate Borrowing Availability” means, at any given time, the sum of the US
Borrowing Availability and Netherlands Borrowing Availability.


 


“Agreement”
means this Credit Agreement (including all schedules, subschedules, annexes and
exhibits hereto), as the same may be amended, supplemented, restated or
otherwise modified from time to time.


 


“Ancillary
Texas Buildings” has the meaning ascribed to it in Section 3.20.


 


“Applicable Agent” means (i) with respect to the Netherlands
Borrowers, Netherlands Credit Parties, Netherlands Lenders or Netherlands
Revolving Loans, Netherlands Agent and (ii) with respect to the US Borrowers,
US Credit Parties, US Lenders or US Revolving Loans, US Agent.


 


2





















 


“Applicable Borrower Representative” means (i) with respect to the Netherlands
Borrowers, Netherlands Credit Parties, Netherlands Lenders or Netherlands
Revolving Loans, Netherlands Borrower Representative and (ii) with respect to
the US Borrowers, US Credit Parties, US Lenders or US Revolving Loans, US
Borrower Representative.


 


“Applicable
EURO LIBOR Margin” means the per annum interest rate margin from time to
time in effect and payable in addition to the EURO LIBOR applicable to the
Loans, as determined by reference to Section 1.3(a).


 


“Applicable
Law” means, in respect of any provision of law referred to herein, the law
applicable in each relevant jurisdiction to the issue or topic addressed in
such provision of law.


 


“Applicable
Lender” means (i) with respect to US Agent, Collateral Agent or any US
Revolving Loan or US Letter of Credit, a US Lender and (ii) with respect
Netherlands Agent, Netherlands Security Trustee or any Netherlands Revolving
Loan or Netherlands Letter of Credit, a Netherlands Lender.


 


“Applicable
LIBOR Margin” means the per annum interest rate from time to time in effect
and payable in addition to the LIBOR Rate applicable to the Revolving Loan, as
determined by reference to Section 1.3(a).


 


“Applicable Margins” means collectively the Applicable EURO
LIBOR Margin, the Applicable US Index Margin, the Applicable LIBOR Margin, the
Applicable US L/C Margin, the Applicable Netherlands Base Rate Margin and the
Applicable Netherlands L/C Margin.


 


“Applicable Netherlands Base Rate Margin” means the per annum interest rate from time
to time in effect and payable in addition to the Netherlands Base Rate
applicable to the Revolving Loan, as determined by reference to Section 1.3(a).


 


“Applicable Netherlands L/C Margin” means the per annum interest rate margin
from time to time in effect, as determined by reference to Section 1.3(a).


 


“Applicable US L/C Margin” means the per annum interest rate margin
from time to time in effect, as determined by reference to Section 1.3(a).


 


“Applicable US Index Margin” means the per annum interest rate margin
from time to time in effect and payable in addition to the US Index Rate
applicable to the US Revolving Loan, as determined by reference to Section 1.3(a).


 


“Apollo
Group” means Apollo Management IV, L.P., a Delaware limited partnership and
its Affiliates and Apollo Management V, L.P., a Delaware limited partnership
and its Affiliates.


 


“Apollo
Management Agreement” means the management consulting agreement dated as of
November 14, 2000, between
members of the Apollo Group and RPP USA, as the same may be amended, modified
or supplemented from time to time in accordance with the terms hereof and
thereof.


 


3





















 


“Apollo
Operating Company” means a Person engaged in the business of producing
goods or providing services that but for clause (ii) of the proviso in the
definition of Affiliate would be an Affiliate of Apollo Group.


 


“Approved Territory” means a Primary Approved Territory or a
Secondary Approved Territory.


 


“Asset
Disposition” means the disposition whether by sale, lease, sublease,
license, sublicense, option, transfer, loss, damage, destruction, casualty,
condemnation or otherwise of any of the following:  (a) any of the Stock or other equity or
ownership interest of any of Borrowers’ Subsidiaries or (b) any or all of
the assets of Borrowers or any of their Subsidiaries, in each case other than
(1) sales or other dispositions of Inventory in the ordinary course of
business, (2) customary sales, assignments and other dispositions of
delinquent Accounts and payment rights for collection, (3) sales, transfers and
other dispositions of assets from a Credit Party to another Credit Party (other
than any transfer of assets by a Subsidiary of Holdings to Holdings except as
permitted pursuant to Section 3.5), (4) sales and issuances of Stock by
a Credit Party to another Credit Party, (5) sales or other dispositions of cash
or Cash Equivalents to the extent permitted hereunder, (6) leases, subleases,
licenses and sublicenses of assets in the ordinary course of business, and (7)
any sale or disposition of assets to an insurer with respect to any insurance
claim (but for the loss caused by or damage for which such claim was based) or
condemnation proceeding.


 


“Assignment
Agreement” has the meaning ascribed to it in Section 8.1(a).


 


“BACS” means the Bankers Automated Clearing
System.


 


“Bankruptcy
Code” means the provisions of Title 11 of the United States Code, 11 U.S.C.
§§ 101 et seq. or other applicable bankruptcy, insolvency or similar laws
of any other jurisdiction.


 


“Borrower”
and “Borrowers” have the respective meanings ascribed to them in the
preamble to the Agreement.


 


“Borrowing
Base Certificate” has the meaning ascribed to it in Section 4.1(d).


 


“Business
Day” means any day that is not a Saturday, a Sunday or a day on which banks
are required or permitted to be closed in the State of New York or in the Netherlands and
in reference to LIBOR Loans or EURO LIBOR Loans shall mean any such day that is
also a LIBOR Business Day.


 


“CAM” shall mean the mechanism for the allocation and exchange
of interests in the Credit Facilities and collections thereunder established
under Section 8.7.


 


“CAM Exchange” shall mean the exchange of the Lenders’ interests
provided for in Section 8.7.


 


“CAM Exchange Date” shall mean the date on which (a) any event
referred to in Section 6.1(f) or (g) shall occur or (b) an Acceleration
of U.S. Obligations or an Acceleration of Netherlands Obligations shall occur.


 


4





















 


“CAM Percentage” shall mean, as to each Lender, a fraction,
expressed as a decimal, of which (a) the numerator shall be the aggregate
Dollar Equivalent of the Specified Obligations owed to such Lender and such
Lender’s participation in the aggregate Letters of Credit immediately prior to
the CAM Exchange Date and (b) the denominator shall be the aggregate Dollar
Equivalent of the Specified Obligations owed to all the Lenders and the
aggregate Letters of Credit immediately prior to such CAM Exchange Date.


 


“Capital
Expenditures” has the meaning ascribed to it in Schedule 2 to Exhibit
4.1(k).


 


“Capital
Lease” means, with respect to any Person, any lease of any property
(whether real, personal or mixed) by such Person as lessee that, in accordance
with GAAP, would be required to be classified and accounted for as a capital
lease on a balance sheet of such Person.


 


“Capital
Lease Obligation” means, with respect to any Capital Lease of any Person,
the amount of the obligation of the lessee thereunder that, in accordance with
GAAP, would appear on a balance sheet of such lessee in respect of such Capital
Lease.


 


“Cash
Equivalents” means: 
(i) marketable securities (A) issued or directly and
unconditionally guaranteed as to interest and principal by the United States
government, the government
of The Netherlands, the government of the United Kingdom
or any agency thereof or (B) issued by any agency of the United States government
the obligations of which are backed by the full faith and credit of the United
States, in each case maturing within one (1) year after acquisition thereof;
(ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after
acquisition thereof and having, at the time of acquisition, a rating of at
least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial
paper maturing no more than one year from the date of acquisition and, at the
time of acquisition, having a rating of at least A-1 from S&P or at least P-1
from Moody’s; (iv) certificates of deposit or bankers’ acceptances issued
or accepted by any Lender or by any commercial bank organized under the laws of
the United States of America or any state thereof or the District of Columbia, The Netherlands or the United Kingdom or that
is at least (A) ”adequately capitalized” (as defined in the regulations of
its primary Federal banking regulator) and (B) has Tier 1 capital (as
defined in such regulations) of not less than $250,000,000, in each case
maturing within one year after issuance or acceptance thereof; and
(v) shares of any money market mutual or similar funds that (A) has
substantially all of its assets invested continuously in the types of
investments referred to in clauses (i) through (iv) above, (B) has net
assets of not less than $500,000,000 and (C) has the highest rating
obtainable from either S&P or Moody’s.


 


“Certificate
of Exemption” has the meaning ascribed to it in Section 1.15.


 


“Change of
Control” means (i) prior to a Qualified Public Offering, any event,
transaction or occurrence as a result of which (a) Permitted Holders shall directly
or indirectly own less than fifty percent (50%) on a fully diluted basis of the
economic and/or voting rights associated with ownership of Holdings’ Stock
having the right to vote for the election of members of its Board of Directors
under ordinary circumstances or (ii) after a Qualified Public Offering, any
event, transaction or occurrence as a result of which (a) any Person or “group”


 


5





















 


(within the
meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as
in effect on the Closing Date), other than Permitted Holders, shall have
acquired beneficial ownership of 35% or more on a fully-diluted basis of the
economic and/or voting rights associated with ownership of Holdings’ Stock having the right
to vote for the election of members of its Board of Directors under ordinary
circumstances and Permitted Holders shall directly or indirectly own less than
such Person or “group” on a fully-diluted basis of the economic and voting
rights associated with ownership of Holdings’
Stock having the right to vote for the election of members of its Board of
Directors under ordinary circumstances, (b) Holdings or Permitted Holders cease
to own and control (directly or indirectly) all of the economic and voting
rights associated with all of the outstanding Stock of RPP USA, or (c) any “Change
of Control” as defined in any Senior Note Document or any Subordinated Debt
Agreement shall occur thereunder.


 


“CHAPS” means the Clearing House Automated Payments
System.


 


“CHAPS Fee” means £27.50 per payment or its Equivalent
Amount.


 


“Charges”
means all federal, state, county, city, municipal, local, foreign or other
governmental taxes (including premiums and other amounts owed to the PBGC at
the time due and payable), levies, assessments, charges, liens, claims or
encumbrances upon or relating to (a) the Collateral, (b) the Obligations, (c)
the employees, payroll, income or gross receipts of any Credit Party,
(d) any Credit Party’s ownership or use of any properties or other assets,
or (e) any other aspect of any Credit Party’s business.


 


“Chattel
Paper” means any “chattel paper,” as such term is defined in the Code (or its equivalent under Applicable Law),
including electronic chattel paper, now owned or hereafter acquired by any
Credit Party, wherever located.


 


“Closing
Checklist” means the schedule, including all appendices, exhibits or
schedules thereto, listing certain documents and information to be delivered in
connection with the Agreement, the other Loan Documents and the transactions
contemplated thereunder, substantially in the form attached hereto as Annex
C.


 


“Closing
Date” means January 24, 2005.


 


“Code”
means the Uniform Commercial Code as the same may, from time to time, be
enacted and in effect in the State of New York; provided, that to the
extent that the Code is used to define any term herein or in any Loan Document
and such term is defined differently in different Articles or Divisions of the
Code, the definition of such term contained in Article or Division 9 shall
govern; provided further, that in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or priority of, or
remedies with respect to, Agent’s or any Lender’s Lien on any Collateral is
governed by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of New
York, the term “Code” shall mean the Uniform Commercial Code as enacted
and in effect in such other jurisdiction solely for purposes of the provisions
thereof relating to such attachment, perfection, priority or remedies and for
purposes of definitions related to such provisions.


 


“Collateral”
means the property covered by the Security Agreements, the Mortgages and the
other Collateral Documents and any other property, real or personal, movable


 


6





















 


or immovable,
tangible or intangible, now existing or hereafter acquired, that may at any
time be or become subject to a security interest or Lien in favor of US Agent or the
Collateral Agent
on behalf of itself and US Lenders or
Secured Creditors, in favor of Netherlands Agent on behalf of itself,
Netherlands Security Trustee and Netherlands Lenders, or in favor of
Netherlands Security Trustee, on behalf of itself, Netherlands Agent and
Netherlands Lenders, to secure the US Obligations or the Netherlands Obligations, as the case
may be, or any portion thereof.


 


“Collateral
Agent” means GE Capital acting as collateral agent for the Secured
Creditors.


 


“Collateral
Audit” has the meaning ascribed to such term in Section 2.3.


 


“Collateral
Documents” means the Security Agreements, the Pledge Agreements, the
Guaranties, the Mortgages, the Patent Security Agreement, the Trademark
Security Agreement, the Copyright Security Agreement and all similar agreements
entered into guaranteeing payment of, or granting a Lien upon property as
security for payment of, the Obligations or any portion thereof.


 


“Commitments”
means, collectively, the Netherlands Commitments
and the US Revolving Loan Commitments, which shall equal the Dollar Equivalent of
$150,000,000 on the Closing Date.


 


“Commitment
Termination Date” means each of the US Commitment Termination Date and the
Netherlands Commitment Termination Date.


 


“Compliance
and Pricing Certificate” has the meaning ascribed to it in Section
4.1(k).


 


“Consolidated
Net Income” has the meaning ascribed to it in Schedule 2 to Exhibit
4.1(k).


 


“Constructive
Distributions” means constructive distributions made in cash or otherwise
(i) to Holdings relating to reimbursements of certain pension costs and (ii) to
Shell relating to reimbursements of certain pension costs in accordance with
the Master Sales Agreement dated July
10, 2000, as amended as of November 14, 2000, and related
ancillary agreements.


 


“Contingent
Obligation” means, as applied to any Person, any direct or indirect
liability of that Person:  (i) with
respect to Guaranteed Indebtedness and with respect to any Indebtedness, lease,
dividend or other obligation of another Person if the purpose or intent of the
Person incurring such liability, or the effect thereof, is to provide assurance
to the obligee of such liability that such liability will be paid or
discharged, or that any agreements relating thereto will be complied with, or
that the holders of such liability will be protected (in whole or in part)
against loss with respect thereto; (ii) with respect to any letter of
credit issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings; (iii) under any Hedge
Agreement, (iv) to make take-or-pay or similar payments if required
regardless of nonperformance by any other party or parties to an agreement, or
(v) pursuant to any agreement to purchase, repurchase or otherwise acquire
any obligation or any property constituting security therefor, to provide funds
for the payment or discharge of such obligation or


 


7





















 


to maintain
the solvency, financial condition or any balance sheet item or level of income
of another.  The amount of any Contingent
Obligation shall be equal to the amount of the obligation so guaranteed or
otherwise supported or, if not a fixed and determined amount, the maximum
amount so guaranteed.


 


“Contingent
Indemnification Obligations” means, as of any date of determination,
Obligations for taxes, expenses, costs, indemnification or damages (excluding
principal of, interest on and fees relating to Indebtedness and excluding
Letter of Credit Obligations) in respect of which no claim or demand for
payment has been made (and, in the case of Obligations for indemnification, no
notice for indemnification has been issued by the indemnitee).


 


“Contractual
Obligations” means, as applied to any Person, any indenture, mortgage, deed
of trust, contract, undertaking, agreement or other instrument to which that
Person is a party or by which it or any of its properties is bound or to which
it or any of its properties is subject including the Related Transactions
Documents.


 


“Control
Agreements” means tri-party deposit account, securities account or
commodities account control agreements by and among the applicable Credit
Party, Applicable Agent,
Collateral Agent or Netherlands Security Trustee and the depository bank,
securities intermediary or commodities intermediary, and each in form and
substance reasonably satisfactory in all respects to Applicable Agent and in
any event providing to Applicable Agent
“control” of such deposit account, securities account and related financial
assets and securities entitlements or commodities account and related
commodities contracts within the meaning of Articles 8 and 9 of the Code (or similar provisions of its equivalent
under Applicable Law).


 


“Copyright
License” means any and all rights now owned or hereafter acquired by any
Credit Party under any written agreement granting any right to use any
Copyright or Copyright registration.


 


“Copyright
Security Agreements” means the US
Copyright Security Agreements and the Netherlands Copyright Security
Agreements.


 


“Copyrights”
means all of the following now owned or hereafter adopted or acquired by any
Credit Party: (a) all copyrights and General Intangibles of like nature
(whether registered or unregistered), all registrations and recordings thereof,
and all applications in connection therewith, including all registrations,
recordings and applications in the United States Copyright Office or Netherlands Patent Office or European Patent
Office or in any similar office or agency of the United
States, any state or territory thereof, or any other country or any political
subdivision thereof; and (b) all reissues, extensions or renewals thereof.


 


“Credit
Facility” shall mean the US Commitments and extensions of credit
thereunder or the Netherlands Commitments and extensions of credit thereunder,
as applicable.


 


“Credit
Parties” means the US Credit Parties and the Netherlands Credit Parties.


 


“Default”
means any event that, with the passage of time or notice or both, would, unless
cured or waived, become an Event of Default.


 


“Default
Rate” has the meaning ascribed to it in Section 1.3(d).


 


8





















 


“Disbursement
Account” means, collectively, the US Euro Disbursement Account, the US
Disbursement Account and the Netherlands Disbursement Account.


 


“Disclosure
Schedules” means the Schedules prepared by Borrowers and denominated as Schedules
2.7 through 5.18 in the index to the Agreement.


 


“Documents”
means any “document,” as such term is defined in the Code (or its equivalent under Applicable Law),
including electronic documents, now owned or hereafter acquired by any Credit
Party, wherever located.


 


“Dollar
Equivalent” means the amount in Dollars for any amount denominated in
Dollars and the Equivalent Amount in Dollars of any amount denominated in any
other currency.


 


“Dollars”
or “$” means lawful currency of the United States of America.


 


“Domestic
Subsidiary” means a Subsidiary of a US Borrower
that is organized under the laws of any state of the United States of America.


 


“EBITDA”
has the meaning ascribed to it in Schedule 1 to Exhibit 4.1(k).


 


“Eligible
Netherlands Accounts” has the meaning ascribed to it in Schedule 1 to Exhibit
4.1(d)(ii).


 


“Eligible
US Accounts” has the meaning ascribed to it in Schedule 1 to Exhibit
4.1(d)(i).


 


“Eligible
US Inventory”
has the meaning ascribed to it in Schedule 1 to Exhibit 4.1(d)(i).


 


“Eligible US PPE” has the meaning
ascribed to it in Schedule 1 to Exhibit 4.1(d)(i).


 


“Environmental
Claims” shall mean all accusations, allegations, notices of violation,
liens, claims, demands, suits, or causes of action for any damage, including,
without limitation, personal injury or property damage, arising out of or
related to Environmental Conditions or pursuant to applicable Environmental
Laws.


 


“Environmental
Conditions” shall mean the presence of Hazardous Materials in the
environment (including natural resources, soil, surface water, ground water,
any present or potential drinking water supply, subsurface strata or ambient
air) relating to or arising out of the business of the Credit Parties or any of
their Subsidiaries.


 


“Environmental
Laws” means all applicable federal, state, provincial,
local and foreign laws, statutes, ordinances, codes,
rules, standards, orders-in-council and regulations, now or hereafter in
effect, and any applicable judicial or administrative interpretation thereof,
including any applicable judicial or administrative order, consent decree,
order or judgment, imposing liability or standards of conduct for or relating
to the regulation and protection of human health, safety, the environment and
natural resources (including ambient air, surface water, groundwater, wetlands,
land surface or subsurface strata, wildlife, aquatic species and
vegetation).  Environmental Laws include,
without limitation, the Comprehensive Environmental


 


9





















 


Response,
Compensation, and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) (“CERCLA”);
the Hazardous Materials Transportation Authorization Act of 1994 (49 U.S.C. §§
5101 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C. §§ 136 et seq.) (“FIFRA”); the Solid Waste Disposal Act
(42 U.S.C. §§ 6901 et seq.); the Toxic Substance Control Act (15
U.S.C. §§ 2601 et seq.); the Food Quality Protection Act of 1996 (7
U.S.C. §§ 136 et seq.);  the
Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.);
the Oil Pollution Act of 1990 (33 U.S.C. §§ 2701 et seq.); the Clean Air
Act (42 U.S.C. §§ 7401 et seq.); the Federal Water Pollution Control Act
(33 U.S.C. §§ 1251 et seq.); the Occupational Safety and Health Act (29
U.S.C. §§ 651 et seq.); the Safe Drinking Water Act (42 U.S.C.
§§ 300(f) et seq.); and any and all regulations promulgated
thereunder and all analogous state, local and foreign counterparts or
equivalents and any transfer of ownership notification or approval statutes.


 


“Environmental
Liabilities” means, with respect to any Person, all liabilities,
obligations, responsibilities, response, remedial and removal costs, investigation
and feasibility study costs, capital costs, operation and maintenance costs,
losses, damages, punitive damages, property damages, natural resource damages,
consequential damages, treble damages, costs and expenses (including all
reasonable fees, disbursements and expenses of counsel, experts and
consultants), fines, penalties, sanctions and interest incurred as a result of
any claim, suit, action, investigation, proceeding or demand by any Person,
whether based in contract, tort, implied or express warranty, strict liability,
criminal or civil statute or common law, including any arising under or related
to any Environmental Laws, Environmental Permits, or in connection with any
Release or threatened Release or presence of a Hazardous Material whether on,
at, in, under, from or about or in the vicinity of any real or personal
property.


 


“Environmental
Permits” means all permits, licenses, authorizations, certificates,
approvals or registrations required by any Governmental Authority under any
Environmental Laws.


 


“Equipment”
means all “equipment,” as such term is defined in the Code (or its equivalent under Applicable Law),
now owned or hereafter acquired by any Credit Party, wherever located and, in
any event, including all such Credit Party’s machinery and equipment, including
processing equipment, conveyors, machine tools, data processing and computer
equipment, including embedded software and peripheral equipment and all
engineering, processing and manufacturing equipment, office machinery, furniture,
materials handling equipment, tools, attachments, accessories, automotive
equipment, trailers, trucks, forklifts, molds, dies, stamps, motor vehicles,
rolling stock and other equipment of every kind and nature, trade fixtures and
fixtures not forming a part of real property, together with all additions and
accessions thereto, replacements therefor, all parts therefor, all substitutes
for any of the foregoing, fuel therefor, and all manuals, drawings,
instructions, warranties and rights with respect thereto, and all products and
proceeds thereof and condemnation awards and insurance proceeds with respect
thereto.


 


“Equivalent
Amount” means, on any date of determination, with respect to obligations or
valuations denominated in one currency (the “first currency”), the amount of
another currency (the “second currency”) which would result from the conversion
of the relevant amount of the first currency into the second currency, at the
rate used by Applicable Agent’s
treasury function (as described on Schedule 1.17(d), as revised from time to time
by Applicable Agent) on such date or, if such date is not a
Business Day, on the Business Day immediately


 


10





















 


preceding such
date of determination, or at such other rate as may have been agreed in writing
between the Applicable Borrower(s)
and Applicable Agent.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any regulations promulgated thereunder.


 


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


 


“ERISA
Event” means, with respect to any Credit Party or any ERISA Affiliate,
(a) any event described in Section 4043(c) of ERISA with respect to a
Title IV Plan (other than an event for which notice is waived under applicable
regulations); (b) the withdrawal of any Credit Party or ERISA Affiliate
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 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;
(d) the institution of proceedings to terminate a Title IV Plan or
Multiemployer Plan by the PBGC; (e) the failure by any Credit Party or
ERISA Affiliate to make when due required contributions to a Multiemployer Plan
or Title IV Plan unless such failure is cured within 30 days; (f) any
other event or condition that might reasonably be expected to constitute
grounds 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 for the
imposition of liability under Section 4069 or 4212(c) of ERISA; (g) the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
reorganization or insolvency of a Multiemployer Plan under Section 4241 or 4245
of ERISA; (h) the loss of a Qualified Plan’s qualification or tax exempt
status; or (i) 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 IRC.


 


“Euro”
and “€” means the single currency of the Participating Member States of the
European Union.


 


“Euro Equivalent” means, for any Loans outstanding under the
Netherlands Commitment, the amount thereof denominated in Euros and the
Equivalent Amount in Euros of any such Loan denominated in Dollars.


 


“EURO LIBOR”
means, for each LIBOR Period, the offered rate for deposits in Euros in the European
interbank market for the relevant interest period which is determined by the
Banking Federation of the European Union, and displayed on the appropriate page
of the Telerate Screen, at or about 11:00 am (Brussels time) on the relevant
quotation date for the delivery of Euros
on the first day of the relevant interest period.


 


“EURO LIBOR
Breakage Fee” means an amount equal to the amount of any losses, expenses,
liabilities (including, without limitation, any loss (including interest paid)
and lost opportunity cost in connection with the re-employment of such funds,
but excluding any loss of Applicable Margin) that any Lender may sustain as a
result of (i) any default by any Borrower in making any borrowing of,
conversion into or continuation of any EURO LIBOR Loan


 


11





















 


following the Applicable Borrower
Representative’s delivery to Applicable
Agent of any EURO LIBOR Loan request in respect thereof or (ii) any
payment of a EURO LIBOR Loan on any day that is not the last day of the LIBOR
Period applicable thereto (regardless of the source of such prepayment and
whether voluntary, by acceleration or otherwise). For purposes of calculating
amounts payable to a Lender under Section 1.4(g), each Lender shall
be deemed to have actually funded its relevant EURO LIBOR Loan through the
purchase of a deposit bearing interest at EURO LIBOR in an amount equal to the
amount of that EURO LIBOR Loan and having a maturity and repricing
characteristics comparable to the relevant LIBOR Period; provided, however,
that each Lender may fund each of its EURO LIBOR Loans in any manner it sees
fit, and the foregoing assumption shall be utilized only for the calculation of
amounts payable under Section 1.4(g).


 


“EURO LIBOR
Loans” means a Loan or any portion thereof bearing interest by reference to
EURO LIBOR.


 


“European
Collection Account” means any deposit account maintained at a bank
acceptable to Netherlands Agent in the name of Netherlands Security Trustee,
into which any Netherlands Borrower shall direct electronic payments on its
Accounts to be made.


 


“Event of
Default” has the meaning ascribed to it in Section 6.1.


 


“Excluded
Taxes” has the meaning ascribed to it in Section 1.15(a).


 


“Existing
Credit Agreement” has the meaning ascribed to it in the Recitals.


 


“Extended
Netherlands Account” means any Account owned by a Netherlands Borrower the
payment terms of which provide that payment is not due within 45 days but is
due within 61 days after the original date of the invoice with respect to such
Account.


 


“Extended
US Account” means any Account owned by a US Borrower the payment terms of
which provide that payment is not due within 60 days but is due within 91 days
after the original date of the invoice with respect to such Account.


 


“Fair Labor
Standards Act” means the Fair Labor Standards Act, 29 U.S.C. §201 et seq.


 


“Federal
Funds Rate” means, for any day, a floating rate equal to the weighted
average of the rates on overnight federal funds transactions among members of
the Federal Reserve System, as determined by US Agent
in its sole discretion, which determination shall be final, binding and
conclusive (absent manifest error).


 


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


 


“Fees”
means any and all fees payable to US
Agent, Netherlands Agent, Netherlands Security Trustee,
Collateral Agent or any Lender pursuant to the Agreement or any of the other
Loan Documents.


 


12





















 


“Financial
Statements” means the consolidated income statements, statements of cash
flows and balance sheets of RPP USA and its Subsidiaries described in Section
5.5 or delivered in accordance with Section 4.1, as applicable.


 


“Fiscal
Month” means any of the monthly accounting periods of Borrowers.


 


“Fiscal
Quarter” means any of the quarterly accounting periods of Borrowers.


 


“Fiscal
Year” means any of the annual accounting periods of Borrowers ending on the
last day of the fourth Fiscal Quarter.


 


“Fixed
Charges” has the meaning ascribed to it in Schedule 2 to Exhibit 4.1(k).


 


“Fixed
Charge Coverage Ratio” has the meaning ascribed to it in Schedule 2 to Exhibit
4.1(k).


 


“Fixtures”
means all “fixtures” as such term is defined in the Code (or its equivalent under Applicable Law),
now owned or hereafter acquired by any Credit Party.


 


“Foreign
Lender” and “Foreign Lenders” have the meanings ascribed to such
terms in Section 1.15.


 


“Foreign
Security Agreement” means each agreement now or hereafter executed and
delivered by any Credit Party that is a Foreign Subsidiary that creates a
mortgages, charge, security interest or other Lien over any assets of such
Foreign Subsidiary for the benefit of Netherlands Security Trustee, Netherlands
Agent and Netherlands Lenders to secure the Netherlands Obligations, including
but not limited to:


 


(i)                                     the
Pledge Agreement by Resolution Holdings B.V. and Resolution Research Nederland
B.V. pledging ownership interests in Resolution Research Belgium S.A. to the
Netherlands Security Trustee;


 


(ii)                                  the
Spanish Security Agreement;


 


(iii)                               the
Debenture by Resolution (UK) Performance Products Limited in favor of the
Netherlands Security Trustee;


 


(iv)                              the
Equitable Mortgage of Shares by Resolution Holdings B.V. mortgaging its
ownership interest in Resolution (UK) Performance Products Limited in favor of
the Netherlands Security Trustee;


 


(v)                                 the
Security Transfer Agreement by Resolution Deutschland GmbH in favor of the
Netherlands Security Trustee,


 


(vi)                              the
Share Pledge Agreement by Resolution Holdings B.V. pledging ownership interest
in Resolution Deutschland GmbH to the Netherlands Security Trustee;


 


(vii)                           the
Pledge of Moveable Assets by Resolution Holdings B.V., Resolution Europe B.V.
and Resolution Research Nederland B.V. in favor of the Netherlands Security
Trustee;


 


13





















 


(viii)                        the
undisclosed Pledge of Receivables and the disclosed Pledge of Receivables, each
by Resolution Holdings B.V., Resolution Europe B.V. and Resolution Research
Nederland B.V. in favor of the Netherlands Security Trustee;


 


(ix)                                the
Pledge of Intellectual Property Rights by Resolution Holdings B.V., Resolution
Europe B.V. and Resolution Research Nederland B.V. in favor of the Netherlands
Security Trustee; and


 


(x)                                   the
Deed of Pledge of shares in the capital of Resolution Europe B.V. and
Resolution Research Nederland B.V. in favor of the Netherlands Security
Trustee.


 


“Foreign
Subsidiary” means a Subsidiary of a US Borrower
that is not a Domestic Subsidiary.


 


“Funded
Debt” means, with respect to any Person, without duplication, all
Indebtedness for borrowed money evidenced by notes, bonds, debentures, or
similar evidences of Indebtedness and that by its terms matures more than one
year from, or is directly or indirectly renewable or extendible at such Person’s
option under a revolving credit or similar agreement obligating the lender or
lenders to extend credit over a period of more than one year from the date of
creation thereof, and specifically including Capital Lease Obligations, current
maturities of long-term debt, revolving credit and short-term debt extendible
beyond one year at the option of the debtor, and also including, in the case of
US Borrowers, the US Obligations
(including US Letter of
Credit Obligations) and in the case of Netherlands Borrowers, the Netherlands
Obligations (including Netherlands Letter of Credit
Obligations) and, without duplication, Guaranteed Indebtedness consisting of
guaranties of Funded Debt of other Persons.


 


“Funding
Date” has the meaning ascribed to it in Section 7.2.


 


“GAAP”
means generally accepted accounting principles in the United States of America, in respect of the US Credit Parties, and in
The Netherlands, in respect of the Netherlands Credit Parties, in each case
consistently applied.


 


“GE Capital”
has the meaning ascribed to it in the Preamble.


 


“GE Global
Fee Letter” has the meaning ascribed to it in Section 1.4(a).


 


“GE Netherlands” has the meaning ascribed to it in the
Preamble.


 


“General
Intangibles” means “general intangibles,” as such term is defined in the
Code (or its equivalent under Applicable Law),
now owned or hereafter acquired by any Credit Party, including all right, title
and interest that such Credit Party may now or hereafter have in or under any
Contractual Obligation, all payment intangibles, customer lists, Licenses,
Copyrights, Trademarks, Patents, and all applications therefor and reissues,
extensions or renewals thereof, rights in Intellectual Property, interests in
partnerships, joint ventures and other business associations, licenses,
permits, copyrights, trade secrets, proprietary or confidential information,
inventions (whether or not patented or patentable), technical information,
procedures, designs, knowledge, know-how, software, data bases, data, skill,
expertise, experience, processes, models, drawings, materials and records,
goodwill (including the goodwill associated with any Trademark or Trademark License),
all rights and claims in or under insurance policies (including


 


14





















 


insurance for
fire, damage, loss and casualty, whether covering personal property, real
property, tangible rights or intangible rights, all liability, life, key man
and business interruption insurance, and all unearned premiums), uncertificated
securities, choses in action, deposit, checking and other bank accounts, rights
to receive tax refunds and other payments, rights to receive dividends,
distributions, cash, Instruments and other property in respect of or in
exchange for pledged Stock and Investment Property, rights of indemnification,
all books and records, correspondence, credit files, invoices and other papers,
including all tapes, cards, computer runs and other papers and documents in the
possession or under the control of such Credit Party or any computer bureau or
service company from time to time acting for such Credit Party.


 


“Goods”
means any “goods,” as such term is defined in the Code (or its equivalent under Applicable Law),
now owned or hereafter acquired by any Credit Party, wherever located,
including embedded software to the extent included in “goods” as defined in the
Code (or its equivalent under Applicable Law),
manufactured homes, standing timber that is cut and removed for sale and unborn
young of animals.


 


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


 


“Guaranteed
Indebtedness” means, as to any Person, any obligation of such Person
guaranteeing, providing comfort or otherwise supporting any Indebtedness,
lease, dividend, or other obligation (“primary obligation”) of any other
Person (the “primary obligor”) in any manner, including any obligation
or arrangement of such Person to (a) purchase or repurchase any such
primary obligation, (b) advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency or any balance sheet condition of the primary obligor,
(c) purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation, (d) protect the beneficiary
of such arrangement from loss (other than product warranties given in the
ordinary course of business) or (e) indemnify the owner of such primary
obligation against loss in respect thereof. 
The amount of any Guaranteed Indebtedness at any time shall be deemed to
be an amount equal to the lesser at such time of (x) the stated or
determinable amount of the primary obligation in respect of which such
Guaranteed Indebtedness is incurred and (y) the maximum amount for which
such Person may be liable pursuant to the terms of the instrument embodying
such Guaranteed Indebtedness, or, if not stated or determinable, the maximum
reasonably anticipated liability (assuming full performance) in respect
thereof.


 


“Guaranties” means each of the US Guaranty, the Netherlands Guaranty
and any other guaranty executed by any Guarantor in favor
of US Agent and US Lenders, in respect of the US Obligations, or
Netherlands Security Trustee, Netherlands Agent and Netherlands Lenders, in
respect of the Netherlands Obligations.


 


“Guarantors”
means with respect to the US Obligations, Holdings, each US Borrower, each
Domestic Subsidiary of RPP USA, each Foreign Subsidiary of Holdings that has
guaranteed the Senior Notes or the
Subordinated Debt and each other Person, if any, that executes a guaranty or
other similar agreement in favor of US Agent,
for itself and the ratable


 


15





















 


benefit of US Lenders in
connection with the transactions contemplated by the Agreement and the other
Loan Documents, and with
respect to the Netherlands Obligations, Netherlands Holdings, the Netherlands
Borrowers, any other Subsidiaries of Netherlands Holdings that is or has become
a Material Subsidiary, and each other Person, if any, that
executes a guaranty or other similar agreement in favor of Netherlands Agent, for itself and the ratable
benefit of Netherlands Lenders in connection with the
transactions contemplated by the Agreement and the other Loan Documents.


 


“Hazardous
Material” means any substance, material or waste that is regulated by, or
forms the basis of liability now or hereafter under, any Environmental Laws,
including any material or substance that is (a) defined as a “solid waste,”
“hazardous waste,” “hazardous material,” “hazardous substance,” “extremely
hazardous waste,”  “restricted hazardous
waste,” “pollutant,” “contaminant,” “hazardous constituent,” “special waste,” “toxic
substance” or other similar term or phrase under any Environmental Laws, or
(b) petroleum or any fraction or by-product thereof, asbestos,
polychlorinated biphenyls (PCB’s), or any radioactive substance.


 


“Hedge Agreements” means any US Hedge Agreement.


 


“Holdings”
has the meaning ascribed to it in the preamble and includes all successors and
assigns of such Person.


 


“Holdings
PIK Junior Subordinated Notes” shall mean the Initial Holdings PIK Junior
Subordinated Notes and the New Holdings PIK Junior Subordinated Notes.


 


“Holdings
PIK Junior Subordinated Notes Indenture” that certain Indenture, dated as
November 14, 2000, by and between Holdings and The Bank of New York, as
Trustee.


 


“Indebtedness”
means, with respect to any Person, without duplication (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property payment for which is deferred six (6) months or more, but
excluding obligations to trade creditors incurred in the ordinary course of
business that are unsecured and not overdue by more than six (6) months unless
being contested in good faith, (b) all reimbursement and other obligations
with respect to letters of credit, bankers’ acceptances and surety bonds,
whether or not matured, (c) all obligations evidenced by notes, bonds,
debentures or similar instruments, (d) all indebtedness 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), (e) all Capital Lease Obligations
and the present value (discounted at the US
Index Rate as in effect on the Closing Date) of future rental payments under
all synthetic leases, (f) all obligations of such Person under commodity
purchase or option agreements or other commodity price hedging arrangements, in
each case whether contingent or matured, (g) all obligations of such
Person under any Hedge Agreement, in each case whether contingent or matured,
(h) all Indebtedness 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 or other assets (including accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, (i) ”earnouts”
and similar payment obligations, and (j) the Obligations.  Notwithstanding the foregoing, however,
Indebtedness shall not include (i) advances or deposits paid to Borrowers or
any of their Subsidiaries by their respective customers in the ordinary course
of business or


 


16





















 


(ii) competitive
allowances given by Borrowers or any of their respective Subsidiaries to their
respective customers in the ordinary course of business.  For purposes of determining the amount of
attributed Indebtedness in clause (g) above, the “principal amount” of any
obligations under any Hedge Agreement shall be the Net Mark-to-Market Exposure
of such Indebtedness as of the end of the most recently ended Fiscal Month.


 


“Insolvency
Law” shall mean any applicable insolvency or other similar law of any
jurisdiction, including any law of any jurisdiction permitting a debtor to
obtain a stay or a compromise of the claims of its creditors against it.


 


“Insolvent” means, in relation to an Account Debtor,
any of the matters in paragraphs (a) to (f) immediately following:


 


(a)                                  in relation to an individual: bankruptcy or
sequestration or the granting of a trust deed for the benefit of creditors;


 


(b)                                 in relation to a company: a resolution for
voluntary winding up by reason of insolvency, a winding up order, a resolution
by its directors or members to apply for an administration order, the
appointment of an administrator under the UK Insolvency Act 1986 or the
appointment of a receiver (whether in or out of court) or an administrative
receiver of any of its assets or income;


 


(c)                                  in relation to a partnership: its bankruptcy,
winding up or an administration order or the bankruptcy of any partner;


 


(d)                                 in relation to any person: any proposal to
enter into a voluntary arrangement under the UK Insolvency Act 1986 (including
any moratorium) or any formal or informal arrangement generally for the benefit
of creditors;


 


(e)                                  the taking of any formal steps for the commencement
of any proceedings in respect of any of the above matters in clauses (a) to (d)
above, including submitting to any applicable Person any application for the
commencement of an insolvency proceeding; or


 


(f)                                    where any Account Debtor is resident or
incorporated outside the United Kingdom, the occurrence of anything analogous
to or having a substantially similar effect to any of the matters referred to
in clauses (a) to (e) above under the laws of the applicable jurisdiction.


 


“Instruments”
means all “instruments,” as such term is defined in the Code (or its equivalent under Applicable Law)
now owned or hereafter acquired by any Credit Party, wherever located, and, in
any event, including all certificated securities, all certificates of deposit,
and all promissory notes and other evidences of indebtedness, other than
instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper.


 


“Intellectual
Property” means any and all Licenses, Patents, Copyrights, Trademarks, and
the goodwill associated with such Trademarks.


 


17





















 


“Intercompany Debt” has the meaning ascribed to it in Section 9.22(a).


 


“Intercompany
Notes” has the meaning ascribed to it in Section 3.1.


 


“Intercreditor
Agreement” shall mean the amended and restated intercreditor agreement,
dated as of the Closing Date, among GE Capital as Collateral Agent (as defined
therein) for the benefit of the First Lien Creditors (as defined therein), GE
Capital, as Administrative Agent (as defined in therein) for the benefit of the
Bank Lender Creditors (as defined therein), and The Bank of New York, as
trustee) for its benefit and the benefit of the holders from time to time of
the Additional Senior Secured Notes (as defined therein), and acknowledged and
agreed to by the US Credit Parties (as defined in, or incorporated by reference
into, the Security Agreement referred to therein) from time to time party
hereto.


 


“Interest
Expense” has the meaning ascribed to it in Section 4.4 of Schedule 1
to Exhibit 4.1(k).


 


“Interest
Payment Date” means (a) as to any US Index Rate Loan and Netherlands Base
Rate Loan, the first Business Day of each month to occur while such Loan is
outstanding, and (b) as to any LIBOR Loan or EURO LIBOR Loan the last day
of the applicable LIBOR Period; provided, that in the case of any LIBOR
Period greater than three months in duration, interest shall be payable at
three month intervals and on the last day of such LIBOR Period; provided
further that, in addition to the foregoing, each of (x) the date
upon which all of the Commitments have been terminated and the Loans have been
paid in full and (y) each Commitment Termination Date shall be deemed to
be an “Interest Payment Date” with respect to any interest that has then
accrued under the Agreement.


 


“Interim
Account” means:


 


(a)                                  with respect to payments in Euros:


 


BNP
Paribas, Paris


Swift:  BNPAFRPPPAC


Account:  GE Leveraged Loans Limited


Account
No.:   00010728256


IBAN
= FR76 3000 4008 2800 0107 2825 676


Reference:  Resolution Europe B.V.


 


(b)                                 with respect to payments in British pounds:


 


Barclays
Bank, London


Swift:  BARCGB22


Sort
Code:  20-00-00


Account:  GE Leverage Loans Limited


Account
No.:  50555339


Reference:  Resolution Europe B.V.


18





















 


(c)                                  with respect to payments in Dollars:


 


BNP
Paribas, New York


SWIFT:
BNPAUS3N


Account:  BNP Paribas, Paris


SWIFT:  BNPAFRPPPAC


Account
No:  0200 194 093 00136


For
further credit to GE Leveraged Loans Limited


Account
No:  00014017469


 


Reference:  Resolution Europe B.V.


 


“Inventory”
means any “inventory,” as such term is defined in the Code (or its equivalent under Applicable Law),
now owned or hereafter acquired by any Credit Party, wherever located,
including inventory, merchandise, goods and other personal property that are
held by or on behalf of any Credit Party for sale or lease or are furnished or
are to be furnished under a contract of service, or that constitute raw
materials, work in process, finished goods, returned goods, supplies or
materials of any kind, nature or description used or consumed or to be used or
consumed in such Credit Party’s business or in the processing, production,
packaging, promotion, delivery or shipping of the same, including all supplies
and embedded software.


 


“Investment”
means (i) any direct or indirect purchase or other acquisition by Borrowers
or any of their Subsidiaries of any Stock, or other ownership interest in, any
other Person, and (ii) any direct or indirect loan, advance or capital
contribution by Borrowers or any of their Subsidiaries to any other Person,
including all indebtedness and accounts receivable from that other Person that
are not current assets or did not arise from sales to that other Person in the
ordinary course of business.


 


“Investment
Property” means all “investment property,” as such term is defined in the
Code (or its equivalent under Applicable Law),
now owned or hereafter acquired by any Credit Party, wherever located,
including: (i) all securities, whether certificated or uncertificated,
including stocks, bonds, interests in limited liability companies, partnership
interests, treasuries, certificates of deposit, and mutual fund shares;
(ii) all securities entitlements of any Credit Party, including the rights
of such Credit Party to any securities account and the financial assets held by
a securities intermediary in such securities account and any free credit
balance or other money owing by any securities intermediary with respect to
that account; (iii) all securities accounts of any Credit Party;
(iv) all commodity contracts of any Credit Party; and (v) all
commodity accounts held by any Credit Party.


 


“IRC”
means the Internal Revenue Code of 1986, as amended, and all regulations
promulgated thereunder.


 


“IRS”
means the Internal Revenue Service of the United States.


 


“Issuance”
and “Issue” means, in relation to any Letter of Credit, the original
issuance thereof, any increase in the amount thereof and any extension of the
expiry date thereof.


 


“Joint
Venture” shall mean any Investment by any Person into another Person made
pursuant to a contractual arrangement where such Person owns 50% or less of the
Stock of such other Person.


 


19





















 


“Judgment
Conversion Date” has the meaning ascribed to it in Section 1.18(a).


 


“Judgment
Currency” has the meaning ascribed to it in Section 1.18(a).


 


“L/C Issuer” means, collectively, the US L/C Issuer and
the Netherlands L/C Issuer.


 


“Lenders”
means, collectively, the US Lenders and the
Netherlands Lenders.


 


“Letter of
Credit Fee” means,
collectively, the US Letter of Credit Fee and the Netherlands Letter of Credit
Fee.


 


“Letter of
Credit Obligations” means, collectively,
the US Letter of Credit Obligations and the Netherlands Letter of Credit
Obligations


 


“Letters of
Credit” means, collectively,
the US Letters of Credit and the Netherlands Letters of Credit.


 


“LIBOR
Breakage Fee” means an amount equal to the amount of any losses, expenses,
liabilities (including, without limitation, any loss (including interest paid)
and lost opportunity cost in connection with the re-employment of such funds,
but excluding any loss of Applicable Margin) that any US Lender may sustain as
a result of (i) any default by any US Borrower in making any borrowing of,
conversion into or continuation of any LIBOR Loan following US Borrower
Representative’s delivery to US Agent
of any LIBOR Loan request in respect thereof or (ii) any payment of a LIBOR
Loan on any day which is not the last day of the LIBOR Period applicable
thereto (regardless of the source of such prepayment and whether voluntary, by
acceleration or otherwise).  For purposes
of calculating amounts payable to a Lender under Section 1.4(e), each US Lender shall be
deemed to have actually funded its relevant LIBOR Loan through the purchase of
a deposit bearing interest at LIBOR in an amount equal to the amount of that
LIBOR Loan and having a maturity and repricing characteristics comparable to
the relevant LIBOR Period; provided; however, that each Lender may fund each of its
LIBOR Loans in any manner it sees fit, and the foregoing assumption shall be
utilized only for the calculation of amounts payable under Section 1.4(e).


 


“LIBOR
Business Day” means (i) as to LIBOR Loans a Business Day on which banks in
the City of London are generally open for interbank or foreign exchange
transactions and (ii) as to EURO LIBOR Loans, any day when the Trans-European
Real-time Gross Settlement Express Transfer Payment System is open for
settlement of payments in Euros.


 


“LIBOR
Loans” means a Loan or any portion thereof bearing interest by reference to
the LIBOR Rate.


 


“LIBOR
Period” means, with respect to any LIBOR Loan or EURO LIBOR Loan, each
period commencing on a LIBOR Business Day selected by US Borrower
Representative or Netherlands Borrower Representative pursuant to the Agreement
and ending (i) for the period commencing on the Closing Date and ending on the earlier of the completion of Primary
Syndication or 45 days thereafter, one week and (ii) for
all other periods, one, two, three or six months thereafter, as selected by US Borrower
Representative’s or Netherlands Borrower Representative’s, as the case may be,
irrevocable notice to US
Agent or Netherlands Agent, as 


 


20





















 


the case may
be, as set forth in Section 1.3(e); provided, that the
foregoing provision relating to LIBOR Periods is subject to the following:


 


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


 


(b)                                 any LIBOR Period that would otherwise extend
beyond the date set forth in clause (a) of the definition of “US Commitment
Termination Date” shall end two (2) LIBOR Business Days prior to such date;


 


(c)                                  any LIBOR Period that begins on the last
LIBOR 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 LIBOR
Period) shall end on the last LIBOR Business Day of a calendar month;


 


(d)                                 US Borrower Representative and Netherlands
Borrower Representative shall select LIBOR Periods so as not to require a
payment or prepayment of any LIBOR Loan during a LIBOR Period for such Loan;
and


 


(e)                                  US Borrower Representative and Netherlands
Borrower Representative shall select LIBOR Periods so that, in the aggregate,
there shall be no more than nine (9) separate EURO LIBOR Loans and LIBOR Loans
in existence at any one time.


 


“LIBOR Rate” means
for each LIBOR Period, a rate of interest determined by US
Agent equal to:


 


(a)                                  the offered rate for deposits in United
States Dollars in the London Interbank Market for the applicable LIBOR Period
that appears on Telerate Page 3750 as of 11:00 a.m. (London time), on the
second full LIBOR Business Day next preceding the first day of such LIBOR
Period (unless such date is not a Business Day, in which event the next
succeeding Business Day will be used); divided by


 


(b)                                 a number equal to 1.0 minus the
aggregate (but without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on the day that is two (2) LIBOR
Business Days prior to the beginning of such LIBOR Period (including basic,
supplemental, marginal and emergency reserves under any regulations of the
Federal Reserve Board or other Governmental Authority having jurisdiction with
respect thereto, as now and from time to time in effect) for Eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Federal Reserve Board that are required to be maintained by a member bank of
the Federal Reserve System.


 


If such
interest rates shall cease to be available from Telerate News Service, the
LIBOR Rate shall be determined from such financial reporting service or other
information as shall be available to US
Agent.


 


21





















 


“License”
means any Copyright License, Patent License, Trademark License or other license
of rights or interests now held or hereafter acquired by any Credit Party.


 


“Lien”
means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, lien, charge, claim, security interest, easement or encumbrance,
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever (including any lease or title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of, or agreement to give, any financing
statement perfecting a security interest under the Code or comparable law of
any jurisdiction); provided, that in no event shall any operating lease,
option or other agreement to sell be deemed a Lien.


 


“Litigation”
has the meaning ascribed to it in Section 4.1(j).


 


“Loan
Account” has the meaning ascribed to it in Section 1.13.


 


“Loan
Documents” means the Agreement, the Notes, the Collateral Documents, the GE
Global Fee Letter, the Intercreditor Agreement and all other agreements,
instruments, documents and certificates identified in the Closing Checklist
executed and delivered to, or in favor of, US Agent
or any US Lenders, Netherlands Agent or any
Netherlands Lenders, Netherlands Security Trustee or
Collateral Agent and including all other pledges, powers of attorney, consents,
assignments, contracts, notices, and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any Credit Party, or
any employee of any Credit Party, and delivered to US Agent or any US Lenders, Netherlands Agent or any
Netherlands Lenders, Netherlands Security Trustee or
Collateral Agent in connection with the Agreement or the transactions
contemplated thereby.  Any reference in
the Agreement or any other Loan Document to a Loan Document shall include all
appendices, exhibits or schedules thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to the Agreement or
such Loan Document as the same may be in effect at any and all times such
reference becomes operative.


 


“Loans”
means, collectively, the US Revolving Loan and
the Netherlands Revolving Loan.


 


“Mandatory Costs” has the meaning ascribed to is in Section 9.21.


 


“Master
Documentary Agreement” means the Master Agreement for Documentary Letters
of Credit, dated as of the Closing Date, between US Borrowers and GE Capital
and any similar agreement executed and delivered with respect to Netherlands
Letters of Credit, if any.


 


“Master
Standby Agreement” means the Master Agreement for Standby Letters of
Credit, dated as of the Closing Date, between US Borrowers and GE Capital and
any similar agreement executed and delivered with respect to Netherlands
Letters of Credit, if any.


 


“Material
Adverse Effect” means a material adverse effect on (a) the financial
condition of the Credit Parties, taken as a whole or (b) the Collateral,
taken as a whole.


 


22





















 


“Material Subsidiary” means any of (i) Resolution Holdings, BV,
Resolution Iberica Performance Products, S.A., Resolution (UK) Performance
Products Limited, Resolution Deutschland GMBH and Resolution Research Nederland
BV, and (ii) any Subsidiary of Netherlands Holdings, the book value of the
assets of which equal or exceed €5,000,000 (or an Equivalent Amount in any
other currency) at any time.


 


“Maximum
Lawful Rate” has the meaning ascribed to it in Section 1.3(f).


 


“Moody’s”
means Moody’s Investor’s Services, Inc.


 


“Mortgages”
means each of the mortgages, debentures, deeds of trust, Deeds of Hypothec,
leasehold mortgages, leasehold deeds of trust, collateral assignments of leases
or other real estate security documents delivered by any US Credit Party to US Agent, on behalf of
itself and US Lenders, with respect to the Real Estate.


 


“Multiemployer
Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA, and to which any Credit Party or ERISA Affiliate is making, is obligated
to make or has made or been obligated to make, contributions on behalf of
participants who are or were employed by any of them.


 


“Net
Mark-to-Market Exposure” of any Person shall mean, as of any date of
determination with respect to any Hedge Agreement, the excess (if any) of all
unrealized losses over all unrealized profits of such Person arising from such
agreements.  “Unrealized losses” shall
mean the fair market value of the cost to such Person of replacing the
transaction giving rise to such agreement as of the date of determination
(assuming the transactions were to be terminated as of that date), and “unrealized
profits” means the fair market value of the gain to such Person of replacing
such transaction as of the date of determination (assuming such transactions
were to be terminated as of that date).


 


“Net
Proceeds” means cash proceeds received by Borrowers or any of their
Subsidiaries from any Asset Disposition (including insurance proceeds, awards
of condemnation, and payments under notes or other debt securities received in
connection with any Asset Disposition when and as such payments are received),
and, during the continuance of an Event of Default, any proceeds received from
a business interruption insurance policy), net of (a) out-of-pocket costs
incurred in connection with such Asset Disposition (including taxes
attributable to such sale, lease or transfer, sales commissions, attorneys’
fees, accountants fees, investment banking fees and all other professionals’
and advisors’ fees), (b) amounts applied to repayment of Indebtedness
(other than the Obligations) secured by a Lien on the asset or property
disposed that is required to be repaid in connection with such Asset
Disposition, together with all premiums, penalties, breakage, indemnity,
consent fees and similar amounts in connection therewith and (c) the amount of
any reserves established to fund contingent liabilities reasonably estimated by
the board of directors of RPP USA in good faith.


 


“Netherlands Agent” means GE Netherlands in its capacity as
Netherlands Agent for Netherlands Lenders or its successor appointed pursuant
to Section 8.2.


 


“Netherlands Allocable Amount” has the meaning ascribed to it in Section 11.7.


 


23





















 


“Netherlands
Banking Act” means the Netherlands Act on the Supervision of the Credit System
1992 (Wet toezicht kredietwezen 1992).


 


“Netherlands Base Rate” means on any day, the average on that day
(as determined by Netherlands Agent) of the European Central Bank Base Rate for
Euros.


 


“Netherlands Base Rate Loans” means a Netherlands Revolving Loan or
portion thereof bearing interest by reference to the Netherlands Base Rate.


 


“Netherlands Borrower” has the meaning ascribed thereto in the
preamble to this Agreement.


 


“Netherlands Borrower Representative” means Netherlands Op. Co. in its capacity
as Netherlands Borrower Representative pursuant to the provisions of Section 1.17.


 


“Netherlands Borrowing Availability” means, at any time the lesser of (i) the
amount of the Netherlands Commitment of all Netherlands Lenders at such time
and (ii) the Aggregate Netherlands Borrowing Base at such time, in each case
less the sum of (x) the amount of the outstanding Netherlands Revolving Loan
(including, without duplication, Netherlands Letter of Credit Obligations) at
such time, plus (y) Reserves imposed by Netherlands Agent in its reasonable
credit judgment at such time in accordance with the terms hereof.


 


“Netherlands Borrowing Base” means, as of any date of determination by
Netherlands Agent, from time to time, for each Netherlands Borrower an amount
equal to the sum at such time of:


 


(a)                                                                                  85% of the book value of such Netherlands
Borrower’s Eligible Netherlands Accounts whose invoice is addressed to an
Account Debtor in a Primary Territory at such time; and


 


(b)                                                                                 65% of the book value of such Netherlands
Borrower’s Eligible Netherlands Accounts whose invoice is addressed to an
Account Debtor in a Secondary Territory at such time.


 


“Netherlands Collateral” means Collateral provided by a Netherlands
Credit Party.


 


“Netherlands Commitments” means (a) as to any Netherlands Lender, the
commitment of such Netherlands Lender to make its Pro Rata Share of Netherlands
Revolving Credit Advances or incur its Pro Rata Share of Netherlands Letter of
Credit Obligations as set forth on Annex B or in the most recent Assignment Agreement,
if any, executed by such Netherlands Lender and (b) as to all Netherlands
Lenders, the aggregate commitment of all Netherlands Lenders to make the
Netherlands Revolving Credit Advances or incur Netherlands Letter of Credit
Obligations, which aggregate commitment shall be the Dollar Equivalent of Fifty
million dollars ($50,000,000) on the Closing Date, as such amount may be
adjusted, if at all, from time to time in accordance with the Agreement.


 


“Netherlands
Commitment Termination Date” means the earliest of (a) June 24,
2009, (b) the date of termination (whichever is earliest) of Netherlands
Lenders’ obligations to make
Netherlands Revolving Credit Advances or incur Netherlands Letter of Credit
Obligations 


 


24





















 


and to
or permit existing Netherlands Revolving Loans to remain outstanding, in each
case, pursuant to Section 6.2 or Section 6.3, and
(c) the date of (i) payment in full by Netherlands Borrowers of the
Netherlands Loans, (ii) the cancellation and return (or stand-by guarantee) of
all Netherlands Letters of Credit or the cash collateralization of all
Netherlands Letter of Credit Obligations pursuant to Section 1.6(g), and
(iii) the permanent reduction of the Netherlands Commitments to zero dollars
($0).


 


“Netherlands
Copyright Security Agreements” means the
Netherlands Copyright Security Agreements, if any, made in
favor of Netherlands Agent, on
behalf of itself and Netherlands Lenders,
by each applicable Netherlands Credit
Party.


 


“Netherlands Credit Party” means Netherlands Borrowers and each of
their Subsidiaries that is a Netherlands Borrower or a Guarantor with respect
to Netherlands Obligations.


 


“Netherlands Disbursement Account” has the meaning ascribed to it in Section 1.2(d).


 


“Netherlands
Exemption Regulation” means the Exemption Regulation from time to time to
the Netherlands Banking Act (Vrijstellingsregeling Wtk
1992).


 


“Netherlands Foreign Lender” has the meaning ascribed to it in Section 1.15.


 


“Netherlands Guarantor Payment” has the meaning ascribed to it on Section 11.7.


 


“Netherlands Guaranty” means the guaranty of even date herewith
executed by Netherlands Holdings and certain of its Subsidiaries in favor of
Netherlands Agent, on behalf of itself, the Netherlands Security Trustee and
Netherlands Lenders.


 


“Netherlands Indemnitees” has the meaning ascribed to it in Section 9.1.


 


“Netherlands L/C Issuer” means GE Netherlands or a bank or other
legally authorized Person selected by or acceptable to Netherlands Agent in its
sole discretion, in such Person’s capacity as an issuer of Netherlands Letters
of Credit hereunder.


 


“Netherlands L/C Sublimit” has the meaning ascribed to it in Section 1.2(c).


 


“Netherlands Lenders” means GE Netherlands, the other Lenders
named on the signature pages of this Agreement as Netherlands Lenders, and, if
any such Netherlands Lender shall decide to assign all or any portion of the
Netherlands Obligations, such term shall include any assignee of such
Netherlands Lender.


 


“Netherlands Letter of Credit Fee” has the meaning ascribed to it in Section 1.4(d)(i).


 


“Netherlands Letter of Credit Obligations” means all outstanding obligations incurred
by Netherlands Agent and Netherlands Lenders at the request of Netherlands
Borrower Representative, whether direct or indirect, contingent or otherwise,
due or not due, in connection with the issuance of Netherlands Letters of
Credit by Netherlands L/C Issuers or the purchase of a participation as set
forth in Section 1.2(c) with respect to any Letter of Credit.  The amount of 


 


25





















 


such
Netherlands Letter of Credit Obligations shall equal the Dollar Equivalent of
the maximum amount, without duplication, that may be payable by Netherlands
Agent and Netherlands Lenders thereupon or pursuant thereto.


 


“Netherlands Letters of Credit” means any documentary or standby letters of
credit issued for the account of Netherlands Borrowers by Netherlands L/C
Issuers, and bankers’ acceptances issued by Netherlands Borrowers, for which
Netherlands Agent and Netherlands Lenders have incurred Netherlands Letter of
Credit Obligations.


 


“Netherlands Non-Funding Lender” has the meaning ascribed to it in Section 8.5(a).


 


“Netherlands Notes” means the Netherlands Revolving Notes.


 


“Netherlands Obligations” means all loans, advances, debts,
liabilities and obligations, for the performance of covenants, tasks or duties
or for payment of monetary amounts (whether or not such performance is then
required or contingent, or such amounts are liquidated or determinable),
including Netherlands Letter of Credit Obligations, owing by any Netherlands
Credit Party to Netherlands Agent, Netherlands Security Trustee or any
Netherlands Lender, and all covenants and duties regarding such amounts, of any
kind or nature, present or future, whether or not evidenced by any note,
agreement or other instrument, arising under the Agreement or any of the other
Loan Documents.  This term includes all
principal, interest (including all interest that accrues after the commencement
of any case or proceeding by or against any Netherlands Credit Party in
bankruptcy, whether or not allowed in such case or proceeding), Fees, Charges,
expenses, attorneys’ fees and any other sum chargeable to any Netherlands
Credit Party under the Agreement or any of the other Loan Documents.


 


“Netherlands Pledge Agreement” means the Deed of Pledge of Shares of even date
herewith executed by RPP USA and Netherlands Op. Co. in favor of Collateral Agent, on
behalf of itself and Secured
Creditors.


 


“Netherlands Repayment Percentage” has the meaning ascribed to it in Section 8.8(a)(i).


 


“Netherlands Revolving Credit Advance” has the meaning ascribed to it in Section 1.2(a).


 


“Netherlands Revolving Loan” means, at any time, the sum of (i) the aggregate
amount of Netherlands Revolving Credit Advances outstanding to Netherlands
Borrowers plus (ii) the aggregate Netherlands Letter of Credit Obligations
incurred on behalf of Netherlands Borrowers. 
Unless the context otherwise requires, references to the outstanding
principal balance of the Netherlands Revolving Loan shall include the
outstanding balance of Netherlands Letter of Credit Obligations.


 


“Netherlands Revolving Note” has the meaning ascribed to it in Section 1.2(a).


 


“Netherlands Security Documents” means the Netherlands Pledge Agreements,
the Foreign Security Agreements and any security document delivered pursuant
thereto or in connection therewith and “Netherlands Security Document” means
any one of them.


 


26





















 


“Netherlands Security Trustee” means Netherlands Agent in its capacity as
Netherlands Security Trustee for Netherlands Lenders or its successors
appointed pursuant to Section
8.6.


 


“Netherlands Settlement Date” has the meaning ascribed to it in Section 8.5(a)(iv).


 


“Netherlands Termination Date” has the meaning set forth in Section 9.20(b).


 


“NOLV”
means, at any time, (a) with respect to any PPE, the net orderly liquidation
value of such PPE in place made most recently at or prior to such time in
writing by an independent appraiser selected by US Agent
and (b) with respect to any Inventory, the net orderly liquidation value of
such Inventory made most recently at or prior to such time in writing by an
independent appraiser selected by US Agent.


 


“NOLV
Percentage” means, as of the date of determination, the ratio of the NOLV
of US Borrowers’ raw materials and finished goods Inventory to the book value
of US Borrowers’ raw materials and finished goods Inventory, expressed as a
percentage based on the comparison of the NOLV of such Inventory to the book
value of such Inventory as of the date of the most recent appraisal made in
writing by an independent appraiser selected by US Agent.


 


“Non-Excluded
Taxes” has the meaning ascribed to it in Section 1.15(a).


 


“Non-Funding
Lender” has the meaning ascribed to it in Section 8.5(a)(iii).


 


“Non-Voting
Stock” of any Person means Stock of such Person other than the Voting Stock
of such Person.


 


“Note
Documents” means the Senior Note Documents and the Senior Secured Notes
Indenture.


 


“Notes”
means, collectively, the Revolving Notes and the Swing Line Notes.


 


“Notice of
Conversion/Continuation” has the meaning ascribed to it in Section 1.3(e).


 


“Notice of
Netherlands Revolving Credit Advance” has the meaning ascribed to it in Section
1.2(a).


 


“Notice of US
Revolving Credit Advance” has the meaning ascribed to it in Section 1.1(a).


 


“Obligation
Currency” has the meaning ascribed to it in Section 1.18(a).


 


“Obligations” means, collectively, the US Obligations and
the Netherlands Obligations.


 


“Other
Netherlands Lender” has the meaning ascribed to it in Section 8.5(d).


 


“Other US Lender”
has the meaning ascribed to it in Section 8.5(d).


 


27





















 


“Parallel
Debt Obligation” in respect of any Netherlands Borrower has the meaning
ascribed thereto in Section 8.8.


 


“Participating
Member State” means any member of the European Communities that adopts or
has adopted the Euro as its lawful currency in accordance with legislation of
the European Community relating to Economic and Monetary Union.


 


“Patent
License” means rights under any written agreement now owned or hereafter
acquired by any Credit Party granting any right with respect to any invention
on which a Patent is in existence.


 


“Patent
Security Agreements” means the US Patent Security Agreements.


 


“Patents”
means all of the following in which any Credit Party now holds or hereafter
acquires any interest: (a) all letters patent of the United States, Netherlands or any
other country, all registrations and recordings thereof, and all applications
for letters patent of the United States,
Netherlands or of any other country, including
registrations, recordings and applications in the United States Patent and
Trademark Office, the
Netherlands Patent Office, the European Patent Office or
in any similar office or agency of the United States or the UK, any State or
any other country, and (b) all reissues, continuations,
continuations-in-part or extensions thereof.


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


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


 


“PEP
Acquisition” means the acquisition by RPP USA of certain assets of Pacific
Epoxy Polymers, Inc.


 


“PEP Note”
means the promissory note delivered to the sellers in connection with the PEP
Acquisition.


 


“Permitted
Acquired Debt” has the meaning ascribed to it in Section 3.1(m).


 


“Permitted
Acquisition” has the meaning ascribed to it in Section 3.6.


 


“Permitted
Business” shall mean each business conducted by RPP USA and its
Subsidiaries on the Closing Date and any other business or activities as may be
substantially similar, incidental or related thereto, and reasonable extensions
of the foregoing.


 


“Permitted
Encumbrances” means the following encumbrances: (a) Liens for taxes,
assessments or governmental charges or levies not yet due and payable or Liens
for taxes, assessments or governmental charges or levies being contested in
good faith and by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP and which do not have priority over any of
the Collateral or any Revolving Credit Advance or Letter of Credit Obligation,
excluding federal income tax Liens and Liens in favor of the PBGC under ERISA;
(b) Liens in respect of property or assets of any Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course of
business and which have not arisen to secure Indebtedness for borrowed money,
such as carriers’, materialmen’s, warehousemen’s and mechanics’ Liens,
statutory and common law landlord’s Liens, and other


 


28





















 


similar Liens
arising in the ordinary course of business, and which either (1) do not in the
aggregate materially detract from the value of such property or assets or
materially impair the use thereof in the operation of the business of any Borrower or any of
its Subsidiaries or (2) are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture or
sale of the property or asset subject to such Lien; (c) Liens created by or
pursuant to this Agreement, the Collateral Documents or the other Loan
Documents; (d) Liens in existence on the Closing Date which are listed, and the
property subject thereto described, on Schedule 3.2, without giving
effect to any extensions or renewals thereof; (e) Liens arising from judgments,
decrees, awards or attachments in circumstances not constituting an Event of
Default, provided that the amount of cash and property (determined on a
fair market value basis) deposited or delivered to secure the respective
judgment or decree or subject to attachment shall not exceed the Dollar
Equivalent of $5,000,000 in the aggregate at any time; (f) Liens (other than
any Lien imposed by ERISA) (1) incurred or deposits made in the ordinary course
of business in connection with general insurance maintained by any Borrower and its
Subsidiaries, (2) incurred or deposits made in the ordinary course of business
of any Borrower and its
Subsidiaries in connection with workers’ compensation, unemployment insurance
and other types of social security, (3) to secure the performance by any Borrower and its
Subsidiaries of tenders, statutory obligations (other than excise taxes),
surety, stay, customs and appeal bonds, statutory bonds, bids, leases,
government contracts, trade contracts, performance and return of money bonds
and other similar obligations (exclusive of obligations for the payment of
borrowed money) to the extent incurred in the ordinary course of business, (4)
to secure the performance by any
Borrower and its Subsidiaries of leases of Real Estate, to the extent incurred
or made in the ordinary course of business consistent with past practices, (5)
in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods,
and (6) other deposits not to exceed the Dollar Equivalent of $1,000,000 in the
aggregate; (g) licenses, sublicenses, leases or subleases granted to third
Persons in the ordinary course of business not interfering in any material
respect with the business of the Borrower or any of its Subsidiaries; (h)
easements, rights-of-way, restrictions, minor defects or irregularities in
title, encroachments and other similar charges or encumbrances, in each case
not securing Indebtedness and not interfering in any material respect with the
ordinary conduct of the business of any
Borrower or any of its Subsidiaries; (i) Liens arising from precautionary UCC
financing statements regarding operating leases; (j) Liens created pursuant to
or in connection with leases (other than Capital Leases) permitted pursuant to
this Agreement, provided that (1) such Liens only serve to secure the
payment of rent or Indebtedness arising under such leases and (2) the Liens
encumbering the assets leased or purported to be leased under such leases do
not encumber any other assets of any
Borrower or any of its Subsidiaries (other than letters of credit, payment
undertaking agreements, guaranteed investment contracts, deposits of cash or
Cash Equivalents and other credit support arrangements, in each case having an
aggregate value not exceeding the fair market value of the assets leased or
purported to be leased under such leases (each of such values determined at the
time when the lease agreement relating to the relevant lease is signed and
delivered)); (k) (1) those liens, encumbrances, hypothecs and other matters
affecting title to any Real Estate and found reasonably acceptable by the Applicable Agent or
insured against by title insurance, (2) as to any particular Real Estate at any
time, such easements, encroachments, covenants, rights of way, minor defects,
irregularities or encumbrances on title which could not reasonably be expected
to materially impair such Real Estate for the purpose for which it is held by
the mortgagor or grantor thereof, or the lien or hypothec held by the Applicable Agent, (3)
zoning and other municipal ordinances which are not violated in any material
respect by the existing improvements and the present use made by the 


 


29





















 


mortgagor or
grantor thereof of the premises, (4) general real estate taxes and assessments
not yet delinquent, (5) any Lien that would be disclosed on a true, correct and
complete survey of the Real Estate that does not materially affect the use or
enjoyment of the Real Estate as it is currently being used, and (6) such other
similar items as the Applicable
Agent may consent to (such consent not to be unreasonably withheld); (l) Liens
arising pursuant to Capital Leases or purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or financing
of the purchase price within 90 days after the respective purchase) of assets
acquired after the Closing Date, provided that (1) any such Liens attach
only to the assets so purchased, upgrades thereon and, if the asset so
purchased is an upgrade, the original asset itself (and such other assets
financed by the same financing source), (2) the Indebtedness (excluding
Indebtedness representing obligations to pay installation and delivery charges
for the property so purchased) secured by any such Lien does not exceed 100% of
the lesser of the fair market value or the purchase price of the property being
purchased at the time of the incurrence of such Indebtedness and (3) the
Indebtedness secured thereby is permitted to be incurred pursuant to this
Agreement; (m) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition; provided, that (1) any Indebtedness that is secured by such
Liens is permitted to exist hereunder, and (2) such Liens are not incurred in
connection with, or in contemplation or anticipation of, such Permitted
Acquisition and do not attach to any other asset of any Borrower or any of
its Subsidiaries; (n) Liens arising out of consignment or similar arrangements
for the sale of goods entered into by any
Borrower or any of its Subsidiaries in the ordinary course of business so long
as such Borrower or such
Subsidiary has complied with the requirements of Section 1.9(c)(ii), except
to the extent that Applicable Agent
has been informed of such consignment arrangement and waived such requirements;
(o) additional Liens incurred by any
Borrower and its Subsidiaries, so long as the value of the property subject to
such Liens, and the Indebtedness and other obligations secured thereby, do not
exceed $10,000,000 at any one time outstanding; (p) Liens securing insurance
premium financing arrangements, provided that such Liens are limited to the
applicable unearned insurance premiums; (q) Liens in favor of Bank of
America, N.A. in a certain certificate of deposit in the amount of
$150,000 securing certain credit card obligations of US Borrowers to Bank
of America, N.A. and (r) Liens
securing Indebtedness or leases that refinance, refund, extend, renew and/or
replace Indebtedness or leases secured by Liens described in clauses (a)
through (o) above to the extent such refinancing is permitted hereunder.


 


“Permitted
Holders” means Apollo Group and
any “group” (within the meaning of Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as in effect on the Closing Date) of which Apollo Group (or any Person
falling within the definition of “Apollo
Group”) is part.


 


“Permitted
Sale-Leaseback Transaction” shall mean any sale by RPP USA or any of its
Subsidiaries of (x) any barge or railcar existing on the Closing Date and (y)
any asset first acquired by RPP USA or such Subsidiary after the Closing Date,
which barge, railcar or other asset, in each case, is thereafter leased by the
purchaser thereof to RPP USA or such Subsidiary, provided that (i) the
consideration for such sale shall be entirely in cash, (ii) in the case of
clause (x) above, the consideration for such sale shall be at least equal to
the fair market value of the respective barge or railcar the subject of such
sale, (iii) in the case of clause (y) above, the consideration for such sale
shall be in an amount at least equal to 85% of the aggregate amount expended by
RPP USA or such Subsidiary in so acquiring such asset, (iv) in the case of
clause


 


30





















 


(y)
above, each such sale-leaseback transaction is effected within 90 days of the
acquisition by RPP USA or such Subsidiary of such asset, and (v) in each case,
the respective transaction is otherwise effected in accordance with the
applicable requirements of Section 3.7(d).


 


“Person”
means any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, limited liability company,
institution, public benefit corporation, other entity or government (whether
federal, state, county, city, municipal, local, foreign, or otherwise,
including any instrumentality, division, agency, body or department thereof).


 


“Plan”
means, at any time, an “employee benefit plan,” as defined in Section 3(3)
of ERISA, that any Credit 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 Credit Party.


 


“Pledge
Agreements” means, collectively, the Netherlands Pledge Agreement and the US
Pledge Agreement and any other
pledge agreement entered into after the closing date by any Credit Party.


 


“PPE”
means Equipment, excluding fixtures, as determined by US Agent in its sole
discretion.


 


“Primary
Approved Territory” each of Austria, Australia, Belgium, Canada,
Switzerland, Czech Republic, Germany, Denmark, Spain, Finland, France, the UK,
Greece, Hungary, Ireland, Italy, the Netherlands, Norway, New Zealand, Poland,
Portugal, Sweden, Slovakia and the USA provided that based on changes occurring
after the Closing Date in the economy, legal regime, government or political or
civil climate of any such country, territory, region or continent that in the
reasonable credit judgment of Netherlands Agent materially and adversely
affects the collectibility of any Accounts from Account Debtors located in such
country, territory, region or continent the Netherlands Agent may by written
notice to the Netherlands Borrower Representative add or remove any country,
territory, region or continent from this definition; provided further, that the
Netherlands Borrower Representative may from time to time without duplication,
by written notice to the Netherlands Agent, request that additional countries,
territories, regions or continents be added.


 


“Prior
Lender” means the holder of the Prior Lender Obligations.


 


“Prior
Lender Obligations” means the obligations under the Existing Credit
Agreement.


 


“Pro Forma”
means the unaudited consolidated balance sheets of RPP USA and its Subsidiaries
prepared in accordance with GAAP as of December 31, 2004 after giving effect to
the Related Transactions.  The Pro Forma
is annexed hereto as Annex D.


 


“Pro
Rata Share” means (A) with respect to all matters relating to any
Lender (a) with respect to the Revolving Loan prior to the occurrence of
both the Commitment Termination Dates, the percentage obtained by dividing
(i) the Revolving Loan Commitment of that Lender by (ii) the
aggregate Revolving Loan Commitments of all Lenders, and (b)  with respect
to the Revolving Loan on and after the occurrence of both Commitment
Termination Dates, the percentage obtained by dividing (i) the aggregate
outstanding principal balance of the 


 


31





















 


Revolving
Loan (including Letter of Credit Obligations) held by that Lender by
(ii) the outstanding principal balance of the Revolving Loan (including
Letter of Credit Obligations) held by all Lenders, as such percentages may be
adjusted by assignments pursuant to Section 8.1; (B) with respect
to all matters relating to any US Lender (a) with respect to the US Revolving
Loan prior to the occurrence of the US Commitment Termination Date, the
percentage obtained by dividing (i) the US Revolving Loan Commitment of that US
Lender by (ii) the aggregate US Revolving Loan Commitments of all US Lenders,
(b) with respect to the US Revolving Loan on and after the occurrence of the US
Commitment Termination Date, the percentage obtained by dividing (i) the
aggregate outstanding principal balance of the US Revolving Loan held by that
US Lender, by (ii) the outstanding principal balance of the US Revolving Loan
held by all US Lenders, as such percentages may be adjusted by assignments
pursuant to Section 8.1 and (C) with
respect to all matters relating to any Netherlands Lender (a) with respect to
all Netherlands Revolving Loans prior to the occurrence of the Netherlands
Commitment Termination Date, the percentage obtained by dividing (i) the
aggregate Netherlands Commitments of that Netherlands Lender by (ii) the
aggregate Netherlands Commitments of all Netherlands Lenders, and (b) with
respect to all Netherlands Revolving Loans on and after the occurrence of the
Netherlands Commitment Termination Date, the percentage obtained by dividing
(i) the aggregate outstanding principal balance of the Netherlands Revolving
Loans held by that Netherlands Lender, by (ii) the outstanding principal
balance of the Netherlands Revolving Loans held by all Netherlands Lenders, as
such percentages may be adjusted by assignments pursuant to Section
8.1.


 


“Professional
Market Party” means a professional market party (professionele
marktpartij) within the meaning of the Netherlands Exemption
Regulation (which currently includes, without limitation, duly supervised
banks, insurance companies, securities institutions, investment institutions
and pension funds in the European Economic Area, Monaco, Puerto Rico, Saudi
Arabia, Turkey, South Korea, the United States, Japan, Australia, Canada,
Mexico, New Zealand or Switzerland and their supervised subsidiaries, central
governments, central banks, international and supranational organizations,
enterprises whose balance sheet as at the end of the preceding year show total
assets of a least €500,000,000, enterprises with a net equity as at the end of
the preceding year of at least €10,000,000 which have been active on the
financial markets on average at least twice a month during the preceding two
consecutive years, and enterprises which have a rating or which have issued
securities with a rating from a rating agency approved by the Netherlands
Central Bank).


 


“Projections”
means RPP USA’s forecasted consolidated and, as to the profit and loss
statements described in clause (b), regional: (a) balance sheets;
(b) profit and loss statements; (c) cash flow statements; and (d)
Aggregate Borrowing Availability, consistent with the historical Financial
Statements of Credit Parties and for the immediately upcoming Fiscal Year on a
monthly basis and otherwise consistent with the historical Financial Statements
of RPP USA, together with appropriate supporting details and a statement of
underlying assumptions.


 


“Proposed
Change” has the meaning ascribed to it in Section 9.19(b).


 


“Qualified
Assignee” means (a) any Lender, any Affiliate of any Lender and, with
respect to any Lender that is an investment fund that invests in commercial
loans, any other investment fund that invests in commercial loans and that is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor, and (b) any commercial bank, savings and
loan association or savings bank or any other entity which is an


 


32





















 


“accredited
investor” (as defined in Regulation D under the Securities Act of 1933) which
extends credit or buys loans as one of its businesses, including insurance
companies, mutual funds, lease financing companies and commercial finance
companies, in each case, which has a rating of BBB or higher from S&P and a
rating of Baa2 or higher from Moody’s at the date that it becomes a Lender and
which, through its applicable lending office, is capable of lending to
Borrowers without the imposition of any withholding or similar taxes; provided
that no Person determined by US
Agent to be acting in the capacity of a vulture fund or distressed debt
purchaser shall be a Qualified Assignee and no Person or Affiliate of such
Person (other than a Person that is already a Lender) holding Subordinated Debt
or Stock issued by any Credit Party shall be a Qualified Assignee; and provided
further that no Person that is not on the applicable assignment date a
Professional Market Party shall be a Qualified Assignee with respect to any
Netherlands Lender.


 


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


 


“Qualified
Public Offering” means a firm commitment underwritten public offering of
common stock of Holdings pursuant to a registration statement under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder pursuant to which both (i) the proceeds (prior to deducting any
underwriters’ discounts and commissions) equal or exceed $100,000,000 and (ii)
upon consummation of such offering, such common stock is listed on the New York
Stock Exchange or another national securities exchange or authorized to be
quoted and/or listed on the Nasdaq National Market.


 


“Receiver”
means a receiver, a manager, a receiver and manager, or administrator, an agent
or other person having similar powers or authority appointed by US Agent, any US Lender, Netherlands Agent,
any Netherlands Lender, Netherlands Security Trustee, or
Collateral Agent, in each case as permitted under the Credit Agreement, whether
by way of a private or court appointment in respect of any Credit Party or any
of the Credit Party Assets.


 


“Real
Estate” has the meaning ascribed to it in Section 5.12.


 


“Refinancing”
means the repayment in full by Borrowers of the Prior Lender Obligations on the
Closing Date.


 


“Related
Transactions” means the initial borrowing under the Revolving Loan
Commitment on the Closing Date, the Refinancing, the payment of all Fees, costs
and expenses associated with all of the foregoing and the execution and
delivery of all of the Related Transactions Documents.


 


“Related
Transactions Documents” means the Loan Documents, and all other agreements or instruments executed in
connection with the Related Transactions.


 


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


 


33





















 


“Remittances” means, in relation to any Netherlands
Borrower, all cash, cheques, bills of exchange, negotiable and non-negotiable
instruments, letters of credit, electronic payments, BACS, CHAPS and any other
remittance or instrument of payment in whatever form payable to or received by
it received by it or its agents towards discharge of an Account.


 


“Replacement
Lender” has the meaning ascribed to it in Section 9.19.


 


“Requisite
Lenders” means, Lenders (or, if there are
two or more Lenders, at least two Lenders) having
(a) more than 51% of the Commitments of all Lenders, or (b) if the
Commitments have been terminated, more than 51% of the aggregate outstanding
amount of the Loans and Letter of Credit Obligations.


 


“Requisite Netherlands Lenders” means, Netherlands Lenders (or, if there
are two or more Netherlands Lenders, at least two Netherlands Lenders) having
(a) more than 51% of the Netherlands Commitments of all Netherlands
Lenders, or (b) if the Netherlands Commitments have been terminated, more
than 51% of the aggregate outstanding amount of the Netherlands Revolving Loans
and Netherlands Letter of Credit Obligations.


 


“Requisite US Lenders” means, US Lenders (or, if there are two or
more US Lenders, at least two US Lenders) having (a) more than 51% of the
US Commitments of all US Lenders, or (b) if the US Commitments have been
terminated, more than 51% of the aggregate outstanding amount of the US
Revolving Loans and US Letter of Credit Obligations.


 


“Reserves” means, such reserves against Eligible US Accounts, Eligible US Inventory, Eligible US PPE or Eligible Netherlands
Accounts that US Agent or Netherlands Agent, as applicable,
may, in its reasonable credit judgment (as to Reserves imposed after the
Closing Date, based on its analysis of facts or events first occurring, or
first discovered by Applicable
Agent after the Closing Date, it being understood that the imposition of
Reserves contemplated by Section 1.9(b), 1.10(b) and 2.6 are not
precluded by the foregoing portions of this parenthetical regardless of when
such Reserves are implemented and regardless of when the relevant events occur
or are discovered), establish from time to time upon at least five (5) days’
notice to Applicable Borrower
Representative (without duplication of ineligible items and without duplication
of reserves deducted in computing book value).


 


“Responsible
Officer” means (a) with respect to any report or certification to be
delivered by a Credit Party or the Applicable Borrower Representative
hereunder, the Chief Executive Officer, President, Chief Financial Officer or
Treasurer of RPP USA, and (b) in all other cases, the Chief Executive Officer,
President, Chief Financial Officer or Treasurer of RPP USA and each executive
officer or equivalent officer of each other Credit Party.


 


“Restricted
Payment” means, (a) with respect to any Credit Party after the date hereof
(i) the declaration or payment of any dividend or the incurrence of any
liability to make any other payment or distribution of cash or other property
or assets in respect of Stock; (ii) any payment on account of the
purchase, redemption, defeasance, sinking fund or other retirement of such
Credit Party’s Stock or any other payment or distribution made in respect
thereof, either directly or indirectly; or (iii) any payment made to
redeem, purchase, repurchase or retire, or to obtain the surrender of, and any outstanding
warrants, options or other rights to acquire Stock of such Credit Party now or
hereafter outstanding; provided,
however, that dividends by issuances of Stock, Stock splits, and other
payments, distributions and transfers consisting of Stock of any


 


34





















 


Credit Party (including, without limitation,
the issuance of warrants or options and the delivery of Stock upon the exercise
of warrants or options) shall not constitute Restricted Payments;
or (b) the making of any loan by a Borrower to Holdings after the date hereof.


 


“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 IRC and at the sole
expense of the participant or the beneficiary of the participant.


 


“Revolving Credit Advances” means each of any US Revolving Credit
Advance or Netherlands Revolving Credit Advance.


 


“Revolving Lenders” means, collectively, the US Revolving
Lenders and the Netherlands Lenders.


 


“Revolving Loan” means, collectively, the US Revolving Loan
and the Netherlands Revolving Loan.


 


“Revolving Loan Commitment” means, collectively, the US Revolving Loan
Commitment and the Netherlands Commitment.


 


“RPP USA”
has the meaning ascribed to it in the preamble.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of the McGraw-Hill
Companies, Inc.


 


“Secondary Approved Territory” means each of China, Hong Kong, Japan,
Romania, Singapore, Slovenia and Taiwan provided that based
on changes occurring after the Closing Date in the economy, legal regime,
government or political or civil climate of any such country, territory, region
or continent that in the reasonable credit judgment of Netherlands Agent
materially and adversely affects the collectibility of any Accounts from
Account Debtors located in such country, territory, region or continent the
Netherlands Agent may by written notice to the Netherlands Borrower
Representative add or remove any country, territory, region or continent from
this definition.


 


“Secured
Creditor” has the meaning given to such term in the Security Agreement.


 


“Security
Agreements” means,
collectively, the US Security Agreement and the Foreign Security Agreements.


 


“Senior
Note Documents” means the Senior Notes, the Senior Secured Notes Indenture,
the Senior Second Priority Secured Notes Indenture, the Senior Unsecured
Subordinated Notes Indenture and all documents, instruments and agreements
executed in connection therewith.


 


“Senior
Notes” means the Senior Unsecured Subordinated Notes, the Senior Second
Priority Secured Notes and the Senior Secured Notes.


 


35





















 


“Senior
Obligations” has the meaning ascribed to it in Section 9.22.


 


“Senior
Secured Notes” means RPP USA’s and US Finance Corp’s 8% Senior Notes due
December 15, 2009 issued pursuant to the Senior Secured Notes Indenture, as in
effect on the Closing Date.


 


“Senior
Secured Notes Indenture” means the Indenture, dated as of December 22,
2003, among RPP USA and The Bank of New York, as trustee, together with any
successor trustee or any successor thereto.


 


“Senior
Second Priority Secured Notes” means RPP USA’s and US Finance Corp’s 9 1⁄2%
Senior Subordinated Notes due April
15, 2010 issued pursuant to the Senior Second Priority Secured Notes Indenture,
as in effect on the Closing Date.


 


“Senior
Second Priority Secured Notes Indenture” means the Indenture, dated as of
April 9, 2003, among the RPP USA and Deutsche Bank Trust Company Americas, as
trustee, together with any successor trustee or any successor thereto (the “Senior
Second Priority Trustee”).


 


“Senior
Unsecured Subordinated Notes” means RPP USA’s and US Finance Corp’s 13 1⁄2%
Senior Subordinated Notes due 2010 issued pursuant to the Senior Unsecured
Subordinated Notes Indenture, as in effect on the Closing Date.


 


“Senior
Unsecured Subordinated Notes Indenture” means the Indenture, dated as of
November 14, 2000, among RPP USA, the US
Credit Parties which are Subsidiary Guarantors and United States Trust Company
of New York, together with any successor trustee or any successor thereto.


 


“Shell”
shall mean Shell Oil Company.


 


“Shell
Buyback” has the meaning ascribed to such term in Section 3.5(i).


 


“Software”
means all “software” as such term is defined in the Code (or its equivalent under Applicable Law),
now owned or hereafter acquired by any Credit Party, other than software
embedded in any category of Goods, including all computer programs and all
supporting information provided in connection with a transaction related to any
program.


 


“Solvent”
means with respect to any Person on a particular date, that on such date
(a) the fair value of the property of such Person is greater than the
total amount of liabilities, including subordinated and contingent liabilities,
of such Person; (b) the present fair saleable value of the assets of such
Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts and liabilities, including subordinated
and contingent liabilities as they become absolute and matured; (c) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay as such debts and liabilities
mature; and (d) such Person is not engaged in a business or transaction,
and is not about to engage in a business or transaction, for which such Person’s
property would constitute an unreasonably small capital.  The amount of contingent liabilities (such as
Litigation, guaranties and pension plan liabilities) at any time shall be
computed as the amount


 


36





















 


that, in light of all the facts
and circumstances existing at the time, represents the amount that can be
reasonably be expected to become an actual or matured liability.


 


“Spanish
Security Agreement” means the Pledge Agreement by Resolution Holdings B.V.
pledging ownership interest in Resolution Iberica Performance Products S.A. to
the Netherlands Security Trustee.


 


“Statement”
has the meaning ascribed to it in Section 4.1(b).


 


“Specified
Obligations”  means Obligations
consisting of (a) the principal and interest on Loans and (b) reimbursement
obligations in respect of Letters of Credit.


 


“Stock”
means all shares, options, warrants, general or limited partnership interests,
membership interests or other equivalents (regardless of how designated) of or
in a corporation, partnership, limited liability company or equivalent entity
whether voting or nonvoting, including common stock, preferred stock or any
other “equity security” (as such term is defined in Rule 3a11-1 of the General
Rules and Regulations promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934).


 


“Stockholder”
means, with respect to any Person, each holder of Stock of such Person.


 


“Subordinated
Debt” means (i) the Senior Unsecured Subordinated Notes and
(ii) any other unsecured
Indebtedness of any Credit Party subordinated to the Obligations in a manner
and form reasonably satisfactory to US Agent in its sole discretion, as to
right and time of payment and as to any other rights and remedies thereunder.


 


“Subordinated
Debt Agreements” means the Senior Unsecured Subordinated Notes and any
other agreement or instrument, in all respects reasonably acceptable to the US Agent governing or
evidencing Subordinated Debt.


 


“Subsidiary”
means, with respect to any Person, (a) any corporation of which an
aggregate of more than 50% of the outstanding Stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether, at the time, Stock of any other class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or indirectly, owned
legally or beneficially by such Person or one or more Subsidiaries of such
Person, or with respect to which any such Person has the right to vote or
designate the vote of more than 50% of such Stock whether by proxy, agreement,
operation of law or otherwise, and (b) any partnership or limited
liability company in which such Person and/or one or more Subsidiaries of such
Person shall have an interest (whether in the form of voting or participation
in profits or capital contribution) of more than 50% or of which any such Person
is a general partner or may exercise the powers of a general partner.  Unless the context otherwise requires, each
reference to a Subsidiary shall be a reference to a Subsidiary of a Borrower.


 


“Supermajority
Lenders” means Lenders or, if there are
two or more Lenders, at least two Lenders) having
(a) 80% or more of the Commitments of all Lenders, or (b) if the
Commitments have been terminated, 80% or more of the aggregate outstanding
amount of the Loans.


 


37





















 


“Supermajority Netherlands Lenders” means Netherlands Lenders (or, if there are
two or more Netherlands Lenders, at least two Netherlands Lenders) having
(a) 80% or more of the Netherlands Commitments of all Netherlands Lenders,
or (b) if the Netherlands Commitments have been terminated, 80% or more of
the aggregate outstanding amount of the Netherlands Revolving Loan.


 


“Supermajority US Lenders” means US Lenders having (or, if there are
two or more US Lenders, at least two US Lenders) (a) 80% or more of the US
Revolving Loan Commitments of all US Lenders, or (b) if the US Revolving
Loan Commitments have been terminated, 80% or more of the aggregate outstanding
amount of the US Revolving Loan (with the US Swing Line Loan being
attributed to the US Lender
making such Loan), provided, however, that notwithstanding the
foregoing, for the purposes of Section 9.2(b)(i), as it relates to
Section 1.10 and Eligible US PPE, “Supermajority US Lenders” shall mean US
Lenders holding 100% of the US Revolving Loan Commitments.


 


“Taxes”
has the meaning ascribed to it in Section 1.15(a).


 


“Tax Return”
means any report, return, statement or other information required, or
permitted, by law to be filed or supplied to a Governmental Authority (or
otherwise so filed or supplied) in connection with any taxes and all claims for
refunds of taxes.


 


“Termination
Date” means the date on which (a) the Loans have been repaid in full
in cash, (b) all other Obligations (other than Contingent Indemnification
Obligations) under the Agreement and the other Loan Documents have been
completely discharged, (c) all Letter of Credit Obligations have been cash
collateralized in the amount set forth in Section 1.6(g), cancelled
or backed by standby letters of credit acceptable to Applicable Agent and
(d) no Borrower shall have any further right to borrow any monies under
the Agreement.


 


“Title IV
Plan” means a Pension Plan (other than a Multiemployer Plan), that is
covered by Title IV of ERISA, and that any Credit 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.


 


“Trademark
License” means rights under any written agreement now owned or hereafter
acquired by any Credit Party granting any right to use any Trademark.


 


“Trademark
Security Agreements” means the US Trademark
Security Agreements and the
Netherlands Trademark Security Agreements.


 


“Trademarks”
means all of the following now owned or hereafter adopted or acquired by any
Credit Party: (a) all trademarks, trade names, corporate names, business
names, trade styles, service marks, logos, internet domain names, other source
or business identifiers, prints and labels on which any of the foregoing have
appeared or appear, designs and general intangibles of like nature (whether
registered or unregistered), all registrations and recordings thereof, and all
applications in connection therewith, including registrations, recordings and
applications in the United States Patent and Trademark Office, the Netherlands Patent Office, the European
Patent Office or in any similar office or agency of the United States, any
state or territory thereof, or any other country or any political subdivision
thereof; (b) all reissues,


 


38





















 


extensions or renewals thereof;
and (c) all goodwill associated with or symbolized by any of the foregoing.


 


“Triggering Event”  has
the meaning ascribed to it in Section 2.10(a).


 


“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 Credit Party
or any ERISA Affiliate as a result of such transaction.


 


“US”
means the United States of America.


 


“US Agent” means GE Capital in its capacity as US
Agent for US Lenders or its successor appointed pursuant to Section 8.2.


 


“US Allocable Amount” has the meaning ascribed to it in Section 10.7.


 


“US Borrower” has the meaning ascribed thereto in the
recitals to this Agreement.


 


“US Borrower Representative” means RPP USA in its capacity as US
Borrower Representative pursuant to the provisions of Section 1.16.


 


“US Borrowing Availability” means, at any time the lesser of (i) the
amount of the US Revolving Loan Commitment of all US Lenders at such time and
(ii) the Aggregate US Borrowing Base at such time, in each case less the sum of
(x) the amount of the outstanding US Revolving Loan (including, without
duplication, US Swing Line Advances and US Letter of Credit Obligations) at
such time, plus (y) Reserves imposed by US Agent in its reasonable credit
judgment at such time in accordance with the terms hereof plus (z) $15,000,000.


 


“US Borrowing Base” means, as of any date of determination by
US Agent, from time to time, for each US Borrower an amount equal to the sum at
such time of:


 


(a)           85% of the book
value of such US Borrower’s Eligible US Accounts at such time;


 


(b)           the lesser of (i)
65% of the book value of such US Borrower’s Eligible US Inventory consisting of
raw materials and finished goods valued at the lower of cost (determined on a
first-in, first-out basis) or market and (ii) 85% of the NOLV Percentage of
such US Borrower’s Eligible US Inventory consisting of raw materials and
finished goods; and


 


(c)           the
lesser of (i) 100% of the NOLV of Eligible US PPE of such US Borrower and (ii)
$25,000,000 less, at any time, the sum of (i) the product of (x) $2,500,000
times (y) the number of Fiscal Quarters that as of such time have ended during
the period beginning on January 1, 2005 and ending on December 31, 2006 and
(ii) the product of (x)


 


39





















 


$1,250,000 times (y) the number of Fiscal
Quarters that as of such time have ended during the period beginning on March
31, 2007 and ending December 31, 2007.


 


“US Collateral” means Collateral provided by a US Credit
Party.


 


“US Commitment” means as to any US Lender its US Revolving
Loan Commitment.


 


“US
Commitment Termination Date” means the earliest of (a) June 24,
2009, (b) the date of termination (whichever is earliest) of US Lenders’
obligations to make US
Revolving Credit Advances or incur US Letter of Credit Obligations or
permit existing US Revolving Loans to remain outstanding, in each case,
pursuant to Section 6.2 or Section 6.3, and (c) the date
of (i) payment in full by US Borrowers of the US Revolving Loans, (ii) the
cancellation and return (or stand-by guarantee) of all US Letters of Credit or
the cash collateralization of all US Letter of Credit Obligations pursuant to Section
1.6(g), and (iii) the permanent reduction of the US Commitments to zero
dollars ($0).


 


“US Copyright Security Agreements” means the US Copyright Security Agreements,
if any, made in favor of US Agent, on behalf of itself and Lenders, by each
applicable US Credit Party.


 


“US Credit Parties” means Holdings and its Domestic
Subsidiaries.


 


“US Disbursement Account” has the meaning ascribed to it in Section 1.1(e)(i).


 


“US Euro Disbursement Account” has the meaning ascribed to it in Section 1.1(e)(ii).


 


“US Finance
Corp” means RPP Capital Corporation, a Delaware corporation, and its
successors and assigns.


 


“US Foreign
Lender” has the meaning ascribed to it in Section 1.15.


 


“US Guarantor Payment” has the meaning ascribed to it in Section 10.7.


 


“US Guaranty” means the guaranty of even date herewith
executed by Holdings and each Domestic Subsidiary of Holdings in favor of US
Agent, on behalf of itself and US Lenders.


 


“US Hedge Agreements” of any US Credit Party or any of their
Subsidiaries, means any transaction (including an agreement with respect
thereto) now existing or hereafter entered into by such Person that is a
foreign exchange contract, currency swap agreement, interest rate swap, cap or
collar agreement or other similar agreement or arrangement designed to alter the
risks of that Person arising from fluctuations in currency values or interest
rates.


 


“US Indemnitees” has the meaning ascribed to it in Section 9.1.


 


“US Index Rate” means, for any day, a floating rate equal
to the higher of (i) the rate publicly quoted from time to time by
The Wall Street Journal as the “base rate on corporate loans
posted by at least 75% of the nation’s 30 largest banks” (or, if
The Wall Street Journal


 


40





















 


ceases quoting a base rate of the type
described, the highest per annum rate of interest published by the Federal
Reserve Board in Federal Reserve statistical release H.15 (519) entitled “Selected
Interest Rates” as the Bank prime loan rate or its equivalent), and
(ii) the Federal Funds Rate plus 50 basis points per annum.  Each change in any interest rate provided for
in the Agreement based upon the US Index Rate shall take effect at the time of
such change in the US Index Rate.


 


“US Index Rate Loan” means a Loan or portion thereof bearing
interest by reference to the US Index Rate.


 


“US L/C Issuer” means GE Capital and each other bank or
other legally authorized Person selected by or acceptable to US Agent in its
sole discretion, in such Person’s capacity as an issuer of US Letters of Credit
hereunder.


 


“US L/C Sublimit” has the meaning ascribed to it in Section 1.1(d).


 


“US Lenders” means, collectively, the US Revolving
Lenders and the US Swing Line Lender.


 


“US Letter of Credit Fee” has the meaning ascribed to it in Section 1.4(d)(i).


 


“US Letter of Credit Obligations” means all outstanding obligations incurred
by US Agent and US Lenders at the request of US Borrower Representative,
whether direct or indirect, contingent or otherwise, due or not due, in
connection with the issuance of US Letters of Credit by US L/C Issuers or the
purchase of a participation as set forth in Section 1.1(d) with respect to any US Letter of
Credit.  The amount of such US Letter of
Credit Obligations shall equal the Dollar Equivalent of the maximum amount that,
without duplication, may be payable by US Agent and US Lenders thereupon or
pursuant thereto.


 


“US Letters of Credit” means any documentary or standby letters of
credit issued for the account of US Borrowers by US L/C Issuers, and bankers’
acceptances issued by US Borrowers, for which US Agent and US Lenders have
incurred US Letter of Credit Obligations.


 


“US Non-Funding Lender” has the meaning ascribed to it in Section 8.5(a).


 


“US Notes” means the US Revolving Notes and the US
Swing Line Notes.


 


“US Obligations” means all loans, advances, debts,
liabilities and obligations, for the performance of covenants, tasks or duties
or for payment of monetary amounts (whether or not such performance is then
required or contingent, or such amounts are liquidated or determinable),
including US Letter of Credit Obligations, owing by any US Credit Party to US
Agent, Collateral Agent or any US Lender, and all covenants and duties
regarding such amounts, of any kind or nature, present or future, whether or
not evidenced by any note, agreement or other instrument, arising under the
Agreement or any of the other Loan Documents and all liabilities and
obligations of the US Credit Parties under the US Hedge Agreements to the
extent the counterparty is a US Lender. 
This term includes all principal, interest (including all interest that
accrues after the commencement of any case or proceeding by or against any US
Credit Party in bankruptcy, whether or not allowed in such case or proceeding),
Fees, Charges, expenses, attorneys’ fees and any other sum chargeable to any US
Credit Party under the Agreement or any of the other Loan Documents.


 


41





















 


“US Overadvance” has the meaning ascribed to it in Section 1.1(a).


 


“US Patent Security Agreement” means the US Patent Security Agreement, if
any, made in favor of US Agent, on behalf of itself and Lenders, by each
applicable Credit Party.


 


“US Pledge
Agreement” means the Second Amended and Restated Pledge Agreement of even
date herewith executed by Holdings and its Domestic Subsidiaries in favor of
Collateral Agent, on behalf of itself and Secured Creditors.


 


“US Refunded Swing Line Loan” has the meaning ascribed to it in Section 1.1(c)(iii).


 


“US Repayment Percentage” has the meaning ascribed to it in Section 8.7(a)(i).


 


“US Revolving Credit Advances” has the meaning ascribed to it in Section 1.1(a).


 


“US Revolving Lender” means GE Capital, the other Lenders named
on the signature pages of the Agreement as US Lenders, and, if any such US Lender
shall decide to assign all or any portion of the US Obligations, such term
shall include any assignee of such US Lender.


 


“US Revolving Loan” means, at any time, the sum of (i) the
aggregate amount of US Revolving Credit Advances outstanding to US Borrowers
(including, without limitation, US Swing Line Advances) plus (ii) the aggregate
US Letter of Credit Obligations incurred on behalf of US Borrowers.  Unless the context otherwise requires,
references to the outstanding principal balance of the US Revolving Loan shall
include the outstanding balance of US Letter of Credit Obligations.


 


“US Revolving Loan Commitment” means (a) as to any US Lender, the
commitment of such US Lender to make its Pro Rata Share of US Revolving Credit
Advances or incur its Pro Rata Share of US Letter of Credit Obligations
(including, in the case of the US Swing Line Lender, its commitment to make US
Swing Line Advances as a portion of its US Revolving Loan Commitment) as set
forth on Annex
B or in the most
recent Assignment Agreement, if any, executed by such US Lender and (b) as to
all US Lenders, the aggregate commitment of all US Lenders to make the US
Revolving Credit Advances (including, in the case of the US Swing Line Lender,
US Swing Line Advances) or incur US Letter of Credit Obligations, which
aggregate commitment shall be the Dollar Equivalent of one hundred million
dollars ($100,000,000) on the Closing Date, as such amount may be adjusted, if
at all, from time to time in accordance with the Agreement.


 


“US Revolving Loans” means the US Revolving Loan and the US
Swing Line Loan.


 


“US Revolving Notes” has the meaning ascribed to it in Section 1.1(a).


 


“US Security Agreement” means the Amended and Restated Security
Agreement of even date herewith entered into by and among US Collateral Agent,
on behalf of itself and Secured Creditors, and each Credit Party that is a
signatory thereto.


 


“US Settlement Date” has the meaning ascribed to it in Section 8.5(a)(iii).


 


42





















 


“US Swing Line Advance” has the meaning ascribed to it in Section 1.1(c).


 


“US Swing Line Availability” has the meaning ascribed to it in Section 1.1(c).


 


“US Swing Line Commitment” means the commitment of the US Swing Line
Lender to make US Swing Line Advances as set forth on Annex B to the Agreement, which commitment
constitutes a subfacility of the US Revolving Loan Commitment of the US Swing
Line Lender.


 


“US Swing Line Lender” means GE Capital.


 


“US Swing Line Loan” means at any time, the aggregate amount of
US Swing Line Advances outstanding to US Borrowers.


 


“US Swing Line Notes” has the meaning ascribed to it in Section 1.1(c).


 


“US Termination Date” has the meaning ascribed to it in Section 9.20(a).


 


“US Trademark Security Agreements” means the US Trademark Security Agreements,
if any, made in favor of US Agent, on behalf of itself and Lenders, by each
applicable Credit Party.


 


“Valid Invoice” means any invoice which is issued in
accordance with applicable VAT legislation.


 


“VAT” means value added tax or any similar tax
substituted therefore.


 


“Voting
Stock” of any Person means Stock having the right to vote for election of
directors of such Person under ordinary circumstances.


 


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


 


“Wholly-Owned”
means, as to a Subsidiary of any Person, that 100% of the Stock of such
Subsidiary is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person.


 


Rules of
construction with respect to accounting terms used in the Agreement or the
other Loan Documents shall be as set forth or referred to in this Annex A.  All other undefined terms contained in any of
the Loan Documents shall, unless the context indicates otherwise, have the
meanings provided for by the Code (or
its equivalent under Applicable Law) to the extent the
same are used or defined therein; in the event that any term is defined
differently in different Articles or Divisions of the Code, the definition
contained in Article or Division 9 shall control.  Terms
used in Article or Division 9 of the Code or its equivalent under Applicable
Law shall be read together and construed, to the fullest extent possible, to be
in concert with each other; in the event of a direct conflict between any term
as defined in Article or Division 9 of the Code and its equivalent under
Applicable Law, the meaning under Article or Division 9 of the Code shall
control.  Unless
otherwise specified, references in the Agreement or any of the Appendices to a
Section, subsection or clause refer to such Section, subsection or clause as
contained in the Agreement.  The words “herein,”
“hereof” and “hereunder” and other words of similar import refer to the
Agreement as a whole, including all Annexes, Exhibits and Schedules,


 


43





















 


as the same may from time to
time be amended, restated, modified or supplemented, and not to any particular
section, subsection or clause contained in the Agreement or any such Annex,
Exhibit or Schedule.


 


Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter genders. 
The words “including”, “includes” and “include” shall be deemed to be
followed by the words “without limitation”; the word “or” is not exclusive;
references to Persons include their respective successors and assigns (to the
extent and only to the extent permitted by the Loan Documents) or, in the case
of governmental Persons, Persons succeeding to the relevant functions of such
Persons; and all references to statutes and related regulations shall include
any amendments of the same and any successor statutes and regulations.  Whenever any provision in any Loan Document
refers to the knowledge (or an analogous phrase) of any Credit Party, such
words are intended to signify that a Responsible Officer of RPP USA or an
executive officer of any other Credit Party, as applicable, has actual
knowledge or awareness of a particular fact or circumstance or that such Credit
Party, if it had exercised reasonable diligence, would have known or been aware
of such fact or circumstance. 
Definitions of Agreements shall include amendments, waivers and
modifications entered into without contravention of the terms of this
Agreement.


 


44





















 


ANNEX B (from Annex A - Commitments definition)


to


CREDIT AGREEMENT


 


PRO
RATA SHARES AND COMMITMENT AMOUNTS


(in Dollar Equivalents)


 




	
   

  	
   

  	
  Lender(s)

  
	
   

  	
   

  	
   

  
	
  US Revolving Loan Commitment

  	
   

  	
   

  
	
  (including
  a US Swing Line Commitment

  	
   

  	
   

  
	
  of
  $15,000,000)

  	
   

  	
   

  
	
  $100,000,000

  	
   

  	
  General Electric Capital Corporation

  
	
   

  	
   

  	
   

  
	
  Netherlands Revolving Loan Commitment

  	
   

  	
   

  
	
  $50,000,000

  	
   

  	
  GE Leveraged Loans Limited

  






 


45





















 


ANNEX C


to


CREDIT AGREEMENT


 


CLOSING
CHECKLIST


 


PRELIMINARY
CLOSING CHECKLIST SUBJECT TO COMPLETION OF DUE-DILIGENCE


 


Part I:  Financial Closing Checklist


 


A.  DOCUMENTS


 


1.                                       Credit Agreement:  This Agreement or
counterparts hereof shall have been duly executed by, and delivered to, each
Credit Party, Agents
and Lenders.


 


2.                                       Revolving Notes:  Duly executed originals of
the Revolving Notes for each applicable Lender, dated the date hereof, if
requested by the respective Lenders, shall have been delivered to the
Applicable Agent.


 


3.                                       Swing Line Notes:  A duly executed original of
the Swing Line Note for the US Swing Line Lender, dated the date hereof, if
requested by the US Swing Line Lender, shall have been delivered to US Agent.


 


4.                                       Intercompany Notes:  Duly executed originals of
the Intercompany Notes held by US Credit Parties shall have been delivered
to the US Agent.


 


5.                                       Master L/C Agreements:  Duly executed originals of
the Master Documentary Agreement and Master Standby Agreement, dated the date
hereof, shall have been delivered to Agents.


 


6.                                       Guaranties:  Duly executed originals of the Guaranties, dated the
date hereof, shall have been delivered to the Applicable Agent.


 


7.                                       Security Agreements:  Duly executed originals of
the Security Agreements
(other than the Spanish Security Agreement) executed by each Credit Party that
is a party thereto, dated the date hereof, and all instruments, documents and
agreements executed pursuant thereto shall have been delivered to Applicable Agent.


 


8.                                       Pledge Agreements:  Duly executed originals of
the Pledge Agreements executed by each party thereto, dated the date hereof,
accompanied by share certificates representing all of the outstanding Stock
being pledged pursuant to each Pledge Agreement and stock powers for such share
certificates executed in blank, in form and substance reasonably satisfactory
to the Applicable Agent
shall have been delivered to the Applicable Agent.


 


9.                                       Mortgages:  Duly executed originals of the Mortgages
executed by each US Credit Party, as applicable, shall have been delivered to US Agent, along with all
related documents and opinions listed in Part C of this Annex C.


 


46





















 


10.                                 Insurance:  Satisfactory evidence shall have been
delivered to Applicable Agent
that the insurance policies required by Section 2.2 are in full
force and effect, together with appropriate evidence showing loss payable
and/or additional insured clauses or endorsements, including a provision
pursuant to which the insurer agrees to provide thirty (30) days’ prior written
notice to Applicable Agent
in the event of any non-renewal, cancellation or amendment of such insurance
policy and ten (10) days’ prior written notice to Applicable Agent in the
event of any non-payment of such insurance policy, as requested by Applicable Agent, in
favor of Applicable Agent, on
behalf of Lenders.


 


11.                                 Security Interests, Code Filings.


 


(a)                                  Evidence satisfactory to the Applicable Agent shall have been
delivered to the Applicable Agent
that such Agent
has a valid and perfected (to the extent possible under applicable law
following filing of the relevant documents, including UCC financing statements,
filings with the US Copyright Office, US Patent and Trademark Office, obtaining
control as to deposit accounts and securities accounts) first priority security
interest in the Collateral (other than the Collateral described in the Spanish
Security Agreement), including (i) such documents duly executed by each
Credit Party (including financing statements under the Code and other
applicable documents under the laws of any jurisdiction with respect to the
perfection of Liens) as Applicable Agent may request in order to perfect its
security interests in the Collateral and (ii) copies of Code search reports
listing all effective financing statements that name any Credit Party as
debtor, together with copies of such financing statements, none of which shall
cover the Collateral, except for those relating to Permitted Encumbrances.


 


(b)                                 UCC-3 or other appropriate termination or amendment statements and
payoff letters, each in form and substance reasonably satisfactory to Agents, releasing all
liens on the Collateral of each Credit Party shall have been delivered to Agents, as well as
termination of all control agreements, blocked account agreements, bank agency
agreements or other similar agreements or arrangements in favor of any
creditors other than Lenders and the holders of Permitted Encumbrances.


 


(c)                                  Such registrations with the
appropriate authorities in Holland and other applicable jurisdictions as the
Netherlands Agent and/or Netherlands Security Trustee may require in relation
to any Foreign Security Agreement


 


12.                                 Intellectual Property Security Agreements:  Duly executed originals of
the Trademark Security Agreement, Patent Security Agreement, and Copyright
Security Agreement, each dated the date hereof and signed by each Credit Party
that owns Trademarks, Patents and/or Copyrights as applicable, all in form and
substance reasonably satisfactory to Agents,
together with instruments, documents and agreements executed pursuant thereto
shall have been delivered to the Applicable Agent.


 


13.                                 Blocked Account Agreements:  Duly executed originals of
tri-party blocked account and lockbox agreements in form and substance
reasonably satisfactory to the US Agent
shall have been delivered to the US Agent with respect to
all deposit accounts(including lockbox accounts)of the US Credit Parties.


 


47





















 


14.                                 Certificate of Formation and Good
Standing: 
For each Credit Party, (a) its articles or certificate of incorporation
or certificate of formation or equivalent organizational document, as
applicable, and all amendments thereto, (b) good standing certificates or
similar certificates (including verification of tax status) in its state or
jurisdiction of incorporation or formation, as applicable, but only if such
concept has legal consequence in such state or jurisdiction and (c) good
standing certificates or similar certificates (including verification of tax
status) and certificates of qualification to conduct business in each
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification, but only if such concept has legal
consequence in such jurisdiction, each dated a recent date prior to the date
hereof and certified by the applicable Secretary of State or other authorized
Governmental Authority shall have been delivered to Agents.


 


15.                                 By-laws and Resolutions:  For each Credit Party, (a)
its by-laws or operating agreement, or equivalent organizational documents, as
applicable, together with all amendments thereto and (b) resolutions of such
Person’s Board of Directors, Board of Members or equivalent body, as
applicable, approving and authorizing the execution, delivery and performance
of the Loan Documents to which it is a party and the transactions to be
consummated in connection therewith, each certified as of the date hereof by
such Person’s secretary or an assistant secretary or other officer acceptable
to the Applicable Agent as being in full force and effect without any
modification or amendment shall have been delivered to Agents.


 


16.                                 Incumbency Certificates:  For each Credit Party,
signature and incumbency certificates of the officers of such Person executing
any of the Loan Documents, certified as of the date hereof by such Person’s
secretary or an assistant secretary or other officer acceptable to the
Applicable Agent as being true, accurate, correct and complete shall have been
delivered to Agents.


 


17.                                 Opinions of Counsel:  Duly executed originals of
an opinion of O’Melveny Myers LLP, special New York and Delaware counsel for
the Credit Parties, dated the date hereof, shall have been delivered to Agents, together with such opinions as the
Agents may reasonably require from legal counsel in any jurisdiction whose law
is the governing law of any European Collection Account or in any jurisdiction
where any material customer of any Netherlands Borrower is located.


 


18.                                 Borrowing Base Certificate:  A Borrowing Base Certificate
for each Borrower.


 


19.                                 Notices of Revolving Credit Advance.  A Notice of US Revolving Credit
Advance from the US Borrower
Representative and, if applicable, a Notice of Netherlands Revolving Credit
Advance from the Netherlands Borrower Representative.


 


20.                                 GE Global Fee Letter:  Duly executed originals of
the GE Global Fee Letter in form and substance satisfactory to GE Capital shall
have been delivered to Agents.


 


21.                                 Officer’s Certificate:  Duly executed originals of a
certificate of an authorized officer of RPP USA, dated the Closing Date,
shall have been delivered to Agents,
certifying on behalf of each Credit Party that, (a) since December 31, 2003,
there have been no events or changes in facts or circumstances affecting any
Credit Party or any of its Subsidiaries


 


48





















 


which
individually or in the aggregate have had a Material Adverse Effect and that, as
of the Closing Date, have not been disclosed in the Agreement or in Schedule 5.2;
(b) except as set forth on Schedule 5.10, no Litigation is pending
against any Credit Party which, if successful, would reasonably be expected to
result in a Material Adverse Effect; (c) no Litigation is pending which could
challenge any of the transactions contemplated by the Agreement and the other
Loan Documents; (d) since March 31, 2004 there have been no Restricted Payments
of the types described in clause (a) of the definition thereof other than
dividends by RPP USA to Holdings of the type described in Section 3.5(a),
Constructive Distributions and dividends by RPP USA to Holdings of the
type described in Section 3.5(d) and (e) Aggregate Borrowing
Availability after giving effect to the initial fundings and issuances of
Letters of Credit under the Credit Agreement and the application of proceeds
thereof, exceeds $70,000,000.


 


22.                                 Waivers:  Landlord’s waivers and consents, bailee
letters and mortgagee agreements in form and substance reasonably satisfactory
to Agents, in each case as
required pursuant to Section 2.6 shall have been delivered to Agents.


 


23.                                 Environmental Reports:  Agents and their environmental
consultant shall have approved the scope and content of any environmental audit
reports required by Agents
to be provided by the Credit Parties with respect to real property owned or
leased by the Credit Parties and shall be satisfied that there are no existing
or potential environmental liabilities which could have an adverse impact on
the financial condition of the Borrowers and that has not been disclosed in
this Agreement or in the Disclosure Schedules hereto.  Any environmental audit report required by Agents must be prepared
by a nationally recognized, as applicable, environmental engineering firm
acceptable to Agents
and delivered at least ten (10) days’ prior to the date hereof and addressed to
Agents.


 


24.                                 Field Examination and Appraisal:  Agents shall have
conducted field examinations of each Credit Party’s respective business,
operations, financial condition and assets and, machinery, equipment and
inventory in form and substance and from appraisers satisfactory to Agents.


 


25.                                 Audited Financials; Financial Condition:  The Financial Statements and
Projections specifically identified in Section 5.5, all certified
by an authorized officer of RPP USA shall have been delivered and satisfactory
to Agents.  Agents
shall have further received a certificate of an authorized officer of
RPP USA to the effect that (a) RPP USA and its Subsidiaries will
be Solvent upon the consummation of the transactions contemplated herein; (b)
the Projections are based upon estimates and assumptions stated therein, all of
which RPP USA believes to be reasonable and fair in light of current
conditions and current facts known to RPP USA and, as of the date hereof,
reflect RPP USA’s good faith estimates of its future financial performance
and of the other information projected therein for the period set forth
therein; and (c) containing such other statements with respect to the Solvency
of RPP USA and its Subsidiaries and matters related thereto as Agents shall request.


 


26.                                 Approvals:  Copies of any material third-party,
Governmental Authority or other regulatory approvals and consents necessary to
consummate the Related Transactions shall have been delivered to Agents.


 


49





















 


27.                                 Intercreditor Agreement:  US Agent shall have
received the Intercreditor Agreement executed and delivered by Collateral
Agent, the US Credit Parties and the other parties thereto.


 


28.                                 Pro Forma:  Copies of the Pro Forma in form and substance
satisfactory to Agents.


 


29.                                 Payoff Letters:  Agents shall have
received payoff letters from the Prior Lenders, each in form and substance
reasonably satisfactory to Agents,
as to the Prior Lender Obligations.


 


30.                                 Tax Forms:  US Borrower
Representative and Agents
shall have received a properly completed and executed IRS Form W-9, W-8BEN or
W-8ECI (whichever is applicable) or other applicable form, certificate or
document from each Lender.


 


31.                                 Other Documents:  Agents shall have
received such other certificates, documents and agreements respecting any
Credit Party as Agents
may, in their reasonable
discretion, request, including, without limitation, all the certificates,
documents and agreements listed on the Schedule of Closing Documents, a copy of
which is attached hereto as Annex C-1 (but without duplication of
the certificates, documents and agreements required to be delivered pursuant to
this Annex C).


 


B.                                     NON-DOCUMENTARY
CONDITIONS


 


32.                                 Payment of Fees:  Borrowers shall have paid the Fees required
to be paid on the Closing Date, including but not limited to such Fees
specified in the GE Global Fee Letter and all expenses that shall then be
payable hereunder .


 


33.                                 Closing Covenants:  Agents shall have received
evidence satisfactory to them that Borrowers, in the aggregate, after giving
effect to the initial fundings and issuances of Letters of Credit under the
Credit Agreement and the application of proceeds thereof and the consummation
of the Related Transactions, have
Aggregate Borrowing Availability of $70,000,000.


 


34.                                 Due Diligence:  Agents
shall have completed its business, legal and environmental due diligence with
results reasonably satisfactory to Agents.


 


35.                                 Retirement of Prior Lender Obligations:  Borrowers shall use a portion
of the initial Loans to pay and satisfy in full (including by cash
collateralization or backstop of any letters of credit) the Prior Lender Obligations.


 


36.                                 Background and reference checks:  Agents shall have completed
background and reference checks of (i) each Borrower and each Affiliate of
each Borrower and (ii) the chief executive officer, chief financial officer,
chief operating officer, shareholders, officers and directors of each Borrower
and each Affiliate of each Borrower, the results of which shall be satisfactory
to Agent in its sole discretion.


 


37.                                 Know Your Customer:   In relation to the Netherlands Credit Parties
(and the directors and shareholders of such entities), the Netherlands Agent’s
satisfaction with the results of the Netherlands Agent’s “Know Your Customer”
checks and procedures concerning such persons, as required by the Netherlands
Agent’s policies and/or by applicable laws or regulations.


 


50





















 


38.                                 Other Requirements:  Such other requirements of any Credit Party
as any Agent may, in its
reasonable discretion, request.


 


C.                                     REAL PROPERTY
COLLATERAL DOCUMENTS


 


1.                                      Mortgages:  Duly executed and acknowledged
counterparts of first priority Mortgages as security for the Loans and
encumbering each parcel of Real Estate owned or leased by a US Credit Party
(except as otherwise agreed by US Agent with respect to leased Real
Estate), shall have been delivered to US Agent,
together with evidence that same have been delivered to the title company for
recording so as to effectively create upon such recording valid and enforceable
liens upon such Real Estate in favor of US
Agent.


 


2.                                      UCC Fixture
Filings:  Uniform
Commercial Code Fixture Filings securing a lien against the personal property
and fixtures of US Borrower
on each parcel of Real Estate shall have been prepared by US Agent and delivered
to the title company for recording so as to effectively create upon such
recording valid and enforceable liens upon the personal property and fixtures
in favor of Collateral
Agent.


 


3.                                      Opinions of
Counsel: Duly executed originals of opinions of Florida,
Illinois, Louisiana and Texas local counsel for the US Agent in each case
addressed to US Agent and covering such issues as US Agent shall request, shall
have been delivered to US Agent.


 


4.                                      Title Insurance
& Surveys:  An ALTA
mortgagee title insurance policy, or a marked, signed commitment, dated as of
the date of recording of the applicable mortgage, current as-built surveys (or no-change affidavits, as acceptable to
the title insurer), zoning letters and certificates of
occupancy, in each case in a form acceptable to Agent for each parcel of Real
Estate insuring the lien of the Mortgage encumbering the Real Estate, shall be
delivered to Agent, together with evidence that all premiums in respect of such
title insurance policy have been paid or will be paid.


 


51





















 


ANNEX D


to


CREDIT AGREEMENT


 


PRO
FORMA


 


[Insert
Pro Forma]


 


52





















 


ANNEX E


to


CREDIT AGREEMENT


 


WIRE TRANSFER INFORMATION


 


	
  With respect
  to the US Revolving Loan:

  	
   

  
	
   

  	
   

  
	
  Denominated
  in Dollars

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  General
  Electric Capital Corporation

  
	
  Bank:

  	
  Deutsche
  Bank Trust Company Americas

  
	
   

  	
  New York,
  New York

  
	
  ABA #:

  	
  021001033

  
	
  Account #:

  	
  50232854

  
	
  Account
  Name:

  	
  GECC/CAF
  Depository

  
	
  Reference:

  	
  GE Capital
  re: RPP, CFN: 6557

  
	
   

  	
   

  
	
  Denominated in Euros

  	
   

  
	
   

  	
   

  
	
  Bank: Deutsche Bank (Frankfurt)

  	
   

  
	
  Account ID

  	
  A758

  
	
  Account
  Number

  	
  175071000

  
	
  Account Name

  	
  GE Capital
  Corp - Commercial Finance

  
	
  Currency

  	
  Euro

  
	
  Swift Code

  	
  DEUTDEFF

  
	
  Sort Code

  	
  50070010

  
	
  REF:

  	
  CFI1283

  
	
   

  	
   

  
	
  With respect
  to the Netherlands Revolving Loan:

  
	
   

  	
   

  
	
  Bank: BNP Paribas, Paris

  	
   

  
	
  Account: GE Leveraged Loans Limited

  	
   

  
	
  IBAN #: FR76 3000 4008 2800 0107 2825 676

  	
   

  
	
  Swift Code: BNPAFRPPPAC

  	
   

  
			



 


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